Droit international général

In 2014, Adrian Briggs published his own comprehensive account of English Private International Law, taking stock of centuries of English case law and decades of growing European influence. Other than the author’s unique ability to present even the most complex concepts with both clarity and style, the book’s strongest selling point arguably was his conscious decision to put the European instruments at the front and centre of the book, presenting English private international law as the hybrid system that it had long become. As Adrian Briggs later admitted, though, the timing of this project could be described as sub-optimal.

Indeed, in light of the UK’s subsequent departure from the EU and the resulting ‘realignment of the planets’, the second edition required changes that went far beyond a mere update. While some parts of the first edition that engaged with European sources and materials could be preserved as historical background (see, eg, pp. 18-21; 123) or even as descriptions of what has now become ‘retained EU law’ (mainly the Rome I and II Regulations, and with important caveats), other parts had to be rewritten almost entirely. This is most notable in the chapter on Jurisdiction (ch. 3), which according to the author, is now subject to ‘a corpus iuris which is a shambles’, ‘a mess in urgent need of reform’ (p. 129).

It is all the more commendable that Adrian Briggs has undertaken this difficult and presumably depressing task to paint, for the second time, a full picture of English private international law as it stands, again drawing heavily from his decades of experience as an author, teacher, and practitioner. It seems fair to say that most of the apparent coherence of this picture is testimony not to the ease with which European instruments, rules and thoughts could be removed from English law but to the author’s ability to patch up what was left.

(As a footnote, it is a pity for the reader that not only much European law but also the paragraph numbers have been lost between the first and second edition.)

The Belgian Court of Cassation found in a judgment of 10 March 2023 (in Dutch) that the Brussels Court of Appeal was wrong to refuse the granting of a cautio iudicatum solvi against a US company, with principal seat in Colorado.

As previously reported, the cautio iudicatum solvi as stated in the Belgian Code of Civil Procedure (or Judicial Code), Article 851 was declared unconstitutional by the Belgian Constitutional Court in 2018. The Constitutional Court found that the criterion of nationality as basis for the granting of the cautio was not relevant to reach the goal pursued by the legislator, namely to ensure payment of procedural costs and possible damages if the plaintiff loses the suit. The Court called on the legislator to amend the article, but this never happened.

The Brussels Court of Appeal refused to issue the cautio requested by a Belgian defendant as against the US plaintiff, on the basis of the unconstitutionality of the provision. The Court of Cassation, however, stated that Article 851 does not in general infringe Article 6 of the European Convention on Human Rights; the Constitutional Court’s finding of unconstitutionality was based on the principle of non-discrimination, in so far as a Belgian defendant could not use the cautio against any plaintiff without property in Belgium, but only against a non-Belgian plaintiff. As long as the legislator has not rectified the provision, it must according to the Court of Cassation be interpreted in line with the Constitution. This means that the cautio may be granted against any plaintiff with insufficient property in Belgium, irrespective of the plaintiff’s nationality. The Court reiterated that the cautio is outlawed by several international conventions, but none of these conventions applied in the present case.

Just yesterday, Hart Studies in Private International Law officially published an edited book titled: T Lutzi et al, Jurisdiction over Non-EU Defendants: Should Brussels Ia Regulation be Extended?  The blurb reads as follows:

This book looks at the question of extending the reach of the Brussels Ia Regulation to defendants not domiciled in an EU Member State. The Regulation, the centrepiece of the EU framework on civil procedure, is widely recognised as one of the most successful legal instruments on judicial cooperation. To provide a basis for the discussion of its possible extension, this volume takes a closer look at the national rules that currently govern the question of jurisdiction over non-EU defendants in each Member State through 17 national reports. The insights gained from them are summarised in a comparative report and critically discussed in further contributions, which look at the question both from a European and from a wider global perspective. Private international lawyers will be keen to read the findings and conclusions, which will also be of interest to practitioners and policy makers.

The latest Volume (Vol. 65, 2022) of the Japanese Yearbook of International Law – published by the International Law Association of Japan – has been recently released. It features the following articles, case notes as well as English translation of some relevant court decisions relating to private international law.

