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Guest Blog: Rethinking Private International Law Education – Insights from a Global Webinar

Written by: Corinna Chen (CAPLUS research intern, 2024, Sydney Law School, Australia)

Private international law (PIL) plays a critical role in shaping how future legal professionals and citizens engage with a complex, interconnected world. On 23 September 2024, the University of Sydney Law School hosted a webinar event in collaboration with the American Society of International Law (ASIL), Professor Xandra Kramer from Erasmus University Rotterdam and Utrecht University, and Professor Laura Carballo from the University of Vigo.

The webinar offered fresh perspectives on the evolving landscape of PIL education around the globe. Moderated by Associate Professor Jeanne Huang, co-director of the Centre for Asian and Pacific Law (CAPLUS) at Sydney Law School, the event featured insights from leading academics across Europe, Asia, and Africa. It also celebrated the launch of an exciting new book titled Research Methods in Private International Law: A Handbook on Regulation, Research and Teaching, which was co-edited by Professor Xandra Kramer and Professor Laura Carballo.

Professor Xandra Kramer began with a brief introduction to the motivations and themes explored in the book. Traditionally, research in PIL has been largely concentrated on the qualification and interactions of private and public international laws as well as comparative laws. However, Professor Kramer explained that this book seeks to broaden these horizons by integrating emerging themes such as empirical legal studies, law and economics, and feminism. The book consists of three main sections: the first part concerns the regulation of private international law; the second part explores different research methodologies; the third part discusses how the future of PIL can be shaped through wider educational aspects, and served as the focus of the seminar discussion.

Professor Laura Carballo further elaborated on the importance of viewing PIL not only as a regulatory tool but a framework for global governance, embracing the contributions of colonialist, feminist and various other emerging perspectives from around the world. This broader view aligns with the changing demands of legal education, where students are increasingly required to engage with both local and international issues. The book’s approach signals a shift towards making PIL more inclusive and responsive to contemporary challenges.

The first speaker, Professor Veronica Ruiz Abou-Nigm from the University of Edinburgh, began by stressing that PIL should not only be limited to legal professionals or students, but also plays a crucial role in shaping the next generation of citizens in society. She identified three key features that she considers crucial for understanding and teaching PIL: intersystemic, heterarchical and pluralistic thinking.

Professor Ruiz Abou-Nigm also argued that educators must cultivate intercultural competence, awareness and dialogue, all of which are essential in helping students to appreciate diverse cultural contexts and navigate different legal systems to solve real-world problems.

Next, Associate Professor Sai Ramani Garimella from South Asia University discussed how colonial legacies continue to shape PIL in South Asia. Interestingly, Associate Professor Garimella noted that although a significant amount of scholarship on international law had emerged in India over the past 50 years, the vast majority of such academia still viewed the private international law discipline as falling under the broad umbrella of domestic law.

Using the 1984 Bhopal gas tragedy in India as a case study, she explained how PIL mechanisms were underutilized, reflecting a reliance on outdated frameworks. Associate Professor Garimella emphasized the need for a shift towards localised legislation and jurisprudence that reflects regional realities, enabling PIL to serve justice more effectively in postcolonial contexts.

Echoing this sentiment, Dr Chukwuma Okoli from the University of Birmingham highlighted how PIL remains underdeveloped in many African countries including Nigeria. He expressed concern over the lack of emphasis on PIL in Nigerian law schools as well as the scarcity of active scholarship in the field, significantly hindering students’ ability to engage with cross-border legal issues. Dr Okoli also suggested creating more local moot court competitions focused on PIL to encourage student interest and practical learning in Africa.

Professor Aukje van Hoek from the University of Amsterdam highlighted the EU context of teaching PIL in the Netherlands. She advocates an approach that stimulates multilevel and interjurisdictional thinking. This approach equips students to work across legal systems, though Professor van Hoek cautioned against overloading students with too much content. She recommended focusing on critical attitudes and practical skills over rote learning, enabling students to construct creative arguments from different perspectives, rather than being confined to what is the ‘correct’ law.

During the panel discussion which ensued, the speakers grappled with the challenges of designing effective curricula and assessment regimes for PIL. One issue which educators often grapple with was whether to cover a wide range of topics or focus on specific areas such as commercial or family law.

An insightful discussion also took place regarding the traditional teaching sequence for subtopics in the PIL course and whether they vary across university classrooms. For example, whether the subject should start from jurisdiction, then choice of law, and finally judgments. This is the typical way for courts addressing PIL cases. However, due to the overlapping of jurisdiction and judgments, it is not unusual that these two subtopics are taught together.

Moreover, the webinar underscored the need to move beyond Eurocentric and Anglocentric frameworks in PIL education. Professor Ruiz Abou-Nigm called for legal systems in the Global North to engage meaningfully with traditions from the Global South. Similarly, Associate Professor Garimella commented that including perspectives from South Asia and Africa enriches global legal discourse, promoting more inclusive frameworks.

Dr Okoli further stressed that comparative law can foster intellectual independence, encouraging African legal professionals to develop context-specific solutions rather than relying on borrowed precedents. The speakers unanimously agreed that collaboration across regions is essential for building a more dynamic and inclusive field.

The webinar session concluded with reflections on the future of PIL education, towards which Professor van Hoek harbours a simultaneously optimistic and pessimistic view. The speakers emphasized that teaching PIL is not just about technical expertise — it is about fostering openness, intercultural competence, and critical inquiry. By introducing students to critical theories and promoting cross-cultural dialogue, educators can better prepare them for the demands of an increasingly interconnected world.

A recording of the session can be found at https://www.youtube.com/watch?v=F9Vyd3xoXIs.

 

 

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

 

S. Deuring: Gender and International Private Law – Comments on the New Article 7a of the German Introductory Act to the Civil Code

Although the attribution of a specific gender to a person has become less important in the German legal order, it can still be relevant. Thus, the rules of descent set out in Sections 1591 et seqq. of the Civil Code provide that a mother is a woman and a father a man. The legislature has therefore done well to address private international law issues of gender attribution in a new specific gender conflict rule, Art. 7a of the Introductory Act to the Civil Code. In doing so, it primarily opted for a nationality-based approach: According to Art. 7a para. 1, a person’s birth gender is determined by the law of the state of whom the person is a citizen. This is remarkable because, in other areas, conflict rules increasingly hold a person’s habitual residence determinative. At the same time, Art. 7a para. 2 provides that a person who habitually resides in Germany can opt for the application of German law to the change of their gender or first name later in life. The following article will outline and discuss these legislative decisions and other questions regarding the scope of Art. 7a.

 

P. Wittum: No conflict of laws fit for the digital age? Law applicable to contracts for the supply of digital content and digital services

This article shows that Directive (EU) 2019/770 on contracts for digital content and services does not harmonise perfectly with the existing EU conflict of laws. Regarding consumer contracts, Art. 6(1) of the Rome I Regulation convinces through its contract type neutrality; however, the service exception of para. 4(a) does not fit to digital products. Correctly viewed, the Geoblocking Regulation does not affect the directing criterion of para. 1(b). If Member States made use of the option to extend the consumer concept under Directive (EU) 2019/770, conflict of laws would in most cases defeat such an implementation. On the other hand, the trader’s recourse pursuant to Art. 20 of the Directive (EU) 2019/770 is defective. The chain of recourse (implementation variant 1) can be broken if the CISG or a third-country legal system apply. In comparison, the direct claim (implementation variant 2) is superior as the loss cannot be taken by someone halfway up the chain of recourse. The eCommerce Directive, which would also render the direct claim meaningless, is not applicable. If both implementation variants collide, the redress system breaks down entirely. In terms of legal policy, the trader’s recourse should be abolished.

