Conflictoflaws

According to the doctrine of privity of contract, only parties to a choice of court agreement are subject to the rights and obligations arising from it. However, there are exceptions to the privity doctrine where a third party may be bound by or derive benefit from a choice of court agreement, even if it did not expressly agree to the clause. A choice of court agreement in a bill of lading which is agreed by the carrier and shipper and transferred to a consignee, or third-party holder is a ubiquitous example.

Article 25 of the Brussels Ia Regulation does not expressly address the effect of choice of court agreements on third parties. However, CJEU jurisprudence has laid down that the choice of court agreement may bind a third party in some contexts even in the absence of the formal validity requirements. Effectively, this is a context specific harmonised approach to developing substantive contract law rules to regulate the effectiveness of choice of court agreements. Article 25 of the Brussels Ia Regulation prescribes formal requirements that must be satisfied if the choice of court agreement is to be considered valid. Consent is also a necessary requirement for the validity of a choice of court agreement. (Case C-322/14 Jaouad El Majdoub v CarsOnTheWeb.Deutschland GmbH EU:C:2015:334, [26]; Case C 543/10 Refcomp EU:C:2013:62, [26]). Although formal validity and consent are independent concepts, the two requirements are connected because the purpose of the formal requirements is to ensure the existence of consent (Jaouad El Majdoub, [30]; Refcomp, [28]). The CJEU has referred to the close relationship between formal validity and consent in several decisions. The court has made the validity of a choice of court agreement subject to an ‘agreement’ between the parties (Case C-387/98 Coreck EU:C:2000:606, [13]; Case C-24/76 Estasis Salotti di Colzani Aimo e Gianmario Colzani s.n.c. v Ruwa Polstereimaschinen GmbH EU:C:1976:177, [7]; Case C-25/76 Galeries Segoura SPRL v Societe Rahim Bonakdarian EU:C:1976:178, [6]; Case C-106/95 Mainschiffahrts-Genossenschaft eG (MSG) v Les Gravieres Rhenanes SARL EU:C:1997:70, [15]). The Brussels Ia Regulation imposes upon the Member State court the duty of examining whether the clause conferring jurisdiction was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated (ibid). The court has also stated that the very purpose of the formal requirements imposed by Article 17 (now Article 25 of Brussels Ia) is to ensure that consensus between the parties is in fact established (Case 313/85 Iveco Fiat v Van Hool EU:C:1986:423, [5]).

In similar vein, the CJEU has developed its case law as to when a third party may be deemed to be bound by or derive benefit from a choice of court agreement. In the context of bills of lading, the CJEU has decided that if, under the national law of the forum seised and its private international law rules, the third-party holder of the bill acquired the shipper’s rights and obligations, the choice of court agreement will also be enforceable between the third party and the carrier (C 71/83 Tilly Russ EU:C:1984:217, [25]; C-159/97 CastellettiEU:C:1999:142, [41]; C 387/98 Coreck EU:C:2000:606, [24], [25] and [30], C 352/13 CDC Hydrogen Peroxide EU:C:2015:335, [65]; Cf. Article 67(2) of the Rotterdam Rules 2009). There is no separate requirement that the third party must consent in writing to the choice of court agreement. On the other hand, if the third party has not succeeded to any of the rights and obligations of the original contracting parties, the enforceability of the choice of court agreement against it is predicated on actual consent (C 387/98 Coreck EU:C:2000:606, [26]; C 543/10 Refcomp EU:C:2013:62, [36]). A new choice of court agreement will need to be concluded between the holder and the carrier as the presentation of the bill of lading would not per se give rise to such an agreement (AG Slynn in Tilly Russ).

Article 17 of the Brussels Convention and Article 23 of the Brussels I Regulation did not contain an express provision on the substantive validity of a choice of court agreement. The law of some Member States referred substantive validity of a choice of court agreement to the law of the forum whereas other Member States referred it to the applicable law of the substantive contract (Heidelberg Report [326], 92). However, Article 25(1) of the Brussels Ia Regulation applies the law of the chosen forum (lex fori prorogatum) including its choice of law rules to the issue of the substantive validity of a choice of court agreement (‘unless the agreement is null and void as to its substantive validity under the law of that Member State’).

The CJEU recently adjudicated on whether the enforceability of English choice of court agreements in bills of lading against third party holders was governed by the choice of law rule on ‘substantive validity’ in Article 25(1) of the Brussels Ia Regulation. (Joined Cases C 345/22 and C 347/22 Maersk A/S v Allianz Seguros y Reaseguros SA and Case C 346/22 Mapfre España Compañía de Seguros y Reaseguros SA v MACS Maritime Carrier Shipping GmbH & Co.) The CJEU held that the new provision in Article 25(1) referring to the law of the Member State chosen in the choice of court agreement including its private international law rules is not applicable. A third-party holder of a bill of lading remains bound by a choice of court agreement, if the law of the forum seised and its private international law rules make provision for this. Notwithstanding, the principle of primacy of EU law precludes Spanish special provisions for the subrogation of a choice of court agreement that undermine Article 25 as interpreted by CJEU case law.

In the three preliminary references under Article 267 TFEU, the enforceability of English choice of court agreements between Spanish insurance companies and maritime transport companies was at issue. The insurance companies exercised the right of subrogation to step into the shoes of the consignees and sued the maritime transport companies for damaged goods. The central issue in the proceedings was whether the choice of court agreements concluded in the original contracts of carriage evidenced by the bills of lading between the carrier and the shipper also bound the insurance companies. The transport companies objected to Spanish jurisdiction based on the English choice of court agreements. The Spanish courts referred questions to the CJEU on the interpretation of choice of court agreements under the Brussels Ia Regulation.

At the outset, the CJEU observed that the Brussels Ia Regulation is applicable to the disputes in the main proceedings as the proceedings were commenced by the insurance companies before 31 December 2020. (Article 67(1)(a), Article 127(1) and (3) of the EU Withdrawal Agreement)

The CJEU proceeded to consider whether Article 25(1) of the Brussels Ia Regulation must be interpreted as meaning that the enforceability of a choice of court clause against the third-party holder of the bill of lading containing that clause is governed by the law of the Member State of the court or courts designated by that clause. The CJEU characterised the subrogation of a choice of court agreement to a third party as not being subject to the choice of law rule governing substantive validity in Article 25(1) of the Brussels Ia Regulation. (C 519/19 DelayFix EU:C:2020:933, [40]; C 543/10 Refcomp EU:C:2013:62, [25]; C 366/13 Profit Investment SIM EU:C:2016:282, [23]) The CJEU relied on a distinction between the substantive validity and effects of choice of court agreements (Maersk, [48]; AG Collins in Maersk, [54]-[56]). The latter logically proceeds from the former, but the procedural effects are governed by the autonomous concept of consent as applied to the enforceability of choice of court agreements against third parties developed by CJEU case law.

Although Article 25(1) of the Brussels Ia Regulation differs from Article 17 of the Brussels Convention and Article 23(1) of the Brussels I Regulation, the jurisprudence of the CJEU is capable of being applied to the current provision (Maersk, [52]; C 358/21 Tilman, EU:C:2022:923, [34]; AG Collins in Maersk, [51]-[54]). The CJEU concluded that where the third-party holder of the bill of lading has succeeded to the shipper’s rights and obligations in accordance with the national law of the court seised then a choice of court agreement that the third party has not expressly agreed upon can nevertheless be relied upon against it (C 71/83 Tilly Russ EU:C:1984:217, [25]; C-159/97 Castelletti EU:C:1999:142, [41]; C 387/98 Coreck EU:C:2000:606, [24], [25] and [30], C 352/13 CDC Hydrogen Peroxide EU:C:2015:335, [65]; Maersk, [51]; Cf. Article 67(2) of the Rotterdam Rules 2009). In this case, there is no distinct requirement that the third party must consent in writing to the choice of court agreement. The third party cannot extricate itself from the mandatory jurisdiction as ‘acquisition of the bill of lading could not confer upon the third party more rights than those attaching to the shipper under it’ (C 71/83 Tilly Russ EU:C:1984:217, [25]; C-159/97 Castelletti EU:C:1999:142, [41]; C 387/98Coreck EU:C:2000:606, [25]; Maersk, [62]). Conversely, where the relevant national law does not provide for such a relationship of substitution, that court must ascertain whether that third party has expressly agreed to the choice of court clause (C 387/98 Coreck EU:C:2000:606, [26]; C 543/10 Refcomp EU:C:2013:62, [36]; Maersk, [51]).

According to Spanish law, a third-party to a bill of lading has vested in it all rights and obligations of the original contract of carriage but the choice of court agreement is only enforceable if it has been negotiated individually and separately with the third party. The CJEU held that such a provision would undermine Article 25 of the Brussels Ia Regulation as interpreted by the CJEU case law (Maersk, [60]; AG Collins in Maersk, [61]). As per the principle of primacy of EU law, the national court has been instructed to interpret Spanish law to the greatest extent possible, in conformity with the Brussels Ia Regulation (Maersk, [63]; C 205/20Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) EU:C:2022:168) and if no such interpretation is possible, to disapply the national rule (Maersk, [65]).

The choice of law rule in Article 25(1) is not an innovation without utility. A broad interpretation of the concept of substantive validity would encroach upon the autonomous concept of consent developed by CJEU case law yet it could avoid the need for a harmonised EU substantive contract law approach to the enforceability of choice of court agreements against third parties. The CJEU in its decision arrived at a solution that upheld the choice of court agreement by the predictable application of its established case law without disturbing the status quo. In practical terms, the application of the choice of law rule in Article 25(1) would have led to a similar outcome. However, the unnecessary displacement of the CJEU’s interpretative authorities on the matter would have increased litigation risk in multi-state transactions. By distinguishing substantive validity from the effects of choice of court agreements, the CJEU does not extrapolate the choice of law rule on substantive validity to issues of contractual enforceability that are extrinsic to the consent or capacity of the original contracting parties. On balance, a departure from the legal certainty provided by the extant CJEU jurisprudence was not justified. It should be observed that post-Brexit, there has been a resurgence of English anti-suit injunctions in circumstances such as these where proceedings in breach of English dispute resolution agreements are commenced in EU Member State courts.

I. Introduction

Contingency fee agreements are arrangements whereby lawyers agree with their clients to receive a percentage of the final awarded amount in terms of payment of legal services. Such payment typically depends upon the lawyer winning the case or reaching a settlement. The admissibility of contingency fee agreements varies from one jurisdiction to another, ranging from complete prohibition to acceptance. For example, in the MENA Arab region, jurisdictions such as Bahrain prohibit contingency fee arrangements (see below). However, in other jurisdictions such as Saudi Arabia, contingent fees are not only permitted but also have been described as established practice in the country (cf. Mekkah Court of Appeal, Ruling No. 980/1439 confirming the Ruling of Jeddah Commercial Court No. 676/1439 of 3 Rajab 1439 [20 March 2018] considering that receiving a percentage of the awarded amount that ranges between 15% to 30% as “an established judicial and customary practice among lawyers”).

With respect to the enforcement of foreign judgments, a crucial issue concerns whether a foreign award ordering the payment of contingent fees would be enforced abroad. In a country where contingent fees contracts are prohibited, the presence of such elements in foreign judgments is likely to affect their enforceability due to public policy considerations. The Bahraini Supreme Court (hereafter ‘BSC’) addressed this particular issue in what appears to be an unprecedented decision in the MENA region. The Court held that a foreign judgment ordering payment of contingent fees as agreed by the parties is contrary to public policy because contingency fee agreements are forbidden in Bahrain (Supreme Court, Ruling No. 386/2023 of 20 February 2024).

II. Facts

The case concerned an action for the enforcement of a Saudi judgment brought by X (a practicing lawyer in Saudi Arabia) against Y (the appellee, owner of a sole proprietorship, but no further indications as to Y’s nationality, habitual residence or place of business were mentioned in the judgment).

According to the underlying facts as summarized by the Supreme Court, both X and Y agreed that X would represent Y in a case on a fee of 10% of the awarded amount (105,000 USD). As Y failed to pay, X brought an action in Saudi Arabia to obtain a judgment against Y requiring the latter’s sole proprietorship to pay the amount. Later, X sought the enforcement of the Saudi judgment in Bahrain. The first instance court ordered the enforcement of the foreign judgment, but its decision was overturned by the Court of Appeal. There, X filed an appeal to the BSC.

Before the BSC, X argued that the Court of Appeal erred in its decision as it declared the (contingency fee) agreement between the parties null and void on public policy grounds because it violated article 31 of the Bahraini Attorneys Act (qanun al-muhamat), which prohibits such agreements. According to X, the validity of the agreement is irrelevant in casu, as the court’s function was to examine the formal requirements for the enforcement of the Saudi judgment without delving in the merits of the case. Therefore, since the foreign judgment satisfies all the requirements for its enforcement, the refusal by the Court of Appeal to order the enforcement was unjustified.

