Droit international général

The third issue of the Journal du droit international for 2024 has been released. It contains two articles and several case notes relating to private international law issues. It also pays tribute to Ibrahim Fadlallah (1942-2024) who was a leading Lebanese-French academic and arbitrator. In the first article, Daniel Mainguy (University of Paris Panthéon-Sorbonne) uncovers […]

The author of this post is Nishat Hyder-Rahman, Postdoctoral Research Fellow, MSCA Impact Fellowship Programme, Department of Private and Economic Law, Vrije Universiteit Brussel. On 28 March 2024, the European Court of Human Rights (ECtHR) ruled on the case of Verhoeven v France. The case concerned whether the French courts’ application of the Hague Convention […]

The Hague Conference on Private International Law (HCCH) will be hosting the 13th International Forum on the electronic Apostille Programme (e-APP) together the Ministry of Justice of Kazakhstan and the Maqsut Narikbayev University on 21 and 22 October 2024 in Astana, Kazakhstan.

The full announcement reads as follows:

The e-APP is an integral part of the operation of the HCCH 1961 Apostille Convention. The e-APP is designed to ensure the practical, effective and secure operation of the Apostille Convention in an environment of constant technological development.

The International Forum on the e-APP gathers experts and stakeholders from around the world and provides a unique international platform for governments, organisations, and the private sector to learn more about the benefits of the e-APP, to promote its effective implementation, and to discuss the latest developments in relation to the e-APP worldwide.

The e-APP Forum will be held for the first time in Central Asia and will be jointly organized by the HCCH, the Ministry of Justice of Kazakhstan, and the Maqsut Narikbayev University. Participants are encouraged to attend this event in person, if possible.

Registration is possible here.

 

The author of this post is Lydia Lundstedt, who is an Associate Professor and Senior Lecturer at Stockholm University, and currently a STINT fellow at the University of Botswana. In the interest of transparency, the author makes known that she previously wrote an expert legal opinion on behalf of BSH Hausgeräte. On 5 September 2024, […]

Christine Budzikiewicz (University of Marburg), Konrad Duden (Institute for Foreign and European Private and Procedural Law at the University of Leipzig), Anatol Dutta (Ludwig Maximilian University of Munich) Tobias Helms (University of Marburg) and Claudia Mayer (University of Regensburg) authored The Marburg Group’s Comments on the European Commission’s Parenthood Proposal with Intersentia. The European Commission’s […]

On 5 September 2024, the CJEU delivered its judgment in HUK-COBURG-Allgemeine Versicherung II (Case C-86/23) and established a number of requirements limiting the application of overriding mandatory provisions under Article 16 of the Rome II Regulation. The judgment makes it clear that the Court considers that these new requirements are equally applicable in the context of […]

Johannes Ungerer (University of Oxford and Notre Dame Law School) has published recently his article German Law’s Dilemma with Punitive Damages: German Federal Court of Justice, Judgment of 4 June 1992, Case IX ZR 149/91 (BGHZ 118, 312) on SSRN. The article is included also in the volume edited by James Goudkamp and Eleni Katsampouka titled […]

The Centre for Private International Law and Transnational Governance at the University of Aberdeen published several blog posts on Perspectives on Law in a Transnational Context. The blog post series explores the transnational tendencies in applying laws and rules of law and critically assesses their purpose from different legal and ethical perspectives.

The blog post series started with the post ‘Tracing the Transnational Evolution of Commercial Law’, exploring transnational commercial law’s development from its roots in Roman law to modern international commercial arbitration, authored by Jonathan Ainslie and Patricia Živkovi?. It highlights the transnational nature of legal authority, starting with the ius commune and lex mercatoria in medieval Europe, which laid the foundation for cross-border commercial practices and principles for dispute resolution which had cross-border application. The post further examines how international arbitration today employs a similar transnational methodology, allowing arbitrators to apply non-state laws and broader principles, thus challenging the traditional notion of state authority as the sole source of legitimate legal rules.

In the next blog post,Gloria Alvarez discusses the concept of ex aequo et bono as the applicable law in international arbitration from a transnational perspective. The author lays out the meaning – and value – of ex aequo et bono beyond the principles of good faith and equity established in common and civil systems. To do so, the blog makes reference to cases in international investment treaty practice, where ex aequo et bono has been put to test regarding its practical limitations and criticisms.

Alice Krzanich‘s blog explores transnational women’s legal history, focusing on the reform of sexual slander laws affecting women in the 19th century. The author highlights how common law jurisdictions like New Zealand, Australia, the U.S., and Canada enacted legislation that removed the need for women to prove economic loss (special damage) in slander cases involving accusations of unchastity. This legal evolution, sparked by shared dissatisfaction with restrictive defamation laws, illustrates how domestic legal changes often reflected broader transnational trends inspired by legal reforms in other common law nations. Additionally, while these reforms empowered women, they also reinforced certain sexist and racial stereotypes, demonstrating the duality in their impact. Through this case study, Krzanich emphasises how global legal movements influenced women’s rights across different jurisdictions.

Francesca Farrington‘s blog, ‘Oil in the Amazon’, explores how corporate power may influence the development and application of transnational legal norms through an analysis of the Chevron-Ecuador case. Farrington examines how Chevron were able to leverage their corporate power to the disadvantage of victims of corporate polluting and influence the development of key legal norms that govern transnational accountability. The case highlights how corporations can shape legal norms to their advantage, often reinforcing global inequalities and perpetuating historical power imbalances.

