Liber Amicorum Monika Pauknerová

Liber Amicorum Monika Pauknerová

Vzor citace:

PFEIFFER, M. a kol. (eds.) Liber Amicorum Monika Pauknerová. Praha: Wolters Kluwer ČR, 2021, 552 s.

Editoři:

doc. JUDr. Mgr. Magdalena Pfeiffer, Ph.D.

JUDr. Jan Brodec, LL.M., Ph.D.

JUDr. Petr Bříza, LL.M., Ph.D.

JUDr. Marta Zavadilová, Ph.D.

Tato publikace vznikla na základě podpory programů rozvoje vědních oblastí na Univerzitě Karlově Progres Q02 – Publicizace práva v evropském a mezinárodním srovnání, Progres Q03 – Soukromé právo a výzvy dneška a Progres Q04 – Právo v měnícím se světě.

© Wolters Kluwer ČR, a. s., 2021

Photo © Jan Hrdý, 2021

ISBN 978-80-7676-186-5 (váz.)

ISBN 978-80-7676-187-2 (e-pub)

ISBN 978-80-7676-188-9 (mobi)

www.wolterskluwer.cz

Seznam použitých zkratek

daňový řád

zákon č. 280/2009 Sb., daňový řád

ESLP

Evropský soud pro lidská práva

GDPR

nařízení Evropského parlamentu a Rady (EU) 2016/679 ze dne 27. dubna 2016, o ochraně fyzických osob v souvislosti se zpracováním osobních údajů a o volném pohybu těchto údajů a o zrušení směrnice 95/46/ES (obecné nařízení o ochraně osobních údajů)

Listina

usnesení Předsednictva České národní rady č. 2/1993 Sb., o vyhlášení Listiny základních práv a svobod jako součásti ústavního pořádku České republiky

nařízení Brusel I bis

nařízení Evropského parlamentu a Rady (EU) č. 1215/2012 ze dne 12. prosince 2012, o příslušnosti a uznávání a výkonu soudních rozhodnutí v občanských a obchodních věcech (přepracované znění)

nařízení Brusel II bis

nařízení Rady (ES) č. 2201/2003 ze dne 27. listopadu 2003, o příslušnosti a uznávání a výkonu rozhodnutí ve věcech manželských a ve věcech rodičovské zodpovědnosti a o zrušení nařízení (ES) č. 1347/2000

nařízení Řím I

nařízení Evropského parlamentu a Rady (ES) č. 593/2008 ze dne 17. června 2008, o právu rozhodném pro smluvní závazkové vztahy (Řím I)

nařízení Řím II

nařízení Evropského parlamentu a Rady (ES) č. 864/2007 ze dne 11. července 2007, o právu rozhodném pro mimosmluvní závazkové vztahy (Řím II)

o. s. ř. / občanský soudní řád

zákon č. 99/1963 Sb., občanský soudní řád

obč. zák. / občanský zákoník

zákon č. 89/2012 Sb., občanský zákoník

obch. zák. / obchodní zákoník

zákon č. 513/1991 Sb., obchodní zákoník

SDEU

Soudní dvůr Evropské unie

správní řád

zákon č. 500/2004 Sb., správní řád

Úmluva CMR

vyhláška ministra zahraničních věcí č. 11/1975 Sb., o Úmluvě o přepravní smlouvě v mezinárodní silniční nákladní dopravě (CMR)

Ústava

ústavní zákon č. 1/1993 Sb., Ústava České republiky

z. m. p. s.

zákon č. 91/2012 Sb., o mezinárodním právu soukromém

z. m. p. s. p.

zákon č. 97/1963 Sb., o mezinárodním právu soukromém a procesním

z. o. k.

zákon č. 90/2012 Sb., o obchodních společnostech a družstvech (zákon o obchodních korporacích)

z. r. ř.

zákon č. 216/1994 Sb., o rozhodčím řízení a o výkonu rozhodčích nálezů

zák. o veř. rejstřících

zákon č. 304/2013 Sb., o veřejných rejstřících právnických a fyzických osob a o evidenci svěřenských fondů

List of Abbreviations

CJEU

Court of Justice of the European Union

CMNI

Budapest Convention on the Contract for Carriage of Goods by Inland Waterway (CMNI)

CMR

Convention on the Contract for the International Carriage of Goods by Road (CMR)

COTIF

Convention Relative aux Transports Internationaux Ferroviaires (COTIF)

GDPR

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation)

ICSID Convention

Convention on the Settlement of Investment Disputes between States and Nationals of Other States

TEU

Treaty on European Union

TFEU

Treaty on the Functioning of the European Union

Vienna Convention

United Nations Convention on Contracts for the International Sale of Goods

Úvodní slovo

Prof. JUDr. Monika Pauknerová, CSc., DSc., patří k nejvýznamnějším osobnostem české právní vědy v oboru mezinárodního práva soukromého a práva mezinárodního obchodu, o jehož rozvoj se v uplynulých desetiletích zásadním způsobem zasloužila nejen díky své vědecké a pedagogické činnosti na Právnické fakultě Univerzity Karlovy a v Ústavu státu a práva Akademie věd České republiky. Prof. Pauknerová je uznávaným odborníkem ve svém oboru i v zahraničí, což dokládá nejen její působení ve významných mezinárodních institucích, jakými jsou např. GEDIP nebo UNIDROIT, ale i podíl zahraničních přispěvatelů na této poctě. Svou vědeckou a akademickou dráhu odstartovala prof. Pauknerová v roce 1980 kandidátskou disertační prací na téma Odpovědnost dopravce v mezinárodní přepravě zboží, v roce 1996 následovala habilitační práce na téma Společnost v mezinárodním právu soukromém. V roce 2002 byla tehdejším prezidentem Václavem Havlem jmenována profesorkou a v roce 2010 obdržela vědecký titul doctor scientiarum, který uděluje Akademie věd České republiky jako výraz ocenění vyhraněným vědeckým osobnostem.

Jak problematika mezinárodní přepravy, tak i osobní statut společností patří dodnes mezi oblíbená témata jubilantky. Co se oblastí odborného zájmu týče, nezůstala pouze u obchodněprávních témat, do svého odborného portfolia zahrnula i další oblasti soukromoprávních vztahů s mezinárodním prvkem, včetně obecných otázek, a lze ji bez nadsázky považovat za univerzála mezinárodního práva soukromého. Po vstupu České republiky do Evropské unie vydala monografii Evropské mezinárodní právo soukromé, která svým významem překročila rámec vysokoškolské učebnice a zásadním způsobem přispěla k vnímání norem unijního mezinárodního práva soukromého jako součásti českého práva. Rozsáhlá publikační činnost prof. Pauknerové zahrnuje i celou řadu zahraničních publikací.

Jako vysokoškolská pedagožka prof. Pauknerová proslula nejen vynikající schopností předávat své odborné znalosti a probouzet ve studentech sympatii k mezinárodnímu právu soukromému, ale i velmi vlídným a důsledným přístupem. Je to ostatně právě ona, kdo přivedl k tomuto krásnému oboru i všechny editory této publikace, a my jsme jí za to vděčni.

Prof. Pauknerová se v letošním roce dožívá významného životního jubilea, ke kterému jí přejeme vše nejlepší a jako dárek předáváme tento sborník příspěvků všech, kteří tím vyjadřují poděkování za celoživotní dílo, kolegialitu a přátelství paní profesorky.

Praha, říjen 2021

Magdalena Pfeiffer

Jan Brodec

Petr Bříza

Marta Zavadilová

Foreword

Prof. JUDr. Monika Pauknerová, CSc., DSc. is a leading figure in Czech legal science in the field of private international law and international trade law. She has made a significant contribution to developments in these disciplines in recent decades, not only through her scientific and pedagogical activities at the Faculty of Law at Charles University and the Institute of State and Law at the Czech Academy of Sciences. Professor Pauknerová is moreover an internationally acknowledged expert in her field, as evidenced not only by her work in major international institutions, such as GEDIP or UNIDROIT, but also by the number of contributions by foreign authors in this book. Professor Pauknerová began her scientific and academic career with her dissertation in 1980 titled Liability of the carrier in the international transport of goods, followed in 1996 by her habilitation thesis titled Company in Private International Law. In 2002, she was appointed a full professor by the then President Václav Havel, and in 2010 she received the scientific degree of doctor scientiarum, which is awarded by the Czech Academy of Sciences in recognition of a substantial contribution to scientific knowledge by distinguished academics.

International transport and the law applicable to companies are still two of Professor Pauknerová’s favourite topics. However, her professional interests cover not only topics relating to business law, but also other areas of private law relations with an international element, including general issues. She is undoubtedly an acknowledged expert in all areas of Private International Law. After the accession of the Czech Republic to the European Union, she published the monograph Evropské mezinárodní právo soukromé (European Private International Law), the significance of which extended far beyond that of a common university textbook, as it constituted a major contribution to the perception of the rules of European Private International Law as a part of Czech law. The considerable publishing activity of Professor Pauknerová includes an extensive number of foreign publications.

As a university teacher, Professor Pauknerová became known both for her excellent ability to impart professional knowledge to her students, awakening in them an interest in Private International Law, and for her very kind and firm approach. After all, she is the one who brought all the editors of this book to this beautiful field, for which we are very grateful to her.

Professor Pauknerová has reached a significant jubilee this year – we wish her the very best and are presenting her with this gift of a collection of contributions as an expression of our gratitude for her lifelong work, collegiality and friendship.

Prague, October 2021

Magdalena Pfeiffer

Jan Brodec

Petr Bříza

Marta Zavadilová

International Jurisdiction in Civil or Commercial Matters: HCCH’s New Challenge

Nadia de Araujo and Marcelo De Nardi[1]

After the conclusion of the 2005 Convention on Choice of Court Agreements and the 2019 Judgments Convention, the Hague Conference on Private International Law resumed its actions towards the harmonization of jurisdictional rules. The so-called Jurisdiction Project, initiated in 2020, is under the vigorous debate of an Experts’ Group, whose last meeting dates to February of 2021. This article highlights the main topics discussed by the Group, the disagreements and views presented by the experts, and the resolutions adopted by the Conference’s Council of General Affairs and Policy. It further poses the main difficulties faced by the Brazilian representatives in the negotiations, specifically related to the current internal rules on exclusive grounds for jurisdiction.

1.
Introduction

The Hague Conference on Private International Law (“HCCH”) is an international intergovernmental organization whose statutes were adopted in 1951.[2] Its roots go back to 1893 when, under the leadership of Tobias H. Asser, the first of the international conferences dedicated to Private International Law was conducted in The Hague, The Netherlands.

Since the beginning, the issue of jurisdiction has been highlighted, as evidenced in Art. 7 et seq. of the Convention of 1902 relating to the settlement of guardianship of minors.[3] In 1992 the HCCH launched the Judgments Project, which in the first phase of negotiations would deal with two issues related to transnational disputes in civil and commercial matters: the international jurisdiction of courts and the recognition and enforcement of foreign judgments.[4] Due to the difficulties associated with the issue of jurisdiction, the work was split in 2001.[5] Two conventions resulted from there: The Convention of 30 June 2005 on Choice of Court Agreements[6] and the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“2019 Judgments Convention”).[7]

In 2020, HCCH renewed its actions towards the harmonization of jurisdictional rules, renaming it to the Jurisdiction Project’s initiative (“Project”) and resuming the usual legislative drafting process. The Experts’ Group (“EG”) convened again to work on the Project and held its third meeting at The Hague in February 2020 and fourth meeting in November 2020 (by videoconference).[8] A fifth meeting held in February 2021 recommended developing a convention through a Working Group’s activities.

In this paper, we intend to recall the progress already made in the EG discussions and comment on the Project’s next steps. We will also compare the main discussed topics with the rules of the Brazilian Code of Civil Procedure of 2015 (the “CCP”)9 to understand the challenges for Brazilian negotiators in the current project.

2.
HCCH’s Guidelines for Action

In 2019, HCCH’s Council of General Affairs and Policy (“CGAP”) mandated the Permanent Bureau to schedule a meeting of the EG to occur in the first week of February 2020. The EG would discuss the matter related to jurisdiction “to prepare an additional instrument”.[10]

The EG handed over a report to CGAP a few days before its meeting in March 2020.[11] Therein it stated “the exploratory nature of its discussions and following constructive and fruitful exchanges” of ideas. It recommended the continuation of the work on jurisdiction, highlighting the issue of similar proceedings pending in different countries (parallel proceedings), in addition to recommending that two other similar meetings be scheduled and held before the CGAP 2021. The CGAP 2020 received well the EG report, and the recommendation to have two additional sessions was accepted.

In preparation for its next meeting, the Group invited the PB to carry out work and consultations, possibly with a questionnaire’s assistance, on how parallel proceedings and, mainly, issues about related actions or claims are addressed in different jurisdictions.[12] This questionnaire was distributed in May 2020 by the PB, and its outcome has been presented only to the Expert Group participants and HCCH’s Member States. The Brazilian Government, with the assistance of the Authors, introduced its responses, the content of which is exposed below.

3.
Issues Discussed by the Experts’ Group

In the resumption of work in February 2020, the discussion focused on assessing the need and the possibility of drafting a convention on the bases for jurisdiction. There was a significant dissent in the positions presented by those attending the meetings, mainly resulting from the States’ objective to protect their sovereignty while being bound by an international instrument.

The favorable response to the document by the Member States of the European Union, which have a set of harmonized rules on jurisdiction and recognition of foreign judgments—the Regulation no. 1215/2012 of the European Parliament and the Council of 2012[13] and the Lugano Convention[14]—contrasted with the reluctance of countries from other regions to move forward towards the standardization of grounds of direct jurisdiction, considered as a threat to their sovereignty. The “need to build bridges between civil law and common law systems”[15] was highlighted, but without leading to extreme divergent views. The relationship with HCCH Conventions of 2005 and 2019 was also highlighted.

As for the instrument’s general format, discussions gave rise to two alternatives: a document in the form of a convention or an information instrument (soft law), similar to the 2015 Hague Principles on Choice of Law in International Commercial Contracts.[16] The identified common goal was for a future instrument to have global acceptance.

Discussions regarding the nature of the idealized instrument went further when the round of talks on content began. The first topic addressed was the feasibility of listing the grounds of direct jurisdiction, including mandatory (white list), optional (gray list), and prohibited (blacklist) grounds. The subject revealed dissent among the experts, with positions ranging from the complete opposition to a list of jurisdictional grounds to transfer the lists from the 2019 Judgments Convention. The experts agreed to go ahead based on the definition of “judgment” laid down in Art. 3.1.b of the 2019 Judgments Convention and recognized the “habitual residence” as acceptable grounds for jurisdiction.[17] Submission to jurisdiction in its multiple forms (2019 Judgments Convention, Art. 5.1.e, f and m), jurisdiction based on the contract performance (2019 Judgments Convention, Art. 5.1.g), and jurisdiction for non-contractual obligations (2019 Judgments Convention, Art. 5.1.j) were nevertheless not accepted.

The Experts’ Group agreed to recommend maintaining the basis of exclusive jurisdiction related to the property’s location (2019 Judgments Convention, Art. 6). It should be noted that this was a topic which the Brazilian delegation negotiating for the 2019 Judgments Convention was very committed to discussing and whose final solution did not fully meet its objectives. The issue is related to the traditional rule on exclusive Brazilian jurisdiction established by law for “cases dealing with real property located in Brazil”.[18] It was considering the provisions of Art. 5.1.h, 5.3 and 6 of the 2019 Judgments Convention, that the experts highlighted the need to review the topic of jurisdictional grounds in contact with “rights ‘in rem’ in immovable property”.