III. The Ruling  

The BSC rejected the appeal by ruling as follows:

“It stems from the text of the provisions of Articles 1, 2 and 7 of the [1995 GCC Convention on the Enforcement of Foreign Judgments] as ratified by Bahrain in [1996], and the established practice of this Court, that judgments of a GCC Member State rendered in civil, commercial, administrative matters as well as personal status matters that become final [in the State of origin] shall be enforced by the courts and competent judicial authorities of the other GCC Member States in accordance with the procedure set forth in [the] Convention if it was rendered by a court having jurisdiction according to the rules of international jurisdiction of the requested State or according to the provision of the present Convention. [In this respect,] the role of the judicial authority of the requested State shall be limited to examination of whether the [foreign] judgment meets the requirement set forth in the Convention without reviewing the merits of the case. [However,] if it appears that the [foreign] judgment is inconsistent with the rules of Islamic Sharia, the Constitution or the public policy of the requested State, the [requested court] shall refuse to enforce the foreign judgment as a whole or in part.

Public policy is a relative (nisbi) concept that [can be interpreted] restrictively or broadly [as it varies with] time, place and the prevailing customs, and it [is closely linked in terms of] existence or not with public interest. It [public policy] encompasses the fundamental principles that safeguard the political system, conventional social agreements, economic rules and the moral values that underpin the structure of the society as an entity and public interest. [In addition,] although public policy is often embodied in legislative texts, however, it transcends these texts to form an overarching and independent concept. [Thus,] when a legislative text contains a mandatory or prohibitive rule related to those fundamental principles and aims at protecting public interest rather than individual interests, [such a rule] should not be disregarded or violated. [This is because, such a rule is] crucial for preserving the [public] interests associated to it and takes precedence over the individual interests with which it conflicts as it falls naturally within the realm of public policy, whose scope, understanding, boundaries and reach are determined in light of those essential factors of society so that public interest is prioritized and given precedence over the interests of certain individuals.

[This being said,] it is established that the judgment whose enforcement is sought in Bahrain ordered Y to pay X 105,000 USD as [contingent fees], which represent 10% of the amount awarded to Y. [It is also established that] the parties’ [contingency fee] agreement, which was upheld and relied upon [by the foreign court] violates article 31 of the Attorneys Act, which prohibits lawyers from charging fees based on a percentage of the awarded amount. This provision is a mandatory one that cannot be derogated from by agreement, and judgments inconsistent with it cannot be enforced. Consequently, the [contingency fee] agreement upon which the [foreign] judgment to be enforced is based is absolutely void, [rendering] the [foreign] judgment deficient of one of the legally prescribed requirements for its enforcement. This shall not be considered a review of the merits of the case but rather a [fundamental] duty of the judge to examine whether the foreign judgment meets all the requirements for its enforcement.

IV. Comments

1. General remarks

To the best of the author’s knowledge, this is an unprecedented decision not only in Bahrain, but in the MENA region in general. In addition to the crucial issue of public policy (4), the reported case raises a number of interesting questions regarding both the applicable rules for the enforcement of foreign judgments (2) and révision au fond (3). (on the applicable rules in the MENA Arab jurisdictions including Bahrain, see Béligh Elbalti, “Perspectives from the Arab World”, in M. Weller et al. (eds.), The 2019 HCCH Judgments Convention – Cornerstones, Prospects, Outlook (Hart, 2023) 182, 196, 199. On révision au fond, see ibid, 185. On public policy, see ibid, 188-190).

2. The Applicable rules

As the reported case shows, the enforcement of the Saudi judgment was examined on the basis of the 1995 GCC Convention, since both Bahrain and Saudi Arabia are Contracting States to it. However, both countries are also parties to a more general convention, the 1983 Riyadh Convention, which was also applicable (on these conventions with a special focus on 1983 Riyadh Convention, see Elbalti, op. cit., 195-198). This raises a serious issue of conflict of conventions. However, this issue has unfortunately been overlooked by the BSC.

The BSC’s position on this issue is ambiguous because it is not clear why the Court preferred the application of the 1995 GCC Convention over the 1983 Riyadh Convention  knowing that the latter was ratified by both countries in 2000, i.e. after having ratified the former in 1996 (see Elbalti, op. cit. 196)! In any case, since the issue deserves a thorough analysis, it will not be addressed here (on the issue of conflict of conventions in the MENA region, see Elbalti, op. cit., 200-201. See also my previous post here in which the issue was briefly addressed with respect to Egypt).

3. Révision au fond

In the reported case, X argued that the decision to refuse the enforcement of the Saudi judgment on public policy grounds violated of the principle of prohibition of the review of the merits. The BSC rejected this argument.  The question of how to consider whether a foreign judgment is inconsistent with public policy without violating the principle of prohibition of révision au fond is very well known in literature. In this respect, it is generally admitted that borderline should be that the enforcing court should refrain from reviewing the determination of facts and application of law made by the foreign court “as if it were an appellate tribunal reviewing how the “lower court” decided the case” (Peter Hay, Advance Introduction to Private International Law and Procedure (Edward Elgar, 2018) 121). Therefore, it can be said the BSC rightfully rejected X’s argument since its assessment appears to be limited to the examination of whether the judgment, “as rendered [was] offensive” without “reviewing the way the foreign court arrived at its judgment” (cf. Hay, op. cit., 121).

4. Public policy in Bahrain

i. Notion & definition. Under both the statutory regime and international conventions, foreign judgments cannot be enforced if they violate “public policy and good morals” in Bahrain. In the case reported here, the BSC provided a lengthy definition of public policy. To the author’s knowledge, this appears to be the first case in which the BSC has provided a definition of public policy in the context of the enforcement of foreign judgments. This does not mean, however, that the BSC has never invoked public policy to refuse the enforcement of foreign judgments (see, e.g., BSC, Appeal No. 611/2009 of 10 January 2011 in which a Syrian judgment terminating a mother’s custody of her two daughters upon their reaching the age of 15, in application of Syrian law, was held to be contrary to Bahraini public policy). Nor does this mean that the BSC has never defined public policy in general (see, e.g., in the context of choice of law, Béligh Elbalti & Hosam Osama Shabaan, “Bahrain – Bahraini Perspectives on the Hague Principles”, in D. Girsberger et al. (eds.), Choice of Law in International Commercial Contracts – Global Perspectives on the Hague Principles (OUP, 2021) 429 and the cases cited therein).

What is remarkable, however, is that the BSC has consistently used for the definition of public policy in the context of private international law the same elements it uses to define public policy in purely domestic cases. This is particularly clear in the definition adopted by the BSC in the case reported here since it described public policy in terms of “ordinary mandatory rules” that the parties are not allowed to derogate from by agreement. It is worth noting in this regard that the BSC’s holding on public policy appears, in fact, to have been strongly inspired by the definition given by the Qatari Supreme Court in a purely domestic case decided in 2015 (Qatari Supreme Court, Appeal No. 348 of November 17, 2015).

Defining public policy in the way the BSC did is problematic, as it is generally admitted that “domestic public policy” should be distinguished from public policy in the meaning of private international law (or as commonly referred to as “international public policy”). It is therefore regrettable that the BSC did not take into account the different contexts in which public policy operates.

ii. Public policy and mandatory rules. As mentioned above, the BSC associates public policy with “mandatory rules” in Bahrain, even though it recognizes that public policy could “transcend” these rules “to form an overarching and independent concept”. This understanding of public policy is not in line with the widely accepted doctrinal consensus regarding the correlation between public policy and mandatory rules. This doctrinal consensus is reflected in the Explanatory Report of the HCCH 2019 Judgments Convention, which makes it clear that “it is not sufficient for [a state] opposing recognition or enforcement to point to [its] mandatory rule of the law […] that the foreign judgment fails to uphold. Indeed, this mandatory rule may be considered imperative for domestic cases but not for international situations.” (Explanatory Report, p. 120, para. 263. Emphasis added). The Explanatory Report goes on to state that “[t]he public policy defence […] should be triggered only where such a mandatory rule reflects a fundamental value, the violation of which would be manifest if enforcement of the foreign judgment was permitted” (ibid. emphasis added).

The BSC’s holding suggests that it is sufficient that the foreign judgment does not uphold any Bahraini mandatory rule to justify its non-enforcement, without a sufficient showing of how that the mandatory rule in question “reflects a fundamental value, the violation of which would be manifest if enforcement of the foreign judgment was permitted”. By holding as it did, the BSC unduly broadens the scope of public policy in a way that potentially undermines the enforceability of foreign judgments in Bahrain.

iii. Contingency fee arrangements and Bahraini Public Policy.  As noted above (see Introduction), although contingency fee arrangements are prohibited in Bahrain, they are permitted in Saudi Arabia, where they appear to be widely used. From a private international law perspective, the presence of elements in a foreign judgment that are not permitted domestically does not in itself justify refusal of enforcement. In this sense, the non-admissibility of contingent fees in Bahrain should not in itself automatically lead to their being declared against public policy. This is because contingency fee arrangements should not be assessed on the basis of the strict rules applicable in Bahrain, but rather on whether they appear to be manifestly unfair or excessive in a way that violates “fundamental values” in Bahrain. Otherwise, the implications of the BSC’s decision could be overreaching. For example, would Bahraini courts refuse to enforce a foreign judgment if the contingent fees were included as part of the damages awarded by the foreign court? Would it matter if the case has tenuous connection with forum (for example, the case commented here, there are no indication on the connection between Y and Bahrain, see (II) above)? Would the Bahraini courts apply the same solution if they had to consider the validity of the contingent fee agreement under the applicable foreign law? Only subsequent developments would provide answers to these questions.

V. Concluding Remarks

The case reported here illustrates the challenges of public policy as a ground for enforcing foreign judgments not only in Bahrain, but also in the MENA Arab region in general. One of the main problems is that, with a few exceptions, courts in the region generally fail to distinguish between domestic public policy and public policy in the context of private international law (see Elbalti, “Perspectives from the Arab World”, op.cit., 189, 205, and the references cited therein). Moreover, courts often fail to establish the basic requirements for triggering public policy other than the inconsistency with the “fundamental values” of the forum, which are often referred to in abstracto. A correct approach, however, requires that courts make it clear that public policy has an exceptional character, that it has a narrower scope compared to domestic public policy, and that mere inconsistency with ordinary mandatory rules is not sufficient to trigger public policy. More importantly, public policy should also be assessed from the point of view of the impact the foreign judgment would have on the domestic legal order by looking at the concrete effects it would have if its recognition and enforcement were allowed. The impact of the foreign judgment, in this case, would largely depend on the intensity of the connection the case has with the forum.

(Posted on behalf of Professor Reid Mortensen) 

We are pleased to let you know about the establishment of the Australasian Association of Private International Law (‘AAPrIL’).

AAPrIL is being established to promote understanding of private international law in Australia, Aotearoa New Zealand, and the nations of the Pacific Islands.  By ‘private international law’ (or ‘conflict of laws’), we mean the body of law that deals with cross-border elements in civil litigation and practice, whether arising internationally or, in the case of Australia, intra-nationally.

To make AAPrIL a reality, we need your help.  If you have an interest in Australasian private international law, please join us by attending the first general meeting of members of AAPrIL, which will be held online on Thursday 11 July 2024.  The meeting is necessary to establish AAPrIL, approve a Constitution, and elect AAPrIL’s first officers.

The beginnings of our Association

The proposal to establish AAPrIL comes from an organising group* of Australian and New Zealand scholars and practitioners who have been working together in private international law for a long period.

We believe that there is a need for a permanent regional organisation to provide support for regular events and conferences on private international law, and to help coordinate, manage and publicise them.  Our vision for AAPrIL is that it will:

• Regularly distribute a newsletter on recent decisions, legislative developments and publications, and on hot topics and upcoming events on private international law in Australasia.
• Organise proposals and submissions for law reform in private international law.
• Promote the study of private international law in universities.
• Provide a forum for the exchange of information and opinions, debate and scholarship on private international law in Australasia.
• Connect with other private international law associations worldwide.

The proposed Association already has a website and a LinkedIn page.

To our delight, the Honourable Dr Andrew Bell, Chief Justice of New South Wales, has agreed to serve as patron of the Association.  His Honour is well-known as co-author of Nygh’s Conflict of Laws in Australia, and the author of many other publications on private international law.  Before being appointed to judicial office, he had a significant Australia-wide practice in cross-border litigation and international arbitration.

How do you join?

You can join the Australasian Association of Private International Law by signing up on the Membership page of AAPrIL’s website.

There is initially no membership fee to join.  At the meeting to establish AAPrIL, there will be a proposal to set membership fees for 2024-2025 at:

Individual members: AUD 100

Corporate members: AUD 300

Student members: AUD 20

However, membership fees for 2024-2025 will not be requested until after the first general meeting.

What will happen at the general meeting on Thursday 11 July?

Those who join as members by 18 June 2024 will be sent a notice of meeting for the general meeting on 11 July 2024. The agenda will include proposed resolutions:

• To establish the Australasian Association of Private International Law.
• To adopt the Constitution of the Association. If members have any questions about the proposed Constitution before the meeting, could you please direct them to me: mortensen@unisq.edu.au.†
• To appoint the President, Treasurer and Secretary of the Association, and potentially an Australian Vice-President, a New Zealand Vice-President and Pacific Islands Vice-President. If any member wishes to propose another member for one of these offices, please email your nomination to me:  mortensen@unisq.edu.au.†
• To set membership fees for the financial year 2024-2025.

