Droit international général

Co-edited by Ben Köhler, Rishi Gulati and Thomas John, the Elgar Companion to UNCITRAL is now out. This is the third and final in the trilogy of books on the three key international institutions mandated to work on private international and international private law. The Elgar Companions to the HCCH and to UNCITRAL have already been published in 2020 and 2023 respectively.

The Elgar Companion to UNIDROIT brings together a diverse selection of contributors from a variety of legal backgrounds to present the past, present and future prospects of UNIDROIT’s instruments (for more information: link).

The book will be virtually launched by the President of UNIDROIT, Professor Dr. Maria Chiara Malaguti, on 17 January 2025 at 13:00 CET. The launch event will also include a presentation by Professor Dr. Dr. h.c. Dr. h.c. Herbert Kronke, who will speak on the topic of “UNIDROIT and the EU”. The event will be held via zoom.

To register, please send an email to ben.koehler@uni-bayreuth.de

The Netherlands Commercial Court (NCC) has recently updated its rules of procedure. The updated version has come into force on January 1, 2025.

The update might interest litigation lawyers, and could be relevant to this blog’s readers who follow the developments in regulatory competition, in particular the establishment and work of international commercial courts, including several posts on this blog (see inter alia here, here, here, here, here, here, here, here, here, here, here, here, here, here, here).

The full title of the NCC rules of procedure is ‘Rules of Procedure for the International Commercial Chambers of the Amsterdam District Court (NCC District Court) and the Amsterdam Court of Appeal (NCC Court of Appeal) NCC Rules / NCCR’. The document summarizes the amendments as follows:

‘This fourth version of the Rules is occasioned by the various changes to the laws of evidence in the Code of Civil Procedure that come into force on 1 January 2025 (Article 194 ff). Additionally, there are amendments in – amongst others – the following rules:

– 2.1.3 (notification of interested parties)

– 2.2 and explanatory notes (language and third parties)

– 3.2.1 (communication by email)

– 3.2.9 (maximum size of documents in appeal)

– 3.4.2 (extension of a time limit)

– 5.2 (default)

– 6.3.2 (summary proceedings)

– 7.1.4 (scheduling)

– 7.2 (invitation to the hearing)

– 7.7.2 (audio and video recordings)

– 8.4 (right to information and confidentiality)

– 8.4.8 (prejudgment attachment to protect evidence)

– 8.8 (preparatory evidence events)

– explanatory notes 1.3.2 (jurisdiction to deal with prejudgment attachments).’

Several updates thus have practical character; other amendments follow the development of the EU and national civil procedural law (for instance, in relation to the right to information and confidentiality).

On 1 January 2025, Poland assumed the presidency of the Council of the European Union, marking the start of a new trio of presidencies that also involves Denmark and Cyprus. The Polish presidency’s programme for the semester ending on 30 June deals with a broad range of topics, including judicial cooperation in civil matters. In this […]

The Child Support forum is pleased to invite every interested stakeholder to a new open meeting on the issue of “International Maintenance Recovery on the Basis of Authentic Instruments”.

The payment of child maintenance is not always ordered by a court. Maintenance debtors may commit themselves to make these payments in an enforceable deed, also called “authentic instrument”. The enforceable deeds are usually established by public notaries or public authorities. They should not be confused with administrative orders, as they are based on a voluntary declaration by the maintenance debtor. In case of non-payment, enforcement can be carried out in the State of origin, in the same way as a court decision.

Regarding cross-border cases, the recognition and enforcement of child maintenance claims on the basis of authentic instruments is mentioned in certain provisions. However, the lack of international awareness as regards their nature leads to difficulties when it comes to their implementation. The meeting aims to provide information on these two topics and to allow an exchange between the stakeholders involved on both levels, the establishment and the enforcement of authentic instruments.

To register, click here.

This post has been written by Artur Doržinkevič, a PhD candidate and a lecturer at Mykolas Romeris University. On 21 November 2024, the Lithuanian Court of Appeal issued a ruling in civil case No. e2-651-912/2024, which provided further clarification regarding anti-SLAPP procedures as they pertain to lawyers. Although the case concerned domestic anti-SLAPP procedure, the […]

Over the past 19 years, Professor Symeon C. Symeonides (Alex L. Parks Distinguished Professor of Law, Dean Emeritus) has been providing scholars, researchers, practitionners and student with a comprehensive and extensive compliation of Parivate International law bibliogrphy.

The 2024’s compilation (Private International Law Bibliography 2024: U.S. and Foreign Sources in English) includes 58 books and 427 journal articles, covering a wide range of topics within private international law (conflict of laws) and related fields.

