Conflictoflaws

The second issue of 2023 of Giustizia consensuale (published by Editoriale Scientifica) has just been released, and it features:

Giuseppe Trisorio Liuzzi (Professor at the Università degli Studi di Bari “Aldo Moro”), La composizione negoziata. Una soluzione consensuale della crisi d’impresa (The negotiated settlement. A consensual solution to the business crisis; in Italian)

This article examines the main features of the ‘Negotiated Settlement of the Business Crisis’ (Composizione Negoziata della Crisi d’Impresa), introduced in the Business Crisis and Insolvency Code (Codice della Crisi d’Impresa e dell’Insolvenza) in place of the initially envisaged ‘Alert Procedure’ (Procedura di Allerta). Notably, the author highlights the consensual and extrajudicial nature of the Negotiated Settlement of the Business Crisis, also focusing on the protective and precautionary measures, on the one hand, and on the authorisation to take out loans and to transfer the company or its branches, on the other, which contemplate the intervention of the court in the instant procedure.

Monica Delsignore (Professor at the Università degli Studi di Milano-Bicocca) e Marsela Mersini (Ph.D. at the Università degli Studi di Milano-Bicocca), Gli strumenti per la composizione dei conflitti ambientali nella realizzazione delle infrastrutture per la crescita (Tools for conflict resolution in environmental law in the implementation of infrastructure for growth; in Italian)

This article aims to provide an overview of the tools available for resolving environmental conflicts stemming from the construction of large infrastructure and public works. While crucial for the development of the country, these projects pose a definite impact on the surrounding environment. Recognising that courts may not be the optimal forum for conflict resolution in this domain, this academic contribution will question the effectiveness and challenges of existing mechanisms and discuss a proposal to introduce a professional mediator in the administrative proceeding.

Olga Fuentes Soriano (Professor at the Universidad “Miguel Hernández”, Alicante), Riflessioni sulla fattibilità della mediazione penale nei casi di violenza di genere (Reflections on the feasibility of criminal mediation in cases of gender-based violence; in Italian)

In 2004, Spain enacted the Law on Integral Protection Measures against Gender Violence. This legislation marked a significant advancement in combating this societal issue. It explicitly prohibited using mediation as a means of justice for such crimes, a notable departure from previous Spanish laws. While prior legislation contained limited references to criminal mediation – prohibiting it in gender violence cases and allowing it in juvenile justice – the subsequent implementation of the Victims’ Statute in 2015 explicitly mentioned the incorporation of restorative justice mechanisms into the criminal field. This shift, following the 2012 European Directive, reignited a contemporary debate on the advantages and disadvantages of employing mediation in criminal cases, particularly in cases of gender violence. However, due to the inherent imbalance between the involved parties and the power dynamics characterising these violent situations, utilising consensual dispute resolution methods is deemed inadvisable.

Vincenzo Ansanelli (Professor at the Università degli Studi di Genova), Qualche minimo update sulla composizione del conflitto tramite consulenza tecnica preventive (Some updates on conflict resolution through preliminary expert consultation; in Italian)

The ‘Preliminary Expert Consultation for the Settlement of Disputes’ (Consulenza tecnica preventiva ai fini della composizione della lite) was introduced into the Italian legal system in 2005. Regulated by Article 696 bis of the Italian Civil Procedure Code, this instrument is based on the assumption that the resolution of the decisive technical issue of the case would facilitate an amicable settlement. The paper offers an in-depth analysis of the most recent literature and case-law on this instrument. In particular, it focuses on its admission phase and examines two recent judgements of the Italian Constitutional Court – No. 222 of December 21, 2023, and No. 202 of November 10, 2023 – that partially redefine its scope of application.

 

Observatory on Legislation and Regulations

Cassio Scarpinella Bueno (Professor at the “Pontifícia Universidade Católica de São Paulo”), Meccanismi di giustizia consensuale nel diritto processuale brasiliano. Un’introduzione in chiave comparata (Mechanisms of consensual justice in Brazilian procedural law. An introduction from a comparative perspective; in Italian)

This article argues that the analysis of consensual conflict resolution methods has the power to influence the traditional understanding of civil procedural law itself and to promote an ad hoc study of conflict resolution techniques without court intervention. To this end, the paper seeks to provide a portrait of non-judicial methods of conflict resolution in the Brazilian legal system based on their provision in the Brazilian Code of Civil Procedure of 2015, with the aim of promoting a fruitful comparison with other legal systems. In this perspective, the article deals mainly with conciliation, mediation, arbitration and procedural agreements, highlighting their importance for a greater awareness of the parties themselves in voluntarily resolving their conflicts or establishing different procedural rules to allow for a more adequate resolution of disputes through judicial proceedings.

Elena Mattevi (Researcher at the University of Trento), Strutture e figure professionali nella disciplina organica della giustizia riparativa. Il ruolo della formazione del mediatore esperto (Structures and professional figures in the regulation of restorative justice. The role of the expert mediator training; in Italian)

The Cartabia Reform (Law 27 September 2021 No 134 reforming criminal procedure in Italy) regulated for the first time in Italy the professional figure of the mediator in criminal matters and the organizational structure called to manage restorative justice programs. The mediator plays a decisive role in the system and, precisely for this reason, Legislative Decree No 150 of 2022 and its implementing decrees provided for a highly articulated training course with an interdisciplinary slant, to acquire the necessary qualification to carry out the activity. The analysis conducted in this article focuses on these aspects and the complexity of the mediator’s role, which justifies the demand for very serious training. Universities – called to collaborate with the Restorative Justice Centres in the organization of the courses – will have a leading role, and thus the opportunity to open new perspectives in post-graduate training, but also to invest in research and curricular training on restorative justice.

 

Observatory on Practices

Michael S. Coffee (Professorial Lecturer in Law at the George Washington University Law School in Washington, D.C.) and Melissa A. Kucinski (International family law expert based in Washington, D.C.), Arbitrating a Multi-Jurisdictional Children’s Dispute

Arbitration remains a relatively new dispute resolution process in family law cases in the United States, and some jurisdictions within the United States differ in terms of process, selection of an arbitrator, and whether certain discrete issues, such as those that relate to parenting and children, can be arbitrated. This may create additional complications for cross-border families who find themselves living in the United States but with connections to another country, and a contractual requirement that they engage in arbitration of their family law dispute. This article will walk readers through a situation of a family who had previously agreed, at the time the spouses married, to arbitrate future family law disputes, and, after moving to the United States from their home country, are now faced with the layer of laws and complications over how to actually proceed.

Annalisa Atti (Researcher at the University of Bologna), Profili deontologici della professione del mediatore e dell’avvocato in mediazione (Deontological profiles of the mediator and lawyer’s activity in mediation; in Italian)

This article aims to examine the role, duties and styles of the mediator and the lawyer who assists the parties in mediation, in the light of the regulatory and deontological provisions in force, including non-domestic ones, and of the application made of them by civil and disciplinary jurisprudence. The intertwining between competence and professional training, correct information to the client, behaviour according to loyalty and correctness, diligence in the fulfilment of the professional service, in the different but complementary civil and deontological levels is then outlined, not only for the best client satisfaction but also for the best solution of conflicts.

 

In addition to the foregoing, this issue features the following Conference Proceedings:

Tommaso Greco (Professor at the University of Pisa), La giustizia consensuale, alle radici del diritto (Consensual justice, at the roots of law; in Italian)

During a presentation of journal Giustizia consensuale, held on 4 May 2023 at the University of Pisa, the theme linking ‘justice’ and ‘consensus’ was the subject of fruitful discussions from different standpoints. The Author retraces the introductory remarks he delivered on that occasion and puts forward the idea that consensual justice goes to the roots of the law, enhancing its horizontal and cooperative dimension.

Pierluigi Consorti (Professor at the University of Pisa, Affiliate Professor at the “Istituto Dirpolis, Scuola Superiore Sant’Anna di Pisa”), Oltre la mitezza, la gentilezza del diritto (Beyond meekness, the kindness of law; in Italian)

This essay discusses the possibility of considering a soulful role of the law. In principle, law is mainly conceived as a self-referential institution that bases its ability upon the exercise of power. This power-based notion of the law does not always assist it in performing its social function effectively. In this essay the author takes into consideration the theses on ‘mild law’ and advances the proposal of a ‘kind law’, which takes care of personal relationships and tries to make the dimension of listening prevail over that of assertiveness, as well as to make unitive elements prevail over divisive ones; a ‘kind law’ does not rely on the exercise of power but, rather, on the search for consensus.

Valentina Bonini (Associate Professor at the University of Pisa), Consenso e giustizia penale: dal mercato globale alla bottega sartoriale (Consent and criminal justice: From the global marketplace to the tailor’s workshop; in Italian)

Criminal procedure used negotiated justice since 1988 to achieve procedural economy through the defendant’s waiver of fundamental rights and guarantees in exchange for better terms with respect to punishment. Despite problems of compatibility with the system of simplified procedures such as the so-called plea bargaining, the legislator has progressively expanded the availability of negotiated justice. Only in more recent times other mechanisms have been implemented to enhance the defendant’s will not only for the goal of efficiency but also to offer a different justice response: this is the case with the trial probation and, even more markedly, restorative justice, which proposes an autonomous justice paradigm aimed at bringing people’s needs back to the center, offering a way of actively overcoming the offence perpetrated by the author and suffered by the victim.

Luciana Breggia (formerly Judge at the Florence Tribunal), Una giustizia plurale tra autonomia, responsabilità e autorità (A plural justice between autonomy, responsibility and authority; in Italian)

We are amidst a significant transformation within the justice system, embracing a diverse array of methodologies while championing individual autonomy and accountability. The journal Giustizia consensuale is not merely an outcome of this transformation; it stands as a harbinger of future growth and innovation.

 

Finally, it features the following Book Reviews:

One book review is by Cristina M. Mariottini (European Institute of Public Administration): Werner HASLEHNER, Timothy LYONS KC, Katerina PANTAZATOU, Georg KOFLER, Alexander RUST (eds), Alternative Dispute Resolution and Tax Disputes, Cheltenham-Northampton, Edward Elgar Publishing, 2023, vii-xxv, 1-341.

Another book review is by Angela M. Felicetti (University of Bologna): Emma VAN GELDER, Consumer Online Dispute Resolution Pathways in Europe. Analysing the Standards for Access and Procedural Justice in Online Dispute Resolution Procedures, The Hague, Eleven, 2022, 1-329.

Maastricht University is organising a webinar on the Evidence Regulation that will take place on Wednesday 27 March 2024 in Dutch. More information is available here.

This event is being organised within the framework of the DIGI-GUARD project, which is co-funded by the European Union under the JUST-2021-JCOO program and which stands for Digital communication and safeguarding the parties’ rights: challenges for European civil procedure.

This webinar is a follow-up to a previous event announced here.

Participation is free of charge (click here). The event will be recorded and will be accessible to registered participants.

The program is available below.

Programma

14:00 – 14:10 Het DIGI-GUARD project: relevantie voor de rechtspraktijk
Marta Pertegás Sender, Universiteit Maastricht 14:10 – 14:40 De Bewijsverordening (Vo 2020/1783)
René Jansen,  Tilburg University 

Introductie tot de verordening, verhouding tot art. 35 Brussel I bis-verordening
(Vo 1215/2012) en de mogelijkheid om in het buitenland bewijs af te nemen
op basis van de nationale wetgeving 14:40 – 14:50 Discussie 14:50 – 15:00 Pauze 15:00 – 15:30 Bewijs in het buitenland? Hoe kan de Bewijsverordening helpen
Marta Pertegás Sender en Jona Israël, Universiteit Maastricht 15:30 – 15:40 Discussie 15:40 – 15:45 Slotwoorden

 

I would like to thank Prof. Lotfi Chedly for providing me with the text of the decision on which this post is based.

