Conflictoflaws

This book brings together the contributions made at the 6th AEPDIRI Seminar on current issues in Private International Law, held at the Faculty of Law of the University of Seville, which was entitled “De los retos a las oportunidades en el derecho de familia y sucesiones internacional” (From challenges to opportunities in international family and succession law), Campuzano Díaz, B., Diago Diago, P., Rodríguez Vázquez, Mª.A. (dirs.). An English translation of the blurb is provided by the directors:

The book is structured in four thematic sections. The first one is dedicated to Regulation 2019/1111 and its application in Spain, analysing important issues related to international child abduction and divorce before non-judicial authorities and its recognition. The second thematic section is dedicated to the economic regime of marriage and the couple, inheritance and the organisation of family assets, with reflections on the impact of the principle of equality between spouses and the protection of assets through international estate planning institutions, among other issues. The third section deals with questions of civil status and the solutions provided by the Spanish Civil Registry Law, with special attention to filiation in Private International Law from the perspective of the protection of fundamental rights and the respect for family life. The fourth section includes studies about current realities, such as situations of domestic violence in cases of international child abduction, negotiable institutions and their place in the succession Regulations and the interpretation of private international family law in different High Courts (CJEU and ECtHR).

It is a book of great interest, not only because of the importance and diversity of the subjects dealt with, but also because of the important group of specialists in international family and succession law who have participated in its drafting.

The book is published in digital and open access format:

https://open.tirant.com/cloudLibrary/ebook/info/9788411978248

https://www.aepdiri.org/index.php/las-publicaciones/otras-publicaciones/2170-campuzano-diaz-b-diago-diago-p-rodriguez-vazquez-m-a-dirs-de-los-retos-a-las-oportunidades-en-el-derecho-de-familia-y-sucesiones-internacional

By Poomintr Sooksripaisarnkit

Lecturer in Maritime Law, Australian Maritime College, University of Tasmania

Introduction

On 14th February 2024, the High Court of Australia handed down its judgment in Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4. The case has ramifications on whether a foreign arbitration clause (in this case, the London arbitration clause) would be null and void under the scheme of the Carriage of Goods by Sea Act 1991 (Cth) which makes effective an amended version of the International Convention on the Unification of Certain Rules of Law relating to Bills of Lading, Brussels, 25 August 1924 (the “Hague Rules”). The argument focused on the potential effect of Article 3(8) of the Amended Hague Rules, which, like the original version, provides:

“Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to, or in connection with, goods arising from negligent, fault, or failure in the duties and obligations provided in this article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect. A benefit of insurance in favour of the carrier or similar clause shall be deemed to be a clause relieving the carrier from liability”.

BRIEF FACTS OF THE CASE

The case involved a carriage of head-hardened steel rails from Port of Whyalla in South Australia to the Port of Mackay in Queensland. When the goods arrived at the Port of Mackay, it was discovered that goods were in damaged conditions to the extent that they could not be used, and they had to be sold for scrap. A bill of lading issued by the carrier, BBC, containing the following clauses:

“3. Liability under the Contract

• Unless otherwise provided herein, the Hague Rules contained in the International Convention for the Unification of Certain Rules Relating to Bills of Lading, dated Brussels the 25th August 1924 as enacted in the country of shipment shall apply to this Contract. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply. In respect of shipments to which there are no such enactments compulsorily applicable, the terms of Articles I-VIII inclusive of said Convention shall apply….”

4. Law and Jurisdiction

Except as provided elsewhere herein, any dispute arising under or in connection with this Bill of Lading shall be referred to arbitration in London. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) terms. The arbitration Tribunal is to consist of three arbitrators, one arbitrator to be appointed by each party and the two so appointed to appoint a third arbitrator. English law is to apply”.

The carrier, BBC, commenced arbitration in London according to Clause 4 of the bill of lading. Carmichael, on the other hand, commenced proceeding before the Federal Court of Australia to claim damages. Carmichael sought an anti-suit injunction to restrain the arbitration proceeding. BBC, on the other hand, sought a stay of the Australian proceeding.

ARGUMENTS IN THE HIGH COURT OF AUSTRALIA

Carmichael contended that Clause 4 should be null and void because of Article 3(8) of the Amended Hague Rules. First, there is a risk that London arbitrators will follow the position of the English law in Jindal Iron and Steel Co Ltd and Others v Islamic Solidarity Shipping Co. Jordan Inc (The “Jordan II”) [2004] UKHL 49 and found the carrier’s duty to properly stow and care for the cargo under Article 3(2) of the Hague Rules to be a delegable duty, as opposed to an inclination of the court in Australia, as shown in the New South Wales Court of Appeal decision in Nikolay Malakhov Shipping Co Ltd v SEAS Sapfor Ltd (1998) 44 NSWLR 371. Secondly, there is a risk that the London arbitrators would construe Clause 3 as incorporating Article I-III of the Hague Rules, instead of the Amended Hague Rules of Australia. This would result in reducing the package limitation defence. Thirdly, there would be more expenses and burdens on the part of Carmichael to have to pursue its claim against BBC in London.

REASONING OF THE HIGH COURT OF AUSTRALIA

Whether Article 3(8) is applicable, the High Court of Australia found as a matter of principle that the court must consider all circumstances (being past, present, or future) whether a contractual clause relieves or lessen the carrier’s liability. The standard of proof to be applied in considering such circumstances is the civil standard of the balance of probability. The court drew support from section 7(2) and section 7(5) of the International Arbitration Act 1974 (Cth), as the parties relied on this piece of legislation in seeking an anti-suit injunction or a stay of the proceeding. In section 7(2), the language is that the court “shall” stay the proceedings if a matter is capable of settlement by arbitration. In section 7(5), again, there is a word “shall” in that the court shall not stay the proceedings under subsection (2) if the court finds the arbitration agreement to be null and void. As the High Court of Australia emphasised in paragraph 25 of its judgment: “For an Australian court to ‘find’ an arbitration agreement null and void … it must be able to do so as a matter of law based on agreed, admitted, or proved fact”. Such proof is on the balance of probabilities pursuant to the Evidence Act 1995 (Cth). Moreover, the Amended Hague Rules in Australia ultimately has the nature of an international convention. The interpretation of which must be done within the framework of the Vienna Convention on the Law of Treaties 1969 which requires that relevant rules of international law must be considered. The burden of proof which international tribunals usually adopt is that of “preponderance of evidence”, which is no less stringent than that of the balance of probabilities. This supports what the High Court of Australia found in paragraph 32 of its judgment that “references to a clause ‘relieving’ a carrier from liability or ‘lessening such liability’ are to be understood as referring to facts able to be found in accordance with the requisite degree of confidence…” Also, the High Court of Australia found the overall purpose of the Hague Rules is to provide a set of rules which are certain and predictable. Any attempt to apply Article 3(8) to the circumstances or facts which are not agreed or admitted or proved would run against the overall objective of the Hague Rules.

A reference was also made to an undertaking made by BBC before the Full Court of the Federal Court of Australia that it would admit in the arbitration in London that the Amended Hague Rules would be applicable to the dispute and BBC did consent to the Full Court of the Federal Court of Australia to make declaration to the same effect. It was argued by Carmichael that the undertaking and the subsequent declaration should not be considered because they came after BBC had commenced the arbitration pursuant to Clause 4. However, the High Court of Australia, emphasised in paragraph 59 that the agreed or admitted or proved facts at the time the court is deciding whether to engage Article 3(8) are what the courts consider. The effect of the undertaking and the declaration are that it should be amounted to the choice of law chosen by the parties within the meaning of section 46(1)(a) of the Arbitration Act 1996 and should effectively supersede the choice of the English law in Clause 4 of the bills of lading.

All the risks pointed out by Carmichael are unreal. First, the indication of the New South Wales Court of Appeal in the Nikolay Malakhov case in respect of Article 3(2) of the Hague Rules was not conclusive as it was obiter only. There is no clear legal position on this in Australia. Secondly, the language of Clause 3 is that Article I-VIII are to be applied if there are “no such enactments”. But the country of shipment in this case (namely Australia) enacts the Hague-Rules. Moreover, there is no ground for any concern in light of the undertaking and the declaration. Lastly, Article 3(8) of the Amended Hague Rules concerns with the carrier’s liability. It is not about the costs or burdens in the enforcement process. Hence, the Australian proceeding is to be stayed.

COMMENT

As the High Court of Australia emphasised, whether Article 3(8) of the Amended Hague Rules is to be engaged depending upon facts or circumstances at the time the court is deciding the question. This case was pretty much confined to its facts, as could be seen from the earlier undertaking and the declaration which the High Court of Australia heavily relied upon. Nevertheless, the door is not fully closed. There is a possibility that the foreign arbitration and the choice of law clause can be found to be null and void pursuant to Article 3(8) if the facts or circumstances are established on the balance of probabilities that the tribunals will apply the foreign law which has the effect of relieving or lessening the carrier’s liabilities.

In the Lafarge case (Cass. Crim., 16 janvier 2024, n°22-83.681, available here), the French Cour de cassation (chambre criminelle) recently rendered a ruling on some criminal charges against the French major cement manufacturer for its activities in Syria during the civil war. The decision addresses several key aspects of private international law in transnational criminal lawsuits and labour law.

From 2012 to September 2014, through a local subsidiary it indirectly controlled, the French company kept a cement plant operating in a Syrian territory exposed to the civil war. During the operation, the local employees were at risk of extortion and kidnapping by armed groups, notably the Islamic State. On these facts, in 2016, two French NGOs and 11 former Syrian employees of Lafarge’s Syrian subsidiary pressed criminal charges in French courts against the French mother company. Charges contend financing a terrorist group, complicity in war crimes and crimes against humanity, abusive exploitation of the labour of others as well as endangering the lives of others.

After lengthy procedural contortions, the chambre d’instruction of the Cour d’appel de Paris (the investigating judge) confirmed the indictments in a ruling dated May 18th, 2022.  Here, the part of the decision of most direct relevance to private international law concerns the last incrimination of endangering the lives of others. The charge, set out in Article 223-1 of the French Criminal Code, implicates the act of directly exposing another person to an immediate risk of death or injury likely to result in permanent mutilation or infirmity through the manifestly deliberate violation of a particular obligation of prudence or safety imposed by law or regulation. The chambre d’instruction found that the relationship between Lafarge and the Syrian workers was subject to French law, which integrates the obligations of establishing a single risk assessment report for workers’ health and safety (Articles R4121-1 and R4121-2 of the French Labour Code) and a mandatory safety training related to working conditions (Article R4141-13 of the French Labour Code). On this basis, it upheld the mother company’s indictment for violating the aforementioned prudence and safety obligations of the French Labour Code. Following this ruling, the Defendants petitioned to the French Supreme Court to have the charges annulled, arguing that French law did not apply to the litigious employment relationship.

By its decision of January 16, 2024, the French Cour de cassation (chambre criminelle) ruled partly in favour of the petitioner. By applying Article 8 of the Rome I regulation, it decided that the employment relationship between Lafarge and the Syrian workers was governed by Syrian law, so that, French law not being applicable, the conditions for application of Article 223-1 of the French Criminal Code were not met. Thus, the Cour de cassation quashed Lafarge’s indictment for endangering the lives of others, while upholding the remaining charges of complicity in war crimes and crimes against humanity.

The Lafarge case highlights the stakes of transnational criminal law and its interplay with private international law.

Because of the solidarity between criminal jurisdiction and legislative competence, the field is in principle exclusive of conflict of laws. However, this clear-cut frontier is often blurred.

In Lafarge, a conflict appeared incidentally via the specific incrimination of endangering the lives of others. In a transnational context, the key legal issue concerns the scope of the legal and regulatory obligations covered by the incrimination. A flexible interpretation including foreign law would lead to a (too) broad extension of French courts’ criminal jurisdiction. In the present decision, the Cour de cassation logically ruled, notably on the basis of the principle of strict interpretation of criminal law, that an obligation of prudence or safety within the meaning of Article 223-1 “necessarily refers to provisions of French law”.

Far from exhausting issues of private international law, this conclusion opens the door wide to conflict of laws. Indeed, the court then had to determine whether such French prudence or safety provisions applied to the case.

Under Article 8§2 of the Rome I regulation, absent an employment contract, the law applicable to the employment relationship between Lafarge and the Syrian workers should be the law of the country in which the employees habitually carry out their work –i.e. Syrian law. However, French law could be applicable in two situations: either if it appears that the employment relationships have a closer connection with France (article 8§4 Rome I), or because French law imposes overriding mandatory provisions (article 9 Rome I).

