Conflictoflaws

The School of Law of the University of Aberdeen is organising a hybrid even on Diversity & Inclusiveness In International Arbitration: Challenges, Progress and Excuses on Monday 24 April (13.00 – 14.15 British Summer Time).

Despite the broadly accepted desirability and value of diversity in international arbitration, statistics show that very little changes in the appointment practices in international arbitration. Tribunals remain largely non-diverse – with the exception of a growing number of female arbitrators. In this context, there is a clear need to reconceptualize the approach to diversity efforts, starting with the questions guiding the diversity debate, the parameters of success and the methods of their realization.

The speaker is Fahira Brodlija.

The event is free. Please contact Mr Georgi Chichkov for more information at georgi.chichkov@abdn.ac.uk or enrol here.

Dr. León Castellanos-Jankiewicz

Researcher, International Law T.M.C. Asser Institute for International & European Law, The Hague

Mexico’s ongoing transnational litigation against the firearms industry in U.S. courts is raising important questions of private international law, in particular as regards the application of Mexican tort law in U.S. courts. In its civil complaint against seven gun manufacturers and one wholesale arms distributor filed in federal court in 2021, Mexico argues that the defendant companies aid and abet the unlawful trafficking of guns into Mexico through irresponsible manufacturing, marketing and distribution practices. On this basis, Mexico claims that all relevant illegal conduct—resulting in human casualties, as well as material and economic loss—occurs on its territory and that, therefore, Mexican domestic tort law applies to six of its claims following the principle of lex loci damni.

Last September, the defendant’s motion to dismiss was granted by the District Court for the District of Massachusetts largely on the basis of the Protection of Lawful Commerce in Arms Act (PLCAA, 15 U.S.C. §§ 7901-7903). PLCAA prohibits bringing a “qualified civil liability action” in federal or state court against gun manufacturers and distributors for harm “solely caused by the criminal or unlawful misuse of firearm products” by third parties. On appeal in the U.S. First Circuit, Mexico argues that the district court’s application of PLCAA to bar its claims under Mexican tort law was “impermissibly extraterritorial”. In particular, the claims that PLCAA prohibits, avers Mexico, only prohibit damages arising from the “criminal and unlawful misuse” of firearms in the U.S. and in respect to U.S. legislation—not Mexican laws. The high profile nature of the case suggests that the First circuit might address the extent of PLCAA’s scope of application, including whether the district court’s interpretation was “impermissibly extraterritorial”.

For a detailed outline of the litigation history and the transnational issues at stake, including a discussion of two amicus briefs filed by professors of international and transnational law, you are welcome to read my recent post in Just Security, available here.

As already reported here, the European Kommission adopted a Proposal for a Regulation in December 2022 which aims to harmonize at the EU level the rules of private international law with regard to parenthood. In May the EAPIL is organizing a series of four webinars to discuss the main elements of the proposal, find weaknesses and possibilities of improvement.

Each Wednesday, the webinar will start at 6 pm and end at 8 pm CET. It will focus on two topics, each presented by one expert, who will discuss the content of the proposal and examine the questions and possible improvement it raises. There will be ample room for discussion.

The programme of the series is as follows:

• 3 May 2023, chaired by Claire Fenton-Glynn:
  • The EU Proposal on Parenthood: lessons from comparative and substantive law (Jens Scherpe)
  • What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss)
• 10 May 2023, chaired by Fabienne Jault-Seseke:
  • The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl)
  • The law governing parenthood: are you my father? (Tobías Helms)
• 17 May 2023, chaired by Nadia Rustinova:
  • The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Ontanu)
  • Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi)
• 24 May 2023, chaired by Steven Heylen:
  • Authentic documents and parenthood: between recognition and acceptance (Patrick Wautelet)
  • The European certificate of Parenthood: a passport for parents and children? (Ilaria Pretelli)

For more information please visit the Website of the EAPIL.

17 years ago on this day, the very first post was published on conflictoflaws.net. While the Rome I Regulation has remained relevant, the discipline has certainly undergone significant changes throughout the years – without losing any of its importance. Many, if not most, of those changes have been covered across the over 5,000 posts that have appeared on this blog. More than 2,500 readers are subscribed to our e-mail newsletter, while an even larger number of people now follows us on Twitter and LinkedIn.

In light of our continued commitment to cover all relevant developments in PIL, regionally and globally, we are happy to use the occasion of the blog’s birthday for two announcements.

Most significantly, Thalia Kruger and Matthias Weller are handing over their responsibilities as General Editors to us, Jeanne Huang and Tobias Lutzi.

Matthias initially assumed this position alongside Giesela Rühl in 2017. He continued to serve as General Editor when Giesela handed over the baton to Thalia in 2019. It is no overstatement that without their tireless work behind the scenes, the blog would be unlikely to exist in its present form. During their tenure, they put the blog on a solid technical foundation, secured its funding, and ensured quality and diversity of its Editorial Board.

As new General Editors, we are deeply grateful for the excellent shape in which they are leaving this project – although it makes us all the more aware of the big shoes we have been asked to fill.

What is more, after several years of fruitful partnership with Hart Publishing, we are happy to announce that we have been able to secure a new sponsor for the blog. The Lindemann Foundation, a German non-profit foundation dedicated to supporting research in private international law, will allow us to continue running the blog. We are deeply grateful for the trust they are putting into us and this blog. We also appreciate the support from Hart in the past, and we will keep in touch with them.

Speaking on behalf of the entire Editorial Board, we are reiterating our heartfelt gratitude to Thalia and Matthias and look forward to the next seventeen years of News & Views in Private International Law.

Jeanne and Tobias

The Rules of Procedure of the General Court of the European Union (OJ 2023 L 44, p. 8) and the Practice Rules for the Implementation of the Rules of Procedure of the General Court (OJ 2023 L 73, p. 58) have been amended, as communicated in the press release of 31 March 2023, no 58/23, The amendments have come into force on 1 April 2023.

The amendments introduce several features to the rules of proceedings before the General Court, with the aim to promote modern and efficient justice. For instance, the amended Rules of Procedure permit the use of videoconferencing during the hearings. A request for use of videoconferencing made by a representatives prevented from participating at the hearing in person shall be satisfied, if the request is based on ‘health, security or other serious reasons’ (Article 107a Rules of Procedure).

Another amendment worth noticing is the new concept of ‘pilot case’. The concept is introduced by Article 71a of the Rules of Procedure. Article 71a lists the conditions, under which two or more pending case shall be considered as raising the same issue of law. If the conditions are met, one of the cases may be identified as the pilot case and the others stayed.

The General Court has also updated model/guidance documents addressed to the parties’ representatives, who may use the documents to prepare the actions. The guidance documents include the Aide-mémoire – Application, Model summary of the pleas in law and main arguments relied on in the application’, Aide-mémoire – Hearing of oral argument, Notice on the omission of data vis-à-vis the public in judicial proceedings. Furthermore, a new guidance has been issued to assist in their (decisions on) requests to make oral submissions by videoconference (Practical recommendations for representatives making oral submissions by videoconference).

Other amendments relate to joint hearings (Article 106a Rules of Procedure), protection of data other than personal data (Article 66a Practice Rules), signing of originals of judgements and orders of the General Court by ‘qualified electronic signature’ (Article I(F)(37) Practice Rules).

 

In preparation of the Conference on the HCCH 2019 Judgments Convention on 9/10 June 2023, taking place on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

Update of 4 April 2023: New entries are printed bold.

Please also check the “official” Bibliography of the HCCH for the instrument.

 

I. Explanatory Reports

Garcimartín Alférez, Francisco;
Saumier, Geneviève „Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128

 

II. Bibliography

Ahmed, Mukarrum “Brexit and the Future of Private International Law in English Courts”, Oxford 2022 Åkerfeldt, Xerxes ”Indirekta behörighetsregler och svensk domsrätt – Analys och utredning av svensk domstols behörighet i förhållande till 2019 års Haagkonvention om erkännande och verkställighet” (Examensarbete inom juristprogrammet, avancerad nivå, Örebro Universitet, 2021 ; available here)

 

“Indirect jurisdiction and Swedish law – Analysis and inquiry of the jurisdiction of Swedish courts in relation to the 2019 Hague Convention on Recognition and Enforcement” Al-Jubouri, Zina Hazem “Modern trends for the recognition and enforcement of foreign judgments in civil and commercial matters accordance the 2019 Hague Convention”, Tikrit University Journal for Rights (TUJR) 2022-03, pp. 79-109 (available here) Amurodov, Jahongir “Some issues of Ratification of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019) by the Republic of Uzbekistan”, Uzbek Law Review 2020-03, pp. 11-116 (available here) Arslan, Ilyas “The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Uluslararasi Ticaret ve Tahkim Hukuku Dergisi 10 (2021), pp. 329-402 Badr, Yehya Ibrahim “The Hague 2019 Convention for the Recognition and Enforcement of Foreign Judicial Decisions: A Comparative Study”, International Journal of Doctrine, Judiciary, and Legislation (IJDJL) 2 (2021), pp. 427-468 (available here) Balbi, Francesca “La circolazione delle decisioni a livello globale: il rogetto di convenzione della Conferenza dell’Aia per il riconoscimento e l’esecuzione delle sentenze straniere” (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2019; available: here) Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul R. “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Beaumont, Paul;
Holliday, Jayne (eds.) “A Guide to Global Private International Law”, Oxford 2022 Biresaw, Samuel Maigreg “Appraisal of the Success of the Instruments of International Commercial Arbitration vis-a-vis International Commercial Litigation and Mediation in the Harmonization of the Rules of Transnational Commercial Dispute Resolution”, Journal of Dispute Resolution 2022-02, pp. 1-27 (preprint available here) Blanquet-Angulo, Alejandra “Les Zones d’ombre de la Convention de La Haye du 2 Juillet 2019”, Revue Internationale de Droit Comparé (RIDC), 73 (2021), pp. 53-71 Blom, Joost “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 Bonomi, Andrea “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 Bonomi, Andrea “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 Bonomi, Andrea;
Mariottini, Cristina M. “(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 Borges Moschen, Valesca Raizer;
Marcelino, Helder “Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319

