Conflictoflaws

Written by Justin Borg-Barthet, Katarina Trimmings, Burcu Yüksel Ripley and Patricia Živkovic

Note: This post is also available via the blog of the European Association of Private International Law.

When our colleague and friend Prof Jonathan Fitchen passed away on 22nd January 2021, we were comforted in our grief by an outpouring of messages of condolence from private international lawyers around the world. We had known, of course, of the impact and importance of Jonathan’s work to the world of private international law scholarship. His monograph on authentic instruments, for example, will remain an essential reference on that subject for many years to come. Jonathan’s impact on the world of private international law scholars was, to a degree, less obvious. He was an unassuming man. He did not seek to command the attention of every gathering he attended, and he might have been surprised to realise how often he did just that. He was tremendously well-liked and well-respected for his wit, his self-deprecating sense of humour, and his empathy.

This book seeks to capture in it some of the immense esteem in which Jonathan was held. That much will of course be of interest to the many scholars and practitioners who had the privilege of Jonathan’s acquaintance. The intellectual generosity of the contributing authors will ensure, however, that this volume will also be of great value to those who encounter Jonathan for the first time in these pages. Taken together, the chapters in this book address the major conceptual and practical challenges of our time: from stubborn definitional dilemmas, such as the deployment of key terms in international child abduction cases, to contemporary concerns about disruptive technologies like cryptocurrencies, to core conceptual challenges regarding the unintended consequences of our discipline’s professed neutrality.

The collection is divided into three main parts. Following a preface in which Prof Xandra Kramer paints a vivid picture of Jonathan’s humanity, humour and wit, and an introduction by ourselves as the editors, Part I includes four chapters which address conceptual matters relating to the nature and scope of private international law. Part II is made up of seven chapters concerning civil and commercial matters in private international law. Part III includes two chapters on family matters in private international law.

Part I: The Evolving Nature and Scope of Private International Law

The first substantive chapter is a tour de force by Alex Mills in which he explores the unsettled relationship between private international law and legal pluralism. Mills observes that private international law is both a product and producer of pluralism, in addition to being internally pluralist in its self-conception. Mills’ analysis will be of great interest to readers seeking to discern private international law’s place in the taxonomy of the study of law, whether they are observing that taxonomy from the perspective of a comparatist, a conflicts scholar, or a public international lawyer.

The following chapter also engages with the problem of pluralism in private international law. Thalia Kruger focuses specifically on mediated settlements with a view to illuminating their meaning for the purposes of transnational law. Kruger does a wonderful job of building on Jonathan Fitchen’s work by providing technical and normative analysis of the public faith to be accorded to private agreements. Ultimately, she welcomes a movement towards the upholding of settlement agreements but cautions against potential abuse of vulnerable parties.

The problem of vulnerability is the central focus of the next chapter, by Lorna Gillies. Gillies provides robust, systematic analysis of the theory and practice of our discipline’s treatment of vulnerable parties. This is, of course, one of the central problems in a discipline whose professed neutrality is capable of furthering and entrenching inequalities. Gillies argues persuasively that the application of Fredman’s four pillars of asymmetrical substantive equality would equip private international law better to address inherent risks of vulnerability.

Asymmetries of private power remain the focus of discussion in the following chapter on the under-explored relationship between our discipline and feminist scholarship, authored by two of the editors. Justin Borg-Barthet and Katarina Trimmings set out to contribute to a nascent discussion about sex-based vulnerability and how this is (un)seen by much of the literature and law. It is argued, ultimately, that private international law requires more sustained engagement with feminist scholarship if it is to avoid acting as an instrument for the entrenchment of substantive inequalities.

Part II: Civil and Commercial Matters in Private International Law

Unsurprisingly, given the focus of much of Jonathan Fitchen’s written work, Part II on civil and commercial matters makes up around half of the volume. It begins with Andrew Dickinson’s meticulous analysis of the meaning of “damage” in EU private international law. Dickinson notes that, despite the central importance of the term to the operation of much of EU private international law, there is little clarity as to its meaning. His chapter sets out to remedy this shortcoming through the articulation of a hitherto undeveloped taxonomy of “damage” which promises to become an essential tool in the arsenal of students, teachers, practitioners, and adjudicators of private international law.

Another editor, Burcu Yüksel Ripley, authored the next chapter, which addresses cryptocurrencies. Our discipline’s continued preoccupation with definitional clarity remains very much in evidence in this discussion of challenges posed by disruptive technologies. Yüksel Ripley notes that attempts to characterise cryptocurrencies as a thing/property are unsatisfactory in principle, and that they therefore lead to conceptually unsound outcomes. She proposes instead that analogies with electronic fund transfers provide more promise for the determination of the applicable law.

In the next chapter, by Laura Carballo Piñeiro, the volume returns to another major theme of Jonathan Fitchen’s scholarly output, namely the effectiveness of collective redress mechanisms. Carballo Piñeiro observes that access to justice remains restricted in most jurisdictions, and that a common EU approach remains lacking. Although the courts have provided some routes to collective redress, Carballo Piñeiro argues that a robust legislative response is paramount if corporate accountability for environmental harm is to be realised in Europe.

