Conflictoflaws

Take a last look at this image from the website of the HCCH; it will likely change soon. The HCCH has adopted Spanish as an official language from 1 July 2024. . . Here is the official announcement from The Hague Conference (the link provides also the Spanish version): During the annual meeting of the Council on General Affairs and Policy (CGAP), the Members of the Hague Conference on Private International Law (HCCH) expressed their unanimous support for the introduction of Spanish as an official language. From 1 July 2024, Spanish will join English and French as one of the three official languages of the Organisation. This development represents an important further step contributing to universality and inclusiveness at the HCCH, reflecting the importance of multilingualism and multilateralism as core pillars of its work. The adoption of Spanish as an official language will facilitate the proper and effective implementation and operation of the HCCH’s Conventions and instruments in Spanish-speaking States and will therefore have a decisive positive impact on the lives of the hundreds of millions of native Spanish-speakers around the world. The adoption of Spanish will also simplify the lives of the countless other individuals who interact with Spanish-speaking States – be it through commerce, travel, personal relations, or other. The decision to adopt Spanish as an official language of the HCCH will be reflected in CGAP’s Conclusions and Decisions, to be published in the coming days. . . And here is a first blog entry from Claudia Martínez, appropriately in Spanish. . . Notably, a Spanish version of the HCCH website has existed since the launch in 2009. Then, it was the only language version other than the English and French ones. Today, (more or less) full versions exist also in German and Portuguese;  other language sites provide translations of Hague Conventions.

Alexander DJ Critchley has added an enriching installment to Hart’s renowned Studies in Private International Law Series entitled “The Application of Foreign Law in the British and German Courts”.

The author has extensive experience as solicitor in Scots law with a specialisation in family law. His book is the publication of a doctoral thesis completed with distinction at the university of Tübingen (Germany). The blurb reads as follows:

This book explores the application of foreign law in civil proceedings in the British and German courts. It focuses on how domestic procedural law impacts on the application of choice of law rules in domestic courts. It engages with questions involved in the investigation and determination of foreign law as they affect the law of England and Wales, Scotland, and Germany. Although the relevant jurisdictions are the focus, the comparative analysis extends to explore examples from other jurisdictions, including relevant international and European conventions. Ambitious in scope, it expertly tracks the development of the law and looks at possible future reforms.

Please check out Hart’s banner at the top of this page for special discounts for CoL readers.

 

The first view of the second issue of ICLQ  for 2023 contains a private international law article that was published online just recently:

 

S Matos, Arbitration Agreements and the Winding-Up Process: Reconciling Competing Values

Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.

This week the Hague Conference on Private International Law (HCCH) published the Practical Guide – Access to Justice for International Tourists and Visitors. The HCCH news item is available here.

As indicated in the Guide, this document “is intended to assist international tourists and visitors to foreign countries seeking access to justice for disputes arising from their tourism experience by providing information on online dispute resolution mechanisms that may be available and HCCH legal instruments that may be relevant in a given case.”

There are a few aspects of the Guide that are worthy of note:

First, the definitions of a visitor and a tourist are interesting.

A “visitor” is considered to mean “a traveller taking a trip to a main destination outside their usual environment, for less than a year, for any main purpose (business, leisure, or other personal purpose) other than to be employed by a resident entity in the country or place visited.”

A “tourist”: “A visitor (domestic, inbound, or outbound) is classified as a “tourist” if their trip includes an overnight stay.”

These definitions are taken from the United Nations World Tourism Organization (UNWTO).

Secondly, Part I of this Guide provides a list of online dispute resolution platforms, although some are not specific to international tourists and visitors. Among the governmental initiatives are: EU Online Dispute Resolution Platform (European Commission), Concilianet de PROFECO (Mexico) and Consumidor.gov.br (Brazil). Among the private initiatives are: Airbnb Online Resolution Centre and Endispute.

Thirdly, Part II of this Guide sets out examples of common claims made by tourists and visitors such as lost baggage, cruise cancelled due to weather, and damage to property at hotel. These examples are merely indicative and of course do not constitute legal advice.

All in all it makes an interesting read and its layout is more easily readable on different devices. Nevertheless, it does make me wonder how much this document would actually help tourists and visitors in times of trouble.

 

 

On 8 March 2023, the latest edition of the cycle of seminars – entirely in English – on cross-border civil and commercial litigation will begin, as part of the European project Jean Monnet Module on Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe, organized by the Department of Italian and Supranational Public Law of the University of Milan.

This year’s edition will focus on the following three topics:

– Binding effects and res iudicata in a multilevel dimension (seminars on 8-9-15-16-17-22-23 March 2023);

– Collective redress and group litigation (seminars on 29 March-12-13-19-20-26-27-28 April 2023);

– Main procedural issues of climate litigation (seminars on 3-4-10-11-17-18 May 2023).

The seminars (currently being accredited by the Milan Bar Council) can be followed both face-to-face and remotely, on the MS Teams platform.

All information on the program and how to register may be found here.

Conventions & Instruments

On 1 February 2023, the 1980 Child Abduction Convention entered into force for Botswana. The Convention currently has 103 Contracting Parties. More information is available here.

On 17 February 2023, Azerbaijan deposited its instrument of accession to the 1965 Service and 2007 Child Support Conventions. The 1965 Service Convention, which now has 80 Contracting Parties, will enter into force for Azerbaijan on 1 September 2023, subject to the Article 28 procedure. As for the 2007 Child Support Convention, with the accession of Azerbaijan 46 States and the European Union are now bound by it. It will enter into force for Azerbaijan on 28 February 2024. More information is available here.

Meetings & Events

On 7 and 8 February 2023, the Permanent Bureau of the HCCH co-organised the Regional Conference “The HCCH and the relevance of its work for Southern Africa”, together with Finland and South Africa, with the participation of Namibia and Tanzania, as well as other Southern African Development Community States, and hosted by the University of Pretoria (South Africa). More information is available here.

From 13 to 15 February 2023, the International Transfer of Maintenance Funds Experts’ Group met for the fourth time. Pursuant to its mandate, the Experts’ Group continued its work discussing good practices in relation to the cross-border transfer of maintenance payments, with a view to identifying solutions that are cost-effective, transparent, prompt, efficient and accessible. More information is available here.

From 13 to 17 February 2023, the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation met for the fourth time. Pursuant to its mandate, the Working Group made further progress on the development of draft provisions for a possible future instrument on parallel litigation in civil or commercial matters. More information is available here.