(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) Borisov, Vitaly Nikolaevich “2019 Hague Judgments Convention: Global Recognition and Enforcement of Civil and Commercial Judgments (Review of the International Conference held in Hong Kong on September 9, 2019), Journal of Foreign Legislation and Comparative Law 2020-03, pp. 166-172 (available here) Brand, Ronald A. “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 Brand, Ronald A. “Jurisdictional Developments and the New Hague Judgments Project”, in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon, Cambridge 2013, pp 89-99 Brand, Ronald A. “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 Brand, Ronald A. “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 Brand, Ronald A. “The Hague Judgments Convention in the United States: A ‘Game Changer’ or a New Path to the Old Game?“, University of Pittsburgh Law Review 82 (2021), pp. 847-880 (available here) Brannigan, Neil “Resolving conflicts: establishing forum non conveniens in a new Hague jurisdiction convention”, Journal of Private International Law 18 (2022), pp. 83-112 Cai, Ya-qi “Feasibility Study on China’s Ratification of the HCCH Judgment Convention from the Perspective of Indirect Jurisdiction”, Journal of Taiyuan Normal University (Social Science Edition) 2021-04, pp. 74-80 Çaliskan, Yusuf;
Çaliskan, Zeynep “2 Temmuz 2019 Tarihli Yabanci Mahkeme Kararlarinin Taninmasi ve Tenfizine Iliskin Lahey Anlasmasinin Degerlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245 (available here)

(An Evaluation of 2 July 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) Cardoso, Connor J. “Implementing the Hague Judgments Convention”, New York University Law Review 97 (2022), pp. 1508-1545 (available here) Ceci, Federico “Osservazioni sull’adesione dell’Unione europea alla Convenzione dell’Aja del 2019 sul riconosciemento e l’esecuzione delle sentenze straniere in materia civile e commerciale”, Quaderni AISDUE N.º3 (2022), pp. 119-131 (available here) Celis Aguilar, María Mayela “El convenio de la haya de 30 de junio de 2005 sobre acuerdos de elección de foro y su vinculación con el ‘proyecto sobre Sentencias’ (y viceversa)”, Revista mexicana de Derecho internacional privado y comprado N°40 (octubre de 2018), pp. 29-51 (available here) Chai, Yuhong ; Qu, Zichao “The Development and Future of the Hague Jurisdiction Project”, Wuhan University International Law Review 2021-05, pp. 27-52 (online first) Chen, Shun-Hsiang “Signed, Sealed, & Undelivered: Unsuccessful Attempts of Judgment Recognition Between the U.S. and China”, Brooklyn Journal of Corporate, Financial & Commercial Law 16 (2022), pp. 167-189 (available here) Chen, Wendy “Indirect Jurisdiction over the Recognition and Enforcement of Judgments of Foreign Courts in Compulsory Counterclaims”, Journal of Xingtai University 2019-04, pp. 106-110 Cheng, Xian-ping; Liu, Xian-chao “On the Application of the Severable Clause in The Hague Judgments Convention”, Harbin Normal University Social Science Journal 2021-05, pp. 30-34 Choi, Sung-Soo “Review of the several issues of the Convention on the Recognition and Enforcement of Foreign Judgments”, Gachon Law Review 14 (2021), pp. 37-68 (available here) Clavel, Sandrine ; Jault-Seseke, Fabienne “La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale : Que peut-on en attendre ?”, Travaux du comité français de Droit international privé, Vol. 2018-2020, Paris 2021 (Version provisoire de la communication présentée le 4 octobre 2019, available here) Clover Alcolea, Lucas “The 2005 Hague Choice of Court and the 2019 Hague Judgments Conventions versus the New York Convention – Rivals, Alternatives or Something Else?”, Mc Gill Journal of Dispute Resolution 6 (2019-2020), pp. 187-214 Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 Cong, Junqi “Reinventing China’s Indirect Jurisdiction over Civil and Commercial Matters concerning Foreign Affairs – Starting from the Hague Judgment Convention” (Master’s Thesis, National 211/985 Project Jilin University; DOI: 10.27162/d.cnki.gjlin.2020.001343) Contreras Vaca, Francisco José “Comentarios al Convenio de la Haya del 2 de julio de 2019 sobre Reconcimiento y Ejecución de Sentencias Extranjeras en materia civil y comercial”, Revista mexicana de Derecho internacional privado y comprado N°45 (abril de 2021), pp. 110-127 (available here) Cui, Zhenghao “On the Coordination between the Draft Convention on Judicial Sale of Ships and the related Conventions of the Hague Conference on Private International Law”, China Ship Survey 2021-04, pp. 65-68 Cuniberti, Gilles “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 Daniel, Naama “Lost in Transit: How Enforcement of Foreign Copyright Judgments Undermines the Right to Research”, PIJIP Research Paper Series 3-2023, pp. 1-60 (available here) DAV (German Bar Association) “Position Paper on the EU’s possible accession to the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of the Hague Conference on Private International Law”, Berlin 2020 (available here) de Araujo, Nadia ; de Nardi, Marcelo ;
Spitz, Lidia “A nova era dos litígios internacionais”, Valor Economico 2019 de Araujo, Nadia ;
de Nardi, Marcelo ;
Lopes Inez ;
Polido, Fabricio „Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34 de Araujo, Nadia ;
de Nardi, Marcelo „Consumer Protection Under the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 67-79 de Araujo, Nadia; de Nardi, Marcelo; Ribeiro, Gustavo; Polido, Fabricio; Lopes, Inez; Oliveira, Matheus « Cronicas de Direito Internacional Privado: destaques do trabalho da HCCH nos ultimos dois anos », Revista De Direito Internacional 19 (2022), pp. 13-41

“Chronicles of Private International Law: highlights of HCCH’s work over the past two years”, Brazilian Journal of International Law 19 (2022), pp 13-41 De Nardi, Marcelo “The Hague Convention of 2019 on Foreign Judgments: Operation and Refusals”, in: Michael Underdown (ed.), International Law – A Practical Manual [Working Title], London 2022, pp. 1-10 (available here) de Araujo, Nadia ;
de Nardi, Marcelo „22ª Sessão Diplomática da Conferência da Haia e a Convenção sobre sentenças estrangeiras : Primeiras reflexões sobre as vantagens para o Brasil da sua adoção“, Revista de la Secretaría del Tribunal Permanente de Revisión 7 No. 14 (2019), páginas 198-221

(22nd Diplomatic Session of The Hague Conference and the Convention on Foreign Judgments: First Reflections on the Advantages for Brazil of their Adoption) de Araujo, Nadia ;
De Nardi, Marcelo “International Jurisdiction in Civil or Commercial Matters: HCCH’s New Challenge”, in Magdalena Pfeiffer, Jan Brodec, Petr Bríza, Marta Zavadilová (eds.), Liber Amicorum Monika Pauknerová, Prague 2021, pp. 1-11 Dlmoska, Fani “Would the Judgments Convention lead to unification of the ratification and enforcement of foreign judgments in the SEE Countries: The possible impact of the Judgments Convention”, SEELJ Special Edition No. 8 (2021), pp. 81-103 Dordevic, Slavko “Country Report Serbia”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 180-202 Dotta Salgueiro, Marcos “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”, Netherlands International Law Review (NILR) 67 (2020), pp 113-120 Douglas, Michael;
Keyes, Mary;
McKibbin, Sarah;
Mortensen, Reid “The HCCH Judgments Convention in Australian Law”, Federal Law Review 47 (2019), pp 420-443 Du, Tao “Frontiers of Private International Law Around the World: An Annual Review (2019-2020)”, Chinese Review of International Law 2021-04, pp. 103-128 (available here) Dyrda, Lukasz “Judicial Cooperation in Civil and Commercial Matters in the Context of the European Union’s Planned Accession to the 2019 Hague Judgments Convention after Brexit”, Europejski Przeglad Sadowy 2022-5, pp. 22-29 Echegaray de Maussion, Carlos Eduardo “El Derecho Internacional Privado en el contexto internacional actual : Las reglas de competencia judicial indirecta en el Convenio de la Haya de 2 de Julio de 2019 y el accesso a la justicia” Revista mexicana de Derecho internacional privado y comprado N°45 (abril de 2021), pp. 128-139 (available here) Efeçinar Süral “Possible Ratification of the Hague Convention by Turkey and Its Effects to the Recognition and Enforcement of Foreign Judgments”, Public and Private International Law Bulletin 40 (2020), pp. 775-798 (available here) EGPIL/GEDIP Observations on the possible accession of the European Union to the Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments, Text adopted on 9 December 2020 following the virtual meeting of 18-19 September 2020 (available here) | Zeitschrift für Europäisches Privatrecht (ZEuP) 2021, pp. 474-476 El Hage, Yves « Sur l’adhésion de l’Union européenne à la convention de la Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale », Revue critique de Droit international privé (RCDIP) 2022, pp. 819 et seq. Ermakova, Elena ; Frovola, Evgenia ; Sitkareva, Elena “International Economic Integration and the Evolution of the Principles of Civil Procedure”, in Elena G. Popkova, Bruno S. Sergi, Modern Global Economic System, Basel 2021, pp. 1589-1597 European Union (EU)/ European Commission “Proposal for a Council Decision on the accession by the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, COM(2021) 388 final (available here) Fan, Jing “On the Jurisdiction over Intellectual Property in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Chinese Yearbook of Private International Law and Comparative Law 2018-02, pp. 313-337 Fan, Jing “Reconfiguration on Territoriality in Transnational Recognition and Enforcement of Intellectual Property Judgments”, Chinese Review of International Law 2021-01, pp. 90-112 (available here) Fankai, Chen “On the Impacts of Two Hague Conventions on the International Commercial Arbitration”, Beijing Arbitration Quaterly 2021-04, pp. 55-77 Farnoux, Étienne “Reconnaissance et exécution des jugements étrangers en matière civil ou commerciale : À propos de la Convention de La Haye du 2 juillet 2019”, La Semaine Juridique 2019, pp. 1613-1617 Forner Delaygua, Joaquim-Joan “El Convenio de La Haya de 2 julio 2019 como nuevo marco normativo de las sentencias en materia de contractual comercial”, in Pérez Vera et al. (eds.), El Derecho internacional privado entre la tradición y la innovación – Obra homenaje al Profesor doctor José María Espinar Vicente, Madrid 2020, pp. 307-325 Franzina, Pietro; Leandro, Antonio

  “La Convenzione dell’Aja del 2 luglio 2019 sul riconoscimento delle sentenze straniere : una prima lettura”, Quaderni di SIDIblog 6 (2019), pp 215-231 (available here)

