Flux des sites DIP

This post has been written by Sanja Marjanovi? (Faculty of Law, University of Niš, Serbia) and Uglješa Gruši? (UCL).

The 18th Regional Private International Law Conference will take place on 17 November 2023 at the Faculty of Law, University of Niš, Serbia, with the support of the Deutche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ). The theme of the Conference is Private International Law and International Organizations – Achievements and Challenges.

The Conference will provide an opportunity to celebrate the 20th anniversary of the inaugural regional PIL conference, which was also held in Niš in 2003. These regional PIL conferences are a result of the vision of Professor Mirko Živkovi? (Faculty of Law, University of Niš) to re-establish a regional PIL network that had been broken by the tragic dissolution of the former Yugoslavia. Although PIL scholars from countries stemming from the former Yugoslavia continue to be the nucleus of these conferences, they regularly attract PIL scholars from other countries as well.

The opening panel will feature the following topics and speakers:

• Reflections on the Complementarity of Global and Regional Unification of Private International Law, Hans van Loon (Former Secretary General of the Hague Conference on Private International Law), The Hague
• Characterisation in the CJEU Case Law: Unity or Diversity?, Vesna Lazi?, Utrecht University and Asser Institute, The Hague
• Centennial of the Hague Academy of International Law, Maja Stanivukovi?, University of Novi Sad

The full programme of the conference can be found here.

The working language of the Conference will be English, and it will also be streamed online.

Those wishing to attend the Conference online are invited to register by emailing contact details and affiliation to antanasijevic@prafak.ni.ac.rs by 16 November at 12 CET.

Conference proceedings will be published in September 2024.

This post has been written by Sanja Marjanović (Faculty of Law, University of Niš, Serbia) and Uglješa Grušić (UCL).

The 18th Regional Private International Law Conference will take place on 17 November 2023 at the Faculty of Law, University of Niš, Serbia, with the support of the Deutche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ). The theme of the Conference is Private International Law and International Organizations – Achievements and Challenges.

The Conference will provide an opportunity to celebrate the 20th anniversary of the inaugural regional PIL conference, which was also held in Niš in 2003. These regional PIL conferences are a result of the vision of Professor Mirko Živković (Faculty of Law, University of Niš) to re-establish a regional PIL network that had been broken by the tragic dissolution of the former Yugoslavia. Although PIL scholars from countries stemming from the former Yugoslavia continue to be the nucleus of these conferences, they regularly attract PIL scholars from other countries as well.

The opening panel will feature the following topics and speakers:

• Reflections on the Complementarity of Global and Regional Unification of Private International Law, Hans van Loon (Former Secretary General of the Hague Conference on Private International Law), The Hague
• Characterisation in the CJEU Case Law: Unity or Diversity?, Vesna Lazić, Utrecht University and Asser Institute, The Hague
• Centennial of the Hague Academy of International Law, Maja Stanivuković, University of Novi Sad

The full programme of the conference can be found here.

The working language of the Conference will be English, and it will also be streamed online.

Those wishing to attend the Conference online are invited to register by emailing contact details and affiliation to antanasijevic@prafak.ni.ac.rs by 16 November at 12 CET.

Conference proceedings will be published in September 2024.

Written by Akanksha Oak, Jindal Global Law School, India

Introduction

The modern commerce landscape faces a significant challenge: the widespread infringement of intellectual property (“IP”) rights due to online interactions that enable instant global access. This issue is exacerbated by cross-border activities, necessitating the application of private international law (“PIL”). However, IP protection remains territorial, guided by the principle of “lex loci protectionis.” This results in complexities when it intersects with PIL. Online IP infringement further convolutes matters due to the internet’s omnipresence and accessibility, making the establishment of jurisdiction a complicated process for legal professionals. A pivotal development in this arena occurred in 2021 when the Delhi High Court rendered a judgement in the case of HK Media Limited and Anr v. Brainlink International Inc.,[1] illuminating India’s legal framework for determining jurisdiction in cases of online IP infringement within the context of cross-border disputes.

Facts

HT Media, the plaintiff in this case, was involved in the business of print media and online publications. They operated online editions of their newspapers through their websites, specifically www.hindustantimes.com,  and held registered trademarks for “Hindustan” and “Hindustan Times”. The defendants, Brainlink Int. Inc., were a corporation based in New York and owned the domain name www.hindustan.com. Their website provided news content like HT Media, focusing on India-America interests and stock market reports from India.

Due to the striking similarity between the websites, the plaintiffs initiated legal proceedings seeking a permanent injunction against the defendants, restraining them from using the domain name. Simultaneously, the defendants filed a suit in the United States District Court, asserting non-infringement of the plaintiffs’ rights.

In response, the plaintiffs argued that the Indian court should halt the proceedings in the foreign court through an anti-suit injunction. They contended that the defendants were subject to the personal jurisdiction of the Delhi High Court, making it appropriate for the Indian court to intervene in the case.

Enhanced and vital interpretation of “Carrying on Business”

The court’s jurisdiction in the present case was established under Section 134 of the Trade Marks Act 1999, which permits a plaintiff to file a suit in the court’s jurisdiction where it carries on business.

In cases of online infringement of IP, the test for carrying on business was outlined in World Wrestling Entertainment Inc. v. Reshma Collection.[2] In the World Wrestling case, the plaintiffs were a company incorporated under the State of Delaware, USA laws. They filed for a trade mark infringement in a suit in the Delhi High Court. They contested that their website was accessible in Delhi, and thus, under Section 134 of the Trade Marks Act, they carried on business in Delhi. The court noted that “the availability of transactions through a website at a particular place is virtually the same thing as a seller having shops in that place in the physical world.” This means that if a website is accessible via the internet at a particular place, the courts of that place could claim jurisdiction over the dispute. Moreover, due to the pervasive and global access of the internet, this gives the parties an opportunity for forum shopping; the jurisdiction can be established at any place where the online site is accessible.

This principle was further affirmed in the case of Millennium & Copthorne International Ltd. v. Aryans Plaza Services (P) Ltd.[3] In this instance, the plaintiff, “Millennium & Copthorne,” was a London-based company without a physical office in India. Nevertheless, the plaintiff extensively promoted its services in India through its online presence, collaborating with notable companies such as “MakeMyTrip” and “Hotel Travel Ltd.” Applying this law, the plaintiff argued that despite lacking an office in Delhi, they were carrying out business in Delhi and thus qualified to file the suit in the Delhi High Court under Section 134 of the Trade Marks Act.

Unsurprisingly, this approach raises concerns about predictability. This is because parties could file suits in any court where their website is accessible. In the present case, however, this reasoning was not accepted, as the court emphasised the physical existence of the plaintiff’s registered office in Delhi to meet the criterion of “carrying on business.” Moreover, the court deemed the lawsuit filed in the Eastern District of New York vexatious and oppressive.

One of the grounds to establish that the jurisdiction of the US court was oppressive was that the plaintiff was not carrying on business in the US. This determination was made by diverging from the precedent set in the World Wrestling case, as illustrated above. In this case, the court analysed the target audience of the plaintiff’s business. This analysis demonstrated that the plaintiff was indeed conducting business in India, and most of its readers were residents of India despite the global accessibility of its website. Had the court followed the World Wrestling case ratio, the mere accessibility of the plaintiff’s website would have constituted carrying on business in the US. However, the court, in this instance, refrained from doing so. Hence, the court’s interpretation of “carrying on business” was twofold: it relied on the physical presence of the plaintiff’s registered office and evaluated its target audience to establish the “carrying on of business.” The court did not solely consider the accessibility of the plaintiff’s website, as was the practice in previous cases.

The ruling in the WWE case allowed parties to potentially misuse the right of forum shopping, enabling them to file suits in any country where their website was accessible. However, the approach adopted in the present case aligns more closely with the principles of PIL. It helps prevent the abuse of forum shopping by restricting the options available to parties when filing a suit under the ambit of “carrying on business.” This decision establishes a precedent, underscoring the significance of establishing jurisdiction based on various connecting factors, such as the registered office of the party’s business and its target audience. This approach emphasises the importance of a collective analysis by considering a range of factors rather than solely relying on the accessibility of a website in a specific location.

The test of “Cause of Action”

In online IP infringement cases, another ground for establishing jurisdiction revolves around determining the place where the cause of action arose. The Delhi High Court has established precedents in this regard, notably in Banyan Tree Holding (P) Ltd. v. A. Murali Krishna Reddy,[4] and further elucidated in Impresario Entertainment v. S & D Hospitality.[5] In the Banyan Tree case, the plaintiff had a registered office in Singapore. It had an e-commerce website accessible in India, and thus, it instituted a suit in Delhi. It filed for trade mark infringement against the defendant, whose place of business was in Andhra Pradesh, India. The issue in this case was regarding the jurisdiction of the Delhi High Court, as neither of the parties resided in the territory of Delhi. Thus, the court established the “tighter version of the effects test” for deciding the place of cause of action in online infringement matters. The court ruled that to establish jurisdiction when the defendant does not reside or conduct business in the forum state but the website in question is universally accessible, and the plaintiff must demonstrate that the defendant specifically targeted the forum state with the intent to harm the plaintiff.

Building on this, in Impresario Entertainment v. S & D Hospitality, a Mumbai-based restaurant business (plaintiff) sued a Hyderabad-based restaurant (defendant) with a similar name in the Delhi High Court. The plaintiff claimed jurisdiction under the grounds of cause of action based on the reasoning that interactive website listings such as Zomato were accessible in Delhi, and thus, it was also one of the places where infringement took place, resulting in the cause of action. However, the court ruled in favour of the defendant, stating that mere website interactivity was insufficient for establishing jurisdiction under this ground. Thus, the Impresario case emphasised the concept of “specifically targeting the forum state,” requiring the plaintiff to prove that one of their customers was misled by the defendant, leading to the conclusion of a commercial transaction or a strong intention to finalise a transaction.

The tests for carrying on business and cause of action represented opposite ends of the spectrum: the former was relatively easy to establish, and the latter was challenging to prove, placing the burden on the plaintiff. In the present case, the court struck a balance between these tests. It established a criterion where the connecting factors for identifying where the cause of action arose required a demonstration of the likelihood of damage without conclusively proving a commercial transaction. The court held that since the plaintiff was an Indian news channel catering to an Indian audience, their goodwill and reputation were primarily in India. Consequently, any damage inflicted would stem from the defendant’s site being accessed from India, given that the plaintiff’s primary target audience resided there. The burden of proof was not on the plaintiff to prove that he had “actually” faced financial damage but to show that there was a “likelihood” of facing such financial damage to invoke the grounds for cause of action, unlike in the cases of Banyan Tree and Impresario. Furthermore, as the IP rights were safeguarded in India, any infringement would constitute a cause of action where these rights were granted.

