Droit international général

Willem 1, Buddhist mummy. Statue (L), CT scan (R). (Photos: Drents Museum)

by Zhen Chen, PhD researcher in the Department of Private International Law, University of Groningen, the Netherlands (ORCID ID: https://orcid.org/0000-0001-5323-4271)[1]

In Buddha Mummy Statue case, the Chinese village committees sued the Dutch defendants for the return of a stolen golden statue which contains a 1000-year old mummified buddhist. The parties had different opinions on the legal nature of the mummy contained in the statue. The Chinese court classified the statue as a cultural property and applied the choice of law over movable properties provided in Article 37 of Chinese Private International Law (lex rei sitae). Based on a comparative study, this article argues that a mummy does not fall within the traditional dichotomy between a person and a property. Instead, a mummy should be classified as a transitional existence between a person and a property. If the classification of a mummy has to be confined to the traditional dichotomy, a mummy can be regarded as a quasi-person, or a special kind of property. Following this new classification, a new choice of law rule should be established. In this regard, the Belgian Private International Law Act, which adopts the lex originis rule supplement by the lex rei sitae, is a forerunner. This article advocates that the adoption of the lex originis rule may help to stop the vicious circle of illegal possession and to facilitate the return of stolen cultural objects, especially those containing human remains, to their country of origin.

 

1. Gold or God?

As to the legal nature of the Buddha Mummy Statue in dispute, from the Chinese villagers’ perspective, the mummy contained in the golden statute is a person or God, instead of a property. Specifically, the mummified buddhist Master Zhanggong was their ancestor, who used to live in their village and has been worshipped as their spiritual and religious God for over 1000 years. Master Zhanggong was preserved in a statue moulded with gold to prevent decomposition and to maintain his immortality. The villagers celebrated Master Zhanggong’s birthday every year with feast, music and dance performance, which has become their collective memory and shared belief.

In contrast, from the Dutch art collector’ perspective, the golden statute containing a mummy is a property not a person. It is merely a cultural property with great economic value and worthy of collection or investment. Thus, it is not surprising that the Dutch collector asked for a compensation of 20 million Euro, of which the Chinese villagers whose annual income was around 1000 Euro could not afford it.

The Chinese village committees sued the Dutch art collector both in China and in the Netherlands. The Chinese village committees asserted that the mummified Master Zhanggong contained in the statue was a corpse within the meaning of the Dutch Liability Decree, and the ownership thereof was excluded under the Dutch law.[2] The claimants as the trustees or the agents had the right of disposal.[3] The Dutch art collector argued that the mummified monk contained in the golden statue was not a corpse, as the organs of the monk were missing. The Dutch court did not touch upon the issue of classification of the Buddha Mummy Statue, as the case was dismissed on the basis that the Chinese village committees had no legal standing nor legal personality in the legal proceedings.[4]

 

2. The lex situs under Article 37 Chinese Private International Law Act

The Chinese court classified the Buddha Mummy Statue as a cultural property and applied the law of the country where the theft occurred, namely Chinese law, by virtue of Article 37 Chinese Private International Law Act. Such classification is not satisfactory, as the mummy in dispute was essentially considered as a property. Chinese law was applied because the place of theft was in China and the lex situs was construed by the Chinese court as the lex furti. However, what if the mummy was stolen in a third country during the transportation or an exhibition? The lex furti does not necessarily happen to be the lex originis in all cases involving stolen cultural objects.

Moreover, cultural objects containing human remains are special in comparison with other cultural objects without, as human remains contain biological information of a person. The application of the traditional lex rei sitae rule to all cultural objects, including those containing human remains, is far from satisfactory. In general, the law on dead human bodies precedes over the sale of corpses, and no person, including a good faith purchaser can own somebody else’s corpse both in civil law and common law systems.[5] A corpse must not be downgraded to the status of a property.[6] The characterization of human remains as properties objectifies human remains and thus may violate human dignity.[7] Therefore, it is necessary to distinguish cultural objects containing human remains from other types of cultural objects. The question is how to draw a distinction and what is the legal nature of a cultural object containing human remains, such as a mummy. If a mummy does not fall within the scope of traditional category of a person nor a property, does it mean a new category need to be created? In this regard, the classification of the legal nature of a fertilized embryo in Shen v. Liu may be relevant,[8] since the judge addressed the issue by thinking out of the box and provided a new solution.

 

3. Is a Fertilized Embryo a Property or a Person?

Shen v. Liu was the first case in China that involved the ownership of frozen embryos. Specifically, Shen and Liu, who got married in 2010 and died in 2013 in a car accident, left four frozen fertilized embryos in a local hospital. The parents of Shen (Mr and Mrs Shen), sued the parents of Liu (Mr and Mrs Liu), who also lost their only child, claiming the inheritance of the four frozen fertilized embryos of the deceased young couple.[9] The local hospital where the embryos were preserved was a third party in this case.

 

3.1 A property, a special property, or ‘a transitional existence between person and property’?

The third party Gulou Hospital argued that the frozen embryos do not have the nature of a property. Since Mr. and Mrs. Shen had passed away, the expired embryos should be discarded. Neither the plaintiffs nor the defendants should inherit the embryos.[10] The first-instance court held that fertilized embryos had the potential to develop into life, and thus are special properties that contain biological characteristics of a future life. Unlike normal properties, fertilized embryos can not be the subject of succession, nor be bought or sold.[11]

Nevertheless, the appellate court took the view that embryos were ‘a transitional existence between people and properties’. Therefore, embryos have a higher moral status than non-living properties and deserve special respect and protection. The embryo ethically contains the genetic information of the two families and is closely related to the parents of the deceased couple. Emotionally speaking, the embryo carries personal rights and interests, such as the grief and spiritual comfort for the elderly. The court held that the supervision and disposal of the embryos by the parents from these two families was in line with human ethics and can also relieve the pain of bereavement for both parties.[12] Clearly, the court did not classify the fertilized embryos as people or properties. Instead, the embargo was considered as ‘a transitional existence between a person and a property’, since it is not biotic nor abiotic but a third type in-between.

 

3.2 A mummy as ‘a continuum between a person and a property’

With regard to the distinction between a person and a property, the judgment of Shen v. Liu shows that the Chinese court was not confined to the traditional dichotomy between a person and a property. The same should be applicable to mummies. Embryos and mummies have something in common, as they are two different kinds of life forms. Whereas the embryo in Shen v. Liu is the form of life which exists before the birth of a human being, the mummy in Buddha Mummy Statue case is another form of life which exists after the death of a human being.

