Droit international général

Issue 3/2024 of ZEuP – Zeitschrift für Europäisches Privatrecht has just been published. It includes contributions on EU private law, comparative law, legal history, uniform law, and private international law. The full table of content can be accessed here.

The following contributions might be of particular interest for the readers of this blog:

• Die Europäisierung des internationalen Erwachsenenschutzes
  Jan von Hein on the proposal for a regulation on the international protection of adults: On 31.5.2023, the European Commission presented a proposal for a regulation on the international protection of adults. This proposal is closely intertwined with the Hague Convention on the international protection of adults. Therefore, the proposed regulation shall be accompanied by a Council decision authorising Member States to become or remain parties to the Hague Convention. The following contribution analyses the proposed regulation and its relationship with the Hague Convention.
• Justizgrundrechte im Schiedsverfahren? – Pechstein und die Folgen fu?r die Handelsschiedsgerichtsbarkeit
  Gerhard Wagner and Oguzhan Samanci on human rights and commercial arbitration: Does the ECHR and the German constitution require public hearings in arbitral proceedings, provided that one of the parties had the power to impose the arbitration agreement on the other through a contract of adhesion? This article analyzes the potential implications that the Pechstein decision of the Federal Constitutional Court and ist precursor in the jurisprudence of the ECHR may have for commercial arbitration. The focus is on arbitration clauses in general business terms and in contracts with undertakings that occupy a dominant position in a specific market. The conclusion is that, despite the broad formula employed by the Federal Constitutional Court, the right to a public hearing should remain limited to sports arbitration.
• Die Auslegung von EuGH-Entscheidungen – ein Blick aus der Gerichtspraxis
  David Ullenboom on the interpretation of CJEU decisions: This article examines the question whether a European methodology is needed to interpret judgments of the CJEU for judicial practice. It argues that judgments of the CJEU need to be interpreted in the same way as legal provisions and are therefore subject to a grammatical, systematic, genetic and teleological interpretation in order to determine their meaning for future legal cases.
• Schweizerisches Bundesgericht, 8 June 2023, 5A_391/2021
  Tanja Domej discusses a decision of the Swiss Federal Tribunal on the recognition of the deletion of a gender registration under German law.

This post was written by Felix M. Wilke, Bayreuth, although the metaphors almost wrote themselves. Money Does not Grow on Trees… The idea of investing in trees, i.e. in growing valuable types of wood, has popped up in the PIL community at least because of a 2022 judgment by the CJEU (that Matthias Lehmann covered […]

Hart Publishing, Oxford, UK is proud to announce the release of Private International Law in BRICS: Convergence, Divergence, and Reciprocal Lessons co-edited by Dr. Stellina Jolly, South Asian University, Delhi, India, and Professor Saloni Khanderia, O.P. Jindal Global University, Sonipat, India. The book forms part of Hart’s prestigious Private International Law Series with Professor Paul Beaumont, University of Stirling, as its Series Editor.

Authored by leading scholars and practitioners in private international law, the chapters draw on domestic legislation and case law interpretations in each of these emerging economies. They cover a wide array of topics, including contractual and non-contractual obligations, choice of court agreements, and personal matters such as marriage, divorce, matrimonial property, succession, and surrogacy—all within the context of increased cross-border movement of people.

As the title suggests, this book explores the intricate landscape of private international law within the BRICS countries—Brazil, Russia, India, China, and South Africa. Divided into six sections, each part of the book offers a thematic analysis of core private international law-related questions and an in-depth examination of the reciprocal lessons each BRICS country can share concerning each of three core conflict of law issues – the international jurisdiction of courts, the applicable law and the effectiveness of foreign decisions (both judgments and arbitral awards) overseas.

This book serves as an invaluable comparative resource for governments, legislators, traders, academics, researchers, and students interested in the intricate legal dynamics at play within the BRICS nations. With the BRICS countries collectively representing around 42% of the world’s population and approximately 23% of global GDP, the need for enhanced legal cooperation and harmonization is more critical than ever. Over the past decade, cross-border interactions within the BRICS bloc and beyond have escalated significantly. However, the diversity in political, legal, economic, and social structures, coupled with the lack of geographical proximity and historical connections, has posed challenges to effective cooperation and the ability of BRICS to play a proactive role in global governance. The 15 BRICS Summits held between 2009 and 2023 have primarily focused on economic cooperation, particularly in trade, investment, foreign affairs, and innovation. While these areas are crucial, they cannot be viewed in isolation. Increased trade and cooperation inevitably lead to the movement of persons, goods, and services across national boundaries, raising important legal questions. For instance, economic cooperation that facilitates the movement of people also impacts personal relationships. Scenarios such as marriage, divorce, adoption, surrogacy, and inheritance across borders create complex legal challenges that require a robust understanding of private international law. Will a marriage or divorce be recognized in the home country? How will the nationality of a child born through surrogacy or adopted abroad be determined? These questions, though critical, have not yet been thoroughly examined in the context of BRICS.

Recognizing this gap, our book seeks to explore and analyze the role of private international law in fostering enhanced cooperation among BRICS countries. In pursuit of its objectives, the project draws lessons from various multilateral and supranational instruments operating under the HCCH – Hague Conference on Private International Law and in the European Union, renowned for pioneering clear, predictable rules to regulate international disputes through the unification of laws.

Details of the book as well as purchase options can be found here!

