Conflictoflaws

Tort Choice of Law Rules in Cross-border Multi-party Litigation under European and Chinese Private International Law

By Zhen Chen, PhD Researcher, University of Groningen

This blog post is part of the article ‘Tort Conflicts Rules in Cross-border Multi-party Litigation: Which Law Has a Closer or the Closest Connection?’ published by the Maastricht Journal of European and Comparative Law with open access, available at https://doi.org/10.1177/1023263X211034103. A related previous post is ‘Personal Injury and Article 4(3) of Rome II Regulation’, available here https://conflictoflaws.net/2021/personal-injury-and-article-43-of-rome-ii-regulation/

This article compares Owen v. Galgey under Article 4 Rome II Regulation and YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act in the context of cross-border multi-party litigation on tort liability. As to the interpretation of tort conflicts rules, such as lex loci delicti, the notion of ‘damage’, lex domicilii communis and the closer/closest connection test, these two cases demonstrate different approaches adopted in European and Chinese private international law. This article does not intend to reach a conclusion which law is better between Rome II Regulation and Chinese Conflicts Act, but rather highlights on a common challenge faced by both Chinese courts and English courts in international tort litigation and how to tackle such challenge in an efficient way.

I. Tort conflicts rules in China and the EU
It is widely accepted rule that lex loci delicti will be the applicable law for cross-border tort liability in private international law. This is also the case in China and the EU. The application of lex loci delicti, as a general rule, is stipulated in Article 44 Chinese Conflicts Act and Article 4(1) Rome II Regulation. However, Article 4(1) Rome II Regulation explicitly refers to the place of damage, namely ‘the law of the country in which the damage occurs’ (lex loci damni), and expressly excludes the place of wrong (‘the country in which the event giving rise to the damage occurred’) and the place of consequential loss (‘the country or countries in which the indirect consequences of that event occur’). By contrast, it remains unclear whether lex loci delicti in Article 44 Chinese Conflicts Act merely refers to lex loci damni, as such provision does not expressly state so.

The application of lex loci delicti in China and the EU is subject to several exceptions. Specifically, lex loci delicti is superseded by the law chosen by the parties under Article 44 Chinese Conflicts Act and Article 14 Rome II Regulation, while lex domicilii communis takes precedence over lex loci delicti under Article 44 Chinese Conflicts Act and Article 4(2) Rome II Regulation. Moreover, the escape clause enshrined in Article 4(3) Rome II Regulation gives priority to the law of the country which has a ‘manifestly closer connection’ with the tort/delict, of which the pre-existing relationship between the parties might be a contract. By contrast, Article 44 Chinese Conflicts Act does not provide an escape clause, but the closest connection principle, which is comparable to the closer connection test in Article 4(3) Rome II, is stipulated in several other provisions.

The questions raised in YANG Shuying v. British Carnival Cruise and Owen v. Galgey were how to determine the applicable law to tort liability in multiparty litigation under Article 44 Chinese Conflicts Act and Article 4 Rome II Regulation and what are the criteria for the closer/closest connection test.

II. Owen v. Galgey under Article 4 Rome II Regulation
In case Owen v. Galgey , a British citizen Gary Owen domiciled in England, fell into an empty swimming pool which was undergoing renovation works at a villa in France owned by the Galgey Couple, domiciled in England, as a holiday home. The British victim sued the British couple, their French public liability insurer, the French contractor carrying out renovation works on the swimming pool and its French public liability insurer for personal injury compensation. As regards which law is applicable, the British victim contended that French law should be applied by virtue of Article 4(3) Rome II Regulation, since the tort was manifestly more closely connected with France than it was with England. The British defendants held that English law should be applicable law under Article 4(2) Rome II Regulation, because the claimant and the defendants were habitually resident in England. The English High Court held the case was manifestly more closely connected with France, because France was the country where the centre of gravity of the situation was located.

III. YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act

In case YANG Shuying v. British Carnival Cruise, a Chinese tourist domiciled in China, sued the British Carnival Cruise Company, incorporated in the UK, for personal injury sustained in a swimming pool accident happened in the cruise when it was located on the high seas. The plaintiff signed an outbound travel contract with Zhejiang China Travel Agency for such cruise tour. The plaintiff held that English law, as the lex loci delicti, should be applicable since the parties did not share common habitual residence in China and the accident occurred on the cruise, which can be regarded as the territory of the UK according to the floating territory theory. The place of wrong and the place of damage were both on the cruise under Article 44 Chinese Conflicts Act. The defendant and the third party argued that Chinese law should be applied since the parties had common habitual residence in China, the floating territory theory was inapplicable and the (indirect) damage of the tort took place in China.

The Shanghai Maritime Court adopted a strict interpretation of the term ‘the parties’ by excluding the third party and denied the application of floating territory theory in this case. The court held that the application of the lex loci delicti leads to neither English law nor Chinese law. Instead, it is advisable to apply the closest connection principle to determine the applicable law. Based on a quantitative and qualitative analysis ofTort Choice of Law Rules in Cross-border Multi-party Litigation under European and Chinese Private International Law

Zhen Chen

This blog post is part of the article ‘Tort Conflicts Rules in Cross-border Multi-party Litigation: Which Law Has a Closer or the Closest Connection?’ published by the Maastricht Journal of European and Comparative Law with open access, available at https://doi.org/10.1177/1023263X211034103. A related previous post is ‘Personal Injury and Article 4(3) of Rome II Regulation’, available here https://conflictoflaws.net/2021/personal-injury-and-article-43-of-rome-ii-regulation/

This article compares Owen v. Galgey under Article 4 Rome II Regulation and YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act in the context of cross-border multi-party litigation on tort liability. As to the interpretation of tort conflicts rules, such as lex loci delicti, the notion of ‘damage’, lex domicilii communis and the closer/closest connection test, these two cases demonstrate different approaches adopted in European and Chinese private international law. This article does not intend to reach a conclusion which law is better between Rome II Regulation and Chinese Conflicts Act, but rather highlights on a common challenge faced by both Chinese courts and English courts in international tort litigation and how to tackle such challenge in an efficient way.

