Conflictoflaws

LIST OF PUBLICATIONS ON SOUTH AFRICAN PRIVATE INTERNATIONAL LAW AS FROM 2020

Adams “Choice of Islamic law in the context of the wider lex mercatoria: an express choice of non-State law in contract” 2021 Journal of South African Law 59.

Adams “The UCP as a choice of non-State law in international commercial contracts” 2022 Potchefstroom Electronic Law Journal 1.

Adams and Kruger “Private international law and choice of law clauses” in Hutchison and Myburgh (eds) International Commercial Contracts: Autonomy and Regulation in a Dynamic System of Lex Mercatoria (Edward Elgar, 2020) 110.

Bouwers Tacit Choice of Law in International Commercial Contracts – A Global Comparative Study (Schulthess, 2021) 68-75.

Coleman “Assessing the efficacy of forum selection agreements in Commonwealth Africa” 2020 Journal of Comparative Law in Africa 1.

Coleman “Reflecting on the role and impact of the constitutional value of ubuntu on the concept of contractual freedom and autonomy in South Africa” 2021 Potchefstroom Electronic Law Journal 1.

Coleman “Contractual freedom and autonomy under the CISG and the UNIDROIT Principles as legislative and judicial guidance in Commonwealth Africa” 2021 South African Mercantile Law Journal 319.

Fredericks “Contractual capacity in African private international law” in Omlor (ed) Weltbürgerliches Recht. Festschrift für Michael Martinek zum 70. Geburtstag (CH Beck, 2020) 199.

Neels “The African Principles on the Law Applicable to International Commercial Contracts – a first drafting experiment” 2020 Uniform Law Review 426.

Neels “An experiment in the systematization of South African conflicts rules” in Omlor (ed) Weltbürgerliches Recht. Festschrift für Michael Martinek zum 70. Geburtstag (CH Beck, 2020) 529.

Neels “Characterisation and liberative prescription (the limitation of actions) in private international law – Canadian doctrine in the Eswatini courts (the phenomenon of dual cumulation)” 2021 Journal of Private International Law 361.

Neels “South African perspectives on the Hague Principles” in Girsberger, Kadner Graziano and Neels (gen eds) Choice of Law in International Commercial Contracts. Global Perspectives on the Hague Principles (OUP, 2021) 350.

Neels “International commercial law emerging in Africa” 2022 Potchefstroom Electronic Law Journal Special Edition Festschrift Charl Hugo http://dx.doi.org/10.17159/1727-3781/2022/v25i0a14381.

Neels and Fredericks “The African Principles of Commercial Private International Law and the Hague Principles” in Girsberger, Kadner Graziano and Neels (gen eds) Choice of Law in International Commercial Contracts. Global Perspectives on the Hague Principles (OUP, 2021) 239.

Neels and Fredericks “Recognition and enforcement of Slovenian judgments in South Africa – contractual claims and supranational or international jurisdiction” in Fourie and Škerl (eds) Universality of the Rule of Law. Slovenian and South African Perspectives (Sun Press, 2021) 193.

Neels and Fredericks “Covid-19 regulations as overriding mandatory provisions in private international law – a comparison of regional, supranational and international instruments with the proposed African Principles on the Law Applicable to International Commercial Contracts” in Watney (ed) The Impact of COVID-19 on the Future of Law and Related Disciplines (UJ Press, 2022) 1.

Obiri-Korang “Party autonomy: promoting legal certainty and predictability in international commercial contracts through choice of law (applicable rules of law)” 2022 Journal of South African Law 106.

Obiri-Korang “Primary connecting factors considered by South African courts to determine applicable law of international contracts on the sale of goods” 2022 Lex Portus 7.

Okorley “The possible impact of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial matters on private international law in Ghana” 2022 UCC Law Journal 85.

Schoeman “South Africa: time for reform” in Keyes (ed) Optional Choice of Court Agreements in Private International Law (Springer, 2020) 347.

Wethmar-Lemmer “Recognition and enforcement of foreign arbitral awards under the International Arbitration Act 17 of 2017” 2019 SA Merc LJ 378 (appeared in 2020).

Wethmar-Lemmer “The new South African international arbitration landscape – advances and remaining conflict of laws challenges” in Omlor (ed) Weltbürgerliches Recht. Festschrift für Michael Martinek zum 70 Geburtstag (CH Beck, 2020) 867.

Wethmar-Lemmer “International commercial arbitration in South Africa and the CISG” 2022 Uniform Commercial Code Law Journal 311.

Written by Stephen G.A. Pitel, Faculty of Law, Western University

The Supreme Court of Canada has released its decision in F v N, 2022 SCC 51 (available here) and the decision offers some important observations about the law on international child abduction. The court held 5-4 that two young children taken by their mother from UAE to Ontario are to be returned to their father in UAE.

The father and mother were engaged in a dispute over custody rights of the children. The court noted that in the removal/return context, it was not deciding the custody issue but rather deciding which court – Ontario or UAE – would decide that issue [para 1]. Because UAE is not a party to the Convention on the Civil Aspects of International Child Abduction, the issue of whether the children should be returned to UAE arose under Ontario legislation (Children’s Law Reform Act, RSO 1990, c C.12), though the court noted similarities between the two regimes [para 52].

The majority decision offers several observations as to the law, and the dissent does not directly disagree with them. First, while consideration of the best interests of the children is paramount, the Ontario legislation, as structured, presumes that their best interests are aligned with their prompt return to their habitual residence [paras 9, 63-64]. As a result the court should not conduct a broad best-interests inquiry [para 65]. Second, while the legislation would allow return to be refused in a case in which the child would thereby suffer serious harm (see s 23), the burden of showing this is “demanding” [para 69]. The analysis must be “highly individualized” and not a general assessment of the society to which the children would be returned [para 72]. Third, there is no absolute rule that serious harm will always be established as a result of separating young children from their primary caregiver [paras 77-78].

The majority finds that the trial judge found no risk of serious harm and that this conclusion is entitled to appellate deference [para 103]. In stark contrast, the dissent finds the trial judge “misapprehended the evidence” and so made “material errors” in assessing the risk of serious harm [paras 142-43]. At one level the dissent’s concern is with the quality of the trial judge’s reasons about the key issues. It notes that in the 482 paragraph decision only 8 paragraphs addressed the application of the serious harm exception to return as applied to these facts [paras 148-49]. It finds that the reasons give rise to a reasoned belief that the trial judge “must have forgotten, ignored or misconceived the evidence” [para 157]. Absent such a misapprehension of the evidence, a particular conclusion by the trial judge is said to be “inexplicable” [para 185].

Moving beyond the dissent’s concerns about the trial judge’s reasons, the dissent concludes that the mother met her burden of establishing a risk of serious harm if the children were returned to UAE [para 147]. This appears to be centrally based on the view that the children would thereby be removed from their primary caregiver [paras 173, 179]. The dissent does not find that any of the other factors in play sufficiently reduce this central concern.

