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Burkhard Hess and his team at the University of Vienna recently finalised an Academic Position Paper on the Reform on the Brussels Ibis Regulation, which is now available on SSRN. They have kindly shared the following summary with us.

The Brussels Ibis Reform project leading up the Academic Position Paper commenced with the formation of a Working Group within the European Association for Private International Law (EAPIL) in 2021, spearheaded by Burkhard Hess and Geert Van Calster. This Working Group consisted of 42 academics from 22 EU Member States plus Iceland, Norway, Switzerland and the UK. The Members of the Working Group provided information on the application of the Brussels Ibis Regulation in their respective jurisdictions by means of a questionnaire, after which a Members Consultative Committee of the EAPIL produced a report. Based on this input, the former MPI Luxembourg and the KU Leuven organised a conference in Luxembourg on 9 September 2022.

After the Luxembourg conference, Burkhard Hess and a team of researchers of the former MPI Luxembourg prepared a Working Paper with 32 reform proposals. The Members of the EAPIL Working Group and the academic public were invited to express their opinion on these proposals through online surveys. The results of these surveys were processed by Burkhard Hess and his team , which led to amendments to the original proposals. These amended proposals were presented discussed at a conference in Vienna on 12 April 2024. The findings of this conference were integrated into the Academic Position Paper that, after consulting the Members of the EAPIL Working Group, received a final update before being uploaded on SSRN

The five different parts of the Academic Position Paper cover the role and scope of the Brussels Ibis Regulation, collective redress, third-state relations, jurisdiction and pendency, as well as recognition and enforcement. Each part covers distinct issues identified at the 2022 Luxembourg conference and formulates specific proposals to resolve them. The background of each proposal is briefly explained and the charts indicating the responses to the surveys are presented, before discussing the feedback received through the surveys and during the 2024 Vienna Conference.

Burkhard Hess and his team would like to thank everyone that has taken the time to answer the surveys and/or attend the conferences. Your input was invaluable, and we have sought to take your views into account as much as possible. We believe that the proposals in the Academic Position Paper provide a solid set of recommendations to consider in recasting the Brussels Ibis Regulation, which will be presented to the European Commission as a meaningful contribution of academia in the upcoming law-making process.

Francisco Garcimartin (University Autónoma of Madrid) has posted Is EU Insolvency Law consistent? on SSRN. The abstract reads as follows: The piecemeal approach to the harmonisation of insolvency law in the EU and the corresponding time lag between the unification of choice of law rules, on the one hand, and substantive harmonisation, on the other, has […]

On 24 May 2024, the Council of the European Union approved the position of the European Parliament at first reading on the proposal for a directive of the European Parliament and of the Council on corporate sustainability due diligence and amending Directive (EU) 2019/1937 (and subsequently also Regulation (EU) 2023/2859). The directive has thereby been […]

The Australian Branch of the International Law Association is now calling for submissions for the 2024 Nygh Essay Prize in Private International Law.

The prize is named in honour of Dr. Peter Nygh, a leading Australian scholar of private international law and former President of the Branch.

The Nygh Essay Prize is awarded to the author of an essay in private international law (conflict of laws), including in the field of international commercial arbitration. Essays for the prize to be awarded in 2024 should be sent to the email address of the Secretary of the Australian Branch at secretary@ila.org.au.

Further details (including conditions of entry) are available here. The deadline for submission is: 31 July 2024.

The results will be made available on the website of the ILA (www.ila.org.au) on approximately 31 August 2024. Winners will be notified by email.

 

 

by Ennio Piovesani

Certain EU Member States have enacted special rules governing the activities of content creators and influencers. In this context, the French legislature passed Law No. 2023-451 on June 9, 2023, aimed at regulating influencer marketing and addressing potential misconduct by influencers on social media platforms (1). Article 8, I, of Law No. 2023-451 requires that contracts between influencers and (influencer marketing) agents or advertisers, or their representatives, must be made in writing and include a specified set of clauses; failure to comply results in the contract being null.

One such clause mandates ‘[t]he submission of the contract to French law, notably to the Consumer Code, the Intellectual Property Code, and the present Law, when said contract has as its object or effect the implementation of influencer marketing activities through electronic means targeting notably an audience established on French territory’ (Article 8, I, 5°, Law No. 2023-451). Scholars have highlighted the ‘innovative’ nature of the mechanism set forth in Article 8, I, 5°, Law No. 2023-451 and its resemblance to the (more established) concept of overriding mandatory provisions (2).