 

I. Introduction

Scholars of private international law are well familiar with the classic debate on nationality and domicile as connecting factors in the choice of applicable law (see, for example, L. I. de Winter, “Nationality or Domicile? The Present State of Affairs” 128 Collected Courses III (1969) pp. 357 ff). In Tunisian private international law, this controversy has been particularly pronounced with regard to the role of nationality as a ground for the international jurisdiction of Tunisian courts. Since the enactment of the Tunisian Private International Law Code (“PILC”) in 1998 (for an English translation, see J. Basedow et al. (eds.) Encyclopedia of Private International Law – Vol. IV (Elgar Editions, 2017) 3895 and my own translation of the provisions dealing with international jurisdiction and the enforcement of foreign judgments in 8 Journal of Private International Law 2 (2012) pp. 221 ff)), the debate between opponents and proponents of nationality as a ground for international jurisdiction, especially in family law matters, has never ceased to be intense (for detailed analyses, see eg. Salma Triki, “La compétence internationale tunisienne et le critère de nationalité” in Ben Achour/Triki (eds.), Le Code de droit international privé – Vingt ans d’application (1998-2018) (Latrach edition, 2020) 119ff). This divergence in academic opinion is also reflected in the judicial practice of the courts, with the emergence of two opposing trends: one extends the international jurisdiction of the Tunisian courts when the dispute involves a Tunisian party, in particular as a defendant even when domiciled abroad. The other firmly rejects nationality as a ground for international jurisdiction.

The case commented here illustrates the culmination of this disagreement within the courts. The Supreme Court (mahkamat al-ta’qib – cour de cassation), in a second appeal, strongly denied the existence of such a privilege and emphasized the primacy of domicile over nationality as a basis for international jurisdiction in Tunisia. The Court of Appeal, acting as a court of remand, explicitly recognized that the jurisdiction of the Tunisian courts could be based on what is commonly referred to as “privilege of jurisdiction”. The Court of Appeal went even further by describing the decision of the Supreme Court, from which the case had been remanded, as “legally incorrect”. This stark contrast between the two courts prompted the intervention of the Joint Chambers (chambres réunies) of the Supreme Court, which issued what appears to be the first decision of its kind in the field of private international law in Tunisia (Ruling No. 36665 of 15 June 2023), signed by 62 judges of the Supreme Court (including the Chief Justice (President of the Court), 21 Presidents of Chambers and 40 other judges as counsellors).

 

II. Facts

The case concerns a divorce action brought in Tunisia by X (plaintiff husband and appellee in subsequent appeals) against his wife, Y (defendant and appellant in subsequent appeals). The text of the decision indicates that X and Y were married in 2012 and had a child. Moreover, while X’s Tunisian nationality appears to be undisputed, there may surprisingly be some doubts about Y’s Tunisian nationality, as emerged later in the parties’ arguments before the Joint Chambers.

In 2017, the Court of First Instance of Sousse (a city located about 150 km south of the capital Tunis) declared the parties divorced and ordered some measures regarding maintenance, custody and visitation. Dissatisfied, Y appealed to the Court of Appeal of Sousse. In 2018, the court overturned the appealed decision, considering that the Tunisian courts did not have jurisdiction over the dispute. X appealed to the Supreme Court (1st appeal). In its decision issued later in 2018, the Supreme Court overturned the appealed decision with remand, holding that the Court of Appeal did not correctly examine the existence (or not) of a foreign element in the dispute in order to decline jurisdiction on the grounds that X claimed that the spouses’ matrimonial domicile was in Tunisia, where Y lived and worked.

In 2019, the Court of Appeal of Sousse, as the court of remand, accepted jurisdiction and confirmed the decision of the court of first instance with some modifications. Y appealed to the Supreme Court (2nd appeal). Y argued, inter alia, that the rules of international jurisdiction laid down in the PILC had been violated, since the spouses’ matrimonial domicile was in France and that the couple had only returned to Tunisia during the summer vacations. In 2020, the Supreme Court ruled in favor of Y, stating, inter alia, that the Tunisian legislator had made from “the domicile of the defendant the decisive ground for the international jurisdiction of the Tunisian courts”. The Court also held that the Court of Appeal had reached an erroneous conclusion based on a misapplication of the facts and a misinterpretation of the law. The case was referred back again to the Court of Appeal.

In 2021, the Court of Appeal, in a frontal opposition, declared that the decision of the Supreme Court, according to which the domicile of the defendant was the ground based on which Tunisian courts could assume international jurisdiction, “cannot be followed” and is “legally incorrect”. Then the court affirmed that Tunisian nationals enjoy a “privilege of jurisdiction”, and this “means that Tunisian defendants should be subject to their national courts, even if they are domiciled abroad, since the purpose of granting jurisdiction to Tunisian courts in this category of disputes is to ensure better protection of their interests”.

Y challenged the decision of the Court of Appeal again before the Supreme Court (3rd appeal). As this was a disagreement between the Court of Appeal and the Supreme Court on a second appeal, the jurisdiction of the Joint Chambers was justified (articles 176 and 177 of the Code of Civil and Commercial Procedure, hereafter “CCCP”).

Before the Joint Chambers, Y argued, inter alia, that (1) that she was not a Tunisian national but a holder of dual Algerian/French nationality; (2) that the court had also based its decision on the fact that she was resident in Tunisia, ignoring the fact that she had returned to Tunisia only to spend her summer vacation; (3) that she had left Tunisia for France.

On the other hand, X argued that the Court of Appeal was right to hold that disputes in which one of the parties is Tunisian and in which the subject matter concerns matters of personal status fall within the jurisdiction of the Tunisian courts, since matters concerning the family and its protection concern public policy, especially when the dispute also involves a Tunisian minor.

 

III. Ruling

The Joint Chamber of the Supreme Court held that the Tunisian courts did not have jurisdiction and decided to overturn the decision of the Court of Appeal without further remand. The court ruled as follows (only relevant parts are reproduced here. The gendered style reflects the language used in the text of the Court’s decision):

“The dispute concerns the question whether the international jurisdiction of the Tunisian courts should be determined on the basis of the defendant’s domicile (maqarr), in accordance with Article 3 of the PILC, or on the basis of the privilege of jurisdiction, according to which a Tunisian national is subject to the jurisdiction of his national courts even if he is domiciled abroad.

It goes without saying that in Articles 3 to 10 of the PILC, the legislator has sought to confer jurisdiction on the Tunisian courts on the basis of close connections between the Tunisian legal system and the legal relationship, thereby abolishing the exceptional grounds such as nationality, representation or reciprocity. The reason for the abolition of these exceptional grounds lies in the fact that they do not constitute a genuine connection between the dispute and the Tunisian legal system […].

[…]

As appears from the files of the case, the residence (iqama) of Y in France is established either on the basis of the service of the summons […] on her domicile (maqarr) in France […] or the judicial admission made by X […] [in which he] admitted that his wife had moved to France where she had settled with their daughter and refused to return to Tunisia.

[However], by considering that the privilege of jurisdiction entails subjecting the Tunisian defendant to the jurisdiction of his or her national courts, even if he resides (muqim) abroad, the remand court misjudged the facts and drew erroneous conclusion, leading to a misunderstanding and misapplication of article 3 of the PILC […].”

 

IV. Comments

The principle established by the Joint Chamber regarding the role of the defendant’s Tunisian nationality as a ground for international jurisdiction can be considered a welcome clarification of the interpretation and application of Tunisian law. However, it must also be said that the decision commented on here contains some intriguing and to some extent confusing features, particularly in the parts of the decision not reproduced above relating to the meaning of and the distinction between “domicile (maqarr)” and “residence (iqama)”. For the sake of brevity, only the issue of nationality as a ground of international jurisdiction will be commented on here.

 

1. Prior to the Enactment of the PILC

Prior to the enactment of a PILC, nationality – especially that of the defendant – was used as a general ground for international jurisdiction in all disputes brought against Tunisians, even if they were domiciled abroad (former art. 2 of the CCPC). This rule is common in the MENA region and is generally followed even if it is not explicitly stated in the law (For the case of Bahrain, see here, for the case of Morocco, where a new draft code of civil procedure proposes to introduce a similar rule ex lege, see here).

 

2. Nationality as a ground for international jurisdiction under the PILC

The PILC, adopted in 1998, introduced a radical change in this regard by completely excluding nationality as a ground for international jurisdiction (see eg. Imen Gallala-Arndt, “Tunisia”, in J. Basedow et al. (eds.) Encyclopedia of Private International Law – Vol. III (Elgar Editions, 2017) p. 2586). Henceforth, the PILC recognizes only one legitimate ground of general ground of jurisdiction over any civil or commercial dispute (including family law disputes) arising between persons regardless of their nationality, if the defendant has its “residence (iqama)” in Tunisia, although the semi-official French version of the PILC (as officially published in the Official Gazette) refers to “domicile” (maqarr in Arabic). In literature, there is a general consensus among Tunisian scholars that the word iqama (residence) in the Arabic version of article 3 actually means “maqarr (domicile)”. Case law is, however, quite inconsistent on this issue, with Tunisian courts, including the Supreme Court itself, reaching contradictory decisions on the interpretation and application these basic notions. This issue was addressed in the decision commented here (although in a quite unsatisfactory manner as the Joint Chambers, while distinguishing between “residence” and “domicile”, used both notions interchangeably in a particularly intriguing manner). However, this aspect of the decision will not be discussed here.

It is worth mentioning that the solutions introduced in the PILC have attracted the attention of renowned foreign scholars, who have highlighted the peculiarity of the Tunisian solutions in this regard, describing the Tunisian solutions as “interesting” and the exclusion of nationality as ground for international jurisdiction in all matters, including family law disputes, as “courageous”  (see eg., Diego P. Fernando Arroyo, “Compétence exclusive et compétence exorbitantes dans les relations privées internationales” 323 Collected Courses 2006, pp. 140-141).

 

3. Judicial Application

However, as soon as the PILC entered into force, a trend developed in judicial practice whereby Tunisian courts at all levels showed a willingness to extend their jurisdiction when the dispute involved Tunisian nationals. At the same time, there has been a parallel trend whereby some courts, also at all levels, have strictly adhered to the new policy of international jurisdiction and have refused to assume jurisdiction whenever it appeared that the defendant (whether a a Tunisian national or not) was domiciled abroad. (For a detailed analysis with different scenarios and cases, see Souhayma Ben Achour, “L’accès à la justice tunisienne en droit international privé tunisien” in Ben Achour/Ben Jemia (dir.), Droit fondamentaux & droit international privé (La Maison du Livre, 2016) pp. 11 ff).

a. Regarding the former, Tunisian judges have used various approaches and methods to circumvent the law and extend their jurisdiction beyond the limits set by the PILC. For example:

• In some cases, the courts have simply denied the international nature of the dispute on the grounds that all the parties were Tunisian, even though it was established that all or some of the parties (particularly the defendant) were domiciled abroad (see eg. Supreme Court, Ruling No. 12295 of 14 February 2002).
• In other cases, the courts have inferred a tacit submission to the jurisdiction of the Tunisian courts, even in the absence of the appearance of the defendant (often a foreign wife) (see eg. First Instance Court of Tunis, Ruling No. 30605 of 18 January 2000).
• In some other cases, the courts have confirmed their jurisdiction either on the basis of
  • the choice-of-law rules, according to which personal status shall be governed by the lex patriae of the parties (Supreme Court, Ruling No. 3181 of 22 October 2004), or,
  • on the basis of the rules of indirect jurisdiction laid down in bilateral conventions on mutual judicial assistance, knowing that these conventions do not contain rules of direct jurisdiction (see eg., Supreme Court, Ruling No. 6238 of 23 December 2004).
• More problematically, some courts have relied on the “place of performance” as a ground for international jurisdiction in contractual matters, considering the marriage to be a “contract” and its “performance” to have taken place in Tunisia when the parties consummated the marriage or established their matrimonial residence/domicile there (see eg. First Instance Court of Tunis, Ruling No. 77280 of 12 July 2010).
• In some cases, the courts have invoked forum necessitatis to extend their jurisdiction without indicating whether the requirements of its invocation were met (see eg. First Instance Court of Tunis, Ruling No. 75738 of 22 February 2010).
• Last but not least, in some cases, and in direct violation of the law, the courts have declared themselves to be the “natural” courts in family law disputes involving Tunisians, and that their jurisdiction could be based on the idea of “jurisdictional privilege” based on the Tunisian nationality of the defendant (see eg., Tunis Court of Appeal, Ruling No. 76011 of 12 November 2008) (interestingly, the grounds invoked here are similar to those invoked by the Bahraini courts here).