Upcoming Events

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

Vacancies

Applications are now open for three- to six-month legal internships for the period from July to December 2023. The deadline for the submission of applications is 31 March 2023 (18:00 CEST). More information is available here.

 

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

 

Reviewing Sanctions in Arbitration: The Good, the Bad, and the Ugly of Private International Law Analysis

by Naimeh Masumy, [nmasumy@gmail.com]

The growing role of arbitration as a peaceful means for resolving investment, commercial and inter-state disputes is now impacted by an increasing number of sanction regimes borne out of the recent geopolitical conflicts.  Following Russia’s invasion of Ukraine, many regulators across various jurisdictions sought to move towards greater coordination of sanction implementation and enforcement efforts. The recent tranche of sanctions has sparked a debate on the appropriate standards of review that arbitral tribunals ought to apply when dealing with disputes involving sanctions.

In this short note, we look at the case of Sofregaz v. NGSC, which provides a sobering exposition of the challenges faced by the adjudicative bodies when assessing the legality of unilateral Extra-territorial sanctions under international law.  This case concerns the annulment of an arbitral award rendered in Paris 2018 in favor of NGSC, pursuant to the Rules of Arbitration of the International Court of Arbitration of the International Chamber of Commerce (ICC Rules). In 2018, the ICC tribunal found against Sofregaz and awarded NGCS an amount of over USD 2.4 million for an unpaid invoice and down payment drawn by Sofregaz under certain guarantees. Sofregaz applied to set aside the award before the Paris Court of Appeal.  It sought an annulment application based on NGSC’s exposure to US secondary sanction. Sofregaz argued, inter alia, that the tribunal had failed to carry out its mandate and had not considered the impact of sanctions against Iran on the performance of the contract. In Sofregaz’s view, this resulted in an award contrary to French international public policy in that it gave effect to a contract that could not be performed without breaching the designated sanctions. The Court of Appeal dismissed the annulment application brought by the Sofregaz, using private international law analysis to dismiss the legality of U.S. sanctions.

This note will highlight why invoking such a private international law analysis when determining the validity and the scope of applicable sanctions will undermine international arbitration. Then, it will show that such an analysis is inconsistent with the overriding objectives of international arbitration – arguably, the creation of an autonomous dispute resolution system for the effective and expeditious resolution of disputes in a delocalized fashion.

The Relevance of Private International Law Analysis to Arbitration

Private international law provides a judicial tool for courts to address the distinction between forum law and foreign law and promotes a smooth functioning of the international legal regime by mitigating jurisdictional conflicts, especially in a legal relationship involving several applicable laws.  Courts weigh private and public policy concerns of the forum law and foreign law when determining whether to apply the laws of a foreign jurisdiction over the forum law.

Many scholars have strongly advocated the use of private international law analysis in international arbitration. The benefits of such analysis are particularly clear when arbitrators are faced with potentially conflicting laws, similar to the case of Sofregaz v. NGCS. where the tribunal was confronted with three different sets of laws: Iranian law governing the contract, French law as the law applicable at the seat of arbitration, and the U.S. law governing the sanctions regime, albeit extraterritorially imposed, which materially impacted on the performance of a contract. The tribunal did not consider the impact of US sanctions, and rendered an award in favor of NGSC due to the wrongful termination of a contract for the conversion of a gas field.

 In such instances, private international law can operate as a mechanism of localization that permits tribunals to adjudicate in cases involving several legal orders by taking into account important considerations such as overriding mandatory rules at the seat of the arbitral tribunal.

Arbitrators are generally empowered to apply the law deemed “appropriate” or “applicable” in the absence of a governing law clause. Notably, Article 22(3) of the 2020 LCIA Rules also authorizes arbitrators, when determining the lex contractus, to apply the rules of law they deem appropriate. Such approaches can provide objective yardsticks for tribunals exercising their discretion to select the appropriate law. Having objective criteria aids predictability and efficiency and ensures tribunals do not act outside their designated mandates.

This is of particular significance as the uncertainty over the governing law may negatively affect the parties’ due process rights and may lead to the award being issued arbitrarily. Such concern was echoed in the Sofregaz application to set aside the award in 2019, in which it was claimed that the tribunal failed to take into account the impact of U.S. economic sanctions. Thus, that award recognition would be contrary to international public policy (“l’ordre public international”).

The court dismissed the claim observing that the Tribunal did not violate international public policy in failing to consider the impact of U.S. economic sanctions. To this end, the French court defined international public policy as “the body of rules and value whose violation the French legal order cannot tolerate, even in the international context.” In its reasoning, the court heavily endorsed French conflict-of-laws rules to determine the contour of mandatory rules. This approach means that if a tribunal relies on objective criteria to take into account essential regulations of the forum such as domestic and international mandatory law, the final award may remain immune from potential challenges.  In other words, private international law analysis may be a desirable straight jacket to ensure that tribunals comply with regulatory provisions of the forum. As such, it may enable courts to establish trust in arbitration and refrain from inquiring into the merits of final awards.

Conflict of Rules Analysis: Undermining the Delocalization Theory

The delocalization theory of arbitration is a part of the much broader, which posits that international arbitration ought to be completely detached from the procedural and substantive law of the place of arbitration or the seat, or lex loci arbitri, and from national law in general. According to this theory, arbitration is a private activity, which can be considered favorably or unfavorably, but certainly does not need to be empowered by any state ex ante. While this theory found a firm grounding under the French law of international arbitration, in reality, this theory usually carries little weight, especially in enforcing an award that has been challenged. The theory of delocalization begins to wane, as the legal system of the forum country will be the primary source relevant to ascertaining the legal relationship of the final award and the mandatory provisions of the lex fori.

In addition, the New York Convention muddies the waters by making reference to domestic public policy in article V (2) (b) as a ground for non-recognition or enforcement of an award., Based on the literal reading of the Convention, the law of the seat of arbitration usually delineates. Thus, to contextualize international arbitration through the prism of absolute delocalization, a system wholly emancipated from the forum law will pose practical challenges.

