Flux des sites DIP

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, […]

In a child custody case where the place of residence of both the child in question and the defendant mother was unknown, the Finnish Supreme Court held, in a judgment of 17 September 2024, that the Brussels II ter Regulation (2019/1111) applied to penalty fine matters. Since no court of a Member State had jurisdiction […]

The following information has been kindly provided by Zlaty Mihailova, Center for International Legal Cooperation (CILC).

The EU-funded project PACE “Creating Privacy Awareness in Civil Enforcement” examines the intersection of civil enforcement and data protection and aims to contribute to the effective and coherent application of EU data protection law in civil enforcement procedures.

 The PACE Project is launching  free-of-charge on-line training seminars  for enforcement agents and/or their staff on a national and transnational level for the EU member states and EU candidate countries.

Objective:

• to offer practical and applied skills to enforcement agents or professionals exercising enforcement duties on data protection issues in civil enforcement.

Who is it for?

• Enforcement Agents,
• deputy enforcement agents,
• data officers working at the office of an enforcement agent,
• civil servants exercising enforcement duties,
• supervisory bodies of enforcement agents,
• other authorities involved in GDPR directly or indirectly related to enforcement,
• Ministry of Justice officials

Format of seminars:

• Transnational: each seminar will bring together enforcement officers from at least two to three EU member states to allow exchange of experience and best practice
• Practical: the seminars will focus on practical and applied skills which are relevant to the everyday work of enforcement agents
• Interactive: the seminars will include practical exercises and work in groups
• Linguistically accessible: Simultaneous interpretation into national languages will be available
• A minimum of 10 participants per EU member state
• No maximum number

Content of seminars:

• What is personal data in civil enforcement context
• When enforcement agents deal with personal data
• Common breaches of data protection
• Limitations in the use of data
• Case studies

Presenters/facilitators:

• Experts from the UIHJ and UEHJ
• Members of the PACE Training Committee
• PACE trainers

Certification:

• Participants who attend all sessions will receive a signed certificate of attendance.
  The training might also count for professional development points and/ or annual training obligation, please liaise with your national chamber on this issue.

Proposed seminar dates: 25-26/10; 31/10-01/11; 07-08/11; 14-15/11/2024 for Croatia, Slovenia, Slovakia

Final Seminar: Date TBD, open for all EU Member states

Upcoming seminar dates:

10-11/10 – BE, FR, LUX, NL PACE_Transnational trainings: Expression of interest form (10-11.10.2024)

18/11 – AU, DE, FI, SE PACE_Transnational trainings: Expression of interest form (18.11.2024)

Duration: 2 days (11 training hours), online.

Application deadline and procedure:

• 5 working days before the seminar date
• Please apply through your Court/ MoJ/National Chamber or complete the application through the link here

Contact persons for additional information:

Jos Uitdehaag                                            Maria Mousmouti

First vice-president of UIHJ                  Director Center for European Constitutional law

Email : j.uitdehaag@uihj.com               Email : projects@cecl.gr

This month the US Supreme Court granted certiorari in the case of Smith & Wesson Brands, Inc., et al. v. Estados Unidos Mexicanos (Mexico). For more information, click here. For some Private International Law implications, click here.

The petitioners are: Smith & Wesson Brands, Inc.; Barrett Firearms Manufacturing, Inc.; Beretta U.S.A. Corp; Glock, Inc.; Sturm, Ruger & Company, Inc.; Witmer Public Safety Group, Inc., d/b/a Interstate Arms; Century International Arms, Inc.; and Colt’s Manufacturing Company, LLC.

As previously reported, this is a much-politicized case initiated by Mexico against US gun manufacturers. Mexico alleges inter alia that defendants actively assist and facilitate trafficking of their guns to drug cartels in Mexico. Among the claims for relief are: Negligence, public nuisance, defective condition – unreasonably dangerous, negligence per se, gross negligence, unjust enrichment and restitution, violation of CUTPA [Connecticut Unfair Trade Practices Act], Violation of Mass. G.L. c. 93A [Massachusetts Consumer Protection Act], punitive damages.

At first, a US District Court dismissed the case, which we reported here. However, the Court of Appeals for the First Circuit reversed. See a recent official statement from the Mexican government here (in Spanish).

Some of the arguments of the Court of Appeals are (for the full judgment, click here):

[…] p. 38 et seq.

