Week 1-5 Private law 2.docx

Family Law, Corporate Law & Civil Procedure Summary Week 1 Introduction Sources, interplay with PIL, the relevance of ECtHR in family matters, and free movement of families Introduction to family law ♣  Definition of family law ♣  Trends in family law ♣  Legislative framework ♣  ECtHR What does...

Family Law, Corporate Law & Civil Procedure Summary Week 1 Introduction Sources, interplay with PIL, the relevance of ECtHR in family matters, and free movement of families Introduction to family law ♣  Definition of family law ♣  Trends in family law ♣  Legislative framework ♣  ECtHR What does the word ‘family’ mean? ♣  Personal ♣  Legal Symbolic ♣  Religious Definitions of ‘Family’ – conceptual 1 A family is a married, civil partnered or cohabitating couple with or without children, or a lone parent, with at least one child, who live at the same address. 2 A family is a group of people related to each other, especially parents and their children. ♣  Blood relatives ♣  Group of relatives with the same name In 2014, the US Census Bureau began including same-sex marriages in its family counts. Before this, they were counted as cohabiting partners and thus not considered to form a family. Family law – Definition Definition Legal regulation of adult relationships and parent-child relationships, together with the financial aspects of such relationships. Dutch: Personen- en familierecht English: The law of persons and family law Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ‘Regardless of whether globalization is to be applauded or condemned, it has undeniably brought more people and cultures together. The result for the family law practitioner is a world of new and challenging legal issues and new possibilities prompted by the cross-fertilization of legal ideas.’ D. Blair & M. Weiner, Family law in the Word Community Issues, addressed by the family law ♣  Marriage & divorce ♣  Unmarried cohabitation ♣  Name: Surnames and first names ♣  Parentage ♣  Parental authority/responsibility ♣  Child support/ Spousal maintenance ♣  Matrimonial property law ♣  Inheritance law Comparative v. International family law ‘Comparative family law’ 1 Focuses on developments with its great variety of family law systems 2 Comprises a general, instructive and pointed comparison of the American and European family law systems, and eventually take into account – as far as this has been possible – all family law systems in the world. ‘International family law’ 1 Entails the rules for cross-border family relations on the one hand, and 2 The body of international and (European) instruments and decisions of supranational courts which regulate family relationships, on the other. International family law consists of, among other things: ♣  International names ♣  International marriages ♣  International divorce ♣  International matrimonial property law ♣  Registered partnerships abroad ♣  International custody ♣  International adoptions ♣  International parentage ♣  International child abductions Gedownload door emmanuella gulijeva ([email protected]) Trends in Family law lOMoARcPSD|2444199 In Europe: Fewer marriages, more divorces More trends in family law 1 Rise in births outside marriage 2 Custody awards are becoming gender neutral 3 Co-parenting 4 Status of children within family law 5 Same-sex couples in Europe: More rights in more countries 6 Alternative dispute resolution – Non-confrontational approach to family problems Legislative framework – Sources National level – Every country ♣  Legislation: Constitution, civil code and statutes ♣  Case law, doctrine International level ♣  Cross border family law/private international law ♣  Regional: EU, e.g. Regulation 1111/2019 Parental responsibility and divorce rules of jurisdiction, Charter of EU ♣  Regional: Inter-American HR Court Global rights ♣  United Nations United Nations Convention on the Rights of the Child (UNCRC) Human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children ♣  Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention) Human rights ♣  Convention for the Protection of Human Rights and Fundamental Freedoms ♣  Case law: The practical application of Article 8 thereof developed by the European Court of Human Rights Legislative actions of the EU in the field of PIL and family law Although family law remains the competence of EU countries, the EU can legislate on family law if there are cross-border implications Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣  The question at which court a divorce application should be filed and which country’s law is applicable to the divorce ♣  The issue of child custody across borders ♣  The enforcement of maintenance obligations abroad ♣  Succession issues in the event of death Article 81(3) TFEU Special legislative procedure is in place for such situations: All EU countries have to agree (unanimity) and the European Parliament must be consulted: ‘(...) measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.’ Free movement of families ♣  All EU citizens and their family members have the right to move and reside freely within the EU Fundamental right established by Article 21 of the TFEU and Article 45 of the EU Charter of Fundamental Rights ♣  Family members of EU citizens, either EU citizens or nationals of a non-EU country, have the right to accompany or join EU citizens in another EU Member State. They may be asked to comply with certain conditions or formalities ♣  This right is enjoyed by all Union citizens irrespective of their sexual orientation ♣  BUT... Parenthood established in one EU country may not be recognized in another. This can lead to problems when travelling or moving to another EU country, and can endanger a child’s rights derived from parenthood (E.g. on maintenance, succession) ♣  Pancharevo case, CJEU ♣  Proposal for a EU COUNCIL REGULATION on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood The role of the public policy ♣  A doctrine, which addresses the principles, typical for certain country or region, that underpin the operation of the legal system ♣  Affects the whole population ♣  It concerns values, that change and evolve with the time ♣  The law in general is most effective when it corresponds the general social norms Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 European Convention on Human Rights ♣  Convention for the Protection of Human Rights and Fundamental Freedoms ♣  Opened for signature in Rome on 4 November 1950 and came into force in 1953 ♣  The first instrument to give effect to certain of the rights stated in the Universal Declaration of Human Rights and make them binding Articles to be studied Art. 8 Right to respect for private and family life 1 ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ 2 ‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ Art. 12 Right to marry ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’ Art. 14 Prohibition of discrimination ‘The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ ECtHR and ECJ ♣  European Court of Human Rights only has jurisdiction over Member States that are signatories to the European Convention on Human Rights ♣  ECHR and ECtHR are both part of the Council of Europe which has 46 member states (including Greenland as part of Denmark), Russia is not a member as of March 2022 ♣  All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity ♣  The Court of Justice of the European Union is ensuring UN law is interpreted and applied the same in every EU country, and ensuring countries and EU institutions abide by EU law Private and family life Gedownload door emmanuella gulijeva ([email protected]) Private life is not family life lOMoARcPSD|2444199 Private life The right to private life embraces personal autonomy ♣  The right to make choices regarding one’s own life without interference by the state ♣  To develop one’s own personality and to establish relationships with others ♣  To communicate ♣  Aspects: The physical and psychological integrity of a person, sex life and gender, personal data, reputation, names and photos Family life Family life extends to the legally acknowledged ties between persons related by blood or marriage ♣  Husband and wife ♣  Parent and child ♣  Ties between siblings, grandparents and grandchildren or uncle/aunt and nephews/niece Family life – ECtHR key findings ♣  The essential ingredient of family life ϖ The right to live together so that family relationships may develop normally (Marckx v. Belgium) and members of the family may enjoy each other's company (Olsson v. Sweden) ♣  The notion of family life is an autonomous concept (Marckx v. Belgium) ϖ Whether or not ‘family life’ exists is essentially a question of fact depending upon the real existence in practice of close personal ties (Paradiso and Campanelli v. Italy (GC), §140) ♣  The Court will therefore look at de facto family ties ϖ Applicants living together, in the absence of any legal recognition of family life (Johnston and Others v. Ireland, §56) ♣  Other factors will include the length of the relationship ϖ In the case of couples, whether they have demonstrated their commitment to each other by having children together (X, Y and Z v. the United Kingdom, §36) ♣  In Ahrens v. Germany, §59 ϖ The Court found no de facto family life where the relationship between the mother and the applicant had ended approximately one year before the child was conceived and the ensuing relations where of a sexual nature only Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 Private life – ECtHR key findings ‘Broad concept incapable of exhaustive definition’ ♣  Niemietz v. Germany, §29 ♣  Pretty v. the United Kingdom, §61 ♣  Peck v. the United Kingdom, §57 May ‘embrace multiple aspects of the person’s physical and social identity’ ♣ S. and Marper v. the United Kingdom (GC) General acknowledgement of the importance of privacy and the values to which it relates ♣  Well-being and dignity ϖ Beizaras and Levickas v. Lithuania, §117 ♣  Personality development ϖ Von Hannover v. Germany (no.2) (GC), §95 ♣  Physical and psychological integrity ϖ Söderman v. Sweden, (GC), §80 ♣  Relations with other human beings ϖ Couderc and Hachette Filipacchi Associes v. France (GC), §83 ♣  The protection of personal data ϖ M.L. and W.W. v. Germany, §87 And a person’s image ϖ Reklos and Davourlis v. Greece, §38 Von Hannover v. Germany (2004) Breach of Article 8: Scenes from daily life, involving activities such as engaging in sport, out walking, leaving a restaurant or on holiday were of a purely private nature Article 8 Correspondence and home Home: Whether a habitation constitutes a ‘home’ under the protection of Article 8 §1 depends on the factual circumstances, namely the existence of sufficient and continuous links with a specific place (Winterstein and Others v. France, §141) ♣  Not limited to property of which the applicant is the owner or tenant ♣  Not limited to those which are lawfully established ♣  Not limited to traditional residences It therefore includes, among other things, caravans and other unfixed abodes ♣  Extends to an individual’s business premises University professor’s office (Steeg v. Germany) Place where private life and family life develops Gedownload door emmanuella gulijeva ([email protected]) The right to enjoy you existing home peacefully – Public authorities should not stop you entering or living in your home without very good reason, and they should not enter without your permission. Correspondence: By all means communication with other people ♣  The right to have uninterrupted and uncensored communication with others ϖ Phone-tapping