Flux des sites DIP

On 11 January 2021, the Tax and Law Department of HEC Paris will host an online workshop titled What future for Cross-Border Small Claims?

The event will involve a keynote speech by Elena Alina Ontanu (Erasmus University Rotterdam) and a presentation of the guidelines on the European Small Claims Procedure Regulation (ESCP) that have been produced in the context of the SCAN Project, co-funded by the European Union. The objective of the workshop is to disseminate information about the ESCP in order to help consumers and other stakeholders to use this procedure.

The workshop is organized in the framework of the EU-financed project SCAN – ‘Small Claims Analysis Net’, aimed at studying the flaws and implementation issues regarding the ESCP.

The programme of the event and the registration form are available here.

The new issue of the Revue Critique de Droit International Privé (4/2020) is out.

It contains four articles and numerous case notes. The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on the Dalloz website (Éclectique, résolument…).

In the first article, Delphine Porcheron (University of Strasbourg/CNRS) addresses the peculiar challenges raised by transnational civil litigation for the reparation of “crimes of the past”, in the light of private international law (Les actions civiles transnationales en réparation des “crimes du passé”).

Transnational civil litigation for the reparation of “crimes of the past” has been growing for the past 30 years. Several features underline its singularity: the extraordinary seriousness of the facts at the origin of the legal actions, their impact on collective memory, the political and temporal dimensions of the disputes. The study of judicial proceedings brought by individuals before European, American and Asian tribunals reveal a distinct approach depending on the court referred to. In this context, one can come to consider how private international law deals with these complex litigations. On the one hand, both public and private international laws are to be mutually considered. On the other hand, private international law rules should be applied in order to take into account the specific environment of these cases.

In the second article, Mathias Audit (University of Paris 1, Sorbonne Law School) discusses the complex issue of blockchain in the light of private international law (Le droit international privé confronté à la blockchain).

The blockchain is one of the major technological developments of the last ten years in respect of securing exchanges. Its applications are very varied, ranging from cryptocurrency, through smart contracts or initial coin offerings (ICOs), to the creation of decentralized autonomous organizations (DAOs). All of these applications, as well as those that are still to come, have the particular feature of evolving in an environment that is detached from any territorial basis. This specific situation obviously renders the confrontation of the blockchain with the techniques of private international law complex. However, avoiding these confrontations appears to be difficult, because through them, it is the opportunity for domestic laws to regulate legal relations based on this new technology that is at stake.

In the third article, Tristan Azzi (University of Paris 1, Sorbonne Law School) proposes to rethink in depth the interpretation of the jurisdictional rules applicable to cybercrime, in the context of the decline of the “accessibility criterion” (Compétence juridictionnelle en matière de cyber-délits : l’incontestable déclin du critère de l’accessibilité – A propos de plusieurs arrêts récents).

In the fourth article, David Sindres (University of Angers) addresses the difficult issue of civil liability action brought by a third party against a contracting party, in the light of recent case law (L’appréhension par le droit international privé de l’action en responsabilité d’un tiers fondée sur un manquement contractuel du défendeur).

 Lying on the borders of contractual and tort matters, the civil liability action brought by a third party against a contracting party whom it accuses of having, through its contractual breaches, caused its damage, is difficult to address from a private international law perspective. This is evidenced by several recent decisions handed down by the French Court of Cassation in cases where the claimants, third parties to certification contracts, had complained that a German certifier had committed various contractual breaches which contributed to the occurrence of their damages. Reflecting on these decisions, the present article aims at finding the adequate regime for this action under private international law.

 The full table of contents is available here.

The course Party Autonomy in International Family Law given by Cristina González Beilfuss at the Hague Academy of International Law in Summer 2018 has recently been published in volume 408 of the Academy’s Collected Courses (Recueil des cours).

As explained in the summary:

Party autonomy, i.e. the power of parties to select the applicable law, is increasingly used in international family law. This course follows this development and questions whether rules that have been developed in relation to commercial contracts work also for personal relationships. This involves an in- depth analysis of the functions of party autonomy in Private international law and the needs of families in contemporary society. The latter has often been neglected in Private international law theory that has uncritically assumed a normative idea of family life and failed to consider the care work families do in society and the different roles assumed by family members in accordance to gender.

The course is divided into an introduction and five chapters, followed by an extensive bibliography. In the introduction, the Author defines party autonomy “as the principle according to which parties to an international relationship are free to choose the applicable law” or to “deselect the law that would apply on objective grounds, including its mandatory rules, and to stipulate the application of another law”. The course also deals with dispute resolution, but only to the extent it opens possibilities for indirectly choosing the applicable law. The family is understood broadly. Geographically, the research encompasses, in general, Europe.

The structure of the course is as follows:

In Chapter I, I will describe the role of party autonomy in private international law. After a short overview of developments in other subject areas, namely in contract, tort, property and succession, I will map family law more exhaustively, and explore both horizontal and vertical family relationships in order to show the opportunities for direct and indirect party autonomy.

In Chapter II, I will investigate the theoretical foundation of party autonomy in relation to, in particular, family law. I will try to find out which is the function of the party autonomy rule and why families might benefit from selecting the applicable law, if allowed to do so. In this chapter, I will also try to determine whether there should be any limits to party autonomy, in particular, in view of the special character of family law.

