Conflictoflaws

Introduction

The New Zealand Court of Appeal has allowed an appeal against a permanent anti-suit and anti-enforcement injunction in relation to a default judgment from Kentucky, which the plaintiff alleged had been obtained by fraud: Wikeley v Kea Investments Ltd [2024] NZCA 609. The Court upheld the findings of fraud. It also did not rule out the possibility of an injunction being an appropriate remedy in the future. However, the Court concluded that an injunction could only be granted as a step of last resort, which required the plaintiff to pursue its right of appeal against the Kentucky judgment.

The background to the case is set out in a previous post on this blog (see also here). In summary, the case involved allegations of “a massive worldwide fraud” perpetrated by the defendants — a New Zealand company (Wikeley Family Trustee Ltd), an Australian resident with a long business history in New Zealand (Mr Kenneth Wikeley), and a New Zealand citizen (Mr Eric Watson) — against the plaintiff, Kea Investments Ltd (Kea), a British Virgin Islands company owned by a New Zealand businessman. Kea alleged that the US default judgment obtained by WFTL was based on fabricated claims intended to defraud Kea. Kea claimed tortious conspiracy and sought a world-wide anti-enforcement injunction, which was granted by the High Court, first on an interim and then on a permanent basis. Wikeley, the sole director and shareholder of WFTL, appealed to the Court of Appeal.

The Court of Appeal allowed the appeal against the grant of the injunction. At the same time, it upheld the High Court’s declarations that the Kentucky default judgment was obtained by fraud and that it was not entitled to recognition or enforcement in New Zealand. It also upheld the High Court’s damages award (for legal costs incurred in overseas proceedings in defence of the tortious conspiracy).

The judgment

There are two points from the judgment that I want to focus on here: the Court’s emphasis on comity, and the relevance of fraud as a basis for an anti-enforcement injunction.

Comity

An entire section of the judgment is dedicated to the concept of comity, which the Court relied on as a guiding principle. The Court said that it was necessary “to confront, head on, the appropriateness, in comity terms, of an order which … in substance, is addressed to United States courts and which could, at least in theory, provoke countermeasures, with the result that no legal system will be able to administer justice” (at [167]). Drawing on work by Professor Andrew Dickinson, the Court confirmed that comity was not simply “a matter of judicial collegiality” (at [164]). In the international system, comity was like “the mortar which cements together a brick house” (citing Judge Wilkey in Laker Airways Ltd v Sabena Belgian World Airlines 731 F 2d 909 (DC Cir 1984) at 937).

Anti-suit and anti-enforcement injunctions had the effect of interfering with comity, because they interfered with “the interests of a foreign legal system in administering justice within its own territory” (at [164]). Drawing again on Dickinson’s work, the Court said that anti-suit/enforcement injunctions “push[ed] at the boundaries of … the global system of justice” (at [166]). The Court disagreed (at [189]) with the High Court’s observation that the injunction “may even be seen as consistent with the requirements of comity”, insofar as the injunction had the effect of restraining a New Zealand company from abusing the process of the Kentucky court to perpetuate a fraud. The United States courts were “unlikely to look for or need the protection of New Zealand courts” and were “well capable of identifying fraud and ensuring no reward flows from it” (at [189]).

Extreme caution was necessary, therefore, before exercising the power to grant an anti-suit/enforcement injunction (at [176]). Comity required “the court to recognise that, in deciding questions of weight to be attached to different factors, different judges operating under different legal systems with different legal policies may legitimately arrive at different answers” (at [177]). Anti-enforcement injunctions were especially rare and were “characterised by particularly careful assessments of whether the relief sought is truly necessary and consistent with comity” (at [180]).

Because of these concerns, an anti-enforcement injunction should be “a measure of last resort” (referring again to Dickinson, at [185]). This meant that the Court in this case had to “at least await the outcome of the appeal process [in Kentucky] before considering whether to issue an anti-suit or anti-enforcement judgment” (at [186]).

 Fraud as a distinct category?

In the anti-enforcement context, some scholars have treated fraud as a distinct category of case that may justify the grant of an injunction: see, most recently, Hannah L Buxbaum and Ralf Michaels “Anti-enforcement injunctions” [2024] 56 NYU Journal of International Law and Politics 101 at 110-111, citing Ellerman Lines Ltd v Read [1928] 2 KB 144 (CA) in support. The Queensland Supreme Court also relied on Ellerman Lines when granting relief in aid of the New Zealand interim orders (Kea Investments Ltd v Wikeley (No 2) [2023] QSC 215 at [178]–[188], with the Queensland Court of Appeal upholding the reasoning in Wikeley v Kea Investments Ltd [2024] QSC 201).

The Court of Appeal’s reasoning casts doubt on the existence of fraud as a distinct category. In [176], the Court adopted Dickinson’s “convenient collection” of the following four categories that may justify anti-suit relief (see fn 157): that “the foreign court has acted or is likely to act in excess of its jurisdiction under international law, in violation of the requirements of natural justice, otherwise in a manner manifestly incompatible with New Zealand’s fundamental policies, or that its proceedings are likely significantly and irreversibly to interfere with the administration of justice in New Zealand”.

On the facts of the present  case, the Court thought that the category of natural justice was most relevant. The Court considered it “almost inevitable” that, had the New Zealand court been in the Kentucky court’s position, it would have set aside the default judgment, on the basis that the proceeding had not been drawn to Kea’s attention and sufficiently substantial grounds of defence had been made out (at [182]). The Court said that, in these circumstances, “[a]t least if the judgment were final, with all appeal rights exhausted and against a New Zealand entity … a New Zealand court might well consider that, despite its respect for the United States courts, a sufficiently fundamental policy issue was engaged – one ultimately based in principles of natural justice and fair hearing rights – that an anti-suit or anti-enforcement order should issue” (at [183], emphasis added).

What is more, the Court distinguished the case from Ellerman Lines Ltd v Read [1928] 2 KB 144 (CA) on the basis “there was no contractual jurisdiction clause that the New Zealand Court was seeking to enforce” (at [187]). It expressed “caution” about the proposition that the pursuit of the Kentucky proceedings should be injuncted because the proceeding was fraudulent and therefore “inherently unconscionable”, referring to criticism by Dickinson that the language of unconscionability is “a vestige of an earlier monotheistic society [which] no longer performs any useful role and obscures the real reasons for granting injunctions” (at [190]). A conclusion by the New Zealand court that the Kentucky proceeding was vexatious or oppressive had “the capacity to look patronising from the perspective of the United States – something which in comity terms should be avoided” (at [191]). The issue of fraud could be addressed by the United States court, “with all of the advanced legislative and common law apparatus available to it to do justice between the parties” (at [191]).

On the other hand, the Court clarified that it was not suggesting that “it would never be appropriate for a New Zealand court to issue a worldwide anti-enforcement order” (at [188], emphasis in original).

Comments

The Court’s detailed engagement with comity is heartening for anyone who is concerned about the destabilising effects of anti-suit/enforcement injunctions on the international system. Yet the reasoning is also underpinned by tension.

First, the Court seemed to eschew fraud as a distinct basis for the award of an anti-enforcement injunction, while accepting the appropriateness of determining whether the foreign proceeding was fraudulent (and granting declaratory relief to that effect). If the Court is willing to entertain a claim that the pursuit of a foreign proceeding forms part of a tortious conspiracy, why should this not provide a potential basis for an injunction (as opposed to, say, natural justice)?

This potential contradiction had flow-on effects for the scope of the Court’s orders, because the Court refused to discharge the appointment of interim liquidators of WFTL. Interim liquidators had been appointed after attempts by the defendant to assign the benefit of the Kentucky default judgment from WFTL to a United States entity, to “insulate” WFTL from “any New Zealand judgment” (at [43]). The Court considered that the appointment of interim liquidators was “for valid domestic reasons by ensuring assets available to satisfy any New Zealand judgment remained under the control of New Zealand parties” and that it was “unaffected by discharge of the anti-suit and anti-enforcement injunctions” (at [196], [211](e)). The Court acknowledged that the interim liquidators could face pressure to enforce the Kentucky default judgment “in order to meet the New Zealand judgment debt and costs awards against WFTL – this despite the judgments of the High Court and this Court finding claims under the Coal Agreement to be fraudulent and made pursuant to conspiracy” (at [201]). The Court did not “at this stage express any view about how the principles of international comity might respond to that particular scenario” (at [201]). Why is it a “valid domestic reason” to protect the satisfaction of a New Zealand judgment for damages that were incurred in defending the foreign fraudulent proceeding, but it is not a “valid domestic reason” to prevent enforcement of a judgment that is the result of such a fraudulent proceeding?

Second, while the injunction had the potential to interfere with comity, it was also, arguably, a tool for dialogue. The Court of Appeal was clear that the injunction could not be understood as “an act of comity”; and it thought it was unlikely that the Kentucky court would want or would need the help of the New Zealand Court. At the same time, it would be strange if the Kentucky court did not take account of the finding of fraud, or the concerns about natural justice. In this way, the Court of Appeal’s decision to treat the injunction as a last resort, and to require the plaintiff to pursue an appeal in Kentucky, may be seen as part of an unfolding dialogue between the courts that would not have happened – and would not have been possible – without the potential of anti-enforcement relief. At the very least, the decision will serve as a pointer to the Kentucky court that the default judgment has cross-border implications and gives rise to a risk of conflicting orders.

Third, the Court seemed to characterise the plaintiff’s decision to bring proceedings in New Zealand as a strategic move, noting that “WFTL’s New Zealand registration and its status as a trustee of a New Zealand trust provided a jurisdictional leg up with which to challenge enforcement [of the Kentucky default judgment]” (at [194]). This characterisation sits uncomfortably with the Court’s acceptance that the Kentucky proceeding – including the defendants’ choice of Kentucky as a forum – was itself based on fraudulent fabrications. It is one thing to conclude that the plaintiffs should have persevered in Kentucky by pursuing their appeal there, on the basis that a foreign court must be left to control its own proceedings. It is another to say that the plaintiff, by turning to the New Zealand court for help, was using WFTL’s registration in New Zealand as a “jurisdictional leg up” (cf also the Court’s discussion in [183] that there would be a potential case for an anti-enforcement injunction if the default judgment was in breach of a New Zealand entity’s rights to natural justice – that is, if the plaintiff was a New Zealand entity). Where a New Zealand entity is used as a vehicle for fraud, the New Zealand court may have a legitimate interest – or even a responsibility – to stop the fraud, albeit that an injunction is a measure of last resort.

Fourth, the Court of Appeal distinguished Ellerman Lines on the basis that the latter case involved an English jurisdiction clause. This reasoning suggests that anti-suit/enforcement relief may be an appropriate response to foreign proceedings brought in breach of a New Zealand jurisdiction clause, but that it may not be an appropriate response to foreign fraudulent proceedings between strangers. Why is it worse to suffer a breach of a jurisdiction clause, than to be dragged into a random foreign court on the basis of a fraudulent claim (including a forged jurisdiction clause in favour of the foreign court)? The Court did not address this question. The Court also did not address – but noted, in a different part of the judgment – the question whether a breach of a jurisdiction clause should justify injunctive relief as a matter of course (see footnote 158). Clearly, the Court did not think that this question was relevant to its decision to distinguish Ellerman Lines, but a more detailed discussion would have been helpful, to ensure the coherent development of the court’s power to grant anti-suit/enforcement injunctions.

On 2 December 2024, at 6 pm CET, a free webinar will take place in preparation of the 2025 edition of the EAPIL Winter School on Multistate Torts, which will be held on-site in Como between 10 and 15 February 2025 (see here for the full program and further details).

The webinar will give a glimpse of what the Winter School will be about and will briefly present some of its hot topics, such as online defamation, climate change litigation, artificial intelligence and crypto values.

The speakers are some of those who will be lecturing at the Winter School, namely Javier Carrascosa González (University of Murcia), Anatol Dutta (Ludwig Maximilian University of Munich), Thomas Kadner Graziano (University of Geneva), Tobias Lutzi (University of Augsburg), Satu Heikkilä (Administrative Law Judge), Silvia Marino (University of Insubria), Nadia Rusinova (The Hague University, attorney at law), Geert van Calster (KU Leuven) and Anna Wysocka-Bar (Jagiellonian University).

The webinar will also offer an opportunity to provide information about the EAPIL Winter School.

Join the free seminar to discover what awaits you during the Winter School week, and…if you want to know more, enrol and come to Como in February!

Those interested in attending the webinar shall write at eapilws@gmail.com in order to receive the Teams link.

As foreign law assumes an increasingly significant role in judicial practice, the Swiss Institute of Comparative Law is pleased to announce a Workshop on Providing Information on Foreign Law to Courts, which will take place in Lausanne on November 26.

Renowned experts, both individuals and institutions, will delve into practical challenges and share insights, comparing practices from various countries, including England, France, Germany, Poland, Switzerland and USA.

Presentations will be conducted in English, in German or in French.