All these cases, and many others (see eg., Ben Achour op. cit.), have given the impression that Tunisian courts would go to any lengths to assume jurisdiction over disputes involving Tunisians in family law matters (cf., eg., Sami Bostanji, “Brefs propos sur un traité maltraité” Revue tunisienne de droit, 2005, p. 347).

b. This trend should not, however, be allowed to overshadow another that has also developed in parallel as mentioned above. The Supreme Court itself, despite some inconsistencies in its case law, has reaffirmed on several occasions that the jurisdiction of the Tunisian courts can be established only on the basis of the rules laid down in the CPIL, thereby rejecting the idea of nationality as an additional ground of jurisdiction in disputes involving Tunisian nationals (see eg., Supreme Court, Ruling No. 32684 of 4 June 2009).

c. In this respect, the decision of the Joint Chambers is likely to bring some order to the judicial cacophony on this issue, although it may not put an end to the ongoing debate and divergence of opinions among legal practitioners and scholars on the relevance of nationality as a criterion of international jurisdiction. Moreover, the tendency of some judges – sometimes described as “conservative” (cf. Arroyo op. cit.) – to continue to assume jurisdiction in disputes involving Tunisians (particularly in family law disputes) seems to be so entrenched that some scholars in Tunisia have described it as a “movement of resistance” against the legislative policy of the State (cf. eg. Lotfi Chedly, “Droit d’accès à la justice tunisienne dans les relations internationales de famille et for nationalité” in Mélanges offerts à Dali Jazi (Centre de Publication Universitaire, 2010) p. 264). This state of affairs has led some leading authors in Tunisia to question the state’s policy of excluding nationality altogether, even in family law disputes. One of the arguments put forward is that nationality in family law disputes is not an excessive ground for jurisdiction and is widely used in other legal systems (for the various arguments in favor of nationality, see Triki, op. cit.).

 

4. Legislative amendment?

These voices found their way into two legislative proposals in 2010 and 2019 to amend the PILC and introduce nationality as a ground for international jurisdiction in divorce cases (on the 2019 proposal, its background and peculiarities, see Triki, op. cit.). However, these attempts were unsuccessful, mainly due to the unstable political situation in Tunisia (the outbreak of the Tunisian revolution at the end of 2010 and the political crisis that led to the dissolution of the parliament and the suspension of the post-revolutionary constitution of 2014 in 2021). In this general context, and despite the decision of the Joint Chambers, it would not be surprising if some courts persisted in extending their jurisdiction in a disguised manner, based on the methods they themselves have developed to circumvent the constraint imposed by the PILC, when the dispute – particularly in matters of family law – involves Tunisians.

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

 

H.-P. Mansel/K. Thorn/R. Wagner: European Conflict of Law 2023: Time of the Trilogue

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2023 until December 2023. It presents newly adopted legal instruments and summarizes current projects that are making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

 

H. Kronke: The Fading of the Rule of Law and its Impact on Choice of Court Agreements and Arbitration Agreements

Against the background of declining standards of the rule of law in an increasing number of jurisdictions, the article identifies and discusses problematic choices of a forum or of an arbitral seat as well as solutions developed by courts and legal doctrine in private international law, civil procedure and arbitration law. Businesses and their legal advisers are encouraged to anticipate risks and consider appropriate measures when drafting contracts.

 

L. van Vliet/J. van der Weide: The Crimean treasures

In 2013, a collection of highly important archaeological objects, the “Crimean treasures” had been loaned by four Crimean museums to the LVR-Landesmuseum in Bonn, Germany, and the Allard Pierson Museum in Amsterdam for exhibition purposes. During the exhibition at the Allard Pierson Museum, the Crimean Peninsula was illegally annexed by the Russian Federation. The question then arose to whom the Crimean treasures should be returned by the Allard Pierson Museum: to the Crimean museums (de facto in possession of the Russian Federation) or to the State of Ukraine? The legal proceedings concentrated on the interpretation of the notion of “illicit export” in the UNESCO Convention 1970 and on the application of the concept of overriding mandatory rules in the area of property law. As to the UNESCO Convention 1970, the question was whether the concept of illicit export includes the case where protected cultural property is lawfully exported on the basis of a temporary export licence and is not returned to the country that issued the licence after the expiry of the term in the licence. The drafters of the UNESCO Convention did not consider this case. These proceedings are most probably the first to raise and answer this question. The 2015 Operational Guidelines to the UNESCO Convention contain a definition of illegal export that explicitly includes the case of non-return after temporary export. In our opinion, this allows for a broad interpretation of the UNESCO Convention.

The Dutch courts had international jurisdiction because the claims of the Crimean museums were based on the loan agreements and the real right of operational management falling within the scope of the Brussels I Regulation. For the claims of the State of Ukraine, a clear basis for international jurisdiction does not exist when it acts in its state function. Claims iure imperii do not fall under Brussels I or Brussels I bis.

Having ruled that there was no illicit export, the Court of Appeal Amsterdam had to decide whether the contractual and property rights of the Crimean museums to restitution might be set aside by Ukrainian laws and regulations, including Order no. 292 requiring that the Crimean treasures be temporarily deposited with the National Museum of History of Ukraine in Kiev. The Court held that this Order applied at least as an overriding mandatory rule within the meaning of art. 10:7 of the Dutch Civil Code. The Dutch Supreme Court upheld the Court of Appeal’s judgment, agreeing with the Court of Appeal’s application of the concept of overriding mandatory rules. However, the Supreme Court could not give its view on the interpretation of the UNESCO Convention 1970.

 

W. Hau: Litigation capacity of non-resident and/or foreign parties in German civil proceedings: current law and reform

This article deals with the litigation capacity (Prozessfähigkeit) of non-resident and/or foreign parties in German civil proceedings, both de lege lata and de lege ferenda. This question can arise for minors and for adults who are under curatorship or guardianship. Particular attention is paid here to the determination of the law applicable to the litigation capacity in such cases, but also to the relevance of domestic and foreign measures directed to the protection of the party.

 

S. Schwemmer: Jurisdiction for cum-ex liability claims against Non-EU companies

In the context of an action for damages brought by investors in a cum-ex fund against the Australian bank that acted as leverage provider, the German Federal Supreme Court (BGH) had to deal with questions regarding the application of the Brussels Ibis Regulation to non-EU companies. The court not only arrived at a convincing definition of the concept of principal place of business (Article 63 (1) c) Brussels Ibis-Regulation), but also ruled on the burden of proof with regard to the circumstances giving rise to jurisdiction. However, one core question of the case remains open: How should the conduct of third parties, especially senior managers, be taken into account when determining the place of action in the sense of Article 7(2) of the Brussels Ibis Regulation?

 

M. Fehrenbach: In the Thicket of Concepts of Establishments: The Principal Place of Business within the Meaning of Art. 3 (1) III EIR 2017

The Federal Court of Justice (Bundesgerichtshof) referred to the CJEU, among other things, the question whether the concept of principal place of business (Hauptniederlassung) within the meaning of Art. 3 (1) III EIR 2017 presupposes the use of human means and assets. This would be the case if the principal place of business were to be understood as an elevated establishment (Niederlassung) within the meaning of Art. 2 (10) EIR 2017. This article shows that the principal place of business within the meaning of Art. 3 (1) III EIR 2017 is conceived differently from an establishment within the meaning of Art. 2 (10) EIR 2017. Neither follows a requirement of the use of human means and assets from the desirable coherent interpretation with Art. 63

 

M. Lieberknecht: Jurisdiction by virtue of perpetuatio fori under the Insolvency Regulation

In this decision, the German Federal Supreme Court weighs in on the doctrine of perpetuatio fori in the context of international insolvency law. The court confirms that, once the insolvency filing is submitted to a court in the Member State that has international jurisdiction under Art. 3(1) EU Insolvency Regulation, the courts of that Member State remain competent to administer the insolvency proceedings even if the debtor shifts its centre of main interest (COMI) to a different Member State at a later point in time. In line with the EJC’s recent decision in the Galapagos case, the ruling continues the approach to perpetuatio fori established under the previous version of the EU Insolvency Regulation. In addition, the court clarifies that international jurisdiction established by way of perpetuatio fori remains unaffected if the initial insolvency filing has been submitted to a court lacking local jurisdiction under the respective national law.

 

D. Martiny: Arbitral agreements on the termination of sole distribution agreements in Belgium

The Belgian Supreme Court has ruled that disputes on the termination of sole distribution agreements can be submitted to arbitration (April 7, 2023, C.21.0325.N). The Court followed the reasoning of the Unamar judgment of the European Court of Justice of 2013 and applied it to the relevant provisions of Article X.35–40 of the Belgian Code of Economic Law. According to the judgment, these provisions mainly protect “private” interests. Since they are not essential for safeguarding Belgian fundamental public interests, they are therefore not to be considered as overriding mandatory provisions in the sense of Article 9 para. 1 Rome I Regulation. Hence, the question whether a dispute can be subject to arbitration does not depend on whether the arbitrator will apply Belgian law or not. It is also not necessary that foreign law gives the distributor the same level of protection as Belgian law. This means that disputes on the termination of exclusive distribution agreements with Belgian distributors are now arbitrable and that choice of law clauses will be respected.

 

Th. Granier: The Strabag and Slot judgments from the Paris Court of Appeal: expected but far-reaching decisions

In two decisions issued on 19.4.2022, the Paris Court of Appeal held that it was sufficient for an investment protection agreement not to expressly exclude the possible application of laws of the European Union to establish the incompatibility of dispute settlement clauses in investment protection treaties with laws of the European Union. That incompatibility therefore applies to all clauses in those treaties that do not expressly exclude the application of the laws of the European Union by the arbitral tribunal. The Court of Appeal followed decisions of the ECJ in Achmea, Komstroy and PL Holding, by which it is bound. These decisions highlight the increasing difficulties in the recognition and enforcement of arbitral awards rendered pursuant to investment treaties in the European Union.

