Conflictoflaws

Angola deposited its instrument of accession to the 1993 Adoption Convention on 14 March 2024. According to Article 46(2)(a), and as notified by the Depositary (i.e. the Ministry of Foreign Affairs of the Netherlands), this Convention entered into force for Angola on 1 July 2024.

The Depositary provided a six-month period to file objections in accordance with Article 44(3) of the Adoption Convention, which ended on 18 September 2024.

Germany filed an objection on 27 August 2024 and the Netherlands on 17 September 2024. As a result, the Adoption Convention did not enter into force between Angola and those States. For more information, click here.

Interestingly, under this Convention there is approximately a 3-month gap between the date of entering into force and the ending of the objection period.

 

The book Derecho de familia internacional en un contexto de creciente migración: cuestiones vinculadas con el reglamento 2019/1111 has just been released by Aranzadi. The director of the book is Professor Beatriz Campuzano Díaz. It is open access, click here.

The table of contents is as follows (underlined the only article in English):

I PARTE. CUESTIONES VINCULADAS CON EL ÁMBITO DE APLICACIÓN

Tratamiento de la diversidad de estructuras familiares en los reglamentos europeos y continuidad del estatuto personal

Mª Ángeles Sánchez Jiménez

La filiación en el DIPr de la UE: entre la situación actual y las perspectivas de cambio

Beatriz Campuzano Díaz

II PARTE. CUESTIONES VINCULADAS CON LAS NORMAS DE COMPETENCIA JUDICIAL INTERNACIONAL

Los mecanismos de solución de la litispendencia internacional en materia de responsabilidad parental y la comprobación de la competencia judicial internacional. Perspectiva española

Elena Cano Bazaga

III PARTE. CUESTIONES VINCULADAS CON LA SUSTRACCIÓN INTERNACIONAL DE MENORES

El derecho del menor a ser oído y su articulación en el Derecho procesal español. Especial referencia al procedimiento de restitución o retorno

Pilar Martín-Ríos

Análisis de la jurisprudencia sobre el procedimiento de restitución de menores y su regulación en la LEC

Antonio Jesús Calzado Llamas

Problems related to the procedure of minors´returning decisions, with reference to Polish law

Monika Walachowska

IV PARTE. CUESTIONES VINCULADAS CON LA EFICACIA EXTRATERRITORIAL DE RESOLUCIONES, DOCUMENTOS PÚBLICOS Y ACUERDOS

Medidas para facilitar la aplicación en España de las normas sobre reconocimiento y ejecución del Reglamento 2019/1111: propuestas de lege ferenda

María Ángeles Rodríguez Vázquez

Mediación en procesos de responsabilidad parental

Antonia Durán Ayago

V PARTE. LAS RELACIONES CON TERCEROS PAÍSES

Cooperación judicial internacional en materia matrimonial y de responsabilidad parental con el Reino Unido y Gibraltar después del Brexit

Miguel Checa Martínez

El reconocimiento del divorcio marroquí en España. El método comparado como alternativa

Salma El Ouazzani Chahdi

Las resoluciones sobre filiación y las relaciones paternofiliales dictadas por las autoridades españolas y su incidencia en los ordenamientos jurídico español y marroquí: una perspectiva de género

Mª Dolores Adam Muñoz

El papel de las autoridades brasileñas en la lucha contra la sustracción internacional de niños

Aline Beltrame de Moura, Fellipe Leal

VI PARTE. MENORES, FAMILIA, DERECHO DE EXTRANJERÍA Y PROTECCIÓN INTERNACIONAL

¿Novedades en el Derecho de familia de los extranjeros en España? Un nuevo derecho “de familias” también para los extranjeros en España

Elena López Barba

Menores refugiados, una aproximación a las medidas de protección: del Reglamento Dublín al Reglamento Bruselas, pasando por Ucrania

Casilda Rueda Fernández

El derecho de la infancia migrante no acompañada a reunirse con sus familiares en situaciones fronterizas

Lucía Ione Padilla Espinosa

Protección de menores víctimas de matrimonios forzados en el derecho migratorio de la Unión Europea. Especial referencia al derecho de reagrupación familiar

Cristina María Zamora Gómez

El Derecho Internacional Privado y su incidencia en la protección jurídica de las mujeres víctimas de violencia de género. Especial referencia al Reglamento 2019/1111

Juana de los Ángeles Toledo Larrea

 

 

 

 

As announced, the Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its annual XLVII Seminar entitled “The teaching, research and promotion of private international law in Mexico” (La enseñanza, investigación y difusión del Derecho Internacional Privado en México) from 23 to 25 October 2024. The final program is now available here. The deadline for early bird registration is 23 September 2024, click here.

In addition, AMEDIP is organising a webinar on Thursday 26 September 2024 at 15:00 (Mexico City time). The topic of the webinar is international civil judicial cooperation & new technologies and will be presented by Prof. Pablo Enrique de Rosas (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/88653189527?pwd=3R3n0Wy7W1KjQbs0YaBp0dRJZXaoEd.1

Meeting ID: 886 5318 9527

Password: AMEDIP

Participation is free of charge.

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

The United Nations University – Maastricht Economic and Social Research Institute on Innovation and Technology (UNU-MERIT) is organising a seminar online on the children’s right to be heard (incl. in cases of international child abduction) on 25 September 2024 from 14:00 to 16:00 CEST.

Participation is free of charge. For more information and access details, click here.

The programme is as follows:

14:00  Opening remarks
Marieke Hopman (Maastricht University)

14:05  Institutionalized adolescents and their right to be heard
Julieta Marotta (UNU-MERIT) & Laura Lora (Universidad de Buenos Aires)

14:25  Children in post-conflict peacebuilding and their right to be heard 
Lucy Opoka (Leiden University)

14:45  Internationally abducted children & their right to be heard 
Mayela Celis Aguilar (Maastricht University)

15:05  Family judges and the visibility of children in court
Alicia Taliercio (former Family Judge Prov. Buenos Aires)

15:25  Directors and the right of children to be heard
Natalia V. González García Cuerva (director of Hogar También son Nuestros)

15:45  Open dialogue
Moderator: Julieta Marotta (UNU-MERIT)

UNU-MERIT is a research and training institute of the United Nations University (UNU – headquarters in Tokyo and 13 institutes) which collaborates closely with Maastricht University.

Since its foundation in 1926, the Max Planck Institute in Hamburg (or its predecessor) has continuously published the collection of PIL decisions by German courts. ‘Die deutsche Rechtsprechung auf dem Gebiete des Internationalen Privatrechts’, or short ‘IPRspr’, offers the complete and systematic documentation of German case law on private international law, including procedural law and foreign law. The decisions are boiled down to their private international law aspects and categorized according to subject matter. Depending on the case, the headnotes are reformulated or completely rewritten.

Even though both academics and practitioners have always regarded the IPRspr as an important source of information, its practical value was somewhat diminished by the time lag between the reporting period and the publication, as well as by the limited search options. In order to realize its full potential, it was therefore decided in 2019 to convert the IPRspr into a freely accessible database. After several years of planning, programming and updating, this project has now been successfully concluded under the direction of the Centre for the Application of Foreign Law, headed by Jan Peter Schmidt.

On 1 October 2024 at 11:00, the editorial team will officially present the ‘IPRspr 2.0’, as part of the series ‘Current Research in Private International Law’ (registration at <https://events.mpipriv.de/vorstellungderiprspr>; in line with the language of publication, the event will be in German). The database can already be accessed at <iprspr.de>.

The new IPRspr not only offers free and easy access to the PIL decisions of German courts, but also a wide range of search and retrieval functions. The database currently contains around 6,500 decisions dating back to 2004. New decisions are continually being incorporated. Next to the “Hamburg Guidelines for Ascertaining and Applying Foreign Law in German Litigation”, which will soon be published in their English translation, the IPRspr thus forms another building block for the successful dealing with cross-border cases.