Implications of the case

In the European Union (EU), the court’s jurisdiction is established under Art 7(2) of the Brussels I Recast Regulation. The connecting factors in this article are the places where the damage occurred or may occur. Thus, jurisdiction is established based on the location of the harm caused by online infringement, which the likelihood of financial loss to the plaintiff would prove. The plaintiff must prove that damage was caused due to the accessibility of the defendant’s site in that country. The court’s reasoning in the present case aligns with the reasoning of the EU to establish jurisdiction in such cases, as even in the present case, the court established jurisdiction based on connecting factors such as the place of “damage” by analysing the plaintiff’s target audience and how damage to its goodwill in India would lead to financial loss for the party. Thus, with the ruling in HK Media Limited and Anr v. Brainlink International Inc., India has also adopted an Article 7(2) Brussels approach. This ruling sets an encouraging precedent, fostering consistency and harmonising private international law rules across nations for cross-border online IP infringement. It furthers the goals of establishing predictability and certainty in determining jurisdiction in cross-border disputes.

[1] 2020 SCC Online Del 1703.

[2] 2014 SCC Online Del 2031.

[3] 2018 SCC Online Del 8260.

[4] 2009 SCC Online Del 3780.

[5] 2018 SCC OnLine Del 6392.

Indi Gregory is an eight-month-old child. She suffers from profound metabolic, neurological and cardiological disorders. At the time of writing this post she was a patient at an intensive care unit at a hospital in Nottingham.

A few months ago, the doctors who have been treating Indi in England came to the conclusion that her illness is incurable and that, given the pain caused by the life supporting treatment she is receiving, it is in Indi’s best interest that such treatment be withdrawn.

The parents disagreed and have since reiterated their wish to have the treatment continued. They made contact with a paediatric hospital in Italy, which made itself available to explore further options and continue treating the child.

The matter was dealt with by the High Court of England and Wales. This dramatic case, which reminds of similar cases involving children with incurable diseases, widely covered by the press (including the cases of Charlie Gard and Alfie Evans), raises a number of highly sensitive issues, legally and ethically. It also raises some private international law issues, as a result of the fact that Indi was recently granted Italian citizenship and that the Italian authorities, namely the Italian Consul in Manchester, claimed jurisdiction over the matter and issued orders aimed at transferring Indi to Rome.

This post is exclusively concerned with the latter issues.

The hospital Trust seised the High Court of England and Wales, in September 2023, seeking authorisation to remove the life sustaining care Indi was receiving, on the ground that, according to the Trust, there was no prospect of recovery, Indi’s life expectancy was very limited, the treatments she was receiving were causing her a high level of pain and suffering, and there was no discernible quality of life or interaction by Indi with the world around her.

The parents opposed the application, alleging, inter alia, that Indi had prospects of gaining a degree of autonomy, that she was showing small signs of improvement, and that the precise causes of her presentation are unclear and required further time and investigation.

On 13 October 2023, the Family division of the High Court ruled in favour of the Trust. Peel J explained:

With a heavy heart, I have come to the conclusion that the burdens of invasive treatment outweigh the benefits. In short, the significant pain experienced by this lovely little girl is not justified when set against an incurable set of conditions, a very short life span, no prospect of recovery and, at best, minimal engagement with the world around her. In my judgment, having weighed up all the competing considerations, her best interests are served by permitting the Trust to withdraw invasive treatment in accordance with the care plan presented.

Shortly afterwards, the Court of Appeal of England and Wales was seised of an appeal against the decision, by the parents, based on three grounds. By a ruling of 23 October 2023, the Court concluded that there was no prospect of an appeal on either of those grounds succeeding, and accordingly refused permission to appeal.

The parents of Indi Gregory seised the European Court of Human Rights, seeking an urgent order that would prohibit the withdrawal of life supporting treatment. The Strasbourg Court, however, did not uphold their request.

Peel J of the High Court was then again seised by Indi’s parents. They sought permission for the care of their child to be transferred to other medical professionals, at a hospital in Rome. On 2 November 2023, the High Court dismissed the application on the ground that there was no material change of circumstances, or other compelling reason, to justify reconsideration of the original order.

Specifically, concerning the proposal by the Rome hospital for cardiac intervention, Peel J considered that such intervention was inappropriate “because of the severity of the underlying conditions, IG’s instability and the lack of prospect of any meaningful quality of life, and the ongoing burden and pain of invasive treatment”. He added that “invasive life sustaining treatment is no longer appropriate for IG” and that the “substantial burdens of such treatment significantly outweigh any perceived (but in my judgment negligible) benefit, in a context where her life expectancy is very short, and her conditions irreversible”. He explained that,

there is nothing to suggest that IG’s prognosis would be beneficially altered by the Italian hospital’s treatment. On the contrary, it may well prolong pain and suffering if and to the extent that it incorporates invasive procedures which in my judgment are not in IG’s best interests, and should not be sanctioned.

On 6 November 2023, the Italian Government decided to grant Italian citizenship to Indi Gregory. It relied for this on Article 9(2) of the Italian Statute on Citizenship (Law No 91 of 1992), according to which citizenship may be granted, through a Presidential Decree, where to do so is of “exceptional interest for the Italian State”.

According to the press release accompanying the decision, such an interest consisted, in the circumstances, in providing IG with additional therapeutic opportunities (“ulteriori sviluppi terapeutici”), for the purposes of safeguarding the pre-eminent humanitarian values underlying the case (“preminenti valori umanitari”). The decision, the press release explains, was adopted following a request by the parents of the child, in connection with their wish to have Indi transferred to Rome to receive further treatment.

The author of this post was unable to retrieve any official document explaining in which way, i.e., based on which legal grounds and reasoning, the fact of making Indi Grgeory an Italian citizen would alter the picture resulting from the orders of Peel J, and increase the chances of Indi being transferred to Rome.

Be that as it may, on 8 November 2023, according to press reports, the Italian Consul in Manchester asserted that Italian authorities had jurisdiction over the case, precisely on the ground that Indi had become an Italian citizen, and ordereed that IG be transferred to Italy. The decision was taken by the Consul in his capacity of “guardianship judge”, that is, in the exercise of the judicial functions that Italian law confers on the heads of consular posts as regards, specifically, the protection of minors of Italian nationality outside the territory of Italy. The Consul also appointed a special representative of IG to take care of the implementation of the order. Press reports indicate that the appointed representative made contact with the hospital managers seeking their “cooperation”.

The English High Court made a new ruling on 8 November 2023. The parents wished to take the child back home, in Derbyshire, and have the extubation and the resulting compassionate care performed there.

Peel J dismissed the request. He observed that Indi “should continue to have clinical treatment of the highest quality, carried out in a safe and sustainable setting”, which would “not be available at home”, noting that

for the plan to work at home, there needs to be a close, constructive and engaged level of communication between the parents and the Trust/relevant clinicians, but, unfortunately, that does not appear to be the case.

Interestingly, for the purposes of this post, Peel J took note that Indi had very recently been granted Italian citizenship, while adding that the Indi’s father (the mother did not intervene at the hearing)

acknowledged, correctly and properly, that my decisions and orders are unaffected by this development.

Rumours circulated in the press concerning a possible agreement between the Italian and the UK Governments regarding the transfer of Indi to Italy, although no indications were given as to the legal grounds on which the decisions of the High Court could be superseded.

Withdrawal of life support is expected to be carried out today, 9 November 2023, at 15 CET.

The text of the order issued by the Italian Consul in Manchester has not been made publicly available. The author of this post is not aware of the exact provisions of the order. The grounds on which the Consul asserted that the case comes with the jurisdiction of Italian authorities are also not known. It is also not known whether the Consul addressed the issue of the recognition of the English orders in the Italian legal system, and, in the affirmative, what conclusions were reached in that regard. In addition, it is not known whether any exchanges occurred between the Consul and the High Court either prior to the Consul’s order or at a later stage.

The following remarks are, accordingly, of a general nature, and do not purport to represent an analysis, let alone an assessment, of the measures taken by the Italian authorities.

Italy and the UK are parties to the Hague Child Protection Convention of 19 October 1996.

As stated in Article 1(1)(a), the Convention aims, inter alia, to “determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child”. Cases like that of Indi Gregory appear to come with the material scope of the Convention.

Pursuant to Article 5(1) of the Hague Child Protection Convention, the authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property. In relation to States, like the UK, in which two or more systems of law regarding the protection of children apply in different territorial units, reference to habitual residence must be construed, as clarified in Article 47(1), as referring to habitual residence in a territorial unit. Thus, as concerns children whose habitual residence is in England, English courts have jurisdiction.

As a rule, the authorities of the State of which the child is a national do not have jurisdiction under the Convention.

Rather, the Convention contemplates the possibility that a case be transferred by the authorities having jurisdiction based on Article 5 to the authorities of a different Contracting State.

Specifically, Article 8 stipulates that the authority of the State of habitual residence of the child, if they consider that the authority of another Contracting State “would be better placed in the particular case to assess the best interests of the child” (including the authorities of the State of nationality of the child), may request that other authority to assume jurisdiction to take such measures of protection as they consider to be necessary, or suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.

Article 9 goes on to state that the authorities to which the case may be transferred (including, again, the authorities of the State of nationality), if they consider that they are better placed in a particular case to assess the child’s best interests, they may request the competent authority of the Contracting State of the habitual residence of the child that they be authorised to exercise jurisdiction to take the measures of protection which they consider
to be necessary. The authorities concerned may then proceed to an exchange of views.

In the case of Indi Gregory, the English High Court has, so far, not considered that the Italian authorities would be better placed to deal with the case, including after the Court was informed that an Italian hospital was available to treat the child and that Indi had been made an Italian citizen.

On 9 November 2023 news reports had that the Italian Consul in Manchester had approached the High Court in connection with a request based on Article 9 of the Convention. Very few details were available on this  at the time of publishing this post.

The urgency of the matter does not appear to change things. The Hague Convention includes a special provision that applies in “all cases of urgency”, namely Article 11, but this provision confers jurisdiction on the authorities of the Contracting State “in whose territory the child or property belonging to the child is present”.

It is worth adding that measures relating to the protection of a child emanating from the authorities (including a Consul, as the case may be) of a Contracting State are entitled to recognition in all other Contracting States “by operation of law”, as stated in Article 23(1). However, recognition may be refused, according to Article 23(2)(a) “if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II”, of the Convention, i.e., Article 5 and following.