 

E. Schick/S. Noyer: Acquisition of property according to the law applicable to contracts? A critical analysis of thte existing French private international property law in the light of oft he 2022 draft law

While the private international law of contracts is unified in the Rome I Regulation, the conflict of laws rules for property are still defined individually by member states of the European Union. Autonomous French private international law remains largely uncodified and the product of the jurisprudence of the Cour de cassation, with significant regulatory gaps. The draft legislation for private international law issued by the responsible committee on 31.3.2022 aims to codify large parts of this established jurisprudence and therefore also sheds new light on the conflict rules applicable in France de lege lata. In the field of private international property law, the proposed art. 97–101 feature conflicts rules which do not only appear to the German jurist as exotic, but even raise questions as to the scope of application of the Rome I Regulation. Focusing on the contractual transfer of movable property – an area where contract law and property law are intricately linked – this article offers an account of the applicable French conflicts of laws rules by examining the relevant jurisprudence and scholarly doctrine. The codification proposal and the problems it creates will also be critically analysed.

 

N. Dewitte/L.Theimer: A century of the Hague Academy, 31 July to 18 August 2023, The Hague.

Conventions & Instruments

On 1 February 2024, the 2007 Child Support Convention entered into force for Canada. At present, 49 States and the European Union are bound by the 2007 Child Support Convention. More information is available here.

On 13 February 2024, Albania signed the 2005 Choice of Court Convention and the 2007 Maintenance Obligations Protocol. The Convention and the Protocol will respectively enter into force for Albania only after it deposits an instrument of ratification, pursuant to Art. 31(2) of the Convention and to Art 25(2) of the Protocol. The 2005 Choice of Court Convention currently binds 32 States and the European Union, while the 2007 Maintenance Obligations Protocol currently binds 31 States and the European Union. More information is available here.

On 28 February 2024, the 2007 Child Support Convention entered into force for Azerbaijan. At present, 49 States and the European Union are bound by the 2007 Child Support Convention. More information is available here.

 

Meetings & Events

From 29 January to 2 February 2024, the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation met for the sixth time. Pursuant to its mandate, the Working Group made further progress on the development of draft provisions on parallel proceedings and related actions or claims. More information is available here.

 

Publications

On 27 February 2024, the Permanent Bureau announced the publication of the Recommended Model Forms for use under the 1993 Adoption Convention. The Model Forms are intended to simplify and facilitate compliance with the 1993 Adoption Convention by assisting Contracting Parties in the collection of relevant information. More information is available here.

 

Vacancies

Applications are now open for the position of Project Coordinator (full-time). The deadline for the submission of applications is 13 March 2024. More information is available here.

Applications are now open for three- to six-month legal internships for the period from July to December 2024. The deadline for the submission of applications is 29 March 2024 (18:00 CET). 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.

Applications are now open for three- to six-month legal internships at the Permanent Bureau’s headquarters in The Hague, for the period from July to December 2024!

Interns work with our legal teams in the areas of International Family and Child Protection Law, Transnational Litigation and Legal Cooperation, and International Commercial, Digital and Financial Law. Duties may include carrying out research on particular points of private international law and/or comparative law, taking part in the preparation of HCCH meetings and contributing to the promotion of the HCCH and its work.

Applications should be submitted by Friday, 29 March 2024. For more information, please visit the Internships Section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

The thirty-seventh annual survey on choice of law in the American courts is now available on SSRN. The survey covers significant cases decided in 2023 on choice of law, party autonomy, extraterritoriality, international human rights, foreign sovereign immunity, adjudicative jurisdiction, and the recognition and enforcement of foreign judgments. So, on this leap day, we thought we would leap into the new month by looking back at the old year.

Choice of Law

The Eighth Circuit applied Mexican law to a suit against General Motors over a car crash in Mexico, while an Ohio state court applied South African law to invalidate a marriage. A Washington state court interpreted an Irish forum selection clause to require dismissal of statutory claims against Microsoft despite the facts that Microsoft was not party to the agreement and the clause arguably did not cover statutory claims. Meanwhile the Fifth Circuit enforced a forum selection clause in an insurance contract choosing British Virgin Island courts despite evidence that the claims stood little chance in those courts.

Extraterritoriality

The Supreme Court decided two important extraterritoriality cases. In Yegiazaryan v. Smagin, the Court interpreted civil RICO’s “domestic injury” requirement to apply to a domestic judgment confirming a foreign arbitral award, a decision that brings another tool to bear to help enforce foreign awards and judgments. In Abitron Austria GmbH v. Hetronic International, Inc., the Court held that the Lanham Act applies only to domestic conduct infringing U.S. trademarks and, in so doing, provided important guidance about how to apply the federal presumption against extraterritoriality.

Meanwhile, lower courts struggled with how to fit the Supreme Court’s 1922 decision in United States v. Bowman, which addresses the scope of federal criminal statutes, into its current extraterritoriality framework. The Eleventh Circuit held that Bowman provides an alternative framework that courts may apply instead of the current presumption to determine the reach of criminal statutes, whereas the Ninth Circuit held that Bowmancould be considered part of the relevant “context” at step one of the Court’s present two-step framework. As Bill has explained, both solutions seem doubtful, and the issue may be headed to the Supreme Court.

International Human Rights

In an important decision, the Ninth Circuit held that Chinese practitioners of Falun Gong could sue Cisco Systems and some of its executives for aiding and abetting their torture by designing and building a surveillance system for the Chinese government. The court held that plaintiffs had alleged sufficient conduct in the United States to support their Alien Tort Statute (ATS) claim and that the Tort Victim Protection Act (TVPA) permitted aiding and abetting claims against the corporate executives. Meanwhile, the Supreme Court interpreted the aiding and abetting provision of the Anti-Terrorism Act (ATA) in Twitter, Inc. v. Taamneh to require conscious and culpable participation, thereby shielding social media platforms from liability based on the use of their platforms by terrorist groups.

Foreign Sovereign Immunities Act

In Tu?rkiye Halk Bankasi, A.S. v. United States, the Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) does not apply to criminal prosecutions. The Court remanded for further consideration of Halkbank’s claim of immunity under federal common law.

In Bartlett v. Baasiri, the Second Circuit held that a foreign company can acquire immunity under the FSIA if it becomes majority-owned by a foreign government after a lawsuit is filed. That decision is in some tension with the Supreme Court’s decision in Dole Food Co. v. Patrickson (2003) holding that status as an agency or instrumentality of a foreign state is determined at the time of filing.

Adjudicative Jurisdiction

In Fuld v. Palestine Liberation Organization, the Second Circuit held that the Promoting Security and Justice for Victims of Terrorism Act is unconstitutional because it permits the assertion of personal jurisdiction based on an activity—making payments to terrorists and their families—that cannot be understood as consent to jurisdiction. The court applied the Supreme Court’s newest personal jurisdiction decision, Mallory v. Norfolk Southern Railway Co. (2023), which is also discussed in the survey. Congress could not, the court held, simply take an activity and label it consent to jurisdiction without providing something in return.

In Lewis v. Mutond, the D.C. Circuit dismissed a U.S. citizen’s torture claim against officials of the Democratic Republic of Congo, rejecting an argument that the vitality of the TVPA as a statutory scheme should factor into the court’s personal jurisdiction analysis. The court also reiterated the D.C. Circuit’s position that the limits imposed on federal courts by the Fifth Amendment are the same as those imposed on state courts by the Fourteenth, with Judge Rao suggesting in a concurring opinion that the court should reconsider that position en banc.

Interpreting the doctrine of forum non conveniens, the Tenth Circuit held that a foreign forum is not available if only the moving party, but not the other defendants, has consented to jurisdiction there. In another case, the Fourth Circuit held that a foreign forum was not adequate because it could not address the plaintiff’s American trademark claims.

Recognition and Enforcement of Foreign Judgments

Virginia has adopted the Uniform Foreign-Country Money Judgments Recognition Act, but because that act applies only to money judgments, the Fourth Circuit had to apply Virginia common law to decide whether to recognize a Ghanaian divorce decree. The court held that Virginia’s common law requirements were met, even though Virginia might not have granted a divorce under the same circumstances. Meanwhile, a Texas state court held that a Canadian judgment did not violate Texas public policy even though it awarded speculative damages.

Finally, the Tenth Circuit (applying Colorado law) joined the growing number of courts that have held that a court may order a debtor or third-party garnishee to bring assets held abroad into the United States if the court has personal jurisdiction over the debtor or third-party.

Conclusion

The annual survey on choice of law was admirably maintained by Symeon Symeonides for three decades. The present authors are pleased to have extended this tradition for the last three years.

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)

[This post is cross-posted at Transnational Litigation Blog]

On February 20, 2024, the New York Court of Appeals handed down its opinion in Petróleos de Venezuela S.A. v. MUFG Union Bank, N.A. The issue presented—which I described in a previous post as the billion-dollar choice-of-law question—was whether a court sitting in New York should apply the law of New York or the law of Venezuela to determine the validity of certain bonds issued by a state-owned oil company in Venezuela. The bondholders, represented by MUFG Union Bank, argued for New York law. The oil company, Petróleos de Venezuela, S.A. (“PDVSA”), argued for Venezuelan law.

In a victory for PDVSA, the New York Court of Appeals unanimously held that the validity of the bonds was governed by the law of Venezuela. It then sent the case back to the federal courts to determine whether the bonds are, in fact, invalid under Venezuelan law.

Facts

In 2016, PDVSA approved a bond exchange whereby holders of notes with principal due in 2017 (the “2017 Notes”) could exchange them for notes with principal due in 2020 (the “2020 Notes”). Unlike the 2017 Notes, the 2020 Notes were secured by a pledge of a 50.1% equity interest in CITGO Holding, Inc. (“CITGO”). CITGO is owned by PDVSA through a series of subsidiaries and is considered by many to be the “crown jewel” of Venezuela’s strategic assets abroad.

The PDVSA board formally approved the exchange of notes in 2016. The exchange was also approved by the company’s sole shareholder—the Venezuelan government—and by the boards of the PDVSA’s subsidiaries with oversight and control of CITGO.

The National Assembly of Venezuela refused to support the exchange. It passed two resolutions—one in May 2016 and one in September 2016—challenging the power of the executive branch to proceed with the transaction and expressly rejecting the pledge of CITGO assets in the 2020 Notes. The National Assembly took the position that these notes were “contracts of public interest” that required legislative approval pursuant to Article 150 of the Venezuelan Constitution. These legislative objections notwithstanding, PDVSA followed through with the exchange. Creditors holding roughly $2.8 billion in 2017 Notes decided to participate and exchanged their notes for 2020 Notes.

In 2019, the United States recognized Venezuela’s Interim President Juan Guaidó as the lawful head of state. Guaidó appointed a new PDVSA board of directors, which was recognized as the legitimate board by the United States even though it does not control the company’s operations inside Venezuela. The new board of directors filed a lawsuit in the Southern District of New York (SDNY) against the trustee and the collateral agent for the 2020 Notes. It sought a declaration that the entire bond transaction was void and unenforceable because it was never approved by the National Assembly. It also sought a declaration that the creditors were prohibited from executing against the CITGO collateral.

The choice-of-law issue at the heart of the case related to the validity of the 2020 Notes. Whether the Notes were validly issued depended on whether the court applied New York law or Venezuelan law. The SDNY (Judge Katherine Polk Failla) ruled in favor of the bondholders after concluding that the issue was governed by the laws of New York. On appeal, the Second Circuit certified the choice-of-law question to the New York Court of Appeals. The Court of Appeals reformulated this question to read as follows:

Given the presence of New York choice-of-law clauses in the Governing Documents, does UCC 8-110(a)(1), which provides that the validity of securities is determined by the local law of the issuer’s jurisdiction, require the application of Venezuela’s law to determine whether the 2020 Notes are invalid due to a defect in the process by which the securities were issued?

In a decision rendered on February 20, 2024, the Court of Appeals unanimously concluded that the answer was yes.