I. Tort conflicts rules in China and the EU
It is widely accepted rule that lex loci delicti will be the applicable law for cross-border tort liability in private international law. This is also the case in China and the EU. The application of lex loci delicti, as a general rule, is stipulated in Article 44 Chinese Conflicts Act and Article 4(1) Rome II Regulation. However, Article 4(1) Rome II Regulation explicitly refers to the place of damage, namely ‘the law of the country in which the damage occurs’ (lex loci damni), and expressly excludes the place of wrong (‘the country in which the event giving rise to the damage occurred’) and the place of consequential loss (‘the country or countries in which the indirect consequences of that event occur’). By contrast, it remains unclear whether lex loci delicti in Article 44 Chinese Conflicts Act merely refers to lex loci damni, as such provision does not expressly state so.

The application of lex loci delicti in China and the EU is subject to several exceptions. Specifically, lex loci delicti is superseded by the law chosen by the parties under Article 44 Chinese Conflicts Act and Article 14 Rome II Regulation, while lex domicilii communis takes precedence over lex loci delicti under Article 44 Chinese Conflicts Act and Article 4(2) Rome II Regulation. Moreover, the escape clause enshrined in Article 4(3) Rome II Regulation gives priority to the law of the country which has a ‘manifestly closer connection’ with the tort/delict, of which the pre-existing relationship between the parties might be a contract. By contrast, Article 44 Chinese Conflicts Act does not provide an escape clause, but the closest connection principle, which is comparable to the closer connection test in Article 4(3) Rome II, is stipulated in several other provisions.

The questions raised in YANG Shuying v. British Carnival Cruise and Owen v. Galgey were how to determine the applicable law to tort liability in multiparty litigation under Article 44 Chinese Conflicts Act and Article 4 Rome II Regulation and what are the criteria for the closer/closest connection test.

II. Owen v. Galgey under Article 4 Rome II Regulation
In case Owen v. Galgey , a British citizen Gary Owen domiciled in England, fell into an empty swimming pool which was undergoing renovation works at a villa in France owned by the Galgey Couple, domiciled in England, as a holiday home. The British victim sued the British couple, their French public liability insurer, the French contractor carrying out renovation works on the swimming pool and its French public liability insurer for personal injury compensation. As regards which law is applicable, the British victim contended that French law should be applied by virtue of Article 4(3) Rome II Regulation, since the tort was manifestly more closely connected with France than it was with England. The British defendants held that English law should be applicable law under Article 4(2) Rome II Regulation, because the claimant and the defendants were habitually resident in England. The English High Court held the case was manifestly more closely connected with France, because France was the country where the centre of gravity of the situation was located.

III. YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act

In case YANG Shuying v. British Carnival Cruise, a Chinese tourist domiciled in China, sued the British Carnival Cruise Company, incorporated in the UK, for personal injury sustained in a swimming pool accident happened in the cruise when it was located on the high seas. The plaintiff signed an outbound travel contract with Zhejiang China Travel Agency for such cruise tour. The plaintiff held that English law, as the lex loci delicti, should be applicable since the parties did not share common habitual residence in China and the accident occurred on the cruise, which can be regarded as the territory of the UK according to the floating territory theory. The place of wrong and the place of damage were both on the cruise under Article 44 Chinese Conflicts Act. The defendant and the third party argued that Chinese law should be applied since the parties had common habitual residence in China, the floating territory theory was inapplicable and the (indirect) damage of the tort took place in China.

The Shanghai Maritime Court adopted a strict interpretation of the term ‘the parties’ by excluding the third party and denied the application of floating territory theory in this case. The court held that the application of the lex loci delicti leads to neither English law nor Chinese law. Instead, it is advisable to apply the closest connection principle to determine the applicable law. Based on a quantitative and qualitative analysis of all connecting factors, the court concluded that China had the closest connection with the case and Chinese law applied accordingly.

IV. Comments

Both Article 44 Chinese Conflicts Act and Article 4 Rome II Regulation apply to multi-party litigation on tort liability. Article 4(1) Rome II merely refers to lex loci damni and limits the concept ‘damage’ to direct damage, whilst Article 44 Chinese Conflicts Act can be interpreted broadly to cover the law of the place of wrong and the term ‘damage’ include both direct damage and indirect damage or consequential loss. As to lex domicilii communis, the law of the country of the common habitual residence of some of the parties, instead of all parties, should not be applicable in accordance with Article 4(2) Rome II and Article 44 Chinese Conflicts Act. The exercise of the closest connection principle or the manifestly closer connection test under 44 Chinese Conflicts Act and Article 4(3) Rome II Regulation requires the the consideration of all relevant factors or all the circumstances in the case. When conducting a balancing test, the factor of the place of direct damage should not be given too much weight to the extent that all other relevant factors are disregarded. A quantitive and qualitative analysis should be conducted to elaborate the relevance or weight of each factor to determine the centre of gravity of a legal relationship.
all connecting factors, the court concluded that China had the closest connection with the case and Chinese law applied accordingly.