(The Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments: A First Appraisal) Fuchs, Felix “Das Haager Übereinkommen vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Urteile in Zivil- oder Handelssachen“, Gesellschafts- und Wirtschaftsrecht (GWR) 2019, pp 395-399 Gaponov, M.D. “On the issue of the Execution of foreign Judgments” Science Diary 2023-01 (available here) Garcimartín, Francisco “The Judgments Convention: Some Open Questions”, Netherlands International Law Review (NILR) 67 (2020), pp 19-31 Garnett, Richard “The Judgments Project: fulfilling Assers dream of free-flowing judgments”, in Thomas John, Rishi Gulati, Ben Koehler (eds.), The Elgar Companion to the Hague Conference on Private International Law, Cheltenham/Northampton 2020, pp. 309-321 Gawron, Karol “Recognition and enforcement of foreign court judgments under the 2019 Hague Convention from a Polish perspective” (Master Thesis, Jagiellonian University Kraków, 2022) Goddard, David „The Judgments Convention – The Current State of Play”, Duke Journal of Comparative & International Law 29 (2019), pp 473-490 González Pedrouzo, Carmen “La Convención de La Haya de 2 de juliio de 2019 sobre el Reconocimiento y la Ejecución de Sentencias Extranjeras en Materia Civil y Comercial y su impacto en la legislación uruguaya”, UCLAEH Revista de Derecho 2022-01, pp. 73-88 (available here) Grodl, Lukas “Forum Non Conveniens Doctrine – post Brexit Applicability in Transnational Litigation”, Casopis pro právní vedu a praxis 30 (2022), pp. 285-303 (available here) Gu, Weixia “A Conflict of Laws Study in Hong Kong-China Judgment Regionalism: Legal Challenges and renewed Momentum”, Cornell International Law Journal 52 (2020), pp. 591-642 Guez, Philippe ;
de Berard, François ; Malet-Deraedt, Fleur ; Roccati, Marjolaine ; Sinopoli, Laurence ; Slim, Hadi ; Sotomayor, Marcelo ; Train, François-Xavier “Chronique de droit international privé appliqué aux affaires, Revue de droit des affaires internationales – 1 décembre 2018 au 31 décembre 2019”, Revue de Droit des Affaires Internationales 2020, pp. 237-274 Gugu Bushati, Aida “Country Report Albania”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 16-41 (available here) Guide, Jia
[Foreign Ministry of the People’s Republic of China] “Address by the Director of the Department of Treaty and Law of the Ministry of Foreign Affairs Jia Guide at the Opening Ceremony of the International Symposium on the Hague Judgment Convention (9 September 2019)”, Chinese Yearbook of International Law 2019, pp. 503-505 Gusson Said, Enza ; Quiroga Obregón, Marcelo Fernando “Homologação de sentenças estrangeiras e o Judgements

Project”, Derecho y Cambio Social N.º 60 (2020) en línea,
pp. 1-13 (available here) Häggblom, Annie ”2019 ars Haagkonvention om erkannande och verkstallighet av utlandska domar pa privatrattens omrade: Ett framgangsrikt internationellt instrument pa den internationella privatrattens omrade?” (Examensarbete i internationell privat- och processrätt, Uppsala Universitet, 2021; available here)

“The Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters : A successful international instrument in the field of private international law?” He, Qisheng “The HCCH Judgments Convention and the Recognition and Enforcement of Judgments pertaining to a State”, Global Law Review 3 (2020), pp 147-161 (available here) He, Qisheng “Unification and Division: Immovable Property Issues under the HCCH Judgement Convention”, Journal of International Law 1 (2020), pp 33-55 He, Qisheng “The HCCH Judgments Convention and International Judicial Cooperation of Intellectual Property”, Chinese Journal of Law 2021-01, pp. 139-155 He, Qisheng “Latest Development of the Hague Jurisdiction Project”, Wuhan University International Law Review 2020-04, pp. 1-16 He, Qisheng “ ’Civil or Commercial Matters’ in International Instruments Scope and Interpretation”, Peking University Law Review 2018-02, pp. 1-25 (available here) He, Qisheng “A Study on the Intellectual Property Provisions in the ’Hague Convention on Judgment’ – On the Improvement of Transnational Recognition and Enforcement of Intellectual Property Judgments in China”, Journal of Taiyuan University (Social Science Edition) 2020-05, pp. 40-47 He, Qisheng “Negotiations of the HCCH 2019 Judgments Convention on State Immunity and Its Inspirations”, Chinese Review of International Law 2022-02, pp. 40-52 He, Qisheng “Dilemma and Transformation of the Hague Jurisdiction Project”, Wuhan University International Law Review 2022-02, pp. 36-58 He, Qisheng “The Territoriality of Intellectual Property in International Judicial Cooperation”, Modern Law Science 2022-04, pp. 78-88 Herrup, Paul;
Brand, Ronald A. “A Hague Convention on Parallel Proceedings”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2021-23, pp. 1-10 (available here) Herrup, Paul;
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Part 1: JCA 2020-04, pp. 40-45 (available here)

Part 2: JCA 2020-05, pp. 40-45 (available here)

Part 3: JCA 2020-06, pp. 42-49 (available here)

Part 4: JCA 2020-10, pp. 40-46 (available here)

Part 5: JCA 2020-11, pp. 35-41 (available here)

Part 6: JCA 2020-12, pp. 43-48 (available here)

Part 7: JCA 2021-02, pp. 50-56 (available here)

Part 8: JCA 2021-04, pp. 45-51 (available here)

Part 9: JCA 2021-07, pp. 46-53 (available here)

Part 10: JCA 2021-09, pp. 40-46 (available here)

Part 11: JCA 2021-10, pp. 48-54 (available here)

Part 12: JCA 2022-01, pp. 45-52 (available here)

Part 13: JCA 2022-03, pp. 44-51 (available here)

Part 14: JCA 2022-05, pp. 58-55

Part 15 JCA 2022-07, pp. 49-55

Part 16 JCA 2022-09, pp. 36-44

Part 17 JCA 2022-12, pp. 53 et seq. Taquela, María Blanca Noodt ; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 Tian, Hongjun “The Present and Future of the Recognition and Enforcement of Civil and Commercial Judgments in Northeast Asia: From the Perspective of the 2019 Hague Judgments Convention”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 300-317 Tian, Xinyue;
Qian, Zhenqiu;
Wang, Shengzhe “The Hague Convention on the Recognition and Enforcement of Foreign Judgments (Draft) and China’s Countermeasure – A Summary on the Fourth Judicial Forum of Great Powers”, Chinese Yearbook of Private International Law and Comparative Law 2018-01, pp. 377-388 Trooboff, Peter D.;
North, Cara; Nishitani, Yuko;
Sastry, Shubha; Chanda, Riccarda “The Promise and Prospects of the 2019 Hague Convention: Introductory Remarks”, Proceedings of the ASIL Annual Meeting 114 (2020), pp. 345-357 Tsang, King Fung;
Wong, Tsz Wai “Enforcement of Non-Monetary Judgments in Common Law Jurisdictions: Is the Time Ripe?”, Fordham International Law Journal 45 (2021), pp. 379-428 (available here) van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue critique de droit international privé (Rev. Crit. DIP) 2019, pp. 353-365 Viegas Liquidato, Vera Lúcia “Reconhecimento E Homologação De Sentenças Estrangeiras : O Projeto De Convenção Da Conferência da Haia”, Revista de Direito Brasileira 2019-09, pp. 242-256 Vishchuprapha, Shayanit “Thailand’s Possibility of Becoming a Party to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters of 2019”, Mae Fah Luang University Law Journal 2023-01, pp. 185-228 (available here) Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Wang, Quian “On Intellectual Property Right Provisions in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, China Legal Science 2018-01, pp. 118-142 (available here) Wang, Yahan “No Review of the Merits in Recognizing and Enforcing Foreign Judgments”, China Journal of Applied Jurisprudence 2020-04, pp. 78-95 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 (available here) Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279-308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed. 2022 Weller, Matthias „Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019“, in Christoph Althammer/Christoph Schärtl (eds.), Festschrift für Herbert Roth, Tübingen 2021, pp. 835-855 Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Wu, Qiong “The Overview of the 22nd Diplomatic Session of the Hague Conference on Private International Law”, Chinese Yearbook of International Law 2019, pp. 337-338 Xie, Yili “Research on the Intellectual Property Infringment System of the Hague Judgments Convention”, China-Arab States Science and Technology Forum 2021-09, pp. 190-194 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 2017-05, pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Xu, Guojian “On the Scope and Limitation of the Global Circulation of Court Judgments: An Analysis on the Application Scope of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 269-299 Xu, Pengju “A Study on the Interpretation of Non-substantive Review Clauses in the Hague Convention on Judgments”, Frontiers in Business, Economics and Management (FBEM) 2022-03, pp. 79-81 (available here) Yang, Liu “The Applicable Conditions of the Lis Pendens Rule under the Hague Judgments Convention”, Journal of Ocean University of China (Social Sciences) 2022-05, pp. 99-111 Yang, Yujie “On the Rules of indirect Jurisdiction responding to Litigation – Based on Article 5, Paragraph 1, Item 6 of the Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters” (Master Thesis China Foreign Affairs University Beijing 2021) Yekini, Abubakri

