Droit international général

Written by Harshal Morwale, Counsel, Singularity Legal

Introduction

The precise determination of the laws that will govern different aspects of international arbitration is a crucial matter, given that there could be a substantial divergence between different laws, such as the law of the seat and the substantive law of the contract on the same issue. One such issue is limitation.

The determination of the law applicable to limitation is a complex exercise. The different characterization of limitation as a procedural or substantive issue adds more to the complexity. This issue could not be simpler in India. This post is prompted by a recent decision of the Delhi High Court (“DHC”) in Extramarks Education India v Shri Ram School (“Extramarks case”), which although on domestic arbitration, makes various obiter observations on the nature of limitation and flexibility of parties to contract out of the same.

The aim of this post is to explore how would Indian substantive law of the contract impact limitation period and party autonomy, especially in the context of contracting out of limitation in a foreign-seated international arbitration. It will also look at the legality of limitation standstill agreements to defer the limitation period in the context of foreign-seated arbitration by examining prevailing legal principles together with relevant case laws and through the prism of the decision in the Extramarks case.

Classification of limitation in the context of foreign-seated arbitrations – procedural or substantive?

The limitation in India is governed by the Limitation Act, 1963 (“Limitation Act”).

The Supreme Court of India (“SC”) and the Law Commission of India have characterised the law of limitation as a procedural law. That being stated, the SC has also proposed a more nuanced approach to classifying law of limitation noting that while limitation is prima facie a procedural law construct, its substantive law characteristics cannot be wholly discounted.

This distinction was affirmed by the DHC in the NNR Global Logistics case, which concerned the enforcement of a foreign award where the seat of arbitration was Kuala Lumpur and the applicable substantive law of the contract was Indian law. Under Indian law, the limitation for the type of cause of action at stake, in this case, was three years as opposed to Malaysian law, where the limitation was six years. The respondent argued that since Indian law is the substantive law governing the contract, and given that the Limitation Act could be substantive law, Indian limitation law would apply. The DHC rejected this contention and held that the law of limitation is procedural, and the issues of limitation would be governed by procedural/curial law governing the arbitration, i.e., the lex arbitri. However, the DHC’s reasoning is suspect insofar as it makes the link between limitation law and procedural law uncritically, discounting the impact or connection of limitation with the remedy, and the substantive law implications therewith.

While the premise that since the arbitral procedure is governed by the lex arbitri and since limitation is generally a procedural law subject, the lex arbitri must govern the limitation might appear fairly straight forward, there exists a degree of tentativeness as to the characterisation of limitation in the context of international arbitration. The recent DHC decision in the Extramarks case makes some interesting observations which could have a deep impact on the mentioned premise.

In the Extramarks case, the issue at stake was the limitation period for filing an application before the High Court for the appointment of the arbitrator, for a purported India-seated domestic arbitration. The DHC held that conceptually, limitation bars a legal remedy and not a legal right, the legal policy being to ensure that legal remedies are not available endlessly but only up-to a certain point in time. The DHC further held that a party may concede a claim at any time; but cannot concede availability of a legal remedy beyond the prescribed period of limitation. In essence, according to the DHC, passing of limitation bars a remedy, which would generally mean that limitation is a procedural law subject. This distinction is in line with the traditional ‘right is substantive and remedy is procedural’ divide that exists in the common law. However, this position is not a settled one and remedy, could, arguably, be governed by the substantive law governing the contract.

Interestingly, the Singapore Court of Appeal in BBA v. BAZ, drew a distinction between procedural and substantive time bars in the context of international arbitration, noting that time bar of remedy is procedural in nature. Simultaneously, it was also observed that choice of seat does not automatically require application of the seat’s limitation period and the applicable substantive law will have to be looked at. Consequently, the principle that limitation is a procedural law issue and subject to lex arbitri cannot be relied on reflexively.

If the position of the DHC in NNR Global Logistics case is contrasted with the position in Extramarks case, acknowledging the difficulties in making substantive and procedural classification vis-à-vis limitation in international arbitration, then the choice of Indian substantive law in a foreign-seated arbitration could potentially mean that the tribunal presiding over in a foreign-seated arbitration with Indian substantive applicable law could potentially be required to engage in the limitation period analysis from the perspective of the seat as well as the Limitation Act and might be confronted with conflicting limitation periods. However, there lacks judicial clarity as to how to resolve the conflict when there is repugnancy in limitation prescribed in the lex arbitri and the Limitation Act, which would more often be the case.

Notably, Schwenzer and Manner argue that choice of substantive law should prevail over choice of seat and lex causae must govern the question of limitation of actions, notwithstanding whether it is classified as substantive or procedural. Indeed, this is the prevalent position in the civil law jurisdictions. However, this argument, if accepted, will have certain repercussions on the party autonomy, especially from an Indian perspective in the context of standstill agreements, as explored below.

Suspending/Extending Limitation in Foreign-seated Arbitrations

A standstill agreement is a contract between the potential parties to a claim to either extend or suspend the limitation period for a fixed time or until a triggering event occurs without acknowledging the liability.

The legality of such agreements is not entirely clear under Indian law. For instance, Section 28 of the Limitation Act expressly bars agreements that limit the time within which a party may enforce its rights. However, the converse, i.e., the possible extension of limitation, is not discussed in the Limitation Act. According to Section 25(3) of the Indian Contract Act, the parties can enter into an agreement to enforce a time-barred debt as long as there is a written and signed promise to pay the debt, essentially acknowledge the debt/liability. However, as noted above a standstill agreement is not an admission or acknowledgement of liability and hence Section 25(3) would not applicable. It has also been noted that the legality of standstill agreements in India is sub-judice before the Madras High Court.

From an India-seated domestic arbitration perspective, in light of DHC’s ruling in the Extramarks case, that a “party may concede a claim at any time; but cannot concede availability of a legal remedy beyond the prescribed period of limitation”, it would mean that limitation standstill agreements would not be valid.

From a foreign-seated arbitration with Indian substantive applicable law perspective, relying on the NNR Global Logistics case, it may be argued that the seat’s procedural law, including limitation law provisions, will apply and as long as limitation standstill agreements are permitted under the lex arbitri, there should not be an issue. However, given that merits of the claim would be anchored in Indian law, if limitation is viewed from a substantive law perspective, the impact of the Extramarks case ruling on the parties’ ability to enter into standstill agreements in foreign seated arbitration with Indian substantive law appears precarious.

Essentially, the legality of standstill agreements in foreign seated arbitration with Indian substantive law faces a critical impediment explored above, i.e., the divide between substantive and procedural classification. One possible view could be that since the parties have already chosen the seat of the arbitration, all procedural law issues will be governed by law of the seat, if, indeed, limitation is treated as a procedural issue. A second, contrary view may be that the legality of a standstill agreement would be tested on the touchstone of Indian law, since the choice of applicable substantive law of the contract is Indian law under which limitation cannot be conceded beyond the prescribed period by consent.

Given that the impact of Indian substantive law on the issue of limitation and standstill agreements is not entirely clear, in light of the Extramarks case, the tribunals might now be required to consider a relatively unique issue of limitation period alongside large number of other considerations in an international arbitration with Indian substantive applicable law.   

Conclusion

In the process of exploring the impact of Indian substantive law of the contract on parties’ freedom to contract out of limitation in a foreign-seated international arbitration, the tensions between procedural law and substantive law in foreign-seated arbitrations vis-à-vis limitation become apparent. The tensions are further compounded by the ruling in the Extramarks case that limitation bars remedy and that the parties cannot contract out of limitation. The exact impact of the Extramarks case on the parties to an international arbitration contemplating standstill agreements remains unclear and the connected issues in this context remain to be seen.

(The opinions of the author are personal and do not represent the opinion of the organisations he is affiliated with.)

On 6 December 2022, the European Court of Human Rights (ECtHR) ruled in the Danish surrogacy case of K.K. and Others v. Denmark.

In a 4–3 judgment, the ECtHR held that Denmark violated the rights enshrined in Article 8 of the European Convention on Human Rights (ECHR), as claimed by  two children born through a commercial surrogacy arrangement in Ukraine, by not recognizing their intended Danish mother as a legal parent. However, the three dissenting judges held that there was no violation of Article 8 in the circumstances. According to the minority, a State must be able to have a policy opposing commercial surrogacy arrangements. They emphasized that Denmark recognized the legal relationship between the father and the children.

Facts

In December 2013, twins were born by a surrogate mother in Ukraine after a commercial arrangement. Ukrainian authorities issued birth certificates for the children. In the birth certificates, a Danish wife and husband were registered as mother and father. Upon their return to Denmark, the Danish authorities refused to recognize the Danish woman named in the birth certificate as a legal parent under Danish law, as she had not given birth to the children. The father was recognized, as he indeed was the biological father of the children. Due to their family connection to the father, the twins obtained Danish citizenship.

The woman continued her struggle with the Danish authorities to become registered as mother of the twins. Shortly after the refusal to recognize her as a mother, she was granted joint custody of the children together with the father. To become a legal parent, she applied for adoption of the children as a step-mother. That application was processed in different Danish authorities and court procedures for more than six years. Eventually, the Danish Supreme Court held that adoption would be contrary to Section 15 of the Danish Adoption Act as the Ukrainian surrogate mother had received remuneration.

The woman and the father filed an application to the ECtHR, claiming that their rights to a family life under article 8 of the ECHR had been violated.

Judgment

The ECtHR found, with smallest possible majority, that Denmark had violated the family rights of the two children who were also applicants in the case. In its judgment, the ECtHR referred to the principles primarily set out in the landmark judgments Mennesson and Paradiso and Campanelli. Those principles, which were effectively summarized in the ECtHR’s 2019 advisory opinion, can be said to indicate that article 8 of the ECHR, read in the light of the principle of “the best interests of the child,” protects the rights of children produced through surrogacy. Non-recognition of a parent-child relationship is therefore a violation of the children’s article 8 rights. Following those principles, the ECtHR held that Denmark did not violate article 8 in relation to the woman by not recognizing a legal parent-child relationship. However, the children’s rights under article 8 were violated by not having their relationship to the intended mother recognized. In its conclusion, the court stressed that it was in the best interests of the children to have the legal relationship recognized.

Dissenting Opinions

It is noteworthy that the judgment was a close call for the applicants. Only four of seven judges voted for the judgment. In stark contrast to the majority, the remaining three judges’ joint dissenting opinion was that Denmark had not violated any ECHR rights at all. Emphasizing that there is no consensus within the member states of the Council of Europe on the sensitive matter of commercial surrogacy, the dissenters initially held that there must be a margin of appreciation for states to strike a balance between private and public interests or convention rights. According to the minority, the judgment “practically eliminate[s] altogether, in substance, the margin of appreciation” for foreign commercial surrogacy arrangements. The minority also questioned the majority’s application of the principle of the best interests of the child. In the judgment, it is held that the best interests of the children are “paramount”. For its part, the dissenting opinion states that the best interests of the children shall be a “primary consideration” which is the standard set out in international law.

