Conflictoflaws

The Journal of Law, Market & Innovation (JLMI) is a new initiative of the Turin Observatory on Economic Law and Innovation. The JLMI is an open access journal of the University of Turin that aims at fostering research with respect to the regulatory challenges posed by markets and innovation in our times. The JLMI relies on an interdisciplinary methodology. More information at https://www.ojs.unito.it/index.php/JLMI.

In its yearly Special Issue, which is a joint initiative with the Master in International Trade Law and to which this call for papers is addressed, it focuses on international and comparative approaches to trade law with the goal of offering to the readers challenging ideas, critical insights and new perspectives.

This Call concerns the first Special Issue to be published in Spring 2022 on The interplay of physical and digital trade law. The Call aims at gathering contributions that question to what extent technology and digital trust are changing global trade law, and discuss the implications, for the regulation of global trade, of the interplay of physical trade and the digitalization of the economy.

The editors of the issue are University of Turin’s dr Lorenza Mola, Professor of International Law and 2020-2021 scientific director of the Master, dr Cristina Poncibò, Professor of Comparative Private Law and member of the Scientific Committee of the Master, and dr Elena D’Alessandro, Professor of Civil Procedure and member of the Scientific Committee of the Master.

The following topics and perspectives may be taken into considerations, among others: Trade, Digital Trust and Human Trust; Contract Digitalization and B2B platforms; Trade, DLTs, Blockchain; E-customs; Digital Justice and Trade; Perspectives from China and the Global South. The editors invite submissions addressing the legal aspects underpinning questions such as: Are the main drivers of physical trade challenged?; Trade and essential infrastructures: what lessons learned from the Suez Channel case?; Does digitalization really change trade?; Is global trade really going digital?; How to adapt dispute settlement mechanisms to digital trade? How is the Belt and Road Initiative shaping the physical/digital interplay in global trade? What is the impact of COVID-19 on such interplay?

Authors are invited to address questions and issues arising from the specific area of law relating to their topic. All types of legal approaches will be considered for publication. However, please note that any analysis solely limited to a national legal system will fall outside the scope of the Journal. An international, supranational or transnational legal dimension is imperative. The Board of Editors will select articles based on quality of research and writing, diversity, and relevance of topic. The contributions from the Alumni of the Master programme are particularly welcomed. The novelty of the academic contribution is also an essential requirement.

Prospective articles should be submitted in the form of abstract (around 800 words) or draft articles (see below) to submissions.jlmi@iuse.it within August 31, 2021. Accepted authors will be notified within September 10, 2021. Final articles shall be delivered within December 10, 2021 and should conform to the journal style guide that is based on OSCOLA. Typically, the JLMI accepts contributions within the range of 10.000 to 15.000 words, including footnotes, but both shorter and longer articles will be considered. Pre-selected articles will be subject to single-blind peer review. For further information, or for consultation on a potential submission, you can contact us by email at editors.jlmi@iuse.it.

In 2015, the United Nations formulated 17 ambitious goals towards transforming our world – the Sustainable Development Goals (SDG 2030). Their relation to public international law has been studied, but private law has received less attention in this context and private international law none at all. Now renowned and upcoming scholars from multiple countries and disciplines analyze, for each of the 17 SDGs, what role private international law actually plays towards these goals and how private international law could, or should, be reformed to help achieve them. The resulting findings will be published in an open access volume with Intersentia  and presented in the framework of a Conference to be held on 9 to 11 September 2021 at the Max Planck Institute for Comparative and International Private Law in Hamburg.

The Conference will take place in a hybrid format, i.e. both at the Max Planck Institute for Comparative and International Private Law in Hamburg and virtually via Zoom. English-Spanish and Spanish-English simultaneous translation for the Conference will be provided by professional interpreters.

The Conference Program and further information can be found via this LINK.

Please register for participation at the Conference via Zoom HERE.

 

 

 

 

 

Conventions & Instruments

On 23 July 2021, New Zealand deposited its instrument of ratification of the HCCH 2007 Child Support Convention. With the ratification of New Zealand, 42 states and the European Union are bound by the Child Support Convention. It will enter into force for New Zealand on 1 November 2021. More information is available here.

On 1 August 2021, the HCCH 1996 Child Protection Convention entered into force for Costa Rica. It currently has 53 Contracting Parties. More information is available here.

Meetings & Events

As of 3 August 2021, registration for the 12th International Forum on the electronic Apostille Programme (e-APP) is open to the general public. The event will be hosted online on 4 October 2021. The deadline for registration is Friday, 10 September 2021, 5.00 p.m. CEST. More information is available here.

On 9 August 2021, the HCCH and the Inter-American Commission on Human Rights of the Organization of American States co-hosted a webinar on international child abduction.

On 19 August 2021, the HCCH, the Council of ASEAN Chief Justices and the Malaysian Judiciary co-hosted a virtual HCCH-ASEAN Masterclass. More information is available here.

Other

Vacancy: Applications are now open for three- to six-month legal internships from January to June 2022. The deadline for the submission of applications is 24 September 2021 (18:00 CEST). More information is available here.

Reminder: Submissions for the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition are due on 1 October 2021. The competitions are organised as part of the Advancing and Promoting the Protection of All Children (Approach) Initiative, launched in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. 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.

 The second issue of 2021 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) has been released. It features:

Christian Kohler, Honorary Professor at the University of Saarland, Limiting European Integration through Constitutional Law? Recent Decisions of the German Bundesverfassungsgericht and their Impact on Private International Law (in English)

• On May 5, 2020 the Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) in Germany ruled that the Public Sector Purchase Programme (“PSPP”) of the European Central Bank (ECB) as well as the judgment of the Court of Justice of the European Union (CJEU) in case C-493/17 were “ultra vires” because they exceeded the competences conferred on these institutions. Both the PSPP and the CJEU’s judgments were thus without effect in Germany. In order to assess the judgment of the BVerfG and to measure the ensuing conflict, a look at its case-law in matters of European integration is indispensable. In seminal judgments relating to the ratification of the Maastricht treaty (1993) and the treaty of Lisbon (2009), the Constitutional Court had previously explained its approach toward the European Union as being a confederation sui generis of sovereign states governed by the principle of conferral, and that any action of the German institutions relating to the European integration has to respect a twofold limitation: it has to remain within the limits of the competences conferred by the treaties, and it has to safeguard Germany’s “constitutional identity” as enshrined in the Basic Law. Any act taken in violation of these limits may be declared void by the Constitutional Court. The control exercised by the BVerfG has been further extended by a ruling of February 13, 2020: the Court held that the German law authorizing the ratification of the Agreement on a Unified Patent Court (UPC) was void as it had not been adopted by a majority of two thirds by the Bundestag and the Bundesrat as required by the Basic Law. This implies that from now on the Court will control not only the material but also the formal validity of an act relating to the European integration. Both the “Lisbon” judgment and the UPC ruling have implications for European private international law. Whereas these implications are well defined in the “Lisbon” judgment they are less visible but nevertheless present in the ruling of February 13, 2020.

Fabrizio Marongiu Buonaiuti, Professor at the University of Macerata, Il rinvio della legge italiana di riforma del diritto internazionale privato alle convenzioni internazionali, tra adeguamento al mutato contesto normativo e strumentalita` alla tutela dei valori ispiratori (The Reference to International Conventions Made in the Law Reforming the Italian System of Private International Law: Between Adaptation to the Changed Normative Context and Instrumentality to the Protection of the Underlying Principles)

• A salient feature of the law providing for the reform of the Italian system of private international law (Law No. 218 of 31 May 1995) consists of the references it embodies to some private international law conventions for the purposes of relying on their rules in order to regulate issues not falling within their scope of application, consistently with the regime contained in the relevant convention. This article discusses the fate of those references, as a consequence of the fact that most of the conventions referred to have in the meantime been replaced by EU regulations, when not by subsequent conventions. While just one of the said references, that embodied under Article 45 of the said law, concerning the law applicable to maintenance obligations, has been updated so far by the Italian legislature, the author proposes that, as a matter of consistent interpretation, the other references made by the same law should be held as directed to the new instruments having replaced the conventions existing at the time the law was passed. As argued in the final part of the article, the proposed solution is also conducive to a more effective achievement of the objectives pursued already by the conventions initially referred to.