As a book publication, however, the IPRspr will be discontinued. The volume published in 2022 with the decisions from 2019 was therefore the last edition of IPRspr as a printed work after almost a hundred years of existence.

The editorial team encourages the PIL community to cite decisions in parallel with the IPRspr number in future and to submit or communicate new decisions. And it looks forward to any other kind of feedback (iprspr@mpipriv.de).

On 8 October 2024, Jeremy Heymann and Marylou Françoise (both Université jean Moulin Lyon 3) will be hosting a conference on ‘International Commercial Courts, State Model(s) of Specialised (Domestic) Courts ?’ in Lyon. The conference constitutes the inaugural event of a series of conferences on ‘International Disputes and Specialised Courts’ and features practical and academic perspectives from numerous jurisdictions. It will be held both in Lyon and online.

The programme can be found here; the registration form can be found here.

Yesterday (18-09-2024), Switzerland acceded to the HCCH Choice of Court Convention and filed a declaration under Article 22 with respect to non-exclusive choice of court agreements. This is particularly noteworthy because this is the first time a declaration under Article 22 of the Choice of Court Convention has been filed. The Choice of Court Convention will enter into force for Switzerland on 1 January 2025.

Unlike the European Union and other Contracting States, Switzerland did not file a declaration under Article 21 of this Convention (declarations with respect to specific matters, e.g. insurance contracts).

The Swiss declaration indicates the following:

Switzerland

18-09-2024

In accordance with Article 22, paragraph 1, Switzerland declares that its courts will recognise and enforce judgments given by courts of other Contracting States designated in a choice of court agreement concluded by two or more parties that meets the requirements of Article 3, paragraph c), and designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, a court or courts of one or more Contracting States (a non-exclusive choice of court agreement).

While this is a significant development, Article 22 of the Choice of Court Convention only applies in a reciprocal manner and only with regard to the provisions of Chapter III (Arts. 8-15). In other words, and as indicated in the Explanatory Report written by Trevor Hartley and Masato Dogauchi: “For Article 22 to operate, the State of origin and the State in which recognition or enforcement is sought must both be Contracting States and they must both have made a declaration under Article 22” (paragraph 241). The Explanatory Report also specifies that “[b]oth declarations must be in force when recognition is sought; otherwise there is no reciprocity” (paragraph 255).

Moreover, and in addition to reciprocity, Article 22(2) of this Convention sets out a series of conditions that the non-exclusive choice of court agreements must satisfy.

The seminal book of Ronald A. Brand and Paul M. Herrup further clarifies “A choice of court agreement will be a ‘non-exclusive choice of court agreement’ for purposes of recognition and enforcement under Article 22 if it designates ‘a court or courts of one or more Contracting States’. This definition contrasts with the final element of exclusivity in Article 3(a) […]” (see, The 2005 Hague Convention on Choice of Court Agreements: Commentary and documents (Cambridge: Cambridge University Press, 2008, 154).

Unless another Contracting State files a declaration under Article 22, the recognition and enforcement of non-exclusive choice of court agreements under this article will sadly not yet see the light of day. In any case, this is very interesting development, which may perhaps influence other existing or future Contracting States to do the same.

The HCCH news item is available here.

The 2024 Asia-Pacific Colloquium of the Journal of Private International Law (JPIL) will be held on 5-6 December 2024 at the Melbourne Law School of the University of Melbourne in Australia.

The format will be similar to previous colloquia where participants are requested to submit a paper for distribution in advance to other attendees. The colloquium will then take the form of a short presentation of each paper by each participant followed by a roundtable discussion. As with previous colloquia, the aim is to assist participants in preparing their papers for submission to the JPIL.

The theme of the 2024 Colloquium is ‘Private International Law: Domestic Law or International Law?’ While private international law forms part of a country’s domestic legal system, it has also been influenced by international developments, such as foreign decisions, scholarly writings, conventions and other transnational instruments. Participants are encouraged to consider topics in private international law that address this theme: for example, some areas have remained wholly domestic in nature while others reveal clear evidence of cross- border harmonisation. Is ‘internationalisation’ of private international law always achievable or desirable?

Please note that participants will be responsible for their travel to and accommodation in Melbourne for the colloquium. Lunch will be provided across the two days of the colloquium, together with a dinner on 5 December.

More information can be found here.

The second edition of the HAIL Advanced Courses in Hong Kong, organised in cooperation with with the Asian Academy of International Law and (AAIL) and the Hong Kong Department of Justice, will take place on 2-6 December 2024 with a focus on one of the key features of Private International Law, namely Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, in particular the HCCH 2019 Judgments Convention.

For this Advanced Course, the Secretary-General of The Hague Academy of International Law (Professor Jean-Marc Thouvenin) has invited leading academics and practitioners from around the world to Hong Kong, including Teresa Cheng (AAIL), Giuditta Cordero-Moss (University of Oslo),  Pietro Franzina (Cahtolic University of Milan), Judge Shen Hongyu (Supreme People’s Court, China), Matthias Lehmann (University of Vienna) and Matthias Weller (University of Bonn), who will deliver eight expert lectures on:

Lecture 1: ‘Recognition and Enforcement of Foreign Decisions: General Presentation’ (Teresa Cheng)
Lecture 2: ‘Contemporary Approaches to the Recognition and Enforcement of Foreign Judgments: A Comparative Overview’ (Pietro Franzina)
Lecture 3: ‘Public Policy as a Limit to Enforcement and Recognition’ (Giuditta Cordero-Moss)
Lecture 4: , ‘Unfolding the 2019 Hague Convention: Genesis, Ratifications, Scope, Key Provisions, and China’s Perspective on International Recognition and Enforcement’ (Judge Shen Hongyu)
Lecture 5: ‘Jurisdictional Filters I: General Concept; Residence and Choice of Court’ (Matthias Weller)
Lecture 6: ‘Judgments that Ruled on Preliminary Questions Outside the Scope of the Convention and Judgments that Consist of Severable Parts’ (Pietro Franzina)
Lecture 7: ‘Jurisdictional Filters II: Contract, Tort, forum rei sitae’ (Matthias Weller)
Lecture 8: ‘Arts. 22 and 25 of the HCCH Judgment Convention’ (Teresa Cheng)

In addition, Matthias Lehmann will deliver expert lectures on ‘Crypto Currency and International Law’ in the afternoon. He will also offer an Introduction to ‘International Comparative Law’ as a separate one-day event on 30 November 2024 (separate registration and fee required; see here).

The registration fee of HK$ 10,000 includes daily lunch and refreshments. Full attendance is mandatory. Interested candidates are invited to complete the online application form by 18 October 2024. All applications are subject to review. Succesful applicants will receive email confirmation by 11 November 2024. Registered participants will have pre-course access to the HAIL e-learning platform that provides reading materials prepared by the lecturers. A certificate of attendance will be awarded to participant with a perfect attendance record.

For further information provided by the organisers, please refer to the attached eFlyer and the AAIL Event Webpage. There you will also find all the necessary information regarding the separate Comparative Law Short-Course.

