Conflictoflaws

On Tuesday, March 7, 2023, the Hamburg Max Planck Institute will host its 31st monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CET). Dário Moura Vicente (University of Lisbon) will speak, in English, about the topic

Investment Arbitration – Lost in the Bermuda Triangle of EU Law, Public International Law and Private International Law?

The presentation will be followed by 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.

MPI is sending an invitation to its virtual workshop on the topic of “Investment Arbitration – Lost in the Bermuda Triangle of EU Law, Public International Law and Private International Law?”, which will be presented by Professor Dário Moura Vicente, University of Lisbon.

As a part of the series “Current Research in Private International Law”, the workshop will take place online via Zoom, on Tuesday, 7 March 2023 at 11:00 a.m. (CET). Registration for the workshop is possible at this LINK.

More information is available here.

Written by Nicolás Zambrana-Tévar LLM(LSE) PhD(Navarra), Associate Professor KIMEP University (Kazakhstan), n.zambrana@kimep.kz

There has recently been a new and disappointing development in the saga of the Sánchez-Hill, a Spanish-Cuban-US family who filed a lawsuit before Spanish courts against a Spanish Hotel company (Meliá Hotels) for unjust enrichment. Meliá is exploiting several hotels located on land owned by Gaviota S.A., a Cuban company owned by the Republic of Cuba. That land was expropriated by Cuba without compensation, following the revolution of 1959.

In 2019, the First Instance Court of Mallorca (Spain) held that the lawsuit was a means to circumvent the sovereign immunity of Cuba, given the fact that, in order to decide on the right to compensation of the claimants for the unjust enrichment of the defendant, the court would allegedly have to decide on the lawfulness of a sovereign act – i.e. expropriation –, because only if the expropriation had been unlawful could the defendant be exploiting land which did not belong to Gaviota but to the claimants. The court held that the claimants were also arguing that they had a right in rem – such as property or possession – over assets of a sovereign state and that such assets were also protected by the rules of sovereign immunity. This alone would have been enough to dismiss the lawsuit but, unnecessarily, the court added that it did not have jurisdiction to decide about property rights concerning real estate assets located outside Spain.

The Court of Appeal of Mallorca disagreed with the lower court. It held that sovereign immunity was not an issue because Cuba had not been named a defendant in the claim. Besides, Spanish courts had jurisdiction because Spain was the place of the domicile of the defendant and the claim was one of unjust enrichment – i.e. a claim in tort –, not one whose subject matter was the existence or scope of a right in rem over a real estate asset. In brief, the claimants were not asking Cuba to give back their land and were not asking monetary compensation neither from Cuba nor from Gaviota.

Meliá then filed a motion arguing that the claim was an attempt to eschew the EU Blocking Statute meant to prevent the effectiveness of US court rulings against EU companies, under the Helms-Burton Act of 1996. The defendants further requested that the matter be taken to the European Court of Justice for a preliminary ruling on the scope and correct interpretation of the Blocking Statute. The CJEU may have taken years to issue such a ruling but the Spanish First Instance Court denied the motion.

Later on, Meliá filed another motion requesting that Gaviota and the Republic of Cuba be joined to the lawsuit (exceptio plurium litisconsortium) and the First Instance Court granted the motion on the basis, once again, that any ruling on unjust enrichment would previously and necessarily require a decision about the property rights of Gaviota and Cuba, which should therefore be heard in the Spanish proceedings. Probably making a very serious strategic mistake, the claimants did not appeal this decision of the First Instance Court and agreed to join Gaviota and Cuba to their claim with the result that, last January 2023, the First Instance Court once again dismissed the lawsuit on grounds of sovereign immunity, given the fact that, now, a sovereign entity is in fact a defendant in the proceedings.

In the meantime, the Cuban Government had been correctly notified and had claimed that it enjoyed sovereign immunity before foreign courts. Beyond that, Cuba never made an appearance in the proceedings but Gaviota did, requesting that the proceedings be stayed on the basis that it also enjoyed sovereign immunity. Besides, the Spanish Government had also issued a report requested by Spanish law, indicating that the Cuban acts of expropriation must indeed be considered acts iure imperii.

The potential implications of a claimants’ improbable victory for the Spanish tourism industry in Cuba are worrisome but, above all, this muddled and already long-lasting lawsuit has given rise to much interest among Spanish scholars, especially conflict of laws specialists. The 2019 decision of the First Instance Court was criticised for applying the doctrine of sovereign immunity in the absence of a sovereign defendant – e.g. something much more similar to the Act of State doctrine, which has no place in Spanish law – and for confusing an action in rem with an action in personam. That initial ruling of the First Instance Court may have also inappropriately mentioned and relied on immunity from execution against property of a sovereign state, which is mostly relevant in enforcement proceedings.

Now, however, the Spanish First Instance Court apparently feels vindicated because its recent an relatively short ruling reiterates verbatim practically everything it said in its 2019 decision. The judge also warns the claimants that they had the chance to appeal the ruling granting the motion to join Gaviota and Cuba but did not do so, which means that such decision is now res judicata. The logic of the argument is somewhat baffling. The judge initially dismissed the claim on grounds of sovereign immunity, despite the fact that no sovereign was a party. Then, the judge requested that the sovereign be joined as a party and, when the claimant yielded and did so, the judge once again dismissed the claim on grounds of sovereign immunity.

The key to this stage of the proceedings may have been the joinder of Gaviota and Cuba to the claim. Arguably, it was not necessary to do so. In Spanish law, the exceptio plurium litisconsortium can be raised in certain cases provided by statute as well as in certain cases provided by case law. Whenever there is a plurality of parties to the same legal relationship, which is the subject-matter of the proceedings, a joinder is obligatory as a condition for a decision on the merits, based on the inseparable nature of that legal relationship. Its justification lies in the right to be heard of all those who might be affected by the ruling on the merits. A joinder is not necessary when the ruling only affects certain individuals or entities in an indirect manner. In the case at hand, the parties to the unjust enrichment are Meliá, i.e. the party who has allegedly enriched itself at the expense of the other party, i.e. the claimants. Cuba is therefore not a party to the alleged unjust enrichment. Moreover, any findings of Spanish courts concerning the unlawfulness of the expropriation would have no bearing on the property rights of Cuba over that land.

In fact, Spanish courts are no strangers to litigation related to the Cuban nationalisation program and, on several occasions, the Supreme Court has taken into consideration the unlawfulness of that nationalisation process with respect to, for instance, ownership rights over trademarks registered in Spain, emphasising that it is not for Spanish courts to decide on such lawfulness but that they can accept or reject some of the extraterritorial effects of the sovereign acts of the foreign state in the territory of the forum. In those cases, the Supreme Court said that the Cuban nationalization was against the public policy of Spain because of the absence of due process and compensation. However, the Supreme Court added that the applicable law to property rights over trademarks registered in Spain was Spanish law, not Cuban law.

The Sánchez-Hill family has just a few more days left to appeal this new decision of the First Instance Court, in proceedings which may potentially have opened a new venue for victims of the Cuban revolution, given the EU Blocking Statute and given the fact that, since the end of the suspension of Title III of the Helms-Burton Act, claims before US Federal Courts based on that piece of legislation have not been very being successful.

 

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

Update of 15 February 2023: New entries are printed bold.