Chapter III will deal with the choice of law contract and examine party autonomy from a contractual perspective. I will try to determine the requirements parties need to comply with to materialize their intention of selecting the governing law. The approach in this chapter is principled. I do not only examine the law as it stands but try to critically determine whether present rules provide satisfactory solutions in a family law context.

Chapter IV then examines restrictions to party autonomy. In accordance with the findings of Chapter II, it is claimed that party autonomy needs to be regulated and restricted in order to ensure that it works in favor of family and not against it.

Chapter V finally examines indirect party autonomy, a number of strategies that parties can resort to, when party autonomy is not openly accepted, that, in the end, allow them to select the law applying to their legal relationship.

For more details (including table of contents and bibliographical note on the Author) please consult Brill’s website. The course is already available online (for example, for holders of Peace Palace Library card).

The EU has developed a common judicial area where judgments given in one EU Member State are recognised and can be enforced in all others. To this end, the EU has adopted a number of legal instruments that regulate and ease cross-border enforcement, ensuring legal certainty for all parties and making these processes easier. One of them is Regulation (EC) 805/2004 creating a European Enforcement Order for uncontested claims (the EEO Regulation).

When it was adopted, the Regulation was a ground-breaking instrument that was the first to abolish the need for obtaining a declaration of enforceability in the requested state (the so-called ‘exequatur’). The EEO certificate has replaced it.

Other similar legal instruments were adopted in quick succession, leading to the ‘exequatur’ being abolished by Regulation (EU) 1215/2012 (the Brussels I bis Regulation), although with different conditions than those in the EEO Regulation.

In 2020, the Commission decided to evaluate the EEO Regulation, and to carry out a consultation as a part of the evaluation process. The Commission sought opinions on how the Regulation is working, also with regard to the Brussels Ibis Regulation. It also aimed to collect practical experiences with the EEO Regulation and views on its use in the future.

Upon an invitation by the Commission, the EAPIL formed a Working Group chaired by Jan von Hein (University of Freiburg/Germany). This Working Group presented a position paper in November 2020 that is now available here.

Members of the Working Group will also participate in the upcoming Commission’s online workshop on the revision of the EEO Regulation in January 2021.

Written by Catherine Shen, Project Manager, Asian Business Law Institute

1. The ConflictofLaws.net previously published a short update on the Asian Principles for the Recognition and Enforcement of Foreign Judgments (Adeline Chong ed, Asian Business Law Institute, 2020) which was released in September 2020.
2. Starting in November 2020, ABLI has been following up that publication with a series of concise handbooks written in no-frills languages called “Where in Asia” to address practical questions such as where in Asia judgments from a particular jurisdiction are entitled to be, have been and cannot be, recognised and enforced in other jurisdictions. The jurisdictions considered are Australia, Brunei, Cambodia, China, India, Japan, Lao, Malaysia, Myanmar, the Philippines, Singapore, South Korea, Thailand and Vietnam, which corresponds to those discussed in the two flagship ABLI publications on judgments recognition and enforcement: Recognition and Enforcement of Foreign Judgments in Asia (Adeline Chong ed, Asian Business Law Institute, 2017) and the Asian Principles.
3. For example, included in this “Where in Asia” series is a Quantitative Analysis of the Enforcement of Foreign Judgments in China (as of December 2020) which is based on a list on China’s cases on recognition of foreign judgments (List) being maintained by China Justice Observer (CJO).
4. While CJO’s List looks at both applications to recognise and enforce foreign judgments in China as well as those to recognise and enforce Chinese judgments in foreign jurisdictions, ABLI’s analysis focuses specifically on the former category of applications.
5. Based on the List, ABLI identified an uptick in the number of such applications from 2015 to 2020, compared to the previous two decades, with Europe being the region that has exported the most judgments to China.
6. Further, there are two routes for the recognition and enforcement of foreign judgments in China: either pursuant to a bilateral agreement (or “treaty”) between China and the country of the foreign court for the reciprocal enforcement of each other’s judgments, or under China’s domestic Civil Procedure Law (CPL) in the absence of such an agreement or treaty. Through its analysis, ABLI found that almost three in every five applications to enforce foreign judgments in China were unsuccessful, which is hardly surprising considering that more than half of all applications were made under the CPL route where applicants are required to demonstrate reciprocity. Under Chinese law currently, de facto reciprocity is required ie it has to be established that the foreign court whose judgment is before the Chinese court had previously enforced a Chinese judgment.
7. Other key insights revealed by the analysis include the percentage of applications that failed due to lack of reciprocity, the percentage of applications that were unsuccessful on procedural grounds, the percentage of applications that came from Belt and Road countries, etc.
8. The other handbooks available in the “Where in Asia” series include where in Asia can judgments from Australia, China, India, Indonesia, Malaysia, Singapore, Thailand and Vietnam be enforced in the Asia Pacific. Of particular interest may be the position in relation to Indonesian and Thai judgments. Since these two countries generally do not allow the recognition and enforcement of any foreign judgment, how is this stance affecting the exportation of their own judgments abroad? For example, the Indonesia handbook specifically discusses the case of Paulus Tannos v Heince Tombak Simanjuntak ([2020] SGCA 85, [2020] 2 SLR 1061) where the Singapore Court of Appeal overturned the High Court’s decision last year and refused to recognise Indonesian bankruptcy orders on the ground of breach of natural justice.
9. The “Where in Asia” series is available here. ABLI is delighted to offer readers of ConflictofLaws.net an exclusive discount off its entire judgments book collection. Please write to catherine_shen@abli.asia for more information and your unique coupon code.