The majority appears motivated not to create precedent for a rule or even “near-rule” that young children should not be separated from their primary caregiver through a return because this would subvert the scheme of the legislation and make Ontario something of a haven for abducting parents [para 78]. The dissent claims its decision would not create such a rule [para 194] but it is open to debate how far along a path towards such a rule it travels.

The decision is also interesting for its discussion of the use of undertakings given by the party seeking return of the children in order to make it easier for the court to agree [paras 98, 129-36]. The court notes that there can be enforcement problems relating to such undertakings and discusses potential solutions to these problems.

Finally, there was some argument that the law of UAE should have played a role in refusing return. The majority is clear: the mother’s “characterization of UAE law as an inherent source of serious harm must be rejected” [para 10]. The trial judge found that in the UAE the best interests of the child would be paramount in a custody determination and that decision was entitled to deference on the appeal [paras 11, 84-92]. The dissent did not engage with this issue.

The HCCH and and the Istanbul Bilgi University, Department of Private International Law, are organising a webinar on the 1996 Hague Child Protection Convention on 6 December 2022, 3 pm-5 pm (GMT +3).

The HCCH 1996 Child Protection Convention has been occupying a crucial spot for the protection of children in today’s globalized world, for more than 25 years. Experts from several countries, including central authority representatives, will discuss the convention, which tries to ensure that children are affected by intrafamilial disputes as little as possible, and will share their experiences as regards its application.

The webinar plan is as follows:

First Session

Moderator: Prof. Dr. Faruk Kerem Giray – Istanbul University Faculty of Law, Private International Law Department

• Introduction: “The HCCH 1996 Child Protection Convention: Main Features, Challenges and Opportunities After 25 Years” – Raquel Salinas Peixoto (on behalf of the Hague Conference on Private International Law)
• “Basic Concepts of the Convention, Role and Function of Central Authorities (GER)” – Christian Höhn – Germany, Central Authority, Federal Office of Justice
• “Basic Concepts of the Convention, Duties and Functions of Central Authorities (SUI)” – Joëlle Schickel-Küng – Switzerland, Central Authority, Co-Head, Private International Law Unit, Federal Office of Justice

Second Session

Moderator: Retired Judge Izzet Do?an

• “The Issue of Jurisdiction and General Experience of the Operation of the Convention” – Lord Justice Andrew MOYLAN – UK, Judge of the Court of Appeal, The Royal Courts of Justice, London
• “The Determination of the Applicable Law According to the HCCH 1996 Child Protection” – Judge Dr. Joanna GUTTZEIT – Germany, Judge of the Family Court, Local Court of Pankow (Richterin am Amtsgericht Pankow), Berlin, Liaison Judge of the International Hague Network of Judges
• “Recognition-Enforcement Pursuant to the Convention, and the Practical Benefits” – Carolina Marín Pedreño – Practitioner, Partner, Dawson Cornwell

I was recently alerted to the publication of Volume 2, Issue 1 of UCC Law Journal 2022, which contains articles on Ghanian law. One article in the journal is focused on our beloved subject of private international law:

S Okorley, The Possible Impact of The 2019 Hague Convention on The Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters on the Grounds of International Competence in Ghana

The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is a product of the Judgments Project of the Hague Conference on Private International Law. The Hague Judgment Convention has the advantage of providing business partners with a simple, efficient, and predictable structure with regards to the recognition and enforcement regime; as well as reducing related cost. More specifically, the convention fosters predictability and certainty in international commercial relations by enabling international commercial partners to be precisely informed of the grounds on which the decision of the court of one contracting state will be recognised or enforced in the territory of another contracting state. The Convention offers a wide range of jurisdictional filters for the purposes of recognition and enforcement of judgments from Contracting States. This article discusses the modern and innovative grounds of international competence introduced by the Hague Convention and its potential impact on the grounds of international competence for Ghana if Ghana ratifies the convention. The article recommends the ratification of the 2019 Hague Judgment Convention as it would be of enormous benefit to Ghana whose grounds of international competence when it comes to recognition and enforcement of foreign judgments seems antiquated and confined only to residence, submission and more controversially, the presence of the judgment debtor in the jurisdiction of the foreign court.

The article is freely accessible, or open access. The article is based on the author’s LL.M dissertation that was undertaken at the University of Johannesburg under the supervision of Professor Jan Neels.

LIN Jidong, Wuhan University Institute of International Law

1. Background

The Chinese Supreme People’s Court (hereinafter “SPC“) issued “SPC’s Regulation on Several Matters Concerning the Jurisdiction of Foreign-Related Disputes” (hereinafter “Regulation 2022“),[1] which will enter into force on 1st January 2023. The Regulation focuses on hierarchical jurisdiction in cross-border litigation, although its title does not explicitly say so. According to SPC, the Regulation responds to the new circumstance of open-up after the 18th National Congress of the Communist Party of China. It has great value in protecting the right of parties, both foreign and domestic, making litigation more convenient and improving the quality and efficiency of the trial of foreign-related civil and commercial disputes.

2. Main Content

The Content can be divided into different categories according to the goals of Regulation 2022.

?1?Convenience and Efficiency

One of the most important goals of Regulation 2022 is to improve the efficiency of trial and bring convenience to the parties. To achieve this goal, Regulation 2022 has rearranged the hierarchical jurisdiction. Regulation 2022 generally authorises all the grass-roots courts to hear foreign-related disputes (Art. 1) and limits the jurisdiction of intermediate and higher courts (Art. 2 & Art. 3).

Initially, the hierarchical jurisdiction of foreign-related disputes was regulated by the 2002 SPC’s Regulation on Several Matters Concerning the Jurisdiction of Foreign-Related Litigations (hereinafter “Regulation 2002”).[2] Under Regulation 2002, only a few intermediate courts and grass-root courts were authorised to hear foreign-related disputes. In the past 20 years, the SPC has authorised more and more intermediate courts to hear foreign-related disputes according to the applications of higher courts. Nowadays, most intermediate courts have the jurisdiction to hear foreign-related disputes. But still, only a few grass-roots courts have such jurisdiction.

Such an arrangement has some adverse impacts. Firstly, the parties would have to sue in intermediate courts. Ordinarily, there is only one intermediate court in one city. Such an arrangement means that all the citizens would have to sue in one court instead of suing in their local grass-roots courts. This would inevitably bring inconvenience to the parties. Secondly, the intermediate courts may also overload by a large number of cases, which would decrease the efficiency of trials. In the past 20 years, the number of foreign-related cases has significantly increased. In 2022, the number of cases seized by courts of the first instance has exceeded 17 thousand. Such a circumstance not only increases the pressure on the judges but also decreases the efficiency of trials. It should also be noted that according to Art. 277 of the PRC Civil Procedure Law, different from domestic trials, foreign-related trials would not be subject to the statutory time limit. Thus, parties in foreign-related disputes may have to wait longer to receive judgments.