It was also emphasized the need for an express provision that would authorize the Contracting States to the future instrument to decline jurisdiction in exceptional cases.

In the discussions on consumer and employment contracts, views were much divided, since a great range of solutions exists, from the exclusive jurisdiction in all cases in Argentina[19] to the jurisdiction of the consumer’s domicile in Brazil,[20] or the most general rules based on the defendant’s domicile in other countries, notably in the common law systems. It seems that such topics are not likely to be covered by a future convention.

The fourth meeting of the Experts Group held in November 2020 through videoconferencing, due to the COVID-19 pandemic, based its work on three main topics: 1. the use of the set of directives from the forum non conveniens doctrine (FNC) as the basis for rules on a future instrument; 2. basic elements, as scope and relationship with non-Contracting States; and 3. cooperation mechanisms. Discussion over FNC developed along the meeting evidencing the disagreement between two positions: the one based on the preeminence of “legal certainty and predictability for the parties”, and an open, non-exhaustive list of factors “so as to give courts discretion to consider the more appropriate forum”.[21] Along with the discussion, the Group acknowledged that procedural aspects should be considered in the future instrument, and questions involving States’ sovereignty where presented. Further discussion touched on combining the rules derived from FNC with basis for jurisdiction, on the assumption that “the jurisdiction of courts is based on a set of basic common rules” uniformly identifiable. Still, there were also mentions of “the presumption that the jurisdiction of courts is based on national jurisdictional rules”.[22]

On the basic element’s topic, the discussion ran over the scope, the Experts’ Group concluding that the future instrument should be harmonized and not overlapping the 2005 Choice of Court Agreements Convention. The Group addressed the research paper prepared by the HCCH’s Permanent Bureau on “Assuming or transferring jurisdiction to non-Contracting States”, developing comments following the idea that the rules of the future instrument would deal with relationships among the Contracting States but conceding that a different set of rules may be prepared for the situations involving non-Contracting States. The previous debate between the closed list of factors to define jurisdiction against granting discretion to courts regained momentum on the specific topic.

The EG addressed the problematic issue of rules for direct jurisdiction, touching the model from the 2001 Interim Text[23] of the four “categories of grounds for jurisdiction: exclusive, required, permitted, and exorbitant”, connected with a possible list of contact factors to establish obligations to assume or decline jurisdiction. The EG concluded that this model could be used as a starting point regarding the list of bases for jurisdiction on Art. 5 and 6 of the 2019 Judgments Convention. Discussion furthered over the concept of priority for grounds for jurisdiction.

On the issue of rules for parallel proceedings, the discussion on jurisdictional grounds’ priority regained momentum without reaching a solution. The Group discussed using the “first-in-time-seized court” rule to resolve the parallel proceedings’ situation, not reaching an agreement. An exercise on a future instrument’s structure showed the difficulties of establishing a harmonized understanding of the better forum. The ideas of using combined “factors of valid jurisdiction, elements of “first-in-time” rule, and the approaches in the FNC”[24] developed but did not reach an agreement.

The topic cooperation mechanisms revealed an agreement on the relevance of the issue for the Experts’ Group members. It was noted, though, that while developing such rules consideration is needed in questions related to “language, procedural rights of the parties, lack of experience in cross-border communication, and different procedural rules allowing courts to cooperate” and “issues of State sovereignty and the use of technology”.[25] The question of cooperation among courts developed in the path that the mechanism shall be part of a future instrument. Nonetheless, the actual tools will be perfected along with developing a solid text on the scope.

A small group of participants agreed to further studies on an alternative text discussed along with the Fifth Meeting in February 2021. Brazilian delegates were part of that small group. By the first days of January 2021, an alternative text was reached to be presented to the Experts’ Group, departing from the 2001 Interim Text model and the list of priorities for jurisdictional grounds. A new model, limited to dealing with parallel proceedings, not listing bases for jurisdiction, was developed. The suggestion is based upon the idea that jurisdiction is equally constituted in every single Court. Hence it is not possible to declare one to be better than the other. Under such initial understanding, text was developed in the sense that once parallel proceedings are identified, all of the Courts seized will have the treaty obligation to assess the issue of its international jurisdiction along with comparing it with the other Courts’ jurisdiction, trying to acknowledge which is the more adequate forum for the dispute. This approach does not depend upon a list of jurisdictional bases to be translated into a treaty instrument but can comprise it within its elements for guidance to the Courts on assessing their international jurisdiction.

The EG’s fifth meeting was held in February 2021 through videoconferencing, again focusing on four main topics:[26] 1. Desirability and feasibility of a new instrument; 2. Direct jurisdiction grounds acceptable; 3. Parallel proceedings rules; and 4. Related claims. Some discussion on judicial coordination and cooperation mechanisms went through, but the other issues took most of the time. The agenda was a challenging one, mainly due to the objections between two precise positions: i) the need to have a list of jurisdictional grounds and ii) understanding that having that list would be too much for an international treaty. Those two clear positions were not absolute, though, experts positioning in a range of intermediary alternatives, mainly due to the technique used to conduct the discussion using the Chair’s questions.

The outcome was difficult to reach, and refinements to the report took considerable time and effort. The EG finally recommended to CGAP to mandate a Working Group (“WG”) to further the work envisaging a mandate “to develop draft provisions on matters related to jurisdiction in civil or commercial matters, including rules for concurrent proceedings”. The divergencies along EG’s work were expressed with the statement that “the WG’s work proceed in an inclusive and holistic manner, with an initial focus on developing binding rules for concurrent proceedings (parallel proceedings and related actions or claims), and acknowledging the primary role of both jurisdictional rules and the doctrine of forum non conveniens, notwithstanding other possible factors”, a formula delicately crafted to accommodate all the positions expressed by experts.

CGAP 2021[27] mandated the establishment of a Working Group following EG’s recommendations and scheduled two meetings, one after mid-2021 and the other in early-2022, before CGAP 2022.

4.
Brazil and Parallel Proceedings in Different Countries

The central topic discussed, which aroused the EG’s most significant interest, was similar proceedings pending before different jurisdictions (parallel proceedings). In Brazil, the subject falls under the scope of lis pendens (where the parties, causes of action and requests are identical), related actions (conexão, where the proceedings concern the same cause of action or the same request) and continência (where the proceedings concern the same parties, and the request of one of the parties include the other’s), with emphasis on the provisions of Art. 24 of the CCP, which prohibits the recognition of “international” lis pendens by Brazilian courts. Nonetheless, the provision leaves an open door for a future flexible rule if provided by in international treaties, which has not occurred so far. [28]

This subject is where the experts’ views converged the most, hence deciding to go ahead considering that a future instrument would be relevant and could be limited to the issue of parallel proceedings in different countries.

A first delimitation established was to address issues involving parallel proceedings exclusively in court-to-court cases, in connection with the definition of judgment in Art. 3.1.b of the 2019 Judgments Convention, discarding the correlation with procedures before arbitral or mediation courts, or even ad hoc courts established to resolve international investment issues, among other examples.

The experts recognized as a primary rule on parallel proceedings the chronological precedence (first-in-time), giving priority to the jurisdiction first seized. This concept was soon subject to criticisms and specifications, such as the relationship with exclusive jurisdictional grounds. When an issue of exclusive jurisdiction exists, the priority should be given to the Court having this power under the future instrument.

The issue of exclusive jurisdiction under national rules was presented as an obstacle in connection with parallel proceedings and the first-in-time priority rule. A similar issue was of Brazilian concern along negotiations on Art. 6 of the 2019 Judgments Convention, but the proposed restriction was mitigated by retaining jurisdiction of the foreign country provided that a possibility of recognition and enforcement of the judgment there rendered exists. The small experts’ Group convened after the fourth meeting construed an alternative to this, based upon a more “procedural” proposal, putting the burden on the courts seized to decide on their international jurisdiction and to cooperate to find a more appropriate forum if the conflict persists.

Convention rules on international lis pendens would be departing from current Brazilian law, which does not recognize international lis pendens, according to Art. 24 of the CCP. Therefore, at the moment, Brazilian jurisdiction cannot be denied if a similar suit is pending abroad, involving the same parties and the same cause of action.[29] Provided that the eventual foreign judgment may be recognized in Brazil as res judicata, thus stalling Brazilian proceedings on the same parties and subject-matter, the Brazilian Court shall adjudicate the case until that situation is present, disregarding the foreign suit.[30] The first-in-time res judicata in Brazil will prevail, either derived from the Brazilian judgment or the foreign judgment’s recognition. However, as mentioned before, there is an opening on Art. 24 for divergent treaty rules.

At this time, as Brazil has not ratified any treaty with a provision allowing lis pendens, if a Brazilian Court is seized following Brazilian jurisdictional rules (Art. 21 to 23 of the CCP), and there is no exclusive choice of court agreement as defined in CCP’s Art. 25, the Brazilian Court shall adjudicate the case irrespective of a similar action pending or initiated in another country, according to Art. 24 of the CCP.

Another area that would be difficult for Brazil to agree upon, is the sensitive issue of exclusive jurisdiction on “cases dealing with real property located in Brazil” (Art. 23.I of the CCP) that may arise again along negotiations of a future convention, due to the unsolved question whether some “rights in personam” cases may be qualified in Brazil as “dealing with real property”.[31] This qualification problem shall be kept within sight by Brazilian negotiators.

The problem on immovable property located in Brazil under Art. 23.I of the CCP and Art. 6 of the 2019 Judgments Convention, can be figured out considering an eviction dispute based on a lease agreement for immovable property located in Brazil initiated abroad, resulting in the grant of the eviction order by the foreign Court. After the filing, but before the foreign judgment is rendered, a new similar dispute between the same parties is brought before a Brazilian court. According to the projected rules stated on the 2019 Judgments Convention, the Brazilian Court would have an obligation to decline its jurisdiction. However, the possession of immovable property located in Brazil could not be returned to the landlord by the effect of the foreign judgment. Thus, a foreign judgment on property located in Brazil, could be imposed by means other than the actual eviction, and only abroad Brazil. However, the actual eviction can only result from a judicial command by a Brazilian court. This is the paradox within the discussion: the experts want to avoid national exclusive jurisdiction rules at the discretion of the Contracting States and understand the need to preserve the effectiveness of judgments and draft a globally acceptable instrument. Touching the issue of sovereignty expressed in national rules of exclusive jurisdiction raises a sensitive point of negotiation.

Another topic discussed was the possibility of prioritizing parties’ autonomy to overcome the first-in-time criterion, among other alternatives, showing divergences in several points. Another conclusion that gained support in the discussions was not to propose a rigid rule granting priority to actions for performance over those of negative declarations: At this point it is relevant to recall the EG’s understanding that the future instrument shall not overlap the 2005 Choice of Court Agreements convention.

The experts discussed the possibilities of international transfer of jurisdiction. This act would correspond to the Brazilian domestic rule in Art. 64.3 of the CCP commanding “judicial records transfer” to the competent Court. Cooperation alternatives between courts from the different Contracting States were discussed, based on HCCH’s previous experience in other conventions, including the possibility of using the central authorities’ system. No objective conclusion was reached in this regard. Still, the Brazilian delegation highlighted two relevant points: the costs of establishing a central authorities’ system in a context of purely private interests, if the scope on civil or commercial matters is maintained, and the need to develop a mechanism for reviewing the transfer of jurisdiction in exceptional situations, such as the refusal of the jurisdiction in the country to which the case was transferred

5.
Conclusion

Brazilian negotiators face the challenge of finding a path for compatibility between a future convention and its expected benefits on integrating judicial services and the certainty it provides to people engaged in transnational exchanges, and current Brazilian legal limitations connected with sovereign power over property located in its territory. Negotiators may only envisage the political issues with the input of previous statutory or case law. Still, a constantly evolving policy can lead to a revision of the legislation, initiated by adopting an international convention.

Brazilian law allows seamless integration of treaties to its jurisdictional system, Art. 13 of the CCP stating the prevalence of treaties over national law on civil proceedings. This opening grants Brazilian negotiators freedom to develop an adequate future convention, both technically and politically acceptable to national policies. In the special case of lis pendens, art. 24 of the CCP, has a specific opening that would accept a treaty with the new rule. That cannot be said so clearly for Art. 23, of the CCP, in matter of exclusive jurisdiction. The question that remains is whether Art. 13 of the CCP would allow for the overriding of the exclusive jurisdiction provided for by Art. 23 of the CCP. The answer to the question would rest upon the interpretation of the Superior Court of Justice of the conflict between Art. 13 and the treaty.

The need to shed light on international jurisdiction on civil or commercial matters within Brazilian law gains momentum due to the development of future international treaties furthering a progressively globalized expectation of judicial cooperation. This issue is always present in international relations viewed through State’s or private person’s eyes.

[1]  Nadia de Araujo, PUC-Rio (Rio de Janeiro, Brazil). Marcelo De Nardi, UNISINOS (Porto Alegre, Brazil).

[2]   More information about the HCCH can be obtained at: https://www.hcch.net/en/about [cit. 2021-01-05].

[3]   “7. En attendant l’organisation de la tutelle, ainsi que dans tous les cas d’urgence, les mesures nécessaires pour la protection de la personne et des intérêts d’un mineur étranger pourront être prises par les autorités locales”. Text in French available at: https://www.hcch.net/en/instruments/the-old-conventions/1902-guardianship-convention [cit. 2021-01-05]

[4]   Free translation by the Authors of the content available at: https://www.hcch.net/en/projects/legislative-projects/jurisdiction-project [cit. 2020-06-30].

[5]  For an analysis of the original project and the reasons that led to the split of the work, see BRAND, R. A. Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead. In Netherlands International Law Review. May 2020, vol. 67, no. I, p. 3–17.

[6]  See HCCH’s Choice of Court Section. Available at: https://www.hcch.net/en/instruments/specialized-sections/choice-of-court [cit. 2020-06-30].

[7]  See HCCH’s Judgments Section. Available at: https://www.hcch.net/en/instruments/specialized-sections/judgments [cit. 2020-06-30].

[8]  The other meetings of the Group took place in 2012 and 2013. For more information about the Project, see https://www.hcch.net/en/projects/legislative-projects/jurisdiction-project [cit. 2020-07-09].

[9]   Law No. 13105/2015, in particular Art. 21 to 25. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm [cit. 2020-07-06].

[10]   HCCH, 2019 Conclusions and Recommendations adopted by CGAP, paragraph 5. Available at: https://www.hcch.net/pt/governance/council-on-general-affairs/archive/2019-council [cit. 2020-07-09]. For a background on the Judgments Project and CGAP decisions since 2001, see RIBEIRO, G. F., LOPEZ M. C. F. I., ARAUJO, N., DE NARDI, M. Crônicas de Direito Internacional Privado. In Revista de Direito Internacional. 2016, vol. 13, no. 2, p. 19.

[11]   HCCH, Preliminary Document No. 5 for CGAP 2020, with the attached meeting memory (aide mémoire), prepared by the Chair of the Experts’ Group. The document is not available to the public; there is a copy under the custody of the Authors.

[12]   HCCH, Conclusions & Decisions adopted by CGAP of 3–6 March 2020. Available at https://assets.hcch.net/docs/70458042-f771-4e94-9c56-df3257a1e5ff.pdf [cit. 2020-07-03].

[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 (recast). Brussels Ia Recast Regulation. Official Journal of the European Union: Legislative acts. 351/1. Available at http://data.europa.eu/eli/reg/2012/1215/2015-02-26 [cit. 2020-07-05].

[14]   Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed in Lugano, Switzerland, on October 30, 2007. Available at: http://data.europa.eu/eli/convention/2007/712/oj [cit. 2020-07-05].

