The Impact of the European Convention on Human Rights on Private International Law

In this book the interaction between the rights guaranteed in the European Convention of Human Rights (ECHR) and private international law has been analysed by examining the case law of the European Court of Human Rights (the Court) and selected national courts. In doing so the book focuses on the impact of the ECHR on the three main issues of private international law: jurisdiction, applicable law and the recognition and enforcement of foreign judgments. Next to a list of cases consulted and a comprehensive bibliography, the book offers brief introductions to PIL and the ECHR for readers who are less familiar with either of the topics. This makes the book not only a valuable tool for specialists and practitioners in the fields covered, but at the same time a well-documented basis for students and starting researchers specializing in either or both directions. Preface 5 Contents 7 1 Introduction 12 1.1...Background and Purpose 12 1.2...Structure of the Book and Further Delineation of the Subject 16 1.3...Overview 19 References 20 2 Introduction to Private International Law 23 2.1...Introduction 23 2.2...The Notion of Private International Law 24 2.3...Objectives of Private International Law 26 2.4...Sources of Private International Law 26 2.4.1 The Europeanization of Private International Law 27 2.4.2 International Treaties 29 2.4.3 National Legislation 29 2.5...The Impact of Fundamental Rights on Private International Law 30 References 34 3 Introduction to the European Convention on Human Rights 37 3.1...Introduction 37 3.2...The Enforcement Machinery 39 3.3...The Status of the ECHR in the Domestic and International Legal Orders 41 3.3.1 The ECHR and Other Private International Law Treaties 43 3.4...The Most Relevant Articles of the ECHR with Regard to Private International Law 46 3.5...The Nature of the Contracting Partiesrsquor Obligations and of the Rights in the ECHR 46 3.5.1 The Nature of the Rights Guaranteed in the ECHR 48 3.5.1.1 Absolute Rights 49 3.5.1.2 Qualified Rights 49 3.5.1.3 Limited Rights 51 3.5.2 The Margin of Appreciation 52 3.6...The Future of the System of Protection Offered by the ECHR 54 References 56 4 Article 1 ECHR and Private International Law 59 4.1...Introduction 59 4.2...The Meaning of Article 1 ECHR and the Notion of Jurisdiction 62 4.2.1 The Notion of Jurisdiction 62 4.2.2 The Notion of Jurisdiction in Public International Law 63 4.2.3 The Notion of Jurisdiction in Article 1 ECHR 65 4.2.4 Article 1 ECHR and the Extra-Territorial Application of the ECHR 67 4.2.4.1 The ‘Travaux PrÕparatoires’ Concerning Article 1 ECHR 67 4.2.4.2 The Extra-Territorial Scope of the ECHR 68 The Extra-Territorial Application of the ECHR 69 The Extra-Territorial Effect of the ECHR 72 4.3...The Meaning of Article 1 ECHR for Private International Law 74 4.4...The Consequences of the Applicability of Article 1 ECHR to Private International Law 79 4.4.1 Article 1 ECHR and the Debate on the ‘Imperialism’ of the ECHR 81 4.4.2 The Dangers of the Proliferation of Rights Guaranteed in the ECHR for Private International Law 83 4.4.3 Jurisprudence of the National Courts of the Contracting Parties 84 4.4.3.1 Private International Law Cases and the Extra-Territorial Effect of the ECHR 85 4.4.3.2 Article 1 ECHR and the Use of the Public Policy Exception 86 4.4.3.3 The Extensive Reach of the ECHR in Issues of Private International Law 87 4.4.3.4 Article 1 ECHR in National Case Law: Concluding Remarks 90 4.5...Conclusion 91 References 92 5 Jurisdiction in Private International Law 95 5.1...Introduction 96 5.2...The Notion of Jurisdiction in Private International Law 97 5.2.1 Jurisdictional Rules and Grounds of Jurisdiction 98 5.2.1.1 Exorbitant Bases of Jurisdiction 99 5.2.2 The Impact of Public International Law on Jurisdiction in Private International Law 100 5.2.2.1 The Impact of Public International Law on the Assertion of Jurisdiction in Private International Law 101 5.2.2.2 Denial of Justice 103 5.3...The Applicability of the ECHR to Disputes Concerning Jurisdiction in Private International Law 104 5.4...The Right of Access to a Court in Private International Law 105 5.4.1 General Overview of the Right of Access to a Court in the Case Law of the Strasbourg Institutions 106 5.4.2 The Right of Access in Private International Law in the Strasbourg Case Law 110 5.4.3 The Scope of the Right of Access to a Court and Jurisdiction in Private International Law 113 5.4.3.1 A Negative Conflict of Jurisdiction 114 The Right of Access to a Court: Forum Necessitatis 115 Forum Non Conveniens 118 5.4.3.2 Denial of Access to Court Where a Foreign Court Is Available? 