 

P. Vollrath: Protection of EU Member States’ Treaties with Third Countries in European Private International Law

In a decision from 2020, the Supreme Court of the United Kingdom authorised the enforcement of an ICSID-award in the United Kingdom. This arbitral award being incompatible with primary European Union law, the Supreme Court applied Art. 351(1) TFEU to the ICSID Convention, a multilateral treaty signed by both member states and non-member states. Although all the relevant facts of the case were located inside the EU, the Supreme Court held that “rights” of non-member states were affected and therefore a derogation from primary law was permitted. The Supreme Court reached this conclusion characterising the obligations under the ICSID Convention as obligations erga omnes partes. Following an infringement procedure initiated by the European Commission, the CJEU rejected this reasoning in its judgment of 14 March 2024. For the first time, the CJEU affirms its authority to interpret (at least certain aspects of) member states’ international agreements with non-member states also in proceedings under Art. 267 TFEU. The case note proposes criteria in order to determine whether such agreements in the field of private international law fall within the scope of Art. 351(1) TFEU and analyses the decision’s consequences for the court’s TNT Express Nederland case law.

 

C. Rüsing: International jurisdiction and applicable law for holiday letting agreements

According to Art. 24(1) of the Brussels Ibis Regulation, in proceedings which have as their object tenancies of immovable property, the courts of the Member State in which the property is situated have exclusive jurisdiction. In Roompot Service (C-497/22), the CJEU held that this provision does not apply in a case, in which a tourism professional lets holiday accommodation situated in a holiday park and offers other services in return for a lump sum. The court based its reasoning on a very broad understanding of the concept of “complex contracts” and on a case-by-case assessment leading to considerable legal uncertainty. The article criticises this and proposes an alternative justification that would generally exempt contracts with tourism professionals from exclusive jurisdiction.

 

P. Huber/M. Boussihmad: Recognition of a Member State decision to establish a liability limitation fund under maritime law and its effects on obligation claims

In this case, the Bundesgerichtshof dealt with the procedural effects of a Member State decision to establish a maritime liability limitation fund. In the past, the CJEU had already classified such decisions as recognisable under the Brussels?I Regulation. The Bundesgerichtshof now drew the consequences and strictly adhered to the extension of the effect to other Member States in accordance with Art. 36(1) Brussels I Regulation. In addition, the Bundesgerichtshof commented on disputed questions of private international law concerning the limitation of liability under maritime law.

 

J. O. Flindt: Lugano Convention VS national procedural law: How to classify a cause of action between a spouse and a third party

The international jurisdiction of courts is being increasingly harmonised within the European Union and also among the EFTA states. However, the relevant provisions are scattered across various legal acts. Thus, delimitation problems arise. To delineate the scope of the application of the various regulations, a precise qualification of the legal dispute is required. The Higher Regional Court of Karlsruhe had to decide on a claim for restitution under property law, which a spouse asserted against a third party by exercising a special right of asserting the ineffectiveness of the other spouses’ disposition (Section 1368 of the German Civil Code). The question arose as to whether this was a general civil matter subject to the Lugano Convention or whether it was a matrimonial property law matter for which there was an exception under Art. 1 para. 2 lit. a) var. 5 Lugano Convention. The Higher Regional Court of Karlsruhe makes a distinction according to whether the matrimonial property regime aspect is the main issue of the dispute or merely a preliminary issue. The court concludes that it is only a preliminary issue. The legal dispute should therefore be categorised under property law, which means that the Lugano Convention applies. The author retraces this decision and shows that the question of delimitation is also relevant to the Brussels I Regulation and the EU Regulation on Matrimonial Property. He comes to another solution and argues in favour of a differentiated approach.

 

F. Berner: Restitution of Wrongs in the Conflict of Laws – a critical evaluation of OLG München, 23.3.2023 – 29 U 3365/17

The classification of restitutionary claims within the Conflict of Laws remains difficult. In particular, the classification of the German “Eingriffskondiktion” is unclear. The Higher Regional Court in Munich (Oberlandesgericht München) held that under both the European and the national jurisdictional regimes, “Eingriffskondiktion” were to be understood as tort claims. Under the Rome II Regulation, however, the court classified such claims not as tort claims but as claims falling under Art. 10 (“unjust enrichment”). The case note argues that the court was correct in its classification under European Conflict of Laws but wrong in its classification regarding the German rules of jurisdiction. Furthermore, the case note challenges the court’s assumption that German national law governs the question of whether one of the defendants had sufficiently contested the court’s jurisdiction.

 

G. Cuniberti: French Supreme Court Excludes Insolvency Proceedings from Scope of Nationality Based Jurisdiction (Art. 14, C. civ.)

In a judgement of 12 June 2024, the French Supreme Court limited the material scope of nationality-based jurisdiction (Article 14 of the Civil Code) by excluding from its scope insolvency proceedings. The judgment is remarkable as it is the first time in years that the court limits the operation of this exorbitant rule of jurisdiction. The reasons given by the court, however, are substance specific, which makes it unlikely that the judgment announces a more far reaching reconsideration of the rule, in particular on the ground of fairness to foreigners.

 

M. Klein: Spanish default interest between insurance law and procedure

In Spanish insurance law, there is a provision (Art. 20 para. 4 subpara. 1 LCS) that mandates courts to sentence insurance company defendants to pay default interest without petition by the claimant. The Spanish law is intended to penalise insurance companies for their default. As the provision relates to procedural as well as to substantive law, the question of characterisation arises. This paper argues to characterise it as substantive (insurance) law. Furthermore, it discusses criteria that the CJEU has recently used to differentiate between procedural and substantive law. Finally, this paper suggests liberal construction of the Rome Regulations with respect to Art. 20 para. 4 subpara. 1 LCS and similar provisions that relate to both procedural and substantive law.

Written by Jos Hoevenaars (Erasmus University Rotterdam) & Eduardo Silva de Freitas (Erasmus University Rotterdam), members of the Vici project Affordable Access to Justice, financed by the Dutch Research Council (NWO), www.euciviljustice.eu.

 

On 9 October, the District Court of Amsterdam issued its final judgment in a collective action against energy supplier Vattenfall. This judgment was eagerly awaited as it is the very first judgment in a mass damage claim under the Dutch WAMCA procedure. The new framework for collective redress, which became applicable on 1 January 2020 (see also our earlier blogpost), has received a lot of attention in international scholarship and by European legislators and policy makers due to its many innovations and making it easier for consumers and small businesses to litigate against large companies. The most notable change in the Dutch act compared to the old collective action regime is the possibility to request an award for damages, making such proceedings attractive for commercial litigation funders. A recent report commissioned by the Dutch Ministry of Justice and Security (published in an English book here) found that most collective actions seeking damages brought under the WAMCA have an international dimension, and that all of these claims for damages are brought with the help of third party litigation funding (TPLF).

Since this judgment is the first of its kind under the Dutch WAMCA, with a claim value of 400 million euros, it has gained a lot of (media) attention. This blogpost provides an update on this most recent judgment and discusses its impact on the current mass claims landscape and TPLF in the Netherlands.