Zeno Crespi Reghizzi, Professor at the University of Milan, La “presa in considerazione” di norme straniere di applicazione necessaria nel regolamento Roma I (‘Considering’ Foreign Overriding Mandatory Provisions under the Rome I Regulation)

• In its Nikiforidis judgment of 2016, the Court of Justice of the European Union ruled that the limits set by Article 9(3) of the Rome I Regulation to the effects of foreign rules of mandatory application concern only their ‘application’ in the international private law sense, not also their ‘taking into account’ by substantive rules of the lex contractus. The present article discusses the reasons for this interpretative solution and highlights the need to specify its scope in order to preserve the Regulation’s systemic coherence.

The following comment is also featured:

Rebekka Monico, Research fellow at the University of Insubria, La disciplina europea sul Geo-blocking e il diritto internazionale privato e processuale (The EU Geo-Blocking Regulation and Private International and Procedural Law)

• This article analyses the relationship between Regulation (EU) No 2018/302 on the prohibition of geo-blocking practices which are not justified on objective grounds and the rules of private international law contained in the Brussels I-bis, the Rome I and the Rome II Regulations. In this respect, Article 1(6) of Regulation (EU) 2018/302 contains, in addition to a safeguard clause of the Union law concerning judicial cooperation in civil matters, the clarification that the mere fact that the trader complies with the prohibitions imposed by the Geo-blocking Regulation does not imply that he intentionally directs his activity towards the Member State of the consumer pursuant to Articles 17(1)(c) and 6(1)(b) of the Brussels I-bis and the Rome I Regulations, respectively. Although this clarification is consistent with the Pammer, Mühlleitner, Emrek and Hobohm judgments, the Author endorses a new interpretation of the directed-activity criterion by the Court of Justice of the European Union which would protect consumers and, at the same time, provide greater legal certainty for traders.

In addition to the foregoing, this issue features the following book review by Cristina M. Mariottini, Senior Research Fellow at the Max Planck Institute Luxembourg: Julia HÖRNLE, Internet Jurisdiction: Law and Practice, Oxford University Press, New York, 2021, pp. vii-485.

On 3 and 4 September 2021 the international conference “Diversity of Enforcement titles in Cross-border debt Collection in the EU” will take place in hybrid mode – online and onsite in Maribor, Slovenia. The conference will feature speeches from several distinguished experts including Judge at the Court of Justice of the European Union Marko Ilesic as a keynote speaker.

The conference is organised by the University of Maribor, Faculty of Law within the framework of the EU Justice project “Diversity of Enforcement titles in cross-border debt collection in the EU – EU-En4s“, which is a consortium of 16 partners from 12 EU Member States and a third State. Registration is free of charge and available here.

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The fourth EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

Regular updates are also available via the Project’s website, and  LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

On 17 September 2021 the conference ‘Taking Stock: International Commercial Courts in Europe and Asia‘ will take place (hybrid, online/London). Reknown academic experts and practitioners will shed light on new developments, experiences, the interaction with arbitration, and global challenges.

In recent years, International Commercial Courts have been established across Europe and in Asia. Now that these courts have been dealing with international cases for a while, it is time to take stock and look at various questions: the reasons behind the recent proliferation of these courts and their international features in terms of court language, judicial composition, parties and disputes; the perspectives of court users and judges on key features of these courts, their suitability for specific kinds of disputes and the handling of international commercial disputes in practice; the interface between International Commercial Courts and arbitration, in particular in jurisdictions with well-developed arbitration centres; and the ever more important question how these courts deal with global challenges such as Covid 19, Digitalisation & AI.

The conference is co-organized by BICCL, Erasmus University Rotterdam (ERC project team Building EU Civil Justice) and the University of Lausanne. The conference takes place in a hybrid format, online and in London (limited places). You can register through the website of BIICL.

More information and the program available here.

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

B. Heiderhoff: International Product Liability 4.0

While the discussion on how liability for damages caused by autonomous systems, or “artificial intelligence”, should be integrated into the substantive law is well advanced, the private international law aspect has, so far, been neglected. In this contribution, it is shown that unilateral approaches – such as the EU Parliament has suggested (P9_TA-PROV(2020)0276) – are unnecessary and detrimental. It is preferable to develop a classical conflict of laws rule with connecting factors, which mirror the assessments of the substantive law. It is shown that a mere reinterpretation of the existing Article 5 Rome II Regulation might lead to legal insecurity, and that an addition of the provision is preferable. In particular, the notion of marketing, and its importance as a connecting factor, should be revised.

 

K. Vollmöller: The determination of the law applicable on claims for infringement of trade secrets in contractual relationships

Subject of the article is the determination of the applicable law in cross-border situations when a lawsuit is based on the violation of trade secrets within a contractual relationship. According to German Law, claims for infringement of trade secrets are regulated in the German Trade Secrets Act (Geschäftsgeheimnisgesetz – GeschGehG) that has implemented the European Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. The focus is on the question how tort claims are connected if the contracting partners have agreed on confidentiality terms, in particular under a non-disclosure agreement. In case the agreement of the parties is ruled by the laws of a Non-European state, it is doubtful whether the harmonized European trade secret law is applicable. The author comes to the conclusion that a secondary connection to the jurisdiction governing the agreement according to Art. 4 Paragraph 3 Rome II Regulation should be limited to relationships where the parties have assumed further contractual obligations beyond confidentiality. In this case, the law applicable on the contract overrides the harmonized European trade secret law regulations which cannot be considered as mandatory rules either.

 

T. Lutzi: Ruth Bader Ginsburg – Internationalist by Conviction

In Ruth Bader Ginsburg, the Supreme Court has not only lost an icon of gender equality and towering figure, but also a great internationalist. Ginsburg’s jurisprudence was characterised by her own academic background as a proceduralist and comparativist, a decidedly international perspective, and a firm belief in a respectful and cooperative coexistence of legal systems. An English version of this text can be found at www.iprax.de/de/dokumente/online-veroeffentlichungen/

 

C. Kohler: Dismantling the „mosaic principle“: defining jurisdiction for violations of personality rights through the internet

In case C-194/16, Bolagsupplysningen, the ECJ ruled that, according to Article 7(2) of Regulation (EU) No 1215/2012, a legal person claiming that its personality rights have been infringed by the publication of incorrect information on the internet and by a failure to remove comments relating to it can bring an action for rectification of that information, removal of those comments and compensation in respect of all the damage sustained before the courts of the Member State in which its centre of interests is located. On the other hand, an action for rectification of that information and removal of those comments cannot be brought before the courts of each Member State in which the information published on the internet is or was accessible. Thus, the ECJ’s decision in case C-509/09 and C-161/10, eDate Advertising a.o., also applies where the aggrieved party is a legal person. However, the “mosaic principle” defined in that judgment is inapplicable because an action for rectification and removal of information on the internet is “single and indivisible” and can, consequently, only be brought before a court with jurisdiction to rule on the entire damage. The author welcomes this limitation and advocates that the mosaic principle be given up entirely, particularly as it does not find resonance on the international level.

 

P. Mankowski: Consumer protection under the Brussels Ibis Regulation and company agreements

Company agreements pose a challenge to Arts. 17–19 Brussels Ibis Regulation; Arts. 15–17 Lugano Convention 2007 since these rules are designed for bipolar contracts whereas the formers typically are multi-party contracts. This generates major problems, amongst them identifying the “other party” or answering how far a quest for equal treatment of shareholders might possibly carry. Arguments from the lack of a full-fledged forum societatis might weigh in, as do arguments from the realm of European private law or possible consequences for jurisdiction clauses in company statutes. The picture is threefold as to scenarios: founding and establishing a company; accession to an already established company; and derivative acquisition of a share in an already established company.