Embryos and mummies, as the pre-birth transition and after-death extension of life forms of a human being, involve morality and ‘human dignity’.[13] Such transitional existence or continuum of life forms contains personal rights and interests for related parties, which may justify the adoption of a new classification. As a special form of life, embryos and mummies should not be considered as merely a property nor a person. The strict distinction between people and properties does not apply well in embryos and mummies. Instead, they should be regarded as ‘a transitional existence between a person and a property’ or ‘a continuum between a person and a property’. If it is not plausible to create a third type for the purpose of classification, they should be regarded, at least, as a quasi-person, or a special property with personal rights and interests. An embryo and a mummy cannot be owned by someone as a property. Rather, a person can be a custodian of  an embryo and a mummy. This is also the reason why cultural objects containing human remains should be treated differently.

 

4. A New Classification Requires a New Choice of Law Rule

In order to distinguish cultural objects containing human remains from other cultural objects, or more generally to distinguish cultural properties from other properties in the field of private international law, a new choice of law rule needs to be established. In this regard, the 2004 Belgian Private International Law Act might be the forerunner and serve as a model for not only other EU countries but also non-EU countries.[14]

 

 4.1 The lex originis overrides the lex situs

The traditional lex situs rule is based on the location of a property and does not take cultural property protection into consideration. Courts resolving cultural object disputes consistently fail to swiftly and fairly administer justice, and much of the blame can be put on the predominant lex situs rule.[15] The lex situs rule allows parties to choose more favorable countries and strongly weakens attempts to protect cultural objects.[16]

In Belgium, as a general rule, the restitution of illicitly-exported cultural objects is subject to the lex originis, rather than the lex rei sitae. Article 90 of 2004 Belgian Private International Law Act stipulated that if one object that has been recorded in a national list of cultural heritage is delivered outside this country in a way that against its law, the lawsuit filed in this country for the return of that particular object shall apply the law of the requesting country. This provision designates the law of the country of origin, also known as the lex originis rule. In comparison with the lex rei sitae or the lex furti rule, the lex originis rule is more favorable to the original owners

 

4.2 Facilitating the return of human remains to their country of origin

The establishment of a new choice of law rule for cultural relics containing human remains or cultural objects in general is in line with the national and international efforts of facilitating the return of stolen or illicitly cultural objects to their country of origin. Mummies exist not only in China, but also in many other countries, such as as Japan, Egypt, Germany, Hungary, USA, Russia, and Italy. The adoption of the lex originis rule could facilitate the return of stolen or illicitly exported cultural objects which contain human remains to their country of origin or culturally-affiliated place. This objective is shared in many international conventions and national legislations.

 

5. Concluding remarks

The mummy Master Zhanggong has not been returned to the Chinese village committees yet, since the Dutch defendants have lodged an appeal. This article argues that, in the light of the classification of frozen embryos in Shen v. Liu, mummies should be classified as ‘a transitional existence between a person and a property’. A new classification calls for a new choice of law rule. In this regard, the 2004 Belgian Private International Law Act might serve as a model, according to which the lex originis rule prevails over the traditional lex situs rule, unless the original owner chooses the application of the traditional lex situs or the lex originis rule does not provide protection to the good faith purchaser. The Chinese Private International Law should embrace such approach, since the application of the lex originis may facilitate the return of cultural relics, including but not limited to those containing human remains such as mummies, to their culturally affiliated community, ethnic or religious groups.

—

[1] This is a shortened version of the article published in the Chinese Journal of Comparative Law with open access https://doi.org/10.1093/cjcl/cxac006. Related blogposts are Buddha Mummy Statue case and Conflict of Laws of Cultural Property.

[2] Chinese Village Committees v. Oscar Van Overeem, ECLI:NL:RBAMS:2018:8919, point 3.1.

[3] Ibid.

[4] Ibid., point 4.2.5.

[5] J. Huang, ‘Protecting Non-indigenous Human Remains under Cultural Heritage Law’, 14 Chinese Journal of International Law 2015, p. 724.

[6] E.H. Ayau and H. Keeler, Injustice, Human Rights, and Intellectual Savagery, in Human Remains in Museums and Collections, DOI: https://doi.org/10.18452/19383, p. 91.

[7] Ibid.

[8]  Mr and Mrs Shen v. Mr and Mrs Liu, Jiangsu Province Yixing Municipality People’s Court, (2013) Yi Min Chu Zi No 2729; Jiangsu Province Wuxi Municipality Intermediate People’s Court, (2014) Xi Min Zhong Zi No 01235.

[9]  Ibid.

[10] Ibid. The third party also stated that after the embryos are taken out, the only way to keep the embryos alive is surrogacy, which is illegal in China, thus both parties have no right to dispose the embryos.

[11] Ibid. Since the first-instance court held that embryos cannot be transferred or inherited, the case was dismissed in accordance with Article 5 of the General Principle of Civil Law and Article 3 of the Inheritance Law of the PRC.

[12] Ibid. The appellate court analyzed that after the death of Shen and Liu, their parents were the only subjects and most-related parties that care about the fate of embryos. Thus, it was appropriate to rule that the parents of Shen and Liu have the right to supervise and dispose the embryos. However, such supervision and disposal should abide by the law, and must not violate public order and good morals nor infringe the interests of other people.

[13] While birth means a definite initiation into human society, death indicates a final termination of a natural person, which both involve the dignity of an individual human or even humankind. H.G. Koch, ‘The Legal Status of the Human Embryo’, in E. Hildt and D. Mieth (eds.), Vitro Fertilisation in the 1990s, Routledge 1998, p. 3.

[14] T. Szabados, ‘In Search of the Holy Grail of the Conflict of Laws of Cultural Property: Recent Trends in European Private International Law Codifications’, 27 International Journal of Cultural Property 2020, p. 335.

[15] D. Fincham, ‘How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property’, 32 Columbia Journal of Law & the Arts 2008, p.116.

[16] Ibid, p.130.

 

A new book entitled Blurry Boundaries of Public and Private International Law: Towards Convergence or Divergent Still? and co-edited by Dr Poomintr Sooksripaisarnkit (of the University of Tasmania) and Dharmita Prasad (Jindal Global Law School, O.P Jindal Global University) has just been released by Springer.

The description states that the book examines interactions and discusses intersectionality between public international law and private international law. With contributions from scholars from the USA, Canada, Australia, India, and the EU, this book brings out truly international perspectives on the topic. The contributions are arranged in four themes — Public international law and private international law: historical and theoretical considerations of the boundary; Harmonisation of private international law by public international law instruments: evaluation of process, problems and effectiveness; Case studies of intersectionality between public international law and private international law; and Future trends in the relationship between public international law and private international law.

