Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

The judgment in question is a response to questions referred for a preliminary ruling by a Romanian court which has to decide on the law applicable to the minimum wage to be paid to a number of Romanian workers. The Court of Justice answers two joined cases in which the employees work in a State other than that the State whose law is applicated. Under Article 8 of the Rome I Regulation, the law applicable to the individual employment contract is the law chosen by the parties -Romanian law in our case- and the mandatory provisions of the law which would be applicable in the absence of choice, provided that they are more protective to the employee. The law that would be applicable if the parties had not chosen Romanian law as the law governing their contractual relationship is that of the State in which the employee habitually carries out his work (Art. 8.2 IRR) -Italy and Germany, in the two joined cases. In the CJEU, the Court concludes that the provisions on minimum wages can be considered to be stipulations that cannot be excluded by agreement, mandatory provisions, therefore, and provides that it is up to the referring judicial body to assess whether this regulation of the State in which the employee habitually carries out his work is more favourable to the employee than that of the State whose law is applicated. In this case, the latter should be the one applicable to the particular question of the minimum wage, since it is more protective of the employee.

In this preliminary ruling (C-73/20), the Court of Justice of the European Union (CJEU) faces again (as did in former case law), the issue of what law is applicable to detrimental acts within the course of a cross border insolvency proceeding. On this occasion, the CJEU analyses how and when, –according to the EU Private International Law (EU PIL) at hand for those proceedings, i.e.: the lex spe-cialis (articles 4 and 13 Insolvency Regulation) and the lex generalis (article 12 para 1 lit a Rome I Re-gulation)–, which one is of application to determine the law applicable to acts which can be considered as “detrimental” to all the creditors. With other words, whether it would be applicable to the detrimental act, the lex concursus which governs the insolvency proceedings as a whole or the lex contractus which governs the law to the contract which led in these detrimental acts. However, the particularity of this case which is highly significant is grounded in the different relationships of the parties as a consequence of an “alleged” assignment between the insolvent company, the original debtor and an outsider creditor to this cross-border insolvency proceeding. Something that the CJEU did not pore it over as expected.

Upon a request for a preliminary ruling on the articulation between Article 13 of the European Insolvency Regulation n° 1346/2000 and Article 12(1)(b) of Rome I Regulation, the Court of Justice of European Union has confirmed in a decision on April 22, 2021 that a payment made in perfor-mance of a contract by a third party is subjected to the law applicable to that contract and not to the law of the Member State opening the insolvency proceedings where the payment is challenged by an avoidance action. The decision raises some reflections on the correlation between the European Insolvency and Rome I Regulations as well as the effectiveness of avoidance action in insolvency proceedings.

Even though almost seventeen years have passed since its entry into force, legal operators in the Member States of the European Union, including the Spanish ones, continue ignoring not only the system of forums but also the personal scope of application of the Brussels II bis Regulation.  As an example, it is appropriate to mention the case resolved by the provincial court of Murcia on 11 February 2021. This court confirms, on appeal, the decision handed down at first instance by a court in the town of Cieza, by which this court declared itself internationally incompetent to try a divorce case in which the spouses were neither Spanish nationals nor habitually resident in Spain.

The analysis hereby is based on the Court Order handled down by the Superior Court of Justice of Catalonia, in an arbitral award recognition proceeding of two foreign arbitral awards rendered by the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry (the “ICAC”). The defendant replied to the recognition lawsuit considering that those arbitral awards were rendered by default due to the lack of notification of the arbitral proceeding. The Court Order has an interest for the Spanish case law on this topic, insofar it shows the tendency of the Spanish Superior Courts in recognizing the foreign arbitral awards, rather than its refusal, in cases such as the one at stake, when it is proven that the alleged default of the defendant might be regarded as a procedural strategy.

Con ocasión de un accidente ocurrido en Marruecos, el Tribunal Supremo ha tenido re-cientemente la oportunidad de examinar la interpretación y aplicación del Convenio de La Haya sobre la ley aplicable en materia de accidentes de circulación por carretera. Contrariamente a lo sostenido por los órganos de primera y segunda instancia, el Tribunal ha sostenido que la incertidumbre en relación con la ley aplicable a la responsabilidad no justifica la demora del asegurador en la liquidación o consignación de la indemnización a efectos del artículo 20 de la Ley de Contratos de Seguro.

Granted multiple enforcement orders against debtors who turned out to be domiciled in other Member States, the first instance court of Sofia asks whether the performance of checks concer-ning the address in Bulgaria of persons to be served with a judicial document can be assimilated to the taking of evidence for the purposes of Regulation 1206/2001, and whether the infringement of article 5(1) of Brussels I Bis Regulation entails the nullity of the enforcement orders and the subsequent obli-gation to set them aside.

Child abduction or child’s transfer or their illegal retention by a parent or person who has been granted custody by administrative or judicial resolution, against the other parent wish and in the absence of a judicial authorization that allows it, is a punishable offense. The action times to ensure the immediate return of the abducted child must be very fast and so, international cooperation, with the existing legal instruments, is essential. Create international agreements and conventions for Estates that are not part of the existing ones, it is essential.  

This report addresses questions of civil status recognition in Baltic states: Estonia, Latvia and Lithuania. All three states restored their independence in the early 90-ties, and since then, they have been developing their legal systems, including – private international law. With time, the relevance of private international law increases, mainly due to the increased migration. However, the doctrine of Baltic private international remains limited. This report presents main legal developments and growing case-law related to recognition of civil status. The ECHR and CJEU case law influenced to some extent, the Lithuanian courts’ case law regarding names and same-sex couples. Latvian courts continue to refuse recognition of non-Latvian spelling of names, and Estonian authorities are the most flexible in this regard. Both Lithuania and Latvia used the protection of the national language as the justification to deny granting the recognition of names acquired abroad. It occurs that all the states do not focus on developing methodologies for recognizing the civil status acquired abroad.

The aim of this national report is to analyse the current legal framework for the recognition of a legal status acquired abroad in the Netherlands. The first part of the report discusses the academic awareness, legislative awareness, as well as the administrative and judicial awareness of the European discussion on the recognition of personal status. The second part of the report outlines the development and structure of the Dutch legal framework for recognition. The formal and substantive requirements for recognition of a legal status acquired abroad, as well as subsequent changes to that framework, are highlighted for each relevant set of rules. It is argued that the Dutch legal framework for recognition is rather permissive due to its strong link with multilateral instruments ratified by the Netherlands, but suffers from its own flaws in terms of complexity. The final part of the report discusses the methods of recognition in Dutch private international law.