(1) LOI n° 2023-451 du 9 juin 2023 visant à encadrer l’influence commerciale et à lutter contre les dérives des influenceurs sur les réseaux sociaux

(2) See Sandrine Clavel, Fabienne Jault-Seseke, Droit international privé, Recueil Dalloz 2024, 987, accessed online at Dalloz.fr; see also Ermanno Calzolaio, L’attività pubblicitaria dell’influencer nel diritto francese (Loi n. 451 del 9 giugno 2023), Il Diritto dell’Informazione e dell’Informatica, 2023, no. 6, p. 909, accessed online at Dejure.it).

Regulation (EU) 2024/1183 establishing the European Digital Identity Framework entered into force on 20 May 2024. As reported on this blog (at the time of the Commission’s proposal), the major contribution of this Regulation is the creation of a “European Digital Identity Wallet” (EUDIW). It aims to allow citizens and companies based in the European […]

On 6 June 2024 the Court of Justice will be holding a hearing in case C-393/23, Athenian Brewery et Heineken. The request for a preliminary ruling comes from the Hoge Raad der Nederlanden (the Dutch Supreme Court). In the main proceedings, Macedonian Thrace Brewery SA (‘MTB’) is suing Athenian Brewery SA (‘AB’) and Heineken NV (‘Heineken’) […]

The latest issue of ZEuP – Zeitschrift für Europäisches Privatrecht has just been released. It includes contributions on private law, comparative law and legal history, among others. The full table of content can be accessed here. In addition to the editorial by Christine Budzikiewicz on the Commission Proposal for an EU Regulation on Parenthood and […]

The latest issue of the Journal of Private International Law was published yesterday It contains the following articles.

Alex Mills, Sustainability and jurisdiction in the international civil litigation market

The sustainability of the global economy, particularly in response to the concerns of climate change, is an issue which impacts many different aspects of life and work around the world. It raises particular questions concerning globalised industries or markets which depend on long distance transportation for their function. This article takes as its focus international civil litigation – the judicial resolution of cross-border disputes – as a particular example of a globalised market in which sustainability considerations are presently neglected, and examines how this omission ought to be addressed. It proposes a modification to English law which aims to ensure that jurisdictional decisions by the English courts take into account their environmental impact – that is to say, the environmental impact of the selection of a particular forum. The article also considers the implications of adopting this change on the position of the English courts in the global litigation marketplace, arguing that the effects are likely to be limited, and it could have an incidental benefit in promoting the development and adoption of communications technologies in judicial dispute resolution.

 

Saloni Khanderia, The law applicable to documentary letters of credit in India: A riddle wrapped in an enigma?

Despite significantly fostering international trade in India, letters of credit and the determination of applicable law in cross-border disputes arising from the same have received negligible attention from lawmakers. The Indian Supreme Court, too, has failed to use its power to mould the law despite regularly being confronted with disputes on this subject. This paper demystifies India’s conflict of law rules on the law governing disputes on letters of credit by examining relevant judicial trends. It highlights rampant references to the lex fori – and explores reasons why it is considered the “proper law” by being the country possessing the closest and most real contractual connection. It anticipates a “ripple effect” prompting parties to evade Indian courts through choice-of-court agreements preferring a foreign forum or to avoid business with Indian traders insisting on such payment mechanisms. Accordingly, it identifies the need for coherent rules and suggests some solutions that Indian lawmakers should consider.

 

Frederick Rieländer, The EU private international law framework for civil disputes concerning credit ratings: Exploring the status quo and prospects of reform

This article addresses the EU private international law framework for cross-border disputes concerning credit ratings. It argues that investors harmed by faulty ratings face considerable challenges when enforcing claims against credit rating agencies. These challenges arise not only due to the high standard of proof for damages claims and additional barriers rooted in substantive law but also from the limited territorial reach of the common EU civil liability regime of Article 35a of the amended Regulation (EC) No 1060/2009. Additionally, uncertainties concerning the determination of the concurrently applicable national law and the lack of unified European cross-border collective redress mechanisms in the area of capital markets law compound the problem. Against this background, this article discusses the options for reforming the existing private international law regime to enhance investors’ access to justice in disputes with CRAs.

 

Tony Ward & Ann Plenderleith Ferguson, Proof of foreign law: a reduced role for expert evidence?