[15]  Excerpt from the aide mémoire of the Chair of the Experts’ Group, see note no. 10.

[16]  Text available at: https://www.hcch.net/en/instruments/conventions/full-text/?cid=135 [cit. 2020-07-05].

[17]   As provided for in (I) of Art. 5 of the 2019 Judgments Convention. In Brazil the solution is similar, and corresponds to indent I and sole paragraph of Art. 21 of the CCP.

[18]  As provided for in (I) of Art. 23 of the CCP of 2015, and provided for in the previous CCP of 1973, in (I) of Art. 89.

[19]   Art. 2653 of the Argentinian Civil and Commercial Code of the Nation. Available at: http://servicios.infoleg.gob.ar/infolegInternet/anexos/235000-239999/235975/texact.htm [cit. 2020-07-31].

[20]   Insert II of Art. 22 of CCP.

[21]   Excerpt from the aide mémoire of the Chair of the Experts’ Group of the Fourth (online) meeting of the Expert’s Group on the Jurisdiction Project (16. 11. 2020 to 19. 11. 2020), paragraph 9. The document is not available to the public; there is a copy under the custody of the Authors.

[22]   From the aide mémoire mentioned at footnote 21, paragraph 13.

[23]   The 2001 Interim Text is the result of the first part of the jurisdiction project. Available at: https://assets.hcch.net/docs/e172ab52-e2de-4e40-9051-11aee7c7be67.pdf [cit. 2021-01-05].

[24]   From the aide mémoire mentioned at footnote 21, paragraph 35.

[25]  From the aide mémoire mentioned at footnote 21, paragraph 42.

[26]   From the aide mémoire from the Chair. Available at: https://assets.hcch.net/docs/5fbec58b-d14f-49c6-8719-b1fb68fd6d5b.pdf [cit. 2021-04-02].

[27]   CGAP 2021 Conclusions & Decisions, paras. 7 to 9. Available at: https://assets.hcch.net/docs/94e2d886-1cbf-4250-b436-5c1899cb942b.pdf [cit. 2021-04-02].

[28]  Art. 24, CCP: An action filed before a foreign court does not operate as lis pendens and does not prevent Brazilian courts from hearing the same action and those related to it, unless there are provisions to the contrary in international treaties and bilateral agreements in effect in Brazil.

[29]  Art. 24, sole paragraph, CCP: “The pendency of an action before a Brazilian court does not prevent the recognition of a foreign judgment when necessary for its enforcement in Brazil”. See (i) RE in EDCl on SEC 4,127, STJ, rapporteur Justice Gilson Dipp, judgment of 10. 02. 2014; (ii) AgRg na SE 4,091, Special Court, rapporteur Justice Ari Pargendler, judgment of 29. 08. 2012; (iii) AgRg on SEC 854, Special Court of STJ, rapporteur Justice Nancy Andrighi, judgment of 12. 02. 2011.

[30]   Absence of incompatibility with a Brazilian res judicata (963, IV, of CCP) is another requirement for the recognition of foreign decisions and the burden of proof of such obstacle is on the party against whom recognition is sought.

[31]   For a review on the issue of Brazilian exclusive jurisdiction on cases dealing with real property located in Brazil, see MONTEIRO, A. L. M. Arbitragem, “Competência Internacional Exclusiva” e homologação de sentença arbitral estrangeira que verse sobre bens imóveis situados no Brasil. In LEE, J. B.; MANGE, F. (ed.) Revista Brasileira de Arbitragem. (Comitê Brasileiro de Arbitragem CBAr & IOB): Kluwer Law International, 2018, v. XV, t. 59, p. 7–44. See also RE 90.961, rapporteur Justice Decio Miranda, judgment of 29. 05. 1979, ruled under the aegis of the CCP/73, dealing with the issue of limits to national jurisdiction and the qualification of a promissory contract for sale and purchase of immovable property, in which the Court considered it to be an obligation to act and not an in rem issue.

International Transport Conventions and the European Union

Jürgen Basedow[1]

When Monika Pauknerová set out for her academic career around the year 1980, Europe was still divided by what Winston Churchill had called the iron curtain.[2] Behind that line reaching from the Baltic to the Adriatic Sea he identified the Soviet sphere and the control from Moscow. In that world, law and lawyers, both practitioners and academics, where not tasked with the preservation of individual rights and duties, but with the service for the ruling party. It was not easy to embark upon the road to legal academia in those days. Private international law may have been an area subject to minor attention from socialist politics; it may therefore have been especially attractive for young academics. This is particularly true for the highly technical discipline of international transport law which Monika chose as the subject of her scholarly specialization.[3] It was one of the few areas where lawyers from east and west were in contact with each other and cooperated in international organisations designed to create a reliable legal framework for the international carriage of goods and passengers which occurred even in those days, albeit to a lesser extent than at present.

40 years have gone by, the international situation has thoroughly changed. The Czech Republic is no longer located at the western edge of the Soviet sphere but has returned to the traditional place of Bohemia and Moravia in the center of Europe, and is a member of the European Union. This Union has expanded its competence and legislation to many areas including international transport law which had been entirely left to Member States before. As a result, the international transport conventions and the law of the Union have formed a kind of symbiotic relationship which this paper is meant to analyse, thereby recalling Monika’s early scholarly work. It will focus on those conventions which deal with the carrier’s liability vis-à-vis its clients, i.e. shippers and passengers. A first part will summarise the existing conventions which have been amended and grown in number since 1980. Where their regulations overlap with policy areas of the Union and with the acquis communautaire, legislation becomes a complex task as can be inferred from the second part. A third part will take a closer look at the jurisdiction of the Court of Justice with regards to the interpretation of transport conventions.

1.
Taking Stock of International Transport Conventions

1.1
Land Transport

The unification of international transport law started in 1892 by the conclusion of the Convention internationale pour le transport de marchandises par chemin de fer (CIM) on 14 October 1890.[4] In those days, contracts for the carriage by rail through the networks of several railway companies or administrations required that a subsequent railway would enter into the contract concluded by the first railway with the shipper. This required a common legal framework which was established by the Convention. It was amended several times and supplemented by a corresponding Convention for the carriage of passengers (CIV). In 1980, the two Conventions and other documents were merged into the Convention relative aux transports internationaux ferroviaires (COTIF), which was again thoroughly amended by the protocol of Vilnius of 3 June 1999, adopted in view of the membership of many contracting states in the European Union.[5] In order to allow successive carriers to become a party to the contract of carriage, derogations from the uniform rules established by the Convention for the contract of carriage are declared to be null and void, both for the transport of passengers and of cargo.[6]

The long-standing railway monopoly in land transport was a welcome source of revenue for States which often owned the major railways and benefitted from the monopoly rents. Motorisation occurring after World War I and, to an even greater extent, after World War II threatened this revenue by intermodal competition. States tried to restrict that competition by road carriers and to preserve the competitive position of railways by various measures, inter alia by the conclusion, in 1956 of the Convention on the contract for the international carriage of goods by road (CMR).[7] It more or less copies the provisions of the railway convention which was in force in those years. Just like its model, it is absolutely mandatory, prohibiting derogations both to the benefit and to the detriment of the shipper/consignee, see Article 41. And just like the railway model, it is in force for all Member States of the European Union and for a lot of third States.

Under the auspices of the Economic Commission for Europe of the United Nations (ECE), a further Convention signed in 1973 provided for another liability regime for the carriage of passengers by road. According to its Article 23 it is equally of a mandatory nature; while it is in force for some countries including the Czech Republic, its approval is confined to Eastern European States.[8]

1.2
Carriage by Sea and Inland Waterways

In ocean shipping, the widespread contract clauses immunising European ship owners against liability had aroused opposition and prohibitory legislation in overseas countries already in the years before World War I. In those years, such clauses impaired the negotiability of bills of lading which were of central significance for the export trade. Negotiations on a reliable content of bills of lading were first undertaken at a private level, and the International Law Association agreed on a corresponding text, the so-called Hague Rules which were however not accepted on a voluntary basis. In 1924, they were therefore transformed into a Brussels Convention which provided for mandatory minimum standards for the carrier’s liability.[9] The Hague rules were adjusted to the rise of container transport by the so-called Visby Protocol in 1968.[10]

However, the application of the Hague Visby rules is still conditional on the issue of a bill of lading while negotiable documents are less and less frequent in international container transport. The international community therefore decided to draft a completely new convention dealing with contracts on the carriage of goods by sea as such, the so-called Hamburg Rules which were adopted in 1978 and took effect in 1992.[11] But since the carrier’s liability under the Hamburg Rules is stricter than under the Hague Visby rules, the Hamburg rules have mainly been approved by countries which are close to the interest of shippers such as the Czech Republic or which lack a noteworthy commercial fleet of their own. The situation is deadlocked: an outdated convention on the one side is still approved by the shipping interests of the major maritime nations, whereas on the other, there is a modern convention which encounters the opposition of the shipping nations. An attempt to overcome this schism resulted in the Rotterdam Rules, a completely new Convention of 2009 which is however still far from entering into force.[12]

Concerning the carriage of passengers and their luggage by sea, the Athens Convention of 1974, amended by a protocol of 2002 has been more successful; it has in particular attracted approval in Europe, both from the Union and its Member States.[13]

It is a specialty of maritime law that liability is not only limited for each transport operation, but in addition to a fund, i.e. a maximum amount that is calculated for an entire vessel. It covers all claims of a civil law nature including those resulting from the carriage of goods or passengers but also e.g. from collisions. This global limitation is only relevant for huge losses and does not raise comparable disputes between shipping interests and shippers/consignees. The respective national rules have repeatedly been the object of unification efforts. The current instrument is the 1976 London Convention on the Limitation of Liability for Maritime Claims, the LLMC which has been amended by a Protocol of 1996.[14] Both are approved by a large number of States.

More successful than the unification of the law relating to the carriage of goods by sea is also the Budapest Convention on the contract for carriage of goods by inland waterway (CMNI) which was adopted in 2001; it has been approved, throughout the last two decades, by nearly all relevant countries.[15] In accordance with its Article 25, the carrier’s liability laid down in this convention is a mandatory minimum standard. With regards to passenger transport in inland navigation, previous attempts at regulation by international Convention were unsuccessful.

1.3
Carriage by Air

Concerning the carriage by air of both passengers and cargo, the Warsaw Convention of 1929 established a first international legal framework.[16] For the promotion of a young industry, the framers of the Convention had agreed on very low liability limits which appeared intolerable for the carriage of passengers after World War II. From the 1960s onwards numerous actions of governments and airlines distorted the legal uniformity achieved before[17] until the Montreal Convention of 1999 reestablished uniformity; it is now in force for almost 140 states. With regards to the carriage of goods it has essentially taken over the rules of the Warsaw Convention whereas the carrier’s liability for the carriage of passengers is now stricter and subject to higher and more differentiated limits to liability.[18] According to its Article 49, the rules laid down in the Convention are absolutely mandatory.

These are the essential data concerning the international transport conventions which are currently in force. They have created a comprehensive legal framework. All conventions deal with carriage operations that have some cross-border element; but they have also impacted on domestic transport law in several countries. While all conventions reach out far beyond the European Union, they also govern carriage between Member States which may be covered by the law of the European Union as well. This raises the question of how the Union accommodates this situation of potential conflicts.

1.4
Multimodal Carriage of Goods

In the modern development of transport, carriage of goods is carried out increasingly by carriers of different modes operating under a single contract agreed between the shipper and a the multimodal transport operator (MTO). When loss of or damage to goods carried in a container in such multimodal transport occurs it is often difficult to find out the leg where it happened; consequently it may not be possible to identify the liable sub-carrier. The international community therefore negotiated a Convention dealing with multimodal transport. Under this instrument the mandatory liability is basically channeled to the MTO that has undertaken to carry out the multimodal transport. The Convention has not taken effect, however.[19]

2.
International Transport Conventions in EU Legislation

2.1
The Reasons of EU Involvement

The international Conventions on the carriage of goods and passengers listed above were initially the sole result of intergovernmental cooperation which apparently was quite successful. Why should the Union interfere with this body of law? Could it not simply have relied on the ability of Member States to bring about the unification of private law in the traditional way? There were several reasons for EU action.

The most relevant driving force was probably the legal uncertainty in the carriage of passengers by air that has been hinted at above. In the 1990s, the Union anticipated that the imminent enlargement would entail growing distances within the Union which rendered the carriage by air indispensable for integration in general and the operation of EU institutions in particular. The legal uncertainty prevailing after the de facto termination of the Warsaw liability system was fertile ground for an initiative of the Union intended to reestablish legal certainty at the European level and to raise liability limits. These objectives were achieved in 1997 by a Regulation[20] which paved the way and served as a model for the later adoption of the Montreal Convention.[21] This enactment broke the ice, giving political tailwind for several other EU measures targeted at the carriage of passengers by air and also in other modes of transport. They focus on the carrier’s liability in the event of accidents; another series of regulations provides for a flat rate compensation in the case of long delays or cancellation of a trip. The recitals invariably refer to the protection of passengers as their main objective which is a special manifestation of consumer protection, another Union policy that has been emphasized ever since the mid 1980s.

Another motivation of EU institutions may have been the observation that international Conventions are not always approved by all Member States and that some albeit few Member States are hesitant to accede to a Convention, thereby creating a patchwork and legal uncertainty in the Union for the respective area. A third reason is linked to a major deficit of international Conventions, i.e. the risk of divergent interpretation and application by national courts. While some Conventions provide that the International Court of Justice may be seized in order to overcome disputes about the proper interpretation, this has in practice never occurred. And it is highly unlikely that the International Court of Justice will ever get an opportunity to decide on interpretative disputes, relating for example to the CMR Convention in the carriage of goods by road.[22] Since a private party has no standing in that Court, it will have to convince its own government to file an action against the contracting State whose commercial court is alleged to have wrongly interpreted the CMR. The dispute thereby is carried from a commercial environment to the diplomatic level where it would be decided by judges who usually lack experience in the respective field. This is neither appreciated by the private parties nor by governments. Where the Union transforms an international Convention into its own law, such detours can be avoided as will be shown later on.

2.2
Enabling Provisions in the EU Treaties

Legislation of the Union relating to the carrier’s liability in the transport of passengers will often conflict with existing commitments of Member States under international law raising difficult problems under Article 351 TFEU. Such conflicts can be avoided where the Union itself becomes a party to the international Convention. Where a Convention regulates both the carriage of passengers and the carriage of goods, such an approval entails however the need for the Union to expand its legislation beyond the carriage of passengers and the protection of consumers into genuinely commercial transactions of a B2B nature, i.e. the carriage of goods. The Union’s corresponding attempts have repeatedly raised political objections of the Member States which want to keep control of commercial law; they also give rise to some difficult legal issues which deserve some comments in this context.

In accordance with Article 47 TEU the Union is endowed with legal personality under international law and therefore able to incur international commitments. However, its treaty-making powers are limited by Article 216 TFEU. Such powers presuppose express permissions contained in the Treaty or in secondary law; they also exist were an agreement is needed for the achievement of one of the objectives of the Treaties or were an agreement is likely to affect common rules of the Union or to alter their scope.