The Regulation 2022 enables nearly all grass-root courts to hear cross-border disputes, which brings convenience to the parties and reduces the burden of intermediate courts.

?2?Quality and Professionalism

Regulation 2022 also takes measures to ensure and improve the quality and professionalism of foreign-related trials. These efforts stem from the achievement of the judicial system reform, especially the establishment of the judge quota system. The judge quota system re-selects competent judges from the existing judges. Only limited judges who passed the re-selection would be authorised to hear the trial based on their qualification, professionalism, specialisation, and experience. The reform enhanced the overall ability of the judges and increased the percentage of judges with the knowledge base and competence to hear foreign-related disputes.

The efforts to improve the quality and professionalism in Regulation 2022 could be divided into two perspectives. On the one hand, Regulation 2022 reserves the centralised jurisdiction, which originated from Regulation 2002, with some adjustments (Art. 4). On the other hand, Regulation 2022 makes clear that foreign-related disputes should be heard in a specialised tribunal or collegial panel (Art. 5).

a. Centralised Jurisdiction

The centralised jurisdiction centralises jurisdiction of foreign-related disputes #in intermediate courts. Traditionally, centralised jurisdiction would have impact in both hierarchical and territorial aspects. From the hierarchical aspect, the centralised jurisdiction could deprive the grass-roots courts of jurisdiction to hear foreign-related disputes. From the territorial aspect, the centralised jurisdiction allows the appointed intermediate court to hear the dispute across its administrative division. Assume that Province A consists of five cities: City A, B, C, D, and E. If courts in City A were to be appointed to exercise the centralised jurisdiction, then the courts in City A would have jurisdiction over all foreign-related disputes, including those cases which courts in City B, C, D and E should hear.

The centralised jurisdiction could improve the quality of the trials. Firstly, the centralised jurisdiction could ensure that some experienced and better-trained judges would hear the cases. In general, foreign-related disputes are more complex than domestic disputes and thus would pose more challenges to the judges. The courts appointed to exercise centralised jurisdiction usually have better-trained judges and, therefore, would be more competent to hear foreign-related disputes. Furthermore, there may be a huge gap in the quantities of foreign-related disputes among different courts. The centralised jurisdiction would also let those experienced courts hear the disputes and improve the quality of trials. Secondly, the centralised jurisdiction would increase the consistency of the judgements. Courts in PRC are not bound by precedents. The centralised jurisdiction allows the same courts or tribunal to hear similar cases in one region to achieve the consistency of judgements. Thirdly, the centralised jurisdiction would reduce local protectionism. The centralised jurisdiction may prevent local government’s intervention in trial and create a relatively neutral place for the parties by moving the local party out from their home court.

However, the centralised jurisdiction may negatively affect efficiency. Thus, Regulation 2022 tries to strike a balance between professionalism and efficiency. Firstly, centralised jurisdiction is an exception that applies in limited situations instead of being a general rule. Centralised jurisdiction may only be granted if higher courts consider it necessary and acquire SPC’s approval. Secondly, the impact of centralised jurisdiction is limited to the territorial aspect and would no longer prejudice the hierarchical jurisdiction. According to the SPC, there would be only two categories of centralised jurisdiction: the centralised jurisdiction of grass-roots courts and the centralised jurisdiction of intermediate courts. The centralised jurisdiction of grass-roots courts means that one authorised grass-roots court would have jurisdiction over all the first instance foreign-related cases in the region subject to its prior intermediate court’s jurisdiction. The other type of centralised jurisdiction is the centralised jurisdiction of intermediate courts. An authorised intermediate court could hear all the cases in the region subject to its prior high court’s jurisdiction, including trial of first instance and appeal from grass-roots courts.

b. Specialised Tribunal

Regulation 2022 makes clear that the foreign-related dispute should be heard in a specialised tribunal or collegial panel (Art. 5). This provision tries to improve the professionalism of the trial by centralising all the cases into a tribunal or collegial consisting of experienced and specialised judges in the court. In practice, several courts have already established such a tribunal. However, since Regulation 2022 authorises all the grass-roots courts to hear foreign-related disputes, it is necessary to ensure that each court is properly staffed to establish an appropriate division of responsibility of the tribunals.

Such a requirement was also prescribed in previous judicial interpretations. However, those interpretations were not as definite and broad as the present one. For instance, the SPC’s Notice of 2017 on the Clarification of the Hierarchical Jurisdiction of the First Trial of the Foreign-Related Disputes and Several Issues concerning Belongings of Cases has listed several cases be heard by a specialised tribunal or collegial panel.[3] The SPC’s Notice of 2017 on Several Issues concerning Belongings of Judicial Review of Arbitration also prescribed that the judicial review of arbitration should be subject to a specialised tribunal or collegial panel that takes charge of trials of foreign-related disputes.[4] Compared with these previous regulations, the provision in Regulation 2022 is more general and has a broader coverage.

?3?Compatibility between Regulations

Regulation 2022 also establishes some rules to achieve compatibility between different regulations.

Firstly, Regulation 2022 reforms the correspondent rules in foreign-related disputes to be compatible with the newly reformed hierarchical jurisdiction of domestic disputes. The standard of high courts’ jurisdiction to hear the first trial of foreign-related disputes is now the same as their jurisdiction to hear domestic cases. The Regulation also raises the standard of intermediate courts’ jurisdiction to hear the first trial of foreign-related disputes and reduces the difference in this aspect with domestic cases. These would prevent the situation that most domestic cases would be heard in grass-roots courts while foreign-related cases would be heard in intermediate courts, even though the latter’s value is lower.

Secondly, Regulation 2022 has a clear scope of applications. In the past, the scope of application of Regulation 2002 is vague. Regulation 2002 applies to several listed types of foreign-related cases but keeps silent on its application to the other types of foreign-related cases. Regulation 2002 also excludes its application to “trade disputes occurred in border provinces and foreign-related real estate disputes”. However, there was not a uniform understanding of the scope of these two types of cases. In contrast, Regulation 2022 generally applies to all foreign-related disputes with some explicit exclusions, including maritime disputes, foreign-related IP disputes, foreign-related environmental damages disputes and foreign-related environmental public litigation (Art. 6). The maritime disputes would be subject to Maritime Court as a specialised court in China, and its hierarchical jurisdiction would be governed by Maritime Litigation Procedure Law. The hierarchical jurisdiction of the other three types of disputes is subject to their respective judicial interpretation of SPC.

?4?Predictability

Regulation 2022 enhances the predictability of the hierarchical jurisdiction. Before the new Regulation, SPC has made many individual authorisations for centralised jurisdiction of intermediate or grass-roots courts. However, due to the differences in the levels of economic development, the authorisations vary between regions. In some regions, all grass-roots courts maybe competent to hear foreign-related disputes; in other regions, only a few intermediate courts would have jurisdiction. It causes confusion in practice and the parties have to do research on hierarchical jurisdiction in each specific region to ensure they bring the case to the right court.