For further information, please contact: marie-laure.lauria@isdc-dfjp.unil.ch

The program for the workshop is available below or can be accessed here.

INDIVIDUAL EXPERTS

9.30-11.00

Chair: Dr. Lukas Heckendorn, Deputy Director, Swiss Institute of Comparative Law

• Experiences in Poland and Germany compared

Prof. Arkadiusz Wudarski, European University Viadrina Frankfurt

• A Common Law Experience

Prof. Franz Werro, University of Fribourg and Georgetown University

• French Experiences

Prof. Gustavo Cerqueira, Université Côte d’Azur

Discussion

11.00-11.30: Coffee break

INSTITUTIONAL EXPERTS

11.30-12.30

Chair: Dr. Ilaria Pretelli, Legal Adviser, Swiss Institute of Comparative Law

• The German Approach: The Max Planck Guidelines

Jan Peter Schmidt, Priv.-Doz., Max Planck Institute for Comparative and International Private Law, Hamburg

• The Swiss Approach: experience of SICL

Lukas Heckendorn Urscheler, Deputy Director, Swiss Institute of Comparative Law

Discussion

12.30-13-30 : Lunch

BARCAMP

13.30-16.00

Moderator: Prof. Nadjma Yassari, Director, Swiss Institute of Comparative Law

A Barcamp session is an open and interactive format that encourages collaboration and idea-sharing. Since all participants join every session, the process is highly collaborative, ensuring focused, inclusive, and enriching discussions for everyone involved.

• Proposing Topics: Any participant can suggest a topic, which will be guided by a moderator.
• Moderated Discussions: A designated moderator ensures the session stays focused and that everyone has the chance to contribute.
• Flexible Structure: Sessions can take the form of a short presentation, group discussion, or collaborative brainstorming.
• Open Exchange: Everyone is encouraged to actively contribute their ideas, perspectives, and questions.
• Shared Learning: The goal is to exchange knowledge, explore new approaches, and learn from each other.

16.00: closure of event

Issue 4 of Lloyd’s Maritime and Commercial Law Quarterly for 2024 was just published. It contains the following articles, case notes, and book review:

Katherine Reece-Thomas,  “State Immunity and Sunken Treasure: Finders will not Always be Keepers”

Anthony Kennedy, “Unanswered Questions”

Michael F Sturley†, “The Centenary of the Hague Rules: Celebrating a Century of International Conventions Overmining the Carriage of Goods by Sea”

2024 marks the centenary of the Hague Rules, which still play a central role in allocating the risk of cargo loss or damage. To celebrate that milestone, it is valuable to review the history, beginning with the pre-existing risk allocation. When maritime nations applied widely accepted principles differently, efforts began in the late nineteenth century to achieve uniformity by international agreement. Those efforts failed until domestic legislation exacerbated the problem and created greater pressure for a solution. Even after agreement was reached in 1924, however, another fourteen years passed before the Convention was widely in force. Since then, international uniformity has been challenged in multiple ways, and the story continues to this day.

Marcus Teo, “Foreign Law as Fact”

In English law, “foreign law”, as applied under choice-of-law rules, is a question of fact. This “fact doctrine”, however, faces scepticism for three reasons: it remains unclear whether foreign law is truly treated as a question of fact, why it is so treated, and what the precise fact-in-issue is. This article addresses these concerns. It demonstrates that, today, foreign law is treated like any other question of fact. It then argues that foreign law should be classified as a question of fact, and should refer to foreign legal rulings, because this facilitates the accurate prediction of foreign decisions.

Adrian Briggs, “Book Review – Dicey+100. Albert Venn Dicey: A Centennial Commemoration”

The University of Luxembourg is proud to host a special event to present the newly released book, European Account Preservation Order – A Multi-jurisdictional Guide with Commentary, published by Bruylant/Larcier.

Co-edited by leading experts Dr. Nicolas Kyriakides (University of Nicosia), Dr. Heikki A. Huhtamäki (Huhtamäki Brothers Attorneys Ltd), and Dr. Nicholas Mouttotos (University of Bremen), this comprehensive guide offers a detailed analysis of Regulation (EU) No 655/2014, with contributions from 26 Member States.

The first panel will explore practical challenges in the use of EAPO in Luxembourg and France, moderated by Dr. Elena Alina On?anu (University of Tilburg) and featuring insights from Dr. Laurent Heisten (Moyse & Associates Law Firm, Luxembourg), Alexandra Thépaut (Étude Calvo & Associés, Luxembourg) and Lionel Decotte (SAS Huissiers Réunis, France). The second panel will examine future developments and reforms, moderated by Dr. Nicholas Mouttotos (University of Bremen), with contributions from Prof. Gilles Cuniberti (University of Luxembourg) Dr. Carlos Santaló Goris (University of Luxembourg) and Dr. Nicolas Kyriakides (University of Nicosia).

The event will take place on December 3rd, 2024 at Room A401, University of Luxembourg – Weicker Building, from 11:00 to 13:15 CET.

See more details and registration.

On Tuesday, December 3, 2024, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 2:45 p.m. – 4:15 p.m. (CET). Professor Stéphanie Francq (UCLouvain) will speak, in English, about the topic

“Overriding Mandatory Rules in Family Matters and Personal Status, Are Belgians the Only Ones?”

Are we really witnessing the occurrence of overriding mandatory rules in family matters and personal status? A new phenomenon seems indeed to surface in this area with examples of substantive rules or values, announced by the lawmaker, together with a clear intention to apply in identified international situations. Belgian law offers a series of examples. But are Belgian the only ones using this method? German law has also offered a better known and rather unfortunate illustration with the Act to prevent child marriage. These rules, their upsides and downsides, deserve close consideration. First and obviously for technical reasons: are we indeed facing overriding mandatory rules, similar to those concerning business transactions? Or is this some new form of public policy exception? Are these rules carefully designed legal objects or rather clumsy attempts to secure the application of the lex fori? Beyond the technicalities, the presentation will tend to investigate potential reasons behind this new phenomenon.

It turns out that these rules might have something to tell us about the current state of conflict of laws, its politics and its theories, and its need to look beyond its own borders.

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

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

Private International Law and Sustainable Development in Asia

Date: 23 November 2024
Venue: Wuhan University School of Law, Conference Hall 120

Zoom link: Meeting ID: 846 5342 1671 Passcode: 206716

22 November 2024

06:00 PM: Conference Dinner

23 November 2024

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

09:00 – 09:05 AM: Opening Remarks

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

09:05 – 9.15 AM: Welcome Remarks

• HUANG Jin, President, China Society of Private International Law

9:15- 9:35 AM: Keynote Address (Private International Law and Sustainable Development)

• Ralf Michaels, Director, Max Planck Institute for Comparative and International Private Law
• Veronica Ruiz Abou-Nigm, Professor, University of Edinburgh
• Hans van Loon, former Secretary General, HCCH

9:35–9:50 AM: Conference Photo and Coffee Break

9:50 – 10:50 AM: Panel 1: Family/Equality

• Chair: Ralf Michaels
• Panelists
  • CHEN, Rong-Chwan (National Taipei University)
    • Taiwan’s Path toward SDG 5 in Private International Law
  • JOLLY, Stellina; MALLA, Prakriti (South Asian University)
    • International Child Abduction Jurisprudence in India and Nepal: an Evaluation of Gender Consideration in the Attainment of SDG 5
• Discussant
  • NISHITANI, Yuko (Kyoto University)
  • GAN Yong (Wuhan University)
• Q & A

10:50 – 11:05 AM: Coffee Break

11:05-12:05 Panel 2: Migration

• Chair: Hans van Loon
• Panelists
  • NISHITANI, Yuko (Kyoto University)

• • • Migration and SDGs in Family Relationships

• • YANG, Zixuan (Max Planck Institute for Comparative and International Private Law)
    • Sustain the Legal Identity for Intra-Regional Circular Migrants in Asia: From Private International Law towards Openness, Inclusiveness and Equity in the Greater Bay Area
• Discussant
  • Verónica Ruiz Abou-Nigm
  • CHEN Rong-Chwan
• Q & A

12:05 – 01:15 PM: Lunch Break

01:15 – 02:45 PM: Panel 3: The Role of the State

• Chair: Ignacio de la Rasilla, HAN Depei Chair, Wuhan University
• Panelists:
  • MU, Ke (Ocean University of China)
    • State-owned Enterprises’ Role in Marching towards the Sustainable Development Goals
  • FAN, Zihao (Peking University)
    • Cities’ Roles in Transnational Access to Justice and the Sustainable Value therein: An Observation on Jurisdictional Rules of Mainland China
  • ZHOU, Jiabao (University of Amsterdam)
    • Private International Law as Foreign Relations Law? Reorienting Chinese Private International Law towards Sustainable Development
• Discussant:
  • Ralf Michaels
  • HE Qisheng (Peking University)
• Q & A

2:45 – 3:00 PM: Coffee Break

3:00-4:30 Panel 4: Environment/Climate Change

• Chair: Verónica Ruiz Abou-Nigm
• Panelists:
  • CHONG, Adeline; SCHACHERER, Stefanie (Singapore Management University)
    • Extra-territorial Liability and Enforcement: Finding Ways to Tackle Haze Pollution in Southeast Asia
  • BÙI, Thi Quynh Tran (Thuongmai University); NGUYEN, Thi Hong Trinh (Hue University)
    • Exploring the Potential for Climate Change Litigation in Vietnam: A Forward-Looking Assessment
  • REYES, Anselmo (International Judge of the Singapore International Commercial Court, Arbitrator)
    • The Impartial Judge, Climate Change and the Conflict of Laws
• Discussant:
  • Hans van Loon
  • XU Qingkun (Wuhan University)
• Q & A

4:30-5:35 Presentations: The International Framework

• Chair: TANG Zheng
• Panelists:
  • GOH ESCOLAR, Gérardine (HCCH)
    • Private International Law Frameworks for the Digital and Green Economies: Crucial Tools for the Realisation of the United Nations Sustainable Development Goals
  • ZHAO, Ning (HCCH)
    • Navigating Transnational Litigation in Asia: The HCCH’s Contribution to Achieving SDGs through Effective Legal Frameworks
  • ZHU, Lei (Wuhan University)
    • Regulating Global Anti-Competitive Conduct and the Role of Private International Law: Lessons from China
• Discussant:
  • TU Guangjian (Macao University)
• Q & A

5:35-5:40 Closing Remarks

06:00 PM: Conference Dinner

Join us online tomorrow for a free seminar on the CISG in Australia, delivered by Dr Benjamin Hayward.

Abstract

Australia adopted the United Nations Convention on Contracts for the International Sale of Goods (CISG) – a treaty intended to harmonise cross-border sale of goods law – in 1989. Australia gives the treaty local effect via a range of State, Territory, and Commonwealth Acts. A problem has arisen, however, with respect to the wording of that legislation. Some Australian courts consider that the treaty only applies, on a provision-by-provision basis, where it is inconsistent with local law. According to international understandings, however, the CISG is intended to displace local law to its subject-matter extent when it applies.

With reference to Australia’s statutory interpretation rules, and the legislative histories preceding the CISG’s adoption in Australia, this seminar identifies a parliamentary intention to apply the CISG in full in Australia. It therefore identifies that Australia intended to adopt the CISG in a manner consistent with its internationally understood effect. This seminar also examines the nature of Australia’s CISG cases to-date, and identifies how future courts can better engage with the treaty in order to realise its objectives of supporting international trade.

Presenter

Benjamin Hayward is an Associate Professor in the Department of Business Law at Monash University. He has published in Australia and internationally in private international law, international commercial arbitration, and the CISG. Ben currently teaches Australian contract law, consumer law and statutory interpretation (amongst other private law topics) at the Monash Business School.

Chair

Cara North is Special Counsel with Corrs Chambers Westgarth Melbourne, and Treasurer of AAPrIL. She practises in international litigation, arbitration and private international law. Cara has worked as a legal officer for the Hague Conference on Private International Law, and for five years as a consultant to the Permanent Bureau of the Hague Conference.

Details

Date and Time: Tuesday 19 November 2024, 5:00pm to 6:00pm (AEDT: GMT+11)*

* ACT, NSW, Tas and Vic; NZ, 7:00pm-8:00pm; SA, 4:30pm-5:30pm; Qld, 4:00pm-5:00pm; NT, 3:30pm-4:30pm; WA, 2:00pm-3:00pm

Online only: Zoom Link

Zoom ID: 879 8362 4800

RSVP: by email to reid.mortensen@usq.edu.au

Anyone is welcome to attend this seminar. There is no cost.

About the Australasian Association of Private International Law

The Australasian Association of Private International Law (AAPrIL) is a group of people committed to furthering the understanding of private international law in Australia, New Zealand and the Pacific region. To lean more, visit our website or follow us on LinkedIn.

The University of Geneva is organising the second edition of the Executive Training on Civil Aspects of International Child Protection (ICPT). For more information, click here.