  “The Hague Judgments Convention and Commonwealth Model Law – A Pragmatic Perspective”, Oxford 2021. Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Yuzhakov, D.A. “Legal Regulation of the Procedures for Enforcement of Decisions of Foreign Courts in Economic Disputes”, Urgent Issues of the Entrepreneurship Law, Civil Litigation and Arbitration (Perm State University) No. 4 (2021), pp. 119-123 (available here) Zasemkova, Olesya Fedorovna “ ‘Judicial Convention’ as a New Stage in the Recognition and Enforcement of Foreign Judgments”, Lex Russica 2019-10, pp. 84-103 (available here) Zasemkova, Olesya Fedorovna “Recognition and Enforcement of Foreign Judgments in the Context of the Adoption of the « Judicial Convention » 2019”, in Zhuikov V.M., Shchukin A.I. (eds.), Liber Amicorum Natalia Ivanovna Marysheva, pp. 196-211 Zernikow, Marcel “Recognition and Enforcement of Foreign Decisions in MERCOSUR Letters Rogatory (Carta Rogatória) and National Civil Procedure” Yearbook of Private International Law 22 (2020/2021), pp. 353-380 Zhang, Chunliang;
Huang, Shan “On the Common Courts Rules in Hague Judgments Convention – China’s way for the Judicial Assistance under Belt and Road Initiative”, Journal of Henan University of Economics and Law 2020-05, pp. 103-113 Zhang, Lizhen “On the Defamation Problem in the Hague Judgments Project: Ever In and Now out of the Scope”, Wuhan University International Law Review 2019-01, pp. 41-58 (available here) Zhang, Wenliang “The Finality Requirement of Recognition and Enforcement of Foreign Judgments”, Wuhan University Law Review 2020-02, pp. 19-38 Zhang, Wenliang; Tu, Guangjian “The Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement: Comparison and Prospects for Implementation”, Chinese Journal of International Law 20 (2021), pp. 101-135 Zhang, Wenliang;
Tu, Guangjian “The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 Zhang, Zhengyi;
Zhang, Zhen “Development of the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and Its Implication to China”, International and Comparative Law Review 2020, pp. 112-131 Zhao, Ning “The HCCH 2019 Judgments Convention, adding essential components for an effective international legal framework on recognition and enforcement”, in UIHJ (ed.), David Walker (dir.), Cyberjustice, de nouvelles opportunités pour l’huissier de justice / Cyberjustice, New Opportunities for the Judicial Officer – XXIVe Congrès de l’Union Internationale des Huissiers de Justice – Dubai – 22 au 25 Novembre 2021, Bruxelles 2021, pp. 120-133 Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368 Zirat, Gennadii “Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: A new Contribution of the Hague Conference on Private International Law to the Unification of International Civil Procedure”, Ukrainian Journal of International Law 2020-03, pp. 105-112 (available here)

 

III. Recordings of Events Related to the HCCH 2019 Judgments Convention

ASADIP; HCCH “Conferencia Internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras”, 3 December 2020 (full recording available here and here) ASIL “The Promise and Prospects of the 2019 Hague Convention”, 25-26 June 2020 (full recording available here and here) CILC; HCCH; GIZ; UIHJ “HCCH 2019 Judgments Convention: Prospects for the Western Balkans”, Regional Forum 2022, 30 June-1 July 2022 (short official video available here) CIS Arbitration Forum “CIS-related Disputes: Treaties, Sanctions, Compliance and Enforcement, Conference, Keynote 2: Russia’s accession to the Hague Convention on Recognition and Enforcement of Foreign Judgments”, 25-26 May 2021 (recording available here) CUHK “Latest Development of Hague Conference on Private International Law and the Hague Judgments Convention”, Online Seminar by Prof. Yun Zhao, 25 March 2021 (full recording available here) Department of Justice Hong Kong; HCCH “Inaugural Global Conference – 2019 HCCH Judgments Convention: Global Enforcement of Civil and Commercial Judgments”, 9 September 2019 (recording available here) GIAS “Arbitration v. Litigation: Can the Hague Foreign Judgments Convention Change the Game?, Panel 2, 10th Annual International Arbitration Month, Commercial Arbitration Day”, 25 March 2022 (full recording available here) HCCH “HCCH a|Bridged: Innovation in Transnational Litigation – Edition 2021: Enabling Party Autonomy with the HCCH 2005 Choice of Court Convention”, 1 December 2021 (full recording available here) HCCH “22nd Diplomatic Session of the HCCH: The Adoption of the 2019 Judgments Convention”, 2 July 2020 (short documentary video available here) JPRI; HCCH; UNIDROIT; UNCITRAL “2020 Judicial Policy Research Institute International Conference – International Commercial Litigation: Recent Developments and Future Challenges, Session 3: Recognition and Enforcement of Foreign Judgments”, 12 November 2020 (recording available here) Lex & Forum Journal; Sakkoula Publications SA « The Hague Conference on Private International Law and the European Union – Latest developments », 3 December 2021 (full recording available here) UIHJ; HCCH “3rd training webinar on the Hague Conventions on service of documents (1965) and recognition and enforcement of judgements (2019)”, 15/18 March 2021 (full recording available here in French and here in English) University of Bonn; HCCH “Pre-Conference Video Roundtable on the HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil and Commercial Matters between the EU and Third Countries”, 29 October 2020 (full recording available here)

 

Conventions & Instruments

On 1 March 2023, the 1993 Adoption Convention entered into force for Botswana. The Convention currently has 105 Contracting Parties. More information is available here.

On 8 March 2023, China deposited its instrument of accession to the 1961 Apostille Convention and Malta deposited its instrument of ratification of the 2000 Protection of Adults Convention during the meeting of the Council on General Affairs and Policy. The 1961 Apostille Convention, which has 124 Contracting Parties, will enter into force for China on 7 November 2023. The Convention is already in force in the Hong Kong and Macao Special Administrative Regions of the People’s Republic of China. The 2000 Protection of Adults Convention, which has 15 Contracting Parties, will enter into force for Malta on 1 July 2023. More information is available here.

On 9 March 2023, the 1961 Apostille Convention entered into force for Pakistan. The Convention currently has 124 Contracting Parties. More information is available here.

On 20 March 2023, the 1961 Apostille Convention entered into force for Senegal. The Convention currently has 124 Contracting Parties. More information is available here.

Publications & Documentation

On 6 March 2023, the Permanent Bureau published the Practical Guide to Access to Justice for International Tourists and Visitors. More information is available here.

On 8 March 2023, the Permanent Bureau published the HCCH 2022 Annual Report. More information is available here.

Meetings & Events

From 7 to 10 March 2023, the Council on General Affairs and Policy (CGAP) of the HCCH met in The Hague, with over 450 participants joining both in person and online. HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead in terms of normative, non-normative and governance work. More information is available here.

Among other important developments, during the meeting CGAP took the historic decision to adopt Spanish as an official language as of 1 July 2024, on which more information is available here. It also decided to recommend Dr Christophe Bernasconi to the Netherlands Standing Government Committee on Private International Law for the position of Secretary General, on which more information is available here.

On 22 March, the Regional Office for Asia and the Pacific of the HCCH hosted the webinar “HCCH 1961 Apostille Convention – Application and Future Prospects in the Asia Pacific Region”.

Upcoming Events

Registrations are open for the conference “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook”, which will be held in person on 9 and 10 June 2023 at the University of Bonn in Germany. More information is available here.

CC Rainer Lück 1RL.de, https://commons.wikimedia.org/wiki/File:Bundesverfassungsgericht_IMGP1634.jpg

 

I.

Yesterday, on March 29, 2023, the German Constitutional Court published its long-awaited (and also long) decision on the German “Act to Combat Child Marriage” (Gesetz zur Bekämpfung von Kinderehen). Under that law, passed in 2017 in the midst of the so-called “refugee crisis”, marriages celebrated under foreign law are voidable if one of the spouses was under 18 at the time of marriage (art. 13 para. 3 no. 2 EGBGB), and null and void if they were under 16 (art. 13 para. 3 no. 1 EGBGB) – regardless of whether the marriage is valid under the normally applicable foreign law. In 2018, the German Federal Court of Justice refused to apply the law in a concrete case and asked the Constitutional Court for a decision on the constitutionality of the provision.

That was a long time ago. The wife in the case had been fourteen when the case started in the first instance courts; she is now 22, and her marriage certainly no longer a child marriage. And as a matter of fact, the Constitutional Court decision itself is  already almost two months old; it was rendered on February 1. This and the fact that the decision cites almost no sources published after 2019 except for new editions of commentaries, suggests that it may have existed as a draft for much longer. One reason for the delay may have been internal: the president of the Court, Stephan Harbarth, was one of the law’s main drafters. The Court decided in 2019 that he did not have to recuse himself, amongst others for the somewhat questionable reason that his support for the bill was based on political, not constitutional, considerations. (Never mind that members of parliament are obligated by the constitution also in the legislative process, and that a judge at the Constitutional Court may reasonably be expected to be hesitant when judging on the unconstitutionality of his own legislation.)

 

II.

In the end, the Court decided that the law is, in fact, unconstitutional: it curtails the special protection of  marriage, which the German Constitution provides, and this curtailment is not justified. The decision is long (more than sixty pages) but characteristically well structured so a summary may be possible.

Account to the Court, the state’s duty to protect marriage (art. 6 para. 1 of the Basic Law, the German Constitution) includes not only marriage as an institution but also discrete, existing marriages, and not only the married status itself but also the whole range of legal rules surrounding it and ensuing from it. Now, the Court has provided a definition of marriage as protected under the Basic Law: it is a union, in principle in perpetuity, freely entered into, equal and autonomously structured, and established by the marriage ceremony as a formalized, outwardly recognizable act. (Early commentators have spotted that “between one man and one woman” is no longer named as a requirement, but it seems far-fetched to view this as a stealthy inclusion of same-sex marriage within the realm of the Constitution.) The stated definition includes marriages celebrated abroad under foreign law. Moreover, it includes marriages celebrated at a very young age as long as the requirement is met that they were entered into freely.

A legislative curtailment of this right could be justified. But the legislator has comparably little discretion where a rule, as is the case here, effectively amounts to an actual impediment to marriage. Whether a curtailment is in fact justified is a matter for the classical test of proportionality: the law must have a proper and legitimate purpose; it must be suitable towards that purpose; it must be necessary towards that purpose; and it must be adequate (“proportional” in the narrow sense) towards the purpose, in that the balance between achieving the purpose and curtailment of the right must not be out of proportion.

Here, the law’s purposes themselves – the protection of minors, the public ostracization of child marriage, and legal certainty – isarelegitimate. The worldwide fight against child marriage is a worthy goal. So is the desire for legal certainty regarding the validity of specific marriages.

The law is also suitable to serve these purpose: the minor is protected from the legal and factual burdens arising from the marriage; the law may deter couples abroad from getting married (or so the legislator may legitimately speculate; empirical data substantiating this is not available.) A clear age rule avoids the uncertainty of a case-by-case ordre public analysis as the law prior to 2017 had required.

According to the Court, the measures are also necessary towards these purposes, because alternative measures would not be similarly successful. Automatic nullity of the affected marriages is more effective, and potentially less intrusive, than determining nullity in individual proceedings. It is also more effective than case-by-case determinations under a public policy analysis. And it offers better protection of minors than forcing them to go through a procedure aimed at annulling the marriage would.