On the one hand, the Cour de cassation dismissed the argument that the employment relationship had a closer connection with France. Previously, the chambre d’instruction considered that the parent company’s permanent interference (“immixtion”) in the management of its Syrian subsidiary (based on a body of corroborating evidence, in particular, the subsidiary’s financial and operational dependence on the parent company, from which it was deduced that the latter was responsible for the plant’s safety) resulted in a closer connection between France and the employment contracts of the Syrian employees. Referring to the ECJ case law, which requires such connection to be assessed on the basis of the circumstances “as a whole”, the Supreme Court conversely held that considerations relating solely to the relationship between the parent company and its subsidiary were not sufficient to rule out the application of Syrian law. Ultimately, the Cour de cassation found that none of the alleged facts was such as to characterize closer links with France than with Syria.

On the other hand, the Cour de cassation rejected the characterization of Articles R4121-1, R4121-2 and R4141-13 of the French Labour Code as overriding mandatory provisions (“lois de police”). Here, the Criminal division of the Cour is adopting the solution set out by the Labour disputes division (chambre sociale) in an opinion issued on the present Lafarge case. In its opinion, the Social division noted that, while the above-mentioned provisions do indeed pursue a public interest objective of protecting the health and safety of workers, the conflict of laws rules set out in Article 8 Rome I are sufficient to ensure that the protection guaranteed by these provisions applies to workers whose contracts have enough connection with France -a questionable utterance in the light of the reasoning of the Cour de cassation in the decision under comment and its strict interpretation of the escape clause.

As a result, the employment relationship between Lafarge and the Syrian workers was governed by Syrian law, with French law not imposing any obligation of prudence or safety to the case. The Supreme court thereby concluded that the conditions for application of Article 223-1 of the French Criminal Code were not met.

The Lafarge decision will have broad implications for transnational litigations.

Firstly, the Cour de cassation confirms the strict interpretation of the escape clause in Article 8§4 of the Rome I regulation. Making extensive reference to the ECJ case law, the Court recalled that when applying Article 8§4, courts must take account of all the elements which define the employment relationship and single out one or more as being, in its view, the most significant (among them: the country in which the employee pays taxes on the income from his activity; the country in which he is covered by a social security scheme and pension, sickness insurance and invalidity schemes; as well as the parameters relating to salary determination and other working conditions).

More importantly, the French Supreme Court limits the consequences of parent companies’ interference (immixtion) in international labour relations and value chain governance. The criterion of interference is commonly used to try to lift the corporate veil for imputing obligations and liability directly to a parent company. By establishing that the parent company’s interference was insufficient to characterize the existence of a closer connection with France, the Cour de cassation circumscribes the spatial scope of French labour law and maintains the territorial compartmentalization of global value chains. It is regrettable, in that respect, that the Supreme court did not precisely discuss the nature of the relationship between Lafarge and the Syrian workers. This solution is nevertheless consistent with the similarly restrictive approach to co-employment adopted by the French courts, which requires a “permanent interference” by the parent company leading to a “total loss of autonomy of action” on the part of the subsidiary. Coincidentally, in the absence of overriding mandatory provisions, the ruling empties of all effectiveness similar transnational criminal actions based on Article 223-1 of the French Criminal Code.

While the Cour de cassation closed the door of criminal courts, French law on corporate duty of care (Loi n° 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre) offers an effective alternative in the field of civil liability. The aim of this text is precisely to impose on lead companies a series of obligations purported to identify risks and prevent serious violations of human rights and fundamental freedoms, human health and safety, and the environment, throughout the value chain. The facts of the Lafarge case are prior to the enactment of this law. Nevertheless, future litigations will likely prosper on this ground, all the more so with the forthcoming adoption of a European directive on mandatory corporate sustainability due diligence.

By Professor András Osztovits*

I. Introduction

The heart of European economic integration is the Single Market, which can only function properly and provide economic growth and thus social welfare if effective competition rules ensure a level playing field for market players. The real breakthrough in the development of EU competition policy in this area came with Regulation 1/2003/EC, and then with Directive 2014/104/EU which complemented the public law rules with private law instruments and made the possibility to bring actions for damages for infringement of competition law easier.

It is not an exaggeration to say that the CJEU has consistently sought in its case-law to make this private enforcement as effective as possible, overcoming the procedural and substantive problems that hinder it. It was the CJEU which, in the course of its case law, developed the concept of the economic unit, allowing victims to bring an action against the whole of the undertaking affected by the cartel infringement or against certain of its subsidiaries or to seek their joint liability.

The concept of an economic unit is generally understood to mean that a parent company and its subsidiary form an economic unit where the latter is essentially under the dominant influence of the former. The CJEU has reached the conclusion in its case law that an infringement of competition law entails the joint and several liability of the economic unit as a whole, which means that one member can be held liable for the acts of another member.

II. The question referred by the Hungarian Supreme Court

However, there is still no clear guidance from the CJEU as to whether the principle of economic unit can be interpreted and applied in the reverse case, i.e. whether a parent company can rely on this concept in order to establish the jurisdiction of the courts where it has its registered seat to hear and determine its claim for damages for the harm suffered by its subsidiaries. This was the question raised by the Hungarian Supreme Court (Kúria) in a preliminary ruling procedure, in which this issue was raised as a question of jurisdiction. More precisely Article 7 (2) of the Brussels Ia Regulation had to be interpreted, according to which a person domiciled in a Member State may be sued in another Member State, ‘in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’.

The facts of the case were well suitable for framing and answering this question. The applicant is a company established in Hungary. It is either the majority shareholder or holds another form of exclusive controlling power over a number of companies established in other EU Member States. During the infringement period identified by the Commission in its decision of 19 July 2016, those subsidiaries purchased indirectly, either as owners or under a financial leasing arrangement, 71 trucks from the defendant in several Member States.

The applicant requested, before the Hungarian first-instance court, that the defendant be ordered to pay EUR 530 851 with interest and costs, arguing that this was the amount that its subsidiaries had overpaid as a consequence of the anticompetitive conduct established in the Commission Decision. Relying on the concept of an economic unit, it asserted the subsidiaries’ claims for damages against the defendant. For that purpose, it sought to establish the jurisdiction of the Hungarian courts based on Article 7(2) of Regulation No 1215/2012, claiming that its registered office, as the centre of the group’s economic and financial interests, was the place where the harmful event, within the meaning of that provision, had ultimately occurred. The defendant objected on the ground that the Hungarian courts lacked jurisdiction. The courts of first and second instance found that they lacked jurisdiction, but the Curia, which had been asked to review the case, had doubts about the interpretation of Article 7(2) of the Regulation and referred the case to the CJEU.

III. The Opinion of Advocate General

In his Opinion delivered on 8 February 2024, Advocate General Nicholas Emiliou concluded that the term ‘the place where the harmful event occurred’, within the meaning of Article 7(2) of Regulation No 1215/2012, does not cover the registered office of the parent company that brings an action for damages for the harm caused solely to that parent company’s subsidiaries by the anticompetitive conduct of a third party.

In his analysis, the Advocate General first examined the jurisdictional regime of the Brussels Ia Regulation, then the connecting factors in the context of actions for damages for infringements of Article 101 TFEU, and finally the question of whether the place of the parent company’s seat can be the place where the damage occurred in the case of damage suffered by a subsidiary. He recalled that, according to the relevant case-law of the CJEU, rules of jurisdiction other than the general rule must be interpreted restrictively, including Article 7. He pointed out that ‘the place where the harmful event occurred’ within the meaning of that provision does not cover the place where the assets of an indirect victim are affected. In the Dumez case, two French companies, having their registered offices in Paris (France), set up subsidiaries in Germany in order to pursue a property development project. However, German banks withdrew their financing, which lead to those subsidiaries becoming insolvent. The French parent companies sought to sue the German banks in Paris, arguing that this was the place where they experienced the resulting financial loss. According to the Advocate General, the applicant in the present action is also acting as an indirect victim, since it is seeking compensation for damage which first affected another legal person.

Recalling the connecting factors in actions for damages for infringement of Article 101 TFEU, the Advocate General pointed out that there were inconsistencies in the case law of the CJEU, which needed to be clarified in a forthcoming judgment. Both types of specific connecting factors (place of purchase and the victim’s registered seat) could justify the application of the rule of jurisdiction under Article 7(2) of the Regulation. The Advocate General referred to the Volvo judgment, where the CJEU qualified ‘the place where the damage occurred’ is the place, within the affected market, where the goods subject to the cartel were purchased. The Court has simultaneously reaffirmed, in the same judgment, the ongoing relevance of the alleged victim’s registered office, in cases where multiple purchases were made in different places. According to the Advocate General, the applicant seeks to extend the application of that connecting factor to establish jurisdiction in relation to its claim in which it seeks compensation for harm suffered solely by other members of its economic unit.

The Advocate General referred to the need for predictability in the determination of the forum in cartel proceedings, although he acknowledged that when it comes to determining the specific place ‘where the harm occurred’, the pursuit of the predictability of the forum becomes to some extent illusory in the context of a pan-European cartel.

In examining the Brussels Ia Regulation, the Advocate General recalled that it only provides additional protection for the interests of the weaker party in consumer, insurance and individual contracts of employment, but that cartel victims are not specifically mentioned in the Regulation, and therefore, in its interpretation, the interests of the claimants and defendants must be considered equivalent. Even so, the parent company has a wide range of options for claiming, the victim can initiate the action not only against the parent company that is the addressee of the respective Commission decision establishing an infringement but also against a subsidiary within that parent company’s economic unit. That creates the possibility of an additional forum and may therefore further facilitate enforcement. The victim also has the option of bringing proceedings before the court of the defendant’s domicile under the general rule of jurisdiction, which, while suffering the disadvantages of travel, allows him to claim the full damages in one proceeding. In these circumstences, the Advocate General failed to see in what way the current jurisdictional rules fundamentally prevent the alleged victims of anticompetitive conduct from asserting their rights.

IV. In the concept of economic unit we (don’t) trust?

Contrary to the Advocate General’s opinion, several difficulties can be seen which may prevent the victim parent companies from enforcing their rights if they cannot rely on Article 7(2) of the Brussels Ia Regulation. The additional costs arising from geographical distances and different national procedural systems may in themselves constitute a non-negligible handicap to the enforcement of rights, although this is true for both parties to the litigation. However, the aim must be to minimise the procedural and substantive obstacles to these types of litigation, whose economic and regulatory background makes them inherently more difficult and thus longer in time. It is also true that the real issue at stake in this case is the substantive law underlying the jurisdictional element: whether the parent company can claim in its own name for the damage caused to its subsidiaries on the basis of the principle of economic unit. If so, then Article 7(2) of the Brussels Ia Regulation applies and it can bring these claims in the court of its own registered office. Needless to say, having a single action for damages in several Member States is much better and more efficient from a procedural point of view, and is therefore an appropriate outcome from the point of view of EU competition policy and a more desirable outcome for the functioning of the Single Market. The opportunity is there for the CJEU to move forward and further improve the effectiveness of competition law, even if this means softening somewhat the relevant jurisprudence of the Brussels Ia Regulation, which has interpreted the special jurisdictional grounds more restrictive than the general jurisdiction rules. The EU legislator should also consider introducing a special rule of jurisdiction for cartel damages in the next revision of the Brussels Ia Regulation at the latest.

The fullt text of the opinion is available here (original language: English)

*Dr. András Osztovits, Professor at Károli Gáspár University, Budapest, Hungary, osztovits.andras@kre.hu.  He was member of the chamber of the Hungarian Supreme Court (Kúria) that initiated this preliminary procedure. Here, the author is presenting his own personal views only.

The third issue of the Journal of Private International Law for 2023 has just been published. It contains the following articles:

Chukwuma Samuel Adesina Okoli & Abubakri Yekini, “Implied jurisdiction agreements in international commercial contracts: a global comparative perspective”

This article examines the principles of implied jurisdiction agreements and their validity on a global scale. While the existing scholarly literature primarily focuses on express jurisdiction agreements, this study addresses the evident lack of scholarly research works on implied jurisdiction agreements. As such, it contributes to an understanding of implied jurisdiction agreements, providing valuable insights into their practical implications for international commercial contracts. The paper’s central question is whether implied jurisdiction agreements are globally valid and should be enforced. To answer this question, the article explores primary and secondary sources from various jurisdictions around the world, including common law, civil law, and mixed legal systems, together with insights from experts in commercial conflict of laws. The paper argues for a cautious approach to the validity of implied jurisdiction agreements, highlighting their potential complexities and uncertainties. It contends that such agreements may lead to needless jurisdictional controversies and distract from the emerging global consensus on international jurisdiction grounds. Given these considerations, the paper concludes that promoting clear and explicit jurisdiction agreements, as supported by the extant international legal frameworks, such as the Hague Conventions of 2005 and 2019, the EU Brussels Ia Regulation, and the Lugano Convention, would provide a more predictable basis for resolving cross-border disputes.