The University of Geneva’s ICPT, offered by the Children’s Rights Academy, is designed to:

• Explore innovative approaches to uphold the fundamental rights of children in transnational situations
• Learn best practices for supporting unaccompanied minors and displaced children seeking asylum
• Collaborate with experts from various fields to create holistic and effective child protection strategies
• Understand the dynamics of how different organisations and stakeholders can work together to protect children

Programme of the 2nd Round 2024 – 2025:

Module 1: Children’s Individual Rights in Transnational Parental Relationships

28 November 2024, 14:15 – 18:15

Module 2: International and Comparative Family Law

19 December 2024, 14:15 – 18:15

Module 3: Vulnerable Migration

27 February 2025, 14:15 – 18:15

Module 4: Practice of Child Protection Stakeholders: Inter-agency Co-operation in Context

10 April 2025, 14:15 – 18:15

The Department ‘Law & Anthropology ’ of the Max Planck Institute for Social Anthropology in Halle, Germany, is offering positions in the Max Planck Research Group ‘Transformations in Private Law: Culture, Climate, and
Technology’ headed by Mareike Schmidt for two doctoral students with projects on Cultural Embeddedness of Private Law.

The full advertisement can be found here.

A new issue of ZEuP – Zeitschrift für Europäisches Privatrecht is now available and includes contributions on EU private law, comparative law and legal history, legal unification, private international law, and individual European private law regimes. The full table of content can be accessed here.

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

• Chancen und Risiken eines Virtual Registered Office (VRO)
  Stefanie Jung and Anne-Kathrin Haag on the virtualization of the registered office of a business: A virtualisation of the registered office and, possibly also the domestic business address would eliminate the need for a physical connection with the country of registration and thus save effort and costs relating to the establishment of a business. This article explores the opportunities as well as the risks of such a virtualisation. At the same time, the existing requirements for the registered office, the administrative office, the domestic business address, and the business premises will be reflected upon.
• Laloivit-elle? Erste Entwicklungen in der Rechtsprechung zum französischen Lieferkettengesetz
  Laura Nasse on the French Supply Chain Act: The French Supply Chain Act that entered into force on 27.3.2017 is a prime example for national and European legislation in the field of business and human rights. It has inspired the German Supply Chain Act and acted as a benchmark in negotiations on the European Corporate Sustainability Due Diligence Directive. Based on recent case law, this article analyses the impact of the French legislation in practice.
• ECJ on “Quasi-Anti-Suit Injunctions” – Old Wine in New Bottles? – Judgment of the European Court of Justice of 7 September 2023
  Madeleine Petersen Weiner comments on a decision by the ECJ on “Quasi-Anti-Suit Injunctions”.
• Konkretisierung des Orts des Schadenseintritts nach Art. 7 Nr. 2 Brüssel Ia-VO in den sogenannten „Dieselfällen“ – Urteil des EuGH (Neunte Kammer) vom 22.2.2024
  Marko Andjic discusses a decision by the ECJ on the interpretation of Article 7 of the Brussels Ibis regulation concerning the place where the harmful event occurred.

Written by Lena-Maria Möller,

College of Law, Qatar University

The recent introduction of a civil family law regime in the United Arab Emirates – the first of its kind in the region – has attracted considerable attention, both on this blog and beyond.[1] A key unresolved issue has been the law’s applicability in Abu Dhabi, particularly regarding access for Muslim foreigners to the emirate’s newly established Civil Family Court. Scholars and legal practitioners navigating this new framework have long observed a surprising discrepancy, if not an ideological tension, between the law’s drafters and those interpreting it, especially at the higher court level. Central to this divergence has been whether Abu Dhabi’s Law on Civil Marriage and Its Effects (Law No. 14/2021 of 7 November 2021, as subsequently amended) and its Procedural Regulation (Chairman Resolution No. 8/2022 of 1 February 2022) apply exclusively to non-Muslims or extend also to Muslim foreigners who are citizens of non-Muslim jurisdictions. A recent judgment by the Abu Dhabi Court of Cassation in late October affirmed jurisdiction over Muslim foreigners with dual French-Moroccan nationality, marking a potential shift in personal jurisdiction. This ruling may expand access to a legal framework devoid of religious underpinnings for many Muslim expatriates in the UAE.

The Legal Framework

The civil family law regime in the UAE comprises three main legislative components. With the exception of Abu Dhabi, which pioneered a separate non-religious legal framework in late 2021, the Federal Civil Personal Status Code (Law No. 41/2022 of 3 October 2022) governs matters of marriage, divorce, child custody, and inheritance exclusively for non-Muslim citizens and non-Muslim foreigners. The law’s scope is explicitly outlined in Article 1, which clearly differentiates based on religious affiliation rather than nationality.

The earlier local legislation in Abu Dhabi, Law No. 14/2021 of 7 November 2021, initially applied only to non-Muslim foreigners but was soon amended, by Law No. 15/2021 of 15 December 2021, to significantly broaden its scope. Most notably, the terms ‘foreigner’ and ‘non-Muslim foreigner’ were replaced by ‘persons covered by the provisions of this law,’ a concept further clarified in Article 5 of the Procedural Regulations. Under these provisions, the law applies to civil marriage, its effects, and all civil family matters for:

1. Non-Muslim UAE citizens, and
2. Foreign nationals from countries ‘that do not primarily apply Islamic Sharia in personal status matters,’ as determined by the Instruction Guide issued by the Chairman of the Abu Dhabi Judicial Department. For dual citizens, the nationality associated with their UAE residency prevails.

Additionally, the law also applies to marriages concluded in countries that do not primarily apply Islamic Sharia in personal status matters, as outlined in the Instruction Guide (which has yet to be issued), as well as to all marriages conducted under the provisions on civil marriage.

The latter two cases are particularly broad, potentially also covering Muslim citizens who married abroad, yet they are rarely cited by the courts. Judicial discussions tend to focus on paragraph 2 of Article 5, which addresses foreigners from specific non-Muslim jurisdictions. The situation is further complicated by the fact that Law No. 14/2021 also includes jurisdictional provisions and scope-of-application rules, which remain equally ambiguous.[2]

Article 1 of Law No. 14/2021 defines ‘persons covered by the law’ as ‘the foreigner or non-Muslim citizen, whether male or female.’ Unfortunately, the Arabic version of this definition is open to multiple interpretations. This ambiguity arises because the adjective ‘non-Muslim,’ placed after the word ‘citizen’ and set off by commas, could be read as referring either solely to citizens or to both foreigners and citizens. As a result, debates over the phrasing of this definition are a frequent element in pleadings before the Abu Dhabi Civil Family Court.

Moreover, in its amended form, Article 3 of Law No. 14/2021 stipulates that if a marriage has been concluded in accordance with this law, it shall apply with respect to the effects of the marriage and its dissolution. A narrow interpretation of this clause would deny jurisdiction whenever the parties did not marry before the Abu Dhabi Civil Family Court, even if they are non-Muslim foreigners married in a civil ceremony elsewhere. However, it seems clear that the drafters did not intend to exclude this core target group from the law’s jurisdiction. Similarly, it is difficult to imagine that jurisdiction would be automatically assumed in cases involving Arab Muslims – even GCC citizens – who married in a civil ceremony in Abu Dhabi, where the Civil Family Court currently allows civil marriages for all but Muslim citizens of the UAE.

The ambiguity of these clauses grants considerable discretion to the courts, and current case law on personal jurisdiction for Muslim foreigners does not yet indicate a consistent approach or prevailing interpretation. For this reason, the recent judgment by the Abu Dhabi Court of Cassation may indeed mark a turning point in the application of civil family law in Abu Dhabi.

Previous Case Law

To date, the most significant ruling by the Abu Dhabi Court of Cassation regarding personal jurisdiction over Muslim foreigners was issued in late April 2024. As discussed on this blog, the judgment denied a French-Lebanese husband and his estranged Mexican-Egyptian wife access to the Abu Dhabi Civil Family Court due to their shared Muslim faith. Initially, the Civil Family Court accepted jurisdiction and, at the husband’s request, dissolved the couple’s brief marriage, a decision that was upheld on appeal. However, the Court of Cassation overturned this ruling, determining that the Civil Family Court lacked jurisdiction based on the parties’ religious affiliation.

This case also highlights the inconsistent, and at times contradictory, approach of the Abu Dhabi Court of Appeal on this issue. The same panel of judges has sometimes upheld jurisdiction in cases involving foreign Muslims, while in other instances, it has denied the application of Law No. 14/2021. The available case law suggests that factors such as whether the individuals are Muslim by birth or by conversion, hold dual citizenship – including that of an Arab country – or have disputed religious affiliations do not consistently influence the court’s jurisdictional decisions.

The Abu Dhabi Civil Family Court generally takes the broadest view of jurisdictional rules, generally affirming that Muslim foreigners may access the court. This stance persists despite frequent jurisdictional challenges by opposing parties in cases involving Muslims, who typically argue that the Muslim Personal Status Court is the proper forum for such disputes. Recently, such arguments have increasingly referenced the Federal Civil Personal Status Code and its exclusive jurisdiction over non-Muslims, a claim likely bolstered by the Court of Cassation’s April 2024 ruling, which disregarded the widely accepted view that the Federal Civil Personal Status Code does not apply in Abu Dhabi.

The Abu Dhabi Court of Cassation Judgment of 30 October 2024

The case decided by the Abu Dhabi Court of Cassation in late October involved a French-Moroccan Muslim couple who had married in a civil ceremony in France. Their marriage was dissolved by the Abu Dhabi Civil Family Court in June 2023 at the husband’s request. The wife contested this ruling, arguing that the court lacked both territorial jurisdiction – since their last shared residence was in Dubai – and personal jurisdiction, given their shared Muslim faith. She further contended that ongoing proceedings before the Dubai Personal Status Court, along with a pending divorce case in France, should have precluded the Abu Dhabi Civil Family Court from issuing a ruling. The Abu Dhabi Court of Appeal upheld the divorce decision, leading her to appeal to the emirate’s highest court.

From a personal jurisdiction perspective, the Court of Cassation’s judgment is notable for its textbook-like analysis of what constitutes the effective citizenship of dual nationals. Unlike previous cases before both the Court of Cassation and the Court of Appeal, which largely overlooked this aspect of Article 5(2) of Law No. 14/2021, this ruling explicitly concludes that the parties’ French citizenship takes precedence, as it is the nationality tied to their residency in the UAE. The judgment also addresses the fact that the parties married in a civil ceremony in France, invoking Article 5(3) of Law No. 14/2021. The court explains that, since France does not ‘primarily apply Islamic Sharia in personal status matters,’ the conditions of Article 5(3) are also met.

By confirming personal jurisdiction over the parties based on both Article 5(2) and Article 5(3) of Law No. 14/2021, the judgment marks a turning point in two key respects. First, it establishes the requirement to determine the effective nationality of dual citizens, affirming that no nationality, including that of an Arab-Muslim country, takes precedence unless it is linked to UAE residency. Second, by considering the type and location of the marriage, the court asserts that, from the moment a marriage is concluded, couples effectively select a legal framework – religious or civil/secular – that will govern the marriage’s effects and potential dissolution, and that this choice must be honored in any subsequent legal proceedings. Although this perspective may be open to challenge, it provides greater clarity and legal certainty for foreigners of all faiths residing in the UAE.

Outlook

For the sake of legal certainty, it is to be hoped that the Abu Dhabi Court of Cassation will maintain its newly established position. The latest interpretation appears the most plausible, particularly in light of Article 5(2) of the Procedural Regulations. Nevertheless, the current provisions on jurisdiction still leave room for ambiguity regarding the law’s exact scope of application, warranting clarification through reform, given the contradictory case law to date.

First, Article 5 should be revised, including paragraph (3), to specify the court’s jurisdiction over anyone who has entered into a civil marriage. For instance, a rule is needed for cases where a couple has married in both a religious and a civil ceremony. Additionally, the Chairman’s Instruction Guide, or at least a clear list of Muslim jurisdictions whose citizens are excluded from the law’s scope, is urgently needed. It is essential to clarify whether the provision applies equally to Arab Muslims or GCC nationals without dual citizenship who have concluded a civil marriage in a non-Muslim jurisdiction. Second, refining the Arabic versions of Law No. 14/2021 and the Procedural Regulations is crucial to avoid multiple interpretations, such as whether the law applies to ‘non-Muslim foreigners and citizens’ versus ‘foreigners and non-Muslim citizens.’ Finally, with recent legislative changes allowing foreign, non-Arabic-speaking lawyers to appear before the Abu Dhabi Civil Family Court, consistent and official English translations of all relevant statutes are absolutely necessary. Current translations available through various official channels are fragmented and occasionally ambiguous.

——————————————-

[1] See on this blog, Béligh Elbalti, Abu Dhabi Supreme Court on the Applicability of Law on Civil Marriage to Foreign Muslims, idem, The Abu Dhabi Civil Family Court on the Law on Civil Marriage – Applicability to Foreign Muslims and the Complex Issue of International Jurisdiction, and 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, 38 Arab Law Quarterly (2024), 219-234.