Nevena Jevremovic’s post, ‘“Rhetorical Community” and the Question of Equality in the Vienna Sales Convention’, explores the CISG (Vienna Sales Convention) in its broader political context. As a uniform legal text, the CISG constitutes a rhetorical community where discourse is essential in the continuity of uniform law among the different legal, social, and political context of its members. Jevremovic emphasises that the inequalities present during the CISG’s creation (and in contemporary trade) do not occupy a prominent place in the CISG’s discourse. She critiques the market-focused application of the CISG, arguing that it overlooks socio-economic inequalities and colonial legacies that still impact global trade. The blog post calls for a more inclusive interpretation of the CISG to address disparities among contracting parties.

The Centre for Private International Law has expanded its core scope of research and teaching activities over the modes of transnational governance. To reflect these changes, in 2024, the Centre’s mission was formally broadened due to globalisation tendencies in law, and the Centre was renamed ‘the Centre for Private International Law and Transnational Governance’. This blog series enhances the understanding of specific aspects of transnational governance and its fundamental connection to the field of private international law.

We welcome any commentaries or additional views on this and other topics.

The Centre for Private International Law at the University of Aberdeen published its newest blog post series in early August. This series is based on the keynote speeches and panel discussions from the 2024 PAX Moot Half Day Conference, held on 26 April 2024 in Ljubljana. The insightful event was co-organised by the Centre for Private International Law of the University of Aberdeen, the Faculty of Law of the University of Ljubljana, and the PAX Moot Project, co-funded by the European Commission.

The conference, titled ‘Private International Law in Dispute Resolution,’ brought together leading experts to explore the evolving landscape of private international law and its role in resolving cross-border disputes. Throughout the series, the speakers reflected on their key themes and the discussions that emerged from the event, providing practical insights that can be applied in real-world scenarios.

The first post brings you Professor Ronald Brand’s opening keynote speech on drafting choice of court and arbitration agreements, exploring private international law points from a transaction planning perspective.

The second post, Business and Human Rights Litigation and Private International Law, highlights findings shared by panellists on sustainability and private international law, and human-rights-related torts in the private international law of the European Union.

The third post, The Law Applicable to the Arbitration Agreement, will deliver on the legal complexities and considerations in determining the applicable law for arbitration agreements, especially in light of the latest amendments to the 1996 English Arbitration Act.

Finally, the fourth post provides a new perspective on the impact of globalisation on private international law, arguing that the so-called neutrality of private international law is becoming a fiction embedded in a very specific liberal and Eurocentric worldview.

The central theme of the latest issue of the Revue critique de droit international privé (announced on this blog here) is migration. While most of the articles focus on the new French statute to control immigration and improve integration, Hans van Loon takes a broader perspective and argues in the opening article (La nécessité d’un cadre […]

The 115th Annual Conference of the Society of Legal Scholars will take place at the University of Bristol between 3 and 5 September 2024. The conference will focus on the theme Learning from Others: Lessons for Legal Scholars? The Conflict of Laws section, coordinated and moderated by Michiel Poesen (University of Aberdeen) and Patricia Zivkovic (University of […]

Back to normal activity as of 3 September, here is the planning in relation to cases on private international issues for this month. Advocate General N. Emiliou’s second opinion in case C-339/22, BSH Hausgeräte, expected in July (see here), was re-scheduled and should be delivered on Thursday 5. On the same day, Advocate General J. Richard […]

Following the publication of the book Research Methods in Private International Law: A Handbook on Regulation, Research and Teaching (Elgar, 2024), edited by Xandra Kramer and Laura Carballo Piñeiro (see our earlier news item), we are organising two launch events.

The first webinar is on 10 September 2024, from 10-12 CEST. After a brief introduction by the editors, eminent contributors to the book will present their views on methods of regulation, research and education in private international law. Topics addressed include recognition as a method, European law perspectives, the essence of comparative law, law & economics, and feminism in private international law.

• The webinar is co-organised by the University of Vigo. Speakers are Dulce Lopes (University of Coimbra), Adriani Dori (Erasmus University Rotterdam), Diego P. Fernández Arroyo (Sciences Po Law School Paris), Giesela Rühl (Humboldt University of Berlin), and Mary Keyes (Griffith University of Brisbane). You can register here.

The second webinar is on 23 September 2024, from 10-11.30 CEST. This webinar will zoom in on the importance and methodology of education in private international law, addressing general educational aspects in different jurisdictions including The Netherlands, India, UK, and Nigeria from the perspective of colonialism and history, the significance of teaching PIL, curriculum development, the use of AI, design of assessment, etc .

• This webinar is co-organised by the University of Vigo, the American Society of International Law (ASIL) and hosted by the University of Sydney (moderated by Jeanne Huang). Speakers are Veronica Ruiz Abou-Nigm (University of Edinburgh), Chukwuma Okoli (Birmingham Law School), Abubakri Yekini (University of Manchester), Ramani Garimella (South Asian University) and Aukje van Hoek (University of Amsterdam).You can register here.

Written by Tarasha Gupta and Akshath Indusekhar, Jindal Global Law School, OP Jindal Global University, Sonipat, India

Recently, the Singapore International Commercial Court (“SICC”) in DJO v. DJP & Others set aside an award authored by retired Indian judges that it deemed to have copied and pasted portions of another arbitral award. The SICC reasoned its decision on the basis that the copy and pasting reflected the arbitrators’ partiality and their being influenced by arguments extraneous to the arbitration at hand. This article unravels the rationale for the SICC’s judgement in this peculiar case and explores its implications on international commercial arbitration for seat courts across jurisdictions worldwide.

 

Brief Facts

 

The Claimant, DJO, was the Respondent in the Arbitration. The Defendants / Claimants in the Arbitration are a consortium of two Indian companies and one Japanese company (“Consortium X”), formed to tender for a contract with DJO relating to the Western Dedicated Freight Corridors. DJO and Consortium X entered a contract in August 2017, incorporating the International Federation of Consulting Engineers Conditions of Contract and providing for disputes to be resolved by arbitration seated in Singapore, in accordance with the ICC Arbitration Rules 2021 (“ICC Rules”). The substantive contract was to be governed by Indian law.