Veena Srirangam,  “The governing law of contribution claims: looking beyond Roberts v SSAFA”

The governing law of claims for contribution, where the applicable law of the underlying claim is a foreign law, has long posed a knotty problem in English private international law. The Supreme Court’s decision in Roberts v Soldiers, Sailors, Airmen and Families Association considered this issue in the context of the common law choice of law rules. This article considers the decision in Roberts and claims for contribution falling within the scope of the Rome II Regulation, the Rome I Regulation as well as the Hague Trusts Convention. It is argued here that claims for contribution arising out of the same liability should be considered as “parasitic” on the underlying claim and should prima facie be governed by the applicable law of the underlying claim.

Weitao Wong, “A principled conflict of laws characterisation of fraud in letters of credit”

This article examines how the issue of fraud in letters of credit (which constitutes a critical exception to the autonomy principle) should be characterised in a conflict of laws analysis; and consequently, which law should apply to determine if fraud has been established. It argues that the fraud issue has thus far been incorrectly subsumed within the letter of credit contract, rather than being correctly characterised as a separate and independent issue. On the basis of fundamental conflict of laws principles and policies, this article advocates that the fraud issue should be characterised separately as a tortious/delictual issue. It then discusses how some of the difficulties of such a conflicts characterisation may be adequately addressed.

Zlatan Meški, Anita Durakovi, Jasmina Alihodži, Shafiqul Hassan & Šejla Handali?, “Recognition of talaq in European states – in search of a uniform approach”

The paper aims to answer the question if and under which conditions a talaq performed in an Islamic state may be recognised in European states. The authors provide an analysis of various forms of talaq performed in different Islamic states and reach conclusions on the effects that may be recognised in Europe, with an outlook towards a possible uniform approach. The recognition of talaqs in England and Wales, Germany and Bosnia and Herzegovina are used as examples for different solutions to similar problems before European courts. The EU legislator has not adopted a uniform approach to the application and recognition of talaqs in the EU. The CJEU got it wrong in Sahyouni II and missed the opportunity to contribute to a uniform EU policy but its subsequent decision in TB opens the door for the CJEU to overturn Sahyouni II if another case concerning a non-EU talaq divorce comes before them. The Hague Divorce Convention of 1970 is an international instrument that provides for appropriate solutions. Ratification by more states in which a talaq is a legally effective form of divorce and by more European states would provide the much-needed security for families moving from Islamic states to Europe.

Sharon Shakargy, “Capacitating personal capacity: cross-border regulation of guardianship alternatives for adults”

Increasing global mobility of people with disabilities, changes in the measures employed to protect them, and growing awareness of their human rights significantly challenge the existing cross-border protection of adults around the world. National legislations are slow to react to this challenge, and the existing solutions are often insufficient. While the Hague Convention on the Protection of Adults (2000) is imperfect, it offers a solution to this problem. This article discusses the changing approach towards people with disabilities and their rights and demonstrates the incompatibility of the local protection of adults with their cross-border protection. The article further explores possible solutions to this problem. It then explains why the Hague Adults Convention is the best solution to this problem and what changes should and could be made in order to improve the solution offered by the Convention even further.

Anna Natalia Schulz, “The principle of the best interests of the child and the principle of mutual trust in the justice systems of EU Member States – Return of a child in cross-border cases within the EU in the light of EU Council Regulation 2019/1111 and the situation in Poland”

The suspension of the enforcement of a return order under the Hague Convention on the Civil Aspects of International Child Abduction and EU law, as well as the admissibility of modifying such an order, remains one of the most sensitive matters in cross-border family disputes. The article analyses EU Council Regulations 2201/2003 (Brussels IIa) and 2019/1111 (Brussels IIb) in terms of the objectives set by the EU legislator: strengthening the protection of the interests of the child and mutual trust of Member States in their justice systems. The text also refers to Polish law as an example of the evolution of the approach to the analysed issues. It presents its development, highlights the solutions concerning the competences of the Ombudsman for Children, and provides an assessment of the current legal situation in the context of Brussels IIb.

Bich Ngoc Du, “Practical application of the reciprocity principle in the recognition and enforcement of foreign judgments in civil and commercial matters in Vietnam”

The reciprocity principle was first introduced in Vietnam by Decree 83/1998 to allow for the recognition of foreign non-executionary judgments, decisions on family and marriage matters in Vietnam. It was then adapted in the first Civil Procedure Code in 2004 and was later modified in the current Civil Procedure Code for the purpose of recognition and enforcement of foreign judgments from non-treaty countries. This article examines the practical application of this reciprocity principle in Vietnamese courts by analysing cases in which they have recognised or denied recognition to foreign judgments in civil and commercial matters (that is, non-family matters), as well as a recent development in the Supreme Court’s Resolution Draft on guidance on the recognition and enforcement of foreign judgments, which adopts a presumed reciprocity approach. The article concludes that the courts have not applied the reciprocity principle in a consistent manner. The resolution for this current problem is for the presumed reciprocity approach to be promulgated soon to facilitate a uniform application in the local courts.

Meltem Ece Oba, “Procedural issues in international bankruptcy under Turkish law”

This article examines the procedural issues in a bankruptcy lawsuit with a foreign element from a Turkish private international law perspective. The article begins with a brief overview of the bankruptcy procedure under Turkish domestic law. It then explores the jurisdiction of Turkish courts in an international bankruptcy lawsuit in detail. The effects of a foreign choice of court agreement and parallel proceedings are also addressed in discussing the international jurisdiction of Turkish courts. The article also touches upon the debates on the possible legal grounds for the inclusion of assets located abroad to the bankruptcy estate established before Turkish courts considering the approaches of universalism and territorialism. Finally, problems related to the recognition of foreign bankruptcy decisions are examined.

Review Article:

Uglješa Grušic?, “Transboundary pollution at the intersection of private and public international law”

This article reviews Guillaume Laganière’s Liability for Transboundary Pollution at the Intersection of Public and Private International Law (Bloomsbury Publishing, 2022). This book makes a valuable contribution to private international law scholarship by exploring the relationship between public and private international law and the regulatory function of private international law in relation to transboundary pollution. The book’s focus on transboundary pollution, however, is narrow. A comprehensive and nuanced regulatory response to contemporary environmental challenges in private international law must also address cases where transnational corporations and global value chains are sued in their home states for environmental damage caused in developing states

The following announcement has been shared with us by the Child Support Forum.

The Child Support Forum is pleased to invite every interested stakeholder to an open conference deepening the topic of cross-border maintenance recovery by public bodies.

Due to the increase in international mobility of families, the need for immediate child support in case of default of maintenance payment is growing. This support often consists of advance maintenance payments granted by public authorities, which then must be reimbursed by the debtor. The enormous sums of money that states spend on these benefits make the cross-border enforcement of maintenance by public bodies an important political issue.

The first three meetings of the Child Support Forum showed that there is a great need for exchange between the public bodies. On the one hand, they face different hurdles in enforcing their claims due to the diversity of the maintenance support systems. On the other hand, common problems were also identified. The results of this work will be presented.

In a future perspective, it is clear that the tension between the need for more support for children, for an effective recovery of maintenance against debtors, and debtor protection is growing. It will be interesting to discuss to what extent the States make the grant of benefits dependent on the legal possibilities for reimbursement. For example, in the light of the text of the 2007 Convention and of the EU-Maintenance Regulation, public bodies currently have less support from Central Authorities when they seek reimbursement of maintenance support than children do when they claim child maintenance. Thus, the question arises as to whether debtor protection still justifies this legal situation and how maintenance debtors can be protected from double claims when it is no longer the child alone but a public body that seeks the recovery of maintenance payments.

The conference will mark the end of a series of three seminars on the topic of maintenance recovery by public bodies and is intended to provide insight into its socio-political and legal aspects as well as a unique opportunity for exchange with experts from different fields (academics, Central Authorities, public bodies from different countries).

The conference program can be downloaded here.
To register, please click here

By Madeleine Petersen Weiner, Research Fellow and Doctoral Candidate at Heidelberg University

Introduction

On 8 February 2024, Advocate General (AG) Szpunar delivered his Opinion on C-633/22 (AG Opinion), submitting that disproportionate damages for reputational harm may go against the freedom of expression as enshrined in Art. 11 Charter of Fundamental Rights of the European Union (CFR). The enforcement of these damages therefore may (and at times will) constitute a violation of public policy in the enforcing state within the meaning of Art. 34 Nr. 1 Brussels I Regulation. The AG places particular emphasis on the severe deterring effect these sums of damages may have – not only on the defendant newspaper and journalist in the case at hand but other media outlets in general (AG Opinion, paras. 161-171). The decision of the Court of Justice of the European Union (CJEU) will be of particular topical interest not least in light of the EU’s efforts to combat so-called “Strategic Lawsuits Against Public Participation” (SLAPPs) within the EU in which typically financially potent plaintiffs initiate unfounded claims for excessive sums of damages against public watchdogs (see COM(2022) 177 final).

The Facts of the Case and Procedural History

Soccer clubs Real Madrid and FC Barcelona, two unlikely friends, suffered the same fate when both became the targets of negative reporting: The French newspaper Le Monde in a piece titled “Doping: First cycling, now soccer” had covered a story alleging that the soccer clubs had retained the services of a doctor linked to a blood-doping ring. Many Spanish media outlets subsequently shared the article. Le Monde later published Real Madrid’s letter of denial without further comment. Real Madrid then brought actions before Spanish courts for reputational damage against the newspaper company and the journalist who authored the article. The Spanish courts ordered the defendants to pay 390.000 euros in damages to Real Madrid, and 33.000 euros to the member of the club’s medical team. When the creditors sought enforcement in France, the competent authorities were disputed as to whether the orders were compatible with French international public policy due to their potentially interfering with freedom of expression.

The Cour de Cassation referred the question to the CJEU with a request for a preliminary ruling under Art. 267 TFEU, submitting no less than seven questions. Conveniently, the AG summarized these questions into just one, namely essentially: whether Art. 45(1) read in conjunction with Arts. 34 Nr. 1 and 45(2) Brussels I Regulation and Art. 11 CFR are to be interpreted as meaning that a Member State may refuse to enforce another Member State’s judgment against a newspaper company and a journalist based on the grounds that it would lead to a manifest infringement of the freedom of expression as guaranteed by Art. 11 CFR.

Discussion

The case raises a considerable diversity of issues, ranging from the relationship between the European Convention on Human Rights (ECHR), the CFR, and the Brussels I Regulation, to public policy, and the prohibition of révision au fond. I will focus on whether and if so, under what circumstances, a breach of freedom of expression under Art. 11 CFR may lead to a public policy violation in the enforcing state if damages against a newspaper company and a journalist are sought.

Due to the Regulation’s objective to enable free circulation of judgments, recognition and enforcement can only be refused based on limited grounds – public policy being one of them. Against this high standard (see as held recently in C-590/21 Charles Taylor Adjusting, ECLI:EU:C:2023:633 para. 32), AG Szpunar submits first (while slightly circular in reasoning) that in light of the importance of the press in a democracy, the freedom of the press as guaranteed by Art. 11 CFR constitutes a fundamental principle in the EU legal order worthy of protection by way of public policy (AG Opinion, para. 113). The AG rests this conclusion on the methodological observation that Art. 11(2)CFR covers the freedom and plurality of the press to the same extent as Art. 10 ECHR (ECtHR, Appl. No. 38433/09 – Centro Europa and Di Stefano/Italy, para. 129).

Under the principle of mutual trust, the Regulation contains a prohibition of révision au fond, Art. 45(2) Brussels I Regulation, i.e., prevents the enforcing court from reviewing the decision as to its substance. Since the assessment of balancing the interests between the enforcement creditors and the enforcement debtors had already been carried out by the Spanish court, the AG argues that the balancing required in terms of public policy is limited to the freedom of the press against the interest in enforcing the judgment.

Since the Spanish court had ordered the defendants to pay a sum for damages it deemed to be compensatory in nature, in light of Art. 45(2) Brussels I Regulation, the enforcing court could not come to the opposing view that the damages were in fact punitive. With respect to punitive damages, the law on enforcement is more permitting in that non-compensatory damages may potentially be at variance, in particular, with the legal order of continental states (cf. Recital 32 of the Rome II Regulation). In a laudable overview of current trends in conflict of laws, taking into account Art. 10(1) of the 2019 Hague Judgments Convention, the Résolution de L’Institut de Droit International (IDI) on infringements of personality rights via the internet (which refers to the Judgments Convention), and the case law of the CJEU and the ECtHR (AG Opinion, paras. 142-158), AG Szpunar concludes that, while generally bound by the compensatory nature these damages are deemed to have, the enforcing court may only resort to public policy as regards compensatory damages in exceptional cases if further reasons in the public policy of the enforcing Member State so require.