[2] It should be noted here that with the introduction of Law No. 14/2021, a dedicated Civil Family Court was established in Abu Dhabi. Family matters falling within the scope of Law No. 14/2021 are exclusively adjudicated in this court, which applies only the civil family law statutes and no other domestic or foreign legislation. Consequently, questions of the court’s jurisdiction and the law’s scope of application are closely intertwined, if not mutually dependent.

(Written by E. Farnoux and S. Fulli-Lemaire, Professors at the University of Strasbourg)

Horatia Muir Watt (Sciences Po) hardly needs an introduction to the readers of this blog. The book published last year and reviewed here constitutes the latest installment in her critical epistemological exploration of the field of private international law. More specifically, the book builds upon previously published fundamental reflections on the methods of private international law already initiated (or developed) in her previous general course (in French) at the Hague Academy of International Law (Discours sur les méthodes du droit international privé (des formes juridiques de l’inter-altérité)), as well as on the contemporary relevance of private international law (“Private International Law Beyond the Schism”). Numerous other works, naturally, also come to mind when reading this book (see among many others, ed. with L. Bíziková, A. Brandão de Oliveira, D. Fernandez Arroyo, Global Private International Law : adjudication without frontiers; Private International Law and Public law).

The publication of a book on the field that this blog deals with would be enough to justify it being flagged for the readers’ attention. We feel, however, that its relevance to our academic pursuits warrants more than a mere heads-up and, while it would be unreasonable (and risky) to try to summarize the content of this engrossing and complex book in a blog friendly format, we would like to make a few remarks intended to encourage the readers of this blog to engage with this innovative and surprising work.

It should be made clear from the outset that, maybe contrary to what the title “Towards an Ecological Jurisprudence” may suggest prima facie, the book does not engage primarily with the emergence and evolution of positive environmental law, even in a private international law perspective (although the double-entendre may be deliberate, because, as we will see, the book is animated by a deeply-rooted, and understandable, environmental angst). First, because the book is not particularly concerned with positive law (what is also referred to as lex or “Law I” in the book) as such but, in a more theoretical thrust, with the idea of the law (our “normative universe”, nomos, also called ius or “Law II”). Second, because the word “ecological” is used here in a much deeper and broader sense, that immediately encapsulates the ambition of the book: it refers to the ability to make room and accept “alterity” in all its shapes: humanity, foreign cultures and other life (and non-life) forms or “ecosphere”, i.e. all the ecosystems and their interactions. It conveys a sense of connection of the self with others and its surroundings, philosophically as well as environmentally. Consequently, the “Ecological Jurisprudence” that the author wishes to help bring about is not a particular development in environmental law but a much more thorough modification of our understanding of law and legality.

The book rests on the premise that European or Western modernity (in all its aspects, philosophical, social, and scientific) has created (or aggravated) a series of severances between humankind and the surrounding world (as well as, it seems, within humankind). Law (as all things cultural) has not been immune from this divorce (quite the contrary), and modern legality has shaped our relationship to alterity, both human and natural. In short, Law has become an exercise in alienation (alienation from the self to the other, from the self to nature or Gaia, the earth itself). The book constitutes an attempt to propose (more precisely, uncover) an alternative conception of legality, one that connects (with the other(s): human beings among themselves as well as with their environment) rather than alienates (an “Ecological Jurisprudence”).

The phrase “The Ultimate Frontier” is also a (multiple) play on words. To the readers of this blog, versed as they are in conflict of laws, it will evoke the outer limit of a given legal system, the line that marks where it ends (where its laws cease to be applicable) but also where it comes into contact with other legal systems. In a sense, this is the traditional object of private international law (which, as the author point out performs a type of “boundary labour”) but, again, the ambition of the book is much greater: the “Ultimate Frontier” at stake is that of modern legality, where it comes into contact with, and maybe gives way to, non-modern types of normativity. The book thus presents itself as a quest for the (re)discovery of such an alternative normativity. There seems to be, however, a darker meaning of the “Ultimate Frontier”, which refers to the end of human time or a “horizon of extinction”, alluding, among other jeopardies, to climate and environmental distress and giving a sense of urgency to the book. The question at its core is not only that of “law’s own survival” but also of finding a way for humans to (co-)exist on the planet in a less catastrophic way. The author’s strongly held belief is that law has a role to play in this endeavor, provided that a fundamental reconfiguration is allowed to take place. The general idea is that while alterity in the legal world usually takes the form of a foreign norm or an alien cultural practice, the attitude of a legal tradition towards alterity is usually coherent irrespective of whether that alterity comes in legal form or in the form of nature or of other life forms. At the risk of oversimplification, it could be said that while, looking back, law is part of the problem, it could also become, looking forward, part of the solution.

The subtitle of the book, “A Global Horizon in Private International Law”, emphasizes that its objective is to outline this reconfiguration in the particular field of private international law, or rather by building on some of the less obvious insights offered by private international law. This inquiry takes place at the “Global Turn”, that is at a moment when Western legality has spread far and wide while at the same time losing the stato-centric quality that underpinned it. Why private international law? The reason is twofold. First of all, private international law, like comparative law or public international law, is well-suited to dealing with alterity, in the legal form. By contrast with these other areas of the law, however, the majoritarian (Savignian) approach to private international law is very much inscribed at the heart of modern legal thought. Methodologically, its engagement with alterity is asymmetrical: the forum (the self) and the foreign norm (the other) are not placed on an equal footing; the forum, while purporting to make room for foreign norms, actually very carefully selects and reshapes those of them that can be accepted. In terms of epistemology, the fundamental involvement of private international law (its complicity?) with byproducts of Modernity, notably capitalism (or neoliberalism) and coloniality, reveals this modern bias. Here, readers familiar with H. Muir Watt’s previous works (see for instance “Private International Law Beyond the Schism”) will recognize a familiar theme, that of private international law’s (voluntary ?) obliviousness to the many challenges facing humanity, and consequently to its own role in enabling some of them (PIL disembedded). This obliviousness is so deeply rooted that it has had the incidental advantage of sheltering the discipline from the critical contemporary approaches (decoloniality for instance) that have flourished in public international law and comparative law, stigmatizing the biases at play. In this perspective, private international law is very much (the best?) representative of the broader category of private law, self-perceived and described as too technical or formal to be political, even as it plays a crucial role in the fundamental separation within the Oiko (the separation of the economy from the ecology).

The quest for an Ecological Jurisprudence hence implies an awareness to both the challenges of the era, as well as un understanding of the role of private international law in paving the road to today’s (dire) state of affairs. Such an awareness makes it possible to take a hard, critical look at the methods and shortcomings of contemporary private international law. This is not, however, the only or even the main reason why the book is grounded in private international law.

That second reason for this choice lies in the dual nature (or dual scenography) of private international law, which the book seeks to reveal. Behind or underneath the technical, “modern” and capitalism-enabling private international law, a “minor jurisprudence or shadow avatar” can be observed, that is committed to a truly pluralist approach, making room for alterity. Interestingly, according to the author, such a shadow account can be found in the (pre-modern) statutist and neo-statutist theories, supposedly made redundant by the Savignian, multilateralist approach. It is by highlighting the flickering, intermittent yet enduring influence of this secondary view of the field that Horatia Muir Watt sketches the outline of a private international law truly pluralist and open to alterity, a private international law that belongs to the world and from which, perhaps, our understanding of ius stands to profit.

The book is structured in three main parts. The first is dedicated to an exploration of private international law’s methodological and epistemological duality. The two competing schemes (the classic, dominant, Savignian multilateralist approach and the minority statutist approach) each provide a set of tools (methods) by which law organizes its own interaction with “exogenous forms of legality”. To quote a particularly telling sentence : “this duality [between the two modes of reasoning in respect to foreign law] can be correlated to two underlying models of legality: a modern, or monist, scheme, embodied during the nineteenth century, that seeks closure, order, decisiveness, objectivity and predictability from a purportedly neutral (Archimedean) standpoint; and a further pluralist version, geared to diplomatic negotiation, reflexivity, the perpetual oscillation between poles and the refusal of separation between the observer and the observed, or between application and interpretation”.

This part starts with a refreshing preliminary section presenting the core concepts of the discipline, ostensibly for the benefit of non-specialists but specialists will find the presentation to be quite creative. Horatia Muir Watt then offers, in a first chapter, a “story of origin” in which she revisits the traditional historical account of the advent of multilateralism, insisting on tensions and inconsistencies. Indeed, since the reception of foreign law generally comes at the price of a denial of difference, the suppressed otherness makes itself felt down the line, causing all kinds of trouble with which multilateralism deals in a piecemeal way.

The second chapter is dedicated to picking up those traces of alternative pluralist methodology, where alterity takes place on the terms of the other, thus forming a “shadow account”. By the end of the first part, private international law has served its purpose as a revealer of two different ways of dealing with alterity, one of which, in the eyes of the author, may be “harnessed to the ecological needs of our planet”. This part is particularly interesting to readers with past experience of private international law, as it provides an innovative and critical approach to the field, one that often challenges their assumptions and may renew the way they think about it and, maybe, teach it.

The second part may prove to be a more challenging read for (private international) lawyers because it presents a perspective on the law seen here mainly through the works and thoughts of non-lawyers. The idea here is to compare further (and more systematically) the two alternative conceptions of legality, with a focus on form and substance, or “aesthetics” and “ontology”. The legality produced by Modernity, called “jurisdictional jurisprudence”, systematically reduces alterity to a set of spare parts or raw material recognizable and useable. The form, the aesthetics, of Modern legality is a “rage for order”, an all-encompassing love for division, classification, hierarchization and structuration, which singularly for (private) international law has taken the form of a particular insistence on the geographical division of space, and on the drawing of frontiers. To quote again a particularly telling sentence, “such a particular, obsessional form of legal ordering – in the name of science, nature or reason – reinforced the severance of humanity from its surrounding”. That is the ontology of Modern law: anthropocentric, “devastating life in its path and devouring the very resources it needs to survive”. Fortunately, this majoritarian destructive force is haunted by its shadow opposite, the “minor jurisprudence”, “made of (ontological) hybridity or interstitiality and (aesthetic) entwinement and oscillation”. This form of legality is willing and able to take up the “labour of connection” that is necessary to an ecological jurisprudence. Here, the analysis relies heavily on Bruno Latour’s work on the “passage of law” where law, by virtue of its operation, produces a connecting experience in a pluralist environment. Each time, conflict of laws acts as a revealer (“the heuristic”) to support the argument, following the overall program of the book. Each type of legality accounts for some (often contradictory) features or element of our paradoxical discipline.

Conflicts specialists may finish this part of book with some ruffled feathers: the indictment of the multilateralist method they practice and indeed sometimes advocate for is quite relentless, and the relief provided by the idea that their shadow statutism may eventually redeem them might not always feel entirely sufficient. However, they (at least the undersigned) will also be grateful to have been initiated to some fascinating anthropological insights (including Philippe Descola’s work), and generally for the benefits that such outside perspective inevitably provides.

In a somewhat more classical fashion, Part III explores the political-economic and ethical dimensions of the conflict of laws. With regards to economy, the contribution of private international law to what the author calls the neoliberal world order is not a surprise. Instrumental in this is the idea of individual autonomy, which provides a foundation for a market rationality seen as both unavoidable and inescapable. On the ethical plane, the book explores the possibility for conflict of laws methods to express radical hospitality in legal form. Taking seriously the teachings of phenomenology, it suggests transforming the separation between self and other into an understanding of the other as part of ourselves.

The last chapter, titled “An Ethic of Responsiveness: The Demands of Interalterity” will be particularly interesting for conflicts lawyers. It is not unusual for us, particularly when we teach the subject, to insist, often with some sense of pride, that private international law is a place of openness to otherness. The first two parts of the book have made quite plain that there are limits, at the very least, to the extent of that openness, but also maybe how hollow this claim may become if all we do is insert some element of a foreign legal system into our own. This last chapter explores what it actually means to take alterity seriously. Some pages, again, may be unsettling to read because making room for the Other is a radical experience for the Self, one in which the difference between the two disappears. In the course of the chapter, Horatia Muir Watt distinguishes value pluralism, an equivalent to political liberalism where a rights-based approach (privacy, freedom of expression) provides some space for diversity within a unitary form and source of legality, from a proper legal pluralism that accepts multiple legal norms which coexist on an equal footing. In conflicts terms, value pluralism coincides with multilateralism (the forum controls the reception of foreign law) while legal pluralism requires changing the location of legal authority (something the alternative method does willingly).