Finding a legal basis for the conclusion of the international transport Conventions was not difficult since the Union is tasked with the development of a “common transport policy” under Article 90 TFEU. The Treaty provides only very few contours to this objective and allows to adopt “any … appropriate provisions” in Article 91(1)(d) TFEU; therefore, the matter is almost entirely left to political discretion. The Union has in fact become a party to three transport Conventions on this basis: the Montreal Convention,[23] the COTIF Convention on rail transport[24] and the Athens Conventions on the carriage of passengers by sea.[25]

All three conventions contain, alongside the substantive provisions on liability, also rules on jurisdiction and/or lis pendens and the recognition and enforcement of foreign judgments; such rules have often been included in transport law conventions as a supplement ensuring an effective enforcement of the claims awarded by those instruments. In the case of COTIF and the Montreal Convention the use of the enabling provision for transport policy (now: Articles 91 and 100 TFEU) was considered to extend also to those procedural precepts. But in the case of the Athens Convention Denmark opposed, positing that such procedural rules concerned the judicial cooperation in civil matters under Article 81 TFEU which is not in force for Denmark. After intense debate, the Union finally split up its approval of the Athens Convention into two Decisions, one classified as a matter of transport policy and based on Article 100(2) TFEU, the other characterized as a measure of judicial cooperation in civil matters and based on Article 81 TFEU.[26] In the meantime, Denmark has become a separate contracting party to the Athens Convention. The narrative of the Athens Convention demonstrates the rivalry of the Member States and the Union when it comes to the expansion of EU private law.

2.3
Limits Set by Treaty Law

The accession of the European Union to international transport Conventions raises issues of treaty law alongside those concerning the law of the Union. In fact, several international Conventions exclusively permit the accession by “countries” or “states”, thereby excluding the European Union. Characteristic is Article 42 CMR:

“1. This Convention is open for signature or accession by countries members of the Economic Commission for Europe [of the United Nations] and countries admitted to the Commission in a consultative capacity under § 8 of the Commission’s terms of reference. …”

In maritime law, a similar limitation is contained in the Hague Rules, the Hague Visby Rules, in the Hamburg Rules and also in the LLMC. And the situation is the same for the carriage of goods by inland waterway under the CMNI Convention, although this instrument was adopted only in 2001 when the European Union was already about to approve the Montreal Convention and when the Vilnius Protocol of 1999 had already allowed for the accession of the Union to the railway Convention COTIF. The overall effect of final provisions such as Article 42 CMR is to exclude an approval by the Union as a matter of treaty law.

2.4
Ratification “in the Interest of the Union”

Where the Union is precluded from adhering to an international Convention this may create a deadlock where a Convention regulates issues which fall into the exclusive competence of the Union. In such cases, neither the Union nor the Member States would be allowed to become contracting parties. In accordance with the jurisprudence of the Court of Justice, the Union’s treaty-making powers are exclusive for the regulation of the judicial cooperation in civil matters to the extent that (internal) EU measures have already been adopted.[27] As an escape from this impasse, the institutions of the Union and the Member States have conceived of the following solution: At the request of a Member State the Union authorizes that Member State to ratify or accede to the Convention at issue “in the interest of the Union”;[28] the Member State is required to submit a corresponding declaration when it deposits its instrument of approval.

So far, this solution has been adopted once in transport law. While the Budapest Convention on the Carriage of Goods by Inland Waterway (CMNI) does not contain any procedural rules, it provides for the law supplementing the Convention by a specific conflict rule in Article 29 which overlaps with the Rome I Regulation.[29] The conflict between Article 29 CMNI and the Rome I Regulation is unlikely to occur, but the Commission nevertheless insisted that the Union had acquired exclusive external competence by adopting the Rome I Regulation and that its provisions are affected by Article 29 CMNI. In 2015 when most interested Member States had already ratified the CMNI Convention, the Union therefore took a Decision authorizing Austria, Belgium and Poland to approve the CMNI Convention in the interest of the Union.[30]

2.5
A Heterogeneous Situation

The overall situation of the transport law Conventions in the Union, thus, is rather heterogeneous. In the maritime transport of goods, the Union understandably has no interest in being involved, since there is a fundamental split between Member States favoring the interests of shippers and consignees as expressed in the Hamburg rules, and others committed to the shipping interests. Where this conflict of interests is less conspicuous, i.e. with regards to the global limitation of liability under the LLMC, the EU has chosen a remarkable detour to achieve some European harmonisation: it has adopted a Directive that requires shipowners of the Union and also vessels from third States entering an EU port to take out liability insurance covering the liability under the limits of the LLMC.[31]

In the carriage of goods by road the CMR Convention is in force for all Member States but does not allow for the approval by the Union. For the carriage by inland waterway, the CMNI is essentially an exclusive matter of the Member States likewise which however needed the authorization of the EU for the approval of that instrument. The Union has become a full-fledged contracting party to the Rail Convention COTIF, reserving however the right to apply a long list of internal legal enactments to the carriage between Member States.[32] An unqualified conclusion by the Union has only been decided for the Montreal Convention in air transport and for the Athens Convention concerning the carriage of passengers by sea. What does this mean for the application of all these instruments? The following part will now delve into the role of the European Court of Justice in the adjudication of disputes arising under the Conventions.

3.
International Transport Conventions before the Court of Justice of the European Union

As pointed out above, the interpretation of uniform law Conventions is not entrusted to an international tribunal. Even where the International Court of Justice has jurisdiction, it has never been seized. As a consequence the supreme courts of the contracting states are the courts of last instance which determine the meaning of uniform law conventions for the respective Member State. The risk of divergent interpretations is inevitable although the courts of contracting states have to honor the need for a uniform interpretation that is sometimes even made explicit in the respective treaty.

3.1
The Court’s Direct Jurisdiction

This drawback of the unification of private law by means of international Conventions can be reduced by the Court of Justice of the European Union. Among the several types of proceedings regulated by the Treaty it is primarily the referral procedure that is relevant in this context. Under Article 267(1) TFEU national courts may or must submit requests for a preliminary ruling concerning the interpretation of acts of the institutions of the Union. In accordance with Article 288 TFEU the acts covered by this provision comprise Regulations, Directives and Decisions including the Decisions adopted for the conclusion of an international Convention by the Union. As pointed out by the Court, such a Convention becomes an integral part of EU law through the act of conclusion.[33] The jurisdiction of the courts consequently does not only cover the Decision as such but also the Convention.

There are in fact numerous judgments of the Court which have addressed specific issues of interpretation arising under the Montreal Convention. For example, the Court had to deal with the concept of accident in Article 17, extending this concept to a scalding of a passenger resulting from hot coffee spilled by a flight attendant.[34] In another case, the Court held that the person entitled to compensation for delay is not only the passenger herself, but may also be her employer who booked the flight for that passenger.[35] A third decision addressed the concept of damage resulting from the loss of baggage; the Court ruled that it includes both material and non-material damage.[36] The case law clearly shows that divergent interpretations of the Montreal Convention in different Member States can be avoided by appropriate referrals to the Court of Justice, a remarkable progress as compared with the previous situation.

By contrast, the Court’s jurisdiction is lacking for the interpretation of international Conventions that are in force for the Member States, but not for the Union. With regards to the Warsaw Convention of 1929 the Court of Justice pointed out that at the material time all Member States of the Community were contracting parties. It nevertheless came to the conclusion “that the Warsaw Convention does not form part of the rules of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC [now: 267 TFEU]”.[37] This may appear as a rather formalistic view since at the relevant time, all Member States had expressed their intention to unify the law of air carriers’ liability and were held by international treaty law to aim at a uniform interpretation. However, the Court’s view is in line with the limited conferral of jurisdiction from the Member States to the institutions of the Union. There are nevertheless some situations which require a more flexible understanding of the Court’s jurisdiction.

3.2
The Court’s Indirect Jurisdiction

A first group of cases relates to those instruments of EU law which contain provisions that refer to pre-existing international Conventions, thereby determining the scope and meaning of EU law. In the maritime sector the Union has adopted, as mentioned above, a Directive[38] requiring shipowners to take out liability insurance covering maritime claims subject to limitation under the 1996 LLMC Protocol that has been mentioned above.[39] In this case, the duty to take out insurance cover depends on the interpretation of the LLMC Protocol with regards to both the scope and extent. The rationale of the Directive is to ensure that claims subject to the LLMC can actually be enforced even in the event of the shipowner’s insolvency. While the Convention is not in force for the European Union, the Court of Justice will have to engage in its interpretation where the meaning of the said Directive is in doubt. Assuming for example that there is a dispute between a shipowner and a port authority on the question whether certain exceptions to cover agreed in the shipowner’s liability insurance relate to claims subject to a limitation of liability under the LLMC, the Court of Justice will undoubtedly have to interpret that Convention.

A second group of cases concerns Conventions of the Member States that contain provisions overlapping with analogous rules of EU law. This applies for example to the CMR in the carriage of goods by road.[40] There were several reasons for the Court of Justice to reject an interpretation of this instrument. First and as pointed out above, the CMR is equally in force for all Member States but not for the EU; the situation is thus identical to the Warsaw Convention.[41] Second, the rules of the CMR would probably be immunised against EU law by Article 351 TFEU since it was agreed before the European Economic Community was established. Third, there is even a specific provision in the law of the Union, in this case in the Brussels-I Regulation, explicitly stating that it does not affect corresponding provisions of Conventions relating to “particular matters” such as the carriage of goods by road.[42]

Nevertheless, open conflicts can occur between the Brussels-I regime and Article 31 CMR which deals with jurisdiction, lis pendens and the recognition and enforcement of foreign judgments. When such conflicts were submitted to the Court, it drew attention to the fact, that it had no jurisdiction to interpret the CMR.[43] The Court stated in those judgments nonetheless that a particular interpretation of the Convention by the national courts was precluded by the Court’s interpretation of the Brussels-I Regulation.[44] This sounds like a surrealistic understanding of the non-affectation provision of Article 71 CMR; since the Court of Justice in fact interprets Article 31 CMR by excluding a certain understanding of the provision, it should not pretend to abstain from such interpretation, insisting on its lack of jurisdiction. Nevertheless, the outcome of these cases is reasonable: where EU law and a Convention that is in force for the Member States overlap and deal with the same issues by divergent rules, a harmonising interpretation is indispensable.

3.3
Conventions Concluded by Member States in the Interest of the Union

A third group of Conventions are those which deal with a subject falling wholly or in part into the exclusive legislative competence of the European Union but do not permit entities other than States to become a contracting party. As mentioned above, the split between external powers and internal competence has been overcome in various instances by Council decisions which authorize the Member States to ratify, to accede to or to adhere to such conventions “in the interest of the Community (or Union)”. The example of the CMNI Convention has been referred to above.[45] In the neighbouring area of third-party liability of vessels one could add the Bunkers Convention which deals with the civil liability for bunker oil pollution damage; it equally prohibits a ratification by the Union, but deals with issues of jurisdiction and the recognition and enforcement of foreign judgments which fall into the exclusive competence of the Union. The EU has authorized the Member States to approve this instrument in the interest of the Union.[46] How far does the jurisdiction of the Court for the interpretation of these instruments reach?

For the purposes of Article 267 TFEU it has to be retained that the Union considers the unification of private law in these areas as being in its own “interest”. This interest cannot be confined to the adoption of the legislative texts; it includes their application in the Union. While the respective Council decisions are undoubtedly part of the law of the Union and therefore subject to the interpretative jurisdiction of the Court of Justice, it is submitted that in these cases the Conventions in question, although technically part of Member State law, are in substance also a part of the law of the Union since their subject matters fall into the legislative competence of the Union which has taken all possible steps to implement the Conventions in its law. The Court of Justice therefore appears to be entitled to interpret the Conventions with authority for the whole Union.

It may however be open to question whether this jurisdiction covers the interpretation of all provisions of the respective conventions. It should be recalled that the Union has confined its claim of exclusive competence to isolated provisions: the conflict rule of Article 29 CMNI and the rules on jurisdiction and the recognition and enforcement of foreign judgments under Articles 9 and 10 of the Bunkers Convention. Is the Court’s jurisdiction limited to the interpretation of these provisions? Since the said instruments are Conventions ratified by the Member States and not by the Union, this appears to be the inescapable consequence. From the viewpoint of EU law the provisions mentioned belong to the national law of the Member States in a formal sense, but to EU law in a substantive sense because of the exclusive competence of the Union. With regards to other provisions dealing with liability such link with EU law does not exist; consequently, they must be left to the interpretation by the national judiciary of the Member States. This could only be different where the interpretation of a provision of the former kind—Article 29 CMNI or Articles 9 or 10 of the Bunkers Convention—depends on a certain meaning assigned to one of the provisions of substantive law dealing with liability issues. In that case, the Court of Justice would be entitled to interpret those substantive law provisions as well.

3.4
The Objective of Uniform Interpretation

Whenever the Court of Justice interprets a provision of an international instrument under the rules on jurisdiction discussed above, its findings are binding only for the courts in the European Union. If the courts of a third State have to decide the same issue, they are free to deviate from the Court’s precedent. But they may of course follow the Court as the goal of a uniform interpretation is a guideline for them as well. Since the Court’s case law is available in so many languages, its judgments are likely to be taken note of and may exercise some influence outside the European Union.

This is due to the judicial mandate of uniform interpretation. The objective of a uniform and autonomous interpretation of international conventions is nowadays laid down in many provisions contained in those conventions which follow the model of Article 7(1) of the Vienna Convention on the International Sale of Goods.[47] The provision points out that ‘in the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application’. Numerous similar provisions can be found in more recent international instruments[48] including some Conventions that are binding for the European Union.[49] They reflect the practice of national courts across the globe.[50] And they may also be viewed as a special manifestation of the interpretative rule of Article 31 of the Vienna Convention on the law of treaties which points to the decisive role of the purpose of a treaty for its understanding;[51] since a law-making treaty is meant to create uniform law, the purpose must be promoted at the stage of application by a uniform interpretation. Since the Union is committed, “in its relations with the wider world…to the strict observance and development of international law”, see Article 3(5) TEU, it is bound to pursue the objective of uniform interpretation of international Conventions which comes down to the obligation to take into account the views held in third States on the interpretation of such Conventions.

The duty to look for the judicial practice of other contracting states is thus also incumbent on the Court of Justice. This may for example become relevant in the interpretation of the Montreal Convention which has taken over so many provisions from the Warsaw Convention that gave rise, ever since World War II, to a broad judicial practice in many countries. So far, the Court of Justice does not appear to have fully realised this body of case law. It would primarily be the task of the Advocates General to look for third-State judgments on issues that are pending in the Court; this kind of research has rarely been undertaken so far, however. A welcome exception is provided by the opinion of Advocate General Saugmandsgaard Øe in Niki Luftfahrt. With regards to the concept of accident he pointed out that “the Montreal Convention must … also be interpreted in the light of the decisions relating to the Warsaw Convention, given the essential equivalence between them”.[52] This opinion indicates the direction of the future interpretation of international transport Conventions by the Court of Justice.

4.
Conclusion

The long-standing efforts of the international community of States to create a reliable and comprehensive legal framework for the international carriage of goods and passengers have brought about an impressive body of law. Many international Conventions drafted under the auspices of various international organisations are in force for a large number of States and have given rise to uniform law in several sectors. These Conventions are of particular importance for the European internal market as well; both the movement of persons and the trade in goods depend, to a very large extent, on cross-border transport. Legal certainty required for those purposes includes foreseeable principles of liability.

From this perspective, much research has been conducted with regards to the substantive rules of the various instruments. In particular, the characteristics of the various transport documents and the liability of the carrier have been the object of thorough investigations. The present paper has focused on a different aspect: The gradual transition of the liability regime from international Conventions to enactments of the European Union. As shown above, the resulting situation is far from transparent, since the role of the Union, of EU law and of the European Court of Justice differs from Convention to Convention.