Since the summer, the Hamburg Max Planck Institute has hosted monthly virtual workshops on current research in private international law. That series, so far held in German, has proven very successful, with sometimes more than 1oo participants.

Starting in January, the format will be expanded. In order to broaden the scope of potential participants, the series will alternate between English and German presentations. The first English language speaker promises to be a highlight: Attorney-General Maciej Szpunar, author of the opinions in the landmark cases Google v CNIL (C-507/17) and Glawischnig-Pieschzek v Facebook Ireland Limited (C-18/18), as well as numerous other conflict-of-laws cases, most recently X v Kuoni (C-578/19). Szpunar will speak about questions of (extra-)territoriality, a topic of much interest for private international lawyers and EU lawyers since long ago, and of special interest for UK lawyers post-Brexit.

AG Maciej Szpunar
“New challenges to the Territoriality of EU Law”
Wednesday (!), 13 January 2021, 11:00-12:30 (Zoom)

As usual, the presentation will be followed by open discussion. All are welcome.

More information and sign-up here.

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

In December 2020, the Standing International Forum of Commercial Courts (SIFoCC), which brings together the commercial courts of several countries across the world, launched the second edition of its Multilateral Memorandum on Enforcement of Commercial Judgments for Money.

The memorandum is the result of a collaborative effort from judges sitting in the courts involved, and outlines the way in which the judgment of one jurisdiction can be enforced in another. Over 30 jurisdictions have contributed, including Australia, Brazil, Canada, France, Germany, Hong Kong, Japan, Kenya, Malaysia, New York, Singapore, South Korea and the United kingdom.

More information available here.

JM Scherpe and E Bargelli have just published an edited book titled: “The Interaction between Family Law, Succession Law and Private International Law” with Intersentia.

The publisher’s blurb reads as follows:

There can be no doubt that both substantive family and succession law engage in significant interaction with private international law, and, in particular, the European Union instruments in the field. While it is to be expected that substantive law heavily influences private international law instruments, it is increasingly evident that this influence can also be exerted in the reverse direction. Given that the European Union has no legislative competence in the fields of family and succession law beyond cross-border issues, this influence is indirect and, as a consequence of this indirect nature, difficult to trace.

This book brings together a range of views on the reciprocal influences of substantive and private international law in the fields of family and succession law. It outlines some key elements of this interplay in selected jurisdictions and provides a basis for discussion and future work on the reciprocal influences of domestic and European law. It is essential that the choices for and within certain European instruments are made consciously and knowingly. This book therefore aims to raise awareness that these reciprocal influences exist, to stimulate academic debate and to facilitate a more open debate between European Institutions and national stakeholders.

More information can be found here

Written by Andrew Dickinson (Fellow, St Catherine’s College and Professor of Law, University of Oxford)

The belated conclusion of the UK-EU Trade and Cooperation Agreement did not dampen the impact of the UK’s departure from the European Union on judicial co-operation in civil matters between the UK’s three legal systems and those of the 27 remaining Members of the Union. At the turn of the year, the doors to the UK’s participation in the Recast Brussels I Regulation and the 2007 Lugano Convention closed. With no signal that the EU-27 will support the UK’s swift readmission to the latter, a new era for private international law in England and Wales, Scotland and Northern Ireland beckons.

The path that the United Kingdom has chosen to take allows it, and its constituent legal systems, to shape conflict of laws rules to serve the interests that they consider important and to form new international relationships, unfettered by the EU’s legislative and treaty making competences. This liberty will need to be exercised wisely if the UK’s legal systems are to maintain their positions in the global market for international dispute resolution, or at least mitigate any adverse impacts of the EU exit and the odour of uncertainty in the years following the 2016 referendum vote.

As the guidance recently issued by the Ministry of Justice makes clear, the UK’s detachment from the Brussels-Lugano regime will magnify the significance of the rules of jurisdiction formerly applied in cases falling under Art 4 of the Regulation (Art 2 of the Convention), as well as the common law rules that apply to the recognition and enforcement of judgments in the absence of a treaty relationship. This is a cause for concern, as those rules are untidy and ill-suited for the 21st century.

If the UK’s legal systems are to prosper, it is vital that they should not erase the institutional memory of the three decades spent within the EU’s area of justice. They should seek to capture and bottle that experience: to see the advantages of close international co-operation in promoting the effective resolution of disputes, and to identify and, where possible, replicate successful features of the EU’s private international law framework, in particular under the Brussels-Lugano regime.

With these considerations in mind, I began the New Year by suggesting on my Twitter account (@Ruritanian) ten desirable steps towards establishing a more effective set of conflict of laws rules in England and Wales for civil and commercial matters. Ralf Michaels (@MichaelsRalf) invited me to write this up for ConflictofLaws.Net. What follows is an edited version of the original thread, with some further explanation and clarification of a kind not possible within the limits of the Twitter platform. This post does not specifically address the law of Scotland or of Northern Ireland, although many of the points made here take a broader, UK-wide view.