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

 

I. Explanatory Reports

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

 

II. Bibliography

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Part 13: JCA 2022-03, pp. 44-51

Part 14: JCA 2022-05, pp. 58-55

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

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

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

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

 

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

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

 

The second issue of 2022 of Giustizia Consensuale (published by Editoriale Scientifica) has just been released, and it features:

Ferruccio Auletta and Alberto Massera, Giustizia consensuale e p.a.: l’accordo bonario per i lavori, i servizi e le forniture nel quadro degli ‘altri rimedi alternativi all’azione giurisdizionale’ (Consensual Justice and Public Administration: The Amicable Agreement for Jobs, Services and Supplies in the Framework of ‘Other Alternative Remedies to Court Proceedings’; in Italian)

The paper examines the present state of the Amicable Agreement. Along with other alternative dispute resolution tools, such as the technical advisory board, arbitration, and negotiated settlements, the Amicable Agreement provides an alternative to litigation in the area of public procurement. Thanks to their experience in the field of public procurement within the Arbitration Chamber of public contracts of the Italian National Anticorruption Authority, the authors incorporate a practitioner’s perspective into their analysis of the Amicable Agreement by referring to case law and to a broad range of doctrinal and legal sources.

Paolo Duret, Soft law, ADR, sussidiarietà: una triade armonica (Soft Law, ADR, Subsidiarity: A Harmonic Triad; in Italian)

The present era is witnessing the simultaneous development of two phenomena: on the one hand, the steady increase in the use of the called soft law, which has expanded from the domain of international law to domestic legal systems; on the other hand, the widespread resort to instruments of dispute resolution that are alternative to litigation (ADR). The paper aims at assessing and examining the connection between soft law and ADR, both in a retrospective and prospective view, focusing in particular on emerging issues such as the recourse to ‘nudging’ and new technologies, along with forms of Online Dispute Resolution (ODR). The principle of subsidiarity acts as a common denominator between the two aforementioned phenomena. In particular, it allows shedding light on the meaning and implications of the relationship between soft law and ADR within the framework of a novel understanding of the State and public administration.

Roberto Bartoli, Una breve introduzione alla giustizia riparativa nell’ambito della giustizia punitiva (A Brief Introduction to Restorative Justice in the Context of Punitive Justice; in Italian)

Restorative justice and punitive justice belong to different paradigms. Therefore, understanding this paradigm shift is key to the understanding of restorative justice itself. Through a ‘close’ comparison between these two paradigms, the author aims to capture the distinctive features of restorative justice in the context of criminal offences, i.e. community justice, dialogic justice, justice that attempts to heal the pain caused by criminal wrongdoing, and non-violent justice. Restorative justice has the potential to foster revolutionary change, especially in instances where restorative justice can provide a procedural tool that is complementary to punitive justice and a material alternative to punishment.

Beatrice Zuffi, Azione di classe e ADR: un binomio in via di definizione (Class Action and ADR: A Pairing in the Making; in Italian)

The paper provides a comparative review of selected legal systems (namely: the U.S.A., the Netherlands, and Belgium) which are at the forefront of fostering the use of ADR in compensatory class actions through laws and regulations. The author then analyses the Italian legislation on class action introduced by Law No 31 of 2019, focusing in particular on the solutions adopted to promote settlement agreements and assessing the feasibility of other alternative dispute resolution methods, such as mediation, negotiation, and arbitration in connection with or in lieu of the three-phase trial under Art. 840 bis ff. of the Italian Code of Civil Procedure.

 

Observatory on Legislation and Regulations

Mauro Bove, I verbali che concludono la mediazione nel d.lgs. n. 149 del 2022 (Mediation Reports under Legislative Decree No 149 of 2022; in Italian)

The paper analyses the discipline of mediation reports under Legislative Decree No 149 of 2022, highlighting its conformity to the provisions of Legislative Decree No 28 of 2010. The author outlines the features and scope of the procedures applicable to instances where a mediated settlement is not achieved and instances where mediation results in a settlement agreement to be included in the mediation report. In particular, the author examines the innovative regulation of mediation reports, which requires the use of digital signatures where mediation takes place online.

Alberto M. Tedoldi, La mediazione civile e commerciale nel quadro della riforma ovvero: omeopatia del processo (Civil and Commercial Mediation in the Framework of the Reform: Homeopathy of the Process; in Italian)

The essay focuses on and looks to expand the knowledge of civil and commercial mediation as regulated by Legislative Decree No 28 of 2010 amended by Legislative Decree No 149 of 2022. The legislative provisions appear to foster the use and development of mediation as a full-fledged dispute resolution process, beyond its function as a tool complementary to litigation. In this, mediation provides an appropriate and comprehensive dispute resolution instrument which addresses the legal relationship in its entirety, rather than the single components of res in judicium deducta, and allows achieving an all-round, durable settlement. ‘The civil process is dead, long live the mediation!’.

Pietro Ortolani, The Resolution of Content Moderation Disputes under the Digital Services Act

Online content on social media platforms gives rise to a wide range of disputes. Content moderation can thus be understood as a form of online dispute resolution, whereby the platforms often balance legal entitlements against each other. This article looks at content moderation through the lens of procedural law, providing an overview of the different dispute resolution avenues under the Digital Services Act (DSA). First, the article sets the scene by describing the overall architecture of the DSA. Against this background, specific provisions are scrutinized, dealing with notice and action mechanisms, statement of reasons, internal complaint handling, and out-of-court dispute settlement. Furthermore, the article considers the interplay between the DSA and the European regime of cross-border litigation. Finally, some general conclusions are drawn regarding the DSA’S ‘procedure before substance’ regulatory approach.

 

Observatory on Practices

Antonio Briguglio, Conciliazione e arbitrato. Contaminazioni (Conciliation and Arbitration. Cross-fertilization; in Italian)

In this paper, the author addresses the topic of the interplay between conciliation and arbitration. In spite of the former being a non-adjudicative ADR procedure and the latter a fully adjudicative ADR process, there are some aspects of cross-fertilization between the two. The author pays particular attention to ‘conciliatory’ elements, whose relevance is greater in arbitral awards than in judicial decisions. In the second part of the paper, the author focuses in detail on the recent Singapore Convention on International Settlement Agreements Resulting from Mediation, which introduces a different element of cross-fertilization between arbitration and conciliation. In particular, the author investigates the meaning and practical implications of the Convention, which basically puts settlement agreements on an equal footing with arbitral awards for purposes of international recognition and enforcement.

Silvana Dalla Bontà, La (nuova) introduzione e trattazione della causa nel processo di prime cure e i poteri lato sensu conciliativi del giudice. Un innesto possibile? (The (New) Introduction and Handling of the Case in the First-Instance Proceedings and the Court’s Conciliatory Powers Lato Sensu. A Possible Graft?; in Italian)

After providing an overview of the new Italian regulation on pleadings and hearings in civil cases before the courts of first instance as introduced by Legislative Decree No 149 of 2022, the paper focuses on the conciliatory powers of the courts, i.e. court-ordered mediation, judicial conciliation, and judicial offer to settle. In particular, the analysis aims to explore if, when, and how these judicial conciliatory powers could be effectively exercised at the new pleading and hearing stages. While uncovering the weaknesses of the recent reform of Italian civil procedure, the author argues that the development of good practices would provide a solution to most of the issues raised by the new legislation. To that end, Civil Justice Observatories could play a pivotal role in achieving lasting solutions through a bottom-up approach that fosters the interaction of different civil justice actors.

Carolina Mancuso and Angela M. Felicetti, Sistemi di dispute resolution per le università: primi spunti di riflessione (Dispute Resolution Systems for Universities: First Considerations; in Italian)

The paper aims to explore some innovative foreign teaching and research experiences (namely, in Spain and in the United States) concerning the dissemination of mediation, conflict management techniques and, more broadly, the culture of alternative dispute resolution in academia. The analysis intends to connect such initiatives with the vibrant Italian panorama, which is rich in experiential teaching initiatives and infused with its own developing tradition of conflict management through student ombudspersons. The ultimate goal of the investigation is to identify new directions for the dissemination of the ADR culture in Italian high education institutions.

 

In addition to the foregoing, this issue features the following book review by Luciana Breggia: Tommaso GRECO, La legge della fiducia. Alle radici del diritto (The Law of Trust. At the Roots of Law; in Italian), Bari-Roma, Editori Laterza, (2021; reprint 2022), VII-XVI, 1-171.