 

GLOBALIZATION OF SOCIETY AND INTERNATIONAL FAMILY LAW IN JAPAN

Takami Hayashi, Introductory Note (p. 167)

Ryoko Yamaguchi, Interests of the Child in Child Abduction and Visitation Cases — Differences Between Japan’s Domestic and International Criteria— (p. 169)

Takami Hayashi, Transboundary Child Protection in Japan (p. 191)

HAYAKAWA Shinichiro, Japanese Perspective on Legal Issues of International Surrogacy (p. 213)

Moonsook Kim, International Adoption in Korea (p. 231)

Manabu Iwamoto, International Recovery of Maintenance in Japan (247)

 

CASES AND ISSUES IN JAPANESE PRIVATE INTERNATIONAL LAW

Chisato Nakamura, Failure of Service of Judgment Documents and Public Policy Control at The Stage of Recognition and Enforcement of Foreign Judgments (p. 336)

Miho Shin, Habitual Residence in Japanese Private International Law (p. 348)

 

JUDICIAL DECISIONS IN JAPAN (Private International Law)

 

Supreme Court (3rd Petty Bench), Judgment, May 25, 2021 (p.423)

Enforcement of Foreign Judgment — Punitive Damages — Contrary to Public Policy

 

Intellectual Property High Court, Judgment, September 29, 2021 (p. 426)

Applicable Law — Copyright — Employee Work — Copyright Transfer

 

Tokyo District Court, Judgment, February 12, 2020 (p. 430)

Lawsuit for State Redress — Conduct of a Public Employee Outside of Japan

 

Tokyo District Court, Judgment, November 20, 2020 (p. 433)

Applicable Law — Characterization — Succession to Immovables Abroad — Unjust Enrichment

 

Tokyo District Court, Judgment, January 21, 2021 (p. 438)

Nationality Law — Case Requesting Confirmation of Japanese Nationality — Loss of Japanese Nationality due to the Acquisition of Foreign Nationality

 

Tokyo District Court, Judgment, March 9, 2021 (p. 443)

Enforcement of Foreign Judgment — Service of Documents During the Litigation Proceedings — Contrary to Procedural Public Policy

 

More information on the Yearbook (former Annual) and the content of its past volumes are available at http://www.ilajapan.org/jyil/.

The Full text of Vols. 1~62 (1957-2019) is accessible on HeinOnline.

At the request of the Committee on Petitions of the European Parliament, the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs commissioned  a study titled Cross-Border Legal Recognition of Parenthood in the EU. It is available here.

Authored by Alina Tryfonidou (Neapolis University of Pafos), the study examines the problem of non-recognition of parenthood between Member States and its causes, the current legal framework and the (partial) solutions it offers to this problem, the background of the Commission proposal for a 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, and the text of the proposal. It also provides a critical assessment of the proposal and issues policy recommendations for its improvement.

Following successful collaborations in 2021 and 2022, the Asian Business Law Institute (ABLI) and the Permanent Bureau of the Hague Conference on Private International Law (HCCH) are teaming up again for their third joint webinar this year on Tuesday 27 June between 4 to 5:10pm (Singapore time) or 10 to 11:10am (CEST).

Titled Cross-border Commercial Dispute Resolution – HCCH 1965 Service Convention, the webinar is expected to discuss, among others, the operation of the Service Convention in practice, how the Service Convention works with the other HCCH Conventions for cross-border dispute resolution, and Singapore’s accession to and upcoming implementation of the Service Convention.

Invited speakers include Sara Chisholm-Batten (Partner, Michelmores LLP), Melissa Ford (Secretary, HCCH), Delphia Lim (2Director, International Legal Division, Ministry of Law, Singapore), Professor Yeo Tiong Min (Singapore Management University), and Professor Yun Zhao (University of Hong Kong and Representative of Regional Office for Asia and the Pacific, HCCH).

For more information or to register, click here. Early bird discount is available till 28 May.

More about the webinar and its speakers can be found in the flyer.

Queries about the webinar can be directed to ABLI at info@abli.asia.

 

From 22 to 27 May 2023, the 2023 edition of the Milan Arbitration Week will take place, online and in presence. It encompasses a series of events dedicated to domestic, international commercial and investment arbitration, with the participation of renowned Italian and foreign experts from academia and legal profession.

 

The Milan Arbitration Week is jointly organized by Università degli Studi di Milano and the European Court of Arbitration, in collaboration with DLA Piper-Milan, Comitato Italiano dell’Arbitrato, the Centre of Research DEuTraDiS and the Erasmus + Programme of the European Union.

 

In particular, this edition will focus on the recent Italian reform of arbitration law; the mechanism of the mandatory mediation; the status quo and future perspectives of surfing on pledges in international arbitration; the umbrella clauses; the recent developments of the relationships between EU Law and investment arbitration. In addition, the MiAW, always attentive to the relationship between university education and arbitration, will host a chat with the winners of the 30th edition of the Willem C. Vis International Commercial Arbitration Moot, as well as the Frankfurt Investment Pre-Moot (Conference and hearings), organized by DLA Piper, Milan.

 

All information (including how to register) can be found at this link.

