Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter R.6: Recognition of legal situations evidenced by documents

Dagmar Coester-Waltjen

I. Background and concepts

When it comes to their legal situation, persons and businesses in an increasingly mobile society may face difficulties in cross-border activities or in moving from one legal system to another (for example, concerning the validity of a →marriage or of the formation of a company, of an adoption or with regard to ownership). Although these legal situations may be evidenced by documents, the documents might not be regarded as proof of the legal situation, and the legal situation recorded in the respective document might not be treated as valid beyond the borders of the state of origin.

These problems are also encountered when legal situations are evidenced by judicial decisions. For judgments, international treaties and European regulations take care of many of the transnational problems. Foreign decrees very often do not need any legalization (→Legalization of public documents) and an Apostille may not even be required. In some international instruments, the ‘authority and effectiveness’ of a judgment is accorded automatically beyond the borders of the state in which it was rendered. This might be the case even without any review of the private international law or the substantive law applied and without examination of the facts. The recognition might only be subject to very few grounds of refusal, such as →public policy (ordre public) or the violation of the right to be heard. Outside these exceptions, the (foreign) judgment will very often have the force of res judicata.

According to the European regulations, this is, for example, the case for Member State judgments in →civil and commercial matters (art 33 Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1); art 36 Brussels Ibis Regulation (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), [2012] OJ L 351/1) (→Brussels I (Convention and Regulation))), for decisions of other Member States (except →Denmark) on divorce and parental authority (art 21 →Brussels IIIbis Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338/1)), on maintenance (arts 17 and 23 Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, [2009] OJ L 7/1) (→Maintenance obligations)) and on →succession (art 39 Succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107; →Rome IV Regulation)). Outside the EU, some treaties p. 1496provide for mutual (facilitated) recognition in specific areas of law (see, for example, the Hague Child Maintenance Convention 1958 (Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children, 539 UNTS 27), the Hague Divorce and Separation Convention (Hague Convention of 1 June 1970 on the recognition of divorces and legal separations, 978 UNTS 399), the Hague Recognition and Enforcement Convention (Hague Convention of 1 February 1971 on the recognition and enforcement of foreign judgments in civil and commercial matters, 1144 UNTS 258) and the Hague Maintenance Recognition and Enforcement Convention 1973 (Hague Convention of 2 October 1973 on the recognition and enforcement of decisions relating to maintenance obligations, 1021 UNTS 209)). Some national legislators have also become generous in recognizing foreign judicial decisions without a révision au fond.

However, if a legal situation is evidenced not by a judicial decision but simply by documents, these rules on recognition hardly ever apply (for exceptions, see below, section III.1.b)). Persons and businesses might therefore be confronted with several problems: the document they produce in another jurisdiction may be of no legal relevance at all, although it has been validly established in the state of origin. The document may not furnish evidence of anything without prior legalization. Even if such legalization is carried out, the legal effects of such documents may not be recognized per se. Thus, two different issues are at stake: first, the authenticity and the evidential value of a foreign document; and, second, the legal effects of such document, ie the authority and effectiveness of the legal situation evidenced by this document. Both issues raise different problems and have to be treated separately.

Several international instruments deal with the evidential value of foreign documents, but most of them explicitly exclude their application to the legal effects of such documents (see art 2(14) and Recital (18) EU Regulation (‘Proposal for a Regulation of the European Parliament and of the Council of 6 June 2016 on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) No 1024/2012 of 24 April 2013 OJ 2016 L 200); art 4 CIEC/ICCS Convention on the Establishment of Maternal Descent of Natural Children (Convention on the Establishment of Maternal Descent of Natural Children, signed at Brussels on 12 September 1962, ICCS Convention No 6; 932 UNTS 76)). This aspect, and not the authenticity and the evidential value of foreign documents (→Legalization of public documents), is the topic of this article.

When a legal situation has been created (eg a →marriage or a corporation), there are principally two ways to deal with the legal effects of this situation in other jurisdictions (→Private international law, methods of, sections III. and VI.). First, the legal effects of this act or event may be determined by the law dictated by the private international law rules of the jurisdiction where the respective question arises (conflict rules of the →lex fori). For example, the validity and the effects of a marriage celebrated in state A will be determined in state B in accordance with the law designated by B’s choice-of-law rules. If the private international law of state B applies the lex domicilii of the spouses to the substantive validity of a marriage, the marriage celebrated in state A will not be regarded as valid if the →marriage contravenes the imperative requirements of the lex domicilii of the spouses. This could be the case, for example, if state A determines these questions by reference to its own law, which does not provide any of these impediments. If, however, the marriage is valid according to the lex domicilii (because there are no impediments or because the lex domicilii refers to the lex loci actus), then the marriage is also regarded as valid in state B. This is a so-called ‘private international law solution’.