 

In January 2017, the Indian Ministry of Labour issued a Notification increasing the minimum wages payable to workmen. More than three years later, in March 2020, Consortium X sought an adjustment for additional labour costs due to the Notification. After the processes set out in the contract were unsuccessfully exhausted and attempts at an amicable settlement and a claim before the Dispute Adjudication Board were unsuccessful, arbitration commenced between Consortium X and DJO (“the Arbitration”). The three-member arbitral tribunal constituted of three eminent retired Indian judges (“the Tribunal”). Judges A and B were nominated by each party. Judge C was nominated by Judges A and B and approved by the ICC.

 

Simultaneously, two other arbitrations took place relating to the effect of the Notification on contracts relating to the Eastern Dedicated Freight Corridor. Judge C was appointed as arbitrator in these other arbitrations as well. The hearings in these arbitrations had substantially concluded before the hearings began in the Arbitration between DJO and Consortium X. Crucially, while the Arbitration was seated in Singapore and conducted according to the ICC Rules, the other two arbitrations were seated in India and conducted in accordance with the rules of arbitration of the International Centre for Alternative Dispute Resolution, New Delhi. Accordingly, the lex arbitri for the two other arbitrations was the Indian Arbitration & Conciliation Act, 1996.

 

Arbitrator Bias and Copied Portions of Arbitral Awards

 

DJO submitted that 278 out of 451 paragraphs of the final award passed in the Arbitration (“the Award”) were substantially reproduced from an award in one of the two other arbitrations. Consortium X accepted that 212 paragraphs of the Award were taken, but disagreed with the degree of reproduction. The SICC viewed it unnecessary to resolve the dispute as to which paragraphs were copied– the parties’ agreement on this point was enough to show that Judge C heavily relied upon, and applied, his knowledge of the other two arbitrations in the present Arbitration.

 

The SICC noted several problems in the Award passed in the Arbitration vis-à-vis that passed in the two other arbitrations. The Tribunal referred to submissions from the other arbitrations in the Award, which were never made by the parties to the Arbitration. The Tribunal attributed arguments which were never raised by the parties to them, including relying upon authorities which were never drawn to the Tribunal’s attention. The Tribunal also failed to appreciate the difference in the wording with the contracts in the other arbitrations and DJO/Consortium X’s contract, referring to provisions which were not found in the contract between DJO and Consortium X. To the SICC, this clearly demonstration that the Tribunal drew upon the submissions made in the other arbitrations, rather than deciding solely based on that made in the Arbitration.

 

Applicable Legal Principles

 

Based on parties’ submissions, the SICC considered the plausibility of setting aside the impugned Award based on three provisions. First, Article 34(2)(a)(iv) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”) was considered, which allows for an arbitral award to be set aside due to non-compliance with the parties’ agreed upon arbitral procedure. Second, Article 34(2)(b)(ii) of the Model Law was considered, as it allows for an award to be set aside upon contravention of the public policy of Singapore. Third, the SICC considered whether Section 24(b) of Singapore’s International Arbitration Act, 1994 (“IAA”) was attracted, as it allows an award to be set aside due to a breach of principles of natural justice that prejudices parties’ rights.

 

The SICC also recalled legal principles applicable to the parties’ chosen arbitral procedure, i.e. the ICC Rules. For example, Article 11 of the Rules provides for the impartiality and independence of the arbitrators and towards all the parties involved in the arbitration. Article 22 deals with the conduct of arbitration and casts duties upon the arbitral tribunal to, inter alia, conduct the arbitration in an expeditious manner with due cognizance to the dispute’s complexity (Article 22(1)) and act fairly and impartially, hearing each party’s case (Article 22(4)).

 

The SICC also referred to Section III of the ICC’s 2021 Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration (“the Note”), which deals with arbitrators’ impartiality and independence. Specifically, Paragraph 27 of the Note enunciates the requirement for arbitrators to consider relevant circumstances, including if they acted in a case involving one of the parties or their affiliates, or acted as an arbitrator in a related case.

 

Holding on Legal Principles

 

First, the SICC clarified that the Tribunal’s application of the incorrect lex arbitri to determine interests and costs was insufficient to set aside the Award. The Award referred to Sections 31(7) and 31A of the Indian Arbitration & Conciliation Act 1996, rather than any reference to Singaporean law. Yet, the SICC noted that its doubt on the Tribunal’s independence of thought was caused not by its error of law (which is irrelevant to a setting aside application), but its reliance on the reasoning of the other awards.

 

Second, DJO contended that the Award should be set aside on account of non-compliance with the agreed arbitral procedure under Article 34(2)(a)(iv) of the Model Law. It was contended that Article 32(2) of the ICC Rules provide that the Tribunal should give the reasons for its decision in an award, and the Tribunal in the present case had not done that by virtue of their copy-and-pasting. The SICC considered it unnecessary to consider these submissions, as the argument in effect concerned the Tribunal’s failure to independently and impartially consider the arguments in the Arbitration, which relates to the field of natural justice.