But there is also a bright side of this development. Where the Union takes possession of a uniform law Convention, the regime of that instrument is in force for all Member States; no exception is tolerated. Moreover, the expansion of the Court of Justice’s jurisdiction to some of the instruments promises, for the first time in the history of uniform law Conventions, a uniform interpretation of some of the instruments, in particular of the Montreal Convention, for the territory of the whole European Union. While the Court of Justice cannot ensure a uniform interpretation at a worldwide level, it can demonstrate that a uniform interpretation and application of such international Conventions is possible and may lead to a higher degree of rationality for the unification of private law at large.

[1]  Prof. Dr. Dr.h.c.mult. Jürgen Basedow, LL.M. (Harvard Univ.), director emeritus of the Max Planck Institute for Comparative and International Private Law, Professor of Law at the University of Hamburg and Member of the Institut de droit international.

[2]  CHURCHILL, W. The sinews of peace, Speech given at Westminster College, Fulton, Missouri, on 5 March 1946 reproduced at https://WinstonChurchill.org/resources/speeches/1946-1963-elder-statesmen/the-sinews-of-peace.

[3]  PAUKNEROVÁ, M. Smluvní odpovědnost v mezinárodní přepravě. Praha 1985; id., The liability of the carrier in international carriage of goods conventions, Annuaire de l’AAA 51-53 (1981–1983), The Hague 1984, p. 119–135.

[4]  See for the original text in French and German, Reichsgesetzblatt 1892, 793.

[5]  A consolidated text of COTIF 1999 is reproduced on the website of the Organisation intergouvernementale pour les transports internationaux ferroviaires (OTIF): https://OTIF.org.

[6]  See the respective Article 5 of the uniform rules CIV and CIM, which are attached to the Convention as appendix A and appendix B.

[7]  The Convention was signed at Geneva on 19 May 1956, 399 UNTS 189.

[8]  Convention on the contract for the international carriage of passengers and luggage by road (CVR), done at Geneva on 1 March 1973; for text and status see the website of the United Nations economic commission for Europe: www.UNECE.org/fileadmin/DAM/trans/conventn/CVR_e.pdf.

[9]  International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, signed at Brussels on 25 August 1924, 120 LNTS 155. Because of the background in the draft bill of lading adopted by the International Law Association at the Hague in 1921, the Convention is still designated as Hague Rules.

[10]  Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, signed at Brussels on 24 August 1924, concluded at Brussels on 23 February 1968, 1412 UNTS 127.

[11]  United Nations Convention on the Carriage of Goods by Sea, 1978, done at Hamburg on 31 March 1978; for text and status see the website of UNCITRAL: https://uncitral.un.org.

[12]  United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, done at New York on 11 December 2008; for text and status see the website of UNCITRAL, previous fn. Only five States have adopted the Rotterdam Rules so far; 20 are needed.

[13]  Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974, concluded at Athens on 13 December 1974, 1463 UNTS, 19; Protocol of 2002 to the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974, done at London on 1 November 2002, no volume of UNTS has been assigned so far, the text is reproduced under the number A-24817.

[14]  Convention on limitation of liability for maritime claims, concluded at London on 19 November 1976, 1456 UNTS 221; a consolidated version amended by the Protocol of 2 May 1996 can be found on the website of the European Maritime Safety Agency (EMSA) www.emsa.europa.eu, →, implementation tasks/environment, → liability & compensation/topics & instruments, → limitation of liability.

[15]  Budapest Convention on the contract for the carriage of goods by inland waterway (CMNI), done at Budapest on 22 June 2001; for text and status see the website of the United Nations Economic Commission for Europe, www.unece.org/trans/main/sc3/sc3_legalinst.html.

[16]  Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929, 137 LNTS 11.

[17]  See the survey in BASEDOW, J. Der Transportvertrag. Tübingen, 1987, p. 456–460.

[18]  Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, 2242 UNTS 309.

[19]  United Nations Convention on international multimodal transport of goods, done at Geneva on 24 May 1980; for text and status see the website of UNCTAD: https://unctad.org/en/Pages/DTL/TTL/Legal/Maritime-Conventions.aspx.

[20]  Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents, OJ 1997 L 285/1.

[21]  See above fn. 17 and, for the previous state of the law, above at fn. 15.

[22]  See Article 47 CMR, above at fn. 6, which confers jurisdiction on the International Court of Justice for the interpretation of that convention.

[23]  Council Decision 2001/539/EC of 5 April 2001 on the conclusion by the European Community of the Convention for the Unification of certain rules for international carriage by air (the Montreal Convention), OJ 2001 L 194/38.

[24]  Council Decision 2013/103/EU of 16 June 2011 on the signing and conclusion of the Agreement between the European Union and the Intergovernmental Organisation for International Carriage by Rail on the accession of the European Union to the Convention concerning international carriage by rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999, OJ 2013 L 51/1; the Agreement is published at p. 8.

[25]  Council Decision 2012/22/EU of 12 December 2011 concerning the accession of the European Union to the Protocol of 2002 to the Athens Convention relating to the carriage of passengers and their luggage by sea, 1974, with the exception of Articles 10 and 11 thereof, OJ 2012 L 8/1.

[26]  See the previous fn. and Council Decision 2012/23/EU of 12 December 2011 concerning the accession of the European Union to the Protocol of 2002 to the Athens Convention relating to the carriage of passengers and their luggage by sea, 1974, as regards Articles 10 and 11 thereof, OJ 2012 L 8/13.

[27]  CJEU 7 February 2006, Opinion 1/03 (Lugano Convention), ECLI:EU:C:2006:81.

[28]  For this method see the detailed study of BISCHOFF, J. A. Die Europäische Gemeinschaft und die Konventionen des einheitlichen Privatrechts. Tübingen, 2010, p. 305 ff.

[29]  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 2008 L 177/6.

[30]  Council Decision (EU) 2015/1878 of 8 October 2015 authorizing the Kingdom of Belgium and the Republic of Poland, respectively, to ratify, and the Republic of Austria to accede to the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterways (CMNI), OJ 2015 L 276/1; it is noteworthy that the decision does not explicitly refer to the “interest of the Union”.

[31]  Directive 2009/20/EC of the European Parliament and of the Council of 23 April 2009 on the insurance of shipowners for maritime claims, OJ 2009 L 131/128.

[32]  See the Agreement between the Union and OTIF, above at fn. 23.

[33]  See with regards to the Montreal Convention CJEU 10 January 2006, case C-344/04 (The Queen, ex parte IATA v. Department of Transportation), ECLI:EU:C:2006:10, para. 36.

[34]  CJEU 19 December 2019, case C-532/18 (GN v. ZU – Niki Luftfahrt), ECLI:EU:C:2019:1127.

[35]  CJEU 17 February 2016, case C-429/14 (Air Baltic v. Lietuvos Respublikos specialiųjų tyrimų tarnyba), ECLI:EU:C:2016:88.

[36]  CJEU 6 May 2010, case C-63/09 (Walz v. Clickair), ECLI:EU:C:2010:251.

[37]  CJEU 22 October 2009, case C-301/08 (Bogiatzi v. Deutscher Luftpool), ECLI:EU:C:2009:649, para. 26 N. 34.

[38]  See above at fn. 30.

[39]  See above at fn. 13.

[40]  See above, fn. 6.

[41]  See above at fn. 36.

[42]  See Article 71(1) of 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 2012 L 351/1.

[43]  CJEU 4 May 2010, case C-533/08 (TNT Express Nederland v. AXA Versicherung), ECLI:EU:C:2010:243, para. 63; CJEU 19 December 2013, case C-452/12 (Nipponkoa Insurance v. Inter-Zuid Transport), ECLI:EU:C:2013:858, para. 30.

[44]  CJEU, TNT Express Nederland, previous fn., para. 51 et seq.; CJEU, Nipponkoa Insurance, previous fn. para. 39 and 49.

[45]  See above at fn. 14.

[46]  Council Decision (2002/762/EC) of 19 September 2002 authorizing the Member States, in the interest of the Community, to sign, ratify or accede to the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (The Bunkers Convention), OJ 2002 L 256/7; the text of the Convention is published as an Annex to this Council Decision.

[47]  United Nations Convention on Contracts for the International Sale of Goods, done at Vienna on 11 April 1980, 1489 UNTS 3.

[48]  See Article 3 of the Hamburg Rules, above at fn. 10; Art. 4 of the Unidroit Convention on International Factoring, done at Ottawa on 28 May 1988, 2323 UNTS 373; Art. 5 of the United Nations Convention on Independent Guarantees and Stand-By Letters of Credit, done at New York on 11 December 1995, 2169 UNTS 163.

[49]  See Article 8(1) COTIF, above at fn. 4; Art. 5 Convention on International Interests in Mobile Equipment, done at Cape Town on 16 November 2001, 2307 UNTS 285, OJ 2009 L 121/8; Art. 23 of the Convention on Choice of Court Agreements, done at The Hague on 30 June 2005, UNTS Registration no. 53483, see the Council Decision (2014/887/EU) of 4 December 2014, OJ 2014 L 353/5.

[50]  Some of these judgments are cited in BASEDOW, J. International Economic Law and Commercial Contracts: Promoting Cross-Border Trade by Uniform Law Conventions. Unif.L.Rev. 23 (2018) 1–14 at 6 et seq.

[51]  Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969, 1155 UNTS 331.

[52]  Opinion of Advocate General Saugmandsgaard Øe of 26 September 2019 in case C-532/18 (GN v. ZU – Niki Luftfahrt), ECLI:EU:C:2019:788, para. 27 and 43 et seq. who explicitly refers to national decisions including a judgment of the US Supreme Court.

Habitual Residence in Child Abduction Cases: The Hybrid Approach Is Now the Norm but How Much Weight Should Be Given to Parental Intention?

Paul Beaumont and Jayne Holliday[1]

1.
Introduction

It is a privilege to write this chapter in recognition of the major contribution made by Monika Pauknerová to private international law. She has been a faithful supporter of the Journal of Private International Law and its biennial global conferences, since the launch of that Journal at the first conference in Aberdeen in March 2005, making her first contribution to the Journal in April 2008.[2] She saw the value of the Journal and of meeting with other academics from all over the world, particularly encouraging the career development of postgraduate students and early career academics. This chapter focuses on the meaning of habitual residence under the Hague Child Abduction Convention 1980 (Abduction Convention). That Convention requires uniform interpretation if it is to be successful. The recent convergence of the world’s leading courts taking a hybrid approach to interpreting habitual residence is encouraging but much remains to be done to agree on how much weight should be given to parental intention(s) in determining the habitual residence of an allegedly abducted child.

2.
Background

A long-time favoured connecting factor at the Hague Conference on Private International Law (HCCH), the habitual residence of the child was chosen as the sole connecting factor within the Abduction Convention.[3] The view held at the time of drafting, that a person’s habitual residence was simply a question of fact and therefore a formal definition was of no practical use,[4] has not proved simple to apply in relation to the habitual residence of a child and is often contentious.[5] The child’s habitual residence for the purpose of the Convention is their habitual residence immediately prior to their wrongful removal or retention.[6] Without the identification of the child’s habitual residence at the time of the allegedly wrongful act it is not possible to work out whether the child’s removal or retention was lawful or not.[7] Children may acquire a new habitual residence in the country they have been abducted to or retained in due to the passing of time or more speedily if their relocation there was lawful at the time they moved there.[8] In other situations a child may be found to have more than one habitual residence or none at all.[9] One question that pushes the concept of habitual residence to its limits will be considered within this chapter; whether a new born child can be habitually resident in a country that the child has never been to, arguing that it makes sense that the new born should normally acquire the habitual residence of the custodial parent(s).

3.
Convergence on the Hybrid Approach to Interpreting “Habitual Residence”

The use of the connecting factor of the child’s habitual residence within the Abduction Convention was originally designed to protect children from harm in cases of wrongful removal or retention by securing the prompt return of children to the State with which they had the strongest connection.[10] The idea being, that the child’s habitual residence immediately prior to the abduction would provide the most appropriate forum for a custody hearing.[11] In order to determine the child’s habitual residence the courts should give the concept of habitual residence an autonomous definition. Three main approaches to interpreting the child’s habitual residence for the purpose of the Abduction Convention have been identified.[12] The first favours the intention of the person or persons exercising parental responsibility to determine the child’s habitual residence.[13] The second approach values the child as an “autonomous individual” and uses the child’s connection with the country to determine the habitual residence.[14] The third and most recent approach, taken as we will see by the CJEU, the UK Supreme Court, the Canadian Supreme Court and the US Supreme Court, is a combined method, which looks at all the circumstances of the case in order to see where the child’s centre of interests are but recognises as one factor in doing so the relevance of the intention of those holding parental responsibility for the purpose of ascertaining where the child is habitually resident.[15]

In Re A the CJEU opined that the parental intention to settle with the child in a new State if manifested by some tangible evidence (like purchasing or leasing a residence there or applying for social housing there) should be seen as a piece of evidence indicative of where the child is habitually resident.[16] That evidence should be weighed by the court alongside all the circumstances of the case to see which residence of the child reflects “some degree of integration in a social and family environment.”[17]

With regards to the aspect concerning family and social relationships, the CJEU considered that the relationships to be considered vary according to the child’s age.[18] If the child is very young and dependent on the custodial parent(s) then the court needs to consider the social and family relationships of the parent(s) with lawful custody in order to determine the habitual residence of the child.[19]

The CJEU’s combined approach has influenced child abduction cases from the UK Supreme Court, the Canadian Supreme Court and the US Supreme Court. In 2020, the US Supreme Court in Monasky v Taglieri,[20] shows the internationalist approach to arriving at the uniform interpretation of “habitual residence” in the Abduction Convention. Ginsburg J (giving the judgment of 8 of the 9 members of the Court) refers to the Perez-Vera report on the Convention to conclude that “habitual residence” necessitates a “fact-sensitive” inquiry. Ginsburg J crucially supports a key proposition by reference to the case law of three leading courts in the world (the CJEU, Canadian Supreme Court and UK Supreme Court):

“What makes a child’s residence ‘habitual’ is therefore ‘some degree of integration by the child in a social and family environment.’ OL v. PQ, 2017 E. C. R. No. C-111/17, ¶42 (Judgment of June 8); accord Office of the Children’s Lawyer v. Balev, [2018] 1 S. C. R. 398, 421, ¶43, 424 D. L. R. (4th) 391, 410, ¶43 (Can.); A v. A, [2014] A. C., ¶54 (2013) (U. K.).”

Ginsburg J went on to pay attention to academic commentary on the meaning of “habitual residence” in the Abduction Convention to conclude that it refers to the child’s “home”:

“The Conference deliberately chose “habitual residence” for its factual character, making it the foundation for the Convention’s return remedy in lieu of formal legal concepts like domicile and nationality. See Anton, The Hague Convention on International Child Abduction, 30 Int’l & Comp. L. Q. 537, 544 (1981) (history of the Convention authored by the drafting commission’s chairman). That choice is instructive. The signatory nations sought to afford courts charged with determining a child’s habitual residence “maximum flexibility” to respond to the particular circumstances of each case. P. Beaumont & P. McEleavy, The Hague Convention on International Child Abduction 89–90 (1999) (Beaumont & McEleavy). The aim: to ensure that custody is adjudicated in what is presumptively the most appropriate forum—the country where the child is at home.”

The US Supreme Court’s use of the child’s “home” to identify their habitual residence has much to commend it even in the difficult cases where the child has a residence in more than one country.

Beaumont and McEleavy say:

“The ability of habitual residence to identify the most appropriate forum in any given case has traditionally emanated from its largely factual emphasis… it is now accepted that a court may have regard to the intentions of the person concerned. In so doing, it will look for hard evidence that the individual intends to remain, while not indefinitely, for a certain period in the jurisdiction in question.”[21]

Ginsburg J in Monasky wisely opined that:

“Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations.”