First, a stand-alone, freshly formulated set of rules of jurisdiction replacing the antiquated service based model. That model (Civil Procedure Rules 1998, rr 6.36-6.37 (CPR) to be read with Practice Direction 6B) dates back to the mid-19th century and has only been lightly patched up, albeit with significant ad hoc extensions, since then. The new rules should demand a significant connection between the parties or the subject matter of the claim and the forum of a kind that warrants the exercise of adjudicatory jurisdiction. In this regard, the Brussels-Lugano regime and the rules applied by the Scots courts (Civil Jurisdiction and Judgments Act 1982, Sch 8) provide more suitable starting points than the grounds currently set out in the Practice Direction.

Taking this step would allow the rules on service to focus on the procedural function of ensuring that the recipient of a claim form or other document is adequately informed of the matters raised against it. It would enable the cumbersome requirement to obtain permission to serve a claim form outside England and Wales to be abolished, and with it the complex and costly requirement that the claimant show that England and Wales is the ‘proper place’ (ie clearly the appropriate forum) for the trial of the action. Instead, the claimant would need to certify that the court has jurisdiction under the new set of rules (as has been the practice when the rules of the Brussels-Lugano apply) and the defendant would need to make an application under CPR, Part 11 if it considers that the English court does not have or should not exercise jurisdiction. The claimant would bear the burden of establishing jurisdiction, but the defendant would bear the burden of persuading the court that it should not be exercised. This brings us to the second point.

Secondly, stronger judicial (or legislative) control of the expensive and resource eating Goffian forum conveniens model. Senior judges have repeatedly noted the excesses of the Spiliada regime, in terms of the time, expense and judicial resource spent in litigating questions about the appropriate forum (see, most recently, Lord Briggs in Vedanta Resources Plc v Lungowe [2019] UKSC 20, [6]-[14]), yet they and the rule makers have done little or nothing about it. In many ways, the model is itself to blame with its wide ranging evaluative enquiry and micro-focus on the shape of the trial. Shifting the onus to the defendant in all cases (see above) and an emphasis on the requirement that another forum be ‘clearly [ie manifestly] more appropriate’ than England would be useful first steps to address the excesses, alongside more pro-active case management through (eg) strict costs capping, a limit in the number of pages of evidence and submissions for each side and a greater willingness to require the losing party to pay costs on an indemnity basis.

Thirdly, a clipping of the overly active and invasive wings of the anti-suit injunction. English judges have become too willing to see the anti-suit injunction, once a rare beast, as a routine part of the judicial arsenal. They have succumbed to what I have termed the ‘interference paradox’ ((2020) 136 Law Quarterly Review 569): a willingness to grant anti-suit injunctions to counter interferences with their own exercise of jurisdiction coupled with an overly relaxed attitude to the interferences that their own orders wreak upon foreign legal systems and the exercise of constitutional rights within those systems. Moreover, the grounds for granting anti-suit injunctions are ill defined and confusing – in this regard, the law has travelled backwards rather than forwards in the past century (another Goffian project). Much to be done here.

Fourthly, steps to accede to the Hague Judgments Convention and to persuade others to accede to the Hague Choice of Court Convention. Although the gains from acceding to the Judgments Convention may be small, at least in the short term, it would send a strong signal as to the UK’s wish to return to centre stage at the Hague Conference, and in the international community more generally, and may strengthen its hand in discussions for a future Judgments Convention. By contrast, the success of the Hague Choice of Court Convention is of fundamental importance for the UK, given that it wishes to encourage parties to choose its courts as the venue for dispute resolution and to have judgments given by those courts recognised and enforced elsewhere.

Fifthly, a review of the common law rules for the recognition and enforcement of judgments, which are in places both too broad and too narrow. These rules have been little changed since the end of the 19th century. They allow the enforcement of foreign default judgments based only on the defendant’s temporary presence in the foreign jurisdiction at the time of service, while treating as irrelevant much more substantial factors such as the place of performance of a contractual obligation or place of commission of a tort (even in personal injury cases). Parliamentary intervention is likely to be needed here if a satisfactory set of rules is to emerge.

Sixthly, engagement with the EU’s reviews of the Rome I and II Regulations to test if our choice of law rules require adjustment. The UK has wisely carried forward the rules of applicable law contained in the Rome Regulations. Although not perfect, those rules are a significant improvement on the local rules that they replaced. The EU’s own reviews of the Regulations (Rome II currently underway) will provide a useful trigger for the UK to re-assess its own rules with a view to making appropriate changes, whether keeping in step with or departing from the EU model.

Seventhly, statutory rules governing the law applicable to assignments (outside Rome I) and interests in securities. The UK had already chosen not to participate in the upcoming Regulation on the third party effects of assignments, but will need to keep a close eye on the outcome of discussions and on any future EU initiatives with respect to the law applicable to securities and should consider legislation to introduce a clear and workable set of choice of law rules with respect to these species of intangible property. These matters are too important to be left to the piecemeal solutions of the common law.