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

From 29 July till 16 Augustus 2024, the Summer Courses on Private International Law (PIL) were held at the 93rd session of the summer courses of the Hague Academy of International Law. The PIL courses were followed by 250 onsite attendees and remotely 61 attendees from 74 different countries. The inaugural lecture was presented by Lord Lawrence Collins of Mapesbury (Former Justice at the United Kingdom Supreme Court) on the “Use and Abuse of Comity in International Litigation”. In the next three weeks, the general course was given by Charalambos Pamboukis (Professor at the National and Kapodistrian University of Athens) titled “The Metamorphoses of Private International Law”. During these three weeks, six special courses were given by Alessandra Zanobetti (Professor at the University of Bologna) on “The Effects of Economic Sanctions and Counter-Measures on Private Legal Relationships”; Natalie Y. Morris-Sharma (Director at the Attorney-General’s Chambers of Singapore) on “The Singapore Convention and the International Law of Mediation”; Carlos Esplugues Mota (Professor at the University of Valencia) on “New Dimensions in the Application of Foreign Law by Courts (and Arbitrators) and Non-judicial Authorities”; Jack Coe (Professor at Pepperdine Caruso School of Law) on “Non-ICSID Convention Investor-State Awards in Domestic Courts”; Eva Lein (Professor at the University of Lausanne) on “Breathing Space in International Commercial Litigation”; Andrew Dickinson (Professor at the University of Oxford) on “Natural Justice in Recognition and Enforcement of Foreign Judgements”. These PIL experts provided very interesting and valuable insights, including future (desirable) directions on PIL that can guide and inspire students, researchers, legal practitioners, courts, and legislators. The courses will be published by Brill in the series Collected Courses of The Hague Academy of International Law / Recueil des cours de l’Académie de La Haye. The fact that the courses commonly focused on PIL globally, by including national, regional and international PIL, is particularly laudable in view of our interconnected world. This blog aims to describe common threads of the 2024 Online Summer Courses on PIL that may encourage you to read the Hague Academy Collected Courses and inspire further research.[1]

The interaction between public international law and PIL

All lectures showed that there cannot be drawn a sharp distinction between public international law and PIL.[2] Several lecturers have illustrated the current interaction between these two fields of law. On the basis of case law in England and the U.S. involving private parties, Collins argued that the principle of comity has often been misused in favour of the interests of the forum state. For instance, in a case involving a request for evidence from French airplane manufacturing companies by victims of an airplane crash, instead of a first resort to the Hague Evidence Convention, the U.S. Supreme Court ruled that comity requires an assessment of the interests of the foreign nation involved and the requesting nation.[3] Collins argued that in practice, U.S. and English courts do not give effect to foreign blocking statutes, like the French Blocking Statute, but have ruled in favor of disclosure of documents and information. As the main abuse of comity, Collins pointed out that the Court of Appeals for the Second Circuit in New York has rejected the enforcement of arbitral awards for reasons of forum non conveniens. With respect to the grant of anti-suit injunctions, courts nonetheless ruled that comity requires caution as these injunctions involve an indirect interference with proceedings of foreign courts unless the injunction aims to prevent a breach of a choice of court agreement or arbitration agreement.[4] Another illustration on the interplay between public and private international law can be drawn from the Zanobetti’s lectures who argued that economic sanctions may set aside the lex contractus by means of the public policy exception in PIL. In the context of investor-state arbitration, Coe and Morris-Sharma have referred to the intersection between PIL and public international law. Coe in particular demonstrated the common features between business-to-business arbitration and non-ICSID (International Centre for Settlement of Investment Disputes) arbitration, both types of arbitration result in awards to which the New York Convention applies. Morris-Sharma has argued that although the investor-state dispute settlement regime mainly concerns state-to-state obligations, a foreign (private) investor may bring a claim directly against the state. While Morris-Sharma gave her lectures on the United Nations Convention on International Settlement Agreements Resulting from Mediation, adopted in 2018, (the Singapore Convention on Mediation, SCM), she noted that whereas this treaty concerns a public international law instrument, it has as subject matter the regulation of private relationships and therefore concerns issues of PIL. In view of current global issues, Morris-Sharma emphasised the importance of “continuing conversations” between public and private international law to bring order into global governance. In addition to research, Maastricht University shows that education could also be a tool to foster these type of conversations as students of the European Law School are taught PIL integrated into courses of European and international law.[5]

The global governance role of PIL[6]

Several courses have demonstrated the increasing role that contemporary PIL plays regarding global goals, varying from the protection of human rights, such as to guarantee the right of a fair hearing in the context of the recognition of foreign judgements as indicated by Dickinson and Lein, to trans-human goals like the protection of the environment as pointed out by Pamboukis. Pamboukis also emphasised the importance of the ‘peacemaking’ role of contemporary PIL, in the sense of the pacification of different values, which facilitates pluralism and the acceptance of the ‘otherness’.[7] However, Pamboukis argued that the trend of anti-globalisation may lead to other metamorphoses of PIL. Esplugues Mota pointed out that there already exist a trend of “nationalisation of transnational situations” fostered by PIL. For instance, as a result of the anti-immigration trend in western countries, the connecting factor of the nationality has increasingly been changed into the ‘habitual residence’ to nationalise situations. Nonetheless, in view of the current global problems, such as climate crises, war and economic sanctions, Jean-Marc Thouvenin (Secretary-General of The Hague Academy of International Law, Professor at the University Paris Nanterre) made in his welcome speech of the 2024 Summer Course the bold statement that “private international law is faring better these days than public international law”. The lectures given by Lein showed that PIL can indeed be a valuable global governance tool in this era of “polycrises”[8] as it facilitates international trade by providing “breathing space” mechanisms to international contractual parties. For instance, parties can generally make a choice for a national contract law that enables them to renegotiate or adapt their contract in case unforeseen circumstances impede the performance of contractual obligations.

Justice as objective of PIL

The courses showed that PIL is increasingly providing justice and PIL should also aim to serve justice. Yet, as mentioned by Pamboukis, the notion of justice is broad.[9] According to Pamboukis, justice is fairness, which includes equality. In the context of PIL, he illustrated that equality is, inter alia, visible by the multilateral character of conflict-of-laws rules and rules that protect weaker parties. Based on natural justice, Dickinson also referred to the importance of the principle of equality for the law that includes both substantive and procedural aspects. To safeguard this principle, he pointed out the public policy exception regarding the recognition and enforcement of foreign judgments.

As the meta-metamorphosis of the traditional, Von Savigny-based, conflict-of-laws rule, Pamboukis pointed out the change of its purpose from conflictual justice, i.e. justice based on geographically closest connection, to substantive justice in the sense of a just, fair result by means of a more flexible conflict-of-laws rule and methods. Pamboukis advocated the increasing important role of the method of recognition, in particular with respect to acquired rights and personal status. He also referred to adaptation and a more flexible application of conflit mobile to achieve a just result in concreto. Furthermore, Pamboukis argued to apply in PIL the principle of proportionality as balancing the concrete interests involved should lead to a fair result. The decision of the French Supreme Court on 17 November 2021, which opened up the possibility of recognising a foreign bigamous marriage in a particular case,[10] seems to be in line with the direction of PIL as advocated by Pamboukis.

With respect to the interpretation of justice in PIL, human rights are also increasingly playing an important role. As indicated by Dickinson and Lein, fair trail rights in human right treaties, like the right to be heard, have influenced the interpretation of the public policy exception in the context of the recognition of foreign judgements. Esplugues Mota nonetheless pointed out the “human rights discourse” regarding the recognition of personal situations abroad as a factor militating against the application of foreign law.[11] The recent Anti-SLAPPs (‘Strategic lawsuits against public participation’) Directive (EU) 2024/1069 could also be seen as an expression of the human rights impact on PIL that influences the concept of justice in the PIL.[12]

Several lecturers highlighted the importance of justice at procedural level. Zanobetti called for further research on the issue whether the ‘no-claim’ clause related to economic sanctions is contrary to the right to have access to courts. Lein argued that PIL provides various tools that facilitate access to justice in times of crises, such as the change of a choice of court clause that can easily be done according to various PIL instruments[13]. Dickinson advocated to pursue natural justice by recognising and enforcing foreign judgements unless they are unjust or inconsistent with the core values of the requested state. Furthermore, the procedure that resulted into the foreign judgement should have complied with procedural principles of natural justice such as due process, and the competence of the court of origin should be in accordance with these principles such as jurisdiction based on the parties’ consent. Dickinson illustrated that several national legal systems and treaties reflect natural right-based principles with respect to the recognition of foreign judgements.[14] On the basis of natural law, Dickinson also advocated that states and courts should pursue multi-dimensional justice when developing rules of recognition and enforcement, which requires an assessment on different levels of relational perspectives, including the parties to the dispute, states, and other human beings. Morris-Sharma argued that access to justice is also facilitated by alternative dispute resolution mechanism. However, Esplugues Mota pointed out that the risk of “second class justice” is high in case arbitrators apply foreign law wrongly, as this application is generally even not subject to control.