• “Instead, defendants contend that even for pleading purposes the complaint fails to allege facts plausibly supporting the theory that defendants have aided and abetted such unlawful sales.
• “We disagree, finding instead that Mexico’s complaint adequately alleges that defendants have been aiding and abetting the sale of firearms by dealers in knowing violation of relevant state and federal laws. “[T]he essence of aiding and abetting” is “participation in another’s wrongdoing that is both significant and culpable enough to justify attributing the principal wrongdoing to the aider and abettor.” Twitter, Inc. v. Taamneh, 598 U.S. 471, 504 (2023).

[…]

• “It is therefore not implausible that, as the complaint alleges, defendants engage in all this conduct in order to maintain the unlawful market in Mexico, and not merely in spite of it.

[…]

• “We think it clear that by passing along guns knowing that the purchasers include unlawful buyers, and making design and marketing decisions targeted towards those exact individuals, the manufacturer is aiding and abetting illegal sales. And this scenario, in substance, is fairly analogous to what Mexico alleges.”

The Court of Appeals concludes:

• In sum, we conclude that the complaint adequately alleges that defendants aided and abetted the knowingly unlawful downstream trafficking of their guns into Mexico. Defendants’ arguments to the contrary are premised either on an inaccurate reading of the complaint or on a misapplication of the standard of review on a motion to dismiss under Rule 12(b)(6). Whether plaintiffs will be able to support those allegations with evidence at summary judgment or at trial remains to be seen. At this stage, though, we must “accept all well-pleaded allegations of [Mexico] as true and afford all inferences in [Mexico’s] favor.” […]

As expected, Smith & Wesson Brands, Inc. et al. were unsatisfied with the judgment and filed for certiorari before the US Supreme Court. The questions presented are:

1. Whether the production and sale of firearms in the United States is the “proximate cause” of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico.
2. Whether the production and sale of firearms in the United States amounts to “aiding and abetting” illegal firearms trafficking because firearms companies allegedly know that some of their products are unlawfully trafficked.

In particular, and among other allegations, Smith & Wesson argues that: “Mexico’s theory of liability reduces to this: ‘A manufacturer of a dangerous product is an accessory or co-conspirator to illicit conduct by downstream actors where it continues to supply, support, or assist the downstream parties and has knowledge—actual or constructive—of the illicit conduct.’” However, Smith & Wesson contends that that theory of aiding and abetting has been rejected in case law and emphasizes the distinction between active complicity and passive conduct. It alleges that even if a company has extensive commercial activity, it is a not an active participant in downstream criminal acts unless the company engages in some other “affirmative misconduct” in promoting those acts (p. 29 et seq. of the petition).

Amicus briefs have been filed by:

• Washington Legal Foundation
• Atlantic Legal Foundation
• Landmark Legal Foundation
• Montana
• National Shooting Sports Foundation, Inc.
• National Association of Manufacturers et al.
• The American Constitutional Rights Union et al.
• National Rifle Association of America and Independence Institute
• Firearms Policy Coalition, Inc. and FPC Action Foundation
• The Buckeye Institute and Mountain States Legal Foundation’s Center to Keep and Bear Arms
• Michigan Coalition for Responsible Gun Owners
• National Association for Gun Rights and the National Foundation for Gun Rights
• S. Senator Ted Cruz, U.S. Representative Darrell Issa, and 25 Other Members of Congress
• The Second Amendment Foundation

If the Supreme Court affirms the Court of Appeals’ judgment,  this is only the beginning of a long and complex litigation. As stated by the Court of Appeals, it remains to be seen whether Mexico’s allegations can be proven at summary judgment or at trial. Any updates will be reported here.

The third issue of 2024 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. Along with recent case law and materials, it features an article, a collection of debates contributions, and a comment. Article: Cristina Campiglio, Linguaggio e tecniche redazionali nel diritto internazionale privato italiano [Language and Drafting Techniques in Italian Private […]

We are pleased to announce the publication of the latest issue of the Chinese Journal of Transnational Law (Volume 1, Issue 2, September 2024). The special issue titled “Legalization of Foreign Relations in China” was guest-edited by Professor Congyan Cai.

The full issue is now available with free access for a limited time. You can explore the table of contents and access the articles at this link: Chinese Journal of Transnational Law – Volume 1, Issue 2.