After the release of Regulation 2022, all the grass-roots courts would generally have jurisdiction to hear foreign-related disputes. The centralised jurisdiction would be limited in territorial aspect and would be publicized in advance, according to paragraph 2, Art. 4 of Regulation 2022. Regulation 2022 will abolish previous regulations and serve as a comprehensive guideline on hierarchical jurisdiction of foreign-related disputes (Art. 9). Regulation 2022 will enhance the predictability of the parties.

3. Conclusion

Chinese hierarchical jurisdiction in foreign-related disputes has been one of the most unclear and confusing matters in practice. Regulation 2022 has made significant progress in hierarchical jurisdiction. It improves the convenience and easy access to justice in foreign-related disputes, and balances other interests including professionalism and predictability. It manifests China’s determination to continue opening up in the current era by providing a more user-friendly judicial environment to parties in the international trade and commerce.

[1] Supreme People’s Court’s Regulation on Several Matters Concerning the Jurisdiction of Foreign-Related Disputes, [2022] Fa Shi No. 18.

[2] Supreme People’s Court’s Regulation on Several Matters Concerning the Jurisdiction of Foreign-Related Litigations, [2002] Fa Shi No. 5.

[3] Supreme People’s Court’s Notice of 2017 on the Clarification of the Hierarchical Jurisdiction of the First Trial of the Foreign-Related Disputes and Several Issues concerning Belongings of Cases, [2017] Fa No. 359, para. 2.

[4] Supreme People’s Court’s Notice of 2017 on Several Issues concerning Belongings of Judicial Review of Arbitration, [2017] Fa No. 152, para. 2.

Conventions & Instruments

On 1 November 2022, the 2000 Protection of Adults Convention entered into force for Greece. The Convention currently has 14 Contracting Parties. More information is available here.

On 11 November 2022, Malta signed the 2000 Protection of Adults Convention, during the first meeting of the Special Commission on the Practical Operation of the Convention. The Convention will enter into force for Malta further to the deposit of its instrument of ratification, in accordance with Article 53 of the Convention. More information is available here.

On 14 November 2022, Botswana deposited its instrument of accession to the 1980 Child Abduction Convention, 1993 Adoption Convention, and 2007 Child Support Convention. With the accession of Botswana, the Child Abduction Convention now has 103 Contracting Parties. It will enter into force for Botswana on 1 February 2023. For the Adoption Convention, with the accession of Botswana it now has 105 Contracting Parties. The Convention will enter into force for Botswana on 1 March 2023. Finally, following the accession of Botswana 45 States and the European Union are bound by the Child Support Convention. It will enter into force for Botswana on 16 November 2023. More information is available here.

Meetings & Events

On 8 November 2022, the HCCH’s Regional Office for Asia and the Pacific hosted the workshop “HCCH Conventions Supporting Transnational Litigation in Civil or Commercial Matters”, in partnership with the Department of Justice of the Government of the Hong Kong SAR. The workshop was held during Hong Kong Legal Week 2022, in celebration of the tenth Anniversary of the Regional Office for Asia and the Pacific. More information is available here.

From 9 to 11 November 2022, the First Meeting of the Special Commission on the Practical Operation of the 2000 Protection of Adults Convention was held in The Hague, attended by over 100 participants, in person and via videoconference, representing Contracting Parties, HCCH Members, and Observers. The meeting resulted in the adoption of over 70 Conclusions & Recommendations, which provide guidance to (prospective) Contracting Parties on a wide range of issues relating to the implementation and practical operation of this Convention. More information is available here.

Vacancies

Applications are now open for the position of Head of Human Resources (part-time, 75% or less). The deadline for the submission of applications is 9 December 2022. More information is available here.

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

Written by Hans van Loon, former Secretary General of the HCCH and Honorary Professor of the University of Edinburgh Law School

As reported in this blog before (see CSDD and PIL: Some Remarks on the Directive Proposal), the European Commission on 23 February 2022 adopted a proposal for a Directive on corporate sustainability due diligence.

Earlier, at its annual meeting in 2021, the European Group for Private International Law (GEDIP) had adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability, and this blog reported on this Recommendation too, see GEDIP Recommendation to the European Commission on the private international law aspects of the future EU instrument on corporate due diligence and accountability.

While some of the recommendations proposed by GEDIP last year are reflected in the Draft Directive, the Draft fails to follow up on several crucial recommendations concerning judicial jurisdiction and applicable law. This will detract from its effectiveness.

In particular:

• The Proposal, while extending to third country companies lacks a provision on judicial jurisdiction in respect of such companies;
• The Proposal, while extending a company’s liability to the activities of its subsidiaries and to value chain co-operations carried out by entities “with which the company has a well-established business relationship”, lacks a provision dealing with the limitation of the provision on co-defendants in the Brussels I bis Regulation (Article 8(1)) to those domiciled in the EU;
• The Proposal lacks a provision allowing a victim of a violation of human rights to also invoke, similar to a victim of environmental damage under Article 7 of Regulation 864/2007 (Rome II), the law of the country in which the event giving rise to the damage occurred, and does not prevent companies from invoking a less strict rule of safety or conduct within the meaning of Article 17 of Rome II;
• The provision of the Proposal on the mandatory nature of the provisions of national law transposing the Directive (Article 22 (5)) is insufficient because (i) the words “in cases where the law applicable to actions for damages to this effect is not that of a Member State” are redundant and (ii) allthese provisions of national law transposing the Directive should apply irrespective of the law applicable to companies, contractual obligations or non-contractual obligations.

GEDIP therefore, on the occasion of its meeting in Oslo, 9-11 September 2022 adopted a Recommendation concerning the Proposal for a directive of 23 February 2022 on Corporate Sustainability Due Diligence, following up on its Recommendation to the Commission of 8 October 2021. The text of the Recommendation can be found here.

[This post is cross-posted at the EAPIL blog]

This book by Nazia Yaqub is an addition to the Hart series, in which several books on international child abduction have been published. The author investigates Islamic law, discussing where relevant the history and the different schools, and the specific legal rules of the selected States that have not acceded to the Hague Child Abduction Convention (1980), as well as Morocco, which has acceded. She also examines whether the ratification of the Hague Child Abduction Convention by more States with Islamic legal systems would offer an improvement to the protection of children’s rights. The author analyses the child’s right to have their best interests taken as a primary consideration, the child’s right to be given the opportunity to be heard, and the child’s right to non-discrimination. The analysis places not only Islamic law under scrutiny but also the Hague Convention.

Besides using policy documents and international literature, she has also interviewed persons who were involved in child abductions.