The UK Supreme Court ruled that the cause of action in the aftermath of the 2011 Bonga offshore oil spill accrued at the moment when the oil reached the shore. This was a one-off event and not a continuing nuisance. The Nigerian landowners’ claim against Shell was thus barred by the limitation periods under applicable Nigerian law (Jalla and another v Shell International Trading and Shipping Company and another [2023] UKSC 16, on appeal from [2021] EWCA Civ 63).

On 10 May 2023, the UK Supreme Court has ruled in one of the cases in the series of legal battles started against Shell in the English courts in the aftermath of the Bonga spill. The relevant facts are summarized by the UK Supreme Court as follows at [6] and [7]:

6. (…) The Bonga oil field is located approximately 120 km off the coast of Nigeria. The infrastructure and facilities at the Bonga oil field include a Floating Production Storage and Offloading unit (“FPSO”), which is linked to a Single Point Mooring buoy (“SPM”) by three submersible flexible flowlines. The oil is extracted from the seabed via the FPSO, through the flowlines to the SPM, and then on to tankers. The Bonga Spill resulted from a rupture in one of the flexible flowlines connecting the FPSO and the SPM. The leak occurred overnight during a cargo operation when crude oil was being transferred from the Bonga FPSO through the SPM and onwards onto a waiting oil tanker on (…) 20 December 2011. The cargo operation and the leaking were stopped after about six hours.
7. As a result of the Bonga Spill, it is estimated that the equivalent of at least 40,000 barrels of crude oil leaked into the ocean. The claimants allege that, following its initial escape, the oil migrated from the offshore Bonga oil field to reach the Nigerian Atlantic shoreline’.

Some 27,830 Nigerian individuals and 457 communities stated that the spill had a devastating effect of the oil on the fishing and farming industries and caused damage to their land. They sued Shell in English courts. The claim was instituted against International Trading and Shipping Co Ltd (an English company, anchor defendant) and Shell Nigeria Exploration and Production Co Ltd (a Nigerian company, co-defendant).

The English courts have accepted jurisdiction, as it had happened in several cases based on a comparable set of facts relevant for establishing jurisdiction, as reported earlier on this blog here, here, here, here, and here. The jurisdiction and applicable law in the specific case of Bonga spill litigation have been closely followed inter alia by Geert van Calster here.

The case at hand is an appeal on a part of an earlier rulings. However, unlike some earlier claims, this is not a representative action, as the UK Supreme Court explicitly states at [8]. The crux of the ruling is the type of tort that the Bonga spill represents under Nigerian law, applicable to that case (on applicable law, see Jalla & Anor v Shell International Trading and Shipping Company Ltd & Anor [2023] EWHC 424 (TCC), at [348] ff.).

According to the Nigerian party, the spill gave rise to ‘a continuing cause of action because there is a continuing nuisance so that the limitation period runs afresh from day to day,’ as some oil has not been cleaned up and remained on the coast. Shell submitted, on the contrary, that the spill was a one-off event, that the cause of action accrued with the coast was flooded, and that the claim was time barred under the relevant limitation statutes. The lower courts and the UK Supreme court agreed with Shell. They rule that the cause of action had accrued at the moment when the spilled oil had reached the shore. This occurred some weeks after the spill. As a result, at the moment of instituting the proceedings, the claim was time barred.

Noteworthy is the detail in which the UK Supreme Court discusses the authorities on the tort of nuisance under the heading ‘4. Four cases in the House of Lords or Supreme Court’ at [17] ff. This degree of detail is certainly not surprising, due to the relevance of English law for the Nigerian legal system. In the meantime, it contrasts with the approach that would be adopted by a civil law tradition’s court, if the case was brought under their jurisdiction. Firstly, in the civil law traditions, a claim governed by foreign law reaches the highest judicial authority only in exceptional cases. Secondly, if – as in this case – there were ‘no prior case in English law that has decisively rejected or accepted the argument on continuing nuisance put forward by the claimants in this case,’ a continental court might have come to the same conclusion, but finding the law would perhaps be much less business as usual for a continental court than for the UK Supreme Court.

The footage of the hearings that the UK Supreme Court makes available on its website is most enlightening on the Court’s approach and reasoning.

Regular readers will be aware that disciplining the use of the anchor defendant mechanism is not an easy task for a court to undertake (I have linked to one post yet the search tag ‘anchor’ will take you to plenty). The CJEU takes a restrictive view. Although in the case at issue Article 8(1) Brussels Ia does not formally apply (the mechanism does not apply to defendants domiciled outside the EU), instruction in Dutch residual rules is that they be applied as A8(1) would.