 

W. Wurmnest/C. Grandel: Enforcement of consumer protection rules by public authorities as a „civil and commercial matter“

In case C-73/19 (Belgische Staat ./. Movic) the European Court of Justice once again dealt with the delineation of “civil and commercial matters” (Art. 1(1) of the Brussels Ibis Regulation) when public authorities are involved. The Court correctly classified an action brought by Belgian authorities against Dutch companies seeking a declaration as to the unlawfulness of the defendants’ business practices (selling tickets for events at prices above their original price) and an injunction of these practices as a “civil and commercial matter”, as the position of the authorities was comparable to that of a consumer protection association. Furthermore, the Court clarified its case law on the thorny issue as to what extent evidence obtained by public authorities based on their powers may turn the litigation into a public law dispute. Finally, the judgment dealt with the classification of various ancillary measures requested by the Belgian authorities. Most notably, a request by the authorities to be granted the power to determine future violations of the law simply by means of a report “under oath” issued by an official of the authorities was not a “civil- and commercial matter” as private litigants could not be granted similar powers under Belgian law.

 

R. Wagner: Jurisdiction in a dispute with defendants in different member states of the European Union

The article discusses a court ruling of the Higher Regional Court of Hamm on jurisdiction concerning the “Diesel emission scandal”. The plaintiff had his domicile in Bielefeld (Germany). He bought a car in Cologne (Germany) where the seller had his domicile. Later on, the plaintiff brought an action for damages and for a declaratory judgment against the seller, the importer of the car (domicile: Darmstadt, Germany) and the producer of the car (domicile: in the Czech Republic) before the District Court of Bielefeld. The plaintiff argued that the producer of the car had used illegal software to manipulate the results of the emissions tests. He based his claim on tort. Against the first defendant he also claimed his warranty rights. In order to sue all three defendants in one trial the plaintiff requested the District Court of Bielefeld to ask the Higher Regional Court of Hamm to determine jurisdiction. In its decision the Court in Hamm took into account Article 8 No. 1 of the Brussels Ibis Regulation and § 36 I No. 3, II of the German Code of Civil Procedure.

 

J. Wolber: Jurisdiction for an Application opposing Enforcement in cross-border Enforcement of a Maintenance Decision

The question, whether the maintenance debtor should be entitled to raise the objection that he has predominantly discharged his debt in the Member State of enforcement is highly relevant in practice and disputed in the scientific literature. The European Court of Justice (ECJ) has decided on this question – upon a request for a preliminary ruling by a German court – in the case FX ./. GZ with judgment of 4th June 2020. The ECJ confirms the jurisdiction of the German court based on Article 41 of Regulation No 4/2009. This judgment has effects beyond the enforcement of maintenance decisions on other instruments of European Law of Civil Procedure. While this judgment deserves approval in the result, the reasoning of the court is not convincing. The ECJ judgment does not cover the question of the territorial scope of such a judgment.

 

P. Schlosser: Clarification of the service of documents abroad

In extending the term “demnächst” (“soon”) the judgment of the Bundesgerichtshof ruled that a person interested in serving a document to somebody (in particular the initial claim) must only request the court to care for the translation and pay immediately thereafter the estimated costs of the translation for correctly initiating the litigation and thus meeting the term of limitation. The rest of time needed for the translation is irrelevant. The author is developing the impact of this decision for the three variants of serving a document to someone abroad in the European Union:

(1) Serving the document spontaneously in time together with the translation,

(2) Serving the document belated together with the translation after

the court has asked whether the respective person wants a translation,

(3) Serving initially without a translation but serving the document again together with a translation after the addressee has refused to accept service without any translation.

 

A. Dutta: European Certificate of Succession for administrators of insolvent estates?

German law provides for a special insolvency procedure for insolvent estates (Nachlassinsolvenzverfahren) which is subject to the European Insolvency Regulation. The Oberlandesgericht Frankfurt am Main came to the conclusion that nevertheless the liquidator of such an insolvency procedure can apply for a European Certificate of Succession under the Succession Regulation being an “administrator of the estate”. The case note argues that the German Nachlassinsolvenzverfahren falls within the scope of the Insolvency and the Succession Regulation (section II & III) and that issuing a Certificate causes only indirect frictions between both instruments which are not grave enough to invoke the conflict rule in Article 76 of the Succession Regulation (section IV). The case shows that the model of the Certificate could be extended to other areas (section V).

 

E. Jayme: The restitution of the „Welfenschatz“ before the U.S. Supreme Court

The US Supreme Court, in a case involving the restitution of the treasure of the Guelphs and the question of state immunity of the Federal Republic of Germany, decides that the FSIA’s exception concerning property taken in violation of the international law of expropriation does not refer to property owned by German nationals (“domestic takings rule”). The heirs of German Jewish Art dealers who had acquired a large part of the art treasure of the Guelphs from the Ducal family of Braunschweig asked for the restitution of such parts of the treasure which they had sold to Prussia in 1935 alleging that they had been unlawfully coerced to sell the pieces for a third of its value. The defendants were the Federal Republic of Germany and the Stiftung Preußischer Kulturbesitz. The plaintiffs argued inter alia that the forced purchase of the treasure had been an act of genocide in violation of international law and, therefore, justified an exception to State immunity. The District Court denied Germany’s motion to dismiss, and the D.C. Circuit Court affirmed. The Supreme Court held that the phrase “rights in property taken in violation of international law” refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule. The case was remanded to the D.C. Circuit Court of Appeals for further proceedings which inter alia will concern the question whether the Jewish art dealers were German nationals at the time of the sale of the treasure (1935).

 

On Tuesday, July 6, 2021 at 11:00-12:30 CEST, the Hamburg Max Planck Institute will host its thirteenth monthly virtual workshop in the series  Current Research  in private international law. Yuko Nishitani (Kyoto University) will speak, in English, on the topic Global Governance and Corporate Social Responsibility The presentation will be followed by open discussion. All are welcome. More information and sign-up here. If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

On August 19, 2021, the U.S. Court of Appeals for the Eleventh Circuit issued its latest decision on foreign forum selection clauses and cruise ship contracts.  The case was Turner v. Costa Crociere S.P.A.  The plaintiff was an American cruise ship passenger, Paul Turner, who brought a class action in federal district court in Florida alleging that the cruise line’s “negligence contributed to an outbreak of COVID-19 aboard the Costa Luminosa during his transatlantic voyage beginning on March 5, 2020.”

The cruise line moved to dismiss the case on the basis of a forum selection clause in the ticket mandating that all disputes be resolved by a court in Genoa, Italy. The contract also contained a choice-of-law clause selecting Italian law. By way of background, it is important to note that (1) the parent company for the cruise line was headquartered in Italy, (2) its operating subsidiary was headquartered in Florida, (3) the cruise was to begin in Fort Lauderdale, Florida, and (4) the cruise was to terminate in the Canary Islands.

The Eleventh Circuit never reached the merits of the plaintiffs’ claims.  Instead, it sided with the cruise line, enforced the Italian forum selection clause, and dismissed the cases on the basis of forum non conveniens.  A critique of the Eleventh Circuit’s reasoning in Turner is set forth below.

Years ago, the U.S. Congress enacted a law imposing limits on the ability of cruise lines to dictate terms to their passengers.  46 U.S.C. § 30509 provides in relevant part:

The owner . . . of a vessel transporting passengers . . . between a port in the United States and a port in a foreign country, may not include in a . . . contract a provision limiting . . . the liability of the owner . . . for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents . . . . A provision described in paragraph (1) is void.