Private international law’s ability to engage with concerns regarding environmental sustainability remains a key focus of analysis in Carmen Otero García-Castrillón’s chapter concerning the discipline’s place in international trade agreements. The chapter advocates the bridging of an artificial systemic separation between the private and the public in the international system. It is argued that the extent of private power in the international system merits attention in trade agreements if sustainable development goals are to be attained.

Giesela Rühl also addresses concerns regarding private international law’s ability to be deployed in matters which are traditionally reserved to public and public international law. Her chapter considers innovations introduced through the German Supply Chain Due Diligence Act (Lieferkettensorg-faltspflichtengesetz – LkSG) which establishes mandatory human rights due diligence obligations in German companies’ international supply chains. Rühl laments the lack of attention paid to private international law in German law. She makes an especially compelling case for any future EU interventions to recognise the need to engage with private international law if legislation is to be effective.

The uneasy public-private divide in transnational law remains in evidence in Patricia Živkovi?’s chapter concerning what she describes as “creeping substantive review” in international arbitration. Živkovi? decries a lack of conceptual clarity in courts’ treatment of arbitral determinations, particularly insofar as public policy is deployed as an instrument of substantive review of private adjudication. She argues that international legislative intervention is needed if prevailing inconsistencies of treatment are to be resolved.

Fittingly, Part II is rounded off with a discussion of that part of private international law to which Jonathan Fitchen made his most enduring scholarly contribution, namely authentic instruments. Zheng Tang and Xu Huang discuss authentic instruments in Chinese private international law. Like Jonathan’s work, this chapter provides readers of English language scholarship with a rare example of in-depth analysis of concepts which are unfamiliar in the Anglo-American tradition. The chapter’s compelling arguments for legal refinements will also be of use, however, to readers who wish to identify possible improvements to Chinese law.

Part III: Family Matters in Private International Law

The final part of the book turns to family law, an area in which Jonathan provided ample instruction to students, but which was not especially in evidence in his written work. In keeping with the previous parts of the book, our discipline’s need for definitional clarity and consistency are very much apparent in the chapters in this part, as is the somewhat existential concern regarding the proper delineation of the public and the private. As the authors in this part observe, each of these matters has far-reaching effects on the apportioning of rights and obligations in circumstances which are deeply meaningful to the lives of litigants.

Aude Fiorini’s chapter considers flawed reasoning in the US Court of Appeals judgment in Pope v Lunday. Fiorini illustrates the substantive flaws in the Court’s treatment of the habitual residence of neonates, but also highlights a broader concern regarding the potential for unconscious bias in judicial decision-making. Through the judgment in Pope, Fiorini raises alarms regarding inconsistent judicial treatment of similar situations which turn on appreciation of circumstances establishing the habitual residence of a child. She argues, particularly compellingly in our view, that the interests of justice require greater conceptual clarity and consistency.

In the final chapter, by Anatol Dutta, the interactions of the public and the private return to the fore. Taking his cue from Jonathan Fitchen’s work on authentic instruments, Dutta explores the concept of private divorce under the Brussels IIter Regulation. Concerns regarding decisional autonomy are very much in evidence in this chapter, which considers the meaning of private divorces and the extent to which they enjoy recognition in the EU private international law system. Ultimately, Dutta welcomes measures which restrict private divorce tourism in the EU.

Conclusions

This book was born of a collective wish to remember and honour a much-loved scholar of private international law. In that, we trust that it has already fulfilled its purpose. However, each chapter individually and the book taken as a whole also capture the state of the art of private international law. Ours remains a discipline in search of systemic normative clarity and in episodic need of technical refinement. This collection provides tantalising glimpses of possible answers to both the essential question of the treatment of the private in the attainment of public goods, and in relation to longstanding vexing technical questions.

To preserve and further Jonathan Fitchen’s legacy as an educator of private international lawyers, editorial royalties from the sale of the book will be donated to the Jonathan Fitchen Fund of the Development Trust at the University of Aberdeen. Direct individual donations to the fund are also welcome and appreciated.

On Tuesday, March 5, 2024, the Hamburg Max Planck Institute will host its 42nd monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Marta Pertegás Sender (Maastricht University and University of Antwerp) will speak, in English, about the topic

Current Developments in Cross-Border Enforcement of Patent Rights: Revisiting Territoriality and Reflexive Effect?

The CJEU preliminary ruling in BSH Hausgeräte Case C-339/22 is eagerly awaited by those involved or interested in cross-border enforcement of patent rights. The forthcoming judgment may have broader repercussions for the position of territoriality in international litigation on intellectual property rights or for the private international law of property more generally.

On the basis of AG Emiliou’s Opinion expected on 22 February 2023, this paper revisits some of the positions defended in my doctoral research almost 25 years ago (on still controversial issues such as the articulation of exclusive jurisdiction rules when validity is contested in infringement cases, or the ‘reflexive effect’ (effet réflexe) of such exclusive jurisdiction rules in favour of courts in non-EU States).