 

Third, the SICC considered whether the principles of natural justice had been violated. It reiterated the intrinsic nature of such principles (including the right to a fair hearing and the rule against bias) in the appointment of arbitrators under Articles 11 and 22 of the ICC Rules. Recalling a slew of judgments, it also acknowledged the high threshold and exceptional nature of application of principles of natural justice. DJO made 4 submissions in this regard. First, that the rule against bias precludes an arbitrator from pre-judging a case, and the use of knowledge obtained from unrelated arbitration proceedings constitutes impermissible pre-judging. A necessary antecedent question was whether the Tribunal applied its mind to the issues in an independent, impartial and fair manner? The Court referred to CNQ v. CNR, where the High Court stated that the test is whether a reasonable observer, upon due consideration of the relevant facts, suspects that the decision maker reached a conclusion even before the parties’ submissions. In DJO’s case, the test of a hypothetical fair-minded, reasonable person inevitably yielded the apprehension of pre-judgement. The Award attributed submissions made in an earlier arbitration to the counsels in the present case, indubitably striking at the mantle of an impartial, independent mind. Thus, the Court inferred a very real apprehension of bias, meeting the threshold for violation of principles of natural justice. Second, DJO argued they had not been granted a fair hearing or a fair, independent, and impartial decision. The SICC responded that when a tribunal draws heavily from submissions from a previous case and fails to provide the parties with an opportunity to address them, a fair hearing is not granted. DJO’s third and fourth grounds concerned the right to a fair hearing. As sub-sets of the second ground, the Court found no need to address them separately.

 

Ultimately, it concluded that the Award was liable to be set aside due to the breach of natural justice. However, it acknowledged that the mere fact of copying is insufficient to vitiate an arbitral award. Here, it was set aside because the reproduction was not with a view to hide the origin of the copied work but was merely to minimize the work of the Tribunal in writing the award, which ultimately violated the principles of natural justice.

 

Fourth, DJO alleged the Award contravened the public policy of Singapore (Article 34(2)(b)(ii) of the Model Law). The SICC acknowledged the exceptional nature of the public policy ground for setting aside arbitral awards, and the high threshold established by previous jurisprudence. It stated that since the finding on the contravention of principles of natural justice could set aside the arbitral award, this would render a public policy assessment unnecessary. However, the Court rejected the blanket assertion that all forms of plagiarism would fundamentally be contrary to public policy.

 

Implications

 

By considering the Model Law and ICC Rules, the SICC’s judgment has the potential to shape the interpretation of seat courts’ powers across the globe. In this regard, the judgment has several favourable implications.

 

For instance, the judgement crucially maintains the high threshold that has and ought to characterize the public policy ground of setting aside arbitral awards. While most jurisdictions allow for arbitral awards to be set aside upon contravention of public policy, an overly broad scope of application could grant Courts a carte blanche to disregard foreign-seated arbitral awards unfavourable to a local party. The reiteration of the exceptional nature of the public policy ground for setting aside arbitral awards is paramount in this regard.

 

Further, the SICC clearly laid down which nature of copying is prohibited, rather than universally disallowing it in any form. It held that a degree of dishonest intention and concealment is intrinsic to the phrase “plagiarism”, whereas in the case at hand, the copy-and-pasting was merely to minimise the Tribunal’s work, rather than to conceal work’s origin; the Tribunal may have considered this to be fit owing to the conspicuous similarity in legal questions. It rightly noted that merely copying cannot render an arbitral award liable to be set aside. Rather, in the case at hand, the award was set aside as its anomalies that reflected a violation of the principles of natural justice. This differentiation is particularly relevant, since Courts worldwide often reproduce paragraphs of judgements and scholarly work which recall the jurisprudence on a subject, albeit with due attribution to the sources. In any case, reproduction made in good faith, to expedite proceedings on identical matters, ought not to be prohibited in all forms. The SICC rightfully assessed the copy-and-pasting on its impacts on the parties rather than laying down a universal rule.

 

The SICC also reinforced the principle of minimal curial intervention in arbitral awards. At one juncture, for example, it acknowledged that a crucial factual difference across the arbitrations was the length of the delay between the Notification and the time when Consortium X raised the issue of adjustment in the main Arbitration. DJO contended that the Tribunal’s failure to focus on this factual peculiarity itself undermined the Award’s validity. However, the SICC deemed this claim unnecessary to rule upon, insofar as deciding it would entail reviewing the substantive merits of the Tribunal’s findings, thereby exceeding the jurisdiction of a seat court. The SICC’s restraint in not re-entering the substantive merits of the dispute even while recognising an error regarding the same demonstrates a solid commitment to upholding the finality of arbitral awards, improving the certainty and efficacy of this mode of dispute resolution. By choosing to base its analysis on the principles of natural justice instead of the Tribunal’s application of the incorrect lex arbitri or its finding on facts, the SICC has strengthened established principles regarding the limited role of seat courts in an arbitral award. This has positive implications for international commercial arbitration, which benefits from party autonomy and respecting private arbitral tribunals’ findings while limiting deference to domestic judicial systems.

 

That said, the Court’s method of clubbing certain issues together may lead to uncertainty regarding its precedential value for other jurisdictions following the Model Law.

 

First, the Court’s non-consideration of the alleged public policy aspects of the breach of principles of natural justice has undesirable implications. It is true that Section 24(b) of the IAA explicitly provides natural justice as a ground to set aside an arbitral award, and thus there was no need to rely on any other provision to set aside the present Award. However, this judgment is a missed opportunity to acknowledge the nexus between the principles of natural justice and public policy under the Model Law itself. Although the public policy ground has a high threshold, the judgment’s superficial engagement with the threshold by itself and the absence of delineating its scope makes its precedential value for other Model Law jurisdictions unclear. More prominently, by not discussing whether “public policy” under the Model Law encompasses natural justice, the ground could be rendered an inoperable remedy.