The book’s general orientation (its driving force perhaps) owes a lot to recent or contemporary developments in human sciences outside of the law, notably in sociology, anthropology and history of sciences. The influence of the late Bruno Latour, inclassable philosopher, anthropologist, sociologist and science epistemologist runs particularly strong in the book, as well as that of philosophers Emmanuel Levinas and Jacques Derrida, or anthropologist Levi-Strauss. More generally the references, within or without the law, are innumerable and very diverse. In this sense, the book stands out as a rare example of a truly transdisciplinary attempt at relocating (private international) law within the human sciences (and their contemporary debates and concerns), as well as an equally important effort to force the discipline to face up to the pressing challenges of our times (climate change, collapse in biodiversity, extreme inequalities, crises of late capitalism. As a result, the depth and expressiveness of the book (but also, it should be acknowledged, its density) are somewhat unusual for an academic work in the otherwise often technical field of private international law. It is also a testament to its author’s commitment to openness to alterity (here in scientific fields and concepts). Also very striking is the avowed freedom of discourse that the author grants herself, not only in the interdisciplinary approach (which the author describes as bricolage, to make apparent the choices and selection that she has had to make) but also, more generally, in the construction of the discourse itself which sometimes verges on free association, giving the book a palimpsestic quality, not unsuited for its stated purpose: the forecasting of an ecological jurisprudence.

The regular readers of Conflict of Laws.net may not have been Horatia Muir Watt’s target audience, or at least her primary target audience, when writing this book. In itself, this willingness to engage with readers beyond the admittedly small circle of private international lawyers should be applauded, because few among them have managed, or even attempted, to offer (useable) insights to the legal community at large. This, however, should absolutely not be taken to mean that private international lawyers will gain nothing from The Law’s Ultimate Frontier; quite the opposite, in fact. This book challenges one’s understanding of private international law, and is an invitation to rethink the purpose of our involvement in its practice or scholarship. Many a time, the critique of a foundational myth – internationality, extraterritoriality, party autonomy, even tolerance…  – or a novel way of (re)framing well-known doctrinal debate or case, hallowed or recent – Caraslanis, Chevron, Vedanta… – produces a jolt, a “I did find it strange when first reading about it, but I could not quite put my finger on it” moment of illumination. This is no small feat.

Yesterday, the ICLQ published an article by Dr Maria Hook titled, “The Purpose of the Gateways for Service out of the Jurisdiction.” It is open access and it’s abstract reads as follows:

This article argues that the purpose of the English gateways for service out of the jurisdiction is to identify a presumptive meaningful connection; that courts have used different mechanisms to rebut the presumption of a meaningful connection established by the gateways; and that there are lessons to be learnt from a clearer, more explicit understanding of this presumptive purpose of the gateways. The article uses Brownlie (I and II) and Fong v Ascentic Ltd to support and illustrate these arguments.

Call for Applications

Lindemann Fellowship for Private International Law

The Lindemann Fellowship, generously funded by the Lindemann Foundation, is a newly established initiative aimed at supporting promising academics in the field of private international law. The Fellowship’s primary
goal is to provide early-career researchers with the opportunity to build a network with academics from all over Europe. Fellows will, in principle, be accepted for a three-year period, with new Fellows joining each year, as existing Fellows complete their tenure.

The core of the Fellowship is an annual, fully-funded meeting of the Fellows and coordinators, lasting two days, where Fellows present their current research. These meetings will generally take place in Hamburg, Germany, but may also occur in other locations. The meetings offer younger scholars a valuable opportunity to engage with other highly skilled Fellows from across Europe. Additionally, Fellows will have the chance to meet the coordinators of the Fellowship, receive feedback on their research projects, and obtain guidance on questions related to their future academic careers.

The research presented at the annual meetings will be edited for publication in collected volumes. The research presentations and subsequent publications should focus on the field of private international law in a broad sense (particularly conflict of laws and international civil procedure), but may also include the interplay with other areas of law or disciplines. The research can be based on an already completed or ongoing PhD thesis. As the volumes will be published in English and will be open access, this can be an opportunity for Fellows to publish key findings from their PhD in English and in an easily accessible format.

Who should apply and how?

Applicants’ primary area of research should be in private international law. Candidates who have completed their PhD must apply within four years after defending their PhD. Candidates who expect to submit their PhD within a year and have an outstanding academic background are also encouraged to apply. Applicants should be based within Europe (not restricted to the European Union). Fellows are expected to attend the annual meetings and to contribute to the collected volumes.

Applications, including a short letter of motivation, curriculum vitae, list of publications, teaching and presentations, and other relevant documents – all as one PDF – should be submitted by 15.12.2024 to sekretariat-duden.rw@uni-hamburg.de. Please direct questions to konrad.duden@uni-hamburg.de.

The coordinators:

Sabine Corneloup
University of Paris-Panthéon-Assas

Andrew Dickinson
University of Oxford

Konrad Duden
University of Hamburg

Agnieszka Frackowiak-Adamska
University of Wroc?aw

Pietro Franzina
Università Cattolica del Sacro Cuore, Milan

Ralf Michaels
Max Planck Institute, Hamburg

Marta Pertegás Sender
University of Maastricht

The full call for applications can also be found here.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 28 November 2024 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is the private international law aspects in the case Estados Unidos Mexicanos (Mexico) v. Smith & Wesson Brands et al. and will be presented by Dr. Manuel Segovia González (in Spanish). We have previously reported on the case here.

The details of the webinar are:

Link:

https://us02web.zoom.us/j/86578424187?pwd=r4sV1akhTaehHR79AJyWev4UxDghSg.1

Meeting ID: 865 7842 4187

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

Written by Yasmín Aguada** [1]– Laura Martina Jeifetz ***[2]. Part I is available here

Abstract: Part II aims to delve deeper into the aspects addressed in the previously published Part I. International Judicial Cooperation (IJC) and advanced technologies redefine Private International Law (PIL) in a globalized world. The convergences between legal collaboration among countries and technological innovations have revolutionized how cross-border legal issues are approached and resolved. These tools streamline international legal processes, overcoming old obstacles and generating new challenges. This paper explores how this intersection reshapes the global legal landscape, analyzing its advantages, challenges, and prospects.

Keywords: private international law, international judicial cooperation, new technologies, videoconferencing, direct judicial communications, Smart contracts, and Blockchain.

II.III. Videoconferences and virtual hearings

Videoconferencing and video-links are familiar today after the widespread use they acquired during the COVID-19 pandemic. These resources perform various functions in judicial processes, ranging from facilitating communications with the parties involved, experts and witnesses, to holding hearings and training activities. These are just examples that illustrate the wide range of uses they offer.[3]

Despite its long presence both nationally and internationally, videoconferencing has seen a notable increase in its application, particularly in the context of criminal cases, as can be seen in inmates’ statements.[4] However, its growing expansion into areas such as international abduction cases and civil and commercial matters is also evident.[5]

Regarding the concept, Tirado Estrada states that videoconferencing constitutes “an interactive communication system that simultaneously transmits and “in real time” the image, sound and data at a distance (in point-to-point connection), allowing relationships and interaction, visually, auditorily and verbally, to a group of people located in two or more different places as if the meeting and dialogue were held in the same place.” [6] It allows communication between people in different places and simultaneously through equipment reproducing images and sound.

Among the advantages that should be highlighted is its notable contribution to the agility in the processing of legal processes, which affects the quality and effectiveness of judicial procedures. These technologies enable a direct link without intermediaries between those involved in the judicial process, the administration of justice, and the relevant authorities.

Likewise, it is pertinent to point out the significant reduction in costs associated with transportation to the judicial headquarters while facilitating the recording and, therefore, the exhaustive record of the events in the hearings. Furthermore, it must be emphasized that videoconferencing ensures security conditions by applying robust encryption protocols.

Ultimately, videoconferences guarantee the observance of essential principles within the framework of due process, such as the publicity of the acts, the practical possibility of contradiction of the parties involved, and the immediacy in the perception of evidence.[7]

II.III.I. Regulatory instruments regarding the use of videoconferencing

In April 2020, The Hague Conference on Private International Law (HCCH) published a document within the March 18, 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters[8]. The publication of this work, called Guide to Good Practice on the Use of Video-Link under the Evidence Convention, was drafted by the Permanent Bureau, with a Group of Experts contributing their insights and comments. Although the project started in 2015, its publication occurred during the pandemic. This soft law instrument provides a series of guidelines regarding platforms intended to enable the simultaneous interaction of two or more people through bidirectional audio and video transmission[9].

It is worth mentioning the Ibero-American Convention on the Use of Videoconferencing in International Cooperation between Justice Systems (Ibero-American Convention) and its Additional Protocol[10], signed in 2010. Both instances were approved by law 27. 162, dated August 3, 2015.

This Ibero-American Convention conceives videoconferencing as a resource that enhances and expedites cooperation between the competent authorities of the signatory States. The treaty’s scope covers the civil, commercial, and criminal matters. However, it is possible to extend its application to other fields in which the parties involved expressly agree (article 1).

The Convention recognizes the relevance of new technologies as fundamental tools for achieving swift, efficient, and effective justice. The primary objective is to promote the use of videoconferencing among the competent authorities of the States Parties, considering this medium as a concrete mechanism to strengthen and expedite cooperation in various areas of law, including civil, commercial, and criminal matters, as well as any other agreed upon by the parties. The Convention defines videoconferencing as an  “interactive communication system that allows the simultaneous and real-time transmission of image, sound, and data over a distance, with the aim of taking statements from one or more persons located in a place different from that of the competent authority, within the framework of a judicial process, and under the terms of the applicable law of the involved States.” (art. 2). This definition underscores the importance of immediacy and direct interaction, critical aspects ensuring the validity and effectiveness of the statements obtained through this medium.

Among the most relevant provisions of the Convention is the regulation of hearings via videoconference. The Convention establishes that if the competent authority of a State Party needs to examine a person within the framework of a judicial process, whether as a party, witness, or expert, or during preliminary investigative proceedings, and this person is in another State, their statement can be requested via videoconference, provided that this tool is deemed appropriate for the case. Additionally, the Convention details the requirements that must be met for the request to use videoconferencing and the rules governing its conduct, thus ensuring a standardized and efficient procedure.

The Additional Protocol to the Convention adds significant value by regulating practical aspects that enhance the efficiency of the judicial process. In particular, it addresses issues related to videoconferencing costs, establishing clear criteria on who should bear the expenses. It also regulates the linguistic regime, determining the language or languages used during the videoconferences, which is crucial to ensuring all parties’ understanding and effective participation. Moreover, the Protocol sets precise rules for transmitting videoconference requests, simplifying and streamlining the procedure, which contributes to incredible speed and effectiveness in international judicial cooperation.

The ASADIP Principles on Transnational Access to Justice (TRANSJUS), approved on November 12, 2016, are again relevant. In article 4.6, using video conferences or any other suitable means to hold joint hearings is included[11]. Next, as already mentioned, it proposes that legal operators favour the use of new technologies, such as telephone and video conferencing, among other available means, as long as the security of communications is guaranteed.[12]

Within the scope of cooperation in civil matters, it is relevant to point out the Convention in force in Argentina since 7-VII-1987, which addresses the Obtaining of Evidence Abroad in Civil or Commercial Matters[13]. Regarding the integration of video conferences in this context, we underscore that in July 2024, a Special Commission was held to review the implementation of various Conventions, including the taking of evidence. During these deliberations, it was stressed that video links are in line with the provisions of the 1970 Convention.

The role of videoconferencing as an increasingly relevant means for taking evidence under Chapter I of the Convention was discussed. However, a marked division of opinion was identified among the Contracting States regarding the possibility of using videoconferencing to directly take evidence, highlighting a significant challenge for the Convention. Another issue addressed was the update of the Guide to Good Practices on the Use of Videoconferencing, published in 2020, which has been largely incorporated into the Evidence Handbook. This reflects the growing importance of videoconferencing in international proceedings and the recognition that new technologies must be integrated into conventional practices.

Furthermore, regarding compatibility with the modern technological environment, the Commission noted that, although the 1970 Convention continues to function well in a paper-based environment, it faces challenges adapting to technological developments, such as videoconferencing. This issue raises doubts about the Convention’s ability to remain relevant in the future without greater acceptance of the “functional equivalence” approach by the Contracting States. Finally, a proposal was discussed to develop an international system to facilitate the electronic transmission of requests or create a decentralized system of platforms for such transmission. This proposal aims to improve the efficiency and modernize obtaining international evidence[14]. These discussions underscore the importance of updating and adapting the 1970 Convention to new technological realities to ensure its effectiveness and relevance.

Moreover, it was established that Article 17[15] of the said Convention does not constitute an obstacle for a judicial officer of the court requesting a party located in a State Party to conduct virtual interrogations of a person in another Contracting State. In this sense, the use of technologies such as videoconferencing is adequately adapted to the principles and provisions of the Convention mentioned above, facilitating international cooperation in judicial matters.

Article 17 of the 1970 Hague Convention regulates the possibility of a duly appointed commissioner obtaining evidence in the territory of a contracting State about a judicial proceeding initiated in another contracting State. This article establishes a mechanism for obtaining evidence that does not involve coercion and is subject to two essential requirements: authorization by a competent authority and compliance with established conditions. Additionally, the article allows for a contracting State to declare that obtaining evidence under this article can be carried out without prior authorization.

