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INTERNATIONAL COURT OF JUSTICE

COMPROMIS

BETWEEN THE REPUBLIC OF BOLITA (APPLICANT)

AND
THE REPUBLIC OF GARUNDI (RESPONDENT)
TO SUBMIT TO THE INTERNATIONAL COURT OF JUSTICE
THE DIFFERENCES BETWEEN THE STATES
CONCERNING CONFLICTING ORDERS
OF THE COURTS OF BOLITA AND GARUNDI

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JOINT NOTIFICATION
ADDRESSED TO THE REGISTRAR OF THE COURT

The Hague, February 10, 2010

On behalf of the Republic of Bolita (“the Applicant”) and the Republic of Garundi
(“the Respondent”), in accordance with Article 40(1) of the Statute of the International
Court of Justice, we have the honour to transmit to you an original of the Compromis for
Submission to the International Court of Justice of the Differences between the
Applicant and the Respondent Concerning Conflicting Orders of the Courts of Bolita and
Garundi.

Ambassador of the Republic of Bolita Ambassador of the Republic of Garundi

to the Kingdom of The Netherlands to the Kingdom of The Netherlands

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COMPROMIS
SUBMITTED TO THE INTERNATIONAL COURT OF JUSTICE

Bolita and Garundi,

Considering that differences have arisen between them concerning the conflicting
orders of the courts of Bolita and Garundi;

Desiring further to submit their differences to the International Court of Justice;

Article 1: The Parties submit the issues contained in the Compromis (together with any
Clarifications that may follow) to the International Court of Justice pursuant to Article
40(1) of the Statue of the Court.

Article 2: The Court is requested to decide the Case on the basis of the rules and
principles of general international law (including the validity of certain principles of
private international law), as well as any applicable treaties. The Court is also requested
to determine the legal consequences, including rights and obligations of the Parties,
arising from its judgment.

Article 3: All questions of procedure and rules shall be regulated in accordance with the
provisions of the D. M. Harish Memorial Government Law College International Moot
Court Competition. The Parties request the Court to order that written proceedings
consist of Memorials.

Article 4: The Parties shall accept any judgment of the Court as final and binding and
shall execute it in its entirety and in good faith. Immediately after transmission of the
judgment, the Parties will enter into discussions on modalities for execution.

In WITNESS whereof, the undersigned, being duly authorized to do so, have signed the
present Compromis and have affixed thereto their respective seals of office.

Ambassador of the Republic of Bolita Ambassador of the Republic of Garundi

to the Kingdom of The Netherlands to the Kingdom of The Netherlands

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COMPROMIS
THE REPUBLIC OF BOLITA V. THE REPUBLIC OF GARUNDI
THE CASE CONCERNING CONFLICTING ORDERS
OF THE COURTS OF BOLITA AND GARUNDI

1. Bolita and Garundi are developing countries in the Southern Hemisphere that are in
close proximity to each other. The countries have historically enjoyed good relations
and have had trade linkages for hundreds of years – their economies being mutually
dependent on each other. In 1978, the countries agreed to form an economic union with
a common currency and monetary policy, respect and comity for each other’s laws, free
commerce and trade, easy travel for citizen between the two nations, and recognition
and enforcement of orders of each other’s courts. In addition, the two countries agreed
that disputes between the two nations would be referred to the International Court of
Justice for their resolution based on the Statute of the International Court. The term
“dispute” was defined at length and included “decisions of the courts of each country
where enforcement of one country’s court order would result in the violation of a court
order of the other country”.

2. The economic union helped the two countries to develop their economies, but created
a unique set of challenges on the social and religious fronts. The two countries were
lauded in the international community for their willingness to submit matters of private
international law to the International Court of Justice. Both countries have also
committed to take into consideration the orders of the International Court and consider
appropriate amendments to local laws – as both their Constitutions recognize
international law as one of the sources of law in the interpretation of domestic laws.

3. The dispute that is being presented before this Court is complicated on account of the
citizenship rules of both countries. Under the laws of Bolita, a child born in Bolita is a
citizen of Bolita. Children born to Bolitian citizens outside of Bolita are citizens of Bolita.