Eighthly, a measured response to the challenges presented by new technology, recognising that the existing (choice of law) toolkit is fit for purpose. In December 2020, the UK Law Commission launched a consultation on Smart Contracts with a specific section (ch 7) on conflict of laws issues. This is a welcome development. It is hoped that the Law Commission will seek to build upon existing solutions for offline and online contracts, rather than seeking to draw a sharp distinction between ‘smart’ and ‘backward’ contracts.

Ninthly, changes to the CPR to reduce the cost and inconvenience of introducing and ascertaining foreign law. The English civil procedure model treats foreign law with suspicion, and places a number of obstacles in the way of its effective deployment in legal proceedings. The parties and their legal teams are left in control of the presentation of the case, with little or no judicial oversight. This approach can lead to uncertainty at the time of trial, and to the taking of opportunistic points of pleading or evidence. A shift in approach towards more active judicial case management is needed, with a move away from (expensive and often unreliable) expert evidence towards allowing points of foreign law to be dealt with by submissions in the same way as points of English law, especially in less complex cases.

Tenthly, measures to enhance judicial co-operation between the UK’s (separate) legal systems, creating a common judicial area. It is a notable feature of the Acts of Union that the UK’s constituent legal systems stand apart. In some areas (notably, the recognition and enforcement of judgments – Civil Jurisdiction and Judgments Act 1982, Sch 6 and 7), the rules operate in a way that allows the recognition of a single judicial area in which barriers to cross-border litigation have been removed. In other respects, however (for example, the service of documents, the taking of evidence and the ascertainment of foreign law), the UK’s legal systems lack the tools that would facilitate closer co-operation and the more effective resolution of disputes. The UK’s legal systems should consider what has worked for the EU, with its diverse range of legal systems, and for Commonwealth federal States such as Australia and work together to adopt comprehensive legislation on a Single UK Judicial Area.

31 December 2020, the Seventh day of Christmas, delivered a hard Brexit in the area of judicial co-operation in civil matters – the core subject area of this blog. The moment the draft  Trade and Cooperation Agreement between the EU and the UK broke, a few of us poured over the text to find any deal on the issue – in vain. Peter Bert has reporting and analysis here and here; Ralf Michaels summarised here (he also links to our Twitter reactions, which readers might find of use) and Marta Requejo Isidro links further to official documents here.

The UK’s application to join Lugano is still out there (the EU have an effective veto), however as things stand it seems unlikely the EU will agree.

Andrew Dickinson summarises the many things on the UK’s to do list here. As was clear to many of us, Sylvester 2020 was never going to be an end to, rather the start of interesting times in the sector.

Geert.

EU Private International Law, 3rd ed. 2021, 1.36 ff.

Not much to be reported on the activity of the Court for January 2021 on PIL (nor for February, as of today).

The Opinion by AG Campos Sánchez-Bordona in C-913/19, CNP, will be delivered on 14 January. The request comes from the District Court in Białystok, and concerns an insurance case involving the interpretation of Chapter I, Section 3, of the Brussels I bis Regulation, and the systematic relationship with Articles 7.2 and 7.5:

(1) Should Article 13(2), in conjunction with Article 10, of Regulation (EU) No 1215/2012 … be interpreted as meaning that, in a dispute between a trader and an insurance company, the former having acquired from an injured party a claim arising from civil liability insurance against that insurance company, the establishment of court jurisdiction on the basis of Article 7(2) or Article 7(5) of the regulation is not precluded?

(2) If Question 1 is answered in the affirmative, should Article 7(5) of Regulation (EU) No 1215/2012 … be interpreted as meaning that a commercial company operating in a Member State which adjusts losses under compulsory insurance against civil liability in respect of the use of motor vehicles pursuant to a contract with an insurance undertaking established in another Member State is a branch, agency or other establishment of that insurance undertaking?

(3) If Question 1 is answered in the affirmative, should Article 7(2) of Regulation (EU) No 1215/2012 … be interpreted as meaning that it constitutes an independent basis for the jurisdiction of the court of the Member State in which the harmful event occurred, before which court the creditor who has acquired the claim from the injured party under compulsory insurance against civil liability brings an action against an insurance undertaking established in another Member State?

The case will be decided by a chamber of five judges, with Mme Rossi reporting.

Next date will be 28 January, with the hearing in C-603/20 PPU, a case on the Brussels II bis Regulation from the High Court of Justice of England and Wales, Family Division, filed last in October 2020. The proceedings relate to the abduction of a girl to India. The question submitted to the Court reads as follows:

Does Article 10 of Brussels 2 retain jurisdiction, without limit of time, in a member state if a child habitually resident in that member state was wrongfully removed to (or retained in) a non-member state where she, following such removal (or retention), in due course became habitually resident?

The case has been allocated to a chamber of five judges, with Mr. Regan reporting. M. Rantos has been appointed AG.

Symeon Symeonides, without doubt the doyen of US conflict of laws, just published what he says is the last of his annual surveys of American Choice of Law. (The series will be continued by John F. Coyle, William S. Dodge, Aaron D. Simowitz, and Melissa L.Tatum, suggesting it takes four of our most eminent scholars to replace Symeonides.)

As everyone in our discipline knows, reliably, at the end of the year, Symeon has posted his survey of conflict-of-laws decisions rendered over the year, according to Westlaw. He would assemble the most important decisions (of which he finds a lot), organize them around themes, and comment on them, always with (sometimes admirable) restraint from criticism. Anyone who has ever tried to survey the case law of an entire year in a jurisdiction knows how much work that is. (We at Max Planck, with IPRspr, certainly do.)