ϖ Email surveillance ϖ Reading of letters ♣  Evolves in time ϖ Telexes Christie v. the United Kingdom, Commission decision ϖ Pager messages Taylor-Sabori v. the United Kingdom ϖ Private radio broadcasting X and Y v. Belgium, Commission decision ϖ Electronic messages (emails) Copland v. the United Kingdom, §41 Bărbulescu v. Romania (GC), §72 ϖ Internet use Copland v. the United Kingdom, §§41-42 ϖ Data stored on computer servers Wieser and Bicos Beteiligungen GmbH v. Austria, §45 ϖ Hard drives Petri Sallinen and Others v. Finland, §71 lOMoARcPSD|2444199 Has there been an interference? Is it in accordance with the law? Is it necessary and proportionate? Is there a legitimate aim? Negative or positive act There must be a specific legal rule or regime which authorizes the interference The interference corresponds to a pressing social need Article 8: ‘In the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’ There may be positive obligations inherent in an effective respect for private life (Lozovyye v. Russia, §36) The law must be sufficiently clear in its terms of give citizens an adequate indication of the conditions and circumstances in which the authorities It is proportionate to the legitimate aim pursued ϖ Floppy disks Iliya Stefanov v. Bulgaria, §42 Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 Interpretation of Article 8 ‘Margin of Appreciation’ ♣  The term ‘margin of appreciation’ refers to the space for manoeuvre that the ECtHR is willing to grant national authorities, in fulfilling their obligations under the European Convention on Human Rights ♣  The degree of flexibility accorded to the States in determining whether certain measures are necessary ♣  Purpose ϖ The margin of appreciation gives the flexibility needed to avoid damaging confrontations between the Court and the Member States and enables the Court to balance the sovereignty of Member States with their obligations under the Convention ♣  Legal basis ϖ May be found in jurisprudence, not only that of the French Conseil d’état, which has used the term, ‘marge d’appreciation’, but also that of the administrative law system within every civil jurisdiction ♣  Little discretion permitted interfering with the private life ϖ Dudgeon v. UK, 1981 Prohibition on homosexual relations is not acceptable ♣  Greater margin E.g. ϖ For the right to marry, each state can specify the legal capacity requirements Interpretation of Article 8 Burden of proof in ECtHR cases Burden of proof – The obligation to present evidence to prove the claims What does the applicant have to prove? ♣  The issue is within the scope of the Article 8 ♣  There is interference What does the States have to prove? ♣ The interference with the Article 8 right is justified in the terms provided by Article 8(2) Examples: Freedom of movement – prison, right to marry Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 Marckx v. Belgium (Application no. 6833/74) The judgement ♣  Breach of Articles 8 and 14 ECHR ♣  Article 8 makes no distinction between the legitimate and illegitimate family ♣  Article 8 does not merely compel the State to abstain from such interference: In addition there may be positive obligations Case Law 1 ECtHR, Marckx v. Belgium, 13 June 1979 Marckx v. Belgium (ECtHR, Application no. 6833/74) ♣  Alexandra Marckx was born on 16 October 1973 at Wilrijk, near Antwerp; she is the daughter of Paula Marckx, a Belgian national, who is unmarried and a journalist by profession. ♣  Paula Marckx duly reported Alexandra’s birth to the Wilrijk registration officer who informed the District Judge. ♣  Paula Marckx recognized her child in accordance with the Civil Code and became Alexandra’s guardian and later Paula Marckx adopted her daughter pursuant to the Civil Code. The procedure entailed certain enquiries and involved some expenses. ♣  Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth: Whilst the birth certificate recorded at the registry office suffices to prove the maternal affiliation of a married woman’s children (Article 319 of the Civil Code), the maternal affiliation of an ‘illegitimate’ child is established by means either of a voluntary recognition by the mother or of legal proceedings taken for the purpose. The legal issue: Difference in the legal position of ‘legitimate’ and ‘illegitimate’ child Under Belgian law, there is no legal bond between an unmarried mother and her child by the fact of birth. ♣  Even once such affiliation has been established, it in principle creates a legal bond with the mother alone. The child does not become a member of his mother’s family. ♣  The law excludes it from that family as regards inheritance rights. ♣  If the child’s parents are dead or under an incapacity, he/she cannot marry, before attaining the age of twenty-one, with consent which has to be given by his guardian and not, as is the case for a ‘legitimate’ child, by his grandparents. Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣ The law does not expressly create any maintenance obligations, etc., between the child and his grandparents. 2 ECtHR, Goodwin v. UK, 11 July 2002 Statement of facts ♣  Christine Goodwin was a United Kingdom citizen born in 1937, and a post- operative male-to-female transsexual ♣  Through she married a woman and had four children, her conviction was that her ‘brain sex’ did not fit her body ♣  In 1990, she underwent gender reassignment surgery at a National Health Service hospital. Her treatment and surgery were provided for and paid for by the National Health Service ♣  Later, the applicant divorced her former wife (the date is unspecified) but continued to enjoy support and love from her children ♣  The applicant claims that between 1990 and 1992 she was sexually harassed by colleagues at work ♣  She attempted to pursue a case of sexual harassment in the Industrial Tribunal but claimed that she was unsuccessful because she was considered in law to be a man ♣  The applicant was subsequently dismissed from her employment for reasons connected with her health but alleges that the real reason was that she was a transsexual ♣  The applicant began working for a new company in 1996 and was asked for her National Insurance (NI) number ♣  She was concerned that thereby her new employer would be able to trace her details so she requested the Department of Social Security (DSS) for a new NI number ♣  The DSS Contributions Agency informed the applicant that she would be ineligible for a State pension at the age of 60, the UK-required retirement age for women ♣  In April 1997, the DSS informed the applicant that her pension contributions would have to be continued until she became 65, the eligibility age for men, namely April 2002 ♣  The DSS marked the applicant’s files as ‘sensitive’ to ensure that only an employee of a particular grade could access them ♣  Despite the ‘special procedures’, her record still lists her gender as male ♣  The applicant claimed that in a number of situations, she had to decide between disclosing her birth certificate and forgoing certain advantages that required her to do so Legal issues ♣  Under UK law a transgender can gain full recognition of their acquired gender, they adopt almost all the rights of their trans sex including equal marriage rights ♣  Violation of Article 8 of the European Convention of Human Rights ϖ Right to respect for a private and family life Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣  Violation of Article 12 of the European Convention of Human Rights ϖ Right to marry ♣  Violation of Article 13 of the European Convention of Human Rights ϖ Right to an effective remedy ♣  Violation of Article 14 of the European Convention of Human Rights ϖ Prohibition of discrimination Outcome of the court Article 8 ♣  Court states that the UK had considerable case-law to justify the decision not to change Ms. Goodwin’s birth certificate ♣  Court also acknowledged that it would have to respond to evolving standards for the ECHR to remain effective ♣  Court held that a violation of article 8 was present ♣  Court held that the consequences of change in the applicant’s status to a transsexual in the birth register did not appear to cause any hardship to the society Article 12 ♣  Court held that there had been a breach, as it found that transsexuals have been deprived of their right to marry ♣  The applicant in this case lives as a woman, is in a relationship with a man and would only wish to marry a man ♣  In the Court’s view, she may therefore claim that the very essence of her right to marry has been infringed Article 13 and 14 ♣  Court held that there was no violation of article 13 ♣  Court held that article 14 had been breached, however it did not cover additional issues not yet covered by article 8 Damages ♣ Court held that Ms. Goodwin must be granted 39.000 pond in compensation for damages caused by the violations concluded by the court Week 2 Adult relationships Marriage, divorce and non-marital relationships Religious marriages ♣  Religious ceremonies must be held by appropriately authorized celebrants, including priests, ministers and pagan, interfaith and humanist celebrants ♣  Christians: Marriage is a gift from God, one that should not be taken for granted; It is the right atmosphere to engage in sexual relations and to build a family life Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣  The purpose of marriage in Islamic culture is to preserve the religion through the creation of a family ♣  India: Essential for virtually everyone, marriage is the great watershed in life, marking the transition to adulthood ‘Live with them in kindness; even if you dislike them, perhaps you dislike something in which Allah has placed much good.’ (Quran, 4:19) ‘So they are no longer two but one flesh. What therefore God has joined together, let not man separate.’ (The Bible, Matthew 19:6) Polygamy ♣  ‘Marrying multiple spouses’ ♣  Legally recognized in 58 of around 200 sovereign states ♣  Many Muslim majority countries, African countries ♣  In some countries bigamy is punishable criminal offence ♣  In 2000, the United Nations Human Rights Committee reported that polygamy violates the International Covenant on Civil and Political Rights (ICCPR) Covenant marriage ♣  Specific type of legal marriage in USA ϖ Arizona, Arkansas, Louisiana ♣  1997 ϖ Louisiana became the first state to pass a covenant marriage law ♣  Under Louisiana law, a covenant marriage is one that is entered into by a man and a woman who agree to be married for their lifetimes ♣  The spouses agree on certain grounds for divorce ϖ Adultery, felony, abuse, etc. ♣  Two-tiered system of marriage designed to strengthen the family ϖ Mandatory counselling and strict divorce grounds Legal framework Swedish marriage Code 1920 ♣ End of hierarchy and beginning of equality between men and women ϖ  New property regime, deferred community of property, latent claim for the half of the net value of the marital property in case of divorce ϖ  Women can administer their own property ϖ  Women can be legal guardian of own children ϖ  However: Men working outside the house, earning the family income, women doing household and taking care of children ϖ  But household or job outside the house was seen as equally valuable Gedownload door emmanuella gulijeva ([email protected]) Marriage in other European countries lOMoARcPSD|2444199 The Netherlands ♣  1957: The incapacity of married women is abolished, women can administer own property/community of property Until 1970 in the Dutch family code says ‘husband is the head of the family’ ‘Vrij Nederland’ newspaper, 1949: ‘...the man can hardly stay at home all day to pay the baker and the milkman. He’s got better things to do!’ Spain ♣  1981: Full capacity of women ♣  Regime of General Franco until 1975 promoted traditional gender roles through the law within a Catholic religious climate ♣  The emancipation is contrary to the political goals ♣  1981 reform aims at equality and household work is explicitly mentioned as a contribution France ♣  1985 Reform Act ϖ Full equal rights of participation in matters regarding the joint properties ♣  The husband is no longer head of the family Germany ♣ 1953 ϖ Full legal capacity for women, administers own property ♣ 1957 ϖ New marital property regime Household work, income from work outside the house, equal contribution Cohabiting without marriage, same-sex and transgender marriages ♣  Change of notion of marriage ϖ Love, mutual sexual attraction, equality ♣  1970’s ϖ Marriage is private matter, no state interference ♣  As a result ϖ Increase of acceptance of cohabitation without marriage and same-sex marriages ♣ 2020 ϖ Some countries recognize same-sex marriages, other recognize some other form of civil union No consensus in Europe, still controversial (Eastern Europe), wide margin of appreciation ♣  Schalk and Kopf v. Austria, 2010 ϖ Protection of the family life under art.8 ♣  Gas and Dubois v. France, 2012 Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ϖ Excluding same-sex couples from access to marry is not discriminatory, no violation of art.14 ♣ Goodwin v. UK, 2002 ϖ Transsexual person has the right to marry a person of the opposite sex under art.12 Same sex marriage ♣  1 April 2001 ϖ The Netherlands is the first country in the world to open marriage to the same-sex couples ♣  Germany in June 2017 ϖ Angela Merkel voting against it stating marriage should be between a man and a woman ♣  The opposing trend towards increasing the prohibition of same sex relationships ϖ At least 25 jurisdictions set a constitutional limitation man-woman 32 countries currently where same-sex marriage is legal Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile (2021), Colombia, Costa Rica (2020), Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia (2022), South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America and Uruguay How would you define marriage? ♣  A complex and dynamic institution ϖ Legal or symbolic relationship between persons, creating rights and obligations, as well as between them and any resulting biological or adopted children ♣  No definition so far ϖ Also not in the new Brussels Ilter Regulation ♣  Highly controversial issue Capacity to enter into marriage ♣  In order to contract a valid marriage, the parties must possess the legal capacity to marry and must comply with certain formalities ♣  A marriage is valid when both formal and essential requirements have been met Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 Essential validity of marriage (intrinsic conditions) ♣  To have the capacity to marry ♣  To have agreed to the marriage with free consent and free of force Formal validity of marriage (extrinsic conditions) ♣ To perform certain ceremonies Essential validity of marriage (intrinsic conditions) To have the capacity to marry ♣ To be legally entitled to marry, both must fulfil all the requirements at the time the marriage takes place ϖ  Beover...yearsofage ϖ  Be either single, widowed, divorced, a former civil partner of a civil partnership that ended through death or dissolution, or have had a civil annulment of a marriage or civil partnership or a valid foreign divorce or dissolution ϖ  Have the mental capacity to understand the nature of marriage ϖ  Not be related by blood or marriage to a degree that prohibits you in law from marrying each other To have agreed to the marriage with free consent and free of force ♣ ‘Free consent’ may be absent if, at the time of the marriage ϖ  A person is suffering from intoxication, brain damage, mental disability, mental instability or insanity to the extent that they are not able to understand the implications of marriage ϖ  If someone agrees to marry because of threats or intimidation, their apparent consent may also be invalid and the marriage may be void Minimum age for marriage ♣  ECHR ϖ Guarantees the right to marry for those of ‘marriageable age’ according to national laws (Article 12) ♣  Exceptions ϖ Most national legislation allows children to marry at a younger age with the consent of a public authority and/or the consent of their parents. This lower age is mostly set at 16 years ♣  Lithuania, Bulgaria, etc. ϖ A child can marry with consent from the age of 16 years; however, in the case of pregnancy, the court may allow the pregnant child to marry even before that age Gedownload door emmanuella gulijeva ([email protected]) Article 12: Right to marry lOMoARcPSD|2444199 ♣  The protection of the ‘family life’ is more extensive than the protection of the ‘private life’ ♣  Gradually extension of the relationships, considered as ‘family’ ♣  Dynamic interpretation model ♣  Unmarried couples and same-sex couples are granted a certain level of protection ♣  F v. Switzerland, 1987 – Reducing the moral input in the marriage regulation ϖ  According to Swiss law adulterous party could not remarry within three years ECtHR ϖ  Breach of article 12: Undermining the essence of the right to marry ♣  Goodwin v. UK, 2002 ϖ Transsexual person who had undergone gender reassignment surgery was not allowed to marry someone of the opposite sex Breach of article 12 ♣  Gas & Dubois v. France, 2012 ϖ ECtHR: No right to marry for same sex couples, no breach of article 12 Divorce ♣  Great diversity of divorce laws in Europe ♣  Political and ideological sensitivities ♣  Compromises between conservative and progressive camps Divorce – ECtHR view ♣  The right to dissolve a marriage in Europe never attained status of human right protected under ECHR nor under EU law (Johnston & others vs Ireland) ♣  ECtHR has reiterated that neither Article 8 nor Article 12 grant a right to divorce (Andrzej Piotrowski against Poland (2016) (no 8923/12) and Babiarz v Poland (2017) (no 8923/12) ♣  ‘In the area of framing their divorce laws and implementing them in concrete cases, the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention and to reconcile the competing personal interests at stake.’ Babiarz v Poland (2017) Divorce grounds In every marriage more than a week old, there are grounds for divorce. The trick is to find, and continue to find, grounds for marriage. ♣ Fault-based divorce (divorce-sanction) ϖ The state is a guardian of universal morality, and has to punish the spouse who has committed a matrimonial offence Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣  Divorce upon irretrievable breakdown of marriage (divorce-remedy) ϖ The state has to protect the stability of marriage for the sake of society; and to protect the spouses from their own ill-considered decisions ♣  Divorce by mutual consent (divorce as an autonomous decision by the spouses) ϖ Nobody is in a better position to decide on the dissolution of the marriage than the spouses themselves ♣  Divorce on demand (divorce as a right) ϖ A marriage should and cannot be kept intact if even one of the spouses wishes to terminate it Fault ♣  No European country retains fault as sole ground for divorce ♣  One of the many options available ♣  Usually claimed as combination with irretrievable breakdown of marriage ♣  Matrimonial offences ϖ  Fault divorces are available to those married individuals who can prove very specific reasons why they should be divorced ϖ  Relate to the other spouse’s conduct that is considered so bad that the Court will grant the ‘innocent and injured spouse’ a divorce ♣  This type of conduct includes the following ϖ Desertion for one X years or more ϖ Adultery ϖ Cruel treatment that endangers the life or health of the other spouse ϖ Bigamy ϖ Imprisonment for more than X years ϖ Other actions making life intolerable for the innocent spouse Irretrievable breakdown ♣  ‘Catch-all’ term covering anything that can cause the end of a marriage ♣  An affair, abuse or simply irreconcilable differences which make it impossible to remain married Proven in three ways ♣  Subjective criterion alone ϖ The court is convinced the marriage cannot be saved ♣  Objective criterion alone ϖ Stated period of de facto separation, on which the accessibility of the divorce essentially depends From 1 year in Denmark to 6 years in Austria ♣  A combination of objective and subjective criteria ϖ Malta: 4-year period of separation + convincing the court of the breakdown Gedownload door emmanuella gulijeva ([email protected]) Irretrievable breakdown – UK lOMoARcPSD|2444199 UK – ‘Unreasonable behaviour’ ♣  My spouse doesn’t help out around the house and excepts me to do all of the housework, which makes me feel undervalued ♣  My spouse works long hours, leaving me to feel very lonely ♣  My spouse ignores me all the time, which makes me feel that I’m on my own ♣  My spouse dislikes my parents, and we don’t see them often, which makes me feel isolated Owens v. Owens (2018) UKSC 41 ♣  Mr. and Mrs. Owens married in 1978 and have two adult children. They are now 80 and 68 respectively. ♣  May 2015, Mrs. Owens filed a divorce petition based on s.1(2)(b) Matrimonial Causes Act 1973, which, to show that the marriage has broken down irretrievably, requires the petition to satisfy the court ‘that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’ ♣  Mr. Owens defended the case, arguing at the trial that the examples given of his behaviour were not sufficient to satisfy the test ♣  Para 44: ‘The appeal of Mrs. Owens must be dismissed. She must remain married to Mr. Owens for the time being.’ ♣  The judge found that the marriage had broken down, but that Mrs. Owens’ 27 examples were flimsy and exaggerated, and that those relied on at the hearing were isolated incidents Mutual consent ♣  The court grants divorce without looking for the reasons for it ♣  Might set additional requirements like a protection from ill-considered decisions, for example ϖ Marriage must have had a certain duration (Greece) ϖ Separation period (England) ϖ Agreement on ancillary matters as well (Spain) Divorce on demand ♣  The willing of one of the spouses is enough ♣  A spouse will be granted divorce regardless of consent ♣  It is the easiest form which fully respects the decisions of a spouse ♣  Spain/Sweden/Russia ♣  Might include reconciliation period ϖ 3or6months When multiple grounds for divorce are allowed – ‘Ground shopping’ Gedownload door emmanuella gulijeva ([email protected]) Domestic violence lOMoARcPSD|2444199 ♣  Domestic violence constitutes a human rights issue ♣  Considering domestic violence to be a ‘private matter’ violates the right of a family life ♣  Ground for divorce ϖ Fault or non-fault ground? Not only must such actions constitute a serious or repeated violation of the duties and obligations arising from the marriage, they must also make the continuation of married life intolerable. Domestic violence – Legal framework ♣  Istanbul Convention ϖ Council of Europe Convention on preventing and combating violence against women and domestic violence The first legally-binding instrument which creates a comprehensive legal framework and approach to combat violence against women Focused on preventing domestic violence, protecting victims and prosecuting accused offenders ♣  ECtHR case law ϖ Violations of articles 2, 3, 8 and 14 have been found in various cases (Opuz v. Turkey, Kontrova v. Slovakia) ♣  National legislations ϖ States have positive obligation to prevent