This article considers the position as to proof of foreign law in the English courts in light of the case of FS Nile Plaza v Brownlie [2021] UKSC 45 and the 11th edition of the Commercial Court Guide. We discuss the “old notion” of proof by expert witnesses, the extent to which recent developments displace the traditional role of the expert and enhance that of the advocate, and the dicta in Brownlie concerning the presumptions of similarity and continuity and judicial notice. While welcoming the greater flexibility in the way foreign law can be put before the English court, we argue that the use of oral expert evidence and cross-examination will remain important in at least two types of case: those where the issue of foreign law is complex or novel, and those where the English court does not just need to ascertain the “correct” interpretation of foreign law, but rather predict whether a foreign court would in reality provide appropriate relief in relation to the matter before the court.

 

Olivera Boskovic, Extraterritoriality and the proposed directive on corporate sustainability due diligence, a recap

Tortious actions brought against companies for the violation of human rights and/or environmental damage have raised important issues of jurisdiction and choice of law. Damage caused abroad by subsidiaries of European companies or the possibility of bringing actions against non-European companies for damage caused outside of the European union have been referred to in terms of extraterritoriality. This paper examines these issues in relation to the proposed directive on corporate sustainability due diligence.

 

Leonard Lusznat, The Brussels IIb Regulation – Most significant changes compared to its predecessor and enhancement of the 1980 Hague Convention on International Child Abduction

The Brussels IIb Regulation, dealing with proceedings in matrimonial matters, those of parental responsibility and international child abduction cases, is the newest instrument of the European Union in international family law. The article critically evaluates its most significant changes compared to its predecessor, the Brussels IIa Regulation, in the fields of jurisdiction and of recognition and enforcement. In addition, it analyses how the Brussels IIb Regulation optimises the provisions of the 1980 Hague Convention on International Child Abduction between the member states of the European Union. The article argues that the regulation is overall a helpful and welcome addition to international family law because it strengthens the welfare of the child and enhances the practical functionality and normative structure of its predecessor. Nevertheless, scope for further improvements in another recast regulation is identified.

 

Olga Bobrzy?ska & Mateusz Pilich, Cases of cross-border child abduction in times of populism: a Polish perspective

This article analyses the case law in Poland on matters of the return of children wrongfully removed or retained within the framework of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction during the period of the “populist” government (2020–2022). It takes account of the legislative and judicial developments in the EU and the European Court of Human Rights and of the aims of the Hague Convention. It seeks to ascertain whether the influence of populist reforms and politicisation of the courts has become apparent in the case law of the Polish Supreme Court on international child abduction cases.

 

Ye Shanshan & Du Tao, The Jurisdiction of China International Commercial Court: substance, drawbacks, and refinement

The wave of setting up international commercial courts has emerged internationally. Following the trend, China established the China International Commercial Court (CICC) in 2018. The CICC exercises consensual jurisdiction and non-consensual jurisdiction over international commercial disputes, and has jurisdiction to support international commercial arbitration. This article analyses the CICC’s criteria for determining international commercial disputes and the specific requirements for each type of jurisdiction based on the relevant provisions and judicial practice of the CICC. In addition, this article identifies the drawbacks of the CICC’s current jurisdiction system, and provides several suggestions for refinement, including the modification and clarification of the criteria for determining the internationality and commerciality of disputes, the removal of restrictions on jurisdiction agreements, the clarification of substantive standards for case transfer, and the expansion of its jurisdiction to support international commercial arbitration.

 

Gülüm Bayraktaroglu-Özçelik, When migration meets private international law: issues of private international law in divorce actions of Syrian migrants under temporary protection before the Turkish courts

The extended stay of Syrian nationals under temporary protection in Türkiye for more than a decade has caused an increase in their involvement in private law actions before the Turkish courts. Even though their substantive rights have mostly been regulated following their arrival, the private international law legislation has not yet been reviewed. This research, focusing on the most recent judgments of Turkish courts in divorce actions of Syrian migrants identifies important issues of private international law. These include questions on determination of international jurisdiction of Turkish courts, their access to legal aid and the obligation to provide security, questions of applicable law concerning marriage (including the recognition of the marriages validly celebrated in Syria), determination of the law applicable to divorce and the content of Syrian law. The study demonstrates that some of these questions arise because of the ongoing unfamiliarity of Turkish courts with “temporary protection status” as a relatively new concept in Turkish law, whereas others are related to application of general provisions to temporary protection beneficiaries and highlights the urgent need to review the Turkish private international law legislation considering the status of these persons to provide uniformity in court decisions and to ensure predictability.