The bibliography addresses key areas such as prescriptive jurisdiction, extraterritoriality, federal-state conflicts, and specific aspects of arbitration. It also encompasses legal issues related to foreign relations and international human rights, providing a valuable reference for those studying or working in these domains.

This compilation serves as a significant resource for legal scholars and practitioners, offering a thorough overview of the literature in private international law and its associated fields.

Access to the bibliography is available on Prof. Symeonides’ SSRN page here.

I would like to take this opportunity to extend my heartfelt congratulations to Prof. Symeonides for his unwavering commitment and remarkable contributions. His bibliography continues to be a cornerstone of legal research and a testament to the enduring importance of meticulous scholarship.

A quick note on Playtech Software ea v Games Global Ltd ea [2024] EWHC 3264 (Ch) in which Thompsell J discussed ia Rome II in an application for service out (of the jurisdiction). 

As confirmed by Arnold LJ in Shenzhen Senior Technology Material Co Ltd v Celgard, LLC [2020] EWCA Civ 1293 [51]  as a matter of English law, claims for breach of equitable obligations of confidence are not claims in tort: yet that does not rule out that under Rome II, they are non-contractual obligations whose lex causae is determined under that Regulation (see also Autostore).

Thompsell J in casu [100]:

Breach of confidence is a species of unfair competition within Article 6 of the Rome II Regulation and Article 6(2) applies because Playtech’s claims are concerned with alleged acts of unfair competition affecting exclusively the interests of a specific competitor. In these circumstances, Article 6(2) provides that “Article 4 shall apply“. The consequence is that Article 4, which is concerned with the law applicable to a non-contractual obligation arising out of a tort, applies to determine the applicable law. This is despite breach of confidence not being a claim in tort for the purposes of English law.

Note that Article 4 Rome II unlike Article 6, contains an overall escape clause. [103] with reference to Celgard, the judge confirms that under Article 4(1) the connecting factor is the direct damage caused by the wrongdoing. Whether the relevant acts also had an effect, and may be regarded as having been carried out, in the United Kingdom, is not the relevant factor.

The judge [106] upholds claimant’s argument that it is facing competition to its business, which it conducts in the UK, in relation to its sales from at least one game developed by defendant, that has a feature that has relied on its confidential information, allegedly spirited away by a former employee of one of Playtech’s sister companies. The direct damage therefore is held to have been suffered in the jurisdiction and the tort gateway (see also UKSC Brownlie) for jurisdiction satisfied.

Geert.

EU private international law, 4th ed 2024, Heading 4.6.2.

https://x.com/GAVClaw/status/1869462089934450944

Sandrine Clavel, Patrick Jacob and Fabienne Jault Seseke (all professors at the University of Versailles St Quentin) are the editors of a new French journal dedicated to international dispute resolution, Perspectives Contentieuses internationales (PCI). The journal, which will be freely available, aims at covering both public and private law aspects of international dispute resolution. It […]

This post was written by Elena Alina Onţanu, Assistant Professor at the University of Tilburg, and Carlos Santaló Goris, Postdoctoral Researcher at the University of Luxembourg. The Bulgarfrukt judgment is the latest in a series of cases submitted by national judges to the Court of Justice of the European Union (CJEU) in which the service […]

This post has been written by Bryan (H.B.) Verheul, PhD Candidate in Private International Law, Leiden University. He attended the Advanced Course in Hong Kong as a participant. Between 2 and 6 December 2024, the second edition of The Hague Academy of International Law’s Advanced Course on Recognition and Enforcement of Judgments in Civil and […]

On Tuesday, January 7, 2025, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 4:00 p.m. – 5:30 p.m. (CET). Professor Joseph William Singer (Harvard Law School) will speak, in English, about the topic

“Conflict of Abortion Laws”

 

With the abolition of the constitutional abortion right in the United States come huge differences among the laws of the states, and that leads to questions about which state law applies when a person from an anti-abortion state travels to a pro-choice state to get an abortion. Can anti-abortion states apply their regulatory and tort regimes to their own residents who leave the state to obtain an abortion? Can they empower residents to sue abortion providers in other states to protect what they view as the “unborn child”? Can pro-choice states confer immunity from suit on abortion providers and on people who get abortions from suits filed in anti-abortion states? Does the United States Constitution limit the power of anti-abortion states to apply their laws in an extraterritorial manner, and, if not, how should courts revolve conflicts of law (private international law) questions about abortion?

 

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

 

W. Hau: Third countries and the revision of the Brussels Ibis Regulation: jurisdiction, parallel proceedings, recognition and enforceability (German)

The question of whether the provisions of the Brussels Ibis Regulation on international jurisdiction should be extended to defendants not domiciled in a Member State is to be considered in the upcoming round of revision (as expressly stated in Article 79). This paper discusses this question, but also whether the already existing provisions on the relevance of parallel proceedings in third countries have proven effective and whether the recognition and enforcement of third-country judgments should finally be put on the Brussels agenda.