it Non-marital relationships: Marriage v. Cohabitation ♣  Requirement to enter to ♣  Termination ♣  Property division ♣  Financial support ♣  Illness/incompetence ♣  Inheritance ♣  Origin of the children Marriage v. Cohabitation The contemporary debates are dominated by two connected issues ♣  The treatment of the same-sex couples ϖ The need to respond as in the most jurisdictions their relationship brings less than marriage ♣  The couples who have not formalized their relationship/de facto relationships ϖ Are they also entitled to legal rights and duties like in a marriage because of the fact of the relationships? Developments and creation of new legal regimes Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 Three models of registration of the partnership ♣  Monistic Portugal 2010, number of states in USA ϖ No separate registration for same-sex couples is created and the same institution open to same-sex and different-sex couples Only marriage is possible ♣  Dualistic ϖ Registry for same-sex couples and marriage for opposite-sex couples ♣  Pluralistic ϖ Couples are offered possibilities to formalize their relationship, irrespective of their gender, namely marriage or a form of non-marital registered relationship England & Wales and Scotland: Marriage to both same- and opposite-sex couples and after December 2019, registered partnership for both Types of non-marital relationships – 2 criteria New legislation – In force 01.2019 ♣  Regulation (EU) 2016/1103 of the Council Regulation of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes ♣  Regulation (EU) 2016/1104 of the Council of 24 June 2016 implements enhanced cooperation in the area of jurisdiction, applicable law, recognition and enforcement of judgements in effect heritage of registered partnerships I It therefore covers all private international law issues relating to matrimonial regimes and registered partnerships II UK (before Brexit) had opted out on the basis that it does not have matrimonial regimes within its family III A number of Eastern European countries were not willing to enter into the Regulation because of objections to registration of regimes of same-sex marriages Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 How states protect the rights of unmarried cohabitants? The position of any given jurisdiction depends on the priorities of the society The policymakers must address set of competing concerns: ♣  Protection of the institution of marriage ♣  Protection of the autonomy/private choice ♣  Protection of the economically vulnerable Criterion 1: How rights and remedies are to be accessed ♣ Opt-in regime ϖ Does not apply automatically, to have access to rights and remedies a couple must register of formalize their relationship ♣ Default/opt-out ϖ Rights and remedies apply to all cohabiting couples (with or without a set of objective criteria) but couples may opt out by agreement Criterion 2: The legal position of the cohabitants ♣ Assimilation ϖ Cohabitants are placed in in the same position as spouses ♣ Differential ϖ Cohabitants are given different – inferior – rights and remedies Types of legal regulation – How rights and remedies are to be accessed Two types of legal regulation regarding the issue which rights and remedies are to be accessed Opt-in ♣  Only if the couple has formalized the relationship ♣  Automatically applicable regime/regulation exists but does not apply by default ♣  Usually by registering – Positive act By default/opt-out ♣  For all cohabiting couples ♣  Couples who don’t want to be subject of the regime may opt-out by agreement ♣  Specific opt-out agreement or alternatively including a clause within their cohabitation agreement ♣  Not from the legal provisions, mandatory on the ground of public policy Types of legal regulation – The position of the cohabitants Assimilation ♣ Cohabitants are placed in in the same position as spouses ϖ Netherlands Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣  When the marriage is subject to a constitutional protection ϖ The assimilation is precluded ♣  Depends on the nature of the financial and property rights, enjoyed by the spouses Differential treatment ♣  Cohabitants are given different status than the spouses ♣  Less extensive rights and remedies ♣  Belgium (Cohabitation légale) ϖ Legal consequences notably in the area of taxation and succession, but less private law obligations between the parties Examples ♣  Opt-in/Assimilation: Netherlands ϖ Opt-in The registered partnership does not apply automatically to all cohabiting couples. They must ‘register’ ϖ Assimilation Dutch registered partnership is almost same as marriage ♣  Opt-in/Different: France PACS ϖ Opt-in Contractual form of civil union available for persons for organizing their joint life ϖ Differential Less rights/obligations than marriage Registered partnership ♣ Civil unions allow 2 people who live together as a couple to register their relationship with the relevant public authority in their country of residence Denmark ♣ 1989 ϖ  Registered partnerships were created by a law enacted on 7 June 1989, the world’s first such law, and came into force on 1 October 1989 ♣ 2012 ϖ  The Registered Partnership Act is repealed and replaced by the new gender-neutral marriage law EU jurisdiction who do not provide for registered partnerships ♣ Bulgaria ♣ Latvia ♣ Lithuania ♣ Poland ♣ Romania ♣ Slovakia Gedownload door emmanuella gulijeva ([email protected]) Same-sex relationships regulation Registered partnerships ♣  The Netherlands ϖ 1998 Registered Partnership ♣  France ϖ 1999 Civil Pact of Solidarity ♣  Belgium ϖ 1999 Statutory Cohabitation ♣  Germany ϖ 2001 Life Partnership ♣  Luxembourg ϖ 2005 Partnership ♣  United Kingdom ϖ 2005 Civil Partnership ♣  Switzerland ϖ 2007 Registered Partnership ♣  Ireland ϖ 2011 Civil Partnership ♣  Liechtenstein ϖ 2011 Registered Partnership ♣  Austria ϖ 2011 Registered Partnership Legal consequences – Rights and Duties Strong registration (Netherlands) ♣ When it brings consequences regarding ϖ Properties E.g. properties of each partner are considered joint property ϖ Finances E.g. relationship can result in lower income/property tax ϖ Family and inheritance E.g. when one partner dies without testament, the other is an inheritor ϖ Children E.g. when only one partner is the parent of a child, the other partner can adopt it and thus become its second parent Weak registration (France and Belgium) ♣ Less ϖ Properties ϖ Finances lOMoARcPSD|2444199 Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 Case Law 1 ECtHR, Karner v. Austria, 24 July 2003 Tenancy for surviving same-sex partner (Application No. 40016/98) ♣  The applicant claimed to have been a victim of discrimination on the ground of his sexual orientation in that he was denied the status of ‘life companion’ of the late Mr. W., thereby preventing him from succeeding to Mr. W.’s tenancy ♣  ILGA-Europe, together with Liberty and Stonewall, submitted the following ϖ  There is a sufficiently broad European consensus that unmarried same- sex partners (with or without children) enjoy ‘family life’ in the same way as unmarried different-sex partners (with or without children) ϖ  This requires that, where an unmarried different-sex partner qualifies to succeed to the tenancy of an apartment or house after the death of their partner (the legal tenant), an unmarried same-sex partner must receive the same protection against having the loss of their partner, and the trauma of bereavement, compounded by the hardship of suddenly losing their home ♣  The European Court of Human Rights delivered its judgement in 2003 ♣  The Court recognized that the subject matter of the application involved an important question of general interest not only for Austria but also for other States Parties to the Convention. In this connection the Court referred to the submissions made by ILGA-Europe, Liberty and Stonewall, whose intervention in the proceedings as third parties was authorized as it highlighted the general importance of the issue (para 27). The Court reiterated that differences based on sexual orientation require particularly serious reasons by way of justification. It found that the Government had not offered convincing and weighty reasons justifying the discriminatory treatment against the partner of the same sex, which thus constituted a violation of Article 14 of the Convention taken in conjunction with Article 8 2 ECtHR, Johnston v. Ireland, 18 December 1986 Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – Convention proceedings The applicants were an unmarried couple who could not marry, and so legitimate their daughter, the third applicant, because the Irish Constitution did not permit divorce. They relied on article 14 in conjunction with article 8, arguing that they had been discriminated against on grounds of their limited financial means, since (had they been better off) they could have obtained a divorce by the expedient of a spell of residence outside the Republic. Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 Held: The complaint was rejected in short measure: ‘Article 14 safeguards persons who are ‘placed in analogous situations’ against discriminatory differences of treatment in the exercise of the rights and freedoms recognized by the Convention. The court notes that under the general Irish rules of private international law foreign divorces will be recognized in Ireland only if they have been obtained by persons domiciled abroad. It does not find it to have been established that these rules are departed from in practice. In its view, the situations of such persons and of the first and second applicants cannot be regarded as analogous.’ The ECtHR said: ‘.. the Court agrees with the Commission that the ordinary meaning of the words ‘right to marry’ is clear, in the sense that they cover the formation of marital relationships but not their dissolution. Furthermore, these words are found in a context that includes an express reference to ‘national laws’; even if, as the applicants would have it, the prohibition on divorce is to be seen as a restriction on capacity to marry, the Court does not consider that, in a society adhering to the principle of monogamy, such a restriction can be regarded as injuring the substance of the right guaranteed by Article 12 (art. 12). (our emphasis) Moreover, the foregoing interpretation of Article 12 (art. 12) is consistent with its object and purpose as revealed by the travaux preparatoires... In the Court’s view, the travaux preparatoires disclose no intention to include in Article 12 (art. 12) any guarantee of a right to have the ties of marriage dissolved by divorce. The applicants set considerable store on the social developments that have occurred since the Convention was drafted, notably an alleged substantial increase in marriage breakdown. It is true that the Convention and its Protocols must be interpreted in the light of present-day conditions (see, amongst several authorities, the above-mentioned Marckx judgment, Series A no. 31, p. 26, ss 58). However, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. This is particularly so here, where the omission was deliberate.’ 