 

The latest issue of RabelsZ has just been published. It contains the following articles:

Holger Fleischer: Große Debatten im Gesellschaftsrecht: Fiktionstheorie versus Theorie der realen Verbandspersönlichkeit im internationalen Diskurs, pp. 5–45, DOI: 10.1628/rabelsz-2023-0003

Great Debates in Company Law: The International Discourse on Fiction Theory versus Real Entity Theory. – This article opens a new line of research on great debates in domestic and foreign company law. It uses as a touchstone the classical debate on the nature of legal personhood, which was moribund for a time but has recently experienced an unexpected renaissance. The article traces the scholarly fate of fiction theory and real entity theory over time and across jurisdictions. It describes the origins of both theories, explores the processes of their reception in foreign legal systems, and through selected case studies illustrates the areas in which both courts and doctrine to this day have continued to draw on their body of arguments.

Sabine Corneloup: Migrants in Transit or Under Temporary Protection – How Can Private International Law Deal with Provisional Presence?, pp.46–75, DOI: 10.1628/rabelsz-2023-0004

An increasing number of migrants are provisionally present in the territory of a State other than their State of origin, be it because they are granted temporary protection until they can return to their country of origin or because migration policies– notably externalization measures– prevent them from accessing the territory of their State of destination. As a result, many migrants are stuck for months, if not years, in transit countries at the external borders of Europe before being able to resume their migratory route. Their provisional presence, which initially was meant to remain transitional and short-term, often becomes indefinite. In the meantime, life goes on: children are born, couples marry and divorce, parental child abductions take place, etc. How can private international law deal with these situations? The 1951 Geneva Refugee Convention, which requires that the personal status of refugees be governed by the law of domicile or residence, does not provide an answer to all difficulties. The paper aims to explore PIL connecting factors, such as nationality, habitual residence, and mere presence, and assess their appropriateness for migrants on the move or under temporary protection.

Hannes Wais: Digitale Persönlichkeitsrechtsverletzungen und anwendbares Recht, pp.76–117, DOI: 10.1628/rabelsz-2023-0005

Digital Infringement of Personality Rights and the Applicable Law. – Under art. 4 para. 1 Rome II Regulation, the law applicable to torts is the law of the state in which the damage occurred. With respect to the violation of personality rights, however, art. 40 para. 1 EGBGB points to the law of the place where the event giving rise to the damage occurred (sent. 1) or, should the victim so decide, the place where the damage occurred (sent. 2). This essay demonstrates that this approach entails an element of unequal treatment and is inconsistent with German substantive law, which tends to favour the tortfeasor over the victim in personality rights cases. These findings give reason to subject the German conflict-of-law rules regarding the infringement of personality rights (which almost exclusively take place online) to an expansive review. The article first discusses the exclusion of personality rights infringements in art. 1 para. 2 lit. g Rome II Regulation and the dormant reform initiative, followed by an analysis of the shortcomings of the solution laid down in art. 40 para. 1 EGBGB. Alternative approaches are subsequently discussed before concluding with a proposal de lege ferenda.

Zheng Sophia TANG: Smart Courts in Cross-Border Litigation, pp. 118–143, DOI: 10.1628/rabelsz-2023-0006

Smart courts use modern technology to improve the efficiency of trials, enabling the parties to access court proceedings from a distance. This advantage is particularly important in cross-border litigation, which is characterised by the cost and inconvenience for at least one party to take part in proceedings abroad. However, although technology can significantly improve procedural efficiency, legal obstacles make efficiency impossible to achieve. This article uses service of proceedings, collecting evidence and virtual hearing as examples to show how the current law, especially the old-fashioned concept of sovereignty, hampers the functioning of technology. In the age of technology, it is necessary to reconceptualise sovereignty. This article argues that private autonomy may be utilised to reshape sovereignty in cross-border litigation procedures and reconcile the conflict between sovereignty and technology.

The 36th Annual Survey of Choice of Law in the American Courts (2022) has been posted to SSRN.

The cases discussed in this year’s survey cover such topics as: (1) choice of law, (2) party autonomy, (3) extraterritoriality, (4) international human rights, (5) foreign sovereign immunity, (6) foreign official immunity, (7) adjudicative jurisdiction, and (8) the recognition and enforcement of foreign judgments. Happy reading!

John Coyle (University of North Carolina School of Law)
William Dodge (University of California, Davis School of Law)
Aaron Simowitz (Willamette University College of Law)

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 19th annual conference, taking place from Wednesday 11 – Thursday 12 October 2023 in Amsterdam (the Netherlands). Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference: “The Perpetual Renewal of European Insolvency Law”.

The conference is intended to focus on, inter alia, the following overall topics:

• Public and social policy and the impact on corporate rescue, and vice versa
• Cross-border issues (recognition, coordination)
• Asset tracing (including crypto assets)
• Competition for cases as a driving force for legislative reform
• International organisations update
• Sustainability and corporate restructuring
• Environmental claims in insolvency
• Transaction avoidance eclipsed in preventive restructuring procedures
• Pre-packs rehabilitated
• Asset partitioning: prudent entrepreneurship or manifestation of opportunism
• Modern issues surrounding directors’ duties to file for insolvency
• The impact and benefit (or not) of creditors’ committees
• EU Preventive Restructuring Directive

The IEAF board also invites submissions on other topics that fall with in the scope of the overall theme of the conference.

Conference methodology

In line with the practice established in our past academic conferences, the intention for the autumn conference is to have research papers that challenge existing approaches, stimulate debate and ask, and attempt to answer, comparative and interdisciplinary questions within the above broadly defined theme. Accordingly, proposals are invited that do more than just outline a topic of interest in respect of any given jurisdiction, but seek to understand, analyse and critique the fundamentals of insolvency and restructuring systems in ways that are relevant across jurisdictions and across fields of academic inquiry. Contributions must be in English.

Presenting at the IEAF conference

Expressions of interest in delivering a paper should be sent by email on or before 1 March 2023 to the IEAF’s Deputy Chair, Dr. Jennifer Gant.

Authors of papers selected for presentation will benefit from a waiver of the participation fee for the academic conference, however, they will be responsible for their own travel and accommodation costs. A limited number of travel grants are available for junior scholars invited to present.

For further information, see: www.insol-europe.org/academic-forum-events

Summary provided by the author, Asif Efrat

In a globalized world, legal cases that come before domestic courts are often transnational, that is, they involve foreign elements. For example, the case before the court may revolve around events, activities, or situations that occurred in a foreign country, or the case may involve foreign parties or the application of foreign law. Such cases typically present an overlap between the legal authorities of two countries. To handle a transnational case cooperatively, one legal system must cede its authority over the case, in full or in part, to a foreign legal system. This effectively means that a local citizen would be subjected to the laws or jurisdiction of a foreign legal authority, and that raises a host of questions and concerns: Does the foreign legal system abide by the rule of law? Does it guarantee human rights? Will the foreign court grant our citizen the due process and fair treatment they would have enjoyed at home?

The newly published book Intolerant Justice: Conflict and Cooperation on Transnational Litigation (Oxford University Press) argues that the human disposition of ethnocentrism – the tendency to divide the world into superior in-groups and inferior out-groups – would often lead policymakers to answer these questions negatively. The ethnocentric, who fears anything foreign, will often view the foreign legal system as falling below the home country’s standards and, therefore, as unfair or even dangerous. Understandably, such a view would make cooperation more difficult to establish. It would be harder to relinquish the jurisdiction over legal cases to a foreign system if the latter is seen as unfair; extraditing an alleged offender to stand trial abroad would seem unjust; and the local enforcement of foreign judgements could be perceived as an affront to legal sovereignty that contravenes fundamental norms.

This book examines who expresses such ethnocentric views and how they frame them; and, on the other hand, who seeks to dispel these concerns and establish cooperation between legal systems. In other words, the domestic political debate over transnational litigation stands at the center of this book.