In Stichting Claim Gran Petro v Shell Netherlands, Shell Brasil and Raizen ECLI:NL:RBDHA:2023:7099, the Hague court of first instance did though refuse jurisdiction against the one Brazilian defendant (Raisen), anchored unto two Dutch Shell entities (Shell now having moved domicile exclusively to England was held [5.2] not to have relevance on account of the perpetuatio fori principle), citing abuse of the anchor defendant mechanism.

Shell have a majority share in Raisen. The claimants in essence called upon the corporate structure of Shell and, pro inspiratio, hoped to convince the court that the presumption of involvement of mother corporations in their daughter’s anti-competitive shenanigans might be enough to justify the relatedness of the claims. Such assumption exists in EU competition law (see eg CJEU ENI) however the court finds that claimants have not been able to prove a Brazilian equivalent.

The court refers ia to CJEU CDC v Azo Nobel et al to emphasize the condition that the anchor mechanism must not be intended merely to remove the defendant at issue from its natural domicile forum. [6.7] the court reports that the claimants acknowledge that Dutch jurisdiction is sought for reasons of  general tardiness of Brazilian proceedings. There is no suggestion that Raizen will not be willing to meet any future damages. Seeing as no presumption under Brazilian law of mother corporation involvement exists, and seeing as no proof of factual involvement of the Shell mother entities was furnished, [6.16] the court concludes that the anchor mechanism at issue is an abusive application and must not lead to jurisdiction.

Geert.

1/2 Follow-on competition law damages claim, after Brazilian competition commission finding of abuse
Held no jurisdiction against BRA corp controlled by Shell
Abuse of Dutch equivalent of anchor defendant mechanism, citing CJEU authority pro inspiratio

— Geert Van Calster (@GAVClaw) May 17, 2023

 

Hart Studies in Private International Law officially released a book today titled: The HCCH 2019 Judgments Convention: Cornerstones, Prospects, Outlook. The book is edited by M Weller et al. The blurb reads as follows:

This book analyses, comments and further develops on the most important instrument of the Hague Conference on Private International Law (HCCH): the HCCH 2019 Judgments Convention. The HCCH Convention, the product of decades of work, will have a transformative effect on global judicial cooperation in civil matters. This book explores its ‘mechanics’, i.e. the legal cornerstones of the new Convention (Part I), its prospects in leading regions of the world (Part II), and offers an overview and comment on its outlook (Part III). Drawing on contributions from world-leading experts, this magisterial and ambitious work will become the reference work for law-makers, judges, lawyers and scholars in the field of private international law.

On 15 May an Antwerp justice of the peace (effectively a first instance judge in ia neighbourly disputes) has issued a common sense, no nonsense judgment against 3M’s pollution for its PFAS pollution of the soil around its manufacturing site at the Port of Antwerp. (For background to PFAS aka per and polyfluoroalkyl substances see also my earlier post on applicable law). PFAS produced there were mainly used in fire extinguishing foam.

Bypassing the sluggish criminal law and public law investigations and enquiries, and in view of alarming levels of PFAS found in the family’s blood, two immediate neighbours at the site claim against 3M on the basis of what is effectively common law nuisance. Such a claim is one of strict liability: it does not seek to establish fault or negligence, rather it aims at addressing the imbalance in proprietary enjoyment.

The judgment reminds us that the historic roots of many an environmental law (think Rylands v Fletcher (1868) LR 3 HL 330 and later Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53 ) are still good law despite the overwhelming body of local, regional, federal, EU and international environmental statutory laws.

3M (other than to internal civil procedure rules on the court’s jurisdiction) referred ia to its environmental permit and to its use of ‘state of the art environmental technologies; to the distinction between the statutory remediation duty on the one hand and the liability for pollution, on the other; to its voluntary phasing out of PFAS at the site, and to the soil remediation (negotiated with /imposed by the Flemish authorities) it will carry out ia on the claimants’ property ; to the inconclusiveness of data on long-term health impact; and to the need to at the least stay the case in light of ongoing criminal and public law investigations.

The judge held that claimants’ individual rights exist independently of public and criminal procedures and may be enforced separately, and that all four elements for the laws of nuisance are present:

Neighbourliness (the only element not contested by 3M);

Nuisance. For the existence of nuisance, the judge referred ia to statements aka ‘extrajudicial confessions’ made by 3M executives during hearings in the Flemish Parliament;

Excessive nuisance. The nuisance is also held to be excessive, with simple reference ia to clearly abnormal PFAS readings in claimants’ blood;

Attributable to 3M. Here, too, the judge holds straightforwardly: ia mapping ordered by the Flemish Government shows a clear concentration of PFAS on the sites run by 3M.

The judge concludes with a provisional statement of €2,000 damages for the reduced enjoyment by claimants of their property.