Analysis

It is illustrative of the split opinions that the judgment only gathered the narrowest possible majority. For states opposed to commercial surrogacy arrangements, there seems to be very few tools in the toolbox. On the other hand, it is clear how hughly the best interests of the child are valued. For the time being, it seems hard to bridge the differing values underlying the judgment’s majority opinion and the dissenting minority opinion, respectively.

The following information has kindly been provided by Tess Bens, Research Fellow at the Luxembourg Max Planck Institute:

In September 2022, an EAPIL Working Group met for a conference in Luxemburg to discuss the perspectives and prospects of a reform of the Brussels Ibis Regulation. There were panels on the role and scope of the Brussels Ibis Regulation, collective redress, third state relationships, jurisdiction and pendency, and recognition and enforcement. As a result of the conference, Professor Hess and a team of Researchers of the Max Planck Institute Luxembourg published a preliminary Working Paper which put forward 32 proposals for the reform of the Brussels Ibis Regulation.

Parallel to the preliminary Working Paper, a survey was set up to collect reactions and comments on the proposals. By now, over 60 participants from many different Member States have answered the survey. Participation in the survey is open to anybody interested in the reform of the Brussels I bis Regulation, irrespective of whether they are a member of the European Association for Private International Law. Your input is greatly appreciated. Please note that the survey will be open until 15 April 2023.

The following information has kindly been provided by Professor Sarah Green, UK Law Commissioner for commercial and common law:

Thank you for your interest in our project Digital assets: which law, which court?. We would like to draw your attention to an opportunity to join the team, as the Law Commission is currently recruiting for a lawyer or legal academic to lead this project. This is an exciting opportunity to be at the forefront of legal policy development in this cutting-edge and complex area, working with a range of domestic and international stakeholders.

We are ideally looking for specific experience or demonstrable interest in the private international law of England and Wales. This role will ultimately require a good knowledge of conflict of laws, digital assets and electronic trade documents. However, we are also interested in receiving applications from lawyers or academics with different commercial or common law backgrounds, with an interest in law reform and who can demonstrate a capacity to quickly acquire knowledge of complex areas of law.

Details of how to apply, along with the full job description, essential qualifications and other details, are available at this link: Law Commission: Commercial and Common Law Team, Lawyer(Ref: 73409) – Civil Service Jobs – GOV.UK

We would be grateful if you could draw this opportunity to the attention of anyone who might be interested. The role is also potentially available as a secondment opportunity from a business or academic institution. Please note that, due to civil service policies, the candidate must be UK-based.

If you would like to discuss further, please contact:

Laura Burgoyne, Head of the Commercial and Common Law Team
Email:  laura.burgoyne@lawcommission.gov.uk
Telephone: 07793 966 296

Internationale Wirtschaftsverträge edited by Patrick Ostendorf (Berlin University of Applied Sciences) but otherwise exclusively written by practitioners occupies a unique position with the German literature on international transactions. It is undeniably aimed at practitioners, featuring a great number of check lists, English sample clauses, and practical tips. Accordingly, most of the book is structured around specific elements of international contracts such as penalties (ch. 6), indemnities (ch. 7), limitations of liability (ch. 8), force majeure (ch. 10), choice of law (ch. 13) and so on. In addition, the book features a number of cross-cutting chapters dedicated to particular types of contracts (ch. 18–23). But despite this hands-on approach, the book’s authors reflect on, and draw from, a wealth of academic material, which they condense into immediately applicable guidance.

Although coming out a mere five years after the previous edition, the third editions contains significant updates to most chapters in light of Brexit, Covid 19, Russia’s attack on Ukraine, the updates to Incoterms (2020) and the ICC Arbitration Rules (2021), and some significant legislative activity in Germany and Europe, e.g. with regard to international supply chains. Of course, these rapid developments make the book all the more useful for German lawyers navigating the high seas of international transactions.

Written by Bill Dodge, the John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law at UC Davis School of Law.

On the question of foreign state immunity, the world was long divided between countries that adhere to an absolute theory and those that adopted a restrictive theory. Under the absolute theory, states are absolutely immune from suit in the courts of other states. Under the restrictive theory, states are immune from suits based on their governmental acts (acta jure imperii) but not from suits based on their non-governmental acts (acta jure gestionis).

During the twentieth century, many countries adopted the restrictive theory. (Pierre-Hugues Verdier and Erik Voeten have a useful list of the dates on which countries switched on the last page of this article.) Russia and China were the most prominent holdouts. Russia joined the restrictive immunity camp in 2016 when its law on the jurisdictional immunity of foreign states went into effect. That left China. In December 2022, Chinese lawmakers published a draft law on foreign state immunity, an English translation of which has recently become available. If adopted, this law would move China to into the restrictive immunity camp as well.

China’s draft law on foreign state immunity has important implications for other states, which would now be subject to suit in China on a range of claims from which they were previously immune. The law also contains a reciprocity clause in Article 20, under which Chinese courts may decline to recognize the immunity of a foreign state if the foreign state would not recognize China’s immunity in the same circumstances. Chinese courts could hear expropriation or terrorism claims against the United States, for example, because the U.S. Foreign Sovereign Immunities Act (FSIA) has exceptions for expropriation and terrorism.

In this post, the first of two, I look at the draft law’s provisions on foreign state immunity from suit from a U.S. perspective. In the second post, I will examine the law’s provisions on the immunity of a foreign state’s property from attachment and execution, its provisions on service and default judgments, and its potential effect on the immunity of foreign officials.

It is clear that China’s draft law has been heavily influenced by the provisions of the U.N. Convention on Jurisdictional Immunities of States and Their Property, which China signed in 2005 but has not yet ratified. But the purpose of the draft law is not simply to prepare China for ratification. Indeed, Article 21 of the law provides that when a treaty to which China is a party differs from the law, the terms of the treaty shall govern. Rather, the purpose of the law appears to be to extend the basid rules of the U.N. Convention, which is not yet in effect, to govern the immunity of all foreign countries when they are sued in Chinese courts, including countries like the United States that are unlikely ever to join the Convention.

China’s Adherence to the Absolute Theory of Foreign State Immunity

The People’s Republic of China has long taken the position that states and their property are absolutely immune from the jurisdiction of the courts of other states. The question rose to the level of diplomatic relations in the early 1980s. China was sued in federal court for nonpayment of bonds issued by the Imperial Government of China in 1911, did not appear to defend, and suffered a default judgment. After much back and forth, the State Department convinced China to appear and filed a statement of interest asking the district court to set aside the judgment and consider China’s defenses. “The PRC has regarded the absolute principle of immunity as a fundamental aspect of its sovereignty, and has forthrightly maintained its position that it is absolutely immune from the jurisdiction of foreign courts unless it consents to that jurisdiction,” the State Department noted. “China’s steadfast adherence to the absolute principle of immunity results, in part, from its adverse experience with extraterritorial laws and jurisdiction of western powers.” In the end, the district court set aside the default, held that the FSIA did not apply retroactively to this case, and held that China was immune from suit. The Eleventh Circuit subsequently affirmed.

In 2005, China signed the U.N. Convention on Jurisdictional Immunities of States and Their Property. The Convention (available in each of the U.N.’s official languages here) adopts the restrictive theory, providing exceptions to foreign state immunity for commercial activities, territorial torts, etc. Although China has not ratified the Convention and the Convention has not yet entered into force—entry into force requires 30 ratifications, and there have been only 23 so far—China’s signature seemed to signal a shift in position.

The question arose again in Democratic Republic of the Congo v. FG Hemisphere Associates LLC (2011), in which the Hong Kong Court of Final Appeal had to decide whether to follow China’s position on foreign state immunity. During the litigation, China’s Ministry of Foreign Affairs wrote several letters to the Hong Kong courts setting forth its position, which the Court of Final Appeal quoted in its judgment. In 2008, the Ministry stated:

The consistent and principled position of China is that a state and its property shall, in foreign courts, enjoy absolute immunity, including absolute immunity from jurisdiction and from execution, and has never applied the so-called principle or theory of ‘restrictive immunity’. The courts in China have no jurisdiction over, nor in practice have they ever entertained, any case in which a foreign state or government is sued as a defendant or any claim involving the property of any foreign state or government, irrespective of the nature or purpose of the relevant act of the foreign state or government and also irrespective of the nature, purpose or use of the relevant property of the foreign state or government. At the same time, China has never accepted any foreign courts having jurisdiction over cases in which the State or Government of China is sued as a defendant, or over cases involving the property of the State or Government of China. This principled position held by the Government of China is unequivocal and consistent.

In 2009, the Ministry wrote a second letter explaining its signing of the U.N. Convention. The diverging practices of states on foreign state immunity adversely affected international relations, it said, and China had signed the Convention “to express China’s support of the … coordination efforts made by the international community.” But the Ministry noted that China had not ratified the Convention, which had also not entered into force. “Therefore, the Convention has no binding force on China, and moreover it cannot be the basis of assessing China’s principled position on relevant issues.” “After signature of the Convention, the position of China in maintaining absolute immunity has not been changed,” the Ministry continued, “and has never applied or recognized the so-called principle or theory of ‘restrictive immunity.’”

The Draft Law on Foreign State Immunity

China’s draft law on foreign state immunity would fundamentally change China’s position, bringing China into alignment with other nations that have adopted the restrictive theory. The draft law begins, as most such laws do, with a presumption that foreign states and their property are immune from the jurisdiction of Chinese courts. Article 3 states: “Unless otherwise provided for by this law, foreign states and their property shall be immune from the jurisdiction of the courts of the People’s Republic of China.”

Article 2 defines “foreign state” to include “sovereign states other than the People’s Republic of China,” “institutions or components of … sovereign states,” and “natural persons, legal persons and unincorporated organisations authorised by … sovereign states … to exercise sovereign powers on their behalf and carry out activities based on such authorization.” Article 18(1) provides that Chinese courts will accept the Ministry of Foreign Affairs’ determination of whether a state constitutes a sovereign state for these purposes.

These provisions of the draft law generally track Article 2(1)(b) of the U.N. Convention, which similarly defines “State” to include a state’s “organs of government,” “agencies or instrumentalities” exercising “sovereign authority,” and “representatives of the State acting in that capacity.” The draft law differs somewhat from the U.S. FSIA, which determines whether a corporation is an “agency or instrumentality” of a foreign state based on ownership and which does not apply to natural persons.

Exceptions to Immunity from Suit Waiver Exception

China’s draft law provides that a foreign state may waive its immunity from suit expressly or by implication. Article 4 states: “Where a foreign state expressly submits to the jurisdiction of the courts of the People’s Republic of China in respect of a particular matter or case in any following manner, that foreign state shall not be immune.” A foreign state may expressly waive its immunity by treaty, contract, written submission, or other means.