 

Ch. Thomale: Ipso facto clauses in cross-border cases (German)

Ipso facto clauses or bankruptcy clauses present a controversial problem to both contract law and insolvency law. After a comparative overview of international substantive solutions to the problem, the article addresses associated conflict of laws issues, notably of characterisation. Special attention is given to “anticipatory” ipso facto clauses, cancelling the contract before the opening of insolvency proceedings.

 

A. Engel/R. Müller: Limits to the freedom of choice of law in the context of player agent services (German)

The article deals with a decision of the Rechtbank Limburg (Netherlands) (31 January 2024 – C/03/313729 / HA ZA 23–42, ECLI:NL:RBLIM:2024:524) concerning limits to the freedom of choice of law, in the context of player agent services in international football. The decision hinged upon the application of Section 297 No. 4 of the German Social Security Code III (SGB III). The relevant contract between the parties contained a clause according to which the claimant was exclusively authorised to represent the player during the term of the contract. The German provision would render the clause invalid.

While the parties had chosen Dutch law to be applicable to the contract, the court held that the German provision was applicable in view of Art. 3 para. 3 of the Rome I Regulation, which stipulates the application of mandatory provisions of the state in which the facts of the case are exclusively located if the law of another state is chosen. The article analyses this limit to party autonomy in the context of other limitations which could have been applied: Art. 9 Rome I, regarding overriding mandatory provisions, and Art. 6 Rome I, regarding the protection of consumers. The article pays heed in particular to the requirements of the domestic connections of the case.

 

J. M. Blaschczok: The assessment of arbitration agreements in competition law (German)

In recent years, arbitration agreements have come under the repeated scrutiny of competition law enforcers. By analysing a recent judgment of the CJEU, the Article finds that arbitration agreements are generally still regarded as harmless to competition in EU law. The Article subsequently discusses the exceptional cases in which arbitration agreements have been found to violate competition law. These cases include arbitration agreements which serve to cover-up other infringements of competition law as well as arbitration agreements by which a dominant undertaking imposes an unfair dispute resolution mechanism on a structurally disadvantaged party. The Article concludes that neither EU competition law nor other EU law require the place of arbitration to be located within the single market.

 

D. Fischer: § 40 KGSG as an overriding mandatory provision (German)

Erik Jayme stated incidentally in a conference report in 2018 that sec. 40 (1)–(4) Kulturgutschutzgesetz (KGSG) is an overriding mandatory provision. Haimo Schack makes the same qualification.  This finding can be confirmed for sec. 40 (1) and (2) KGSG. This article concentrates on the nature of these two paragraphs of sec. 40 KGSG as overriding mandatory provisions.

 

B. Kasolowsky/C. Wendler: German Courts confirm Anti-Suit Remedy against Sanctioned Russian Parties breaching Arbitration Agreements pursuant to Section 1032(2) GCPR (English)

Following last year’s landmark decision recognising the availability of declaratory anti-suit relief, the Berlin Higher Regional Court has again applied Section 1032(2) GCPR and broadened its scope of application. In its new decision, the court reiterated that sanctioned Russian parties remain bound to previously concluded arbitration agreements. In addition, the court offered even more hands-on protection for parties trying to serve proceedings in Russia.

 

L. M. Kahl: Security for legal costs before the Unified Patent Court compared to German and Austrian law (on UPC, Central Division Munich of 30 October 2023, UPC_CFI_252/2023) (German)

The article takes a decision of the Unified Patent Court (UPC) as an opportunity to examine the discretionary provision on security for costs, Art. 69 (4) UPCA, in more detail. According to this provision, both enforcement difficulties against third countries and the insolvency risk of the plaintiff can be considered. Among other things, the article deals with the effects of the attribution of UPC acts to the contracting member states pursuant to Art. 23 UPCA on the ordering of a security, how a so-called decision by default is to be interpreted when the claimant fails to provide a security and traces the line of previous case law. This can be seen as part of a general trend towards better protection of defendants.

 

J. Gibbons: Acceptance of English Notary Public Certificate of corporate representation without requirement of being a scrivener notary: recent decision of Regional Higher Court of Cologne (English)

The purpose of this article is to explain the professional standing, qualification, legal competence, regulatory equivalence, authority and evidential value of the acts of notaries public and scrivener notaries in England and Wales. This is considered necessary, as a number of German courts have, in recent years, rejected certificates of corporate representation issued by a notary public in England for use in Germany and elsewhere on the ground that they are not issued by a scrivener notary.