The organising group will also present plans for the activities of the Association.

We are looking forward to this exciting development for those of us who are rightly fascinated by private international law.  We hope you will join us!

Best wishes

Professor Reid Mortensen

On behalf of the AAPrIL interim executive

*******

* The organising group comprises Dr Michael Douglas (Bennett, Perth), Professor Richard Garnett (University of Melbourne), Associate Professor Maria Hook (University of Otago), Professor Mary Keyes (Griffith University), Professor Reid Mortensen (University of Southern Queensland), Ms Cara North (Corrs Chambers Westgarth, Melbourne) and Mr Jack Wass (Stout Street Chambers, Wellington).

† I will be on leave from 3-14 June 2024, but will answer any enquiries that are made in that period as soon as possible afterwards.

The latest issue (1/2024) of The European Legal Forum features a series of comments on the Proposal for a Council Regulation on Parenthood by Ilaria Queirolo on The Proposed EU Regulation on Parenthood: A critical Overview of the Rules on Jurisdiction; Francesco Pesce on, The Law Applicable to Parenthood in the European Commission’s Regulation Proposal; Stefano Dominelli on Recognition of Decisions and Acceptance of Authentic Instruments in Matters of Parenthood under the Commission’s 2022 Proposal; Francesca Maoli on The European Certificate of Parenthood in the European Commission’s Regulation Proposal: on the ‘Legacy’ of the European Certificate of Succession and Open Issues, and Laura Carpaneto on The Hague Conference of Private International Law’s “parentage/surrogacy” project.

The commentary is a deliverable of the Project Fluidity in family structures. International and EU law challenges on parentage matters, financed by the Ministry of University and Research of the Italian Republic and by the European Union – Next Generation EU (prot. n. 2022FR5NNJ – PRIN 2022). The Consortium includes: the University of Pavia as coordinator and the universities of Milano, Genova, and Cagliari.

All publications of the project are available in Open Access here.

Issue 2/2024 of ZEuP – Zeitschrift für Europäisches Privatrecht has just been published. It includes contributions on EU private law, comparative law, legal history, uniform law, and private international law. The full table of content can be accessed here.

The following contributions might be of particular interest for the readers of this blog:

• Auf dem Weg zu einer europäischen Abstammungsverordnung? – Licht und Schatten im Vorschlag der Europäischen Kommission
  Editorial by Christine Budzikiewicz on the Commission Proposal for a EU Regulation on Parenthood and the Creation of a European Certificate of Parenthood
• Europäischer Emissionsrechtehandel – Eine Momentaufnahme nach der Reform durch das „Fit for 55“-Paket
  Sebastian Steuer on European emissions trading: Carbon pricing according to the “cap and trade” principle plays a key role in European climate policy. As part of the “Fit for 55” package, the Emissions Trading Directive has, once again, undergone comprehensive revisions and has been substantially toughened in certain respects. This article gives a basic overview of the current state of European emissions trading after the recent changes. It explores the chief components of the Emissions Trading Directive, highlights the economic differences between quantity- and price-based regulation, and discusses the interplay of the EU emissions trading system with international and German climate policy.
• Microplastics Litigation: eine rechtsvergleichende Orientierung
  Stephanie Nitsch on Microplastics Litigation: The present paper provides a comparative law analysis of liability for microplastics pollution with a special focus on product liability as well as liability due to deliberate or negligent breaches of statutory duties or duties of care.
• Bundesgerichtshof, 18 April 2023, II ZR 184/21
  Susanne Zwirlein-Forschner discusses a decision of the German Federal Court of Justice on the law applicable to liability due to economically destructive actions and to the assignment of claims.

Written by Eduardo Silva de Freitas (Erasmus University Rotterdam) and Xandra Kramer (Erasmus University Rotterdam/Utrecht University), members of the Vici project Affordable Access to Justice, financed by the Dutch Research Council (NWO), www.euciviljustice.eu.

Introduction

After extensive negotiations, on 24 April 2024, the European Parliament approved the Corporate Sustainability Due Diligence Directive (CSDDD or CS3D) as part of the EU Green Deal. Considering the intensive discussions, multiple changes, and the upcoming elections in view, the fate of the Commission’s proposal has been uncertain. The Directive marks an important step in human rights and environmental protection, aiming to foster sustainable and responsible corporate behaviour throughout global value chains. Some Member States have incorporated similar acts already, and the Directive will expand this to the other Member States, which will also ensure a level playing field for companies operating in the EU. It mandates that companies, along with their associated partners in the supply chain, manufacturing, and distribution, must take steps to avoid, halt, or reduce any negative effects they may have on human rights and the environment.  The Directive will apply to big EU companies (generally those with more than 1,000 employees and a worldwide turnover of more than EUR 450 000 000) but also to companies established under the law of a third country that meet the Directive’s criteria (Article 2 CSDDD).

Among the CSDDD’s key provisions is the rule on civil liability enshrined in Article 29. This rule states that companies shall be held liable for damages caused in breach of the Directive’s provisions. Accompanying such a rule are also some provisions that deal with matters of civil procedure and conflict of laws, though as has been pointed out earlier on this blog by Kilimcioglu, Kruger, and Van Hof, the CSDDD is mostly silent on PIL. When the Commission proposal was adopted in 2022, Michaels and Sommerfeld elaborated earlier on this blog on the consequences of the absence of rules on jurisdiction in the CSDDD and referred to the Recommendation of GEDIP in this regard. The limited attention for PIL aspects in the CSDDD is does not mean that the importance of corporate sustainability and human rights is not on the radar of the European policy maker and legislator. In the context of both the ongoing evaluation of the Rome II Regulation and Brussels I-bis Regulation this has been flagged as a topic of interest.

This blog post briefly discusses the CSDDD rules on conflict of laws and (international) civil procedure, which underscore the growing importance of both in corporate sustainability and human rights agendas.

Conflict of laws and overriding mandatory provisions

The role of PIL in the agenda of business and human rights has increasingly received scholarly attention. Noteworthy works addressing this intersection include recent contributions by Lehmann (2020), as well as volumes 380 (Van Loon, 2016) and 385 (Marrella, 2017) of the Collected Courses of The Hague Academy of International Law. Additionally, pertinent insights can be found in the collaborative effort of Van Loon, Michaels, and Ruiz Abou-Nigm (eds) in their comprehensive publication, The Private Side of Transforming our World (2021). From an older date is a 2014 special issue of Erasmus Law Review, co-edited by Kramer and Carballo Piñeiro on the role of PIL in contemporary society.

While the CSDDD contains only a singular rule on PIL, specifically concerning overriding mandatory provisions, it should be viewed in the broader EU discourse. The relevance of PIL for the interaction between business and human rights extends beyond this single provision, as evidenced by the Commission’s active role in shaping this development. As indicated earlier, this is further indicated by studies on both the Rome II and Brussels I-bis Regulations, both of which delve into the complexities of PIL within the business and human rights debate. Thus, the CSDDD’s rule should not be viewed in isolation, but as part of a larger, dynamic conversation on PIL in the EU.

The mentioned Rome II Evaluation Study (2021) commissioned by the Commission, summarised on this blog here, assessed Rome II’s applicability to matters pertaining to business and human rights in detail. With regards to overriding mandatory provisions, the study outlines several initiatives at national level in the Member States that were discussed or approved to enact a mandatory corporate duty of care regarding human rights and the environment. Likewise, the Brussels I-bis Evaluation Study (2023) also examined how the Brussels I-bis applies to business and human rights disputes. Within the EU, establishing jurisdiction over EU-domiciled companies is straightforward under the Regulation, but it becomes complex for third-country domiciled defendants. Claims against such defendants are not covered by the Regulation, leaving jurisdiction to national laws, resulting in varied rules among Member States. Forum necessitatis and co-defendants rules may help assert jurisdiction, but lack harmonization across Europe. In this context, as explained by Michaels and Sommerfeld, while the CSDDD applies to certain non-EU firms based on their turnover in the EU (Article 2(2)), jurisdictional issues persist for actions against non-EU defendants in EU courts, with jurisdiction typically governed by national provisions. This could result in limited access to justice within the EU if relevant national rules do not establish jurisdiction.

As was mentioned above, the CSDDD is mostly silent on PIL. However, it does include a rule on overriding mandatory provisions enshrined in Article 29(7) and accompanying Recital 90. This rule aims to ensure the application of the (implemented) rules of the CSSDD regardless of the lex causae. Under EU private international law rules, the application of overriding mandatory provisions is also enabled by Article 9 Rome I Regulation and Article 16 Rome II Regulation.

Article 29(7) CSDDD states that ‘Member States shall ensure that the provisions of national law transposing’ Article 29 CSDDD ‘are of overriding mandatory application in cases where the law applicable to claims to that effect is not the national law of a Member State’. A similar provision to that effect can be found in the draft UN Legally Binding Instrument on business and human rights.

This means that the national laws transposing Article 29 CSDDD in their liability systems are applicable irrespective of any other conflict of law provisions in force. This rule also extends to the matters of civil procedure addressed below, as explicitly stated by Recital 90 CSDDD. On this matter, the potential for the CSDDD to become a dominant global regulatory force and overshadow existing and future national regulations, which is only beneficial if effectively prevents and remedies corporate abuses, has been highlighted. However, there is concern that it might mitigate the development of stronger regulatory frameworks in other countries (see FIDH, 2022).

Matters of civil procedure

The rules contained in the CSDDD that pertain to civil procedure are essentially laid down in Article 29(3). These rules on civil procedure naturally apply to both domestic cases and cross-border situations.

Firstly, Article 29(3)(b) CSDDD states that the costs of judicial proceedings seeking to establish the civil liability of companies under the Directive shall not be prohibitively expensive. A report published in 2020 by the EU Agency for Fundamental Rights (FRA) on ‘Business and human rights – access to remedy’ stressed that private individuals face significant financial risks when resorting to courts due to high costs such as lawyer fees, expert opinions, and potential liability for the opposing party’s costs, particularly daunting in cases involving large companies. Suggestions for improvement include making litigation costs proportionate to damages, providing free legal representation through state bodies, and setting thresholds for the losing party’s financial obligations, along with supporting civil society organizations offering financial and legal aid to victims of business-related human rights abuses. Secondly, Article 29(3)(c) CSDDD provides the possibility for claimants to seek definitive and provisional injunctive measures, including summarily, of both a restorative or enforcing nature, to ensure compliance with the Directive. Lastly, Article 29(3)(d) and (e) CSDDD, respectively, outline rules on collective actions and disclosure of evidence, the latter two explained below.

Collective actions

The FRA report mentioned above emphasized that many legal systems in the EU lack effective collective redress mechanisms, leading to limited opportunities for claimants to seek financial compensation for business-related human rights abuses. Existing options often apply only to specific types of cases, such as consumer and environmental protection, with procedural complexities further restricting their scope. Article 29(3)(d) CSDDD ensures that collective action mechanisms are put in place to enforce the rights of claimants injured by infringements of the Directive’s rules. This provision states that ‘Member States shall ensure that […] reasonable conditions are provided for under which any alleged injured party may authorise’ the initiation of such proceedings. In our view, if this provision is interpreted in a similar way as the alike-rule on private enforcement contained in Article 80(1) GDPR (which uses the synonym ‘mandate’), then this collective action mechanism shall operate on an opt-in basis (see Pato & Rodriguez-Pineau, 2021). The wording of both provisions points to a necessity of explicit consent from those wishing to be bound by such actions. Recital 84 CSDDD further underscores this interpretation by stating that this authorisation should be ‘based on the explicit consent of the alleged injured party’. Importantly, this is unrelated to the collective enforcement of other obligations, outside the scope of the CSDDD, that may impinge upon the types of companies listed in Article 3(1)(a) CSDDD, like those stemming from financial law and insurance law (e.g. UCITS Directive, EMD, Solvency II, AIFMD, MiFID II, and PSD2). All the latter are included in Annex I Representative Actions Directive (RAD) and therefore may be collectively enforced on an opt-out basis pursuant to Article 9(2) RAD (see Recital 84 CSDDD).

Furthermore, Article 29(3)(d) CSDDD grants the Member States the power to set conditions under which ‘a trade union, non-governmental human rights or environmental organisation or other non-governmental organisation, and, in accordance with national law, national human rights’ institutions’ may be authorized to bring such collective actions. The Directive exemplifies these conditions by mentioning a minimum period of actual public activity and a non-profit status akin to, respectively, Article 4(3)(a) and (c) RAD, as well as Article 80(1) GDPR.