The difficult discussion about the best interests of the child, including the issues that arise in this regard under the Hague Child Abduction Convention and the law in the Islamic States is presented in a nuanced way, keeping to the central theme of children’s rights. The detailed and rigorous analysis explores Islamic law, utilises case studies garnered from the empirical research and the Hague Convention. The book also sets out various models of child participation and shows how this right is only partially respected in Islamic law States and by the Hague Convention. It is argued that a child-centred approach requires separate representation for children.

The book also discusses non-discrimination, considering not only children’s rights but also other human rights instruments, especially concerning the rights of women (and girls). The author does not only consider discrimination to which children are subjected but also discrimination of mothers that directly influence children. This leads to an interesting and important analysis regarding the cultural nature of children’s rights and the reality of the relation nature of children’s rights with their mother/primary carer. Considerable thought is given to the ground for refusal in Article 20 of the Hague Child Abduction Convention. What also emerges through the analysis is the changing gendered dimension of parental abductions and the problematic issue of abduction by primary carers.

Nazia Yaqub is a lecturer in law at Leeds Beckett University, UK.

Oct 2022   |   9781509939114   |   304pp   |   Hbk   |    RRP: £85 / $115

Discount Price: £68 / $92

Order online at www.bloomsbury.com  – use the code GLR AP3UK for UK orders and GLR AP3US for US orders to get 20% off!

The International Union of Judicial Officers / Union internationale des huissiers de justice (UIHJ) is the highest representative body of judicial officers in the world. On the occasion of its annual Permanent Council, the Union  celebrated its 70th Anniversary in Paris on November 24, 2022, at the Espace Niemeyer.

A full report of the celebration agenda and activities is available here.

The Centre for Private International Law of the University of Aberdeen is organsing a webinar in its Crossroads in Private International Law Series, The Private Side of Transforming Our World: UN Sustainable Development Goals 2030 and the Role of Private International Law. The webinar will take place on 5 December 2022 at 2 pm (GMT).

Prof Dr Verónica Ruiz Abou-Nigm (Chair of Private International Law, School of Law, University of Edinburgh) will focus on the role of private international law in implementing the sustainable development goals (SDGs) of the United Nations 2030 Agenda and highlight, however, that it is essential to assess the impact of contemporary approaches in PIL on the realisation of the SDGs in a changeable legal landscape. She was one of the editors of the volume The Private Side of Transforming our World (Intersentia, 2021), which demonstrates that private international law is as an integral part of the global legal architecture needed to turn the SDGs into reality.

The event will be moderated by Prof Laura Carballo Piñeiro of the Universida de Vigo.

Interested persons should please register.

This editorial has been prepared by Prof. Paris Arvanitakis, Aristotle University of  Thessaloniki, Greece.

The European Regulations of Private and Procedural International Law are part of an enclosed legislative system. Since the early stages of European integration, third countries, and in particular the USA, had expressed their objections concerning the European integration process, questioning whether it reflects a “nationalistic” character, certainly not in the sense of ethnocentric provisions, since the European legislator had chosen the domicile  instead of citizenship as the fundamental ground of jurisdiction from the beginning, but mostly because European law applied extreme provisions, such as the exorbitant jurisdiction, only against persons residing outside the EU, as well as the inability of third countries to make use of procedural options provided to member states (see Kerameus, Erweiterung des EuGVÜ-Systems und Verhältnis zu Drittstaaten, Studia Juridica V, 2008, pp. 483 ff., 497). However, the EU never intended a global jurisdictional unification. It simply envisioned a regional legislative internal harmonization in favor of its member states. Like any regional unification, EU law involves discriminatory treatment against those who fall outside its scope. But even when the EU regulates disputes between member states and third countries (for example, the Rome Regulations on applicable law), it does so, not to bind third countries to EU law -nor it could do so-, but to avoid divergent solutions among its member states in their relations with third countries. ?owever, as the issue on the relationship between European Regulations and third countries continues to expand, a precise demarcation of the boundaries of application of European rules, which often differ even within the same legislative text, acquires practical importance.

The “Focus” of the present issue intends to highlight these discrepancies, as well as the corresponding convergences between European Regulations of Private / Procedural International Law and third countries. During an online conference on this topic, which took place on the 29th of September 2022, we had the great honor to host a discussion between well-known academics and leading domestic lawyers, who have dealt with this topic in depth. We had the horror to welcome the presentations of: Ms. Astrid Stadler, Professor of Civil Law, Civil Procedure, Private International and Comparative Law at the University of Konstanz/Germany, who presented a general introduction on the topic (‘Ein Überblick auf die Drittstaatenproblematik in der Brüssel Ia VO’); Mr. Symeon Symeonides, a distinguished Professor of Law, at the Willamette University USA, , who presented an extremely interesting analysis on  ‘An Outsider’s View of the Brussels Ia, Rome I, and Rome II Regulations’; Dr. Georgios Safouris, Judge and Counselor of Justice of Greece at the Permanent Greek Representation in the EU, , , who examined the application of the Brussels Ia and Brussels IIa Regulations in disputes with third countries, from the lens of the CJEU jurisprudence; Mr. Nikitas Hatzimichael ,Professor at the Law Department of the University of Cyprus, , who developed the important doctrinal issue of the exercise of judge’s discretion in the procedural framework of the European Regulations in relation to third countries;  Ms. Anastasia Kalantzi, PhD Candidate at the Aristotle University of Thessaloniki who dealt with the key issue of European lis pendens rules and third countries; and, finally Mr. Dimitrios Tsikrikas, Professor of Civil Procedure at the University of Athens, who developed the fundamental issue of the legal consequences of court judgments vis-à-vis third countries. On the topic of the relations between European Regulations and third countries, the expert opinion of the author of this editorial is also included in the present issue, focusing on multi-party disputes in cases where some of the defendants are EU residents and others residents of a third country.

In the “Praefatio”, Mr. Nikolaos Nikas, Emeritus Professor at the Faculty of Law of the Aristotle University of Thessaloniki presents his thoughts on what is the “next stage on the path to European procedural harmonization: the digitization of justice delivery systems“. In the part of the jurisprudence, two recent judgments of the CJEU are presented: the decision No C-572/21 (CC/VO) regarding international jurisdiction on parental responsibility, when the usual residence of the child was legally transferred during the trial to a third state, that is a signatory to the 1996 Convention, , with a comment by the Judge Mr. I. Valmantonis, and the important decision No C-700/20 (London Steam/Spain), which is analyzed by  Mr. Komninos Komnios,  Professor at the International Hellenic University, (“Arbitration and Brussels Ia Regulation: Descent of the ‘Spanish Armada’ in the English legal order?”). Regarding domestic jurisprudence, the present issue includes the Supreme Court judgment No. 1181/2022, which demonstrates the incompatibility of the relevant provision of the new Greek CPC on service abroad with EU and ECHR rules, with a case comment by the undersigned, as well as a judgment of the County Court of Piraeus (73/2020), regarding the binding nature of the parties’ request for an oral presentation in the European Small Claims procedure, with a comment by Judge Ms. K. Chronopoulou. Finally, interesting issues of private international law on torts are also highlighted in the decisions of the Athens First Instance Court No 102/2019 and No 4608/2020, commented by Dr. N. Zaprianos.