The service rendered to the discipline is invaluable. Conflict-of-laws opinions are hard to track, not least because courts themselves do not always announce them as such, and because they cover all areas of the law. Moreover, conflict of laws in the United States remains disorganized, with different states following different methods. (Symeon helpfully provides a table listing each state’s methodological approach.) Of course, Symeonides also compiled his superb knowledge of the case law in his Hague Lectures on the past, present, and future of the Choice-of-Law Revolution (republished as a book) and his book on (US) choice of law in the series of Oxford Commentaries.

Incredibly, this is Symeon’s 30th survey in 34 years. In this one, he uses the occasion to ruminate about what the 30 years have taught him: reading all the cases, and not missing the forest for the trees, enabled him (and thereby us) to gain a truer view of the conflicts landscape.( Of course, Symeonides also compiled his superb knowledge of the case law in his Hague Lectures on the past, present, and future of the Choice-of-Law Revolution (republished as a book) and his book on (US) choice of law in the series of Oxford Commentaries.) Such surveying shows that some of our assumptions are dated, as he showed in two special surveys on product liability and more generally cross-border torts. And it shows, as he beautifully puts it, that judges are not stupid, just busy.  Which is one of the reasons why the practice of conflicts owes such an amount of gratitude for these surveys.

Our discipline has seen a theoretical revival over the last ten or so years. A discipline once viewed as overly technical, doctrinal and untheoretical (a “dismal swamp”, in Dean Prosser’s much-cited words) is now being analyzed with newly-found theoretical and interdisciplinary interest – from economic analyses to political theory, philosophy, and even gender theory. The risk of such work is always to disentangle from the actual practice of the discipline, and thereby to lose what is arguably one of conflicts’ greatest assets: the concrete case. Symeonides (himself no enemy to methodological and sometimes theoretical discussions) has, with his annual surveys, made sure that such theories could always remain tied to the actual practice. For this, he deserves gratitude not only from practice but also from theory of private international law. His oeuvre is, of course, much much richer than the surveys. But even if he had written nothing beyond the surveys (and truth be told, it is not fully clear how he ever managed to write so much beyond them), his stature would have been earned.

The last twenty of Symeonides’ surveys have been compiled in a three volume edition published by Brill, a flyer allows for a 25% discount. While you wait for delivery (or maybe for approval of the loan you need to afford the books), you may want to download his lates survey, read Symeonides’ own thirty-year retrospective in the beginning, and marvel.

MF Moscati, M Palmer, and M Roberts just published a book titled “Comparative Dispute Resolution.”

The blurb reads as follows:

Comparative Dispute Resolution offers an original, wide-ranging, and invaluable corpus of chapters on dispute resolution. Enriched by a broad, comparative vision and a focus on the processes used to handle disputes, this study adds significantly to the discourse around comparative legal studies.

From a comparative perspective, this Research Handbook analyses the field of dispute processing, generally and across a broad range of legal systems and their legal cultures. It explores the nature of disputes and the range of basic processes used in their resolution, examining emerging issues in theory and practice and analysing differing traditions of dispute resolution and their ‘modernization’. Offering a balanced combination of theory and praxis, chapters present new understandings of theoretical, comparative and transnational dimensions of the manner in which societies and their legal systems respond to difficulties in social relations.

Showcasing opportunities for new research and debate, Comparative Dispute Resolution will be helpful to practitioners and others engaged in the practice of handling disputes. Students and scholars in disciplines such as law, sociology, politics and psychology will also find this topical Research Handbook useful in their understanding of the theory and practice of disputing and dispute management, legal reform and enhanced access to justice.

More information on the book can be found here

As reported in other blogs (see for instance here and here), the Trade and Cooperation Agreement that the EU and the UK managed to conclude right before the end of the Brexit transition period does not seem to make any provision for judicial cooperation in civil matters.

On the European side, the Notice to Stakeholders issued by the European Commission in August 2020 already took lack of agreement in this area for granted.

Surprisingly, the press release of the Commission of 24 December 2020, under the heading “A new partnership for our citizens’ security”, states

The Trade and Cooperation Agreement establishes a new framework for law enforcement and judicial cooperation in criminal and civil law matters. (italics added)

And to top it all, have a look a recital 47 of the Recast Service Regulation:

In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, the United Kingdom and Ireland have notified their wish to take part in the adoption and application of this Regulation.

Probably just a clerical mistake.

On the UK side, the gov.uk website on Brexit was updated on 31 December 2020 (see here), providing information on the rules applicable to cross border cases in civil and commercial matters involving the courts of England and Wales. Links to all relevant Acts and Regulations are found there, too. For cross-border divorces, nothing has been added to the previous information, which already distinguished between proceedings initiated pre- and post-Brexit. The same applies to maintenance and disputes about parental responsibility.

The latest amendments to the International Chamber of Commerce (“ICC”) Arbitration Rules enter into force today, providing for a restyling to the 2012 rules (as earlier amended in 2017). The restyling aims to fine-tune the current rules by increasing flexibility, efficiency and transparency of the ICC arbitrations and taking in the practice that the International Court of Arbitration (“Court”) has meanwhile developed and consolidated.