One may wonder whether the picture resulting from the above provisions of the Hague Child Protection Convention could be affected in some way where a consular post, rather than a judicial authority, claims to take measures directed at the protection of a child.

The Hague Convention applies, as such, to all the authorities of a Contracting States with competence over matters within the scope of the Convention itself. The nature of the authorities involved in a given case are, accordingly, immaterial. Rather, where a consular post is involved, it is appropriate to assess whether the rules governing consular relations may play a role, and possibly affect the operation of the Hague Convention.

Both the UK and Italy are parties to the Vienna Convention on consular relations, of 24 April 1963. In addition, the two countries have concluded between themselves, in 1954, a consular convention.

Article 5 of the Vienna Convention describes consular functions as including, among others, “safeguarding … the interests of minors … who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such person”. As specified in Article 5(h), the latter function is to be exercised by consular posts “within the limits imposed by the laws and regulations of the receiving State”.

For their part, the authorities of the receiving State (the English authorities, in the case of Indi), are required, according to Article 37(b) of the Vienna Convention “to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor … who is a national of the sending State”. It is clarified, however, that the giving of this information is “without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments”.

The bilateral consular convention does not appear to extend the functions of consular authorities regarding the protection of children, nor impose on the authorities of the receiving State duties that go beyond what is provided in the Vienna Convention, in particular as regards the jurisdiction of courts and the recognition of foreign decisions.

As a result, it is difficult to see how the findings above, made in respect of the Hague Child Protection Convention, could be modified in light of the involvement of a consular authority.

Ronald A. Brand, Michael S. Coffee and Paul Herrup are the authors of The 2019 Hague Judgments Convention, published by Oxford University Press, part of its Private International Law Series.

Declared a ‘game-changer’ by the Hague Conference Secretary General, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters has introduced international obligations of unprecedented sweep and power. Now, this authoritative treatise provides the diplomatic background and the historical context for the Convention, discussing the law on judgments recognition in the absence of the Convention’s ratification. After recounting the twenty-seven-year history of the negotiations leading to the Convention’s conclusion, it offers an article-by-article discussion of each provision. It also considers paths not taken, advancing possible solutions to address future pressures and developments.

More information, including the table of contents, can be found here.

X v Y (yep, annoying and entirely without reason, an anonymous judgment) ECLI:NL:RBLIM:2023:4342 is an interesting illustration of Brussels Ia’s Article 7(1)(a’)s ‘looking over the fence’ aka the conflicts method for determining forum contractus.

The method implies that beyond the standard contractual categories for which Article 7(1)(b) locks in forum contractus as a European ius commune, the ‘place of performance of the obligation in question’ needs to be determined by provisionally identifying the lex contractus and then using that lex contractus to determine place of performance, leading to a conclusion whether the judge seized has jurisdiction or not. See CJEU 12/76 Tessili v Dunlop.

In the case at issue, the contract is a loan and the applicable law is determined with reference to CJEU Kareda. This is where the court veers off course (my first categorisation by Tweet of the judgment being an excellent example therefore needs to be corrected): In Kareda the CJEU held that the credit agreement at issue was to be considered an ‘agreement for the provision of services’ per A7(1)(b), locking in forum contractus “in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided”. In such case, no more looking over the fence is required, let alone consideration of Article 4(3) Rome I etc.

Geert.

Students claxon
First instance Limburg, excellent example of 'looking over the fence' aka the conflicts method per CJEU Tessili v Dunlop to determine forum contractus per A7(1)a BIa, A4(2) Rome I (no A4(3) manifest closer connection
ECLI:NL:RBLIM:2023:4342https://t.co/g6EdSsEs2c

— Geert Van Calster (@GAVClaw) October 20, 2023

The UK Supreme Court has dismissed the appeal in Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP & Ors [2023] UKSC 40, confirming the Court of Appeal’s finding that the claim against the majority of the defendants may go ahead.

I reviewed the first instance judgment here and the Court of Appeal’s here and I shall not repeat all the issues. Readers should note that the issues discussed are of wider relevance to current developments in both public and private international law (business and human rights litigation, climate change litigation etc.).

[21] Lord Lloyd-Jones summarises the Dicey rules at play (and also notes the editors of the 16th d and those before them pointing out the inroads that in recent years have been made into the principle) and [22] he makes a delightfully concise reference to somewhat different US views on the rationale for the issue.

[39] after reviewing the authorities, it is held that

The Danish tax system undoubtedly provided the context and the opportunity for the alleged fraud and the operation of the fraud can be understood only by an examination of that system. It may well be that at the trial of this action it will be necessary to address that in detail. However, as we have seen [that’s a reference to Dicey as summarised above, GAVC], there is no objection to the recognition of foreign tax laws in that way. Because the present proceedings do not involve an unsatisfied claim to pay taxes due in Denmark, they fall outside the scope of the revenue rule.

[41] applies fraus and nemo auditur in dismissing appellants’ attempt to present themselves as taxpayers

The appellants seek to circumvent this difficulty by nevertheless portraying the refund applicants as taxpayers. It is said that by making applications for withholding tax refund applications the applicants brought themselves within the Danish tax system and became Danish taxpayers. It is also said that the respondent by paying “refunds” accepted them into the Danish tax system. It is further said that in rescinding the “refunds” the respondent was acting in the capacity of a taxing authority. The appellants therefore maintain that, in all the circumstances, the recipients of “refunds” and the respondent were in the relationship of taxpayer and taxing authority. As the Court of Appeal pointed out (at para 136) this submission is misconceived. The applications for “refunds” were all based on the lie that the applicants had paid tax in the first place which, on the respondent’s pleaded case, they had not. This attempt to portray the applicants as taxpayers cannot bind the respondent as the victim of their fraud and the applicants cannot take advantage of their own wrongdoing in order to bring themselves within the revenue rule.

[44] ff discusses the impact of (commentary on) CJEU C-49/12 Sunico, which was also discussed by the  first instance judge in current case and by Szpunar AG and the CJEU in Movic.

[53] ff then discusses the sovereign authority rule, essentially considering whether the claim is a simple money claim like thirteen to the dozen, and with reference (via Dr Mann) to Grotius’ ‘actus qui a rege sed ut a quovis alio fiant’.

[58] again substance is distinguished from context

appellants are undoubtedly able to point to prior exercises of sovereign power by Denmark in creating its laws relating to the taxation of dividends and in operating the tax system. This, however, merely provides the context for the present claims. The substance of the claims, as we have seen, does not involve any act of a sovereign character, any exercise or enforcement of a sovereign right, or any vindication of sovereign power. On the contrary, the respondent is simply bringing restitutionary claims to recover monies of which it has been defrauded, a course open to any private citizen who had been similarly defrauded.

Unlike in first instance, neither Lugano nor Brussels Ia feature substantially at the Court of Appeal or Supreme Court. That is a pity for how the Dicey rules and similar ones in the current EU Member States relate to Lugano and Brussels, is not clear-cut.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.28 ff. (4th edition forthcoming January 2024).

For background see https://t.co/B5DeTbT5g4
More on the blog soon.

via @bwmlindsay https://t.co/3tVcUeFyL7

— Geert Van Calster (@GAVClaw) November 8, 2023

The Pax Moot case for 2024 is out! This year’s round is called Petar Šarcevic, and the competition will take place in Ljubljana from 24 to 26 April 2024.

Read all about MyStream and kidfluencer Giulia here: https://www.paxmoot.eu/case.

Further information and the time line is available on the Paxmoot website.

Written by Birgit van Houtert, Assistant Professor of Private International Law at Maastricht University

On 1 September 2023, the 2019 Hague Judgments Convention (HJC) entered into force. Currently, this Convention only applies in the relationship between EU-Member States and Ukraine. Uruguay has also ratified the HJC on 1 September 2023 (see status table). The value of the HJC has been criticised by Haimo Schack inter alia, for its limited scope of application. However, the HJC can be valuable even beyond its scope as this blog will illustrate by the ruling of the Dutch Supreme Court on 29 September 2023, ECLI:NL:HR:2023:1265.

Facts

In 2019, a couple with Moroccan and Dutch nationality living in the Netherlands separated. They have two children over whom they have joint custody. On 5 June 2020, the wife filed for divorce and ancillary relief, inter alia division of the matrimonial property, with the Dutch court. On 29 December 2020, the husband requested this court to also determine the contribution for child maintenance to be paid by the wife. However, the wife raised the objection of lis pendens with reference to Article 12 Dutch Civil Code of Procedure (DCCP), arguing that the Dutch court does not have jurisdiction regarding child maintenance, since she filed a similar application with the Moroccan court on 9 December 2020, and the judgment to be rendered by the latter court could be recognised in the Netherlands.

Lis pendens

On 26 March 2021, the Dutch district court pronounced the divorce and ruled that the wife must pay child maintenance. This court rejected the objection of lis pendens because the Moroccan and Dutch proceedings did not concern the same subject matter as in Morocco a husband cannot request child support to be paid by the wife. Furthermore, there has been no Convention to enforce the Moroccan judgment in the Netherlands, as required by Article 12 DCCP. However, the Court of Appeal held that the district court should have declined jurisdiction regarding child maintenance, because both proceedings concerned the same subject matter, i.e. the determination of child maintenance. Subsequently, the Court of Appeal declined jurisdiction over this matter by pointing out that the Moroccan judgment, which in the meantime had been rendered, could – in the absence of a Convention – be recognised in accordance with the Dutch requirements for recognition of non-EU judgments, the Gazprombank-requirements (see Hoge Raad 26 September 2014, ECLI:NL:HR:2014:2838, 3.6.4).

The case brought before the Supreme Court initially concerned the interpretation of lis pendens under Article 12 DCCP. In accordance with this provision, the Supreme Court states that the civil action should be brought to a foreign court first, and subsequently the Dutch court to consider the same cause of action between the same parties. If it is expected that the foreign proceedings will result in a judgement that can be recognised, and if necessary enforced, in the Netherlands either on the basis of a Convention or Gazprombank-requirements (see Hoge Raad 29 September 2023, ECLI:NL:HR:2023:1266, 3.2.3), the Dutch court may stay its proceedings but is not obliged to do so. The court may, for example, decide not to stay the case because it is expected to take too long for the foreign court to render the final judgment (3.3.5). However, the court must declare itself incompetent if the foreign judgment has become final and this judgment could be recognised and, if necessary enforced, in the Netherlands. To define the concept of finality of the foreign judgement, the Supreme Court drew inspiration from the HJC and the Explanatory Report by Garcimartín and Saumier (paras. 127–132) by applying the definition in Article 4(4) HJC by analogy; i.e the judgment is not the subject to review in the State of origin and the time limit for seeking ordinary review has been expired. According to the Supreme Court, this prevents that the dispute cannot be settled anywhere in court (3.3.6).