In this debate, the book shows, some domestic actors are particularly likely to oppose cooperation on ethnocentric grounds: the government’s political opponents may portray the government’s willingness to cooperate as a dangerous surrender to a foreign legal system, which undermines local values and threatens the home country’s citizens; NGOs concerned for human rights might fear the human-rights consequences of cooperation with a foreign legal system; and lawyers, steeped in local rules and procedures, may take pride in their legal system and reject foreign rules and procedures as wrong or inferior.

By contrast, actors within the state apparatus typically view cooperation on litigation more favorably. Jurists who belong to the state – such as judges, prosecutors, and the justice-ministry bureaucracy – may support cooperation out of a concern for reciprocity or based on the principled belief that offenders should not escape responsibility by crossing national borders. The ministry of foreign affairs and the ministry of defense may similarly support cooperation on litigation that could yield diplomatic or security benefits. These proponents of cooperation typically argue that legal differences among countries should be respected or that adequate safeguards can guarantee fair treatment by foreign legal authorities. In some cases, these arguments prevail and cooperation on litigation is established; in other cases, the ethnocentric sentiments end up weakening or scuttling the cooperative efforts.

These political controversies are examined through a set of rich case studies, including the Congressional debate over the criminal prosecution of U.S. troops in NATO countries, the British concerns over extradition to the United States and EU members, the dilemma of extradition to China, the wariness toward U.S. civil judgments in European courts, the U.S.-British divide over libel cases, and the concern about returning abducted children to countries with a questionable human rights record.

Overall, this book offers a useful analytical framework for thinking about the tensions arising from transnational litigation and conflict of laws. This book draws our attention to the political arena, where litigation-related statutes and treaties are crafted, oftentimes against fierce resistance. Yet the insights offered here may also be used for analyzing judicial attitudes and decisions in transnational cases. This book will be of interest to anyone seeking to understand the challenges of establishing cooperation among legal systems.

The New Age of Dispute Resolution: Digitization & Evolving Norms

Time: 18:30 – 20:30 pm

Venue: Bracewell LLP New York

When: 13 February Monday 2023

Organized with New York International Arbitration Centre, New York State Bar Association, and American Society of International Law

The event will be held in relation to UNCITRAL’s project on the Stocktaking of Dispute Resolution in the Digital Economy. As part of its stocktaking activities to seek inputs from different parts of the world, the Secretariat is organising this discussion with practitioners and academics in New York on two respective issues: (1) the use of technology in arbitration; and (2) online mediation. Presenters: (Panel 1) Christina Hioureas, Emma Lindsay, Hagit Muriel Elul, Martin Guys and Sherman W. Kahn; (Panel 2) Jackie Nolan-Haley and Sherman W. Kahn.

This post was written by Jachin Van Doninck (SEPIL coordinator, Vrije Universiteit Brussels) and Jerca Kramberger Škerl (University of Ljubljana)

It is fair to say that the attention for sustainability and sustainable development has seen a steady increase. The past decade, the United Nations has set out the Sustainable Development Goals (SDGs), based on the urgent need to shift the world onto a sustainable and resilient path. These SDGs are finding their way into policy making on every level and are also inspiring research in the legal field.[i] Recent scholarship has raised awareness for the potential of private international law to strengthen the SDGs’ plan of action (e.g. the seminal work edited by R. MICHAELS, V. RUIZ ABOU-NIGM and H. VAN LOON, 2021).[ii] Private International Law is also and increasingly being classified as a governance tool[iii] of a political nature.[iv]

The SEPIL network, funded by the EUTOPIA UNIVERSITY alliance explores the sustainability of European private international law as a system, i.e. in itself. Thus, the project’s intention was to move away from existing research on how private international law can be instrumentalized for the purpose of attaining the greater good (e.g. the Shell cases in The Netherlands and in the UK, reported on the conflictoflaws blog), and to question to what extent sustainability can (or must) exert a system-building function within this area of the law. Taking into account that PIL acts as potent tool for achieving the SDGs, the research group delved into the question of the sustainability of this tool in itself, thus ‘operating’ mainly within the SDG 16 (Peace, Justice and Strong Institutions).

SEPIL organised two closed seminars in Ljubljana (29-30 September 2022) and Brussels (24-25 October 2022). The goals of the meetings were threefold:

• to catch up with the state of the art of the research on sustainability and law, both regarding the individual SDGs and the sustainability of law;
• to try to delimitate the question(s) of PIL as a tool to achieve sustainable development and sustainability as a tool to enhance PIL;
• to explore the research potential of the aforementioned SEPIL idea.

The Ljubljana edition was kicked off by Anna Maria Wilmot (VUB), who presented an outline of her current PhD research on the interplay between sustainability and the Belgian system of civil adjudication. She explained how any attempt at a systemic appraisal of the sustainability of European private international law would have to begin with a clear understanding of sustainability as a layered concept. Jachin Van Doninck (also at VUB) connected Anna Maria’s research with the SEPIL project by elaborating on how legal scholarship and the courts are heavily involved in instrumentalizing private international law for the purpose of attaining sustainability and sustainable development. He pointed out that a fundamental analysis of the sustainability of private international law itself is lacking, which is precisely where SEPIL’s research focus would lie. University of Ljubljana’s Jerca Kramberger Škerl continued with an overview of the UN Sustainable Development Goals and a short presentation on how private international law can, first, serve as a tool to attain those goals, and second, adapt itself to respect those goals. In the afternoon, these SDGs were made concrete through topical examples. A first one was offered by University of Gothenburg’s Anna Wallerman Ghavanini through her presentation on judicial protection for victims of discrimination in EU private international law, explaining that effective access to justice (SDG 16) for victims of discrimination (SDG 5) reveals shortcomings in the current private international law framework. Second, University of Ljubljana’s Filip Dougan focused on the interplay between the UN Sustainable Development Goal 5 (Gender Equality) and the EU private international law. Erik Björling, also from the University of Gothenburg, then challenged our thinking with the question “Can retrospective civil procedure be prospective?”. Using notions of procedural legal theory (naming, blaming, claiming, rational discourse, reduction of complexity), he touched on several core issues of private international law such as jurisdiction, choice of law and enforcement. The stage had been set for the Brussels edition.

Part of the Brussels edition was dedicated to discussing selected reading materials, featuring Schultz’ “Carving up the internet”, EJIL 2008, 799; Salminen and Rajavuori’s “Private International Law, Global Value Chains and the externalities of transnational production: towards alignment?”, Transnational Legal Theory 2021, 230; Meeusen’s “Interaction between EU Regulations and Member State Codification of Private International Law: from patchwork to network”, and Weller and Schulz’s “Political private international law. How European are Overriding Mandatory Provisions and Public Policy Exceptions?”.[v] Directly or indirectly, these materials nourished our thinking on PIL from a policy perspective, e.g. by questioning the Savignian outlook of European private international law or the interplay between European and national initiatives in this field of law. Inspired by Rizcallah’s work on mutual trust,[vi] Jachin Van Doninck closed the first day of the Brussels edition with a presentation on “SEPIL and fundamental legal values: a ‘mutual trust’ perspective”, reflecting on sustainability as a governance principle in the field of PIL.

The next day, SEPIL had the pleasure to welcome University of Antwerp’s Thalia Kruger as guest speaker. Her involvement in and contribution to the R. Michaels, V. Ruiz Abou-Nigm and H. van Loon volume provided the setting for an exchange on the criticism directed against the SDGs for their alleged insistence on growth and the pitfalls of a European-centred approach to PIL.  A guided tour to the Belgian Court of Cassation ignited queries on how the Dutch and French speaking chambers of the Court try to prevent discrepancies in their case law and made us come full circle: how can private international, and any legal framework with ‘systemic’ aspirations for that matter, become sustainable?