The judgment does not indicate the parameters to be used for final determination of damages. Early commentary on the judgment indicates a number of open questions, such as the parameter within which claimants can be considered to be ‘neighbours’, etc. It is clear that 3M will not just appeal, but will generally continue its approach of litigating each and every claim (of note is that Belgium’s collective proceedings provisions are not optimal, and moreover difficult to apply to common law nuisance cases) with convoluted legal reasoning and much distinguishing. Yet the judgment is appealing in its straightforwardness and no doubt inspiring to the many proceedings which, sadly, are en route in this sad episode of industrial ‘innovation’.

Geert.

Vereerd me in het gezelschap van @omgevingsrecht te vinden in @vrtnws berichtgeving over #3M https://t.co/sXXjZq0rYh

— Geert Van Calster (@GAVClaw) May 17, 2023

 

A group of German scholars, consisting of Christine Budzikiewicz (University of Marburg), Konrad Duden (University of Leipzig), Anatol Dutta (Ludwig Maximilian University of Munich), Tobias Helms (University of Marburg) and Claudia Mayer (University of Regensburg), collectively the Marburg Group, reviewed the European Commission’s proposal of 7 December 2022 for a 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 Group, while welcoming the initiative of the Commission issued a paper to suggest some fundamental changes, apart from technical amendments.

The Group’s comment can be found here.

Last July, I posted about a joint webinar between the Singapore-based Asian Business Law Institute (ABLI) and the Permanent Bureau of the Hague Conference on Private International Law (HCCH) on the Choice-of-Court and Judgments Conventions. The two organizations return this year with their third joint session, this time on the 1965 Service Convention.

Titled Cross-border Commercial Dispute Resolution – HCCH 1965 Service Convention, the webinar will take place on Tuesday 27 June between 4 to 5:10pm (Singapore time) or 10 to 11:10am (CEST), and is expected to discuss, among others, the actual operation of the Service Convention in practice, how the Service Convention works with the other HCCH Conventions for cross-border dispute resolution, and Singapore’s accession to and upcoming implementation of the Service Convention.

Invited speakers include Sara Chisholm-Batten (Partner, Michelmores LLP), Melissa Ford (Secretary, HCCH), Delphia Lim (2Director, International Legal Division, Ministry of Law, Singapore), Professor Yeo Tiong Min (Singapore Management University), and Professor Yun Zhao (University of Hong Kong and Representative of Regional Office for Asia and the Pacific, HCCH).

For more information or to register, click here. Early bird discount is available until 28 May.

Queries about the webinar can be directed to Catherine of ABLI at info@abli.asia.

Geert.

 

The United States legal system is immensely complex. There are state courts and federal courts, state statutes and federal statutes, state common law and federal common law. When I imagine a foreign lawyer trying to explain this system to a foreign client, my heart fills with pity.

This feeling of pity is compounded when I imagine this same lawyer trying to advise her client as to whether a choice-of-court clause will be enforced by a court in the United States. The law on this subject is complicated. It is, moreover, not easy to determine how it is applied in practice. Are there differences in clause enforcement rates across the states? Across federal circuits? Do state courts enforce these clauses at the same rate as federal courts? Until recently, there was no data that would allow a foreign lawyer – or a U.S. lawyer, for that matter – to answer any of these questions.

Over the past several years, I have authored or co-authored several empirical articles that seek to answer the questions posed above. This post provides a summary of the data gathered for these articles. All of the cases referenced involve outbound choice-of-court clauses, i.e. clauses that select a jurisdiction other than the one where the suit was filed. Readers interested in the data collection process, the caveats to which the data is subject, or other methodological issues should consult the articles and their appendices. This post first describes state court practice. It then describes federal court practice. It concludes with a brief discussion comparing the two.

 

State Courts

Most state courts have held that choice-of-court clauses are presumptively enforceable. These courts will not, however, enforce a clause when it is unreasonable or contrary to public policy. A clause may be deemed unreasonable when enforcement would result in duplicative litigation, when the plaintiff cannot obtain relief in the chosen forum, when the plaintiff was never provided with notice of the clause, or when the chosen forum lacks any relationship to the parties. A clause is contrary to public policy when a statute or a judicial decision declares that enforcement is inconsistent with the policy of the state.

The chart below lists the enforcement rate in state courts with at least fifteen judicial decisions between 1972 and 2019 and at least ten judicial decisions between 2010 and 2020. These rates were calculated by dividing (1) the total number of cases where a clause was enforced by (2) the total number of cases where the court considered the issue of enforceability.