 The Case

 The claim of Stichting NUON Claim, the claim foundation (‘the foundation’) established to represent a group of SMEs who are or have been clients of energy company Vattenfall, relates to alleged excessive energy costs imposed on specific customers. The foundation alleged that energy supplier NUON, which has since been acquired by Vattenfall, illegitimately charged a compensation for electrical capacity to its business customers and that no actual service or product was provided in exchange for this so-called kW charge. Furthermore, many other similar customers did not have to pay the kW charge. The foundation alleged that this illegitimate charge resulted in bills that were on average 80% higher than those of competing energy suppliers, in some cases resulting in tens of thousands of euros in excessive annual fees.

In short, the main question in this case is whether Vattenfall (formerly NUON) was allowed to charge business customers a fee based on contracted capacity as an electricity supplier. Vattenfall had charged these costs to business customers with a ‘small bulk consumer connection’ (more than 3 × 80 Ampère) on the electricity grid since the liberalisation of the Dutch electricity market in 2002. These included medium-sized enterprises, small enterprises and non-profit institutions. According to the foundation, Vattenfall was not allowed to charge these costs because there was no service or product in return for the kilowatt (kW) fee charged. The foundation therefore initiated collective proceedings against Vattenfall. The foundation based its claim on Article 6:194 Dutch Civil Code (DCC), which contains a prohibition against acquisition fraud within Dutch private law.

The WAMCA and litigation finance

A first judgment in a mass damage case has been eagerly awaited as it could provide for a pivotal moment in which claimants would be awarded a multimillion euro claim and the commercial funder would reap the benefits of its investment. The WAMCA has sparked continuous debate due to the regime’s perceived claimant-friendly design, its attractiveness for international commercial litigation funders and its alleged risk of fostering an ‘American-style’ claim culture. The opt-out system, few restrictions on third-party funding, and the supposed risk of litigation abuse were the target of criticism by, most notably, the US Chamber of Commerce (see report here). This criticism was met with calls for a more nuanced approach (see earlier blogpost here) and the fears of fostering a claim culture have been dampened by the modest numbers of cases that have been brought under the WAMCA so far.

Among other discussions, the WAMCA has especially gotten attention due to the role played by commercial third party funders. (See our discussion on third party litigation funding and the WAMCA in this earlier blogpost.) In the case against Vattenfall too, there was some debate on the nature of the financing agreement between the claim foundation and international funder Bench Walk Guernsey PCC LTD. In an interim decision rendered in October 2023, the court reviewed such an agreement, which outlined the conditions under which the funder would receive a portion of any proceeds from the case. This included paying for legal costs and taking a share of any damages awarded to the claim foundation. It also detailed situations where additional funding might have been required and the rights of the claim foundation to manage the litigation and settlement discussions?.

The agreement also outlined the treatment of the litigation funder’s fees for different groups of claimants. The claim foundation stated that it would withhold 25% of the compensation from the class members, but in cases where the litigation funder’s agreed percentage (8-12%) was lower, it would not retain the difference. This meant, for example, that in case only 12% was due to the litigation funder, the additional 13% would not have been kept by the claim foundation. This 25% withholding would have only been relevant if the claim foundation could not claim compensation for all class members, limiting its representation to a smaller group. The court concluded that the explanation provided by the claim foundation on the reasonableness of the fees was sufficient. It emphasized that the uncertainty about the final amount of fees was acceptable because it depended on factors like the duration of the proceedings.

The Judgment

In its judgment the District Court of Amsterdam dismisses all claims of Stichting NUON-claim against Vattenfall. It rejects the foundation’s claim that Vattenfall concealed essential information about the kW compensation, since the compensation was easy to calculate based on Vattenfall’s offer. Furthermore, the explanation, which was included in the offer and the energy bills, made the price structure clear. According to the court, the customers were therefore not misled. Vattenfall also made it clear that the grid operator charges an amount for the transport of electricity and that this is not included in the price that Vattenfall charges these customers.

The foundation also stated that Vattenfall abused the inaction of some of its customers after a new annual offer. The court ruled that the kW customers in the liberalised market had the choice of which energy supplier they purchased energy from. They were therefore free to negotiate the contract terms and to switch to another supplier. In this situation, a kW customer cannot complain that they themselves did not do the comparative research, which other customers did do. Vattenfall has not exceeded any other standard of care and there is also no question of undue payment of the kW compensation.

The Amsterdam Court held that businesses ought to have exercised greater caution. It is reasonable to expect that ‘average, observant businesses’ will familiarize themselves with the energy prices on offer and will take the initiative to understand the information provided by suppliers. Additionally, the fact that a free market has been in place since 2002 implies that Vattenfall had no obligation whatsoever to inform its business customers about the existence of other customers with better contract terms and that contracts without the kW charge would probably be cheaper. The customers themselves were responsible for their choice of electricity supplier. The court also finds that it is incorrect to state that no product or service is provided in return for the kW fee. Electricity is provided, and including general cost components, such as personnel costs, in a tariff structure is permissible.

 The Impact

For those expecting this judgment to be the very first case in which a multimillion-euro damage claim would be awarded, and thus opening the door to many more mass damage claims, the result may be somewhat of an anticlimax. Since the claimants have not been successful and no damages have been awarded, the case does not provide much to go on for funders, mass claim lawyers and others following these developments with interest. At the same time, the claim foundation lost the case on substantive grounds, and nothing in the decision suggests an impairment in the WAMCA’s ability to provide access to justice for victims of mass harms.

From our perspective, there are two points that could be worthy of praise from a procedural point of view. The first is that, even after deeming 92% of the claims unfounded under Article 6:194 DCC, the court still refused Vattenfall’s claim that the remaining 8% would be too small of group to justify a ruling in a collective action, prioritizing the uniformity of the defendant’s conduct instead. This favours procedural expediency and guarantees that a minority of class members wouldn’t suffer from an eventual dismissing of the claim against the rest.

The second point is that the court took the perspective of the average user to rule on the sufficiency of the information provided by Vattenfall. This favours the groupability of class members in an abstract fashion, in contrast to the tendency other courts have shown to excessively scrutinize the similarity of the class members’ situations to consider them a group with acceptably similar claims. In a ruling on EU consumer law earlier this year, the CJEU favoured this approach for collective actions in such area (see Case C-450/22 Caixabank).

That said, this judgment shows that the supposed claimant-friendly design of the WAMCA does not guarantee success and may come as a disappointment to claimants and funders alike. Notably as well is the fact that this case took about 2,5 years from summons to judgement, which is a relatively short time for complex class action cases, as illustrated by the timelines of other cases that were filed well before this case and that have still some ways to go before a judgment can be expected.

The question remains how funders will look at this result and if it has any impact on their willingness to keep funding Dutch class actions. Given the outcome of this case, with a negative result for the claimants and a dismissal of all claims on substantive grounds, it seems both funders and ‘WAMCA-watchers’ will have to wait a bit longer for that first pivotal judgment.

On 8 November 2024 Gunnar Bramstång will publicly defend his doctoral thesis on economic sanctions in private international law at Lund University in Sweden. The thesis, written in Swedish, is titled Ekonomiska sanktioner i svensk internationell privat– och processrätt (Economic Sanctions in Swedish Private International Law) and is available in its entirety here. The English abstract […]

The latest issue of the Dutch Journal on Private International Law (NIPR) has been published.