The above is of relevance to the role of sanctions for arbitral awards. Private international law is predicated on the notion that the world is divided into nation states and national legal orders. This approach dramatically contrasts with what international arbitration delocalisation theory arguably has long sought: to free arbitration from national orders. According to this view, examining the validity and scope of sanctions through the prism of private international law analysis forces the arbitrator to draw upon domestic law. This, in turn, contravenes the main tenet of delocalization theory, which confirms that arbitration has no forum. Further, the arc of modern arbitration laws arguably negates the relevance of private international law analysis. Modern arbitration laws are mostly substantive laws, and the notions embedded in arbitration are substantially transnational rather than international, which undermines the viability of the private international law analysis.

Private International Law Analysis: A False Aura of Objectivity

Despite the widespread view that private international law provides a roadmap towards a more predictable and objective outcome for disputes involving sanctions, such framework is prone to inconsistent and divergent results. Private international law provides a basis of jurisdiction to apply foreign law when several laws may concurrently apply to the dispute. In doing so, private international law approaches balance competing interests according to notions such as reciprocity, expectation of courtesy and comity. The exact contours of these notions have remained imprecise, as the U.S. Supreme Court noted in the case of Hilton v. Guyot. Courts often draw upon their ideology and values explicitly and implicitly to ascertain comity. Such assessment will inadvertently lead to adjudicators interposing ad hoc political judgments about foreign relations, opening a door for arbitrators to endorse parochial domestic policies to ascertain the legal orders involving international components. This is evident in the French Court’s reasoning, in which the court heldthat “[t]he unilateral sanctions taken by U.S. authorities against Iran cannot be regarded as the expression of an international consensus, since the French authorities dispute the extraterritorial reach of these sanctions”. This assessment was drawn by balancing the interests of French national policies, which denotes that relying on political considerations rather than legitimate international considerations concerning the legality of sanctions will open the door for domestic idiosyncratic views and interpretations, which in turn, will bar this concept to be applied hegemonically across different jurisdictions.

If the governing law of sanctions is determined by private international law, it may pose conceptual difficulties. Sanctions are international instruments hinging on the notion of sovereign equality. The underpinning principle of sovereign equality of states is deeply embedded in one of the main tenants of international law. Any actions impinging on that principle would therefore need to involve considerations of public policy. Public international law must impose limits to the scope and validity of sanctions and to governing law. To this end, using private international law approaches to ascertain the validity of sanctions will negate the character (or nature) of sanctions as a public international law instrument transcending national boundaries

Conclusion

This post has called into question the viability of a private international law analysis in reviewing the scope of the application of sanctions. It has contended that a private international law analysis borrows its genesis from the domestic law of the forum (state). Private international law analysis needs to have sufficient normative weight to scrutinize or inquire into the substance of sanction regimes. Further, invoking private international law principles does not preclude arbitrators from engaging in subjective assessments to examine the applicability of a sanctions regime. By abandoning a private international law analysis, the interpretation and enforceability of sanctions will become more anachronistic and predictable.

 

The Centre for Private International Law is organising an online research seminar on Beyond the Civil – Common Law Divide: Islamic Shari’a Principles in Shari’a Based International Arbitration Disputes on 14 March 2023, 14:00 – 15:30 UK time.

With the global growth in the Islamic finance industry, the conclusion of Islamic finance transactions, and the offering of Islamic finance products in non-Islamic states across the globe, intricate legal questions and applicable law issues have become exceedingly pertinent. It is in this context that the speaker, Prof Dr Mohamed Abdel Wahab, proposes to tackle the interplay between Islamic Shari’a principles and the applicable norms governing Shari’a-based contracts and disputes.

See event details and registration information.

On 3 May 2023, a conference entitled L’estensione dei titoli giurisdizionali del Regolamento Bruxelles Ibis ai convenuti non domiciliate nell’UE will be held at Palazzo Capris, Via Santa Maria 1 in Turin, Italy.

The conference will focus on the possibility of an extension of the jurisdictional rules of the Brussels Ibis Regulation to non EU-defendants. The topic has also been covered by the 3rd project of the EAPIL Young Research Network and the forthcoming book condensing the results of that project will in fact be presented during the conference.

The conference will be held – for the most part – in Italian.

All are welcome to attend the conference in person. Remote attendance is also possible: the link can be requested at ennio.piovesani@unito.it.

The full programme is available here.

The fourth issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Christian Kohler, Honorary Professor at the University of Saarland, Private International Law Aspects of the European Commission’s Proposal for a Directive on SLAPPs (‘Strategic Lawsuits Against Public Participation’)

The Commission’s proposal for a Directive on SLAPPs (‘Strategic lawsuits against public participation’) aims at protecting journalists and human rights defenders who engage in public debates from manifestly unfounded or abusive court proceedings with cross-border implications. Inter alia, it protects SLAPP defendants against judgments from third countries that would have been considered manifestly unfounded or abusive if they had been brought before the courts or tribunals of the Member State where recognition or enforcement is sought, and allows SLAPP defendants to seek compensation of the damages and the costs of the third country-proceedings before the courts of the Member State of his or her domicile. This article examines the conflicts rules in question and discusses the broader private international law context of the proposed Directive, in particular the rules of jurisdiction and the mosaic approach of the CJEU for the interpretation of Article 7(2) of Regulation Brussels Ia. In order to limit the forum shopping potential of the present rules on jurisdiction and applicable law in defamation cases, an intervention by the EU legislature should be envisaged.

Pietro Franzina, Professor at the Università Cattolica del Sacro Cuore, Il contenzioso civile transnazionale sulla corporate accountability (Cross-Border Civil Litigation on Corporate Accountability) [in Italian]

Civil proceedings are brought with increasing frequency against corporations for allegedly failing to prevent or mitigate the adverse impact of their activity on the protection of human rights and the environment. Most of these proceedings are initiated by non-governmental organisations whose activity consists in safeguarding or promoting the collective interests at issue, or otherwise benefit from support provided by such organisations. A cross-border element is almost invariably present in these proceedings, as they often involve persons from different countries and/or relate to facts which occurred in different States. Litigation in matters of corporate accountability is, distinctively, strategic in nature. The aim pursued by those bringing the claim does not consist, or at least does not only or primarily consist, in achieving the practical result that the proceedings in question are meant, as such, to provide, such as compensation for the prejudice suffered. Rather, the goal is to induce a change in the business model or industrial approach of the defendant (and, possibly, of other corporations in the same field or with similar characteristics) and increase the sustainability of their corporate activity at large. The paper gives an account of the factors that determine the impact of the described proceedings, that is, the ability of those proceedings to effectively prompt the pursued change. The analysis focuses, specifically, on the factors associated with the rules of private international law, chiefly the rules that enable the claimant to sue the defendant before the courts of one State instead of another. The purpose of the article is not to examine the latter rules in detail (actually, they vary to a large extent from one State to another), but to assess the strategic opportunities, in the sense explained above, that the rules in question may offer to the claimant, depending on their structure and mode of operation.