Table of Contents

Special Issue Articles

Legalization of Foreign Relations in China
Zheng Tang and Congyan Cai
pp. 89

Milestone of China’s Foreign-Related Legislation – A Review of the Law of the People’s Republic of China on Foreign Relations
Huang Huikang
pp. 95

Political Framing in China’s Foreign Relations Law: International Law and ‘Fundamental Norms Governing International Relations’
Malcolm Jorgensen
pp. 117

China’s Foreign State Immunity Law: A View from the United States
William S. Dodge
pp. 137

A Critical Appraisal on China’s Blocking Statutes from a Private Actor’s Perspective
Guiqiang Liu
pp. 154

Original Research Article

A Future Uniform Regime of International Commercial Mediator Immunity: Limited, Party-Agreed and Statute-Required
Meng Lin
pp. 176

Short Article and Recent Development

Reading China’s Global Security Initiative Through an International Legal Lens
Ka Lok Yip
pp. 198

Book Review

Liang Xi, Updated and Augmented by Yang Zewei, Liangxi Guojizuzhifa
Gang Tang
pp. 211

 

In my August conflict of laws exams I asked the students the following question:

In Case C-494/23 Maha, facts are as follows. On 19 August 2017, applicants purchased a motor vehicle in Germany. On 12 September 2017, the vehicle was seized by the Police of the Czech Republic on the ground that it is the subject of suspicion of the criminal offence of theft committed in France. Subsequently, the Police placed the vehicle in custody. Applicants then filed an application with the Czech court for the release of the vehicle from custody.

Given that, in previous proceedings, other persons had claimed a right to the vehicle, according to Czech law consent of all of the persons concerned is required for the release of the subject of custody, or the substitution of their consent by a court ruling. Consequently, applicants filed an application with the same court against defendants resident in France, for the substitution of their consent to the release of the item from custody. The defendants did not attend the proceedings

The CJEU is asked to determine

1. 1. 1. 1. whether proceedings concerning the substitution of the defendant’s consent to the release of an item from judicial custody in which the item was placed by a law enforcement authority in criminal proceedings, falls within the autonomous term of EU law of a ‘civil and commercial matter’ as defined in Brussels Ia.; and
         2. if it indeed does fall within that term, whether an application initiating such proceedings may be deemed to constitute an application in ‘any other third-party proceedings’ within the meaning of A8(2) Brussels Ia.

How in your view should the CJEU respond? Answer both questions, even if you argue that the answer to question 1 should be in the negative.

I was of course expecting students to review the core ‘civil and commercial’ cases as reviewed extensively on the blog -and in class; I don’t just ask students to read the blog ;-¬ , to highlight the continuing confusion /uncertainty, and to make a determination either way.

My two cents was on the claim indeed being civil and commercial. It is a claim in the periphery of a criminal investigation yet the claim itself is one in pure restitution /confirmation of ownership, between parties neither of whom are public authorities, where no extraordinary powers are being used by any of the parties involved.

The CJEU held differently two weeks ago. It is imo indicative of the state of confusion over this core trigger for Brussels Ia that another commentator, perfectly legitimately, finds the judgment ‘not surprising’.

Consider the reasons for the referring court to suggest the case might be civil and commercial, [19]:

The referring court is of the opinion that certain considerations lead to the conclusion that the proceedings for substituting consent to the release from court custody come within the concept of ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012 and, consequently, within the material scope of that regulation. Accordingly, the purpose of court custody is to dispel, in the context of a civil action, any doubt as to which of the persons concerned may have the item returned to them by reason of a right to property or another right. Furthermore, those proceedings, which are inter partes, are governed by rules of civil procedure, more specifically by those relating to special court proceedings.