Article 5 provides that a foreign state “shall be deemed to have submitted to the jurisdiction of the courts of the People’s Republic of China” if it files suit as a plaintiff, participates as a defendant “and makes a defence or submits a counterclaim on the substantive issues of the case,” or participates as third party in Chinese courts. Article 5 further provides that a foreign state that participates as a plaintiff or third party shall be deemed to have waived its immunity to counterclaims arising out of the same legal relationship or facts. But Article 6 provides that a foreign state shall not be deemed to have submitted to jurisdiction by appearing in Chinese court to assert its immunity, having its representatives testify, or choosing Chinese law to govern a particular matter.

These provisions closely track Articles 7-9 of the U.N. Convention. The U.S. FSIA, § 1605(a)(1), similarly provides that a foreign state shall not be immune in any case “in which the foreign state has waived its immunity either explicitly or by implication.” Section 1607 also contains a provision on counterclaims. In contrast to China’s draft law, U.S. courts have held that choosing U.S. law to govern a contract constitutes an implied waiver of foreign state immunity (a position that has been rightly criticized).

Commercial Activities

China’s draft law also contains a commercial activities exception. Article 7 provides that a foreign state shall not be immune from proceedings arising from commercial activities when those activities “take place in the territory of the People’s Republic of China or take place outside the territory of the People’s Republic of China but have a direct impact in the territory of the People’s Republic of China.” Article 7 defines “commercial activity” as “any transaction of goods, services, investment or other acts of a commercial nature otherwise than the exercise of sovereign authority.” “In determining whether an act is a commercial activity,” the law says, “the courts of the People’s Republic of China shall consider the nature and purpose of the act.” Unlike the FSIA, but like the U.N. Convention, the draft law deals separately with employment contracts (Article 8) and intellectual property cases (Article 11).

In extending the commercial activities exception to activities that “have a direct impact” in China, the draft law seems to have borrowed from the commercial activities exception in the U.S. FSIA. Section 1605(a)(2) of the FSIA applies not just to claims based on activities and acts in the United States, but also to activities abroad “that act cause[] a direct effect in the United States.”

The draft law’s definition of “commercial activity,” on the other hand, differs from the FSIA. Whereas the draft law tells Chinese courts to consider both “the nature and purpose” of the act,” § 1603(d) of the FSIA says “[t]he commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” (Article 2(2) of the U.N. Convention makes room for both approaches.) Considering the purpose of a transaction would make it easier for a government to argue that certain transactions, like issuing government bonds or buying military equipment are not commercial activities and thus to claim immunity from claims arising from such transactions.

Territorial Torts

Article 9 of the draft law creates an exception to immunity “for personal injury or death, or for damage to movable or immovable property, caused by that foreign state within the territory of the People’s Republic of China.” This exception corresponds to Article 12 of the U.N. Convention and § 1605(a)(5) of the U.S. FSIA. Unlike § 1605(a)(5), China’s draft law contains no carve-outs maintaining immunity for discretionary activities and for malicious prosecution, libel, misrepresentation, interference with contract rights, etc.

The English translation of the draft law does not make clear whether it is the tortious act, the injury, or both that must occur within the territory of China. The FSIA’s territorial tort exception has been interpreted to require that the “entire tort” occur within the United States. Article 12 of the U.N. Convention does not. This question has become particularly important with the rise of spyware and cyberespionage. As Philippa Webb has discussed at TLB, U.S. courts have dismissed spyware cases against foreign governments on the ground that the entire tort did not occur in the United States, whereas English courts have rejected this requirement and allowed such cases to go forward. If the Chinese version of the draft law is ambiguous, it would be worth clarifying the scope of the exception before the law is finalized.

Property

Article 10 of the draft law creates an exception to immunity for claims involving immoveable property in China, interests in moveable or immoveable property arising from gifts, bequests, or inheritance, and interests in trust property and bankruptcy estates. This provision closely parallels Article 13 of the U.N. Convention and finds a counterpart in § 1605(a)(4) of the FSIA.

Arbitration

The draft law also contains an arbitration exception. Article 12 provides that a foreign state that has agreed to arbitrate disputes is not immune from suit with respect to “the effect and interpretation of the arbitration agreement” and “the recognition or annulment of arbitral awards.” Like Article 17 of the U.N. Convention, the arbitration exception in the draft law is limited to disputes arising from commercial activities but extends to investment disputes. The arbitration exception in § 1605(a)(6) of the FSIA, by contrast, extends to disputes “with respect to a defined legal relationship, whether contractual or not.”

Reciprocity Clause

One of the most interesting provisions of China’s draft law on state immunity is Article 20, which states: “Where the immunity granted by a foreign court to the People’s Republic of China and its property is inferior to that provided for by this Law, the courts of the People’s Republic of China may apply the principle of reciprocity.” Neither the U.N. Convention nor the U.S. FSIA contains a similar provision, but Russia’s law on the jurisdictional immunities of foreign states does in Article 4(1).  Argentina’s law on immunity also includes a reciprocity clause specifically for the immunity of central bank assets, apparently adopted by Argentina at the request of China.

The reciprocity clause in the draft law means that Chinese courts would be able to exercise jurisdiction over the United States and its property in any case where U.S. law would permit U.S. courts to exercise jurisdiction over China and its property. The FSIA, for example, has an exception for expropriations in violation of international law in § 1605(a)(3) and exceptions for terrorism in § 1605A and § 1605B. Although China’s draft law does not contain any of these exceptions, its reciprocity clause would allow Chinese courts to hear expropriation or terrorism claims against the United States. The same would be true if Congress were to amend the FSIA to allow plaintiffs to sue China over Covid-19, as some members of Congress have proposed.

Conclusion

China’s adoption of the draft law would be a major development in the law of foreign state immunity. For many years, advocates of the absolute theory of foreign state immunity could point to China and Russia as evidence that the restrictive theory’s status as customary international law was still unsettled. If China joins Russia in adopting the restrictive theory, that position will be very difficult to maintain.

[This post is cross-posted at Transnational Litigation Blog.]

This post was written bu Begüm Kilimcioglu, PhD candidate at the University of Antwerp

On 23 February 2023, one of the biggest commercial banks in the Eurozone, BNP Paribas (BNP) was sued by Oxfam, Friends of the Earth and Notre Affaire à Tous for having allegedly provided loans to oil and gas companies in breach of the vigilance duty enshrined in la Loi de Vigilance (2017) of France. This case constitutes an important hallmark for the business and human rights world as it is the first climate action case against a commercial bank and so timely considering that the European Union (EU) is currently discussing whether or not to include the financial sector within the scope of the proposed Corporate Sustainability Due Diligence Directive (CSDDD) (see here).

Article 1 of  la Loi de Vigilance imposes a duty to establish and implement an effective vigilance plan on any company whose head office is located on French territory and complies with the thresholds stated. This vigilance plan is supposed to include vigilance measures for risk identification and prevention of severe violations of human rights and fundamental freedoms, serious bodily injury or environmental damage or health risks resulting directly or indirectly from the operations of the company and of the companies it controls, its subcontractors and suppliers with whom the company  has an established commercial relationship. As such, there is no distinction under the French law regarding the sector in which the company is operating which is in line with the United Nations Guiding Principles. Thus, it was surprising to see that France was quite vocal about not including the financial sector within the scope of CSDDD, as France was the first Member State to adopt a law on the duty of vigilance of the multinational companies and la Loi de Vigilance itself does not make distinctions based on the sector in which the company is operating.

According to la Loi de Vigilance, companies are required to conduct human rights and environmental due diligence which includes the following steps: identification and the analysis of the risks, regular assessment of the situation (in accordance with the previously identified risks) of the subsidiaries, subcontractors or suppliers with whom the company has an established commercial relationship, mitigation and prevention of serious violations through appropriate means, establishment of an alert mechanism which collects reports of existing or actual risks, establishment of a monitoring scheme to follow up on the measures implemented and assessment of their efficiency. This plan must be publicly disclosed.

In case the company does not comply with its vigilance obligations, a court can issue a formal notice, ordering the company to comply with la Loi de Vigilance. Furthermore, la Loi de Vigilance also provides for a civil remedy when a company does not meet its obligations. If damage caused by non-compliance with la Loi de Vigilance, any person with legitimate interest can seek reparation under tort law. Consequently, as a company headquartered in France and complying with the thresholds in Article 1 of la Loi de Vigilance, BNP has the duty to effectively establish, implement and monitor a vigilance plan to prevent, if not possible mitigate and bring an end to its adverse impacts on human rights and the environment.

The case against BNP before the French courts is a reminiscent of the case against Shell before the Dutch courts in 2019 where the environmental group (Milieudefensie) and co-plaintiffs argued that Shell’s business operations and sold energy products worldwide contributes significantly to climate change (and also much more than it has pledges to in its corporate policies and to the levels internationally determined by conventions) was a violation of its duty of care under Dutch law and human rights obligations. It is important here to highlight that the plaintiffs took Shell to the Dutch courts based on the environmental damage caused in the Netherlands, due to Shell’s operations worldwide.

In the said case, the applicable law to the dispute was determined by Rome II Regulation on non-contractual obligations, article 7. Article 7 presents an additional venue to the general rule for determining the applicable law (article 4) and grants the victims of environmental damage an opportunity to base their claims on the law of the country in which the event giving rise to the damage occurred. As such, the claimant primarily chose to base its claims on the law of the country in which the even giving rise to the damage occurred, as they claimed that the corporate policies for the Shell group were decided in its headquarters in the Netherlands. The Court considered the adoption of the corporate policy of the Shell group as an independent cause of the damage which may contribute to environmental damage with respect to Dutch residents. Thus, the Court considered that the choice of Dutch law by Milieudefensie was in line with the idea of protection of the victims behind the applicable law clauses in Rome II Regulations and upheld the choice to the extent that the action aimed to protect the interests of the Dutch residents (see paragraphs 4.3-4.4 of the decision).

In 2021, the Hague District Court ordered Shell to reduce both its own carbon emissions and end-use emissions by 45% by 2030 in relation to the 2019 figures. Naturally, the legal basis in the Dutch case was different than the legal basis in the French case, considering that the Netherlands does not yet have a national law like la Loi de Vigilance. Consequently, the core of the arguments of the applicants lied on the duty of care in Article 6:162 of the Dutch Civil Code and Articles 2 (right to life) and 8 (rights to private life, family life, home and correspondence) of the European Convention on Human Rights.

In contrast, the BNP case has a more preventive nature and aims to force BNP to change and adapt its actions to the changing climate and scientific context. The NGOs primarily request an injunction for BNP to comply with the obligations provided for in the French Vigilance Law, as BNP falls within the scope of the French Law. More specifically, the NGOs request that BNP publishes and implements a new due diligence plan, containing the measures explained in the writ of summons. Therefore, the obligations arising from the French Vigilance Law are of a civil nature. Consequently, the law applicable to this dispute should also be determined by Rome II Regulation on non-contractual obligations. As explained above, Rome II Regulation gives an additional option for the plaintiffs to choose the applicable law in cases of environmental damage as either the country of damage or the country where the event that gives rise to the damage occurred. In the BNP case, the plaintiffs’ claim was based on French law. Applying Rome II Regulation, France can be considered as the country of the event which gives rise to the damage because it is where the corporate policies are prepared. Alternatively, it is also where the environmental damage occurs, as well as the rest of the world. Moreover, the plaintiffs relied on the general obligation of environmental vigilance as enshrined in the Charter of the Environment, which is considered an annex to the French Constitution and thus has the same authoritativeness. Invoking the constitution might bring in an argument on the basis of Article 16 Rome II, namely overriding principles of mandatory law.