The following review and comments are also featured:

Lenka Válková, Researcher at the University of Milan, The Commission Proposal for a Regulation on the Recognition of Parenthood and Other Legislative Trends Affecting Legal Parenthood

The developments in science and changing family patterns have given rise to many problems, including those of non-recognition of parenthood, which affects mostly children of same-gender parents and children in cases of surrogacy. The basic drivers of the current difficulties in recognising parenthood lie in the differences of the national rules on the establishment and recognition of parenthood and the lack of the uniform conflict rules and rules on recognition of judgments in the area of parenthood. Despite the copious case law of CJEU and ECtHR, which plays a crucial role in allowing flexibility in law with regard to parenthood, there is still no legal instrument which provides for a clear framework seeking to outline a consistent and systematic approach in this area. In 2021 and 2022, three important legislative actions have been taken. The Parenthood Proposal for a Regulation on jurisdiction, applicable law, recognition of decisions has been published on 7 December 2022. At the same time, the Final Report of the Experts Group on the Parentage/Surrogacy Project of the HCCH has been issued on 30 November 2022. Moreover, the Report on Review of the Implementation of the European Convention on the Legal Status of Children Born Out of Wedlock has been prepared in November 2021 as a preliminary step to a possible future update of the substantive law provisions of the Convention. All regulatory initiatives are addressed in this article, with a special focus on the Parenthood Proposal. In particular, this article offers a first appraisal of the Parenthood Proposal in light of other two legislative efforts and examines whether the works on international level may eliminate the need for an action concerning recognition of parenthood at EU level.

Stefano Dominelli, Researcher at the University of Genoa, Emoji and Choice of Court Agreements: A Legal Appraisal of Evolutions in Language Methods through the Prism of Article 25 Brussels Ia Regulation

Starting from the consideration that emoji and the alike are becoming increasingly common in computer-based communication, this article transposes current debates in material law surrounding emoji and their aptitude to express intent into the field of choice of court agreement through the prism of Art 25 Brussels Ia Regulation. The aim of this article is to develop some hypotheses and methods for the assessment of emoji in the conclusion of choice of court agreements.

Michele Grassi, Research fellow at the University of Milan, Revocazione della sentenza civile per contrasto con la Convenzione europea per la salvaguardia dei diritti dell’uomo e delle libertà fondamentali (Revocation of a Civil Judgment for Conflict with the European Convention for the Protection of Human Rights and Fundamental Freedoms) [in Italian]

This article comments on the recent reform of the Italian Code of Civil Procedure, with a specific focus on the introduction of the possibility to seek revocation of a civil judgment conflicting with a decision of the ECtHR. The possibility to re-open proceedings in breach of the ECHR was not contemplated by the previous rules applicable to the matter, and the Italian Constitutional Court had excluded that the obligation of Contracting States to conform to the judgments of the ECtHR could imply the need to review national res judicata in civil or administrative law matters. Against this background, this article examines the new mechanism of review of national decisions introduced by the recent reform, pointing out that such mechanism has been designed to apply in limited circumstances and that, consistently with the reparatory perspective adopted by the Italian Constitutional Court, it gives little to no consideration to the obligation of cessation of international wrongful acts consisting in violations of human rights protected by ECHR.

This issue also features an account by Silvia Favalli, Researcher at the University of Milan, Bellini c. Italia: Il Comitato ONU sui diritti delle persone con disabilità si pronuncia sulla situazione dei caregiver familiari in Italia (Bellini v. Italy: The UN Committee on the Rights of Persons with Disabilities on the Situation of Family Caregivers in Italy) [in Italian].

Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Louise MERRETT, Employment Contracts in Private International Law, Oxford University Press, Oxford (2nd ed., 2022) pp. XXXII-329.

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

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

H.-P. Mansel/K. Thorn/R. Wagner: Europäisches Kollisionsrecht 2022: Bewegung im internationalen Familienrecht

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2022 until December 2022. It presents newly adopted legal instruments and summarizes current projects that are making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

 

N. Elsner/H. Deters: Of party requested service by post and courts as transmitting agencies under the EU Service Regulation

On 1 July 2022, the EU Regulation on the Service of Documents No. 1784/20 (Recast) (EU Service Regulation) took effect and changed the law on service by postal services in cross-border proceedings. This calls for a revisiting of the divergent opinions and ways of interpretation of service by postal services according to Art. 14 EU Service Regulation 2007 and its relation to Art. 15 EU Service Regulation 2007. Against this background, this article discusses a decision of the Higher Regional Court Frankfurt (OLG Frankfurt) holding that service by postal services pursuant to Art. 14 EU Service Regulation 2007 is in principle only open to a court when effecting service in cross-border proceedings. A party shall effect service according to Art. 15 EU Service Regulation 2007 by contacting directly the foreign authorities designated to effect service in the other member state.

Firstly, the reasoning of the court and the opinions in legal scholarship on the admissibility of service by postal services effected by parties are assessed critically. Subsequently, the authors propose a different application of Art. 14 and 15 EU Service Regulation 2007 in Germany. It will be argued that the OLG Frankfurt was indeed correct in stating that service by postal services must be effected through a transmitting agency according to Art. 2 EU Service Regulation 2007. Under German law, only courts are considered transmitting agencies. However, this does not preclude parties from effecting this type of service. When parties are required to effect service themselves under German law, they may send the documents to the court, inform the court of the address of the other party and apply for service in accordance with Art. 14 EU Service Regulation 2007. The court then acts as a mere transmitting agency on behalf of the party, and thus, in its administrative capacity.

 

S. Schwemmer: Direct tort claims of the creditors of an insolvent company against the foreign grandparent company

In its ruling of 10 March 2022 (Case C-498/20 – ZK ./. BMA Nederland), the ECJ had to deal with a so-called Peeters/Gatzen-claim under Dutch law brought by the insolvency administrator. The court had already ruled in an earlier judgement that these claims fall under the Brussels I Regulation (recast). So the main question was now where the harmful event occurred within the meaning of Art. 7 para. 2 of the Regulation. The ECJ opts for the seat of the insolvent company, basing its analysis on the differentiation between primary damage and consequential damage. The same analysis is also used to determine the applicable law under the Rome II Regulation. In this context, however, the ECJ examines more closely the specific breach of duty of care to determine whether the claim falls under the scope of the Rome II Regulation or under the rules of international company law.