Nonetheless, the Court sees in the law a violation of the Constitution: the measure is disproportionate to the curtailment of rights. That curtailment is severe: the law invalidates a marriage that the spouses may have considered valid, may have consummated, and around which they may have built a life. Potentially, they would be barred from living together although they consider themselves to be married.

The Court grants that the protection of minors is an important counterargument in view of the risks that child marriages pose to them. So is legal certainty regarding the question of whether a marriage is or is not valid.

But the legislation is disproportionate for two reasons. First, the law does not regulate the consequences of its verdict on nullity. So, not only does the minor spouse lose the legal protections of marriage, including the right to cohabitation; they also lose the rights arising from a proper dissolution of the marriage, including financial claims against the older, and frequently wealthier, spouse. These consequences run counter to the purpose of protecting the minor. Second, the law does not enable the spouses to carry on their marriage legally after both have reached maturity unless they remarry, and remarriage may well be complicated. This runs counter to the desire to protect free choice.

The court could have simply invalidated the law and thereby have gone back to the situation prior to 2017. Normally, substantive validity of a marriage is determined by the law of each spouse’s nationality (art. 13 para. 1 EGBGB). Whether that law can be applied in fact, is then a matter of case-by-case determinations based on the public policy exception (art. 6 EGBGB). That is in fact the solution most private international lawyer (myself included) preferred. The Court refused this simple solution with the speculation that this might have resulted in bigamy for (hypothetical) spouses who had married someone else under the assumption that their marriages were void. (Whether such cases do in fact exist is not clear.) Therefore, the Court has kept the law intact and given the legislator until June 30, 2024 to reform it. In the meantime, the putative spouses of void marriages are also entitled to maintenance on an analogy to the rules on divorce.

 

III.

The German Constitutional Court has occasionally ruled on the constitutionality of choice-of-law rules before. Its first important decision – the Spaniard decision of 1971 – dealt with whether the Constitution had anything to say about choice of law at all, given that choice of law was widely considered to be purely technical at the time, with no content of constitutional relevance. That decision, which addressed a Spanish prohibition on remarrying after divorce, already concerned the right to marry. Another, more recent decision held that a limping marriage, invalid under German law though valid under foreign law, must nonetheless be treated as a marriage for purposes of social insurance. Both decisions rear their heads in the current decision, forming a prelude to a constitutional issue that now resurfaces: the court is interested less in the status of marriage itself and more in the actual protections that emerge from a marriage.

The legal consequences of a marriage are, of course, manifold, and the legislator’s explicit determination that the child marriage should yield no consequences whatsoever is therefore far-reaching. (Konrad Duden’s proposal to interpret the act so as to restrict this statement to consequences that are negative for the minor is not discussed, unfortunately). Interestingly, the Court accords no fewer than one fifth of its decision, thirteen pages, to a textbook exposition of the relevance of marriage in private international law. Its consequences were among the main reasons for near-unanimity in the German conflict-of-laws field in opposition to the legal reform. Indeed, another fifth of the decision addresses the positions of a wide variety of stakeholders and experts –the federal government and several state governments, the Max Planck Institute for Comparative and International Private Law, a variety of associations concerned with the rights of women, children, and human rights as well as psychological associations. Almost all of them urged the Court to rule the law unconstitutional.

These critics will regard the decision as an affirmation, though perhaps not as a full one, because the Court, worried only about consequences, essentially upholds the legislator’s decision to void child marriages entered into before the age of sixteen. This is unfortunate not only because the status of marriage itself is often highly valuable to spouses, as we know from the long struggles for the acceptance of same-sex marriage rather than mere life partnership. Moreover, the result is the acceptance of limping marriages that are however treated as though they were valid. This may be what the Constitution requires. From the perspective of private international law, it seems slightly incoherent to uphold the nullity of a marriage on one hand and then afford its essential protections on the other, both times on the same justification of protecting minors. In this logic, the Court does not question whether the voiding of the marriage is generally beneficial to all minors in question. Moreover, in many foreign cultures, these protections are the exclusive domain of marriage. It must be confusing to tell someone from that culture that the marriage they thought was valid is void, but that it is nonetheless treated as though it were valid for matters of protection.

 

IV.

An interesting element in the decision concerns the Court’s use of comparative law. Germany’s law reform was not an outlier: it came among a whole flurry of reforms in Europe that were quite comprehensively compiled and analyzed in a study by the Hamburg Max Planck Institute (it is available, albeit only in German, open access). In recent years, many countries have passed stricter laws vis-à-vis child marriages celebrated under foreign law: France (2006), Switzerland (2012), Spain (2015), the Netherlands (2015), Denmark (2017), Norway (2007/2018), Sweden (2004/2019) and Finland (2019). Such reforms were successful virtue-signaling devices vis-a-vis rising xenophobia (not surprisingly, right-wingers in Germany have already come out again to criticize the Constitutional Court). Substantively, these laws treat foreign child marriages with different degrees of severity – the German law is especially harsh. However, comparative law reveals more than just matters of doctrine. Several empirical reports have demonstrated that foreign laws were not more successful at reducing the number of child marriages than was the German law, which is more a function of economic and social factors elsewhere than of European legislation. Worse, the laws sometimes had harmful consequences, not only for couples separated against their will, but even for politicians: in Denmark, one former immigration minister was impeached after reports by the Danish Red Cross of a suicide attempt, depression, and other negative psychosocial effects of the law on married minors. And surveys have shown that enforcement of the laws has been spotty in Germany and elsewhere.

The Constitutional Court did not need to pay much attention to these empirical reports. In assessing whether annulling foreign marriages was necessary, the Court did however take guidance from the Max Planck comparative law study, pointing out (nos 182, 189) that the great variety of alternative measures in foreign legislation made it implausible that the German solution – no possibility to validate a marriage at age eighteen – is necessary . This makes for a good example of the usefulness of comparative law – comparative private international law, to be more precise –  even for domestic constitutional law. If demonstrating that a measure is necessary requires showing a lack of alternatives, then comparative law can furnish both the alternatives as well as empirical evidence of their effectiveness. That comparative law can be put to such practical use is good news.

 

V.

The German legislator must now reform its law. What should it do? The Court has hinted at a minimal solution: consider these marriages void without exception, but extend post-divorce maintenance to them, and enable the couple to affirm their marriage, either openly or tacitly, once they are of age. In formulating such rules, comparative analysis of various legal reforms in other countries would certainly be of great help.

But the legislator may also take this admonition from the Constitutional Court as an impetus for a bigger step. Not everything that is constitutionally permissible is also politically and legally sound. The German reform was rushed through in 2017 in the anxiousness of the so-called refugee crisis. The same was true, with some modifications, of other countries’ reforms. What the German legislator can learn from them is not only alternative modes of regulation but also that these reforms’ limited success is not confined to Germany. This insight could spark legislation that focuses more on the actual situation and needs of minors than on the desire to ostracize child marriage on their backs. Such legislation may well reintroduce case-by-case analysis, something private international lawyers know not to be afraid of. This holds true especially in view of the fact that the provision does not regulate a mass problem but rather a relatively small number of cases which is unlikely to create excessive burdens on agencies and the judiciary. The legislator could also substitute the place of celebration for the spouses’ nationality as the relevant connecting factor for substantive marriage requirements, as the German Council for Private International Law, an advisor to the legislator, has already proposed (Coester-Waltjen, IPRax 2021, 29). This would make it possible to distinguish more clearly between two very different situations: couples wanting to get married in Germany (where the age restriction makes eminent sense) on the one hand, and couples who already got married, validly, in their home countries and find their actually existing marriage to be put in question. Indeed, this might be a good opportunity to move from a system that designates the applicable law to a system that recognizes foreign acts, as is the case already in some other legal systems.

In any case, the Court decision provides Germany with an opportunity to move the fight against child marriage back to where it belongs and where it has a better chance of succeeding – away from private international law, and towards economic and other forms of aid to countries in which child marriage would be less rampant if they were less afflicted with war and poverty.

 

 

 

 

 

 

 

For litigants embroiled in cross-border litigation, the anti-suit injunction has become a staple in the conflict of laws arsenal of common law courts. Its purpose being to restrain a party from instituting or prosecuting proceedings in a foreign country, it is regularly granted to uphold arbitration or choice of court agreements, to stop vexatious or oppressive proceedings, or to protect the jurisdiction of the forum court. However, what is a party to do if the foreign proceeding has already run its course and resulted in an unfavourable judgment? Enter the anti-enforcement injunction, which, as the name suggests, seeks to restrain a party from enforcing a foreign judgment, including, potentially, in the country of judgment.

Decisions granting an anti-enforcement injunction are “few and far between” (Ecobank Transnational Inc v Tanoh [2015] EWCA Civ 1309, [2016] 1 WLR 2231, [118]). Lawrence Collins LJ (as he then was) described it as “a very serious matter for the English court to grant an injunction to restrain enforcement in a foreign country of a judgment of a court of that country” (Masri v Consolidated Contractors International (UK) Ltd (No. 3) [2008] EWCA Civ 625, [2009] QB 503 at [93]). There must be a good reason why the applicant did not take action earlier, to prevent the plaintiff from obtaining the judgment in the first place. The typical scenario is where an applicant seeks to restrain enforcement of a foreign judgment that has been obtained by fraud.

This was the scenario facing the New Zealand High Court in the recent case of Kea Investments Ltd v Wikeley Family Trustee Limited [2022] NZHC 2881. The Court granted an (interim) anti-enforcement injunction in relation to a default judgment worth USD136,290,994 obtained in Kentucky (note that the order was made last year but the judgment has only now been released). The decision is noteworthy not only because anti-enforcement injunctions are rarely granted, but also because the injunction was granted in circumstances where the foreign proceeding was not also brought in breach of a jurisdiction agreement. Previously, the only example of a court having granted an injunction in the absence of a breach of a jurisdiction agreement was the case of SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599 (see Tiong Min Yeo “Foreign Judgments and Contracts: The Anti-Enforcement Injunction” in Andrew Dickinson and Edwin Peel A Conflict of Laws Companion – Essays in Honour of Adrian Briggs (OUP, 2021) 254).