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

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

We are please to announce that registration for the  next bi-annual conference of the European Association of Private International Law (EAPIL) is now open!

The conference will take place in Wroclaw (Poland) from 6 to 8 June 2024 and will be devoted to “Private International Law and Global Crises”. Topics to be discussed will include the interplay of private international law and 1) war and armed conflicts, 2)  the rule of law, 3) climate change and 4) global supply chains. Speakers will be:

• Raffaele Sabato (European Court of Human Rights)
• Vincent Kronenberger (Court of Justice of the European Union)
• Andreas Stein (European Commission)
• Patrick Kinsch (University of Luxembourg)
• Veronica Ruiz Abou-Nigm (University of Edinburgh)
• Iryna Dikovska (Taras Shevchenko National University Kyiv)
• Tamasz Szabados (ELTE Eötvös Loránd University)
• Alex Mills (University College London), Matthias Weller (University of Bonn)
• Eduardo Alvarez Armas (Universidad Pontificia Comillas)
• Olivera Boskovic (Université Paris Cité)
• Rui Dias (University of Coimbra)
• Klaas Eller (University of Amsterdam)
• Laura Carpaneto (University of Genova)

To register for the conference please click here.

For questions, please get in touch with the local organizer, Agnieszka-Frackowiak-Adamska, at 2024.EAPIL.Wroclaw@uwr.edu.pl.

The annual DynamInt Doctoral Conference will be held in Amsterdam on 28th and 29th August 2024 and is co-organised by the Graduate School DynamInt (Humboldt University of Berlin) and the Amsterdam Law School (University of Amsterdam). It takes place in the context of the European Law School’s Summer Academy. We invite early career researchers (doctoral and postdoctoral) working in European Union law to come together and to discuss responses to the most pressing crises currently facing the European Union, its Member states, and citizens. Within the framework of the three topics outlined below, participants may present their work and engage in discussion with fellow scholars. In addition, Faculty specialised in EU, international, and comparative law will give in-depth feedback on the contributions submitted prior to the conference.

In recent years, the resilience and adaptability of EU law and governance has been tested by a myriad of challenges that have effectively put the bloc in a constant state of crisis. The already strained balance between unity and diversity increases the necessity for a multifaceted legal framework able to endure challenges, adapt to changing circumstances, and continue to function effectively while upholding the EU’s core values and objectives.

With this conference, we aim to develop a better understanding of the diverse unfolding crises and the unique challenges they pose against the background of an ever-evolving EU legal order. We also seek to explore potential responses and mechanisms that can ensure the EU’s resilience to future crises. For this purpose, we are pleased to invite contributions from both public and private law perspectives on the following topics:

Topic 1: Climate crisis

The ecological crisis caused by climate change represents the defining challenge of our time, posing an existential threat to human societies and the planet. As a cross-sectoral problem, climate change implicates all aspects of social and economic life. Mirroring the scope of the problem, legal responses to climate change must encompass and activate the entire spectrum of the law, ranging from public to private law and beyond. Over the past years, the EU has developed an ambition to emerge as the major player in the fight against climate change. Within the framework of the ‘European Green Deal’, a broad range of legislation, both current and planned, is deployed to achieve the goal of net zero greenhouse gas emissions by 2050. Notably, some of these legislative projects devise mechanisms of both public and private enforcement, such as the proposed Corporate Sustainability Due Diligence Directive. Yet, the Intergovernmental Panel on Climate Change’s repeated warnings that global warming will likely exceed 1.5°C in the near term give cause for concern. At the same time, they provide a reason to scrutinise and indeed challenge the EU’s response to the ecological crisis. Do the legislative efforts currently underway adequately address the problem of climate change, which is inherently polycentric, scientifically uncertain, dynamic, and steeped in socio-political conflict? And how do the current legislative efforts fit into the growing landscape of national and international, public and private, as well as top-down and bottom-up responses to climate change?

Topic 2: Inequality crisis

Rising inequality is emerging as a recurrent and prominent theme amongst the crisis facing the European Union. Private law traditionally emphasises principles such as autonomy, efficiency, and justice in exchange, often sidelining concerns related to economic inequality. Conversely, public law, focused on vertical relationships, fails to engage with the underlying factors that give rise to inequality in the first place. The orthodox view holds that distributive objectives should be managed primarily through the fiscal system and welfare state infrastructure. However, this paradigm is increasingly contested by the realities of mounting inequality despite the existence of public governance mechanisms to alleviate it. A critical re-evaluation of these approaches and their historical underpinnings may unveil the root causes of inequality and its institutional dimension. In this vein, recent scholarship has pointed to the instrumental role of legal institutions in “coding” assets into capital thereby creating wealth and perpetuating inequality. Emerging asset classes like data and the environment are following the same pattern, potentially paving the way for future crises. Moreover, recent developments in economic organisation, such as the rise of digital platforms and the gig economy, have widened the gap between individuals and corporations in terms of bargaining power and access to justice.