120 5.4.3.3 The Proceedings in the Available Foreign Court Are Not in Accordance with the Guarantees of Article 6(1) ECHR 122 5.4.3.4 The Right of Access and the Denial of Substantive Justice 126 5.4.3.5 Access to a Court and the Impossibility of a Judgment Being Recognized and Enforced 131 5.4.4 Restrictions to the Right of Access to a Court: Procedural Bars 131 5.4.5 The Effectiveness of the Right of Access to a Court: Legal Aid 135 5.4.6 Preliminary Conclusions 136 5.5...The Invocation of Article 6(1) ECHR against the Assertion of Jurisdiction 137 5.5.1 The Invocation of Article 6(1) ECHR against Jurisdiction in the Strasbourg Case Law 137 5.5.2 Article 6(1) ECHR and the Due Process Clause 140 5.5.3 The Consequences of the Divergent Roles of Article 6(1) ECHR 143 5.5.4 Some Preliminary Conclusions 143 5.6...Article 6(1) ECHR as a Brake on Strategic Litigation 144 5.6.1 The State of the Law: Gasser 146 5.6.2 Strategic Litigation and the Role of Article 6(1) ECHR 147 5.7...Conclusion 150 6 Applicable Law 158 6.1...Introduction 158 6.2...The Applicability of the ECHR to the Issue of Applicable Law 160 6.2.1 Responsibility When a Foreign Law Is Applied 161 6.2.2 Co-responsibility When the Law of Another Contracting Party Is Applied? 162 6.3...The Impact of the ECHR on the Applicable (Foreign) Law in a Private International Law Dispute 163 6.3.1 The Case Law of the Strasbourg Institutions 165 6.3.2 The Impact of the ECHR on the Applicable Foreign Law: Further Analysis 170 6.3.2.1 The Standard of Control with Regard to the Applicable Foreign Law 171 6.3.2.2 Attenuation of the Standards of the ECHR in the Strasbourg Case Law? 174 6.3.3 Jurisprudence of National Courts of the Contracting Parties 177 6.3.3.1 The Invocation of the ECHR against the Applicable Foreign Law in the Jurisprudence of National Courts 178 6.3.3.2 The Judicial Establishment of Paternity: And the Issue of Attenuation 180 6.3.3.3 The Manner of Invocation of Human Rights Against the Applicable Foreign Law 185 6.4...The Application of the ECHR Promoting the Application of Foreign Law 189 6.4.1 The Case Law of the Strasbourg Institutions 190 6.4.2 Jurisprudence of the EU and the National Courts of the Contracting Parties 192 6.4.3 The Application of the ECHR Promoting the Application of Foreign Law: Debate in the Literature 194 6.5...The Impact of the ECHR on the Act of Applying Foreign Law 196 6.5.1 The Case Law of the Strasbourg Institutions 197 6.5.2 Jurisprudence of the National Courts of the Contracting Parties 198 6.5.3 The Practice in National Legal Orders and the Impact of Article 6(1) ECHR 200 6.6...Conclusion 202 References 205 7 The Recognition and Enforcement of Foreign Judgments: The Obligation to Recognize and Enforce Foreign Judgments 208 7.1...Introduction 208 7.2...Article 6(1) ECHR and the Obligation to Recognize and Enforce 211 7.2.1 The Obligation to Recognize and Enforce Following from Article 6(1) ECHR 219 7.2.2 Jurisprudence of National Courts of the Contracting Parties 221 7.2.3 Preliminary Conclusions 224 7.3...Article 1 of Protocol No. 1 ECHR and the Obligation to Recognize and Enforce 225 7.3.1 The Obligation Following from Article 1 of Protocol No. 1 ECHR 227 7.3.2 Preliminary Conclusions 228 7.4...Article 8 ECHR and the Obligation to Recognize Foreign Judgments 228 7.4.1 The Obligation to Recognize and Enforce Following from Article 8 ECHR 244 7.4.2 Jurisprudence of the National Courts of the Contracting Parties 245 7.4.3 Preliminary Conclusions 250 7.5...Conclusion 250 References 253 8 The Recognition and Enforcement of Foreign Judgments: The Invocation of the ECHR Against Recognition and Enforcement 255 8.1...Introduction 255 8.2...The Invocation of Article 6(1) ECHR Against Recognition and Enforcement 256 8.2.1 The Standard of Control Following from Article 6(1) ECHR with Regard to the Recognition and Enforcement of Foreign Judgments 262 8.2.2 The Invocation