 

Ch. Thomale: Inheritance of limited partnership interests in cross-border cases (German)

The case note discusses a judgment rendered by the Higher Regional Court of Hamm, concerning the inheritance of limited partnership interest in a German partnership while the inheritance succession is governed by Austrian law. The note focuses on the company and partnership law exceptions according to Art. 1 para. 2 lit. h) and i) Regulation (EU) 659/2012 and places these in the overall context of EU conflict of laws.

 

S. L. Gössl: Birth registrations and (no) procedural recognition in Ukrainian surrogacy cases (German)

In two cases, the BGH dealt with the attribution of parenthood to a child born to a surrogate mother in Ukraine. Under Ukrainian law, the German intended parents would have been the legal parents. The BGH refused to recognise this allocation under both procedural law and conflict of laws. From a dogmatic point of view, her statements are well justifiable. The distinction between a ‘decision’ and other administrative acts in the sense of procedural recognition could have been explored further.

 

M. Andrae: Correction of the date of birth under civil status and social law based on foreign court decisions and public documents (German)

A person‘s identity includes their date of birth. In the area of social law, a person’s rights and obligations are partly dependent on their age. The date of birth is part of the social insurance number. If the person in question was born abroad, it is often the case that only the year of birth is given and, if necessary, proven. This has corresponding consequences for civil status certification and social law. The registration under civil status law is then limited to stating the year of birth. In the area of social law, July 1st of the year in question is fictitiously assumed. The insurance number contains blank spaces in this regard. Later, a specific date of birth is claimed and a foreign decision or documents are presented as proof. In other cases, a date of birth with a different year of birth is claimed in this way. The article discusses under which conditions the original civil status entry must be corrected and a different date of birth must be assumed for social law purposes.

 

N. C. Elsner: Review of OGH, order of 2.11.2023 – 5 Nc 22/23i: Enforcement of a British decision in Austria (German)

 

L. M. Kahl: Review of OGH, order of 31.1.2024 – 3 Ob 6/24i: Judicial conflict: Inadmissible non-application of the Hague Convention on Civil Procedure by Russian courts due to a Russian presidential decree (German)

 

A. Anthimos: UK Third Party Costs Orders Enforceable in Greece (German)

A UK third-party costs order (TPCO) is a totally unknown procedural concept in Greece. In the course of exequatur proceedings, the Piraeus first instance court and the Piraeus court of appeal were called to examine the issue for the first time in Greece, both declaring that no obstacles, especially those intertwined with procedural public policy, are barricading the path towards the declaration of enforcement of a TPCO issued by a judge in the UK.

Chinese Journal of Transnational Law will hold an online workshop on Cross-border Protection of Cultural Property on 28 Feb 2025. All are welcome to attend. A Zoom link will be provided closer to the event.

Tentative Programme

Keynote Speakers

•Prof. Christa Roodt, University of Glasgow

•Prof. Zhengxin Huo, China University of Political Science and Law

 

Speakers and Presentations

•Restitution of Cultural Objects Unethically Acquired During the Colonial Era: The Intersection of Public and Private International Law

Andreas Giorgallis (PGR), University of Glasgow

•The Contribution of Postcolonial Theory to the Cross-Border Protection of Indigenous Cultural Heritage

Eleni Moustaira, National and Kapodistrian University of Athens

•From Freedom to Restitution (With Special Focus on Central and Eastern Europe and the Lusophone Community)

Miroslaw Michal Sadowski, University of Strathclyde

•Restitution of Cultural Property in China: In Search of a New Paradigm for Cross-Border Cultural Property Claims

Ruida Chen, China University of Political Science and Law

•Forfeiture and Freezing Orders in Trans-border Cultural Property Litigation

Maggie Fleming Cacot

•Restitution of Stolen Foreign Cultural Property and Hurdles in Choice of Law

Yehya Badr, Yamamah University

•The Issue of Applicable Law in Disputes Arising from Violations of Private Law Regulations on Cultural Properties: The Case of Türkiye

Ekin Hacibekiroglu, Kadir Has University

•Evolving Models of Restitution

Evelien Campfens, University of Amsterdam

•Moving People, Shifting State Borders and the Return of Cultural Property: The Case of Poland

Andrzej Jakubowski, Instytut Nauk Prawnych, Polska Akademia Nauk,

We invite those interested in this important discussion to mark their calendars. More information will be provided soon.

January 2025 starts at the CJEU with the delivery of AG J. Richard de la Tour’s Opinion in case C-536/23, Mutua Madrileña Automovilista. The Landgericht München I (Regional Court of Munich I, Germany) is referring the following question to the Court of Justice: Must Article 13(2) of Regulation (EU) No 1215/2012 [the Brussels I bis […]

The editors of ConflictofLaws.net would like to wish you a year filled with happiness, health, and success, academically and otherwise.