IV. Comments

Both Article 44 Chinese Conflicts Act and Article 4 Rome II Regulation apply to multi-party litigation on tort liability. Article 4(1) Rome II merely refers to lex loci damni and limits the concept ‘damage’ to direct damage, whilst Article 44 Chinese Conflicts Act can be interpreted broadly to cover the law of the place of wrong and the term ‘damage’ include both direct damage and indirect damage or consequential loss. As to lex domicilii communis, the law of the country of the common habitual residence of some of the parties, instead of all parties, should not be applicable in accordance with Article 4(2) Rome II and Article 44 Chinese Conflicts Act. The exercise of the closest connection principle or the manifestly closer connection test under 44 Chinese Conflicts Act and Article 4(3) Rome II Regulation requires the the consideration of all relevant factors or all the circumstances in the case. When conducting a balancing test, the factor of the place of direct damage should not be given too much weight to the extent that all other relevant factors are disregarded. A quantitive and qualitative analysis should be conducted to elaborate the relevance or weight of each factor to determine the centre of gravity of a legal relationship.

The Jean Monnet Network – BRIDGE project, cofunded by EU Erasmus+ Programme, and the Latin American Center of European Studies invite the academic community to submit scientific papers to the Workshop event of the II Jean Monnet Network Seminar on “Migration and Citizenship in the European Union and Latin America”, which will be held virtually on the 9 November 2021, hosted by the Federal University of Santa Catarina (Brazil).

The selected articles will be invited to publish in the Latin American Journal of European Studies or in the Collection of the Workshop.  The top two articles will also receive an award of EUR 250 each.

Those who are interested must submit the article by 15 October 2021 to the email: network@eurolatinstudies.com.

Call for papers – English

Call for papers – Spanish

Call for Paper – Portuguese

More information here.

The first issue of the Latin American Journal of European Studies (ISSN 2763-8685) has just been published. It is an open access publication of the Latin American Center of European Studies, created by the BRIDGE Project of Jean Monnet Network with funding from the Erasmus + Program of the European Commission.

The main purpose of the Journal is to publish research related to the European Union Law and Policies and International Relations of the European Union with third countries and Latin America to create new knowledge, build bridges of dialogue, as well exchange good practices between these regions.

The second issue of the Journal is open to submission until November 1st, 2021 and contains a thematic dossier on Migration and Citizenship in the EU and Latin America.

The 2021-1 edition includes the following articles:

 

Dossier: EU-Latin America trade and investment relations

Las relaciones Eurolatinoamericanas en el marco de la nueva política comercial de la Unión Europea, p. 14-37

Carlos Francisco Molina del Pozo

 

Environmental conditionality in Eu-Latin America trade relations, p. 38-63

Giulia D’Agnone

 

El derecho de los tratados en el arbitraje de inversión intra-Unión Europea, p. 64-108

Rafael Tamayo-Álvarez

 

Sistema de solución de controversias en materia de inversiones en los tratados negociados por la Unión Europea con México y el Mercosur (2019/2020): Un estúdio comparativo, p. 109-138

Gabriela Teresita Mastaglia

 

Uma década de política europeia de investimento estrangeiro: balanço e perspectivas futuras, p. 139-156

Maria João Palma

 

Unión Europea-América Latina y el Caribe: comercio e inversión y el acuerdo de asociación Unión Europea-Mercosur en su pilar comercial y sus potenciales efectos em el sector agroindustrial, p. 157-199

Silvia Simonit

 

La integración Centroamericana y el acuerdo de asociación entre esa región y la Unión Europea, p. 200-230

Nancy Eunice Alas Moreno

 

A cooperação jurídica dentro da União Europeia e do Mercosul: a agilização do processo civil internacional no âmbito da regionalização, p. 231-253

Marcel Zernikow

 

A abertura ao comércio internacional da contratação pública no Brasil: entre o Acordo sobre Compras Governamentais (GPA) e o acordo EU/Mercosul, p. 254-296

Nuno Cunha Rodrigues

 

Articles

Data protection implications through an inner-connected world: European Union’s contributions towards the brazilian legislative scenario, p. 297-318

Beatriz Graziano Chow; Clarisse Laupman Ferraz Lima

 

A União Europeia e a questão Turco-Cipriota: aspectos normativos, geopolíticos e migratórios, p. 319-354

Clarice Rangel Schreiner; Eveline Vieira Brigido; Roberto Rodolfo Georg Uebel

 

Interview

Por uma aliança estratégica Mercosul e União Europeia: O papel da Europa para o fortalecimento da Sustentabilidade – Entrevista com Ignacio Ybañez, Embaixador da União Europeia no Brasil

Jamile Bergamaschine Mata Diz

 

The full edition is available here.

 

 

This event is organised by CANACO and the Chamber of Commerce of Mexico. Registration is free of charge. To register send a message to the following email address: arbitrajecanaco@arbitrajecanaco.com.mx.

Gary Born’s approach has been controversial. See our previous post here. The EAPIL blog has also been very active on this topic, see the recent post: The 2005 Hague Convention on Choice-of-Court Agreements: A Further Reply to Gary Born. Thus this event promises to be extremely interesting and will allow the further exchange of views.

Dear Friends and Colleagues,

 

even though the pandemic situation seems to decrease in our part of the world, the University of Bonn remains very careful and will still not allow on-site events of a larger scale for the next months. We have therefore once again made the decision to reschedule the Conference (originally planned for the 25/26 September 2020, and already postponed to 13/14 September 2021) on Friday and Saturday, 9 and 10 September 2022. However, as there are reasonable expectations for the HCCH 2019 Judgments Convention to enter into force around that time, we are confident – especially with a view to the latest recommendations of the European Commission – that we will experience an even more focused and rewarding discussion on the topic.