If we rewind the story a little bit, the non-governmental organizations (NGOs) stated above, firstly, served a formal notice to BNP on 26 October 2022 to stop supporting the development of fossil fuels. In the formal notice, the NGOs state that, to achieve the Paris Agreement trajectories, no more funding or investment should be given to the development of new fossil fuel projects, either directly or to the companies that carry out such operations (see p 3). They also draw attention to the fact that BNP has joined the Race to Zero campaign which aim for the inclusion of the nonstate actors in the race for carbon neutrality (p 3).

Basic research into BNP’s publicly available documents reveals that it, indeed, has committed to sustainable investment, acknowledging that air pollution and climate change deplete many resources. BNP further claims that it only supports companies that contribute to society and the environment and exclude coal, palm oil and nonconventional hydrocarbons. Moreover, as can be seen from its 2021 activity report, BNP presents itself as organizing its portfolios in a way that upholds the aims of the Paris Agreement. Lastly, BNP’s code of conduct, states that it commits to limiting any environmental impact indirectly resulting from its financing or investment activities or directly from its own operations (p 31). Furthermore, BNP also presents combatting climate change as its priority while stating that they finance the transition to a zero-carbon economy by 2050 by supporting its customers in energy and ecological transitions (p 31).

However, the NGOs claim that contrary to these commitments, through various financing and investment activities, BNP becomes one of the main contributors to the fossil fuel sector by supporting the big oil and gas companies (p 4 of the formal notice). In this regard, BNP allegedly provides funds for the companies that actually put fossil fuel projects into action rather than financing these projects directly. As such, the NGOs aver that BNP’s vigilance plan is not in compliance with la Loi de Vigilance or its obligations to limit the climate risks resulting from its activities (p 6 of the formal notice). In this regard, the report draws attention to BNP’s prior public commitments to strengthen its exclusion policies regarding coal, oil and gas sectors (see pp 8-9 of the formal notice). Consequently, claiming that BNP has failed to comply with the notice, NGOs have referred the matter to the court.

In a bid to address the negative allegations on its behalf, BNP stated that it is focused on exiting the fossil fuel market, accelerating financing for renewable energies and supporting its clients in this regard. Furthermore, BNP also stated its regret in the advocacy groups choosing litigation over dialogue and that it was not able to stop all fossil-fuel financing right away.

In the course of these proceedings, the applicants will have to prove that if BNP were able to establish, implement and monitor a vigilance plan, the damage caused by these fossil fuel projects put into motion by different energy companies could have been avoided. In other words, the fact that BNP (or any other provider of the financial means) is the facilitator of these projects and that the damage is indirectly caused by its actions, make it more difficult for it to be held liable. As such, it may be more difficult for the claimants in the BNP case to prove the causality between the action and the damage than the Dutch case.

Consequently, this intricate web of interrelations demonstrates how important it is to include the financial actors within the scope of the CSDDD and explicitly put obligations on them to firstly respect and uphold human rights and environmental standards and then to proactively engage with an effective due diligence mechanism to prevent, mitigate and/or bring an end to actual/potential human rights and environmental impact.

Therefore, I hope that the European Commission and the Parliament will hold strong positions and not cave in to the proposal by the Council to leave it up to the Member States whether or not to include the financial sector within the scope. Such a compromise would significantly hinder the effectiveness of the proposed Directive.

 

Tobias Lutzi (Junior Professor for Private Law at the University of Augsburg) made available on SSRN a pre-print short contribution that is forthcoming in Dalloz IP/IT entitled The Scope of the Digital Services Act and Digital Markets Act: Thoughts on the Conflict of Laws.

The abstract reads as follows:

The DSA and the DMA both define their territorial scope of application through a unilateral conflicts rule following a marketplace approach; but they remain silent on any other question of private international law. This paper will explain why this provides an unsatisfactory answer to the many problems arising out of the inevitable overlaps of national laws in the digital space, including in areas that will soon be governed by the two new regulations. While this approach appears to be part of a wider trend to delegate any question of private international law other than the definition of an instrument’s territorial scope to the general instruments that exist in that area, this paper will argue that a true ‘Digital Single Market’ can only be achieved by addressing the specific challenges it raises for private international law through multilateral conflicts rules.

The points this contribution raises are valuable as they bring to the forefront some of the challenges digital technology is posing for users and the EU internal market when dealing with cross-border aspects. As the DSA and DMA do not contain dedicated private international law rules addressing jurisdiction and matters of applicable law, the challenge remains with private international law instruments. Hopefully, contributions such as these can play a valuable role in raising awareness as to the importance of dedicated rules and mechanisms to be added in the process of review of the EU private international law instruments. In this way a ‘missed opportunity’ may turn into a broader gain for the Digital Single Market from a Private International Law perspective.

At the ArbMetaBlock2023 Conference leading experts in technology and dispute resolution will discuss the impact of blockchain, the Metaverse, and Web3 on arbitration. These concepts have become part of the conversation in the arbitration community, but few understand their true significance and potential impact.

Panelists will discuss the impact of blockchain and the Metaverse on arbitration, the changing role of lawyers and arbitration institutions, and the effect of new technology on arbitration fundamentals during our full-day event.

Confirmed speakers include Mihaela Apostel, Pedro Arcoverde, Elizabeth Chan, Paul Cohen, Dirk De Meulemeester, David Earnest, Elizabeth Zoe Everson, Anna Guillard Sazhko, Wendy Gonzales, Emily Hay, Cemre Kadioglu Kumptepe, Creguta Leaua, Matthias Lehman, Niamh Leinwather, Aija Lejniece, Maud Piers, Colin Rule, Sean McCarthy, Sophie Nappert, Ekaterina Oger Grivnova, Pietro Ortolani, Amy Schmitz, Takashi Takashima, David Tebel, Leandro Toscano, and Dirk Van Gerven.

The event is organized by the Center for the Future of Dispute Resolution at the University of Ghent in collaboration with leading organizations, including ArbTech, Arbitrate.com, Cepani, Cepani40 CyberArb, MetaverseLegal, and UNCITRAL.

See here for more information and registration.

The School of Law of the University of Aberdeen is organising a hybrid even on Diversity & Inclusiveness In International Arbitration: Challenges, Progress and Excuses on Monday 24 April (13.00 – 14.15 British Summer Time).

Despite the broadly accepted desirability and value of diversity in international arbitration, statistics show that very little changes in the appointment practices in international arbitration. Tribunals remain largely non-diverse – with the exception of a growing number of female arbitrators. In this context, there is a clear need to reconceptualize the approach to diversity efforts, starting with the questions guiding the diversity debate, the parameters of success and the methods of their realization.

The speaker is Fahira Brodlija.

The event is free. Please contact Mr Georgi Chichkov for more information at georgi.chichkov@abdn.ac.uk or enrol here.

Mediation has acquired a growing and unstoppable implantation during the last years, becoming an alternative dispute mechanism for the resolution of international disputes in civil and commercial matters with a great impact on the comparative and international arena. As a result, the normative responses that have been developed to face the challenges generated by the organisation of cross-border mediation have been successive in recent years, both at national and regional level. However, it was not until recently that the international legislator paid attention to this matter. In this framework, the publication of the United Nations Convention on International Settlement Agreements resulting from Mediation (Singapore Convention) constitutes a significant step forward in this direction.

Undoubtedly, one of the major practical difficulties raised by the implementation of mediation to resolve international commercial disputes lays with the cross border enforcement of the agreements resulting from it. Hence the logical aspiration to provide mediation with an international regulatory framework of multilateral origin favoring the international circulation of the agreements resulting from a mediation procedure. This ambition culminated finally in the approval of the Singapore Convention, whose negotiation was not, however, a simple task, but rather plagued by obstacles and complications.

The Singapore Convention represents an outstanding conventional instrument, drawn up within the United Nations Commission on International Trade Law (UNCITRAL), approved by Resolution of the General Assembly of the United Nations (UN) on 20 December 2018; its adoption was accompanied by the publication of the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002). Consequently, the approval and entry into force of the Singapore Convention, on 12 September 2020, is of an extraordinary importance for the global development and promotion of mediation, since it is the first conventional instrument drawn up in this field by the UNCITRAL –and which has already been ratified by 10 States, Parties to the Convention-.

The Singapore Convention constitutes a concise text (with 16 articles), endowed with great flexibility and a clear functional character. Resulting from a high level of compromise, this UNCITRAL Convention not only builds on its precedents and normative models – mainly the 1958 New York Convention on international arbitration – but also offers novel responses and a uniquely advanced circulation model aiming at solving the main obstacle for mediation practitioners: the international effectiveness of mediation agreements.

A timely Commentary, edited by Guillermo Palao Moreno (Professor of Private International Law, University of Valencia) and published by Edward Elgar in its Commentaries in Private International Law Series, offers academics and practitioners an article-by-article examination of the Singapore Convention, as well as insights into the negotiation process through which the Convention was developed.

It provides deep theoretical and practical analysis of the Convention and its consequences for the promotion of mediation as a mechanism to solve commercial conflicts with a cross-border character. In particular, this work includes a comparative approach with perspectives from five continents and a variety of legal traditions, a critical discussion of every stage from the negotiation to the conclusion of the Convention, with proposals for the Convention’s implementation and application by States and regional organisations. A particular feature of the work is that it provides contributions of a diverse group of leading practitioners and academics from diverse legal backgrounds and jurisdictions, including some who participated of the negotiation of the Singapore Convention itself.

Contributors to the commentary include Itai Apter, Gabriela Balseca, Roni Ben David, Ximena Bustamante, Pablo Cortés, Stefano Dominelli, Carlos Esplugues, Nuria González Martín, Mark T. Kawakami, Gyooho Lee, Dulce Lopes, Peter Mankowski, Théophile M. Margellos, Cedr Mciarb, Achille Ngwanza, Guillermo Palao, Afonso Patrão, Ilaria Queirolo, Valesca Raizer Borges Moschen, S.I. Strong, Sven Stürmann, Dai Yokomizo

See here for the table of contents.

Dr. León Castellanos-Jankiewicz

Researcher, International Law T.M.C. Asser Institute for International & European Law, The Hague

Mexico’s ongoing transnational litigation against the firearms industry in U.S. courts is raising important questions of private international law, in particular as regards the application of Mexican tort law in U.S. courts. In its civil complaint against seven gun manufacturers and one wholesale arms distributor filed in federal court in 2021, Mexico argues that the defendant companies aid and abet the unlawful trafficking of guns into Mexico through irresponsible manufacturing, marketing and distribution practices. On this basis, Mexico claims that all relevant illegal conduct—resulting in human casualties, as well as material and economic loss—occurs on its territory and that, therefore, Mexican domestic tort law applies to six of its claims following the principle of lex loci damni.