NIPR 2024 issue 2

 

EDITORIAL

 

M.H. ten Wolde / p. 239

 

Article

C.G. van der Plas, A.F. Veldhuis, B.H.B. Verheul, Automatische erkenning en tenuitvoerlegging van vonnissen in het Europa van nu: de noodzaak van een nieuwe blik op wederzijds vertrouwen na J/H Limited / p. 241-267

Abstract

This article explores the concept of mutual trust in the context of the recognition and enforcement of judgments under Brussel Ibis. Backslidings in the rule of law in Member States such as Hungary and Poland have cast doubts on the reliability of mutual trust in judicial cooperation. The Court of Justice of the European Union (CJEU) has further complicated the issue of mutual trust in its ruling in J/H Limited. The CJEU held that judgments from third countries, that have been or could have been capable of being subject to an inquiry in adversarial proceedings in a Member State, result in a ‘judgment’ within the meaning of Article 2a Brussels Ibis.

This article critically assesses whether the concept of mutual trust justifies the (indirect) automatic recognition and enforcement of third-country judgments under Brussels Ibis. It examines the content of the principle of mutual trust and argues that – although mutual trust is of fundamental importance for European integration – mutual trust must be balanced with adequate safeguards to protect fundamental rights in accordance with the jurisprudence of the European Court of Human Rights. While the public policy exception of Article 45 of Brussels Ibis is generally scrutinized for its effectiveness in addressing human rights violations, the analysis reveals that the current safeguards might not always be efficient in the context of third-country judgments under Brussels Ibis. By re-evaluating the principle of mutual trust in the context of third-country judgments, the article underscores the necessity of a more nuanced approach to mutual trust.

 

Case law

M.H. ten Wolde, Het forum delicti en de aankoop van een van sjoemelsoftware voorzien voertuig. Nadere uitleg van het Hof van Justitie EU. HvJ EU 22 februari 2024, C-81/23, ECLI:EU:C:2024:165, NIPR 2024-515 (MA tegen FCA Italy Spa, FPT Industrial SpA) / p. 269-274

Abstract

In this judgment on Article 7(2) Brussels Ia Regulation (No. 1215/2012), the ECJ clarifies its previous judgment of 9 July 2020, C-343/19 (VKI/Volkswagen). In that judgment, the Court had ruled that where a manufacturer in a Member State has unlawfully equipped its vehicles with software that manipulates data relating to exhaust gas emissions before those vehicles are purchased from a third party in another Member State, the place where the damage occurs (the ) is in that latter Member State. Whereas in the VKI/Volkswagen case, purchase and delivery took place in the same Member State (Austria), in the present case, the purchase took place in Germany but the vehicle was actually delivered in Austria where the purchaser had made normal use thereof. This prompted the Oberster Gerichtshof in Austria to refer a preliminary question to the ECJ as to what should count as the place of purchase in these particular circumstances: the place where the contract of sale for the vehicle was concluded, the place where the vehicle was handed over to the final purchaser or the place where it was used in accordance with its destination? According to the ECJ, the place where the manipulated vehicle was actually handed over to the final purchaser is the only usable criterion and that place should therefore be regarded as the place of purchase (and the Erfolgsort).

The following information has been kindly provided by Wilson Lui, PhD Candidate, Melbourne Law School; Part-time Lecturer, Faculty of Law, University of Hong Kong. 

 

The latest issue of the Journal is available online and features the following papers delivered at the ILA-Korea’s 60th Anniversary Conference on Private International Law held in Seoul, Korea on 11 June 2024:

 

Preface to the Special Issue: ILA-Korea’s 60th Anniversary Conference on Private International Law

Seokwoo Lee

 

Harmonization of Jurisdictional and/or Choice-of-Law Rules: Introduction to the Asian Principles of Private International Law (APPIL) Project

Naoshi Takasugi

This article aims to introduce the Asian Principles of Private International Law (APPIL) Project, which endeavors to facilitate the exchange of ideas on Private International Law (PIL) among scholars and to harmonize PIL within the Asian region. The APPIL Project emerged from the longstanding scholarly exchanges between Korea and Japan, and Korean scholars and Korean law have significantly contributed to the APPIL Project discussions. Given the considerable diversity within Asia, the need for harmonization of PIL in this region is even more pressing than in Europe or the Americas. If successful, the harmonization experiment in Asia could serve as a model for the rest of the world.

 

Challenges of Private International Law in Asia

Yuko Nishitani

The presence of Asia in the global arena has become notable due to its thriving economy. Arguably, it is time to consider how private international law (or conflict of laws) should develop in Asia and what kind of opportunity it can engender, considering that private international law has the potential to promote economic and legal cooperation without unifying substantive law. First, this paper considers the role of the Hague Conference on Private International Law (HCCH) and the varying significance of its conventions on judicial assistance, litigation, and child protection in the pursuit of private international law unification in Asia. Second, this study elaborates and supports the use of non-binding instruments (or soft law) – model laws, principles, legislative guides, etc. – as a fallback method of harmonizing private international law. Third, this paper examines the increasing extraterritoriality of regulatory norms of the US, the EU, China, and other countries in the global market. This will clarify the problems of conflicting, overlapping regulations and allow scrutiny of potential pathways to restrict the exercise of the states’ prescriptive jurisdiction. Some future perspectives will conclude this study.

 

“Asian” Principles for the Recognition and Enforcement of Foreign Judgments? Singapore as a Case Study

Adeline Chong

This paper considers if there can be said to be an “Asian” body of principles for the recognition and enforcement of foreign judgments. Tapping on the results of a research project which was conducted from 2016 to 2020, it is submitted that the answer to this query is in the negative. However, it is suggested that what marks out the “Asian” approach to private international law is the willingness of Asian countries to look outwards for reform and development and to balance the adoption of international norms against important local norms and objectives. Singapore’s approach to the recognition and enforcement is discussed as a case study of this Asian approach.

 

Asian Private International Law and Hong Kong

Wilson Lui

This article explores the current opportunities and challenges in the development of Asian private international law. Reflecting on the experience of the Hague Conference on Private International Law and the Studies in Private International Law – Asia series published by Hart Publishing, this article argues that Asian private international law is currently thriving. However, there remain four practical difficulties in the further development of Asian private international law and the harmonisation of Asian states’ practices on cross-border issues. This article then considers potential contributions from Hong Kong in the development of Asian private international law, both as a facilitator for dialogues and collaborations among common law and civil law systems, and as an exemplar of interregional cooperation through developing and refining private international law frameworks within the Greater Bay Area and the Greater China.

 

ILA Guidelines on Intellectual Property and Private International Law

Dai Yokomizo

This paper aims to analyze the International Law Association’s Guidelines on Intellectual Property and Private International Law (hereafter referred to as the “Kyoto Guidelines”) and to examine their significance and future challenges. As the number of cross-border intellectual property (IP) disputes has increased since the 1990’s, issues of conflict of laws (private international law) in IP disputes have become the subject of worldwide discussion. One of the most notable outcomes of this discussion has been the creation of soft-law typed principles or proposals dealing with conflict of laws issues. After some principles or proposals were drafted, the International Law Association Committee “Intellectual Property and Private International Law” was established in November 2010, and, after long discussions, the Kyoto Guidelines drafted by the Committee were approved by the ILA 79th Biennial Conference held (online) in Kyoto on December 13, 2020. What is the significance of these Guidelines and what challenges remain for the future? This paper will examine these questions.