The Foreword by Ralf Michaels is followed by these chapters:

Chapter 1: Public International Law and Private International Law: Setting scene for intersectionality – Poomintr Sooksripaisarnkit and Dharmita Prasad
Chapter 2 – Private International Law’s origins as a branch of the universal law of nations – Marco Basile
Chapter 3 – Recognition – A story of how the two worlds meet – Dulce Lopes
Chapter 4 – Forum non conveniens in Australia – how much weight should be given to comity? – Poomintr Sooksripaisarnkit
Chapter 5 – International rule of law and its relation to harmonisation – Dharmita Prasad
Chapter 6 – A quest for the missing link in the resolution of international investment disputes affecting host states’ citizens under public and private international law – Richard Mlambe
Chapter 7 – Visualising the role of international rule of law in claim funding by third parties – Gautam Mohanty
Chapter 8 – Article 79 CISG: Testing the effectiveness of the CISG in international trade through the lens of the COVID-19 outbreak – Nevena Jevremovic
Chapter 9 – Determination of legal effects of COVID-19 related export bans and restrictions on international sale of goods contracts: Interplay between public and private international law – Burcu Yuksel Ripley and Ulku Halatci Ulusoy
Chapter 10 – Private International Law vs Public International Law: Competing complimentary intersectionality in CISG Article 79? Peter Mazzacano
Chapter 11 – Blocking Statutes: Private individuals finding themselves in interstate conflicts – Marcel Gernert
Chapter 12 – When public international law meets EU private international law: an insight on the European Court of Justice case law dealing with immunity vis-à-vis the application of the Brussels Regime – Maria Barral Martinez
Chapter 13 – Children’s rights law and private international law: What do referencing patterns reveal about their relation? – Tine Van Hof
Chapter 14 – Ringfencing data? – Perspectives on sovereignty and localisation from India – Sai Ramani Garimella and Parthiban B
Chapter 15 – Private international law and public international law – increasing convergence or divergence as usual? – Poomintr Sooksripaisarnkit and Dharmita Prasad

For further details of the book please refer to the respective Springer webpage.
It is worthy of mention that the editors are in the process of planning an online “book launch” event at some point within the second quarter of 2022. Details once finalised will also be announced in this portal.

The environment is on – almost – everybody’s mind.  In particular companies committed to sustainable investment are becoming an increasingly relevant economic factor. Accordingly, their business models are now also frequently the subject of court proceedings, raising  new legal questions, including those concerning private international law. The CJEU has recently had to decide on such a question.

Facts

The Swiss investment firm ShareWood had a clever idea to turn ecological concerns into money: They offered to plant trees in Brazil, harvest them after a couple of years and sell the timber for a profit. Investors were promised ownership of individual trees. They would also rent a piece of land for as long as ‘their’ trees were standing on it. The contracts were expressly submitted to Swiss law.

Soon the relations between the firm and their investors turned sour. Some Austrian residents complained that ShareWood had failed to transfer ownership of the trees to them and sued the firm in Vienna.

Proceedings

The Austrian Supreme Court (Oberster Gerichtshof) considered the law applicable to this dispute. In particular, it was unsure whether the case fell under Article 6(4)(c) of the Rome I Regulation, which makes an exception from the consumer conflicts provisions in the case of “a contract relating to a right in rem in immovable property or a tenancy of immovable property”.

Holding of the CJEU

The CJEU, in a decision dated 10 February 2022, flatly rejects the applicability of Article 6(4)(c) of the Rome I Regulation.

First, the CJEU denies that the contracts concern “a right in rem in immovable property”. Although the investors aimed to acquire property, they targeted the trees and not the immovable property. The Court admits the existence of national provisions under which the tree is considered as being part of the immovable property on which it stands, but wilfully ignores them by applying its famous principle of autonomous interpretation. The Court refers instead to the specific purpose of the contracts, which is to generate income from the sale of the timber. In its view, the trees “must be regarded as being the proceeds of the use of the land on which they are planted” (para 28), and thus not as forming part of the real estate.

Second, the CJEU also denies that the contracts relate to the “tenancy of immovable property” and hence does not fall under the second prong of Article 6(4)(c) of the Rome I Regulation,  despite the fact that the investors rented the land on which their tree stands. The Court of Justice revives here some of its case law regarding the exclusive jurisdiction for such tenancy agreements under the old Article 16(1)  of the Brussels Convention. Specifically, it cites its decision in Klein, where it had ruled that the application of this provision requires “a sufficiently close link between the contract and the property concerned”. The Court now holds that this link would not exist where the lease is intended “merely to enable the sales and services elements provided for in the contract to be carried out” (para 37).

The result is that the choice of law in the contracts could not overcome the mandatory rules in force at the consumers’ habitual residence (Article 6(2) Rome I Regulation). In the specific case, the chosen Swiss law was thus superseded by the mandatory rules of Austrian law.

Comment

The Court of Justice may have oversimplified things a bit. It neglected the fact that the investors pursued a double goal: they wanted not only to make money on the sale of the timber, but also to own the trees while they were growing as a kind of legally protected contribution to the fight against climate change. To ensure this second goal, the contracts stipulated that this ownership would not start after the trees were harvested, but long before. Moreover, the connection with the tenancy of the land was way more straightforward than in  Klein, where a membership in a club had been acquired. Here, the land served the purpose of  growing a specific tree. There was thus a much stronger connection to a particular piece of land.

Conclusion

Despite these weaknesses, the CJEU judgment may still be defended on the grounds  of consumer protection. Indeed, financial profit was a key driver of the whole contractual arrangement and not just a side-issue. In a case like this, the link to the immovable property does not outdo the need for consumer/investor protection. Article 6(4)(c) of the Rome I Regulation should be restricted to those cases that primarily are about rights in immovable property and are not also motivated by a substantial financial purpose. This is the lesson to be learned from ShareWood Switzerland.

If the financial purpose would be dominant, one could think about qualifying the contracts as financial instruments under Art. 6(4)(d) of the Rome I Regulation. Yet this characterisation is difficult given the regulatory definition of this notion (see Annex I C of the Markets in Financial Instruments Directive (MiFID II)). Contracts like the present ones thus fall between the boundaries  of Article 6(4)(c) and (d) of the Rome I Regulation, which is good news for consumers because the rules of Article 6(1) and (2) of the Rome I Regulation, favourable to them, will apply.

Many thanks to Amy Held, Felix Krysa and Verena Wodniansky-Wildenfeld for reviewing this post.

The Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law is currently recruiting. A fully-funded position as Research Fellow (PhD candidate) for the Department of European and Comparative Procedural Law, led by Prof. Dr. Dres. h.c. Burkhard Hess, is open:

   Fixed-term contract for 2 years; contract extension is possible; full-time based in Luxembourg

The successful candidate will conduct legal research (contribution to common research projects and own publications), particularly in the field of European and Comparative Procedural Law, while playing a central role in undertaking and developing team-driven projects within the Institute, in partnership with renowned international academics.

You may apply online until 20 March 2022 by submitting a detailed CV, including a list of publications (if applicable); copies of academic records; a PhD project description of no more than 1-2 pages with the name of the foreseen PhD supervisor and the name of the institution awarding the PhD certificate.

