Posts Tagged WIPR

Lernout & Hauspie: US opt-out class action settlement accepted by Belgian court.

Belgium’s Lernout & Hauspie case recently entered a further stage in its civil law chapter. The case is part of Belgium’s (and especially Flanders’) collective memory as an illustration of what can go wrong when markets and investors alike are fooled by corporate greed. Is it world-famous, in Belgium: for those outside, Wiki should help.

Of interest to this blog is the recent judgment of the Gent criminal court on the civil chapter of the case: see my colleague proximus Stefaan Voet’s analysis here. Stefaan has helpfully translated the most relevant sections of the judgment, in particular the court’s rejection of the argument that the US opt-out class action settlement were contrary to Belgium’s ordre public. The court, in my view entirely justifiably, holds that Belgium’s Private international law act does not oppose recognition and enforcement. Of note is the extensive comparative reference which the court makes not just to existing Belgian law on class actions (the Belgian legal order can hardly oppose what it tentatively has introduced itself), but also to a European Recommendation on comparative class action law in the EU (a sort of Ius Commune idea).

Recognition and enforcement rarely makes it to substantive review in Belgian case-law. This judgment is one of note.

Geert.

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Qualification, lex fori and adoption from Morocco. Belgian court sinks the kafala ship.

Update November 2015: in December 2014, the ECtHR held in CHBIHI LOUDOUDI that the ECHR did not come to the rescue under either Article 8 or 14. For a similar case, see SM (Algeria) v Entry Clearance Officer, UK Visa Section [2015] EWCA Civ 1109, reviewed here and (update 20 April 2017) here (following UKSC appeal). Human rights law arguments in that case seem to have fallen down the wayside, though.

In March 2013 (only brought to media attention recently), the Court of Appeal at Gent reversed a decision by a lower court which had granted an adoption ‘light’ of a Moroccan child by a Belgian couple. In line with Belgian conflicts law (Article 68 WIPR), whether the adopted consents (typically: via its parents or a guardian) is subject to the law of the child’s habitual residence immediately prior to its transfer for adoption (or simply its habitual residence if there is no such transfer). However, that same article makes Belgian law gazump foreign law in the event of that foreign law either not requiring such consent, or not recognising adoption at all. This has often been called a lack of respect for that foreign law, among others because it necessarily requires Belgian courts to assess the assimilation of foreign ‘adoption’ institutions, with Belgium’s own views on adoption.

In the case at issue, Morocco’s ‘kafala’ was not considered to be equal to adoption. That’s because, well, it isn’t. It is more akin to guardianship or custody in advance of adoption. Parents signal their inability or unwillingness to look after a child. Followed by a court-registered form of fostering. It is quite easy to find differences between kafala and ‘adoption’ as known under Belgian law. Kafala is reversible. Kinship is not created between foster parents and child.

Belgian law therefore applied to the issue of consent. The father had not consented: it was clear that the man named on the child’s birth certificate was fictitious. The Moroccan court which was involved in the establishment of kafala seemed to have acknowledged as much and did not seem to have considered this to be an obstacle to the proceedings. This was not a cloak and dagger adoption. The eventual purpose of the proceedings, adoption in Belgium, was clear to the Moroccan court. For the Belgian court to stick to the requirement of paternal consent in spite of the Moroccan court’s willingness to see beyond that, seems a bit obnoxious.

The Court of Appeal moreover added that the necessary preliminary reports from Morocco, which the relevant authorities in Belgium ought to have sought, where not available. The Court’s line of reasoning suggests that even had such reports been available, adoption still could have not gone ahead. This reference therefore seems more of an attempt to share the blame. This case, the Court seems to suggest, is not just about dura lex sed lex; it is also about sloppy preparation.

Adoptions from Morocco have now been put on hold. In a final argument, the Court rejected any proposition that refusal of adoption would infringe the child’s human rights. The interests of the child evidently need to be taken into account in adoption decisions. However there is no human right to adoption.

Geert.

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