If, however, the act or event is evidenced by a document issued in state A, a second possible solution comes into play: the legal situation evidenced by this document of state A could be recognized as valid and with all its legal consequences in other legal systems, irrespective of the law applied and irrespective of the law which should determine these questions according to the private international law rules of the other jurisdictions. The document validly established in state A could have the same legal effect in states B, C, D, etc. In the example above, the marriage certificate of state A would also prove a valid marriage in state B without further examination. This would apply even if impediments of the lex domicilii, applicable according to the conflict rules of p. 1497state B, had been ignored. This approach may be called ‘the principle of mutual recognition’.

The differences between the two approaches may be characterized as follows: according to the first approach, a legal situation is respected in another jurisdiction if it is valid according to the conflict laws of that jurisdiction. The latter approach recognizes a legal situation as valid if the document evidencing this situation was validly established in the state of origin (Paolo Picone, ‘Les méthodes de coordination des ordres juridiques en droit international privé’ (1999) 276 Rec. des Cours 13: ‘indifférence à la loi appliquée, mais non à l’ordre juridique compétent’). Comparable to a judgment, the principle of res judicata may be said to apply to the document.

The result of both approaches will be the same in cases where the conflict rules of state B designate the same law as applied in state A (for example, the lex loci actus). But the methods in achieving this outcome differ: in the first case, private international law rules determine the result, whereas in the second, the conflict rules are of no importance whatsoever.

II. Historical development

1. Ulricus Huber and the vested right theory

It seems to be generally accepted that the idea of recognition of legal effects resulting from a legal act or event in another jurisdiction was developed by Ulricus Huber (→Huber, Ulrik) (1636–1694) (Hans Jürgen Sonnenberger, ‘Anerkennung statt Verweisung? Eine neue internationalprivatrechtliche Methode’ in Jörn Bernreuther and others (eds), Festschrift für Ulrich Spellenberg (Sellier 2012) 371, 375). The concept tried to overcome the Statutists’ theory and to explain at the same time why legal effects attributed by a foreign law could be recognized in another jurisdiction. Despite the (strictly) territorial approach, the legal situation is not governed by the →lex fori, but is ‘recognized’ with its effects attributed by the foreign jurisdiction.

In the Anglo-American world, Huber’s ideas have been adopted and developed further by JosephStory (1797–1845) in the USA and in England (see Kurt Nadelmann, ‘Introduction to Hessel E. Yntema, the Comity Doctrine’ (1966) 65 Mich.L.Rev. 1, 2). The idea of the recognition of duly acquired rights culminated in Joseph Beale’svested rights theory. Beale treated legal effects of acts and events which happened abroad as facts or as obligations not to be called into question anywhere.

Although this theory was highly influential in the US courts until the 1950s and also influenced French doctrine (Pillet), its impact on continental European choice-of-law rules was very limited. Huber’s and Story’s theories also lost their influence in England. In the USA, Beale’s theory came to be severely criticized. However, it must be stressed that most critics regarded that theory as one of private international law and not as an alternative to choice-of-law rules. The reason for this might be that a right was regarded as vested only if ‘created by the appropriate law’. In contrast, →Rabel clearly states that ‘this theory ... is the exact antipode of private international law’ (Ernst Rabel, Conflict of Laws, Volume I (2nd edn, UoM 1958) 14).

2. Conventions on civil status

The discussion on mutual recognition of legal situations has been revived in the process of drafting and commenting new international conventions on civil status and in relation to the ongoing process of ensuring free movement of goods, persons, services and capital within the EU. The international conventions of The Hague and the →CIEC/ICCS (International Commission on Civil Status) will be examined in detail in section III. Though the acceptance of these conventions has been very limited so far (the Convention concerning the recognition of the legal personality of foreign companies, associations and institutions of 1956 did not even enter into force), their impact on the discussion has been considerable. Some of the conventions might have been ‘ahead of their time’ (Hans van Loon, ‘Unification and Cooperation in the Field of International Family Law: A Perspective from The Hague’ in Alegría Borrás and others (eds), E Pluribus Unum, Liber Amicorum Georges Droz (Kluwer 1996) 173, 179), but still they provide a method which might be suitable for dealing with certain problems in a globalized society (like →surrogacy). The idea is that – provided agreement on the relevant standards can be reached – mutual recognition and cooperation may serve to overcome some problems in a globalized world.