The Max Planck Institute Luxembourg for Procedural Law strives to ensure a workplace that embraces diversity and provides equal opportunities.

Gary Born (Wilmer Cutler Pickering Hale and Dorr LLP) and Cem Kalelioglu (Wilmer Cutler Pickering Hale and Dorr LLP) contributed an article on choice-of-law agreements in international contracts to Volume 50, Number 1, of the Georgia Journal of International and Comparative Law.

Choice-of-law agreements are widely used in international business transactions, with a substantial majority of all cross-border commercial and investment contracts containing a choice-of-law provision. Virtually all legal systems, and many treaties and other international legal instruments, recognize the presumptive validity of such agreements. Nonetheless, there are significant variations in the treatment of international choice-of-law provisions, including with respect to issues of validity, enforceability, and interpretation, which can lead to a degree of unpredictability in the application of such provisions. This uncertainty undermines the basic purposes of choice-of-law agreements and private international law more generally.

This Article examines the treatment of international choice-of-law agreements under both national and international law. In particular, the Article considers the rules governing the validity and enforceability of such agreements, the exceptions to their presumptive validity and enforceability, and the interpretation of international choice-of-law provisions.

The Article argues that the basic rule of presumptive validity of choice-of-law provisions in international commercial and investment contracts now has the status of a general principle of law and is therefore binding on states as a matter of international law and, in any event, should be adopted as a matter of national policy. This Article also argues that, although there are substantial similarities in the treatment of exceptions to the validity of international choice-of-law provisions in different national and other legal systems, important differences persist. These differences undermine the purposes of such agreements, and thereby impede international trade and investment. The Article examines these differences and proposes heightened uniformity in the rules governing the recognition of international choice-of-law agreements in commercial and investment contracts. Among other things, choice-of-law agreements (i) should not be subject to any “reasonable relationship” requirement, (ii) should be presumptively valid where a non- national legal system is selected and (iii) should be unenforceable on public policy grounds only in exceptional circumstances.

The Article also contends that similar differences exist with respect to the interpretation of international choice-of-law agreements in different legal systems, and that these differences frustrate the intentions of commercial parties. The Article proposes rules of interpretation of international choice-of-law provisions, including presumptions that choice-of-law agreements select only the “local law,” not the “whole law,” of a jurisdiction and that choice-of-law provisions be interpreted liberally, to include most issues of procedure and remedy, as well as non-contractual issues. These uniform rules of interpretation would better serve the objectives of commercial parties and purposes of private international law regimes and the international legal system than does existing treatment of international choice-of-law provisions.

The article is freely accessible here.

The Catholic University of the Sacred Heart in Milan plans to invite young scholars to present the outcome of their doctoral research on any topic within the field of private international law, transnational law or the law of international arbitration, at a dedicated seminar that will be held annually in Milan (the MECSI Seminar). Each MECSI Seminar will revolve around one scholar, selected by a jury constituted for this purpose.

Exceptionally, two MECSI Seminars will take place in 2022. The first will be held on 9 March 2022 at 5 pm. The speaker will be Augustin Gridel, who is a teaching fellow at the Université Paris II Panthéon-Assas. He will deliver a presentation titled Financial Markets and Financial Instruments in Private International Law. Professor Francesca Villata, of the University of Milan, will act as a discussant.

Those interested in presenting their doctoral research at the second MECSI Seminar of 2022, scheduled to take place in November 2022, are encouraged to send an e-mail to Pietro Franzina (pietro.franzina@unicatt.it) by 15 July 2022.

Applicants must be aged less than 35 and may come from any country. They must have already discussed their PhD dissertation at the time when the application is submitted (however, no more than two years must have passed since the dissertation was discussed). Applications must include a copy of the dissertation, an abstract of the dissertation in English and a CV of the author in English.

Applications must also include a proposal for the seminar presentation consisting of a title followed by abstract of about 1.500 words. The subject matter of the presentation must relate to, but should not necessarily coincide with, the topic of the thesis: the applicant may choose, for instance, to concentrate on one aspect of his or her research, or discuss developments occurred after the dissertation was discussed.

All documents accompanying the application must be in pdf format. The selection process involves, for those shortlisted, a Zoom interview.

The Catholic University of the Sacred Heart will cover the travel expenses of the selected scholar up to 600 Euros, and will take care of his or her accommodation at one of the guest houses of the University for up to two nights. During their stay in Milan, the selected scholar will also be invited to give a 45 minute lecture in English to the students attending the course of Private International Law on a topic unrelated to their PhD research.

The French Committee of Private International Law is looking for a part-time assistant (35 hours per year). His/her main tasks will be to transcribe the debates of the Committee meetings, organise meetings and update the website of the Committee.

The main requirements are:  Master’s degree in private international law or PhD student in private international law; Good writing skills and command of the usual computer tools.

The remuneration is 2000 EUR per year and the expected work status is self-employed (auto-entrepreneur).

The position is to be filled as soon as possible and at the latest in May 2022.

Applications should be sent to the General Secretariat of the Committee: Sabine.corneloup@u-paris2.fr and Fabienne.jault@seseke.fr.

The Sydney Centre for International Law at Sydney Law School is delighted to present the 2022 International Law Year in Review Conference, to be held online on Friday 25 February 2022.

This annual ‘year in review’ conference brings together expert speakers from around the world to give participants insight into the latest developments in international law over the preceding year, especially those most salient for Australia.

Panel 3 will cover Developments in Private International Law in 2022.

Speakers

Martin Jarrett (Max Planck Institute for Comparative Public Law and International Law and University of Heidelberg), “Payment of Australian judgment debts as unlawful European state aid: international legal options for Australia against the European Union”. 

Dr Aida Othman (ZICO Shariah and Messrs. Zaid Ibrahim & Co.), “Arbitration of Shariah and Islamic finance disputes: are the Asian International Arbitration Centre’s i-arbitration rules a game-changer?”

Dr Sarah McKibbin (University of Southern Queensland), “Implementation of the Singapore Convention on Mediation in Australian Law”

Chair: Associate Professor Dr. Jeanne Huang (Sydney Law School)

Date/Time: 25 February, 1:30pm – 3:00 pm AEDT

View the program here. Register to attend here.

Professor Adeline Chong will be speaking on 25 Feb at 12:30
PM – 2:00 PM 9(HKT) on the The Asian Principles for the Recognition and Enforcement of Foreign Judgements.

The portability of foreign judgments across borders helps to faciliate cross-border transactions by lowering transaction costs and associated legal friction among countries. This is important for Asia given initiatives to establish greater economic integration in Asia such as the establishment of the ASEAN Economic Community, the Belt and Road Initiative and free-trade agreements such as the CPTPP and RCEP.