 

Second, the Court’s refusal to consider DJO’s argument that the Award be set aside due to non-compliance with the agreed-upon arbitral procedure means that there is now little clarity on whether copied arbitral awards violate the ICC Rules of Arbitration, specifically, Article 32(2). There is also little clarity on whether a tribunal copying and pasting portions of an award such would violate Article 34(2)(a)(iv) of the Model Law, under which this argument was brought. This has repercussions for non-Singaporean seated arbitrations that choose to be governed by the ICC Rules, as well as other jurisdictions following the Model Law.

 

It is interesting to note, however, that the SICC did cite the ICC Rules’ provisions on arbitrator bias and impartiality at the beginning of its judgment (as aforementioned). This could mean that the SICC intended to suggest copying portions of another award violates the ICC Rules insofar as it reflects a pre-existing prejudice on the arbitrators’ part. However, in the absence of an explicit finding to the same it is difficult to draw this implication, especially considering that a violation of these Rules was not the reason why the Award was ultimately set aside.

 

Conclusion

 

While the SICC’s judgement does strengthen key tenets of the role of seat courts international commercial arbitration, its complete implications for other Model Law jurisdictions remain unclear. As arbitration grows more popular as a dispute resolution mechanism for complex transnational commercial disputes, high degrees of similarity between ongoing arbitrations involving common arbitrators is to be expected, and copied arbitral awards may not be the only issue to face seat courts going forward. That being said, despite the seemingly egregious nature of reproduction in the case at hand, the SICC carefully treaded the line between criticism of the Award and the risk of a blanket prohibition of copying portions of arbitral awards. Thus, from the observations on the powers of the seat court, the principles of natural justice, and procedural impropriety, the SICC’s judgment is a landmark decision in navigating these challenges in the future.

The second issue of the Journal of Private International Law for 2024 has just been published. It contains the following articles:

Reid Mortensen & Kathy Reeves, The common law marriage in Australian private international law

The common law marriage is a curiosity in the private international law of marriage in the Commonwealth and Ireland. In some cases, a marriage that is invalid under the law of the place where it was solemnised (lex loci celebrationis) may nevertheless be recognised as valid if it meets the requirements of a common law marriage. These originate in the English canon law as it stood in the eighteenth century and include the central requirement of the parties’ present declaration that they are married. The parties also had to meet the essentials of a Christian marriage as described in Hyde v Hyde (1866): “a voluntary union for life of one man and one woman to the exclusion of all others”.

There are more reported cases on common law marriages in private international law in Australia than any other country. Although its Australian development coincided with that of other countries, in the twenty-first century the Australian common law marriage is now in an unusually amorphous condition. The preconditions for a court to ignore the lex loci have been significantly liberalised. Additional uncertainty in the nature of a common law marriage is created by a combination of repeated misinterpretations of the Marriage Act, the failure to use precedent outlining its requirements and the dismantling of the Hyde definition of marriage in the Same-Sex Marriage Case (2013). The article considers that the common law marriage might still serve a useful purpose in Australian private international law, and how it could better do so.

 

Stephen G. A. Pitel, The statutory assertion of exclusive jurisdiction

Statutes that create or codify causes of action sometimes contain jurisdiction provisions. The wording of these provisions can differ widely. Some of them purport to give exclusive jurisdiction to a specific court. In the private international law context, this raises the question of whether such a provision precludes the courts of any other jurisdiction from hearing a claim under the statute. This article analyses how these provisions have been interpreted. It focuses on Canadian law but draws on American, Australian and New Zealand jurisprudence. The article contends that the Canadian jurisprudence is uneven and insufficiently rigorous. Several of the decisions cannot be reconciled with each other, such that some must be regarded as incorrect. Several of the decisions fail to identify the important questions that are posed by alleged assertions of exclusive jurisdiction and also fail to answer them. Moving forward, courts should treat the claim that such a provision deprives a court of jurisdiction with caution and even scepticism.

 

Charlotte Wendland, Will substitutes in EU private international law: deathbed gifts and contracts for the benefit of a third party upon death

Will substitutes exist in many legal systems, including those of Member States of the European Union. Two of these will substitutes are deathbed gifts and contracts for the benefit of a third party upon death. Both instruments are located at the intersection of succession law and contract law and are therefore difficult to characterise for the purposes of private international law. One could either characterise them as succession instruments in the sense of the EU Succession Regulation or as contracts in the sense of the Rome I Regulation. This article analyses the different options on how to characterise these will substitutes by taking into account the wording of both Regulations, comparative analysis of the substantive law, the likelihood of adaptation and the recent judgment by the Court of Justice of the European Union (CJEU) on this matter.

 

Jie (Jeanne) Huang, Can private parties contract out of the Hague Service Convention?

Treaties are concluded by States but often impose rights and obligations directly upon private parties. Can private parties contract out of a treaty including States’ oppositions without explicit permissions granted by the treaty? The complexity between party autonomy and State sovereignty is reflected in recent cases and unsettled debates regarding the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters of November 15, 1965 (“HSC”). The HSC contains a large number of oppositions made by 65 Contracting States including China, Germany, India, and Singapore. Combining public and private international law, this paper aims to explore the correlative relationship between party autonomy and State sovereignty in applying the HSC.

 

Lydia Lundstedt, The law applicable to the right of priority from a European perspective

The right of priority established in the Paris Convention for the Protection of Industrial Property allows a patent applicant to claim the filing date of a first application for any subsequent applications for the same invention filed within twelve months in another Paris Convention Contracting State. This right may be claimed by the person who has filed an application or their successor in title. If priority is not validly claimed, patent applications and patents relying on the right may be rejected, revoked or invalidated. National and regional rules governing who may claim priority, whether a priority right may be divided or shared, whether it may be transferred independently of the priority application and the rights to the invention, and the requirements for a valid transfer differ from country to country. The issue of whether priority has been validly claimed may therefore depend on which country’s law applies, which depends on the characterisation of the issues. The aim of this article is to provide a European perspective on the law applicable to the right of priority.