I won’t repeat all the references included by the CJEU seeing as they are the classic ones (all reviewed on the blog); this time the core port of call would seem to have been Lechouritou where the Court had summarised its position (in 2007) and with reference to other classics [Eurocontrol, Rüffer [7]; Gemeente Steenbergen [28]; Préservatrice foncière TIARD SA v Staat der Nederlanden [20]; Land Oberösterreich v ČEZ [22]] as follows:

It is to be remembered that, in order to ensure, as far as possible, that the rights and obligations which derive from the Brussels Convention for the Contracting States and the persons to whom it applies are equal and uniform, the terms of that provision should not be interpreted as a mere reference to the internal law of one or other of the States concerned. It is thus clear from the Court’s settled case-law that ‘civil and commercial matters’ must be regarded as an independent concept to be interpreted by referring, first, to the objectives and scheme of the Brussels Convention and, second, to the general principles which stem from the corpus of the national legal systems …

According to the Court, that interpretation results in the exclusion of certain legal actions and judicial decisions from the scope of the Brussels Convention, by reason either of the legal relationships between the parties to the action or of the subject matter of the action …

Thus, the Court has held that, although certain actions between a public authority and a person governed by private law may come within the scope of the Brussels Convention, it is otherwise where the public authority is acting in the exercise of its public power.

Core of the CJEU’s Lechoritou reference in current case is in [44]. The referring court and the claimants had argued that the preliminary proceedings take place between individuals not involving law enforcement authorities, that the procedure is inter partes and that the detailed rules for its exercise are governed by rules of civil procedure (the kind of arguments which in other cases assisted in coming to a finding of ‘civil and commercial’). In Mahá the CJEU answers [44] with reference to Lechoritou ([41)}

the fact that the plaintiff acts on the basis of a claim which arises from an act in the exercise of public powers is sufficient for his action, whatever the nature of the proceedings afforded by national law for that purpose, to be treated as being outside the scope of the Brussels Convention

Pro memoria: Lechoritou involved a claim by Greek nationals against the German State, on the basis of a nazi massacre in 1943. A money claim by private individuals against a foreign state (unlike current case between private parties) directly ‘arising from’ the ultimate act of sovereign power namely warfare.

The situation in current case is very very different.

[36] the CJEU insists that the current action is “based on”  –I do not think it is: it follows from it, it is not based on it– “the seizure proceedings ordered by the law enforcement authorities and the placing of the property in question in the custody of the court.” This, it says [36] “is an essential prerequisite for the release of the property from the custody of the court and the restoration of the property” and [37] “It follows that, in the light of both its subject matter and its basis, since proceedings to substitute consent are inextricably linked to the seizure of the property at issue by the law enforcement authorities and to the subsequent placing of the property in the custody of the court, they cannot be examined without having regard to those proceedings.” (emphasis added)

This focus on ‘inextricably linked’, the ‘prerequisite’ of the property claim and the vicinity of the criminal proceedings brings us close in my view to the context criterion adopted by the Court in Kuhn and  in my view is likely to lead to yet further confusion, as well as forum shopping possibilities. There is an infinite amount of civil claims which are inextricably linked to criminal proceedings which are the prerequisite of the civil claim at issue or arise form such a claim. Take libel actions which in many States are a criminal offence, or take follow-on damages claims in competition law or unfair competition: both are criminally sanctioned in all EU Member States. Leaving it up to national courts to decide whether the link is intimate enough to warrant exclusion from Brussels Ia is likely to endanger Brussels Ia’s number one DNA, which last time I looked, continues to be predictability.

Geert.

EU private international law, 4th ed. 2024, Heading 2.2.2.2.

 

In C-425/22 MOL Magyar Olaj- és Gázipari Nyrt. v Mercedes-Benz Group AG Emiliou AG had opined in that a parent company cannot rely on the competition law concept of economic unit to establish jurisdiction where it has its registered seat, re a claim for damages for the harm suffered by its subsidiaries. I referred in my review of the Opinion to my colleague Joeri Vananroye summarising it as :

“In corporate law terms: yes to outsider veil piercing, no to insider reverse veil piercing. Outsiders may disregard legal structure and go for economic reality; but not those who set up that structure. See also: rules on derivate damages.”

The CJEU confirmed early July (yes, I have a blog queue to tackle…): [44]

the objectives of proximity and predictability of the rules governing jurisdiction and consistency between the forum and the applicable law, and the unhindered possibility of claiming damages for the harm arising from an infringement of competition law affecting a member of the economic unit, preclude a reverse application of the concept of ‘economic unit’ for the determination of the place where the damage occurred, for the purposes of Article 7(2) of Regulation 1215/2012.

The CJEU further explains these principles in current context with reference to the same case-law as the AG and as reviewed in my post.

Geert.