Topic 3: Armed conflict crisis

The rise of armed conflicts and acts of aggression worldwide has led the EU to shift its internal and external policies in light of these crises, some of which have recently reached its borders. The EU has intensified its efforts to strengthen economic resilience, enhance energy security, and enforce a robust sanctions regime against those undermining peace and international law. This recalibration includes tightening financial regulations to prevent the flow of funds to sanctioned entities and enhancing the bloc’s capacity for economic diplomacy to mitigate the impact of geopolitical tensions. Furthermore, the EU’s adaptation of its policies underscores the necessity of a coordinated approach that not only addresses immediate threats but also anticipates future challenges, ensuring the stability and integrity of the Union. At the same time, these policies bring about inadvertent consequences for private legal relationships, such as insurance policies, energy sector contracts, and within the shipping industry. What are the legal and ethical implications of the EU’s use of economic measures, such as sanctions, from a public and private law perspective? How has the legal framework of the European Union adapted to address the security challenges posed by the geopolitical tensions near its borders? How are these regulatory shifts and the geopolitical strategy of the Union normatively legitimated?

Submission timeline

We welcome submissions in the form of an abstract (max. 500 words) by 15th April 2024. The issues and questions touched upon in the descriptions of the topics are intended to serve as thematic guidance, but are by no means meant to be exhaustive. Please send your submissions via the following form: https://bit.ly/DynamIntConference.

Successful participants will be contacted by 15th May 2024 at the latest and are expected to submit their full paper (max. 8,000 words including footnotes) by 15th July 2024. They will be sent to established scholars who will provide feedback during the conference. The abstract and the paper may be submitted in English, French, and German. However, the presentations and discussions during the panels will be held in English.

Logistics and funding

The conference will be held as an on-site event only. The accommodation costs for panellists will be covered. Further information will be offered at a later stage to the selected speakers. Participation in the entire workshop is free of charge. General registration for the entire workshop will open in early summer 2024.

Any question may be directed to gesche.ripken@hu-berlin.de.

The fourth issue of 2023 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Cristina Campiglio, Professor at the University of Pavia, Giurisdizione e legge applicabile in materia di responsabilità medica (ovvero a proposito di conflitti di qualificazioni) [Jurisdiction and Applicable Law in Matters of Medical Liability (Namely, on the Issue of Conflicts of Characterisation); in Italian]

An attempt has been made to give an account of the conflicts of qualification that characterise the healthcare sector, starting with the contractual or non-contractual nature of civil liability for malpractice. We then looked at the nature of the healthcare contract to assess whether patients can fall into the category of consumers and consequently enjoy the protection reserved to them. Finally, reference was made to the qualification of the patient’s self-determination as an expression of the right to privacy rather than the right to physical integrity. Research on the nature of civil liability in a field – the health sector, as said – where many activities are potentially harmful to the physical integrity of the patient so that the health-care operator might be held accountable of culpable personal injury or even of manslaughter, provided an opportunity to analyse the practice of the Court of Justice relating to the qualification of “contractual matters” and indirectly of the non-contractual matter of culpable “tort”; and to note how the Court, in recent years, on the one hand has openly espoused an extensive interpretation of “contractual matters”, and on the other hand has missed the chance to speak out on hypotheses of non-contractual liability in contractual contexts, or of concurrence of contractual and non-contractual liability. It is to be hoped that the European Union will become aware of the need to provide ad hoc rules on the liability of healthcare personnel who engage in activities that are intrinsically hazardous to patients’ health: if not substantive rules or guidelines, at least rules on jurisdictional competence and applicable law.

Olivia Lopes Pegna, Professor at the University of Florence, Continuità interpretativa e novità funzionali alla tutela dell’interesse del minore nel regolamento Bruxelles II-ter (Continuity in Interpretation and Novelties Functional to the Protection of the Interest of the Child in the Brussels IIb Regulation; in Italian)

This article aims at illustrating the main innovations introduced in the Brussels regime on parental responsibility and protection of children with the Recast: i.e., Regulation (EU) No 2019/1111 (“Brussels II-ter”). While, on the one side, interpretation and application of the Recast Regulation mandate continuity with the jurisprudence of the Court of Justice of the European Union, on the other side the novelties introduced with the Recast show an increased penchant towards flexibility in order to achieve the protection of the actual and concrete best interests of the child.