 

State Enforcement Rate

1972-2019 Enforcement Rate

2010-2020 California 80% 78% Connecticut 71% 88% Delaware 89% 100% Florida 78% 100% Georgia 67% 54% Illinois 74% 83% Louisiana 78% 70% Michigan 78% 82% New Jersey 63% 64% New York 79% 76% Ohio 78% 73% All States 77% 79%

Between 1972 and 2019, state courts enforced choice-of-court clauses in 77% of cases. Between 2010 and 2020, they enforced them in 79% of cases. The state courts in Florida and Connecticut have become more likely to enforce in recent years. The state courts in Georgia have become less likely to enforce in recent years. The state courts in California, New Jersey, and New York have been relatively consistent in their enforcement practice over time.

These data indicate that while there are significant differences in enforcement rates in state court across the United States, choice-of-court clauses are given effect in most cases.

Federal Courts

Like state courts, federal courts take the position that choice-of-court clauses are presumptively enforceable. Like state courts, federal courts will not enforce these clauses when they are unreasonable or contrary to public policy. Unlike state courts, federal courts do not apply state law to decide the issue of enforceability. They apply federal common law. This means that the federal courts are free to adopt their own view of whether a clause is unreasonable or contrary to public policy without considering prior state court decisions.

In theory, the fact that the federal courts apply federal common law to this question should produce uniform results across the nation. In fact, there are notable variations in enforcement rates across federal district courts sitting in different circuits, as shown in the chart below.

 

 

Circuit

  Enforcement Rate

All Federal Cases

2014-2020 Eleventh Circuit 95% Third Circuit 92% Second Circuit 91% Sixth Circuit 91% Fifth Circuit 90% Fourth Circuit 90% All Circuits 88% Seventh Circuit 87% First Circuit 84% Eighth Circuit 85% Tenth Circuit 83% Ninth Circuit 81%

The federal district courts sitting in the Eleventh Circuit, which includes Florida, have the highest enforcement rate. The federal district courts sitting in the Ninth Circuit, which includes California, have the lowest enforcement rate. On the whole, a plaintiff arguing that a choice-of-court clause is unenforceable would rather be in federal court in California than in Florida. Even in California, however, these clauses are still enforced by federal courts in the overwhelming majority of cases.

Comparing State and Federal Courts

Federal courts sitting in diversity enforce choice-of-court clauses at a rate that is equal to or greater than the rate of geographically proximate state courts in every federal circuit. In the Fourth and Eighth Circuits, the enforcement gap is particularly large, as shown in the chart below.

 

Circuit Enforcement Rate

State Cases

(2010-2020) Enforcement Rate

Federal Diversity Cases

(2014-2020) Difference Fourth Circuit 67% 96% 29% Eighth Circuit 64% 88% 24% Sixth Circuit 73% 93% 20% Third Circuit 76% 95% 19% Eleventh Circuit 78% 96% 18% Second Circuit 78% 94% 16% First Circuit 79% 94% 15% Overall 79% 90% 11% Ninth Circuit 78% 85% 7% Tenth Circuit 86% 91% 5% Fifth Circuit 90% 90% 0% Seventh Circuit 85% 85% 0%

These data suggest that a defendant seeking to enforce a choice-of-court clause should try to remove the case to federal court. These courts are, on average, more likely to enforce a clause than their state counterparts. The data further suggest that plaintiffs seeking to invalidate a choice-of-court clause should strive to keep the case in state court. These courts are, on average, less likely to enforce a clause than their federal counterparts. The incentives for forum shopping as between state and federal court when it comes to choice-of-court clauses raise serious concerns under the U.S. Supreme Court’s decision in Erie Railroad Company v. Tompkins, as discussed at greater length here,

There are two main reasons why the enforcement rate is higher in federal court. First, some federal courts applying federal law refuse to give effect to state statutes that invalidate choice-of-court clauses. When these invalidating statutes are applied by state courts and ignored by federal courts, the result is a sizable enforcement gap. The Supreme Court recently denied cert in a case that would have resolved the question of whether federal courts should give effect to state statutes that invalidate choice-of-court clauses.

Second, federal courts applying federal law are less willing than state courts applying state law to conclude that a clause is unreasonable. Over many cases decided over many years, state court judges have shown themselves to be more sympathetic to plaintiffs seeking to avoid choice-of-court clauses. Federal courts, by comparison, have enforced clauses in a number of instances where state courts probably would have refused on unreasonableness grounds.

Conclusion

The law of choice-of-court clauses in the United States is sprawling and complicated. Until recently, there were no empirical studies addressing how the courts applied this law in practice. The information presented above is the product of hundreds of hours of work reading thousands of state and federal cases in an attempt to identify patterns and trends.

Readers interested in learning more about state court practice should look here and here. Readers interested in learning more about federal court practice should look here. Readers interested in learning more about the differences between state and federal practice – and the Erie problems generated by these differences – should look here.