All in all, this research community has successfully identified several crucial issues concerning the sustainability of European PIL as well as established a research platform for the continued pursuit for more sustainable legal solutions. As is often the case, the questions brought forward outnumber the answers at this stage: How does PIL in itself achieve sustainability (SDG 16), and how can it contribute as a tool for promoting other SDGs? How is national autonomy to be balanced with harmonization in the regulation of PIL? What role for mutual trust? And how can digitalization contribute to sustainability? Future research should address these questions systemically as well as bottom-up, exploring the sustainability of PIL in relation to various SDGs. With sustainability taking an ever more central position in legal research and practice alike, we foresee that the field will continue to develop, and we look forward to contributing to this development.

 

SEPIL is short for Sustainable European Private International Law. With funding from the EUTOPIA UNIVERSITY alliance, it brings together six researchers:  Jachin VAN DONINCK and Anna Maria WILMOT (Vrije Universiteit Brussel), Jerca KRAMBERGER ŠKERL and Filip DOUGAN (University of Ljubljana); and Anna WALLERMAN GHAVANINI and Erik BJÖRLING (University of Gothenburg).

[i] V. MAUERHOFER, D. RUPO AND L. TARQUINIO (eds.), Sustainability and law: general and specific aspects, Cham, Springer, 2020, 773 p.

[ii] R. MICHAELS, V. RUIZ ABOU-NIGM and H. VAN LOON, The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law, Cambridge, Intersentia, 2021, 574 p., (open access)

[iii] R. MICHAELS, V. RUIZ ABOU-NIGM and H. VAN LOON, “The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law” in R. MICHAELS, V. RUIZ ABOU-NIGM and H. VAN LOON, The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law, Cambridge, Intersentia, 2021, 13.

[iv] M.-P. WELLER and A. SCHULZ, “Political private international law. How European are Overriding Mandatory Provisions and Public Policy Exceptions?” in J. VON HEIN E.-M. KIENINGER and G. RÜHL (ed.), How European is European Private International Law? Sources, Court Practice, Academic Discourse, Antwerp, Intersentia, 2019, (285) 286.

[v] The latter two were published in J. VON HEIN E.-M. KIENINGER and G. RÜHL (ed.), How European is European Private International Law? Sources, Court Practice, Academic Discourse, Antwerp, Intersentia, 2019.

[vi] C. RIZCALLAH, Le principe de confiance mutuelle en droit de l’Union européenne. Un principe essential à l’épreuve d’une crise des valeurs, Bruxelles, Bruylant, 2020, 666 p., reported here; for a different perspective, based on trust management, see M. WELLER, “Mutual Trust”: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?” in Collected Courses of The Hague Academy of International Law – Recueil des cours, vol. 423, 2022, reported on the conflictoflaws blog.

A conference on “The Law of Treaties as Applied to Private International Law” will take place at the Catholic University of Milan on 5 and 6 May 2023, under the auspices of the Italian Society of International Law and EU Law (SIDI) and the European Association of Private International Law (EAPIL).

The event aims to discuss the impact of the rules of treaty law on the formation, interpretation and implementation of international conventions laying down rules of private international law, and to assess whether, and in which way, the specific object and features of private international law have a bearing on the operation of the law of treaties in this area.

Speakers and chairs include Paul Beaumont (University of Stirling), Catherine Brölmann (University of Amsterdam), Sergio Carbone (University of Genova, Emeritus), Luigi Crema (University of Milan), Zeno Crespi Reghizzi (University of Milan), Pedro De Miguel Asensio (Complutense University of Madrid), Malgosia Fitzmaurice (Queen Mary University of London), Burkhard Hess (Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law), Patrick Kinsch (University of Luxembourg), Catherine Kessedjian (University Paris II Panthéon-Assas, Emerita), Jan Klabbers (University of Helsinki, TBC), Antonio Leandro (University of Bari), Alex Mills (University College London), Etienne Pataut (University Paris I – Panthéon-Sorbonne), Andrea Schulz (German Federal Ministry of Justice), Jean-Marc Thouvenin (University of Paris Nanterre; Secretary-General of The Hague Academy of International Law), Chiara Tuo (University of Genova), Hans van Loon (former Secretary-General of the Hague Conference on Private International Law), and Jan Wouters (KU Leuven).

A roundtable on “The role of IGOs in the elaboration, implementation and coordination of private international law treaties”, chaired by Fausto Pocar (University of Milan, Emeritus), will feature interventions by Luca Castellani (Secretary of Working Group IV (Electronic Commerce) – Uncitral), Nicolas Nord (Secretary-General of the International Commission on Civil Status), Andreas Stein (Head of Unit (Civil Justice) at the European Commission Directorate-General for Justice and Consumers – Civil and commercial justice) and Ignacio Tirado (Secretary-General of the International Institute for the Unification of Private Law (Unidroit), among others.

A key-note speech will be delivered by Maciej Szpunar (Judge at the Court of Justice of the European Union, TBC). Closing remarks will be provided by Stefania Bariatti (University of Milan).

The conference, in English, will be on-site only.

See the full programme and the registration form. Early bird rates are offered to those registering before 6 March 2023.

For further information: pietro.franzina@unicatt.it.

A new law on international commercial arbitration was published on the 4th of February in Greece. It is the fruit of the efforts by a committee established by the Ministry of Justice. The previous law nr. 2735/1999 is abolished.

The new law nr. 5016/2023 consists of 59 articles, whereas the predecessor had only 37 articles. Both laws are based on the UNCITRAL Arbitration Rules. The main novelties of the recent law are the following:

• Article 11 covers the issue of the validity of the arbitration agreement.
• Article 16 introduces a provision for multiparty arbitration.
• Article 22 regulates the issue of the arbitrator’s liability.
• Article 24 introduces a provision for the unification of multiple arbitrations.
• Article 35 contains a special rule for the production of documents and the submission of evidence.
• Last but not least, Article 46 sets the stage for the foundation of Arbitration Centers by private companies or public law corporations, such as Bar Associations. Some of them have already established Arbitration Centers (mostly if not exclusively for purely domestic disputes) in the major cities of the country, such as Athens and Thessaloniki. The new law grants them access to international commercial disputes.

Wang Jingru, Wuhan University Institute of International Law

 

Background

In November 2022, Beijing Fourth Intermediate People’s Court delivered the landmark decision in Ruili Airlines Co. Ltd. and Others v. CLC Aircraft Leasing (Tianjin) Co., Ltd. For the first instance, the Chinese court confirmed the legitimacy of third-party funding in arbitration and clarified the standard of review regarding the challenge towards it.

In 2021, the CIETAC rendered an arbitral award addressing the dispute arising from an aircraft leasing agreement. In this case, the claimant, CLC Aircraft Leasing (Tianjin) Co., Ltd., was funded by a third-party funder, IMF Bentham Limited. The respondents, Ruili Airlines Co. Ltd. (Ruili Airlines), Yunnan Jingcheng Group Co., Ltd. and Dong Lecheng, opposed enforcement of the award before Wuxi Intermediate People’s Court .[i] After being dismissed by the Wuxi Court, the respondents challenged the arbitral award before Beijing Fourth Intermediate People’s Court and were again dismissed.[ii]

Legal Issues

The respondents challenged the arbitral awards based on four grounds: first, the composition of the tribunal was not in accordance with the arbitration rules; second, the claimant and the tribunal breached the principle of confidentiality for disclosing information to the third-party funder; third, the tribunal failed to bear the parties fair opportunity to present the case; fourth, the arbitral award infringed the social public interest.[iii] The court reviewed the challenge under Article 281 of the Chinese Civil Procedure Law, which dealt with the challenge to foreign-related arbitral awards. Given our focus on third-party funding, this note only discussed the first two grounds.