 

A. Kronenberg: Disapproved overriding mandatory provisions and factual impossibility

Two years after the Higher Regional Court (Oberlandesgericht, OLG) of Frankfurt am Main, the OLG Munich also had to rule on a lawsuit filed by an Israeli against Kuwait Airways. The plaintiff had demanded to be flown from Munich to Sri Lanka with a stopover in Kuwait City in accordance with the contract the parties had concluded. The OLG Munich dismissed the claim with regard to a Kuwaiti Israel boycott law, which, although inapplicable, according to the court had the effect that it was factually impossible for the defendant airline to transport Israeli nationals with a stopover in Kuwait. The ruling shows that in cases of substantive law level consideration of disapproved foreign overriding mandatory provisions the legally required result can be undesirable. However, this result depends on the circumstances of the individual case as well as on certain prerequisites that must be observed when taking into consideration overriding mandatory provisions. The article sets out these prerequisites and shows why the OLG Munich probably should have ordered the defendant to perform its obligation. It also explains why, in cases in which factual impossibility indeed exists, the result of the dismissal of the action most likely cannot be changed even by enacting a blocking statute.

 

C. Thomale/C. Lukas: The pseudo-foreign British one man-LLC

The Higher Regional Court of Munich has decided that a Bristish one man-LLC, which has its real seat in Germany, under German conflict of laws and substantive rules lacks legal personality altogether. This case note analyzes this decision’s implications for the conflict of company laws, notably for the interpretation of the TCA and application of the so-called “modified real seat theory”.

 

M. Brinkmann: Discharge in England and subsequent declaratory judgement against debtor in Germany – Binding effects of judgement trump recognition of prior bankruptcy proceedings

The Higher Regional Court Düsseldorf (OLG Düsseldorf) had to decide upon an action for the payment of damages based on a declaratory judgement. The declaratory judgement had established the defendant’s liability and was, at the time, not challenged by the defendant. In his defense against the action for payment the defendant now tries to invoke a discharge, which he had already obtained in insolvency proceedings in the UK in March 2012, i.e. prior to the declaratory judgement.

The OLG argued that under the applicable EIR, the English insolvency proceedings were, in principle, subject to automatic recognition. Under Art. 17 EIR 2002, these proceedings produce the same effects in all Member States. The OLG Düsseldorf nevertheless precluded the defendant from invoking the discharge. As the English bankruptcy proceedings were concluded before the action for the declaratory judgement was initiated, the defendant should have invoked the discharge already in the proceedings that led to the declaratory judgement in March 2013.

The OLG correctly found that the declaratory judgement was procedurally binding between the parties and hence barred the defendant from invoking the discharge in subsequent proceedings.

 

M. Andrae: Modification or suspension of enforcement of a decision under Article 12 of the Hague Child Abduction Convention?

The article discusses which procedural options exist if, after a final decision pursuant to 12 Hague Convention on the Civil Aspects of International Child Abduction, circumstances arise which would justify the refusal of an application for the return of the child. A procedure to change the decision is only permissible if the international jurisdiction of the German courts exists. For child abduction from EU Member States, this is determined in principle according to Art. 9 of the Regulation (EU) n 1111/2019 and for child abduction from other Contracting States of The Hague Protection of Children Convention according to Art. 7 of the Convention. As long as jurisdiction thereafter lies with the courts of the state in which the child was habitually resident immediately before the removal or retention keep, the German courts are limited to ordering the temporary stay of enforcement.

 

J. Oster: Facebook dislikes: The taming of a data giant through private international data protection law

Just as the Data Protection Directive 95/46/EC, the General Data Protection Regulation (GDPR) suffers from a deficit concerning both its public and its private enforcement. Among other things, this deficit is owed to the fact that European data protection law still raises many questions regarding jurisdiction and the applicable law. In its interlocutory judgment that will be discussed in this article, the Rechtbank Amsterdam established its jurisdiction and declared the GDPR as well as Dutch data protection and tort law applicable to a lawsuit by the Dutch Data Protection Foundation for alleged violations of rules of data protection and unfair competition. This article agrees with the Rechtbank’s findings, but it also draws attention to weaknesses in its reasoning and to unresolved questions of European private international data protection law.

On 24 February 2023, the Dutch Supreme court has ruled in the case Willemen Infra v Jura, ECLI:NL:HR:2023:313. The ruling clarifies the scope of the Dutch courts’ duty to apply the CISG (UN Convention on Contracts for the International Sale of Goods, 1980) ex officio on appeal. The Dutch appellate courts shall not review of their own motion whether the first instance court had to apply the CISG to the dispute, if the question of governing law was not the subject of parties’ objections on appeal and thus got “beyond the parties’ dispute”.

Facts

The facts of this case related to a sale of gutters by a Dutch seller to a Belgian buyer. The gutters were to be used for the renovation of a runway at Zaventem airport. According to the seller’s general terms and conditions, the disputes were to be resolved before a Dutch court on the basis of Dutch law.

After the start of performance, the buyer had reasons to assume that that the seller was unable to timely supply the products of the required quality. The buyer refused to take all the purchased gutters.

Proceedings

The seller disagreed and claimed damages for the loss of profit caused by the breach of contract. In the proceedings, the buyer submitted a counterclaim, invoking partial avoidance of contract and, alternatively, nullity of contract due to vitiation of consent. The buyer submitted namely that it had concluded the contract based on misrepresentation relating to the products’ quality (the certificates which the products should have) and the delivery time.

The seller relied on both the CISG and Dutch law in its written submissions, including the statement the choice for Dutch law in the general terms and conditions should be interpreted as excluding the application of the CISG. During the oral hearing, both parties referred to Dutch law only (see on this the Conclusion of the Advocate General, at [3.4]). The first instance court ruled as follows in relation to applicable law: ‘According to the [seller], the contract is governed by Dutch law. (…) ‘The court contends that [the buyer] also relies on Dutch law in its arguments, and thus follows [the seller’s] reasoning. The court follows the parties in this and shall apply Dutch law.” (the formulation is quoted in Willemen Infra v Jura at [4.3.1], compare to Advisory Council’s Opinion nr 16). The court has then applied the Dutch civil code, not the CISG, to the dispute.