Kea Investments Ltd v Wikeley Family Trustee Limited involves allegations of “a massive global 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. Kea alleges that the US default judgment is based on fabricated claims intended to defraud Kea. Its substantive proceeding claims tortious conspiracy and a declaration that the Kentucky judgment is not recognised or enforceable in New Zealand. Applying for an interim injunction, the plaintiff argued that “the New Zealand Court should exercise its equitable jurisdiction now to prevent a New Zealand company … from continuing to perpetrate a serious and massive fraud on Kea” (at [27]) by restraining the defendants from enforcing the US judgment.

The judgment is illustrative of the kind of cross-border fraud that private international law struggles to deal with effectively: here, alleged fraudsters using the Kentucky court to obtain an illegitimate judgment and, apparently, frustrate the plaintiff’s own enforcement of an earlier (English) judgment, in circumstances where the Kentucky court is unwilling (or unable?) to intervene because Kea was properly served with the proceeding in BVI.

Gault J considered that the case was “very unusual” (at [68]). Kea had no connection to Kentucky, except for the defendants’ allegedly fabricated claim involving an agreement with a US choice of court agreement and a selection of the law of Kentucky. Kea also did not receive actual notice of the Kentucky proceedings until after the default judgement was obtained (at [73]). In these circumstances, the defendants were arguably “abusing the process of the Kentucky Court to perpetuate a fraud”, with the result that “the New Zealand Court’s intervention to restrain that New Zealand company may even be seen as consistent with the requirement of comity” (at [68]).

One may wonder whether the Kentucky Court agrees with this assessment – that a foreign court’s injunction restraining enforcement of its judgment effectively amounts to an act of comity. In fact, Kea had originally advanced a cause of action for abuse of process, claiming that the alleged fraud was an abuse of process of the Kentucky Court. It later dropped the claim, presumably due to a recent English High Court decision (W Nagel (a firm) v Chaim Pluczenik [2022] EWHC 1714) concluding that the tort of abuse of process does not extend to foreign proceedings (at [96]). The English Court said that extending the tort to foreign proceedings “would be out of step with [its] ethos”, which is “the Court’s control of its own powers and resources” (at [97]). It was not for the English court “to police or to second guess the use of courts of or law in foreign jurisdictions” (at [97]).

Since Gault J’s decision granting interim relief, the defendants have protested the Court’s jurisdiction, arguing that Kea is bound by a US jurisdiction clause and that New Zealand is not the appropriate forum to determine Kea’s claims. The Court has set aside the protest to jurisdiction (Kea Investments Ltd v Wikeley Family Trustee Limited [2023] NZHC 466). The Court also ordered that the interim orders continue, although the Court was not prepared to make a further order that the defendants consent to the discharge of the default judgment and withdraw their Kentucky proceedings. This, Gault J thought, was “a bridge too far” at this interim stage (at [98]).

 

As the American Society of International Law Annual Meeting approaches, the ASIL Private International Law Interest Group (PILIG) warmly invites you to a career talk featuring professional development in Private International Law.

• 2:00 PM-3:00 PM ET, Thursday 30 March
Venue: Embassy, Washington Hilton, 1919 Connecticut Ave NW, Washington, DC 20009

Neale Bergman, Attorney-Adviser, Office of the Legal Adviser (L/EB), U.S. Department of State
Milana Karayanidi, Counsel, Orrick
James Nafziger, Professor of Law, Vice-Chair, International Law Association (ILA)
Rekha Rangachari, Secretary-General, New York International Arbitration Center
David Stewart, Professor from Practice, Georgetown Law

This panel of seasoned experts will share their experiences and offer advice concerning career paths in international and particularly private international law fields, in areas such as research, government related work, dispute resolution, international development, and legal information. A short networking session will be offered to participants to further engage with speakers after the panel discussion.

In addition, we invite PILIG members, PILIG newsletter editors, and PILIG friends to join us for a casual happy hour gathering at the McClellan’s Sports Bar located at the Washington Hilton. Please find event details below:

• Happy Hour

4:00 PM- 5:00 PM ET, Thursday 30 March
Social & Networking Event
McClellan’s Sports Bar

No Host Bar
We hope to celebrate with you the conclusion of “pandemic years” while you enjoy ASIL’s excellent conference programs. We look forward to learning any PIL (and non-PIL) inspirations from you for the more exciting years to come. Everyone is welcome to stop by.

• PILIG newsletter editors recruiting 

We also invite scholars, practitioners, and students to contact us to become a PILIG newsletter editor.

ASIL Private International Law Interest Group Co-Chairs

Shu Shang <sshang@cpp.edu>

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

By Dr Benjamin Hayward

Those who enjoy playing video games as a pastime (though certainly not in the competitive esports environment) might take advantage of different forms of assistance when they find themselves stuck.  Once upon a time, they might have read up on tips and tricks printed in a physical video game magazine.  These days, they are more likely to head online for help.  They might seek out hints – tidbits of information that help point the gamer in the right direction, but that still allow them to otherwise work out a solution on their own.  They might use cheats – which allow the gamer ‘to create an advantage beyond normal gameplay’.  Otherwise, they might use a walkthrough – which, as the name suggests, might walk a player through the requirements of perhaps even ‘an entire video game’.

Despite initial appearances, these definitions do more than just tell us about recreation in general, and gaming culture in particular.  They also help us understand the state of play in relation to the Australian Consumer Law’s application to the digital economy, and, in turn, the ACL’s implications for international digital economy trade.

This video game analogy is actually very apt: gaming set the scene for recent litigation confirming the ACL’s application to off-shore video game vendors.  In the Valve case concerning the Steam computer gaming platform, decisions of the Federal Court of Australia and (on appeal) its Full Court confirmed that reach, via interpretation of the ACL’s s 67 conflict of laws provision.  The High Court of Australia denied special leave for any further appeal.  In the subsequent Sony Europe case, concerning the PlayStation Network, liability was not contested.  On the other hand, there was a live issue in Valve – at least at first instance – as to whether or not video games constitute ‘goods’ for the purposes of the ACL’s consumer guarantees.  The ACL’s statutory definition of goods includes ‘computer software’.  Expert evidence, not contested and accepted by the Federal Court, treated computer software as equivalent to executable files; which may work with reference to non-executable data, which is not computer software in and of itself.

Understanding the ACL’s definition of ‘goods’ has significant implications.  The ‘goods’ concept is a gateway criterion: it determines whether or not the ACL’s consumer guarantees apply, and in turn, whether it is possible to mislead consumers about the existence of associated rights.  So far as digital economy trade is concerned, case law addressing Australia’s regular Sale of Goods Acts confirms that purely-digital equivalents to traditional physical goods are not ‘goods’ at common law.  Any change to this position, according to the New South Wales Supreme Court, requires statutory intervention.  Such intervention did occur when the Trade Practices Act 1974 (Cth) transitioned into the Competition and Consumer Act 2010 (Cth).  Now, ‘computer software’ constitutes a statutory extension to the common law definition of ‘goods’ that would otherwise apply.

It is against all this context that a very recent decision of the Federal Court of Australia – ACCC v Booktopia Pty Ltd [2023] FCA 194 – is of quite some interest.  Whilst most of the decision is uncontroversial, one aspect stands out: the Court held, consistently with Booktopia’s admission, that eBooks fall within the scope of the ACL’s consumer guarantee protections.  This finding contributed to an AUD $6 million civil pecuniary penalty being imposed upon Booktopia for a range of breaches of the ACL.  But is it actually correct?  Whether or not that is so depends upon whether the statutory phrase ‘computer software’ extends to digital artefacts other than traditional desktop computer programs.  There is actually good reason, based upon the expert evidence tendered and accepted in the Valve litigation, to think not.

So what does the Booktopia case represent?  It could be a hint – an indication that will eventually lead us to a fully-explained understanding of the ACL’s wide reach across the digital economy.  In this sense, it might be a pointer that helps us to eventually solve this interpretative problem on our own.  Or it could be a cheat – a conclusion possibly justified in the context of this individual case given Booktopia’s admissions, but not generalisable to the ACL’s normal operation.  Either way, given the ACCC’s expressed view (not necessarily supported by the ACL’s actual text) that ‘[c]onsumers who buy digital products … have the same rights as those who shop in physical stores’, what we really need now is a walkthrough: a clear and reasoned explanation of exactly what ‘computer software’ actually means for the purposes of the ACL.  This will ensure that traders have the capacity to know their legal obligations, and will also allow Parliament to extend the ACL’s digital economy protections if its reach is actually limited in the way that my own scholarship suggests.

All of this has significant implications for international trade, as ‘many transfers’ of digital assets ‘are made between participants internationally’.  The increasing internationalisation and digitalisation of trade makes it imperative that this ambiguity be resolved at the earliest possible opportunity.  Since, in the words of the Booktopia judgment, ACL penalties ‘must be of an appropriate amount to ensure that [their] payment is not simply seen as a cost of doing business’, traders – including international traders – do need to know with certainty whether or not they are subject to its consumer protection regime.

 

Dr Benjamin Hayward
Senior Lecturer, Department of Business Law and Taxation, Monash Business School
Twitter: @LawGuyPI
International Trade and International Commercial Law research group: @MonashITICL

The latest edition of Dicey, Morris & Collins on the Conflict of Laws, jointly edited by The Rt Hon. the Lord Collins of Mapesbury and Professor Jonathan Harris KC (Hon.), was published by Sweet & Maxwell in September 2022. First published in 1896, Dicey, Morris & Collins on the Conflict of Laws is in its 16th edition. The publisher provides the following description for this pre-eminent treatise on private international law.