 

Amy Held, The modern property situationship: Is bitcoin better off (left) alone?

In modern private international law (PIL), property and situs apparently go hand in hand in an established PIL monogamy to which there tends to be a collective commitment for all PIL aspects of a cross-border dispute for all PIL subcategories of property objects. This article argues that mechanistic deference to such apparent property-situs monogamy as an overarching rule in the PIL of property is not only misconceived; but is positively impeding progress in the modern PIL debates surrounding property rights in modern decentralised objects such as bitcoin. It therefore examines the discrete justifications for the situs rules to show that the apparent property-situs monogamy is actually the cumulative effect of a wide variety of situation-specific considerations in what is really a property-situs situationship. Hence, from an analysis of the situs rules, and the principles underpinning international jurisdiction and applicable law more generally, it suggests alternative property PIL solutions to the intractable problems posed by decentralised phenomena based on policy considerations rather than continued focus on the property object itself as the “natural seat” of a property relationship.

 

Jim Yang Teo, Transnational res judicata in international commercial disputes and potential influences for BRI dispute resolution

Res judicata plays an important role in the management of complex cross-border commercial disputes. Courts and tribunals are increasingly required to grapple with the application of res judicata on the basis of a prior determination from a different, and potentially unfamiliar, legal system. These considerations come even more alive in the context of the ambitious transnational project of the Belt & Road Initiative. This paper critically examines the Singapore Court of Appeal’s decision in Merck Sharp & Dohme Corp v Merck KgGA, which offers a cooperative vision of transnational res judicata that strikes a balance between comity and mutual trust between national legal systems, and each system’s own sovereign and constitutional responsibilities and interests. The paper also considers the potential influences of Merck’s unique transnational vision for the BRI dispute resolution ecosystem.

 

Chibike Amucheazi, Chidebe Matthew Nwankwo & Fochi Nwodo, A reassessment of the challenges of enforcement of foreign judgments in Nigeria: the need for legislative reform to ease business

Enforcement of foreign judgments has significant relevance in this era of increased international investments and commercial relations across borders. Focusing on Nigeria as the central jurisdiction of analysis, this paper takes the position that rules of private international law form an often understated yet important aspect of the governance system of a country often measured by the Ease of Doing Business (EDB) ranking of the World Bank. This paper further argues that central to opening up the economy and inviting FDI into the country, the obvious matter of the inconsistency in the application of the foreign judgment enforcement statutes ought to be settled so as to create determinacy in Nigeria’s legal system – a potential attraction for foreign investors who appreciate predictability in the laws of a host country. It recommends the review and adoption of the Foreign Judgment (Reciprocal Enforcement) Act 1990 in order to quell the circumspection of the investor and trade participant due to uncertain legislation.

 

 

After reading and reviewing a thought-provoking book on the choice of law in international commercial contracts in Indonesia last year, I decided to delve further into the subject by picking up a book on Indonesian private international law. The book, titled Indonesian Private International Law, is part of the prestigious Hart series on Private International Law in Asia. Authored by Dr. Afifah Kusumadara, with contributions from a team of Indonesian scholars (hereafter referred to as “the authors”), this work was published during the COVID-19 pandemic. Spanning 226 pages across six chapters, the book aims to be the leading English-language text on private international law in Indonesia. This review provides an overview of its content.

Indonesia, a civil law country, has legal principles influenced by Dutch traditional private international law, owing to its colonial history. However, the book does not adhere strictly to the abstract style typical of civil law texts; instead, it offers helpful explanations of relevant case law.

Chapter 1 discusses the scope of Indonesian private international law, noting that it is somewhat limited, covering issues such as the status of persons, family matters, real property, formalities, international arbitration, choice of arbitral tribunals, and enforcement of foreign arbitral awards. The authors highlight that the sources of Indonesian private international law include legislation, customary law, case law, international treaties, and doctrine. However, Indonesia does not have a comprehensive code on private international law. The chapter also addresses preliminary matters like characterisation, incidental questions, and renvoi; connecting factors such as nationality, domicile, and residence; as well as issues related to substance and procedure, proof of foreign law, evidence in international disputes, public policy, and mandatory rules.

Chapter 2 covers jurisdiction in personam, dividing the discussion into general and special rules. The primary rule for jurisdiction in personam in Indonesia is to sue the defendant in their home court. For general jurisdiction, the principle of forum non conveniens is recognised in Indonesia’s judicial practice, though it has not been codified. Similarly, the doctrine of lis alibi pendens is part of Indonesian civil procedure, though rarely used in cases pending in foreign courts between the same parties and subject matter. Anti-suit injunctions have been issued by Indonesian courts, albeit not codified, usually to protect Indonesia’s judicial interests and those of its citizens.

Written choice of court agreements are permitted in Indonesia, though the country’s civil procedure rules do not specifically address foreign choice of court agreements. In practice, a choice of court agreement is likely to be enforced if it designates Indonesian courts and the defendant resides in Indonesia. Indonesian judges often conflate choice of court agreements with choice of law, leading them to decline jurisdiction when there is an express choice of foreign law.

Service of court processes, both within and outside the jurisdiction, is allowed under Indonesia’s civil procedure rules. However, the authors of the book note that Indonesian law does not explicitly address the service of foreign proceedings within Indonesia, and they recommend that Indonesia accede to the 1965 Hague Service Convention to address this gap.

The discussion then moves to special rules governing specific contracts, torts, unjust enrichment, trusts and charitable foundations, property law (including immovable property, intangible property, and succession), intellectual property, family law (covering marriage, divorce, nullity, separation, and child welfare), corporate law, insolvency, personal bankruptcy, and competition law. Notably, this structure is largely mirrored in Chapters 3 and 4, which focus on choice of law and the recognition and enforcement of foreign judgments.