Edoardo Benvenuti, Research Fellow at the University of Milan, Climate change litigation e diritto internazionale privato dell’Unione europea: quale spazio per la tutela collettiva? (Climate Change Litigation and EU Private International Law: Is There Room for Collective Redress?; in Italian)

With the worsening of the climate crisis, the EU is adopting a number of measures – both in the public and private sector – in order to counter such phenomenon. The layering of substantive norms and standards goes hand in hand with the growing interest towards procedural tools suitable to make the application of such rules effective through private enforcement. Against this background, and given the collective and the ubiquitous dimension of the consequences of climate change, the present article explores the phenomenon of collective redress in the field of climate change litigation. After introducing the definitions and the characteristic features of climate change litigation and collective redress, the article examines the role of Regulations (EU) No 1215/2012 and (CE) No 864/2007, in order to evaluate their ability to address the private international law issues arising from collective and climate change litigation. In doing so, the article focuses on the relevant case-law (both national and of the CJEU), as well as on Directive (EU) 2020/1828 on consumers’ representative actions, which provides a number of propositions that can be applied also in the context of climate change litigation. Once the main critical aspects have been identified, the article puts forth some reform suggestions to strengthen EU private international law mechanisms in the context of environmental mass torts.

This issue also comprises the following comment:

Ginevra Greco, Researcher at the University of Milan, Il c.d. uso alternativo del rinvio pregiudiziale di interpretazione (The So-Called Alternative Use of the Referral for a Preliminary Ruling on Interpretation; in Italian)

This article endeavours to show that, contrary to popular opinion, the interpretative judgments of the Court of Justice of the European Union, which use the terms “precludes” or “does not preclude”, are genuine judgments on the conformity of a national act or measure with EU law. This article also aims to illustrate the compatibility of those judgments with the model of Article 267 TFEU. This conclusion is supported not by the fact that such judgments are devoid of application profiles, but because they remain within the scope of the interpretative function of the Court of Justice, understood not as abstract interpretation, but as an interpretation which contributes to the resolution of the concrete case pending before the referring court.

Furthermore, in the Chronicles section, this issue includes:

Anna Facchinetti, Researcher at the University of Milan, Immunità degli Stati ed exequatur di sentenze straniere in materia di terrorismo: una recente pronuncia della Corte di Cassazione francese (State Immunity and Exequatur of Foreign Judgments on Terrorism: A Recent Ruling by the French Court of Cassation; in Italian).

Finally, the following book review by Fausto Pocar, Emeritus Professor at the University of Milan, is featured: Albert Venn DICEY, John Humphrey Carlile MORRIS, Lawrence COLLINS, Dicey, Morris & Collins on The Conflict of Laws, 16th ed., Sweet & Maxwell, London, 2022, 2 voll., pp. cdxli-2476-LXXI; Companion vol., EU Withdrawal Transition Issues, pp. li-162.

Authors: Abubakri Yekini (Lecturer in Conflict of Laws at the University of Manchester) and Chukwuma Okoli (Assistant Professor in Commercial Conflict of Laws at the University of Birmingham, Senior Research Associate at the University of Johannesburg).

A  Introduction

In an increasingly globalised economy, commercial transactions often involve business entities from different countries. These cross-border transactions present complex legal questions, such as the place where potential disputes will be adjudicated. To provide certainty, commercial parties often conclude ex ante agreements on the venue for dispute resolution by selecting the court(s) of a particular state. However, what happens if no such agreement over venue is reached for resolving a contractual dispute? Could consent to the venue be implicitly inferred from the parties’ conduct or other factors?

Explicit jurisdiction clauses offer cross-border litigants the benefit of predictability by allowing them to anticipate where disputes arising from their commercial transactions will be resolved. However, business entities sometimes neglect to include express provisions for the venue, whether inadvertently or due to their inexperience. In such cases, firms may have implicitly agreed on a venue through their actions or based on their tacit understanding. This type of ‘unwritten’ jurisdiction agreement remains largely unexplored in the legal scholarship.

Relatively recently, the validity or enforceability implied jurisdiction agreements arose in the Privy Council case of in the Privy Council Case of Vizcaya Partners Ltd v Picard & Anor [2016] UKPC 5. In this Case, following a comprehensive survey of the existing academic and judicial authorities, Lord Collins held that since it is commonplace for a contractual agreement or consent to be implied or inferred, ‘there is no reason in principle why the position should be any different in the case of a contractual agreement or consent to the jurisdiction of a foreign court’. However, in the wake of the above Case, the notion of an implied jurisdiction agreement drew limited scholarly research attention (for instance, see Kennedy, (2023);  Kupelyants, 2016). Moreover, there has been no systematic analysis of how it aligns with the needs of the international business community.

In our latest article, published in the 2023 edition of the Journal of Private International Law, vol. 19(3), we examine the enforceability of implied jurisdiction agreements from a global comparative perspective. Therefore, our paper provides the first comparative global perspective of the enforcement of implied jurisdiction in international contracts. Our analysis reveals uncertain and subjective standards for implied jurisdiction agreements, which undermine the needs of international commerce. While limited scenarios may justify enforcing implied jurisdiction agreements, our paper advocates restraint, given that the criteria for inferring consent are complex, unpredictable, and variable across legal systems.

B  Implied Jurisdiction Agreements Create Uncertainty for Business

The main thesis of our article is that implied jurisdiction undermines the core needs of business entities engaging in cross-border commercial transactions. These entities value legal certainty and predictability, in order to make informed choices and plan business activities. However, by their very nature, implied terms offer less clarity concerning the governing law and jurisdiction agreements.