Please, find below the preliminary programme of the Conference.

 

***

Brexit has become reality – one more reason to think about the EU’s Judicial Cooperation with third states:

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighboring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe.

The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, there seems to be no elaborate EU strategy on judicial cooperation in civil matters with countries outside of the Union, despite the DG Trade’s realisation that “trade is no longer just about trade”. Especially, there is no coherent plan for establishing mechanisms for the coordination of cross-border dispute resolution and the mutual recognition and enforcement of judgments. This is a glaring gap in the EU’s policy making in external trade relations.

This is why the Bonn group of PIL colleagues – Moritz Brinkmann, Nina Dethloff, Philipp Reuss, and Matthias Weller – will host a conference on Friday and Saturday, 9 and 10 September 2022, at the University of Bonn that seeks to explore ways in which judicial cooperation in civil matters between the EU and third countries can be improved by the HCCH 2019 Judgments Convention as an important driver, if not game changer, of legal certainty in cross-border commercial relations.

The list of speakers includes internationally leading scholars, practitioners and experts from the Hague Conference on Private International Law (HCCH), the United Nations Commission on International Trade Law (UNCITRAL), and the European Commission (DG Trade, DG Justice).

The Conference is co-hosted by the HCCH as one of the first European events for discussing the HCCH 2019 Judgments Convention. The Conference will be further supported by the Zentrum für europäisches Wirtschaftsrecht at the University of Bonn and The International Litigation Exchange (ILEX).

The Organizers will kindly ask participants to contribute with € 100.- to the costs of the event (includes conference dinner).

 

Dates:

Friday, 9 September 2022, and Saturday, 10 September 2022.

 

Venue:

Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn

 

Registration: sekretariat.weller@jura.uni-bonn.de

 

Registration Fee: € 100.-

To be transferred to the following account (you will receive confirmation of your registration only after payment was booked on this account):

Bonn Conference 2020

IBAN: DE71 5001 0517 0092 1751 07

BIC:   INGDDEFF (ING-Diba Bank)

 

Programme

Friday, 9 September 2022

 

1.30 p.m.     Registration

2 p.m.          Welcome note

Prof Dr Wulf-Henning Roth, University of Bonn, Director of the Zentrum für Europäisches Wirtschaftsrecht (ZEW)

Dr Christophe Bernasconi, Secretary General of the HCCH (video message)

2.10 p.m.      Part I: Cornerstones

Chair of Part 1: Prof Dr Matthias Weller

Keynote: Hague Conference’s Perspective and Experiences

Hans van Loon, Former Secretary General of the Hague Conference on Private International Law, The Hague

1. Scope of application

Prof Dr Xandra Kramer, Erasmus Universiteit Rotterdam, Netherlands

2. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich, Germany

Discussion

 

3.30 p.m.     Coffee Break

 

4.00 p.m.      Part II: Cornerstones (Cont.)

Chairs of Part 2: Prof Dr Nina Dethloff / Prof Dr Moritz Brinkmann

3. Jurisdictional filters

Prof Dr Pietro Franzina, Università Cattolica del Sacro Cuore Milano, Italy

4. Grounds for refusal

Prof. Dr. Marcos Dotta, Universidad de la República, Uruguay; Sub Director de Asuntos de Derecho Internacional del Ministerio de Relaciones Exteriores de Uruguay

Discussion

5. Trust management: Establishment of relations between Contracting States

João Ribeiro-Bidaoui, First Secretary of the HCCH, Netherlands

6. “The Hague System”: Relation to the HCCH 2005 Convention on Choice of Court Agreements

Prof Paul Beaumont, University of Stirling, United Kingdom

7. “The Hague System” and “the Brussels System”: Relations to the Brussels and Lugano Regime

Prof Marie-Élodie Ancel, Université Paris-Est Créteil, France

Discussion

 

7.30 p.m.               Conference Dinner

 

 

Saturday, 10 September 2022

9.00 a.m.     Part III: Prospects for the World

Chairs of Part 3: Prof Dr Moritz Brinkmann / Prof Dr Philipp Reuss

1. European Union (EU)

Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission

2. South European Neighbouring and EU Candidate Countries

Ass. Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia

3. Africa (Commonwealth / common law)

Dr. Abubakri Yekini, Lagos State University, Nigeria
Dr. Chukwuma Okoli, Postdoctoral Researcher in Private International Law at the T.M.C. Asser Institute, Netherlands

4. MERCOSUR

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh, United Kingdom

Discussion

 

11:00 a.m.    Coffee Break

 

11:30 a.m.    Part IV: Prospects for the World (Cont.)

Chair of Part 4: Prof Dr Nina Dethloff

5. ASEAN

Adeline Chong, Associate Professor of Law, Singapore Management University, Singapore

6. China (OBOR)

Prof Zheng (Sophia) Tang, University of Newcastle, United Kingdom

Discussion

 

12:30 p.m.   Part V: Outlook

Chair of Part 5: Prof Dr Matthias Weller

7. International Commercial Arbitration

Jose Angelo Estrella-Faria, Senior Legal Officer UNCITRAL Secretariat, International Trade Law Division Office of Legal Affairs, United Nations, Former Secretary General of UNIDROIT

8. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

Discussion

 

1.30 p.m.     Closing Remarks

Dr João Ribeiro-Bidaoui, First Secretary, HCCH

This post was contributed by Eirini Tsikrika, Master 2 Paris 1 Panthéon-Sorbonne, Ph.D candidate at the National and Kapodistrian University of Athens 

 

On the 25th of June the Supreme Court of Greece has rendered a provisional judgment to request preliminary ruling of the CJEU on the question of compatibility of the right to damages for breach of a choice-of-court agreement with the European ordre public. The judgment forms part of the group of decisions related to the Alexandros T case [Starlight Shipping Company v Allianz Marine & Aviation Versicherungs AG ([2014] EWCA Civ 1010)]. The case has also been reported by Apostolos Anthimos, who had already stressed out the importance of an EU level solution, see his blog posts concerning Decisions Nr. 371/2019 and Nr. 89/2020 of the Piraeus Court of Appeal respectively. Also, the procedural history of the case in England is meticulously exposed in the post of Dr. Martin Ilmer.