of Article 6(1) ECHR Against Recognition and Enforcement: EU and National Jurisprudence 267 8.2.2.1 EU Jurisprudence 267 8.2.2.2 National Jurisprudence of the Contracting Parties 270 8.2.3 The Manner of Invocation of Article 6(1) ECHR Regarding Recognition and Enforcement 279 8.2.4 The Abolition of the Exequatur Procedure 279 8.2.5 Preliminary Conclusions 282 8.3...The Invocation of the Substantive Rights Guaranteed in the ECHR Against the Recognition and Enforcement of Foreign Judgments 283 8.3.1 The Invocation of Substantive Rights Guaranteed in the ECHR against a Judgment of Another Contracting Party 283 8.3.2 The Invocation of Substantive Rights Guaranteed in the ECHR against a Judgment of a Third Country 286 8.3.3 The Invocation of Substantive Rights Guaranteed in the ECHR: National Jurisprudence 289 8.4...Conclusion 291 References 293 9 Conclusions 296 9.1...Introduction 296 9.2...The Impact of the ECHR on the Issue of Jurisdiction in Private International Law 298 9.3...The Impact of the ECHR on the Issue of Applicable Law 301 9.4...The Impact of the ECHR on the Recognition and Enforcement of Foreign Judgments 305 9.5...Concluding Remarks 309 Table of Cases 312 Bibliography 321 In This Book Interaction Between The Rights Guaranteed In The European Convention On Human Rights (echr) And Private International Law Has Been Analysed By Examining The Case Law Of The European Court Of Human Rights (the Court) In Strasbourg And Selected National Courts. In Doing So The Book Has Focused On The Impact Of The Echr On All Three Of The Main Questions Of Private International Law: Jurisdiction, The Applicable Law And The Recognition And Enforcement Of Foreign Judgments. First, A Concise Introduction To Both Private International Law And The Echr Has Been Provided. Next, An Important Preliminary Question Has Been Answered: What Is The Meaning Of Article 1 Echr For Private International Law? Thereafter, The Impact Of The Echr On The Three Main Issues Of Private International Law Has Been Examined In Depth. It Has Been Demonstrated In This Book That The Impact Of The Echr On Private International Law Is Indeed Considerable, And That Its Impact In Some Areas Of Private International Law Is Still Somewhat Underestimated.-- Introduction To Private International Law -- Introduction To The European Convention On Human Rights -- Article 1 Echr And Private International Law -- Jurisdiction In Private International Law -- Applicable Law -- Recognition And Enforcement Of Foreign Judgments : The Obligation To Recognize And Enforce Foreign Judgments -- Recognition And Enforcement Of Foreign Judgments : The Invocation Of The Echr Against Recognition And Enforcement. Louwrens R. Kiestra. Produced And Distributed For T.m.c. Asser Press By Springer-verlag Berlin Heidelberg--title Page Verso. Includes Bibliographical References (pages 315-329). The focus of the present book is the impact of the European Convention on Human Rights (ECHR) on the three main topics of private international law (PIL): jurisdiction, applicable law, and the recognition and enforcement of foreign judgments. The author sets off with a discussion whether the ECHR is at all applicable to issues of PIL and the relationship between Article 1 of the Convention and PIL. He then examines the case law of the European Court of Human Rights and selected national courts and by doing so thoroughly maps the interaction between PIL and the rights guaranteed in the ECHR. On this wealth of information the author bases his final conclusions. Next to a list of cases consulted and a comprehensive bibliography, the book offers brief introductions to PIL and the ECHR for readers who are less familiar with either of the topics. This makes the book not only a valuable tool for specialists and practitioners in the fields covered, but at the same time a well-documented basis for students and starting researchers specializing in either or both directions In this book interaction between the rights guaranteed in the European Convention on Human Rights (ECHR) and private international law has been analysed by examining the case law of the European Court of Human Rights (the Court) in Strasbourg and selected national courts. In doing so the book has focused on the impact of the ECHR on all three of the main questions of