3 ECHR, Schalk and Kopf v. Austria, 24 June 2010 Facts ♣  The applicants were a same sex couple from Vienna ♣  On 10 September 2002, the applicants requested the Office for Matters of Personal Status to contract a marriage ♣  The Vienna Municipal Office (Magistrate) denied the applicants’ request, referring to Article 44 of the Civil Code ♣  The applicants complained that the authorities’ refusal to conclude their marriage violated their right to marry protected under the Article 12 of the European Convention on Human Rights, also supported with Articles 14&8 Legal provisions ♣ Article 44 of the Civil Code Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ϖ ‘The marriage contract shall form the basis for family relationships. Under the marriage contract two persons of opposite sex declare their lawful intention to live together in indissoluble matrimony, to beget and raise children and to support each other.’ ♣ Article 12 of the ECHR ϖ ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’ ♣ Article 8 of the ECHR ϖ ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ ♣ Article 14 of the ECHR ϖ The right not to be discriminated against in ‘the enjoyment of the rights and freedoms set out in the Convention’ Court’s decision ♣  The Court noted that the institution of marriage has undergone significant social changes since the Convention’s adoption, but there is no European consensus on same-sex marriage ♣  The Court determined that Article 12 of the Convention does not impose an obligation on the respondent state to grant access to marriage to a same-sex couple such as the applicants, and thus the applicants’ right to marry had not been violated ♣  The Court concluded that there was no violation of Article 14 when read in conjunction with Article 8 of the Convention. The State had not gone beyond its range of appreciation in selecting the rights and obligations conferred by registered partnerships Conclusion ♣ Under the European Law, the margin of appreciation allows the States to individually assume positions on the conditions of contraction for a marriage between two persons (without necessarily violating the legal provisions under the ECHR) Week 3 Parent-child relationships Parentage, best interest of the child Birth registration Obligation of states ♣ Registration of all children immediately after birth Civil registry offices (or officials) Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣ The authorities of the State, responsible for registering the birth of a child, usually established at a local or municipal level, with oversight by a national civil registry authority Medical institution: Possible Birth in the territory of the State must be registered with the designated State authorities (with penalties for noncompliance), within a defined timeframe ♣  Criminal offence ϖ False or misleading notification ♣  In low- and middle-income countries, on average, one in four children under age 5 (166 million) are not registered ϖ Of these 166 million children, half live in just five countries: Democratic Republic of the Congo, Ethiopia, India, Nigeria and Pakistan What happens if a child isn’t registered? ♣  Birth registration is the only legal way for a child to get a birth certificate ϖ A birth certificate is proof of legal identity, and is the basis upon which children can establish a nationality, avoid the risk of statelessness and seek protection from violence and exploitation ♣  Without a birth certificate, children are unable to prove their age, which puts them at a much higher risk of being forced into early marriage or the labor market, or recruited into armed forces ♣  Can’t get routine vaccines and other healthcare services or may be unable to attend school or register for exams Parentage – Definition and methods Methods by which legal parentage can be established 1 By operation of law (E.g., as a result of giving birth; on a legal presumption for the establishment of paternity or maternity); 2 Following an act of a (putative) parent (E.g., an act of acknowledgment); 3 By decision of an authority (usually judicial) 4 By adoption ♣  Legal parentage can be defined as ‘the parent-child relationship established in law’ ♣  It is a personal status particularly relevant to a person’s identity, from which many important rights and obligations are derived Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣  Legal parentage established in one State but not recognized in other States results in ‘limping legal parentage’ and can create significant problems for children and their parents ♣  ‘Legal effects’ ϖ Nationality, parental responsibility, maintenance and inheritance rights, etc. Parentage – Natural reproduction ♣  Enduring status which does not end with the child’s majority and includes rights of inheritance ♣  Has supplement advantages ϖ Mostly ensuring long-term stability ♣  Since 2016, multiple parenthood has also been seriously discussed In EU law – common core of law ♣  Recognition of legal mother is based on gestation and childbirth ♣  The legal fatherhood of married man is based on the paternity presumption Legal parentage (parenthood) Motherhood ♣ Biological (Gestational) ♣ Genetic Fatherhood ♣  Pater est judicial/adm. Presumption ♣  Voluntary recognition ♣  Decision General rules motherhood The birth mother is always the child’s legal parent. ‘Mater semper certa est’ Roman law: The mother is always certain 1 Presumption, no counter evidence 2 based on gestation and childbirth 3 Birth can be witnessed, also illegitimate children Biological and Genetic motherhood Biological motherhood: A woman who gives birth to the child is the legal mother ♣ Based on the assumption of an emotional and physical bond developed during gestation Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣ The gestational mother makes the largest contribution to the creation of the child Genetic motherhood: A woman who (for various physical reasons) cannot carry the fertilized egg full-term, so her egg is fertilized and implanted in the surrogate (gestational) mother ♣ The genetic connection is more than the gestational element? General rules – Paternity ‘Pater est’ presumption ♣ Presumption of paternity based on the rule of pater est, that ensures the certainty and safety of legal family relationship and, therefore, it may be undermined only when there are serious grounds ϖ Married or formed a civil partnership with the birth mother No need to formally acknowledge parenthood of the child, as this person will automatically be recorded as the legal father ϖ This applies even if he is not the biological father of the child Voluntary recognition ♣ Acknowledgement ϖ  Becoming a legal parent by officially acknowledging parenthood of that child (each child separately) ϖ  Acknowledgment during pregnancy, at the time of registration of the birth, or after registration of the birth ϖ  Not possible if the father is not permitted to marry the birth mother (E.g. close blood relative of hers) ϖ  There must not already be 2 parents (E.g. the child have been adopted by the birth mother’s female partner) Judicial/Administrative decision ♣ The establishment of paternity by court order ϖ  The court is satisfied that a man is the father of a child ϖ  Paternity orders are considered ‘conclusive’ evidence of paternity It basically can’t be challenged ϖ  If the man names as the child’s father is not sure if he is the father, or denies that he is, the court may order a genetic test ‘Pater est quem nuptial demostrant’ ‘By marriage the father is demonstrated’ Presumption ♣ Legal father of a child that is born during his marriage to the woman, who gave birth (also within a defined period following its termination) Presumption of parentage Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣ Court or other agency accepts or ‘presumes’ in accordance with legislation that a person is a parent of a child without any evidence, usually because of a marriage of pre-existing relationship Objectives ♣  Protect the children of negative consequences of illegitimacy ♣  Protect the conventional model of family Rebutting the presumption ♣  In most countries it is possible to rebut this legal presumption by proving, on the balance of probabilities, that the husband is not the biological father of the child ♣  Difference solutions as to whether it is possible to rebut the pater est presumption at the time of the initial registration of the child ϖ  It is possible for the mother to rebut the presumption through a simple declaration at the time of registration ϖ  It is possible if the mother registers the birth of the child together with a man other than her husband ϖ  A man other than the husband may acknowledge the child in these circumstances and thereby rebut the presumption, but the husband’s consent may be necessary for registration to take place ϖ  It is not possible to register a man other than the husband where the pater est presumption applies unless and until the husband’s paternity has been successfully challenged in court Voluntary recognition A man who considers himself to be the father of a child and would like to obtain parental legal status is given the opportunity to do so if the child’s mother agrees. ♣  Either during pregnancy, at the time of the child’s birth registration or subsequently ♣  Not possible if mother is married or another man’s paternity/legal parentage is in effect ♣  Consent from the mother is required ♣  Consent of the child ϖ In some jurisdictions age limits have been established beyond which a child’s consent must be obtained Switzerland: Only the biological father can recognize a child. (A man who is not the biological father can choose to adopt the child.) Gedownload door emmanuella gulijeva ([email protected]) Judicial or Administrative decision lOMoARcPSD|2444199 ♣  Application to the court and judicial establishment of paternity ♣  States are given the positive obligation of ensuring the fair hearing of such disputes, including speedy proceedings and the opportunity to base one’s claims on scientific measured (DNA tests) When it applies? When there is a dispute ♣  Where paternity is not established on the basis of the pater est principle ♣  There is no voluntary application for recognition of paternity from a man who is considered to be the child’s father ♣  There is such an application to which the mother of the child objects Parentage resulting from ART /Assisting reproductive technologies/ ♣  For most jurisdictions certain forms of ART are permitted, usually subject to regulation ♣  Every country in the EU (with the exception of Ireland) now has legislation governing assisted reproduction (ART). Nearly all, as the UK, France, Germany, Spain) supplement their legislation with professional guidelines ♣  Monaco ϖ All forms of ART are prohibited Policy considerations upon the social and cultural context of the jurisdictions include ♣  The rights and interests of child(ren) ♣  The reproductive freedom of persons wishing the use ART and the limitations to this freedom ♣  The role the State should play in the provision of ART ♣  In some cases, the risks of reproductive tourism and/or the commodification of children and reproductive abilities ART – Overview ♣  ‘Social, cultural or religious’ factors in different countries explain some of the variations in regulation and application, especially in third-party donation treatments and surrogacy ♣  Almost all (with the exceptions of Albania, Bosnia and Herzegovina, Ireland, Romania and Ukraine) now have specific legislation in place (2020) ♣  34 of the 43 countries studied have legal age limits for treatment ϖ In 21 (including Czech Republic, Denmark, Greece, Portugal, Spain, Sweden, UK) males and females must be above 18 years ϖ Maximum female age is also a legal limit in 18 countries, ranging from 45 years in Denmark to 51 in Bulgaria Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣  Europe moves towards complete statutory regulation of assisted reproduction but large variations still exist in how the legislation is applied ♣  ‘Fertility tourism’ ϖ When the treatment costs are lower and access to techniques are not possible in the home country Artificial insemination techniques Sperm donation Ethical and legal issues: Anonymity ‘fertility tourism’, individuals to seek sperm from outside their home state. ♣  Most jurisdictions have laws that limit the number of children a sperm donor may give rise to ♣  In some countries anonymity applies to recipients but the born children can have access to donors’ identity when above a defined age (Austria, Croatia, Finland, Malta, Portugal, UK) ♣  Germany and Switzerland ϖ Anonymous donation is not allowed Egg donation ♣  Donation of eggs to enable another woman to conceive as part of an assisted reproduction treatment or for biomedical research ♣  Not permitted ϖ Italy ♣  Legal only if anonymous and without any compensation for the egg donor ϖ France ♣  Legal only if non-anonymous, but egg donors may be compensated ϖ TheUK ♣  Other solutions Embryo donation Is it a donation or adoption? ♣  ‘Many biological parents store their frozen embryos for future use. But when those parents have complete their families, they must decide what to do with their remaining embryos. Donating them to another infertile couple is an increasingly popular option. It benefits both the genetic family and the recipient family.’ ♣  ‘The embryo is due a greater level of respect than other human tissues because of its potential to become a person and because of its significant meaning for many people.’ Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 Surrogacy – Fertility treatment whereby a woman carries a child for someone else Same-sex couples; Heterosexual couples; Single women; Single men◊ Gestational carrier Intended parents ♣  Couples or individuals who cannot have a child themselves and who are considering surrogacy as a way to become a parent ♣  UK: They may be heterosexual or same-sex couples in a marriage, civil partnership or living together/co-habiting, or individuals regardless of their relationship status Surrogate (Mother) ♣  This is the preferred term for women who are willing to help IP(s) to create families by carrying children for them ♣  A surrogate may or may not have a genetic relationship to the child that she carries for a couple Surrogacy Types of legal regulation Strict ♣ Germany, Austria, Spain, Estonia, Finland, Iceland, Italy, Moldova, Montenegro, Serbia, Slovenia, Sweden, Switzerland ϖ  Surrogacy arrangements are expressly prohibited by law, usually on the basis that such agreements violate the surrogate mothers and child’s human dignity, reducing both to mere objects of contracts ϖ  Surrogacy arrangements in contravention of the law are void and unenforceable. Therefore, the general rules related to legal parentage will apply to any child born as a result of such an arrangement Permissive ♣ Albania, Greece, the Netherlands, the United Kingdom, Georgia, Russia and Ukraine ϖ  Some states permit commercial surrogacy and others only permit altruistic surrogacy ϖ  States may define eligibility criteria for intending parents and surrogate mothers, regulate the legal parentage of the child born as result of the surrogacy arrangements, define if the surrogacy arrangement is or is not enforceable and regulate who appears in the birth certificate Unregulated ♣ Andorra, Bosnia-Herzegovina, Hungary, Ireland, Lithuania, Latvia, Malta, Monaco, Romania, San Marino Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ϖ No regulations on gestational surrogacy, and it is either prohibited under general provisions or not tolerated, or the question of its legality is uncertain ♣ Belgium, Czech Republic, Luxembourg and Poland ϖ Lack specific legislation, but have a tolerant approach to surrogacy Surrogacy Forms Altruistic surrogacy Altruistic surrogacy means surrogacy in which no charge, expense, fees, remuneration or monetary incentive of whatever nature are given, except the medical expense incurred on the surrogate mother and the insurance coverage for the surrogate mom ♣  Generally refers only to those arrangements in which the surrogate does not receive compensation for her services beyond reimbursement for medical costs and other reasonable pregnancy-related expenses ♣  Many of these arrangements are between family members or close friends and are completed as independent surrogacies ♣  Imprisonment for engaging in commercial surrogacy ϖ 3 months maximum (UK) Commercial surrogacy ♣  Commercial surrogacy ϖ The surrogate is fairly compensated for her time and energy, the sacrifices she makes and the many physical and emotional challenges she faces throughout the surrogacy process ♣  Expressly allowed or not explicitly banned, and accepted by the administrative/judicial authorities ♣  No c. surrogacy-friendly jurisdictions in Western and Central Europe Promoting commercial surrogacy is illegal in the Netherlands ♣  Prohibited by law under articles 151b and 151c of the Criminal Code (in Dutch) ♣  The law does not allow ϖ  Websites to advertise surrogacy, on behalf of people who are looking for – or want to become – a surrogate mother ϖ  Individuals to publicly announce, for instance on social media, that they are looking for a surrogate mother – or that they want to become a surrogate mother Surrogacy – General rules on parentage Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 A challenge to the traditional rules on legal parentage – It can involve surrogate mother, two intended parents, sperm donor and egg donor. Three approaches to determine the legal parentage The ‘genetics’ test ♣ The parents are determined on genetics The ‘intent’ test ♣ The parentage is determined by the intent of the parties as expressed in the surrogacy agreement The ‘gestational/birth’ test, traditional ♣ The woman, who gives birth, is a legal mother even there is no genetic relation Surrogacy Parentage Intent test: Under Ukrainian law, the child belongs solely to the intended parents from the moment of conception ♣  Once the baby is born, the birth certificate is issued with the names of the intended parents, and the Surrogate is not awarded any parental rights ♣  As a result, the surrogate has no standing to keep the baby or claim any rights ♣  Even if egg and sperm donors were used and there were no biological relation between the child and intended parents ϖ Their names remain on the birth certificate Ukraine – Commercial surrogacy Legal instruments: Family code 2004, and Instruction of the orders of the Ministry of Health Certain requirements ♣  Surrogate mother ϖ Between 25-35 years old and natural mother of at least one child ♣  Mentally and physically capable of becoming a surrogate mother ♣  No relation to commissioning parents ♣  Legal surrogacy agreement must be signed between the parents and the surrogate UK regulation – Human fertilization and embryology act, 2008 Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 1 Par. 33 HFEA 2008: Meaning of ‘mother’ ‘The woman who is carrying or has carried a child as a result of placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.’ 2 Par. 35 HFEA 2008: Woman married at time of treatment (1) If – (a) At the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage, and (b) The creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, Then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be). Gestational (traditional)test 1 This is specific legal regulation for surrogacy 2 The intended parent do not automatically become a legal parent at the birth of the child ϖ Because UK parentage law is based on the principle that the birth mother is always the legal mother of the child, including in the case of surrogacy 3 If the surrogate mother is married at the time of the birth, the surrogate mother’s husband is automatically recognized as parent Cross-border surrogacy Two issues: The acquisition of the legal parentage in the country of birth and the transfer of the legal parentage to the intended parents in their home country Which law applies? ♣  Common law jurisdictions ϖ Lex Fori States apply their internal law to the question of legal parentage, no foreign law is applied to these types of issues of family law ♣  Civil law jurisdictions ϖ Application of the relevant private international law rules Through method of recognition of foreign judgements Refusal when in conflict with public policy (2008) EWHC 3030 (Fam) ♣  UK couple has surrogate twins in Ukraine ♣  Under Ukrainian law once the surrogate mother had given birth to the twins and delivered them to the applicants, she and her husband were free of all Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 obligation to the children. They had neither the status nor the rights and duties of parents ♣  Under English law the Ukrainian woman (although biologically unrelated to the twins) is for all the sole legal mother of these children ♣  ‘The effect of all this was of course that these children were effectively legal orphans and, more seriously, stateless.’ Right to know you origins Why? Because of the lack of correspondence between the legal and biological parentage which may come as a consequence of ♣  Artificial reproduction technologies (ART) ♣  Adoption ♣  May also occur in families where children are naturally born (E.g. the solution of anonymous birth, abandoned children, displaced) ♣  Information concerning important aspects of one’s personal identity, such as the identity of one’s parents ♣  Ethical issues ϖ Without this information the child might have difficulties forming own identity ♣  Countries differ on this matter, from establishing this right for the child to keep biological parentage as an absolute secret ♣  Adopted children may certainly benefit from information about their biological parent But: Is it appropriate to assume this to be the case for all other groups, such as donor conceived children? ϖ Concern that full legal acknowledgement of all children’s right to know their origins would lead to laws involving significant invasions of individual privacy ♣  The right to find out details about ones’ origins which can lead to discover the truth about important aspects of personal identity ♣  This right forms a part of the right to a private and family life ϖ  The identity of the biological parents ϖ  The circumstances of the birth, such as the time and place ϖ  ‘Foundlings’ (Children who have been abandoned after their birth, either in a hospital or in another place, and have no proof of their origins) Any information regarding the circumstances of the finding ϖ  Information about childhood spent in care General rule – The child should be in principle able to access information about the origin Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣  Jurisdictions that fully recognize the importance of the child to know his/her origins ϖ Require the adoptive parents to announce the adoption (Croatia, Iceland, Italy) ♣  Jurisdictions where the child has the right not to have his/her adoption disclosed even to him/herself The best interest of the child ♣  UN Guidelines on Determining the Best Interest of the Child ϖ General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Art. 3, para. 1) ♣  The main objective of this general comment is to strengthen the understanding and application of the right of children to have their best interests assessed and taken as a primary consideration or, in some cases, the paramount consideration. Its overall objective is to promote a real change in attitudes leading to the full respect of children as rights holders. More specifically, this has implications for (a) The elaboration of all implementation measures taken by governments; (b) Individual decision made by judicial or administrative authorities or public entities through their agents that concern one or more identified children; (c) Decisions made by civil society entities and the private sector, including profit and non-profit organizations, which provide services concerning or impacting on children; (d) Guidelines for actions undertaken by persons working with and for children, including parents and caregivers Child’s best interest Test ’33. Accordingly, the concept of the child’s best interests is flexible and adaptable. It should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs. For individual decisions, the child’s best interests must be assessed and determined in light of the specific circumstances of the particular child.’ Best interest of the child Concept Broad consensus – Including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount/primacy Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 Principle: The child’s ties with the family must be maintained, except in cases where the family has proved particularly unfit Balance: The child’s best interests may, depending on their nature and seriousness, override hose of the parents ♣  The concept of the child’s best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the convention and the holistic development of the child ♣  An adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the convention ♣  There is no hierarchy of rights in the convention; all the rights provided for therein are in the ‘child’s best interests’ and no right could be compromised by a negative interpretation of the child’s best interests Welfare of children English law Children act 1989 and Adoption and Children Act 2002 deal with both disputes ♣  Between parents about children’s upbringing and ♣  Disputes between the state and the family about child protection matters Child’s welfare – Paramount consideration Welfare of the child should be sole consideration and will determine outcome Rights of other parties only considered if they contribute to child’s best interest Case Law 1 ECtHR, Gaskin v. UK, 7 July 2009 Facts Applicant ♣  British citizen born on 2 December 1959 ♣  Received into care by Liverpool City Council on 1 September 1960 due to his mother’s death (section 1 of the Children Act 1948) Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣  Discharged to the care of his father for 5 periods (1 week to 5 months) ♣  Remained in voluntary care until 18 June 1974 ♣  Pleaded guilty before the Liverpool Juvenile Court to a number of offenses including burglary and theft ♣  Care order (Section 7 of the Children and Young Persons Act 1969)◊ Ceasing on 2 December 1977 (reached age of majority) ♣  While in care the applicant was boarded out with various foster parents (Boarding-Out of Children Regulations Act 1955) ♣  Local authority with the duty to keep certain confidential records concerning the applicant and his care (Boarding-Out of the Children Regulations Act 1955) ♣  Applicant wished to obtain the details of: Where he was kept by whom and in what conditions ϖ Purpose? He contends that he was ill-treated in care and the details would help him to overcome his problems and learn about his past ♣  Applicant permitted by a social worker of Liverpool City Council to see his case records kept by the Social Service Department of the Council on 9 October 1978 ♣  Applicant removed those records without Council’s consent, returned them 3 days later Proceedings on national level High Court (1979) ♣  The Applicant applied for proceeding against the local authority for damages in negligence (under section 31 of the Administration of Justice Act 1970) ϖ  For the discovery of the local authority’s case records made during his period in care ϖ  The records should be available to him on the general principles of discovery, for the purpose of his proposed proceedings for personal injuries against the local authority ϖ  It is also in the public interest that some measure of review of the standard of care provided by a local authority to a child in care is available ♣  Local authority objected on the ground that disclosure and production would be contrary to the public interest (principal contributors to those case records treated in strictest confidence) ♣  Judgment: Confidentiality of the relevant document should be preserved Court of Appeal (1980) ♣ Appeal dismissed ECtHR proceeding ♣ Issues: Gaskin claimed that there were violations of ϖ Article 8 ECHR (Right to respect for private and family life) ϖ Article 10 ECHR (Right to receive information) ♣ Judgment Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ϖ Article 8: Violation ϖ Article 10: No violation Article 8 ‘Right to respect for private and family life’ ♣  Gaskin’s case records contained information about personal aspects of his childhood, development and history, and therefore relate to his private and family life ♣  Persons in the situation of the applicant have an interest in receiving the information that is necessary to know and understand their childhood and development. However, the confidentiality of public records is also important to protect third persons ♣  The British system allows you to have access to your records if there is the consent of the contributors. This can be considered as compatible with Article 8 ♣  However, under this system, the interests of the individual that wants access to his records must be secured when a contributor does not give consent or is not available. Such a system is only proportionate if there is an independent authority that decides whether access has to be given if a contributor does not give consent or does not answer ♣  This procedure was not available to the applicant, and therefore there is a violation of Article 8 Article 10 ‘Right to receive information’ ♣  The right to receive information prohibits a Government to restrict a person from receiving information that others want or might be willing to impart to him ♣  Article 10 does not give the States the obligation to impart the information in question in the present case to the individual ♣  Therefore, there is no violation of Article 10 2 ECtHR, Odièvre v. France, 13 February 2003 Facts ♣  The applicant Pascale Odievre is a French national who lives in Paris ♣  Odievre was abandoned by her mother when she was born on March 23, 1965. Her mother requested that the birth to be kept secret and completed a form at the Health and Social Security Department. As a result, Odievre was adopted and was unable to learn anything about her biological family ♣  On January 27, 1998, Odievre requested a court order for the disclosure of information from her birth certificates ♣  On February 2, 1998, her request was denied, since she was born under a special procedure that allowed mother to remain anonymous ♣  Odievre claimed that the restriction on her access to information violated her Article 8 and 14 rights under the European Convention on Human Rights (ECHR) Article 8 of the ECHR Applicability of article 8 – Right to respect for private and family life Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣  The court ruled necessary to examine the case from the perspective of private life, and not family life since the applicant’s claim to be entitled, in the name of biological truth to know her personal history ♣  The court said article 8 protected the right to a personal development. Including a person’s identity as a human ♣  The applicant claimed that France had failed to ensure respect for her private life by its legal system ♣  The court observed two main competing interests: The right of the child to know its origins and, on the other side the protection of the woman who chose to remain anonymous in order to protect her health ♣  French legislation aimed to protect the mother’s and child’s health at birth to avoid abortions, in particular illegal abortions and child abandonment. The right to respect for life was thus one of the aims pursued by the French system ♣  The court observed that the applicant had been given access to non- identifying information about her mother and natural family, that gave her the possibility of tracing some of her roots ensuring the protection of third-party interests Article 14 of the ECHR Applicability of article 14 – Prohibition of discrimination ♣  The Court observed that the applicant had complained that restrictions had been imposed on her ability to receive property from her natural mother ♣  The Court noted that the applicant’s complaint under Article 14 of the Convention concerned her inability to find out her origins, not a desire to establish a parental tie that would enable her to claim an inheritance ♣  It considered that, though presented from a different perspective, that complaint was in practice the same as the complaint it had already examined under Article 8 of the Convention ♣  The Court considered that the applicant suffered no discrimination with regard to her filiation. Because the application has parental ties with her adoptive parents from who she will inherent property and state ♣  The court also ruled that the applicant couldn’t claim that her relationship with her natural mother is not comparable to children who enjoy parental ties with their natural mother ♣  In conclusion, the Court established that there was no violation of Article 14 of the Convention, taken together with Article 8 Court Judgements ♣  By ten votes to seven that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights ♣  By ten votes to seven that there had been no violation of Article 14 (prohibition of discrimination) of the Convention, taken together with Article 8 Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣ In conclusion, the state lays down that applicants disclosure to identify her natural mother is inadmissible since confidentiality was agreed at birth Neulinger & Shuruk v. Switzerland, ECHR Judgment, Corporate Law Week 4 Introduction to Corporate Law – The UK, Germany, The Netherlands & US What is company law Why study it? ♣  Influential role society, economies ♣  Under dynamics (international) business activities ϖ (International) commercial transactions ϖ (International) trade, free market neo-liberalization & globalization It is important because◊ Company law regulates companies and the environment in which they move, i.e. capital markets Company: Organizational structure for business Terminology ♣  ‘Company’ or ‘corporation’ – differences? ♣  ‘Incorporated’ type of business ϖ Business form with compliance to certain formalities What does the term ‘company’ mean Linguistically, origins? ♣  From late Latin companio, literally ‘bread fellow’, messmate, com ‘with, together’ + panis ‘bread’ ♣  Mid-12c. Old French compagnie ‘society, friendship, body of soldiers’, large group ♣  From late 13c. Sense of ‘business association’ first recorded 1550s, having earlier been used in reference to trade guilds (c. 1300) Link to ‘conducting business’, sense of formalized form (incorporated) Terminology ♣ ‘Company’ or ‘Corporation’ Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ϖ UK: Company (public or private) ϖ US: Corporation ϖ EU: Undertaking (public or private) ϖ NL: Corporation (open or closed) ϖ GE: Corporation (private limited/public stock) ♣ For the purpose of this course: Used interchangeably Public or Private Open or Closed Other terminology ♣ Capital market, securities, share capital or debt, liquidation, assets, residual rights, shareholders, directors, dividends, insolvency, etc. Corporate Law – Body of law Corporate Law ♣  Formation of business