Boiled down to its essence, the statute provides that any provision in a cruise ship contract that caps the damages in a personal injury case is void.  If the cruise ship were to write an express provision into its passenger contracts capping the damages recoverable by plaintiffs such as Paul Turner at $500,000, that provision would be void as contrary to U.S. public policy.

The cruise lines are sharp enough, however, to know not to write express limitations directly into their contracts.  Instead, they have sought to achieve the same end via a choice-of-law clause.  The contract in Turner had a choice-of-law clause selecting Italian law.  Italy is a party to an international treaty known as the Athens Convention.  The Athens Convention, which is part of Italian law, caps the liability of cruise lines at roughly $568,000 in personal injury cases.  If a U.S. court were to give effect to the Italian choice-of-law clause and apply Italian law on these facts, therefore, it would be required to apply the liability cap set forth in the Athens Convention.  It seems highly unlikely that any U.S. court would enforce an Italian choice-of-law clause on these facts given the language in Section 30509.

Enter the forum selection clause.  If the forum selection clause is enforced, then the case must be brought before an Italian court.  An Italian court is likely to enforce an Italian choice-of-law clause and apply the Athens Convention.  If the Athens Convention is applied, the plaintiff’s damages will be capped at roughly $568,000.  To enforce the Italian forum selection clause, therefore, is to take the first step down a path that will ultimately result in the imposition of liability caps in contravention of Section 30509.  The question at hand, therefore, is whether the Eleventh Circuit was correct to enforce the forum selection clause knowing that this would be the result.

While the court clearly believed that it reached the right outcome, its analysis leaves much to be desired.  In support of its decision, the court offered the following reasoning:

[B]oth we and the Supreme Court have directly rejected the proposition that a routine cruise ship forum selection clause is a limitation on liability that contravenes § 30509(a), even when it points to a forum that is inconvenient for the plaintiff. Shute, 499 U.S. at 596–97 (“[R]espondents cite no authority for their contention that Congress’ intent in enacting § [30509(a)] was to avoid having a plaintiff travel to a distant forum in order to litigate. The legislative history of § [30509(a)] suggests instead that this provision was enacted in response to passenger-ticket conditions purporting to limit the shipowner’s liability for negligence or to remove the issue of liability from the scrutiny of any court by means of a clause providing that ‘the question of liability and the measure of damages shall be determined by arbitration.’ There was no prohibition of a forum-selection clause.”)

The problem with this argument is that there was no evidence in Shute­—none—suggesting that the enforcement of the forum selection clause in that case would lead to the imposition of a liability cap.  Indeed, the very next sentence in the passage from Shute quoted above states that “[b]ecause the clause before us . . . does not purport to limit petitioner’s liability for negligence, it does not violate [Section 30509].”  This language suggests that if enforcement of a forum selection clause would operate to limit the cruise line’s liability for negligence, it would not be enforceable.  The Eleventh Circuit’s decision makes no mention of this language.

The Turner court also cites to a prior Eleventh Circuit decision, Estate of Myhra v. Royal Caribbean Cruises, for the proposition that “46 U.S.C. § 30509(a) does not bar a ship owner from including a forum selection clause in a passage contract, even if the chosen forum might apply substantive law that would impose a limitation on liability.”  I explain the many, many problems with the Eleventh Circuit’s decision in Myhra here.  At a minimum, however, the Myhra decision is inconsistent with the Supreme Court’s admonition in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc that “in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies . . . we would have little hesitation in condemning the agreement as against public policy.” There is no serious question that the cruise line is here attempting to use an Italian choice-of-law clause and an Italian forum selection clause “in tandem” to deprive the plaintiffs in Turner of their statutory right to be free of a damages cap.  This attempt would seem to be foreclosed by the language in Mitsubishi.  The Eleventh Circuit does not, however, cite Mitsubishi in its decision.

At the end of the day, the question before the Eleventh Circuit in Turner was whether a cruise company may deprive a U.S. passenger of rights guaranteed by a federal statute by writing an Italian choice-of-law clause and an Italian forum selection clause into a contract of adhesion. The Eleventh Circuit concluded the answer is yes.  I have my doubts.

Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers a summary and a compelling analysis of the Luxemburgish domestic legislation regarding the EPO and EAPO Regulations.

On 23 July 2021, a new legislative reform of the Luxembourgish Code of Civil Procedure (“NCPC”), entered into force amending, among other articles, those concerning Regulation No 1896/2006, establishing a European Payment Order (“EPO Regulation”) and Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”).

The EPO and the EAPO Regulations embody, respectively, the first and third European uniform civil procedures. While the EPO, as its name indicates, is a payment order, the EAPO is a provisional measure that allows temporary freezing of the funds in the debtor’s bank accounts. Although they are often referred to as uniform procedures, both leave numerous elements to the discretion of the Member States’ national laws.

With this strong reliance on the Member State’s national laws, it is not surprising that most Member States have enacted domestic legislation to embed these Regulations within their national civil procedural systems. Luxembourg is one of them. The EPO Regulation brought two amendments to the NCPC. The first one was introduced in 2009, four months after the EPO Regulation entered into force. In broad terms, the 2009 reform integrated the EPO procedure in the Luxembourgish civil judicial system, identifying the authorities involved in its application. The second legislative amendment  stemmed from the 2015 reform of Regulation No 861/2007, establishing a European Small Claims Procedure (“ESCP Regulation”) and of the EPO Regulation. Among other changes, this reform introduced the possibility, once the debtor opposes the EPO, of continuing the procedure “in accordance with the rules of the European Small Claims Procedure” (Article 17(1)(a) EPO Regulation). The change brought to the NCPC pursued the objective to facilitate the swift conversion from an EPO into an ESCP (Articles 49(5) and 49(8) NCPC).

Before the reform of 23 July 2021, the Luxembourgish legislator had already twice modified the NCPC to incorporate the EAPO Regulation. The first EAPO implementing act was approved in 2017 (Article 685(5) NCPC). It mainly served to identify the domestic authorities involved in the EAPO procedure: from the competent courts to issue the EAPO to the competent authority to search for information about the debtor’s bank accounts (Article 14 EAPO Regulation). The second reform, introduced in 2018, aimed at facilitating the transition of the EAPO’s temporary attachment of accounts into an enforcement measure (Article 718(1) NCPC). In brief, it allowed the transfer of the debtor’s funds attached by the EAPO into the creditor’s account.

The 2021 legislative reform of the NCPC was not introduced specifically bearing in mind the EPO and the EAPO Regulations: rather, it was meant as a general update of the Luxembourgish civil procedural system. Among the several changes it introduced, it increased the value of the claim that may be brought before the Justice of the Peace (Justice de paix). Before the reform, the Justice of the Peace could only be seized for EPOs and EAPOs in claims up to 10.000 euros, while District Courts (Tribunal d’arrondissement) were competent for any claims above that amount. As a result of the reform, the Luxembourgish Justice of the Peace will now be competent to issue EPOs and EAPOs for claims up to 15.000 euros in value.

Witten by Orji A Uka (Senior Associate at ALP NG & Co) and Damilola Alabi (Associate at ALP NG & Co)

Introduction

The issuance and service of an originating process are fundamental issues that afford or rob a court of jurisdiction to adjudicate over a matter. This is because it is settled law that the proceedings and judgment of a court which lacks jurisdiction result in a nullity[1]. Yet, despite the necessity of ensuring that the issuance and service of an originating process comply with the various State High Court Civil Procedure Rules or Federal High Court Civil Procedure Rules (“the relevant court rules”) or the Sheriffs and Civil Process Act, legal practitioners and sometimes judges commonly conflate the issuance and service of court process on defendants outside jurisdiction with the concept of service of court process by substituted means on defendants within the jurisdiction[2]. This paper set outs the differences between both commonly confused principles with the aim of providing clarity to its readers and contributing to the body of knowledge on this fundamental aspect of the Nigerian adjectival law.