Dicey, Morris & Collins on the Conflict of Laws is renowned worldwide as the foremost authority on private international law. It explains the rules, principles and practice that determine how the law of England & Wales relates to other legal systems. Its commentary, Rules and illustrations, with detailed reference to international conventions, legislation and case law, ensures it remains an indispensable tool for practitioners engaged in cross-border matters. Across two volumes and a Companion Volume, it contains high-quality and detailed analysis. Volume 1 deals with general principles, the effects of withdrawal by the United Kingdom from the European Union, foreign affairs and the conflict of laws, procedural issues relating to international litigation, jurisdiction, recognition and enforcement of foreign judgments and arbitration. Volume 2 deals with a number of specific areas of law. It addresses family law, property law, succession and trusts, corporations and insolvency and the law of obligations. A Companion Volume considers in greater detail the transitional issues arising from the United Kingdom’s withdrawal from the European Union and the relevant EU legislation in a number of key areas.  Key Features 

• • Explains the rules, principles and practice that determine how the law of England and Wales relates to other legal systems. 
  • Volume 1 deals with general principles the effects of the withdrawal by the United Kingdom from the European Union, foreign affairs law, protective measures and international judicial cooperation, jurisdiction of English courts, recognition and enforcement of foreign judgments and international arbitration. 
  • Volume 2 covers family law, property law, succession and trusts, corporations and bankruptcy, contracts, torts, unjust enrichment and equitable claims, and foreign currency obligations.
  • Includes a new Part containing detailed analysis of Foreign Affairs and the Conflict of Laws, including expanded coverage of important developments in this area.
  • Includes detailed treatment of the Hague Convention on Choice of Court Agreements 2005.
  • Family law coverage includes important developments in respect of same-sex marriages, civil partnerships and surrogacy.
  • A Companion Volume explains in detail the transitional provisions relating to the withdrawal by the United Kingdom from the European Union and the relevant EU legislation in areas where those transitional issues will remain relevant for the foreseeable future, including on lis pendens, recognition and enforcement of foreign judgments, family law and insolvency.

New material in the Sixteenth edition: The new edition addresses all key developments, international conventions, legislation and case law since publication of the 15th edition in 2012. It includes the following significant developments 

• • Full analysis of the effects of the withdrawal by the United Kingdom from the European Union.
  • Detailed coverage of the Hague Convention on Choice of Court Agreements 2005.
  • Analysis of domestic legislation, including the Private International Law (Implementation of Agreements) Act 2020, important amendments to the Civil Jurisdiction and Judgments Act 1982 and a number of key statutory instruments.
  • A new Part containing detailed analysis of Foreign Affairs and the Conflict of Laws, including expanded coverage of important developments in this area.
  • Covers important developments in family law, including in respect of same-sex marriages, civil partnerships and surrogacy.
  • Detailed analysis of the many decisions of the Supreme Court, Privy Council, Court of Appeal and High Court and in other parts of the United Kingdom, Commonwealth and other jurisdictions.

Companion to the Sixteenth Edition The Companion Volume explains in detail the effects of the withdrawal by the United Kingdom from the European Union. It analyses the relevant transitional provision in the Withdrawal Agreement concluded between the United Kingdom and the European Union, as well as domestic legislation on transitional issues. It analyses the relevant EU law in areas likely to remain relevant for the foreseeable future, including in relation to lis pendens and the recognition and enforcement of judgments from EU Member States. It considers the relevant family legislation in the Brussels IIa and Maintenance Regulations. The Companion Volume also includes detailed coverage of relevant provisions of the recast Insolvency Regulation.

Further information is available here.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 30 March 2023 at 14:30 (Mexico City time – CST), 22:30 (CEST time). The topic of the webinar is Family law in England and Wales and cross-border problems and will be presented by Carolina Marín Pedreño, specialist in Family law and former president of the Westminster & Holborn Law Society (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/82391552268?pwd=dSt5K2V1elNvSURyVE1nOTB6M2p3dz09

Meeting ID: 823 9155 2268

Password: AMEDIP

Participation is free of charge.

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

This summary was provided by the author, Naivi Chikoc Barreda, Assistant Professor at the Faculty of Law of the University of Ottawa.

The book Succession internationale et dispositions spéciales de la lex rei sitae. Contribution à l’étude de l’impérativité internationale en matière successorale  by Naivi Chikoc Barreda (L’Harmattan, Paris, December 2022) offers an in-depth reflection on the subject of overriding mandatory provisions in matters of succession, through an analysis of the clause allowing the application of the special provisions of the lex rei sitae which derogate from the unitary law of succession.

In Part I, the author traces the historical origins of the “territorial exception” to the unitary system in German legal literature and studies its subsequent development in the Introductory Act to the German Civil Code and in the convention drafts drawn up by the Hague Convention between 1900 and 1928. Theorized by Savigny under the concept of “Gesetze von zwingender, strengthe positiver Natur“, these special rules were associated with the public policy clause by the Hague drafts, under the influence of the Mancinian doctrine. To explain this convergence, the author analyzes the relationship between public policy and territoriality in the period in which these projects were conceived. The clause concerning the special regimes of the situs was finally detached from the public policy exception in the 1989 Convention. However, the methodological transformations in the field of Private international law during the second half of the XXth century left the phenomenon in a shadowy area. Unable to fit into the “new” approaches to public policy and overriding mandatory provisions, the derogatory application of the lex rei sitae took the form of a substantially oriented conflict rule. When the European legislator decided to insert the clause in Article 30 of Regulation 650/2012, it discarded the conflictual model and adopted the method of “lois de police”, thus restoring the Savignian understanding of this exception. The author discusses the reasons for this methodological choice, by exploring the family, economic and social purposes of these rules in accordance with the principles underlying the autonomous interpretation of the regulation.

Part II addresses the complex issues arising out of the interaction between succession and other choice-of-law categories involved in the transfer of certain assets upon death. Most of the special provisions examined are at the intersection of several categories, their goal being precisely to ensure the stability of the function that the assets have been serving before the opening of the succession. Thus, it appeared important to distinguish between the ways in which property can be transferred otherwise than by succession, the rules for the distribution of particular assets of the estate, and the rules “affecting” the succession on such property. In the light of the CJEU case law, the author examined the treatment of the constitution of rights in rem by way of succession, the restriction on the acquisition of property by foreigners or non-residents, the transmission of the tenant’s rights after his death, the transfer of company shares, and the succession of the author’s droit de suite. An analytical framework is then proposed to delineate the respective scopes of the lex successionis, the lex rei sitae, the law governing matrimonial property regimes, the law applicable to maintenance obligations, the lex contractus, the lex societatis and the lex loci protectionis.

An extensive analysis is devoted to the compatibility between the clause on the special rules of the lex rei sitae and the concept of overriding mandatory provisions, as formulated in various regulations and interpreted by the CJEU. Two fundamental obstacles seem to prevent such integration: the absence of any reference to the protection of public interests and to the mandatory nature of the rules. Indeed, many of the special rules dealing with the transfer of particular assets for socio-economic purposes are either limited to enabling the owner to allocate the property according to some criteria or are default rules that apply absent a contrary disposition by the deceased. Despite the wording of the clause, the author argues for a shared intertextual interpretation of lois de police that brings the succession regulation in line with the position of other regulations on this issue. The traditional distinction between lois de police and the rules which are only mandatory at a domestic level is subject to a critical analysis from a new angle. The comparative study of the special rules of the lex rei sitae that intervene in succession matters leads the author to deconstruct the concentric circles theory that explain the convergence of both concepts on a core of super-imperative rules. Based on the interaction between the nature of the rule and its purpose in the law of succession, she explains the differences in the relationship of these special rules with party autonomy on a substantive and a PIL level. From this perspective, some permissive and default rules of the situs are consistent with a functional conception of lois de police, freed from a concrete regulatory technique that is supposedly the only one suited to the pursuit of a public interest policy, and therefore deserve to be recognized as potentially having an overriding effect on the lex causae.

The journal, Current Legal Problems yesterday, inter alia, published an open access article on private international law:

Alex Mills, “The Privatisation of Private (and) International Law”

Privatisation is much studied and debated as a general phenomenon, including in relation to its legal effects and the challenges it presents to the boundaries of public and private law. Outside the criminal context there has however been relatively limited focus on privatisation of the governmental functions which are perhaps of most interest to lawyers—law making, law enforcement and dispute resolution—or on the international legal implications of privatisation. This article argues that modern legal developments in the context of private law and cross-border private legal relations—generally known as party autonomy in private international law—can be usefully analysed as two distinct forms of privatisation. First, privatisation of certain allocative functions of public and private international law, in respect of both institutional and substantive aspects of private law regulation, through the legal effect given to choice of court and choice of law agreements. Second, privatisation of the institutional and substantive regulation of private legal relationships themselves, through arbitration and the recognition of non-state law. Together, these developments have established a global marketplace of state and non-state dispute resolution institutions and private laws, which detaches private law authority from its traditional jurisdictional anchors. Analysing these developments through the lens of privatisation highlights a number of important critical questions which deserve greater consideration—this article further examines in particular whether this form of privatisation in fact increases efficiency in either private international law decision-making or private law dispute resolution, as well as its distributive and regulatory effects.

The Chinese lawmakers published the draft Foreign Relations Law and the draft Foreign States Immunities Law in December 2022. The English version of the two drafts published in this post is translated by Jingru Wang at the Wuhan Unviersity Institute of International Law.

Foreign Relations Law of China

Law on Foreign State Immunity of China

 

 

Written by Alessa Karlinski and Maren Vogel (both Free University Berlin).

On February 23rd and 24th, 2023, young scholars came together at the Siegmund Freud University, Vienna, to discuss different views on private international law under the theme of “Deference to the foreign – empty phrase or guiding principle of private international law?”. Continuing the success of the previous three German-Speaking Conferences of Young Scholars in PIL from previous years in Bonn, Würzburg and Hamburg, this year’s conference was hosted in Austria by Martina Melcher and Florian Heindler who organized the event together with Andreas Engel, Katharina Kaesling, Ben Köhler, Bettina Rentsch, Susanna Roßbach and Johannes Ungerer.

As keynote speaker, Professor Horatia Muir Watt (Sciences Po Paris) borrowed from the often-used metaphor of the “dismal swamp” to present an “ecosophical” approach to private international law. For this purpose, she engaged anthropological and philosophical insights of Western and indigenous origin on the meaning of law and the regulatory functions of private international law in particular.

Vanessa Grifo (University of Heidelberg) presented possible insights from the theory of the post-migrant society for international family law. Based on sociological accounts of “post-migrant” identities, Grifo discussed that a person’s cultural identity can form “hybrid” solidarity to different legal systems and oppose the collective national identity of the country of immigration. While previously, according to Kegel, connecting factors were understood to build upon certain generally neutral conflict-of-laws interests, cultural identity is becoming a relevant aspect of party interests, which she demonstrated with the help of different recent judgement of the German Federal Court of Justice. This paradigm, Grifo argued, shows a shift from the system of the traditional German understanding of connecting factors following Kegel.