Lex & Forum renews its scientific appointment with its readers for the next (eighth) issue, focusing on family disputes of a cross-border nature.

The fourth issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2022 was published today online. It features the following case notes and articles:

A Briggs, Arbitration in Europe: The Luxembourg Torpedo

M Davies, Discovery in the USA for Arbitration elsewhere: A Postscript

A Tettenborn, Marine Collision Claims: Jurisdiction Agreements and Security

A Giannakopoulos, Conflict of Jurisdiction Clauses in Multipartite Litigation

The interdisciplinary Zentralinstitut Centre for British Studies at Humboldt-Universität zu Berlin is seeking to fill a tenured W3 Professorship for UK Politics, Law, and Economy. 

The Institute is looking for an interdisciplinary scholar from Politics, Law or Economics, with a significant and proven UK-related profile and interest in political, legal, and economic research questions. 

The postholder is expected to represent the subjects of UK politics, law and economy in teaching, research, and in terms of knowledge exchange, also for the general public. Teaching duties have to be fulfilled mainly at the Centre for British Studies as part of the MA British Studies and mainly in English. 

Broad research areas, methodological openness and versatility are expected as well as the willingness to connect with UK-related research networks and academics in Berlin, Potsdam, and with Anglophone partners elsewhere. Furthermore, the institutes expects the postholder to enhance and renew existing networks within the Berlin University Alliance, that they will help modernise the Graduate School for British Studies, apply for large-scale UK-related funding and lead on them and that the postholder will represent the Centre in all respects. Near-native spoken and written English and C1 level German are a requirement and active participation in all GBZ and HU committees is also expected. 

Furthermore, the institute expects UK teaching, research, publishing and knowledge exchange as well as research leadership experience; proven experience / activities in public relations and outreach. 

The applicants must meet the legal requirements for professorial appointments in accordance with § 100 of the `Berliner Hochschulgesetz´. 

HU is seeking to increase the proportion of women in research and teaching, and specifically encourages qualified female scholars to apply. Researchers from abroad are welcome to apply. Severely disabled applicants with equivalent qualifications will be given preferential consideration. People with an immigration background are specifically encouraged to apply. 

Applications including a CV, copies of certificates and diplomas, detailed information on teaching experience, a teaching policy (max. 2 pages), past, present and future interdisciplinary research projects (max. 2 pages), and an outline for the next 10 years of the GBZ (max. 2 pages), a list of publications within three weeks (16 December 2022) together with the code number PR/012/22 should be sent to the following address: 

Humboldt-Universität zu Berlin

An die stellvertretende Direktorin des GBZ

Prof. Dr. Gesa Stedman

Mohrenstr. 60

10117 Berlin 

In addition, the application should be sent as a single PDF to the following email address: gbz@gbz.hu-berlin.de. Applications will not be returned. Therefore only copies (and no original documents) should be handed in. 

Any queries can be addressed to gesa.stedman@hu-berlin.de. 

For more details please visit www.hu-berlin.de/stellenangebote, which gives you access to the legally binding German version of the call for applications. 

After a great deal of controversial discussion, the EU Representative Actions Directive was passed in late 2020 and has to be transposed by Member States till December 25 of this year. For the first time, the Directive will require MS to introduce the possibility for qualified entities to sue for compensation on behalf of harmed consumers. 

Key questions regarding the implementation of the Directive will be discussed at a hybrid workshop hosted by Prof. Susanne Augenhofer, LL.M. (Yale) and the Austrian Newspaper “Die Presse” this coming Monday, November 28th, 2022 (6:30 p.m). Various stakeholders from the plaintiff / defendant spectrum as well as Prof. Beate Gsell from the LMU Munich will be present as speakers.

Further information about the panelists and the link for registration can be found here.

The event will be conducted in German and is free of charge. 

In its judgment handed down today, the Court of Justice clarifies in essence that, under the Lugano II Convention, an agreement of choice of court meets the requirements set in Article 23(1) and (2) of the Convention in the scenario where that choice of court agreement is contained in the general terms and conditions set out on a web page, to which the contract signed by the parties contains a reference to, with no box-ticking being mechanism being implemented on the said web page.

Doing so, the Court ruled that the relevant requirements provided for in the Lugano II Convention are drafted in essentially identical terms to those of the Brussels I bis Regulation (para. 34). Thus, the relevance of the judgment may not confine itself to the framework of the aforementioned Convention, but could possibly also extend to the Regulation.

Interestingly enough, earlier this week, thanks to the post made by Geert van Calster on his blog, I learned about the EWHC judgment concerning, inter alia, the choice of court and law included in general terms and conditions, by inclusion in email and /or e-mailed click-wrapeable hyperlink. While the facts and issues discussed in those cases are not identical, both of them illustrate that there is still something to say about choice of court agreements in online environment, despite their widespread use.

Context of the request for a preliminary ruling and the legal issue at hand

A company established in Belgium enters into a contract with a Swiss company.

The contract states that it is subject to the general terms and conditions for the purchase of goods set out on a specific web page (with the address to the website being precisely indicated in the agreement).

The aforementioned general terms and conditions provide that the English courts have jurisdiction to hear and determine any dispute in connection with the contract, and that contract is governed by, and to be interpreted in accordance with, English law.

A dispute arises and the Belgian company initiates proceedings against its Swiss contractor before the courts in Belgium.

The dispute concerns whether that agreement on choice of court was properly concluded between the parties and, therefore, whether it is enforceable in the main proceedings.

Through the proceedings, up to the Court of Cassation, the Belgian company argues that it signed a contract which contained merely a reference to it contractor’s general terms and conditions, which are available on the latter’s website. It claims that it was in no way prompted to accept the general terms and conditions formally by clicking on the corresponding box on the website. It therefore follows that the guidance provided by case-law cannot be transposed to the present proceedings. The situation in which a party signs a document which contains a reference to general terms and conditions that are accessible online (as in the present case) differs from that in which that party formally and directly agrees to those general terms and conditions by ticking a relevant box (see judgments in Estasis Saloti di Colzani, 24/76, and El Majdoub, C-322/14).

Faced with this argument, the Court of Cassation brought its request for a preliminary ruling before the Court of Justice, asking:

“Are the requirements under Article 23(1)(a) and (2) of the [Lugano II Convention] satisfied where a clause conferring jurisdiction is contained in general terms and conditions to which a contract concluded in writing refers by providing the hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed, without the party against whom that clause is enforced having been asked to accept those general terms and conditions by ticking a box on that website?