Last September, the defendant’s motion to dismiss was granted by the District Court for the District of Massachusetts largely on the basis of the Protection of Lawful Commerce in Arms Act (PLCAA, 15 U.S.C. §§ 7901-7903). PLCAA prohibits bringing a “qualified civil liability action” in federal or state court against gun manufacturers and distributors for harm “solely caused by the criminal or unlawful misuse of firearm products” by third parties. On appeal in the U.S. First Circuit, Mexico argues that the district court’s application of PLCAA to bar its claims under Mexican tort law was “impermissibly extraterritorial”. In particular, the claims that PLCAA prohibits, avers Mexico, only prohibit damages arising from the “criminal and unlawful misuse” of firearms in the U.S. and in respect to U.S. legislation—not Mexican laws. The high profile nature of the case suggests that the First circuit might address the extent of PLCAA’s scope of application, including whether the district court’s interpretation was “impermissibly extraterritorial”.

For a detailed outline of the litigation history and the transnational issues at stake, including a discussion of two amicus briefs filed by professors of international and transnational law, you are welcome to read my recent post in Just Security, available here.

As already reported here, the European Kommission adopted a Proposal for a Regulation in December 2022 which aims to harmonize at the EU level the rules of private international law with regard to parenthood. In May the EAPIL is organizing a series of four webinars to discuss the main elements of the proposal, find weaknesses and possibilities of improvement.

Each Wednesday, the webinar will start at 6 pm and end at 8 pm CET. It will focus on two topics, each presented by one expert, who will discuss the content of the proposal and examine the questions and possible improvement it raises. There will be ample room for discussion.

The programme of the series is as follows:

• 3 May 2023, chaired by Claire Fenton-Glynn:
  • The EU Proposal on Parenthood: lessons from comparative and substantive law (Jens Scherpe)
  • What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss)
• 10 May 2023, chaired by Fabienne Jault-Seseke:
  • The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl)
  • The law governing parenthood: are you my father? (Tobías Helms)
• 17 May 2023, chaired by Nadia Rustinova:
  • The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Ontanu)
  • Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi)
• 24 May 2023, chaired by Steven Heylen:
  • Authentic documents and parenthood: between recognition and acceptance (Patrick Wautelet)
  • The European certificate of Parenthood: a passport for parents and children? (Ilaria Pretelli)

For more information please visit the Website of the EAPIL.

17 years ago on this day, the very first post was published on conflictoflaws.net. While the Rome I Regulation has remained relevant, the discipline has certainly undergone significant changes throughout the years – without losing any of its importance. Many, if not most, of those changes have been covered across the over 5,000 posts that have appeared on this blog. More than 2,500 readers are subscribed to our e-mail newsletter, while an even larger number of people now follows us on Twitter and LinkedIn.

In light of our continued commitment to cover all relevant developments in PIL, regionally and globally, we are happy to use the occasion of the blog’s birthday for two announcements.

Most significantly, Thalia Kruger and Matthias Weller are handing over their responsibilities as General Editors to us, Jeanne Huang and Tobias Lutzi.

Matthias initially assumed this position alongside Giesela Rühl in 2017. He continued to serve as General Editor when Giesela handed over the baton to Thalia in 2019. It is no overstatement that without their tireless work behind the scenes, the blog would be unlikely to exist in its present form. During their tenure, they put the blog on a solid technical foundation, secured its funding, and ensured quality and diversity of its Editorial Board.

As new General Editors, we are deeply grateful for the excellent shape in which they are leaving this project – although it makes us all the more aware of the big shoes we have been asked to fill.

What is more, after several years of fruitful partnership with Hart Publishing, we are happy to announce that we have been able to secure a new sponsor for the blog. The Lindemann Foundation, a German non-profit foundation dedicated to supporting research in private international law, will allow us to continue running the blog. We are deeply grateful for the trust they are putting into us and this blog. We also appreciate the support from Hart in the past, and we will keep in touch with them.

Speaking on behalf of the entire Editorial Board, we are reiterating our heartfelt gratitude to Thalia and Matthias and look forward to the next seventeen years of News & Views in Private International Law.

Jeanne and Tobias

El Tribunal de Justicia de la Unión Europea y el Derecho Internacional Privado (The Court of Justice of the European Union and Private International Law), is a compilation of essays conceived to pay a tribute to the lawyers who dreamed of a European society where people could freely move and circulate among Member States.

Since the Brussels Convention of 27 September 1968, the Court of Justice of the European Union has interpreted, applied and complemented the rules of European private international law with a ‘fist of iron’ and ‘kid gloves’. It has been a legislating court when needed. It has carried out a European reading of European rules against the pro lex fori vagaries of certain Member States. It has shown the way to follow so that the European Union is more than a political sum of States. The Court of Justice of the European Union has believed in Europe. It has believed in free movement and in the freedom of people. The outcome of its work in this regard is inconmensurable.

The book brings together 22 studies devoted to the work of the Court of Justice in the field of European private international law. The Court’s case law is thoroughly examined in individual chapters addressing the EU Regulations on judicial cooperation in civil matters: the Brussels I-bis Regulation (international contracts, non-contractual obligations, express and tacit submission of the parties, exclusive jurisdiction, consumer and employment contracts, and free movement of judgments), the Brussels Ia Regulation (divorce disputes, disputes concerning children), the Rome III Regulation, the Maintenance, European Insolvency and European Succession Regulations, the Service and Evidence Regulations, the Regulation on the European Enforcement Order and the Regulation on the European Account Preservation Order, and the Regulations on European Order for Payment and Small Claims. In addition, it explores as well the principle of mutual recognition, PIL aspects of company law, the free movement of lawyers in the European Union and issues of family reunification.

The book can thus be described as a compilation of research, reflections and comments on the main contributions of the Court of Justice of the European Union in its interpretative, enforcement and regulatory work on European private international law. The Court’s input in the most representative sectors of European private international law is analysed in depth with a view to explaining its contribution to the building of the European system of private international law. In this sense, it is a very useful book for both theoretical and practical purposes – for, as it is well known, law reigns, but case law governs. Those who know jurisprudence master the law; and by mastering the law they dominate the world of private international law. In this way, the dream of creating a free Europe for free people can become a reality.

El Tribunal de Justicia de la Unión Europea y el Derecho Internacional Privado, edited by A.-L. Calvo Caravaca and J. Carrascosa González, Aranzadi, Pamplona, 2021, ISBN: 978-84-1345-495-5, 630 pp.; see here the table of contents.

The Rules of Procedure of the General Court of the European Union (OJ 2023 L 44, p. 8) and the Practice Rules for the Implementation of the Rules of Procedure of the General Court (OJ 2023 L 73, p. 58) have been amended, as communicated in the press release of 31 March 2023, no 58/23, The amendments have come into force on 1 April 2023.

The amendments introduce several features to the rules of proceedings before the General Court, with the aim to promote modern and efficient justice. For instance, the amended Rules of Procedure permit the use of videoconferencing during the hearings. A request for use of videoconferencing made by a representatives prevented from participating at the hearing in person shall be satisfied, if the request is based on ‘health, security or other serious reasons’ (Article 107a Rules of Procedure).

Another amendment worth noticing is the new concept of ‘pilot case’. The concept is introduced by Article 71a of the Rules of Procedure. Article 71a lists the conditions, under which two or more pending case shall be considered as raising the same issue of law. If the conditions are met, one of the cases may be identified as the pilot case and the others stayed.

The General Court has also updated model/guidance documents addressed to the parties’ representatives, who may use the documents to prepare the actions. The guidance documents include the Aide-mémoire – Application, Model summary of the pleas in law and main arguments relied on in the application’, Aide-mémoire – Hearing of oral argument, Notice on the omission of data vis-à-vis the public in judicial proceedings. Furthermore, a new guidance has been issued to assist in their (decisions on) requests to make oral submissions by videoconference (Practical recommendations for representatives making oral submissions by videoconference).

Other amendments relate to joint hearings (Article 106a Rules of Procedure), protection of data other than personal data (Article 66a Practice Rules), signing of originals of judgements and orders of the General Court by ‘qualified electronic signature’ (Article I(F)(37) Practice Rules).

Aukje van Hoek (Professor of Private International Law and Civil Procedure at the University of Amsterdam, The Netherlands) has made available on SSRN a new research paper dedicated to Teaching Private International Law – A View From the Netherlands. A version of this paper is a forthcoming publication in Xandra Kramer and Laura Carballo Piñeiro, Research Methods in Private International Law, a Handbook (Edward Elgar).

This paper is very interesting for those teaching Private International Law around the world as it provides an insight into how the topic is approached and what choices are made for students in the Netherlands in familiarising them with a topic that is reputably very technical and relying on various layers of rules – national, European, and international. Although the context may be very different from the European one, such contributions can be a point of inspiration for other colleagues tackling this topic for their students around the world, not only on the topic of Private International Law itself, but also on the pedagogical approach to teaching and evaluating the students in line with the objectives of the course.

The abstract of the contribution reads as following:

This contribution discusses the choices facing academics who teach private international law. It builds on the theory of constructive alignment – a theory which is explained in paragraph 3. The author demonstrates that in order to reach depth of understanding, choices have to be made as to the comprehensiveness of topics to be discussed. In paragraph 4 to 6 the author describes different approaches to the teaching of private international law and the concurrent choices as to topics to be discussed and materials to be used. Which choices are eventually made when developing a specific course, will depend on the staff teaching the course and the ‘Umfeld’ in which the course is situated. This Umfeld consist of the societal context, the sources of private international law which are relevant in practice, the overall university system and the programme goals toward which the course contributes.

The author of this post is Uglješa Grušić, Associate Professor, Faculty of Laws, University College London.

As has already been reported on this blog, on 29 March 2023 the European Commission published a study to support the preparation of a report on the application of the Brussels I bis Regulation. This is an important and potentially very influential document.

It is because of its importance and potential influence that I want to share my disappointment with the part of the study that deals with jurisdiction in employment matters (pp 165-171). This part of the study contains some obvious mistakes and omissions.

Let me turn first to the mistakes. The study says this about the comparison between the 2012 Brussels I bis Regulation and the 2001 Brussels I Regulation on p 165:

[Section 5 of Chapter II] remains substantially the same in the Brussels Ia Regulation, with a small change in Article 20(1) (previously Article 18(1)), to which was added ‘(…) in the case of proceedings brought against an employer, point 1 of Article 8’. This insertion clarifies rather than changes the Article’s scope of application.

The study makes the same point on p 166:

The Regulation remains unchanged regarding the provisions addressing jurisdiction relating to individual employment contracts, except for an alteration inserted in Article 20(1).