Victoria Garin (European University Institute, Florence) examined the connection between private international law and the concept of Relativism. The basis of her analysis is the contemporary private international law attempting to coordinate conflicting regulatory claims of several legal systems. Garin identified extraterritoriality, difference and equivalence as assumptions used in private international law to solve this conflict. These assumptions, Garin argued, are premised on Relativism in its forms as descriptive and normative theory. Through the lens of Relativism a critical examination of private international law, especially regarding current developments in literature, was made. Garin explained to what extent the criticism of Relativism can be applied to private international law theory.

Dr Shahar Avraham-Giller (Hebrew University Jerusalem) presented two seemingly contradictory developments in private international law. First Avraham-Giller pointed out, that legal questions are increasingly restrictively categorised as procedural questions in the EU and in common law states which leads to a broader application of foreign law as the lex causae. The application of the lex fori to procedural questions can itself be understood as an overriding mandatory provision of the forum. On the other hand, as Avraham-Giller projected, an increased recourse of courts to the means of other overriding mandatory provisions to safeguard national public interests can be observed. In her opinion, these seemingly contradictory developments can be explained as an answer to the development of a more “private” understanding of civil proceedings, seeking primarily peaceful settlement of private disputes, while enforcing other values and public goals through mandatory overriding provisions at the same time.

Raphael Dummermuth (University of Fribourg) then shed light on deference to the foreign in the context of the interpretation of the Lugano Convention. First, he addressed the question of the implementation of the objective of taking into account the case law of the ECJ by non-EU courts, as stated in Art. 1(1) Protocol 2 Lugano Convention. The application of the Lugano Convention, he pointed out, requires a double consideration of the foreign: the court must consider standards or judgments that are outside the Lugano Convention and in doing so apply a foreign methodology. Nonetheless, the one-sided duty of consideration is limited where the results of interpretation are decisively based on principles of EU law. He came to the conclusion, that precedent effect should therefore only be given to results that are justifiable within the scope of the classical methodology.

The first day of the conference closed with a panel discussion between Professor Dietmar Czernich, Professor Georg Kodek and Dr Judith Schacherreiter on deference to the foreign in private international legal practice and international civil procedure. The discussants shared numerous insights: from the appointment of expert opinions on foreign law, to deference to the foreign in international commercial arbitration and the practice of legal advice.

Selina Mack (LMU Munich) opened the second day of the conference examining the ordre public in the field of succession law using the example of the right to a compulsory portion in Austria and Germany. Mack began by comparing similar regulations in Germany and Austria with the so-called family provision in England. She then contrasted a decision of the Supreme Court of Austria (OGH) with a decision of the German Federal Court of Justice (BGH), both of which deal with the ordre public according to Art. 35 of the European Inheritance Regulation when applying English law. The ordre public clause under Art. 35 is to be applied restrictively. While the OGH did not consider the ordre public to be infringed, the BGH, on the other hand, assumed an infringement. Mack concluded that this is a fundamental disrespect of the foreign by the BGH.

Tess Bens (MPI Luxembourg) examined methods of enforcing foreign judgments under the Brussels Ia Regulation. Said Regulation does not, in principle, harmonise enforcement law. She presented the enforcement mechanism as applying the enforcement law of the enforcing state by means of substitution or, insofar as the order or measure was unknown to the enforcement law, by means of transposition. Due to structural differences in the enforcement law of the Member States, as Bens outlines, practical problems can nevertheless arise. Especially since the abolition of the exequatur procedure in the case of insufficient concretisation of the enforcement order, the Brussels Ia Regulation does not provide a procedure. Finally, she discussed that these frictions might be mitigated by anticipating differences and requirements of the enforcing by the courts, nonetheless limited due to the difficulty of predictability.

Afterwards, the participants were able to discuss various topics in a small group for one hour in three parallel groups, each introduced by two impulse speeches.

The first group looked at the factor of nationality in private international law. Stefano Dominelli (Università di Genova) introduced into the current debate on the connecting factor of nationality in matters concerning the personal status. In his opinion, it is debateable whether a shift towards the application of local law really strengthens deference to the foreign. Micheal Cremer (MPI Hamburg) looked at the handling of so-called golden passports in the EU. He pointed out, that European conflict of laws regularly does not take the purchased nationality into account, being in line with most of the theoretical approaches to the nationality principle.

The second group focused on the influence of political decisions on the application of foreign law. Dr Adrian Hemler (University of Konstanz) presented the concept of distributive justice as a reason for applying foreign law. He emphasised, that the difference between purely national and foreign constellations makes the application of foreign law necessary. In his presentation, Felix Aiwanger (LMU Munich) looked at different standards of control with regard to foreign law. He argued that legal systems that can be considered as reliable are subject to a simplified content review.

The third group discussed the treatment of foreign institutions in international family law. Dr Lukas Klever (JKU Linz) presented the recognition of decisions on personal status in cases of surrogacy carried out abroad. He discussed differences and possible weaknesses in the recognition under the Austrian conflict of laws and procedural law. Aron Johanson (LMU Munich) then provided a further perspective with a look at the institute of polygamy. He explained, that while in Germany a partial recognition can be possible, Sweden had switched to a regular refusal of recognition. Subsequently the question of a duty of recognition arising from the free movement of persons as soon as one member state recognises polygamy was asked.

Dr Tabea Bauermeister (University of Hamburg) devoted her presentation to the conflict of laws dimension of the claim for damages in Art. 22 of the European Commission’s proposal for a directive on corporate sustainability due diligence (CSDDD), paragraph 5 of which compels the member states to design it as an overriding mandatory provision. She outlined, that regulatory goals can also be achieved through mutual conflict-of-laws provisions. An example of this is the codification of international cartel offence law. Bauermeister concluded, that the use of mandatory overriding provisions instead of special conflict-of-laws provisions expresses a distrust of the foreign legislature’s competence or willingness to regulate and therefore represents a disregard of the foreign.

Dr Sophia Schwemmer (Heidelberg University) then examined private enforcement under the CSDDD vis-à-vis third-state companies. She stated, that while third-state companies were included in the scope of application insofar as they are active in the EU internal market, the applicability of the CSDDD could normally not be achieved using the classic conflict-of-laws rules. The CSDDD resorts to an overriding mandatory provision for this purpose. However, Schwemmer concluded that a different approach, e.g. an extended right of choice of law for the injured party, was also imaginable and preferable.

As last speaker, Dr Lena Hornkohl (University of Vienna/Heidelberg University) addressed the effects of EU blocking regulations on private law. She stated that the application of EU blocking statutes as a reaction to extraterritorial third-country regulations can lead to almost irresolvable conflicts in private law relationships. Hornkohl then critically examined the ECJ case law that postulates the direct applicability of the Blocking Regulation in private law relationships. Binding private parties to the Blocking Regulation, she concluded, leads to the instrumentalisation of private law at the expense of private parties with the aim of enforcing foreign policy objectives.

A conference volume will be published by Mohr Siebeck Verlag later this year. The next PIL Young Researchers Conference will take place in Heidelberg in 2025.

Ever since the infamous West Tankers saga, if not before, the interplay between the international jurisdiction of national courts and arbitral tribunals has been subject to a constant stream of publications. Writing a monograph on this topic that is both fundamental and innovative in this field is therefore no small feat – making this book by Faidon Varesis, which has come out at the beginning of the year and is based on his Cambridge dissertation, all the more impressive.

The book is organized in three parts (which are not evident from the Table of Contents). Varesis first discusses the importance of commercial disputes in a globalized world, focusing on the private and regulatory interests involved. He then looks more closely at the issue of jurisdiction and the interplay between litigation and arbitration at what he identifies as “jurisdictional intersections” (referring to a range of different situations in which state courts or arbitral tribunals need to resolve questions of adjudicative jurisdiction), before discussing the concept of party autonomy and its expression in an arbitration agreement. In the second part, Varesis then develops a theoretical model for the distribution of jurisdiction between arbitration and litigation that puts the arbitration agreement at its centre. In the third and final part, the author then tests this model against the current legal framework in England and Wales and demonstrates how it would enable courts and arbitral tribunals alike to solve questions arising at the aforementioned jurisdictional intersections in a global-law spirit.

Arguably the most significant contribution of this book to existing scholarship and debates is its attempt to construct a system around a “horizontal” (rather than hierarchical) relationship between arbitration and litigation as two equivalent yet interdependent modes of dispute resolution. How much appetite there is for such an approach in the wake of Katharina Pistor’s Code of Capital and other critical accounts of corporations seemingly using the law to create and (re-)distribute capital and wealth behind closed doors is obviously open to debate; but this does not make Varesis’ attempt to reconstruct a horizontal system of jurisdiction, arbitral or adjudicatory, that reconciles the distribution of regulatory competence with the need for substantial fairness any less of an intellectually stimulating exercise.

On 13 March 2023, the Journal of International Dispute Settlement  published a private international law article:

G Antonopoulou, “The ‘Arbitralization’ of Courts: The Role of International Commercial Arbitration in the Establishment and the Procedural Design of International Commercial Courts” 

International commercial arbitration is the most preferred dispute resolution method in cross-border commercial disputes. It has been, however, claimed that arbitration has lost its flexibility by becoming increasingly formal and by incorporating litigation practices. In academic literature, this trend has been termed the ‘judicialization’ of international commercial arbitration. This article argues that while arbitration is becoming progressively judicialized, international commercial courts evidence an opposite, less studied trend; namely, the ‘arbitralization’ of courts. Through a comparative analysis of different international commercial courts, the article explores how the competition with arbitration has prompted the establishment of these courts, and how arbitration has served as the inspiration for some of their most innovative features. The article concludes that while the incorporation of arbitration features could improve court proceedings, some of international commercial courts’ arbitration features undermine procedural justice and the role of courts as public institutions and therefore hit the limits of arbitralization.

A new private international law article was just published in the Arab Law Quarterly.:

A Dawwas, “Tacit Choice of Law Applicable to International Commercial Contracts: The Hague Principles and Arab Laws Compared”

This article deals with the law tacitly chosen by the parties to govern their international commercial contracts. It shows the method by which The 2015 Hague Principles on Choice of Law in International Commercial Contracts and Arab laws refer to tacit choice, whether directly or indirectly. In addition, it tackles the level of strictness in tests for tacit choice and its criteria under both The Hague Principles and Arab laws. It concludes that, in order to achieve more predictability and legal certainty, the Legislatures in Arab states should reform the legal provisions on choice of law applicable to the contract with foreign element(s) according to the best practice followed by The Hague Principles in this regard.