In the case at hand, the Dutch district court did thus not have to decline jurisdiction as the Moroccan judgment had not been final yet. The Supreme Court has also specified the conditions under which the court at first instance’s decision on the application of Article 12 DCCP can be challenged on appeal (3.4.2-3.4.6), which is outside the scope of this blog.

Finality of the foreign judgment in the context of recognition

Moreover, the Supreme Court clarifies that in proceedings involving lis pendens, an action may be brought for recognition of the foreign decision, including a claim to rule in accordance with the condemnation in the foreign decision (on the basis of Article 431(2) DCCP) (3.5.1). After reiterating the known Gazprombank-requirements for recognition, the Supreme Court addresses for the first time the issue whether the foreign judgment should be final (which has frequently been debated by scholars). According to the Supreme Court, the court may, postpone or refuse the recognition on the basis of the Gazprombank-requirements if the foreign judgement is not final, i.e. the judgment is the subject of review in the State of origin or the time limit for seeking ordinary review has not expired (3.6.2). The Supreme Court therefore copies Article 4(4) HJC, and refers to the Explanatory Report by Garcimartín and Saumier (paras. 127–132). Similar to the latter provision, a refusal on this ground does not prevent a renewed application for recognition of the judgment. Furthermore, the court may, on application or of its own motion, impose the condition that the party seeking recognition of a non-final foreign judgment provides security for damages for which she could be ordered to pay in case the judgement is eventually annulled or amended. The Supreme Court therefore follows the suggestion in the Explanatory Report by Garcimartín and Saumier (para. 133).

Comment

The application by analogy of the autonomous definition of finality in Article 4(4) HJC yields legal certainty in the Netherlands regarding both the lis pendens-conditions under Article 12 DCCP, and the recognition of non-EU judgments in civil matters to which no Convention applies. Because of the generally uncodified nature of Dutch law for recognition of latter judgements, legal certainty has been advocated. In this regard, the Dutch Government Committee on Private International Law submitted its advice in February 2023 to revise Article 431 DCCP which inter alia includes the application by analogy of the jurisdictional filters in Article 5(1) HJC (see advice, p. 6). Thus, despite its limited scope of application, the HJC has value because of its possible application by analogy by courts and legislators (see also B. van Houtert, ‘Het 2019 Haags Vonnissenverdrag: een gamechanger in Nederland? Een rechtsvergelijkende analyse tussen het verdrag en het Nederlandse commune IPR’, forthcoming Nederlands Internationaal Privaatrecht 4, 2023). Furthermore, the Dutch Supreme Court’s application by analogy of Article 4(4) HJC contributes to the Hague Conference on Private International Law’s aim to unify Private International Law.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will hold its annual XLVI Seminar entitled “Private International Law and the National Code of Civil Procedure. A critical analysis” (el Derecho Internacional Privado y el Código Nacional de Procedimientos Civiles. Un análisis crítico) from 8 to 10 November 2023. See our previous post here.

The program is available here.

Today there will be a book presentation entitled:

“Comentarios a la Normatividad Procesal en el Código Nacional de Procedimientos Civiles y Familiares” by Nuria González Martín and Jorge Alberto Silva.

Commenting: Magistrado Oscar Gregorio Cervera and Ligia Claudia González Lozano.

There is a fee for participation both in person and online.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided to us by the editor of the journal.

J. Oster, Provisional Measures Against Cross-Border Online Platforms

In its ruling of 15.2.2022 (Trustpilot A/S ./. Interreal Group B.V.), the Gerechtshof Amsterdam had to decide on provisional measures within the meaning of Article 35 Brussels Ibis Regulation against an online evaluation platform. The Court held that Article 35 Brussels Ibis Regulation applied independently of a jurisdiction clause concerning the proceedings on the merits of the case. However, according to the Court, Article 35 Brussels Ibis Regulation only covers measures having a provisional or protective character. The Court found that this applies to an obligation of an online platform to temporarily store user data available to the platform, but it excludes both obligations of that online platform to hand over user data to the applicant company and a forward-looking duty to store the data of prospective users.

M. Cremer, Golden Passports in Private International Law

A number of states grant citizenship by investment, which allows wealthy individuals to acquire a new nationality essentially through payment. The article analyzes the impact of so-called golden passports in private international law. It contends that from a theoretical standpoint, choice of law rules are not required to use nationality obtained through investment as a connecting factor. In practice, private international law avoids applying the corresponding law in most, but not all cases. However, in certain situations, European law imposes a different result for golden passports from EU Member States.

R.A. Schütze, Security for Costs of English and Swiss Plaintiffs in German Courts

The decision of the Federal Supreme Court (Bundesgerichtshof – BGH) is a milestone in the German-British relations regarding the procedural position of English plaintiffs in German courts after the Brexit. The BGH – overruling an earlier judgment of the Regional Court of Appeal Frankfurt/Main – decided that plaintiffs residing in the UK are not obliged to provide security for costs under sect. 110 German Code of Civil Procedure (ZPO). The Court applied the European Convention on Establishment (Art. 34, Sect. 4).
The Court further decided that Plaintiffs residing in Switzerland have no such obligation either under the Lugano Convention 2007.
The BGH finally decided that Respondent must request security for costs in the instance the event occurs that gives Respondent the right to claim security for cost.

C. Thole, The Distinction between Civil Matters and Acta Iure Imperii under Art. 1 Brussels Ibis Regulation

On 22 December 2022 the CJEU handed down a further judgment on the definition of civil and commercial matters within the meaning of Art. 1 Brussels Ibis Regulation and the distinction between civil matters and acta iure imperii. The short judgment denied the applicability of the regulation with regard to an action of a public authority of a Member State against companies established in another Member State seeking a declaration of the existence of restrictive practices, an order penalising those practices and an order on the cessation of those practices. Christoph Thole finds the judgment to be feasible, but parts of the Court’s line of reasoning remain doubtful.

T. Bens, The Bogus Entrepreneur, the Intermediating Life Companion and the Bona Fide Contractual Partner: Determination of Consumer Status under Art. 17(1) Brussel Ibis Regulation

The preliminary ruling of the Court of Justice of the European Union in Wurth Automotive concerns the determination of whether a person has the status of consumer as defined by Art. 17 Brussels Ibis Regulation. According to settled case law of the Court of Justice, the national court must determine the aim for which the contract was concluded by the person who claims the consumer status. The referring Austrian court nonetheless seems to have had some issues with applying the case law of the Court on “mixed” contracts given the peculiar facts and circumstances of the case. The highly factual preliminary questions are all reformulated by the Court to rather abstract questions of interpretation, evaluation and evidence. The ruling confirms that a person who misleads their professional contractual partner as to the aims for which they sought to conclude the contract cannot invoke the protective jurisdictional rules for consumers, but also ties this defence to certain questionable evidentiary restrictions.

I. Bach and F. Burghardt, The Role of the Last Joint Habitual Residence on Post-Marital Maintenance Obligations

Art. 5 of the 2007 Hague Protocol on the law applicable to maintenance obligations holds an exemption to Art. 3’s general principle: Regarding post marriage maintenance, the law at the creditor’s habitual residence does not apply if the marriage is more closely connected to another state. The BGH now established a de minimis exception for Art. 5: The law of the other state only prevails if its connection to the marriage is a) closer than the connection of the creditor’s habitual residence and b) sufficiently close in absolute terms. Ivo Bach and Frederik Burghardt argue that such an additional threshold is neither in line with the wording of Art. 5 nor with the Drafters’ intention and the ratio legis. Unfortunately, the BGH has refused to refer the question to the ECJ for a preliminary ruling.

A. Botthof, Convention on the Civil Aspects of International Child Abduction: State of Return and Best Interests of the Child After the Making of an Order for the Return of the Child

Two recent decisions shed new light on the Convention on the Civil Aspects of International Child Abduction. The Court of Appeal of Berlin comments on the controversial question of whether a wrongfully removed child can be returned to a Contracting State other than that in which the child was habitually resident immediately before the removal. According to the Court of Appeal, this is possible if children return to their usual family ties and relationships. The Supreme Court of Justice of Austria was concerned with the best interests of the child in the return process. The current decision reaffirms the established jurisdiction, according to which the claim that the child’s best interests are endangered by the return can only be based on facts that occurred after the making of an order for the return of the child.

D. Wiedemann, European Account Preservation Order (EAPO) for Penalty Payments

Within the scope of application of the Brussels Ibis Regulation, creditors have two options when enforcing a judgment obliging a debtor to perform an action or to refrain from an action: On the one hand, creditors can enforce this judgment across borders by means of the enforcement methods available in another Member State. On the other hand, creditors may obtain an order levying a penalty payment and enforce that order in accordance with the enforcement measures for monetary claims in another Member State (Art. 55 Brussels Ibis Regulation). Thus, creditors are free to choose whether to enforce the judgment or to enforce an order levying a penalty payment across the border. The securing of penalty payments by means of a European Account Preservation Order (Regulation 655/2012) could be a third procedural option. In the first case, the Higher Regional Court of Cologne refused to allow this option. The court decided that creditors may not pursue a European Account Preservation because the penalty payment essentially concerns a claim to perform an action and not a pecuniary claim. In the second case, the CJEU implied that penalty payments should indeed be regarded as pecuniary claims. However, a penalty payment order that does not determine the final amount cannot justify the issuance of a European Account Preservation Order. In this case, the creditor has to satisfy the court that the claim is likely to succeed (Art. 7(2) Regulation 655/2012).

P. Hay, The Rise of General Jurisdiction Over Out-of-State Enterprises in the United States

In June 2023, the U.S. Supreme Court continued its revision of personal jurisdiction law, in this case by refining, thereby perhaps expanding, the law of when a court may exercise general personal jurisdiction – that is, jurisdiction over all claims – over a non-resident person or an out-of-state enterprise. In Mallory v. Norfolk Southern Railway Co., it held in a 4+1:4 decision that, when a state requires a non-resident company to register to do business in the state and such registration constitutes consent to jurisdiction over all claims against it, such exercise is permitted. In reaching its conclusion, the Court applied a more than a century old (1917) precedent. The plurality of four Justices also compared the exercise of such jurisdiction to “tag jurisdiction” (general jurisdiction over persons present in the state at the time of service) and did not consider the Court’s much more recent cases on specific (claim-related) jurisdiction to be in contrast with (i.e., to overrule) the 1917 decision. The dissent disagreed and, in light of the majority’s new revision, considered specific jurisdiction now significantly deleted. Indeed, it does seem that the distinction between general and specific jurisdiction continues to become considerably blurred.