The Asian Principles for the Recognition and Enforcement of Foreign Judgments (ABLI, 2020) is one of the publications resulting from a project conducted under the auspices of the Asian Business Law Institute (ABLI). The ABLI Foreign Judgments project considered the recognition and enforcement of foreign judgment rules in the ten ASEAN Member States and five of ASEAN’s major trade partners i.e. Australia, China, India, Japan and South Korea. The Asian Principles is a statement of the laws on foreign judgments in the region. It sets out the common principles and differences in the laws and suggests ways in which harmonisation of the foreign judgment rules can occur.

This seminar discusses the Asian Principles and considers the extent to which harmonisation of the foreign judgment rules is possible in the region. Harmonisation would of course increase the portability of judgments across borders. The seminar also examines the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and the likelihood of the Convention being adopted by the Asian countries.

About the speaker:

Adeline Chong is an Associate Professor at the Yong Pung How School of Law, Singapore Management University. She was formerly a lecturer at the School of Law, University of Nottingham. She has published in leading peer-reviewed journals such as the Law Quarterly Review, International and Comparative Law Quarterly, Lloyd’s Maritime and Commercial Law Quarterly and the Journal of Private International Law. She is the co-author of Hill and Chong, International Commercial Disputes: Commercial Conflict of Laws in English Courts (Oxford, Hart, 4th edn, 2010). She is the Project Lead of the Asian Business Law Institute’s project on the Recognition and Enforcement of Foreign Judgments in Asia. Her work has been cited by various courts including the Singapore, Hong Kong, New South Wales and New Zealand Court of Appeals, the UK Law Commission, as well as in leading texts on conflict of laws such as Dicey, Morris and Collins on the Conflict of Laws (15th edition). She has also been invited to present papers by the British Association of Canadian Studies, British Institute of International and Comparative Law, Kyushu University and the University of Sydney. She has conducted courses for the Attorney-General Chambers of Malaysia and delivered Continuing Professional Development Talks for Singapore’s Attorney-General Chamber’s Academy and the Law Society of Singapore. She has appeared as an expert on Singapore law before a Finnish court and issued a declaration on Singapore law for a US class action.

Register here by 5pm, 24 February 2022 to attend the seminar.

The first issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2022 was just published. It features the following case notes and articles on private international law respectively:

SYC Leung and M Suen, The Extensive Jurisdiction in the Action on an Arbitral Award (case note)

D Foxton, The Jurisdictional Gateways – some (very) modest proposals:

This article reviews the history of the gateways for service out of the jurisdiction in England and Wales, and seeks to identify the rationales which underpin them. The case for abolishing the gateways altogether, and applying only a forum conveniens test for service out purposes, is examined, the article concluding that there are reasons of principle and policy for maintaining the gateway requirement. The article identifies a number of variations or amendments to the current gateways which are consistent with their rationales, and which would better give effect to them. A Kennedy, An Exploration of the Operation and Rebuttal of the Presumption in Enka v Chubb:

The Supreme Court in Enka v Chubb clarified the choice of law rules which help determine the governing law of an arbitration agreement when the law of the contract containing it differs from the law of the arbitral seat. According to that framework, where parties have chosen the law which governs the main contract, that law is presumed also to govern the arbitration agreement. This article identifies, and seeks to provide preliminary answers to, questions surrounding the operation of, and rebuttal of, that presumption, on the basis that such questions are most likely soon to require a judicial answer.

 

Applications are now open for three- to six-month legal internships at the Permanent Bureau’s headquarters in The Hague, for the period from July to December 2022!

Interns work with our legal teams in the areas of Family and Child Protection Law, Transnational Litigation, Legal Cooperation, and Commercial and Financial Law. Duties may include carrying out research on particular points of private international law and/or comparative law, taking part in the preparation of HCCH meetings and contributing to the promotion of the HCCH and its work.

Due to the current global situation and the associated travel limitations and restrictions, the Permanent Bureau may consider the possibility that internships be carried out remotely. Interns may also be eligible for a monthly stipend.

Applications should be submitted by 17 March 2022. For more information, please visit the Internships Section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH). 

The European Association of Private International Law learnt with great sadness the passing of Peter Mankowski. The editors of the EAPIL Blog are most grateful to Ulrich Magnus for contributing the in memoriam published earlier today.

While none of us knew Peter Mankowski as well as Ulrich Magnus, some of the Editors of this blog were on personal terms with him, while others were involved in projects he led and had planned. Peter Mankowski was a great scholar. Not only did he write a staggering amount of publications, but he was also an avid reader of everything published on private international law. in addition, he provided very useful feedback and encouraging comments to other authors.

The Editors of the Blog greatly appreciated his willingness to participate in the online symposia that they organised, often on a (very) short notice, on important decisions of the CJEU with scholars from other European jurisdictions. Peter was always enthusiastic about these online symposia.

One of the last in which he participated was about the CJEU decision in Hrvatske Šume at the start of 2022. He kicked off our online symposium on the case with a lucid analysis, perhaps one of the last works of his busy life.

Reading it again lets us remember why we loved Peter: His text is full of ideas, provides ample references, and testifies of his broad view of international law.

In retrospect, it was only logical that Peter Mankowski would be interested in sharing and debating with other European scholars.

He and Ulrich Magnus were instrumental in the development of a transeuropean dialogue on private international law. We are of course referring to the groundbreaking series of European commentaries on private international law. Magnus and Mankowski were the first to gather teams of European scholars to offer systematic commentaries of the most important European regulations on private international law.

Establishing a truly pan-European forum to discuss issues of private international law is the main goal of the European Association of Private International Law. Peter Mankowski (and Ulrich Magnus) were precursors in this respect. They blazed the trail on which we walk.

Written by Pilar Jiménez Blanco about her book:

Pilar Jiménez Blanco, Regímenes económicos matrimoniales transfronterizos [Un estudio del Reglamento (UE) nº 2016/1103], Tirant lo Blanch, 2021, 407 p., ISBN 978-84-1355-876-9

The Regulation (EU) No 2016/1103 is the reference Regulation in matters of cross-border matrimonial property regimes. This book carries out an exhaustive analysis of the Regulation, overcoming its complexity and technical difficulties.

The book is divided in two parts. The first is related to the applicable law, including the legal matrimonial regime and the matrimonial property agreement and the scope of the applicable law. The second part is related to litigation, including the rules of jurisdiction and the system for the recognition of decisions. The study of the jurisdiction rules is ordered according to the type of litigation and the moment in which it arises, depending on whether the marriage is in force or has been dissolved by divorce or death. Three guiding principles of the Regulation are identified: 1) The need of coordination with the EU Regulations on family matters (divorce and maintenance) and succession. This coordination can be achieved through the choice of law by the spouses to ensure the application of the same law to divorce, to the liquidation of the matrimonial regime, to maintenance and even to agreements as to succession. In addition, a broad interpretation of “maintenance” that includes figures such as compensatory pension (known, for example, in Spanish law) allows that one of the spouses objects to the application of the law of the habitual residence of the creditor and the law of another State has a closer connection with the marriage, based on art. 5 of the 2007 Hague Protocol. In such a case, the governing law of the matrimonial property regime could be considered as the closest law.