 

Territorial Jurisdiction of Courts in Nigeria

Historically, Nigerian courts have always exercised jurisdiction over a defined subject matter within a clearly specified territory as provided for under the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the “Constitution”). As an illustrative example, a High Court of a State in Nigeria or that of the Federal Capital Territory, Abuja has jurisdiction over the subject matter of a simple contract. However, the jurisdiction of each High Court is, as a general rule, confined to persons within the territorial boundaries of the State or the Federal Capital Territory, as the case may be. As highlighted below, there are three established bases under which a High Court in Nigeria can validly exercise jurisdiction in an action in personam.[3]

Firstly, a court in Nigeria is donated with jurisdiction in an action in personam where the defendant is present or resides or carries on business within the territorial jurisdiction of the court and the defendant has been served with the originating process.[4]In the oft-cited case of British Bata Shoe Co. Ltd v. Melikan[5], the Federal Supreme Court held that the High Court of Lagos State, rightly exercised its jurisdiction in an action in personam for specific performance of a contract because the defendant resided in Lagos State even though the land in respect of which the subject matter of the dispute arose, was situated at Aba, outside the territorial jurisdiction of the court.

Thus, jurisdiction can be invoked either by residence[6] or simply by presence within jurisdiction.[7] Upon a finding that the defendant is present or resident within the jurisdiction of the court, and the originating process has been duly served on the defendant within jurisdiction, the court automatically assumes jurisdiction over such defendant, subject to the provisions of the Constitution or statutes that confer exclusive jurisdiction on other courts e.g. the Federal High Court or the National Industrial Court in respect of such subject matter.

Secondly, a court can validly exercise jurisdiction over a defendant in an action in personam where such defendant submits to the court’s jurisdiction or waives his right to raise a jurisdictional challenge. Submission may be express, where the defendant signed a jurisdiction agreement or forum selection clause agreeing to submit all disputes to the courts of a particular legal system for adjudication either or an exclusive or non-exclusive basis. Submission may also be implied where the defendant is served with a court process issued by a court other than where he resides or carries on business and the defendant enters an unconditional appearance and/or defends the case on the merit.[8]

A third basis for the valid exercise of the jurisdiction of a High Court in Nigeria is where the court grants leave for the issuance and service of the originating process on a defendant outside the court’s territorial boundaries. As noted above, historically, Nigerian courts could only validly exercise jurisdiction over a defined subject matter within its specified territory. With time, the powers of the court have now extended to the exercise of judicial power over a foreigner who owes no allegiance to the court’s territorial jurisdiction or who is resident or domiciled out of its jurisdiction but is called to appear before the court in the jurisdiction[9]. It is important to note that as an attribute of the concept of sovereignty, the exercise of jurisdiction by a court of one State over persons in another State is prima facie an infringement of the sovereignty of the other State. In Nwabueze v. Okoye,[10] the Supreme Court highlighted the fundamental rule of Nigerian conflict of laws on exercise of jurisdiction over a foreign defendant by stating as follows:

“Generally, courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction … It should be noted that except where there is submission to the jurisdiction of the court it has no jurisdiction over a person who has not been served with the writ of summons. The court has no power to order service out of the area of its jurisdiction except where so authorised by statute or other rule having force of statute.”[11]

 

Thus, a court may only stretch its jurisdictional arm outside its territory in certain limited circumstances.[12]Where such circumstances apply, the claimant is not entitled as of right to have the originating process issued by the court for service on a defendant who is resident or present outside the jurisdiction and must seek and obtain leave to this effect.[13]

 

The Issuance and Service of Originating Process Outside Jurisdiction

The power of courts to exercise jurisdiction beyond their territorial boundaries has been variously described as “long-arm jurisdiction”, “assumed jurisdiction” or even “exorbitant jurisdiction”. However, the power is only activated using the instrumentality of the grant of leave for the issuance and service of such originating process outside jurisdiction. While applying for leave, the claimant must convince the court that there exists a special reason for it to exercise its long arm to reach a defendant outside its jurisdiction. The special reasons which must be established by a claimant are contained in the relevant rules of courts.[14] Where none of the conditions outlined in the Rules are met, the courts must refuse the application for leave. This is because – in the language commonly employed in private international law -there would be no real and substantial connection between the cause of action and the jurisdiction of Nigeria and therefore no special reason to justify the exercise of the court’s long arm jurisdiction. Further, even where it is established that the claimant’s case falls within one or more of those jurisdictional pathways contained in the Rules, the claimant is nevertheless not entitled as of right to be granted leave and the courts are not automatically bound to grant leave as a matter of course. The claimant must still demonstrate to the court that it is the forum conveniens to hear and determine the claim.[15] Unfortunately, in practice, apart from a few instances, which are exceptions rather than the general rule, Nigerian courts hardly give this serious consideration during the ex-parte hearing stage for the application for leave.

The failure of a claimant to seek leave to issue and serve an originating process on a defendant outside jurisdiction, is not a rule of mere technicality. As the learned authors of “Private International Law in Nigeria” brilliantly summarised,[16] there are at least three reasons for this conclusion. First, courts are wary of putting a defendant who is outside jurisdiction through the trouble and expense of answering a claim that can be more conveniently tried elsewhere. Two, a court has to satisfy itself before granting leave that the proceedings are not frivolous, vexatious, or oppressive to the defendant who is ordinarily resident outside jurisdiction. Three, Nigerian courts, on grounds of comity, are wary of exercising jurisdiction over a foreign defendant who is ordinarily subject to the judicial powers of a sovereign foreign state. These also explain why the grant of leave is a judicial act – that can only be done by a Judge in chambers or the court; but not by the Deputy Chief Registrar or other court official, even if such leave is subsequently ratified or endorsed by the court. Thus, there is a long line of authorities by appellate courts in Nigeria (including the Supreme Court)to the effect that where leave was not obtained before the Writ of summons was issued and served, such writ is void and must be aside.[17]

 

Substituted Service

Substituted service on the other hand is resorted to when personal service of an originating process on a defendant within jurisdiction is not possible due to reasons such as evasion of service by the defendant or the inability to locate the defendant. A claimant seeking to serve a defendant within jurisdiction by substituted means must seek and obtain an order of court to serve the defendant by a specific means as stated in the relevant court rules. For example, Order 9 Rule 5 of the Lagos State High Court Civil Procedure Rules provides that upon an application by a claimant, a judge may grant an order for substituted service as it may seem just. Some of the popular modes of effecting substituted service include by pasting the originating process at the last known address of the defendant, by newspaper publication, or especially more recently, by sending same to the defendant by email. Since the defendant is otherwise within the court’s territorial reach, and the court has jurisdiction over him, there is no need to comply with real and substantial connection test set out in Order 10 Rule 1 of the Lagos State High Court Civil Procedure Rules.

 

Leave to Issue and Serve Versus Substituted Service

As simple as these concepts are, legal practitioners repeatedly confuse an application for leave for the issuance and service of originating process outside Nigeria with an application for substituted service within Nigeria.

In Kida v. Ogunmola[18]the appellant commenced an action for specific performance against five defendants. The court bailiff however was not able to serve the respondent, who was resident outside the jurisdiction of Borno State. It was known to the appellant that the 2ndrespondent was resident in Ibadan. The appellant then applied for leave to serve the originating process on the 2ndrespondent out of jurisdiction. Curiously, the appellant also applied for leave to serve the originating process on the 2nd, 3rd& 4threspondentsby substituted means by pasting same at their last known address in Maiduguri, Borno State and the court granted same. When the respondent failed to file a defence, the High Court entered default judgment against him. When the appellant initiated enforcement proceedings against the respondent, the respondent brought an application to set aside the judgment on grounds that leave of court was not obtained to issue the originating process outside jurisdiction. The High Court refused the application but upon an appeal to the Court of Appeal, the appellate court overturned the trial court’s decision.  The Appellant ultimately appealed to the Supreme Court which upheld the decision of the Court of Appeal.