private international law: jurisdiction, the applicable law and the recognition and enforcement of foreign judgments. First, a concise introduction to both private international law and the ECHR has been provided. Next, an important preliminary question has been answered: what is the meaning of Article 1 ECHR for private international law? Thereafter, the impact of the ECHR on the three main issues of private international law has been examined in depth. It has been demonstrated in this book that the impact of the ECHR on private international law is indeed considerable, and that its impact in some areas of private international law is still somewhat underestimated.-- Provided by Publisher Front Matter....Pages i-xi Introduction....Pages 1-11 Introduction to Private International Law....Pages 13-26 Introduction to the European Convention on Human Rights....Pages 27-48 Article 1 ECHR and Private International Law....Pages 49-84 Jurisdiction in Private International Law....Pages 85-147 Applicable Law....Pages 149-198 The Recognition and Enforcement of Foreign Judgments: The Obligation to Recognize and Enforce Foreign Judgments....Pages 199-245 The Recognition and Enforcement of Foreign Judgments: The Invocation of the ECHR Against Recognition and Enforcement....Pages 247-287 Conclusions....Pages 289-304 Back Matter....Pages 305-329 4.4.3.3 The Extensive Reach of the ECHR in Issues of Private International Law4.4.3.4 Article 1 ECHR in National Case Law: Concluding Remarks; 4.5 ... Conclusion; References; 5 Jurisdiction in Private International Law; 5.1 ... Introduction; 5.2 ... The Notion of Jurisdiction in Private International Law; 5.2.1 Jurisdictional Rules and Grounds of Jurisdiction; 5.2.1.1 Exorbitant Bases of Jurisdiction; 5.2.2 The Impact of Public International Law on Jurisdiction in Private International Law; 5.2.2.1 The Impact of Public International Law on the Assertion of Jurisdiction in Private International Law 3 Introduction to the European Convention on Human Rights3.1 ... Introduction; 3.2 ... The Enforcement Machinery; 3.3 ... The Status of the ECHR in the Domestic and International Legal Orders; 3.3.1 The ECHR and Other Private International Law Treaties; 3.4 ... The Most Relevant Articles of the ECHR with Regard to Private International Law; 3.5 ... The Nature of the Contracting Partiesrsquor Obligations and of the Rights in the ECHR; 3.5.1 The Nature of the Rights Guaranteed in the ECHR; 3.5.1.1 Absolute Rights; 3.5.1.2 Qualified Rights; 3.5.1.3 Limited Rights; 3.5.2 The Margin of Appreciation The Extra-Territorial Effect of the ECHR4.3 ... The Meaning of Article 1 ECHR for Private International Law; 4.4 ... The Consequences of the Applicability of Article 1 ECHR to Private International Law; 4.4.1 Article 1 ECHR and the Debate on the 'Imperialism' of the ECHR; 4.4.2 The Dangers of the Proliferation of Rights Guaranteed in the ECHR for Private International Law; 4.4.3 Jurisprudence of the National Courts of the Contracting Parties; 4.4.3.1 Private International Law Cases and the Extra-Territorial Effect of the ECHR; 4.4.3.2 Article 1 ECHR and the Use of the Public Policy Exception 3.6 ... The Future of the System of Protection Offered by the ECHRReferences; 4 Article 1 ECHR and Private International Law; 4.1 ... Introduction; 4.2 ... The Meaning of Article 1 ECHR and the Notion of Jurisdiction; 4.2.1 The Notion of Jurisdiction; 4.2.2 The Notion of Jurisdiction in Public International Law; 4.2.3 The Notion of Jurisdiction in Article 1 ECHR; 4.2.4 Article 1 ECHR and the Extra-Territorial Application of the ECHR; 4.2.4.1 The 'Travaux PrÕparatoires' Concerning Article 1 ECHR; 4.2.4.2 The Extra-Territorial Scope of the ECHR; The Extra-Territorial Application of the ECHR Preface; Contents; 1 Introduction; 1.1 ... Background and Purpose; 1.2 ... Structure of the Book and Further Delineation of the Subject; 1.3 ... Overview; References; 2 Introduction to Private International Law; 2.1 ... Introduction; 2.2 ... The Notion of Private International Law; 2.3 ... Objectives of Private International Law; 2.4 ... Sources of Private International Law; 2.4.1 The Europeanization of Private International Law; 2.4.2 International Treaties; 2.4.3 National Legislation; 2.5 ... The Impact of Fundamental Rights on Private International Law; References