The Children’s Rights Academy at the University of Geneva offers the 2nd edition of the executive training short course on Civil Aspects of International Child Protection (ICPT). The programme includes four half-day online modules in English (Children’s Individual Rights in Transnational Parental Relationships; International and Comparative Family Law; Vulnerable Migration and Practice of Child Protection Stakeholders: Inter-agency Co-operation in Context), scheduled to […]

Professor Konrad Duden, Chair of Private Law, Private International Law and Comparative Law at the University of Hamburg, is looking to appoint a research assistant, with the option to work towards a PhD.

More information can be found here.

Although the United States signed Hague Convention on Choice of Court Agreements (COCA) in 2009, it has yet to ratify it. In this post, I report on some recent developments that offer a basis for (cautious) optimism that the United States may soon take the necessary steps to ratify both COCA and the Hague Judgments Convention.

History

On January 19, 2009, the United States signed COCA. In the years that followed, the State Department had conversations with the Uniform Law Commission (ULC) about how COCA should be implemented. The ULC is a non-partisan, non-profit, unincorporated association comprised of volunteer attorneys appointed by each state of the United States plus the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. Its mission is to promote uniformity in the law among these jurisdictions to the extent desirable and practicable.

Because the enforcement of foreign money judgments has been governed by state law in the United States since 1938, and because the ULC has promulgated widely adopted uniform state legislation on this topic, the ULC argued that COCA should be implemented—at least in part—through state law. In particular, the ULC proposed that the treaty be implemented through “cooperative federalism.” Under this approach, there would be parallel federal legislation and state legislation implementing the treaty, with a reverse preemption provision in the federal legislation allowing state law to govern if the state had passed the appropriate act.

This proposal ultimately foundered due to disagreements between the State Department and the ULC as to whether federal courts sitting in diversity would apply the state or federal legislation. Stasis ensued. The State Department was reluctant to present the treaty to the Senate without the support of the ULC. And the ULC was reluctant to endorse an implementation framework that displaced existing state law.

A Shift on COCA

On March 2, 2022, the United States signed the Hague Judgments Convention (HJC), a multilateral agreement that seeks to facilitate the recognition and enforcement of judgments more generally. Shortly thereafter, the ULC approved a Study Committee, chaired by Bill Henning and Diane Boyer-Vine, to consider how best to implement the HJC in the United States. The goal was to find a method of implementation that would minimize the disruption to state law while representing sound public policy. About a year after the Study Committee was created, it sought and received permission to revisit the question of how best to implement COCA. I served as the Reporter for the Study Committee.

Following more than eighteen months of discussion and reflection, the Study Committee recommended that the ULC revisit its earlier position on COCA implementation. Specifically, the Study Committee recommended that the ULC abandon the cooperative federalism approach and leave the method of implementing COCA to the discretion of the State Department. This recommendation, which included an endorsement of COCA, was made subject to several uncontroversial caveats relating to the preservation of state law. The recommendation was approved by the ULC’s Executive Committee on July 18, 2024.

These developments should make it easier for the State Department to obtain the advice and consent of the Senate should it choose to push for ratification of COCA. Historically, the Senate has been sensitive to issues of federalism and sometimes hesitant to give its advice and consent for conventions that displace state law. The endorsement of the ULC, an organization formed by the states with a mission of preserving state law, will signal to the Senate that any disruption of state law is acceptable and in the public interest.

The Hague Judgments Convention

The Study Committee’s initial charge was to consider the best method of implementing the Hague Judgments Convention (HJC). Whereas COCA seeks to facilitate the recognition and enforcement of judgments rendered by courts selected in an exclusive choice-of-court agreement, the HJC seeks to facilitate the recognition and enforcement of other judgments. Because the enforcement of foreign money judgments in the United States has long been governed by state law, the Study Committee sought to identify a path to ratification that would preserve existing state law to the extent possible. It concluded that this path ran through Article 15 of the HJC.

Article 15 reads as follows:

Subject to Article 6 [dealing with judgments based on rights in rem in real property], this Convention does not prevent the recognition or enforcement of judgments under national law.

This language makes clear that ratifying countries may be more generous when it comes to the recognition and enforcement of foreign judgments than the Convention requires. It follows that state law may continue to be used to recognize and enforce foreign judgments in the United States so long as applying that law produces outcomes consistent with the minimum standards laid down by the HJC.

With this insight in mind, the Study Committee recommended that the ULC “endorse ratification of the Hague Judgments Convention as long as the United States preserves the ability of litigants to seek recognition and enforcement of money judgments rendered in another country under existing state law . . . in cases where applying state law would produce results that are consistent with the requirements of the Convention.” This recommendation was approved by the ULC’s Executive Committee on July 18, 2024.

How might this work in practice? Imagine the following scenario. Immediately after the United States ratifies the HJC, Congress enacts a statute listing the minimum standards that must be met for a foreign judgment to be enforced via the HJC in the United States. Thereafter, judgment creditors would have a choice. On the one hand, they could seek recognition and enforcement under the federal statute. On the other hand, they could seek recognition and enforcement under state law. The benefit of this approach is that it preserves the ability of judgment creditors to rely on (what most observers describe as) a simple and efficient system of state law to recognize and enforce foreign judgments. The minimum standards laid down in the federal statute ensure that the application of state law in such cases will not take the United States out of compliance with the HJC. And if the judgment creditors prefer to enforce under the federal statute, they are free to do so.

Next Steps

With the Study Committee having completed its work, the action will now shift to the State Department’s Advisory Committee on Private International Law, which will hold its next meeting at Texas A&M University School of Law in Fort Worth, Texas on Thursday and Friday, October 24-25, 2024. At that meeting, the State Department will be seeking input and guidance with respect to efforts toward U.S. ratification of COCA, the HJC, and the Singapore Convention.