2024 has been another great year for the blog, with close to one new post per day (bringing us to more than 5,500 posts in total) and record numbers of readers and subscribers. Our content, just like our readership, reflects the global scope of the blog, with popular posts including Saloni Khanderia & Shubh Jaiswal’s article on the application of the lex fori ‘by default’ in Indian courts, Mayela Celis’ note on Smith & Wesson v Mexico, Orji A Uka & Damilola Alabi’s contribution on service under Nigerian law, Yasmín Aguada & Laura Martina Jeifetz two-part piece on international judicial cooperation and technology in private international law, and Tobias Lutzi’s comment on the CJEU’s decision in Real Madrid.

In addition to our e-mail newsletter (which continues to be surprisingly popular), you can subscribe to our blog on LinkedIn, Twitter/X, and – from this year on – Bluesky.

Today (31-December 2024), FAMIMOVE 2.0. is coming to an end after having accomplished all of its goals and created a solid network of experts. The project’s full name is Families on the Move: The Coordination between international family law and migration law and is an international project co-funded by the European Commission under the JUST-2022-JCOO program. For more information, click here.

The project aimed to improve the protection of migrant children and families by bringing actual practice more in line with EU goals and values, such as the protection of fundamental rights and best interests of the child. It sought to provide more effectiveness to EU objectives through a better coordination of instruments in overlapping fields, such as Regulations in private international law in family law matters and migration law rules.

The project’s duration was 24 months, starting on 1 January 2023. Total Project Costs: €863,584.70, of which an EU contribution of €777,226.23. The consortium comprised the following universities: Maastricht University (the Netherlands – coordinator), University of Münster (Germany), University of Milano-Bicocca (Italy), University of Versailles Saint-Quentin-en-Yvelines (France), Lund University (Sweden), Eotvos Lorand University (Hungary) and Ghent University (Belgium).

The achievements of the project are the following (some of which are publicly available):

• Seven awareness raising seminars were held in each of the partners’ countries (in their official languages). These seminars brought together migration and child protection authorities, as well as private international law experts;
• Three transnational pilot projects / roundtables relating to key issues of international child protection in a migration context: cross border recognition of guardianship, kafala and child marriage. These roundtables were held in Milan, Paris and Münster and gathered experts from at least three countries each. See also the leaflets below for more information:
• The final conference took place in Brussels: some of the presentations are publicly available here. See also the blog post The role of judge: from compassion to rights
• A book: Children in Migration and International Family Law: The Child’s Best Interests Principle at the Interface of Migration Law and Family Law – open access available here. We have previously announced it on this blog here. The book has twenty chapters that have been divided into the following: Introduction, General Topics, Guardianship for Unaccompanied Minor Refugees, Early Marriage, Kafala and Additional Topics;
• Leaflets on the project and guidelines – Leaflets available in 6 languages can be downloaded here
• A FAMIMOVE website was created: https://famimove.unimib.it/. This website features a blog, which has approximately 40 entries, ranging from activities conducted under the project to the latest news on migration/refugee law as well as private international law. I would like to highlight the following entries:
  • Family reunification for beneficiaries of international protection: the EUAA overview
  • The new Early Marriages Act in Germany
  • The Court of Justice on the recognition of refugee status
  • The OJ publication of the new EU law on asylum and migration

Undoubtedly, FAMIMOVE 2.0 has contributed to a better alignment of migration law and private international law. This project’s legacy is well documented in the publications referred to above. It is to be hoped (at least in my view) that similar initiatives will emerge in the future, especially now that the application of the new Pact on Migration and Asylum is looming in the distance (scheduled for 2026), and which will certainly present new challenges and opportunities.

FAMIMOVE 2.0 is a continuation of an earlier requested grant to the European Commission. As part of FAMIMOVE 1.0, two documents were issued:

Children on the move: A private International Law Perspective

Private International Law in a Context of Increasing International Mobility

Views and opinions expressed in this project are however those of the authors only and do not necessarily reflect those of the European Union or the European Commission. Neither the European Union nor the granting authority can be held responsible for them.