The crux of this case lies in the fact that the damages in question could potentially have a deterring effect on the defendants and ultimately prevent them from investigating or reporting on an issue of public interest, thus hindering them from carrying out their essential work in a functioning democracy. Yet, while frequently referred to by scholars, the CJEU (see e.g., in C-590/21 Charles Taylor Adjusting, ECLI:EU:C:2023:633 para. 27), and e.g., in the preparatory work for the Anti-SLAPP Directive (see the explanatory memorandum, COM(2022) 177 final; see also Recital 11 of the Anti-SLAPP Recommendation, C(2022) 2428 final), it is unclear what a deterring effect actually consists of. Indeed, the terms “deterring effect” and “chilling effect” have been used interchangeably (AG Opinion, para. 163-166). In order to arrive at a more tangible definition, the AG makes use of the ECtHR’s case law on the deterring effect in relation to a topic of public interest. In doing so, the deterring effect is convincingly characterized both by its direct effect on the defendant newspaper company and the journalist, and the indirect effect on the freedom of information on society in the enforcing state as a whole (AG Opinion, para. 170). Furthermore, in the opinion of the AG it suffices if the enforcement is likely to have a deterring effect on press freedom in the enforcing Member State (AG Opinion, para. 170: “susceptible d’engendrer un effet dissuasif”).

As to the appropriateness of the amount of damages which could lead to a manifest breach of the freedom of the press, there is a need to differentiate: The newspaper company would be subject to a severe (and therefore disproportionate) deterring effect, if the amount of damages could jeopardize its economic basis. For natural persons like the journalist, damages would be disproportionate if the person would have to labor for years based on his or her or an average salary in order to pay the damages in full. It is convincing that the AG referred to the ECtHR’s case law and therefore applied a gradual assessment of the proportionality, depending on the financial circumstances of the company or the natural person. As a result, in case of a thus defined deterring effect on both the defendants and other media outlets, enforcing the decision would be at variance with public policy and the enforcing state would have to refuse enforcement in light of the manifest breach of Art. 11 CFR (AG Opinion, para. 191).

Conclusion

The case will bring more clarity on public policy in relation to freedom of expression and the press. It is worth highlighting that the AG relies heavily on principles as established by the ECtHR. This exhibits a desirable level of cooperation between the courts, while showing sufficient deference to the ECtHR’s competence when needed (see e.g., AG Opinion, para. 173). These joint efforts to elaborate on criteria such as “public participation” or issues of “public interest” – which will soon become more relevant if the Anti-SLAPP Directive employs these terms –, will help bring legal certainty when interpreting these (otherwise partially ambiguous) terms. It remains to be seen whether the CJEU will adopt the AG’s position. This is recommended in view of the deterrent effect of the claims for damages in dispute – not only on the defendants, but society at large.

Over the past two decades, various jurisdictions around the world have created new specialised domestic courts to resolve international commercial disputes. Located in the Gulf region (Abu Dhabi, Dubai, Qatar), in Asia (Singapore, China, Kazakhstan) and in Europe (Germany, France, the Netherlands), these courts enrich the current landscape of the resolution of international commercial disputes. In particular, they present themselves as alternatives to litigation before ordinary courts, on the one hand, and to international commercial arbitration on the other. 

In a recently published book – edited by Man Yip from Singapore Management University and me – we study international commercial courts from a comparative perspective and through various strands of inquiry. First, we offer a detailed analysis of the reasons for the creation of these courts and examine their jurisdictional, institutional and procedural features. Second, we scrutinise the motivations and/or constraints of jurisdictions that have decided against launching their own versions of ‘international commercial courts’. Finally, and most crucially, we systematically review the impact and the success of these courts addressing questions such as: what are the metrics of success, and is success wholly dependent on size of the docket? What role do the courts play in international commercial dispute resolution? What contributions can we expect from them in the future? Are these courts necessary? In addressing these questions, we hope that the book advances our understanding of the role of international commercial courts in the resolution of cross-border disputes.

The book is the result of comparative study prepared for the General Congress of the International Academy of Comparative Law that was held in 2022 in Asunción (Paraguay). It contains 21 national and special reports written by a stellar group of authors:

• Martin Bernet (Bernet Arbitration/ Dispute Management, Switzerland)
• Pamela Bookman (Fordham University, United States)
• Michael Byrne (Dubai International Financial Centre Courts, Dubai),
• Tatiana Cardoso Squeff (Federal University of Rio Grande do Sul, Brazil)
• Gustavo Cerqueira (University of Côte d’Azur, France)
• Edyta Figura-Góralczyk (Cracow University of Economics, Poland),
• David Foxton (High Court of England and Wales, United Kingdom),
• Hoang Thao Anh (University of Law, Hue University, Vietnam),
• Zhengxin Huo (China University of Political Science and Law, People’s Republic of China)
• Saloni Khanderia (OP Jindal Global University, India)
• Kwan Ho Lau (Singapore Management University, Singapore),
• Seipati Lepele (University of Pretoria, South Africa)
• Claudia Lima Marques (Federal University of Rio Grande do Sul, Brazil)
• Chien-Chung Lin (National Yang Ming Chiao Tung University, Taiwan)
• Michele Angelo Lupoi (University of Bologna, Italy)
• María Blanca Noodt Taquela (University of Buenos Aires, Argentina),
• Peter Nørgaard (Danish Ministry of Justice, Denmark)
• Maria Panezi (University of New Brunswick, Canada)
• Thomas Riehm (University of Passau, Germany)
• Clement Salung Petersen (University of Copenhagen, Denmark),
• Elsabe Schoeman (University of Pretoria, South Africa)
• Florian Scholz-Berger (University of Vienna, Austria)
• S.I. Strong (Emory University, United States)
• Willem Theus (KU Leuven and UCLouvain, Belgium)
• Quirin Thomas (University of Passau, Germany)
• Geert Van Calster (KU Leuven, Belgium)
• Vu Thi Huong (University of Law, Hue University, Vietnam)
• Marlene Wethmar-Lemmer (University of South Africa)

More information about the book is available here.

From 8 to 10 May, the University of Zagreb, Croatia, is hosting a conference on Cross-Border Dispute Resolution, organized by Dora Zgrabljic Rotar in cooperation with the Universities of Verona, Italy, and Pittsburgh, USA. The conference will take place in Dubrovnik and is primarily aimed at practising lawyers.

More information can be found on the conference flyer.

By Professor Du Tao* and Yang Zhenni**

On December 28, 2023, the Supreme People’s Court (SPC) held a press conference on Judicial Interpretations and Typical Cases on the Application of International Treaties and International Practices in Foreign-related Civil and Commercial Cases, deliberating the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of International Treaties and International Practices in the Trial of Foreign-related Civil and Commercial Cases (Interpretation) and some related typical cases. The Interpretations was adopted by the Trial Committee of the Supreme People’s Court at its 1908th meeting on December 5, 2023, which will come into force on January 1, 2024. We translated the press announcement as follows:

Background and Significance of the Interpretation

People’s courts face the important issue of how international treaties and international practices are applied domestically in foreign-related civil and commercial trials. With the implementation of the Civil Code of the People’s Republic of China on January 1, 2021, the provisions of the General Principles of the Civil Law of the People’s Republic of China on the application of international treaties and international practices have been repealed, and the Civil Code has not made specific provisions on this issue. As a result, courts around the world as well as academics have called for an early clarification of the relevant rules on the application of international treaties and international practices by the people’s courts in foreign-related civil and commercial cases.

To this end, the Supreme People’s Court has comprehensively summarized the experience of judicial practice and, after thorough research, repeated argumentation, and extensive solicitation of suggestions, formulated this Interpretation, which is of the following significance:

Firstly, the formulation of the Interpretation is a major initiative to accelerate the construction of the rule of law in relation to foreign affairs and to serve and safeguard a high level of opening up to the outside world. Since the 18th Communist Party of China (CPC) National Congress, the construction of the “Belt and Road”, the pilot free trade zone and Hainan Free Trade Port, and other major strategies of opening up to the outside world have achieved remarkable results. “Opening up to the outside world to push forward one step, foreign-related rule of law construction should follow one step”. The enactment of the Interpretation is an important measure for the people’s courts to fully implement the spirit of the Twentieth National Congress of the CPC, to study and implement in-depth the spirit of the important speeches made by President Xi Jinping, and to actively participate in the construction of a foreign-related legal system, which provides an important basis for the steady expansion of systematic opening-up.

Secondly, the formulation of the Interpretation is a concrete practice of firmly upholding the international order based on international law and promoting the rule of law in international relations. “Pacta sunt servanda” is a fundamental principle in treaty law. Article 26 of the Vienna Convention on the Law of Treaties stipulates: “Every treaty in force is binding upon the parties thereto and must be performed by them in good faith.” The issuance of the Interpretation fully demonstrates China’s good image of actively fulfilling its international obligations, highlights China’s commitment as a major country to firmly upholding the international order based on international law, and is conducive to enhancing China’s right to speak and influence in the transformation of the global governance system.

Thirdly, the enactment of the Interpretation is an important guarantee for the accurate application of international treaties and international practices and the enhancement of the quality and efficiency of foreign-related trials. The Interpretation regulates and guides how to accurately grasp the conditions and scope of application of international treaties and international practices, provides the people’s courts with a basis for correctly adjudicating foreign-related civil and commercial cases, effectively unifies the standards for the application of the law, and is of great significance in enhancing the quality and efficiency of China’s foreign-related civil and commercial adjudications, expanding the international credibility and influence of China’s judiciary, and creating a first-rate business environment characterized by the rule of law, internationalization and marketization.

The main content of the Interpretation

The Interpretation consists of nine articles, embodying three principles for the application of international treaties and international practices in foreign-related civil and commercial trials, namely, the principle of fulfilling treaty obligations in good faith, the principle of respecting international practices, and the principle of safeguarding national sovereignty, security, and social public interests. The main contents include:

First, the basis of adjudication for the application of international treaties should be clarified. Article 30 of the Foreign Relations Law of the People’s Republic of China clearly stipulates: “The State concludes or participates in treaties and agreements in accordance with the Constitution and the law, and performs in good faith the obligations stipulated in the relevant treaties and agreements.” According to the characteristics of international treaties in the field of civil and commercial affairs in adjusting the personal and property relations between equal subjects, and based on the principle of good faith performance stipulated in the Foreign Relations Law, Paragraph 2 of Article 1 of the Interpretation makes it clear that foreign-related civil and commercial cases outside the scope of adjustment of the maritime law, bill of lading law, civil aviation law, maritime traffic safety law, etc. shall apply international treaties in the manner of “referring to the provisions of the separate law”. This effectively solves the problem of insufficient basis for adjudication in the field of foreign-related civil and commercial affairs in the application of international treaties; at the same time, it inherits the spirit of the former General Principles of Civil Law and makes it clear that where international treaties concluded or participated by China have different provisions from those of the laws of the People’s Republic of China, the provisions of the international treaties shall be applied, with the exception of the provisions for which the People’s Republic of China has declared its reservation.

Secondly, it clarifies the principle of application when multiple international treaties are involved. In response to the situation in judicial practice where the same dispute involves two or more international treaties, Article 2 of the Interpretation stipulates that the People’s Court shall determine the international treaty to be applied on the basis of the applicable relationship clause in the international treaty.

Thirdly, the relationship between the application of international treaties and party autonomy should be clarified. Among the international treaties to be applied in foreign-related civil and commercial relations, some international treaties allow the parties to exclude the application of the convention or change the effect of the application of its provisions by agreement, but there are also some international treaties that are mandatory in the application and do not allow the parties to exclude their application by agreement. Article 3 of the Interpretation makes it clear that the parties may exclude or partially exclude the application of an international treaty by agreement only to the extent permitted by the international treaty.

Fourthly, it is clear that if the parties invoke an international treaty that has not yet entered into force for China, it can be used as a basis for determining contractual rights and obligations. International treaties that have not yet entered into force for China cannot be used as a legal basis for the people’s courts to make decisions. However, if the parties in the contract unanimously invoke provisions of a civil and commercial international treaty that China has not ratified to determine the relevant rights and obligations, the provisions should be deemed as part of the parties’ contract. Article 4 of the Interpretation allows the People’s Court to use the treaty as a basis for determining the rights and obligations of the parties to the contract, on the premise that does not violate China’s laws, administrative regulations of the mandatory provisions of China’s sovereignty, social security and public interests.

Fifthly, it clarifies the express optional application and gap-filling application of international practice. Articles 5 and 6 of the Interpretation provide for two types of application of international practice. On the one hand, where the parties have expressly opted for the application of international practice, the rights and obligations between the parties to the contract can be directly determined in accordance with international practice. On the other hand, where the parties have not made a clear choice, and where there is no corresponding provision in the laws of China or in international treaties concluded or participated in by China, the People’s Court may apply international practice.