Findings of the Court and its answer

Before addressing the preliminary question itself, the Court notes that is being called to interpret the Lugano II Convention in order to allow the Belgian courts to decide whether the parties to the main proceedings have conferred jurisdiction to set their disputes to the English courts. The Court recognizes that Brexit may have affected the admissibility of the request for a preliminary ruling and addresses that issue (paras. 28-31).

Indeed, under Article 23 of the Lugano II Convention, the parties may choose a court or the courts of a State bound by this Convention to set their disputes.

Seen from today’s perspective, the choice of court made by the parties to the main proceedings relate to the courts of a State not-bound by the Convention (and, I digress, still looking from that perspective: even where the Belgian court declines jurisdiction in favour of the English prorogated court, the latter would not be bound by the Convention).

However, the Court notes that the main proceedings were initiated before the end of the transition period provided for in the Withdrawal Agreement (i.e. before 31 December 2020), during which the Lugano II Convention applied to the UK. As the choice of court agreement produces its effect at the time where the proceedings are brought before a national court (para. 30), and – in the present case – at that time the UK applied the Convention, it cannot be concluded that the interstation thereof is not necessary for the referring court to decide on the dispute before it (para. 31).

Concerning the substance, it stems from the request for a preliminary ruling that the argumentation of the Belgian company that led to the preliminary reference boiled down to the contention that the interpretation of the Lugano II Convention under which the choice of law agreement in question is enforceable against that company ignores the requirement of genuine consent. For the said company, observance of genuine consent should be an overriding interpretative policy with regard to Article 23.

The Court addresses this line of argumentation in a detailed manner in paras. 32-59. Thus, I just confine myself to mention only some of its findings.

In particular, the Court seems to stress the commercial/professional nature of the relationship that gave rise to the dispute in the main proceedings and distinguishes those proceedings from the situations that call for consumer-oriented protection (para. 55).

Following this approach the Court addresses, by extension, Article 23(1)(b) and (c) of the Lugano II Convention, which concern, respectively, the agreements concluded “in a form which accords with practices which the parties have established between themselves” and the agreements “in [a form regular for] international trade or commerce” (para. 56).

Ultimately, without necessarily distinguishing between the three scenarios described in (a), (b) and (c), the Court indicates that the requirements stemming from Article 23(1) and (2) can be met by a choice of court agreement, contained in general terms and conditions to which a contract concluded in writing refers by providing the hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed, even without the party against whom that clause is enforced having been asked to accept those general terms and conditions by ticking a box on that website (para. 59).

The judgment is available here (for now only in French).

On December 8, 2022, under the patronage of, among others, the Consulate General of Ukraine in Cracow, the University of Silesia in Katowice (Poland) is hosting an international conference on the private international law aspects of forced displacement resulting from the current situation in Ukraine.

The conference focuses on Polish-Ukrainian relations and the bilateral agreement between those two States, but also addresses some more general issues related to the interplay between EU private international law and such agreements. In addition, some speeches will address the specifics of Ukrainian private international law.

Detailed conference programme can be found here.

Most of the interventions will be delivered in English, with translation into Ukrainian provided throughout the event. Please note that the speeches in Ukrainian or Polish will not be translated into English.

Participation in the conference is possible both in person and through online access. Online participation is free, but registration is mandatory.

Registration for online participation is open until December 7, 2022.

To access the registration form, please follow this link.

Dec 7, 14:00-17:00

Asser Instituut and Online.

More Information and registration here.

On Tuesday, December 6, 2022, the Hamburg Max Planck Institute will host its 28th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST). Prof. Christiane Wendehorst (University of Vienna) will speak, in German, about the topic

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.

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

Giovanna Adinolfi, Professor at the University Milan, States’ Economic Measures to Counter Cyberattacks: Disentangling Their (Il)Legitimacy under International Law

The present contribution draws the attention on measures adopted by States to tackle actual or potential cross-border cyberattacks and that may have an impact on international commercial transactions. With a look to the more recent practice, the distinction is proposed between response measures (addressed against those held responsible for cyber operations that have caused an injury to the target State) and anticipatory or preventive measures (intended to prevent cyberattacks). Against this backdrop, the issue is addressed as to whether both types of measures represent international unlawful acts which find a justification within the international legal order.

Bruno Barel, Associate Professor at the University of Padua, Le notificazioni nello spazio giuridico europeo dopo il regolamento (UE) 2020/1784 (Service of Documents in the European Judicial Area after Regulation (EU) 2020/1784) [in Italian]

The second recast of the uniform rules on the service of judicial and extrajudicial documents in civil or commercial matters introduced three innovative elements of particular relevance to the original framework, that dates back to the year 2000 (and which had already been subjected to recasting in 2007). Two of these novel provisions relate to the technological evolution of remote communications, and they consist of the institution of a common IT system for the telematic transmission of acts and documents between national authorities and of the – albeit timid and prudent – opening to direct forms of service by electronic means between individuals, thus surpassing the mediation of authorities. The third – and equally careful – novel provision attempts to reinforce the assistance between the authorities of different Member States aimed at identifying the address of the person to be served. Moreover, the most innovative part of the regulation will be fully operational only in 2025, in expectation of the full development of the decentralised IT system.

The following comments are also featured:

Pietro Franzina, Professor at the Catholic University of the Sacred Heart – Milan,  Il ruolo degli Incoterms nella determinazione convenzionale del luogo della consegna: note critiche sulla giurisprudenza della Cassazione (The Role of Incoterms in the Determination by Agreement of the Place of Delivery: Critical Notes on the Case Law of the Italian Court of Cassation) [in Italian]

By a recent ruling (Order No 20633 of 28 June 2022), the Italian Supreme Court addressed the issue of the role played by Incoterms in the determination of the place of delivery of the goods for the purposes of Article 7 No 1(b), of Regulation No 1215/2012 of 20 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As in previous rulings on the same subject, the Supreme Court was reluctant to regard the incorporation of Incoterms into a contract as signalling the parties’ agreement on the place of delivery. Specifically, the Supreme Court dismissed the claim by the Italian seller that the contract in question had been agreed “EXW” its own premises in Italy: the Court acknowledged that the goods had in fact been picked up by a carrier hired by the buyer at the seller’s premises, but found that the parties had failed to agree “clearly” on the place of delivery, as it could not be established that the parties had unequivocally intended to make the seller’s premises the place of delivery of the goods for the purposes of jurisdiction. The paper contends that the approach of the Italian Supreme Court contradicts the principles laid down by the Court of Justice in Car Trim and Electrosteel. The approach is unpersuasive in two respects. First, the Supreme Court regards the parties’ agreement on the place of delivery as a derogation from the “general rule” whereby delivery must be understood to be due, for jurisdictional purposes, at the place of final destination of the goods (whereas, according to the Court of Justice, the latter is just a residual rule, which applies where the parties have failed to agree on the place of delivery). Secondly, the Supreme Court disregards the rules of interpretation adopted by the International Chamber of Commerce to describe the parties’ obligations under the different Incoterms, and follows, instead, its own understanding of the Incoterms concerned: actually, the Supreme Court asserted in the decision reviewed that, “as a rule”, the Incoterm EXW only relates to the allocation of the costs of transport and the transfer of risk, and has no bearing as such on the determination of jurisdiction.