3. p. 1498Mutual recognition in the Internal Market

‘Mutual recognition’ as a principle of the Internal Market of the EU concerns a broader field of problems: the four fundamental freedoms of the EU have given rise to a heated discussion of ‘mutual recognition as a principle of supplementing or even replacing the private international rules’ (→Freedom of establishment/persons (European Union) and private international law). Decisions of the CJEU (→Court of Justice of the European Union) on the significance of the law of the state of origin with regard to free movements of goods and services (see below section III.1.a)) as well as on the recognition of a corporation or an individual’s name registered in another Member State have been feeding this approach. In addition, the Commission has issued a Green Paper Concerning the Promotion of Free Movement of Public Documents and Recognition of the Effects of Civil Status Records (European Commission, ‘Green Paper: Less bureaucracy for citizens: promoting free movement of public documents and recognition for the effects of civil status records of 14 December 2010’ COM(2010) 747 final). The idea is that civil status records drawn up by the authorities of one Member State (for example, concerning birth, marriage, paternity or death) should have the same effect, ie prove the documented legal situation, in all other Member States. As this idea has met with a certain amount of criticism (Heinz-Peter Mansel and others, ‘Stellungnahme im Auftrag des Deutschen Rates für Internationales Privatrecht zum Grünbuch der Europäischen Kommission – Weniger Verwaltungsaufwand für EU-Bürger: Den freien Verkehr öffentlicher Urkunden und die Anerkennung der Rechtswirkungen von Personenstandsurkunden erleichtern – KOM(2010) 747 endg’ [2011] IPRax 335), the new Regulation 2016/1191 of the European Parliament and of the Council of 6 June 2016 on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) No 1024/2012 of 24 April 2013 OJ 2016 L 200 addresses neither the effects of civil status records nor of other public documents, but leaves this topic to further discussion. Thus, the question of whether fundamental freedoms within the EU might be guaranteed more efficiently by a unification of the private international law or by a method of recognition is still an open one.

III. Contemporary significance

1. Mutual recognition within the EU

a) Primary sources of European law

The free movement of goods and services might require trading rules of the Member States (as well as EFTA states and Turkey) which do not hinder, directly or indirectly, actually or potentially, intra-community trade (Case C-8/74 of 11 July 1974, Procureur du Roi v Dassonville [1974] ECR 837). In the absence of (unified) Community rules, lawful production and marketing in the country of origin has to be ‘recognized’ in the other Member States. Other Member States may, in principle, not bar the import of these products (Case C-120/78 of 2 February 1979, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649). This principle is said to arise from arts 34 and 35 TFEU (Treaty on the Functioning of the European Union (consolidated version), [2012] OJ C 326/47). The destination Member State must allow free access to its market for all EEA/Turkish products, provided that these products have an equivalent level of protection of the various legitimate interests at stake. The Commission calls this the principle of ‘mutual recognition’ (European Commission, ‘Commission interpretative communication on facilitating the access of products to the markets of other Member States: the practical application of mutual recognition (text with EEA relevance)’ [2003] OJ C265/2–16). However, although the rules of the country of origin are of considerable importance, this kind of ‘mutual recognition’ does not provide for the recognition of a legal situation evidenced by documents, which is the subject of this article. It is rather a result-oriented adjustment after the ‘normal’ rules of private international law have been applied (Pierre Mayer, ‘Les méthodes de la reconnaissance en droit international privé’ in Le droit international privé: esprit et méthodes Mélanges en l’honneur de Paul Lagarde (Dalloz 2005), 547, 549; for the principle of ‘equivalence’, see Hélène Gaudemet-Tallon, ‘De nouvelles fonctions pour l’équivalence en droit international privé?’ in Bertrand Ancel and others (eds), Le droit international privé: esprit et méthodes. Mélanges en l’honneur de Paul Lagarde (Dalloz 2009) 303, 309).