Sixthly, it adheres to the principle of safeguarding State sovereignty, security, and social public interests. The Interpretation carries out the provisions of Article 31 of the Foreign Relations Law that the implementation and application of treaties and agreements shall not jeopardize national sovereignty, security, and social public interests, and makes it clear in Article 7 that “the People’s Court shall not apply an international treaty or international practice if its application jeopardizes the sovereignty, security, and social public interests of the People’s Republic of China”. This fully demonstrates the clear judicial position of the people’s courts in firmly safeguarding State sovereignty, security, and the public interests of society.

Actions to promote the implementation of the interpretation

After the promulgation of the Interpretation, the Supreme People’s Court will also carry out work in the following areas to promote the implementation of the Interpretation:

Firstly, SPC will issue a publication on the understanding and application of the Interpretation, so as to make it easier for all sectors of the community to accurately grasp the meaning of the provisions of the Interpretation.

Secondly, SPC will compile international treaties and international practices and their authoritative translations, sorting out the conditions of application, entry into force and reservations, etc., so as to guarantee the accurate application of international treaties and international practices.

Thirdly, SPC has strengthened case guidance and regularly issued typical cases on the application of international treaties and international practices to standardize adjudication criteria.

Lastly, strengthening training will be carried out to enhance the awareness and ability of foreign-related commercial maritime judges in applying international treaties and international practices.

Translators’ Comments

The issuance of the Interpretation demonstrates the Supreme People’s Court’s insistence on promoting the rule of law at the domestic level and the rule of law relating to foreign affairs in an integrated manner, actively and accurately applying international treaties and international practices in civil and commercial trials relating to foreign affairs, ensuring that the internationally accepted rules are effectively complied with and vigorously demonstrating China’s international image as a country that adheres to reform, opening-up and multilateralism, and contributing to China’s rule of law wisdom and strength for the reform and construction of the global governance system.

*Dr. Du Tao, Professor at the East China University of Political Science and Law, Shanghai, China, waiguofa@126.com

**Yang Zhenni, Graduate student of East China University of Political Science and Law, yzn0810@163.com

There is no doubt that private international law works in close cooperation with comparative law. Horatia Muir Watt, for example, characterises the relationship between the two disciplines as “complementary” (H M Watt, “Private International Law”, in J M. Smits (ed.), Elgar Encyclopedia of Comparative Law (2nd ed., Edward Elgar Publishing, 2012) p. 701). Similarly, Mathias Reimann describes it as “intimate” (M Reimann, “Comparative Law and Private International Law”, in M Reimann and R Zimmermann (eds.), The Oxford Handbook of Comparative Law (2nd ed., OUP, 2019) p. 1340). Meanwhile, Ralf Michaels, another distinguished scholar of comparative and private international law scholar, considers that “in private international law scholarship, comparison has always been prominent” (Ralf Michaels, “Comparative Law and Private International Law”, in J Basedow et al. (eds.), Encyclopedia of Private International law –Volume I (Edward Elgar Publishing, 2017) p. 416).

Understanding foreign legal systems and the diversity of the solutions dealing with common problems and issues enables private international law scholars and researchers to refine the techniques and theories of private international law, which ultimately serves one of the most important goals of private international law: the coordination of different legal systems.

This elaborate introduction serves to justify the announcement on this blog regarding the recently published Cambridge Handbook of Comparative Law (CUP, 2024), edited by Mathias Siems (European University Institute, Florence) and Po Jen Yap (The University of Hong Kong).

The book’s description reads as follows:

Comparative law is a common subject-matter of research and teaching in many universities around the world, and the twenty-first century has aptly been termed ‘the era of comparative law’. This Cambridge Handbook of Comparative Law presents a truly global perspective of comparative law today. The contributors are drawn from all parts of the world to provide different perspectives on how we understand the ‘law’ and how it operates in practice. In substance, the Handbook contains 36 chapters covering a broad range of topics, divided under the following headings: ‘Methods of Comparative Law’ (Part I), ‘Legal Families and Geographical Comparisons’ (Part II), ‘Central Themes in Comparative Law’ (Part III); and ‘Comparative Law beyond the State’ (Part IV).

The book’s table of content is accessible here.

One can read with a lot of interest the contribution of Yuko Nishitani (Kyoto University) in this book on “Comparative Conflict of Laws” (pp. 674-692). The chapter’s summary is as follows:

Conflict of laws (or private international law) deals with cross-border legal relationships involving private parties. Methods of modern conflict of laws originate in Europe and largely remained intact until today despite modifications brought about by the US Conflicts Revolution. Other parts of the world, that is, Latin America, Asia and Africa, have not been on the centre stage. Even the recent globalisation discourse on legal pluralism and conflict of laws has principally focused on Western, developed countries, although the wave of globalisation affects the entire world. Countries in the Global South have been invisible presumably because, as former colonies, they are not readily accessible, are presumed not to have sophisticated conflicts rules, or are deselected by the choice of forum/arbitration clauses in cross-border business transactions. This chapter will deal with comparative conflict of laws from a non-Western viewpoint. This stance will allow for the relativising of the trends of conflict of laws in Europe and America and shed light on the recent debates on corporate due diligence and Sustainable Development Goals (SDGs) in conflict of laws by considering interests of the most affected and vulnerable people in the Global South. This chapter will also discuss future developments of conflict of laws treaties, which Asian and African countries have rarely joined so far.

Hart Studies in Private International Law – Asia has officially released its 9th Volume in the Series as an open-access book. This edition, edited by Olivier Gaillard and Krista Nadakavukaren Schefer, is titled Private International Law in East Asia: From Imitation to Innovation and Exportation (Hart Publishing, 2024).

The description of the book reads as follows:

This open access book examines the conflict of law rules in East Asian states. With a focus on the laws in Mainland China, Japan and South Korea, the book also looks at the rules of Hong Kong and Taiwan.

Written in an easily accessible style, the book is a valuable resource for scholars as well as practitioners of East Asian law, private international law, and comparative law.

The table of Contents features the following papers: 

1. Introduction, Krista Nadakavukaren Schefer (Swiss Institute of Comparative Law, Switzerland) and Jun Zheng (University of Fribourg, Switzerland)

   Part 1: General Overview of Legal Regimes

2. Introduction to the Law of the People’s Republic of China, Harro von Senger (Swiss Institute of Comparative Law, Switzerland)

3. The Structure and General Principles of Japanese Law, Béatrice Jaluzot (Institut d’Asie Orientale, France)

4. Legal Transfer and Law in Transition: Compulsory Share in Korean and Japanese Law, Marie Seong-Hak Kim (Minneapolis, USA)

5. Influence of Japanese Law on Taiwanese Law, Ying-Hsin Tsai (National Taiwan University)

   Part 2: Rules on Private International Law

6. On the Process of China’s Private International Law in the Past Decade, Jin Huang (China University of Political Science and Law)

7. New Developments of Private International Law in Japan and East Asia, Yuko Nishitani (Kyoto University, Japan)

8. Private International Law Developments in Hong Kong, Wilson Lui (University of Hong Kong)

9. New Developments in Korean Private International Law, Jong Hyeok Lee (Seoul National University, South Korea)

   Part 3: Relations of Courts

10. Choice-of-Court Agreements in Japanese Conflict of Laws, Dai Yokomizo (Nagoya University, Japan)

11. The 1965 Basic Treaty: An Obstacle to ‘Normal’ Relations between South Korea and Japan? Samuel Guex (University of Geneva, Switzerland)

    Part 4: Family and Succession Law

12. New Developments in Chinese Private International Law in the Area of International Family Law: 12 Years after the Entry into Force of the Chinese PIL Act, Weizuo Chen (Tsinghua University, China)

13. Some Recent Issues in Family Law and International Family Law in Japan, Mari Nagata (Osaka University, Japan)

14. The Applicable Law in Succession Matters in China, Japan and South Korea: The Professio Iuris as a Bridge? Olivier Gaillard (Swiss Institute of Comparative Law, Switzerland)

15. Conclusions, Olivier Gaillard (Swiss Institute of Comparative Law, Switzerland)

Introduction:

I have been reporting on this blog some recent cases from the Dubai Supreme Court (DSC) regarding the recognition and enforcement of foreign judgments (see here, here and here). Reading these posts may have given the legitimate impression that the enforcement of foreign judgments in the UAE, and especially in Dubai, is particularly challenging. This post aims to mitigate that perception by shedding light on a very recent case in which the Dubai courts, with the approval of the DSC, ruled in favor of the enforcement of an English judgment. As the comments below indicate, this is probably the very first case in which the DSC has positively ruled  in favor of the enforcement of an English judgment by declaring that the judgment in question met all the requirements set out in UAE law, and in particular, the reciprocity requirement.

The facts:

As mentioned above, this case concerns the enforcement of an English judgment. In that judgment, the English court ordered the division and transfer of property as part of the distribution of matrimonial property on divorce. However, some of the disputed properties concerned two immovables located in Dubai. The underlying dispute before the English court appears to involve a British national (the wife and petitioner in the Dubai proceedings, hereinafter “X”) and a Pakistani national (the respondent husband, hereinafter “Y”). The parties entered into their marriage in Pakistan in accordance with Pakistani law. The marriage was later registered in the UK “after a long period of time” since its conclusion.

According to the DSC’s decision, the English judgment recorded Y’s “consent” to transfer the two aforementioned disputed properties to X under the Matrimonial Causes Act 1973 (but erroneously referred to it as “Matrimonial Causes Act 1937”). Subsequently, X sought to enforce the English judgment in the UAE by filing a petition to that effect with the Dubai Execution Court. The Execution Court granted the petition and ordered the enforcement of the English judgment. The decision was confirmed on appeal.

Y appealed to the DSC.

Before the DSC, Y contested the appealed decision mainly on the following grounds:

1) The case falls within the jurisdiction of the Dubai courts as the court of the place where the property is located, because the case concerns in rem rights relating to the transfer of ownership of immovable property located in Dubai, notwithstanding the fact that the foreign judgment was rendered in a personal status dispute concerning the financial effects of a divorce under English law.

2) The foreign judgment is contrary to public policy because it violates Islamic Sharia law, individual property rights and the distribution of property under UAE law.

3) The parties have not (yet) been divorced under Pakistani law or Islamic Sharia.

4) As the marriage was contracted in Pakistan and later registered in the UK, the marriage and its financial effects should be governed by Pakistani law.

Ruling:

In its ruling dated 25 January 2024 (Appeal No. 592/2023), the DSC dismissed the appeal by reasoning as follows:

First, the DSC recalled the legal framework for the enforcement of foreign judgments, citing almost verbatim Article 222 of the new Federal Civil Procedure Act of 2022 (the English translation can be found here). The DSC also recalled that the law applicable to the personal and financial effects of marriage and its dissolution, as well as the impact that public policy and Islamic Sharia may entail on the application of the governing law (articles 13 and 27 the Federal Act on Civil Transactions, as subsequently amended.*)

(* It should be noted, however, that the DSC erroneously cited the provisions in force prior to the 2020 amendment to the Federal Civil Transactions Act. This amendment is important because it replaced the nationality of the husband as a connecting factor with the place where the marriage was concluded in matters relating to the effects and dissolution of the marriage. For a brief commentary on this amendment, see Lena-Maria Möller’s post here on this blog. See also idem, “One Year of Civil Family Law in the United Arab Emirates: A Preliminary Assessement”, Arab Law Quarterly, Vol. 37 (2023), pp. 5-6. The English translation of the Federal Civil Transactions Law with its latest amendments can be found here).

The DSC then approved the appealed decision in considering that:

– The foreign judgment did not contain a violation of public policy and good morals because it did not violate any undisputed Sharia rule;

– Y, who was a foreign national, had agreed in the English court to transfer the ownership and beneficial interest in the two Dubai properties to X, and therefore the enforcement of the foreign judgment consisted only in carrying out what Y had agreed before the foreign court,

– The dispute did not fall within the exclusive jurisdiction of the Dubai courts,

– Reciprocity was established with the UK.

Finally, the DSC held that the following arguments made by Y were meritless:

– that the dispute fell within the jurisdiction of the Dubai courts. However, the DSC considered that  the case did not concern a dispute over the property located in Dubai, but the transfer of shares in Y’s property to X on the basis of Y’s consent;

– that the law applicable to the marriage and its financial effects should be Pakistani law and not English law because the marriage was contracted in Pakistan and then registered in the UK after a long period of time. However, the DSC considered that the marriage and divorce between X and Y took place in the UK and Y did not contest the application of English law.