Michele Grassi, Research Fellow at the University of Milan, Riconoscimento del rapporto di filiazione omogenitoriale e libertà di circolazione all’interno dell’Unione europea (Recognition of Same-Sex Parentage and Freedom of Movement within the European Union) [in Italian]

This paper aims to provide a critical analysis of the judgment rendered by the Court of Justice of the European Union in the Pancharevo case, where the Court was confronted with the sensitive issue of same-sex parenthood and its recognition in the context of free movement rights within the Union. The investigation focuses on the functional approach adopted by the Court of Justice in the application of the mutual recognition principle, and its possible implications on the recognition of same-sex parenthood for wider purposes, not directly linked to the exercise of free movement rights

Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Jason Grant ALLEN, Peter HUNN (eds.), Smart Legal Contracts. Computable Law in Theory and Practice, Oxford University Press, Oxford, 2022, pp. XIV-513.

Dr Benjamin Hayward*

The United Nations Convention on Contracts for the International Sale of Goods (‘CISG’), currently adopted by 95 States, is a treaty intended to harmonise the laws governing cross-border goods trade: and thereby promote trade itself.  So much is made clear in its Preamble:

The States Parties to this Convention, …

Being of the opinion that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade,

Have agreed as follows: …

Art. 7(1) CISG’s instruction for interpreters to have regard ‘to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade’ establishes a requirement of autonomous interpretation.  This, in turn, facilitates the CISG’s global jurisconsultorium: whereby courts, arbitrators, lawyers, academics, and other interested stakeholders can influence and receive influence in relation to the CISG’s uniform interpretation.  A recent publication edited by Peng Guo, Haicong Zuo and Shu Zhang, titled Selected Chinese Cases on the UN Sales Convention (CISG) Vol 1, makes an important contribution to this interpretative framework: presenting abstracts and commentaries addressing 48 Chinese CISG cases spanning 1993 to 2005, that may previously have been less accessible to wider international audiences.

A review of this case law collection discloses an interesting phenomenon affecting the CISG’s Chinese application: at least, until very recently.  Pursuant to Art. 142(2) General Principles of the Civil Law (which was effective in the People’s Republic of China until repealed as of 1 January 2021):

[I]f any international treaty concluded or acceded to by the People’s Republic of China contains provisions differing from those in the civil laws of the People’s Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People’s Republic of China has announced reservations.

(Translation via Jie Luo.)

Numerous contributions to Guo, Zuo and Zhang’s volume – including by Wang, Guo and Zhang; Luo; Luo again; Wang; and Xu and Li – observe that some Chinese courts have interpreted this provision to require the CISG’s application only where it is inconsistent with non-harmonised Chinese law.  Whilst this approach to the CISG’s application is noteworthy for its inconsistency with international understandings of the treaty, it is arguably more noteworthy for highlighting that national law itself is often ‘where the relationship between the convention and national law is regulated’.[1]  Scholarship has given much attention to the success (or otherwise) of Art. 7(1) CISG in securing the treaty’s autonomous interpretation.  However, machinery provisions giving the CISG local effect in any given legal system (themselves being matters of ‘local legislative judgment’) have an apparently-underappreciated role to play, too.

Wang’s contribution quotes Han as writing that the Chinese inconsistency concept’s effective implementation of a reverse burden of proof in establishing the CISG’s application is a situation that ‘I am afraid … is unique in the world’.  On the contrary, and not unlike China’s former Art. 142(2) General Principles of the Civil Law, Australia’s CISG implementing Acts still ostensibly frame the treaty’s local application in terms of inconsistency.  The Sale of Goods (Vienna Convention) Act 1986 (NSW) s 6 is representative of provisions found across the Australian state and territory jurisdictions: ‘[t]he provisions of the Convention prevail over any other law in force in New South Wales to the extent of any inconsistency’.  Case law from Victoria and from Western Australia has read those jurisdictions’ equivalent inconsistency provisions as implying the CISG’s piecemeal application, only where particular provisions are inconsistent with local law.  Looking even further afield, Australia’s own use of the inconsistency device is far from unique.  Singaporean and Canadian legislation make use of the inconsistency concept, as does Hong Kong’s recently-promulgated CISG Ordinance.  In the latter case, the statutory interpretation risks associated with the adoption of an inconsistency provision were drawn to the Hong Kong Department of Justice’s attention.  However, Australia’s statutory model prevailed, perhaps in part because it has previously been put forward as a model for Commonwealth jurisdictions looking to implement the CISG.

At the risk of being slightly controversial, at least some scholarship addressing the failings of national CISG interpretations may have been asking the wrong question: or at least, missing an important additional question.  Instead of asking why any given court has failed to apply and respect Art. 7(1) CISG’s interpretative directive, we might instead (or also) usefully ask whether that given State’s CISG implementation legislation has been drafted so as to invite the local law comparisons that have then been made.  Some responsibility for problematic CISG interpretations might lie with the legislature, in addition to the judiciary.

In Australia, the Playcorp decision – Victoria’s inconsistency case referred to above – has been taken by subsequent cases in both the Federal Court and in the Full Federal Court of Australia as authority for the proposition that Art. 35 CISG’s conformity requirements equate to the implied terms contained in the non-harmonised Goods Act 1958 (Vic) s 19.  The Federal Court’s first-instance decision was itself then cited in New South Wales for that same proposition: leading to a problematic CISG interpretation that is now entrenched under multiple layers of precedent.  Whilst the equation being made here is rightly criticised in itself, it has Australia’s inconsistency provisions – in addition to our courts’ failures to apply Art. 7(1) CISG – resting at its core.

Guo, Zuo and Zhang’s Selected Chinese Cases on the UN Sales Convention (CISG) Vol 1 thereby makes a valuable contribution to the Convention’s jurisconsultorium: first, by virtue of its very existence, but secondly, by its additional disclosure of China’s former inconsistency struggles to the wider scholarly community.

[1] Bruno Zeller, ‘The CISG in Australasia: An Overview’ in Franco Ferrari (ed), Quo Vadis CISG?  Celebrating the 25th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods (Bruylant, 2005) 293, 299.

* Senior Lecturer, Department of Business Law and Taxation, Monash Business School

Twitter: @LawGuyPI

International Trade and International Commercial Law research group: @MonashITICL

Disclosure: The author is a confirmed contributor to the forthcoming Selected Chinese Cases on the UN Sales Convention (CISG) Vol 3.