Nevertheless, the approach of the CJEU and the Commission has provoked and continues p. 1499to provoke heated discussion on whether private international law rules have to or should be replaced or displaced by a principle of ‘mutual recognition’ (Erik Jayme and Christian Kohler, ‘Europäisches Kollisionsrecht 2004: Territoriale Erweiterung und methodische Rückgriffe’ [2004] IPRax 481, 483; Wulf-Henning Roth, ‘Methoden der Rechtsfindung und Rechtsanwendung im Europäischen Kollisionsrecht’ [2006] IPRax 338–347). This debate has been intensified by CJEU decisions on the freedom of establishment of corporations (Cases C-212/97 of 9 March 1999, Centros Ltd v Erhvervs- og Selskabsstyrelsen [1999] ECR I-1459; C-208/00 of 5 November 2002, Überseering BV v Nordic Construction Company Baumanagement GmbH [2002] ECR I-9919; C-167/01 of 30 September 2003, Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd [2003] ECR I-10155; C-411/03 of 13 December 2005, SEVIC Systems AG ECR [2005] ECR I-10805; and C-210/06 of 16 December 2008, Cartesio Oktató és Szolgáltató bt [2008] ECR I-9641). At the start of this line of cases, some academics interpreted these decisions as requiring the application of the law of the country of registration, but the following decisions made clear that arts 49 and 54 TFEU only require the freedom of establishment across the borders of the Member States (→Freedom of establishment/persons (European Union) and private international law). It is up to the Member States whether they ensure this freedom either by applying the law of the place of registration or by recognizing a formally registered corporation as a valid legal entity, or by a mixture of these approaches (see Heinz-Peter Mansel, ‘Anerkennung als Grundprinzip des Europäischen Rechtsraums’ (2006) 70 RabelsZ 651, 675, 681). Thus, recognition of the corporation evidenced by the documents of registration is only one option, but is not prescribed by EU law (arts 49 and 54 TFEU).

The same is true with regard to the recognition of individuals’ names registered or acquired in one Member State (→Names of individuals) (Case C-168/91 of 30 March 1993, Christos Konstantinidis v Stadt Altensteig – Standesamt and Landratsamt Calw – Ordnungsamt [1993] ECR I-1191; Case C-148/02 of 2 October 2003, Carlos Garcia Avello v Belgian State [2003] ECR I-11613; Case C-353/06 of 14 October 2008, Stefan Grunkin and Dorothee Regina Paul [2008] ECR I-7639). The Member States decide how they can ensure the free movement of citizens within the EU without causing problems with regard to the use of surnames. Several options exist, from the application of the law of the first registration to the choice of the persons concerned (Heinz-Peter Mansel, ‘Anerkennung als Grundprinzip des Europäischen Rechtsraums’ (2006) 70 RabelsZ 651, 690 et seq).

Whether the guarantee of the free movement of citizens implies the ‘recognition’ of a →marriage or civil partnership is also a subject of debate. Do Member States have an obligation to recognize a marriage or civil partnership evidenced by a document established within one EU Member State for all purposes as a civil status or not (see Erik Jayme, ‘Das Internationale Privatrecht im System des Gemeinschaftsrechts – Tagung in Macerata’ [2006] IPRax 67, 68)? The prevailing view seems to be that as long as a Member State does not deny the right to ‘family life’, neither art 21 TFEU nor art 2(2)(a), (b) of the Free Movement of Citizens Directive (Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, [2004] OJ L 158/77) requires a recognition of the civil status as such (Katja Funken, Das Anerkennungsprinzip im Internationalen Privatrecht (Mohr 2009) 173 et seq). Thus, it seems that the European primary legislation, despite its emphasis on the fundamental freedoms and the respect that Member States must pay to these principles, does not prescribe mutual recognition as the only method in dealing with cross-border activities. Nevertheless, the scholarly debate concerning whether mutual recognition should supplement or displace private international law, especially on civil status, has not yet drawn to a close (see European Commission, ‘Green Paper: Less bureaucracy for citizens: promoting free movement of public documents and recognition for the effects of civil status records of 14 December 2010’ COM(2010) 747 final, No 4; European Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending p. 1500Regulation (EU) No 1024/2012 of 24 April 2013’ COM(2013) 228 final No 2).

b) The role of documents in the EU Regulations concerning the recognition and enforcement of judgments

The EU Regulations providing for the recognition and enforcement of Member State judgments in certain fields of the law place authentic documents enforceable in the Member State of origin on an equal footing with foreign judgments as far as enforcement is concerned (see art 58 Brussels I Regulation, art 46 Brussels Ibis Regulation; art 48 Maintenance Regulation; arts 59 and 60 Succession Regulation). The Brussels Ibis Regulation neither provides nor implies that the respective document must be treated like a judgment, ie have the force of res judicata concerning the subject matter concerned (Rolf Wagner, ‘Die Anerkennung von Personenstandsurkunden in Europa’ [2014] NZFam 121, 122). The Succession Regulation only deals with the evidentiary value of the document (art 59(1)). The legal situation documented is determined by the applicable succession law (art 59(3), Recital (63)) and does not hinge on the question of ‘recognition’ (Rome IV Regulation).