As some readers will have seen through various other blogs and social media, this month the book Research Methods in Private International Law. A Handbook on Regulation, Research and Teaching, edited by Xandra Kramer (Erasmus University Rotterdam/Utrecht University) and Laura Carballo Piñeiro (University of Vigo) was published. The book is part of the Handbook in Research Methods of Law Series of Edward Elgar Publishing.

“The book seeks to provide insights into the different methodological approaches to private international law from both a regulatory approach and from a research and educational perspective. Established methodologies as well as evolving regulatory and empirical approaches that shape the future of private international law are discussed. To this end, the book is structured in three parts that correspond to three core debates, although they inevitably overlap: (I) the classification of private international law as private law and its interaction with international public law and regulation; (II) inter- and multidisciplinary approaches and research methods; and (III) how private international law helps to frame and address the critical debates of our time as well as the role of legal scholarship and education in shaping the future of private international law.” (Introductory Chapter, p. 1-2).

The book contains 18 chapters written by a team of authors spanning all continents discussing classical themes of private international law and new challenges in regulation, research, and teaching. It includes views from politics, human rights, legal theory, soft law and private regulation,  comparative law, empirical studies, economics, EU law making, technology, laymen, feminism, colonialism, as well as university teaching in Mexico, Nigeria and The Netherlands.

Contributors are (in alphabetical order): María Mercedes Albornoz, Adriani Dori, Diego P. Fernández Arroyo, Sai Ramani Garimella, Marco Giacalone, Paola Giacalone, Nuria González-Martin, Christoph A. Kern, Mary Keyes, Patrick Kinsch, Dulce Lopes, Cristina M. Mariottini, Ralf Michaels, Chukwuma Samuel Adesina Okoli, Marta Pertegás, Giesela Rühl, Veronica Ruiz Abou-Nigm, Carlota Ucín, Aukje van Hoek, Christopher Whytock, and Abubakri Yekini.

Further information is available on the publisher’s website here. The Prelims and the introductory chapter by the editors ‘Private international law in a global world: a revival of methodologies and research methods’ are freely accessible here. Critical acclaim by Geert Van Calster (KU Leuven), Yuko Nishitani (Kyoto University), Hans van Loon (former SG Hague Conference on Private International Law) and Symeon C. Symeonides (Willamette University College of Law).

Save the Date! Two launch webinars will take place on:

• 10 September 2024, from 10-12am CET: Research Methods in Private International Law: Views from Regulation, Research and Education (confirmed speakers include Dulce Lopes, Diego Fernández Arroyo, Giesela Rühl, Adriani Dori and Mary Keyes)
• 23 September 2024, from 10-11.30 CET: Research Methods in Private International Law: Educational Perspectives (co-organised by the University of Sydney, moderated by Jeanne Huang; confirmed speakers include Veronica Ruiz Abou-Nigm/Ralf Michaels, Ramani Garimella, Abubakri Yekeni & Chukwuma Okoli and Aukje van Hoek

More details and information on registration will follow soon.

For those interested, a report of an extensive online interview with the editors by Young-OGEMID can be downloaded from the website of Transnational Dispute Management.

 

Conventions & Instruments

On 14 May 2024, Georgia deposited its instrument of ratification of the 2007 Child Support Convention and of the 2007 Maintenance Obligations Protocol. With the ratification of Georgia, 51 States and the European Union are bound by the 2007 Child Support Convention, while 32 States and the European Union are bound by the 2007 Maintenance Obligations Protocol. More information is available here.

 

Meetings & Events

On 14 May 2024, the kick-off meeting of the Experts’ Group (EG) on Central Bank Digital Currencies (CBDCs) was held online. Pursuant to its mandate, the EG will study the applicable law and jurisdiction issues raised by the cross-border use and transfers of CBDCs. More information is available here.

From 14 to 17 May 2024, the First Regional Meeting of Judges of the International Hague Network of Judges (IHNJ) from Latin America and the Caribbean was held in Rio de Janeiro, Brazil, with the aim of fostering discussion on the proper and effective implementation of the 1980 Child Abduction Convention. More information is available here.

On 15 May 2024, the kick-off meeting of the Digital Tokens Project was held online. Under this project, the Permanent Bureau of the HCCH, in partnership with relevant subject-matter experts and Observers, is studying the private international law issues relating to digital tokens. More information is available here.