The changed state-based approach in PIL

While in international civil disputes, PIL traditionally indicates in which state, or states, the court is competent and the law of which country, or countries, applies, most of the lecturers addressed the growing role of arbitrators with respect to the application of foreign law, including non-state law. Nonetheless, Dickinson’s lectures on the principle of peaceful dispute resolution derived from natural law pointed out the importance of access to an independent and impartial judge who provides binding solutions and the possibility of appeal. As mentioned earlier, Esplugues Mota emphasised the risk of “second class justice” in case of alternative dispute resolution. Several lecturers referred to the use of AI technologies in dispute resolution, including AI courts. However, as indicated by Lein, judgements based on the use of AI technologies run the risk of not being recognised on the basis of the public policy exception. This risk seems high considering the fact that AI technologies are not (yet) accurate and fully impartial as they are based on human biases, like gender bias.

Several courses showed that the application of non-state law is playing an increasing role with respect to cross-border disputes between private parties.[15] As explained by Esplugues Mota, the application of non-state law may entail difficulties as regards its meaning, content, characterisation, and level of certainty. Esplugues Mota nonetheless asserted that certain non-state rules, namely the law of the societas mercatorium,[16] religious law,[17] and indigenous law,[18] are increasingly taken into account, or even applied by non-state and state authorities. In this way, PIL facilitates legal pluralism.

Concluding remarks

As argued by Pamboukis, PIL generally became more open, flexible. The courses indicated the need for PIL to remain open to the influence of human rights, pluralism, non-state law, including the law of nature, and the ‘otherness’. Fingers crossed that this openness of PIL continuous to grow in spite of the upcoming movement of anti-globalization, nationalism, including right-wing extremism. Therefore, international cooperation in PIL remains highly important.

[1] As I followed the courses online, this blog does not concern the seminars or elective courses that were given onsite at the Hague Academy of International Law. The assignment for writing this blog was given by Maastricht University, which made it possible for me to attend these courses.

[2] The scholar Alex Mills has frequently published on the blurry distinction between public international law and private international law.

[3] See Societe Nationale Industrielle Aerospatiale v. U.S. District Court 482 US 522 (1987).

[4] Collins referred to the Laker Airways litigation, inter alia, Laker Airways Ltd v Sabena Belgian World Airways, 731 F. 2d 909 (DC Cir 1984).

[5] On the combination of teaching of public and private international law, see also Poomintr Sooksripaisarnkit and Dharmita Prasad, “Private International Law and Public International Law-Increasing Convergence or Divergence as Usual?”, in: Poomintr Sooksripaisarnkit and Dharmita Prasad (eds.), Blurry boundaries of public and private international law: towards convergence or divergent still?, Singapore: Springer 2022.

[6] Robert Wai and Horatia Muir-Watt are among the scholars who frequently published on the role of global governance role of PIL.

[7] With respect to the concept of pluralism and the ‘otherness’, Pamboukis referred to the scholar Santi Romano. On this interesting topic, see also Horatia Muir Watt who has published her 18th Rabel Lecture in November 2002 on Alterity in the Conflict of Laws-An Onthology of the In-Between.

[8] Lein defined the term ‘polycrises’ as “the simultaneous occurrence of several catastrophic events” such as pandemics, environmental disasters, and armed conflicts. Lein referred in this context to Catherine Kessedjian, “Chapter 12, International Law and Crisis Narratives after the Covid-19 Pandamic”, in: Mbengue, d’Aspremont, Crises Narratives in international Law 2022, pp. 132 ff.

[9] With respect to various views on the concept of justice in PIL, see also Michael S. Green, Ralf Michaels, Roxana Banu (eds), Philosophical Foundations of Private International Law, Oxford University Press 2024.

[10] See the EAPIL blog post, on 6 January 2022, “French Supreme Court Opens Door for Recognition of Foreign Bigamous Marriage” by Marion Ho-Dac.

[11] Esplugues Mota referred in this context to the Wagner and J.M.W.L. v. Luxembourg case of 2007 involving the right to have a family on the basis of Article 8 European Convention on Human Rights.

[12] With respect to improvements and challenges of the Anti-SLAPPs Directive (EU) 2024/1069 in the context of PIL, see my forthcoming article in Nederlands Internationaal Privaatrecht no. 4, 2024.

[13] In this context, Lein referred to, inter alia, Article 25(2) Brussels I Regulation (EU) 1215/2012.

[14] Dickinson referred to, inter alia, the criterion of “fundamental principles of procedural fairness” in Article 7(1)(c) of the 2019 Hague Judgements Convention.

[15] Ralf Michaels has frequently published on non-state law in the context of PIL. See, inter alia, Ralf Michaels, “The Re-State-Ment of Non-State Law: The State, Choice of Law, and the Challenge From Global Legal Pluralism”, 51 Wayne Law Review 1209-1259, 2005.

[16] In this context Esplugues Mota referred, inter alia, to Article 13. III of the Private International Law Act of Uruguay of 2020; Article 3 Hague Principles on Choice of Law in International Commercial Contracts of 2015.

[17]  Esplugues Mota referred to, inter alia, the decision of the French Cour de cassation on 6 May 1985 that awarded damages to a divorced Jewish woman as she could not remarry within the Jewish faith because her husband did not ‘give the Get’.

[18] In this context Esplugues Mota referred, inter alia, to Article 1(1) of the South African Law of Evidence Amendment Act 45 of 1988 on judicial notice of law of foreign state and of indigenous law.

The 19th Regional Private International Law Conference will take place on 20 September 2024 at the Faculty of Law, University of East Sarajevo, Bosnia and Herzegovina, with the support of the Deutche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ). The theme of the Conference is Application of General Legal Principles in Contemporary Private International Law.

The opening panel will feature the following topics and speakers:

• Christophe Bernasconi, Secretary General, The HCCH and its Ongoing Work, with a Focus on Transnational Litigation, The Hague Conference on Private International Law
• Vesna Lazic, Corporate Sustainability and Due Diligence Directive (CSDDD): Relevance for Private International Law, Utrecht University and Asser Institute, The Hague
• Meliha Povlakic and Sevleta Halilovic, The Collision Issues Regarding the Agreement as to Succession in B&H: Cross-Border and Interlocal Conflicts of Law, University of Sarajevo, Faculty of Law
• Toni Deskoski and Vangel Dokovski, Temporal Application Challenges of Private International Law: A Judicial Perspective, University Ss. Cyril and Methodius, Faculty of Law Iustinianus Primus

The full programme of the conference can be found here.

The working language of the Conference will be English, and it will also be streamed online via Zoom (https://us06web.zoom.us/j/84284962839?pwd=alsUT8OQf9DR0y5shNlG0u12dxnc01.1; Meeting ID: 842 8496 2839; Passcode: 059110).

Conference proceedings will be published next year. Last year’s conference proceedings can be found here.

The International Social Service (ISS) is celebrating its 100th anniversary and to mark this milestone it is organising several events in Geneva from 7 to 10 October 2024. In particular, it will be holding an International Conference entitled “Throughout time, across borders: Navigating child protection and restoring family links” on 9 October 2024 in a hybrid format.

As stated on its website: Confirmed panelists and moderators represent the following organisations: International Social Service Network, Hague Conference on Private International Law, UNICEF, UN Committee on the Rights of the Child, Government of Switzerland, Government of South Africa, University of Bristol, Maastricht University, NYU Steinhardt School of Culture, Education, and Human Development, and other professionals from partner organisations.