The situation is slightly different with regard to the respective provisions of the Brussels IIbis Regulation and the Maintenance Regulation. Both Regulations provide that the enforceable authentic documents have to be recognized according to their rules on judgments. Does this mean that they have quasi-res judicata force in relation to the legal situation evidenced therein? The interpretation of these rules in legal literature differs: some authors consider the rule as negligently formulated (Reinhold Geimer and Rolf Schütze, Europäisches Zivilverfahrensrecht (3rd edn, Beck 2010) Art. 46 EuEheVO para 4), practically inappropriate and insignificant, and believe the wording to be mistaken (Jörg Pirrung, ‘Vorbem C–H zu Art 19 EGBGB’ in Dieter Henrich and Jörg Pirrung (eds), J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch: Staudinger BGB – EGBGB/IPR Einführungsgesetz zum Bürgerlichen Gesetzbuche/IPR (Internationales Kindschaftsrecht 2) (Sellier/De Gruyter 2009) C-177). Others want to interpret the rule restrictively to cover only the evidential value (Marianne Andrae, ‘Art. 48 EuUntVO’ in Thomas Rauscher (ed), EuZPR/EuIPR (4th edn, Sellier 2015) para 6). But there seems to be a majority opinion which also applies the rules on recognition of judgments to these authentic instruments (Lajos Vékás, ‘Art. 46’ in Ulrich Magnus and Peter Mankowski (eds), Brussels IIbis Regulation (Sellier 2012) para 24; Katharina Paraschas, ‘Art. 46 Brussels IIbis Regulation’ in Arthur Bülow, Karl-Heinz Böckstiegel, Reinhold Geimer and Rolf Schütze (eds), Internationaler Rechtsverkehr (Beck 2011) para 17; Thomas Rauscher, EuZPR/EuIPR (Sellier 2015) Art. 46 Brussels IIbis Regulation, para 2; Pascal Ancel and Horatia Muir Watt, ‘La désunion europeénne: Le Règlement dit Bruxelles II’ (2001) 28 Rev.crit.DIP 403, 437, 441; Peter Picht, ‘Art. 48 EuUntVO’ para 6 in Arthur Bülow and others (eds), Internationaler Rechtsverkehr (Beck 2011)). As the application of the respective rules is in any case confined to enforceable documents, the significance of such ‘recognition’ is limited. This is especially true as in these areas of law, a change of circumstances often allows a new decision on future obligations and rights; documents have therefore very little, if any, quasi-res judicata effect.

Thus far, it seems that neither the primary legal sources of the EU nor the Regulations on the recognition and enforcement of judgments in certain fields of law necessarily favour the mutual recognition of legal situations evidenced by documents.

2. International conventions

There are several international conventions, mainly drafted by the →CIEC/ICCS (International Commission on Civil Status) or in The Hague, which might serve as models for the recognition of a legal situation evidenced by documents. However, the setting of these rules is very different and not always completely clear. Thus, there is some debate as to whether these conventions follow the recognition approach at all. The Convention on the Establishment of Maternal Descent of Natural Children, signed at Brussels on 12 September 1962, ICCS Convention No 6; 932 UNTS 76, provides in art 1 that the woman registered in the birth certificate will be recognized as the mother of the child; however, the contrary may be proved (second sentence of art 1). As neither the law applied nor the law applicable according to the rules of the state of the register or of the state of recognition plays a role, one might classify this rule as one of recognition, but art 4 excludes the validity of the mother’s recognition from the application of the Convention. p. 1501In any case, the details of this kind of recognition remain obscure. The Convention of 10 September 1970 on legitimation by marriage, 1081 UNTS 247 – although speaking of ‘recognition’ – contains only rules on the applicable law. But the International Convention No 29 on the recognition of decisions recording a gender reassignment (Convention No 29 relative à la reconnaissance des décisions constatant un changement de sexe) by the International Commission on Civil Status (Commission Internationale de l’État Civil, CIEC (→CIEC/ICCS (International Commission on Civil Status))), adopted on 16 September 1999 in Lisbon and signed on 12 September 2000 in Vienna, the Convention on the recognition of surnames signed by the General Assembly in Antalya on 16 September 2005, ICCS Convention No 31 and the Convention on the recognition of registered partnerships opened for signature at Munich on 5 September 2007, ICCS Convention No 32 do provide for a recognition of the legal situation evidenced either by an administrative decision (sex reassignment) or by the extract of a registry (not clear with regard to ex lege changes of surnames). Most of these conventions either exclude certain delicate matters or provide possibilities of reservation for the contracting states (see conventions on sex reassignment and on →registered partnerships), or limit the scope to the civil status as such to allow non-recognition for certain defined reasons. The Conventions have had only limited success so far because too many important questions are left open.