This post is kindly provided by Dr. Meng Yu, lecturer at China University of Political Science and Law, and co-founder of China Justice Observer.

Key Takeaways:

• In June 2024, the China-ASEAN Free Trade Area Nanning International Commercial Tribunal under the Nanning Railway Transportation Intermediate Court in Guangxi ruled to recognize and enforce a Thai monetary judgment (Guangxi Nanning China Travel Service, Ltd. v. Orient Thai Airlines Co., Ltd. (2023) Gui 71 Xie Wai Ren No. 1).
• Apart from being the first case of enforcing Thai monetary judgments in China, it is also the first publicly reported case confirming a reciprocal relationship based on “presumptive reciprocity”.
• The Chinese court’s confirmation that “presumptive reciprocity”, as outlined in the Nanning Statement, is a form of mutual consensus between China and ASEAN countries helps to promote the circulation of judgments within the China-ASEAN region.

On 18 June 2024, the China-ASEAN Free Trade Area Nanning International Commercial Tribunal under the Nanning Railway Transportation Intermediate Court, Guangxi (hereafter the “Nanning Court”), ruled to recognize and enforce a Thai monetary judgment.

This case marks the first time that a Chinese court has recognized and enforced a Thai monetary judgment. It is also the first publicly reported case to confirm a reciprocal relationship based on “presumptive reciprocity”. The “presumptive reciprocity” test, outlined in the Nanning Statement of the 2nd China-ASEAN Justice Forum in 2017, has now been confirmed by the Nanning Court as a form of reciprocal consensus [1] between China and ASEAN countries. This explains the use of the term “presumptive reciprocity consensus” in the Chinese news report (cf. Guangxi High People’s Court’s news).

Although the full text of the judgment has not yet been made publicly available, the Chinese news report and related court announcements provide valuable details about the case. This case marks the latest application of the new reciprocity requirement by Chinese courts and actively promotes the circulation of judgments within the China-ASEAN region.

 

I. Case background

In July 2015, Guangxi Nanning China Travel Service Co., Ltd. (“Nanning China Travel”), a Chinese company, and Orient Thai Airlines Co., Ltd. (“Orient Thai Airlines”), a Thai company, entered into an airline ticket sales contract based on their long-term cooperation in charter flights. The contract was signed in Nanning and stipulated that disputes would be settled by the court where the Orient Thai Airlines was located. Subsequently, disputes arose between the parties, and Nanning China Travel filed a lawsuit against Orient Thai Airlines in the Central Intellectual Property and International Trade Court of Thailand (“Thai Court”).

On 16 September 2019, the Thai Court issued a civil judgment No. GorKor 166/2562 (the “Thai Judgment”), ordering Orient Thai Airlines to pay CNY 18,002,676 (approx. USD 2,476,330) plus interest to Nanning China Travel.

In February 2023, in order to enforce the rights confirmed by the Thai Judgment, and considering that Orient Thai Airlines has multiple branches in China that may have executable assets, Nanning China Travel applied to the Nanning Court for recognition and enforcement of the Thai Judgment.

On 18 June 2024, the Nanning Court rendered the civil ruling (2023) Gui 71 Xie Wai Ren No. 1 to recognize and enforce the Thai Judgment.

 

II. Court’s views

Although China and Thailand have signed the “Treaty on Judicial Assistance in Civil and Commercial Matters and on Cooperation in Arbitration”, the treaty does not contain provisions on judgment recognition and enforcement. In the absence of a treaty, as this is the case with Thailand, recognition and enforcement can be pursued on the basis of the principle of reciprocity (New Art. 299 of the PRC Civil Procedure Law [former article 288 of the 2021 Amendment of the PRC Civil Procedure Law]).[2]

Determining whether reciprocity exists between China and Thailand is, therefore, a crucial first step.

As Judge Huayan Wang of the Nanning Court explained, “We (the court) examined two issues: the time limit of the application for recognition and enforcement, and the existence of reciprocity. The key to this case is the determination of reciprocal consensus, in the absence of de jure reciprocity and de facto reciprocity”.

In doing so, the Nanning Court referred to the presumptive reciprocity test proposed in the Nanning Statement as a form of reciprocal consensus, and ultimately determined that reciprocity existed between China and Thailand.

 

III. Comments

1. “Presumptive reciprocity” in this case

Interestingly, the Nanning Statement was adopted in Nanning in June 2017, and seven years later, in a striking coincidence, a local intermediate court in the same city confirmed the reciprocity between China and Thailand, relying on presumptive reciprocity proposed the Nanning Statement.

Simply put, the so-called “presumptive reciprocity” means that, unless proven otherwise, reciprocity is presumed to exist between the requested State and the State of origin, to the extent permitted by domestic law of the requested State.[3] Here, “proven otherwise” refers to any existing case where the judgments from the requested State have been refused enforcement in the State of origin on the ground of the lack of reciprocity. Since no such cases were found by the Nanning Court, reciprocity is presumed to exist between Thailand and China.

It is, however, still unclear how Thai courts would react to the “first move” from Chinese courts: will they follow suit or not? Given that it is unlikely, if not impossible, to have any foreign judgment recognized and enforced in Thailand, as discussed in an post provided by Asian Business Law Institute (ABLI), should a Thai court refuse to recognize and enforce a Chinese judgment on the ground of lack of reciprocity one day, the presumed reciprocity might have to be reviewed, or even revoked. By then, will there be any other way out? More issues need to be clarified and settled in future cases.