Section 8-110

The court began with the New York choice-of-law clauses in the Indenture, the Note, and the Pledge Agreement. Under ordinary circumstances, it observed, New York courts will enforce New York choice-of-law clauses by operation of Section 5-1401 of the New York General Obligations Law. That statute provides that the parties to any commercial contract arising out of a transaction worth more than $250,000 may select New York law to govern their agreement even if the transaction has no connection to New York. In this particular case, however, a different part of Section 5-1401 dictated a different result.

Section 5-1401 also states that even when parties choose New York law, that law “shall not apply . . . to the extent provided to the contrary in subsection (c) of section 1-301 of the uniform commercial code.” UCC 1-301(c)(6) states, in turn, that if UCC 8-110 “specifies the applicable law, that provision governs and a contrary agreement is effective only to the extent permitted.” Finally, UCC 8-110(a)(1) states that “[t]he local law of the issuer’s jurisdiction . . . governs . . . the validity of a security.”

After following the chain of choice-of-law rules from Section 5-1401 to UCC 1-301(c) to UCC 8-110, the court observed that the validity of a security is governed by the law of the issuer’s jurisdiction. The court further observed, based on the statutory text, that Section 8-110 was a mandatory rule that could not be altered by a choice-of-law clause. Against this backdrop, the court held that “because UCC 8-110 is applicable here, any issue of the validity of a security issued pursuant to the Governing Documents is determined by the law of the issuer’s jurisdiction. In this case, the issuer is a Venezuelan entity, so the law of Venezuela is determinative of the issue of validity.”

Validity

The court next addressed the meaning of “validity” as used in Section 8-110. The bondholders argued that this term did not sweep broadly enough to encompass the requirement in Article 150 of the Venezuelan Constitution, which provides that the National Assembly must approve all “contracts of public interest.” They argued that the word encompassed only the usual corporate formalities for issuing a security. PDVSA argued that “validity” could be interpreted to include constitutional provisions that bear on the issue of whether a security was duly authorized. The Court of Appeals agreed.

In reaching this conclusion, the court first observed that the issue of “validity” had to be distinguished from the issue of “enforceability.” The first term refers to the “nature of the obligor and its internal processes.” The second term refers to “requirements of general applicability as going to the nature of the rights and obligations purportedly created, irrespective of the nature of the obligor and its processes.”  The court cited usury laws and anti-fraud laws as examples of laws that dealt with enforceability rather than validity. Although these laws may prohibit a court from enforcing a contract, they do not bear on the validity of that same contract because they do not address the procedures that must be followed for the contract to be duly authorized.

The court then distinguished between (1) validity and (2) the consequences of invalidity. While Section 8-110 stated the controlling choice-of-law rule with respect to the validity, it was not controlling with respect to the consequences stemming from that invalidity. “Even if a court determines that a security is invalid under the local law of the issuer’s jurisdiction,” the court held, “the effects of that determination will depend on New York law.”

With these distinctions in mind, the court held that “Article 150 and its related constitutional provisions could potentially implicate validity because they speak to whether an entity has the power or authority to issue a security, and relatedly, what procedures are required to exercise such authority.” In particular, the court observed that this constitutional provision required the approval of the National Assembly before certain contracts could be executed. Since Article 150 identified procedural requirements rather than substantive ones, the court reasoned, it spoke to the issue of validity rather than enforceability. In so holding, the court reasoned that the term “validity,” as used in Section 8-110, could implicate constitutional provisions of the issuer’s jurisdiction that speak to whether a security is duly authorized.

Caveats

After holding that the issue of validity was governed by the law of the issuer’s jurisdiction, and that Section 150 of the Venezuelan Constitution might be relevant to the issue of validity, the court went on to announce several important caveats.

First, the court stated that the application of Venezuelan law on these facts must be “narrowly confined.” It held that the “exception provided by UCC 8-110 provides no opportunity for the application of foreign laws going to the enforceability of a security, nor does it affect the adjudication of any question under the contract other than whether a security issued by a foreign entity is valid when issued.”

Second, the court emphasized that “none of this is to say that plaintiffs will ultimately be victorious.” It noted that the federal courts would still have to determine whether the securities were, in fact, invalid under the laws of Venezuela.

Third, the court went out of its way to emphasize the fact that—issues of validity notwithstanding—New York law governs the transaction in all other respects, including the consequences if a security was issued with a defect going to its validity.

Conclusion

This long list of caveats suggests that the Court of Appeals wanted to apply to New York law in this case to the maximum extent possible. Enforcing New York choice-of-law clauses, after all, generates business for New York lawyers, and the generation of such business ultimately benefits the State of New York. The Court was, however, unable to find an interpretive path that permitted it to apply New York law in light of the text of Section 8-110.

In the days following the court’s decision, several news outlets reported that the value of the PDVSA bonds at issue had fallen precipitously. This decline in price presumably reflects the market’s perception that the bondholders are less likely to gain access to the CITGO assets anytime soon (if at all) if Venezuelan law governs the validity issue. TLB will report on developments in this case going forward.

[This post is cross-posted at Transnational Litigation Blog.]

The latest volume (Vol. 66, 2023) of the Japanese Yearbook of International Law (formerly Annual Yearbook of Private International Law) – published by the International Law Association of Japan – has recently been released. It contains the following articles, case notes, and English translations of some court decisions relating to or relevant to private international law.

MOBILITY AND BELONGING IN A GLOBALIZED WORLD

Yuko Nishitani

Introductory Note (p. 169)

Nami Thea Ohnishi

Nationality and Citizenship in Relation to the Migration Phenomenon (p. 174)

Hirohide Takikawa

Free Movement and Nationality (p. 189)

Kiyoshi Hasegawa

Inclusion and Exclusion of Immigrants and Refugees in Japan: A Preliminary Study (p. 212)

KONDO Atsushi

Human Rights of Non-Citizens and Nationality — The Peculiarities of Japan’s Nationality Legislation from a Comparative Legal Perspective — (p. 245)

OBATA Kaoru

Beyond the Concept of “Human Rights of Permanently Domiciled Foreigners” in Japanese Public Law Theory — Taking Seriously of Ambiguity in Nationality in the Age of International Migration — (p. 272)

Yuko Nishitani

Personal Law in Contemporary Private International Law — The Changing Role of Nationality, Citizenship, and Habitual Residence — (p. 295)

 

CASES AND ISSUES IN JAPANESE PRIVATE INTERNATIONAL LAW

Shiho Kato

Dismissal of Proceedings on Account of Special Circumstances Under Article 3-9 of the Japanese Code of Civil Procedure (p. 445)

Ai Murakami

Extraterritorial Application of the Japanese Antimonopoly Act (p. 457)

 

Judicial Decisions in Japan

1. Private International Law

Intellectual Property High Court, Judgment, July 20, 2022

Applicable Law — Patent Infringement — Territoriality Principle (p. 561)

Tokyo District Court, Judgment, April 12, 2021

Applicable Law to Tort Liability — Infringement of a Right of Child Custody (p. 565)

Tokyo District Court, Judgment, November 12, 2021

Applicable law — Jurisdiction — Liability of Internet Service Providers (p. 567)

Tokyo District Court, Judgment, March 23, 2022

State Immunity — Unrecognized States — Jurisdiction of the Place of Tort — forum necessitatis — Applicable Law to Tort Liability (p. 569)

Tokyo Family Court, Decision, January 4, 2021

Jurisdiction — Applicable Law — Action to Rebut the Presumption of Child in Wedlock (p. 577)

Tokyo Family Court, Adjudication, January 27, 2021

Applicable law — Jurisdiction — Joint Adoption by a Married Couple with Different Nationalities (p. 580)

 

The full table of contents can be viewed here under the “Current Issue” tab.

More information about the Yearbook and the content of its previous volumes can be found here under the “Past Issues” tab.

The full contents of Vols. 1~64 (1957-2021) are available on HeinOnline.

The Centre for Private International Law (CPIL) of the University of Aberdeen is announcing its 2nd Postgraduate Law Conference of the Centre for Private International Law, which will take place online on 6 May 2024. Researchers are invited to submit abstracts by 29 February.

The Conference aims to provide young scholars with the opportunity to present their research before panels with relevant expertise and receive valuable feedback for further development of their work.

It has four panels, respectively on international family law, civil and commercial law, artificial intelligence and human rights linked to private international law.

For more information, please see the Centre’s website.

An invitation to participate in the Summer School on Consumer and Market Law in the European Circular Economy has been opened for all interested candidates.

The following topics are particularly addressed: Consumer protection and empowerment; Private international law; Dispute resolution and redress issues; and Market regulation. The goals of the summer school are:
• To offer a blended and intensive training, focusing on transnational developments at the EU level;
• To promote the sharing of knowledge, experiences and practices between participants from different countries;
• To help participants in developing incisive reasoning skills and other soft skills such as team working, problem solving and argumentative reasoning.

The school is taking place in a picturesque Italian setting at the premises of the University of Udine from 11 to 19 July 2024. Additional details are available at the Call for applications and the School Brochure.

This summer school has a long tradition since 2008 and is organised by University of Udine, along with its partners: University of Essex, University of East Anglia, De Montfort University of Leicester, University of Belgrade, University of Rijeka, University of Szeged, University of West Timisoara.

Author: Martina Ticic, assistant at the University of Rijeka, Faculty of Law and doctoral student funded by the Croatian Science Foundation (Hrvatska zaklada za znanost – HRZZ)

On 13 December 2023, two years after the first legislative proposal has been published, the new Regulation (EU) 2023/2844 of the European
Parliament and of the Council of 13 December 2023 on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation (Digitalisation Regulation) has been adopted. While the process of digitalisation of judicial cooperation and cross-border procedures in the EU has been ongoing for some time already, the new Digitalisation Regulation represents a major step for advancing digitalisation practices in the EU.

Main features
The Digitalisation Regulation establishes a uniform legal framework for the use of electronic communication and digital tools in cross-border legal proceedings. Particularly, it lays down rules on:
– communication between competent authorities/natural or legal persons and competent authorities
– the use of videoconferencing or other distance communication technology
– the application of electronic signatures and electronic seals
-the legal effects of electronic documents
– electronic payment of fees.
The Regulation establishes that communication between competent authorities of different EU Member States, as well as communication between competent authorities of different Member States and between a national competent authority and EU body or agency, shall be carried out through a decentralised IT system whenever possible. On the other hand, for communication between natural or legal persons and competent authorities in civil and commercial matters, a European electronic access point shall be established on the European e-Justice Portal. The Regulation also provides for the possibility of participating in a hearing through videoconference or other distance communication technology, depending on certain circumstances, e.g., the availability of such technology, parties’ opinion on the use of such technology, or appropriateness of the use of technology. Moreover, the Regulation makes a reference to the eIDAS Regulation in terms of electronic signatures and electronic seals, equates the legal effects of electronic documents with effects of non-electronic ones, and provides for the possibility of electronic payment of fees. Finally, it also amends relevant provisions of other legal instruments, including European Enforcement Order Regulation, European Order for Payment Regulation, European Small Claims Procedure Regulation, European Account Preservation Order Regulation, Regulation on mutual recognition of protection measures in civil matters, Insolvency Regulation, Service of Documents Regulation, and Regulation on the mutual recognition of freezing orders and confiscation orders.