Comments:

The case is in many regards…. exceptional. In particular, given the usual challenges associated with the enforcement of foreign judgments in the UAE, it is somewhat interesting to observe how the main obstacles to the enforcement of foreign judgments – notably, reciprocity, indirect jurisdiction and public policy – were easily overcome in the case at hand. (For an overview of past practice with some relevant case law, see the author’s earlier comment here). While these aspects of the case (as well as some others, such as the reference to choice-of-law rules and the surprisingly erroneous reference by the DSC to the nationality of the husband as a connecting factor in matters of effects and dissolution of marriage) deserve detailed analysis, space constraints require that we focus on one notable aspect: reciprocity with the UK.

As mentioned in a previous post, Dubai courts traditionally find reciprocity where the party seeking enforcement demonstrates that the enforcement rules of the rendering state are identical to or less restrictive than those of the UAE. This typically requires the party seeking enforcement to prove the content of the rendering state’s foreign judgment enforcement law for comparison with the UAE’s requirements (see some relevant cases here). In order to alleviate the rigor of this rule and facilitate the enforcement of UK judgments in Dubai, the UAE Ministry of Justice (MOJ) issued a letter on September 13, 2022, stating that reciprocity with the UK could be established as English courts had accepted the enforcement of UAE judgments.

In a previous post, I expressed doubts about the impact of this letter on Dubai court practice, citing instances where the DSC had rejected to enforcement an English judgment. These doubts were somewhat justified. Indeed, in a case that later came to my attention and also involved the enforcement of an English judgment, the DSC reversed and remanded a decision of the Dubai Court of Appeal on the ground, inter alia, that the court failed to consider the existence of reciprocity with the UK. (The Court of Appeal simply held that reciprocity was not a requirement for the enforcement of foreign judgments in the UAE) (DSC, Appeal No. 356/2022 of 7 December 2022). The DSC also criticized the Court of Appeal for failing to address the need for the party seeking enforcement to prove the content of English law on the enforcement of UAE judgments in the UK in order to demonstrate that there is reciprocity with the UK. (The Court of Appeal simply considered that English courts wold not oppose the enforcement of UAE judgments as long as they meet the conditions for their enforcement). Subsequent developments in the case show that the whole issue was somehow avoided, as the Court of Appeal – as the court of remand – dismissed the case on the ground that the appeal was filed out of time. This decision was later upheld by the DSC (Appeal No. 847/2023 of 7 November 2023), which ultimately resulted in the upholding of the initial first instance court’s decision to enforce the English judgment in question. (For details of this case, see the comments posted by one of the lawyers representing the party seeking enforcement of the English judgment, Hesham El Samra, “Enforcing the First Judgment From the English Courts in Dubai Courts (November 17, 2023). One can read with interest how the representatives of the party seeking enforcement relied on the aforementioned MOJ letter to establish reciprocity with the UK).

In the case commented here, it is unclear on what basis the Dubai courts recognized reciprocity with the United Kingdom. Indeed, the DSC merely upheld the Court of Appeal’s conclusion that “reciprocity with the UK was established”. It is likely, however, that the courts relied on the MOJ letter to reach this conclusion. In any event, as noted in the introduction, this case represents the first Supreme Court decision explicitly recognizing reciprocity with the UK. This development is likely to have a significant impact on the enforcement of English judgments in Dubai and the UAE. One can also expect that this decision may influence the assessment of reciprocity requirements where enforcement of foreign judgments in general is sought in Dubai/UAE.

The fourth edition of Geert van Calster’s (KU Leuven) European Private International Law has just been published by Hart/Bloomsbury. It focuses on those instruments and developments that are most significant in commercial litigation. I had the privilege to review the first edition of the book in the Law Quarterly Review and I am certain that the latest edition will live up to the expectations.

The blurb reads as follows:

This classic textbook provides a thorough overview of European private international law. It is essential reading for both practitioners and students of private international law and transnational litigation, wherever they may be located: the European rules extend beyond European shores.

Opening with foundational questions, the book clearly explains the subject’s central tenets: the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort). Additional chapters explore private international law and insolvency, freedom of establishment, and the impact of private international law on corporate social responsibility. The relevant Hague instruments, and the impact of Brexit, are fully integrated in the various chapters.

Drawing on the author’s rich experience, the new edition retains the book’s hallmarks of insight and clarity of expression ensuring it maintains its position as the leading textbook in the field.

Written by Mayela Celis

Undoubtedly, Abortion is a hot topic. It is discussed in the news media and is the subject of heated political debate. Indeed, just when one thinks the matter is settled, it comes up again. In 2023, Elgar published the book entitled “Research Handbook on International Abortion Law”, ed. Mary Ziegler (Cheltenham: Edward Elgar Publishing Limited, 2023). For more information, click here. Although under a somewhat misleading name as it refers to international abortion law, this book provides a wonderful comparative overview of national abortion laws as regulated by States from all the four corners of the world and internal practices, as well as an analysis of human rights law.

This book does not deal with the conflict of laws that may arise under this topic. For a more detailed discussion, please refer to the post Singer on Conflict of Abortion Laws (in the U.S.) published on the blog of the European Association of Private International Law.

In this book review, I will briefly summarise 6 parts of this book (excluding the introduction) and will provide my views at the end.

This book is divided into 7 parts:

Part I – Introduction

Part II – Histories of liberalization

Part III – The promise and limits of decriminalization

Part IV – Abortion in popular politics

Part V – Movements against abortion

Part VI – Race, sex and religion

Part VII – The role of international human rights

Part II – Histories of Liberalization

Part II begins with a historical journey of the abortion reform in Sweden in the 1930s and 1940s. It highlights the limited legalization of abortion in Sweden in 1938 and the revised abortion law in 1946 introducing a “socialmedical” indication. In particular, it underscores how the voices of women were absent from the process.

It then moves on to a comparative study of the history of abortion in the USA and Canada from 1800 to 1970, that is before Roe (USA) and Morgentaler (Canada). It analyses the distinct approaches of Canada and the USA when dealing with abortion (legislative vs. court-based). Furthermore, it provides a very interesting historical account on how the right of abortion came about in both countries – it sets the stage for Roe v. Wade (pp. 50-52).

Finally, Part II examines the situation in South Africa by calling it “unfinished business”. In South Africa, Abortion is a right codified in law: The Choice on Termination of Pregnancy Act 92 of 1996. However, this article argues that the legislative response is not enough. Factors such as lack of enough health facilities that perform abortions, gender inequality etc. are an obstacle to making safe abortion a reality.

Part III – The promise and limits of decriminalization

This Part analyses several laws regarding abortion. First, it explores Malawi’s 160-year-old law that criminalises abortion based on a UK law, as well as the failed tentative attempt to adopt a new law in 2020. Interestingly, this article analyses CEDAW resolutions against the UK, which promptly complied with the resolution (pp. 92-93).

Secondly, it studies the recently adopted law in Thailand on 7 February 2021 that makes  abortion available up to 12 weeks’ gestation period. However, this article criticises that the law creates a loophole as the abortion must be performed by a physician or a registered medical facility and in compliance with the law, greatly medicalizing abortion.

Finally, this Part examines Australian laws and policy over the past 20 years and while acknowledging the significant advances in reproductive rights, it notes that a number of barriers to abortion still remain. This chapter is better read in conjunction with Chapter 10, also about Australia.

Part IV – Abortion in popular politics

This Part begins with an excellent comparative public policy study between France and the United States. In particular, it discusses the weaknesses of Roe v. Wade, underlining the role and analysis of the late justice Ruth Bader Ginsburg. It also puts into context the superiority of the French approach regarding abortion, which is proven with the reversal of Roe.

It then analyses abortion law in China, a State that has the most lenient abortion policies in the world. It discusses the Chinese one-child policy, which then changed to two and even three children-policy, as well as sex-selective abortions.

Subsequently, it recounts how South Australia became the last Australian jurisdiction to modernise its abortion laws and underlines the fact that laws in Australian jurisdictions on this topic are uneven and no two laws are the same.

Finally, it examines abortion history in Israel noting that apart from health reasons, abortions on no specific grounds are mainly intended for out-of-wedlock pregnancies. As a result, abortion is restricted to married women unless they claim adultery, a ground that must be reviewed by a Committee. Apparently, this leads married women to lie to get an abortion and go through the shameful process of getting approval by a Committee.

Part V – Movements against abortion

This Part begins with abortion politics in Brazil and the backlash that occurred with the government of former president Bolsonaro who, as is well known, is against abortion. It recounts a case where a priest filed an habeas corpus in favour of a foetus who had a severe birth defect. Although the case arrived at the Federal Supreme Court, it was not decided as the child died 7 minutes after being born (p. 232).

Secondly, a history scholar recounts the pro-life movement across continents and analyses what drives them (i.e. gender and religion).

Finally, it deals with abortion law in Poland and Hungary and the impact of illiberal courts. In particular, it discusses the trends against abortion and goes on to explain an interesting concept of “illiberal constitutionalism”. The authors argue that they do not see Poland and Hungary as authoritarian systems but as illiberal States, an undoubtedly interesting concept.

Part VI – Race, sex and religion

This Part begins examining the sex-selective abortions in India. In particular, the authors recommend an equality-based approach instead of anti-discriminatory approach in order to avoid recognising personhood to the foetus.

It then continues with an analysis of abortion law in the Arab world. The authors note that there is scant but emerging literature and that abortion laws in this region are – unsurprisingly – punitive or very restrictive. Interestingly, the position of Tunisia differs from other Arab States.

Finally, it discusses the struggles in Ecuador where a decision of the constitutional court of 2021 decriminalising abortion in cases of rape. It declared unconstitutional an article of the Ecuadorian Criminal Code, and in 2022 the legislature approved a bill based on this ruling. It also refers to teenage pregnancy and violence.

Part VII – The role of international human rights

For those interested in international human rights, this will be the most fascinating Part of the book. Part VII calls for the decriminalization of abortion in all circumstances and it supports this argument by making reference to several human rights documents such as those issued by the Human Rights Committee (in particular, General Comment No 36 –  Article 6: Right to life) and the Committee on the Elimination of Discrimination against Women (referring to a myriad of general comments and concluding observations).

Subsequently, this Part challenges the classification of European abortion law as fairly liberal and provides some convincing arguments (including the setbacks in Poland in this regard and other procedural or legal barriers to access abortion in more liberal States) and some surprising facts such as the practice in the Netherlands (see footnote 60). The authors -fortunately- dared to say that this chapter is drafted from a feminist perspective as opposed to the current “male norm” in legal doctrinal scholarship.

Finally, this Part explains the history of abortion laws including the fascinating recent developments in Argentina and Ireland (referred to as “small island”!) and the influence (or the lack thereof) of international human rights law. In particular, it makes reference to the Argentinian Law 27,610 of 2020 (now unfortunately in peril with the new government) and the repealing by referendum of the 8th Amendment in Ireland in 2018.

Below are a few personal thoughts and conclusions that particularly struck me from the book:

Starting from the beginning: the title of the book and the definitions.

In my view, and as I previously mentioned, the title of the book is somewhat misleading. Strictly speaking, there is no such thing as “international” abortion law but rather abortion prompts a discussion of international human rights, such as women’s rights and the right to life, and whether or not national laws are compliant with these rights or are coherent within their own national legal framework. This is in contrast to international child abduction / adoption laws where international treaties regulate those very topics.

While perhaps counterintuitive, the definition of a “woman” has been controversial; see for example the Australian versus the Thai approaches. The Australian approach deals with gender identification and the fact that persons who do not identify as a woman can become pregnant (p. 124, footnote 1). While the Thai approach defines a woman as those capable of bearing children (p. 112). Needless to say, the definition of a woman is essential when legislating on abortion and unavoidably reflects the cultural and political complexities of a particular society. A brief reference is made to men and gender non-conforming people and their access to abortion (p. 374, footnote 2).

A surprising fact is the pervasive sex-selective abortion in some countries (sadly against female foetuses), such as India and China, and which arguments are invoked by scholars to avoid them, without falling into the “trap” of recognising personhood to the foetus.

More importantly, this book shows that the abortion discussion is much more than the polarised “pro-life” and “pro-choice” movements. The history of abortion is complicated, full of intricacies. And what is frustrating to some, this area is rapidly evolving sometimes at the whim of political parties.

Most authors seem to agree that a legislative approach to abortion is more recommended than a court-based approach. Indeed, there is a preference for democratically elected lawmakers when it comes to dealing with abortion. This is evident from the recent setbacks that occurred in the USA.

Having said that, those expecting an in-depth analysis of the landmark US decision Dobbs v. Jackson Women’s Health Organization 597 U.S. 215 (2022), which overturned Roe v. Wade, will be disappointed (only referred to very briefly in the introduction and Chapters 8, 11 and 13 ). Instead, however, you will be able to immerse yourself into a multidisciplinary study of abortion law, including topics such as politics, sociology, constitutional law, health law and policy, history, etc. In addition, you will read unexpected facts such as the role of Pierre Trudeau (former Prime Minister (PM) of Canada and father of current Canadian PM, Justin Trudeau – p. 56 et seq.) in abortion law in Canada or the delivering of abortion pills via drones (p. 393).