In our view, the most relevant aspect of the collective action mechanism set by the CSDDD is that it provides for the ability to claim damages. Indeed, Article 29(3)(d) CSDDD allows the entities referred therein to ‘enforce the rights of the alleged injured party’, without making any exceptions as to which rights. This is an important recognition of the potentially pervasive procedural imbalance that can affect claimants’ abilities to pursue damages against multinational corporations in cases of widespread harm (see Kramer & Carballo Piñeiro, 2014; Biard & Kramer, 2018; Buxbaum, Collected Courses of The Hague Academy of International Law 399, 2019).

Disclosure of evidence

Finally, Article 29(3)(e) CSDDD enacts a regime of disclosure of evidence in claims seeking to establish the civil liability of companies under the Directive. This provision, similar to Article 6 IP Enforcement Directive, Article 5 Antitrust Damages Directive, and Article 18 RAD, seeks to remedy the procedural imbalance of evidentiary deficiency, existent when there is economic disparity between the parties and unequal access to factual materials (see Vandenbussche, 2019).

When a claim is filed and the claimant provides a reasoned justification along with reasonably available facts and evidence supporting their claim for damages, courts can order the disclosure of evidence held by the company. This disclosure must adhere to national procedural laws. If such a disclosure is requested in a cross-border setting within the EU, the Taking of Evidence Regulation also applies.

Courts must limit the disclosure of evidence to what is necessary and proportionate to support the potential claim for damages and the preservation of evidence. Factors considered in determining proportionality include the extent to which the claim or defense is supported by available evidence, the scope and cost of disclosure, the legitimate interests of all parties (including third parties), and the need to prevent irrelevant searches for information.

If the evidence contains confidential information, especially regarding third parties, Member States must ensure that national courts have the authority to order its disclosure if relevant to the claim for damages. Effective measures must be in place to protect this confidential information when disclosed.

Outlook

The CSDDD regime on civil procedure described above largely follows the EU’s ‘silo mentality’ (Voet, 2018) of enacting sectoral-based and uncoordinated collective action mechanisms tied to a specific area of substantive law, such as consumer law, non-discrimination law, and environmental law (e.g. UCTD, RED, UCPD, IED, EIAD, etc.). An important difference being, however, that this time the RAD is already in force and being implemented. On this matter, Recital 84 CSDDD states that Article 29(3)(d) CSDDD ‘should not be interpreted as requiring the Member States to extend the provisions of their national law’ implementing the RAD.

However, being the first EU-wide collective action mechanism and prompting historically collective action-sceptic Member States to adapt accordingly, it is conceptually challenging to posit that the RAD would not potentially influence regimes on collective actions beyond consumer law, including the CSDDD. In this context, it would not deviate significantly from current developments if some Member States opted for a straightforward extension of their existing and RAD-adapted collective action regimes to the CSDDD, though that demands caution to the latter’s specificities and is not legally required.

Another aspect worthy of attention is how these collective actions would be funded. Since such actions may seek damages compensation for widespread harm under Article 29 CSDDD, they can become notably complex and, consequently, expensive. At the same time, a large number of injured persons can mean that these collective actions will ask for high sums in damages. These two factors combined make these collective actions an enticing investment opportunity for the commercial third-party litigation funding (TPF) industry. The CSDDD does not make any reservations in this regard, leaving ample room for Member States to regulate, or not, the involvement of commercial TPF. A report published in mid last year by Kramer, Tzankova, Hoevenaars, and Van Doorn by request of the Dutch Ministry of Justice and Security found that nearly all collective actions seeking damages in the Netherlands make use of commercial TPF. This underscores the crucial role commercial TPF plays in financing such actions, significantly impacting access to justice.

Moreover, the complexities surrounding the integration of PIL into specialized legislation such as the CSDDD, the GDPR, and the anti-SLAPPs Directive reflect a tension between the European Parliament and the Commission. This tension revolves around the extent to which PIL should be addressed within specialized frameworks versus traditional EU legislation on PIL. So far, a clear direction in this regard is lacking, which will trigger further discussions and potential shifts in approach within the EU legislative landscape.

On 12 September 2024, the Centre de droit comparé, européen et international (CDCEI) and the Centre du droit de l’entreprise (CEDIDAC) at the Université de Lausanne are hosting the 6e Journée de droit patrimonial international. The conference will focus on the EU Succession Regulation (no. 650/2012) and the section on international successions of the Swiss Private International Law Act.

The flyer can be found here.

by Achim Czubaiko, Research Fellow („Wissenschaftlicher Mitarbeiter“) and PhD Candidate, supported by the German Scholarship Foundation, Institute for German and International Civil Procedural Law, University of Bonn.

Union Jack and European Union flag 2012 © Dave Kellam (CC BY-SA 2.0 Deed)

Today marks a significant step towards the reconstruction of EU-UK Judicial Cooperation. As neither House of Parliament has raised an objection by 17 May 2024,[1] the way seems to be paved for the Government’s ambitious plans to have the HCCH 2019 Judgments Convention[2] implemented and ratified by the end of June 2024.[3] For the first time since the withdrawal of the United Kingdom from the European Union (so-called Brexit) on 31 January 2020, a general multilateral instrument would thus once again be put in place to govern the mutual recognition and enforcement of judgments in civil and commercial matters across the English Channel.

We wish to take this opportunity to look back on the eventful journey that the European Union and the United Kingdom have embarked on in judicial cooperation since Brexit (I.) as well as to venture a look ahead on what may be expected from the prospective collaboration within and perhaps even alongside the HCCH system (II.).

I. From Brexit to The Hague (2016-2024)

When the former Prime Minister and current Foreign Secretary David Cameron set the date for the EU referendum on 23 June 2016, this was widely regarded as just a political move to ensure support for the outcome of his renegotiations of the terms of continued membership in the European Union.[4] However, as the referendum results showed 51.9% of voters were actually in favour of leaving,[5] it became apparent that Downing Street had significantly underestimated the level of voter mobilisation achieved by the Vote Leave campaign. Through the effective adoption of their alluring “take back control” slogan, the Eurosceptics succeeded in framing European integration as undermining Britain’s sovereignty – criticising inter alia a purportedly dominant role of the Court of Justice (CJEU) – while simultaneously conveying a positive sentiment for the United Kingdom’s future as an autonomous country[6] – albeit on the basis of sometimes more than questionable arguments.[7]

http://www.voteleavetakecontrol.org/why_vote_leave.html

Whatever the economic or political advantages of such a repositioning might be (if any at all), it proved to be a severe setback in terms of judicial cooperation. Since most – if not all – of the important developments with respect to civil and commercial matters[8]in this area were achieved within the framework of EU Private International Law (PIL) (e.g. Brussels Ibis, Rome I-II etc.), hopes were high that some of these advantages would be preserved in the subsequent negotiations on the future relationship after Brexit.[9] A period of uncertainty in forum planning for cross-border transactions followed, as it required several rounds of negotiations between EU Chief Negotiator Michel Barnier and his changing UK counterparts (David Frost served for the final stage from 2019-2020) to discuss both the Withdrawal Agreement[10] as well as the consecutive Trade and Cooperation Agreement (TCA).[11] While the first extended the applicability of the relevant EU PIL Regulations for proceedings instituted, contracts concluded or events occurred during the transition period until 31 December 2020,[12] the latter contained from that point onwards effectively no provision for these matters, with the exception of the enforcement of intellectual property rights.[13] Thus, with regard to civil judicial cooperation, the process of leaving the EU led to – what is eloquently referred to elsewhere as – a “sectoral hard Brexit”.[14]

With no tailor-made agreement in place, the state of EU-UK judicial cooperation technically fell back to the level of 1973 before the UK’s accession to the European Communities. In fact, – in addition to the cases from the transition period – the choice of law rules of the Rome I and Rome II-Regulations previously incorporated into the domestic law, remained applicable as so-called retained EU law (REUL) due to their universal character (loi uniforme).[15] However, this approach was not appropriate for legal acts revolving around the principle of reciprocity, particularly in International Civil Procedure.[16] Hence, a legal stocktaking was required in order to assess how Brexit affected the status of those pre-existing multilateral conventions and bilateral agreements with EU Member States that had previously been superseded by EU law.

First, the UK Government has been exemplary in ensuring the “seamless continuity” of the HCCH 2005 Choice of Court Convention throughout the uncertainties of the whole withdrawal process, as evidenced by the UK’s declarations and Note Verbale to the depositary Kingdom of the Netherlands.[17] The same applies mutatis mutandis to the HCCH 1965 Service Convention, to which all EU Member States are parties, and the HCCH 1970 Evidence Convention, which has only been ratified so far by 23 EU Member States. Second, some doubts arose regarding an ipso iure revival of the original Brussels Convention of 1968,[18] the international treaty concluded on the occasion of EU membership and later replaced by the Brussels I Regulation when the EU acquired the respective competence under the Treaty of Amsterdam.[19] Notwithstanding the interesting jurisprudential debate, these speculations were effectively put to a halt in legal practice by a clarifying letter of the UK Mission to the European Union.[20] Third, there are a number of bilateral agreements with EU Member States that could be reapplied, although these can hardly substitute for the Brussels regime, which covers most of the continental jurisdictions.[21] This is, for example, the position of the German government and courts regarding the German-British Convention of 1928.[22]

It is evident that this legal patchwork is not desirable for a major economy that wants to provide for legal certainty in cross-border trade, which is why the UK Government at an early stage sought to enter into a more specific framework with the European Union. First and foremost, the Johnson Ministry was dedicated to re-access the Lugano Convention[23] which extended the Brussels regime to certain Member States of the European Free Trade Association (EFTA)/European Economic Area (EEA) in its own right.[24] Given the strong resentments Brexiteers showed against the CJEU during their campaign this move is not without a certain irony, as its case law is also crucial to the uniform interpretation of the Lugano Convention.[25] Whereas Switzerland, Iceland and Norway gave their approval, the European Commission answered the UK’s application in the negative and referred to the HCCH Conventions as the “framework for cooperation with third countries”.[26] What some may view as a power play by EU bureaucrats could also fairly be described as a necessary rebalancing of trust and control due to the comparatively weaker economic and in particular judicial integration with the United Kingdom post-Brexit.[27] At the very least, the reference to the HCCH reflects the consistent European practice in other agreements with third countries.[28]

Be that as it may, if His Majesty’s Government implements its ratification plan as diligently as promised, the HCCH 2019 Judgments Convention may well be the first new building block in the reconstruction what has been significantly shattered on both sides by the twists and turns of Brexit.

II. (Prospective) Terms of Judicial Cooperation

Even if the path of EU-UK Judicial Cooperation has eventually led to The Hague, there is still a considerable leeway in the implementation of international common rules.

Fortunately, the UK Government has already put forward a roadmap for the HCCH 2019 Judgments Convention in its responses to the formal consultation carried out from 15 December 2022 to 9 February 2023[29] as well as the explanatory memorandum to the Draft Recognition and Enforcement of Judgments Regulations 2024.[30] Generally speaking, the UK Government wants to implement the HCCH Convention for all jurisdictions of the United Kingdom without raising any reservation limiting the scope of application. Being a devolved matter, this step requires the Central Government to obtain the approval of a Northern Ireland Department (Roinn i dTuaisceart Éireann) and the Scottish Ministers (Mhinistearan na h-Alba).[31] Furthermore, this approach also implies that there will be no comparable exclusion of insurance matters as under the HCCH 2005 Convention.[32] However, the Responses contemplated making use of the bilateralisation mechanism in relation to the Russian Federation upon its accession to the Convention.[33]

Technically, the Draft Statutory Instrument employs a registrations model that has already proven successful for most recognition and enforcement schemes applicable in the UK.[34] However, registration within one jurisdiction (e.g. England & Wales) will on this basis alone not allow for recognition and enforcement in another (e.g. Scotland, Northern Ireland), but is rather subject to re-examination by the competent court (e.g. Court of Session).[35] This already constitutes a significant difference compared to the system of automatic recognition under the Brussels regime. Moreover, the draft instrument properly circumvents the peculiar lack of an exemption from legalisation in the HCCH 2019 Convention by recognizing the seal of the court as sufficient authentication for the purposes of recognition and enforcement.[36] It remains to be seen if decisions of third states “domesticated” in the UK under the common law doctrine of obligation will be recognized as judgments within the European Union. If the CJEU extends the position taken in J. v. H Limited to the HCCH 2019 Judgments Convention, the UK may become an even more attractive gateway to the EU Single Market than expected.[37] Either way, the case law of the CJEU will be mandatory for 26 Contracting States and thus once again play – albeit not binding – a dominant role in the application of the HCCH legal instrument.

As far as the other legal means of judicial cooperation are concerned, the House of Lords does not yet appear to have given up on accession to the Lugano Convention.[38] Nevertheless, it seems more promising to place one’s hopes on continued collaboration within the framework of the HCCH. This involves working towards the reconstruction of the remaining foundational elements previously present in EU-UK Judicial Cooperation by strengthening the HCCH Jurisdiction Project and further promoting the HCCH 1970 Evidence Convention in the EU.

III. Conclusion and Outlook

After all, the United Kingdom’s withdrawal from the European Union has dealt a serious blow to judicial cooperation across the English Channel. A look back at the history of Brexit and the subsequent negotiations has revealed that the separation process is associated with an enormous loss of trust. Neither could the parties agree on a specific set of rules under the TCA, nor was the European Union willing to welcome the United Kingdom back to the Lugano Convention.