Composition of the Tribunal

The respondents submitted that Rollin Chan, the arbitrator appointed by the claimant, was affiliated with the Nixon Peabody CWL, a Hong Kong law firm which had a significant relationship with the funder, IMF Bentham Limited. The Nixon Peabody CWL Law Firm had provided legal services to HSBC Group and JP Morgan Group, which were actual controllers of IMF Bentham Limited’s two main shareholders, HSBC Custody Nominees (Australia) Limited and JP Morgan Nominees Australia Limited. The respondents argued that this relationship fell within the arbitrator’s obligation to disclose. However, neither did Rollin Chan disclose the relationship nor did he resign, which raised justifiable doubts about his independence and impartiality.

The court first pointed out that the current law did not prohibit third-party funding arbitration. The third-party funding and the funder’s relationship with the arbitrator are related to the credibility of arbitration and the integrity of the award. Therefore, the court’s analysis focused on the challenge to the arbitrator and the disclosure of the third-party funder.

As explained by the court, the mechanism of challenge to arbitrators intended to eliminate the arbitrators with conflicts of interest which might undermine the fair trial and decision. The disclosure obligation requires the arbitrators to disclose any fact within their knowledge regarding their relationship with the case, the parties, members of the tribunal or other situations which may raise justifiable doubts about their independence and impartiality to the parties and the arbitration institution. Meanwhile, the court stressed that the arbitrators’ obligation to disclose should be based on their knowledge of potential conflicts of interest which may give rise to justifiable doubts about their independence and impartiality. Arbitrators could be challenged based on grounds specified by law or arbitration rules. If the relations were not known to the arbitrators and were insufficient to undermine the independence and impartiality of the arbitration, the arbitrator would not breach the duty for not disclosing the relationship. Likewise, there would be no violation against the provision of challenge to arbitrators.

In this case, the court found that Rollin Chan was a consultant of Nixon Peabody CWL instead of an associate or a partner who got dividends. He was based in Shanghai instead of Hong Kong. He did not engage in office matters and did not know about the dealings between Nixon Peabody CWL and IMF’s shareholders, as well as their actual controllers. Also, it was confirmed that none of them had been Nixon Peabody CWL’s clients. While they could connect with Nixon Peabody law firms in other regions, those law firms were independent of Nixon Peabody CWL. Nixon Peabody was an international lawyer network. Law firms within the network were separate entities subject to respective supervision of different jurisdictions. These law firms did not share client information or financial income. The respondents presented evidence to expose the business relationship between Nixon Peabody LLP (US) and HSBC (US), JP Morgan (US). However, the evidence mistook Nixon Peabody LLP (US) for Nixon Peabody CWL (HK). Also, HSBC (US) and JP Morgan (US) were different from the funder’s shareholders, HSBC Custody Nominees (Australia) Limited and JP Morgan Nominees Australia Limited. Therefore, the court concluded that the evidence was insufficient to prove the conflicts of interest or create a ground for challenge.

The court confirmed that the civil party had the legitimate right to accept third-party funding. Such a choice shall be respected as long as the arrangement does not breach the law or undermine the integrity of the award. In the absence of guidance on the disclosure of third-party funding, it is encourageable for the party to disclose the existence of third-party funding, which assists the parties in exercising their right based on the information.

Confidentiality

The respondents submitted that the third-party funder got information on the procedure and merits of the case. Considering that the funder was a listed company, the outcome of the case could be disclosed to the public. Therefore, the claimant and the tribunal breach the principle of confidentiality.

As acknowledged by the claimant, information including the procedural arrangement and the arbitral award was shared with the funder. For this issue, the court clarified that the key to confidentiality was withholding the information from the public so as to protect the parties’ commercial secrets and social image. While the arbitration rules prohibit disclosure to the “outsider”, information can be shared with the people concerned. In practice, the people concerned, such as the secretary of the tribunal and the parties’ shareholders who had significant interest in the case, could gain information about the arbitration, even though such disclosure was not explicitly allowed by the arbitration rules. Since the current rules did not preclude third-party funders from sponsoring the parties to engage in arbitration, the establishment of a funding relationship did not violate the principle of confidentiality.

Comments

Supporters of third-party funding argue that this mechanism could promote access to justice for impecunious parties and help the parties to overcome liquidity issues,[iv] which makes it an essential complement to the arbitration market. However, despite the fact that the third-party funding in arbitration has somewhat become a common phenomenon, worries about its adverse influence on arbitration are not unfounded. Third-party funders are stimulated by the economic interest directly connected to the outcome of the arbitration. To secure the recovery and maximize the profit, third-party funders may recommend counsel or arbitrators with whom they are familiar to the parties. They may also precipitate the “claim inflation” which exceeds the real loss of the funded party.[v] The third-party funding raises debate on its legitimacy and brings novel questions to be answered.

In this case, the Chinese court directly clarified the legitimacy of third-party funding and the standard of review. With the ambition to build up an attractive arbitral seat, China takes a rather friendly position to embrace this fast-growing mechanism. The court confirmed that third-party funding was not forbidden by the current law. Accordingly, it is natural to disclose relevant information to the third-party funder which is not viewed as a breach of confidentiality. The challenge to third-party funding will be assessed case by case. The arbitral award can only be set aside if third-party funding hinders the arbitration proceedings or undermine the integrity of the arbitral awards. The decision also shed some light on procedural control over third-party funding arbitration. The court held that the relationship between the arbitrator and third-party funder could also give rise to justifiable doubts about the arbitrator’s independence and impartiality. Besides, without explicit guidance of law, the court encouraged the funded party to disclose the existence of third-party funding, which was consistent with the common anticipation of arbitration practitioners.[vi] Whilst a single decision is not required to address everything, the way forward remains to be seen.

 

[i] See Ruili Airlines Co. Ltd. and Others v. CLC Aircraft Leasing (Tianjin) Co., Ltd. (2022) Su 02 Zhi Yi No. 14.

[ii] See Ruili Airlines Co. Ltd. and Others v. CLC Aircraft Leasing (Tianjin) Co., Ltd. (2022) Jing 04 Min Te No. 368.

[iii] Ibid.

[iv] See Marie Stoyanov and Olga Owczarek, ‘Third-Party Funding in International Arbitration: Is it Time for Some Soft Rules?’ (2015) 2(1) BCDR International Arbitration Review 171, 172.

[v] See John Beechey, ‘The Pandora’s Box of Third-Party Funding: Some Practical Suggestions for Arbitrators in Light of Recent Developments’ (2019) 20 ICCA Congress Series 558, 573.

[vi] See School of International Arbitration at Queen Mary University of London, 2015 Improvements and Innovations in International Arbitration, available at: https://arbitration.qmul.ac.uk/research/2015/index.html.

On Tuesday, February 14, 2023, the Hamburg Max Planck Institute will host its 30th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CET). Tobias Helms (Universität Marburg) will speak, in German, about the topic

the Proposal for a Council Regulation on Jurisdiction, Applicable Law, Recognition of Decisions and Acceptance of Authentic Instruments in Matters of Parenthood.

The presentation will be followed by 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.

On December 30, 2022, the Chinese legislator, the Standing Committee of the National People’s Congress, published a draft of the Civil Procedure Law Amendment for public consultation. The draft suggested important amendments to procedures in foreign-related cases including jurisdiction, service, taking evidence, forum non-convenience, lis pendens, and judgment recognition and enforcement.

The Berkeley Center for Law and Technology organized a panel discussion on the draft. The program is now available to watch for free on its B-CLE platform. Linked below is access to the program’s recording:

https://bk.webcredenza.com/program?id=85027

 

This event is presented by Private International Law and Law & Technology interest groups of the American Society of International Law and the Sydney Centre for Asian and Pacific Law at the University of Sydney.

Online event | 11am-12pm, Fri 3 March

National security has increasingly become a concern for cross-border data flow. In this panel discussion, we will survey the conflicts and potential collaboration between protecting national security and enhancing digital trade.

Our distinguished panel will cover relevant laws and practices in big (the US and China), medium (the UK), and small (Vietnam and Taiwan) jurisdictions.