 

Territoriality and Intellectual Property Infringement Proceedings

Zheng (Sophia) Tang

This article examines the principle of territoriality in intellectual property rights (IPR?s) and its implications for cross-border infringement proceedings. It highlights the complexities arising from globalization and digital technologies, which challenge the traditional territorial nature of IPR?s. The article compares jurisdictional approaches in the United States, the European Union, Korea, noting the strict adherence to territoriality in validity disputes and the varied stances on infringement claims. It also explores the innovative measures adopted by national courts, particularly in the context of Standard Essential Patents (SEP?s), to extend their jurisdiction while respecting territorial limits. The article underscores China’s pragmatic approach, balancing respect for territoriality with judicial efficiency, and its proactive role in setting global FRAND terms for SEP?s. The analysis suggests that while territoriality remains a fundamental principle, evolving judicial practices are adapting to the demands of a globalized economy.

 

Admissibility of ILA Principles on Intellectual Property and Private International Law in Vietnam

Bui Thi Quynh Trang, Phan Dinh Nguyen, and Nguyen Thi Hong Trinh

Private law on intellectual property (IP) has achieved significant international harmonization, but international jurisdiction is subject to national regulations. As a result, enforcement of IP rights is carried out on a country-by-country basis. This approach leads to multiple concurrent legal proceedings, increasing the risk of conflicting judgments and escalating litigation costs. These costs create a disparity between multinational corporations and small and medium-sized enterprises. As a potential model for future international agreements on intellectual property and private international law, the International Law Association (ILA) Committee on ‘Intellectual Property and Private International Law’ seeks to address cross-border IP disputes. This paper will explore whether the ILA principles can be utilized as models for legislators, judges, arbitrators and other competent authorities in Vietnam, a legal system characterized by a lack of case law on the topic.

On 26 and 27 September 2024, an international conference was held in Paris to honour the work, and celebrate the 90th birthday, of Paul Lagarde. The contributions of the speakers are available on the website of the European Group of Private International Law (EGPIL-GEDIP). Most are dedicated to the contribution of Paul Lagarde to the […]

The following information has kindly been provided by Anselmo Reyes.

The third Asian Private International Law Academy (APILA) Conference will take place in person at Thammasat University in Bangkok, Thailand on Sunday 8 (Day 1) and Monday 9 (Day 2) December 2024. Persons whose abstracts have been selected (see next paragraph) will deliver oral presentations in turn on Days 1 and 2. Each presentation will run for about 10 minutes and be followed by a discussion of about 10 to 15  minutes in which participants will have the opportunity to comment on a presentation. The APILA Conference will be in the form of two days of roundtable discussions in English. The objective of the APILA Conference is to assist presenters to refine prospective research papers with a view to eventual publication.

Those who are interested in delivering presentations at the APILA Conference are invited to submit abstracts of their proposals in English.  While proposals may be on any topic, they should (1) focus on private international law issues and (2) somehow relate to Asia (broadly defined). Further, while every effort will be made to fit in as many presentations as possible, given the constraints of time, it may not be feasible to accept all proposals.  Inevitably, some selection may be necessary.  APILA apologises in advance for this.  Everything else being equal, priority will be given to proposals exploring cutting edge questions (albeit not necessarily definitively answering them) in one or more of the following areas: (1) international dispute resolution (especially international arbitration and mediation), (2) data protection and data privacy, (3) competition law (including within digital markets), (4) family law (including succession), (5) intellectual property rights, (6) Islamic private international law, (7) environmental issues (including climate change), (8) business and human rights, (9) cryptocurrency and the blockchain, (10) sanctions and counter-sanctions, (11) the economic analysis of private international law rules, and (12) artificial intelligence.

Abstracts are to be submitted by email to reyes.anselmo@gmail.com as soon as possible.  Persons whose abstracts have been accepted will usually be informed a few days after submission of their abstract. The latter are requested to provide their presentations in PowerPoint format or (if the presentation is in the form of a draft paper) in pdf format by email to reyes.anselmo@gmail.com by Saturday 23 November 2024.  All PowerPoints and draft papers received will be circulated in advance electronically among APILA Conference participants.  Participants will thus be able to read into the topics to be discussed in advance of the APILA Conference. Oral presentations can then focus on succinct statements of key takeaways and more time can be allotted to discussion

Please note that APILA’s available funding is limited.  Therefore, in the normal course of events, APILA regrets that it will not be able to provide funding for the travel and accommodation expenses of members (including presenters).

On Tuesday, November 12, 2024, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Prof. Dr. Dr. h.c. Dennis Solomon, LL.M. (Berkeley) (University of Passau) will speak, in German, about the topic

 

The foreign element in Private International Law and International Civil Procedure Law: same same, but different?

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

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

The PAX Moot case for the 2025 moot competition on private international law has been published. The 2025 Round is dedicated to Ulrich Huber, an influential Dutch jurist of the 1600s, who wrote a short treatise on the conflict of laws, Conflictu Legum Diversarum in Diversis Imperiis. The Ulrich Huber Round of the competition explores […]

Written by Fanni Murányi, who will defend her PhD on Children’s rights, private law and criminological perspectives of parental child abduction at the Eötvös Loránd University (expected in 2024).

In this short summary of her research, Fanni highlights her conclusions on the role of the child’s views in abduction cases and the link between international child abduction and criminal law. She considered the legislative frameworks of the Hague Child Abduction Convention of 1980, the Brussels IIb Regulation (2019/1111) and the UN Convention on the Rights of the Child (UNCRC). She also investigated as well as the role of (domestic) criminal law.

The child’s views

When a child is abducted by one of their parents, the child finds himself or herself in a very stressful situation. Even though the relevance of the child’s views in these cases may be limited, listening to abducted children becomes increasingly important. As the Brussels IIb Regulation attaches even greater importance to the hearing of the child than the previous Regulation (2201/2003, Brussels IIa) did, more attention is needed. Children have the right to be given an opportunity to be heard (Art. 12 UNCRC, echoed by Arts 21 and 26 Brussels IIb). In the hope of presenting a nuanced picture of the European practice on child’s involvement, Hungary and the Netherlands were compared. My empirical research is based on interviews with four Dutch and four Hungarian judges. Hungarian case law shows that – similarly to the European practice – the hearing of children by judges is typical in parental child abduction cases. This was also confirmed by the interviews. As there is no age barrier for hearing children in abduction cases, the Hungarian judges have multifaceted tasks. There is a demand for special training and for an assisting person, but the current form of guardian ad litem is not being used. In the Netherlands the court appoints a bijzondere curator for children three years of age or older. The bijzondere curator hears and accompanies the child and explains the court’s decision if required. If supported by the bijzondere curator, children six years of age or older are heard by one of the judges of the full court as well. The interviews conducted with Dutch judges confirmed that the bijzondere curator greatly helps assessing the child’s maturity and understanding the child. All judges expressed the difference between the hearing by a bijzondere curator and by a judge in the same way: time and expertise.

Although the involvement of children in mediation is improving, the way in which a child’s voice can be included is also controversial. Neither the Hague Abduction Convention, nor the Brussels IIb refers to the hearing of the child in mediation, but the latter clarifies the child’s right to be provided with an opportunity to express his or her views in proceedings to which he or she is subject. In the Dutch model, the so-called pressure cooker model, integrates mediation into the schedule of the court proceeding. The mediation programme consists of three 3-hour sessions in the course of two days. The sessions are co-mediated by two mediators and on the first day of the mediation, the child is interviewed by a third mediator, a child psychologist. The child must be three years of age or older and both parents must consent to the hearing.