This article is particularly relevant for international judicial cooperation in the region, as it facilitates evidence collection abroad without resorting to coercive mechanisms. However, countries like Argentina have objected to the application of Article 17. The reasons are related to the protection of national sovereignty, as the appointment of foreign commissioners to act in a State’s territory to obtain evidence may be seen as an intrusion into that State’s sovereignty. Some countries in the region consider that allowing commissioners appointed by foreign courts to operate could compromise their jurisdictional autonomy.

On the other hand, concerning legal security and process control, the States that have objected to Article 17 value maintaining rigorous control over the procedures for obtaining evidence within their territory. Authorizing the actions of foreign commissioners without strict supervision could raise concerns about legal security and fairness in the process. Finally, differences between the legal systems of the countries in the region and those from which the appointed commissioners come could create difficulties in the uniform application of the article.

In summary, while Article 17 of the 1970 Hague Convention offers a valuable mechanism for obtaining evidence abroad, its implementation has generated tensions in the region due to concerns about sovereignty, process control, and differences in legal systems. These objections reflect the need to balance international cooperation and respect for each state’s jurisdictional autonomy.

The regulation in Argentina

In Argentina, the Order of the Supreme Court of Justice of the Nation (CSJN) 20/2013 is relevant. It establishes a set of Practical Guidelines for implementing video conferences in cases in process before the courts, oral tribunals, and appeals chambers, both national and federal, belonging to the Judicial Branch of the Nation.

This Order contemplates the possibility of resorting to videoconferencing when the accused, witnesses, or experts are outside the jurisdiction of the competent court. Consequently, it is essential to have adequate technical resources and a secure connection, which will be submitted to the evaluation of the General Directorate of Technology of the General Administration of the Judiciary. In this context, the regulations explicitly state that the application of these Guidelines must ensure full observance of the adversarial principles and effective defense.[16]

On the other hand, it should be noted that in February 2014, the Federal Board of Cortes and Superior Courts of Justice of the Argentine Provinces and the Autonomous City of Buenos Aires (JUFEJUS) gave its approval to the Protocol for the Use of the Videoconferencing System. This initiative aims to promote the adoption of hearings through video media as a resource aimed at reinforcing reciprocal collaboration, optimizing the effectiveness of jurisdictional processes, and simplifying the conduct of training and coordination meetings, among other relevant purposes.[17]

II.IV. Direct judicial communications.

Another of the IJC’s essential tools is direct judicial communications (DJC), intended to facilitate communication between two judges involved in a specific case[18]. In the autonomous source, DJC finds legal reception in Art. 2612 of the Civil and Commercial Code of the Nation.[19]

Direct judicial communications “are communications between two judicial authorities from different countries that are developed without the intervention of an administrative authority (intermediary authorities), as is the usual case of international warrants that are processed through Chanceries and/or Central Authorities designated by the country itself (generally administrative).” [20]

DJC can be implemented in all areas of the IJC. The HCCH has indicated that direct judicial communications can be used to obtain information about specific cases or to request information. Initially, DJC has shown notable success in two main fields: international return proceedings for children and adolescents and cross-border insolvency processes. Over time, it has been acknowledged that various international instruments, both regional and multilateral—such as the 1996 Child Protection Convention—benefit from the use of direct judicial communications. As of March 2023, the International Hague Network of Judges (IHNJ)’s scope has expanded to include the 2000 Protection of Adults Convention[21].

Regarding international child abduction, since 2001, the Special Commission of the 1980 Hague Convention has explored the possibility and feasibility, as well as the limits, safeguards, and guarantees of direct judicial communications, initially linked to the development of the IHNJ to obtain the quick and safe return of the child. Shortly after the IHNJ of Specialists in Family Matters was created in 2002, a Preliminary Report was presented, and the DJC was identified as an ideal mechanism to facilitate the IJC. In 2013, the Permanent Bureau, in collaboration with a Special Commission, published the Emerging Guidance Regarding the Development of the International Hague Network of Judges[22].

In this context, direct judicial communications have evolved to incorporate updated safeguards and protocols. According to the “Emerging Guidance regarding the development of the International Hague Network of Judges,” all communications must respect the legal frameworks of the countries involved, and judges should maintain their independence when reaching decisions. The guidance also outlines procedural safeguards, such as notifying the parties before the communication, keeping a record of the communications, and ensuring that conclusions are documented in writing. These practices help ensure transparency and preserve the rights of the parties involved.

In this framework, the HCCH has identified at least two types of communications: those of a general nature not related to a specific case and consisting, for example, of sharing general information from the IHNJ or coming from the Permanent Bureau of the Hague Conference, with his colleagues, or in keeping the Hague Conference informed of national developments affecting the work of the Conference; and those that consist of direct judicial communications related to specific cases, the objective of these communications being very varied, but on many occasions aimed at mitigating the lack of information that the competent judge may have about the situation and legal implications in the State of habitual residence of the child. These types of direct judicial communications are complemented by the safeguards incorporated in the 2013 Guidance, ensuring that the parties’ rights are respected and transparency is maintained throughout the process.

Additionally, technological advancements are recognized as essential for improving direct judicial communications. The document highlights the importance of using the most appropriate technological facilities, such as telephone or videoconference, to ensure communications are carried out efficiently and securely. These technological tools are crucial in safeguarding the confidentiality of sensitive information, particularly in cases where confidential data is involved.

Direct judicial communications, which represent an essential advance in the field of the IJC, are widely influenced by the implementation of new information and communication technologies. Members of the International Hague Network of Judges emphasized the importance of the Hague Conference implementing, as soon as possible, secure internet-based communication, such as secure email and video conferencing systems, to facilitate networking and reduce costs derived from telephone communications.[23] In 2018, on the 20th Anniversary of the IHNJ, the participants reiterated the need to develop a Secure Platform for the IHNJ[24]. Currently, the secure platform for the IHJN is available.

Since its initial implementation, a secure communications system has been established to facilitate efficient and protected exchanges between judges from different jurisdictions within the IHNJ. This system strengthens judicial cooperation in cross-border child protection, allowing judges to share relevant information directly under security standards that ensure confidentiality and procedural efficiency. During the 25th anniversary celebration of the IHNJ on October 14, 2023, representatives from over 30 jurisdictions gathered in The Hague, highlighting the value of this network and discussing its expansion, which -as was mentioned- now includes the 2000 Protection of Adults Convention in addition to the 1980 Child Abduction and 1996 Child Protection Conventions?[25].

III. FUTURE PERSPECTIVES. SMART CONTRACTS AND BLOCKCHAIN?

In analyzing possible future evolution in the interaction between international judicial cooperation and new technologies, it is essential to consider how blockchain technology and its derivatives, such as smart contracts, could significantly impact this area.

Blockchain technology, known for its ability to create immutable and transparent records, has the potential to revolutionize international judicial cooperation by providing a secure and trusted platform for the exchange and management of legal information between jurisdictions. Records on the blockchain could be used to ensure the authenticity and integrity of court documents, which in turn would strengthen trust between the parties involved.[26]

Smart contracts are autonomous and self-executing protocols that could simplify and speed up the execution of agreements between international judicial systems. These contracts may be designed to execute automatically when certain predefined conditions are met, which could be helpful in legal cooperation involving the transfer of information or evidence between jurisdictions.

However, successfully implementing blockchain technologies in international judicial cooperation would require overcoming significant challenges. Critical considerations include the standardization of protocols and data formats, interoperability between judicial systems, and the question of the legal sovereignty of records on the blockchain.

Blockchain technology and smart contracts could offer innovative solutions for international judicial cooperation by improving reliability, transparency, and process automation. Although the challenges are significant, their proper adoption could transform how jurisdictions interact and collaborate globally on legal matters.

Concerning automated contracting, it is noteworthy that during its fifty-seventh session in 2024, the United Nations Commission on International Trade Law (UNCITRAL) finalized and adopted the Model Law on Automated Contracting (MLAC)[27] and gave in principle approval to a draft guide for its enactment. In November, Working Group IV (Electronic Commerce) is expected to review this guide to enacting the UNCITRAL Model Law on Automated Contracting to finalize and publish it.

IV. BENEFITS AND CHALLENGES.

The convergence between international judicial cooperation and new technologies presents several substantial benefits that can profoundly transform how jurisdictions worldwide collaborate on legal matters. Certain advantages can be identified by explicitly analyzing electronic requests, direct judicial communications, videoconferences, and future projections related to blockchain technology and smart contracts. Between them:

Efficiency: New technologies allow for streamlining judicial cooperation processes, eliminating unnecessary delays. Electronic requests and direct judicial communications reduce document processing and sending times, significantly reducing shipping times by traditional mail.

Cost savings: Technologies reduce the need for physical resources, such as paper, transportation, and additional personnel for administrative procedures. Video conferencing also reduces travel costs for witnesses, experts, and attorneys as they can participate from their respective locations.

Transparency and authenticity: Document digitization and electronic system implementation ensure a transparent and reliable record of communications. Additionally, electronic signature and authentication technologies guarantee the integrity and legitimacy of shared documents.

Greater access to justice: Technologies can democratize access to justice, allowing involved parties, especially those in remote locations or with limited resources, to participate in judicial proceedings and collaborate more effectively. These promises to avoid the long delays that traditional processing channels suffer, ultimately undermining the basic principles of access to justice and making adequate judicial protection difficult.

New technologies are transforming international judicial cooperation by eliminating time, distance, and resource barriers while improving the efficiency and effectiveness of transnational judicial processes. These technologies could raise the quality and speed of justice globally.

V. FINAL CONSIDERATIONS

Throughout this journey, we have explored how the intersection between international judicial cooperation and new technologies is transforming the legal landscape internationally. We have observed the growing impact of these new technologies in the IJC field and in the collaborative efforts between States to seek legal and administrative solutions to improve access to justice in cross-border proceedings. In this context, we have analyzed several technological tools, such as electronic requests and videoconference. At the same time, we have observed how facilitating instruments such as Apostilles and direct judicial communications have also incorporated, or are incorporating, technological components to improve their results.

Contemplating the possible future directions of this complex network of connections between the IJC and new technologies immerses us in searching for answers and alternatives and deep reflection on the numerous challenges that arise. Indeed, the rapid integration of new technologies is fundamentally changing various aspects of the legal field, which requires careful contemplation.

In conclusion, it is appropriate to emphasize the benefits that the implementation of new technologies can bring to the field of the IJC: reduction of costs and delays that lead to greater efficiency and agility while guaranteeing the fundamental rights of due process, defense, and security, always guided by the basic principle of ensuring access to justice.

In essence, this contribution highlights the crucial role that the symbiotic relationship between international judicial cooperation and evolving technologies will play in shaping the future of global legal practices.

[1]** Lawyer and Notary, Faculty of Law, National University of Córdoba, Master in International Business Law, Complutense University of Madrid. Assistant professor in Private International Law and Public International Law at the Faculty of Law, National University of Córdoba. Email: yasmin.aguada@mi.unc.edu.ar

[2] *** Lawyer, Faculty of Law, National University of Córdoba. PhD student, University of Cádiz. Master in International Business Law, Complutense University of Madrid. Assistant professor in Private International Law at Law School, National University of Córdoba. Email: martina.jeifetz@unc.edu.ar

[3] HARRINGTON, CAROLINA. “Justicia, aislamiento y videoconferencia la experiencia del derecho internacional privado en desandar barreras: guía de buenas prácticas de la conferencia de la haya 2019”, in Guillermo Barrera Buteler (Dir.), El derecho argentino frente a la pandemia y post-pandemia covid-19.  Córdoba, Universidad Nacional de Córdoba, 2020.

[4]In the field of criminal cooperation, various legal instruments recognize the viability of the technological use of videoconferencing. These include the Statute of the International Criminal Court, ratified at the Rome Conference on July 17, 1998; the European Convention on Legal Assistance in Criminal Matters, approved on May 29, 2000 by the Council of Ministers of Justice and Foreign Affairs of the European Union; the Second Additional Protocol of 2001 (Strasbourg, November 8, 2001) to the European Convention on Mutual Assistance in Criminal Matters, signed in Strasbourg on April 20, 1959 by the member states of the Council of Europe. Additionally, noteworthy are the influential 2000 Palermo Convention on Transnational Organized Crime and the 2003 Mérida United Nations Convention against Corruption, among other notable instruments. These treaties highlight the usefulness and effectiveness of videoconferencing as a technological resource in criminal cooperation at the international level.

[5] GOICOECHEA, IGNACIO. “Nuevos desarrollos en la cooperación jurídica internacional en materia civil y comercial”, in Revista de la Secretaría del Tribunal Permanente de Revisión (STPR), 7, year 4, 2016.

[6] TIRADO ESTRADA, JESÚS JOSÉ. “Videoconferencia, cooperación judicial internacional y debido proceso.”, in Revista de la Secretaria del Tribunal Permanente de Revisión, year 5, no. 10, 2017, p. 154. Available in: https://dialnet.unirioja.es/servlet/articulo?codigo=6182260. Consultation date: 10/11/2024.