On 17 and 21 May 2024, the first meetings of the Working Groups on the Practical Handbooks and Country Profiles for the 1965 Service and 1970 Convention were held online. More information is available here.

On 29 May 2024, the first meeting of the Working Group established to complete the Country Profile and work on the draft Cooperation Request Recommended Model Form for the 1996 Child Protection Convention was held online. More information is available here.

 

Calls for Tender

The HCCH recently published a call for tenders for the development of electronic Country Profiles (e-Country Profiles) for a number of key HCCH Conventions. The deadline for the submission of tenders is 27 August 2024 (17:00 CEST). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

The second conference of the European Association of Private International Law will take place in Wrocław on 6-8 June 2024. As the readers of this blog know, the topic of the event will be Private International Law and Global Crises. Organised by Agnieszka Frąckowiak-Adamska, the conference will begin on 6 June, in the afternoon, with […]

Edward Elgar has just published the second edition of Conflict of Laws and the Internet by Pedro De Miguel Asensio.

The blurb reads:

In this thoroughly revised second edition, Pedro De Miguel Asensio presents a practical analysis of jurisdiction, choice of law, and recognition and enforcement of judgments in the context of online activities, examining areas where private legal relationships are most affected by the Internet. Addressing the tension between the ubiquity of the Internet and the territorial nature of national legal orders, the author sets out the latest developments across multiple jurisdictions in this dynamic field.

 

Key Features:

• Updated coverage of EU Law and recent case law
• Accessible guidance on how to combat illegal content
• Scrupulous analysis of complex conflict of laws issues that arise with Internet activities
• New sections providing extensive explanations of the Digital Services Act and the Digital Markets Act
• New material on other instruments in the fields of AI, crypto-markets, audiovisual media services, intermediary services, product safety and terrorist content online
• Overview of key topics including information society services, digital services, data protection, defamation, copyright, trademarks, unfair competition and online contracts 

 

Conflict of Laws and the Internet continues to be an essential guide for practitioners and policy-makers with applications for IT law experts and companies active in e-commerce. The book’s strong doctrinal base for an area of ever-increasing importance will also be valuable for academics working in the fields of IT law and private international law.

 

More information plus access to its full table of contents are available here  https://www.e-elgar.com/shop/gbp/conflict-of-laws-and-the-internet-9781035315123.html

This month Prof. Diego P. Fernández Arroyo, a renowned expert in Private International Law, has been appointed president of the Curatorium of the Hague Academy of International Law. He succeeded Prof. Yves Daudet. For more information, click here and here.

Prof. Fernández Arroyo is the first Latin American to ever hold that position.

Below is an image circulated by ASADIP. Many congratulations!

This case note is kindly provided by Dr. Samuel Vuattoux-Bock, LL.M. (Kiel), Freiburg University (Germany)

 

On May 23, 2024, the Stuttgart Higher regional Court (Oberlandesgericht), Germany, ordered the return of a child to Israel under the Hague Convention on the Civil Aspects of International Child Abduction. The war waged by Israel following the terrorist attack of October 7, 2023 is not sufficient in itself to establish a concrete risk of physical or psychological harm to the one-year-old child.

1.    Facts

The decision is based on the following facts. A couple moved to Israel in 2020. They had a child together in 2023 (with Greek citizenship) in Haifa (northern Israel). In February 2024, the mother of the child (German citizenship) flew to Reutlingen (Germany) without the knowledge and consent of the father. Thereupon, the father filed an application for the return of the child to Israel under the regime of the Hague Convention on the Civil Aspects of International Child Abduction, as Israel is a member state thereof. Both the District Court (Amtsgericht) and the Higher Regional Court of Stuttgart ordered the return of the child to Israel.