Against this background, it is encouraging to see that both parties have finally agreed on the HCCH as a suitable and mutually acceptable forum to discuss the future direction of EU-UK Judicial Cooperation. If Brexit ultimately brought about a reinvigorated commitment of the United Kingdom to the HCCH Project, this might even serve as an inspiration for other States to further advance the Hague Conference’s ambitious goal of global judicial cooperation. Then the prophecies of the old songs would have turned out to be true, after a fashion. Thank goodness!

[1]    HL Int. Agreements Committee, 11th Report of 8 May 2024 “Scrutiny of international agreements: 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters” (HL Paper 113), para. 1. According to sec. 20 (1) (a) and (2) of the Constitutional Reform and Governance Act 2010 (c. 25) is a treaty not ratified unless a Minister of the Crown has laid a copy before parliament for a period of 21 sitting days.

[2]    Convention on the recognition and enforcement of foreign judgments in civil or commercial matters (HCCH 2019 Judgments Convention) of 2 July 2019, UNTS I-58036 and Tractatenblad 2024, 42 (Verdragsnr. 013672).

[3]    Civil Procedure Rule Committee, Minutes of 1 December 2023, para. 28

[4] See inter alia, Mason, “How did UK end up voting to leave the European Union?”, The Guardian of 24 June 2016; Boffey, “Cameron did not think EU referendum would happen, says Tusk”, The Guardian of 21 January 2019; Duff, “David Cameron’s EU reform claims: If not ‘ever closer union’, what?”, Blogpost of 26 January 2016 on Verfassungsblog | On Matters Constitutional; von Lucke, “Brexit oder: Die verzockte Demokratie”, Blätter 8/2016, 5 et seq.

[5] UK Electoral Commission, “23 June 2016 referendum on the UK’s membership of the European Union”, Report of September 2016, p 6.

[6] Compare Haughton, “Ruling Divisions: The Politics of Brexit”, Perspectives on Politics 19 (2021), 1258, 1260; Özlem Atikcan/Nadeau/Bélanger, “Framing Risky Choices: Brexit and the Dynamics of High-stakes Referendums”, p. 44.

[7] E.g. Rankin, “Is the leave campaign really telling six lies?”, The Guardian of 7 June 2016.

[8] This finding might look different for International Family Law, according to Beaumont, “Private International Law concerning Children in the UK after Brexit: Comparing Hague Treaty Law with EU Regulations”, Child & Fam. L. Q. 29 (2017), 213, 232: “In all these matters students, practitioners and judges will be grateful to have fewer operative legal regimes post-Brexit”.

[9] For example, on this blog Fitchen, “Brexit: No need to stop all the clocks”, Blogpost of 31 January 2020 or Lutzi, “Brexit: The Spectre of Reciprocity Evoked Before German Courts”, Blogpost of 13 December 2020.

[10] Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Withdrawal Agreement) of 24 January 2020, OJ EU CI 384/1.

[11] Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (TCA) of 30 December 2020, OJ EU L 149/10.

[12] Art. 126 of the Withdrawal Agreement.

[13] Compare Chapter 3: Art. 256-273 of the TCA.

[14] Bert, “Judicial Cooperation in Civil Matters: Hard Brexit After All?”, Blogpost of 26 December 2020 on Dispute Re§olution Germany.

[15] Sec. 3 (1) European Union (Withdrawal) Act 2018, Chapter 16/2018, sec. 10, 11 The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019, SI 2019/834; For the current status of the Retained EU Law, see House of Commons Library “The end of REUL? – Progress in reforming retained EU law”, Research Briefing No.°09957 of 2 February 2024 (author: Leigh Gibson).

[16] Implicitly Dickinson, “Realignment of the Planets – Brexit and European Private International Law”, IPRax 2021, 213, 217 et seq.

[17] See Notes Verbales of the United Kingdom to the Kingdom of the Netherlands in its capacity as depositary of the HCCH 2005 Judments Convention from 28 December 2018 to 28 September 2020 in the Treaty Database.

[18] Convention on jurisdiction and the enforcement of judgments in civil and commercial matter (Brussels Convention) of 27 September 1968, OJ EU L 229/31; See e.g. Rühl, “Judicial Cooperation in Civil and Commercial Matters after Brexit: Which Way Forward?”, ICLQ 67 (2018), 99, 104 et seq.

[19] Art. 73m of the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts of 2 October 1997, OJ EU C 340/1.

[20] UK Mission to the European Union, Letter to the Council of the European Union of 29 January 2021, NO 17/2021.

[21] See, for example, the Agreement on the continued Application and Amendment of the Convention between the Government of the United Kingdom and the Government of Norway providing for the Reciprocal Recognition and Enforcement of Judgments in Civil Matters singed at London on 12 June 1961, SI 2020 No. 1338.

[22] Convention on the Facilitation of Legal Proceedings in Civil and Commercial Matters between His Majesty and the President of the German Reich of 20 March 1928; RGBl. 1928 II Nr. 47; for the position of the German Government, please refer to German Federal Government “Response to the parliamentary enquiry on judicial cooperation in civil matters with the United Kingdom post-Brexit”, BT-Drucks. 19/27550 of 12 March 2021, p. 3, for a recent decision of the German Judiciary, see Higher Regional Court of Cologne, Decision of 2 March 2023, I-18 U 188/21, paras. 60 et seq.

[23] Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano Convention) of 30 October 2007, OJ EU L 339/3.

[24] With the notable exception of Liechtenstein.

[25] Art. 64 Lugano Convention as well as the Protocol concerning the interpretation by the Court of Justice of 3 June 1971, OJ EU L No°204/28.

[26] For the consent of the other Contracting State (except Denmark), see Swiss FDFA, “Communications by the depositary with respect to the application of accession by the United Kingdom”, Notification of 28 April 2021, 612-04-04-01 – LUG3/21; for the rejection of the EU Commission, Note Verbale to the Swiss Federal Council of 22 June 2021 and, “Assessment on the application of the United Kingdom of Great Britain and Northern Ireland to accede to the 2007 Lugano Convention”, COM(2021) 222 final of 4 May 2021, pp. 3 et seq. However, this decision was not without criticism, for example by the Chair-Rapporteur of the OHCHR Working Group on the issue of human rights and transnational corporations and other business enterprises in a letter to the EU Commission of 14 March 2024.

[27] For these arguments see EU Commission, “Assessment on the application of the United Kingdom of Great Britain and Northern Ireland to accede to the 2007 Lugano Convention”, COM(2021) 222 final of 4 May 2021, p. 3 and European Parliamentary Research Service (EPRS), “The United Kingdom’s possible re-joining of the 2007 Lugano Convention” Briefing PE 698.797 of November 2021 (author: Rafa? Ma?ko), pp. 3 et seq. For a theoretical foundation, see M. Weller, “ ‘Mutual Trust’: A Suitable Foundation for Private      International Law in Regional Integration Communities and Beyond”, RdC 423 (2022), 37, 295 et seq.

[28] See e.g. Art. 24 of the Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other par, OJ EU No°L 161/3: “The Parties agree to facilitate further EU-Ukraine judicial cooperation in civil matters on the basis of the applicable multilateral legal instruments, especially the Conventions of the Hague Conference on Private International Law in the field of international Legal            Cooperation and Litigation as well as the Protection of Children”. Until recently, the regulation of judicial cooperation specifically in and for extra-EU trade relations appeared to be aout of sight, see M. Weller, “Judicial cooperation of the EU in civil matters in its relations to non-EU States – a blind spot?”, in Alan Uzelac/Rhemco van Rhee (eds.), Public and Private Justice (PPJ) 2017: The Transformation of Civil Justice, Intersentia 2018, pp. 63 et seq.

[29] UK Ministry of Justice, The Hague 2019 – Response to Consultation of 23 November 2023 (“Responses”).

[30] Draft Statutory Instruments 2024 No. XXX Private International Law: The Recognition and Enforcement of Judgments (2019 Hague Convention etc.) Regulations 2024 (“Draft Guidelines”). The competence to make regulations in that respect is based on sec. 2 (1) of the Private International Law (Implementation of Agreements) Act 2020 (c. 24). According to sec. 2 (11) read in conjunction with sched. 6 paras. 4 (2) (a) and (d) draft regulations need to be laid before parliament for approval of each House by a resolution.

[31] Sec. 2 (12) Private International Law (Implementation of Agreements) Act 2020 (c. 24); see also Letter from the Scottish Minister for Victims and Community Safety of 19 March 202 regarding the “UK SI Notification – The Recognition and Enforcement of Judgments (2019 Hague Convention etc) Regulations 2024”.

[32] See Response, para. 51; a similar discussion took place regarding “mixed litigation issues”, where only certain elements are within the scope of the HCCH 2019 Judgments Convention.

[33] Responses, para. 53.

[34] See inter alia the Administration of Justice Act 1920, Chapter 81/1920 (Regnal. 10 & 11 Geo 5) or the Foreign Judgments (Reciprocal Enforcement) Act 1933, Chapter 13/1933 (Regnal. 23 & 24 Geo 5.

[35] Sec. 15 Draft Guidelines and Draft Explanatory Memorandum, para. 5.5.5.

[36] Sec. 12 Draft Guidelines; Garcimartin/Saumier, HCCH 2019 Judgments Convention: Explanatory Report, para. 307.

[37] See CJEU, Judgment of 7 April 2022, J. v. H. Limited, C-568/20, para. 47. However, there is a certain chance that this case law will be corrected in the upcoming revision process of the Brussels Ibis-Regulation, see e.g. Hess/Althoff/Bens/Elsner/Järvekülg, “The Reform of the Brussels Ibis Regulation”, MPI Luxembourg Research Paper Series N.°2022 (6), proposal 15.

[38] HL Int. Agreements Committee, 11th Report of 8 May 2024 “Scrutiny of international agreements: 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters” (HL Paper 113), para. 17: “Many stakeholders have called for the Government to continue its efforts to join the Lugano Convention in addition to ratifying Hague 2019. We agree that the Government should do so.”

The Yong Pung How Professorship Lecture 2024 will be held on Thursday 23 May 2024 5:00 to 6:30pm Singapore time. Professor Yeo Tiong Min, SC (Hon), who holds the Yong Pung How Chair Professor of Law at Singapore Management University, will be speaking on ‘Past, Present, and Future Tensions: Jurisdiction over Absent Defendants’.

The synopsis is as follows: ‘This lecture considers the historical backdrop to the current law in Singapore on when overseas defendants may be subject to the in personam jurisdiction of the court, with a view to understanding the old and new issues arising from the overhaul of the rules for service out of jurisdiction in 2021 and the amendments in 2023 to accommodate the Hague Service Convention. The future-readiness of these rules will also be considered.’

The event will be in hybrid format. Further details may be found here.

The Dispute Resolution Interest Group of the American Society of International Law (ASIL) is pleased to announce the third edition of the DRIG Prize for Best Article in International Dispute Resolution. The Prize will be awarded to the author(s) of the article published in 2023 that the Selection Committee considers to be outstanding in the field of international dispute resolution. DRIG is currently accepting submissions for the Prize.

Please find below the details on the Prize and the members of the Selection Committee:

o Eligibility: The Selection Committee will consider publications on inter-State dispute settlement, investor-State dispute settlement, international commercial arbitration, and alternative dispute resolution. Any article, or book chapter from an edited volume, in the English language published during 2023 may be nominated. Sole and jointly authored papers are eligible. Membership in the American Society of International Law is not required. Submissions from outside the United States are welcome and encouraged.

o Criteria: In assessing submissions, the Selection Committee will take into account factors such as: a) depth of research; b) sophistication of analysis; c) originality; d) quality of writing; and e) potential impact on the field of international dispute resolution.

o Submission: The Dispute Resolution Interest Group is currently accepting submissions, which must be received by November 1, 2024. Electronic submission is required in portable document format (.pdf). All submissions must include contact information (name, e-mail, phone, address). Electronic submissions should be sent to the following email address: drig@asil.org. Please indicate “Submission for the DRIG Prize” in the subject line.

o Prize: The Selection Committee will select one publication for the award of the Prize. The Prize consists of a certificate of recognition, a complimentary registration for the 2025 ASIL Annual Meeting, a complimentary one-year membership in the Society, and a complimentary one-year subscription to the Jus Mundi international law and arbitration search engine. The winner of the Prize will be announced at the ASIL Annual Meeting in April 2025. The Prize is sponsored by Covington & Burling LLP, Curtis, Mallet-Prevost, Colt & Mosle LLP, and Jus Mundi.

o Selection Committee: The Selection Committee consists of individuals drawn from private practice, academia, and/or government who possess expertise in the fields covered by the Prize, and also includes the DRIG co-chairs. The Selection Committee for the 2025 Prize will be presided by Esmé Shirlow (Australian National University) and will include Julian Arato (The University of Michigan), Tom Ginsburg (The University of Chicago), Sebastián Green Martínez (Uría Menéndez), Natalie Morris-Sharma (Attorney-General’s Chambers, Singapore), Sabina Sacco (Independent Arbitrator), Priyanka Shetty (AZB & PARTNERS), Amer Tabbara (University of Birmingham), and Philippa Web (King’s College London).