4.
Weight to be Given to Parental Intention in a Hybrid/Combined Approach to Determining Habitual Residence

Of course, the problematic issue in determining the habitual residence of a child is how much weight should be given to the intention(s) of those having custody rights in relation to the child?

No attempt will be made in this short chapter to answer this question comprehensively but there are two scenarios where the answer seems clear. When we are dealing with a young child it is widely accepted that the intention of the custodial parent is the key, see Mercredi[22] and subsequent cases like Monasky above. One other idea that has gained the consensus of the HCCH’s Experts’ Group on Family Agreements is that where both of the custodial parents have recently reached a formal agreement on the custody of the child their decision as to where the child should be habitually resident should be determinative at least where the child is present there:

“given that a child does not have any autonomy in determining where he or she lives (and therefore the adult or adults looking after the child at a given time are in fact determining where the child is living) it is important for courts in 1980 Hague Convention cases to give as much effect as possible to the recently established shared wishes of the parents at least where the child is present at the relevant date in the jurisdiction which according to the parents’ agreement is and should remain the child’s habitual residence. In a hybrid approach particular weight should be given to shared parental intention to encourage parents to agree about where their child should live and to avoid one parent being able to effectively unilaterally determine the habitual residence of the child in violation of that parent’s recent agreement with the other parent.”[23]

It is also worth remembering that a key part of the uniform interpretation of the Abduction Convention is to give effect to the requirement in Article 11 that judicial authorities “shall act expeditiously in proceedings for the return of children.” In Monasky Ginsburg J gives the US Supreme Court’s support to the idea that the Abduction Convention proceedings can achieve the requirement to be “expeditious”, when determining where the child is habitually resident, by:

“providing courts with leeway to make “a quick impression gained on a panoramic view of the evidence.” Beaumont & McEleavy 103 (internal quotation marks omitted).”

It is worth noting that Beaumont and McEleavy go on to say immediately after this quote that:

“To engage in a prolonged assessment of the material facts would be to defeat one of the primary objectives of the Convention. However, given that the assessment of intention might be of significant importance in the determination of whether or not a habitual residence exists, a superficial investigation cannot be regarded as sufficient.”[24]

In the past, a UK court held that a new born child took the habitual residence of the parent with parental responsibility with immediate effect, even though the child had never been to that country,[25] because there had been coercion of the mother. The mother was habitually resident in England, and was made to remain in Bangladesh under duress, where she gave birth to the child.[26] However, in the later case of In the Matter of A Children, four out of the five UK Supreme Court judges avoided determining the habitual residence of a new born but made significant obiter remarks on the point.[27] The critical factor in determining whether the child in this case would be found to be habitually resident within the UK focused on the issue of presence. The question that was considered by the court was which approach supported the view that habitual residence was a question of fact.[28] Was it an approach that called for “(…) presence [as] a necessary pre-cursor to residence and thus to habitual residence or an approach which focuses on the relationship between the parent and the child?”[29] The Supreme Court supporting the first option, trying to follow the case law of the CJEU, argued that a child that had never been brought to a country by their parent(s) and was not socially integrated in that country could not, based on the facts, be habitually resident there, making presence, at some point in a country, an essential element of habitual residence.[30]

Yet a child’s habitual residence, especially the habitual residence of a new born, is not best perceived as simply a question of fact but rather as a mixed question of fact and law. A very young child has no control over where he or she is living and by his or her very nature is a “dependent”. In an Abduction Convention case the question as to who has legal custody is a legal question but the issue of who has legal custody of the child depends upon the law of the habitual residence of the child, creating a potential “circularity of logic”.[31] Determining which parent’s habitual residence will be given the most weight in determining the child’s habitual residence can affect the outcome as to who has legal custody of the child and whether a removal or retention will be considered unlawful.[32] The only way this cycle can be broken is by the courts making what amounts to an arbitrary decision as to whose habitual residence they give the most weight. It is a poor solution to focus on where the child happens to be present because that simply plays into the hands of the parent or other person who has “possession” of the child at the relevant time.

Lord Hughes in his dissenting opinion found that the child was habitually resident in England. Agreeing that habitual residence was a question of fact,[33] he put forward the view that the presence of the new born infant in a country was not a necessary factor for habitual residence when coercion towards the mother had prevented her from returning to her habitual residence. He also put forward the view that if the court were to correctly follow Mercredi then the integration into the family unit was an important factor when considering the habitual residence of the child and the natural conclusion would be that the habitual residence of the siblings and the mother should be taken into consideration when determining the habitual residence of the infant.[34]

In OL v PQ in 2017 the Fifth Chamber of the CJEU ruled as follows in a case where a new born baby was kept by the mother in Greece, even though prior to the birth of the child she had agreed that she would return some time after the birth of the child to the family home in Italy where she and the father had been habitually resident before the birth of the child:

“where a child has been born and has lived continuously with her mother for several months, in accordance with the joint wishes of her parents, in a Member State other than that where those parents were habitually resident before her birth, the initial intention of the parents with respect to the return of the mother, together with the child, to the latter Member State cannot allow the conclusion that that child was “habitually resident” there”.[35]

This decision may be defensible on the facts,[36] given that the parents had not formally addressed the question of the habitual residence of their child and in this case the father’s consent for the mother to go to Greece was not just for the birth of the child but for some time thereafter. Had the agreement between the parents been formalised in a way that made it clear that they intended their child to be habitually resident in Italy from the date of his or her birth, and that the mother’s trip to Greece to have the child was only temporary and would not create the habitual residence of the child in Greece, then one would hope that the courts would decide that for a new born child the joint formally agreed will of its parents as to where the child should have its “home” after its birth should constitute its habitual residence even though the child was never present in that country (except while in the womb). Of course, it seems highly unlikely that many couples would enter into such a formal agreement when expecting the birth of their child. In order to protect the child’s relationship with both parents and the putative custody rights of both parents, at least in cases where the parents are married or in a civil partnership, it should be presumed that the child’s habitual residence at birth is at the place of the family home—no matter where the mother gives birth to the child—unless the parents have agreed otherwise or a substantial period of time has elapsed since the birth and the child has not been taken back to the country of the marital home and no return application under the 1980 Convention has been lodged by the left-behind parent. Such a presumption would need to be created as part of a mixed question of fact and law and should ideally be endorsed by an HCCH Special Commission on the Abduction Convention.

Such “quasi-legislative” intervention seems necessary, at least for the EU, because the CJEU has elevated the requirement of the “presence” of the child in the jurisdiction as being a precondition of the child being habitually resident there in all cases. In UD v XB the First Chamber of the CJEU ruled that:

“a child must have been physically present in a Member State in order to be regarded as habitually resident in that Member State… Circumstances such as those in the main proceedings, assuming that they are proven, that is to say, first, the fact that the father’s coercion of the mother had the effect of her giving birth to their child in a third country where she has resided with that child ever since, and, secondly, the breach of the mother’s or the child’s rights, do not have any bearing in that regard.”[37]

This kind of absolutism by the CJEU is not helpful. It is a product of “elevating” the “factual” nature of “habitual residence” into the highest norm even if that is at the expense of human rights of a parent coerced into being present in a jurisdiction they don’t want to be in (or presumably at the expense of ignoring the freewill of parents who agree that a child should be habitually resident in their home State rather than the State where the child is present temporarily in order to be born). It is important to note that this was not an Abduction Convention case and it is our contention that it should not be followed by courts in that context.

In a very recent and very welcome decision of the CJEU, the President, Koen Lenaerts, took the unusual step of sitting in a Chamber judgment as a judge and the Chamber gave an excellent internationalist judgment. It does not allow the former habitual residence in an EU State to continue to exercise jurisdiction under Article 10 of the Brussels IIa Regulation when the child has been abducted to a third State. The Chamber carefully interpreted the Hague Child Abduction Convention to acknowledge that habitual residence can transfer to the country where the child has been abducted to when that court refuses to make a return order within the terms of that Convention:

“Further, the interpretation of Article 10 of Regulation No 2201/2003 in such a way as to result in retention of jurisdiction for an unlimited period would also disregard the logic of the mechanism of prompt return or non-return established by the 1980 Hague Convention. If, in accordance with Article 16 of that convention, it is established that the conditions laid down by that convention for return of the child are not satisfied, or if an application under that convention has not been made within a reasonable time, the authorities of the State to which the child has been removed or in which the child has been retained become the authorities of the State of habitual residence of the child, and should, as the courts that are geographically closest to that place of habitual residence, have the power to exercise their jurisdiction in matters of parental responsibility. That convention remains applicable, in particular, in relations between the Member States and the other contracting parties to that convention, in accordance with Article 60(e) of that regulation.”[38]

5.
Conclusion

In Mercredi the CJEU reached a careful balance where parental intent of a child’s custodial parent(s) is particularly significant in determining the habitual residence of young children. If enough weight is given to parental intention of the custodial parent(s) of a new born child then physical presence should not be required to establish habitual residence. The CJEU has wedded itself to an absolute requirement of “presence” of the child in a country before that child can be habitually resident there. The courts in the rest of the world do not need to follow this approach, at least in relation to new born children and where all the holders of custody are agreed about where their child should have their home (their habitual residence). The next HCCH Special Review Commission on the Abduction Convention could recommend the appointment of an Experts’ Group comprising a mixture of judges, lawyers and academics to prepare a Good Practice Guide on the Meaning of Habitual Residence under the Abduction Convention.

[1]  Paul Beaumont, University of Stirling and co-editor of the Journal of Private International Law. Jayne Holliday, University of Stirling. Some of the material in this short chapter is derived from: BEAUMONT, P., HOLLIDAY, J. Recent developments on the meaning of “habitual residence” in alleged child abduction cases. Centre for Private International Law, University of Aberdeen, Working Paper Series 2015/3. http://www.abdn.ac.uk/law/documents/Recent_Developments_on_the_Meaning_of_Habitual_Residence_in_Alleged_Child_Abduction_Cases_.pdf and in ŽUPAN, M. (ed./ur.) Private International Law in the Jurisprudence of European Courts—Family at Focus / Međunarodno privatno pravo u praksi europskih sudova – obitelj u fokusu. Osijek: University of Osijek, 2015, p. 37–56; and BEAUMONT, P. Uniform Interpretation of Habitual Residence in the Hague Child Abduction Convention—US Supreme Court helped by Beaumont and McEleavy. Available at https://privateinternationallaw.stir.ac.uk/news/ (cit 2021-04-13).

[2]  PAUKNEROVÁ, M. Private International Law in the Czech Republic: Tradition, New Experience and Prohibition of Discrimination on Grounds of Nationality. Journal of Private International Law. 2008, No 1, p. 83–105.

[3]  BEAUMONT, P., MCELEAVY, P. The Hague Convention on International Child Abduction. Oxford: OUP, 1999, p. 88, 90.

[4]  See the PÉREZ-VERA, E. Explanatory Report to the Convention at para. 66, available at https://www.hcch.net/en/publications-and-studies/details4/?pid=2779 (cit. 2021-04-13), saying that the HCCH regards “habitual residence” as “a question of pure fact”.

[5]  “habitual residence is one of the most litigated issues under the Convention” SCHUZ, R. The Hague Child Abduction Convention. Oxford: Hart, 2013, p. 175.

[6]  Art. 4 of the Convention.

[7]  KRUGER, T. International Child Abduction; The Inadequacies of the Law. Oxford: Hart, 2011, p. 21.

[8]  BEAUMONT, P., MCELEAVY, P. The Hague Convention on International Child Abduction. Oxford: OUP, 1999, p. 106. Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562. A new born acquired habitual residence after only two days in Re J.S. (Private International Adoption) [2000] 2 FLR 638.

[9]  BEAUMONT, P., MCELEAVY, P. The Hague Convention on International Child Abduction. Oxford: OUP, 1999, p. 90, 91 and 110. Twins born to a surrogate mother were found to have no habitual residence for the purpose of the Abduction Convention W. and B. v. H. (Child Abduction: Surrogacy) [2002] 1 FLR 1008. In CL v AL [2017] EWHC 2154 (Fam) [27] Mr Justice Keehan said “It is unlikely and unusual that a child will be found to have lost habitual residence in one country but not yet acquired habitual residence in another country: unlikely but not impossible.”

[10]  Abduction Convention’s preamble. There are 101 Contracting States to this Convention, see http://www.hcch.net/index_en.php?act=conventions.text&cid=24 (cit. 2021-04-13).

[11]  BEAUMONT, P., MCELEAVY, P. The Hague Convention on International Child Abduction. Oxford: OUP, 1999, p. 90 and the PÉREZ-VERA Explanatory Report to the Convention, para 66.

[12]  SCHUZ, R. The Hague Child Abduction Convention. Oxford: Hart, 2013, Chapter 8.

[13]  Ibidem p. 186.

[14]  Ibidem p. 189.

[15]  Ibidem p. 192.

[16]  Case C-523/07 Re A [2009] ECR I-02805 [40].

[17]  Ibidem [38].

[18]  Case C-497/10 PPU Barbara Mercredi v Richard Chaffe [2010] ECR 1-4309 [53].

[19]  Ibidem [55].

[20]  140 S. Ct. 719.

[21]  BEAUMONT, P., MCELEAVY, P. The Hague Convention on International Child Abduction. Oxford: OUP, 1999, p. 90.

[22]  [2010] ECR 1-4309.

[23]  See Revised draft Practical Guide: Cross-border recognition and enforcement of agreements reached in the course of family matters involving children, Preliminary Document No 4 of January 2019, available at https://assets.hcch.net/docs/97681b48-86bb-4af4-9ced-a42f58380f82.pdf at Explanatory Note, 27 (cit. 2021-04-13).

[24]  BEAUMONT, P., MCELEAVY, P. The Hague Convention on International Child Abduction. Oxford: OUP, 1999, p. 103.

[25]  B v H (Habitual Residence; Wardship) [2002] 1 FLR 388; FIORINI, A. Habitual Residence and the Newborn—A French Perspective. International and Comparative Law Quarterly. 2012, No 3, p. 530–540.

[26]  B v H (Habitual Residence; Wardship) [2002] 1 FLR 388.

[27]  In In the matter of A (Children) [2013] UKSC 60, Lady Hale, Lords Wilson, Reed and Toulson all questioned the necessary connection for the habitual residence of the new born child in this situation.

[28]  Ibidem [55].

[29]  Ibidem.

[30]  Ibidem.

[31]  BEAUMONT, P., MCELEAVY, P. The Hague Convention on International Child Abduction. Oxford: OUP, 1999, p. 46.

[32]  An example of this would be where an unmarried couple, an English mother and Italian father, leave their two-week-old baby in England with its maternal grandparents while they are temporarily residing in Italy deciding where to live as a family. It can be argued that the child is too young to have gained a habitual residence of its own in England and that the intentions of the parents have yet to determine a habitual residence. The mother then takes the child to Sweden without the father’s consent. If the mother’s habitual residence of England is applied to the child then under English law the mother would have sole legal custody and the removal would be lawful. If the father’s habitual residence is applied then under Italian law he would have joint custody and the removal would be unlawful.

[33]  In the matter of A (Children) [2013] UKSC 60 [72]-[73]. But later he said that “the concept of habitual residence is necessarily to some extent a legal one” [92].

[34]  Ibidem [88][90][91].

[35]  Case C-111/17 PPU OL v PQ [70].

[36]  The father consented to the mother leaving Italy to go to Greece when she was 8 months pregnant and to not returning to the marital home in Italy until the baby was 3 months old. The mother asserted that he had consented to her staying with the child in Greece for several more months, see ibidem [16]-[18].