 

2. Wider Implication: reciprocal understanding or consensus in China-ASEAN region

What is more noteworthy is that the reciprocity consensus applied by Nanning court is considered to be a subcategory of “reciprocal understanding or consensus”, which is one of the three new reciprocity tests in addition to de jure reciprocity and reciprocal commitment.

Chart – Reciprocity tests in China

 

Compared to the other two current reciprocity tests—de jure reciprocity and reciprocal commitment—reciprocal understanding or consensus is a more easily overlooked test, because it is neither as well-known as de jure reciprocity nor as novel as the reciprocal commitment (cf. other related posts including: (i) De jure reciprocity – The First Time China Recognizes English Judgment, Implementing 2022 Judicial Policy in Full; (ii) Reciprocal commitment – First Case of Reciprocal Commitment: China Requests Azerbaijan to Enforce its Judgment Based on Reciprocity; (iii) How Chinese Courts Determine Reciprocity in Foreign Judgment Enforcement – Breakthrough for Collecting Judgments in China Series (III); (iv) China’s 2022 Landmark Judicial Policy Clears Final Hurdle for Enforcement of Foreign Judgments.)

Although the presumptive reciprocity proposed in the Nanning Statement is considered the best example of reciprocal consensus, from the time the Nanning Statement was adopted in 2017 until June 2024, the “presumptive reciprocity” remained largely theoretical. Prior to this case, there were no publicly reported cases indicating whether, and if so, how, Chinese courts applied “presumptive reciprocity” when dealing with cases involving the recognition and enforcement of judgments from ASEAN countries.

This case changed this situation.

The “presumptive reciprocity” outlined in the Nanning Statement, as a form of reciprocal consensus between China and ASEAN countries, has been confirmed by the Chinese court in this case. This means that for the ten ASEAN countries, apart from Laos and Vietnam, which already have applicable bilateral treaties with China, the remaining eight countries—Brunei Darussalam, Burma, Cambodia, Indonesia, Malaysia, the Philippines, Singapore, and Thailand—can have their civil and commercial judgments recognized and enforced in China based on the presumptive reciprocity.

In addition, for monetary judgments from Singapore, there is also the China-Singapore Memorandum of Guidance (MOG), which can be considered another example of “reciprocal understanding or consensus”. This MOG serves as a practical guideline for Chinese courts on how to recognize and enforce Singaporean monetary judgments. (Cf. other related posts including: (i) Series – Singapore-China Judgments Recognition and Enforcement; (ii) Chinese Court Recognizes Singaporean Judgment Again: No Bilateral Treaty But Only Memorandum?).

 

—————————————

[1] Since the 2000s, the standards to establish reciprocity have evolved significantly, reflecting China’s efforts to liberalize its rules on the recognition and enforcement of foreign judgments. The 2021 “Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide” issued by China’s Supreme People’s Court introduces new standards for determining reciprocity that replace the previous de facto reciprocity test. The new reciprocity standards include de jure reciprocity, reciprocal understanding or consensus, and reciprocal commitment. These standards coincide with possible outreaches of legislative, judicial, and administrative branches.

[2] Art. 299: “After examining an application or request for recognition and enforcement of a legally effective judgment or ruling of a foreign court in accordance with an international treaty concluded or acceded to by the People’s Republic of China or under the principle of reciprocity, a people’s court shall render a ruling to recognise the legal force of the judgment or ruling and issue an order for enforcement, as needed, to enforce the judgment or ruling in accordance with the relevant provisions of this Law, if   the people’s court deems that the judgment or ruling neither violates the basic principles of the laws of the People’s Republic of China nor damages the sovereignty, security, and public interest of the State” (emphasis added).

[3] Below is the original statement from the Nanning Statement:“If two countries have not been bound by any international treaty on mutual recognition and enforcement of foreign civil or commercial judgments, both countries may, subject to their domestic laws, presume the existence of their reciprocal relationship, when it comes to the judicial procedure of recognizing or enforcing such judgments made by courts of the other country, provided that the courts of the other country had not refused to recognize or enforce such judgments on the ground of lack of reciprocity.”(emphasis added)

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided by the editor of the journal. While all contributions are interesting, let me especially highlight the first one, written by Tobias Lutzi, who addresses an issue that permeates the whole European Private International […]

 

The second edition of Commercial Litigation in Anglophone Africa: The Law Relating to Civil Jurisdiction, Enforcement of Foreign Judgments and Interim Remedies by Andrew Moran KC and Anthony Kennedy was published in December 2022. The blurb of the book reads as follows:

Commercial Litigation in Anglophone Africa details the broad framework of the private international law rules in operation in each of the sixteen Anglophone jurisdictions considered (Botswana, Gambia, Ghana, Eswatini, Kenya, Lesotho, Liberia, Malawi, Namibia, Nigeria, Sierra Leone, South Africa, Tanzania, Uganda, Zambia and Zimbabwe).

The authors identify and provide a refined explanation of the law to be applied as it relates to: (i) civil jurisdiction over commercial disputes involving a foreign element; (ii) the enforcement of foreign judgments; and (iii) the availability and nature of the interim remedies, in each of the sixteen jurisdictions addressed. The authors have also provided comprehensive coverage of the potential availability of an anti-suit injunction (in common law jurisdictions) or anti-suit interdict (in Roman-Dutch law jurisdictions). 

The first edition of the book was reviewed in the Journal of Private International Law (Okoli, 2020), South African Law Journal (Ordor, 2019) and Lloyds Maritime and Commercial Law Quarterly (McParland, 2019). Overall, the reviews of the 1st edition of the book were very positive.