 

The facts of the case

The dispute arose out of a marine insurance contract, which contained a choice-of-court agreement designating the courts of London as competent. After the shipwreck of the ship, the ship owners brought proceedings against the insurers before the High Court of Justice, which were finally ended with the parties reaching an out-of-court settlement. The settlement agreement itself contained also a prorogation clause in favor of the English courts.

At a later stage, the ship owners brought action before the courts of Piraeus, alleging damages suffered due to the conduct of the other party in the English proceedings. This conduct consisted of the systematic discrediting of the seaworthiness of the ship by using false evidence.

As a response, the insurers contested the jurisdiction of the Greek courts, by invoking the prorogation clauses contained in both the insurance contract and the settlement agreement. Furthermore and while proceedings before the court of Piraeus were still pending, the insurers filed a damages claim before the High Court of Justice for breach of the choice-of-court agreements, seeking recovery for the legal costs and expenses incurred in the Greek proceedings.

Their action was fully accepted by virtue of the [2014] EWHC 3028 (Comm) decision of the High Court of Justice, as the latter acknowledged the existence of a valid, exclusive choice-of-court agreement in favor of the English jurisdiction. Subsequently, the courts of Piraeus declined jurisdiction and dismissed the claim of the ship owners on the grounds of the res judicata effect of the English judgment, while refusing the existence of grounds for non recognition of the English judgment in Greece (Dec. Nr. 899/2016, 28.3.2016, Piraeus Court of First Instance).

 

The decision of the Court of Appeal

The ship owners formed an appeal against the decision of the Court of First Instance, alleging that the latter was wrong to recognize a decision granting compensation for breach of a choice-of-court agreement, on the grounds of violation of the principle of mutual trust and of the European ordre public.  Therefore, the decision of the Court of Appeal (Dec. Nr. 465/2020, 07.03.2019, Piraeus Court of Appeal) was focused on two points:

1. The affinity of a decision recognizing the right to damages for breach of a choice-of-court agreement with the anti-suit injunctions.
2. The violation of the procedural ordre public as ground for non recognition and enforcement of such decisions, under the Articles 34 (1) and 45 (1) of the EU Regulation 44/2001 (Brussels I Regulation).

As far as it concerns the first point, the Court of Appeal refused to draw a parallel between the right to damages for breach of a choice-of-court agreement and the anti-suit injunctions, which have been explicitly banned from the system of the Brussels I Regulation by virtue of the CJEU’s Turner v. Grovit and West Tankers v. Allianz decisions (although West Tankers concerned an arbitration agreement, dealing primarily with the question of the Regulation’s scope of application). According to the Greek courts, such decisions do not aim at the international jurisdiction of a foreign court but they refer exclusively to the non-execution of the prorogation agreement-as it would be with the failure to comply with any other contractual obligations- and consequently to the existence or non-existence of contractual liability lying with the violating party. (For a different view on the question of compatibility with the principle of mutual trust, see the analysis included in the doctoral thesis of Dr. Mukarrum Ahmed).

Proceeding with the second point, the court stresses that each decision admitting violation of a choice-of-court agreement and consequently international jurisdiction of the forum prorogatum cannot but correlatively refuse international jurisdiction of the forum yet seized. Hence, that is perfectly tolerated by the European ordre public, since it doesn’t constitute an illegitimate interference in the adjudicatory jurisdiction of a foreign court but results from the mere application of the rules of the Brussels I Regulation. And the Court went on, to point out that even a false application of the rules of the Regulation could not justify the non recognition of the decision of a Member State, since a violation of the rules on international jurisdiction does not establish a violation of the procedural public order. It is clear-the court continues- that the misinterpretation or false application of the rules on international jurisdiction is overridden by the objective of the free circulation of judgments within the European judicial area.

Based on these assertions, the Court of Appeal declared lack of       jurisdiction of the Greek courts to rule on the merits of the case, confirming the decision of the Court of First Instance.

The exequatur procedure and the preliminary reference to the CJEU

In the meantime, a parallel exequatur procedure has been initiated at the insurers’ initiative, who sought to execute the English judgment in Greece. The relevant exequatur request was fully accepted, while the application for refusal of enforcement filed by the ship owners, was rejected. Finally, the ship owners seized the Supreme Court pursuant to Article 44 and Annex IV of the Regulation, so that the question shall be resolved by means of a final and irrevocable decision. The Supreme Court, requesting a preliminary ruling, addressed to the CJEU -almost verbatim- the following questions (Dec. Nr. 820/2021, 25.6.2021, Supreme Court of Greece):

1. In addition to the conventional anti-suit injunctions, are there any other decisions or orders which, even implicitly, impede the applicant’s right to judicial protection by the courts of a Member State and therefore fall under the scope of the Articles 34 (1) and 45 (1) of the Brussels I Regulation? And more specifically, can a decision granting compensation for breach of a choice-of-court agreement, be considered as being against the European public order?