This post briefly lists the main novelties.

1.Multi-party disputes (and disputes arising out of multi-tier contracts) will profit from an improved joinder and consolidation regime. The new rules entitle the tribunal, once constituted and upon request of a party addressed to the Secretariat, to join third parties after considering “all the relevant circumstances”, provided that the additional parties accept the constitution of the tribunal and agree to the Terms of Reference, where applicable (Article 7 (5)). Among the circumstances to be taken into account, the tribunal shall assess prime facie its jurisdiction over the additional party, the timing of the request for joinder, possible conflicts of interest and the impact of the joinder on the proceedings. As regards consolidation, it is also available in the case of two or more ICC arbitrations in which the disputed claims are made under multiple arbitration agreements (Article 10 (b)).

2.Yesterday a year closed which saw arbitration increasingly making use of virtual hearings and electronic filings, thereby experiencing a process of digitalization against the backdrop of the pandemic. Many benefits for the “good administration of arbitration” easily came into light, compared with the difficulties for arbitrators, parties and staff to personally meet.

Admittedly, the ongoing efforts to make arbitration resilient in these dramatic days should result in getting it more efficient (and cheaper) also in the upcoming post-pandemic era.

In this vein, the new ICC rules allow the tribunal to decide, after consulting the parties, that hearings can be conducted remotely (Article 26 (1)), thereby easing the proceedings conduct and adding to efficiency in the light of the circumstances of the case. The option for electronic submission is acknowledged for the Request for Arbitration, the Answer and any written communication.

3.Any revision, even the slightest, in the realm of arbitration always attempts to strengthen transparency, equality of parties, and enforceability of the awards.

Article 11 (7) compels parties to disclose any third-party funder (referred to as “any non-party which has entered into an arrangement for the funding of claims or defences and under which it has an economic interest in the outcome of the arbitration”). This will assist arbitrators in complying with their duties of impartiality and independence, while lessening the deal of information that parties habitually keep confidential. The aim to reinforce transparency, impartiality and independence also marks the contents of Article 17 (2) and Article 13 (6). The first empowers the tribunal to “take any measure necessary to avoid a conflict of interest” stemming from a change in party representation. The tribunal will act so only after giving an opportunity to the parties to comment in writing within a suitable period of time. Article 13 (6) takes care of impartiality and independence in the appointment of arbitrators in investment arbitration, requiring the prospected arbitrators not to have the same nationality of any party.

Transparency also underpins the amendment of Appendices I and II, which respectively gather the Statute and the Internal Rules of the Court. Particularly, Appendix II features new Article 5, which governs the communication from the Court of the reasons of its decisions. Only exceptionally may the Court refuse such communication.

With the view to protecting the equality of parties and the validity of the award, the Court may exceptionally appoint each member of the tribunal (Article 12 (9)). This power aims to discourage practices which threaten the validity of the tribunal constitution, such as drafting arbitration agreements with one-sided clauses for the appointment of the members.

4.A clarification has been inserted as to the tribunal’s power to render “additional awards” in case of claims that it “omitted to decide” (Article 36 (3)). Parties have to apply to the Secretariat for an additional award only in respect of “claims made in proceedings”.

5.Finally, fast track arbitration will be open to more transactions as the maximum dispute value to trigger expedited procedures raises from 2 to 3 US$ million for arbitration agreements concluded as of today. The chance to opt-in for applying the expedite procedure to higher-value disputes remains, as it does the opt-out and the Court’s assessment, upon request of a party, that the expedite procedure is inappropriate in the circumstances.

In the light of foregoing, it is apparent that, even if no full-blown revision unfolds to the arbitration community’s eyes, the listed “adjustments” are designed to benefit parties, arbitral tribunal and staff in the short and long term.

Membership

On 4 December 2020, Mongolia was issued with a certificate confirming an affirmative vote in favour of its admission as a Member of the HCCH, following a six-month voting period which ended on 3 December 2020. Mongolia has now been invited to deposit an instrument of acceptance of the HCCH Statute to become a Member of the HCCH.

Meetings & Events

On 3 December 2020, the HCCH and ASADIP co-hosted an International Conference on the 2019 Judgments Convention. A full recording of the event, held in Spanish, is available on the HCCH Facebook Page and the HCCH YouTube Channel.

On 11 December 2020, the HCCH and UNCITRAL co-hosted a Virtual Colloquium on Applicable Law in Insolvency Proceedings. More information, including documentation and audio recordings, is available here.

From 14 to 17 December 2020, the Administrative Cooperation Working Group on the 2007 Child Support Convention met via videoconference. The Group provided guidance in relation to the development of a standard statistical report under the Child Support Convention, including the use of the iSupport case management system, and other matters such as recommended forms and country profiles. More information is available here.

Publications & Documentation

On 22 December 2020, the Permanent Bureau announced the publication of the 4th Edition of the Practical Handbook on the Operation of the Evidence Convention (Evidence Handbook). This edition commemorates the 50th anniversary of the Convention and is complemented by the Guide to Good Practice on the Use of Video-Link released earlier this year. 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.

As president of EAPIL and an editor of the blog, and on behalf of all the officers of the association and the editors of the EAPIL blog, I would like to wish to the members of the association and the readers of the blog the best for year 2021.