It’s been another busy year for the EAPIL blog. More than 300 new posts have been published over the past twelve months. Around 80 of them focused on cases brought before the Court of the Justice of the EU, the European Court of Human Rights and domestic judicial authorities. There were fewer posts on case […]

The first issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2025 will be published on 6 January 2025. The following advance abstracts have been kindly provided by the editor of the journal. W. Hau, Third countries and the revision of the Brussels Ibis Regulation: jurisdiction, parallel proceedings, recognition and enforceability [German] The […]

I.  Introduction

Foreign family law decisions can be recognized, and where necessary, enforced in Japan if they meet the prescribed requirements for this purpose. Prior to 2018, it was an establish practice to apply the same recognition and enforcement regime used for civil and commercial matters to foreign family law decisions. However, discussions existed in literature regarding whether constitutive family law judgments and decrees should be recognized following the choice of law approach, or whether the specific characteristics of foreign family law decisions might justify exceptions, such as the non-application of certain recognition requirements (see Mario Takeshita, “The Recognition of Foreign Judgments by Japanese Courts” 39 Japanese Annual of International Law (1996) 59-61).

Since 2018, the applicable regime has been significantly clarified, effectively putting an end to much of the prior academic debate on the subject. This development stems from the introduction of new provisions on the recognition and enforcement of foreign family law decisions in the Act No. 20 of 2018, which amends the procedural acts applicable to family law cases as it will be outline below (English translation can be found in 62 Japanese Yearbook of International Law (2019) 486. See also Prof. Yasuhiro Okuda’s translation in 50 ZJapanR/J. Japan.L (2020) 235).

This Act, which came into force on 1 April 2019, also introduces new detailed rules on international jurisdictional in family law disputes (for details, see Yuko Nishitani, “New International Civil Procedure Law of Japan in Status and Family Matters” 62 Japanese Yearbook of International Law (2019) 141; Yasuhiro Okuda, New Rules on International Jurisdiction of Japanese Courts in Family Matters, 50 ZJapanR/J. Japan.L (2020) 217).

Nonetheless, it has to be acknowledged that, in the context of the recognition and enforcement of foreign family law decisions, several issues remain open. In addition, since the entry into force of the new law, there have been relatively few reported cases that provide clear guidance on the application of the legal framework. In this respect, the Chiba District Court’s judgment of 19 July 2024 presented here, concerning the enforcement of a Singaporean divorce judgment component ordering the payment of child living expenses, offers valuable insights.

 

II. Facts

The case concerns X’s (ex-wife, Plaintiff) request for an enforcement judgment under Article 24 of the Civil Enforcement Act (CEA) to enforce a portion of a Singaporean judgment rendered in November 2010, requiring the Y (ex-husband, the Defendant) to pay, inter alia, living expenses for two of their three children until they reached the age of majority, along with accrued interest. X initiated the enforcement action in 2019. By the time of the action, one child had already attained the age of majority under Singaporean law (21 years), while the other reached the age of majority during the pendency of the case.

The parties in the case married in Japan in the early 1990s, where they lived and had two sons. In 1997, the Y relocated to Singapore, followed by the rest of the family in 1998. While living in Singapore, they had their third child, a daughter. In March 2007, X initiated divorce proceedings before Singaporean courts, with Y participating by appointing legal counsel and responding to the proceedings.

In accordance with Singapore’s two-step divorce process, the court issued a provisional judgment in October 2008 dissolving the marriage. The court then proceeded to address ancillary matters, including custody, guardianship, visitation, living expenses, and the division of joint assets. During these proceedings, Y permanently left Singapore and returned to Japan in June 2010. Following his departure, Y ceased to participate in the proceedings, and his legal counsel was subsequently granted permission to withdraw from representing him.

In November 2010, the Singaporean court issued a final judgment granting X sole custody and guardianship of the children, ordering the payment of living expenses, and dividing the couple’s joint assets. Prior to the hearing, a notice was sent to Y’s last known address, which he had provided during the proceedings. However, the judgment, as well as the summons for appeal, was not served on Y, leading to the expiration of the appeal period without the judgment being challenged.

In 2019, X sought enforcement of the Singaporean judgment as indicated above. Before the Court, the parties disputed most of the recognition requirements (article 118 of the Code of Civil Procedure [CCP]). Y also challenged enforcement by raising a defense based on the existence of a ground for an objection against civil execution, notably the fact that the limitation period for the claims related to the payment of living expenses under the foreign judgment had expired. Finally, Y argued that X’s request to enforce the foreign judgment constituted an abuse of right or a violation of the principle of good faith.

 

III. Ruling

In its judgment rendered on 19 July 2024, the Chiba District Court largely dismissed Y’s arguments and granted X’s application, with two exceptions: the court rejected X’s claim for living expenses claim for the children beyond the age of 21. It did not also allow the enforcement of the portion of accrued interest on the living expenses, which the Court found to be extinguished under Singaporean statute of limitations.

Before addressing each of the issues raised, the court first outlined the general applicable principles, citing relevant Supreme Court cases where available. Although these parts are crucial, they will be omitted from the summary for brevity.