[37]  Case C-393/18 PPU UD v XB [70].

[38]  Case C‑603/20 PPU SS v MCP [61].

Conflicting Interpretations of International Treaties

Alexander J. Bělohlávek[1]

1.
Introduction to Theory

Bilateral and multilateral international treaties are the most frequently employed instruments used to create a stable system and to establish mutual cooperation in the international community. An [international] treaty is defined in the Vienna Convention on the Law of Treaties (the “Vienna Convention”) as “… an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”.[2] In view of the fact that an international treaty always represents the consensus of two or more equal parties resulting from negotiations, contrary to, inter alia, statutes in national legal systems (laws of national origin), the text of the treaty embodies the outcome of such negotiations and reflects the mutual compromises. This, however, often introduces a varying degree of vagueness into the wording of the international treaty. That in turn results in ambiguities and differing views on the interpretation thereof.[3] It comes as no surprise that States endeavour to prevent such complications. This article thus strives to describe the potential means of avoiding future disputes regarding the interpretation of treaties, and to present examples illustrating the fact that the unclear codification of interpretation rules may result in divergent interpretations in the international community.

1.1
Available Means of Avoiding Future Interpretation Problems

The States may employ three basic methods of avoiding future problems with the interpretation of international treaties. First, some international treaties attempt to prevent ambiguous interpretation by establishing a special tribunal with jurisdiction to hear and resolve any potential future disputes arising from the treaty, whether by authoritative decisions resolving individual disputes, or in the form of interpretative notices.[4] This procedure aims to make sure that the interpretation provided by the sole authority will be consistent and uniform, thus enhancing legal certainty in practice. Consequently, should the treaty contain unclear provisions whose specific meaning is not readily discernible by the parties due to defects, such as an imperfect wording, the case would be submitted to a specialised authority that would resolve the dispute over interpretation. In view of the fact that the respective international treaty provides in such a case for a single tribunal, it can be reasonably assumed that the tribunal will make consistent conclusions, and its case law will eliminate any future ambiguities as to the interpretation of the treaty. The ambiguous original wording of the treaty is thereby reconciled, and despite the fact that a potential dispute over correct interpretation always only involves two contracting parties, the situation is cleared up for the other signatories as well.

The second alternative for limiting, if not entirely avoiding, inconclusive interpretation is to lay down special interpretation rules in the international treaty itself that will govern the interpretation of the particular international treaty.[5] This means that the problem itself will be notionally resolved in advance, without the need to await the assessment and resolution of any future dispute by a forum with jurisdiction to hear such specific disputes; a framework for interpretation binding on the forum will already be embodied in the contents of the international treaty.[6] Such an international treaty will better comply with the parties’ original intent, because the parties themselves will have the possibility to influence its future interpretation. However, it follows from the general nature of law as such that, although this method may significantly facilitate the interpretation of the international treaty, it is never possible to “capture” any and all terms used in the treaty to entirely eliminate the possibility of a dispute.

Failure to employ either of the above methods may result in an unpredictable and questionable interpretation of the international treaty. Indeed, disputes arising from such treaties in practice are in such case submitted to ad hoc tribunals, or even national courts of the signatory states, and—obviously—any unification of interpretation in such cases is generally more complicated. Unwilling to permit completely different interpretations of one and the same treaty, the international community has decided to conclude the Vienna Convention (see also the words used in the title itself of this international treaty—“the treaty on treaties”).[7] The Vienna Convention should provide a comprehensive definition of, or at least a framework for, the interpretation of international treaties. However, the Vienna Convention itself employs many unclear provisions and opinions, the proper interpretation of which varies considerably in practice. It ultimately becomes necessary to interpret the interpretation manual itself, which results in diverging interpretations that in practice conflict with one another. When combined, these problems often result in the parties being unable to agree on the proper interpretation, and the situation then escalates into a dispute. This summarising article strives to focus precisely on those situations in which the ambiguity of the treaty results in the development of two inconsistent interpretations of the same provisions.

2.
Issue as Reflected in Case Law

2.1
Vienna Convention on Law of Treaties Gives Rise to Interpretation Ambiguities in Practice

As mentioned above, despite being the instrument intended to overcome interpretation problems, the Vienna Convention itself has given rise to disputes over interpretation. Articles 31 and 32, dealing with the interpretation of international treaties, belong among the most ambiguous provisions. Indeed, the international community has not reached any general consensus as to whether the said provisions set out a hierarchy of interpretation methods, i.e. whether such methods ought to be used in the order provided in the Vienna Convention whenever interpretation is required, or whether it is “only” a simple overview of the interpretation methods, free of any emphasis on any potential priorities, in consequence of which the choice of the particular procedure depends only on the person or authority performing the interpretation of the international treaty.[8] In practice, the parties to a dispute then attempt to provide the court or tribunal, not always successfully, with an interpretation according to the respective provisions of the Vienna Convention.

2.1.1
Application of Vienna Convention to Nicaragua v. Colombia Dispute

The dispute between Nicaragua and Colombia submitted to the International Court of Justice (ICJ) is just one example of a State’s futile attempts to employ the provisions on interpretation incorporated in the Vienna Convention.[9], [10] The ICJ was called upon to rule on a party’s objections that, based on the interpretation and the procedure applied under the Vienna Convention, the ICJ lacks jurisdiction to hear and resolve the dispute under the American Treaty on Pacific Settlement (“Pact of Bogotá”)[11] because the proceedings were instituted only after Colombia’s notice of denunciation of this international treaty. Hence, the primary issue in the case was the resolution of the contested interpretation of the second paragraph of Article LVI of the Pact of Bogotá,[12] because its contents do not clearly indicate whether the ICJ’s jurisdiction to hear and resolve disputes arising from this treaty covers disputes that arise after a notice of denunciation by a signatory State, but before the end of the one-year notice period under the first paragraph of Article LVI of the Pact of Bogotá. The parties to the dispute presented contradictory interpretations of this issue. Colombia argued, inter alia, that it was necessary to employ the interpretation under Articles 31 to 33 of the Vienna Convention, despite the fact that the parties were not signatories to the Vienna Convention, because the rules incorporated therein represent a codification of customary law. Hence, Article 31 of the Vienna Convention stipulates that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. Colombia argued that upon proper interpretation, determined by the application of that procedure, the proceedings necessarily had to be influenced by the signatory State’s notice of denunciation of the treaty, and moreover, if the signatory States had intended, when discussing the text of the treaty, to extend jurisdiction to disputes arising at that time, i.e. after the notice of denunciation by a signatory State, but before the lapse of the notice period, they would have explicitly incorporated that intention in the treaty. In support of its reasoning, Colombia also invoked Article 32 of the Vienna Convention when it presented its pleading, with a detailed analysis of the travaux préparatoires, and argued that its opinion was the correct one, because a contrary interpretation would deprive the second paragraph of the said provision of its effet utile.[13]

Conversely, Nicaragua argued that the ICJ had jurisdiction under Article XXXI of the Pact of Bogotá, because the Pact explicitly provides for jurisdiction “… as the present Treaty is in force…”. Nicaragua also maintained that the absence of any such rule in the text of the treaty could not justify the alleged lack of the ICJ’s jurisdiction; conversely, it was necessary to apply an interpretation in accordance with the overall meaning of the treaty and the contents of other provisions that allowed for no conclusion other than that the ICJ had jurisdiction in the case. As concerns the procedure to be followed in using the interpretation methods, both parties thus eventually arrived at completely opposite conclusions due to the text itself of the treaty that had left room for argument in respect of the said issue. Consequently, the dispute had to be resolved by the tribunal, which ultimately dismissed Colombia’s objection and confirmed its jurisdiction. The tribunal provided a detailed rejection of Colombia’s arguments, and inferred its jurisdiction primarily from the interpretation of the object and purpose of the treaty; the ICJ argued that, when properly interpreted, Article XXXI of the Pact of Bogotá (which determines the ICJ as the competent forum) remained applicable, because not even a notice of denunciation, i.e. a unilateral juridical act, could affect the applicability of a provision in a multilateral international treaty.[14]

The case serves as an illustration of the potential consequences that such different approaches to the interpretation rules in the Vienna Convention may have in practice.[15] At the same time, however, the case shows the connection between multiple interpretations and the determination of the forum of competent jurisdiction directly in the text of the treaty. The author of this article has already mentioned above that the determination of the competent forum may serve as a method of avoiding future problems with the interpretation of the international treaty. But the model example annotated above indicates that even this solution cannot entirely eliminate any and all future disputes, as such, because it is by no means uncommon for the parties to an international treaty to frequently challenge the jurisdiction of the agreed forum. The undeniable advantage of this solution is, though, that once the jurisdiction of the agreed forum is confirmed, the forum provides a clear interpretation, which should not change in the future. In the Pact of Bogotá case, the agreement on the forum reconciled the textual deficiencies, in that the tribunal (ICJ) provided an interpretation to the signatories of the treaty, applicable to future disputes, that a notice of denunciation of such a treaty does not eliminate the jurisdiction of the tribunal to hear and resolve disputes arising from the treaty that are submitted to the tribunal against the party that gave notice of denunciation before the end of the notice period, despite the effective notification of the denunciation.

2.2
Conflicting Interpretations in National Courts of Signatory States

The issue of conflicting interpretations arising from imperfect wording of an international treaty may also be illustrated by the dispute over the interpretation of Article 17 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (the “Warsaw Convention”).[16] This case specifically concerned the contents of the term “accident” in the said provision. The Warsaw Convention itself provides no legal definition of the term. This was the reason why a dispute was submitted to the High Court of Australia,[17] in which the claimant argued that the airlines were liable for the claimant’s deep vein thrombosis sustained during carriage, because Article 17 of the Warsaw Convention stipulates that the “carrier is liable for damage[18] sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident that caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking”. According to the claimant’s interpretation of this provision, an “accident” under the said Article also covered situations in which the ailment results from certain aircraft cabin conditions, such as the confined physical environment, combined with the airlines’ offering of particular beverages during flights, and their failure to warn passengers about deep vein thrombosis. The respondent rejected this interpretation of the term and argued that it had no liability for the claimant’s condition, because no event classifiable as an accident in terms of the said provision of the Warsaw Convention had occurred during the flight. The Court was ultimately called upon to provide an interpretation of the contested Article, specifically the term “accident”, and to resolve the dispute. The Court held that the claimant’s claim had to be dismissed, because it could not be inferred that the said term should include such situations as described by the claimant. The interesting aspect of the case for the purposes of this article is, however, that one of the judges of the Australian court presented a dissenting opinion and argued, conversely, that the confined physical environment during the flight, combined with the not entirely appropriate offering of alcoholic beverages and coffee, could indeed cause the “accident”.[19] Consequently, this case is also a fitting example of the fact that the inapt wording of an international treaty (with no legal definition of one of the terms) gave rise to contrary interpretations advocated by the parties to the dispute, as well as a differing perception of the key term by the judges themselves; indeed, the existence of the dissenting opinion suggests that the dispute could, in theory, have had an outcome different from the actual outcome that prevailed on the basis of the majority opinion.

2.3
Inconsistent Interpretation of International Treaties in Decisions of Courts and Tribunals

The above cases described situations in which various ambiguities in international treaties resulted in different interpretations of the individual provisions, as perceived by the parties, and the dispute ultimately escalated to legal proceedings. However, both model situations are of the same type, in that the decision of the forum explained and defined the issue for the future, eliminating any potential future disputes from the same grounds. But a conflict of differing interpretations of international treaties is not limited to situations in which the diverging interpretations are presented by the parties. Indeed, sometimes the conflict of interpretations of an identical provision of an international treaty, or even of comparable factual and legal situations, occurs among the courts or tribunals themselves. Model examples of this situation are two decisions of tribunals in investment disputes;[20] both concern the interpretation of the same issue arising from a bilateral investment treaty entered into by the United Kingdom and Argentina[21] (the “UK-Arg BIT”). Both disputes were submitted to tribunals on the basis of Article 8(4) of the UK-Arg BIT,[22] but the composition of the tribunals was different in each case. The problem consisted in the interpretation of Article 2(2) of the UK-Arg BIT.[23]

The investment protection system agreed by the parties was logically set at the same qualitative level in the treaty. In both of these cases, however, Argentina passed emergency national legislation after the treaty had entered into force, and the claimants argued that the former was capable of jeopardising the level of protection provided by the latter (UK-Arg BIT).[24] The claimants thus argued that the Government of Argentina had undermined or negated, as applicable, the guarantee of a particular level of protection of investments that the international treaty was presumed to provide.[25] But when the competent tribunals embarked on the interpretation of the relevant provisions in order to determine the level of protection of investments among the states, they arrived at diametrically opposed conclusions.

The tribunal in the first case held that the claim submitted by the claimant (investor) had to be dismissed, because, according to the tribunal’s interpretation, it was unreasonable to depart from the originally perceived standard of “protection and constant security” for the benefit of “full protection and security”, the latter being associated with situations in which the investor’s “physical security” or investment are jeopardised.[26] The tribunal thus concluded that the treaty had not been breached, because Argentina had not breached the agreed level of protection of the investments. Indeed, according to the tribunal, only “physical security” could be subsumed under such protection.[27]

The tribunal in the second case, however, provided an interpretation of the identical provision of the UK-Arg BIT, only to grant the investor’s claim. The tribunal held that there was no reason to justify as acceptable Argentina’s national legislation diminishing the level of protection in that area. Hence, the tribunal arrived at an opinion conflicting with the opinion of the tribunal in the first case based on the fact that the tribunal in the second case provided an interpretation of the relevant BIT, according to which there was no reason to limit the protection to “physical assets”, whereas the tribunal in the first case deemed the protection limited to “physical security”. Consequently, the investor was the successful party in the second case due to a contrary interpretation of an identical provision of a treaty in a situation that was essentially identical (or at least comparable) to the situation in the first case.

This example illustrates the practical difficulties arising from the fact that the interpretations provided by qualified courts or tribunals need not necessarily mean any degree of certainty as to which interpretation of the provisions of one and the same international treaty will prevail in future. From the perspective of legal certainty, such conflicts of interpretations significantly reduce the level of predictability for the beneficiaries. Compared to the previous examples, conflicts of interpretations among courts or tribunals are thus highly undesirable and should be avoided in practice at all costs. Indeed, it is generally unacceptable to allow any provision of an international treaty to be susceptible to their being two (or even more) mutually exclusive or contradictory meanings for the tribunal to choose from and apply, depending on which interpretation the tribunal finds more “appropriate”.[28] Although such differing interpretations may be based on logical reasons in individual cases, it is imperative, as a matter of principle, to prevent such divergent, or even contradictory interpretations in practice.

3.
Conclusion

The international legal practice has repeatedly witnessed situations in which the inadequate wording of international treaties resulted in conflicting interpretations provided by various subjects, whether by the beneficiaries themselves (parties to the international treaty), or even by the fora called upon to provide an authoritative interpretation and resolve disputes arising from international treaties. This phenomenon may in certain situations be more serious than in others. If the conflict of interpretations occurs between the parties themselves and escalates to a dispute, there is a tribunal that will rule on the issue of correct interpretation and, ideally, provide greater certainty as concerns the interpretation of the international treaty; conversely, there are also situations in which the conflict of interpretations occurs in the tribunals’ decisions. The difference between these two situations inheres in the fact that, although there may generally exist possibilities of avoiding disputes from international treaties, it is never possible to entirely eliminate such disputes. But on the other hand, as concerns ad hoc permanent court institutions or tribunals, it is necessary to ensure that such situations do not occur at all, or only very exceptionally, because otherwise the situation contributes to a significant impairment of legal certainty, with negative impacts on the signatories of international treaties and the entire international community.