EU private international law, 4th ed. 2024, 2.438 ff.

https://x.com/GAVClaw/status/1809233522462183689

Adrian Tehrani, who is professor of private law at the University of Montpellier, has published Droit européen de l’insolvabilité (European insolvency law) with Bruylant. The book offers a comprehensive treatment not only of the Insolvency Regulation but also of the Restructuring and Second Chance Directive. It is thus not only focused on private international law, […]

The following information on the Journal of Private International Law 20th Anniversary Conference, to be held at the Faculty of Laws, University College London, Thursday 11 – Saturday 13 September 2025, has kindly been provided by Ugljesa Grusic.

We are pleased to invite the submission of paper proposals for the conference. Submission is open to anyone regardless of seniority or academic affiliation, including postgraduate students and practitioners, with an expectation that you will produce a paper for submission to the Journal of Private International Law by the end of the 2025 calendar year (with publication subject to the usual peer review process). Proposals are welcome on any topic within the scope of the Journal. A proposal should include an abstract of no more than 500 words, as well as details of the name and affiliation(s) of the author(s).

The conference will include, in the customary manner, a mixture of parallel panel sessions (on Thursday afternoon and Saturday morning) and plenary sessions (on Friday). Please indicate in your proposal whether you are willing to present in either format, or only in one or the other – a willingness to be flexible will increase your chance of being selected. Selection will be made by the conference organisers (Professor Ugljesa Grusic and Professor Alex Mills) and the Editors of the Journal (Professor Jonathan Harris and Professor Paul Beaumont).

The conference will be held in Bentham House, the home of UCL Faculty of Laws, in Bloomsbury, London. Speakers will not be expected to pay a conference fee, but will need to pay for their own expenses, including travel and accommodation. Non-speakers will be expected to pay a conference fee.  A conference dinner will be held on Friday (12 September 2025), at additional cost and with limited places – details will be provided in due course on the conference web page at https://www.ucl.ac.uk/laws/events/2025/sep/person-journal-private-international-law-20th-anniversary-conference. There are a wide variety of hotels available nearby – further information about accommodation options and other practicalities will also be provided on the conference web page in due course.

Please send your paper proposal by email to  JPrivIL25@ucl.ac.uk by 17 January 2025.

We look forward to receiving your proposals, and to welcoming you to London in September 2025!

Professor Ugljesa Grusic, Professor of Private International Law (UCL)
Professor Alex Mills, Professor of Public and Private International Law (UCL)
Professor Paul Beaumont, Professor of Private International Law (University of Stirling)
Professor Jonathan Harris, Professor of International Commercial Law (King’s College London)

The author of this post is Helga Luku, a PhD researcher at the University of Antwerp. Five months after Advocate General De La Tour delivered his Opinion (see further here), the Court of Justice finally gave its judgment on the Mirin case on 4 October 2024. The Cour ruled that Articles 20 and 21(1) of […]

Prof. Zheng Sophia Tang will be hosting a hybrid conference on Private International Law and Sustainable Development in Asia at Wuhan University on 23rd November 2024. This conference will be held both in person and online.

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

The tentative program is as follows:

Conference on Private International Law and Sustainable Development in Asia

Date: 23 November 2024 Venue: Wuhan University School of Law Zoom link: To be announced

22 November 2024

06:00 PM: Conference Dinner

23 November 2024

08:30 – 09:00 AM: Registration and Welcome Coffee

09:00 – 09:05 AM: Opening Remarks

• Prof Zheng Tang, Associate Dean, Wuhan University Academy of International Law and Global Governance

09:05 – 9.20 AM: Welcome Remarks

• Prof Yongping Xiao, Director of Wuhan University Institute of International Law, Dean of Wuhan University Academy of International Law and Global Governance

9:20- 9:40 AM: Keynote Address (Private International Law and Sustainable Development)

• Prof Ralf Michaels, Veronica Ruiz Abou-Nigm and Hans Van Loon

9:40–10:00 AM: Conference Photo and Coffee Break

10:00 – 11:00 AM: Panel 1: Family/Equality

• Chair: Ralf Michaels
• Panelists
  • CHEN, Rong-Chwan: Taiwan’s Path toward SDG 5 in Private International Law
  • JOLLY, Stellina; MALLA, Prakriti: International Child Abduction Jurisprudence in India and Nepal: an Evaluation of Gender Consideration in the Attainment of SDG 5
• Discussant: N.N.
• Q & A