The International Conference is scheduled between 9 am – 6 pm CET. The agenda and the registration form are available at the following link: https://evenium.events/iss-100-conference. There is a fee to participate (reduced fee for students).

As many of you may know, ISS has been a key player in raising awareness, developing and implementing measures for the protection of children on the move and undoubtedly influences Private International Law. Among its publications are:

• Children on the Move
• Kafalah – Preliminary analysis of national and cross-border practices
• Several publications on adoption
• Several publications on International Family Mediation

ISS has also been involved in the development and during the negotiations of HCCH Conventions, for example by submitting the groundbreaking response to a Questionnaire during the preparatory work for the Child Abduction Convention: See, Summary of findings on a Questionnaire studied by the International Social Service, Preliminary Document No 3 of February 1979 – HCCH, Actes et documents de la Quatorzième session (1980) – Child Abduction, tome III, Child Abduction pp.130-143.

The Swiss Institute of Comparative Law (Lausanne) is looking for a Postdoctorand in transnational family law (80%).

The announcement can be found here.

The position will be integrated in the SICL’s team of international lawyers and researchers and be part of a project funded by the Swiss National Science Foundation on applicable law, jurisdiction, recognition and international cooperation in the field of filiation with foreign elements.

The aim is to respond to the new legal requirements created by the use of innovative methods of assisted reproductive techniques (ART) and new forms of surrogate motherhood.

 

According to the announcement, the tasks required will be:

 

• Collecting, classifying and analyzing Swiss and foreign law, case law and relevant law and literature
• Aggregation and disaggregation of data, identifying variables and highlighting specific features, leading to different insights
• Drafting comparative reports in comparative civil law, civil procedure and private international law
• Contributing to deliverables (book, workshop and conference)
• Exchange and proactive coordination with all partners of the project

 

The profile expected reads the following:

 

• PhD in comparative law (civil and procedural law) or private international law in the field of filiation (including ART and surrogate motherhood) or in family law in general
• Solid knowledge of one or more of the following legal fields: family law, administrative law, filiation (including ART and surrogate motherhood), civil procedure, recognition of foreign acts and decisions
• Able to deliver structured and precise work combined with the ability to put legal knowledge into practice
• Open minded and autonomous team player with good writing skills
• At ease in the use of software as Endnote and Zotero
• Knowledge of two official Swiss languages and a very good command of written and spoken English

This is a fixed term position of 4 years linked to a SNSF sponsored research project.
For further information kindly contact Dr. Ilaria Pretelli.

A book launch for Family reunification in Europe: Exposing inequalities will take place on 19 September 2024 at the University of Antwerp and online (at 11:15 am CEST time).

To register click here. Below is the agenda.

11:15-11:30: Exploring inequalities in family reunification in Europe: perspectives from legal and social sciences

Ellen Desmet & Milena Belloni

11:30-11:40: How race and gender function in European family migration law

Betty de Hart

11:40-11:50: The recognition of child and polygamous marriages in Belgium: alignment between private international law and migration law?

Leontine Bruijnen

11:50-12:00: Domestic violence within the securitisation of (family and love) migration

Giacomo Orsini

12:00-12:30: Q&A

The Hague Conference on Private International Law (HCCH) will be hosting the 13th International Forum on the electronic Apostille Programme (e-APP) together the Ministry of Justice of Kazakhstan and the Maqsut Narikbayev University on 21 and 22 October 2024 in Astana, Kazakhstan.

The full announcement reads as follows:

The e-APP is an integral part of the operation of the HCCH 1961 Apostille Convention. The e-APP is designed to ensure the practical, effective and secure operation of the Apostille Convention in an environment of constant technological development.

The International Forum on the e-APP gathers experts and stakeholders from around the world and provides a unique international platform for governments, organisations, and the private sector to learn more about the benefits of the e-APP, to promote its effective implementation, and to discuss the latest developments in relation to the e-APP worldwide.

The e-APP Forum will be held for the first time in Central Asia and will be jointly organized by the HCCH, the Ministry of Justice of Kazakhstan, and the Maqsut Narikbayev University. Participants are encouraged to attend this event in person, if possible.

Registration is possible here.

 

The Centre for Private International Law and Transnational Governance at the University of Aberdeen published several blog posts on Perspectives on Law in a Transnational Context. The blog post series explores the transnational tendencies in applying laws and rules of law and critically assesses their purpose from different legal and ethical perspectives.

The blog post series started with the post ‘Tracing the Transnational Evolution of Commercial Law’, exploring transnational commercial law’s development from its roots in Roman law to modern international commercial arbitration, authored by Jonathan Ainslie and Patricia Živkovi?. It highlights the transnational nature of legal authority, starting with the ius commune and lex mercatoria in medieval Europe, which laid the foundation for cross-border commercial practices and principles for dispute resolution which had cross-border application. The post further examines how international arbitration today employs a similar transnational methodology, allowing arbitrators to apply non-state laws and broader principles, thus challenging the traditional notion of state authority as the sole source of legitimate legal rules.

In the next blog post,Gloria Alvarez discusses the concept of ex aequo et bono as the applicable law in international arbitration from a transnational perspective. The author lays out the meaning – and value – of ex aequo et bono beyond the principles of good faith and equity established in common and civil systems. To do so, the blog makes reference to cases in international investment treaty practice, where ex aequo et bono has been put to test regarding its practical limitations and criticisms.

Alice Krzanich‘s blog explores transnational women’s legal history, focusing on the reform of sexual slander laws affecting women in the 19th century. The author highlights how common law jurisdictions like New Zealand, Australia, the U.S., and Canada enacted legislation that removed the need for women to prove economic loss (special damage) in slander cases involving accusations of unchastity. This legal evolution, sparked by shared dissatisfaction with restrictive defamation laws, illustrates how domestic legal changes often reflected broader transnational trends inspired by legal reforms in other common law nations. Additionally, while these reforms empowered women, they also reinforced certain sexist and racial stereotypes, demonstrating the duality in their impact. Through this case study, Krzanich emphasises how global legal movements influenced women’s rights across different jurisdictions.

Francesca Farrington‘s blog, ‘Oil in the Amazon’, explores how corporate power may influence the development and application of transnational legal norms through an analysis of the Chevron-Ecuador case. Farrington examines how Chevron were able to leverage their corporate power to the disadvantage of victims of corporate polluting and influence the development of key legal norms that govern transnational accountability. The case highlights how corporations can shape legal norms to their advantage, often reinforcing global inequalities and perpetuating historical power imbalances.

Nevena Jevremovic’s post, ‘“Rhetorical Community” and the Question of Equality in the Vienna Sales Convention’, explores the CISG (Vienna Sales Convention) in its broader political context. As a uniform legal text, the CISG constitutes a rhetorical community where discourse is essential in the continuity of uniform law among the different legal, social, and political context of its members. Jevremovic emphasises that the inequalities present during the CISG’s creation (and in contemporary trade) do not occupy a prominent place in the CISG’s discourse. She critiques the market-focused application of the CISG, arguing that it overlooks socio-economic inequalities and colonial legacies that still impact global trade. The blog post calls for a more inclusive interpretation of the CISG to address disparities among contracting parties.

The Centre for Private International Law has expanded its core scope of research and teaching activities over the modes of transnational governance. To reflect these changes, in 2024, the Centre’s mission was formally broadened due to globalisation tendencies in law, and the Centre was renamed ‘the Centre for Private International Law and Transnational Governance’. This blog series enhances the understanding of specific aspects of transnational governance and its fundamental connection to the field of private international law.

We welcome any commentaries or additional views on this and other topics.