[1]  Department of Law, Faculty of Economics, VSB Technical University in Ostrava, Department of International Law, Faculty of Law, West Bohemia University in Pilsen, and at the Faculty of Law and Public Administration, University Collegium Humanum in Warsaw. He has served as president of arbitral tribunals, co-arbitrator or sole arbitrator in more than 500 cases.

[2]  See Article 2(1)(a) of the Vienna Convention (No. 15/1988 Coll.). For different definitions, cf. also BORGEN, Ch. J. Resolving Treaty Conflicts, St. John’s Law Scholarship Repository, 2005, p. 579, or ŠTURMA, P. Mezinárodní smlouva [title in translation—International Treaty]. In HENDRYCH, D., BĚLINA, M., FIALA, J., ŠÁMAL, P., ŠTURMA, P., ŠTENGLOVÁ, I., KARFÍKOVÁ, M. Právnický slovník [title in translation—Dictionary of Law]. 3rd ed. Prague: Nakladatelství C. H. Beck, 2009.

[3]  Similarly, there is no clear definition of the concept itself of the interpretation of international treaties. See also POTOČNÝ, O. Mezinárodní právo veřejné. Zvláštní část. [title in translation—Public International Law. Special Part] 6th ed. Prague: C. H. Beck, 2011, p. 244., or JANKUV, J., LANTAJOVÁ, D. et al. Medzinárodné zmluvné právo a jeho interakcia s právnym poriadkom Slovenskej republiky [title in translation—Law of International Treaties and Its Interaction with the Law of the Slovak Republic], Aleš Čeněk, 2011, p. 82.

[4]  See also Article 66 of the Vienna Convention or Article 19 of the European Convention for the Protection of Human Rights (No. 209/1992 Coll.).

[5]  See also Article 7 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) (No. 160/1991), Article 18 of the Convention on the Law Applicable to Contractual Obligations (Rome Convention), or Article 4 of the UNIDROIT Convention on International Factoring.

[6]  One may similarly employ legal definitions that precisely stipulate how a particular concept in an international treaty is to be construed. This approach will prevent any differences in interpretation depending on the general perception of the term under the relevant law of the signatory States; see also Article 1 of the Convention on the Rights of the Child.

[7]  See also AUST, A. Modern Treaty Law and Practice. Cambridge: Cambridge University Press, 2007, p. 6.

[8]  The International Law Commission has also presented its opinion and strictly rejected any hierarchy in the said provisions, arguing that the wording is intentionally drafted in such manner as to clearly indicate that the entire interpretation under these provisions constitutes a whole. See Draft Articles on the Law of Treaties with commentaries, Yearbook of the International Law Commission, 1966, vol. II, pp. 219–220. Cf. also ŠTURMA, P., TRÁVNÍČKOVÁ, Z. (eds.) Výklad a aplikace mezinárodních smluv v průběhu času [title in translation—History of Interpretation and Application of International Treaties], Česká společnost pro mezinárodní právo, 2014, p. 27, or ICJ Judgment in Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) of 2 February 2017.

[9]  It is to be noted, though, that the unsuccessful application of a provision of the Vienna Convention for the purposes of interpretation does not mean a lack of success in terms of the applicability of the Vienna Convention, but the unsuccessful application of the articles of the Convention as such. Although the State parties to the dispute are not generally signatories of the Vienna Convention, the application of the Vienna Convention is permitted with reference to the special nature of this instrument; the generally accepted opinion is that the text of this Convention represents a codification of the customary rules of international law, thus extending its applicability to countries other than the signatory States. Regarding this issue, see also LO, Ch. Treaty Interpretation Under the Vienna Convention on the Law of Treaties, Springer Nature Singapore Pte Ltd., 2017, p. 10 or AUST, A., Vienna Convention on the Law of Treaties [online]. Max Planck Encyclopedia of Public International Law, Oxford Public International Law. 11 October 2017. Available at: https://spacelaw.univie.ac.at/fileadmin/user_upload/p_spacelaw/EPIL_Vienna_Convention_on_the_Law_of_Treaties_1969.pdf [cit. 2020-12-03], p. 3.

[10]  ICJ Judgment of 17 March 2016, Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, I.C.J. Reports 2016, p. 100.

[11]  See: https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280162ab6 [cit. 2020-12-05].

[12]  See Article LVI of the Pact of Bogotá (cit.): “The denunciation shall have no effect with respect to pending procedures initiated prior to the transmission of the particular notification.”

[13]  Apart from these main considerations, Colombia also suggested other arguments, such as argumentum a contrario with respect to the interpretation of the said provision, on the basis of the other signatory States’ failure to act when Colombia lodged the notice of denunciation, etc.

[14]  Concerning this argument, see also ICJ Judgment of 20 December 1988, Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, I.C.J. Reports, 1988, p. 84.

[15]  But cf. Declaration of Judge Ad Hoc Brower concerning the said decision, who provides a more detailed explanation of the concepts of effet utile, travaux préparatoires in his opinion, together with a proper interpretation of the contested provision.

[16]  This Convention was promulgated in the Czech Republic under No. 15/1935 Coll.; the Additional Protocol to the Convention was then promulgated as Decree No. 15/1966 Coll., Decree of the Minister of Foreign Affairs on the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed in Warsaw on 12 October 1929.

[17]  Specifically, the High Court of Australia, Povey v. Qantas Airways and British Airways, [2005], HCA 33, 23 June 2005.

[18]  In compliance with the current terminology of Czech law, “damage” should be construed as harm.

[19]  For more details, see: https://archive.onlinedmc.co.uk/povey_v__qantas_airways.htm [cit. 2020-12-01].

[20]  BG Group Plc. v. The Republic of Argentina, UNCITRAL Arbitration, Final Award, 24 December 2007, available at: https://www.italaw.com/sites/default/files/case-documents/ita0081.pdf [cit. 2020-12-03], and National Grid plc v. The Argentine Republic, UNCITRAL Arbitration, Award, 3 November 2008, available at: https://www.italaw.com/sites/default/files/case-documents/ita0555.pdf [cit. 2020-12-03].

[21]  The Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Argentina for the Promotion and Protection of Investments.

[22]  See Article 8(4) of the UK-Arg BIT (cit.): “The arbitral tribunal shall decide this dispute in accordance with the provisions of this Agreement, the laws of the Contracting Party involved in this dispute, including its rules on conflict of laws, the terms of any specific agreement concluded in relation to such an investment and the applicable principles of international law.”

[23]  See Article 2(2) of the UK-Arg BIT (cit.): “Investments of investors of each Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy protection and constant security in the territory of the other Contracting Party. (…)”.

[24]  For more details, see Academic Forum, Concept Paper on Issues of ISDS Reform, Working Group No. 3: Lack of Consistency and Coherence in the Interpretation of Legal Issues. Available at: https://www.cids.ch/images/Documents/Academic-Forum/3_Inconsistency_-_WG3.pdf, par. 18.

[25]  See BG Group Plc. v. The Republic of Argentina, UNCITRAL (1976), par. 344 (cit.): “… Argentina unilaterally withdrew commitments which induced BG to make its investment in Argentina and this constitutes unreasonable action and a breach of this provision of the treaty.” As concerns the second decision, cf. National Grid plc v. The Argentine Republic, UNCITRAL (1976), par. 181 (cit.): “The Claimant has alleged that by taking the Measures the Respondent withdrew the protection and security previously granted to its investment.”

[26]  See Academic Forum, Concept Paper on Issues of ISDS Reform, Working Group No. 3: Lack of Consistency and Coherence in the Interpretation of Legal Issues. Available at: https://www.cids.ch/images/Documents/Academic-Forum/3_Inconsistency_-_WG3.pdf, par. 19.

[27]  Cf. BROWN, CH., ORTINO, F., ARATO, J. Lack of Consistency and Coherence in the Interpretation of Legal Issues [online]. Blog of the European Journal of International Law. 5 April 2019. Available at: https://www.ejiltalk.org/lack-of-consistency-and-coherence-in-the-interpretation-of-legal-issues/ [cit. 2020-12-03].

[28]  For another example of a conflict of interpretations in this area, see also the comparison of the decisions in Lauder v. Czech Republic and CME v. Czech Republic. See also BROWN, CH., ORTINO, F., ARATO, J. Lack of Consistency and Coherence in the Interpretation of Legal Issues [online]. Blog of the European Journal of International Law. 5 April 2019. Available at: https://www.ejiltalk.org/lack-of-consistency-and-coherence-in-the-interpretation-of-legal-issues/ [cit. 2020-12-03].

Čím se liší „právní entita“ od právnické osoby (úvaha nad „jinou než fyzickou osobou“ podle § 30 odst. 1 z. m. p. s.)

Karel Beran^1

Abstract

What Distinguishes a “Legal Entity” from a Juristic Person (Consideration of “non-natural persons” according to Section 30 (1) of the Czech Private International Law Act)

According to sec. 30 (1) of the Czech Private International Law Act, personal status—lex societatis—is determined not only for companies that are explicitly declared as juristic persons, but also for “non-natural persons”. The aim of this paper is to reflect on the question of which attributes an “entity” must have that is on the one hand not explicitly declared as a juristic person but on the other hand is not a natural person either, and must therefore be considered “as if it were a juristic person”. The author concludes that only an entity that was created on the basis of the legal system by being unmistakably identified, has a separate legal personality, the legal capacity to act as well as the ability to bear legal liability, can be considered as a juristic person in a “material” sense.

1.
Úvod

Právní regulace obchodních společností ve vztazích s mezinárodním prvkem představuje jedno z hlavních témat, kterému se profesorka Monika Pauknerová dlouhodobě věnuje.2 Její monografie „Společnosti v mezinárodním právu soukromém“ z roku 1998 má i v současnosti zásadní význam pro pochopení kritérií určování osobního statutu obchodních společností.3 Vysvětlení inkorporačního principu, jakož i principu sídla z pera Moniky Pauknerové tak nepochybně představuje teoretický základ, ze kterého se v české doktríně stále vychází.

Podle § 30 z. m. p. s. se však osobní statut – lex societatis – určuje nejen u obchodních společností, které jsou výslovně prohlášeny za právnické osoby, ale i u „jiných než fyzických osob“,4 tedy útvarů, které sice nejsou právním řádem státu, podle něhož vznikly, výslovně prohlášeny za právnické osoby, jedná se však o „entity“, které se svojí povahou právnickým osobám přibližují. Důvodová zpráva k zákonu č. 91/2012 Sb., o mezinárodním právu soukromém, vysvětluje použití pojmu jiná než fyzická osoba tím, že „v některých právních řádech existují i takové útvary, které tam nemají povahu právnických osob, avšak přiznává se jim způsobilost vlastním jménem uzavírat obchody a vystupovat před soudy, používá se výrazu ‚jiná než fyzická osoba‘, aby takovým útvarům mohla být v tuzemsku v zájmu bezpečnosti a plynulosti obchodního styku přiznávaná stejná způsobilost, jakou jim přiznává příslušný cizí právní řád. Může jít např. o osobní společnosti podle práva některých států“. Příkladem takových útvarů můžou podle Tomáše Břicháčka být „general partnership v Anglii a Walesu, Offene Handelsgesellschaft v Německu, Offene Gesellschaft v Rakousku, Kollektivgesellschaft (société en nom collectif, società in nome collettivo) ve Švýcarsku či spółka jawna v Polsku“.5 Jinými slovy to znamená, že se v cizích právních řádech vyskytují „entity“, které sice nejsou osobami, avšak mají v jistém smyslu právní osobnost. Jak totiž vysvětluje Karel Eliáš: „Vzhledem k tomu, že i tyto útvary mohou působit také na našem území – mohou zde uzavírat smlouvy, způsobit škodu nebo být poškozeny aj., tudíž mohou i žalovat a být žalovány, stanovil § 3024 odst. 2 o. z., že takovým entitám přiznává náš právní řád způsobilost nabývat práva a zavazovat se k povinnostem ve stejném rozsahu jako jejich domovský právní řád.“6

Cílem mého příspěvku je tak zamyšlení nad otázkou, jaké atributy musí vykazovat „entita“, která na jednu stranu není výslovně prohlášena za osobu právnickou, na straně druhé však ani není osobou fyzickou, a je tedy třeba na ni nahlížet, „jako by právnickou osobou byla“.

2.
Čím se liší „právní entita“ od „právnické osoby“

Vycházím z toho, že účelem osoby v právu je vytvořit funkčního nositele práv a povinností. Každá osoba proto musí být způsobilá k přičítání práv, povinností, oprávnění způsobovat vznik právních povinností, přičemž k tomu, aby to mohla dělat, jí musí být přičítán také rozum a vůle. Z toho plyne, že každou osobu lze chápat jako bod přičitatelnosti.7

Ustanovení § 30 z. m. p. s. však ukazuje, že v právním řádu nemusí existovat jako body přičitatelnosti pouze osoby, tj. je možné, aby se v právu vyskytl i bod přičitatelnosti, který za osobu považován nebude. Takový bod přičitatelnosti však nemusí být do našeho právního řádu pouze importován. Z pragmatických důvodů je totiž klidně možné, aby i vnitrostátní právní řád stanovil, že se v něm budou vyskytovat „entity“, které však za osoby považovány nejsou, protože je jim typicky přiznáno pouze určité izolované právo, povinnost apod.

Příkladem takové právní entity může být „nasciturus“, tj. plod člověka v lůně matky. Právě nasciturus, pokud se narodí živý, může nabýt práv, která mu vznikla ještě před jeho narozením. Tato úprava je především řešením situace, kdy se dítě může narodit po smrti svého otce – a je tak třeba umožnit mu – aby po svém otci dědilo. Považuji za nepochybné, že rozsah práv nascitura je ve srovnání s osobou omezený a zároveň podmíněný právě tím, že se vůbec narodí. V tomto smyslu lze uvažovat o jakési podmíněné právní osobnosti.

Stejně tak je možné představit si jako právní entitu „samostatný“ orgán, který bude oprávněn jednat, a stanovovat tak práva a povinnosti, zároveň se však tato práva a povinnosti nebudou přičítat tomuto orgánu, ale osobě, za kterou jedná.8 Totiž tam, kde „positivní předpis uděluje pouze veřejnoprávní (normotvornou) subjektivitu, aniž by takovému činiteli uděloval i subjektivitu soukromoprávní, tvoří právní řád pouhé ‚orgány‘ či ‚úřady‘, přičemž však pravá osobitost bývá odsunuta na vzdálenějšího činitele, jehož orgánem se onen bližší nositel pouhých ‚kompetencí‘ jeví“.9 Proto je také pojem veřejnoprávní korporace uváděn v protikladu k pojmu úřadu. Úřadem je třeba dle J. Matějky rozumět především „okruh záležitostí ohraničený veřejným právem, které jsou spojeny v technickou jednotku“. Pojem úřadu je totožný s pojmem orgánu jako prostředku, jímž může právnická osoba právně projevovat svou vůli. „Úřad jakožto orgán sám nemá vůči subjektu, jehož vůli má tvořit, právo na výkon své ‚orgánní funkce‘. Promítneme-li tento pojem úřadu na pojem veřejnoprávní korporace, shledáme, že i ona má své orgány, jež jejím jménem právně projevují její vůli. Tyto orgány mají postavení orgánu vůči korporaci, korporace sama však nemůže být úřadem. Výjimku tvoří případy, kdy je na korporaci, nebo na některý její orgán přenesena vrchnostenská pravomoc.“10

Vážení čtenáři, právě jste dočetli ukázku z knihy Liber Amicorum Monika Pauknerová.
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