Ekaterina Aristova (Bonavero Institute of Human Rights, University of Oxford) is the author of the ‘Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts’ (OUP 2024), which has just been published in the Oxford Private International Law series. She has kindly shared the following summary with us:

The book examines the approach of the English courts to the question of jurisdiction in civil liability claims brought against English-based parent companies and their foreign subsidiaries as co-defendants (e.g., Lubbe v Cape, Lungowe v Vedanta, Okpabi v Shell, etc.). While the book is written from the perspective of English law, the book also draws on examples of similar cases in Australia, Canada, EU Member States, and the US to broaden the discussion.

The assertion of jurisdiction in parent company liability claims based on a nexus with the forum state presents a challenge to the courts. The territorial focus of the adjudicative jurisdiction is often contrary to the transnational nature of cross-border business activities. Transnational corporations (TNCs) have the flexibility to spread operations over multiple jurisdictions and create a legal separation between the subsidiary’s activities and the home state of the parent company. Courts rely on various private international law rules and doctrines to resolve the question of jurisdiction in parent company liability claims, including forum non conveniens doctrine in common law legal systems, the mandatory rule of domicile under EU law, and the presumption against extraterritoriality in US jurisprudence. The broad disparities in the issues of civil jurisdiction among domestic legal regimes and the considerable controversy surrounding the exercise of extraterritorial regulation over corporate operations often lead to the creation of a ‘jurisdictional veil’ for the parent company and a significant degree of autonomy, largely free from the control of any national jurisdiction.

To address this puzzle, this book seeks to answer three questions: 1) To what extent can English courts, under existing rules, exercise jurisdiction over English parent companies and their foreign subsidiaries as co-defendants? 2) Is England a suitable forum for deciding parent company liability claims? 3) Should the jurisdictional competence of the English courts be broadened through a new connecting factor derived from the ‘economic enterprise’ theory?

The book aims to offer a new angle to the discourse by placing the discussion of parent company liability claims in the context of the topical debate about the changing role of private international law in a globalised world. The transnational adjudication of disputes, cross-border activities of non-state actors and expansion of private law-making challenge several conventional assumptions of the discipline of private international law, including its focus on territoriality and geographical connecting factors and its capacity to interact with public mechanisms. Home state courts have become the fora for struggles between TNCs and vulnerable communities from the host states, raising complex questions about (il)legitimate forum shopping, the appropriate forum, and the limits of judicial discretion. Parent company liability claims impact how we think about private international law and its function, and the reader is invited to explore these challenging dynamics.

The Bonavero Institute of Human Rights in Oxford will celebrate the publication of the book by hosting a (hybrid) book launch and wine reception on 5 June 2024.

Registration for the 2025 programme of The Hague Academy of International Law’s renowned Winter Courses on International Law (6-24 January 2025) is now open. In contrast to the summer courses, this program combines aspects of both Public and Private International Law and therefore provides for a particularly valuable academic experience.

Following the Inauguaral Lecture by Bhupinder Singh Chimni (O.P. Jindal Global University), this year’s General Course in Private International Law will focus on “International Law in the Times of Globalization: Contexts, Networks, Practices” and will be delivered by Mónica Pinto (University of Buenos Aires). Furthermore, Special Courses will be offered in English by Mohamed S. Abdel Wahab (Cairo University), Payam Akhavan (University of Toronto), Enrico Milano (University of Verona) and Catherine Rogers (Bocconi University), while Niki Aloupi and Sébastien Touzé (Paris-Panthéon-Assas) will deliver their presentations in French. As always, all lectures will be simultaneously interpreted into English or French and vice versa. If you are interested in alternative dispute resolution, the lecture on “The Concept of Arbitrator Impartiality” seems particularly interesting.

Advanced Students, especially those who are ambitious to sit for the prestigious Diploma Exam, are highly encouraged to apply for the Academy’s Directed Studies as well. The French edition of these interactive afternoon seminars will be directed by Emanuel Castellarin (University of Strasbourg), while English-speaking candidates are taught by María Carmelina Londoño Lázaro (University of La Sabana).

Registration is open from  1 May 2024 to 1 October 2024 via the institution’s own Online Registration Form . Students who whish to apply for the Academy’s scholarship opportunities need to submit their application by 31 July 2024. For further information on the HAIL 2024 Winter courses and the Academy in general, please consult the HAIL Homepage or refer to the attached PDF Programme.

The Rhenish Friedrich Wilhelm University of Bonn is an international research university with a wide education and research profile. With a 200-year history, approximately 33,000 students, more than 6,000 staff, and an excellent reputation at home and abroad, the University of Bonn is one of the most important universities in Germany and is recognized as a university of excellence.

The Institute for German and International Civil Procedure is looking for a highly skilled and motivated PhD candidate and fellow (Wissenschaftliche/r Mitarbeiter/in) to work in the fields of International Civil Procedural Law and/or International Commercial Arbitration on a part-time basis (50%) to start as soon as possible.

(c) Volker Lannert / Universität Bonn

Responsibilities:

• Supporting research and teaching on Private International Law, International Civil Procedure and/or International Commercial Arbitraiton as well as German civil law (required by the Faculty, therefore an excellent command of German and profound knowledge of German civil law equivalent to the “First State Examination” is mandatory)
• Teaching obligation of two hours per week during term time (Semester)

Your Profile:

• You hold the First or Second German State Examination in law with distinction (or its international equivalent)
• If possible, you already had contact with International Civil Procedure Law and/or Commercial Arbitration Law
• You are interested in the international dimension of private law, in particular International Civil Procedural Law, and/or International Commercial Arbitration
• Excellent command of the English language (next to German)
• You are commited, flexible, team-oriented and interested in further professional development opportunities

We offer:

• Varied and challenging assignments with one of the largest employers in the region
• Opportunity to conduct your PhD or research project (according to the Faculty’s regulations) under the supervision of the Director of the Institute Prof Dr Matthias Weller, Mag.rer.publ., MAE
• Occupational pension scheme (VBL)
• Numerous offers of the University Sports Programme (Hochschulsport)
• Easy access to the public transport system and direct road link to the Autobahn due to the central location in Bonn as well as the possibility to use inexpensive parking facilities
• Flexible working hours; remote working options are available
• Renumeration according to German public service salary scale E-13 TV-L (50%); initial contract period is one year at least and up to three years, with an option to be extended.

The University of Bonn is committed to diversity and equal opportunity. It is certified as a family-friendly university. Its goal is to increase the proportion of women in areas where they are underrepresented and to particularly promote their careers. It therefore strongly encourages applications from relevantly qualified women. Applications are handled in accordance with the State Equal Opportunity Act. Applications from suitable persons with proven severe disabilities and persons treated as such are particularly welcome

If you are interested in this position, please send your application (cover letter in German; CV; and relevant documents and certificates, notably university transcripts and a copy of the German State Examination Law Degree) to Prof Dr Matthias Weller (weller@jura.uni-bonn.de).

For additional information, please refer to the attached pdf document (in German) or visit the Institute’s homepage.

• PILIG newsletter editors recruiting

American Society of International Law Private International Law Interest Group publishes a newsletter and commentaries covering private international law development in Africa, Asia, Europe, North America, Oceania, and South America.

The editor team is working on the 2024 issue and invites scholars, practitioners, and students to contact us to become a PILIG newsletter editor.

ASIL Private International Law Interest Group Co-Chairs

Jeanne Huang <jeanne.huang@sydney.edu.au>

George Tian <YiJun.Tian@uts.edu.au>

With the publication of the Elgar Companion to UNIDROIT, edited by Ben Köhler, Rishi Gulati, and Thomas John, the trilogy of books on the three key international institutions mandated to work on private international law and uniform private law is now complete. The volumes on the HCCH and UNCITRAL have been published in 2020 and 2023 respectively.

The editors have kindly shared the following description with us:

The comprehensive Companion provides a unique overview of UNIDROIT, the primary independent organisation coordinating the unification of private law across its 65 member states. As the third in the suite of titles covering the ‘three sisters’ of uniform private law and private international law, it considers UNIDROIT’s role in the creation of existing uniform law, as well as posing questions about its future in the sector.

The Companion offers a broad range of diverse perspectives on UNIDROIT, providing a rich reference resource that considers the history, present and future of the organisation. The team of authors explore the evolving scope and role of UNIDROIT, with a particular focus on its Principles of International Commercial Contracts, as well as its contributions to secured transaction processes, capital markets and cultural properties. Through its assessment of case studies, the Companion delineates the current priorities of UNIDROIT, as well as examining the future of the organisation, and outlining how the organisation can address challenges such as sustainable development and disruptive technologies, and further advance its own impact in underrepresented regions.

Covering a broad range of perspectives from scholars and practitioners alike, this Companion will be a crucial reference point for academics and students in the fields of private international law, and international commercial law, especially those interested in how international organisations contend with critical legal issues.

By Dr Benjamin Hayward

Way out west, where the rain don’t fall

There’s a treaty for the sale of goods that’s good news for all

But you might not know it’s here

Unless you’re livin’ and a workin’ on the land …

In 2009, Associate Professor Lisa Spagnolo observed – based upon her census of Australia’s CISG case law at that time – that the Convention was effectively ‘in the Australian legal outback’.  For those unfamiliar with Australia’s geography, most of its population is concentrated on the continent’s eastern coast.  Australia’s outback extends, amongst other places, across much of Western Australia.  With that geographic imagery in mind, one might not be surprised to hear that a recent decision of the County Court of Victoria – in Australia’s east – overlooked the Vienna Sales Convention’s application.

The circumstances in which this omission occurred are interesting, and provide a useful opportunity for Australian practitioners to learn more about the CISG’s application in Australia.

The case at issue is last year’s C P Aquaculture (India) Pvt Ltd v Aqua Star Pty Ltd [2023] VCC 2134.  That case involved a sale of goods dispute (concerning prawn and shrimp) between Australian and Indian parties.  Whilst the CISG has been part of Australian law since 1989, it is a well-known fact that India is not a CISG Contracting State.  It is perhaps this well-known fact – taken at face value – that led the County Court of Victoria to overlook the CISG’s application.

The C P Aquaculture judgment indicates that ‘[t]he parties are agreed that the proper law of the contracts between CP (India) and Aqua Star for the sale of shrimp or prawns is Victorian law’.  As recorded in the judgment, this followed from the plaintiff’s view that ‘India has not adopted the convention on contracts for the international sale of goods’, and from the defendant’s view that there was a ‘failure on the part of either part[y] to allege and prove the terms of any other law as a proper law’.

On either view, however, there is actually a very good basis for applying the CISG, rather than non-harmonised Victorian law.  This case therefore represents an excellent opportunity for Australian lawyers to better understand how and why the CISG applies in Australia.

Taking the plaintiff’s position first, the fact that India has not adopted the CISG is actually not fatal to the Convention’s application.  In fact, the Convention specifically provides for its application in those exact circumstances.  This follows from Art. 1(1) CISG, the treaty’s key application provision:

This Convention applies to contracts of sale of goods between parties whose places of business are in different States:

(a) when the States are Contracting States; or

(b) when the rules of private international law lead to the application of the law of a Contracting State.

 Where – as in C P Aquaculture – it is not the case that both parties are from Contracting States, the CISG cannot apply by virtue of Art. 1(1)(a) CISG.  But it can still apply pursuant to Art. 1(1)(b) CISG.  The key here is whether ‘the rules of private international law’ call for the application of a Contracting State’s law.

In an informal discussion I once had with a leading Australian barrister, I was asked ‘what does “the rules of private international law” here actually mean?’  It may be that uncertainty over the meaning of this phrase contributes to the CISG’s application being overlooked in cases like C P Aquaculture.  In short, private international law rules include choice of law rules (where a sales contract is governed by a CISG State’s law because of a choice of law clause) and conflict of laws rules (where, absent party choice of law, the forum’s rules indicate that a CISG State’s law is to apply).  In a way, Art. 1(1)(b) CISG might have been more easily understood by non-specialists if it read ‘when a Contracting State’s law is the governing law’.  Although it doesn’t read this way, that is essentially the provision’s effect, and understanding Art. 1(1)(b) CISG accordingly may better help Australian practitioners identify cases requiring the treaty’s application.

Taking the defendant’s position second, where the law of an Australian jurisdiction governs, it is actually not necessary to ‘allege and prove’ the CISG’s terms because the CISG – despite its abstract existence as a treaty – is not foreign law.  Roder Zelt-Und Hallenkonstruktionen GmbH v Rosedown Park Pty Ltd – Australia’s first ever case applying the CISG – confirmed this by explaining that the CISG is ‘part of’ Australian law and is thus ‘not to be treated as a foreign law which requires proof as a fact’.