Because of all the foregoing, and whatever one’s standpoint on abortion is, I fully recommend this book. But perhaps a cautionary note: people in favour of reproductive rights will be able to enjoy the book more fully.

I would like to end this book review with the words of the French writer and philosopher Simone de Beauvoir, which appear in her book entitled the Second Sex and which are also included in chapter 8 (p. 159) of this book:

“Never forget that a political, economic or religious crisis would suffice to call women’s rights into question”

Full citation:

“Rien n’est jamais définitivement acquis. Il suffira d’une crise politique, économique ou religieuse pour que les droits des femmes soient remis en question. Votre vie durant, vous devrez rester vigilantes.”

Conventions & Instruments

On 1 December 2023, the 1965 Service Convention entered into force for Singapore. The Convention currently has 82 Contracting Parties. More information is available here.

On 1 January 2024, the 1965 Service Convention entered into force for Paraguay. The Convention currently has 82 Contracting Parties. More information is available here.

On 9 January 2024, Cabo Verde deposited its instrument of accession to the 2007 Child Support Convention. With the accession of Cabo Verde, 49 States and the European Union are bound by the Convention. More information is available here.

On 11 January 2024, the 1961 Apostille Convention entered into force for Canada. The Convention currently has 126 Contracting Parties. More information is available here.

On 12 January 2024, the United Kingdom signed the 2019 Judgments Convention. The Convention will enter into force for the United Kingdom only after the deposit of an instrument of ratification (pursuant to Art. 28(2) of the Convention). Currently, 29 HCCH Members are either bound by the 2019 Judgments Convention or a Contracting Party for which the Convention has not yet entered into force (Uruguay). More information is available here.

Meetings & Events

From 24 to 26 January 2024, the Working Group on the Financial Aspects of Intercountry Adoption met for the second time. Its mandate is to take stock of current practices, identify possible coordinated, targeted, practical approaches, and to prioritise them with the understanding that the objective would be to raise standards using the HCCH Guides to Good Practice and the Note on the Financial Aspects of Intercountry Adoption as the starting point. More information is available here.

From 29 to 31 January 2024, the International Transfer of Maintenance Funds Experts’ Group met for the fifth time. Pursuant to its mandate, the Experts’ Group continued its work discussing good practices in relation to the cross-border transfer of maintenance payments.

Publications

On 22 January 2024, the Permanent Bureau announced the publication of the Spanish translation of the Toolkit for Preventing and Addressing Illicit Practices in Intercountry Adoption. This publication aims to assist Contracting Parties to the 1993 Adoption Convention, as well as all actors and persons involved in adoption, to properly implement and operate the Convention. More information is available here.

Other

On 9 January 2024, messages were transmitted digitally from State to State via iSupport for the first time. Several official messages under the EU 2009 Maintenance Regulation were exchanged between Germany and Sweden using iSupport’s e-CODEX system. More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Yesterday, a new private international law open access article was published online in the Journal of the History of International Law. It is titled: León Castellanos-Jankiewicz, “A New History for Human Rights: Conflict of Laws as Adjacent Possibility.” The abstract reads as follows:

The pivotal contributions of private international law to the conceptual emergence of international human rights law have been largely ignored. Using the idea of adjacent possibility as a theoretical metaphor, this article shows that conflict of laws analysis and technique enabled the articulation of human rights universalism. The nineteenth-century epistemic practice of private international law was a key arena where the claims of individuals were incrementally cast as being spatially independent from their state of nationality before rights universalism became mainstream. Conflict of laws was thus a vital combinatorial ingredient contributing to the dislocation of rights from territory that underwrites international human rights today.

It is worth noting that the author states that in the acknowledgement that: “An earlier version of this article was awarded the inaugural David D. Caron Prize by the American Society of International Law during its 2019 Annual Meeting held in Washington D.C.”

The Japanese Yearbook of Private International Law (kokusai shiho nenpo) (hereinafter “JYPIL”) is an annual publication of the Private International Law Association of Japan (kokusai shiho Gakkai) (hereinafter “PILAJ”). The PILAJ was founded in 1949 as an academic organization. Its main objective is to promote the study of private international law and encourage cooperation with similar academic institutions abroad, as well as coordination among private international law scholars. Since its inception, the PILAJ has organized conferences on a semi-annual basis and, since 2012, on an annual basis (see records of recent past conferences here).

Since 1999, PILAJ has been publishing its JYPIL (The contents of all volumes are available here.  The contents of volumes 1 (1999) to 19 (2017) are freely available. English abstracts of the papers published in Japanese are also available from volume 18 (2016)). JYPIL is a peer-reviewed journal that presents trends in academic research in the field of private international law in Japan, with high-quality discussion of the most important issues in the field from both Japanese and comparative law perspectives.

Recently, the 25th Volume (2023) of JYPIL has been published. It contains the following papers (abstracts are condensed summaries of the English summary provided by the authors):

1. Eiji ADACHI, Current Status and Problems of the System of the Recognition and Enforcement of foreign Judgments in Property Matters in Japan

Abstract: This paper provides an overview of the current status and upcoming challenges in Japan regarding the recognition and enforcement of foreign judgments. It outlines trends, legislative changes, and Supreme Court precedents since 1996, with a focus on judgments involving the United States and China. Despite a trend toward increased recognition, challenges remain, particularly highlighted by the 2019 Hondaya Judgment I, which raised questions about the service of foreign judgments on defendants consistent with Japanese public policy. The paper critiques the Supreme Court’s understanding of procedural ordre public, suggesting that it needs to be reformulated based on insights from European debates to address unnecessary and excessive scrutiny.

2. Masaaki HAGA, The Significance of the Hague Convention on Choice of Court Agreement and the Hague Convention on Recognition and Enforcement of Foreign judgments in Civil and Commercial Matters and the Possibility of Japanese Ratification

Abstract: The paper examines the potential benefits for Japan in ratifying the Convention on the Recognition and Enforcement of Foreign Judgments (2019) and the Convention on Choice of Court Agreement (2005). It discusses various aspects of these conventions, such as mutual applicability, jurisdictional issues, recognition of foreign judgments, and reciprocity. The paper suggests positive consideration for ratification, highlighting the importance of enhancing Japan’s role in international civil dispute resolution and ensuring predictability in such cases. It also explores potential solutions to reconcile differences between the conventions and Japanese law through declarations limiting recognition and enforcement.

3. Hiroyuki TEZUKA, Practical Issues Concerning Recognition and Enforcement of Foreign Judgments

Abstract: The paper addresses the practical challenges of recognizing and enforcing foreign judgments in Japan, examining issues such as indirect jurisdiction, exclusive choice of court agreements, and conflicts between arbitral tribunals and domestic courts. Part 2 provides practitioner insights into Japan’s potential accession to the Hague Conventions. Part 3 discusses possible legislative reforms to improve the recognition and enforcement process, drawing comparisons with the revised system for arbitral awards in Japan.

4. Naohiro KITASAKA, Recognition of Foreign Judgments Regarding Family-Related Cases – Recognition of Judgments Ancillary to the Divorce Case and the Effects of Foreign Adoption Decree

Abstract: This paper discusses amendments to Japan’s Personal Status Litigation Act, distinguishing between the recognition of foreign judgments in personal status litigation and domestic relations cases. In particular, it examines the recognition of ancillary judgments in divorce cases, concluding that they fall under article 118 of the Code of Civil Procedure. The paper also examines the effects of foreign adoption decrees, suggesting that recognition should cover the legal parent-child relationship and the termination of the pre-existing relationship, but not parental responsibility.

5. Manabu IWAMOTO, International Surrogacy and Recognition of Legal Parentage

Abstract: The paper discusses the legal complexities of surrogacy, particularly the challenges posed by varying legal recognition in different countries. While Japan does not recognize surrogacy locally, recent developments in Austria and Germany show recognition of children born through surrogacy abroad. The study examines European court decisions, domestic legislation, and international projects aimed at stabilizing the legal status of such children. It suggests that Japan might consider recognizing parentage through foreign decisions. The study emphasizes the importance of international cooperation to protect children and acknowledges differing views on banning surrogacy itself.

6. Akira SAITO, Globalised Business and Anti-Corruption Legal Strategies: Challenges for Private International Law in Promoting Public Policy

Abstract: The paper calls for a shift in private international law to address global challenges like the SDGs and ‘Business and Human Rights.’ Proposing a name change to conflicts law studies, the author emphasizes the need for a broader approach. Using the prevention of bribery as an example, the paper underscores challenges in coordinating legal systems and the urgency for interdisciplinary collaboration in private international law studies to meet current demands.

7. Midori NARAZAKI, Climate Change Litigation and Private International Law: Review of the Hague District Court’s Judgment against Royal Dutch Shell

Abstract: This paper analyzes a landmark decision by the District Court of The Hague on May 26, 2021, ordering Royal Dutch Shell to reduce its greenhouse gas emissions by 45% by 2030. The decision is the first to recognize a corporate duty to mitigate climate change under tort law. The analysis outlines four key issues: the nature of climate change damages, the attribution of responsibility for policy decisions to the parent company, the application of an unwritten standard of care based on human rights principles, and the consideration of the impact of emission permits on civil law obligations. The paper examines the decision’s significance in private international law and its consistency with climate attribution science.

8. Mitsuki KATOH, Right to Claim Special Contribution Fee (a Statutory Care Legacy) in Austrian Private International Law

Abstract: The paper explores Japan’s unique special contribution claims system introduced in 2018 under article 1050 of the Japanese Civil Code. It compares this system to the legal frameworks of other countries, particularly the German Civil Code and Austria’s Pflegevermächtnis introduced in 2015. Both Japan and Austria aim to address challenges associated with an aging population and compensating those providing long-term care for the elderly. The legal nature of Pflegevermächtnis is debated, with scholars questioning whether it falls under inheritance law or unjust enrichment. Understanding these distinctions is essential for interpreting the right to claim special contribution under Japanese private international law.

9. Koji TAKAHASHI, Conflict-of-Law Issues Pertaining to Tokenization on Distributed Ledgers

Abstract: This paper discusses the legal aspects of tokenization, focusing on determining the governing law for tokenized rights. It distinguishes between a token-centered and a right-centered approach and argues in favor of the latter. The right-centered approach suggests that issues related to tokenized rights should be determined by the law applicable to the represented right, making consideration of token ownership unnecessary except in specific contexts where the ownership theory is adopted. The paper highlights the importance of this approach in the evolving landscape of crypto-assets and tokenization. 

10. Yuko NISHIMURA, The Scope of Exclusivity in Article 6 of the 2019 Hague Judgments Convention: Analysis of the “Right in rem” in Immovable Property in ECJ Judgments

Abstract: This paper examines the scope of article 6 of the 2019 Hague Judgments Convention, which will enter into force in September 2023. The Convention, which focuses on indirect jurisdiction for recognition and enforcement, prohibits the circulation of judgments outside the location of the property. The paper analyzes the potential impact in Japan, comparing article 6 with provisions in the Japanese Code of Civil Procedure. It predicts limited impact due to existing CCP provisions, but highlights potential challenges for the circulation of Japanese judgments abroad. Drawing parallels with ECJ rulings on the Brussels Regime, the analysis narrows the interpretation of article 6 and influences Japan’s ratification considerations.

11. Satoshi WATANABE, A Study on the Petition for Revocation of the Child Return Order on Article 117 of the Japanese Implementation Act of the Hague Child Abduction Convention – The Legal Nature of the Petition and Practical Guidance for its Application

Abstract: The paper explores article 117 of the Japanese Implementation Act of the Hague Child Abduction Convention, allowing the revocation of child return orders under changed circumstances. Examining two Supreme Court decisions from 2017 and 2020, the analysis covers grounds for revocation, the child’s refusal to return, and discrepancies with EU and Anglo-American Law decisions. It criticizes the domestic focus in Japanese implementation, urging better coordination and information sharing for aligning decisions with international norms.

12. Masanori TAKEDA, Current Status and Issues of Attorney Activities regarding Applications for Assistance in Child’s Return from the United States to Japan

Abstract: The paper addresses the challenges faced by attorneys handling child abduction cases from the United States to Japan under the Child Abduction Convention. It emphasizes the importance of utilizing State Department financial assistance and highlights the difficulties of selecting U.S. attorneys with limited budgets. Despite potentially disappointing outcomes, the continued commitment of attorneys and support for petitioners is critical. The paper calls for continued financial support from the Ministry of Foreign Affairs and recognition of such legal efforts as pro bono by Japanese bar associations.