 

1. In case of a negative answer to the first question, do such decisions still fall under the scope of the Articles 34 (1) and 45 (1) of the EU Regulation 44/2001, once they are considered as being against the national public policy of Greece, so that the objective of the free movement of civil judgments within the European Union c?uld be overridden in that case?

It needs to be noted that the English, Spanish courts and recently the German BGH have already acknowledged the right to damages for breach of a jurisdiction clause. Yet the CJEU had not the chance to take position on such question, since the forum derogatum was in the previous cases a non EU member-state, where the principle of mutual trust does not apply. It remains to be seen whether the solution adopted by the national courts, will be expanded to the European judicial area. A highly anticipated decision with secondary implications also on the key issue of the nature of a choice-of-court agreement.

The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and of an instrument that would channel parallel proceedings to a “better’ forum.

The authors of this brief article advance the view that a convention regulating jurisdiction is not a good approach, but that an instrument finding a “better” forum in parallel proceedings, constructed on an open-minded and non-dogmatic basis, is needed, desirable, and feasible.

The piece is located here.

Membership

On 1 July 2021, Mongolia deposited its instrument of acceptance of the Statute, becoming the 89th Member of the HCCH. More information is available here.

Conventions & Instruments  

On 3 July 2021, the HCCH 1961 Apostille Convention entered into force for Jamaica. It currently has 120 Contracting Parties. More information is available here.

On 30 July 2021, the HCCH 1970 Evidence Convention entered into force for Georgia. It currently has 64 Contracting Parties. More information is available here.

Meetings & Events

From 5 to 9 July 2021, the Experts’ Group on Parentage/Surrogacy met for the ninth time, via videoconference. The Group discussed the scope of the possible draft Convention on legal parentage and the scope of the possible draft Protocol on legal parentage established as a result of an (international) surrogacy arrangement. More information is available here.

On 27 July 2021, the Permanent Bureau announced that Edition 2021 of HCCH a|Bridged will be dedicated to the HCCH 2005 Choice of Court Convention and held online on 1 December 2021. More information is available here.

On 28 July 2021, the Permanent Bureau launched the Advancing and Promoting the Protection of All Children (Approach) Initiative, in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. As part of this initiative, the Permanent Bureau is organising two competitions: the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition. Submissions are due on 1 October 2021. More information is available here.

Publications & Documentation

On 2 July 2021, the Permanent Bureau announced the publication of translations, in Albanian, Macedonian, and Bosnian-Serbian-Montenegrin languages, of the Explanatory Report on the HCCH 2019 Judgments Convention. These are the first available translations after the official publication of the Explanatory Report in October 2020. They were supported by the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), Open Regional Fund for South East Europe – Legal Reform (ORF – Legal Reform). 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.

Today (1 August 2021) the Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms has entered into force. This Protocol will apply in all 47 States Parties. Although it was open for signature/ratification since 2013, the ratification of Italy only occurred until 21 April 2021.

In the past, we have highlighted in this blog the increasing interaction between human rights and private international law and the need to interpret them harmoniously (see for example our previous posts here (HCCH Child Abduction Convention) and here (transnational surrogacy))

Protocol No. 15 has introduced important amendments to the text of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In particular, it has included the principle of subsidiary and the doctrine of the margin of appreciation in the preamble, which have long and consistently been adopted by the case law of the European Court of Human Rights (ECtHR), and thus this is a welcome amendment.

It will now read as follows (art. 1 of the Protocol):

“Affirming  that  the  High  Contracting  Parties,  in  accordance  with  the  principle  of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation,  subject  to  the supervisory  jurisdiction  of  the  European  Court  of  Human Rights established by this Convention”.

Of great important is the shortening of the time for the filing of an application in accordance with article 35 of the ECHR: from 6 to 4 months. This amendment will enter into force 6 months later (I assume on 1 February 2022). Articles 4 and 8(3) of the Protocol state the following:

Article 4

“In Article 35, paragraph 1 of the Convention, the words “within a period of six months” shall be replaced by the words “within a period of four months”.

Article 8(3)

“Article 4 of this Protocol shall enter into force following the expiration of a period of six months after the date of entry into force of this Protocol. Article 4 of this Protocol shall not apply to applications  in  respect  of  which  the  final  decision  within  the  meaning  of  Article  35, paragraph 1 of the Convention was taken prior to the date of entry into force of Article 4 of this Protocol” (our emphasis).

This is perhaps a reaction to the increasing workload of the Court, which seems to be of serious concern to the States Parties. In particular, the Brighton declaration has noted that “the number of applications made each year to the Court has doubled since 2004. Very large numbers of applications are now pending before all of the Court’s primary judicial formations. Many applicants, including those with a potentially well-founded application, have to wait for years for a response.” Undoubtedly, this may compromise the effectiveness and reliability of the ECtHR. Nevertheless, this reduction of the filing time may also leave out cases that are well founded but during which the parties were late in realising that such recourse / legal challenge was available.

Lastly, I would like to highlight the removal of the right of the parties to object to the relinquishment of jurisdiction to the Grand Chamber in certain circumstances, such as when a case pending before a Chamber raises a serious question affecting the interpretation of the ECHR or its protocols (art. 3 of the Protocol and art. 30 ECHR). In my view, this is an improvement and avoids delays as it allows the Chamber to make that call. It also provides consistency to the case law of the ECtHR. As to its entry into force, article 8(2) of the Protocol sets out the following:

“The amendment introduced by Article 3 of this Protocol shall not apply to any pending case in which one of the parties has objected, prior to the date of entry into force of this Protocol, to a proposal by a Chamber of the Court to relinquish jurisdiction in favour of the Grand Chamber”

 

 

Since 2000, the European Legal Forum informs about developments in various areas of the European ius commune. Special emphasis is placed on private international law, European and international civil procedure, family law and successions. The EuLF is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation.