The preface to the second edition of the book notes several recent developments that have been taken into account. One recent development worth noting is the rise in the number of anti-suit and anti-arbitration injunctions in the English-speaking African courts of, for example, Ghana,[1] South Africa,[2] and Nigeria.[3] I also observe that the book incorporates about seventy new decided cases that were not utilised in the previous edition.

Overall, my impression of this book is positive. Practitioners interested in commercial conflict of laws in Africa will find this work very useful.

[1] The Attorney General v Cassius Mining Limited (Suit No CM/MISC/0568/2023), decided on 31 July 2023; Magna International Transport Ltd v Ghana Telecom Communications Co Ltd (Suit No: H1/227/2018), decided on 17 October 2019; Quantum Oil Terminals Ltd v International Finance Corporation, Suit No: Misc/00228/17 (Rulings of 8 January 2018 and 23 February 2018).

[2] Vedanta Resources Holdings Limited v ZCCM Investment Holdings PLC [2019] ZAGPJHC 250 (23 June 2019).

[3] Shell Petroleum Development Company Nigeria Limited v Crestar Integrated Natural Resources Limited (2016) 9 NWLR 300, 322; Zenith Global Merchant Limited v Zhongfu International Investment (Nig) FZE (2017) All FWLR 1837.  See also Ecobank (Nig) Ltd & Ors v Aiteo Eastern E and P Co Ltd & Anor (2022) LPELR-56994(CA).

Verónica Ruiz Abou-Nigm (Edinburgh), Paul Beaumont (Stirling) and Jonathan Harris (KCL) are pleased to announce that Sheffield Law School will host a Symposium on 6 September 2024 to celebrate the scholarly work of emeritus professor David McClean CBE KC (Hon).

David has long been one of the leading Conflict of Laws (Private International Law) scholars in English law and across countries through the Commonwealth. For over six decades his authoritative work on Private International Law has been internationally recognised.

This Symposium will bring together colleagues and friends, from the UK and abroad, to celebrate David’s many contributions.

Keynote speakers: Lord Collins of Mapesbury, Hans van Loon, George Leloudas and Kisch Beevers. Chairs and Speakers: David McClean, Roxana Banu, Jonathan Harris, Campbell McLachlan, Verónica Ruiz Abou-Nigm, Jayne Holliday, Paul Beaumont, Abubakri Yekini, Alex Mills, Andreas Ruehmkorf, Auguste Hocking, and Daniel Wand.

This is an in-person event. It is open to all, subject to capacity, but registration is required. Please follow this link for more information about the event, including programme and registration.

https://www.tickettailor.com/events/schooloflawuos/1337648

By Zihao Fan (Ph.D. Candidate in Law, Peking University Law School)

The ‘Global Value Chains and Transnational Private Law’ workshop was successfully held at Edinburgh Law School in a hybrid format from June 23 to 25, 2024. This project is funded by the Law Schools Global League (LSGL), convened by Prof. Verónica Ruiz Abou-Nigm (Edinburgh Law School) and Prof. Michael Nietsch (EBS Law School). The workshop attracted scholars and researchers from 15 universities and institutions worldwide. Over two days, participants shared inspiring work in progress and engaged in discussions on how transnational private law influences and shapes global supply chains. During the workshop plans for the upcoming publication and dissemination were discussed. This overview aims to briefly summarise the research outcomes presented during the workshop (following the sequence of the presentations).

Morning Session on 24 June

Dr. Catherine Pedamon (Westminster Law School) and Dr. Simone Lamont-Black (Edinburgh Law School) first introduced a previous related workshop held in Edinburgh Law School on ‘Sustainability in the Food Supply Chain: Challenges and the Role of Law & Policy’. This project consists of contributions from a variety of legal and policy areas at the UK, EU, and international levels, focusing on the role of law (including commercial law, contract law, competition law, and corporate law) in resolving regulatory difficulties and opportunities in food supply chains, with a particular emphasis on sustainability and food security, therefore highly connected to the current project.

Afterwards, Dr. Pedamon and Dr. Lamont-Black also presented their research titled ‘Responsible Contracting in Agri-Food Supply Chains: Mitigating Power Asymmetries on the Road Towards Sustainability’. They pointed out that recent events like the Covid-19 pandemic, the war in Ukraine, climate-related price instability, and inflation have severely impacted the global economy, creating an unprecedented food crisis. Complex food supply chains reveal power imbalances, with larger trading partners often imposing unfair practices on less powerful suppliers. This research aims to shed light on the issues surrounding governance gaps and the various challenges and opportunities that arise from private international law, examining UK domestic law pertaining to food supply relationships, taking the EU level regulation into account, and providing potential examples of its implementation.

Dr. Francesca Farrington (School of Law, University of Aberdeen) and Dr. Nevena Jevremovic (School of Law, University of Aberdeen) then presented their work titled ‘Private International Law and the Race to the Bottom in Labour Standards: The Case of Begum v Maran’, discussed the recent Court of Appeal case, Begum v Maran. They noted that the literature has generally focused on the unique arguments relating to duty of care, and the Court of Appeal’s conclusion that the claim was not fanciful – it illustrates that the Rome II Regulation does little to prevent a ‘race to the bottom’ in labour standards especially given that corporate liability was a rapidly expanding field of law. They also discussed the different results when courts adopting different characterization methods on business-related human rights (BHR) claims.