Following this, Chapter 2 delves into jurisdiction over shipping claims.

Finally, Chapter 2 addresses immunities from jurisdiction. The authors note that the Indonesian government advocates for the doctrine of absolute immunity to protect the state’s interests in foreign courts. However, Indonesian courts apply the doctrine of restrictive immunity to safeguard the interests of Indonesian nationals involved in commercial transactions with foreign states within Indonesia. Notably, diplomatic immunity under the Vienna Conventions on Diplomatic and Consular Relations is considered waived when foreign legal representatives enter into employment contracts with local staff, as demonstrated in the case of Brazilian Embassy in Jakarta v. Luis F.S.S. Pereira (Supreme Court decision 376 K/Pdt. Sus-PHI/2013, 29 October 2013, pp. 97, 111-112).

Chapter 3 focuses on the choice of law. Indonesian legislation and court practice generally uphold the principle of party autonomy. In situations where the applicable law is not specified, Indonesian scholars tend to favor the law of the habitual residence of the characteristic performer, although judicial practice in this area remains uncertain. The authors mention that there are Indonesian Private International Law Bills that support this principle, but I do not know whether these have been currently enacted into law.

The chapter then explores formal validity, material validity, capacity, and mandatory rules. It also delves into specific types of contracts, such as consumer contracts, employment contracts, insurance contracts, contracts for the sale and hire of goods, contracts of carriage, negotiable instruments, letters of credit, contracts involving the transfer of foreign currency, and agency agreements.

While Indonesian Private International Law does not explicitly address the law applicable to torts, the prevailing doctrine is lex loci delicti commissi (the law of the place where the tort was committed). However, Indonesian judges often apply lex fori (the law of the forum) to protect Indonesian citizens. The authors note that there are also Indonesian Private International Law Bills that support the position of lex loci delicti commissi. The chapter further discusses the law applicable to specific torts, including negligence, nuisance, wrongful interference with goods, defamation, and environmental damage and pollution.

Finally, Chapter 3 revisits other topics previously covered in Chapter 2, examining them from a choice of law perspective

Chapter 4 addresses the recognition and enforcement of foreign judgments. In general, foreign judgments, particularly condemnatory judgments, are not recognised or enforced in Indonesia, except in cases involving general maritime average where Indonesian parties are involved. However, certain foreign judgments, such as declaratory and constitutive judgments, may be recognised and enforced if the issuing countries provide reciprocal treatment to Indonesian judgments and the judgment does not conflict with Indonesia’s public policy. The authors explain that declaratory and constitutive judgments confirm a legal status or establish a new legal condition for the parties, as seen in cases involving property ownership, adoption, or divorce.

Finally, Chapter 4 revisits topics previously covered in Chapters 2 and 3, examining them from the perspective of recognition and enforcement of foreign judgments.

Chapter 5 covers commercial arbitration in Indonesia. The authority of arbitral tribunals in the country is based on party consent, which is upheld as long as it does not conflict with Indonesia’s public policy. This principle similarly applies in the context of choice of law. Indonesia has acceded to the 1958 New York Convention and has incorporated it into its legal system. However, the authors point out that Indonesian courts have not consistently interpreted this law, particularly regarding the definition of public policy.

The chapter also addresses investment treaty arbitration, discussing aspects such as jurisdiction, choice of law, and the recognition and enforcement of arbitral awards. Indonesia is a signatory to the ICSID Convention, which governs international investment disputes.

Chapter 6, the final chapter, discusses the harmonisation of private international law, including Indonesia’s involvement in global initiatives such as The Hague Conference, UNCITRAL, and UNIDROIT. The chapter concludes with comments on the future of private international law in Indonesia. The authors observe that Indonesia has played a limited role in global efforts to harmonise private international law and propose numerous ways for the country to better align its private international law rules with current global realities.

Overall, Indonesian Private International Law is a well-written and informative book, particularly valuable for those unfamiliar with Indonesia’s legal landscape. While a basic understanding of private international law is necessary to fully appreciate the text, the book is accessible and enlightening. Despite a few minor typographical errors, it was a pleasure to read, and I highly recommend it.

The Faculty of Law at the University of Rijeka will be hosting its 2024 Doctoral Conference RIDOC on 13 December 2024. This event is designed for doctoral candidates who want to present and evaluate their preliminary research findings in front of academics, practicing lawyers, and engage in discussions with peers on an international scale. Eligible […]

In a judgment of 23 May 2024, the French supreme court for private and criminal matters (Cour de cassation) ruled that French courts have jurisdiction to entertain a paternity claim against French actor Alain Delon. The Court of Appeal of Orleans had declined jurisdiction on the ground that the plaintiff had brought proceedings in France […]

 

 

It is a great pleasure to review the book titled Treatment of Foreign Law in Asia, edited by Kazuaki Nishioka. This volume contains 17 chapters, including an introduction and conclusion, spanning 298 pages (excluding the series editor’s preface, table of contents, bibliography and index). The book examines 15 Asian jurisdictions, representing a variety of legal systems, including civil law (China, Taiwan, Japan, South Korea, Vietnam, Cambodia, Indonesia, and Thailand), common law (Hong Kong, Singapore, Malaysia, Myanmar, and India), and mixed jurisdictions (Philippines and Sri Lanka).