In the field of international jurisdiction, the coordination between EU Regulations is intended to be ensured with exclusive jurisdiction by ancillary linked to succession proceedings or linked to matrimonial proceedings pending before the courts of other Member States. Although the ancillary jurisdiction of the proceedings on the matrimonial property regime with respect to maintenance claims is not foreseen, the possibility of accumulation of these claims is possible through a choice of court to the competent court to matrimonial matters.

2) The unitary treatment of the matrimonial property regime. The general rule is that only one law is applicable and only one court is competent to matrimonial property regimes, regardless of the location of the assets. The exceptions derived from the registry rules of the real estate situation and the effect to third parties are analysed.

3) The legal certainty and predictability. The general criterion is the immutability and stability of the matrimonial property regime, so that the connections are fixed at the beginning of married life and mobile conflict does not operate, as a rule. The changes allowed will always be without opposition from any spouse and safe from the rights of third parties. The commitment to legal certainty and predictability of the matrimonial property regime governing law prevails over the proximity current relationship of the spouses with another State law.

 

Related to applicable law, the following contents can be highlighted:

-The importance of choosing the governing law of the matrimonial property regime. The choice of law has undoubted advantages for the spouses to coordinate the law applicable to the matrimonial property regime with the competent courts and with the governing law of related issues related to divorce, maintenance and succession law. The choice of law is especially recommended if matrimonial property agreements are granted in case of spouses’ different nationalities and different habitual residence, since it avoids uncertainty in determining the law of the closest connection established in art. 26.1.c). Of particular importance is the question of form and consent in the choice of law, given the ambiguity of the Regulation on the need for this consent to be express.

-The interest in conclude matrimonial property agreements and, specially, the prenuptial agreements. Its initial validity requires checking the content of each agreement to verify which is the applicable law and which is included within the scope of the Regulation (EU) No 2016/1103. The enforceability of these agreements poses problems when new unforeseeable circumstances have appeared for the spouses, which will require an assessment of the effectiveness of the agreements in a global manner – not fragmented according to each agreement – to verify the minimum necessary protection of each spouse.

-The singularities of the scope of application of the governing matrimonial property regime law. The issues included in the governing law require prior consultation with said law to identify any specialty in the matrimonial property regime relations between the spouses or in relation to third parties. This has consequences related to special capacity rules to conclude matrimonial property agreements, limitations to dispose of certain assets, limitations for contracts between spouses or with respect to third parties or the relationship between the matrimonial property regimes and the civil liability of the spouses. Of particular importance is the regime of the family home, which is analysed from the perspective of the limitations for its disposal and from the perspective of the rules of assignment of use to one of the spouses.

-The balance between the protection of spouses and the protection of third parties. From art. 28 of the Regulation, derives the recommendation for the spouses to register their matrimonial property regime, whenever possible, in the registry of their residence and in the property registry of the real estate situation. The recommendation for third parties is to consult the matrimonial property regime in the registries of their residence and real estate. As an alternative, it is recommended to choose – as the governing law of the contract – the same law that governs the matrimonial property regime.

– The effects on the registries law. Although the registration of rights falls outside the scope of the Regulation, for the purposes of guaranteeing correct publicity in the registry of the matrimonial property regimes of foreign spouses, it would be advisable to eventually adapt the registry law of the Member States to the Regulation (EU) No 2016/1103. A solution consistent with the Regulation would be to allow the matrimonial property regime registry access when the first habitual residence of the couple is established in that State.

 

Related to jurisdiction, the following contents can be highlighted:

-The keys of the rules of jurisdiction. The rules of jurisdiction only regulate international jurisdiction, respecting the organization of jurisdiction among the “courts” within each State. It will be the procedural rules of the Member States that determine the type of intervening authority (judicial or notarial), as well as the territorial and functional jurisdiction.

The rules of jurisdiction are classified into two groups: 1) litigation with a marriage in force, referred to in the general forums of arts. 6 et seq.); 2) litigation in case of dissolution of the marriage, due to death or marital crisis. These are subject to two types of rules: if the link (spatial, temporal and material) with the divorce or succession court is fulfilled, this court has exclusive jurisdiction, in accordance with arts. 4 and 5; failing that, it goes back to the general forums of the Regulation.

Jurisdiction related to succession proceedings (based on art. 4) poses a problem of lack of proximity of the court with the surviving spouse, especially when the criterion of jurisdiction for the succession established by Regulation (EU) No 650/2012 has little connection with that State. This will be the case especially when the jurisdiction for succession is based on the location of an asset in that State (art. 10.2) or on the forum necessitatis (art. 11).

Jurisdiction related to matrimonial proceedings (based on art. 5) poses some problems such as the one derived from a lack of temporary fixation of the incidental nature. The problem is to determine how long this court has jurisdiction.

-The interest of the choice of court. The choice of court is especially useful to reinforce the choice of law. Submission may also be convenient, especially to the State of the celebration, for marriages that are at risk of not being recognized in any Member State by virtue of art. 9 (for example, same-sex marriages).

The inclusion of a submission in a prenuptial agreement or in a matrimonial property agreement does not avoid the uncertainty of the competent court. There is a clear preference for the concentration of the jurisdiction of arts. 4 and 5 apart from the pact of submission made between the spouses. In any case, the choice of court can be operative if the proceedings on the matrimonial issue has been raised before courts with the minimum connection referred to in art. 5.2.

Problems arise due to the dependence of the jurisdiction on the applicable law established in art. 22 of the Regulation, since it requires anticipating the determination of the law applicable to the matrimonial property regime in order to control international jurisdiction.

 

Related to recognition, the following contents can be highlighted:

-The delimitation between court decision and authentic instrument does not depend on the intervening authority – judicial or notarial –, but on the exercise of the jurisdictional function, which implies the exercise of a decision-making activity by the intervening authority. This allows notarial divorces to be included and notoriety acts of the matrimonial property regime to be excluded.

The recognition system follows the classic model of the European Regulations, taking as a reference the Regulation (EU) No 650/2012 on succession. Therefore, the need for exequatur to enforceability of court decisions is maintained.

The obligation to apply the grounds for refusal of recognition with respect to the fundamental rights recognised in the EU Charter and, in particular, in art. 21 thereof on the principle of non-discrimination. This supposes an express incorporation of the European public policy to the normative body of a Regulation. Specially, the prohibition of discrimination based on sexual orientation means the impossibility of using the public policy ground to deny recognition of a decision issued by the courts of another Member State relative to the matrimonial property regime of a marriage between spouses of the same sex.