International child abduction and criminal law

If the court orders the return of the child to a country where parental child abduction is severely punished, the abducting parent has two potential routes permitted by law. The first is returning to that country with the child and being imprisoned for abducting. The second route is not returning with the child, avoiding these serious criminal consequences, but leaving the child alone with the left-behind parent. This shows that in countries where parental child abduction is severely punished, the return order might cause a separation between the parent (often the primary caretaker) and the child. Such separation might be a violation of Article 9 of the UNCRC (i.e. the right of the child not to be separated from the parents against their will).

Currently, there is no uniform criminal law definition of child abduction in the European Union. The types of punishment envisaged and the age of children involved in the offences vary widely. Thus, the act of the abducting parent may not be considered a crime in one country, while thousands of kilometers away it can lead to imprisonment for several years. The criminalization of abduction can be considered effective in searching for missing children, but the civil and criminal sanctions are unlikely to deter many potential abductors.

Allegations of domestic violence have often been raised as a defence in child abduction cases: the Hague Child Abduction Convention provides for a court to refuse to order the return a child if the return would pose a grave risk of exposing the child to physical or psychological harm or otherwise place the child in an intolerable situation (Art. 13(1)(b)). If the court rejects this exception and orders the return of the child to a country where parental child abduction is punished, the abducting parent as a victim of domestic violence may become a perpetrator of a crime. There is a real concern that primary caretakers are required to choose between returning with the child to an environment where they would face a real risk of violence, and refusing to return so that the child would have to cope with a new situation. In either case there is a real risk of harm to the child.

On 18 November 2024, the French Cour de Cassation will hold a one-day conference on the latest developpements in private international law. The objective is to present recent case law in various areas of PIL and to consider the future prospects for this field. One of the great interest of this scientific event is that […]

The Pax Moot Court Competition has today launched the case of the Ulrich Huber Round! Read all about the content moderators and their dissatisfaction with Watermelon Information Technology on the Paxmoot webpage. Safe Socials Foundation has today instituted proceedings in the Maastricht court, which will hear the case between 9 and 11 April (see the schedule). 

We hope to see you there, as pleaders, judges or audience! Don’t forget to register.

 

A collection of essays has been published by Intersentia, a few months ago, under the title Climate Change Litigation in Europe – Regional, Comparative and Sectoral Perspectives, edited by Ivano Alogna, Carole Billet, Matteo Fermeglia and Alina Holzhausen. The blurb reads: Climate change litigation is emerging as a global response to the unfolding climate crisis. […]

On 21 November 2024, Gérard Anou (University of Grenoble Alpes) organises a one-day conference devoted to the rise of the digital economy in the context of international trade law. It will deal with both the regulatory dimension and dispute resolution. The presentation of the event reads as follows: The development of information and communication technologies […]

Victor Grandaubert, who is a lecturer at Paris Nanterre University, has published L’immunité d’exécution de l’Etat étranger et des organisations internationales en droit international (The Immunity from Enforcement of Foreign States and International Organisations in International Law) with the French publisher Pedone in 2023. The book is based on the doctoral thesis of the author. […]

Victor Contreras Kong (Rabobank Private Banking) and Ebbe Rogge (Leiden University – Leiden Law School) have recently posted on SSRN an article titled Sustainability-Linked Products: International Private Law Standards, published in the Hazelhoff Research Paper Series. The (final, edited version of this) article was published in Journal of International Banking Law and Regulation. The abstract […]

I. Introduction:

In a previous post on this blog, I reported a decision rendered by the Bahrain High Court in which the court refused to enforce a choice of court agreement in favour of English courts. The refusal was based on the grounds that the case was brought against a Bahraini defendant and that rules of international jurisdiction are mandatory. The Bahraini Supreme Court’s decision reported here is a subsequent development on the same case. The ruling is significant for many reasons. In a methodical manner, the Supreme Court identified the foundational justifications for the jurisdictional rules applied in Bahrain. Moreover, it clarified the role and effect of choice of court agreements, particular their derogative effect. Finally, and somehow surprisingly, the Court supported its position by invoking to “the doctrine of forum non conveniens”, explicitly mentioned to in its decision.

The decision is particularly noteworthy, as it positively highlights the openness of Bahraini judges to adopting new legal doctrines previously unfamiliar within the country’s legal framework. This openness likely signals an increasing acceptance of such jurisdictional adjustment mechanisms in legal systems outside the traditional common law or mixed jurisdictions. However, the decision also negatively highlights the challenges of importing foreign doctrines, particularly when such doctrines are applied in contexts where they are not fully integrated or properly understood. These challenges are further exacerbated when the reliance on the foreign legal doctrine appears to be driven by judicial convenience rather than a genuine commitment to the principles underlying the imported legal doctrine.

 

II. Facts

The facts of the case have been previously reported (see here) and need not to be repeated. It suffices to recall that the dispute involved a breach of a pharmaceutical distribution sales agreements between an English company (the plaintiff) and a Bahraini company (the defendant). Relying on the choice of court agreement included in the contract, the defendant challenged the jurisdiction of Bahraini court.

The court of first instance rejected the challenge on the ground that the jurisdiction of Bahraini courts was justified by the “Bahraini nationality” of the defendant, and the mandatory nature of the Bahraini rules of international jurisdiction (see the summary of the case here).

On appeal, the Court of Appeal overturned the initial ruling on the grounds that Bahraini courts lacked jurisdiction.

Dissatisfied, the English company appealed to the Supreme Court, arguing that, as the defendant was a Bahraini company registered in Bahrain, jurisdiction could not be derogated by agreement due to the public policy nature of the Bahraini jurisdictional rules.

 

III.  The Ruling

In its decision rendered in the Appeal No. 5/00071/2024/27 of 19 August 2024, the Bahraini Supreme Court admitted the appeal and overturned the appealed decision holding as follows:

“International jurisdiction of Bahraini courts, as regulated in the Civil and Commercial Procedure Act [CCCA] (The Legislative Decree No. 12/1971, Articles 14 to 20) and its amendments, is based on two fundamental principles: the principle of convenience (al-mula’amah) and the principle of party autonomy (‘iradat al-khusum).

Concerning the principle of convenience, Article 14 of the CCCA states that Bahraini courts have jurisdiction over cases filed against non-Bahraini [defendants] who have domicile or residence in Bahrain, except for in rem actions concerning immovable properties located abroad. This is because it is more appropriate (li-mula’amati) for the courts where the immovable is located to hear the case. Similarly, Article 15(2) of the CCCA stipulates that Bahraini courts have jurisdiction over actions involving property located in Bahrain, obligations originated, performed or should have been performed in Bahrain, or bankruptcies opened in Bahrain. This means a contrario that, under the principle of convenience (mabda’ al-mula’amah), the [said] provision excludes [from the jurisdiction of the Bahraini courts] cases where the property is located outside Bahrain, or where the obligations originated in and performed abroad, or was originated and should have been performed abroad, or concerns a bankruptcy opened abroad unless the case involves a cross-border bankruptcy as governed by Law No. 22 of 2018 on Restructuring and Bankruptcy.