 

1. Whether the foreign judgment can be deemed final [Article 118, first sentence of the CCP]

According to the court, under Singaporean law, a judgment becomes effective on the date it is issued, and an appeal must be filed within 28 days from the judgment date, regardless of whether the judgment is served. The court observed that since no summons for an appeal was served within this period, the foreign judgment should be deemed final.

 

2. Whether the foreign court had jurisdiction [Article 118(1) of the CCP]

The court first noted that the foreign lawsuit involved X seeking divorce and addressing ancillary matters with Y. The court, then categorized the case as “personal status” case, and assessed the indirect jurisdiction of the foreign court by reference to the Japanese rules of direct jurisdiction in personal status cases as set out in the Personal Status Litigation Act (PSLA), article 3-2 et seq. For the court, article 3-2(i) of the PSLA allows that an action concerning personal status may be filed with the courts in Japan in when the defendant has domicile in Japan, and that jurisdiction is determined at the time the lawsuit is filed (article 3-12 of the CCP). The court then found that, at the time the foreign proceeding was initiated, both parties were domiciled in Singapore. Therefore, based on Japan’s rules on international jurisdiction in personal status cases, the court concluded that the Singaporean court had jurisdiction over the case. Furthermore, the court considered that there were no circumstances suggesting that it would be unreasonable, on the basis of the principle of jori (naturalis ratio), to recognize the foreign judgment issued by the foreign court.

 

3. Whether the procedure leading to the foreign judgment violates public policy (the lack of service of the foreign judgment on Y) [Article 118(3) of the CCP]

The court admitted that the foreign judgment was not served on Y, and that he was not aware of it within the appeal period. However, the court determined that, based on Y’s conduct during the proceedings, he had voluntarily waived his right to be informed of the judgment’s issuance. According to the court, Y knew a judgment on ancillary matters would be delivered and had the opportunity to receive it through proper procedures. The court also found that, while Y was not aware of the judgment within the appeal period, he had been given procedural safeguards and ample opportunity to become informed. Therefore, the court concluded that the lack of service of the foreign judgment did not violate the fundamental principles of Japanese procedural public policy.

 

4. Whether the content of the foreign judgment violates [substantive] public policy (the amount of living expenses for the children) [Article 118(3) of the CCP]

The court held that the foreign judgment’s calculation of the children’s living expenses was based on a reasonable evaluation of the parties’ financial capacity, rejecting Y’s argument that the calculation was unrelated to his financial situation or had punitive elements. The court further stated that the amount stipulated in the foreign judgment was not excessive or inconsistent with Japanese public policy, given the actual living expenses of the children. Moreover, the court emphasized that Y’s challenge, based on his decreased or absent income was not accepted by the foreign court, would constitute a prohibited review of the merits under Article 24(4) of the CEA.

 

5. Whether reciprocity is established (Art. 1118(4) of the CCP)

For the court, the requirements for recognizing a foreign judgment in Singapore are based on English common law, which broadly aligns with the conditions outlined in Article 118 of the CCP. Thus, the court determined that reciprocity exists between Singapore and Japan.

 

6. The applicability of the statute of limitations on the claim for living expenses under the foreign judgment

The court confirmed that the party opposing enforcement of a foreign judgment could raise in the exequatur proceedings defenses based on the extinction or modification of claims that occurred after the judgment was rendered. The court then determined that Singaporean law was applicable to the defense of extinctive prescription. Thereafter, the court compared the Singaporean limitation periods (12 years for claims based on the judgment and 6 years for interest) with Japan’s shorter periods (5 years or 10 years for claims confirmed by a final judgment). The court found that applying Singapore’s longer limitation periods did not clearly violate Japan’s public policy, upholding the validity of living expense claims filed within the 12-year period. However, it ruled that interest claims accrued before October 2013 had been extinguished due to the expiration of the 6-year limitation period.

 

7. Abuse of Rights or Violation of the Principle of Good Faith

The court addressed Y’s argument that X’s attempt to enforce the foreign judgment constitutes an abuse of rights or a violation of good faith. The court rejected this claim, stating that enforcing a judgment in accordance with the law does not breach good faith or constitute an abuse of rights. In addition, the court found no evidence to support Y’s argument.

 

IV. Comments

1. Significance of the Case

The Chiba District Court judgment of 19 July 2024 is significant for its treatment of various issues concerning the recognition and enforcement of foreign family law decisions under the new legal framework. The court addressed key issues such as indirect jurisdiction, procedural and substantive public policy, reciprocity, and the ability to raise defenses during the exequatur process, including objections based on the expiration of limitation periods and the consistency of foreign law with Japanese public policy. Most of these issues are subject of ongoing academic discussion in Japan (for an overview, see Manabu Iwamoto, “Recognition and Enforcement of Foreign Decisions on Personal Status Litigation and Family Relations Cases” 62 Japanese Yearbook of International Law (2019) 226).