Currently, no international instrument comprehensively addresses the treatment of foreign law in cross-border matters. The central theme of this book is how 15 Asian states balance the demands of cost-effectiveness, time efficiency, and fairness in the ascertainment of foreign law, how their approaches can be improved, and how regional, quasi-regional, or international databases and institutions can facilitate the ascertainment of Asian and other foreign laws. The chapters explore four key themes: (A) the status of choice of law rules, (B) the handling of foreign law before judicial authorities, (C) the treatment of foreign law by administrative or non-judicial authorities and alternative dispute resolution service providers, and (D) access to local and foreign law. However, this review primarily focuses on the theme of proving foreign law before judicial authorities in Asia, as this is fundamental to private international law.

I have never been disappointed by reading Asian books on private international law. I have previously reviewed five other Asian books on this topic—three devoted to the recognition and enforcement of foreign judgments, one on direct/adjudicatory jurisdiction,  and one on choice of law in international commercial contracts in Indonesia. This current review marks the fourth time I am reviewing an Asian book on private international law, and the sixth Asian book on the subject I have reviewed overall.

I once regarded the European Union as the superpower of private international law, wielding more influence than the U.S. or any other global power, largely due to its dominant role in shaping the Hague instruments and other global conflict of laws matters. However, it is now fair to say that Asia is emerging as a significant player in private international law, though it is not yet as united or formidable as the European Union. After reading this stimulating book, I feel inspired to write something related to the African continent (See also Richard F. Oppong, ‘Foreign Law in Commonwealth African Courts’ in Yuko Nishitani (ed), Treatment of Foreign Law: Dynamics towards Convergence? (Springer, 2017) 601–611.)

Professor Richard Fentiman rightly observes that the application of foreign law is the crux of conflict of laws. This is particularly true in Asia, where the diversity of legal systems regularly triggers conflict of laws scenarios. Fentiman also rightly notes that foreign law is only likely to be pleaded in England under three conditions: when English law offers no equivalent claim or defence; when foreign law is significantly more advantageous; and when pleading foreign law is mandatory, such as in cases involving foreign immovable property where the lex situs applies. While this statement is made in the context of English law, it is generally applicable to the proof of foreign law in Asia.

In civil law jurisdictions in Asia, foreign law is treated as “law,” similar to domestic law (with the exception of Thailand, where foreign law is treated as a question of fact). Courts in civil law countries, except Thailand, operate under the presumption that they are familiar with all laws, including foreign law (iura novit curia). Judges are obliged to apply relevant foreign law, regardless of whether it has been raised by the parties. In contrast, common law judges treat foreign law as a matter of fact, to be proven by the parties through expert testimony. If neither party pleads foreign law, judges are not obligated to raise it. If no evidence of foreign law is presented, the judge may assume that the foreign law is identical to the domestic law.

The common law approach in Asia can be costly and time-consuming due to the need for expert evidence, which not all parties can afford, particularly in cross-border family matters. This method may result in judgments that are a capricious mix of foreign and domestic law, failing to accurately reflect either. However, where parties can afford experts, proving foreign law in this manner can be more efficient, as the parties have a vested interest in the proceedings.

There is a gradual shift in common law towards allowing judges to take a more active role in ascertaining foreign law, provided it is pleaded. In a recent United Kingdom Supreme Court case in FS Cairo (Nile Plaza) LLC v Lady Brownlie, Lord Leggatt (with whom the other members of the Court all agreed) at paragraph 148 held that:

“[T]he old notion that foreign legal materials can only ever be brought before the court as part of the evidence of an expert witness is outdated. Whether the court will require evidence from an expert witness should depend on the nature of the issue and of the relevant foreign law. In an age when so much information is readily available through the internet, there may be no need to consult a foreign lawyer in order to find the text of a relevant foreign law.”

In a more recent case from the Cayman Islands (Gol Linhas Aereas SA v MatlinPatterson Global Opportunities Partners (Cayman) II LP), the United Kingdom Privy Council at paragraphs 46 – 47 approved the Cayman Court of Appeal’s approach of directly considering the text of foreign legislation and case law to ascertain the content of the applicable foreign law. Additionally, in a recent decision, the English Court of Appeal suggested that Brownlie (supra) did not limit the sources of evidence a court may rely on when determining the content of foreign law ( Soriano v Forensic News LLC [2021] EWCA Civ 1952 [64]).

The challenge in civil law countries in Asia is that the idealistic approach of automatically applying foreign law can be difficult in practice, especially when judges lack access to foreign legal resources or are unfamiliar with the relevant language or legal culture. Consequently, countries like Cambodia, Vietnam, and China have adopted a hybrid approach, treating foreign law as both law and fact, with judges and legal representatives cooperating to ascertain it.

Where foreign law cannot be ascertained, both common law and civil law countries in Asia often apply the lex fori (the law of the forum). However, various civil law authors in the book explore alternative methods, such as dismissal of the case, reliance on general principles of law, or principles of closest connection. Resorting to lex fori is ultimately more cost-effective, efficient, and pragmatic, making it a sensible fallback.

In conclusion, the common law approach may be more suitable for purely commercial disputes, where parties can afford foreign experts. Meanwhile, the civil law approach is better suited to non-commercial matters such as consumer or family cases, where the parties may not have the resources to hire experts. Judges in common law systems should not be barred from investigating foreign law if it is accessible and familiar to them. This is a concept that could be further developed in future academic work, judicial reforms, or international legislative instruments.

Nishioka’s edited book sparks renewed debate on the need for international, regional, and domestic instruments and judicial reforms concerning the treatment of foreign law in cross-border matters. It is a thought-provoking and highly recommended read.

Csongor István Nagy (University of Galway, Ireland; HUN-REN Centre for Social Sciences, Institute for Legal Studies, Hungary) authored a book titled Private International Law: A Hungarian Perspective, published by Brill in its Law in Eastern Europe series. The book is accessible through the publisher’s website and on SSRN. The abstract provided by the author on […]