Entry into force
The entire legal framework set by the Regulation, however, will not be fully operational until quite some time. The Regulation will apply from 1 May 2025 – with some exceptions. The Regulation requires the adoption of certain implementing acts by the European Commission, which would mainly set out various technical specifications and requirements. Article 10(3) of the Regulation sets out a timetable for the adoption of different implementing acts, ranging from January 2026 to January 2029.
Articles 3 and 4 of the Digitalisation Regulation, which regulate electronic communication (both between competent authorities and between natural or legal persons and competent authorities in civil and commercial matters) will only apply after two-year period has passed from entry into force of the corresponding implementing acts. These Articles will also only apply to proceedings initiated from that same day. It could be concluded that the Regulation will not be applicable in its entirety for the next seven years, until 2031. However, this only holds true in relation to the provisions on electronic communication. The other regulated aspects, i.e., the provisions on the use of videoconferencing, electronic signatures and seals, legal effects of electronic documents and electronic payment of fees, will all be applicable from May 2025.

Remaining challenges
While certainly a big step forward for the e-Justice developments in the EU, some challenges still remain even after the Digitalisation Regulation becomes fully applicable. Perhaps the biggest issue is fragmentation – both at the EU level and at the national level.
At the EU level, fragmentation is reflected in a complex EU framework and a number of different regulatory sources on different aspects of digitalisation of justice. There are multiple legal acts that address various aspects relevant for the process of digitalisation in the EU, including eIDAS Regulation, e-CODEX Regulation, Directive on Digitalisation of Judicial Cooperation, General Data Protection Regulation, Regulation on processing of data by EU institutions, etc. Moreover, a number of regulations offer specific provisions on digitalisation aspects in a particular procedure, such as European Order for Payment Procedure Regulation, Service Regulation, Evidence Regulation, etc. It is therefore expected that the new Digitalisation Regulation will add to already existing legal framework as an ‘umbrella regulation’, given that it covers a wide range of issues in various steps of legal proceedings in civil, commercial and criminal matters. It should, however, be noted that it will not apply to two crucial procedural aspects of the intra-EU cross-border relations: the service of documents pursuant to the Service Regulation (despite introducing certain amendments to it) nor to the taking of evidence pursuant to the Evidence Regulation, as highlighted in the Recital 17 of the Preamble.
At the national level, while COVID-19 pandemic certainly urged all of the EU Member States to accelerate the usage of digital tools in all aspects of society, there are still varying levels of digital developments in different jurisdictions. This can clearly be seen from the EU Justice Scoreboard, which includes a specific section on digitalisation developments in the Member States. It must be highlighted, however, that a significant improvement over the years is visible when comparing the yearly reports. With the new Digitalisation Regulation, in addition to all the other work that the EU is currently doing to promote digitalisation, the digital tools and digitalisation practices of the Member States will surely only be getting more advanced.
This having been said, diversity of national procedural rules, different e-justice domestic solutions and different levels of the development and usage of digital tools in the proceedings all may still pose problems. It can be expected that the period of the next few years will be especially difficult, as EU Member States will have a lot of work to do – national access points to the e-CODEX will have to be established; harmonised technical standards adopted; and all participants will have to get accustomed to the functionalities of new digital tools and practices. The Digitalisation Regulation partly touches upon this problem by providing that EU Member States must also offer necessary training to competent authorities and professionals concerned in order to ensure efficient use of the IT system and distance communication technology.
In order to ensure that adequate information on national particularities is available for all potential parties, the EU Member States are bound to communicate relevant information to the European Commission, including details of national IT portals, description of national laws and procedure on videoconferencing, information on fees, details on electronic payment methods, etc. Such information will be made available on the e-Justice Portal. On the assumption that the relevant information is regularly updated, the e-Justice Portal will be of great help with the smooth functioning of digital legal framework set by the Digitalisation Regulation.
Thus, while challenging period may be ahead, the result will surely be worthwhile.

What about the parties outside of the EU?
While the Digitalisation Regulation definitely brings important changes to the justice system of the EU and its Member States, potential implications for parties and countries outside of the EU should not be overlooked. Member States are now obliged to work on their national IT portals and digital tools, to train legal staff, and to generally provide for the usage of digital tools in the course of the procedure. Such national developments may then also assist in all cross-border cases, including those with countries outside of the EU. This means that the obligations that the Digitalisation Regulation sets for the Member States can also indirectly allow for better usage of IT tools in the course of cross-border procedures with all of the other countries that make use of such tools as well. On the other hand, for those countries that still lack in the department of digitalisation in law and legal system, this may serve as an incentive for further development in order to make cross-border procedure easier for all. After all, promotion of best practices and cooperation with international partners is one of the EU’s aims, as highlighted in the 2020 Communication from the Commission on the Digitalisation of Justice in the EU.

 

On 11 and 12 April 2024, an international conference on the current topic of the appropriate approach to digital assets in PIL cases will take place at the University of Vienna in a hybrid format. For the impressive speakers list, including internationally renowned academics as well as representatives from UNIDROIT and the HCCH, please refer to the conference announcement below, which was kindly provided by the organizers:

Digital Assets and Private International Law Conference 11 and 12 April 2024 in Vienna

 

Outline

Digital assets, such as cryptocurrencies, stablecoins and other tokens, have become important as objects of investment and trade. They are recorded on the blockchain, an electronic ledger held in identical form on servers (nodes) all over the world. Therefore, the determination of the governing law presents particular challenges. This conference will explore whether Private International Law methodology can be successfully applied to digital assets or whether it needs to be changed in light of the ‘blockchain revolution’.

Date      11 and 12 April 2024

Place     Juridicum, Schottenbastei 10-16, A-1010 Vienna, roof top floor

Format

The conference will take place in a hybrid format. Speakers and participants will meet in the Juridicum. The proceedings will be streamed simultaneously online. Registration (both for physical attendance and online participation) can be made until 6 April 2024 by email at the following address: service.rechtsvergleichung@univie.ac.at. Participation is free but registration compulsory.

 

Programme

 Thursday, 11 April 2024

Time Topic Speaker 13.00 Registration and Coffee 14.00 Inauguration Prof. Brigitta Zöchling-Jud,

Dean of the Law School of the University of Vienna 14.10 Welcome Address Dr. Thomas Gstädtner, President of Supervisory Board, EBI 14.15 Introduction Prof. Matthias Lehmann,
University of Vienna and Radboud University of Nijmegen  

Part 1 – Overarching Issues 14.30 Do We Need a ‘Blockchain Revolution’ in Private International Law? Prof. Andrea Bonomi, University of Lausanne 14.45 Proprietary Rights in Digital and Other Assets and the Conflict of Laws Prof. Christiane Wendehorst, University of Vienna 15.00 The Law Applicable to Payments, Tokenisation and Contracting on Cross-border Digital Platforms Prof. Dr. Gérardine Goh Escolar, Hague Conference on Private International Law 15.15 Which Role for Consumer Law in Blockchain Transactions? Prof. Teresa Rodriguez de las Herras Ballell, UNIDROIT/University Carlos III Madrid 15.30 Discussion 16.00 Coffee Break  

Part 2 – Law Applicable to Digital Assets 16.30 Money or Securities as the Paradigm for Digital Assets? Dr. Burku Yüksel, University of Aberdeen 16.45 A Single Law for the Blockchain vs.  Layer-, Protocol- or Asset-Specific Law Dr. Augustin Gridel, University of Lorraine 17.00 Choice of Law for Digital Assets –Technical Possibilities and Legal Conditions Prof. Florian Heindler, Sigmund Freud University Vienna 17.15 Discussion 17.45 Summary and Conclusion of the First Day Prof. Matthias Lehmann, University of Vienna and Radboud University of Nijmegen 19.00 Speakers’ Dinner

  

Friday, 12 April 2024

Time Topic Speaker 08.30 Coffee Part 3 – Law Governing Blockchain Transactions 09.00 The Determination of the Law of Custody and Its Importance for Digital Assets Prof. Matthias Haentjens, University of Leiden 09.15 Secured Transactions in Digital Assets Prof. Spiridon Bazinas, Sigmund Freud University Vienna (online) 09.30 The Law Applicable to Staking Dr. Fabio Andreotti, Bitcoin Suisse AG 09.45 Decentralized Finance (DeFi) –  Which Law is Governing the Entities, which the Transactions? Dr. Pascal Favrod-Coune, Aegis Partners 10.00 Discussion 10.30 Coffee Break Part 4 – Law Governing Particular Issues 11.00 The Law Governing Private Relations and Liability on the Network Prof. Tobias Lutzi, University of Augsburg 11.15 The Law Governing Trade Finance Tokens Prof. Koji Takahashi, Doshisha University (online) 11.30 Determining the Law Governing Smart Contracts Dr. Jasper Verstappen, University of Groningen 11.45 Discussion

  12.15 Summary and Conclusion Prof. Matthias Lehmann, University of Vienna and Radboud University of Nijmegen

 

About the Interdisciplinary Association of Comparative and Private International Law (IACPIL)

IACPIL is a platform for discussing issues in comparative law and private international law. The association is based in Vienna, where it organises events on current topics, fundamental issues, and methodological questions. Its members reflect a broad professional base rooted in the academic, judicial, and administrative fields, and are also joined by translators and specialists from international organisations.

The association is a critically scrutinising forum. Interdisciplinary topics with legal, political, historical, social, economic, and cultural dimensions are frequently considered. In this way, IACPIL endeavours to promote a modern, humane, and social regulation of cross-border conflicts.

 

About the European Banking Institute (EBI)

The EBI is an international centre based in Frankfurt for banking studies resulting from the joint venture of Europe’s preeminent academic institutions which have decided to share and coordinate their commitments and structure their research activities in order to provide the highest quality legal, economic and accounting studies in the field of banking regulation, banking supervision and banking resolution in Europe.

EBI aims to become a point of reference in the research of banking regulation research in Europe. By promoting the dialogue between scholars, regulators, supervisors, industry representatives and advisors in relation to issues concerning the regulation and supervision of financial institutions and financial markets from a legal, economic and any other related viewpoint, the close relationship with regulators, supervisors, and private sector is expected to guarantee a one-of-its-kind academic research production.

As the 118th American Society of International Law (ASIL) Annual Meeting approaches, the ASIL Private International Law Interest Group will organize a fireside chat on Thursday, April 4 from 3:30 PM to 4:30 PM ET in Washington D.C.

During this fireside chat, our esteemed speakers will discuss recent developments in private international law in the US and beyond. Professor Ronald A. Brand will analyze the developments at the Hague Working Group, which is currently pursuing a convention on parallel proceedings and related actions or claims. Ms. Sarah Prosser will provide an overview of recent developments in the private international law efforts of the U.S. Department of State in 2023, with insights into initiatives planned for 2024. Professor Carlos M. Vázquez will focus on developments in the United States, including such recent decisions as Mallory v. Norfolk Southern Railway Co, Cassirer v. TBM, and the Mexican Gun Litigation. The fireside chat will adopt a relaxed format, ensuring a casual and enjoyable experience for both speakers and the audience.

Speakers (alphabetized by surname):

Ronald A. Brand
Chancellor Mark A. Nordenberg University Professor
Academic Director, Center for International Legal Education
University of Pittsburgh School of Law

Sarah Prosser
Assistant Legal Adviser for
Private International Law (L/PIL)
Office of the Legal Adviser
U.S. Department of State

Carlos M. Vázquez
Associate Dean for Graduate and International Programs
Scott K. Ginsburg Professor of Law
Georgetown University Law Center

Chair: Dr. Jie (Jeanne) Huang, Co-Chair of the ASIL Private International Law Interest Group and Associate Professor at the University of Sydney Law School

Time: Thursday, April 4 at 3:30 PM – 4:30 PM ET
Venue: TBD at the Washington Hilton

• Happy Hour
We invite Private International Law Interest Group members, newsletter editors, and friends to join us for a casual happy hour gathering at McClellan’s Sports Bar located at the Washington Hilton. Please find event details below:

4:30 PM- 5:30 PM ET, Thursday April 4, 2024
Social & Networking Event
McClellan’s Sports Bar
No Host Bar
We look forward to learning any PIL (and non-PIL) inspirations from you for the more exciting years to come. Everyone is welcome to stop by.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 29 February 2024 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is the role of Private International Law in the development and deployment of digital currencies and will be presented by Dr. Israel Cedillo Lazcano (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/83223220677?pwd=ejcyTysxbUFwLzRIMFhYRGkzV2VpQT09

Meeting ID: 832 2322 0677

Password: AMEDIP

Participation is free of charge.