Regarding the principle of party autonomy (mabda’ ‘iradat al-khusum), Article 17 of CCCA allows Bahraini courts to adjudicate cases, even when they do not fall within their jurisdiction, if the parties explicitly or implicitly accept their authority. While the law recognizes the parties’ freedom (iradat) to submit (qubul) the jurisdiction of Bahraini courts to hear cases that otherwise do not fall under their jurisdiction, the legislator did not clarify the derogative effect of choice-of-court agreements when the parties agree to exclude the jurisdiction of Bahraini in favor of a foreign court, despite the Bahraini courts having jurisdiction over the case. In addition, the legislator remains silent on the rules for international jurisdiction in cases brought against Bahraini nationals. However, this cannot be interpreted as a refusal by the legislator [of the said rules] nor as an insistence on the jurisdiction of Bahraini court. In fact, the legislature has previously embraced the principle according to which Bahraini courts would decline jurisdiction over cases that otherwise fall under their jurisdiction when parties agree to arbitration, whether in Bahrain or abroad.

Based on the foregoing, nothing in principle prevents the parties from agreeing on the jurisdiction of a [foreign court]. However, if, one of the parties still brings the case before Bahraini courts despite such an agreement, the issue extends beyond merely honoring the agreement to a broader issue dependent solely on how Bahraini courts assess their own jurisdiction. In this case, the parties’ agreement [relied upon] before the Bahraini courts becomes just one factor that the court shall consider when deciding whether or not to decline jurisdiction. The court, in this context, must examine whether there are grounds to decline jurisdiction in favor of a more appropriate foreign [court] in the interest of justice, and the court shall decide accordingly when the said grounds are verified. This principle is known as “The Doctrine of Forum Non Conveniens” (al-mahkamat al-mula’amat).[1] Therefore, if all the conditions necessary for considering the taking of jurisdiction by a foreign court and the rendering justice is more appropriate (al-‘akthar mula’amah) are met, Bahraini courts should decline jurisdiction. Otherwise, the general principles shall apply, i.e. that the taking of jurisdiction shall be upheld, and the courts will proceed with hearing the case.

Accordingly, the Bahraini courts’ acceptance to decline jurisdiction in favor of a foreign court, based on the parties’ agreement and in line with the principle of party autonomy, presupposes that [doing so] would lead to the realization of the principle of convenience (mabda’ al-mula’amah). [This would be the case when] (1) the dispute shall have an international character; (2) there is a more appropriate forum to deal with the dispute [in the sense that] (a) the validity of the choice of court agreement conferring jurisdiction is recognized under the foreign law of the chosen forum; (b) evidence can be collected easily; (c) a genuine connection exists with the state of the chosen forum; and (d) the judgments rendered by the courts of the chosen forum can be enforced therein with ease.[2]

Furthermore, since the jurisdiction of Bahraini courts is based on the consideration that the adjudicatory jurisdiction (al-qadha’) is one of the manifestations of the State’s sovereignty over its territory and that the exercise of this jurisdiction extends to the farthest reach of this sovereignty, it is incumbent [upon the courts] to ensure that declining jurisdiction by Bahraini courts does not infringe upon national sovereignty or public policy in Bahrain. The Assessment of whether all the abovementioned conditions are satisfied falls within the discretion of the courts of merits (mahkamat al-mawdhu’), subject to the control of the Supreme Court.

Given the above, and based on the facts of the case […..], the appellant—an English company—entered into an agreement of distribution and sale in Bahrain for pharmaceutical products [……], supplying the appellee—a Bahraini company—with said products. Seven invoices were issued for the total amount claimed; yet the appellee refused to make payment. [Considering that] Bahrain is the most appropriate forum for the administration of justice in this case – given the facts that appellee’s domicile and its place of business, as well as the place of performance of the obligation are located in Bahrain – the parties’ agreement to submit disputes arising from the contract in question to the jurisdiction of the English courts and to apply English law does not alter this conclusion. It is [therefore] not permissible to argue here in favor of prioritizing party autonomy to justify declining jurisdiction, as party autonomy alone is not sufficient to establish jurisdiction without the fulfillment of the other conditions required by the principle of forum non conveniens (mabda’ mahkamat al-mula’amah).

Considering that the court of the appealed decision [unjustifiably] declined to hear the case on the grounds that it lacked jurisdiction, it violated the law and erred in its application. Therefore, its decision shall be overturned.

 

IV. Comments

Although the outcome of the case (i.e. the non-enforcement of a derogative choice-of-court agreement) might be somehow predictable given the practice of Bahraini courts as noted in the previous comment on the same case, the reasoning and justifications provided by the Supreme Court are – in many respects – surprising, or even … puzzling.

A comprehensive review of the court’s ruling and its broader theoretical and practical context requires detailed (and lengthy) analyses, which may not be suitable for a blog note format. For this reason, only a brief comment will be provided here without delving too much into details.

 

1. International Jurisdiction and its Foundation in Bahrain

According to the Supreme Court, the international jurisdiction of Bahraini courts is grounded in two fundamental principles: convenience (al-mula’amah) and party autonomy (‘iradat al-khusum).

Convenience (al-mula’amah), as indicated in the decision, is understood in terms of “proximity”, i.e. the connection between the dispute and Bahrain. This connection is essential for proper administration of justice, and efficiency of enforcing judgments. Considerations of “convenience” are reflected in the Bahraini rules of international jurisdiction as set out in the CCCA. Therefore, when the jurisdiction of Bahraini courts is justified based on these rules, the dispute can be heard in Bahrain; otherwise, the courts should dismiss the case for lack of jurisdiction.

However, Bahraini courts, although originally incompetent, can still assume jurisdiction based on party autonomy (‘iradat al-khusum). Here, the parties’ agreement – whether explicit or tacit – to submit to the authority of Bahraini courts establishes their jurisdiction.

At this level of the decision, it is surprising that the Court did not include the Bahraini nationality of the parties as an additional ground for the jurisdiction of Bahraini Court. While the Supreme Court rightly pointed out that the Bahraini regulation of international jurisdiction does not regulate dispute brought against Bahraini national, and that, unlike many codifications in the MENA region, nationality of the defendant is not explicitly used as a general ground for international jurisdiction, this does not imply that nationality has no role to play in Bahrain. In fact, as explained in the previous post on the same case, Bahraini courts have regularly assumed jurisdiction on the basis of the Bahraini nationality of the parties and have consistently affirmed that “persons holding Bahraini nationality are subject to the jurisdiction of Bahraini courts as a manifestation of the state’s sovereignty over its citizens”. Moreover, Article 16(6) of the CCCA allows for jurisdiction to be taken based on the nationality of the plaintiff in personal status matters, particularly when Bahraini law is applicable to the dispute.

Furthermore, one might question the inclusion of various aspects, such as the connection with Bahrain, administration of justice and efficiency, under the broad and somewhat vague label of “convenience”. In a (more abstract) sense, any rule of international jurisdiction can be justified by considerations of “convenience”. In any event, it worth mentioning here that modern literature offers a multitude of justifications for different rules of international jurisdiction, taking into account various interests at stake, theories of jurisdictions, paradigms, and approaches (for a detailed account, see Ralf Michaels, “Jurisdiction, Foundations” in J. Basedow et al. (eds.) Elgar Encyclopaedia of Private international Law – Vol. 1 (Edward Elgar, 2017) 1042).

 

2. The Unexpected Reference to Forum Non Conveniens

Once the Court identified the foundational bases of the Bahraini courts’ jurisdiction, it engaged in a somewhat confusing discussion regarding the circumstances under which it might decline jurisdiction.

It is important to recall that the legal question before the court pertains to the effect of a choice-of-court agreement in favor of a foreign court. In other words, the issue at hand is whether such agreement can exert its derogative effect, allowing Bahraini courts to refrain from exercising jurisdiction.