The Centre for Private International Law at the University of Aberdeen published its newest blog post series in early August. This series is based on the keynote speeches and panel discussions from the 2024 PAX Moot Half Day Conference, held on 26 April 2024 in Ljubljana. The insightful event was co-organised by the Centre for Private International Law of the University of Aberdeen, the Faculty of Law of the University of Ljubljana, and the PAX Moot Project, co-funded by the European Commission.

The conference, titled ‘Private International Law in Dispute Resolution,’ brought together leading experts to explore the evolving landscape of private international law and its role in resolving cross-border disputes. Throughout the series, the speakers reflected on their key themes and the discussions that emerged from the event, providing practical insights that can be applied in real-world scenarios.

The first post brings you Professor Ronald Brand’s opening keynote speech on drafting choice of court and arbitration agreements, exploring private international law points from a transaction planning perspective.

The second post, Business and Human Rights Litigation and Private International Law, highlights findings shared by panellists on sustainability and private international law, and human-rights-related torts in the private international law of the European Union.

The third post, The Law Applicable to the Arbitration Agreement, will deliver on the legal complexities and considerations in determining the applicable law for arbitration agreements, especially in light of the latest amendments to the 1996 English Arbitration Act.

Finally, the fourth post provides a new perspective on the impact of globalisation on private international law, arguing that the so-called neutrality of private international law is becoming a fiction embedded in a very specific liberal and Eurocentric worldview.

Following the publication of the book Research Methods in Private International Law: A Handbook on Regulation, Research and Teaching (Elgar, 2024), edited by Xandra Kramer and Laura Carballo Piñeiro (see our earlier news item), we are organising two launch events.

The first webinar is on 10 September 2024, from 10-12 CEST. After a brief introduction by the editors, eminent contributors to the book will present their views on methods of regulation, research and education in private international law. Topics addressed include recognition as a method, European law perspectives, the essence of comparative law, law & economics, and feminism in private international law.

• The webinar is co-organised by the University of Vigo. Speakers are Dulce Lopes (University of Coimbra), Adriani Dori (Erasmus University Rotterdam), Diego P. Fernández Arroyo (Sciences Po Law School Paris), Giesela Rühl (Humboldt University of Berlin), and Mary Keyes (Griffith University of Brisbane). You can register here.

The second webinar is on 23 September 2024, from 10-11.30 CEST. This webinar will zoom in on the importance and methodology of education in private international law, addressing general educational aspects in different jurisdictions including The Netherlands, India, UK, and Nigeria from the perspective of colonialism and history, the significance of teaching PIL, curriculum development, the use of AI, design of assessment, etc .

• This webinar is co-organised by the University of Vigo, the American Society of International Law (ASIL) and hosted by the University of Sydney (moderated by Jeanne Huang). Speakers are Veronica Ruiz Abou-Nigm (University of Edinburgh), Chukwuma Okoli (Birmingham Law School), Abubakri Yekini (University of Manchester), Ramani Garimella (South Asian University) and Aukje van Hoek (University of Amsterdam).You can register here.

Written by Tarasha Gupta and Akshath Indusekhar, Jindal Global Law School, OP Jindal Global University, Sonipat, India

Recently, the Singapore International Commercial Court (“SICC”) in DJO v. DJP & Others set aside an award authored by retired Indian judges that it deemed to have copied and pasted portions of another arbitral award. The SICC reasoned its decision on the basis that the copy and pasting reflected the arbitrators’ partiality and their being influenced by arguments extraneous to the arbitration at hand. This article unravels the rationale for the SICC’s judgement in this peculiar case and explores its implications on international commercial arbitration for seat courts across jurisdictions worldwide.

 

Brief Facts

 

The Claimant, DJO, was the Respondent in the Arbitration. The Defendants / Claimants in the Arbitration are a consortium of two Indian companies and one Japanese company (“Consortium X”), formed to tender for a contract with DJO relating to the Western Dedicated Freight Corridors. DJO and Consortium X entered a contract in August 2017, incorporating the International Federation of Consulting Engineers Conditions of Contract and providing for disputes to be resolved by arbitration seated in Singapore, in accordance with the ICC Arbitration Rules 2021 (“ICC Rules”). The substantive contract was to be governed by Indian law.

 

In January 2017, the Indian Ministry of Labour issued a Notification increasing the minimum wages payable to workmen. More than three years later, in March 2020, Consortium X sought an adjustment for additional labour costs due to the Notification. After the processes set out in the contract were unsuccessfully exhausted and attempts at an amicable settlement and a claim before the Dispute Adjudication Board were unsuccessful, arbitration commenced between Consortium X and DJO (“the Arbitration”). The three-member arbitral tribunal constituted of three eminent retired Indian judges (“the Tribunal”). Judges A and B were nominated by each party. Judge C was nominated by Judges A and B and approved by the ICC.

 

Simultaneously, two other arbitrations took place relating to the effect of the Notification on contracts relating to the Eastern Dedicated Freight Corridor. Judge C was appointed as arbitrator in these other arbitrations as well. The hearings in these arbitrations had substantially concluded before the hearings began in the Arbitration between DJO and Consortium X. Crucially, while the Arbitration was seated in Singapore and conducted according to the ICC Rules, the other two arbitrations were seated in India and conducted in accordance with the rules of arbitration of the International Centre for Alternative Dispute Resolution, New Delhi. Accordingly, the lex arbitri for the two other arbitrations was the Indian Arbitration & Conciliation Act, 1996.

 

Arbitrator Bias and Copied Portions of Arbitral Awards

 

DJO submitted that 278 out of 451 paragraphs of the final award passed in the Arbitration (“the Award”) were substantially reproduced from an award in one of the two other arbitrations. Consortium X accepted that 212 paragraphs of the Award were taken, but disagreed with the degree of reproduction. The SICC viewed it unnecessary to resolve the dispute as to which paragraphs were copied– the parties’ agreement on this point was enough to show that Judge C heavily relied upon, and applied, his knowledge of the other two arbitrations in the present Arbitration.

 

The SICC noted several problems in the Award passed in the Arbitration vis-à-vis that passed in the two other arbitrations. The Tribunal referred to submissions from the other arbitrations in the Award, which were never made by the parties to the Arbitration. The Tribunal attributed arguments which were never raised by the parties to them, including relying upon authorities which were never drawn to the Tribunal’s attention. The Tribunal also failed to appreciate the difference in the wording with the contracts in the other arbitrations and DJO/Consortium X’s contract, referring to provisions which were not found in the contract between DJO and Consortium X. To the SICC, this clearly demonstration that the Tribunal drew upon the submissions made in the other arbitrations, rather than deciding solely based on that made in the Arbitration.

 

Applicable Legal Principles

 

Based on parties’ submissions, the SICC considered the plausibility of setting aside the impugned Award based on three provisions. First, Article 34(2)(a)(iv) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”) was considered, which allows for an arbitral award to be set aside due to non-compliance with the parties’ agreed upon arbitral procedure. Second, Article 34(2)(b)(ii) of the Model Law was considered, as it allows for an award to be set aside upon contravention of the public policy of Singapore. Third, the SICC considered whether Section 24(b) of Singapore’s International Arbitration Act, 1994 (“IAA”) was attracted, as it allows an award to be set aside due to a breach of principles of natural justice that prejudices parties’ rights.

 

The SICC also recalled legal principles applicable to the parties’ chosen arbitral procedure, i.e. the ICC Rules. For example, Article 11 of the Rules provides for the impartiality and independence of the arbitrators and towards all the parties involved in the arbitration. Article 22 deals with the conduct of arbitration and casts duties upon the arbitral tribunal to, inter alia, conduct the arbitration in an expeditious manner with due cognizance to the dispute’s complexity (Article 22(1)) and act fairly and impartially, hearing each party’s case (Article 22(4)).

 

The SICC also referred to Section III of the ICC’s 2021 Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration (“the Note”), which deals with arbitrators’ impartiality and independence. Specifically, Paragraph 27 of the Note enunciates the requirement for arbitrators to consider relevant circumstances, including if they acted in a case involving one of the parties or their affiliates, or acted as an arbitrator in a related case.