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

We are happy to share the following announcement from the organisers.

On 12 April 2024, a hybrid conference will take place at the Skylounge of the University of Vienna to discuss the reform of the Brussels Ibis Regulation; the fundamental reference-instrument of cross-border judicial cooperation in civil matters within the European Union. The reform is expected to begin this year under the new European Commission. The conference is organised by the Institute for Civil Procedure and continues the work already done within the European Association for Private International Law (EAPIL) and the former Max Planck Institute (MPI) Luxembourg.

In 2021, Burkhard Hess wrote a Working Paper on a possible reform of the Brussels Ibis Regulation, identifying problems and suggesting solutions. In the same year, a Working Group was set up within the network of the EAPIL. The members of the Working Group provided information on the application and possible shortcomings of the Brussels Ibis Regulation in their jurisdictions by means of a questionnaire. The results of the questionnaire provided the basis for the conference on the Brussels Ibis reform held at the former MPI Luxembourg on 9 September 2022, where more than 80 participants discussed reform proposals in five panels (report).

Following the 2022 Luxembourg conference, Burkhard Hess and a team of researchers of the MPI prepared a second Working Paper, which put forward 32 proposals for the reforms of the Brussels Ibis Regulation. Members of the EAPIL Working Group were invited to express again their opinion and to vote on these proposals in an online poll. The poll was later opened to the public, as announced on the EAPIL-blog and ConflictofLaws.net. The purpose of this poll was to give the academic public as well as other stakeholders an opportunity to express their view on the proposals. An extensive documentation and analysis of the poll will be published soon, which serves as a basis for discussion at the upcoming conference.

The 2024 Vienna conference features speakers from various parts of the European Union. In the morning, the prospects of the reform process and overarching issues of the Brussels Ibis Regulation are addressed by Andreas Stein (EU Commission), Astrid Stadler (Konstanz), Cristina González Beilfuss (Barcelona), Gilles Cuniberti (Luxembourg), as well as Karol Weitz and Bartosz Wo?odkiewicz (Warsaw). The various proposals for the reform of the Brussels Ibis Regulation will be addressed from a practical perspective in the afternoon during a roundtable featuring, inter alia, Anthony Collins (EU Court of Justice), Georg Kodek (Austrian Supreme Court), Petra Leupold (VKI), Sabine Leupold (Freshfields Bruckhaus Deringer) and Andreas Stein (EU Commission). The full program can be found on the flyer.

Burkhard Hess, Christian Koller and Paul Oberhammer of the Institute of Civil Procedure look forward to your participation in the Vienna conference. Please send your registration to reformingbrussels-Ibis.zvr@univie.ac.at and indicate whether you will participate in person or online.

I. Introduction

It is widely recognized that choice of court and choice of law agreements are powerful tools for structuring and planning international dispute resolution. These agreements play an important role in “increasing legal certainty for the parties in cross-border transactions and reducing incentives for (the harmful version of) forum shopping.” (Alex Mills, Party Autonomy in Private International Law (CUP, 2018) p. 75). However, the realization of these objectives depends on the enforcement of the parties’ choice. Unfortunately, general practice in the MENA (North Africa and the Middle East) region shows that, with a few exceptions, the status quo is far from satisfactory. Choice-of-court agreements conferring jurisdiction on foreign courts are often disregarded or declared null and void. Similarly, the foreign law chosen as the governing law of a contract is often not applied because of the procedural status of foreign law as a matter of fact, the content of which must be ascertained by the party invoking its application. The recent judgment of the High Court of Bahrain (a first instance court in the Bahraini judicial system) in the Case No. 2/13276/2023/02 of 17 January 2024 is nothing but another example of this entrenched practice that can be observed in the vast majority of countries in the region.

 

II. Facts

X (plaintiff, an English company) entered into a pharmaceutical distribution and sales agreement with Y1 (defendant, a Bahraini company), in 2017 in Bahrain. The agreement provided that disputes arising out of or in connection with the agreement would be subject to the exclusive jurisdiction of the courts of England and Wales. The parties also agreed that English law should be the governing law.

Following Y1’s failure to make due payments as agreed, X initiated legal proceedings against Y1, Y2 and Y3 (both Bahraini nationals and partners in Y1) in the High Court of Bahrain, seeking payment and some other related costs under Bahraini law. The defendants challenged the jurisdiction of the Bahraini court based on the forum selection clause, but did not present any claim as to the merits of the case.

 

III. The Ruling

The High Court ruled as follow to affirm its jurisdiction and the application of Bahraini law:

[Regarding international jurisdiction]

“[The defendants] challenge the jurisdiction of the Bahraini courts to hear the dispute on the basis that the contract contains a jurisdiction clause which confers exclusive jurisdiction on the English courts to hear any dispute arising out of or relating to the contract. However, according to Articles 14 and 15 of the Code of Civil Procedure, the Bahraini courts have jurisdiction over actions brought against Bahraini nationals, regardless of the nature of the dispute, as long as they have Bahraini nationality at the time the action is brought, without any further conditions, except for in rem actions relating to immovable property located outside Bahrain. Thus, the jurisdiction of the Bahraini courts is based on personal nexus, i.e. the nationality of the defendant, and any agreement to deviate from this jurisdiction is inadmissible because of its connection with public policy. This is because it is the State that determines the jurisdiction of its courts in order to serve the public interest, i.e. to ensure justice, which is one of its primary functions, and to maintain order and peace within its territory. (Underline added).

[Since Y1 is a Bahraini limited liability company and Y2 and Y3, who are partners in Y1, are Bahraini nationals,] it is not permissible to waive the jurisdiction of the Bahraini courts, which retain jurisdiction over the [present] dispute.

[Regarding the applicable law]

It is clear from the contract that the parties agreed that any disputes arising out of the contract should be governed by the laws of England and Wales. Pursuant to Article 4 of Law No. 6 of 2015 on Conflict of Laws in Civil and Commercial Matters with Foreign Elements, the parties may choose the applicable law. [However], Article 6(a) of the same law requires the parties to the dispute to submit the text of the applicable law, failing which Bahraini law shall be deemed applicable. [In the present case], neither party has submitted the agreed law governing the dispute, and X, which [as the foreign party] , requested the application of Bahraini law and relied on the provisions of the Bahraini Commercial Companies Law in its statement of claim. Since the court is not required to ask the parties [to provide the content] the applicable law, as this obligation rests with the parties themselves, Bahraini law shall be applied to the [present] dispute”.

 

IV. Comments:

1. Sources of Law

It should be indicated from the outset that in Bahrain, rules governing international jurisdiction are primarily found in the Code of Civil and Commercial Procedure of 1971  (hereafter referred to as “CCCP,” articles 14-20). Regarding choice of law rules, those concerning family law and successions (i.e., personal status) are included in the CCCP (articles 21 and 22), while those concerning civil and commercial matters, including rules pertaining to general theory, are laid down in a special Law on Conflict of Laws in Civil and Commercial Matters with Foreign Elements (Law No. 6 of 2015).(*)

(*) One may wonder about the reasons behind keeping the choice of law rules in matters of family law and successions within a law dealing with civil and commercial procedure, especially since the Bahraini legislator codified the conflict of law rules in an autonomous act dealing with conflicts of laws (choice of law). There have been some calls to consolidate all private international law rules (including choice of law, international jurisdiction) in a single act dealing with legal relationships involving foreign elements (see eg., Awadallah Shaiba Al-Hamad Al-Sayed, “An Analytical and Critical Study of the Law No. 6 of 2015 on the Conflict of Laws in Civil and Commercial Matters – Kingdom of Bahrain”, Legal Studies, Vol. 2, 2019, pp. 224 ff (in Arabic)), however, no actions have been taken so far to implement this proposal.

 

2. International Jurisdiction

Interestingly, the rules of international jurisdiction contained in the CCCP deal mainly with actions brought against non-Bahraini nationals, either on the basis of their domicile/residence in Bahrain (general jurisdiction, Article 14 of the CCCP) or in certain other matters depending on the category of dispute (special jurisdiction, Article 15 of the CCCP). The fact that the rules on international jurisdiction refer only to foreign defendants raised the question of whether Bahraini courts could assume jurisdiction based on the nationality of the defendant (Cf. Hosam Osama Shaaban, Treatises on Bahraini Private International Law (Al-Bayan Media, 2016), p. 277 [in Arabic]).

In a number of cases, the Supreme Court has ruled in the affirmative. For example, in a decision issued in 2014, the Bahraini Supreme Court held that “even if the Bahraini legislator did not establish the rules of international jurisdiction of the Bahraini courts in the CCCP with regard to lawsuits filed against Bahraini nationals, it is understood that the jurisdiction of the national courts over [such lawsuits] stems from the consideration of [judicial jurisdiction] as a manifestation of the sovereignty of the State, which extends to what falls under this sovereignty” (Supreme Court, Appeal No. 531/2013 of 15 April 2014). In another case, the Supreme Court confirmed its ruling by considering that “persons holding Bahraini nationality are subject to the jurisdiction of Bahraini courts as a manifestation of the state’s sovereignty over its citizens”, thus recognizing the jurisdiction of Bahraini courts over Bahraini nationals even if they hold a second nationality and are not resident in Bahrain (Supreme Court, Appeal No. 77/2017 of 11 April 2018).

In this regard, it can be said that the High Court’s decision commented here is fully consistent with the well-established case law of the Supreme Court.

 

3. Choice of Court Agreements

With respect to the admissibility of choice of court agreements, it should be noted that agreements with prorogative effect, i.e., choice of court agreements that confer jurisdiction on Bahraini courts that are not otherwise competent, are generally admitted (see article 17 of the CCCP [dealing with explicit or tacit submission to the jurisdiction of Bahraini courts]; article 19 of Legislative Decree No. 30 for the year 2009 with respect to the Bahrain Chamber for Economic, Financial and Investment Dispute Resolution (BCDR) [on the jurisdiction of the BCDR based on the agreement of the parties]. See also, eg, Supreme Court, Appeals Nos. 154 and 165/2017 of 20 May 2017 [tacit submission to the jurisdiction of Bahraini courts]).

However, with respect to agreements with derogative effect, although the law is silent on the matter, the Supreme Court has ruled against their admissibility. This is particularly the case of the Supreme Court ruling in a decision rendered in 2006 (Supreme Court, Appeal No. 231/2005 of 27 February 2006). The case concerned a lawsuit filed by a former foreign employee against his Bahraini employer, claiming overdue employment rights. The employer relied on a choice of forum clause in favor of the English court, arguing that Bahrain’s rules on international jurisdiction (articles 14 and 15 of the CCCP) apply only in the absence of a written agreement between the parties when one of them is a foreigner, and that rules on international jurisdiction do not concern public policy; therefore, nothing should prevent the parties from displacing the jurisdiction of Bahraini courts in favor of a foreign court. The Supreme Court disagreed. However, instead of framing its decision in the particular context of the employment relationship, where the employee – as the weaker party – deserves special protection, the Court proclaimed the principle that any agreement by which the parties derogate from the jurisdiction Bahraini courts conferred under Bahraini law “shall be deemed null and void and shall not be invoked” to challenge the jurisdiction of courts in Bahraini (Supreme Court, Appeal No. 231/2005 of 27 February 2006).