The same is not true for the Hague Marriage Convention (Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages, 1901 UNTS 131), though it has not been widely ratified. Article 9 of the Convention clearly obliges the contracting states to recognize a →marriage ‘validly entered into under the law of the state of celebration or which subsequently becomes valid under that law’, subject to some substantive marriage impediments (art 11) and to public policy (art 14). The Convention combines this principle of recognition with conflict rules for the celebration of a marriage in the contracting states (arts 2, 3, 5 and 6). This combination of conflict rules and recognition supplemented by some substantive rules (art 11), as well as some exceptions (arts 3 (1), 9(2) and 12(2)) and limitations of the scope of the chapter on recognition (arts 8 and 12), seems to make the application of the rules of the Convention too complicated and has resulted in criticism (Peter North, ‘Development of Rules of Private International Law in the Field of Family Law’ (1980) 166 Rec. des Cours 9, 97). In addition, in the Anglo-American world, a conflict rule providing for the application of foreign law for the celebration of a marriage has raised doubts as to its practicability (Willis Reese, ‘The Hague Convention on Celebration and Recognition of the Validity of Marriages’ (1979) 20 Va.L.Rev. 25, 32; Patrick Glenn, ‘Conflict of Laws – The 1976 Hague Conventions on Marriage and Matrimonial Property Regimes’ (1977) 55 Can.Bar Rev. 586, 590). The main objection, however, results from art 16 of the Convention, which allows contracting states to exclude the application of Chapter 1, the conflict rules for the celebration of marriage. Thus, contracting states would have to recognize marriages even if the state of celebration did not apply the conflict rules of the Convention.

On the other hand, the ‘synthèse de deux systèmes’ (Georges Droz, ‘Cours général de droit International privé’ (1991) 177 Rec. des Cours 154) – private international law rules on celebration and rules of recognition on validity – combined with enumerated grounds for refusal copies the pattern of international conventions (and EU regulations on the recognition of judgments) and may be a model for the future (Hans van Loon, ‘Unification and Cooperation in the Field of International Family Law: A Perspective from The Hague’ in Alegría Borrás and others (eds), E Pluribus Unum, Liber Amicorum Georges Droz (Kluwer 1996) 173, 179), although a number of problems still have to be dealt with.

A similar, but in some respects different, approach is taken by the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption, 1870 UNTS 167; 32 ILM 1134): art 23(1) obliges the Contracting States to recognize ipso iure as →CIEC/ICCS (International Commission on Civil Status) adoption ‘certified by the competent authority of the state of the adoption as having been made in accordance with the Convention’. Instead of choice-of-law rules, the Convention contains substantive and procedural rules which set standards to be applied in preparing and establishing the adoption as well as in relation to the effects of an adoption. Ensuring compliance with certain minimum standards irrespective of the applicable or p. 1502applied law and legal security for the persons concerned, especially the best interests of children, is the main goal of this Convention. The Convention has been ratified by 93 states; thus, its concept seems to be convincing at least in this field of law.

Finally, it has to be mentioned that the recognition of a legal situation established in another jurisdiction might be required by art 8 ECHR (European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221) as far as civil status and family life is concerned, even if private international law would not lead to this result (see Patrick Kinsch, ‘Recognition in a Form of a Status Acquired Abroad – Private International Law Rules and European Human Rights Law’ in Katharina Boele-Woelki, Talia Einhorn and Daniel Girsberger (eds), Convergence and Divergence in Private International Law, Liber Amicorum Kurt Siehr (Schulthess 2010) 259, 22, 274).

3. National laws

Swiss and Dutch laws on the validity of a →marriage celebrated abroad are often analysed with regard to their choice-of-law approach: do they apply the concept of recognition of a legal situation or do they follow (more or less) the traditional private international law approach applying the lex loci actus/celebrationis? The →Netherlands have ratified the Hague Marriage Convention and have implemented the rules on the recognition (→Human rights and Private International Law) of a marriage celebrated abroad (art 9 of the Convention) in Book 10 Dutch New Civil Code (Nieuw Burgerlijk Wetboek of 1 January 1992, available at <http://wetten.overheid.nl>; arts 27 et seq). But as art 31(3) also refers to the private international rules of the place of celebration, this approach should be classified as a private international law solution. Article 24 provides for the recognition of surnames and forenames (→Names of individuals) recorded outside the Netherlands if the instruments have been drawn up by a competent authority in accordance with the local provisions. Is this a private international law rule referring to the lex loci actus?