These statements are not entirely correct. In addition to specifying that employees can join third parties pursuant to Article 8(1), the Brussels I bis Regulation introduces one further novelty in Section 5 of Chapter II. This novelty is the rule in Article 21(2), which provides that an employer not domiciled in a Member State may be sued in a court of a Member State in accordance with Article 21(1)(b), that is, in the courts for the habitual place of work if the habitual place of work is in the EU or, in the absence of the habitual place of work, in the courts for the engaging place of business if the engaging place of business is in the EU.

Another, seemingly innocuous mistake is the wrong citation of an academic commentary on which the authors of this part of the study heavily rely, namely Louse Merrett’s chapter on ‘Jurisdiction over Individual Contracts of Employment’ in Dickinson and Lein’s edited collection on the Brussels I bis Regulation. The mistake in the citation is that Merrett’s chapter was not published in 2020, as the study says, but in 2015. The relevance of this mistake lies in the fact that the authors of this part of the study rely on Merrett’s chapter as supporting the claims made on p 166 that the “concerned parties are satisfied with the solutions adopted and its application in practice through court judgments” and that “[t]here is little case-law related to jurisdiction on individual employment contracts, suggesting that this section has not been subject to much litigation”. Misciting Merrett’s chapter creates a wrong sense of complacency: if a leading scholar writes in a piece published relatively recently that Section 5 of Chapter II works well and there is little case-law, then the implication is that the European Commission need not worry too much about this part of the Brussels I bis Regulation. The problem, however, is that Merrett’s chapter was published in 2015, the same year when this regulation started to apply, and a lot has happened since then.

This brings me to the omissions. The study was completed in January 2023 and was published on 29 March 2023. The study was largely informed by the case law of the CJEU. The problem with the part of the study that deals with jurisdiction in employment matters is that it was outdated the moment it was completed because the authors did not take into account the controversial judgment in ROI Land Investments Ltd v FD that was handed down on 20 October 2022.

While persons domiciled outside the EU can, generally speaking, be sued in the Member State courts under national jurisdictional rules (Article 6(1)), employers domiciled outside the EU can only be sued in the courts for the habitual place of work or, absent a habitual place of work, in the courts for the engaging place of business if the habitual place of work/engaging place of business is located in the EU. The CJEU has clarified in ROI Land Investments Ltd v FDthat, if the habitual place of work/engaging place of business is located in the EU, employers domiciled outside the EU cannot be sued in the Member State courts under national jurisdictional rules. This makes little sense from the perspective of employee protection. As Recital 18 states, ‘[i]n relation to…employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.” ROI Land Investments Ltd v FD achieves the opposite effect.

The purpose of this post is to indicate that there are deficiencies in the part of the study that deals with jurisdiction in employment matters. Consequently, the European Commission should approach this part of the study with care and look at other sources when preparing its report on the application of Section 5 of Chapter II.

For what it’s worth, I have already shared on this blog my proposals for reform of this part of the regulation.

 

In preparation of the Conference on the HCCH 2019 Judgments Convention on 9/10 June 2023, taking place on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

Update of 4 April 2023: New entries are printed bold.

Please also check the “official” Bibliography of the HCCH for the instrument.

 

I. Explanatory Reports

Garcimartín Alférez, Francisco;
Saumier, Geneviève „Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128

 

II. Bibliography

Ahmed, Mukarrum “Brexit and the Future of Private International Law in English Courts”, Oxford 2022 Åkerfeldt, Xerxes ”Indirekta behörighetsregler och svensk domsrätt – Analys och utredning av svensk domstols behörighet i förhållande till 2019 års Haagkonvention om erkännande och verkställighet” (Examensarbete inom juristprogrammet, avancerad nivå, Örebro Universitet, 2021 ; available here)

 

“Indirect jurisdiction and Swedish law – Analysis and inquiry of the jurisdiction of Swedish courts in relation to the 2019 Hague Convention on Recognition and Enforcement” Al-Jubouri, Zina Hazem “Modern trends for the recognition and enforcement of foreign judgments in civil and commercial matters accordance the 2019 Hague Convention”, Tikrit University Journal for Rights (TUJR) 2022-03, pp. 79-109 (available here) Amurodov, Jahongir “Some issues of Ratification of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019) by the Republic of Uzbekistan”, Uzbek Law Review 2020-03, pp. 11-116 (available here) Arslan, Ilyas “The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Uluslararasi Ticaret ve Tahkim Hukuku Dergisi 10 (2021), pp. 329-402 Badr, Yehya Ibrahim “The Hague 2019 Convention for the Recognition and Enforcement of Foreign Judicial Decisions: A Comparative Study”, International Journal of Doctrine, Judiciary, and Legislation (IJDJL) 2 (2021), pp. 427-468 (available here) Balbi, Francesca “La circolazione delle decisioni a livello globale: il rogetto di convenzione della Conferenza dell’Aia per il riconoscimento e l’esecuzione delle sentenze straniere” (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2019; available: here) Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul R. “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Beaumont, Paul;
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Sidorova, A.P. “On the Concept of the possible Ratification by the Russian Federation of the Convention of July 2019”, in Perm State University (ed.), First All-Russian Conference of Young Scientists on Actual Issues of the Development in Private Law and Civil Procedure (Perm 12 December 2020), Perm 2020, pp. 140- 142 (available here) Landbrecht, Johannes “Commercial Arbitration in the Era of the Singapore Convention and the Hague Court Conventions”, ASA Bulletin 37 (2019), pp. 871-882 (available here) Lee, Gyooho “The Preparatory Works for the Hague Judgment Convention of 2019 and its Subsequent Developments in terms of Intellectual Property Rights”, Korea Private International Law Journal 2020-02, pp. 85-140 Lee, Haemin “Parallel Proceedings and Forum Non Conveniens”, Korea Private International Law Journal 2022-12, pp. 141-217 pp. 141-207 Leible, Stefan; Wilke, Felix M. „Der Vertragsgerichtsstand im HAVÜ – Lehren aus Brüssel und Luxemburg?“, in Sebastian Kubis, Karl-Nikolaus Peifer, Benjamin Raue, Malte Stieper (eds.), Ius Vivum: Kunst – Internationales – Persönlichkeit, Festschrift für Haimo Schack, Tübingen 2022, pp. 710-722 Linton, Marie “Bristande delgivning som hinder för erkännande och verkställighet av utländska domar enligt 2019 års Haagkonvention”, in Marie Linton, Mosa Sayed (eds.), Festskrift till Maarit Jänterä-Jareborg, Uppsala 2022, pp. 189-203