The Board of Editors is pleased to invite manuscripts in English on the above topics, but also other areas of international law and European Union law, in the form of articles, case summaries and book reviews.

Papers submitted by 1 October 2021 will be reviewed for publication in the autumn/winter editions 2021/2022.

Papers may be submitted via e-mail. Please feel free to contact us for any queries and additional information: redaktion@unalex.eu

Jindal Society of International Law, in pursuance of fostering fruitful conversations on international law, is delighted to present and host the Fall Lecture Series of 2021, titled ‘Exploring the Ecosystem of International Law’. The lecture on ‘Private Law Remedy for Breaches of International Law Norms’ is the first lecture in this twenty-three part lecture series, which is being held from August to November 2021.

About Jindal Society of International Law

The Jindal Society of International Law is a student-led initiative under the aegis of the Centre for the Study of United Nations of Jindal Global Law School, and the guidance of Faculty Coordinator Professor (Dr.) Vesselin Popovski. Founded in 2020, this Society is an initiative to provide a platform to young international law enthusiasts.The purpose of this Society is to increase student interaction with the subject matter of International Law through its various initiatives. Rather than being primarily research-driven, we intend to offer a host of experiences that contribute towards skill-building, thereby increasing the knowledge database available to students. This Society is an attempt to bridge the lacuna by streamlining resources and inculcating an overall interest in the vast expanses of International Law. We aim to provide a space to young international law enthusiasts to nurture their interest in the field.

About the Lecture Series ‘Exploring the Ecosystem of International Law’

Our Fall Lecture Series of 2021, ‘Exploring the Ecosystem of International Law’, builds upon the introduction given on internationalism and international law by the concluded Spring Lecture Series, titled ‘Future of Internationalism and International Law’. The Fall Series endeavours to study the different contours of international law. To assist in this study, the speakers will cover and address their respective areas of expertise, based upon their years of research and practice. Given the vast ecosystem and the engagement of international law in it, the Society aims to study the fragmentation and fertilisation of the various disciplines in this ecosystem.

The lowest common denominator in this Fall Lecture Series is to enhance and provide a deeper understanding of international law through international lawyers. The Society, for its Members, is a well of knowledge and a quorum of thought provoking discussions, which will be resultant of this engagement with experts aimed at exploring the ecosystem of international law.

About the Lecture ‘Private Remedy for Breaches of International Law Norms’

The first lecture of our Fall 2021 Lecture Series, ‘Exploring the Ecosystem of International Law’, is on the topic ‘Private Remedy for Breaches of International Law Norms’. The lecture will be hosted online and is scheduled for 17:00 IST on 6th August 2021. The distinguished speaker for this lecture is Ms. Vasuda Sinha and with this lecture being the inaugural session, the opening remarks shall be given by Professor Dr. Vesselin Popovski.

Join Us for this Interesting Lecture!

In order to be a part of this lecture, attendees are requested to register themselves for the lecture through the following the link: https://www.eventbrite.co.uk/e/164448390563. Kindly register yourself as soon as possible to not miss out on this lecture, given that there are limited number of seats!

The lecture will be held online on Zoom and will also be simultaneously be live-streamed on YouTube. The registration link provides for all the necessary information regarding this.

For any further queries or for additional information regarding the Fall 2021 Lecture Series or other initiatives of Jindal Society of International Law, kindly visit our website.You can also follow and engage with us on LinkedIn, Twitter and Instagram!

 

A thought-provoking and much welcome contribution was posted by Prof. Dr. Dres. h.c. Burkhard Hess on SSRN, setting the stage for the discussion on the status quo in the application and the prospects of the Brussels IbisRegulation.

The article, titled “Reforming the Brussels Ibis Regulation: Perspectives and Prospects”, may be retrieved here.

The abstract reads as follows:

According to article 79 of Regulation (EU) 1215/2012, the EU Commission shall present a report on the application of the Brussels Ibis Regulation by 11 January 2022. This paper intends to open the discussion about the present state of affairs and the necessary adjustments of the Regulation. Although there is no need to change its basic structure, the relationship of the Brussels Ibis Regulation with other EU instruments (as the General Data Protection Regulation) should be reviewed. There is also a need to address third-State relationships and cross-border collective redress. In addition, the paper addresses several inconsistencies within the present Regulation evidenced by the case law of the CJEU: such as the concept of contract (article 7 no 1), the place of damage (article 7 no 2), the protection of privacy and the concept of consumers (articles 17 – 19). Finally, some implementing procedural rules of the EU Member States should be harmonised, i.e. on the assessment of jurisdiction by national courts, on judicial communication and on procedural time limits. Overall, the upcoming review of the Brussels Ibis Regulation opens up an opportunity to improve further a central and widely accepted instrument of the European law of civil procedure.

The Centre for Private International Law (CPIL) of the University of Aberdeen is pleased to host its first postgraduate conference, which is to be held on 17 November 2021. The Postgraduate Law Conference aims at bringing together early career scholars working in the private international law field or at the intersection of European Union law and Private International Law. The purpose is for scholars to present their research before esteemed peers with relevant expertise and receive valuable feedback for further development from academic experts.