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Children born outside of the country, where only one parent is Bolitian, are not entitled
to citizenship unless their Bolitian parent is resident in Bolita at the time of delivery.
Under the laws of Garundi, a child born in Garundi is a citizen of Garundi if its mother is
a citizen of Garundi. Children born outside of Garundi to Garundian citizens are citizens
of Garundi.

4. Jane Rathna, a citizen of Garundi, decided to travel to Bolita in 1992 and work in its
booming manufacturing sector. While working for a leading company in Bolita, she
married John Botisa in 1998. In 2000, they had a child – Emily Rathna Botisa – who was
recognized as a citizen by Bolita (on account of her birth in Bolita). Complications
arising from the delivery however meant that Jane had to go through a hysterectomy
post the birth of Emily. It was clear however, that both Jane and John, wanted more
children, and sometime in 2003 they harvested Jane’s eggs and John’s sperm for
assisted reproduction purposes. Since Jane could not bear children any more, they
decided to freeze Jane’s eggs and John’s sperm till such time as they identified a woman
who would be willing to act as a surrogate – someone they trusted – who could then go
through in vitro fertilization and carry the baby to term. The courts in Bolita had
provided specific performance of surrogacy contracts in the past specifically in cases
where the surrogate mother was carrying a baby to term on behalf of a known father
and mother (in effect, not anonymous donors), which had resulted in an entire
ecosystem of service providers to support couples and surrogate mothers. In addition, if
necessary, the courts were also willing to pass formal adoption orders based on the
surrogacy contracts, recognizing the individuals who had provided their eggs and
sperm as the mother and father of the child.

5. In 2006, Janet Rathna (Jane’s sister) flew into Garundi and after prolonged
discussions with Jane and John, agreed to be the surrogate mother for their child. She
went through the process of in vitro fertilization and soon became pregnant. As per their
surrogacy contract, the plan was for Janet to deliver the child in Bolita – for the child to
clearly be a citizen of Bolita. John, in particular, was concerned on account of the
citizenship and guardianship laws of Garundi, which was the other option that was

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considered. During the final trimester in 2006, Janet decided to fly back to Garundi for a
few days for family reasons, and during this trip developed complications, and was
advised bed rest for six weeks. Jane and Janet then decided that it would be best if Janet
remained in Garundi and did not take any chances with the pregnancy. Towards the end
of the six weeks, Janet went into labour and delivered a baby boy – Robert.

6. Immediately on the birth of Robert, Jane decided to travel to Garundi, expecting to be

able to take Robert to Bolita. Emily travelled with her. However, soon after Robert was
born, a local newspaper carried the story of Jane, John, Janet and Robert, and it created
quite the stir in Garundi, as the concept of surrogacy was quite unknown. Janet came
under tremendous local political and religious pressure not to hand over her child to
Jane, with Jane being portrayed as the “evil sister” in the local press and among
community circles. Given the feelings in Garundi, John felt that it was best not to expose
Emily to local community pressures and flew into Garundi to take Emily back to Bolita.
Jane, however, insisted that Emily remain in Garundi till the matter was resolved. John
protested strongly, but had no option but to return to Bolita without Emily.

7. Over the next few days, it was clear that Janet had changed her mind and was not
going to hand over Robert to Jane. She filed with the Registrar of Births, naming the
child as Robert Rathna, with herself as the mother of the child and declared the father of
the child to be “unknown”. As would be expected, this created tension between Jane and
Janet, and indeed, between John and Jane. John blamed Jane for not handling the
situation with her sister firmly and for having supported her to stay in Garundi when
she developed complications. As the days turned into weeks, John decided to seek
specific performance of the surrogacy contract with Janet in the courts of Bolita – which
of course, created quite the story in the Bolitian press. The court, in an ex parte interim
order, held that since the governing law of the surrogacy contract was Bolitian law and
jurisdiction per the contract was with the Bolitian courts, Janet should appear before
the court within 30 days with Robert for the matter could be resolved per the terms of
the contract that had been entered into between John, Jane and Janet. Through his
lawyers, John also initiated legal proceedings before the courts in Garundi for an order

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to compel Janet to appear before the courts in Bolita, along with Robert, citing the
economic union, principles of private international law and the order of the Bolitian
courts.