In 2020, the blog has published 325 posts. In case you missed some of them, here are the 15 most popular ones:

1. Corona Virus and Applicable Law
2. COVID-19 and the Right to Respect for Family Life under Article 8 ECHR
3. UK Applies for Accession to Lugano Convention
4. Paris Court Issues Anti Anti Suit Injunction
5. New Courts for International Commercial Disputes in Germany
6. The Impact of Corona Virus on the Management of Judicial Proceedings in Italy
7. Law and Global Value Chains at the Time of Covid-19: A Systemic Approach Beyond Contracts and Tort
8. French Supreme Court Accepts First Degree Renvoi in Parenthood Matters
9. Wikingerhof: A View from Oxford
10. Another Preliminary Reference on the Succession Regulation Involving (and Referred by) a Polish Notary
11. CJEU Significantly Weakens Jurisdiction Clauses in Case Assignment
12. The COVID-19 Crisis and Employment Contracts: the Italian Emergency Legislation on Dismissals
13. Anti-Anti-Suit Injunctions by German Courts – What Goes Around, Comes Around
14. On ‘Habitual Residence’ under the EU Regulations on Family Matters: Once and for All?
15. Human Rights in Global Supply Chains: Do We Need to Amend the Rome II Regulation?

The latest issue of Acta Universitatis Carolinae Iuridica, a periodical edited by the Faculty of Law of the Charles University in Prague, is out.

The issue’s general theme is ‘Thinking Private International Law through European Lenses’. It focuses on comparative private international law, with an emphasis on the European Union. The contributions – some in English, others in French – were put together on the occasion of the annual meeting of the Group européen de droit international privé (GEDIP), which was to take place between 18 and 20 September 2020 in Prague.

Opened by editorials by Monika Pauknerová and Catherine Kessedjian, the issue is made of three main sections.

The first addresses some general issues. It includes contributions by Johan Meeusen (‘The “logic of globalization” versus the “logic of the internal market”: a new challenge for the EuropeanUnion), Giuditta Cordero-Moss (‘The impact of EU law on Norwegian private international law’), Patrick Kinsch (‘La Convention européenne des droits de l’homme et les conflits de lois: synthèse de dix ans de jurisprudence européenne’), and Hans van Loon (‘Strategic Climate Litigation in the Dutch Courts: a source of inspiration for NGOs elsewhere?’).

The second section, on family law, features articles by Michael Bogdan (‘The relevance of family status created abroad for the freedom of movement in the EU’), Etienne Pataut (‘Codifier le divorce international – Quelques remarques sur le projet GEDIP’), and Zuzana Fišerová (Limits of jurisdiction for divorce under the Brussels IIa Regulation from the Czech perspective’).

Finally, the commercial law section hosts contributions by Jan Brodec (‘Applicable law in international insolvency proceedings (focused on the relation of Articles 3 and 7 of the Insolvency Regulation)’), Petr Bříza (‘Czech perspective on the validity of international arbitration clauses contained in an exchange of emails under the New York Convention’) and Magdalena Pfeiffer and Marta Zavadilová (‘Recognition and enforcement of judgments in commercial matters rendered by courts of non-EU countries in the Czech Republic’).

The whole issue can be downloaded here.

The draft Trade and Cooperation Agreement between the EU and the UK has been published. Please find it attached. At first sight, it does not seem to contain any express provisions on civil justice by contrast with criminal justice. Subject to a more thorough reading, and the publication of any separate agreement (like the one on Security of Information or the one on Civil Nuclear), the silence seems deliberate. The presentation of the deal on the UK side seems to confirm this (see https://www.gov.uk/government/publications/agreements-reached-between-the-united-kingdom-of-great-britain-and-northern-ireland-and-the-european-union).

However, one should not forget the following:

“The Withdrawal Agreement remains in place […] the Withdrawal Agreement – and the Protocol on Ireland and Northern Ireland, in particular – will be implemented on 1 January. On 17 December, the EU-UK Joint Committee met to endorse all formal decisions and other practical solutions related to the implementation of the Withdrawal Agreement. As part of these mutually agreed solutions, the UK has agreed to withdraw the contentious clauses of the UK Internal Market Bill, and will not introduce any similar provisions in the Taxation Bill” (source: https://ec.europa.eu/commission/presscorner/detail/en/IP_20_2531). This sheds some lights in respect of some European Civil Justice / Private International Law instruments, albeit not all.

The Brexit deal (officially the [draft] EU-UK Trade and Cooperation Agreement) was agreed upon, finally, on December 24. Relief in many quarters (except Universities participating in the Erasmus program, which is discontinued in the UK).

But private international lawyers worry what happened to judicial cooperation in civil matters: is there any agreement at all? Peter Bert provides a detailed analysis of all available documents and finds almost no mention, which leads him to think we are facing  a sectoral hard brexit. Other experts on social media do not know more. The Law Society also seems worried. There seems to be no new information on the UK application to join the Lugano Convention, let alone any of the other areas of judicial cooperation. Given the intense discussion on these matters since the day of the Brexit vote, this can hardly be an oversight, but on the other hand it seems strange that such a core issue remained unaddressed.

Any further information or analysis in the comments is welcome.