The seller appealed against the decision, but not against the applicable law. Nevertheless, the appellate court considered of its own motion, whether the contract was governed by the CISG. It ruled that the contract fell under the CISG’s scope; the Convention was directly applicable on the basis of article 1(1)(a) CISG, as both Belgium and the Netherlands are Contracting States to CISG. Furthermore, the parties to the dispute have not explicitly excluded the CISG’s application based on article 6. The appellate court has applied the CISG to the contractual claim, and Dutch law – to the claim relating to the vitiation of consent, as this matter falls outside the Convention’s scope. The buyer has labelled the application of the CISG ‘surprising’, because no claim in appeal targeted applicable law.

In cassation, the Dutch Supreme has ruled that applicable law was indeed “beyond the parties’ dispute” on appeal. Therefore, the appellate court was thus neither free to determine applicable law anew nor free apply CISG of its own motion (Willemen Infra v Jura at [2.1.2]- [3.1.6]).

CISG and procedural ordre public?

The ruling is logical from the point of view of civil procedure. Appellate review follows up on – and is limited by – the points invoked on appeal. Issues “beyond the parties’ dispute” are not reviewed, unless these issues fall under the rules of procedural ordre public, which the appellate courts must apply of their own motion. While there is no unanimously accepted definition of the Dutch procedural ordre public, the cassation claim explicitly suggested that ‘the CISG is not of ordre public’ (see Conclusion of the Advocate General, at [3.3.]). Whereas this element of the cassation claim has been satisfied, neither the Advocate General nor the Court have engaged with the discussion whether procedural ordre public does not cover the direct application (or applicability) of the Convention’s uniform substantive sales law, even if it would be confined to establishing whether the parties have opted-out the CISG based on its article 6.

Singapore’s Reciprocal Enforcement of Commonwealth Judgments Act 1921 (‘RECJA’) is based on the UK Administration of Justice Act 1920 and its Reciprocal Enforcement of Foreign Judgments Act 1959 (‘REFJA’) is based on the UK Foreign Judgments (Reciprocal Enforcement) Act 1933. In 2019, the government amended the REFJA in significant ways (previously detailed here), expanding its scope to include the registration of judgments from non-superior courts of gazetted countries, judicial settlements, non-money judgments and interlocutory judgments. At the same time, the RECJA was repealed from a date to be determined by the government.

That date has now (very nearly) arrived. The RECJA will be repealed on 1 March 2023. When the REFJA was amended in 2019, the intention at that time was to transfer over the countries gazetted under the RECJA gradually to the newly amended REFJA, with negotiations conducted on a country-by-country basis to determine what reciprocal arrangements would be suitable in each case. Only HK SAR has ever been gazetted under the REFJA. On 1 March 2023, it will be joined by Brunei Darussalam, Australia, India, Malaysia, New Zealand, Pakistan, Papua New Guinea, Sri Lanka and the United Kingdom of Great Britain and Northern Ireland (see here). These countries were previously gazetted under the RECJA. An omission is the Windward Islands, which does not appear in the new list. The list now also includes all the States of India; previously the State of Jammu and Kashmir were excluded under the RECJA.

Of particular note, however, is that the terms of the reciprocal arrangements generally remain the same as under the RECJA. Only money judgments rendered by the superior courts of the gazetted countries which are final and conclusive between the parties can be registered under the REFJA. Clearly, the full promise of the REFJA – with its potential for a wider range of foreign judgments to be registered under its scope – will have to be realised another day.

Written by Georgia Antonopoulou (Birmingham Law School) & Xandra Kramer (Erasmus University/Utrecht University; research funded by an NWO Vici grant, www.euciviljustice.eu).

We are grateful to Nicolas Kyriakides (University of Nicosia) for providing us with very useful information.

The Novel Commercial Court and Admiralty Court in Cyprus

New courts geared to dealing with international commercial disputes have been established in Europe, the Middle East and Asia, as has also been reported in earlier blogposts in particular on Europe (see, among others, here and here). They have various distinctive features such as the focus on cross-border commercial disputes and the use of the English language as the language of court proceedings. It seems that Cyprus will soon be joining other European countries that have established such courts in recent years, including France, the Netherlands, and Germany.

In May 2022, the House of Representatives in Cyprus passed Law 69(I)/2022 on the Establishment and Operation of the Commercial Court and Admiralty Court. The law creates two new specialised courts, namely the Commercial Court and Admiralty Court, focusing on commercial and maritime law disputes respectively. The courts were planned to open their doors on 1 January 2023. However, the Supreme Court of Cyprus, which is responsible for administrative matters, requested an extension and the courts are expected to be operational in July 2023 (see here).

According to the preamble to this Law, the establishment of these specialised courts aims at expediting the resolution of disputes and improving the efficiency of the administration of justice. In addition, the Courts’ establishment is expected to enhance the competitiveness of Cyprus, attract foreign investment, and contribute to its overall economic development. Similar arguments have been put forward in other European countries, notably in the Netherlands (Kramer & Antonopoulou 2022).

The Cypriot Commercial Court shall have jurisdiction to determine at first instance any type of commercial dispute, provided that the amount in dispute or the value of the dispute exceeds 2,000,000 Euros. The law defines commercial disputes broadly and offers an indicative list of such disputes for which the court has jurisdiction. The Commercial Court shall also have jurisdiction over competition law disputes, intellectual property law disputes, and arbitration related matters irrespective of the value of the dispute. The Commercial Court shall have territorial jurisdiction over disputes that have arisen, in part or wholly in Cyprus, as well as over defendants residing in Cyprus. In cross-border disputes parties can agree on the court’s jurisdiction in a choice of court agreement. Typically, the Brussels I-bis Regulation would apply to determine the validity of such clause. At the request of at least one party and in the interest of justice, the court shall accept procedural documents in English and shall conduct hearings and publish judgements in English. The Commercial Court will consist of five judges drawn from the Cypriot judiciary based on their expertise in commercial law disputes and practices and their English language skills.

A Genuine International Commercial Court for Cyprus?