M. Reimann, The Renewed Threat of “Grasping” Jurisdiction over Corporations – and Its Limits

In its latest decision on personal jurisdiction, Mallory v. Norfolk Southern Railway Co. (600 U.S. __, 2023), the US Supreme Court handed the states a new weapon against corporations that are not “at home” in the forum state. In a 5:4 decision, the Court found the requirement that a corporation consent to general in personam jurisdiction as a condition for obtaining a business license compatible with the due process clause of the fourteenth amendment. In this manner, a state can circumvent the rule established in Daimler AG v. Bauman (2014) that corporations are subject to general in personam jurisdiction only where they are “at home” (i.e., typically in the state(s) of their incorporation or headquarters). Yet, the jeopardy for corporations is not quite as serious as it seems at first glance for three reasons. First, at least so far, very few states have used this form of “consent”, and there is reason to believe that it will not become the overwhelming practice. Second, at least if such consent is the only connection between the defendant and the forum state, the respective suits will often be dismissed under the forum non conveniens doctrine because the forum will not have any plausible interest or reason to entertain them. Third, requiring consent to general in personam jurisdiction as a condition for obtaining a business licence will almost surely be challenged under the so-called “dormant commerce clause”. That provision was not before the Court in Mallory; it imposes serious limits on what states can do to out-of-state corporations. The consent requirement likely violates these limits in cases in which the forum state has no legitimate interest in adjudicating the dispute. Thus, in the long run, the consent requirement will likely be effective only if the forum state has a reasonable connection with the litigation before its courts. Such a narrowed version would be a welcome correction of the overbroad protection that (especially foreign) corporations have enjoyed under Daimler. Foreign corporations should also consider that the consent requirement can kick in only if they need a business license from the forum state – which is not the case if they act there through subsidiaries or just occasionally. Still, foreign corporations have reason to worry about the future of personal jurisdiction because Mallory is another indication that the Court’s majority is not willing to protect them as broadly as in the past. It is, for example, quite possible that the Court will eventually allow personal jurisdiction over an out-of-state corporation on the basis of service of process on one of its officers in the forum state.

T. Kono, Punitive Damages and Proactive Application of Public Policy in the Context of Recognition of Foreign Judgments in Japan

The Californian judgment including punitive damages was partially enforced in California. The question of whether the enforced portion could be interpreted to include the portion that awarded punitive damages was raised as a precondition for the enforceability of the unpaid portion in Japan. The Supreme Court of Japan stated that the punitive damages portion in the Californian judgment does not meet the requirements of Article 118(3) of the Japanese Code of Civil Procedure and that the exequatur on the foreign judgment cannot be issued as if the payment was allocated to the claim for the punitive damages. The Supreme Court seems to have taken the position that Japan’s system of recognition of foreign judgments is a system that can proactively deny the effect of foreign judgments not only where the effect of the foreign judgment extends into Japanese territory, but also where the effect of the foreign judgment does not extend into Japan. The author of this article is of the view that the social function of punitive damages would not constitute public policy at state levels insofar as punitive damages are insurable. Hence, the proactive use of public policy by the Japanese Supreme Court would not cause direct tension with those states. In other states, where they are not insurable, however, under certain circumstances, public policy in Japanese law versus public policy in US law may arise as a debatable issue.

S. Noyer, Annual Conference of the Society for Arab and Islamic Law in honor of Omaia Elwan, October 7 and 8, Heidelberg, Germany

The PAX Moot case for the 2024 moot competition on private international law is now out. The 2024 Round is dedicated to Petar Šarčević.

The Petar Šarčević Round explores social media platforms’ activities such as content creation and monetization from a private international law perspective.

The case requires participants to deal with matters of international jurisdiction of the District Court of Ljubljana and applicable law in a complex factual situation involving parental responsibility, contractual relationships, validity of a contractual relationship entered into by a minor, termination of contractual relations, tort claims, and removal of online published content.

The moot competition has two phases: a written and an oral round. The oral round will take place in Ljubljana from 24-26 April 2024.

More information about the competition, the schedule building up to the oral round in Ljubljana, the applicable rules for the Petar Šarčević Round, and the registration procedure for the teams taking this challenge will follow soon.

To all teams deciding to join the competition: good luck in preparing the case!

The author of this post is Costanza Honorati, professor of EU law and private international law at the University of Milan Bicocca. She chaired the working group that prepared a position paper on behalf of the  European Association of Private International Law in view of the eight meeting of the Special Commission on the practical operation on the 1980 Child Abduction and the 1996 Child Protection Conventions, and attended the meeting on behalf of EAPIL.

The Special Commission (SC) charged by the Hague Conference on Private International to discuss  the practical operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention met for the eighth time from 10 to 17 October 2023. The meeting was attended by 471 delegates, in person and online, representing 66 HCCH Members, 13 non-Member Contracting Parties, 27 observers from inter-governmental and non-governmental organisations, including the European Association of Private International Law (see its position paper as Info. Doc. No 18 of October 2023)

As usual, at the end of the meeting the SC adopted a set of Conclusions & Recommendations (C&R), whose content is briefly summarized below, with a focus on a selection of issues. To the reader’s benefit the two Conventions are addressed here separately.

The SC took note that, since the Seventh Meeting of the SC in 2017, five States have become Contracting Parties to the 1980 Child Abduction Convention (Barbados, Botswana, Cabo Verde, Cuba, and Guyana), bringing the total number of Contracting Parties to the Convention to 103.

Interesting information were drawn from the fifth Statistical Study drawn by prof. Nigel Lowe and Victoria Stephens for the year 2021 (Prel. Doc. No 19A ). While the data in that year are likely to have been affected by the COVID-19 pandemic, a few relevant findings are worth mentioning. Among these, the increase in the average number of days it took to reach a final decision; the increase of refusals to return; the almost double increase of proportion of refusals to return on the basis of the Article 13(1)(b) exception, compared with the results of the 2015 statistical study; the small decrease in cases going to court; the increase of cases being settled outside court .

While the SC has reaffirmed and reiterated some of the conclusions adopted in previous meetings, a few specific topics have been discussed in greater detail.

Under the heading Addressing delays under the 1980 Child Abduction Convention, the SC found that delays continue to be a significant obstacle in the operation of the 1980 Child Abduction Convention and the SC strongly recommended Contracting Parties experiencing delays to review their existing processes in order to identify potential causes of delays.

With this in mind the SC reiterated

the effectiveness and value of the use of information technology for efficient communication between authorities, sharing of data, and to assist in reducing delays and expedite return proceedings.

The SC thus encouraged States to continue implementing and enhancing the use of information technology and to make use of the Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention as a helpful resource (para 5-9).

The SC then addressed the Relationship of the 1980 Child Abduction Convention with other international instruments – 1989 UN Convention on the Rights of the Child (UNCRC). Having recalled the rationale for the return of the child and the scope of the return proceedings, the SC emphasized how return proceedings should not include a comprehensive ‘best interests assessment’. In particular the SC stated, at para 14 e 15 that

[w]hile the exceptions derive from a consideration of the interests of the child, they do not turn the return proceedings into custody proceedings. Exceptions are focussed on the (possible non-) return of the child. They should neither deal with issues of custody nor mandate a full “best interests assessment” for a child within return proceedings.

Similar findings are featured in the communication No 121/2020 of the UN Committee on the Rights of the Child under the Optional Protocol on a Communications Procedure.

The SC had a lively discussion on the Application of Article 13(1)(b) of the 1980 Child Abduction Convention in a contest of Domestic violence. The C&R reflect the discussion summarizing some of the results as following. It firstly makes reference to the Guide to Good Practices on Article 13, noting that, according to paragraph 33,

harm to a parent, whether physical or psychological, could, in some exceptional circumstances, create a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The Article 13(1)(b) exception does not require, for example, that the child be the direct or primary victim of physical harm if there is sufficient evidence that, because of a risk of harm directed to a taking parent, there is a grave risk to the child.

In light of the ongoing discussions and initiatives promoted by advocates for victims of domestic violence, the SC supported the proposal to hold a international open forum allowing for discussions amongst organisations representing parents and children and those applying the Convention. The Philippines offered to assess hosting the forum in Manila in 2024 and States have been invited to contribute in the organisation and funding of such a forum (para 26)

Closely connected to domestic violence is the related issue of Safe return and measures of protection. Interestingly, the SC made it clear that a court may also order protective measures to protect the accompanying parent in order to address the grave risk to the child (para 28). As regards undertakings, the SC reiterated that the efficacy of the measures of protection will depend on whether they are enforceable in the State of habitual residence of the child. Insofar, voluntary undertakings are not easily or always enforceable and, because they may not be effective in many cases, they should be used with greatest caution. It was also suggested that, when undertakings are made to the court of the requested State, they should be included in the return order in order to help facilitate enforcement in the State of habitual residence of the child. This is a new practice that could come result interesting.

The issue of hearing of the child again attracted much interest. Based on the fact that States follow very different approaches when hearing the child, C&R aim to circulate some good practices, such as (para 37)

a) the person who hears the child, be it the judge, an independent expert or any other person, should have appropriate training to carry out this task in a child-friendly manner and training on international child abduction; b) if the person hearing the child speaks to one parent, they should speak to the other; c) the person hearing the child should not express any view on questions of custody and access as the child abduction application deals only with return.

It was also emphasised that when hearing the child for the purposes of Article 13(2), this should be done only for such purpose and not in respect of broader questions concerning the welfare of the child, which are for the court of the child’s habitual residence. In other terms, the hearing of the child should be kept in the framework of an exception to return and not embrace a wider scope.

The very topical issue of asylum claim lodged in abduction cases was also shortly discussed, on the basis of Prel. Doc. No 16 . The C&R only indicate that such proceedings should be examined expeditiously (para 40).

Eight new States have become Contracting Parties to the 1996 Child Protection Convention since the 2017 SC, namely Barbados, Cabo Verde, Costa Rica, Fiji, Guyana, Honduras, Nicaragua and Paraguay, thus bringing the total number of Contracting Parties to the Convention to 54 (27 of which are EU Member States).

Some interesting clarifications were given in relation to recognition and enforcement of protection measures. First, in relation to the scope of application of Article 26(1) – a rule which provides that, where measures taken in one Contracting Party require enforcement in another Contracting Party, such measures shall be declared enforceable or registered for the purpose of enforcement in that other Contracting Party – the SC made it clear that not all measures of protection require enforcement under Article 26. Enforcement shall be required, for example, for the forced sale of property; or in relation to a parent refusing to abide by the orders made by the competent authority in another State. Because not all cases fall under Article 26, the SC invited Contracting Parties (in relation to their laws) and competent authorities (in relation to their procedures) to differentiate between those measures that require enforcement and those that do not (para 74-75).