Time
11am-12pm AEDT (Thu 2 March, 7-8pm EST)

Registration
Complimentary, however registration is essential.

Register here.

Written by Jidong Lin, Wuhan University Institute of International Law

1. Background

Separability is a world-recognized doctrine in commercial arbitration. It means that an arbitration clause is presumed to be a separate and autonomous agreement, reflecting contractual commitments that are independent and distinct from its underlying contract.[1] Such a doctrine is embraced and acknowledged by numerous jurisdictions and arbitral institutions in the world.[2]

However, there are different views on the consequences of separability. One of the most critical divergences is the application of separability in the contract formation issue. Some national courts and arbitral tribunals held that in relatively limited cases, the circumstances giving rise to the non-existence of the underlying contract have also resulted in the non-existence of the associated arbitration agreement, which is criticized as an inadequacy of the doctrine of separability.[3] On the contrary, other courts hold the doctrine of separability applicable in such a situation, where the non-existence of the underlying contract would not affect the existence and validity of the arbitration agreement. This divergence would directly affect the interest of commercial parties since it is decisive for the existence of the arbitration agreement, which is the basis of arbitration.

Two contrary judgements were recently issued by two jurisdictions. The Chinese Supreme People’s Court (hereinafter “SPC”) issued the Thirty-Sixth Set of Guiding Cases, consisting of six guiding cases concerning arbitration. In Guiding Case No. 196 Yun Yu v. Zhong Yun Cheng, the SPC explains the Chinese version of separability should apply when the formation of the underlying contract is in dispute.[4] Although the SPC’s Guiding Cases are not binding, they have an important persuasive effect and Chinese courts of the lower hierarchy are responsible for quoting or referring to the Guiding Cases when they hear similar cases. On the other hand, the English Court of Appeal also issued a judgement relating to separability, holding this doctrine not applicable in the contractual formation issue.[5]

 

2. Chinese judgment

The Chinese case concerns a share transfer transaction between Yun Yu Limited. (hereinafter “YY”) and Shenzhen Zhong Yuan Cheng Commercial Investment Holding Co. Limited. (hereinafter “ZYC”). On 9th May 2017, YY sent the Property Transaction Agreement (hereinafter “PTA”) and the Settlement of Debts Agreement (hereinafter “SDA”) to ZYC. The PTA was based on the Beijing Stock Exchange (hereinafter “BSE”) model agreement. PTA and SDA included a dispute resolution clause in which the parties agreed that the governing law should be Chinese law and the dispute should be submitted to Beijing Arbitration Commission. On 10th May 2017, ZYC returned the PTA and SDA to YY with some revisions, including a modification on the dispute resolution clause, which changed the arbitration institution to the Shenzhen Court of International Arbitration. On 11st May 2017, YY commented on the revised version of the PTA and SDA but kept the dispute resolution clause untouched. In the accompanying email, YY stated, “Contracts confirmed by both parties would be submitted to Beijing Stock Exchange and our internal approval process. We would sign contracts only if we got approval from BSE and our parent company.” On the same day, ZYC returned the PTA and SDA with its stamp to YY. On 27th October 2017, YY announced to ZYC that the negotiation was terminated. On 4th April 2018, ZYC commenced arbitration based on the dispute resolution clause in PTA and SDA.

The SPC held that separability means the arbitration agreement could be separate and independent from the main contract in its existence, validity and governing law. To support its opinion, the SPC refers to Article 19 of the People’s Republic of China’s Arbitration Law (hereinafter “Arbitration Law”), which stipulates that: “An arbitration agreement shall exist independently, the amendment, rescission, termination or invalidity of a contract shall not affect the validity of the arbitration agreement.” SPC submits that the expression “(t)he arbitration agreement shall exist independently” is general and thus should cover the issue of the existence of the arbitration agreement. This position is also supported by the SPC’s Interpretation of Several Issues concerning the Application of Arbitration Law (hereinafter “Interpretation of Arbitration Law”), [6]Article 10 of which stipulates: “Insofar as the parties reach an arbitration agreement during the negotiation, the non-existence of the contract would not affect the validity of the arbitration agreement.” Thus, the SPC concluded that the existence of an arbitration clause should be examined separately, independent from the main contract. Courts should apply the general rules of contractual formation, to examine whether there is consent to arbitrate. If the court found the arbitration clause formed and valid, the very existence of the main contract should be determined by arbitration, unless it is “necessary” for the court to determine this matter. The SPC concludes that the PTA and SDA sent by YY on 11st May 2017 constituted an offer to arbitrate. The stamped PTA and SDA sent by ZYC on the same day constituted an acceptance and came into effect when the acceptance reached YY. Thus, there exists an arbitration agreement between the parties. It is the arbitral tribunal that should determine whether the main contract was concluded.

 

3. English judgment

The English case concerns a proposed voyage charter between DHL Project & Chartering Limited (hereinafter “DHL”) and Gemini Ocean Shipping Co. Limited (hereinafter “Gemini”). The negotiations were carried on through a broker. On 25th August 2020, the broker circulated what was described as the Main Terms Recap. It is common ground that the recap accurately reflected the state of the negotiations thus far. Within the Recap, both parties agreed that the vessel would be inspected by Rightship. This widely used vetting system aims to identify vessels suitable for the carriage of iron ore and coal cargoes. Also, both parties agreed that the dispute should be submitted to arbitration. There was an attached proforma, including a provision that the vessel to be nominated should be acceptable to the charterer. Still, that acceptance in accordance with detailed requirements set out in clause 20.1.4 “shall not be unreasonably withheld”. By 3rd September, however, Rightship approval had not been obtained. DHL advised that “(p)lease arrange for a substitute vessel” and finally, “(w)e hereby release the vessel due to Rightship and not holding her any longer.” In this situation, the attached proforma was not approved by DHL, and there is no “clean” fixture, [7]which means the parties did not reach an agreement. After that, Gemini submitted that there is a binding charter party containing an arbitration clause and commenced arbitration accordingly.

The Court of Appeal made a detailed analysis of separability. Combining analysis of numerous cases, including Harbour v. Kansa, [8]Fiona Trust, [9]BCY v. BCZ[10] and Enka v. Chubb, [11]and analysis of International Commercial Arbitration written by Prof. Gary Born, the Courts of Appeal concluded that separability should not be applied if the formation of the underlying contract is in dispute. Separability applies only when the parties have reached an agreement to refer a dispute to arbitration, which they intend (applying an objective test of intention) to be legally binding. In other words, disputes as to the validity of the underlying contract in which the arbitration agreement is contained do not affect the arbitration agreement unless the ground of invalidity impeaches the arbitration agreement itself. But separability is not applicable when the issue is whether an agreement to a legally binding arbitration agreement has been reached in the first place. In this case, the parties agreed in their negotiations that if a binding contract were concluded as a result of the subject being lifted, that contract would contain an arbitration clause. However, based on the analysis of the negotiation and the commercial practice in the industry, the Court of Appeal concludes that either party was free to walk away from the proposed fixture until the subject was lifted, which it never was. Thus, there was neither a binding arbitration agreement between the parties.

 

4. Comments

Before discussing the scope of the application of separability, one thing needed to be clarified in advance: Separability does not decide the validity or existence of the arbitration agreement in itself. Separability is a legal presumption based on the practical desirability to get away from a theoretical dilemma. However, separability does not mean the arbitration agreement necessarily exists or is valid. It only means the arbitration agreement is separable from the underlying contract, and it cannot escape the need for consent to arbitrate.[12] Therefore, the existence of the arbitration agreement should not be considered when discussing the scope of application of the arbitration agreement.