[A version of this post is cross-posted at Transnational Litigation Blog.]

We are happy to announce the following new members of the Editorial Board:

• Prof Marlene Wethmar-Lemmer (University of South Africa, South Africa)
• Prof Béligh Elbalti (University of Osaka, Japan)
• Prof David P Stewart (Georgetown University, USA)
• Prof Du Tao (East China University of Politics and Law, China)
• Prof Wenliang Zhang (Renmin University, China)
• Prof Samuel Fulli-Lemaire (University of Strasbourg, France)
• Prof Étienne Farnoux (University of Strasbourg, France)

Ralf Michaels (Max Planck Institute Hamburg) has posted Private International Law and the Legal Pluriverse on SSRN.

The abstract reads:

Private international law responds to the plurality of existing normative orders, and at the same time, as domestic law, it partakes in that plurality. As a consequence, private international law does not overcome legal plurality, nor does it provide a metanormativity shared between the regimes; it merely adds a second level to the plurality of substantive laws and conflicts regimes. This makes a legal ontology necessary that avoids oneness and embraces plurality. The chapter suggests pluriversality as such an ontology. Drawing on different theories – Carl Schmitt, William James, and decolonial theory – such an ontology is developed and analyzed. Private international law is not an add-on in such an ontology; instead it is a constitutive element.​

The paper is forthcoming in Philosophical Foundations of Private International Law, OUP, Roxana Banu, Michael Green, Ralf Michaels, eds.

We are pleased to announce that registration is now open for the 9th Journal of Private International Law Conference. The conference will be held on 3 to 5 August 2023 at the Yong Pung How School of Law at the Singapore Management University. The keynote address will be delivered by The Honourable Justice Philip Jeyaretnam, President of the Singapore International Commercial Court.

The deadline for speakers to register is 30 May 2023. The deadline for other registrants is 25 June 2023.

Registration is complimentary for speakers, Journal of Private International Law editorial board members and SMU faculty, staff and students. Preferential rates apply for academics, government officials, SMU alumni and non-SMU students – register with your institutional e-mail to enjoy the preferential rate.

More information, including the draft programme and link to register, can be found here. We look forward to welcoming you to Singapore.

As noted earlier on this blog, on 17 May 2023, from 6 pm to 8 pm CEST, the third webinar of the series that has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal will take place. The webinar, chaired by Nadia Rusinova, will deal with the following relations: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Tryfonidou), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi).

Those wishing to attend have time until 16 May 2023 at noon to register. The registration form is available here.

Registered participants will receive the details to join the webinar by e-mail (please note the e-mails with these details occasionally end up in the spam folder).

The form, then, will remain open for registration for the last webinar of the series.

The updated and final version of the program is available here.

The first issue of 2023 of the Journal of Private International Law is out. It contains the following articles:

David McClean, The transfer of proceedings in international family cases

There is general agreement that jurisdiction over issues concerning children or vulnerable adults should lie with the court of their habitual residence. There are particular circumstances in which that is not wholly satisfactory and four international instruments have provided, using rather different language, the possibility of jurisdiction being transferred to a court better placed to decide the case. They include Brussels IIb applying in EU Member States since August 2022 and the Hague Child Protection Convention of growing importance in the UK. This paper examines that transfer possibility with a detailed comparison of the relevant instruments.

Matthias Lehmann, Incremental international law-making: The Hague Jurisdiction Project in context

The Hague Conference on Private International Law is currently working towards a new instrument on jurisdiction and parallel proceedings. But critics ask if we need another instrument, in addition to the Hague Choice of Court Convention of 2005 and the Hague Judgments Convention of 2019. This article gives reasoned arguments for a “yes” and explores possibilities for the substantive content of the new instrument. It does so by looking back and contextualising the new instrument with regard to the two preceding Conventions, and by looking forward to what is still to come, ie the interpretation and application of all three instruments. On this basis, it argues that a holistic approach is required to avoid the risk of a piecemeal result. Only such a holistic approach will avoid contradictions between the three instruments and allow for their coherent interpretation. If this advice is heeded, incremental law-making may well become a success and perhaps even a model for future negotiations.

Ben Köhler, Blaming the middleman? Refusal of relief for mediator misconduct under the Singapore Convention

The discussion surrounding the Singapore Convention on Mediation 2018 has gathered steam. In particular, the refusal of enforcement based on mediator misconduct as prescribed in Article 5(1)(e) and (f) has been the focus of debate and is widely perceived to be the Convention’s Achilles heel. These two provisions, already highly controversial in the drafting process, have been criticised as ill-suited to a voluntary process and likely to provoke ancillary dispute. This article defends these grounds for refusal, arguing that they play an indispensable role in guaranteeing the legitimacy of mediated settlements enforced under the Convention. It addresses some of the interpretative challenges within Article 5(1)(e) and (f) before discussing the tension between the provisions on mediator misconduct and the confidentiality of the mediation. The article then offers some guidance on how parties may limit the effects of the provisions, concluding with a brief outlook for the future.