Second, it was noted that, in order to facilitate the recognition and enforcement of measures of protection, the competent authority should carefully describe those measures in the decision and the grounds upon which it based its jurisdiction, including when jurisdiction is based on Article 11(1) (para 77-78).

Another interesting topic on which the SC focused is the placement of children. In this regard the SC endeavored to clarify what should be regarded as placement under Article 3(e) and Article 33 (i.e. any placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution) ) and also what should not be regarded as a placement (i.e. purely private arrangements, including the ones in the form of an agreement or unilateral act, including a notarial kafala; a child travelling abroad for tourism purposes with their foster parent) (para. 83 et seq).

It then offered a useful guidance on minimum steps for the procedure under Article 33. These include the following:

1. The competent authority of the State which is contemplating the measure of alternative care must consult the Central Authority or competent authority in the State where it is proposed that the measure will be exercised by: (1) discussing the possibility of such a placement in the receiving State; (2) transmitting a report on the child; (3) explaining the reasons for the proposed placement or provision of care outside the requesting State and in the requested State.

2. The Central Authority or competent authority of the State where it is proposed that the measure will be exercised gives its consent to the proposed placement or provision of care.

3. If the requested State has consented to the placement or provision of care, taking into account the child’s best interests, the competent authority of the requesting State then issues its decision.

Finally, as a result of the lively debate in the course of the SC, the need for further future action of both the Permanent Bureau (PB) and Contracting States was recommended. This was further reflected in the C&R with respect to the following topics.

In relation to direct judicial communications and the International Hague Network of Judges (IHNJ), the proposal was advanced to develop a short model guide to court practice and further initiatives to hold a regional in-person meeting of the IHNJ in Brazil (May 2024) and a global in-person meeting of the IHNJ in Singapore (May 2025) (para 19).

Regarding the determination of wrongful removal pursuant Articles 8, 14 and 15, the SC invited the PB to draw up a note containing information on the use of such rules, drawing from the contents of Prel. Doc. No 14. (para 46).

As to the revised Request for Return Recommended Model Form and the new Request for Access Recommended Model Form, the SC concluded that further work needed. A Group of interested delegates will assist the PB in finalising both revised Forms (para 50).

Concerning relocation, after noting the strong impact on international abduction and the diversity of approaches of States in this matter, the SC proposed the development of a questionnaire by the PB directed to States to gather information about procedures that States have in place to facilitate lawful relocation (para 54);

With regard to transfer of proceedings under Article 8 and 9 of the 1996 Child Protection Convention, besides recalling the general duty to cooperate among Central Authorities and direct judicial communications between judges involved in a transfer of jurisdiction, the PB was asked to circulate the questionnaire annexed to to all Contracting Parties to the 1996 Child Protection Convention, with a view to collecting information from judges and Central Authorities regarding requests under Article 8 or 9 and to then review such document in light of the responses from Contracting Parties (para 69).

Finally, on the placement of children, the PB was asked to start collecting information on the operation of Article 33 from Contracting Parties in addition to that set out in Doc. No 20 and that a Working Group be established to develop: (a) a model form for cooperation under Article 33; and (b) a guide on the operation of Article 33.

It does not happen often that an arbitral award is successfully challenged in England for serious irregularity under section 68 of the Arbitration Act 1996.

This happens even less often when an award is rendered by a tribunal as prominent as the one in Process and Industrial Developments Ltd v Nigeria, which included Lord Hoffmann (former UKSC judge) as Chairman, Sir Anthony Evans (former EWCA judge), and Chief Bayo Ojo SAN (former Attorney General of Nigeria).

It is outright extraordinary for a judgment to conclude by urging reform of international commercial arbitration and noting that a copy of the judgment will be referred to the Bar Standards Board and the Solicitors Regulation Authority to consider the professional consequences of the conduct of two lawyers involved in an arbitration.

And yet Knowles J did all of this in his judgment of 23 October 2023 in Nigeria v P&ID.

In 2010, the parties entered into a gas supply and processing contract that provided for arbitration in London. Under the contract, Nigeria was to supply gas to processing facilities constructed and operated by P&ID, a BVI company. The stated duration of the contract was 20 years. Neither party performed its obligations, and a dispute arose. A tribunal was constituted. It ruled in favour of P&ID, and ordered Nigeria to pay USD6.6b. Interest was awarded at a rate of 7%, eventually ballooning to USD11b. Nigeria argued that the contract and the arbitration were compromised due to corruption, bribery, and fraud. Knowles J describes the surrounding circumstances in great detail in his judgment that spans 595 paragraphs or 140 pages with annexed materials. Jonathan Bonnitcha provides a useful summary of the facts in his post of 23 March 2021, reporting on a 2020 High Court judgment in this case (footnotes omitted):

“the contract was based on an unsolicited proposal presented to the Nigerian government by P&ID. No tender was conducted. Moreover, P&ID did not appear to have the experience in the gas sector that would be expected of a company responsible for a multibillion-dollar project—it was an offshore entity with ‘no assets, only a handful of employees, and was without a website or other presence.’

… the arbitration was conducted in private. Indeed, even the fact that the arbitration was taking place did not become public knowledge until 2015, following a change of government in Nigeria, at which point in time the jurisdictional and merits phases of the arbitration had already concluded. Despite a number of ‘red flags’ of corruption relating to the contract, Nigeria did not directly raise the issue of corruption in its defence of the arbitration. (Nigeria’s lawyers in the arbitration did obliquely describe the Minister of Petroleum Resources at the time the contract was signed ‘as having been a “friendly” Minister who purported to commit the Government to obligations and concessions which exceeded his powers.’) Based on documents that are publicly available, it seems that the tribunal also did not take any steps to determine whether the contract might have been procured through corruption.

Given the many billions of dollars at stake, the way the arbitration unfolded was also unusual. Nigeria’s lawyers failed to file expert evidence on jurisdictional issues of Nigerian law, or insist on an oral hearing on jurisdiction where P&ID’s evidence might have been tested through cross-examination. At the merits phase, Nigeria failed to challenge the key claims contained in the statement of P&ID’s central witness, its chairman, Michael Quinn. It put forward only one ineffectual witness of its own who did ‘not claim to have first-hand knowledge of any of the relevant events.’ The tribunal did hold a hearing on the merits, but it lasted only a few hours. The tribunal concluded that Nigeria had repudiated the contract.

The tribunal’s decision on quantum was based on a single witness statement from the investor. It did not order the production of documents that might have proved (or disproved) these self-serving claims… the investor had not commenced construction of the gas facility and estimated its own expenditure in relation to the project at around USD 40 million. (In the subsequent British court proceedings, the investor conceded that this expenditure had not been incurred by P&ID at all but, rather, by another company owned by a former Nigerian general.)”

Knowles J made three key findings. First, P&ID provided to the tribunal and relied on Mr Quinn’s false evidence. Mr Quinn omitted to mention that the legal director at the Ministry of Petroleum Resources had been paid a USD5,000 bribe before the conclusion of the contract and a USD5,000 bribe after ([494]). Second, P&ID continued to pay bribes, in the total amount of USD4,900, to this official “to keep her ‘on-side’, and to buy her silence about the earlier bribery” ([495]). Third, P&ID improperly retained Nigeria’s privileged internal legal documents that it had received during the arbitration ([496]). The two lawyers, whose conduct in relation to these documents Knowles J referred to the Bar Standards Board and the Solicitors Regulation Authority, were set to receive payments of USD850m and USD3b, respectively, if P&ID had been successful. Relying on these facts, Knowles J found that there were serious irregularities of the kind set out in section 68(2)(g) of the 1996 Act (“the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy”), which caused Nigeria substantial injustice.

This case concerned a dispute arising out of a gas development project, typically a matter within the purview of international investment arbitration tribunals. However, it was argued based on a breach of contract, falling under the jurisdiction of an international commercial arbitration tribunal. These two forms of arbitration differ significantly in several aspects, most notably for the purposes of the present discussion in terms of transparency, non-party participation, and the ability and willingness of tribunals to consider wider social, economic, and political circumstances (I am not implying here that international investment tribunals take public interest consideration sufficiently seriously, only that they tend to be more open to such considerations). The inadequacy of international commercial arbitration for cases of public interest was laid bare in P&ID v Nigeria. The public only became aware of the arbitration after a change of government. The tribunal did not examine, of its own motion, whether corruption, bribery, and fraud tainted the contract and the arbitration. There was no assessment of whether wider social, economic, and political circumstances justified the finding of liability and exceptionally high damages. And two lawyers involved in the case were to make fabulous fortunes if the claimant won against a country where corruption is endemic and public officials can apparently be bribed for a few thousand dollars.

This is why Knowles J made important comments urging reform of international commercial arbitration in cases of public interest. His words are worth reproducing in full:

“582. … I hope the facts and circumstances of this case may provoke debate and reflection among the arbitration community, and also among state users of arbitration, and among other courts with responsibility to supervise or oversee arbitration. The facts and circumstances of this case, which are remarkable but very real, provide an opportunity to consider whether the arbitration process, which is of outstanding importance and value in the world, needs further attention where the value involved is so large and where a state is involved.

583. The risk is that arbitration as a process becomes less reliable, less able to find difficult but important new legal ground, and more vulnerable to fraud. The present case shows that having (as here) a tribunal of the greatest experience and expertise is not enough. Without reflection, then a case such as the present could happen again, and not reach the court.

584. With diffidence and respect, I draw attention to 4 points, which are to some degree interconnected.

(1) Drafting major commercial contracts involving a state

585. It was a complete imbalance in the contributions of the parties that enabled the GSPA [the contract] to be in the form it was. Many reading this judgment will recognise that, although in the present case bribery and corruption were behind that imbalance, it happens in other cases without bribery and corruption but simply where experience, expertise or resources are grossly unequal. This underlines the importance of professional standards and ethics in the work of contract drafting, including in the approach to other parties to the proposed contract. It is why some contributions of pro bono work by leading law firms to support some states challenged for resources…is so valuable, in the interests of their, often vulnerable, people…

(2) Disclosure or discovery of documents

586. It has been disclosure or discovery of documents that has enabled the truth to be reached in this case… In all the recent debates about where disclosure or discovery matters, this case stands a strong example for the answer that it does.