According to art 45 Swiss Private International Law Act (Bundesgesetz über das Internationale Privatrecht of 18 December 1987, 1988 BBl I 5, as amended), a →marriage validly celebrated abroad will be recognized in →Switzerland regardless of the law applied at its celebration (Switzerland is not a contracting state of the Hague Marriage Convention, but follows a comparable approach; see Pierre Lalive, ‘La Convention de la Haye du 14 mars 1978 sur la célébration et la reconnaissance de la validité des mariages’ (1978) 34 SchwJbIntR 31, 45). The question of which law governs the validity of the marriage is left open (Kurt Siehr, Das Internationale Privatrecht der Schweiz (Schulthess 2002) 22). This might be classified as the relevance of the ‘ordinamento competente’ ‘in blocco’, a theory developed by Paolo Picone (inter alia in Jürgen Basedow and others (eds), Private Law in the International Arena – From National Conflict Rules Towards Harmonization and Unification – Liber Amicorum Kurt Siehr (Asser 2000) 569, 585). This theory goes beyond the rules of reference of private international law and comes very close to the concept of ‘recognition’ of a legal situation.

4. Arguments in favour and against the new approach

Rules on the recognition of legal situations evidenced by documents cannot supersede and displace rules of private international law. Private international law rules are needed to determine the applicable law within a jurisdiction. Rules on recognition may only supplement choice-of-law rules.

It has been highlighted at several instances that the concept of recognition would facilitate solutions for trans-border problems and prevent ‘limping’ legal situations (Paul Lagarde, ‘Développements futurs du droit international privé dans une Europe en voie d’unification: quelques conjectures’ (2004) 68 RabelsZ 225; Dagmar Coester-Waltjen, ‘Anerkennung im Internationalen Personen-, Familien- und Erbrecht und das Europäische Kollisionsrecht’ [2006] IPRax 392, 394). Whereas the application of the private international law rules of the forum might produce different results in the various jurisdictions, the ‘recognition approach’ would allow the persons concerned to rely on a legal situation evidenced by a document wherever they are and at whatever time the question of validity arises (Paul Lagarde, ‘Développements futurs du droit international privé dans une Europe en voie d’unification: quelques conjectures’ (2004) 68 RabelsZ 225, 231). The institutions dealing with the document would not have to examine their own choice-of-law rules, or those of the issuing state, or the factual situation. The recognition approach could also be applied to p. 1503private acts whenever they are certified by a document of a competent authority (Patrick Kinsch, ‘Recognition in a Form of a Status Acquired Abroad – Private International Law Rules and European Human Rights Law’ in Katharina Boele-Woelki, Talia Einhorn and Daniel Girsberger (eds), Convergence and Divergence in Private International Law, Liber Amicorum Kurt Siehr (Schulthess 2010) 259, 274; see also Singh v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075 on adoption by private act). The threat posed by a great variety of substantive and conflict rules to transnational activities would be greatly reduced.

Nevertheless, some important counter-arguments have been brought forward against recognition as a concept for dealing with transnational problems: first, this concept is not needed because many of the problems arising from the application of the private international law rules of the forum can be avoided by the unification of those conflict rules (Hans Jürgen Sonnenberger, ‘Anerkennung statt Verweisung? Eine neue internationalprivatrechtliche Methode’ in Jörn Bernreuther and others (eds), Festschrift für Ulrich Spellenberg (Sellier 2012) 371, 389). Especially within the EU, unified private international law is needed to prevent forum shopping (→Forum (and law) shopping). This should be the paramount consideration of the European legislator. If all EU Member States apply the same conflict rule, for instance on the formation of a marriage, the marriage validly concluded according to the applicable law will also be regarded as valid in another forum because the private international rules of the forum lead to the same law and therefore, at least in principle, to the same result. Private international law rules can even take care of changes in the →connecting factors without risking potential pitfalls to the legal situation created before the change (see art 16(3) Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391)). Thus, recognition as an additional method of dealing with transnational problems might only complicate the situation.

However, outside the EU agreements on private international law, rules concerning the respective legal situations might be even more difficult to achieve than within the EU. Rules on the mutual obligation to recognize a certain status when established abroad might be easier to agree upon because they would leave the national conflict rules unchanged. Even in the French debate, the importance of saving the national traditional conflict rules from changes by the European legislator is widespread (Paul Lagarde, ‘Développements futurs du droit international privé dans une Europe en voie d’unification: quelques conjectures’ (2004) 68 RabelsZ 225, 226, 229). By getting around the conflict-of-law issue, the ‘dogma’ of applying always the →lex fori or the dominance of →nationality or habitual residence (→Domicile, habitual residence and establishment) as connecting factors need not be dealt with. Another possibility would be to supplement unified conflict rules with the principle of recognition of legal situations established abroad (like the Hague Marriage Convention proposes in principle, save art 16; see above). Some propose applying the recognition concept (only) in connection with a →choice of law by the parties (Charalambos Pamboukis, ‘La renaissance –metamorphose de la méthode de reconnaissance’ (2008) 67 Rev.crit.DIP 513 et seq) or with a strict lex fori rule (Gian Paolo Romano, ‘La bilatéralité éclipsée par l’autorité: développements récents en matière d’état des personnes’ (2006) 65 Rev.crit.DIP 458, 507). Recognition on the basis of unified private international law rules will dispense with an examination of the applicable law and thus reduce the barriers to transnational activities, although it still presumes mutual trust in the authorities issuing the respective documents.