The current and past volumes of JYPIL can be ordered from the publisher’s website. (Shinzansha).

Written by Sandrine Brachotte who obtained a PhD. in Law at Sciences Po, Paris and is a Guest Lecturer at UCLouvain (Saint-Louis, Brussels).

1. PIL and (De)coloniality in Europe

This post follows Susanne Gössl’s blog post series on ‘Colonialism and German PIL’ (especially s. 3 of post (1)) and offers a French perspective of the issue of PIL and (de)coloniality – not especially focused on French PIL but based on a francophone article to be published soon in the law and anthropology journal Droit et Culture. This article, called ‘For a decolonisation of law in the global era: analysis of the application of postcolonial law in European states’, is addressed to non-PIL-specialist scholars but builds on a European debate about PIL and (de)coloniality that has been nourished by scholars like Ralf Michaels, Horatia Muir Watt, Veronica Ruiz Abou-Nigm, as well as by Maria Ochoa, Roxana Banu, and Nicole Štýbnarová, notably at the occasion of the 2022 Edinburgh conference (reported about on this blog, where I had the chance the share a panel with them in relation to my PhD dissertation (see a short presentation on the EAPIL blog)).

The PIL and (de)coloniality analysis proposed in this post is based on decolonial theory and postcolonial studies, which I will here call ‘decoloniality’. Given this framework (notably nicely presented here), I shall preliminarily stress that it requires acknowledging the limit of the contribution I can make to the debate on PIL and (de)coloniality as a Western jurist. Therefore, this post aims at encouraging non-Western and/or non-legal scholars to contribute to the discussion. It also urges the reader to consider that the non-West and non-legal scholarship about law and (de)coloniality is extremely rich and should not be missed by the Western PIL world.

2. For a Case-by-Case Approach

Against this background, the argument made here is that the decolonisation of Western PIL, if it is to happen (which decoloniality demands, based on the concept of global coloniality), should be based on a certain methodology (see eg the decolonial legal method elaborated by Tchepo Mosaka). Such methodology may require a case-by-case approach, to complement the study of the applicable legal framework. This seems at least necessary in the context, studied in the aforementioned article, where a postcolonial law is to be applied as foreign law by the Western forum (typically but not only in the context of migration), given that ‘postcolonial law’ hides a form of legal pluralism. It thus potentially covers not only state law, but also customary law and/or religious law.

To study this kind of situation, I argue, a case-by-case approach is needed because the legal pluralism of each postcolonial state is idiosyncratic. Notably, the postcolonial state law may refer to some religious or customary norms (which is a form of official legal pluralism); or these non-state norms may be followed by the population because the state institution is deficient or because a large part of the population simply does not follow the state legal standards (which is a form of de facto legal pluralism); or yet, certain state legal concepts or standards may reflect some custom or religious norms or practices.

More generally, the case-by-case approach allows a more nuanced (although also more complex) analysis of the (de)colonial character of current Western PIL standards. For PIL rules and judicial practices may appear colonial (ie, as imposing a Western ‘worldview’) or decolonial (ie, as granting space to ‘colonised’ worldviews) depending on the case, rule and/or judicial practice concerned. In addition, the case-by-case approach enables the consideration of the personal experience and possible vulnerable position of the parties – something that is also demanded by decoloniality. Therefore, the case-by-case approach seems appropriate to also study other questions than the application of postcolonial law discussed here, such as the limits of the Western definition of some important PIL concepts (like family and habitual residence, discussed in Susanne Gössl’s post (2), or party autonomy, of which I have shown a colonial aspect via a case study in my PhD dissertation (see here) and that is also discussed in Susanne Gössl’s post (4)).

3. The Example of X v Secretary of State for the Home Department ([2021] EWHC 355 (Fam))

To illustrate the argument, I choose a UK case that enters into a direct dialogue with Susanne Gössl’s reflection about the notion of habitual residence (see post (2)). In this case, X v Secretary of State for the Home Department ([2021] EWHC 355 (Fam)), the claimant demanded the recognition by the UK authorities of her child’s adoption in Nigeria. Under the applicable UK PIL rules, this adoption had to be recognised in the UK if it complied with the Nigerian law, ie Article 134(b) of the 2004 Child Rights Law. This article provides that the adopter and the adopted must have their residence in the same state. In the absence of any Nigerian caselaw interpreting the notion of residence under Article 134(b), the question came as to whether it had to be interpreted based on UK law or on local customary norms.

Pursuant to the relevant customary law, two circumstances should be considered that could lead to locate the claimant’s residence in Nigeria. On the one hand, the claimant had an ‘ancestral history and linkage’ with Nigeria. One the one hand, as she lived most of the time in the UK to work, she entrusted her adopted child to her mother but took full financial responsibility for the child and made all decisions relating to the child’s upbringing. Pursuant to UK law, more specifically Grace ([2009] EWCA Civ 1082), in case where someone lives in between several countries, the notion of residence had to be interpreted following a ‘flexible nuanced approach’ (para. 84(5)).

In February 2021, the UK judge recognised the adoption established in Nigeria, based on the interpretation of residence in UK law. To this end, the judge used the presumption, which is part of UK PIL, of similarity between foreign law and domestic law. Following Brownlie ([2021] UKSC 45), the judge applied the presumption because, like the UK, Nigeria is a common law system. Then, referring to Grace, the judge located the claimant’s residence in Nigeria. In this regard, she considered the claimant’s ‘close cultural and family ties’ with Nigeria, the fact that she maintained a home there for her mother and children, and the circumstance that ‘[h]er periods of time in [Nigeria] were not by chance, but regular, family focused and with a clear purpose to spent time with her children’ (para. 84(6)).

4. A PIL and Decoloniality Analysis: Opening the Floor

From a PIL and decoloniality perspective, several points can be made. Notably, from a strict legal point of view (lacking anthropological insights), the judge’s interpretation of the UK law notion of residence in this case seems flexible enough to include various, Western and non-Western, worldviews. Yet, one may question the application of the UK legal presumption. Because Nigerian state law is common law indeed, but it shares legality with customary laws and Sharia. Therefore, from a decolonial point of view, the judge could have usefully investigated the question as to whether, to interpret similar laws as the Child Rights Law, Nigerian courts consider customary law (and potentially, the judge did so (see para. 84(5)), but then it would have been welcome to mention it in the judgment). If so, she could have interpreted the notion of residence, not based on UK law, but based on the relevant local customary norms.

These case comments are made just to start a wider discussion – not only about this case but also about other cases. For, in my view, the PIL and (de)coloniality debate is a great occasion to have another, alternative, look at some rules and caselaw, and to open the floor to non-Western and/or non-PIL scholars.

Can an enforcement judgment issued by a foreign court be recognized and enforced in another jurisdiction? This is a fundamental question concerning the recognition and enforcement of foreign judgments. The answer appears to be relatively straightforward: “No”. Foreign enforcement judgments are not eligible to be recognized and enforced as they are not decisions on the merits (see in relation with the HCCH 2019 Convention, F Garcimartín and G Saumier, Explanatory Report (HCCH 2020) para. 95, p. 73;  W Hau “Judgments, Recognition, Enforcement” in M Weller et al. (eds.), The HCCH 2019 Judgments Convention: Cornerstones, Prospects, Outlooks (Hart 2023) 25). This is usually referred to as the “prohibition of double exequatur” or, following the French adage: “exequatur sur exequatur ne vaut”. This question was recently presented to the Dubai Supreme Court (DSC), and its decision in the Appeal No. 1556 of 16 January 2024 offers some useful insights into the status foreign enforcement (exequatur) decisions in the UAE.

I – Facts

In 2012, X (appellee) obtained a judgment of rehabilitation from the United States District Court for the Eastern District of New York ordering Y (appellant, residing and working in Dubai) to pay a certain amount of money. X later sought to enforce the American judgment in Canada (Ontario) via summary judgment procedures. In 2020, the Ontario court ordered enforcement of the American judgment, in addition to the payment of other fees and interests. The judgment was later amended by a judgment entered in 2021. X then sought enforcement of the Canadian judgment in Dubai by filing an application with the Execution Court of the Dubai Court of First Instance. The Enforcement Court issued an order declaring the Canadian judgment enforceable in Dubai. The enforcement order was later upheld on appeal. Y appealed to the DSC.

Before the DSC, Y argued that (1) the American judgment was criminal in nature, not civil; (2) the Canadian judgment was merely a summary order declaring the American judgment enforceable in Ontario; and (3) the Ontario judgment did not resolve any dispute between the parties, as it was a declaration that the American judgment was enforceable in Ontario.

II – Ruling

The DSC found merit in Y’s arguments. In particular, the DSC held that the Court of Appeal erred in allowing the enforcement of the Canadian judgment in Dubai despite Y’s arguments that the Canadian judgment was a summary judgment enforcing an American judgment. The Supreme Court reversed and remanded the appealed decision.

III – Comments

The case commented here is particularly interesting because, to the best of the author’s knowledge, it is the first case in which a UAE Supreme Court (it should be remembered that, there are four independent Supreme Courts in the UAE. For an overview, see here) has been called to rule on the issue of double exequatur. In this regard, it is remarkable that the issue of double exequatur is rarely discussed in the literature, both in the UAE and in the other Arab Middle Eastern jurisdictions. Nevertheless, it is widely accepted that a judgment a foreign court declaring enforceable a foreign judgment cannot be eligible to recognition and enforcement in other jurisdictions. (For some recent applications of this principle by some European courts, see eg. the Luxembourg Court of Appeal decision of 13 January 2021; the Court of Milan in a case rendered in February 2023. Comp. with the CJEU judgment of 7 April 2022, C?568/20, J v. H Limited. For a brief discussion on this issue in this blog, see here). This is because a judgment declaring enforceable a foreign judgment “is, by its own terms, self-limited to the issuing state’s territory, or: as a sovereign act it could not even purport to create effects in another sovereign’s territory” (Peter Hay, “Recognition of a Recognition Judgment within the European Union: “Double Exequatur” and the Public Policy Barrier” in Peter Hay et al. (eds.), Resolving International Conflicts – Liber Amicorum Tibor Várady (CEU Press, 2009) 144).

The present case highlights a possible lack of familiarity with this principle within the Dubai courts. Specifically, the lower courts overlooked the nature of the Canadian judgment and declare it enforceable in Dubai. In its appeal, the judgment debtor did not explicitly avail itself with the prohibition of double exequatur although it argued that that the Canadian judgment was “not a judgment on the merits”. The judgment debtor merely stated the Ontarion court’s judgment was a summary judgment declaring a foreign judgment of criminal rather than civil nature enforceable in Canada and not abroad .

While the Supreme Court acknowledged the merits of the judgment debtor’s arguments, its language also might suggest some hesitation or unfamiliarity with the legal issue involved. Indeed, although the Court did not dispute the judgment debtor’s assertions that the “Canadian judgment was a summary judgment declaring enforceability and an American reorganization judgment,” it reversed the appealed decision and remanded the case, stating that the judgment debtor’s arguments were likely – “if they appeared to be true” – to lead to different results.

In the author’s view, such a remand may have been unnecessary. The court could have simply declared the Ontario enforcement order unenforceable in Dubai on the basis of the “exequatur sur exequatur ne vaut” principle.

One might question the rationale behind the judgment creditor’s choice to seek the enforcement of the Canadian judgment rather than the original American judgment in this case. One might speculate that the judgment creditor sought to avoid enforcement of an order to pay a specific sum arising out of a criminal proceeding. However, it is recognized in the UAE that civil damages awarded in criminal proceedings are likely to be considered enforceable (see, eg., the Federal Supreme Court’s decision, Appeal No. 247 of November 6, 2012, regarding the enforcement of civil damages awarded by an Uzbek criminal court).

Another possible consideration is that the judgment creditor sought to increase the likelihood that its application would be granted, as Dubai courts have shown reluctance to enforce American judgments in the past (see eg., Dubai Court of Appeal, Appeal No. 717 of December 11, 2013, concerning a Nevada Court judgment; DSC, Appeal No. 517 of August 28, 2016, concerning a California court judgment). In both cases, enforcement of the American judgments was refused due to the lack of reciprocity with the United States (however, in the first case, on a later stage of the proceeding, the DSC treated the Nevada judgment as sufficient proof of the existence of the judgment creditor’s debt in a new action on the foreign judgment (DSC, Appeal No. 125/2017 of 27 April 2017). The first case is briefly introduced here).

The positive outcomes at both the first and second instance levels may lend credence to this hypothesis. In general, however, there is no inherent reason why a Canadian judgment would be treated differently in the absence of a relevant treaty between the UAE and Canada (on the challenges of enforcing foreign judgments in the UAE, particularly in Dubai, in the absence of a treaty, please see our previous posts here and here).