(3) Participation and representation in arbitrations over major disputes involving a state

587. Notwithstanding Nigeria’s allegations, I have not found Nigeria’s lawyers in the Arbitration to be corrupt. But the case has shown examples where legal representatives did not do their work to the standard needed, where experts failed to do their work, and where politicians and civil servants failed to ensure that Nigeria as a state participated properly in the Arbitration. The result was that the Tribunal did not have the assistance that it was entitled to expect, and which makes the arbitration process work. And Nigeria did not in the event properly consider, select and attempt admittedly difficult legal and factual arguments that the circumstances likely required. Even without the dishonest behaviour of P&ID, Nigeria was compromised.

588. But what is an arbitral tribunal to do? The Tribunal in the present case allowed time where it felt it could and applied pressure where it felt it should. Perhaps some encouragement to better engagement can be seen as well. Yet there was not a fair fight. And the Tribunal took a very traditional approach. But was the Tribunal stuck with what parties did or did not appear to bring forward? Could and should the Tribunal have been more direct and interventionist…? Should the Tribunal have taken the initiative to encourage exploration of new bounds of contract law and the law of damages that may today be required where major long term contracts are involved?

(4) Confidentiality in significant arbitrations involving a state

589. The privacy of arbitration meant that there was no public or press scrutiny of what was going on and what was not being done. When courts are concerned it is often said that the ‘open court principle’ helps keep judges up to the mark. But it also allows scrutiny of the process as a whole, and what the lawyers and other professionals are doing, and (where a state is involved) what the state is doing to address a dispute on behalf of its people. An open process allows the chance for the public and press to call out what is not right.

…

591. … unless accompanied by public visibility or greater scrutiny by arbitrators, how suitable is the process in a case such as this where what is at stake is public money amounting to a material percentage of a state’s GDP or budget? Is greater visibility in arbitrations involving a state or state owned entities part of the answer?”

These are important questions. It is a shame that the Law Commission of England and Wales does not deal with them in its recent final report on the review of the Arbitration Act 1996.

After the first successful conference in Aarhus in 2022, the next conference of the European Association of Private International Law (EAPIL) will be held from 6 to 8 June 2024 at the University of Wrocław, Poland. The local host will be Agnieszka Frąckowiak-Adamska. 

The Wrocław conference will focus on Private International Law and Global Crises. The general question discussed is whether private international law can respond to crises, and if so, how. Four thematic blocks are planned, concerned respectively with war and armed conflict, the rule of law, climate change and global supply chains.

In addition, reports from the Court of Justice of the European Union, the European Court of Human Rights and the European Commission will provide insights into current challenges in the creation and application of EU PIL.

14:00
Registration

15:30
Welcome addresses

16:00
Keynote
Mateusz Pilich, University of Warsaw

17:00
Reports from Luxembourg, Strasbourg and Brussels
Lucia Serena Rossi, Court of Justice of the European Union (tbc)
Raffaele Sabato, European Court of Human Rights
Andréas Stein, European Commission

19:00
Reception

9:00
Revisiting the Functions of Private International Law

Can Private International Law respond to crises and if yes, how?
Patrick Kinsch, University of Luxembourg
Veronica Ruiz Abou-Nigm, University of Edinburgh

10.40
Private International Law, War and Armed Conflicts

Dealing with war-induced migration: Family law aspects
Iryna Dikovska, Taras Shevchenko National University Kyiv

Dealing with war-induced effects: Contractual relationships
Tamasz Szabados, ELTE Eötvös Loránd University

13.00
Private International Law and the Rule of Law

Protection of the Rule of Law I: Jurisdiction and applicable law
Alex Mills, University College London

Protection of the Rule of Law II: Enforcement and mutual trust
Matthias Weller, University of Bonn

15.00
Private International Law and Climate Change

Liability for climate change induced harm: Jurisdiction and Applicable law
Eduardo Alvarez Armas, Universidad Pontificia Comillas
Olivera Boskovic, Université Paris Cité (France)

17:00
General Assembly (EAPIL members only)

19:00
Reception

9:00
Private International Law and Global Supply Chains 

Protection of human rights in global supply chains I: Jurisdiction
Rui Dias, University of Coimbra

Protection of human rights in global supply chains II: Applicable law
Klaas Eller, University of Amsterdam

Protection of human rights in global supply chains III: Ordre public
Laura Carpaneto, University of Genova

10:00
Discussion

11.00
How Can Private International Law Contribute to a More Sustainable Life?
Roundtable

12.30
Lunch

13.30
End of conference

The website of the conference (including the registration form) will be available soon.

Information about the University of Wrocław is here and about the city of Wrocław is here.

In November 2023, the Fourth Chamber of the Court of Justice, with C. Lycourgos presiding and O. Spineau-Matei reporting, will hand down her decision in case C-497/22, Roompot Service. The scheduled delivery date is Thursday 16. The request for a preliminary ruling, from the Landgericht Düsseldorf (Germany), was lodged on 22 July 2022, focuses on Article 24 of the Brussels I bis Regulation. The question reads:

Must the first sentence of Article 24(1) of [the Brussels I bis Regulation] be interpreted as meaning that a contract which is concluded between a private individual and a commercial lessor of holiday homes in relation to the short-term letting of a bungalow in a holiday park operated by the lessor, and which provides for cleaning at the end of the stay and the provision of bed linen as further services in addition to the mere letting of the bungalow, is subject to the exclusive jurisdiction of the State in which the rented property is situated, irrespective of whether the holiday bungalow is owned by the lessor or by a third party?

Advocate General J. Richard de la Tour’s opinion was published on June 29. He offers a principal answer and a subsidiary one:

The first subparagraph of Article 24(1) of [the Brussels I bis Regulation] must be interpreted as meaning:

principally, that it does not apply to a contract under which holiday accommodation in a holiday park is made available by a tourism professional for short-term personal use;

in the alternative, that it covers a claim for repayment of part of the price paid following a change by one of the parties to the terms of a contract for the rental of holiday accommodation.

This double proposal relates to the fact that, according to Mr. Richard de la Tour, in light of the decision in C-289/90, Hacker, the contractual relationship in the case at hand should be classified as a ‘complex contract’ within the meaning of that case-law. By way of consequence, the provision by a tourism professional of accommodation in a holiday park for short-term personal use does not fall within the scope of the first subparagraph of Article 24(1) of the Brussels I bis Regulation. The subsidiary answer comes into play only if the Court of Justice gets nevertheless to a different conclusion, thus holds that the contract in question relates exclusively to the letting of holiday accommodation, as in the judgment in C- 8/98, Dansommer.

The next PIL event will take place on Thursday 30. Advocate General N. Emiliou’s opinion on C-339/22, BSH Hausgeräte, will then be published. The main proceedings, before the Svea hovrätt, Patent- och marknadsöverdomstolen (Sweden), concern international jurisdiction regarding patents under the Brussels I bis Regulation. Here are the questions referred:

1. Is Article 24(4) of [the Brussels I bis Regulation] to be interpreted as meaning that the expression ‘proceedings concerned with the registration or validity of patents … irrespective of whether the issue is raised by way of an action or as a defence’ implies that a national court, which, pursuant to Article 4(1) of that regulation, has declared that it has jurisdiction to hear a patent infringement dispute, no longer has jurisdiction to consider the issue of infringement if a defence is raised that alleges that the patent at issue is invalid, or is the provision to be interpreted as meaning that the national court only lacks jurisdiction to hear the defence of invalidity?
2. Is the answer to Question 1 affected by whether national law contains provisions, similar to those laid down in the second subparagraph of Paragraph 61 of the Patentlagen (Patents Law; ‘the Patentlagen’), which means that, for a defence of invalidity raised in an infringement case to be heard, the defendant must bring a separate action for a declaration of invalidity?
3. Is Article 24(4) of the [the Brussels I bis Regulation] to be interpreted as being applicable to a court of a third country, that is to say, in the present case, as also conferring exclusive jurisdiction on a court in Turkey in respect of the part of the European patent which has been validated there?

A hearing on the case took place last May. The deciding chamber is composed by judges C. Lycourgos, O. Spineanu-Matei (reporting), J.C. Bonichot, S. Rodin, and L.S. Rossi.

Finally, I would like to report on the hearing on case C-632/22, Volvo (Assignation au siège d’une filiale de la défenderesse), which actually happened on October 18. The request, from the Spanish Supreme Court, was lodged on 10 October 2022. On the website of the Court of Justice it falls under the category ‘Competition’. On the merits, the problem is rather one of service of process in a cross-border setting:

1. In the circumstances surrounding the litigation relating to the trucks cartel, described in this order, is it possible to interpret Article 47 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 101 of the Treaty on the Functioning of the European Union, in such a way that service of process on a parent company against which an action for damages for the harm caused by a restrictive trade practice has been brought is considered to have been properly effected when such service was effected (or attempted) at the place of business of the subsidiary company established in the State in which the legal proceedings were brought, while the parent company, which is established in another Member State, has not entered an appearance in the proceedings and has remained in default?

2. If the previous question is answered in the affirmative, is that interpretation of Article 47 of the Charter compatible with Article 53 of the Charter, in the light of the case-law of the Spanish Tribunal Constitucional (Constitutional Court) on the service of process on parent companies established in another Member State in disputes relating to the trucks cartel?

The background of the request is easy to understand. Following publication of the Decision of the European Commission of 19 July 2016 (Case AT. 39824 – Trucks), in Spain thousands of proceedings for damages have been lodged by purchasers of vehicles affected by the trucks cartel. Almost all actions were brought by small or medium undertakings which had purchased a very small number of trucks, or even just one truck, in the period in which the cartel operated. None of the undertakings (parent companies) penalised by the European Commission has its registered office in Spain. Given that, in the majority of the proceedings, the amount claimed is not very high, the costs involved in having to translate the application and, where necessary, any annexes, may be disproportionately high. To avoid such costs and the time delay entailed by the necessary international judicial cooperation, the applicants in those proceedings frequently ask for the service of process at the business address of the subsidiary company in Spain, even though the defendant parent company is established in another Member State.

The preliminary reference has been assigned to the Fifth Chamber (judges E. Regan, M. Ilešič, I. Jarukaitis, D. Gratsias, and, exceptionally, K. Lenaerts), which will supported by the opinion of Advocate General M. Szpunar.

This is the first of a series of posts which will present how the issue of the applicable law to the time limit to enforce or recognise foreign judgments is addressed in comparative private international law.

In a judgment of 2 August 2022, the Swiss Federal Tribunal ruled that the law governing the time limit applicable to foreign judgments is that of the state of origin of the foreign judgment.

The case was concerned with the recognition in Switzerland of an English judgment delivered in 2013.

After insolvency proceedings were opened in Switzerland against the judgment debtor, the jugdment creditor lodged a claim in the insolvency proceedings based on the English judgment.  Another creditor challenged the lodging of the claim on the ground that the English judgment was time barred.