 

2. Personal Status Cases v. Domestic Relations Cases

Japan’s legal framework for recognizing foreign judgments in general is governed primarily by domestic law. As far as foreign family law decisions are concerned, it is generally admitted that their recognition and enforcement depend on whether the family law relationship is classified as a “personal status case” or a “domestic relations cases.”

“Personal status cases” generally encompass “contentious” family law disputes concerning marital or parental relationships, such as divorce, which is a quintessential example of a “personal status case”. Family law matters in this category, as determined by article 2 of the Personal Status Litigation Act (PSLA), are governed by its provisions. Given the constitutive nature, foreign judgments on personal status cases typically do not require enforcement.

On the other hand, “domestic relations cases” groups family matters that are generally “non-contentious”, although certain cases, such as claims for custody or maintenance, can be highly adversarial. These matters are governed Domestic Relations Case Procedure Act (DRCPA), which includes appended tables listing cases classified as domestic relations cases. Unlike personal status cases, some types of domestic relations cases may involve elements that require enforcement, such as the payment of maintenance, return of a child etc.).

From the perspective of Japanese law, maintenance cases typically fall under this category (see Manabu Iwamoto, “International Recovery of Maintenance in Japan” 65 Japanese Yearbook of International Law (2022) 254).

 

3. Applicable legal regime

In this regard, the 2018 reform brought some significant changes. Indeed, a new provision was introduced in the DRCPA (new article 79-2) and article 24 of the CEA on the enforcement of foreign judgments was modified to accommodate these changes. However, no similar provision was introduced in the PSLA, since it was considered that contentious judgments in family matter are not different from contentious judgments in civil and commercial matters, therefore, they should be subject to the same legal regime.

Accordingly, depending on the type of case involved as outline above, foreign family law decisions can be recognized either (i) by direct application of article 118 of the CCP, when the foreign judgment in question pertains to “personal status cases”, or (ii) by mutatis mutandis application of article 118 of the CCP, when the foreign decision is rendered in a matter relating to “domestic relations cases” pursuant to article 79-2 of the DRCPA. The main difference between these two approaches is that, unlike foreign personal status judgments, the requirements of article 118 of the CCP would fully apply mutatis mutandis to foreign domestic relations decisions, provided that doing so “is not contrary to the nature” of the decision in question (article 79-2 of the DRCPA). In other words, for foreign domestic relations decisions, the requirements of article 118 of the CCP may apply partially, depending on the nature of the case.

In this context, since maintenance judgments is typically classified under “domestic relations cases”, their recognition is, as a matter of principle, governed by article 79-2 of the DRCPA, along with the mutatis mutandis application of the requirements of article 118 of the CCP. Whether recognition and enforcement of foreign maintenance judgments is subject to full or partial application of the recognition requirements under article 118 of the CCP is subject to discussion in literature. However, the general tendency among courts, as confirmed by the case presented here, is to apply all the recognition requirements.

 

4. Conjunction between personal status cases and domestic relations cases

A key challenge arises, however, when a foreign family law judgment combines elements of personal status (e.g., divorce) with issues categorized under domestic relations (e.g., child custody or maintenance). In this regard, while the Chiba District Court treated the foreign judgment as a single “personal status case” and applied article 118 of the CCP, without reference to Article 79-2 of the DRCPA, prevailing literature and case law suggest that each aspect should be treated separately.

Following this approach, the court should have proceeded as follows: first, it should have categorized the court order to pay child living expenses as pertaining to “domestic relations cases”. Under this categorization, the court would then have needed to assess, pursuant to article 79-2 of the DRCPA, whether all the recognition requirements of article 118 of the CCP should apply mutatis mutandis, or only partially, depending on the nature of the case. Finally, the court should have reviewed the indirect jurisdiction of the foreign court by reference to the jurisdictional rules set out in the DRCPA (specifically, article 3-10, which governs cases relating to maintenance obligation), rather than those set out in the PSLA.

That said, it has to be acknowledged, that the court’s ultimate conclusion would likely not have changed since the jurisdiction of the foreign court would also have been justified by the jurisdictional rules included in the PSLA, which allow actions for ancillary measures, including child custody and support, to be decided by the court exercising divorce jurisdiction (article 3-4 of the PSLA).

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. Since the beginning of 2024, RabelsZ has been an open access publication, with all articles freely available to readers online. The fourth issue of 2024 closes off the year with a varied selection of essays on comparative and private […]