 

The study merges the rigorous interpretation of EU rules with practical reality and includes case examples for each problem area. The book is completed with many references on comparative law, which show the different systems for dealing with matters of the matrimonial property regime applied in the Member States. It is, therefore, an essential reference book for judges, notaries, lawyers or any other professional who performs legal advice in matrimonial affairs.

 

On Tuesday, Mar 1, 2021, the Hamburg Max Planck Institute will host its 20th monthly virtual workshop Current Research in Private International Law at 14:00-15:30 CET. Geneviève Saumier (McGill University) will speak, in English, about the topic

Security for Costs and Access to Justice in Cross-Border Dispute Resolution

Several multilateral instruments prohibit, directly or indirectly, security for costs based solely on the foreign status of a plaintiff. Regional examples can be found in Europe and Latin America; two multilateral examples are the 1954 and the 1980 HCCH Conventions. The justification is typically based on anti-discrimination and access-to-justice arguments. The 2019 HCCH Judgments Convention has taken a slightly different approach following a lack of consensus among the negotiating states. Moreover, several states continue to impose security for costs on foreign plaintiffs. In this workshop, Geneviève Saumier will present the current results of comparative research on security for costs and seek to identify remaining barriers to its elimination.

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.

This memorial was contributed by Prof. Dr. Ulrich Magnus.

On 10 February 2022 Peter Mankowski passed away, entirely unexpected at the age of only 55. The European community of scholars of Private Law and in particular Private International Law lost one of its most brilliant and productive minds. He leaves behind the almost unbelievable number of about 1500 publications, not few of them counting 1000 and more pages. Even his annotations on court decisions were frequently longer and more intensely documented than many ordinary articles. And his footnotes! He truly used the entire legal materials (legislation, decisions, scholarly works and articles) accessible in Europe and he did not do it for ‘ornamenting’ his considerations but really delved into the sources and brought to the surface what was helpful for the solution of the concrete legal problem.

To this end, his education at the Johanneum, the renowned Hamburg Gelehrtenschule, laid the foundation with Greek and Latin. His study in at the law faculty in Hamburg, the two states exams there, a longer stay in London added to his abilities. Shortly after his habilitation at the University of Osnabrück with Prof. Dr. Christian von Bar he got his first chair: In 2001 he became professor for civil law, comparative law and private international and procedural law at the University of Hamburg. All he needed to become an outstanding scholar he brought with him: besides an excellent knowledge of law and procedure and the language skills the bright mind, the curiosity for new and complicated problems, the creativity and ability to solve them, his unbelievable spirit and endurance to work hard. And besides that, he was a wonderful colleague and friend, with wit and a very good sense of humour but also with great empathy if others faced serious problems. He himself had to undergo a heart-transplantation in 2012 and in 2014 a transplantation of a kidney which his mother sacrificed. I never heard him ever complain about his health problems. Not only in this respect he was incredibly brave and fearless. Peter leaves behind his parents. So many will miss him so much.

Many thanks Bruno Hardy, counsel at Liedekerke, for reconnecting me with a case I had seen in passing and then lost track off. Bruno also reports on the issues here; there is also a mainstream media report and a more specialised report.

On 18 January the Lithuanian Supreme Court held that the France-Lithuania BIT is no obstacle to Lithuania seizing the Lithuanian courts of a claim that Veolia and consorts unlawfully took over control of heating businesses in a dozen Lithuanian municipalities in 1993-2003, and excessively profited from same. The claim was initially formulated as a counterclaim in ongoing ICSID proceedings (note there are also ongoing commercial arbitration proceedings relating to the case under Stockholm Chamber of Commerce rules) and is now pursued in the courts in ordinary, using Article 7(2)’s locus damni gateway.

The SC first of all rejected Veolia’s claim that the case should at the least be stayed until the ICSID ruling has been issued. For the SC, CJEU Achmea (which declared dispute settlement via ISDS in intra-EU BITs incompatible with EU law) implies that the arbitration procedure under the BIT has now lapsed (and this ab initio, hence making the later entry into force of the EU Member States’ BIT termination agreement irrelevant) meaning Lithuania not merely may but indeed it must drop its claims in the ISDS procedure.

From what I understand, the SC did not hold on whether A7(2) BIa is a possible gateway, focusing instead on the fate of Lithuania’s involvement in the ISDS procedure. In a perhaps unexpected ruling, as Bruno reports, the Vilnius Regional Court subsequently found that it lacked international jurisdiction seeing as in its (prima facie unconvincing) view the Lithuanian claim falls under acta iure imperii, hence cancelling out Brussels Ia, instead making the claim subject to residual Lithuanian private international law rules. These seem to direct the suit to France, the domicile of the defendant.

This is where there is a final twist in the tail. What I assume to be the reason for the court to find acta iure imperii (that the claim’s origin and DNA are actions taken by a state in its sovereign capacity) may well result in the French court refusing to entertain the claim as well (potentially leading to the need for a Lithuanian forum necessitatis). Indeed as Bruno points out, under the French SC Guatemala rule, French courts do not rule on cases necessarily involving the application of foreign public law (this echoes some of the issues in Skatteforvaltningen, currently under appeal). The 1975 Institute of International Law’s Resolution on same comes to mind.

The judgment shows very clearly the urgency for a proper debate on the relationship between EU law, the CJEU, ISDS and other forms of international dispute settlement. I fear the rather unnuanced CJEU statements in cases like Komstroy do little to resolve many of the underlying issues.

Geert.

In Soriano v Forensic News LLC & Ors [2021] EWCA Civ 1952 the Court of Appeal end of December allowed the claimant’s cross-appeal on the territorial reach of the GDPR. I reported the decision at the time but had not yet gotten round to post on it. I reviewed the High Court’s judgment here and readers may want to refer to that post to help them appreciate the issues. Like in my review of the first instance judgment I focus here on the GDPR’s jurisdictional gateway ([75] ff), not the libel issue.

Claimant’s case on A3 (2)(a) GDPR is set out as arguing that Defendants, to the extent that they are data controllers, offer services to readers in the UK irrespective of payment. As for A3.2(b), it is contended that the website places cookies on readers’ devices and processes their personal data using Facebook and Google analytics for the purpose of targeting advertisements, with Facebook Ireland Ltd and Google Ireland Ltd operating as the registered joint data controller. Further, it is submitted that Defendants were collecting and obtaining data about the Claimant and were monitoring his behaviour within the UK and the EU with a view to making publishing decisions.