Dr. Sara Sanchez Fernandez (IE Law School, Spain) shared her research on ‘Civil Liability under the CS3D: International Jurisdiction Rules and Access to an Effective Legal Remedy’. She first introduced the background: the EU recently enacted the Corporate Sustainability Due Diligence Directive (CS3D), which establishes due diligence responsibilities and civil consequences for violations of such obligations. The CS3D establishes rules for organizations’ risk-based due diligence requirements across their entire value chain. Her research centred on the assurance of access to Member State courts for CS3D-related issues, scrutinizing the interaction between CS3D, international jurisdiction in the Brussels I bis Regulation, and the foreign jurisdiction rules of Member States. She also explored the potential solutions for cases where entities are non-EU domiciled.

First Afternoon Session on 24 June

Prof. Toshiyuki Kono (Faculty of Law, Kyushu University) and Prof. Ren Yatsunami (Faculty of Law, Kyushu University) presented their work on ‘The Global Value Chain & Network Responsibility: The New Possibilities of Private Ordering’. They pointed it out that in recent years, policymakers and scholars from numerous disciplines have concentrated on mapping the outlines of the modern global value chain, with the concept of ‘network’ emerging as a repeating theme. They investigate the relevance of viewing networks as lenses through which better understand the GVC and its regulation, particularly in terms of human rights and environmental issues. Besides, they also examine the failure of the network and related legal responses, suggesting that a mixture of public and private norms, hard laws and soft laws should be considered as alternatives.

Prof. Carlos Vasquez (Georgetown Law School, US) then discussed his research on ‘Applicable Law in BHR Cases’. He focused on the applicable substantive law in BHR suits brought in developed countries (usually the home state of the defendant corporation) for injuries suffered in developing countries (the host state). He centred on both vertical and horizontal choice-of-law inquiries: ‘vertical’ refers to the decision-making process that involves choosing between international law and national (or subnational) law as the primary source of relevant law, while ‘horizontal’ refers to the decision between applying the legal system of the host country or the legal system of the home State.

Dr. David Capper (School of Law, Queen’s University Belfast) presented his research next, on ‘Procedural Aspects of Transnational BHR-Litigation’. Continuing with BHR cases he discussed how victims of tortious conduct by multinational corporations are seeking remedy against the latter in a Global North jurisdiction, with a focus on the UK. He illustrated the procedural mechanisms in the UK that are available for mass tort litigation of this kind and suggested that the Group Litigation Order (GLO) would be the appropriate mechanism in the majority of cases of mass tort litigation. Then he elaborated on several aspects of GLO, including group registers, case management, and costs. Finally, he suggested examining the Okpabi case to see how GLOs work.

Second Afternoon Session on 24 June

Prof. Irene-Marie Esser (School of Law, University of Glasgow) and Dr. Christopher Riley (Durham Law School) presented their research on ‘Groups and Outsiders in the Context of Tort and Human Rights Violations’, examining the challenges that arise in protecting the interests of ‘outsiders’ from corporate groups’ misbehaviour. They argued that regulations applied to individual ‘stand-alone’ companies suffer weaknesses when applied to corporate groups. By using the UK’s experience of enforcing human rights norms against groups and of applying tort law, they demonstrate the implications of an ‘enterprise approach’ for regulation.

Dr. Catherine Pedamon (Westminster Law School) shared her work in progress on the French duty of vigilance. The French Loi de Vigilance has been enacted for seven years, yet its first decision was rendered on 5th December 2023. It still appears to be in the initial stages of development, not only due to its groundbreaking nature but also the obstacles to enforcement. She then shared some key preconditions on the applicability, the public availability of a vigilance liability plan, compensation for damages due to the companies’ failure to comply, etc. She also introduced the recent developments in the related cases in France.

Prof. Michael Nietsch discussed his research, ‘Corporate Accountability of Multinational Enterprises for Human Rights Abuses – Navigating Separate Legal Entity and Attribution under Delict’, elaborating the growing interest in corporate accountability for human rights violations in the German judicial system. In contrast to the UK, Germany has seen few incidents of damages lawsuit with the implementation of statutory due diligence procedures under the Supply Chain Due Diligence Act 2021 (Lieferkettensorgfaltspflichtengesetz, LkSG). Nonetheless, legal academics continue to discuss the basis for corporate liability for human rights violations under German private law, as well as the proper standards of care that arise as a result. This is a fundamental issue in German delict law and the separation of legal entities. He argued that the LkSG has ruled out private liability based on a violation of the Act’s due diligence criteria while allowing such liability on other grounds, which adds to the complexity.

At the end of the day, Dr. Juan Manuel Amaya Castro (Faculty of Law, University of the Andes, Colombia) presented his work on ‘Global Value Chains with a Human Face’. He discussed the definition of social traceability from a legal perspective and its requirements, purpose, and reasons for tracing a particular good in the supply chain. He then explained how traceability is mandated in due diligence and reporting legislation, pointing out that practices including auditing and certification, feedback loops, administrative guidelines, and civil liability standards should be considered.

Morning Session on 25 June

Dr. Biset Sena Güne? (Max Planck Institute for Comparative and International Private Law, Hamburg, Germany) started the day with her research, ‘Harmonisation of Private International Law Rules to Promote Sustainability in Global Value Chains?’. She elaborated that the role of private international law is frequently constrained concerning sustainability. In most cases, the ability to reach a truly sustainable outcome is dependent on the applicable private legislation. When this is the case, it is difficult to justify the need for harmonisation of current private international law standards without simultaneously focusing on uniform private law regulatory remedies. Nonetheless, she suggested that the need for harmonisation of private international law standards governing corporate social responsibility should be explored further and proposed a comparative approach for that further research.