A second counter-argument is the potential distrust of the institutions issuing the documents. Did they issue a certificate which documents the legal situation correctly? Very often, foreign authorities seem even less trustworthy than foreign courts. Will they have applied a law which, from the point of view of the forum, has at least some connection to the situation evidenced? Which documents can be recognized, which institutions may issue these documents and which institutions may be regarded as competent (Pierre Mayer, ‘Les méthodes de la reconnaissance en droit international privé’ in Bertrand Ancel and others (eds), Le droit international privé: esprit et méthodes Mélanges en l’honneur de Paul Lagarde (Dalloz 2005) 547, 553)? In addition, there may also be distrust of the persons concerned: did they take advantage of a law (or institution) solely in order to escape the impediments of the normally applicable law (→Evasion of laws (fraus legis))? Did they cheat p. 1504when applying for the document? It might have been much easier to make false statements in a foreign jurisdiction than at home.

Recognition therefore seems only to be acceptable as long as certain minimum standards are guaranteed. This could be achieved by providing for the observance of some substantive and procedural principles irrespective of the laws applied. The success of the Hague Adoption Convention seems to speak for this solution. The distrust of foreign institutions or authorities and of the persons concerned may be overcome, notably by a limited agreement on certain principles with regard to the respect for human rights (→Human rights and Private International Law). A detailed instrument on the recognition of certain legal situations evidenced by documents might allow important principles of private law (for example, no recognition of child marriages) and fundamental values that are internationally accepted (such as favor matrimonii, best interests of the child as paramount consideration) to also be taken into account.

Third, the concept as it stands remains more or less obscure (Heinz-Peter Mansel, ‘Anerkennung als Grundprinzip des Europäischen Rechtsraums’ (2006) 70 RabelsZ 651, 720). Which effects will follow from the recognition of the legal situation? Will the legal situation be accepted as to the foreign law ‘in blocco’? Will the legal situation have the same effects as in the state of origin or the effects which such a legal situation would have in the state of recognition if it were established there (Pierre Mayer, ‘Les méthodes de la reconnaissance en droit international privé’ in Bertrand Ancel and others (eds), Le droit international privé: esprit et méthodes Mélanges en l’honneur de Paul Lagarde (Dalloz 2005), 547, 555)? For example, may paternity be contested in accordance with the rules of the jurisdiction where the paternity has been documented or with those of the recognizing state? Will the recognition extend to procedural issues and preliminary questions (Vorfragen)? However, the effects could be defined in a convention on a similar level of detail as the Hague Adoption Convention (→Adoption) (Paul Lagarde, ‘Développements futurs du droit international privé dans une Europe en voie d’unification: quelques conjectures’ (2004) 68 RabelsZ 225, 235).

Finally, despite the openness towards legal situations created abroad, a refusal to recognize for →public policy reasons must be provided for. To this extent, a principle of recognition of legal situations evidenced by documents alone does not resolve all the problems of cross-border activities. A more detailed conception is needed (Christian Kohler, ‘Der Einfluss der Globalisierung auf die Wahl der Anknüpfungsmomente im Internationalen Familienrecht’ in Robert Freitag and others (eds), Internationales Familienrecht für das 21. Jahrhundert, Symposion Spellenberg (Sellier 2006) 9, 24).

The →CIEC/ICCS (International Commission on Civil Status) and the Hague Conventions as well as the Swiss and the Dutch rules may serve as a source of inspiration. But the mix of conflict rules, substantive and procedural standards, limitations on the scope of recognition with regard to the types of documents and the authorities competent to issue the respective documents, as well as the grounds for refusal of recognition (‘multiplication’ of the kinds of law; see Jürgen Basedow, ‘The Effects of Globalisation in Private International Law’ in Jürgen Basedow and Toshiyuki Kono (eds), Legal Aspects of Globalisation (Kluwer 2002) 1, 4), make a systematic and convincing approach (acceptable as a method of private international law) very difficult.

Literature

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