CJEU authority discussed, on the meaning of ‘establishment’, is Weltimmo, Google Spain and Verein fur Konsumerenteninformation. At [78] ff Warby LJ relies to my taste somewhat excessively on the European Data Protection Board’s Guidelines 3/2018 on the Territorial Scope of the GDPR, holding [97] that defendants’ offer and acceptance of subscriptions in local currencies (Sterling cq Euros) is a “real and effective” activity that is “oriented” towards the UK and EU – that the effort only yielded 6 UK and EU subscriptions in total is irrelevant: defendants did more than merely making their journalism accessible over the world wide web. 

The result is that jurisdiction in E&W under the GDPR gateway is upheld – as is therefore, the potential which I predicted for extensive splintering of private GDPR enforcement, in contrast with the EU’s stated intent to have one-stop shop public GDPR enforcement.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.9.2.5, para 2.258 ff.

Service out, 'establishment' and 'services', territorial reach of the #GDPR https://t.co/iyVsTQcUvo
For review of the High Court judgment see https://t.co/KBZ4s4VHVz https://t.co/cLi12uuFk7

— Geert Van Calster (@GAVClaw) December 21, 2021

Rhona Schuz (Bar-Ilan University) has published an article Comparative Law and the Work of The Hague Conference on Private International Law in relation to Family Law in Ius Comparatum 2022. Ius Comparatum is an open access research series published under the auspices of the International Academy of Comparative Law (IACL).

The paper is a written version of the inaugural lecture given by Rhona Schuz during the first day of the Online Week on Comparative Family Law Methodology organized by IACL and Bucerius Law School back in October 2021. The lecture may be watched here.

The abstract reads as follows:

This lecture highlights the importance of comparative law in the work of the Hague Conference on Private International Law in the field of family law, both in the process of drafting Conventions and in monitoring the implementation of Conventions after they have come into force. Examples are given of the ways in which different types of comparative law studies have been used to inform the work of preparing Conventions and the various comparative law tools which have been adopted in post-Convention efforts to promote uniform implementation. The significance of the post-Convention comparative work is underlined by a brief discussion of the importance of uniform application of Conventions and the real risks of lack of uniformity. Finally, attention is drawn to a few methodological issues which arise in connection with the comparative law work discussed.

A new issue of  Commentaries on Private International Law, (Vol 4. Issue 1), the newsletter of the American Society of International Law (ASIL) Private International Law Interest Group (PILIG) has been released.

The primary purpose of the newsletter is to communicate new developments on PIL rather than provide substantive analysis, to provide specific and concise raw information that readers can then use in their daily work. These new developments on PIL may include information on new laws, rules and regulations; new judicial and arbitral decisions; new treaties and conventions; new scholarly work; new conferences; proposed new pieces of legislation; and the like.

Commentaries includes sections dealing with regional issues, edited by specialists on the field: Africa, edited by Lamine Balde & Sedat Sirmen; Asia, by Yao-Ming Hsu & Charles Mak; the Americas by Juan Pablo Gomez (Central and South America and Mexico), and Carrie Shu Shang (North America); Europe, by Patricia Snell, Charles Mak & Christos Liakis; and Oceania, by Jeanne Huang.

This issue of Commentaries covers more countries and includes recent developments in PIL in each area of the world. Each regional section consists of a particular chapter devoted to new scholarly work, which is particularly important for those areas of the world. Those are not necessarily linked to a specific region or country in the world but are truly transnational or global. 

Commentaries would not have been possible without Cristian Gimenez Corte (Universidad Nacional del Litoral, Santa Fe, Argentina), Jeanne Huang (University of Sydney Law School), Sedat Sirmen (Ankara University Faculty of Law), Yao-Ming Hsu (National Cheng- Chi University), Patricia Snell (Covington & Burling LLP), Charles Mak (University of Glasgow), Juan Pablo Gómez- Moreno (Cartagena Refinery), Lamine Balde (Shanghai Jiao Tong University), Christos Liakis (National & Kapodistrian University of Athens), and is coordinated by PILIG Co-Chairs Rekha Rangachari (New York International Arbitration Center) and Carrie Shu Shang (California State Polytechnic University, Pomona). In addition, PILIG is constantly looking forward to your suggestions to improve our services to our members.

In Kwok & Ors v UBS AG (London Branch) [2022] EWHC 245 (Comm) Cockerill J holds on forum damni (Article 5(3) for purely economic loss, and branch jurisdiction (Article 5(5) for the English courts under the Lugano Convention. Defendant is Switserland based and the proceedings clearly were initiated prior to Brexit.

On A5(3) locus damni, all parties and the judge agree that CJEU authority is not easy to disentangle and does not unequivocally point into one direction: see eg [84] ‘the authorities are not entirely pellucid on what they do say.’

The bank, defending, argues ia that a rule of thumb under (limited) English authority is that in a case of negligent misstatement the damage will occur where the misstatement is received and relied upon. Cockerill J distinguishes the authority from current case and also points out [82] that all cases concerned predate the CJEU authority particularly in Lober and Vereniging van Effectenbezitters, and that ‘the tide of authority is against the proposition that loss is suffered wherever a claimant ultimately feels it’ [85]. Having summarised the lines of interpretation following from CJEU authority, she concludes [113]

Once the focus is on actual manifestation (of damage, GAVC) the most natural analysis is to view the damage as occurring where and when the Acquired Shares were liquidated.

here, London, where the shares claimants had invested in were held and where the funds they had invested were depleted; the loss crystallises, manifests, becomes certain and irreversible with the sale of shares and that loss of claimants’ Monetary Contribution which had merged into the shares  [115].

The account, where the damage was first “registered” or “recorded” was in London with the defendant itself (as in CJEU Kronhofer) [117]. The Universal Music-instructed ‘special circumstances’ cross-check also points to London: [118]

London was the place at which it had been agreed by all parties that the Acquired Shares would be held, and all of the contractual documents UBS entered into (albeit for a transaction at one remove from the Claimants) were to be in English and governed by English law. It was therefore entirely predictable and foreseeable from November 2014 that the parties might sue or be sued in London in relation to the Investment and dealings with the Acquired Shares.

Branch jurisdiction under Article 5(5) is dealt with obiter [120] ff. Cockerill J holds [138] that was is needed inter alia per CJEU flyLAL is ‘sufficient nexus’, sufficiently significant connection does not require involvement in the tortious acts [140]. This is supported, Cockerill J holds [148] by the fact that UBS London’s thoughts and actions will be relevant to the trial. There will be a need to investigate UBS London’s conduct and intentions both (i) at the time of the representations and advice given by UBS and (ii) late events and the loss resulting therefrom.

A good judgment to assist with the economic loss jigsaw.

Geert,

Tort jurisdiction (purely economic loss) and branch jurisdiction, A5(3) and (5) #Lugano Convention, both upheld

Kwok & Ors v UBS AG (London Branch) [2022] EWHC 245 (Comm) https://t.co/ev68gReQzx

— Geert Van Calster (@GAVClaw) February 9, 2022