The justification of the doctrine of separability should be considered when discussing its scope of application. The justification for the doctrine of separability can be divided into three factors: (a) The commercial parties’ expectations. Parties to arbitration agreements generally “intended to require arbitration of any dispute not otherwise settled, including disputes over the validity of the contract or treaty. (b) Justice and efficiency in commerce. Without the separability doctrine, “it would always be open to a party to an agreement containing an arbitration clause to vitiate its arbitration obligation by the simple expedient of declaring the agreement void.” and (c) Nature of the arbitration agreement.[13] The arbitration agreement is a procedural contract, different from the substantive underlying contract in function. If these justifications still exist in the contract formation issue, the doctrine of separability should be applied.

It is necessary to distinguish the contract formation issue and contract validity issue, especially the substantive validity issue, when discussing the applicability of those justifications. The contract formation issue concerns whether parties have agreed on a contract. The ground to challenge the formation of a contract would be that the parties never agree on something, or the legal condition for the formation is not satisfied. The contract substantive validity issue is where the parties have agreed on a contract, but one party argue that the agreement is invalidated because the true intent is tainted. The grounds to challenge the substantive validity would be that even if the parties have reached an agreement, the agreement is not valid because of duress, fraud, lack of capacity or illegality. The formation and validity issues are two different stages of examining whether the parties have concluded a valid contract. The validity issue would only occur after the formation of the contract. In other words, an agreement can be valid or invalid only if the agreement exists.

It is argued that separability should be applicable to the formation of contract. Firstly, separability satisfies the parties expectation where most commercial parties expect a one-stop solution to their dispute, irrespective of whether it is for breach of contract, invalidity or formation. Furthermore,  the application of separability would achieve justice and efficiency in commerce. Separability is necessary to prevent the party from vitiating the arbitration obligation by simply declaring a contract not concluded. In short, since the justifications still stand in the issue of contract formation, separability should also apply in such an issue.

The English Court of Appeal rejected the application of separability in the formation of contract holding the parties’ challenge to the existence of the main contract would generally constitute a challenge to the arbitration clause. However, the same argument may apply for invalidity of the underlying contract. Since the arbitration agreement is indeed concluded in the same circumstances as the underlying contract the challenging to the validity of the contract may also challenge the validity of the arbitration clause, while separability still applies. On the contrary, the Chinese approach probably is more realistic. The SPC ruled that separability applies where the formation of the underlying contract is disputed. But before referring the dispute to arbitration, the SPC separately considered the formation of the arbitration clause. Only after being satisfied the arbitration clause is prima facie concluded, the court declined jurisdiction and referred the parties to arbitration.

 

[1] Ronan Feehily, Separability in international commercial arbitration; confluence, conflict and the appropriate limitations in the development and application of the doctrine, 34 Arbitration International 355 (2018), p. 356.

[2] See Blackaby Niegel, Constantine Partasides et al., Redfern and Hunter on International Arbitration, Kluwer Law International; Oxford University Press 2015, pp. 104–107.

[3] See Gary B. Born, International Commercial Arbitration (3rd edition), Kluwer Law International 2021, pp. 492-493.

[4] The Guiding Case No. 196: Dispute in Validity of Arbitration Agreement between YunYu Limited and Shenzhen ZhongYuanCheng Commercial Investment Holding Co. Limited.

[5] DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd [2022] EWCA Civ 1555 (24 November 2022)

[6] SPC’s Interpretation of Several Issues concerning the Application of Arbitration Law, Fa Shi?2006?No. 7.

[7] Clean Fixture is a concept in the maritime area. It means the Parties’ confirmation that the contract has been concluded and that there are no further Subjects and/or restrictions to the execution of the agreed Contract. The Fixture is not clean until both parties have waived their subjects/restrictions.

[8] Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd [1993] QB 701.

[9] Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40, [2007] 4 All ER 951.

[10] BCY v BCZ [2016] SGHC 249, [2016] 2 Lloyd’s Rep 583.

[11] Enka Insaat ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38, [2020] 1 WLR 4117

[12] See McNeill M. S. & Juratowitch B., Agora: Thoughts on Fiona Trust: The Doctrine of Separability and Consent to Arbitrate, 3 Arbitration International 475 (2008).

[13] See Gary B. Born, International Commercial Arbitration (3rd edition), Kluwer Law International 2021, p. 428.

The convenors of the SLS Conflict of Laws section, Lauren Clayton-Helm and Bobby Lindsay, have been so kind as to share the following call for papers with us.

This is a call for papers and panels for the Conflict of Laws section of the 2023 Society of Legal Scholars’ Annual Conference to be held at Oxford Brookes, from 27th – 30th June.  The Conflict of Laws section will meet in the second half of the conference on 29–30 June and will have four sessions, each lasting 90 minutes.

The 2023 conference is in person with a virtual element. The virtual element to the conference will take place, for the Conflict of Laws section, on the 29th June 2023. Those who wish to present their papers virtually should select that option in Oxford Abstracts. Please note that speakers who select to present in person will be unable to revert to virtual delivery at a later date. We will be using Oxford Abstracts as the virtual platform this year. Those attending remotely on the 29th June will be able to participate in the sessions on those days, as well as having access to the plenary sessions.  There are significant costs involved in including a virtual element to the conference, and the numbers opting to attend virtually are quite low, but we are keen to ensure as many people have access to the conference as possible. On that basis, not only have we retained our two day virtual option, but we will also be providing remote access to all of the papers to delegates attending virtually, and where permission is granted by the presenters through Oxford abstracts.

In addition, the Society has set aside a fund of up to £10,000 as a hardship fund (https://sls.onlinesurveys.ac.uk/sls-hardship-fund-2023) to support attendance by those with special circumstances or in financial hardship warranting additional support. Priority for support will be given to applicants who have no other source of funding.

Doctoral students are very welcome and are encouraged to submit papers for consideration in the Subject Sections Programme. There will not be a separate doctoral stream at the 2023 conference.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 17 February 2023.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed http://https://auth.oxfordabstracts.com/?redirect=/stages/4957/submitter– and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk

This year we are trialling first blind peer review, with a subsequent non-blind review once initial decisions have been made to consider profile diversity before final decisions are made and communicated.

Decisions will be communicated by the 10th March.

We welcome proposals for papers and panels on any issue relating to Law and the Public Good. We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.  Sessions are 90 minutes in length and so we recommend panels of three speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papersas possible are able to present, speakers should not present twice at the conference at the expense of another credible paper.  With this in mind, when you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £300 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.  To be eligible:

• speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
• papers must not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count);
• papers must be uploaded to the paperbank by 11:59pm UK time on Friday 23 June 2023;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

In 2020 the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

• speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
• papers must not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count);
• papers must be uploaded to the paperbank by 11:59pm UK time on Friday 23 June 2023;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.
• Where a paper eligible for this prize wins the Best Paper Prize, the judges may at their discretion award the prize for Best Paper by a Doctoral Student to a different nominated paper
• The judges may announce a shortlist at their discretion with the winner to be announced by the first week in August.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 21 April 2023 to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.

With best wishes,

Lauren and Bobby

As previously announced, the 4th German Conference for Young Scholars in Private International Law will take place on 23 and 24 February 2023 at Sigmund Freud University in Vienna.

The theme of the conference is

Deference to the foreign – empty phrase or guiding principle of private international law?

 

Although primarily held in German, a significant amount of presentations will be offered in English, including

“The metaphor of the ‘dismal swamp’: an ecosophical approach to the conflict of laws” by Prof. Horatia Muir Wat (Keynote lecture)

“Overriding Mandatory Rules and Choice of Law Rule in Procedure: Opposite Trends?” by Shahar Giller (presentation)

“Mind the Gap – Adaptation Mechanisms in the Cross-Border Enforcement of Judgments” by Tess Bens (presentation)

“Connecting Factors: Tools or Loopholes in Achieving Deference to the Foreign” by Stefano Dominelli and Michael Cremer (short presentation)

For further information and registration, please visit the event’s homepage – the organizers kindly ask to register by 17 February 2023.