The morning session on 25 June also discussed the plans for the upcoming publication and the dissemination conference to be held in Germany in 2025.

In summary, the workshop enabled fruitful discussion of work-in-progress and shared insights on the complexities of global value chains and the role of transnational private law. Key topics included sustainability, corporate accountability, and legal frameworks affecting global supply chains. The project successfully fosters international collaboration amongst and beyond LSGL researchers, nurturing comparative and interdisciplinary approaches. Participants gained a deeper understanding and ideas to take the research forward to address regulatory and coordination challenges in furthering sustainability in global commerce.

The American Association of Private International Law (ASADIP) will be holding its annual XVII conference entitled “A Private International Law more intelligent and less artificial” from 25 to 27 September 2024 in Buenos Aires and Pilar (Argentina). This Conference is being organised together with the Jornadas Nacionales de Derecho Civil at the Universidad Austral (Argentina).

A call for papers has been extended to 15 August 2024. The topic is party autonomy in Private International Law. For more information, click here.

To register, click here (ASADIP members have 40 % discount, early bird registration possible).

The Legal High Committee for Financial Markets of Paris has recently published an English version of its report issued in May 2024 on The determination of the law applicable to assets registered in distributed ledgers. The report was produced by a working group chaired by Jérôme Chacornac (Paris II University) and Hubert de Vauplane (Kramer […]

Pietro Perlingieri, Giovanni Perlingieri, and Giovanni Zarra have edited a new book on Istituzioni di diritto privato internazionale e europeo.

The blurb reads as follows:

The book follows from the need for an interdisciplinary perspective to the regulation of civil relations, which also takes into account the direct and horizontal effects that international and European Union law may have on such relationships. The need for certainty in international trade requires, while respecting national identities, a uniform framework beyond the domestic level. Uniformity, however, cannot always be achieved by means of the same substantive rules for cross-border relationships; for this reason, the book devotes particular attention to rules of private international law of supranational origin. The work overcomes the ‘barriers’ between legal disciplines through a study of the different ways in which civil relationships are regulated by international and European Union law, including private international law.

Further information can be found on the publisher’s website.

Nagy, Csongor István, Private International Law: A Hungarian Perspective (June 1, 2024). Law in Eastern Europe, Volume: 71, ISBN: 978-90-04-69456-9 (e-book), ISBN: 978-90-04-69083-7, 2024, Available at SSRN: https://ssrn.com/abstract=4840867

Professor Csongor Nagy has recently published an Open Access monograph with Brill entitled “Private International Law: A Hungarian Perspective”. The book is available for download here. It provides a concise and analytical introduction to private international law in Hungary and presents both Hungarian conflicts rules and their judicial practice and the application of EU conflicts rules by Hungarian courts.

The last two decades saw a legislation boom in the field of EU PIL. EU conflicts instruments have gradually taken over national rules and today the overwhelming part of PIL has been shifted to the EU level. Still, national PILs have remained the primary sources in quite a few fields and in the fields where they did not it is still the national judiciary that turns the European “law in books” into “law in action”. Professor Nagy’s monograph provides an analysis of both aspects from a Hungarian perspective. First, Hungarian PIL was recodified in 2017 and the book provides an account of how European and national conflicts rules coexist, interact and symbiose. Second, it provides a comprehensive analysis of the application and interpretation of EU PIL by the Hungarian judiciary.

By Salih Okur, University of Augsburg

Earlier today, the CJEU rendered its long anticipated decision in Case C-774/22 (FTI Touristik) on whether Art. 18(1) Brussels Ia Regulation concerns “matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract, the tour operator [,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad […]”.

In accordance with the Opinion of AG Emiliou, the Court held that it does.

1. International Scope of the Brussels Ia Regulation

The question goes straight to the problem of the international scope of the Brussels Ia Regulation. In Case C-281/02 (Owusu), the CJEU had held that the application of the Brussels Ia Regulation always required an “international element” – otherwise the national rules of the Member State apply.

Whether this international element exists is particularly problematic in cases like the one at hand, where the parties of the dispute are domiciled in the same Member State but certain elements of the case are situated abroad.

With today’s decision, the CJEU has now adjudicated on two of the most practically relevant situations in quick succession: Only recently, in Case C-566/22 (Inkreal), the CJEU held that the choice of another Member State’s court is enough to establish the international element of a case, even if the parties are both domiciled in the same Member State, triggering the application of Art. 25 Brussels Ia Regulation.

In the present Case C-774/22 (FTI Touristik), the CJEU had to decide whether the travel destination of consumer package travel contracts is enough to establish an international element in the sense of the Brussels Ia Regulation, which would open up the consumer forum of Art. 18 Brussels Ia Regulation.

2. Facts

The parties to the dispute, JX, a private individual domiciled in Nuremberg (Germany), and FTI Touristik, a tour operator established in Munich (Germany), concluded a package travel contract for a trip to Egypt. JX brought proceedings against FTI before the Local Court of Nuremberg, claiming that he was not informed properly of the visa requirements in Egypt.

JX claimed that the Local Court of Nuremberg has international and territorial jurisdiction pursuant to Art. 18(1) Brussels Ia Regulation. FTI, on the other hand, argued that the case lacked any international element, meaning that not the Brussels Ia Regulation but the German Code of Civil Procedure (ZPO) was applicable. Under the latter, the Local Court of Nuremberg would not have had jurisdiction over the dispute as German law does not contain a general consumer forum.