While the definition of an international commercial court is open to interpretation and there are different types of international commercial courts (Bookman 2020; Dimitropoulos 2022), the Commercial Court’s specialised focus on high-value commercial disputes as well as the option to litigate in English suggest that Cyprus has just added itself to the growing number of countries that have established an international commercial court in recent years (see also Kramer & Sorabji 2019). This possibility of English-language court proceedings is a key feature of these new courts. However, the degree to which this is possible differs per country. The Netherlands Commercial Court (NCC) uses English throughout the proceedings apart from cassation at the Supreme Court. Due to the lack of a relevant constitutional provision, the use of the English language in NCC court proceedings was made possible by including a new provision in the Dutch Code of Civil Procedure. By contrast, the German Chambers for International Commercial Disputes and the Paris International Chambers limit the use of English in court to documentary evidence or oral submissions and on the basis of a lenient interpretation of existing rules. Cyprus is the first country in Europe that amended its constitution with a view to permitting the use of the English language in court proceedings. The new Article 4(3)(b) provides that the Commercial Court and the Admiralty Court as well as the higher courts ruling on appeals may allow the use of English in court including oral and written submissions, documentary evidence, witness statements and the pronouncement of judgements or orders. In addition, unlike other international commercial courts established as chambers or divisions within existing courts the Commercial Court in Cyprus is structured as a self-standing court. Its jurisdiction is not exclusively limited to cross-border disputes but extends to domestic disputes with territorial links to Cyprus. The court’s focus on both cross-border and domestic disputes might be explained by the objective to accelerate trials and increase the efficiency of public court proceedings especially with regard to disputes related to the financial crisis and its aftermath.

The Reasons for Creating the Cypriot Commercial Court

The establishment of international commercial courts in Europe and in Asia has been thus far mainly driven by access to justice and economic considerations. International commercial courts aim at improving commercial dispute resolution by offering litigating parties specialised, faster, and therefore better court proceedings. It has been also underpinned by the aim of improving the business climate, attracting foreign investment, and creating litigation business.

In line with these considerations, Law 68(I)/2022 reiterates the benefits of a specialised commercial court both for the Cypriot civil justice system and the economy. Despite these similarities between the reasons driving the worldwide proliferation of international commercial courts and the establishment of a commercial court in Cyprus, the Cypriot context is slightly different. The financial crisis suggests that the Cypriot international commercial court is also part of a broader array of measures aimed at meeting the particular dispute resolution demands following the crisis (see also Mouttotos 2020). The establishment of the Commercial Court in Cyprus therefore indicates that international commercial courts might no longer be seen as a luxury available to the few countries willing and able to participate in a global competition of courts, but also as an essential measure for countries aiming to recover from a financial crisis. Yet, whether specialised courts bring about direct economic benefits or if they only indirectly benefit national economies by signalling to foreign investors a well-functioning justice system remains open to debate (among others Farber 2002; Coyle 2012).

 

The American Society of International Law (ASIL) is looking for a Director of Programmes (responsible for the oversight of the Society’s Programs Department, including major conferences, educational programming, substantive Interest Group activities, international organization engagement, and international law career training) and a Director of Finance and Administration (leading all aspects of the Society’s financial and human resources operations and oversees its general administrative operations, in partnership with the Executive Director).

More information is available on their Career opportunities page.

The first issue of Lloyd’s Maritime and Commercial Law Quarterly for 2023 was just published today. It contains the following articles, case notes and book review on private international law:

S Matos, “Jurisdiction, Admissibility and Escalating Dispute Resolution Agreements”

M Phua and M Chan, “The Law Governing whether an Arbitration Agreement binds a Non-party”

Lord Hodge, “The Rule of Law, the Courts and the British Economy”

Rt Hon Sir Geoffrey Vos MR, “The Economic Value of English Law in Relation to DLT and Digital Assets” 

Adrian Briggs KC, Life and Cases: Manuscript of an Autobiography. Frederick Alexander Mann, edited by Wolfgang Ernst. V&R unipress; Bonn University Press (2021) xvi and 230pp. plus 1 p. Bibliography. Hardback £36.99.

A couple of weeks ago, I had the pleasure of speaking about the scope of application of the Digital Services Act (DSA) and Digital Markets Act (DMA), which together have been labelled the ‘European constitution for the internet’, at an event at the University of Strasbourg, organized by Etienne Farnoux and Delphine Porcheron. The preprint of my paper, forthcoming at Dalloz IP/IT, can be found on SSRN.

Disappointingly, both instruments only describe their territorial scope of application through a unilateral conflicts rule (following a strict ‘marketplace’ approach; see Art. 2(1) DSA and Art. 1(2) DMA), but neither of them contains any wider conflicts provision. This is despite the many problems of private international law that it raises, e.g. when referring to ‘illegal’ content in Art. 16 DSA, which unavoidably requires a look at the applicable law(s) in order to establish this illegality. I have tried to illustrate some of these problems in the paper linked above and Marion Ho-Dac & Matthias Lehmann have also mentioned some more over at the EAPIL Blog.

Unfortunately, though, this reliance on unilateral conflicts rules that merely define the scope of application of a given instrument but otherwise defer to the general instruments of private international law seems to have become the norm for instruments regulating digital technology. It can be found, most famously, in Art. 3 of the GDPR, but also in Art. 1(2) of the P2B Regulation, Art. 3(1) of the proposed ePrivacy Regulation, and in Art. 1(2) of the proposed Data Act. Instruments that have taken the form of directive (such as the DSM Copyright Directive) even rely entirely on the general instruments of private international law to coordinate the different national implementations.

These general instruments, however, are notoriously ill-equipped to deal with the many cross-border problems raised by digital technology, usually resulting in large overlaps between national laws. These overlaps risk to undermine the regulatory aims of the instrument in question, as the example of the DSM Copyright Directive aptly demonstrates: With some of the most controversial questions having ultimately been delegated to national law, there is a palpable risk of many of the compromises that have been found at the national level to be undermined by the concurrent application of other national laws pursuant to Art. 8 I Rome II.

The over-reliance on general instruments of PIL despite their well-established limitations also feels like a step back from the e-Commerce Directive, which at least made a valiant attempt to reduce the number of national laws, although arguably not at the level of the conflict of laws (see CJEU, eDate, paras. 64–67). The balance struck by, and underlying rationale of, the e-Commerce Directive can certainly be discussed – indeed, given its importance for the EU’s ambition of creating a ‘Digital Single Market’, it should be. The drafting of the DSA/DMA package would arguably have provided the perfect opportunity for this discussion.

on: ‘JUSTIFYING CONCURRENT CLAIMS IN PRIVATE INTERNATIONAL LAW‘.