The High Court’s decision commented here is consistent with this ruling. In fact, the underlying part of the first paragraph of the High Court’s decision quoted above is almost a verbatim copy from the Supreme Court’s decision of 27 February 2007 mentioned above.

Finally, it should be indicated that the position of the Bahraini courts on this issue is broadly similar to that of other countries in the region, as noted in the Introduction. (For a brief overview of some relevant Supreme Court decisions from various MENA Arab countries and the implications of this position for the enforcement of foreign judgments in the region, see Béligh Elbalti, “Perspective of Arab Countries,” in M. Weller et al. (eds.), The 2019 HCCH Judgments Convention – Cornerstones, Prospects, Outlook (Hart, 2023), p. 188.)

 

4. Party Autonomy – Principle

The principle of party autonomy is enshrined in Article 4 of Law No. 6 of 2015, which states that the “[p]arties may agree to choose the applicable law […]”. Bahraini courts have recognized the principle of freedom of parties to choose the applicable law (eg, Supreme Court, Appeal No. 641/2011 of 27 May 2011). The courts did so even in the absence of legislative guidance prior to the adoption of the current applicable rules (see eg, Supreme Court Appeal No. 143/1994 of 4 December 1994). The High Court in the present case did not deviate from this “well-established” principle, which is rooted in both Bahraini statutes and case law. (For a detailed study based on Bahraini case law, see Béligh Elbalti & Hosam Osama Shabaan, “Bahrain – Bahraini Perspectives on the Hague Principles”, in D. Girsberger et al. (eds.), Choice of Law in International Commercial Contracts – Global Perspective on the Hague Principles (OUP, 2021), pp. 414 ff).

 

5. Party Autonomy – Practice

In practice, however, as demonstrated by the High Court decision, there is a gap between the affirmation of the principle of party autonomy on the one hand and the actual application of the chosen law to a concrete case on the other. This gap arises from the fact that, under Bahraini  law as regularly confirmed by case law,  foreign law is treated as a fact, the content of which must be determined by the party requesting its application (see eg, Article 6 of Law No. 6 of 2015. For further details and examples, see Elbalti & Shaaban, op cit., at 420-421). Consequently, failure to ascertain the content of the foreign law would normally result in the application of Bahraini law. The same principle applies even in cases where the parties have made a choice of law agreement. For example, in the aforementioned Supreme Court decision in the Appeal No. 143/1994 of December 4, 1994, although the Court recognized that the parties had (implicitly) agreed on Pakistani law as the applicable law, it ultimately excluded the application of the chosen law because its content had not been established. (For further details and examples, see Elbalti & Shaaban, op cit.). The High Court did not deviate from this general approach showing by this some degree of consistency in the Bahraini courts’ practice.

 

6. Epilogue

In the case commented here, the court justified the application of Bahraini law on the grounds that the content of the law chosen by the parties had not been submitted to the court. To some extent, it may be questioned whether such a justification is acceptable, as it could be argued that there was a tacit agreement to apply Bahraini law instead of the chosen law (on the issue of tacit choice of law under Bahraini law and the relevant Supreme Court cases, see Elbalti & Shaaban, op cit., pp. 423-425). However, as evidenced by the facts of the case, the defendants in this case did not present any arguments on the merits, but merely challenged the jurisdiction of the Bahraini court. The mere fact that the plaintiff based its claim on Bahraini law by relying on the relevant provisions of the Bahraini Commercial Companies Law does not in itself constitute an “implied” agreement to apply Bahraini law.

On this particular point, it is interesting to compare the decision of the High Court discussed here with another decision issued by the same court just thirteen days earlier in a case involving similar legal issues, namely the admissibility of a choice of court agreement in favor of the Cayman Islands courts and the application of Cayman Islands law as the law chosen by the parties (High Court, Case No. 5/11341/2023/02 of 4 January 2024). In this case, the High Court ruled in exactly the same way as in the present case with regard to the admissibility of the choice of court agreement. However, with respect to the application of Cayman Islands law, the court held that there was an implied agreement to apply Bahraini law in lieu of the chosen law because both parties based their claim on the provisions of Bahraini law and relied on relevant Supreme Court decisions.

On February 21, 2024, the U.S. Supreme Court handed down its decision in Great Lakes Insurance SE v. Raiders Retreat Realty Company, LLC.

The question presented was whether, under federal admiralty law, a choice-of-law clause in a maritime contract can be rendered unenforceable if enforcement is contrary to the “strong public policy” of the U.S. state whose law is displaced. In a unanimous opinion authored by Justice Kavanaugh, the Court concluded that the answer to this question was no. It held that choice-of-law provisions in maritime contracts are presumptively enforceable as a matter of federal maritime law. It further held that while there are narrow exceptions to this rule, state public policy is not one of them.

Facts

Great Lakes Insurance SE (GLI) is a corporation organized under the laws of the Germany that is headquartered in the United Kingdom. Raiders Retreat Realty Co., LLC (Raiders) is a company organized under the laws of Pennsylvania. GLI insured a yacht owned by Raiders. The marine insurance contract signed by the parties contained the following choice-of-law clause:

It is hereby agreed that any dispute arising hereunder shall be adjudicated according to well established, entrenched principles and precedents of substantive United States Federal Admiralty law and practice but where no such well-established, entrenched precedent exists, this insuring agreement is subject to the substantive laws of the State of New York.

After the yacht ran aground in Florida and sustained significant damage, Raiders filed a claim. GLI denied the claim on the ground that the yacht’s fire-extinguishing equipment had not been recertified or inspected. Although the damage to the yacht was not caused by fire, GLI took the position that Raiders had misrepresented the vessel’s fire suppression system’s operating ability, thereby making the policy void from inception.

After denying the claim, GLI filed an action for a declaratory judgment in the U.S. District Court for the Eastern District of Pennsylvania. It asked the court to hold that the policy was void due to the alleged misrepresentations by Raiders with respect to the fire extinguishers. In response, Raiders asserted five counterclaims against GLI: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) breach of fiduciary duty, (4) bad faith liability under 42 Pa. Const. Stat. §8371, and (5) violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law.

GLI moved for judgment on the pleadings with respect to the fourth and fifth counterclaims. It argued that these claims were not viable because the policy’s choice-of-law provision had designated New York as the governing law in the absence of applicable federal maritime law. Because the claims were based on Pennsylvania statutes, it argued, they were barred by the choice-of-law clause. Raiders opposed this motion. It argued that the choice-of-law clause was unenforceable because it was contrary to Pennsylvania’s strong public policy of punishing insurers who deny coverage in bad faith.

The trial court ruled in favor of GLI. The Third Circuit ruled in favor of Raiders. The Supreme Court granted GLI’s cert petition and heard oral arguments on October 10, 2023.

Decision

The Court held that the issue of whether a choice-of-law clause in a maritime contract is enforceable is governed by federal law. In support of this conclusion, the Court noted that it had previously held that the enforceability of forum selection clauses in these contracts is governed by federal law. It would be strange, the Court reasoned, to adopt a different rule with respect to choice-of-law clauses. The Court further held that choice-of-law clauses in maritime contracts were “presumptively enforceable.” Again, this conclusion logically followed from the fact that the Court had previously held that forum selection clauses in maritime contracts are “prima facie valid.”

After discussing why the Court’s decision in Wilburn Boat Company v. Fireman’s Fund Insurance Company (1955) did not dictate a different outcome, the Court turned its attention to the question of when a choice-of-law clause in a maritime contract should not be enforced. It held that courts should disregard these clauses in situations where applying the chosen law would “contravene a controlling federal statute” or “conflict with an established federal maritime policy.” It also held that these clauses should not be given effect when there was no “reasonable basis” for selecting the law of the chosen jurisdiction. However, the Court expressly rejected the argument advanced by Raiders that a choice-of-law clause in a maritime contract was unenforceable if applying the law of the chosen state would be contrary to a fundamental policy of a state with a greater interest in the dispute.

In rejecting this argument, the Court explained that a federal presumption of enforceability “would not be much of a presumption if it could be routinely swept aside based on 50 States’ public policy determinations.” It reasoned that the “ensuing disuniformity and uncertainty caused by such an approach would undermine the fundamental purpose of choice-of-law clauses in maritime contracts: uniform and stable rules for maritime actors.” The Court also noted that nothing in its previous decisions relating to the enforceability of forum selection clauses in maritime contracts suggested that state public policy was relevant to whether these clauses should be given effect.

Finally, the Court declined to adopt the argument—advanced by me and Kim Roosevelt in an amicus brief prepared with the assistance of the North Carolina School of Law Supreme Court Program—that it should resolve the question of enforceability by looking to Section 187(2) of the Restatement (Second) of Conflict of Laws. The Court reasoned that the rule laid down in Section 187 “arose out of interstate cases and does not deal directly with federal-state conflicts, including those that arise in federal enclaves like maritime law.” The Court also pointed out that Section 187 was a “poor fit” for maritime cases in part because it would “prevent maritime actors from prospectively identifying the law to govern future disputes.”

Analysis

I had two great fears going into this case. Thankfully, neither was realized.

First, I was concerned that the Court might take the test it had previously articulated for determining whether a forum selection clause should be given effect as a matter of federal maritime law and apply that test to choice-of-law clauses. This is, in essence, what the Third Circuit did in its decision below. Such an approach would, in my view, have generated a great deal of mischief. Although choice-of-law clauses and forum selection clauses are often invoked in the same breath, they are not the same and the courts should utilize different tests to evaluate whether they should be enforced. I was relieved that the Court chose not to go down this path. The test laid down in Great Lakes for determining whether a choice-of-law clause in a maritime contract is enforceable is distinct and different from the test for determining whether a forum selection clause laid down in The Bremen and Carnival Cruise.

Second, I was concerned that the Court’s test for enforcing choice-of-law clauses might be couched in such broad language that it would eventually supplant Section 187 in non-maritime cases. This is essentially what happened when the Court decided The Bremen in 1972. Although that decision only applied to forum selection clauses in maritime contracts, the sweeping language utilized by the Court ultimately brought about a significant change in practice in non-maritime cases. The language in Great Lakes, by comparison, is much more carefully drawn. Throughout the opinion, Justice Kavanaugh consistently frames the issue as whether a choice-of-law clause is enforceable in a maritime contract rather than in a more general sense. The rationales articulated by the Court for declining to adopt the rule laid down in Section 187 are similarly encouraging. The Court stated that Section 187 was not the right rule because it “arose out of interstate cases and does not deal directly with federal-state conflicts.” This language suggests that Section 187 should provide the relevant rule of decision in cases relating to the enforceability of choice-of-law clauses when the conflict of laws is between two states—or between a state and foreign country—rather than between state and federal law.

[This post is cross-posted at Transnational Litigation Blog]

 

The organisers of the 2024 edition of the INSOL Europe Academic Forum kindly shared with us the following call for papers. Please note the deadline for submission is 1 March 2024:

 

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 20th annual conference, taking place from Wednesday 2 – Thursday 3 October 2024 in Sorrento (Italy). Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference: ‘The Evolution or Revolution of European Insolvency Law’.

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

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

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 2024 to the IEAF’s Deputy Chair, Dr. Jennifer Gant.

Authors of papers selected for presentation will benefit from a waiver of the participation fee (one per paper) 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

 

 

 

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

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

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

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

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

 

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

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

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

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

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

 

Part II: Civil and Commercial Matters in Private International Law

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

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

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

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

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

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

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

 

Part III: Family Matters in Private International Law

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

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

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

 

Conclusions

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

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