8. Janet, along with local community organizations, filed objections between the courts
in Garundi stating that since she had given birth to the child, Garundian law recognized
her as the mother of the child and she should, therefore, not be compelled to travel to
Bolita. They also stated that under Garundian law, the child was a citizen of Garundi and
it was not in the best interests of the child to be forced to travel to Bolita. Both parties
accepted before the court that Garundian law had not envisaged a situation where the
birth mother may only be the gestational mother. Through her lawyers, Janet also filed
objections before the courts in Bolita, stating that they had no jurisdiction over the child
as the biological and gestational mother of the child were Garundian, that Robert was
not a Bolitian citizen, that the best interests of the child was the only determining factor
in deciding the matter (over contracts) and that the best forum for this decision would
be the Garundian courts. She specifically pointed out that Garundian law did not
recognize surrogacy contracts.

9. As the legal battle started to build, Jane decided that she would continue to stay in
Garundi and would keep Emily with her. In her mind, the best thing for the two children
was to stay together even if that meant that she would be separated from her husband.
John was extremely upset with this decision and demanded that she return. When Jane
refused to return with Emily and stopped communicating with John (as he kept asking
her to come back), John felt he had no option but to initiate legal proceedings against
Jane too. He filed a claim before the courts in Bolita requesting that Jane be compelled to
hand over custody of Emily to him, as Emily was a Bolitian citizen, and in addition,
under Bolitian law, the father was the natural guardian of the child. He also maintained
that Jane had in effect kidnapped the child without specifically obtaining custody, in
view of the express provisions of Bolitian law which conferred guardianship on the
father. Jane entered objections before the Bolitian courts (through her lawyers) arguing
that the best interests of Emily required that Emily remain with her and with her

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sibling, Robert. She also objected to the jurisdiction of the courts on the ground that she
was a Garundian citizen, had travelled legally to Garundi with Emily and, under
Garundian law, she was the natural guardian of the child. Jane filed for custody of Emily
with the Garundian courts.

10. In a tactical move, John’s lawyers decided to initiate criminal proceedings against
Jane and Janet in the Bolitian courts. Their hope was to use extradition proceedings as a
means to force Jane and Janet to come to Bolita. He accused Janet of stealing genetic
material that belonged to him and Jane. Jane, on the other hand, was accused of
kidnapping a citizen of Bolita. When Jane and Janet did not appear before the Bolitian
courts, the court issued arrest warrants to ensure attendance and appearance, in
accordance with the criminal procedure provisions in Bolita. The court also was of the
view that they needed to determine whether the facts suggested the “taking” of genetic
material by Janet and whether Jane could be accused of theft if she left the country with
John’s consent. The Bolitian authorities, on John’s insistence, were considering
requesting Garundi to hand over Jane and Janet to face trial under the economic union
treaty.

11. It became clear that the courts in Bolita and Garundi were taking decisions even at a
preliminary stage, based on their domestic laws and these orders created clear conflicts,
as John was seeking enforcement of the Bolitian court orders in Garundi, and Jane and
Janet were seeking enforcement of Garundi court orders in Bolita. The criminal
proceedings that had been initiated by John also created timing pressures as jurists,
almost unanimously, were of the view that they could not be resolved without resolving
the underlying disputes between the parties. Taking into consideration the entirety of
the situation and the public mood in both countries on this matter, the Governments of
Bolita and Garundi decided to refer the different jurisdictional, as well as the
preliminary legal matters based on the facts set out in this Compromis (in relation to the
custody of Emily and Robert and with respect to the criminal proceedings) to the
International Court of Justice and to abide by its orders on the manner in which these
disputes should be resolved and which courts would have jurisdiction.

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12. Both Parties are members of the United Nations and are signatories to the
International Covenant on Civil and Political Rights, as well as to the International
Convention on Economic, Social and Cultural Rights. Neither of the Parties are
signatories to any treaties pertaining to private international law. They recognize that
the matters before the court may traditionally be within the rights of nations to
determine and are the subject matter of domestic and private international law but
believe that the conflicts require a resolution by the International Court on the various
legal and jurisdictional issues that arise from the facts set out above.

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