Our article likewise surveys primary legal sources across common law, civil law and mixed legal systems (as well as insights from academics and practising lawyers), assessing whether implied jurisdiction agreements are widely recognised. We find limited consensus on the conduct that demonstrates implied consent or agreement to litigate in a particular forum. Factors such as previous interactions between contracting parties and trade usage in an industry are highly subjective. Even common law tests for inferring implied terms, like the ‘officious bystander’ and ‘business efficacy’ rule, fail to clarify how these terms apply specifically to international jurisdiction.

This uncertainty requires the courts to undertake a complex, case-by-case analysis of parties’ unspoken intent. However, companies benefit from consistency in interpreting cross-border transactions, whereas a lack of clarity risks complicating commercial disputes, rather than resolving them efficiently. Overall, the unclear standards surrounding implied jurisdiction agreements are incapable of delivering the stability required by global businesses when operating across legal systems.

C Treatment under International Conventions 

International treaties are aimed at harmonising divergent national laws and policies on jurisdiction, applicable law, and the recognition and enforcement of foreign judgments.  The 2005 Hague Convention on Choice of Court Agreements (HCCA) governs exclusive choice of court agreements from a global perspective. Articles 3(c) and 5(1) address formal and substantive validity. Our paper suggests that the requirement for the written form under Article 3(c) may present challenges in implying jurisdiction agreements. Consequently, it is difficult to envision situations where implicit jurisdiction agreements could arise under the Hague Choice of Court Convention, given that the initial hurdle is the requirement for the agreement to be in writing.

The spirit of the HCCA is further reflected in the 2019 Hague Judgments Convention, which seeks to promote express – as opposed to implicit – jurisdiction agreements between parties. For instance, Article 5 of the Convention exhaustively lists permitted grounds for establishing international jurisdiction. This provides clarity for commercial parties who are litigating abroad. Consequently, implied jurisdictions agreements are conspicuously absent and so the policy favours explicit consent. Accordingly, we argue that the emerging global consensus dictates caution around enforcing implied jurisdiction agreements that could disrupt settled jurisdictional principles in the international context.

Brussels Ia and the Lugano Convention share provisions for the validity of a jurisdiction agreement. Namely, consent must be in writing, or evidenced in writing. This aligns with the Hague frameworks: the HCCA and the Judgments Convention. While some scholars argue for the validity of implied jurisdiction agreements in specific contexts (especially trade usage and previous dealings between parties), the prevailing view requires clear and precise consent. By way of illustration, CJEU’s stance in Cases like Galeries Segoura  SPRL, ProfitInvestment SIM SpA and Colzani,  implies a stringent approach to consent.

D  Should Implied Jurisdiction Agreements be Enforced?

In section IV of our paper, we examine the justification and rationale for the recognition or otherwise of implied jurisdiction agreements, having, inter alia, considered the diverse approaches adopted by the many courts across the globe.

1. Business Efficacy and Commercial Expectations

Party autonomy, a cornerstone of private international law, emphasises the importance of upholding the presumed intentions of the contracting parties. The recognition of implied jurisdiction agreements potentially aligns with the principle of party autonomy, since it seeks to fill gaps in contracts and thereby reflect the parties’ unexpressed intentions, as noted by Lord Neuberger. In the context of English law, Lord Collins relied on the business efficacy and officious bystander analogy to imply jurisdiction agreements in Vizcaya.

Additionally, the application of business efficacy logic can mitigate challenges such as parallel proceedings or the fragmentation of disputes. Extending a jurisdiction agreement to closely related contracts, even in the absence of explicit terms, will reduce uncertainty and meet commercial expectations. Certainty, convenience, and the efficient administration of justice are paramount considerations for rational businessmen who would rather not litigate in separate courts. Nonetheless, Cases like Terre Neuve Sarl v Yewdale Ltd [2020] and Etihad Airways PJSC v Flother [2020] reveal complexities in ascertaining commercial expectations and business efficacy. Divergent approaches to interpreting and implying terms, coupled with the challenge of defining what constitutes a reasonable businessperson, further contribute to the uncertainty and unpredictable outcomes.

    2. The Choice of Law Analogy

Implied choice of law is well-established in private international law. Moreover, it is recognised in various international instruments and across common law, mixed, and civil law jurisdictions. While jurisdiction and choice of law are distinct, the underlying principle of implied choice of law may apply to implied jurisdiction agreements.

Globally, the interrelationship between jurisdiction and choice of law is acknowledged. For instance, the CJEU emphasises a consistent approach to determining both. The applicable law of a contract, while not determinative of jurisdiction, remains significant. However, challenges arise when parties fail to expressly state the applicable law, leading to a strict standard for implying the choice of law based on a number of factors.