Indeed, the Goods Act 1958 (Vic) – a statute that the defendant itself sought to rely upon in C P Aquaculture – is the very vehicle giving effect to the CISG in Victoria, via its pt IV.

All this being said, C P Aquaculture provides Australian practitioners (and lawyers representing Australian traders’ counterparts) with some useful lessons in understanding how and why the CISG applies.  If the CISG really is still in the Australian legal outback, then perhaps what Australian practitioners need is a good understanding of the lay of the land.  And to that end, private international law can be their map.

Dr Benjamin Hayward

Associate Professor, Department of Business Law and Taxation, Monash Business School

X (Twitter): @LawGuyPI

International Trade and International Commercial Law research group: @MonashITICL

I. Introduction

Recent developments in the field of family law in the UAE, in particular the adoption of the so-called “Civil Marriage Laws”, have aroused interest, admiration, curiosity, and even doubt and critics among scholars and practitioners of family law, comparative law and private international law around the world.[1] First introduced in the Emirate of Abu Dhabi,[2] and later implemented at the federal level,[3] these “non-religious” family laws, at least as originally enacted in Abu Dhabi, primarily intend to apply to foreign non-Muslims.[4] The main stated objective of these laws is to provide foreign expatriates with a modern and flexible family law based on “principles that are in line with the best international practices” and “close to them in terms of culture, customs and language”.[5] One of the peculiar feature of these laws is that their departure from the traditional family law regulations and practices in the region, particularly in terms of gender equality in pertinent matters such as testimony, succession, no-fault divorce and joint custody.[6]

Aside from the (critical) judgment that can be made about these laws, their application raises several questions. These include, inter alia, the question as to whether these laws would apply to “foreign Muslims”, and if yes, under which conditions. The decision of the Abu Dhabi Supreme Court (hereafter “ADSC”) reported here (Ruling No. 245/2024 of 29 April 2024) shed some light on this ambiguity.

II. The Facts:

 The case concerns a unilateral divorce action initiated by the husband (a French-Lebanese dual national, hereafter “X”) against his wife (a Mexican-Egyptian dual national, hereafter “Y”). Both are Muslim.

According to the facts reported in the decision, X and Y got married in the Emirate of Abu Dhabi on 11 September 2023, apparently in accordance with the 2021 Abu Dhabi Law Civil Marriage Law[7] although some aspects of the Islamic tradition regarding marriage appear to have been observed.[8] On 6 November 2023, X filed an action for no-fault divorce with the Abu Dhabi Civil Family Court (hereafter ADCFC) pursuant to the  2021 Abu Dhabi Law Civil Marriage Law using the prescribed form.[9] Y contested the divorce petition by challenging the jurisdiction of the court. However, the ADCFC admitted the action and declared the dissolution of the marriage. The decision was confirmed on appeal.

Y then appealed to the ADSC primarily arguing that the Court of Appeal had erred in applying the 2021 Abu Dhabi Law Civil Marriage Law to declare the dissolution of the marriage because both parties were Muslim. Y’s main arguments as summarized by the ADSC are as follows:

1. The Abu Dhabi courts lacked international jurisdiction because she was foreigner and did not have a place of residence in Abu Dhabi and that her domicile was in Egypt,
2. The Court of Appeal rejected her argument on the ground that X had a known domicile in Abu Dhabi,
3. Both parties were foreign Muslims and not concerned with the application of the 2021 Abu Dhabi Law Civil Marriage Law knowing that the marriage fulfilled all the necessary requirement for Islamic marriage and was concluded with the presence and the consent of Y’s matrimonial guardian (her brother in casu).

III. The Ruling

The ADSC accepted the appeal and ruled that the ADCFC was not competent to hear the dispute, stating as follows:

“Pursuant to Article 87 of the [2022 Federal Act on Civil Procedure, hereafter “FACP”], challenges to the court’s judicial jurisdiction or subject matter jurisdiction may be raised by the courts sua sponte and may be invoked at any stage of the proceedings. On appeal, Y argued that the court lacked subject matter jurisdiction to hear the case because she was Muslim […] and a dual national of Mexico and Egypt, while X was also a Muslim […] and holder of French and Lebanese nationalities.

[However,] the Court of Appeal rejected Y’s arguments and confirmed its jurisdiction based on Articles 3 and 4 of [the Procedural Regulation]; [although] the opening of Article 3 relied on [by the court] states that “the court is competent to hear civil family matters for non-Muslim foreigners regarding civil marriage, divorce and their effects”. In addition, Article 1(1) of Federal Legislative Decree No. 41/2022 states that “The provisions of the present Legislative Decree shall apply to non-Muslim citizens of the UAE and to foreign non-Muslims residing in the UAE, unless they invoke the application of their own law in matters of marriage, divorce, succession, wills and establishment of filiation.”

[Given that] it was judicially established by the parties’ acknowledgement that they were Muslim, the Court of Appeal violated the Law No. 14/2021, as amended by Law No. 15/2021, and its Procedural Regulation [No. 8/2022], as well as Federal Legislative Decree No. 41/2022 by upholding the appealed decision without ascertaining the religion of the parties and ruling as it did, [therefore its decision] must be reversed”.

IV. Comments

The main legal question referred to the ADSC concerned the applicability of the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation to foreign Muslims. The ADSC answered the question in the negative, stating that the ADCFC was not competent to declare the dissolution a marriage between foreign Muslims. Although the case raises some interesting issues regarding the international jurisdiction of the ADCFC, for the sake of brevity, only the question of the applicability of the 2021 Abu Dhabi Civil Marriage Law will be addressed here.

1. Unlike the 2022 Federal Civil Personal Status, which explicitly states that its provisions “apply to non-Muslim UAE citizens, and to non-Muslim foreigners residing in the UAE” (article 1, emphasis added), the law in Abu Dhabi is rather ambiguous on this issue.

i. It should be indicated in this respect that, the 2021 Abu Dhabi Civil Marriage Law, which was originally enacted as “The Personal Status for Non-Muslim Foreigners in the Emirate of Abu Dhabi” (Law No. 14/2021 of 7 November 2021, emphasis added) clearly limited its scope of application to foreign non-Muslims. This is also evident from the definition of the term “foreigner” contained in the former article 1 of the Law, according to which, the term (foreigner) was defined as “[a]ny male or female non-Muslim foreigner, having a domicile, residence or place of work in the Emirate.” Former article 3 of the Law also defined the scope of application of the Law and limited only to “foreigners” in the meaning of article 1 (i.e. non-Muslim foreigners). Therefore, it was clear that the Law, in its original form, did not apply to “foreign Muslims” in general.[10]

ii. However, only one month after its enactment (and even before its entry into force), the Law was amended and renamed “The Law on Civil Marriage and its Effects in the Emirate of Abu Dhabi” by the Law No. 15/2021 of 8 December 2021. The amendments concerned, inter alia the scope of application rationae personae of the Law. Indeed, the Law No. 15/2021 deleted the all references to “foreigners” in the Law No. 14/2021 and replaced the term with a more neutral one: “persons covered by the provisions of this Law [al-mukhatabun bi hadha al-qanun]”. This notion is broadly defined to include both “foreigners” (without any particular reference to their religious affiliation) and “non-Muslim citizens of the UAE” (New Article 1).

Article 5 of the Procedural Regulation provides further details. It defines the terms “persons covered by the provisions of this Law” as follows:

1. Non-Muslim [UAE] citizens.
2. A foreigner who holds the nationality of a country that does not primarily apply the rules of Islamic Sharia in matters of personal status as determined by the Instruction Guide issued by the Chairman of the [Judicial] Department […] (emphasis added).

The wording of article 5(2) is somewhat confusing, as it can be interpreted in two manners:

(i) if read a contrario, the provision would mean that foreigners, irrespective to their religion (including non-Muslims), would not be subject to the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation if they hold the nationality of a country that does “primarily apply the rules of Islamic Sharia in matters of personal status”. As a result, family relationships of Christian Algerian or Moroccan, for example, would not be governed by the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation. However, this interpretation seems to be in opposition with the very purpose of adopting the Law, which, in its own terms, applies to non-Muslim UAE citizens.

(ii) Alternatively, the word “foreigner” here could be understood to mean “Muslim foreigners”, but only those who hold the “the nationality of a country that does not primarily apply the rules of Islamic Sharia in matters of personal status”. As a result, the family relationships of Muslim Canadian, French, German or Turkish (whether Tunisian would be included here is unclear) would be governed by the Law.

The latter interpretation seems to be prevalent.[11] In addition, the Abu Dhabi Judicial Department (ADJD)’s official website (under section “Marriage”) presents even a broader scope since it explains that “civil marriage” is open to “anyone, regardless of their religion” including “Muslims” “as long as they are not UAE citizens”.

iii. The situation becomes more complicated when the parties have multiple nationalities especially when, as in the reported decision, one is from of a predominantly Muslim country and the other from a non-Muslim country. Here, article 5 of the Procedural Regulation provides useful clarifications. According to paragraph 2 in fine, the nationality to be taken into account in such situation is the one used by the parties according to their [status] of residence in the UAE. If interpreted literally, family law relationships of foreign Muslims who, in addition to their nationality of a non-Muslim country, also hold a nationality of a country whose family law is primarily based on Islamic Sharia (as in the reported decision) would be governed by the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation if, according to their status of residence, they use the nationality of their non-Muslim country nationality.

iv. In the case commented here, the parties have dual nationality (French/Lebanese, Mexican/Egyptian). Although the parties are identified as “Muslim”, they appear to have used the nationality of their non-Muslim countries.[12] Accordingly, contrary to the ADSC’s decision, it can be said that the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation were applicable in this case.

2. In addition to the religion of the parties, the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation determine other situations in which the Law applies.

i. These include, with respect to the effect of the marriage and its dissolution, the case where “the marriage is concluded is accordance with” the Law and its provisions (Article 3 of the 2021 Abu Dhabi Civil Marriage Law;[13] Article 5(4) of the Procedural Regulation).[14] The application of this rule does not seem to be dependent on the religion of the parties concerned. Consequently, since the marriage in casu was concluded pursuant to the provisions of the 2021 Abu Dhabi Civil Marriage Law,[15] its dissolution should logically be governed by the provisions of the same Law.

ii. However, it must be acknowledged that such a conclusion is not entirely self-evident. The confusion stems from the ADJD’s official website (under section “Divorce”) which states as a matter of principle that, normally, “anyone who obtained a Civil Marriage through the ADCFC” is entitled to apply for divorce in application of the 2021 Abu Dhabi Civil Marriage Law. However, the same website indicates that “[f]or applicants holding citizenship of a country member of the Arab League countries [sic], an official document proving the religion of the party may be required” when they apply for divorce” (emphasis added).[16] Although the ADSC made no reference to the Arab citizenship of the parties in its decision, it appears that it adheres to the idea of dissociation between the conclusion and the dissolution of marriage in dispute involving Muslims. In any case, one can regret that the ASDC missed the opportunity to examine the rule on dual nationality under article 5(2).

Concluding Remarks   

1. To deny the jurisdiction of the ADCFC, the ASDC relied on article 3 of the Procedural Regulation, which the Court quoted as follows: “The [ADCFC] is competent to hear civil family matters for foreign non-Muslims in relation to civil marriage, divorce and its effects (emphasis added).” The problem, however, is that the ADSC conveniently omitted key words that significantly altered the meaning of the provision.

The provision, properly quoted, reads as follows: “The [ADCFC] is competent to hear civil family matters for foreigners or non-Muslim citizens in relation to civil marriage, divorce and its effects (emphasis added).” In other words, article 3 does not limit the scope of application of the Law and its Regulation exclusively to “foreign non-Muslims” as outlined above.

2. Moreover, it is quite surprising that the ADSC also referred to Article 1 of the 2022 Federal Civil Personal Status in support of its conclusions, i.e. that the taking of jurisdiction by the ADFCF “violated the law”. This is because it is accepted that the 2022 Federal Civil Personal Status does not apply to Abu Dhabi.[17] In addition, some important differences exist between the two laws such as age of marriage which fixed at 18 in the 2021 Abu Dhabi Civil Marriage Law (article 4(1)), but raised to 21 in the 2022 Federal Civil Personal Status (article 5(1)).[18] The combined (mis)application of 2021 Abu Dhabi Civil Marriage Law and the 2022 Federal Civil Personal Status appears opportunistic and reveals the ADSC’s intention to exclude contra legem foreign Muslims (or at least those who are binational of both a Muslim and Non-Muslim countries) from the scope of application of 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation.

[1] see on this blog, Lena-Maria Möller, “Abu Dhabi Introduces Personal Status for non-Muslim Foreigners, Shakes up Domestic and International Family Law”. See Also, idem, “One Year of Civil Family Law in the United Arab Emirates: A Preliminary Assessment”, 37 Arab Law Quarterly (2023) 1 ff. For a particularly critical view, see Sami Bostanji, “Le droit de statut personnel au service de l’économie de marché! Reflexoins autour de la Loi n°14 en date de 7 novembre 2021 relative au statut personnel des étrangers non-musulmans dans l’Emirat d’Abou Dhabi” in Mélanges offerts en l’honneur du Professeur Mohamed Kamel Charfeddine (CPU, 2023) 905 ff.