The Supreme Court reasoned that the respondent was outside the jurisdiction of the court at the material time and could not be served by substituted means, and that substituted service can only be employed in situations where a defendant is within jurisdiction but cannot be served personally. The Supreme Court further held per Musdapher JSC (as he then was), at page 411 as follows:

“For a defendant to be legally bound to respond to the order for him to appear in Court to answer a claim of the plaintiff, he must be resident within jurisdiction, see National Bank (Nig.) Ltd. v. John Akinkunmi Shoyoye and Anor. (1977) 5 SC 181. Substituted service can only be employed when for any reason, a defendant cannot be served personally with the processes within the jurisdiction of the Court for example when the defendant cannot be traced or when it is known that the defendant is evading service. Also, where at the time of the issuance of the writ, personal service could not in law be effected on a defendant, who is outside the jurisdiction of the Court, substituted service should not be ordered, see Fry vs. Moore (1889) 23 QBD 395. If the defendant is outside the jurisdiction of the Court at the time of the issue of the writ and consequently could not have been personally served in law, not being amenable to that writ, an order for substituted service cannot be made, see Wilding vs. Bean (1981) 2 QB 100.”

In the same vein the Court of Appeal stated as follows in Abacha v. Kurastic Nigeria Ltd[19]

“Courts exercise jurisdiction over persons who are within its territorial jurisdiction: Nwabueze vs. Obi-Okoye (1988) 10-11 SCNJ 60 at 73; Onyema vs. Oputa (1987) 18 NSCC (Pt. 2) 900; Ndaeyo vs. Ogunnaya (1977) 1 SC 11. Since the respondent was fully aware that before the issuance of the writ the appellant’s abode or residence for the past one year was no longer at No.189, Off R.B. Dikko Road, Asokoro, Abuja within jurisdiction, substituted service of the processes should not have been ordered by the learned trial Judge.”

The above cases emphasise that a writ issued in the ordinary form cannot be served by substituted means on a defendant who is not present or resident in the jurisdiction of the court, except the leave of court was sought and obtained in accordance with the relevant rules of court. As Okoli and Oppong lucidly put it, where a writ cannot be served on a person directly, it cannot be served indirectly by means of substituted service.[20]

One area of law where parties commonly make the mistake of conflating an application for leave to issue and serve out of jurisdiction with an application for substituted service is in maritime claims. This, in our experience, stems from a historically commonplace mischaracterisation of actions as actions in rem instead of actions in personam.[21] In Agip (Nig) Ltd v Agip Petroli International[22]the Supreme Court held where an action is not solely an action in rem but also an action in personam, the plaintiff is bound to comply with the procedural rules, such as obtaining leave of the court.

Further, there is a common practice – particularly in cases with multiple defendants, with one defendant residing within jurisdiction and another outside jurisdiction – where parties apply to the courts to serve the originating process on the party outside jurisdiction through substituted service on the party within jurisdiction. It is pertinent to state that the above practice does not cure the defect and that the only circumstance where it is acceptable is where the party within jurisdiction is the agent of the party outside jurisdiction, and that is not the end of the story. The position of the law is that where a foreign company carries on business through an agent or servant company resident within a court’s jurisdiction, the principal company is deemed to also be carrying on business within the same jurisdiction.[23] However, the courts have also held that where the agent company has no hand in the management of the company and receives only the customary agent’s commission, the agent’s place of business in Nigeria is not the company’s place of business. Thus, the company has no established place of business in Nigeria and is not resident in Nigeria,[24] therefore leave of court is still required for the issuance and service of the writ.

 

Conclusion

The power vested in an appellate court to set aside a judgment of a lower court on the grounds of improper issuance or service of the originating process which is for service out of jurisdiction is symbolic of the imperativeness for claimants and their legal practitioners to ensure that the issuance and service of the originating process are done in conformity with the law and relevant court rules. It is respectfully submitted that the confusion between the service of an originating process outside the jurisdiction of a court and the service of an originating process by substituted means is unnecessary. The principles are clear and distinct and should not be mixed up.

[1]See. Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395. In CRUTECH v. Obeten (2011) 15 NWLR (Pt. 1271) 588 the Court of Appeal reemphasised the importance of jurisdiction when it stated that “the lack of jurisdiction is detrimental, disastrous, devastating and without leverage for salvaging the situation, regardless of desirability of such a course of action.”

[2] See Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 644; Bimonure v. Erinosho (1966) 1 All NLR 250; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535; and Khatoun v. Hans Mehr (Nigeria) and Anor. (1961) NRNLR 27.

[3] According to the 10th Edition of the Black Law Dictionary, an action is said to be in personam when its object is to determine the rights and obligation of the parties in the subject matter of the action, however, the action may arise, and the effect of the judgment may bind the other. A common example is a breach of contract claim.

[4]Ogunsola v. All Nigeria People’s Party (2003) 9 NWLR (Pt. 826) 462.

[5]British Bata Shoe Co. Ltd v Melikan (1956) 1 FSC 100.

[6]United Bank of Africa v. Odimayo (2005) 2 NWLR (Pt. 909) 21.

[7]Ayinule v. Abimbola (1957) LLR 41.

[8]See Barzani v Visinoni (1973) NCLR 383; Ezomo v Oyakhire (1985) 1 NWLR (Pt. 2) 195;Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (Pt. 107) 250.

[9]Caribbean Trading & Fidelity v. Nigerian National Petroleum Corporation (2002) LPELR- 831 (SC).

[10](1988) 4 NWLR (Pt 91) 664.

[11]See also United Bank for Africa Plc v Odimayo (2005) 2 NWLR (Pt. 909) 21, 40

[12] Bamodu, G. (1995) ‘Jurisdiction and Applicable Law in Transnational Dispute Resolution before the Nigerian Courts’ 29 Int’l L 555 available at https://scholar.smu.edu/til/vol29/iss3/6.

[13] Broad Bank of Nigeria v. Olayiwola (2005) LPELR-806 (SC).

[14]For instance, Order 10 Rule 1 of the Lagos State High Court Civil Procedure Rules 2019 provides that a judge may allow its originating process to be served on a defendant outside Nigeria where, inter alia, the whole subject matter of the dispute is land which located within jurisdiction; the claim is for the administration of the personal estate of any deceased person who was domiciled within jurisdiction at the time of his death; the action is brought in respect of a contract that is made within the jurisdiction, made by an agent residing or carrying on business within jurisdiction, or governed by Lagos State laws; the claim is in respect of a contract breached within jurisdiction regardless of where it was executed; the claim is founded on a tort committed within the jurisdiction; etc.

[15]While it is beyond the purview of this paper to undertake a comprehensive exposition on the concept of forum conveniens, it is pertinent for the present purposes to note that another commonly mistaken belief among lawyers is to equate the rule of forum non conveniens with the convenience of the parties or their legal practitioners. The word, conveniens is a Latin word for convenient or appropriate. The rule simply means that that there is another forum in which the case may most suitably be tried in the interests of all the parties and the ends of justice.

[16]Okoli, C. S. A. and Oppong, R. (2020) Private International Law in Nigeria Hart Publishers p. 75.

[17] An illustrative example is the case of Owners of the MV Arabella v. Nigeria Agricultural Insurance Corporation (2008) LPELR- 2848 (SC).Some later authorities have however held that such writ is not void but voidable and is capable of being waived by the defendant if not timeously raised. Whether a writ which is issued without leave is void or voidable is not within the purview of this paper. Either way, such writ is capable of being set aside.

[18]Mohammed Kida v. A. D. Ogunmola (2006) All FWLR (Pt. 327) 402.

[19](2014) LPELR-22703(CA).

[20]Okoli, C. S. A. and Oppong, R. (2020) Private International Law in Nigeria Hart Publishers p. 59.