 

Holding on Legal Principles

 

First, the SICC clarified that the Tribunal’s application of the incorrect lex arbitri to determine interests and costs was insufficient to set aside the Award. The Award referred to Sections 31(7) and 31A of the Indian Arbitration & Conciliation Act 1996, rather than any reference to Singaporean law. Yet, the SICC noted that its doubt on the Tribunal’s independence of thought was caused not by its error of law (which is irrelevant to a setting aside application), but its reliance on the reasoning of the other awards.

 

Second, DJO contended that the Award should be set aside on account of non-compliance with the agreed arbitral procedure under Article 34(2)(a)(iv) of the Model Law. It was contended that Article 32(2) of the ICC Rules provide that the Tribunal should give the reasons for its decision in an award, and the Tribunal in the present case had not done that by virtue of their copy-and-pasting. The SICC considered it unnecessary to consider these submissions, as the argument in effect concerned the Tribunal’s failure to independently and impartially consider the arguments in the Arbitration, which relates to the field of natural justice.

 

Third, the SICC considered whether the principles of natural justice had been violated. It reiterated the intrinsic nature of such principles (including the right to a fair hearing and the rule against bias) in the appointment of arbitrators under Articles 11 and 22 of the ICC Rules. Recalling a slew of judgments, it also acknowledged the high threshold and exceptional nature of application of principles of natural justice. DJO made 4 submissions in this regard. First, that the rule against bias precludes an arbitrator from pre-judging a case, and the use of knowledge obtained from unrelated arbitration proceedings constitutes impermissible pre-judging. A necessary antecedent question was whether the Tribunal applied its mind to the issues in an independent, impartial and fair manner? The Court referred to CNQ v. CNR, where the High Court stated that the test is whether a reasonable observer, upon due consideration of the relevant facts, suspects that the decision maker reached a conclusion even before the parties’ submissions. In DJO’s case, the test of a hypothetical fair-minded, reasonable person inevitably yielded the apprehension of pre-judgement. The Award attributed submissions made in an earlier arbitration to the counsels in the present case, indubitably striking at the mantle of an impartial, independent mind. Thus, the Court inferred a very real apprehension of bias, meeting the threshold for violation of principles of natural justice. Second, DJO argued they had not been granted a fair hearing or a fair, independent, and impartial decision. The SICC responded that when a tribunal draws heavily from submissions from a previous case and fails to provide the parties with an opportunity to address them, a fair hearing is not granted. DJO’s third and fourth grounds concerned the right to a fair hearing. As sub-sets of the second ground, the Court found no need to address them separately.

 

Ultimately, it concluded that the Award was liable to be set aside due to the breach of natural justice. However, it acknowledged that the mere fact of copying is insufficient to vitiate an arbitral award. Here, it was set aside because the reproduction was not with a view to hide the origin of the copied work but was merely to minimize the work of the Tribunal in writing the award, which ultimately violated the principles of natural justice.

 

Fourth, DJO alleged the Award contravened the public policy of Singapore (Article 34(2)(b)(ii) of the Model Law). The SICC acknowledged the exceptional nature of the public policy ground for setting aside arbitral awards, and the high threshold established by previous jurisprudence. It stated that since the finding on the contravention of principles of natural justice could set aside the arbitral award, this would render a public policy assessment unnecessary. However, the Court rejected the blanket assertion that all forms of plagiarism would fundamentally be contrary to public policy.

 

Implications

 

By considering the Model Law and ICC Rules, the SICC’s judgment has the potential to shape the interpretation of seat courts’ powers across the globe. In this regard, the judgment has several favourable implications.

 

For instance, the judgement crucially maintains the high threshold that has and ought to characterize the public policy ground of setting aside arbitral awards. While most jurisdictions allow for arbitral awards to be set aside upon contravention of public policy, an overly broad scope of application could grant Courts a carte blanche to disregard foreign-seated arbitral awards unfavourable to a local party. The reiteration of the exceptional nature of the public policy ground for setting aside arbitral awards is paramount in this regard.

 

Further, the SICC clearly laid down which nature of copying is prohibited, rather than universally disallowing it in any form. It held that a degree of dishonest intention and concealment is intrinsic to the phrase “plagiarism”, whereas in the case at hand, the copy-and-pasting was merely to minimise the Tribunal’s work, rather than to conceal work’s origin; the Tribunal may have considered this to be fit owing to the conspicuous similarity in legal questions. It rightly noted that merely copying cannot render an arbitral award liable to be set aside. Rather, in the case at hand, the award was set aside as its anomalies that reflected a violation of the principles of natural justice. This differentiation is particularly relevant, since Courts worldwide often reproduce paragraphs of judgements and scholarly work which recall the jurisprudence on a subject, albeit with due attribution to the sources. In any case, reproduction made in good faith, to expedite proceedings on identical matters, ought not to be prohibited in all forms. The SICC rightfully assessed the copy-and-pasting on its impacts on the parties rather than laying down a universal rule.

 

The SICC also reinforced the principle of minimal curial intervention in arbitral awards. At one juncture, for example, it acknowledged that a crucial factual difference across the arbitrations was the length of the delay between the Notification and the time when Consortium X raised the issue of adjustment in the main Arbitration. DJO contended that the Tribunal’s failure to focus on this factual peculiarity itself undermined the Award’s validity. However, the SICC deemed this claim unnecessary to rule upon, insofar as deciding it would entail reviewing the substantive merits of the Tribunal’s findings, thereby exceeding the jurisdiction of a seat court. The SICC’s restraint in not re-entering the substantive merits of the dispute even while recognising an error regarding the same demonstrates a solid commitment to upholding the finality of arbitral awards, improving the certainty and efficacy of this mode of dispute resolution. By choosing to base its analysis on the principles of natural justice instead of the Tribunal’s application of the incorrect lex arbitri or its finding on facts, the SICC has strengthened established principles regarding the limited role of seat courts in an arbitral award. This has positive implications for international commercial arbitration, which benefits from party autonomy and respecting private arbitral tribunals’ findings while limiting deference to domestic judicial systems.

 

That said, the Court’s method of clubbing certain issues together may lead to uncertainty regarding its precedential value for other jurisdictions following the Model Law.

 

First, the Court’s non-consideration of the alleged public policy aspects of the breach of principles of natural justice has undesirable implications. It is true that Section 24(b) of the IAA explicitly provides natural justice as a ground to set aside an arbitral award, and thus there was no need to rely on any other provision to set aside the present Award. However, this judgment is a missed opportunity to acknowledge the nexus between the principles of natural justice and public policy under the Model Law itself. Although the public policy ground has a high threshold, the judgment’s superficial engagement with the threshold by itself and the absence of delineating its scope makes its precedential value for other Model Law jurisdictions unclear. More prominently, by not discussing whether “public policy” under the Model Law encompasses natural justice, the ground could be rendered an inoperable remedy.

 

Second, the Court’s refusal to consider DJO’s argument that the Award be set aside due to non-compliance with the agreed-upon arbitral procedure means that there is now little clarity on whether copied arbitral awards violate the ICC Rules of Arbitration, specifically, Article 32(2). There is also little clarity on whether a tribunal copying and pasting portions of an award such would violate Article 34(2)(a)(iv) of the Model Law, under which this argument was brought. This has repercussions for non-Singaporean seated arbitrations that choose to be governed by the ICC Rules, as well as other jurisdictions following the Model Law.

 

It is interesting to note, however, that the SICC did cite the ICC Rules’ provisions on arbitrator bias and impartiality at the beginning of its judgment (as aforementioned). This could mean that the SICC intended to suggest copying portions of another award violates the ICC Rules insofar as it reflects a pre-existing prejudice on the arbitrators’ part. However, in the absence of an explicit finding to the same it is difficult to draw this implication, especially considering that a violation of these Rules was not the reason why the Award was ultimately set aside.