“ Lack of service as an obstacle to the recognition and enforcement of foreign judgments under the HCCH 2019 Judgments Convention” Liu, Guiqiang “Limitation Period for the Enforcement of Foreign Judgments”, China Journal of Applied Jurisprudence 2020-04, pp. 109-124 Liu, Yang “Controversies over International Exclusive Jurisdiction of the Hague Jurisdiction Project and China’s Response”, Present Day Law Science 2022-05, pp. 91-102 Liu, Yang; Xiang, Zaisheng “The No Review of Merit Clause in the Hague Judgments Convention”, Wuhan University International Law Review
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Lignes de force, état des lieux et perspectives pour la Belgique », Journal des Tribunaux (JT) 2022-12, pp. 181-187 Malachta, Radovan “Mutual Trust between the Member States of the European Union and the United Kingdom after Brexit: Overview”, in Jirí Valdhans (ed.), COFOLA International 2020: Brexit and its Consequences – Conference Proceedings, Brno 2020, pp. 39-67 (available here) Malatesta, Alberto “Circolazione delle sentenze tra Unione europea e Regno Unito : a favore di una cooperazione in seno alla Conferenza dell’Aja”, Rivista di diritto internazionale private e processuale (RDIPP) 57 (2021), pp. 878-898 Mammadzada, Aygun “Enhancing party autonomy under the Hague Convention on Choice of Court Agreements 2005: Comparative analysis with the 2012 EU Brussels Recast Regulation and 1958 New York Arbitration Convention”, (Doctoral Thesis, University of Southampton, 2022, available here) Mariottini, Cristina „Establishment of Treaty Relations under The 2019 Hague Judgments Convention“, YbPIL 21 (2019/2020), pp. 365-380 Mariottini, Cristina “The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, YbPIL 19 (2017/2018), pp 475-486. Martiny, Dieter “The Recognition and Enforcement of Court Decisions Between the EU and Third States”, in Alexander Trunk, Nikitas Hatzimihail (eds.), EU Civil Procedure Law and Third Countries – Which Way Forward?, Baden-Baden 2021, pp 127-146 Maude, L. Hunter “Codifying Comity: The Case for U.S. Ratification of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters”, Wisconsin International Law Review 38 (2021), pp. 108-138 Meier, Niklaus “Notification as a Ground for Refusal”, Netherlands International Law Review (NILR) 67 (2020), pp 81-95 Mills, Alex “Submission to the UK Ministry of Justice Consultation on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters” (Report, 2023) Muir Watt, Horatia “Le droit international privé au service de la géopolitique : les enjeux de la nouvelle Convention de la Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale”, Revue Critique de Droit International Privé 2020, pp. 427-448 Neels, Jan L. “Preliminary remarks on the Draft Model Law on the Recognition and Enforcement of Judgments in the Commonwealth” ” in Engela C Schlemmer and PH O’Brien (eds) Liber Amicorum JC Sonnekus, published as 2017 volume 5 (special edition) Tydskrif vir die Suid-Afrikaanse Reg / Journal of South African Law, pp. 1-9 Nielsen, Peter Arnt “The Hague 2019 Judgments Convention – from failure to success”, Journal of Private International Law 16 (2020), pp 205-246 Nielsen, Peter Arnt “A Global Framework for International Commercial Litigation”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 415-433 Nishimura, Yuko “Indirect Jurisdiction at the Place where the Immovable Property is situated in HCCH 2019 Judgments Convention”, Seinan Gakuin University Graduate School Research Review N°13, pp. 1-20 (available here) North, Cara “The 2019 HCCH Judgments Convention: A Common Law Perspective”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 202-210 North, Cara “The Exclusion of Privacy Matters from the Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 33-48 Oestreicher, Yoav “ ’We’re on a Road to Nowhere’ – Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments”, The International Lawyer 42 (2008), pp 59-86 Öhlund, Jonas ”2019 års Haagkonvention – ett globalt regelverk om erkännande och verkställighet av domar”, Svensk Juristtidning 2020, pp. 350-360 (available here) Okorley, Solomon “The possible impact of the Hague Convention on the Recognition and Enforcement of foreign Judgments in Civil or Commercial Matters on Private International Law in Common Law West Africa”, (Master’s Dissertation, University of Johannesburg, 2019; available: here) Okorley, Solomon “The possible impact of the 2019 Hague Convention on the Recognition and Enforcement of foreign Judgments in Civil or Commercial Matters on the Grounds of International Competence in Ghana”, University of Cape Coast Law Journal (UCC L. J.) 2022-01, pp. 85-112 (available here) Pasquot Polido, Fabrício B. “The Judgments Project of the Hague Conference on Private International Law: a way forward for a long-awaited solution”, in Verónica Ruiz Abou-Nigm, Maria Blanca Noodt Taquela (eds.), Diversity and integration in Private International Law, Edinburgh 2019, pp. 176-199 Pavlova, Olesia “The Judicial Convention: Question of Jurisdiction”, International Law 2023-01, pp. 70-82 (available here) Payan, Guillaume “Convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale”, in Hubert Alcarez, Olivier Lecucq (eds.), L’exécution des décisions de justice, Pau 2020, pp 167-183 Pertegás Sender, Marta “The 2019 Hague Judgments Convention: Its Conclusion and the road ahead”, in Asian Academy of International Law (publ.), Sinergy and Security: the Keys to Sustainable Global Investment: Proceedings of the 2019 Colloquium on International Law, 2019 Hong Kong, pp 181-190 (available here) Pertegás, Marta “Brussels I Recast and the Hague Judgments Project”, in Geert Van Calster (ed.), European Private International Law at 50: Celebrating and Contemplating the 1968 Brussels Convention and its Successors, Cambridge 2018, pp 67-82 Pocar, Fausto “Riflessioni sulla recente convenzione dell’Aja sul riconoscimento e l’esecuzione delle sentenze straniere”, Rivista di diritto internazionale private e processuale 57 (2021), pp. 5-29 Pocar, Fausto “Brief Remarks on the Relationship between the Hague Judgments and Choice of Court Conventions”, in in Magdalena Pfeiffer, Jan Brodec, Petr Bríza, Marta Zavadilová (eds.), Liber Amicorum Monika Pauknerová, Prague 2021, pp. 345-353 Pocar, Fausto “The 2019 Hague Judgments Convention: A Step into the Future or a Restatement of the Present?”, in Jonathan Harris, Campbell McLachlan (eds.), Essays in International Litigation for Lord Collins, Oxford 2022, pp. 71-84 Poesen, Michiel “Is specific jurisdiction dead and did we murder it? An appraisal of the Brussels Ia Regulation in the globalizing context of the HCCH 2019 Judgments Convention”, Uniform Law Review 26 (2021), pp. 1-13 Popov, Vasiliy “Grounds for Recognition and Enforcement of Foreign Judgments in Russia”, Issues of Russian Justice 15 (2021), pp. 137-152 Povlakic, Meliha “Country Report Bosnia and Herzegovina”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 42-81 (available here) Qerimi, Donikë “Country Report Kosovo”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 82-113 (available here) Qian, Zhenqiu “On the Common Courts Provision under the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Wuhan University International Law Review
2019-01, pp. 59-74 (available here) Qian, Zhenqiu;
Yang, Yu “On the Interpretation and Application of the Cost of Proceedings Provision under the Hague Judgment Convention”, China Journal of Applied Jurisprudence 2020-04, pp. 96-108 Reisman, Diana A. A. “Breaking Bad: Fail –Safes to the Hague Judgments Convention”, Georgetown Law Journal 109 (2021), pp. 880-906 Revolidis, Ioannis « From the ashes we will rise – recognition and enforcement of international judgments after the revival of the Hague Convention », Lex & Forum 4/2021 Reyes, Anselmo „Implications of the 2019 Hague Convention on the Enforcement of Judgments of the Singapore International Commercial Court”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 695-709 Ribeiro-Bidaoui, João “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 Rumenov, Ilija “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-404 Rumenov, Ilija “Country Report North Macedonia”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 138-179 (available here) Rumenov, Ilija “The indirect jurisdiction of the 2019 Hague Convention on recognition and enforcement of foreign judgments in civil or commercial matters – Is the “heart” of the Convention”, SEELJ Special Edition No. 8 (2021), pp. 9-45 Sachs, Klaus;
Weiler, Marcus “A comparison of the recognition and enforcement of foreign decisions under the 1958 New York Convention and the 2019 Hague Judgments Convention”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 763-781 Saito, Akira “Advancing Recognition and Enforcement of Foreign Judgments: Developments of Inter-Court Diplomacy and New Hague Judgments Convention”, Kobe Law Journal 2019-03, pp. 59-110 (available here) Salim, Rhonson “Quo Vadis Consumer Dispute Resolution? – UK & EU Cross Border Consumer Dispute Resolution in the Post Brexit Landscape”, Revista Ítalo-Española De Derecho Procesal 2022-01, pp. 97-121 (available here) Sánchez Fernández, Sara “El Convenio de la Haya de Reconocimiento y Ejecución de Sentencias”, Revista Española de Derecho Internacional 73 (2021), pp. 233-252 Saumier, Geneviève “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 49-65 Schack, Haimo “Wiedergänger der Haager Konferenz für IPR: Neue Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens?“, Zeitschrift für Europäisches Privatrecht (ZeuP) 2014, pp 824-842 Schack, Haimo „Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 1-96 Schroeter, Ulrich G. “Rechtsschutz am Erfüllungsort im grenzüberschreitenden Warenhandel nach Lugano-Übereinkommen und Haager Übereinkommen 2019” (Jurisdiction of the courts at the place of performance in cross-border trade under the 2007 Lugano Convention and the 2019 Hague Convention – in German)
in: Claudia Seitz/Ralf Michael Straub/Robert Weyeneth (eds.), Rechtsschutz in Theorie und Praxis: Festschrift for Stephan Breitenmoser, Basel: Helbing Lichtenhahn (2022), 497–508 (available here) Senicheva, Marina “The Relevance and Problems of the Hague Convention of July 2, 2019 on the Recognition and Enforcement of Foreign Judgments Ratification by the Russian Federation”, Advances in Law Studies 8 (2020), online (available: here) Shan, Juan “A study on the Anti-trust Provisions in the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 318-335 Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 1)”, Journal of Russian Law No. 2020-07, pp. 170-186 (available here) Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 2)”, Journal of Russian Law No. 2020-11, pp. 140-54 (available here) Shen, Juan “Further Discussion on the Drafts of the Hague Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and Considerations from Chinese Perspective”, Chinese Review of International Law 2016-06, pp. 83-103 (available here) Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 Silberman, Linda “The 2019 Judgments Convention: The Need for Comprehensive Federal Implementing Legislation and a Look Back at the ALI Proposed Federal Statute”, NYU School of Law, Public Law Research Paper No. 21-19 (available here) Skvortsova, Tatyana Aleksandrovna;
Denyak, Victoria Yurievna “On the issue of Recognition and Enforcement of Court Decisions of a Foreign State in the Russian Federation”, Collection of selected Articles of the International Scientific Conference, Saint Petersburg (2021), pp. 258-261 Solomon, Dennis “Das Haager Anerkennungs- und Vollstreckungsübereinkommen von 2019 und die internationale Anerkennungszuständigkeit“, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 873-893 Song, Jianli “ ‘Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments’ and its influence on my country”, People’s Judicature (Application) 2020-01, pp. 88-92 (available here) Song, Lianbin; Chen, Xi “The Judicial Difference and International Coordination of the Recognition and Enforcement of Foreign Punitive Damages Judgements: Also on China’s Corresponding Measures Under the Frame of HCCH Convention”, Jiang-Huai Tribune 2021-03, pp. 111-113 Spitz, Lidia „Homologação De Decisões Estrangeiras No Brasil –  A Convenção de Sentenças da Conferência da Haia de 2019 e o contrôle indireto da jurisdição estrangeira”, Belo Horizonte 2021 Spitz, Lidia „Refusal of Recognition and Enforcement of Foreign Judgments on Public Policy Grounds in the Hague Judgments Convention – A Comparison with The 1958 New York Convention“, YbPIL 21 (2019/2020), pp 333-364 Stamboulakis, Drossos “Comparative Recognition and Enforcement”, Cambridge 2022 Stein, Andreas „Das Haager Anerkennungs- und Vollstreckungsübereinkommen 2019 – Was lange währt, wird endlich gut?“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 197-202 Stewart, David P. „Current Developments: The Hague Conference adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, American Journal of International Law (AJIL) 113 (2019), pp 772-783 Stitz, Olivia “Comity, Tipping Points, and Commercial Significance: What to expect of the Hague Judgments Convention”, Corporate and Business Law Journal (Corp. & Bus. L.J.) 2 (2021), pp. 203-236 (available here) Storskrubb, Eva “The EU Commission’s Proposal for the EU to Accede to the Hague Judgments Convention”, EU Law Live Weekend Edition No. 75 (2021), pp. 10-16 (available here) Suk, Kwang-Hyun “Principal Content and Indirect Jurisdiction Rules of the Hague Judgments Convention of 2019”, Korea Private International Law Journal 2020-02, pp. 3-83 Sun, Jin;
Wu, Qiong “The Hague Judgments Convention and how we negotiated it”, Chinese Journal of International Law 19 (2020) (available here) Sun, Xiaofei;
Wu, Qiong “Commentary and Outlook on the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Journal of International Law 2019-01, pp. 155-164+170 Symeonides, Symeon C. “Recognition and Enforcement of Foreign Judgments: The Hague Convention of 2019”, in Symeon C. Symeonides, Cross-Border Infringement of Personality Rights via the Internet, Leiden 2021, pp. 130-144 Symeonides, Symeon C. « The Hague Treaty for the Recognition of Foreign Decisions-The Lowest Common Denominator », Lex & Forum 4/2021 Taghipour Darzi Naghibi, Mohammadhossein; Soleimani Andarvar, Ali “Comparative Study of the Recognition and Enforcement of Foreign Court Judgments in The Hague Convention Judgments 2019 and Iranian Law”, Comparative Law Review 13 (2022), pp. 493-514 (available here) Takeshita, Keisuke “The New Hague Convention on Recognition and Enforcement of Foreign Judgments: Analysis on its Relationship with Arbitration”, Japanese Commercial Arbitration Journal (JCA) 2020-02, pp. 10-15 (available here) Takeshita, Keisuke “The New Hague Convention on Recognition and Enforcement of Foreign Judgments”, Japanese Commercial Arbitration Journal

Part 1: JCA 2020-04, pp. 40-45 (available here)

Part 2: JCA 2020-05, pp. 40-45 (available here)

Part 3: JCA 2020-06, pp. 42-49 (available here)

Part 4: JCA 2020-10, pp. 40-46 (available here)

Part 5: JCA 2020-11, pp. 35-41 (available here)

Part 6: JCA 2020-12, pp. 43-48 (available here)

Part 7: JCA 2021-02, pp. 50-56 (available here)

Part 8: JCA 2021-04, pp. 45-51 (available here)

Part 9: JCA 2021-07, pp. 46-53 (available here)

Part 10: JCA 2021-09, pp. 40-46 (available here)

Part 11: JCA 2021-10, pp. 48-54 (available here)

Part 12: JCA 2022-01, pp. 45-52 (available here)

Part 13: JCA 2022-03, pp. 44-51 (available here)