[21]For a detailed treatment of the distinction between actions in rem and actions in personam please see Okoli, C. S. A. and Oppong, R. n. (16) above.

[22](2010) 5 NWLR (Pt. 1187) 348, 416.

[23]Spiropoulos and Co Ltd v. Nigerian Rubber Co Ltd (1970) NCLR 94; Eimskip Ltd v. Exquisite Industries (Nig) Ltd (2003) 14 WRN 77.

[24]See In re Gresham Life Assurance Society (Nig) Ltd (1973) (1) ALR Comm 215, (1973) 1 All NLR (Pt. I) 617, (1973) NCLR 215.

 

By Neerav Srivastava

 

The Rule in Antony Gibbs[1] (‘the Rule’) provides that if the proper law of a contract is Australian, then a discharge of the debt by a foreign jurisdiction will not be a discharge in Australia unless the creditor submitted to the foreign jurisdiction.[2] The Rule is much maligned, especially in insolvency circles, and has been described as “Victorian”.[3] In ‘Heritage and Vitality: Whether Antony Gibbs is a Presumption’[4] I seek to defend the Rule.

Presumption

The article begins by arguing that, in the modern context, that the Rule should be recognised as a Presumption as to party intentions.

Briefly, Gibbs was decided in the 1890s. At the time, the prevailing view was that the proper law of a contract was either the law of the place of the contract or its performance.[5] This approach was based on apportioning regulatory authority between sovereign States rather than party intentions. To apply a foreign proper law in a territory was regarded as contrary to territorial sovereignty. Freedom of contract and party intentions were becoming relevant to proper law but only to a limited extent.[6]

As for Gibbs, Lord Esher’s language is consistent with the ‘Regulatory Approach’:

It is clear that these were English contracts according to two rules of law; first, because they were made in England; secondly, because they were to be performed in England. The general rule as to the law which governs a contract is that the law of the country, either where the contract is made, or where it is to be so performed that it must be considered to be a contract of that country, is the law which governs such contract …[7]

Notice that the passage makes no reference to party intentions.

By the early 20th century, the position had evolved in that it was generally accepted that party intentions determined the proper law.[8] Even so, it was not until the late 1930s that the Privy Council stated that the position was “well-settled”.[9] Party intentions has evolved into being the test for proper law universally.[10]

Under the modern approach, party intentions as to proper law are a question of fact and not territorial. Parties are free to choose a proper law of a jurisdiction with which they have no connection.[11] As a question of fact, party intentions are better understood as a ‘Presumption’. Further, the Presumption might be displaced. The same conclusion can be reached via an implied term analysis.

The parties can also agree that there is more than one proper law for a contract. That, too, is consistent with party autonomy. Under depeçage, one law can govern a contract’s implementation and another its discharge.[12] Likewise, the Second Restatement in the US[13] and the International Hague Principles allow a contract to have multiple proper laws.[14]

Cross-border Insolvency

The second part of the article addresses criticisms of Gibbs by cross-border insolvency practitioners. In insolvency, issues are no longer merely between the two contracting parties. The body of creditors are competing for a share of a company’s remaining assets. Under pari passu all creditors are to be treated equally. If a company is in a foreign liquidation, and its discharge of Australian debt is not recognised by an Australian court, Gibbs appears inconsistent with pari passu. Specifically, it appears that the creditor can sue in Australia and secure a disproportionate return.

That is an incomplete picture. While the foreign insolvency does not discharge the debt in Australia, when it comes to enforcement comity applies. Comity is agitated by a universal distribution process in a foreign insolvency. Having regard to comity, the Australian court will treat local and international creditors equally.[15] If creditors are recovering 50% in a foreign insolvency, an Australian court will not allow an Australian creditor to recover more than 50% at the enforcement stage. Criticisms of the Presumption do not give due weight to enforcement.

Gibbs has been described as irreconcilable with the United Nations Commission on International Trade Law Model Law on Cross-Border Insolvency 1997 (the 1997 Model Law),[16] which is generally[17] regarded as embodying ‘modified universalism’. That, it is submitted, reflects a misunderstanding.

Historically, in a cross-border insolvency “territorialism” applied.[18] Each country collected assets in its territory and distributed them to creditors claiming in those insolvency proceedings. In the past 200 years, universalism has been applied.[19] Under ‘pure universalism’, there is only one process for collecting assets globally and distributing to all creditors. Modified universalism:

accepts the central premise of [pure] universalism, that assets should be collected and distributed on a worldwide basis, but reserves to local courts discretion to evaluate the fairness of the home-country procedures and to protect the interests of local creditors …[20]

Modified universalism can be understood as a structured form of comity.[21] It asks that all creditors be treated equally but is a tent in that it allows States to choose how to protect the interest of creditors. A State may choose to couple recognition of the foreign insolvency – and the collection of assets in its jurisdiction – with the discharge of creditors’ debts. However, the 1997 Model Law does not require a State to follow this mechanism.[22] Under the Anglo-Australian mechanism (a) a debt may not be discharged pursuant to Gibbs (b), but creditors are treated equally at the enforcement stage. It is a legitimate approach under the tent that is modified universalism.

 

[1] Antony Gibbs & Sons v Société Industrielle et Commerciale des Métaux (1890) 25 QBD 399.

[2] Albert Venn Dicey, A Digest of the Law of England With Reference To The Conflict of Laws (Stevens, 1896) rule 113.

[3] Varoon Sachdev, “Choice of Law in Insolvency Proceedings: How English Courts’ Continued Reliance on the Gibbs Principle Threatens Universalism” (2019) 93 American Bankruptcy Law Journal 343.

[4] (2021) 29 Insolvency Law Journal 61. Available at Westlaw Australia.

[5] Alex Mills, Party Autonomy in Private International Law (CUP, 2018) 53, citing Peninsular and Oriental Steam Navigation Co v Shand (1865) 16 ER 103.

[6] Alex Mills, The Confluence of Public and Private International Law (CUP, 2009), 53.

[7] Antony Gibbs & Sons v Société Industrielle et Commerciale des Métaux (1890) 25 QBD 399, 405 (Gibbs).

[8] Alex Mills, Party Autonomy in Private International Law (CUP, 2018) 56, Lord Collins et al, Dicey, Morris & Collins, The Conflict of Laws (Sweet & Maxwell, 15th ed, 2017), [32-004]–[32-005].

[9] Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277.

[10] Martin Davis et al, Nygh’s Conflict of Laws in Australia (Lexis Nexis, 2019), [19.6]; Lord Collins et al, Dicey, Morris & Collins, The Conflict of Laws (Sweet & Maxwell, 15th ed, 2017), [32-004]–[32-005], [32-042]; and Principles on Choice of Law in International Commercial Contracts promulgated by the Hague Conference on Private International Law in 2015.

[11] Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277, Martin Davis et al, Nygh’s Conflict of Laws in Australia (Lexis Nexis, 2019), [19.15].

[12] Club Mediterranee New Zealand v Wendell [1989] 1 NZLR 216, Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380.

[13] Restatement (Second) of Contracts § 188.

[14] Principles on Choice of Law in International Commercial Contracts promulgated by the Hague Conference on Private International Law in 2015.

[15] Galbraith v Grimshaw [1910] AC 508, Chapman v Travelstead (1998) 86 FCR 460, Re HIH Casualty & General Insurance Ltd (2005) 190 FLR 398.

[16] In Australia the 1997 Model Law was extended to Australia by the Cross-Border Insolvency Act 2008 (Cth).

[17] Adrian Walters, “Modified Universalisms & the Role of Local Legal Culture in the Making of Cross-border Insolvency Law” (2019) 93 American Bankruptcy Law Journal 47, 64.