forms (i.e.) companies ♣  Legal operation of business for ms (functions, rights and duties of key actors) Business Law ♣  All areas that relate to how to do business ♣  Regulates whatever you need to do business (i.e.: employment law, contract law, tax law) What can we add to the mix to formulate a definition Business forms & their characteristics and Legal rights & duties and liabilities◊ Company law or Corporate Law Which legal frameworks? Choice for national jurisdictions Dominant jurisdictions for developing Corporate Law ♣  Germany: Civil law tradition and MS (EU) – NLs, similar ♣  UK: Common law tradition and MS (EU) ♣  US: Common law tradition ϖ But: Each US State has its own statute p.e. Delaware: Delaware State law & Case law Which legal framework applies? Gedownload door emmanuella gulijeva ([email protected]) Depends on selected jurisdiction and its statutes Legislation on company law ♣  Spread out between various statutes. But, in a broad sense, you can recognize a basic act ♣  E.g. UKCA 2006 is the basic act in UK (NL, GE, UK, US) The concept of ‘partnership’ and ‘company’ ♣  Laid down and defined in each relevant jurisdiction ♣  E.g. Partnership Act 1890 in UK and UKCA2006, respectively Which legal framework applies? Depends on selected jurisdiction & its statutes lOMoARcPSD|2444199 Civil law country National framework Regional framework Germany German Private Limited Liability Act (PLLA) German Stock Corporation Act (SCA) EU Law Netherlands Dutch Civil Code (Book 2) (DDC) EU Law Common Law country and MS National framework Regional framework UK UK Companies Act 2006 (UKCA2006) and case law EU Law Common Law country National framework Regional framework US US Delaware State Law: Delaware Code General Corporation Law (DGCL) and case law Under certain circumstances: Other state’s law Legislation – national (UK, NL, GE) ♣ Relevance of national legislation on corporations ϖ  Registered companies can only be created because national legislation permits them to be created Legal status and legal consequences are established by law ϖ  Also: Primary source on how companies are operated (legal actions of a company are determined by law) ‘Hard law’= Legally binding ruled of law Legislation – Relationship national & EU Law Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 How does EU Law influence MS national rules of Corporate Law? ♣  In case of membership of EU ϖ Several Directives pursuant to Treaty of Rome are relevant ♣  Objectives of ϖ Equality ϖ Freedom of establishment of businesses throughout community ϖ Harmonization of domestic company laws Business Forms Perform business – Through what medium Comparative perspective on the relative merits of each type of organization Combination of 3 aspects, required ‘be in business’? ♣  1 Capital ϖ Key question to evaluation business form Does it facilitate investment in the business ♣  2 Risk mitigation ϖ No form is without risk, so 2nd key question Does it mitigate risks ♣  3 Clear organizational structure ϖ Where money, risk and people meet there is a potential for disagreement, so 3rd key question Does the form provide a clear structure Businesses come in many forms Business entities in general (several possible forms; for this course mention is made of) 1 ‘Sole proprietorship or Sole Tradership’ 2 ‘Partnership’ (General or Limited) 3 ‘Company’ Business entities – differences (from a legal perspective solely) 1 Sole Proprietorship/Tradership Reader p.35 Meiners et al. ‘A person doing business for himself or herself is a sole proprietor; the business organization is a sole proprietorship. (It is) the oldest and simplest form of business organization.’ ♣  Sole= only, i.e. alone ♣  Proprietor= owner, or trader= person doing business ♣  Controller and owner? Of property SP= Sole proprietor Gedownload door emmanuella gulijeva ([email protected]) lOMoARcPSD|2444199 ♣  No formalities E.g. a license or permit ϖ In some jurisdictions: Registration of the name of your sole tradership ♣  In chose jurisdictions: This form is not regulated ϖ Relationship between owner and others is, contract law, etc.) 2 Partnership ♣  ‘Partners’= With partner(s), i.e. together ♣  Agreements between partners (contracts or other) ♣  Controller= You and partner (in practice? Equal voice) ♣  Owners: Of property= you and partner: how does that work ♣  Some formalities attached before start ♣  US: ‘Independent entity’ ♣  In chosen jurisdictions: this form is regulated ϖ Relationship between owner and others is, contract law, etc.) Which legal framework applies? Answer: It depends on ♣  E.g. UK ♣  Partnership Act 1890 ϖ ‘A partnership is a collection of individuals in business with a view to a profit’ Partnerships – Different types Distinguishes between 1 General Partnership (GP) ϖ  Each partner participates in business activities, have their own ‘freedom to a certain extent’ ϖ  General Partners: Each can make business decisions ϖ  Each have personal liability for business debts 2 Limited Partnership (LP) ϖ  Special form of General partnership ϖ  Not every partner participates: Limited Partners can be ‘silent partners’ (without a say) ϖ  General partners do: Similar to those in a GP 3 Limited Liability Partnership (LLP) ϖ Law firms, accountancy firms etc. ϖ Partners have limited liability Business entities – Differences (From a legal perspective solely) Company or Corporation ♣ Incorporated ♣ Special formalities fulfilled Gedownload door emmanuella gulijeva ([email protected]) How should partners behave? lOMoARcPSD|2444199 ♣  Resulting in legal consequences ♣  Certain key role actors ϖ ‘Director’ Requirement to appoint directors based on (corporate) law) ϖ ‘Shareholder’ Investor who has put money in corporation and has taken shares in return Case Law 1 Latta v. Kilbourn Facts ♣ ♣ You are asked to identify ♣ ♣ Relevant concept under discussion this week ♣ ♣ ♣ ♣ Legal principle: how should partners behave towards one another? Character of legal relationship ♣ ♣ Meaning? ♣ ♣ Why? Corporate law principle Legal basis? In US State law, founded in case law by Latta v. Kilbourn 2 Carella v. Scholet Facts ♣ ♣ ♣ You are asked to identify Real-estate brokers, Latta, K and H others Mr. Latta made a purchase of real estate. The business was ended What is the legal issue? Fiduciary relationship/duty between partners How was the fiduciary duty breached How was the concept further interpreted/explained by the court Can you formulate more concretely how partners must behave Trust or loyalty relationship= ‘fiduciary relationship’ Partners must act ‘in good faith’ for the benefit of the partnership’...’must place their personal interest below the interest of partnership’ So: May not act for themselves only! ‘Nor take any profit clandestinely for himself’ Furniture business. 2 people had a partnership Son, Arthur Scholet bought building from the business Creditors waited for payment by partnership Gedownload door emmanuella gulijeva ([email protected]) What is the legal issue? ♣ ♣ Relevant concept under discussion this week ♣ ♣ ♣ ♣ Legal principle: How should partners behave towards one another? ‘Fiduciary relationship’ ♣ General Partners must owe Fiduciary Duty towards Silent Partners Meaning? ♣ ♣ ♣ Why? Corporate law principle Legal basis? In US State law, founded in case law by Carella v. Scholet 3 Clark v. Lubritz (1997, common law) Facts ♣ ♣ now? You are asked to identify ♣ ♣ Relevant concept under discussion this week ♣ ♣ ♣ ♣ Legal principle: How should partners behave towards one another? Clark v. Lubritz lOMoARcPSD|2444199 How should partners behave? Fiduciary relationship/duty between partners How was the fiduciary duty breached How was the concept further interpreted/explained by the court Whether you can formulate more concretely how partners must behave...’are obligated not to engage in self-dealing’’ ‘unless partnership agreement permits it’ So: May not abuse PS assets, or make contract to benefit themself! 5 physicians, Mr. Lubritz and 4 partners, equal payment? Mr. Lubritz started to work less and less after a conflict. Should he be paid less What it the legal issue? What is the legal rule or concept under discussion? How should partners behave? Fiduciary relationship/duty between partners How was the fiduciary duty breached How was the concept further interpreted/explained by the court Can you formulate more concretely how partners must behave ♣ ♣ ϖ ϖ Profits divided Other physicians paid more (Lubritz was not aware of this) Legal issue Breach of fiduciary duty of partners? Legal claim & issue before court Gedownload door emmanuella gulijeva ([email protected]) ♣ Other physicians ϖ Court’s decision ♣ ♣ ϖ ϖ lOMoARcPSD|2444199 No duty applied due to circumstances (i.a. Lubritz did not contribute as much as the others) Requirement of full disclosure cannot be escaped Indeed a breach of duty Indirectly Lubritz should have been paid equally as other partners based on agreements (Written: In documents pertaining to partnership) Further, fiduciary relationship Imposes duty to disclose to partner Meaning? ♣ ♣ Why? Corporate law principle Legal basis? In US State law, founded in case law by Clark v. Lubritz Week 5 The Company and its core characteristics Principle of Legal Personality/Limited Liability Purpose of the company Does one have to start a company, what are the other options? Recap: Sole proprietorship & partnership - Con: Lack of formalities means little regulation. Limitations of sole trading. And partnership. Which? No separateness... Having business as sole trader could generate certain problems! The limitations of sole trading/partnerships Problems 1 Personal liability ϖ ‘Personal wealth threatened if business fails’ Business’ assets (in)sufficient to satisfy creditors Claims satisfied against personal assets (house, car, etc.) Trade off zasto get loans Barriers to raising finance Requires partners to honestly inform the other(s) about activities that may affect the partnership or business Even in case of disputes Gedownload door emmanuella gulijeva ([email protected]) Bank loan only when granted security interests – a claim on personal belongings of trader (secured creditor (paid first)) 2 Unknown liabilities ϖ Who would be subject to possible lawsuits? 3 Strategy ϖ Personal liability= Risk averse decisions 4 Continuation ϖ Sole trader is ‘nexus of contracts’ problems trader dies-inheritance? Time Costs Everything divided Family members? Replacement possible? Compare to partnership situation ϖ Case law How to separate business owner’s personal assets from business’ assets? Can your personal liability be protected through contract? Theoretically Company form necessary? As Sole Trader, use contracts wisely ♣ Literature shows alternative by means of Contract law ♣ How? 1 In each and every contract Require other party to agree to have recourse to business’ assets only, not to personal assets  But: Will other parties agree to this?  And: Unfair contract terms (sometimes exclusion of liability is not possible) 2 Insurance cover (third party claims) Costs... can be very high Practically: Parties may walk away... Possible personal liabilities. Explore company legal personality To have Personality: Introduction You and I: To partake in society ♣  Can undertake actions with legal effect ϖ Meaning: Enter into legal relationships, e.g. contract ϖ Prerequisite: Power to contract, age of legal majority, etc. ♣  Have ‘legal standing’ in court ϖ Can file a claim: Admissible as a claimant ϖ Can be filed a claim against lOMoARcPSD|2444199 Gedownload door emmanuella gulijeva ([email protected]) How about business forms – 3 types discu