2.    Decision of the Court

The Higher Regional Court ruled that there was no actual, concrete risk of physical or psychological harm within the meaning of Art. 13(1)(b) of the Hague Convention for the child in Israel. The formal state of war in Israel and the region is not sufficient to justify such a risk. Furthermore, the situation is not comparable to the situation in Ukraine, where the same court refused to order the return of the child in 2022. The court based its reasoning on three main points: the alert levels of both the German and Israeli authorities do not indicate a concrete risk to the child’s safety; in light of the recent situation in Israel, and in particular the “Iron Dome”, there is no concrete risk to the child being in Israel; the situation, despite the state of war in the Middle East, is not comparable to the war situation in Ukraine.

a.    Sufficient security level and no concrete danger for the child

The mother argued in court that the threat of “massacres and attacks” in Israel is growing, as is the threat of Hezbollah attacks from Lebanon. The mother also claimed that Hezbollah rockets had been fired into the suburbs of Haifa, where the child lived.
The court first referred to both German and Israeli travel warnings. According to the German authorities, Israel is in a “formal state of war” and an escalation is possible at any time. On the contrary, the Israeli National Emergency Portal of the Home Front Command shows the regions of Tel-Aviv/Haifa/Ashdod-Gimmel and Netanya-West as secured (lowest emergency level “green- full activity”). Since travel warnings alone are not sufficient to establish a danger under Art. 13(1)(b) of the Hague Convention, the Court gave precedence to the security assessment of the Israeli authorities.
For the Court, the risk associated with the current conflict in the Middle East is not sufficiently concrete with respect to the child’s situation. To justify its decision, the Court analyzed the various actual security and war events of the past month in Israel. The hostage-taking by the terrorist group Hamas on October 7, 2023 cannot be considered an actual risk today. For the Court, the Israeli offensive in the Gaza Strip makes a repetition of such events “from a realistic point of view” very unlikely (No. 87). Furthermore, the drone and missile attacks of April 14, 2024, from foreign countries, in particular from Iran, must be analyzed as exceptional and, as such, cannot be taken into account in the assessment of the risk to the child (No. 88). Moreover, the Israeli air defense system “Iron Dome” has been effective in this context (No. 88, 96).
The Court draws the same conclusions with regard to the suicide bombings, explosions and other rocket fire that have occurred on Israeli soil. The Court sees only an abstract risk and a need for increased vigilance. These attacks, as terrorist attacks, are merely “criminal activities of individuals” (No. 91). These events were not presented by the mother in a sufficiently concrete manner to allow the court to see a concrete physical or psychological risk for the child. Finally, the Court bases its decision on the fact that the parents moved to Israel in 2020, informed of the complex situation in the Middle East. The Court cannot ignore that the security situation in Israel has been “tense” for some time (No. 91). For the Court, the situation here is definitely different from the situation in Ukraine.

b.    Situation not comparable to Ukraine

The Higher Regional Court of Stuttgart decided in 2022 to refuse the return of a child to Ukraine (specifically Odessa) based on the actual risk according to Art. 13 (1) b) due to the war provoked by Russia. The court explained in detail why the situation in Israel was not comparable.
In contrast to Israel, Ukraine faces a massive, formally organized war, with military troops on its soil (No. 94), coming from a “militarily dominant great power” (No. 97). Israel, on the other hand, faces attacks coming from outside its own country (besides the concrete events around the Gaza Strip). Even taking into account Iran, the concrete threat is not comparable (No. 97). Moreover, the number of victims in the Russian-Ukrainian war since February 2022 is massively not comparable with the (civilian and military) victims in Israel, even taking into account the victims of the Hamas attack on October 7, 2023 (No. 95). Finally, according to the Court, the (so far) efficient Israeli “Iron Dome” provides good security for the entire Israeli territory, in contrast to Ukraine, whose large territory is much harder to defend against air attacks. (No. 96).

3.    Comparison with decision from neighbor states toward Israel (France, Belgium)

In the past, some other European courts have found that the explosive situation in the Middle East and Israel constituted a risk within the meaning of Art. 13(1)(b) of the Hague Convention. The Court of Appeal of Brussels, in a decision of 2003, did not find a concrete risk for the child in Israel, but (very similar to the Stuttgart Court) only a general situation for the civilian population, including in view of the then possible war of the USA against Iraq and the training of children with gas masks. A decision of the French Court of Appeal of Chambéry in 2016 (confirmed by the French Cour de Cassation in 2017) decided to order the return of children suffering from AIDS to Israel, justified by the fact that Israel offers a good treatment for AIDS patients and that Israel, even if it experiences difficulties, is “definitely not at war”. The question remains whether the court would have made a similar decision today, given the current situation in Israel and the Gaza Strip.