3. The Court’s decision

According to previous decisions of the CJEU, the existence of the international element is not only reserved to cases where the parties to the dispute are domiciled in different Member States (para. 29).

Thus, according to the Court, the place of performance being abroad can on its own raise questions relating to the determination of international jurisdiction and thus establish an international element, triggering the application of the Brussels Ia Regulation (para. 30).

Specifically for consumer contracts, this interpretation is confirmed by Art. 18(1) Brussels Ia Regulation, which applies “regardless of the domicile of the other party” (para. 31) and by Art. 19(3) Brussels Ia Regulation, which addresses choice of law agreements entered “by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Member State“ (para. 32).

Finally, the Court refers to the general purpose of the Brussels Ia Regulation, which seeks to establish rules of jurisdiction which are highly predictable and thus pursues an objective of legal certainty which consists in strengthening the legal protection of persons established in the European Union, by enabling both the applicant to identify easily the court before which he or she may bring proceedings and the defendant reasonably to foresee the court before which he or she may be sued (para. 33).

These arguments lead the Court to the conclusion that the foreign travel destination of a package travel contract triggers the application of the Brussels Ia Regulation even if both parties are domiciled in the same Member State (para. 40).

4. Commentary

While this interpretation of the international element in the sense of the Brussels Ia regulation is in line with the opinion of AG Emiliou, it is difficult to square with the Court’s interpretation in Case C-566/22 (Inkreal): There, the Court primarily relied on the existence of a conflict of (international) jurisdiction to establish the international element (para. 31): if the courts of two or more different Member States could find international jurisdiction under their domestic rules, it would disturb legal certainty. In that case, the application of the Brussels Ia Regulation is justified as it restores said legal certainty by unifying the rules on international jurisdiction.

Case C-774/22 (FTI Touristik) lacks this potential for a conflict of international jurisdiction. Within the European Union, no other court would have international jurisdiction under Art. 18(1) and 18(2) Brussels Ia Regulation as the domiciles of the parties to the consumer contract are situated in the same Member State – pursuant to Art. 17(1) Brussels Ia Regulation, Art. 7(1) Brussels Ia Regulation doesn’t apply. Thus, within the European Union there cannot be a conflict of international jurisdiction; consequently, the Brussels Ia Regulation shall not apply. This argument does not seem to resonate with the Court, though; instead, the Court argues that the nature of the relevant provision of the Brussels Ia Regulation does not play a role when establishing the international element (para. 39).

Still, it cannot be denied that this decision immensely benefits consumers. The Brussels Ia Regulation now applies to all (package) travel contracts for trips abroad, meaning that pursuant to Art. 18(1) Brussels Ia Regulation, consumers may at all times bring proceedings against the tour operator at their domicile.

The CJEU this morning has entirely and in succinct fashion confirmed the Opinion of Emiliou AG which I discuss here.

[30] that the contract between the parties, both domiciled in the same Member State, is meant to be performed either in another Member State or a third State, by its nature triggers the question which court might have jurisdiction (reference to CJEU Inkreal) and sufficiently qualifies as the international element required to trigger Brussels Ia. Like the AG, the CJEU also refers to the use of the wording in A18(1) ‘regardless of the domicile of the other party’ to corroborate that finding.

[35]-[36] the Court like the AG also warns against a symmetric  application of non-BIa authority to Brussels at least one that is assumed too readily.

Confirmation of the consumer title assigning not just national but territorial jurisdiction is backed up ia by reference to CJEU Allianz (on the insurance title).

After the solid AG Opinion, an equally solid judgment.

Geert.

EU Private International Law, 4th ed 2024, 2.22 ff and 2.233 ff.

https://x.com/GAVClaw/status/1817834126927446343

 

Giovanni Chiapponi (University of Florence; previously Bologna University and Max Planck Institute in Luxembourg) has published a book titled Interfaces between National and EU Law. Time Limits in Cross-Border Civil Proceedings and Their Impact on the Free Circulation of Judgemen31t. The book is published by Nomos, in the Luxembourg Legal Studies series. The blurb reads: […]

The Second Report on the application of the General Data Protection Regulation (GDPR) has just been published, click here. For the full report, click here: Second Report GDPR.

At a meeting on 11 July 2024, 22 lawyers and academics voted to form the Australasian Association of Private International Law (AAPrIL).  Professor Mary Keyes (Griffith University) was elected the inaugural President and the Honourable Dr Andrew Bell, Chief Justice of New South Wales, has agreed to be AAPrIL’s patron.

The AAPrIL’s first elected officers are as follows:

• President: Professor Mary Keyes (Griffith University, Queensland)
• Secretary: Professor Reid Mortensen (University of Southern Queensland)
• Treasurer: Ms Cara North (Corrs Chambers Westgarth, Melbourne)
• Australian Vice-President: Dr Michael Douglas (Bennett, Perth)
• New Zealand Vice-President: Mr Jack Wass (Stout Street Chambers, Wellington)

AAPrIL has been established to promoted understanding, awareness and the reform of private international law in Australia, New Zealand and the Pacific Islands, and to provide a regional organisation for cooperation with similar private international law associations across the world.  It plans to hold an annual conference, support regular seminars and roundtables, engage with governments in Australasia on private international law issues and reform, publish a regular newsletter on events and legal developments in the region, and encourage cooperation with the Hague Conference on Private International Law and other private international law inter-governmental organisations.

More details about AAPrIL can be found on its website.  Any enquiries can be made to AAPrIL’s Secretary, Professor Reid Mortensen: reid.mortensen@unisq.edu.au.