 

Conclusion

 

While the SICC’s judgement does strengthen key tenets of the role of seat courts international commercial arbitration, its complete implications for other Model Law jurisdictions remain unclear. As arbitration grows more popular as a dispute resolution mechanism for complex transnational commercial disputes, high degrees of similarity between ongoing arbitrations involving common arbitrators is to be expected, and copied arbitral awards may not be the only issue to face seat courts going forward. That being said, despite the seemingly egregious nature of reproduction in the case at hand, the SICC carefully treaded the line between criticism of the Award and the risk of a blanket prohibition of copying portions of arbitral awards. Thus, from the observations on the powers of the seat court, the principles of natural justice, and procedural impropriety, the SICC’s judgment is a landmark decision in navigating these challenges in the future.

The second issue of the Journal of Private International Law for 2024 has just been published. It contains the following articles:

Reid Mortensen & Kathy Reeves, The common law marriage in Australian private international law

The common law marriage is a curiosity in the private international law of marriage in the Commonwealth and Ireland. In some cases, a marriage that is invalid under the law of the place where it was solemnised (lex loci celebrationis) may nevertheless be recognised as valid if it meets the requirements of a common law marriage. These originate in the English canon law as it stood in the eighteenth century and include the central requirement of the parties’ present declaration that they are married. The parties also had to meet the essentials of a Christian marriage as described in Hyde v Hyde (1866): “a voluntary union for life of one man and one woman to the exclusion of all others”.

There are more reported cases on common law marriages in private international law in Australia than any other country. Although its Australian development coincided with that of other countries, in the twenty-first century the Australian common law marriage is now in an unusually amorphous condition. The preconditions for a court to ignore the lex loci have been significantly liberalised. Additional uncertainty in the nature of a common law marriage is created by a combination of repeated misinterpretations of the Marriage Act, the failure to use precedent outlining its requirements and the dismantling of the Hyde definition of marriage in the Same-Sex Marriage Case (2013). The article considers that the common law marriage might still serve a useful purpose in Australian private international law, and how it could better do so.

 

Stephen G. A. Pitel, The statutory assertion of exclusive jurisdiction

Statutes that create or codify causes of action sometimes contain jurisdiction provisions. The wording of these provisions can differ widely. Some of them purport to give exclusive jurisdiction to a specific court. In the private international law context, this raises the question of whether such a provision precludes the courts of any other jurisdiction from hearing a claim under the statute. This article analyses how these provisions have been interpreted. It focuses on Canadian law but draws on American, Australian and New Zealand jurisprudence. The article contends that the Canadian jurisprudence is uneven and insufficiently rigorous. Several of the decisions cannot be reconciled with each other, such that some must be regarded as incorrect. Several of the decisions fail to identify the important questions that are posed by alleged assertions of exclusive jurisdiction and also fail to answer them. Moving forward, courts should treat the claim that such a provision deprives a court of jurisdiction with caution and even scepticism.

 

Charlotte Wendland, Will substitutes in EU private international law: deathbed gifts and contracts for the benefit of a third party upon death

Will substitutes exist in many legal systems, including those of Member States of the European Union. Two of these will substitutes are deathbed gifts and contracts for the benefit of a third party upon death. Both instruments are located at the intersection of succession law and contract law and are therefore difficult to characterise for the purposes of private international law. One could either characterise them as succession instruments in the sense of the EU Succession Regulation or as contracts in the sense of the Rome I Regulation. This article analyses the different options on how to characterise these will substitutes by taking into account the wording of both Regulations, comparative analysis of the substantive law, the likelihood of adaptation and the recent judgment by the Court of Justice of the European Union (CJEU) on this matter.

 

Jie (Jeanne) Huang, Can private parties contract out of the Hague Service Convention?

Treaties are concluded by States but often impose rights and obligations directly upon private parties. Can private parties contract out of a treaty including States’ oppositions without explicit permissions granted by the treaty? The complexity between party autonomy and State sovereignty is reflected in recent cases and unsettled debates regarding the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters of November 15, 1965 (“HSC”). The HSC contains a large number of oppositions made by 65 Contracting States including China, Germany, India, and Singapore. Combining public and private international law, this paper aims to explore the correlative relationship between party autonomy and State sovereignty in applying the HSC.

 

Lydia Lundstedt, The law applicable to the right of priority from a European perspective

The right of priority established in the Paris Convention for the Protection of Industrial Property allows a patent applicant to claim the filing date of a first application for any subsequent applications for the same invention filed within twelve months in another Paris Convention Contracting State. This right may be claimed by the person who has filed an application or their successor in title. If priority is not validly claimed, patent applications and patents relying on the right may be rejected, revoked or invalidated. National and regional rules governing who may claim priority, whether a priority right may be divided or shared, whether it may be transferred independently of the priority application and the rights to the invention, and the requirements for a valid transfer differ from country to country. The issue of whether priority has been validly claimed may therefore depend on which country’s law applies, which depends on the characterisation of the issues. The aim of this article is to provide a European perspective on the law applicable to the right of priority.

 

Amy Held, The modern property situationship: Is bitcoin better off (left) alone?

In modern private international law (PIL), property and situs apparently go hand in hand in an established PIL monogamy to which there tends to be a collective commitment for all PIL aspects of a cross-border dispute for all PIL subcategories of property objects. This article argues that mechanistic deference to such apparent property-situs monogamy as an overarching rule in the PIL of property is not only misconceived; but is positively impeding progress in the modern PIL debates surrounding property rights in modern decentralised objects such as bitcoin. It therefore examines the discrete justifications for the situs rules to show that the apparent property-situs monogamy is actually the cumulative effect of a wide variety of situation-specific considerations in what is really a property-situs situationship. Hence, from an analysis of the situs rules, and the principles underpinning international jurisdiction and applicable law more generally, it suggests alternative property PIL solutions to the intractable problems posed by decentralised phenomena based on policy considerations rather than continued focus on the property object itself as the “natural seat” of a property relationship.

 

Jim Yang Teo, Transnational res judicata in international commercial disputes and potential influences for BRI dispute resolution

Res judicata plays an important role in the management of complex cross-border commercial disputes. Courts and tribunals are increasingly required to grapple with the application of res judicata on the basis of a prior determination from a different, and potentially unfamiliar, legal system. These considerations come even more alive in the context of the ambitious transnational project of the Belt & Road Initiative. This paper critically examines the Singapore Court of Appeal’s decision in Merck Sharp & Dohme Corp v Merck KgGA, which offers a cooperative vision of transnational res judicata that strikes a balance between comity and mutual trust between national legal systems, and each system’s own sovereign and constitutional responsibilities and interests. The paper also considers the potential influences of Merck’s unique transnational vision for the BRI dispute resolution ecosystem.

 

Chibike Amucheazi, Chidebe Matthew Nwankwo & Fochi Nwodo, A reassessment of the challenges of enforcement of foreign judgments in Nigeria: the need for legislative reform to ease business

Enforcement of foreign judgments has significant relevance in this era of increased international investments and commercial relations across borders. Focusing on Nigeria as the central jurisdiction of analysis, this paper takes the position that rules of private international law form an often understated yet important aspect of the governance system of a country often measured by the Ease of Doing Business (EDB) ranking of the World Bank. This paper further argues that central to opening up the economy and inviting FDI into the country, the obvious matter of the inconsistency in the application of the foreign judgment enforcement statutes ought to be settled so as to create determinacy in Nigeria’s legal system – a potential attraction for foreign investors who appreciate predictability in the laws of a host country. It recommends the review and adoption of the Foreign Judgment (Reciprocal Enforcement) Act 1990 in order to quell the circumspection of the investor and trade participant due to uncertain legislation.