Abubakri Yekini, The effectiveness of foreign jurisdiction clauses in Nigeria: an empirical inquiry

Business entities do not often include terms in commercial agreements unless those terms are relevant and are designed to maximise the gains of the parties to the agreement. To realise their reasonable and legitimate expectations, they expect that contractual terms and promises would be respected by the parties and courts. There is a growing body of literature suggesting that Nigerian courts are not giving maximum effects to foreign jurisdiction clauses (FJC). What is largely missing from the scholarly contributions is that no one has worked out a principled solution to overcome this conundrum. This article significantly contributes to the existing literature through an empirical analysis of Nigerian appellate court decisions on FJCs with a view to gaining deeper insights into the attitude of Nigerian courts to FJCs. Compared to the US where the national average of enforcement is 74%, a 40% rate for Nigeria does not project Nigeria as a pro-business forum. This outlook can potentially disincentivise cross-border trade and commerce between Nigeria and the rest of the world. To address this problem, the paper proceeds by presenting a normative framework, built principally on economic and contract theories, for enforcing FJCs. As most of the cases are B2B transactions, the paper invites the courts to treat FJCs and arbitration clauses equally and to replace forum non conveniens considerations with a more principled approach which limits non-enforcement to overriding policy, and a strong cause that is defined by reasonableness and foreseeability.

Mohammed Mjed Kabry and Azam Ansari, The enforcement of jurisdiction agreements in Iran

Parties to a contract may designate the court or courts of a particular country to decide their disputes which have arisen or may arise from a particular legal relationship. Many countries give party autonomy its binding effect in selecting the competent court and enforcing jurisdiction agreements. There is complete silence in Iranian law regarding the enforcement of jurisdiction agreements. The current study examines the enforcement of jurisdiction agreements under Iranian law. This study investigates whether parties in international disputes can agree to confer jurisdiction to Iranian non-competent courts and whether they can agree to exclude the jurisdiction of competent Iranian courts in favour of foreign courts. The study contends that parties can agree to grant jurisdiction to Iran’s non-competent courts unless the excluded foreign court has exclusive jurisdiction to hear the dispute. On the other hand, parties may agree to exclude the jurisdiction of the competent Iranian courts in favour of foreign courts unless the Iranian courts assert exclusive jurisdiction over the dispute.

Alexander A. Kostin and Daria D. Kuraksa, International treaties on assistance in civil matters and their applicability to recognition of foreign judgments on the opening of insolvency proceedings (reflections regarding the Russian national and international experience)

The article examines the question of admissibility of recognition of foreign judgments on commencement of bankruptcy proceedings on the basis of international treaties on legal assistance. It examines the background of these international treaties, as well as the practice of their application in respect of this category of foreign judgments. The authors conclude that foreign court decisions on opening of insolvency (bankruptcy) proceedings should be regarded as “judgments in civil matters” for the purpose of the international treaties on legal assistance. This category of foreign judgments should be recognised on the basis of international treaties in the Russian Federation, despite the existing approach of Russian courts (including the Judgment of the Arbitrazh (Commercial) Court of the Ural District of 09.10.2019 in case No. A60-29115/2019).

We are pleased to remind you two days ahead of a lecture hosted by the University of Bonn in cooperation with ConflictofLaws.net. Professor Amnon Lehavi (Harry Radzyner Law School, Reichman University, Israel) is going to speak on ‘Globalization through the re-codification of property law?’.

The globalization of markets, technology, and interpersonal networks poses a growing challenge for national legal systems. Property law is traditionally considered a “domestic” field of law, not only because of its structural features (such as the in rem or numerus clausus principles), but also because it promotes cultural, economic, and social values. The decision if property law should be globalized also requires a choice among potential globalization strategies (how to do so). This lecture examines four globalization strategies: (1) soft law / private ordering; (2) conflict of laws; (3) approximation; and (4) supranationalism. It does so by comparing three types of assets: land, digital assets, and cultural property – which have all been dramatically affected by current processes of globalization, albeit in diverging ways. It is argued that different strategies of globalization, and corresponding forms of re-codification of national property laws, should be adopted for land, digital assets, and cultural property.

The event will take place on 17 May at 6.30pm at the Senate Hall of the University of Bonn; it can also be joined via Zoom. The flyer can be found here.