Despite the recognition of implied choice of law, we argue against transposing this principle directly to the question of jurisdiction. Jurisdiction involves the exercise of state powers over litigants, and while implied choice of law may indicate a governing law, it does not necessarily imply submission to the jurisdiction of a specific court. Instead, the distinct nature of jurisdiction agreements calls for a nuanced approach.

     3. International Jurisdiction and the Recognition of Foreign Judgments

Implied jurisdiction agreements play a dual role, serving as a basis for establishing both direct and indirect jurisdiction. Courts often decide on the enforceability of judgments based on the existence of a jurisdiction agreement, whether express or implied.

Different thresholds apply to direct and indirect jurisdiction. This differentiation reflects the complexities involved in establishing jurisdiction in cross-border disputes. While policy considerations may influence the exercise of direct jurisdiction, recognising and enforcing foreign judgments necessitates adherence to some very specific, often stricter, criteria set by the court addressed.

The inherent connection between jurisdiction and judgments underscores the need for certainty in cross-border litigation. Implied jurisdiction agreements lack globally established criteria. This introduces ambiguity and can lead to prolonged legal proceedings, given that litigants will often draw attention to implicit jurisdiction agreements at the enforcement stage. In short, it undermines the efficiency sought in international business transactions.

On the strength of the inefficiency that can arise from an exercise of jurisdiction based on implicit agreements, we argue that the concept of implied jurisdiction agreements adds little (if any) value to the recognition and enforcement of foreign judgments. Conversely, the HCCH 2019 Judgments Convention provides clear jurisdictional grounds, consequently averting the need for implied agreements. The Convention’s carefully drafted criteria support the global pursuit of certainty and predictability in cross-border commercial legal frameworks.

E  Conclusion

In closing, we argue that implied jurisdiction agreements do not align with the needs of international commerce or the emerging global consensus on international jurisdiction. Aside from the very limited recognition of implied jurisdiction agreements under certain international instruments such as Brussels Ia, our study further reveals divergent national approaches to implied jurisdiction agreements. For several reasons, we advocate caution regarding the validity of implicit agreements:

1. Consent is not genuinely mutual if one party disputes the existence of an implied agreement: genuine consent must be clear.
2. Implied agreements provide minimal value: even without them, jurisdiction can be founded on close connections between the contract and forum.
3. The emerging global consensus on jurisdiction, as seen in the HCCH Conventions, emphasises predictability through the requirement for well-defined but restricted grounds. Implied agreements therefore fail to align with the policy behind these instruments and the emerging consensus.

Our overall conclusion is that express jurisdiction agreements should remain the priority for cross-border contracts.

The United Nations Agenda 2030 with its 17 Sustainable Development Goals (SDGs) seems to have a blind spot for the role of private and private international law. That blind spot is beginning to be closed. A collective volume with global outlook published in 2021 addressed “the private side of transforming our world”: each of the 17 SDGs was discussed in one chapter of the book devoted to the specific relevance of private law and private international law. In 2022, the IACL-ASADIP conference in Asunción, Paraguay discussed sustainable private international law with regard to Latin America; the contributions published in 2023 in a special issue of the University of Brasilia Law Journal – Direito.UnB., V.7., N.3 (2023).

In this occasion the focus is on Asia. The Chinese Journal of Transnational Law invites submissions for its Vol. 2 Issue 2, to be published in 2025, engaging critically with the functions, methodologies and techniques of private international law in relation to sustainability from an Asian perspective, as well as in relation to the actual and potential contributions of private international law to the SDGs in Asia.

Contributions should focus on Asian perspectives, either addressing a specific global challenge through the lens of the relevant normative framework of a particular country, sub-region, or community/ies in Asia; or ‘glocalising’ the challenge, analysing specific issues affecting concrete contexts in the region in relation to the global objectives included in the UN 2030 Agenda.

Topics could include, but are not limited to:

• Relationships between the international and the domestic, or/and the public and the private in the pursue of the UN Agenda 2030 in Asia
• Sustainability in global supply/value chains and private international law in Asia
• Intra-regional (South-South) migration in Asia and private international law (focus on specific kinds of migration, such as labour migration, climate change migration, forced displacement, refugees, etc)
• Clean energy in Asia and private international law
• Decent work (and economic growth) in Asia, and of Asian workers beyond Asia, and private international law
• Sustainable consumption and production in Asia and private international law (focus on a specific sector, such as apparel, food, agricultural products, etc)
• Gender equality in Asia and private international law
• Sustainable Asian cities and communities and private international law
• Establishment and proof of personal identity in Asia; portability across borders of identity documents in Asia and beyond
• (Non-) recognition of foreign child marriages and forced marriages in and from Asia
• Availability and sustainable management of water (and sanitation) in Asia and the role of private international law
• Private international law and cross-border environmental damage/ adverse effects of climate change/ loss of biodiversity from an Asian perspective.

Note: The issue of transnational access to justice in relation to sustainable development has been considered extensively, including from an Asian perspective, so we suggest interested contributors to refrain from submitting contributions based exclusively on SDG 16.