11:00 – 11:15 AM: Coffee Break

11:15-12:15 Panel 2: Migration

• Chair: Veronica Ruiz Abou-Nigm
• Panelists

• NISHITANI, Yuko: Migration and SDGs in Family Relationships

• • YANG, Zixuan: Sustain the Legal Identity for Intra-Regional Circular Migrants in Asia: From Private International Law towards Openness, Inclusiveness and Equity in the Greater Bay Area
• Discussant: Rong-Chwan Chen
• Q & A

12:15 – 01:15 PM: Lunch Break

01:15 – 02:45 PM: Panel 3: Environment/Climate Change

• Chair: Hans van Loon
• Panelists:
  • CHONG, Adeline; SCHACHERER, Stefanie: Extra-territorial Liability and Enforcement: Finding Ways to Tackle Haze Pollution in Southeast Asia
  • BUI, Thi Quynh Trang; NGUYEN, Thi Hong Trinh: Exploring the Potential for Climate Change Litigation in Vietnam: A Forward-Looking Assessment
  • REYES, Anselmo: The Impartial Judge, Climate Change and the Conflict of Laws
• Discussant: Yuko Nishitani
• Q & A

2:45 – 3:00 PM: Coffee Break

3:00-4:30 Panel 4: The Role of the State

• Chair: Sophia Tang
• Panelists:
  • MU, Ke: State-owned Enterprises’ Role in Marching towards the Sustainable Development Goals
  • FAN, Zihao: Cities’ Roles in Transnational Access to Justice and the Sustainable Value therein: An Observation on Jurisdictional Rules of Mainland China
  • ZHOU, Jiabao: Private International Law as Foreign Relations Law? Reorienting Chinese Private International Law towards Sustainable Development
• Discussant:
• Q & A

4:30-5:15 Presentations: The International Framework

• Chair: To be announced
• Panelists:
  • GOH ESCOLAR, Gérardine: Private International Law Frameworks for the Digital and Green Economies: Crucial Tools for the Realisation of the United Nations Sustainable Development Goals
  • ZHAO, Ning: Navigating Transnational Litigation in Asia: The HCCH’s Contribution to Achieving SDGs through Effective Legal Frameworks
• Discussant:
• Q & A

5:15-5:30 Closing Remarks

• Prof Jin Huang, President of China Society of Private International Law

06:00 PM: Conference Dinner

Information kindly provided by Johannes Ungerer

At the University of Oxford, a conference on ‘Characterisation in the Conflict of Laws’ will be held on 20 and 21 March 2025. It is jointly organised by Dr Johannes Ungerer (University of Oxford and University of Notre Dame in England), Dr Caterina Benini (Catholic University of the Sacred Heart, Milan), and PD Dr Felix Berner (University of Tübingen), and is funded by the Institute of European and Comparative Law and the Faculty of Law.

For more than a century, characterisation has been discussed in the conflict of laws without reaching a consensus on a generally accepted theory. However, it is arguably the most crucial step for a court when determining its international jurisdiction and the applicable law. Characterisation identifies in cross-border litigation the nature or category of a particular cause of action (for instance contractual, tortious, proprietary, corporate, matrimonial), so that the correct connecting factor can be employed. This is difficult where the action is unknown domestically or potentially falls in-between two categories and could thus be litigated in different fora or under different laws, leading to different outcomes. What makes it even more complex are the different techniques proposed for characterisation, depending on the origin of the conflicts rules in question (national, EU, or international rules).

The conference, taking place at St Hilda’s College, will be organised as a round-table discussion, bringing together legal scholars and practitioners from a range of jurisdictions, covering both Common Law and Civil Law traditions, in order to establish a common understanding of the practices and challenges regarding characterisation. It will feature contributions from 15 speakers in three sessions: the programme can be accessed here.

The conference room can accommodate a small number of attendees. Interested scholars and practitioners are invited to express their interest in attending the conference by sending an email to Dr Ungerer by 17 November 2024.