Part 14: JCA 2022-05, pp. 58-55

Part 15 JCA 2022-07, pp. 49-55

Part 16 JCA 2022-09, pp. 36-44

Part 17 JCA 2022-12, pp. 53 et seq. Taquela, María Blanca Noodt ; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 Tian, Hongjun “The Present and Future of the Recognition and Enforcement of Civil and Commercial Judgments in Northeast Asia: From the Perspective of the 2019 Hague Judgments Convention”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 300-317 Tian, Xinyue;
Qian, Zhenqiu;
Wang, Shengzhe “The Hague Convention on the Recognition and Enforcement of Foreign Judgments (Draft) and China’s Countermeasure – A Summary on the Fourth Judicial Forum of Great Powers”, Chinese Yearbook of Private International Law and Comparative Law 2018-01, pp. 377-388 Trooboff, Peter D.;
North, Cara; Nishitani, Yuko;
Sastry, Shubha; Chanda, Riccarda “The Promise and Prospects of the 2019 Hague Convention: Introductory Remarks”, Proceedings of the ASIL Annual Meeting 114 (2020), pp. 345-357 Tsang, King Fung;
Wong, Tsz Wai “Enforcement of Non-Monetary Judgments in Common Law Jurisdictions: Is the Time Ripe?”, Fordham International Law Journal 45 (2021), pp. 379-428 (available here) van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue critique de droit international privé (Rev. Crit. DIP) 2019, pp. 353-365 Viegas Liquidato, Vera Lúcia “Reconhecimento E Homologação De Sentenças Estrangeiras : O Projeto De Convenção Da Conferência da Haia”, Revista de Direito Brasileira 2019-09, pp. 242-256 Vishchuprapha, Shayanit “Thailand’s Possibility of Becoming a Party to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters of 2019”, Mae Fah Luang University Law Journal 2023-01, pp. 185-228 (available here) Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Wang, Quian “On Intellectual Property Right Provisions in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, China Legal Science 2018-01, pp. 118-142 (available here) Wang, Yahan “No Review of the Merits in Recognizing and Enforcing Foreign Judgments”, China Journal of Applied Jurisprudence 2020-04, pp. 78-95 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 (available here) Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279-308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed. 2022 Weller, Matthias „Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019“, in Christoph Althammer/Christoph Schärtl (eds.), Festschrift für Herbert Roth, Tübingen 2021, pp. 835-855 Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Wu, Qiong “The Overview of the 22nd Diplomatic Session of the Hague Conference on Private International Law”, Chinese Yearbook of International Law 2019, pp. 337-338 Xie, Yili “Research on the Intellectual Property Infringment System of the Hague Judgments Convention”, China-Arab States Science and Technology Forum 2021-09, pp. 190-194 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 2017-05, pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Xu, Guojian “On the Scope and Limitation of the Global Circulation of Court Judgments: An Analysis on the Application Scope of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 269-299 Xu, Pengju “A Study on the Interpretation of Non-substantive Review Clauses in the Hague Convention on Judgments”, Frontiers in Business, Economics and Management (FBEM) 2022-03, pp. 79-81 (available here) Yang, Liu “The Applicable Conditions of the Lis Pendens Rule under the Hague Judgments Convention”, Journal of Ocean University of China (Social Sciences) 2022-05, pp. 99-111 Yang, Yujie “On the Rules of indirect Jurisdiction responding to Litigation – Based on Article 5, Paragraph 1, Item 6 of the Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters” (Master Thesis China Foreign Affairs University Beijing 2021) Yekini, Abubakri

  “The Hague Judgments Convention and Commonwealth Model Law – A Pragmatic Perspective”, Oxford 2021. Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Yuzhakov, D.A. “Legal Regulation of the Procedures for Enforcement of Decisions of Foreign Courts in Economic Disputes”, Urgent Issues of the Entrepreneurship Law, Civil Litigation and Arbitration (Perm State University) No. 4 (2021), pp. 119-123 (available here) Zasemkova, Olesya Fedorovna “ ‘Judicial Convention’ as a New Stage in the Recognition and Enforcement of Foreign Judgments”, Lex Russica 2019-10, pp. 84-103 (available here) Zasemkova, Olesya Fedorovna “Recognition and Enforcement of Foreign Judgments in the Context of the Adoption of the « Judicial Convention » 2019”, in Zhuikov V.M., Shchukin A.I. (eds.), Liber Amicorum Natalia Ivanovna Marysheva, pp. 196-211 Zernikow, Marcel “Recognition and Enforcement of Foreign Decisions in MERCOSUR Letters Rogatory (Carta Rogatória) and National Civil Procedure” Yearbook of Private International Law 22 (2020/2021), pp. 353-380 Zhang, Chunliang;
Huang, Shan “On the Common Courts Rules in Hague Judgments Convention – China’s way for the Judicial Assistance under Belt and Road Initiative”, Journal of Henan University of Economics and Law 2020-05, pp. 103-113 Zhang, Lizhen “On the Defamation Problem in the Hague Judgments Project: Ever In and Now out of the Scope”, Wuhan University International Law Review 2019-01, pp. 41-58 (available here) Zhang, Wenliang “The Finality Requirement of Recognition and Enforcement of Foreign Judgments”, Wuhan University Law Review 2020-02, pp. 19-38 Zhang, Wenliang; Tu, Guangjian “The Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement: Comparison and Prospects for Implementation”, Chinese Journal of International Law 20 (2021), pp. 101-135 Zhang, Wenliang;
Tu, Guangjian “The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 Zhang, Zhengyi;
Zhang, Zhen “Development of the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and Its Implication to China”, International and Comparative Law Review 2020, pp. 112-131 Zhao, Ning “The HCCH 2019 Judgments Convention, adding essential components for an effective international legal framework on recognition and enforcement”, in UIHJ (ed.), David Walker (dir.), Cyberjustice, de nouvelles opportunités pour l’huissier de justice / Cyberjustice, New Opportunities for the Judicial Officer – XXIVe Congrès de l’Union Internationale des Huissiers de Justice – Dubai – 22 au 25 Novembre 2021, Bruxelles 2021, pp. 120-133 Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368 Zirat, Gennadii “Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: A new Contribution of the Hague Conference on Private International Law to the Unification of International Civil Procedure”, Ukrainian Journal of International Law 2020-03, pp. 105-112 (available here)

 

III. Recordings of Events Related to the HCCH 2019 Judgments Convention

ASADIP; HCCH “Conferencia Internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras”, 3 December 2020 (full recording available here and here) ASIL “The Promise and Prospects of the 2019 Hague Convention”, 25-26 June 2020 (full recording available here and here) CILC; HCCH; GIZ; UIHJ “HCCH 2019 Judgments Convention: Prospects for the Western Balkans”, Regional Forum 2022, 30 June-1 July 2022 (short official video available here) CIS Arbitration Forum “CIS-related Disputes: Treaties, Sanctions, Compliance and Enforcement, Conference, Keynote 2: Russia’s accession to the Hague Convention on Recognition and Enforcement of Foreign Judgments”, 25-26 May 2021 (recording available here) CUHK “Latest Development of Hague Conference on Private International Law and the Hague Judgments Convention”, Online Seminar by Prof. Yun Zhao, 25 March 2021 (full recording available here) Department of Justice Hong Kong; HCCH “Inaugural Global Conference – 2019 HCCH Judgments Convention: Global Enforcement of Civil and Commercial Judgments”, 9 September 2019 (recording available here) GIAS “Arbitration v. Litigation: Can the Hague Foreign Judgments Convention Change the Game?, Panel 2, 10th Annual International Arbitration Month, Commercial Arbitration Day”, 25 March 2022 (full recording available here) HCCH “HCCH a|Bridged: Innovation in Transnational Litigation – Edition 2021: Enabling Party Autonomy with the HCCH 2005 Choice of Court Convention”, 1 December 2021 (full recording available here) HCCH “22nd Diplomatic Session of the HCCH: The Adoption of the 2019 Judgments Convention”, 2 July 2020 (short documentary video available here) JPRI; HCCH; UNIDROIT; UNCITRAL “2020 Judicial Policy Research Institute International Conference – International Commercial Litigation: Recent Developments and Future Challenges, Session 3: Recognition and Enforcement of Foreign Judgments”, 12 November 2020 (recording available here) Lex & Forum Journal; Sakkoula Publications SA « The Hague Conference on Private International Law and the European Union – Latest developments », 3 December 2021 (full recording available here) UIHJ; HCCH “3rd training webinar on the Hague Conventions on service of documents (1965) and recognition and enforcement of judgements (2019)”, 15/18 March 2021 (full recording available here in French and here in English) University of Bonn; HCCH “Pre-Conference Video Roundtable on the HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil and Commercial Matters between the EU and Third Countries”, 29 October 2020 (full recording available here)

 

I am on a break with the family until after Easter, hence only slowly treating myself to writing up blog posts. There are one or two in the queue, and I hope to be clearing them before long. ]

In C‑832/21 Beverage City & Lifestyle GmbH v Advance Magazine Publishers Inc. Richard de la Tour AG Opined a few weeks back. The claim is for trademark infringement between a US domiciled holder of an EU Trademark, and its EU suppliers in Poland and Germany. The AG suggest Article 8(1)’s joinder mechanism may apply in the case, provided the claimant in limine litis (at the start of proceedings) prove the anchor defendant’s role in the chain of infringements.

Background is the Union Trademark Regulation 2017/1001, which has separate rules on jurisdiction discussed in ia AMS Neve, however it leaves A8(1) Brussels Ia’s anchor defendant mechanism untouched.

(34) ff the AG uses the opportunity to clarify CJEU Nintendo,  with respect to Article 8)1)’s condition of ‘same situation in law’: the AG suggests the Court clarify that the application of different national laws as a result of intellectual property rights’ territorial scope, does not stand in the way of the situation being the same in law in the case of a Union trademark.

Next the AG discusses the issues also of relevance in ia CJEU C‑145/10 Painer, namely the question of sameness in fact, and argues for a flexible interpretation despite the defendants at issue not being contractually linked. He suggests inter alia that it would run against the intention of the Regulation to force the claimant into proving the anchor defendant be the main instigator of the infringement. Along similar lines, that the anchor defendant is not a corporation itself but rather one of its directors, with domicile in a different Member State, does not in the view of the AG prevent him being used as anchor defendant, provided (77) claimant prove at the start of proceedings that the director actively engaged in the infringement or should have known about it but did not stop it.

One can see merit in the AG’s approach in that it, as he also suggests, addresses the issue of abuse of the anchor defendant mechanism. On the other hand, this engagement with some of the merits of the case always raises the issue of how intensive that can /ought to be at the jurisdictional stage without leading to a ‘mini’ trial’. It may be preferable simply to hold that as a director of a corporation, one should not be surprised to be used as jurisdictional anchor for that corporation’s infringements, in one’s place of domicile.

Geert.

EU Private international law, 3rd ed. 2021, 2.482 ff.

Opinion Richard de la Tour this AM re anchor defendants, Article 8(1) Brussel Ia, infringement of Community Trademark

C‑832/21 Beverage City & Lifestyle GmbH v Advance Magazine Publishers Inc.https://t.co/yjOXA6OrbR

— Geert Van Calster (@GAVClaw) March 23, 2023