The parties disagreed on whether the applicable statute of limitations was the Swiss Statue, which provides a 10 time limit, or the English statute, which provides a 6 year time limit.

The issue of the applicable law to the time limit to enforce foreign judgments was debated among Swiss scholars. In particular, Swiss scholars debated whether art. 137 of the Swiss code of obligations, which provides a specific time limit of 10 years for claims confirmed by a judgment, applied to foreign judgments.

The Federal Tribunal rules that it does not. The starting point of its analysis is the Swiss  choice of law rule governing time limitations. Article 148 of the Swiss federal statute on private international law provides that “the law applicable to a claim governs time limitations applicable to it and its extinction“. In other words, time limitations are substantive in nature under Swiss private international law, as they are in general in civil law jurisdictions. As a result, the applicable law is the law governing the relevant claim, and not the law of the forum.

The determination of the relevant claim, however, is not obvious, and was indeed debated among Swiss scholars. A first view is that the claim is the one made in the foreign proceedings and decided by the foreign court. The applicable time limit would thus depend on the law applied on the merits by the foreign court. A second view is that the claim is the foreign judgment itself. The application of Article 148 would thus lead to the application of the law court of origin.

The Federal Tribunal endorses the second view. It rules that the relevant claim is the foreign judgment, because judgments are constitutive in nature. Although the Federal Tribunal is pretty concise on this point, it seems to mean that judgments create autonomous titles, which are distinct from the claims made originally in the proceedings on the merits. As a result, the Federal Tribunal rules that the applicable time limit was s. 24 of the English Limitation Act 1980.

The judgment of the Federal Tribunal also addresses several issues related to characterisation. The first is that it was necessary to determine which rules under English law corresponded to the concept of prescription under Swiss law. It was not hard to conclude that these were the rules found in the Limitation Act. The second is the Tribunal confirms that whether time limitations are characterised as procedural or substantive in nature under English law is irrelevant: characterisation for choice of law purposes is an issue for the forum.

It is interesting to note that the recognition of the English judgment was governed by the Lugano Convention. The issue of whether this could have influenced any of the above was not raised.

The CPR Institute’s Awards Program honors outstanding scholarship and practical achievement in the field of alternative dispute resolution.

Submissions for 2023 Annual Awards are due November 17, 2023.

CPR expects to designate winners in these categories:

Book Award
A Book published by academics and other professionals during the publication period (November 2022-October 2023 for 2023 Awards) that advances understanding in the field of ADR.  Books must be submitted in pdf or similar format.  We regret that we cannot accept hard copy submissions.

James F. Henry Award
Beginning in 2002, the James F. Henry Award honors outstanding achievement by individuals for distinguished, sustained contributions to the field of ADR. Candidates for the James F. Henry Award will be evaluated for leadership, innovation and sustaining commitment to the field.

Joseph T. McLaughlin Original Student Article or Paper
Joseph T. McLaughlin Original Student Article or Paper on events or issues in the field of ADR in November 2022-October 2023. Outstanding papers prepared for courses requiring papers as substantial part of grade must be recommended for submission by professor.

Professional Article & Short Article
Professional Article & Short Article published by academics and other professionals in November 2022-October 2023 that advance understanding in the field of ADR.

Submissions for these 2023 awards are due December 15, 2023. These awards are decided by a group of judges that differs from the Annual Awards judges.

Outstanding Contribution to Diversity in ADR 
Recognizes a person or organization who has contributed significantly to diversity in the alternative dispute resolution field. Submissions are reviewed by a panel consisting of past winners, along with CPR’s Co-Chairs of the National Task Force on Diversity and CPR’s President. The submission deadline is December 15, 2023.

James P. Groton Award for Outstanding Leadership in Dispute Prevention
Recognizes a person or organization who has contributed significantly to the development and/or practice of dispute prevention. The submission deadline is December 15, 2023.

Submission Deadline:
Friday, November 17, 2023

Submission Guidelines:
Send electronic file nominations (in PDF or Word format), via email to Helena Tavares Erickson, SVP, CPR Institute & Corporate Secretary at herickson@cpradr.org. Please include a cover letter with your submission with your name, address, telephone, and email address. If you are nominating someone for an award, please supply their contact information as well.

While it is expected that submissions will be in the English language (or accompanied by a translation), CPR reserves the right to consider submissions not in English. CPR also reserves the right to submit outstanding candidates that have not been nominated.

For more information: https://www.cpradr.org/events/2023-annual-awards. 

The third issue of 2023 of the Dutch Journal of Private International Law (Nederlands Internationaal Privaatrecht) is out. It features the following contributions.

An editorial by M.J. de Rooij titled Het leed van de circulerende Unieburger en het Europese begrip van de favor divortii (The distress situation of the European citizens moving abroad and the European concept of favor divortii), freely available here.

C. Vanleenhove, The Hague Judgments Convention versus national regimes of recognition and enforcement: a comparison between the Convention and the Belgian Code of Private International Law (available here)

The adoption of the Hague Judgments Convention marks a landmark step in the Judgments Project that the Hague Conference on Private International Law has undertaken since 1992 in the context of transnational disputes in civil and commercial matters. The creation of a uniform set of core rules on the recognition and enforcement of foreign judgments in a cross-border civil and commercial setting promotes effective access to justice and facilitates multilateral trade, investment, and mobility. As far as Belgium is concerned, in the relationship with other non-EU Contracting States the Convention will replace the Code of Private International Law that since 2004 has governed the recognition and enforcement of third State judgments in Belgium. The entry into force of the Convention calls for a comparison of the Convention’s regime with that of the Code of Private International Law. As the two instruments fall within the same ballpark in terms of their openness and given the Convention’s deferral to more favourable domestic rules, the Convention adds another avenue through which a successful party can enforce its foreign judgment in Belgium. From the Belgian perspective the potential circulation of Belgian judgments in other Contracting States with stringent national rules on enforcement perhaps constitutes the most considerable benefit of the Convention.

G. van Calster, Brussles Ia and the Hague Judgments Convention: a note on non-domiciled parties and on reflexive jurisdictional rules

The process that led to the Hague Judgment Convention was inspired by the ‘Brussels regime’(the EU’s approach to encouraging the free movement of judgments in civil and commercial matters). In the present note I explore two likely areas of tension between Brussels Ia and the Hague Convention: the limited circumstances where non-EU domiciled defendants will nevertheless be captured by the EU jurisdictional rules; and the developing ‘reflexive effect’ of exclusive jurisdictional gateway. I suggest that the EU would do well seriously to consider a reflexive application of its exclusive jurisdictional rules, and that the current review of Brussels Ia would be a good opportunity to do so.

A.A.H van Hoek and F. van Overbeeke, Over open eindes en nauwere banden: a nieuw hoofdstuk in de Van den Bosch/Silo-Tank-saga (About open endings and closer ties: A new chapter in the Van den Bosch/Silo-Tank-saga).

In this brief contribution we pay attention to the latest judgment of the Dutch Supreme Court in the protracted litigation over the employment conditions of Hungarian truck drivers who perform international transport operations on behalf of a Dutch logistics company while being officially employed by a Hungarian sister company of the Dutch firm. The case led to the CJEU judgment FNV/Van den Bosch, C-815/18, ECLI:EU:C:2020:976 (NIPR 2021-55) where the application of the Posting of Workers Directive to this scenario was discussed. The current case pertains to the law that is applicable to the individual employment contracts under Article 8 Rome I.

We comment on the problem of identifying the place from where the work is habitually performed in the case of highly mobile transport operations, the root of which lays in pertaining EU caselaw. We also discuss the fact that the Dutch Supreme court applied the criteria mentioned in the Schlecker case (C-64/12, ECLI:EU:C:2013:551, NIPR 2013-347) in a strict manner, without taking the specific context of the Schlecker case fully into account. Finally, we recommend that the Court of Appeal of Amsterdam (to which the case has been referred) should submit further preliminary questions to the CJEU: 1. Should the reason why workers are covered by the social security system of their home country be taken into account when weighing the relevance of this criterion – and more particularly, what relevance does the insurance status have in transport cases?; 2. Which factors should (or may) be taken into account to establish a closer connection when the applicable law is determined on the basis of the establishment through which the worker was employed?

Conventions & Instruments

On 6 October 2023, Rwanda deposited its instrument of accession to the HCCH 1961 Apostille Convention and applied to become a Member of the HCCH. Following a six-month voting period, and provided a majority of votes have been cast in its favour, Rwanda will be invited to become a Member by accepting the Statute of the HCCH. With the accession of Rwanda, the 1961 Apostille Convention now has 126 Contracting Parties. It will enter into force for Rwanda on 5 June 2024. More information is available here.

Meetings & Events

From 2 to 4 October 2023, the second meeting of the HCCH-UNIDROIT Joint Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens was held at the premises of the Secretariat of the International Institute for the Unification of Private Law (UNIDROIT) in Rome, in hybrid format. More information is available here.

On 5 October 2023, the Permanent Bureau of the HCCH organised CODIFI Edition 2023 – CBDCs, an online colloquium on selected topics related to the HCCH’s CBDCs Project, established in March 2023 to study the private international law implications of Central Bank Digital Currencies. More information is available here, and recordings of all the sessions are available here.

On 11 October 2023, the Permanent Bureau of the HCCH participated in the APEC Workshop on Secured Transaction Reform, organised by APEC, the United States, and Rikkyo University. During the workshop, the HCCH’s Deputy Secretary General, Dr Gérardine Goh Escolar, spoke about the private international law issues relevant to secured transactions reform, including the HCCH’s instruments and projects that may impact on choice-of-law rules relating to secured transactions.

From 10 to 17 October 2023, the Eighth Meeting of the Special Commission on the Practical Operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention was held in The Hague. The meeting was attended by over 470 delegates, in person and via videoconference, representing HCCH Members, non-Member Contracting Parties, and Observers. The meeting resulted in the adoption of 103 Conclusions & Recommendations providing guidance to (prospective) Contracting Parties on a wide range of issues relating to the implementation and practical operation of this Convention. More information is available here.

On 14 October 2023, Members of the International Hague Network of Judges (IHNJ) from over 30 jurisdictions met in The Hague on occasion of the 25th anniversary of the IHNJ. Established in 1998, the IHNJ facilitates international cooperation and communication between judges on the cross-border protection of children. More information is available here.

Publications & Documentation

On 3 October 2023, the Permanent Bureau of the HCCH announced the publication of the Proceedings of the Twenty-Second Session. The Twenty-Second Session of the HCCH, held from 18 June to 2 July 2019, resulted in the adoption of the 2019 Judgments Convention. 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.