An abstract of 500-800 words should be submitted by 15  March 2024 to PIL.sustainability.CJTL@ed.ac.uk and CJTL.Editor@whu.edu.cn (please send the abstract to both email addresses). Please include the contributor’s last name in the email title. Selected contributors will be invited to submit a draft paper by 1 October 2024 in advance of a hybrid conference at Wuhan University in November 2024. The submission of the full article through the journal’s homepage: https://journals.sagepub.com/home/ctl is required by 1 March 2025. Accepted articles will be published online first as advanced articles. Contributors may choose between: Research articles (up to 11,000 words inclusive of footnotes) or short articles (up to 6,000 words inclusive of footnotes). The special issue will be published in September 2025.

Those interested may contact the guest editors Verónica Ruiz Abou-Nigm, Ralf Michaels and Hans van Loon at PIL.sustainability.CJTL@ed.ac.uk.

In its judgment of 8 February 2024, the CJEU had to decide whether “the application of the Brussels Ibis Regulation be based solely on the fact that two parties with their seat in the same Member State agree on the jurisdiction of courts of another EU Member State.”

The case concerned two loans granted to Dúha reality, a Slovak company, by a third party also domiciled in Slovakia, in 2016 and 2017 respectively. Both loan contracts contained an identical choice of forum clause stating that any ‘dispute shall be settled by a court of the Czech Republic having substantive and territorial jurisdiction’. In 2021, the receivables arising from those loan agreements were assigned to Inkreal, another purely Slovak business corporation, who upon non-payment by the debtor brought action in the Czech Republic. Seeking, inter alia, to determine the specific Czech court having territorial jurisdiction, the Czech Supreme Court (Nejvyšší soud) referred the question to the CJEU.

The CJEU engaged in an almost textbook-like analysis of not only the clear wording of Art. 25 Brussels Ibis, which does not contain any restrictictions whatsoever with regard to an additional connection to the chosen or another Member State (para. 17), but also of the purpose of the Regulation to provide legal certainty requiring that the designated court can easily assess its jurisdiction without recourse to the merits of the case (para. 27). Furthermore, the CJEU concluded by an argumentum e contrario to Art. 1(2) HCCH 2005 Choice of Court Convention that the EU legislator, who drew inspiration from the Hague instrument when drafting the recast, was well aware of the issue but deliberately decided against the adoption of a similar provision excluding choice of court agreements in otherwise purely domestic cases from the scope of application (para. 38). As a result, the CJEU answered the question in the affirmative, thereby strengthening party autonomy and predictability in the context of international civil procedure. This is to be welcomed.

The Opinion of 12 October 2023 provided by AG Richard de la Tour had gone to the contrary, namely that an international element must be established “according to objective criteria” whereas the mere subjective choice of a foreign Member State’s court may not suffice to trigger the application of the Brussels Ibis Regulation (para. 32). While elements of the underlying argumentation appear questionable, as discussed elsewhere, the Opinon, interestingly, also put forward that the Brussels systems should be harmonised with the Hague Convention (“the Hague system”?), which might be taken as a reminiscent of a light form of the principle of systemic integration, Art. 31 (3) (c) VCLT. In this respect, the Opinion could also be seen as evidence of a heightened awareness of the increasing role that the CJEU’s decisions could play in the greater picture of international judicial cooperation in civil and commercial matters.

The first issue for Lloyd’s Maritime and Commercial Law Quarterly in 2024 was published recently. It contains the following articles and case notes.

Articles:

Andrew Dickinson, “Electronic trade documents and the conflict of laws in the United Kingdom”

The Electronic Trade Documents Act 2023, which entered into force on 20 September 2023, seeks to facilitate the use of trade documents (including bills of exchange, promissory notes and bills of lading) in electronic form by assimilating these instruments, and their legal effects, to the equivalent paper trade documents, provided that the systems used to process the relevant information meet certain technological requirements. However, the Act contains no provision that expressly addresses the legislation’s cross-border dimension or its relationship to the United Kingdom’s conflict of laws rules. This article considers how these matters should best be addressed in order to secure the Act’s promised economic benefits.

Shane Herbst and Simon Allison, “Breaking the Hague-Visby Rule’s Silence on choice of law and forum clauses: Article 3 revisited”

It is generally assumed that the Hague-Visby Rules are silent on choice of law and forum clauses. However, Art.3(8) can potentially operate to invalidate such clauses; and the general assumption is challenged by reference to Australia’s cargo liability regime. This reality could incentivise jurisdictions wanting to uphold such clauses to construe the Hague-Visby Rules uniformly. Despite this, the limits of Art.3(8) should be clarified. In Australia, reform efforts should address this and other issues with arbitration agreements. As Art.3(8) currently stands, parties must consider its potential effects on dispute resolution provisions in sea-carriage documents.

Case Notes:

Adrian Briggs, “The empire strikes back”

Andreas Giannakopoulos and Adnan Khaliq, “Damages for breach of dispute resolution agreements and EU public policy”

Adrian Briggs, “When arbitration matters”

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.