4.    Final remarks

It appears that for the Court, the fact that the one-year-old child has not yet experienced a concrete attack in Israel is sufficient to establish a risk under Art. 13(1)(b) of the Hague Convention (this was the case, for example, in the Ukraine decision 2022). In view of the highly unstable situation and the escalation in the region, it is at least questionable to disregard the psychological aspects of experiencing, for example, air defense alerts and such stressful war situations – especially for a very young child. Since the political time is much faster than the judicial time, a strong discrepancy of decision can occur regarding the abduction of children in war zones. On the other hand, the interests of such a young child, who will soon be sent to school and separated from his father for an unknown period of time, must be taken into consideration. It is regrettable that this aspect did not play a major role in the Court’s decision. Thus, the state of war in Israel and the Middle East is not only extremely complex in terms of diplomacy and public international law, but also in terms of private international law.

Katarina Trimmings (University of Aberdeen), Sharon Shakargy (Hebrew University of Jerusalem) and Claire Achmad (Universiteit Leiden) edited Research Handbook on Surrogacy and the Law. Published by Edward Elgar in its Research Handbooks in Family Law series, the book provides a multifaceted exploration of surrogacy and the law, examining a variety of critical yet under-researched perspectives […]

Collective actions and the financing of complex mass damage cases have been among the most debated and controversial topics in civil justice in Europe over the past decade. It doesn’t need much explanation that oftentimes these complex cases involving a multiplicity of parties and events or consequences taking place in different countries trigger private international law questions, as for instance the ongoing evaluation of the Brussels I-bis Regulation evidences (see among others the 2023 Study in support of the evaluation; a 2021 Working Paper by Burkhard Hess; a 2022 report by BEUC on PIL and Cross-border Collective Redress). Another key issue is the funding of these inherently costly litigations. The Representative Action Directive, applicable since June 2023, and the European Parliament Resolution on Responsible private funding of litigation, adopted in 2022, have proliferated discussions on the funding of collective actions. With the entry into force of the Dutch collective damages procedure (WAMCA) in 2020, enabling compensatory actions, the Netherlands has re-confirmed its reputation as one of the frontrunners in having a well-developed framework for collective actions and settlements in Europe. High stake cases involving privacy, environmental law, human rights and consumer law have found their way to the courts and have benefitted from third party funding.

These developments have triggered the Dutch Research and Documentation Centre of the Ministry of Justice and Security to commission a Study on the need for a procedural fund for collective actions, published in 2023 (in Dutch). The book Financing Collective Actions in the Netherlands: Towards a Litigation Fund?, based on this study and including updates, has just been published (Eleven International Publishing 2024) and is available open access. The book is authored by Xandra Kramer (Erasmus University Rotterdam/Utrecht University), Ianika Tzankova (Tilburg University), Jos Hoevenaars (Erasmus University Rotterdam, researcher Vici team) and Karlijn van Doorn (Tilburg University). It discusses developments in Dutch collective actions from a regulatory perspective, including the implementation of the RAD, and contains a quantitative and qualitative analysis of cases that have been brought under the WAMCA. It then examines funding aspects of collective actions from a regulatory, empirical and comparative perspective. It delves into different funding modes, including market developments in third party litigation funding, and  addresses the question of the necessity, feasibility, and design of a (revolving) litigation fund for collective actions.

The hardcover version of the book can be ordered from the publisher’s website, which also provides access to the free digital open access version through the publisher’s portal.

A launch event and webinar on ‘Financing Collective Actions: Current Debates in Europe and Beyond’ will take place on 3 July from 15-17.15 CET. Confirmed speakers include Jasminka Kalajdzic (University of Windsor) and Rachael Mulheron (Queen Mary University London). Registration for free here.

On 25 April 2024, the CJEU handed down a landmark decision on EU company law. It curtailed the so-called “seat theory”, which still features in many Member State laws, to the extent that it can no longer be applied to companies from the European Economic Area (EEA). The Background The law governing companies has long […]

On Tuesday, June 4, 2024, the Hamburg Max Planck Institute will host its 45th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CEST). Martin Gebauer (Universität Tübingen) will speak, in German, about the topic

Substantive Law Impacts on Conflict of Laws Thinking

The presentation will be followed by an 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.

On 31 May 2024, the Aberdeen Law School will be holding a book launch event in memory of the late Professor Jonathan Fitchen – a former Director of the Aberdeen Centre for Private International Law and a distinguished private international law scholar, who passed away after a brief illness on the 22nd of January 2021.

Also on 31 May 2024, the Aberdeen Centre for Private International Law will be holding the second workshop in a series of workshops organised under the auspices of an RSE-funded research project titled ‘Laying the Foundations for a Restatement of Scots Private International Law’.