Written by Sagi Peari and Marcus Teo, the article analyses whether claimants can choose between contract and tort claims arising on the same facts with different jurisdictional and/or choice-of-law consequences. While domestic legal systems generally recognise a concurrent liability,  commentators object that its extension to private international law would be unprincipled and would threaten the field’s values. This, however, contrasts with the position in common law and under EU Regulations, where concurrent claims are generally recognised with only narrow limits. This article justifies concurrent claims in private international law, arguing that the same premises supporting concurrent liability in domestic law exist in private international law and that no field-unique concerns foreclose it.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 23 February 2023 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is the Right to Child Support within the international framework – Mexico and the United States of America and will be presented by Claudia Sierra Martínez of the Mexican Ministry of Foreign Affairs (SRE) (in Spanish).

By way of context, please note that Mexico is not yet a party to the 2007 HCCH Child Support Convention but the United States is. On the other hand, Mexico is a party to the Inter-American Convention on Support Obligations and the United Nations Convention on the Recovery Abroad of Maintenance but the United States is not. Faced with this conundrum and given the great number of Child Support cases between these two countries, other solutions have been made available (think for example of US domestic law / bilateral practices).

The details of the webinar are:

Link: https://us02web.zoom.us/j/87996362538?pwd=QjNuZThqNUpTVHQ3cFZaZ1BXZ0YzQT09

Meeting ID: 879 9636 2538

Password: AMEDIP

Participation is free of charge.

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

Family disputes constitute the majority of cases of cross-border nature. The free movement of people within the European judicial space and the integration of third-country nationals has created a considerable number of multinational family structures, that give rise to a significant number of legal disputes, leading to complex conflict of law issues. It is no coincidence that in the area of family disputes one could identify the most extended number of EU legislative initiatives, from Regulation 1347/2000 (Brussels II Regulation) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, followed by the “successors”, i.e., Regulation No 2201/2003 (Brussels IIa Regulation) and Regulation 2019/1111 (Brussels IIb Regulation), Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, Regulation 1259/2010 (Rome III Regulation) on the applicable law to divorce and legal separation, as well as and Regulations 2016/1103 and 2016/1104 on international jurisdiction, applicable law, recognition and enforcement of decisions in matters of matrimonial property regimes and, registered partners, respectively, covering the maximum scope of personal or property family disputes. It is also notable that, as concluded after examining the data kindly brought to our attention by the Thessaloniki Court of First Instance Department of Publications, out of one hundred court judgments related to international law issued in the year 2022 by the above mentioned Court, approximately 70% of them concerned family disputes in a broader sense, either within the EU, or related to third countries, demonstrating the importance of the matter in practice.

Cross-border family disputes are the Focus of the current issue and were examined in an online conference of Lex and Forum (8.12.2022), under the Presidency of the Supreme Court Judge, Ms. Evdoxia Kiouptsidou-Stratoudaki. The topics of the conference concern the international jurisdiction on matrimonial and child custody disputes according to Regulation No 2019/1111, by Ioannis Delikostopoulos, Professor at the Faculty of Law of the University of Athens; the practical problems of the application of the Regulations for family disputes and parental custody disputes, by Ms. Aikaterini Karaindrou, Judge at the First Instance Court; the agreements on the exercise of parental care according to Regulation No 2019/1111 and their relationship with Greek law, by Aikaterini Fundedaki, Professor at the Law Faculty of the University of Thessaloniki; Law No 4800/2021 and the harmonization of the Greek legal provisions with international law, by Ioannis Valmantonis, Judge at the Court of Appeal, and the new Hague Convention for the protection of adults, by Dr. Vasileios Sarigiannidis, Head of the Private International Law Department at the Hellenic Ministry of Justice.

The present issue also contains case comments on the CJEU judgment, 15.11.2022, Senatsverwaltung/TB, on the recognition of dissolution of marriage from another member state, by Dr. Apostolos Anthimos; the CJEU judgments, 15.11 .2021, ??/FA and 10.2.2022, OE/VY, on the concept of habitual residence and, respectively, the importance of the length of residence of the claimant in a member state for the establishment of international jurisdiction under the Brussels IIa/b Regulation, by Paris Arvanitakis, Professor at the University of Thessaloniki, and . Stefania Kapaktsi, Judge at the Court of First Instance; the Greek Supreme Court judgment No 30/2021 on the declaration of enforceability of a foreign decision on the distribution of the spouses’ common property, by Dr. Apostolos Anthimos; the Greek Supreme Court cases No 48/2021 and 54/2021 on international child abduction, by Ioannis Valmantonis, Judge at the Court of Appeal; the judgment of the Thessaloniki First Instance Court No 1285/2022, on the temporary regulation of contact rights according to the Brussels IIb Regulation and the 1996 HAGUE Convention, by Professor Delikostopoulos, and the German Supreme Court judgment dated from 29.9. 2021, on the non-opposition to public order of a marriage performed by a proxy, with a note by Dr. Anthimos. The jurisprudence section also contains the CJEU decisions, 22.4.2022, Volvo/RM, regarding the temporal scope of the Directive No 2014/104 and their incorporation into substantive or procedural EU law, accompanied by the Opinion of the Advocate General, Mr. Athanassios Rantos, with a case comment by Dr. Stefanos Karameros, PhD, and the Court of First Instance case No 13535/2019, on the possibility of implicit prorogation of jurisdiction in case of provisional measures in the Brussels Ia Regulation, despite a contrary agreement, with a case comment by Ioanna Pissina, PhD Candidate.

The issue is completed with the Praefatio by Vassilios Christianos, Emeritus Professor at University of Athens, and former Director of the Center of International and European Economic Law, regarding the contribution of the comparative method to EU procedural law; the expert opinion by Dimitrios Tsikrikas, Professor at the Athens Faculty of Law, on the scope of application of choice-of-court agreements in bond loans and interest rate contracts; and finally, the analysis of practical issues on the recognition of foreign divorce decrees, focusing on the difficulties of the applicants to prove the finality of the foreign decision (L&F Praxis), by Dr. Anthimos.

[editorial prepared by Professor Paris Arvanitakis, scientific director of Lex & Forum]