Traditionally, Bahraini courts have addressed similar issues by asserting that the rules of international jurisdiction in Bahrain are mandatory and cannot be derogated from by agreement (as noted in the previous comment on the same case here). However, in this instance, the Court veered off in its analysis. Indeed, the Court (unexpectedly) shifted from the straightforward issue of admissibility of the derogative effect of choice-of-court agreements to the broader question of whether to decline jurisdiction, ultimately leading to a discussion of……forum non conveniens!

The Court’s approach leaves an unsettling impression. This is because the ground of appeal was not framed in terms of forum non conveniens. Indeed, the appellant did not argue that the choice-of-court agreement should not be enforced because the chosen court was inappropriate or because Bahraini courts were forum conveniens. Instead, the appellant merely referred to the mandatory nature of the jurisdictional rules in Bahrain, which cannot be derogated from by agreement, irrespective of any consideration regarding which court is clearly more appropriate to hear the case.

This impression is further strengthened by the manner with which the Court addressed the issue it raised itself. Indeed, after setting out the test for declining jurisdiction on the basis of forum non conveniens (but, in fact, primarily concern more the conditions for the validity of a choice-of-court agreement), the Court failed to examine and apply the very same tests it established. Instead, the Court concluded that Bahraini courts were forum conveniens simply because they had jurisdiction on the grounds that the defendant was a Bahraini company registered in Bahrain, had its domicile (principal place of business) there, and that Bahrain was the place of performance of the sale and distribution obligations.

However, upon a closer examination at the fact of the case, one can hardly agree with the Court’s approach. On the contrary, all the reported facts indicate that the requirements set forth by the Court were met: (1) the international nature of the dispute is beyond any doubt; (2) English courts are clearly appropriate to hear the case as (a) the choice-of-court agreement in favor to English court is undoubtedly valid under English law; (b) it is unlikely that the case would raise any concerns regarding the collection of evidence (since one of the parties is an English company, one can expect that parts of the evidence regarding the transaction, payment, invoices etc. would be in English, and to be found in England); (c) there is no doubt about the genuine connection with England, as one of the plaintiff is an English company established in England, and parts of the transactions are connected with England. Also, it is unclear how a choice-of-court agreement in this case would violate the sovereignty of Bahrain, as there is nothing in the case to suggest any public policy concerns.

The only potential issue might pertain to the enforceability of the future judgment in England (point (d) above) as there is a possibility that the appellee may have no assets to satisfy the future judgment in England. This might explain why the appellant decided to bring in Bahrain in violation of the choice-of-court. However, such concern can be mitigated by considering the likelihood of enforcing the English judgment in Bahrain, as it would meet the Bahraini enforcement requirements (articles 16-18 of Law on Execution in Civil and Commercial Matters [Legislative Decree No22/2021]).

 

V. Concluding Remarks

This is not the only case in which challenges to choice-of-court agreements in favor of a foreign court are framed in terms of forum non conveniens in Bahrain (see e.g., the Bahrain Chamber of Dispute Resolution, Case No. 09/2022 of 17 October 2022). However, to my knowledge, this is the first Supreme Court decision where explicit reference is made to “the doctrine of forum non conveniens” (with the terms cited in English).

In the case under discussion, there is a concern that the Court seems to have conflated two related yet distinct matters: the power of the court to decline jurisdiction on the ground of forum non conveniens, and the court’s authority to decline jurisdiction on the basis of the parties’ agreement to confer jurisdiction to a particular court (cf., R. Fentiman, “Forum non conveniens” in Basedaw et al., op. cit. 799). In this regard, it is true that in common law jurisdictions the doctrine of forum non conveniens is generally recognized as a valid defense against the enforcement of choice-of-court agreements (see J.J. Fawcett, “General Report” in J.J. Fawcett (ed.), Declining Jurisdiction in Private International Law (Oxford University Press, 1995) 54). However, it also generally admitted that the respect of the parties’ choice should not be easily disregarded, and courts should only intervene in exceptional circumstances where there is a clear and compelling reasons to do so (see, Fentiman, op. cit., 799). Such compelling reasons, however, are clearly absent in the present case.

Moreover, the way with which the Supreme Court framed the issues of foreign non conveniens inevitably raises several intricate questions: would the doctrine apply with respect to the agreement’s prorogative effect conferring jurisdiction to Bahraini courts? Would it operate in the absence of any choice-of-court agreement? Can it be raised in the context of parallel proceeding (lis pendens)? Would it operate in family law disputes, etc.?

In my opinion, the answers to such question are very likely to be in the negative. This is primarily because Bahraini courts, including the Supreme Court, have traditionally and consistently regarded their jurisdiction as a matter of public policy, given the emphasis they usually place on judicial jurisdiction as a manifestation of the sovereignty of the State which, when established, cannot be set aside or diminished. Such conception of international jurisdiction leaves little room to discretionary assessment by the court to evaluate elements of forum non conveniens, ultimately leading them to decline jurisdiction even when their jurisdiction is justified.

——————————————-

[1] English terms in the original text. The Arabic equivalent can be better translated as “forum conveniens” rather than “forum non conveniens”.

[2] Numbers and letters added.

A resolution from the European Parliament on the policy implications of the development of virtual worlds was published last Thursday at the OJEU (the resolution itself is from January). It contains a few parts on private international law:

“Private international law

13. Stresses that certain traditional territorial principles on applicable law and jurisdiction might prove inadequate to virtual worlds, whose non-territoriality is enabled by the use of decentralised technologies such as blockchain, and give rise to problems when it comes to ensuring the applicability of EU law and the protection of the rights of consumers and businesses;

14. Notes more specifically that, since anyone anywhere in the world can access virtual worlds, the ‘mosaic criterion’ established by the Court of Justice of the European Union, by which the injured party may seek compensation in the courts of the countries where at least a part of the harm occurred, might not hold; recalls, however, that the Court established an additional criterion whereby injured parties can claim compensation through the courts of the country in which they have their main interest and affirms that the codification of this criterion into the Brussels I Regulation could be considered;

Read more: Virtual worlds and Private International Law

15. Observes that the definition of ‘consumer’ in the Brussels I Regulation is currently based on a direct contractual relationship, which is missing for instance between the issuer of a non-fungible token (NFT) and the purchaser when the NFT is put on a secondary market; notes that, consequently, in the event of a dispute with the issuer, the final purchaser would be deprived of the jurisdictional treatment that the Brussels I Regulation grants to consumers;

16. Calls on the Commission to take into account these and other potentially problematic situations and to assess the appropriateness of the existing provisions of private international law applicable in the EU, proposing appropriate amendments, where necessary, to guarantee that citizens and businesses do not have to systematically litigate in foreign courts or under foreign laws in order to enforce their rights, thus making sure that their rights under the EU regulatory framework are fully guaranteed, while bearing in mind the risk of forum shopping, in particular on the part of non-EU companies”.

Source: Policy implications of the development of virtual worlds – civil, company, commercial and intellectual property law issues – European Parliament resolution of 17 January 2024 on policy implications of the development of virtual worlds – civil, company, commercial and intellectual property law issues (2023/2062(INI)), OJ C, C/2024/5720, 17.10.2024, ELI: http://data.europa.eu/eli/C/2024/5720/oj

Regulation 2024/1689 laying down harmonised rules on artificial intelligence, commonly known as the EU AI Act, has entered into force on 1 August 2024 and will progressively be applicable to several (private and public) organisations within transnational AI value chains connected to the EU internal market. This Regulation is remarkable for two main reasons. First, […]