Written by Jidong Lin, Wuhan University Institute of International Law

1. Background

China’s newly amended Civil Procedure Law (“CPL 2024”), which came into effect on 1 January 2024, introduces several distinct and innovative changes. Among the most notable is the incorporation of “other appropriate connections” as a jurisdiction ground. Article 276 of the CPL 2024 addresses the jurisdiction of Chinese courts over foreign-related disputes where the defendant lacks domicile in China. Paragraph 1 of Article 276 lists six jurisdiction grounds, including the place of contract formation, place of contract performance, place of the subject matter, place of distrainable property, place of tort, and place of representative offices. As a supplement, Paragraph 2 provides that “notwithstanding the preceding paragraph, foreign-related civil disputes that have other appropriate connections with the People’s Republic of China may fall under the jurisdiction of the People’s Courts.” The term “other appropriate connections” represents a legal innovation not only within Chinese legislation but also on a global scale. Currently, there is no official interpretation or guidance on its precise meaning, making it essential to analyze and evaluate this jurisdiction ground and its potential implications for jurisdictional practices.

2. Legislative Purposes

Regarding the legislative purposes behind the incorporation of “other appropriate connections”, the then President of the Supreme People’s Court explained at the 38th meeting of the Standing Committee of the 13th National People’s Congress that the purpose is to “increase the types of foreign-related cases under China’s jurisdiction, expand jurisdiction grounds, better protect the rights of both Chinese and foreign parties, and effectively safeguard China’s sovereignty, security, and development interests.”[1] Additionally, the head of the Civil Law Office of the Legal Affairs Commission of the Standing Committee of the National People’s Congress, one of the principal figures involved in drafting the amendment, emphasized that the incorporation of “other appropriate connections” is intended to “expand the jurisdiction of Chinese courts over foreign-related cases.”[2] From these official explanations, it can be concluded that the legislative purposes of incorporating “other appropriate connections” as a jurisdictional ground are threefold: (a) expanding jurisdiction over foreign-related cases, (b) protecting the rights of parties, and (c) safeguarding national and public interests.

3. Potential Function

The legislative purposes outlined in official statements are somewhat broad and indirect. However, scholarly works offer insights into the potential functions of this jurisdiction ground, which help achieve legislative purposes. These functions can be summarized as follows:

a) Filling Jurisdiction Gaps

First, “other appropriate connections” can help fill jurisdiction gaps. This is particularly relevant when the interests of Chinese individuals or companies are infringed upon in a cross-border context while none of the listed jurisdiction grounds apply.[3] Such situations are increasingly common due to rapid social developments that give rise to new types of disputes. In such cases, “other appropriate connections” can serve as a supplementary jurisdiction ground to fill the jurisdiction gaps and protect their interests.

b) Articulating Extraterritoriality Provisions

Second, “other appropriate connections” can strengthen the enforcement of extraterritoriality provisions in Chinese laws. China has introduced extraterritoriality provisions in several regulatory laws, including the Personal Information Protection Law, Anti-Trust Law, and Security Law. However, the previous Civil Procedure Law lacked corresponding provisions that granted Chinese courts adjudicative jurisdiction over related disputes. The incorporation of “other appropriate connections” addresses this gap, allowing courts to assert jurisdiction in such cases.

c) Substituting Necessity Jurisdiction

Third, “other appropriate connections” may act as a substitute for necessity jurisdiction. The CPL 2024 does not formally establish the necessity jurisdiction, despite scholarly calls for its establishment.[4] Although the adoption of necessity jurisdiction in China remains a topic for further discussion, “other appropriate connections” may provide a mechanism for courts to exercise this type of jurisdiction when required.[5]

4. Interpretation

It is necessary to first establish the methodology for the interpretation of “other appropriate connections”. Some scholars argue that future judicial interpretations should continue to follow the enumerative approach—listing several typical jurisdiction grounds to provide a degree of legal certainty. In terms of content, it has been suggested that indirect jurisdiction grounds, as outlined in the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019, should be considered.[6] However, this approach may result in rigidity and a lack of flexibility, which have been the main criticisms of the earlier legislation. As a result, a more flexible and open approach should be adopted instead, one that provides general guidelines while allowing judges to conduct case-by-case analyses.[7]

This method is further illustrated by judicial practices involving “other appropriate connections”. In the first case to adopt “other appropriate connections” as the jurisdiction ground, the Supreme People’s Court addressed a jurisdictional issue arising from a dispute related to FRAND (Fair, Reasonable, and Non-Discriminatory) licensing.[8] The Court stated that whether the dispute has “appropriate connections” with China should be assessed by examining the characteristics of the case. Based on this analysis, the Supreme People’s Court identified several connecting factors that serve as additions to the jurisdiction grounds listed in the previous Civil Procedure Law. The Court concluded that if any of these connecting factors are situated within Chinese borders, the dispute will have “appropriate connections” with China.[9] This practice indicates that the primary method for interpreting “appropriate connections” involves analyzing specific cases to define additional relevant connecting factors or jurisdictional grounds.