[7] GONZALEZ DE LA VEGA, CRISTINA, SEONE DE CHIODI, MARÍA Y TAGLE DE FERREYRA, GRACIELA. “Bases para el acceso a la justicia en la restitución internacional de NNA”. Paper presented at the Argentine Congress of International Law, Córdoba, September 2019.

[8] Such Convention has been in force in Argentina since 07/07/1987. For more details:  https://www.hcch.net/en/instruments/conventions/status-table/?cid=82. Consultation date: 10/11/2024.

[9] Video-link refers to the technology which allows two or more locations to interact simultaneously by two-way video and audio transmission, facilitating communication. – HCCH Guide to Good Practice on the Use of Video-Link under the Evidence Convention.

[10] For the Convention, videoconference is understood as an interactive communication system that reproduces, simultaneously and in real time, images, sound and data of people who are located in geographical locations other than that of the competent authority. This system allows the taking of statements in accordance with the applicable law of the intervening States. Available in: https://www.comjib.org/wp-content/uploads/imgDrupal/Convenio-Videoconferencia-ES-publicaciones_1.pdf

Consultation date: 06/13/2024.

In the following link you can check the status of signatures and ratifications of the treaties and agreements of the conference of ministers of justice of the Ibero-American countries. Available in:  https://drive.google.com/drive/folders/1EzscrkCSThRo7gtjZJlt9LZphoMBtA0q. Consultation date: 04/09/2024.

[11] “They are characterized by being framed in two (or more) processes for closely linked cases, heard before courts in different countries. The hearing is developed to “serve” more than one main process. Frequently, in family cases involving children, one can observe the existence of lawsuits initiated in different countries with various objects (restitution, parental responsibility, custody, communication regime, maintenance), which can benefit from the simultaneity implied in the joint celebration of the audience”. HARRINGTON, CAROLINA. “Audiencias Multijurisdiccionales. Configuraciones y perspectivas para facilitar el acceso a justicia en litigios internacionales”. Paper presented at the Argentine Congress of International Law, Córdoba, September 2019.

[12]ASADIP PRINCIPLES ON TRANSNATIONAL ACCESS TO JUSTICE (TRANSJUS). Available at: http://www.asadip.org/v2/wp-content/uploads/2018/08/ASADIP-TRANSJUS-EN-FINAL18.pdf. Consultation date: 10/11/2024.

[13] This Agreement, approved by Law No. 23,480, links us with 64 countries. HCCH. Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. Available in: https://www.hcch.net/en/instruments/conventions/status-table/?cid=82 . Consultation date: 10/11/2024.

[14] Consult Celis, Mayela, July 3, 2024 “This week at The Hague: A few thoughts on the Special Commission on the HCCH Service, Evidence and Access to Justice Conventions” Available in: https://conflictoflaws.net/2024/this-week-at-the-hague-a-few-thoughts-on-the-special-commission-on-the-hcch-service-evidence-and-access-to-justice-conventions/. Consultation date: /10/11/2024.

[15] Article 17. In civil or commercial matters any person duly designated as a commissioner may, in the territory of a Contracting State, proceed, without compulsion, to obtain evidence relating to a proceeding instituted before a Court of another Contracting State. : a) if a competent authority designated by the State where the evidence is to be obtained has given its authorization, in general, or for each particular case; and b) if said person meets the conditions that the competent authority has established in the authorization. Any Contracting State may declare that the collection of evidence in the manner provided for in this article may be carried out without prior authorization. Available in: https://www.hcch.net/es/instruments/conventions/full-text/?cid=82 . Consultation date: 05/20/2024.

[16]SUPREME COURT OF JUSTICE OF THE NATION. Agreed on 20/2013. Available at: https://www.csjn.gov.ar/documentos/descargar/?ID=77906 . Consultation date: 10/11/2024.

[17] JU.FE.JU. “Protocol for the use of the Videoconferencing System”, 2014. Art. 3 defines: “Videoconferencing shall be understood as an interactive communication system that simultaneously and in real time transmits image, sound and data at a distance between one or more sites.” Available in: https://www.jufejus.org.ar/protocolo-de-videoconferencias/. Consultation date: 10/11/2024.

[18] For more information see: HARRINGTON, CAROLINA. “Comunicaciones judiciales directas. Un arma versátil para enfrentar desafíos procesales en el derecho internacional privado de familia” in LLC2018 (October), 3, 2017. Online Citation: AR/DOC/3303/2017.

[19]Art. 2612.- International procedural assistance. Without prejudice to the obligations assumed by international conventions, communications addressed to foreign authorities must be made by means of a letter. When the situation requires it, Argentine judges are empowered to establish direct communications with foreign judges who accept the practice, as long as the guarantees of due process are respected (…) .”

[20] GOICOECHEA, IGNACIO. Nuevos desarrollos en la cooperación jurídica internacional en materia civil y comercial. Revista de la Secretaria del Tribunal Permanente de Revisión (STPR), year 4, No 7 (pp. 127-151), 2016, p. 136.

[21] HCCH. Details. 25th Anniversary of the International Hague Network of Judges. Available in: https://www.hcch.net/en/news-archive/details/?varevent=944. Consultation date: 22/10/2024.

[22] Direct Judicial Communications. Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges. Available in: https://assets.hcch.net/docs/62d073ca-eda0-494e-af66-2ddd368b7379.pdf. Consultation date: 22/10/2024.

[23] Conclusions 7 and 41, Inter-American Meeting of Judges and Central Authorities of the Hague International Network on International Child Abduction, Mexico, February 23-25, 2011. Available in: https://www.hcch.net/es/%20news-archive/details/?varevent=217. Consultation date: 10/11/2024.

[24] Conference Of Hague Convention Network Judges Celebrating the 20th. Anniversary of The International Hague Network Of Judges. Conclusions And Recommendations. Available in: https://assets.hcch.net/docs/69f03498-8a72-4ffe-aa44-30fc70493859.pdf. Consultation date: 24/10/2024.

[25] https://www.hcch.net/en/news-archive/details/?varevent=944  Consultation date: 27/10/2024.

[26]AGUADA, YASMÍN and JEIFETZ, LAURA MARTINA. Nuevas oportunidades de la cooperación judicial internacional: exhorto electrónico y blockchain.  Anuario XIX CIJS, 2019.

[27] The UNCITRAL Model Law on Automated Contracting introduces essential principles to legitimize contracts formed and executed by automated systems, even in the absence of human intervention. First, its focus on technological neutrality and legal recognition ensures that contracts are valid regardless of whether a person has directly reviewed them. This aspect is particularly valuable for smart contracts and blockchain applications, as it aligns with the requirements of coded and dynamic agreements, which may use information that updates periodically. Additionally, action attribution is clarified to hold users accountable for automated system actions, even in cases of unforeseen outcomes. These provisions are poised to enhance cross-border legal coherence and foster trust in automation within global legal frameworks. The document is available here: https://uncitral.un.org/sites/uncitral.un.org/files/mlac_en.pdf. Consultation date: 25/10/2024.

Issue 3 of RabelsZ 2024 has just been released. It contains the following articles:

Chris Thomale and Stephan Schmid, Das Private Enforcement der EU-Lieferkettenrichtlinie – Eine rechtsvergleichende und rechtsökonomische Beurteilung der finalen Fassung mit Anregungen für die mitgliedstaatlichen Umsetzungsgesetze (Private Enforcement in the EU Supply Chain Directive: A Critical Comparative Law and Economics Analysis of the Final Compromise with Suggestions for its Implementation by the Member States), pp. 425–493, https://doi.org/10.1628/rabelsz-2024-0046

One component of the European Green Deal is the implementation of a harmonized supply chain law in the form of the Corporate Sustainability Due Diligence Directive (CS3D). The final compromise imposes a new type of due diligence obligation on companies to protect the climate, human rights and the environment in the supply chain. Its enforcement will rely inter alia on private law mechanisms. This article describes how private-law enforcement mechanisms so far have fallen short in ongoing human rights, environmental and climate litigation. It then assesses the new supply chain regulation’s effectiveness and efficiency, especially in comparison to alternative regulatory instruments. It also contains recommendations for the upcoming implementation process by the EU member states.

Jochen Hoffmann and Lisa-Marie Pischel, Die Kollision von CISG und nationalem Verbraucherschutzrecht (Conflicts Between the CISG and National Consumer Law), pp. 494–526, https://doi.org/10.1628/rabelsz-2024-0043

Despite the exclusion which Art. 2 lit. a CISG sets out for a sale of goods for personal use, the UN Sales Law may in individual cases be applicable to cross-border sales contracts that are also subject to national consumer protection law. This is due to the fact that the wording of the exclusion may not align with the legal conception of a consumer in the national laws of the Contracting States, in particular the European concept of a consumer. The involved provisions are generally not compatible with each other, with the result that they cannot be applied to the same contract. In resolving such a conflict, it is therefore necessary to interpret Art. 2 lit. a CISG through the lens of the national conception of a consumer. For any remaining conflicts, it falls upon national law to decide which provisions prevail.

Knut Benjamin Pißler, Die Immunität ausländischer Staaten im Recht der Volksrepublik China – Das Gesetz vom 1. September 2023 als Instrument zur Gestaltung des Völkergewohnheitsrechts (Immunity of Foreign States Under the Law of the People’s Republic of China. The Law of 1 September 2023 as an Instrument for the Shaping of Customary International Law), pp. 527–555, https://doi.org/10.1628/rabelsz-2024-0045

The Law of the PR of China on the Immunity of Foreign States (Immunity Law) has been adopted by the Standing Committee of the National People’s Congress and entered into force on 1 January 2024. The law is a legislative measure to establish a “foreign-related rule of law” that is directed both inwards and outwards. Inwardly, it means that the courts of the People’s Republic of China are now entitled to hear lawsuits brought against foreign states. Outwardly, the Immunity Law enables China to actively participate in the development of customary international law, as many rules regarding restrictive immunity have still not been conclusively clarified. Active participation of this nature is a declared goal of foreign-related rule of law as proclaimed under Xi Jinping, seeking namely to give Chinese law a higher status at the international level and to allow the Chinese government and Chinese courts to influence the shaping of international legal norms.

Leon Theimer, Die unionsrechtliche Zukunft des Schadensersatzes wegen Verletzung einer ausschließlichen Gerichtsstandsvereinbarung (The Future of Damages for Breach of an Exclusive Choice of Court Agreement in EU Law), pp. 556–585, https://doi.org/10.1628/rabelsz-2024-0038

 Damages for breach of an exclusive choice-of-court agreement have fascinated legal scholars for quite some time. Once a peculiarity of the common law, the remedy is now also recognised in the legal systems of Spain and Germany. Recently, the EU-law dimension of the topic has come to the fore. However, despite a recent decision by the CJEU, the issue of whether damages for breach of an exclusive choice of court agreement are compatible with the Recast Brussels I Regulation has not yet been conclusively resolved. The article examines this question with regard to hurdles arising from the CJEU’s case law on (quasi) anti-suit injunctions, hurdles arising from the law on recognition of a foreign judgment, and doctrinal hurdles. In carrying out this analysis, the principle of mutual trust serves as a key standard of assessment. Moreover, the fundamental rights dimension of the topic is examined for the first time. The article concludes that damages for breach of an exclusive choice of court agreement indeed have a future in the EU, but only where the derogated court has not already rendered a decision or declined its jurisdiction.

Jürgen Samtleben, Das Internationale Privatrecht im neuen Zivilgesetzbuch Puerto Ricos – Abkehr vom common law (Private International Law in Puerto Rico’s New Civil Code – Farewell to Common Law), pp. 586–609, https://doi.org/10.1628/rabelsz-2024-0037

Puerto Rico enacted a new civil code in 2020 the introductory title to which regulates private international law. The code, which supersedes the earlier Civil Code of 1902/1930, was over twenty years in the making. The code it replaced was rooted in the country’s Spanish heritage but overlain by common law principles, as the island of Puerto Rico has been a territory of the United States since 1898. It was against this common law influence that the reform movement arose that led to the creation of the new Civil Code. Article 1 of the Code postulates Puerto Rico’s membership in the civil law family of nations, declaring civilian methods of finding and interpreting the law to be the exclusively binding approach. The same approach is taken to private international law, which was the subject of great controversy during the consultations in advance of the new code. Late in the consultations, a new chapter on „Conflicto de Leyes“ was drafted that takes up elements from various sources but never arrives at a unified synthesis and shows signs of lingering editorial uncertainty. It is a heterogenous body of rules that calls for jurisprudence to build a logically consistent system out of, even as Article 1 of the Civil Code forbids any resort to common law principles.

Guest Blog: Rethinking Private International Law Education – Insights from a Global Webinar

Written by: Corinna Chen (CAPLUS research intern, 2024, Sydney Law School, Australia)

Private international law (PIL) plays a critical role in shaping how future legal professionals and citizens engage with a complex, interconnected world. On 23 September 2024, the University of Sydney Law School hosted a webinar event in collaboration with the American Society of International Law (ASIL), Professor Xandra Kramer from Erasmus University Rotterdam and Utrecht University, and Professor Laura Carballo from the University of Vigo.