[2] Law No. 14/2021 of 7 November 2021 on the “Personal Status for Non-Muslims” as modified by the Law No. 15/2021 of 8 December 2021 which changed the Law’s title to “Law on Civil Marriage and its Effects” (hereafter “2021 Abu Dhabi Civil Marriage Law”) and its Procedural Regulation issued by the Resolution of the Chairman of the Judicial Department No. 8/2022 of 1 February 2022, hereafter the “2022 Procedural Regulation”

[3] Federal Legislative Decree No. 41/2022 of 3 October 2022 on “Civil Personal Status” (hereafter “2022 Federal Civil Personal Status”) and its Implementing Regulation issued by the Order of the Council of Ministers No. 1222 of 27 November 2023.

[4] See below IV(1)(i). On the difference between the 2021 Abu Dhabi Law Civil Marriage Law the 2022 Federal Civil Personal Status on this particular point, see below IV(1).

[5] Article 2 of the 2021 Abu Dhabi Law Civil Marriage Law.

[6] Article 16 of the 2021 Abu Dhabi Law Civil Marriage Law; article 4 of the 2022 Federal Civil Personal Status.

[7] The text of the decision is not clear on this point. Some comments online explain that the marriage was concluded pursuant to 2021 Abu Dhabi Civil Marriage Law.

[8] The text of the decision particularly mentions the presence and consent of Y’s matrimonial guardian (wali), which is a necessary requirement for the validity of marriage between Muslims, but not a requirement under the 2021 Abu Dhabi Civil Marriage Law.

[9] The ADCFC, which was established specifically to deal with family law matters falling under the purview of the 2021 Abu Dhabi Civil Marriage Law, holds subject-matter jurisdiction in this regard.

[10] cf. Möller, “Abu Dhabi Introduces Personal Status for non-Muslim Foreigners” op. cit.

[11] For an affirmative view, see Möller, “One Year of Civil Family Law in the United Arab Emirates”, op. cit., 7.

[12] Some comments online explain that the marriage was concluded using foreign passports with no-Arabic names and no indication of the parties’ religion.

[13] On the problems of interpretation of this provision, see Möller, “One Year of Civil Family Law in the United Arab Emirates”, op. cit., 7.

[14] The Procedural Regulation further expands the scope of application of the Civil Marriage Law to cover cases where “the marriage was concluded abroad in a country whose family law is not primarily based on Islamic Sharia as determined by Abu Dhabi authorities” (Article 5(3)) and in any other case determined by the Chairman of the Judicial Department and about which an order is issued (Article 5(5)).

[15] See supra n (7).

[16] However, this rule appears to be devoid of any legal basis.

[17] Möller, “One Year of Civil Family Law in the United Arab Emirates”, op. cit., 2.

[18] For a comparision, see Möller, “One Year of Civil Family Law in the United Arab Emirates”, op. cit., 13-15.

The following case note has been kindly provided by Dr. Samuel Vuattoux-Bock, LL.M. (Kiel), University of Freiburg (Germany).

On May 7, 2024, Advocate General Jean Richard de la Tour delivered his opinion in the case C-4/23, Mirin, concerning the recognition in one Member State of a change of gender obtained in another Member State by a citizen of both States. In his opinion, Advocate General de la Tour states that the refusal of such a recognition would violate the right to move and reside freely within the Union (Art. 21 TFEU, Art. 45 EU Charter of Fundamental Rights) and the right of respect for private and family life (Art. 7 EU Charter of Fundamental Rights).

The underlying case is based on the following facts: a Romanian citizen was registered as female at birth in Romania. After moving with his family to the United Kingdom and acquiring British citizenship, he went through the (medically oriented) gender transition process under English law and finally obtained in 2020 a “Gender Recognition Certificate” under the Gender Recognition Act 2004, confirming his transition from female to male and the corresponding change of his forename. As the applicant retained his Romanian nationality, he requested the competent Romanian authorities (Cluj Civil Status Service) to record the change on his birth certificate, as provided for by Romanian law (Art. 43 of Law No. 119/1996 on Civil Status Documents). As the competent authority refused to recognize the change of name and gender (as well as the Romanian personal numerical code based on gender) obtained in the United Kingdom, the applicant filed an action before the Court of First Instance, Sector 6, Bucharest. The court referred the case to the CJEU for a preliminary ruling on the compatibility with European law (Art. 21 TFEU, Art. 1, 20, 21, 45 of the Charter of Fundamental Rights) of such a refusal based on Romanian law. In particular, the focus is on the Cluj Civil Status Office’s demand that the plaintiff initiates a new judicial procedure for the change of gender in Romania. The plaintiff sees in this request the risk of a contrary outcome to the British decision, as the European Court of Human Rights ruled that the Romanian procedure lacks clarity and predictability (ECHR, X. and Y. v. Romania). In addition, the Romanian court asked whether Brexit had any impact on the case (the UK proceedings were initiated before Brexit and concluded during the transition period).

Advocate General de la Tour gave his opinion on these two questions. Regarding the possible consequences of Brexit, de la Tour drew two sets of conclusions from the fact that the applicant still holds Romanian nationality. First, an EU citizen can rely on the right to move freely within the European Union with an identity document issued by his or her Member State of origin (a fortiori after Brexit). Second, the United Kingdom was still a Member State when the applicant exercised his freedom of movement and residence. As the change of gender and first name was acquired, the United Kingdom was also still a Member State. EU law is therefore still applicable as the claimant seeks to enforce in one Member State the consequence of a change lawfully made in another (now former) Member State.

On the question of the recognition of a change of first name and gender made in another Member State, Advocate General de la Tour argues that these issues should be treated differently. The fact that the first name may be sociologically associated with a different sex from the one registered should not be taken into account as a preliminary consideration for recognition (no. 61). He therefore answers the two questions separately. Already at this point, de la Tour specifies that the relevant underpinning logic for this type of case should not be the classical recognition rules of private international law, but rather the implementation and effectiveness of the freedom of movement and residence of EU citizens (nos. 53-55).

With regard to the change of the first name, de la Tour states (with reference to the Bogendorff case) that the refusal to recognize the change of the first name legally acquired in another Member State would constitute a violation of the freedoms of Art. 21 TFEU (no. 58). Since the Romanian Government does not give any reason why recognition should not be granted, there should be no obstacle to automatic recognition. The Advocate General considers that the scope of such recognition should not be limited to birth certificates but should be extended to all entries in a civil register, since a change of first name, unlike a change of surname, does not have the same consequences for other family members (nos. 63-64).

With regard to gender change, Advocate General de la Tour argues for an analogy with the Court’s case-law on the automatic recognition of name changes, in particular the Freitag decision. Gender, like the name, is an essential element of the personality and therefore protected by Art. 7 of the Charter of Fundamental Rights and Art. 8 ECHR. The jurisprudence on names (in particular Grunkin and Paul) shows that the fact that a Member State does not have its own procedure for such changes (according to de la Tour, this concerns only 2 Member States for gender changes) does not constitute an obstacle to the recognition of a change lawfully made in another Member State (nos. 73-74). Consequently, de la Tour sees the refusal of recognition as a violation of the freedoms of Art. 21 TFEU, because the existence of a national procedure is not sufficient for such a refusal (no. 81). Furthermore, the Romanian procedure cannot be considered compatible with EU law, as the judgment of the European Court of Human Rights X. and Y. v. Romania shows that it makes the implementation of the freedoms of Art. 21 TFEU impossible or excessively difficult (No. 80). Nevertheless, there is nothing to prevent Member States from introducing measures to exclude the risk of fraudulent circumvention of national rules, for example by making the existence of a close connection with the other Member State (e.g. nationality or residence) a condition (nos. 75-78).

Unlike the change of first name, the change of gender affects other aspects of personal status and may have consequences for other members of the family (e.g. the gender of the parent on a child’s birth certificate before the transition) or even for the exercise of other rights based on gender differentiation (e.g. marriage in States that do not recognize same-sex unions, health care, retirement, sports competition). Imposing rules on the Member States in these areas (in particular same-sex marriage) would not be within the competence of the Union (no. 94), so Advocate General de la Tour proposes a limitation to the effect of recognition in the Member State of origin. If the change of gender would have an effect on other documents, the recognition should only have an effect on the person’s birth certificate and the documents derived from it which are used for the movement of the person within the Union, such as identity cards or passports. The Advocate General himself points out that this solution would lead to unsatisfactory consequences in the event of the return of the person concerned to his or her State of origin (no. 96), but considers that the solution leads to a “fair balance” between the public interest of the Member States and the rights of the transgender person.

In conclusion, Advocate General de la Tour considers that the refusal to recognize in one Member State a change of first name and gender legally obtained in another Member State violates the freedoms of Art. 21 TFEU. The existence of an own national procedure could not justify the refusal. Drawing an analogy with the Court’s case-law on change of name, the Advocate General recommends that the change of first name should have full effect in the Member State of origin, while the change of gender should be limited to birth certificates and derived documents used for travel (identity card, passport).

Although the proposed solution may not be entirely satisfactory for the persons concerned, as it could still cause difficulties in the Member State of origin, the recognition in one Member State of a change of first name and sex made in another Member State should bring greater security and would underline the mutual trust between Member States within the Union, as opposed to third countries, as demonstrated by the recent decision of the Swiss Federal Tribunal concerning the removal of gender markers under German law

On Tuesday, May 14, 2024, the Hamburg Max Planck Institute will host its 44th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CEST). Roxana Banu (University of Oxford) will speak, in English, about the topic

Constructing Imperial Authority through British Imperial Constitutional Law and Private International Law

Historians of the British Empire have long underscored the significance of constitutionalism and of legal pluralism in crafting and sustaining imperial authority. Constitutional law scholars, though to a lesser extent, have also been preoccupied with tracing the imperial history of constitutionalism in the colonies and the metropole. Legal historians and constitutional law scholars have offered us a fascinating array of perspectives on the way in which British imperial constitutional law promised both liberty and control throughout the empire and experimented with constitutional autonomy for the white settler colonies while tightening control for the rest of the empire. But this melange of unequally distributed patterns of authority and the constant recalibration of autonomy and control for different parts of the empire depended on the principles and doctrines of yet another field, which has remained remarkably silent on its imperial past, namely private international law. Unlike in constitutional law and even public international law, there is virtually no account of the colonial history of private international law. In this paper I start to trace that history with an analysis of the way in which key doctrinal principles of private international law, such as comity, territoriality, and the public policy exception were referenced either as alternatives to, or counterparts of, key imperial constitutional law principles of representative government, territoriality, and repugnancy. Imperial actors would appeal to one or another image of imperial authority constructed by either imperial constitutional law or private international law to gain more autonomy or to tighten imperial control. Far from being a relic of the past, the significance of this history can be traced, I argue, in contemporary cases on comity, forum non conveniens, and territoriality.

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

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

Georgia Antonopoulou (University of Birmingham)

From 24 to 26 September 2024, the International Writing Workshop ‘Reimagining Access to Justice: An Equitable Research Partnership with Southeast Asia’ will take place in Jakarta, Indonesia. The writing workshop will focus on the theme of access to civil justice in Southeast Asia and is funded by the British Academy’s International Writing Workshops Programme. It will be organised under three sub-themes: (1) Barriers to Access to Justice, (2) Digital Technologies in Civil Justice, and (3) Access to Justice and Sustainable Development. Senior scholars with specialisation in the relevant workshop themes and editorial experience with leading journals will offer detailed, hands-on feedback on participants’ draft articles and give presentations on effective academic writing and publishing practices. The workshops will cover reasonable costs of travel, accommodation, and meals for the selected participants.

Applications: We invite submissions from researchers and academics, especially at their early stages of their careers, from Indonesia, the Philippines, Malaysia, Cambodia, and Vietnam. Applications should be in English and emailed to the PI Dr G. Antonopoulou, Birmingham Law School, the University of Birmingham (g.antonopoulou@bham.ac.uk). They should include:

• an abstract (max. 200 words);
• a draft article (max. 5,000 words);
• a Curriculum Vitae (max. 2 pages long); and
• a brief statement of motivation (max. 600 words).

The deadline for submission is the 15 July 2024.

During the writing workshop, the selected participants will give a presentation of their articles and then receive feedback from senior scholars with editorial experience to improve and publish their articles. In June 2025, a follow-up writing workshop will take place to monitor improvement. During the second writing workshop, training on writing funding applications will also be provided. The Call for Papers is also available here.

We particularly welcome applications from underrepresented groups. The University of Birmingham’s Equality, Diversity, and Inclusion policy can be found here. While attendance in person is required for the first writing workshop, the option of online attendance can be offered upon request during the second workshop. Special consideration will be given to female participants vested with childcare and/or other domestic responsibilities. Interested applicants are encouraged to include in their statement of motivation any necessary reasonable adjustments to facilitate their meaningful participation in the workshops.

We are looking forward to receiving your applications!