The next question regarding interpretation is the extent of connection required by “other appropriate connections”. To clarify this, the wording used must be considered. During the legislative process, the term “appropriate connections” was specifically chosen to distinguish it from terms like “real and substantial connections” and “minimum contacts”, which are commonly used in comparative law and academic literature. This suggests that “appropriate connections” do not necessitate a close connection to “substantial connection”, yet should not be overly broad like “minimum contacts”.[10] However, the precise extent required remains to be determined. It appears that the necessary extent may depend on the interests at stake since the primary purpose of incorporating “other appropriate connections” is to protect China’s private and public interests. Thus, a more vital interest may necessitate a lower threshold for connection, while less vital interests may demand higher.

5. Concluding Remarks

The incorporation of “other appropriate connections” as a jurisdiction ground reflects China’s determination and ongoing efforts to enhance its foreign-related legal framework. It also provides a solid foundation for Chinese courts to actively participate in transnational governance. From the perspective of international law, Chinese practices concerning “other appropriate connections” deserve further examination, since it also serves as a supplementary rule for indirect jurisdiction (Article 301, CPL 2024) and for the allocation of enforcement jurisdiction within borders (Article 304, CPL 2024). It is fair to submit that “appropriate connections” constitutes a fundamental jurisdiction rule of China, potentially contributing to the development of international laws in corresponding fields. However, current practices and guidelines regarding “other appropriate connections” remain insufficient, highlighting the need for continual and further observation.

[1] See Zhou Qiang, ‘Explanation on the Civil Procedure Law of the People’s Republic of China (Draft Amendment)’ (National People’s Congress of the PRC Website, (27 February 2021) <www.npc.gov.cn/npc/c2/c30834/202112/t20211227_315637.html> accessed 13 October 2024.

[2] See Wang Qiao, ‘China’s Civil Procedure Law Completes Revision, Will Better Safeguard Parties’ Litigation Rights and Legitimate Interests – Interpretation of the Newly Revised Civil Procedure Law People’s Court Daily (Beijing, 2 September 2023) 4.

[3] See Shen Hongyu & Guo Zaiyu, ‘Commentary on and Interpretation of the Revised Provisions of the Foreign-Related Part of the Civil Procedure Law’  (2023) 54 China Law Review 70, 73.

[4] See Huang Zhihui, ‘System Positioning and Normative Explanation of Necessary Jurisdiction System of Foreign-related Civil Litigation in China’  (2022) 39 Studies in Law and Business 48, 60-61.

[5] See Huang Zhihui, ‘Study on the International Civil Jurisdiction of Appropriate Connections in the Context of the Foreign-Related Rule of Law’  (2023) 505 Law Science 176, 185-186.

[6] See Liu Guiqiang, The Challenges and Responses Faced by China’s Counter-Sanctions Litigation Recovery System  (2023) 45 Global Law Review 211, 219.

[7] See Guo Zhenyuan, Appropriate Connections Principle in Foreign-Related Civil Litigation Jurisdiction: Theoretical Explanation and Path of Application  (2024) 127 Chinese Review of International Law 127, 137.

[8] Conversant Wireless Licensing S.A.R.L. v. ZTE Corporation Ltd., (2019) Zui Gao Fa Zhi Min Xia Zhong No. 157 (Supreme People’s Court).

[9] Similar reasoning can be seen in Guang Dong Oppo Mobile Telecommunications Corp., Ltd., et al. v. Sharp Corporation., et al., in Supreme People’s Court Gazette, Issue 2, 2022 (Total No. 306) p. 23-30.

[10] See Shen Hongyu & Guo Zaiyu, ‘Commentary on and Interpretation of the Revised Provisions of the Foreign-Related Part of the Civil Procedure Law’  (2023) 54 China Law Review 70, 73.