The webinar offered fresh perspectives on the evolving landscape of PIL education around the globe. Moderated by Associate Professor Jeanne Huang, co-director of the Centre for Asian and Pacific Law (CAPLUS) at Sydney Law School, the event featured insights from leading academics across Europe, Asia, and Africa. It also celebrated the launch of an exciting new book titled Research Methods in Private International Law: A Handbook on Regulation, Research and Teaching, which was co-edited by Professor Xandra Kramer and Professor Laura Carballo.

Professor Xandra Kramer began with a brief introduction to the motivations and themes explored in the book. Traditionally, research in PIL has been largely concentrated on the qualification and interactions of private and public international laws as well as comparative laws. However, Professor Kramer explained that this book seeks to broaden these horizons by integrating emerging themes such as empirical legal studies, law and economics, and feminism. The book consists of three main sections: the first part concerns the regulation of private international law; the second part explores different research methodologies; the third part discusses how the future of PIL can be shaped through wider educational aspects, and served as the focus of the seminar discussion.

Professor Laura Carballo further elaborated on the importance of viewing PIL not only as a regulatory tool but a framework for global governance, embracing the contributions of colonialist, feminist and various other emerging perspectives from around the world. This broader view aligns with the changing demands of legal education, where students are increasingly required to engage with both local and international issues. The book’s approach signals a shift towards making PIL more inclusive and responsive to contemporary challenges.

The first speaker, Professor Veronica Ruiz Abou-Nigm from the University of Edinburgh, began by stressing that PIL should not only be limited to legal professionals or students, but also plays a crucial role in shaping the next generation of citizens in society. She identified three key features that she considers crucial for understanding and teaching PIL: intersystemic, heterarchical and pluralistic thinking.

Professor Ruiz Abou-Nigm also argued that educators must cultivate intercultural competence, awareness and dialogue, all of which are essential in helping students to appreciate diverse cultural contexts and navigate different legal systems to solve real-world problems.

Next, Associate Professor Sai Ramani Garimella from South Asia University discussed how colonial legacies continue to shape PIL in South Asia. Interestingly, Associate Professor Garimella noted that although a significant amount of scholarship on international law had emerged in India over the past 50 years, the vast majority of such academia still viewed the private international law discipline as falling under the broad umbrella of domestic law.

Using the 1984 Bhopal gas tragedy in India as a case study, she explained how PIL mechanisms were underutilized, reflecting a reliance on outdated frameworks. Associate Professor Garimella emphasized the need for a shift towards localised legislation and jurisprudence that reflects regional realities, enabling PIL to serve justice more effectively in postcolonial contexts.

Echoing this sentiment, Dr Chukwuma Okoli from the University of Birmingham highlighted how PIL remains underdeveloped in many African countries including Nigeria. He expressed concern over the lack of emphasis on PIL in Nigerian law schools as well as the scarcity of active scholarship in the field, significantly hindering students’ ability to engage with cross-border legal issues. Dr Okoli also suggested creating more local moot court competitions focused on PIL to encourage student interest and practical learning in Africa.

Professor Aukje van Hoek from the University of Amsterdam highlighted the EU context of teaching PIL in the Netherlands. She advocates an approach that stimulates multilevel and interjurisdictional thinking. This approach equips students to work across legal systems, though Professor van Hoek cautioned against overloading students with too much content. She recommended focusing on critical attitudes and practical skills over rote learning, enabling students to construct creative arguments from different perspectives, rather than being confined to what is the ‘correct’ law.

During the panel discussion which ensued, the speakers grappled with the challenges of designing effective curricula and assessment regimes for PIL. One issue which educators often grapple with was whether to cover a wide range of topics or focus on specific areas such as commercial or family law.

An insightful discussion also took place regarding the traditional teaching sequence for subtopics in the PIL course and whether they vary across university classrooms. For example, whether the subject should start from jurisdiction, then choice of law, and finally judgments. This is the typical way for courts addressing PIL cases. However, due to the overlapping of jurisdiction and judgments, it is not unusual that these two subtopics are taught together.

Moreover, the webinar underscored the need to move beyond Eurocentric and Anglocentric frameworks in PIL education. Professor Ruiz Abou-Nigm called for legal systems in the Global North to engage meaningfully with traditions from the Global South. Similarly, Associate Professor Garimella commented that including perspectives from South Asia and Africa enriches global legal discourse, promoting more inclusive frameworks.

Dr Okoli further stressed that comparative law can foster intellectual independence, encouraging African legal professionals to develop context-specific solutions rather than relying on borrowed precedents. The speakers unanimously agreed that collaboration across regions is essential for building a more dynamic and inclusive field.

The webinar session concluded with reflections on the future of PIL education, towards which Professor van Hoek harbours a simultaneously optimistic and pessimistic view. The speakers emphasized that teaching PIL is not just about technical expertise — it is about fostering openness, intercultural competence, and critical inquiry. By introducing students to critical theories and promoting cross-cultural dialogue, educators can better prepare them for the demands of an increasingly interconnected world.

A recording of the session can be found at https://www.youtube.com/watch?v=F9Vyd3xoXIs.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

S. Deuring: Gender and International Private Law – Comments on the New Article 7a of the German Introductory Act to the Civil Code

Although the attribution of a specific gender to a person has become less important in the German legal order, it can still be relevant. Thus, the rules of descent set out in Sections 1591 et seqq. of the Civil Code provide that a mother is a woman and a father a man. The legislature has therefore done well to address private international law issues of gender attribution in a new specific gender conflict rule, Art. 7a of the Introductory Act to the Civil Code. In doing so, it primarily opted for a nationality-based approach: According to Art. 7a para. 1, a person’s birth gender is determined by the law of the state of whom the person is a citizen. This is remarkable because, in other areas, conflict rules increasingly hold a person’s habitual residence determinative. At the same time, Art. 7a para. 2 provides that a person who habitually resides in Germany can opt for the application of German law to the change of their gender or first name later in life. The following article will outline and discuss these legislative decisions and other questions regarding the scope of Art. 7a.

P. Wittum: No conflict of laws fit for the digital age? Law applicable to contracts for the supply of digital content and digital services

This article shows that Directive (EU) 2019/770 on contracts for digital content and services does not harmonise perfectly with the existing EU conflict of laws. Regarding consumer contracts, Art. 6(1) of the Rome I Regulation convinces through its contract type neutrality; however, the service exception of para. 4(a) does not fit to digital products. Correctly viewed, the Geoblocking Regulation does not affect the directing criterion of para. 1(b). If Member States made use of the option to extend the consumer concept under Directive (EU) 2019/770, conflict of laws would in most cases defeat such an implementation. On the other hand, the trader’s recourse pursuant to Art. 20 of the Directive (EU) 2019/770 is defective. The chain of recourse (implementation variant 1) can be broken if the CISG or a third-country legal system apply. In comparison, the direct claim (implementation variant 2) is superior as the loss cannot be taken by someone halfway up the chain of recourse. The eCommerce Directive, which would also render the direct claim meaningless, is not applicable. If both implementation variants collide, the redress system breaks down entirely. In terms of legal policy, the trader’s recourse should be abolished.

P. Vollrath: Protection of EU Member States’ Treaties with Third Countries in European Private International Law

In a decision from 2020, the Supreme Court of the United Kingdom authorised the enforcement of an ICSID-award in the United Kingdom. This arbitral award being incompatible with primary European Union law, the Supreme Court applied Art. 351(1) TFEU to the ICSID Convention, a multilateral treaty signed by both member states and non-member states. Although all the relevant facts of the case were located inside the EU, the Supreme Court held that “rights” of non-member states were affected and therefore a derogation from primary law was permitted. The Supreme Court reached this conclusion characterising the obligations under the ICSID Convention as obligations erga omnes partes. Following an infringement procedure initiated by the European Commission, the CJEU rejected this reasoning in its judgment of 14 March 2024. For the first time, the CJEU affirms its authority to interpret (at least certain aspects of) member states’ international agreements with non-member states also in proceedings under Art. 267 TFEU. The case note proposes criteria in order to determine whether such agreements in the field of private international law fall within the scope of Art. 351(1) TFEU and analyses the decision’s consequences for the court’s TNT Express Nederland case law.

C. Rüsing: International jurisdiction and applicable law for holiday letting agreements

According to Art. 24(1) of the Brussels Ibis Regulation, in proceedings which have as their object tenancies of immovable property, the courts of the Member State in which the property is situated have exclusive jurisdiction. In Roompot Service (C-497/22), the CJEU held that this provision does not apply in a case, in which a tourism professional lets holiday accommodation situated in a holiday park and offers other services in return for a lump sum. The court based its reasoning on a very broad understanding of the concept of “complex contracts” and on a case-by-case assessment leading to considerable legal uncertainty. The article criticises this and proposes an alternative justification that would generally exempt contracts with tourism professionals from exclusive jurisdiction.

P. Huber/M. Boussihmad: Recognition of a Member State decision to establish a liability limitation fund under maritime law and its effects on obligation claims

In this case, the Bundesgerichtshof dealt with the procedural effects of a Member State decision to establish a maritime liability limitation fund. In the past, the CJEU had already classified such decisions as recognisable under the Brussels?I Regulation. The Bundesgerichtshof now drew the consequences and strictly adhered to the extension of the effect to other Member States in accordance with Art. 36(1) Brussels I Regulation. In addition, the Bundesgerichtshof commented on disputed questions of private international law concerning the limitation of liability under maritime law.

J. O. Flindt: Lugano Convention VS national procedural law: How to classify a cause of action between a spouse and a third party

The international jurisdiction of courts is being increasingly harmonised within the European Union and also among the EFTA states. However, the relevant provisions are scattered across various legal acts. Thus, delimitation problems arise. To delineate the scope of the application of the various regulations, a precise qualification of the legal dispute is required. The Higher Regional Court of Karlsruhe had to decide on a claim for restitution under property law, which a spouse asserted against a third party by exercising a special right of asserting the ineffectiveness of the other spouses’ disposition (Section 1368 of the German Civil Code). The question arose as to whether this was a general civil matter subject to the Lugano Convention or whether it was a matrimonial property law matter for which there was an exception under Art. 1 para. 2 lit. a) var. 5 Lugano Convention. The Higher Regional Court of Karlsruhe makes a distinction according to whether the matrimonial property regime aspect is the main issue of the dispute or merely a preliminary issue. The court concludes that it is only a preliminary issue. The legal dispute should therefore be categorised under property law, which means that the Lugano Convention applies. The author retraces this decision and shows that the question of delimitation is also relevant to the Brussels I Regulation and the EU Regulation on Matrimonial Property. He comes to another solution and argues in favour of a differentiated approach.

F. Berner: Restitution of Wrongs in the Conflict of Laws – a critical evaluation of OLG München, 23.3.2023 – 29 U 3365/17

The classification of restitutionary claims within the Conflict of Laws remains difficult. In particular, the classification of the German “Eingriffskondiktion” is unclear. The Higher Regional Court in Munich (Oberlandesgericht München) held that under both the European and the national jurisdictional regimes, “Eingriffskondiktion” were to be understood as tort claims. Under the Rome II Regulation, however, the court classified such claims not as tort claims but as claims falling under Art. 10 (“unjust enrichment”). The case note argues that the court was correct in its classification under European Conflict of Laws but wrong in its classification regarding the German rules of jurisdiction. Furthermore, the case note challenges the court’s assumption that German national law governs the question of whether one of the defendants had sufficiently contested the court’s jurisdiction.

G. Cuniberti: French Supreme Court Excludes Insolvency Proceedings from Scope of Nationality Based Jurisdiction (Art. 14, C. civ.)

In a judgement of 12 June 2024, the French Supreme Court limited the material scope of nationality-based jurisdiction (Article 14 of the Civil Code) by excluding from its scope insolvency proceedings. The judgment is remarkable as it is the first time in years that the court limits the operation of this exorbitant rule of jurisdiction. The reasons given by the court, however, are substance specific, which makes it unlikely that the judgment announces a more far reaching reconsideration of the rule, in particular on the ground of fairness to foreigners.

M. Klein: Spanish default interest between insurance law and procedure

In Spanish insurance law, there is a provision (Art. 20 para. 4 subpara. 1 LCS) that mandates courts to sentence insurance company defendants to pay default interest without petition by the claimant. The Spanish law is intended to penalise insurance companies for their default. As the provision relates to procedural as well as to substantive law, the question of characterisation arises. This paper argues to characterise it as substantive (insurance) law. Furthermore, it discusses criteria that the CJEU has recently used to differentiate between procedural and substantive law. Finally, this paper suggests liberal construction of the Rome Regulations with respect to Art. 20 para. 4 subpara. 1 LCS and similar provisions that relate to both procedural and substantive law.