[18] Although Rares J has pointed out, “centuries earlier, maritime lawyers had developed a sophisticated and generally harmonious system of dealing with cross-border insolvencies”: Steven Rares, “Consistency and Conflict – Cross-Border Insolvency” (Paper presented at the 32nd Annual Conference of the Banking & Financial Services Law Association, Brisbane, 4 September 2015).

[19] Re HIH Casualty & General Insurance Ltd [2008] 1 WLR 852, [30]; [2008] UKHL 21.

[20] Jay Lawrence Westbrook, “Choice of Avoidance Law in Global Insolvencies” (1991) 17 Brooklyn Journal of International Law 499, 517.

[21] UNCITRAL, Guide to Enactment and Interpretation of the UNCITRAL Model Law on Cross-border Insolvency (2014) [8].

[22] Akers v Deputy Commissioner of Taxation (2014) 223 FCR 8; [2014] FCAFC 57. See too Re Bakhshiyeva v Sberbank of Russia [2019] Bus LR 1130 (CA); [2018] EWCA 2802.

The third issue of 2021 Lloyds’s Maritime and Commercial Law Quarterly was published today. It features one article and a book review on private international law.

M Teo,  “A Negotiation-Based Choice of Law Rule for Contractual Formation”

A Briggs, “Book Review – The Private International Law of Authentic Instruments”

 

The Faculty of Law, Brawijaya University, Indonesia is organizing a one-day international online seminar on Private International Law in Islamic Countries – Developments and Challenges. The main purpose of the seminar is to examine and discuss the current situation of private international law in Islamic countries especially from the point of view of the influence of religion (Sharia/Islamic law) on the regulation of private international relationships.

Participation is free but online registration (here)  is kindly requested to receive the link to the conference, which will be emailed shortly before the event.

After registering, attendees will receive a confirmation email containing information about joining the webinar. The event will also be live streamed via YouTube (here). E-certificate for attendance will also be issued for attendees to prove that they joined the online seminar.

Details about the forthcoming seminar are as follows:

Date: 24 August 2021

Time: 13:00 (Western Indonesia Time); 14:00 (Brunei & Hong Kong Time); 15:00 (Japan Time)

Program (details can be found here):

1. Admittance for Key-note Speaker, Invited Speakers, and Seminar
2. Opening Ceremony by the Dean of the Faculty of Law, Brawijaya
3. Keynote Speech by Professor Yun Zhao, Representative of the HCCH Regional Office for Asia and the Pacific
4. Seminar Presentation (Moderator: Cyndiarnis, SH. MKn)

• • a. Associate Professor Béligh Elbalti, Ph.D., Graduate School of Law and Politics, Osaka University (The Influence of Islamic Law Principles on the Treatment of International Private Relationships – Family Law as Example)
  • b. Nobumichi Teramura, Assistant Professor of the Institute of Asian Studies, and University of Brunei Darussalam (Shariah as the Law Applicable to an International Commercial Contract: Challenges and Opportunities in Australia and Brunei)
  • c. Afifah Kusumadara, SH. LL.M. SJD., Faculty of Law, Brawijaya University (The connecting factors to determine the applicable law and the court jurisdiction in Indonesia: The interference of religion)

5. Question and Answer
6. Photo Session and Closing
7. Announcement by the M.C. concerning:

• • Certificates of Participation
  • Seminar materials

Any enquiries should be directed to seminar_pil@ub.ac.id. The organisers are looking forward to having fruitful discussion with and exchange of ideas among all participants.

 

 

A foreign judgment that cannot be enforced is useless no matter how well it is/was written. The fact that a foreign judgment can be readily enforced aids the prompt settlement of disputes and makes international commercial transactions more effective.  The importance of the enforcement of foreign judgments cannot be over-emhpasised because international commercial parties are likely to lose confidence in a system that does not protect their interests in the form of recognising and enforcing a foreign judgment.

Today Hart published a new private international law monograph focused on the recognition and enforcement of foreign judgments. Its title is “The Hague Judgments Convention and Commonwealth Model Law: A Pragmatic Perspective.” The author of this monograph is Dr Abubakri Yekini of the Lagos State University. The monograph is based on his PhD thesis at the University of Aberdeen titled “A Critical Analysis of the Hague Judgments Convention and Commonwealth Model Law from a Pragmatic Perspective.”

The abstract of the book reads as follows:

“This book undertakes a systematic analysis of the 2019 Hague Judgments Convention, the 2005 Hague Choice of Court Convention 2005, and the 2017 Commonwealth Model Law on recognition and Enforcement of Foreign Judgments from a pragmatic perspective.

The book builds on the concept of pragmatism in private international law within the context of recognition and enforcement of judgments. It demonstrates the practical application of legal pragmatism by setting up a toolbox (pragmatic goals and methods) that will assist courts and policymakers in developing an effective and efficient judgments’ enforcement scheme at national, bilateral and multilateral levels.

Practitioners, national courts, policymakers, academics, students and litigants will benefit from the book’s comparative approach using case law from the United Kingdom and other leading Commonwealth States, the United States, and the Court of Justice of the European Union. The book also provides interesting findings from the empirical research on the refusal of recognition and enforcement in the UK and the Commonwealth statutory registration schemes respectively.”

I have had the benefit of reading this piece once and can confidently recommend it to anyone interested in the important topic of recognition and enforcement of foreign judgments. The pragmatic approach utilised in the book makes the work an interesting read. My prediction is that this book will endure for a long time, and will likely be utilised in adjudication.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 12 August 2021 at 5:00 pm (Mexico City time – CDT), 12:00 am (CEST time). The topic of the webinar is two thesis on private international law and will be presented by Professor Leonel Pereznieto Castro (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/84229739402?pwd=bXlib3IzQnkvUjlzS0VTbVQvcEpLQT09

Meeting ID: 842 2973 9402

Password: BMAAMEDIP

Participation is free of charge. This event will also be streamed live: https://www.facebook.com/AmedipMX

 

 

AMEDIP is also giving a series of lectures in a course addressed to judges and judicial officers, among others. This course consists of 100 hours of lectures on Private International Law and is being organized by the Federal Judicial School of Mexico. The program is available here.

As this course deals with a broad range of topics, it will have an impact on the better understanding of Private International Law in the Mexican judicial branch and may lead to better decision making in international cases. For more information, click here.

 

The Brazilian Association of Internationalist Lawyers (ABRINTER) will hold on August 11 and 12 its 1st Cycle of Lectures with the theme “Perspectives and Challenges of the New Borderless Law Practice” (in Portuguese).

 

The event brings 27 lectures on various topics involving law and international private law practice, and celebrates the cooperation protocols signed by the Brazilian association and the Federation of Young Lawyers from Mexico (Mexico) and the Algarve Law Association (Portugal).

 

Registration is free of charge. To register access the ABRINTER’s website: https://www.abrinter.adv.br/

Online Event on 11 and 12 August

The Brazilian Association of Internationalist Lawyers (ABRINTER) will hold on August 11 and 12 its 1st Cycle of Lectures with the theme “Perspectives and Challenges of the New Borderless Law Practice” (in Portuguese).

The event brings 27 lectures on various topics involving law and international private law practice, and celebrates the cooperation protocols signed by the Brazilian association and the Federation of Young Lawyers from Mexico (Mexico) and the Algarve Law Association (Portugal). This online event involves lawyers from Brazil, Mexico, and Portugal.

Registration is free of charge. To register access the ABRINTER’s website: https://www.abrinter.adv.br/“

The Brazilian Association of Internationalist Lawyers (ABRINTER) will hold on August 11 and 12 its 1st Cycle of Lectures with the theme “Perspectives and Challenges of the New Borderless Law Practice” (in Portuguese).

 

The event brings 27 lectures on various topics involving law and international private law practice, and celebrates the cooperation protocols signed by the Brazilian association and the Federation of Young Lawyers from Mexico (Mexico) and the Algarve Law Association (Portugal).

 

Registration is free of charge. To register access the ABRINTER’s website: https://www.abrinter.adv.br/