 

The Conference will include panels on Private International Law aspects of International Family Law, International Commercial Law and ADR as well as European Union Law and will be complete with the unrivalled expertise of the Members and Associate Members of the CPIL and external scholars. For a full list of the participating scholars and to download the Call for Papers form, please click here. The deadline for the Call for Papers is 31 August 2021.

 

To celebrate the 25th anniversary of the HCCH 1996 Child Protection Convention, the HCCH is pleased to announce the launch of the Advancing and Promoting the Protection of All Children (Approach) Initiative!

The HCCH|Approach Initiative will consist of a series of activities and events culminating in the HCCH|Approach Event, to be held online on Tuesday 19 October 2021. Information on registration and the programme of the HCCH|Approach Event will be made available in due course.

Leading up to the HCCH|Approach Event, the Permanent Bureau of the HCCH is organising two competitions: the HCCH|Approach Essay Competition, and the HCCH|Approach Media and Design Competition. Entries can be submitted up until Friday 1 October 2021, 5.00 p.m. (CEST).

More information on the HCCH|Approach Initiative and its competitions is available here.

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

By Sarah McKibbin, University of Southern Queensland

Epic Games, the developer of the highly popular and lucrative online video game Fortnite, recently won an appeal against tech juggernaut, Apple, in Australia’s Federal Court.[1] Fortnite is played by over three million Apple iOS users in Australia.[2] In April 2021, Justice Perram awarded Apple a temporary three-month stay of proceedings on the basis of an exclusive foreign choice of court agreement in favour of the courts of the Northern District of California. Despite awarding this stay, Justice Perram was nevertheless ‘distinctly troubled in acceding to’ Apple’s application.[3] Epic appealed to the Full Court.

On 9 July, Justices Middleton, Jagot and Moshinsky found three errors of principle in Justice Perram’s consideration of the ‘strong reasons’ given by Epic for the proceedings to remain in the Federal Court — despite the exclusive foreign choice of court agreement.[4] Exercising its own discretion, the Full Court then found ‘strong reasons’ for the proceedings to remain in the Federal Court, particularly because enforcement of the choice of court agreement would ‘offend the public policy of the forum.’[5] They discerned this policy from various statutory provisions in Australia’s competition law as well as other public policy considerations.[6] The appeal highlights the tension that exists between holding parties to their promises to litigate abroad and countenancing breaches of contract where ‘serious issues of public policy’ are at play.[7]

1          Exclusive Choice of Foreign Court Agreements in Australia

Australians courts will enforce an exclusive choice of court agreement favouring a foreign court either by granting a stay of local proceedings or by awarding damages for breach of contract. The usual approach is for the Australian court to enforce the agreement and grant a stay of proceedings ‘unless strong reasons are shown why it should not.’[8] As Justice Allsop observed in Incitec v Alkimos Shipping Corp, ‘the question is one of the exercise of a discretion in all the circumstances, but recognising that the starting point is the fact that the parties have agreed to litigate elsewhere, and should, absent some strong countervailing circumstances, be held to their bargain.’[9] The burden of demonstrating strong reasons rests on the party resisting the stay.[10] Considerations of inconvenience and procedural differences between jurisdictions are unlikely to be sufficient as strong reasons.[11]

Two categories of strong reasons predominate. The first category is where, as stated in Akai Pty Ltd v The People’s Insurance Co Ltd, enforcement ‘offends the public policy of the forum whether evinced by statute or declared by judicial decision’.[12] This includes the situation ‘where the party commencing proceedings in the face of an exclusive jurisdiction clause seeks to take advantage of what is or may be a mandatory law of the forum’.[13] The prohibition in Australian law against misleading and deceptive conduct is an example.[14] The second category justifying non-enforcement is where litigation in the forum concerns issues beyond the scope of the choice of court agreement or concerns third parties to the agreement.[15] Where third parties are concerned, it is thought that ‘the court should not start with the prima facie disposition in favour of a stay of proceedings’.[16]

2         Factual Background

The successful appeal represents the latest decision in an ongoing international legal battle between Apple and Epic precipitated by Fortnite’s removal from the Apple App Store in August last year. Epic released a software update for Apple iOS devices on 13 August 2020 making the Fortnite’s virtual currency (called V-Bucks) available for purchase through its own website, in addition to Apple’s App Store, at a 20 per cent discount. Any new game downloads from the App Store ‘came equipped with this new feature’.[17] While Fortnite is free to download, Epic’s revenue is generated by players purchasing in-app content, such as dance moves and outfits, through a digital storefront. After the digital storefront takes a commission (usually 30 per cent), Epic receives the net payment.

App developers only have one avenue if they wish to distribute their apps for use on Apple iOS devices: they must use the Apple App Store and Apple’s in-app payment system for in-app purchases from which Apple takes a 30 per cent revenue cut. Epic’s co-founder and CEO Tim Sweeney has singled out Apple and Google for monopolising the market and for their ‘terribly unfair and exploitative’ 30 per cent commission for paid app downloads, in-app purchases and subscriptions.[18] While a 70/30 revenue split has been industry standard for many years, the case for an 88/12 revenue model is building.[19] Sweeney argues that ‘the 30% store tax usually exceeds the entire profits of the developer who built the game that’s sold’.[20]

3         Apple’s App Developer Agreement

Epic’s relationship with Apple is regulated by the Apple Developer Program License Agreement (‘DPLA’) under which Apple is entitled to block the distribution of apps from the iOS App Store ‘if the developer has breached the App Store Review Guidelines’.[21] These Guidelines include the obligation to exclusively use Apple’s in-app payment processing system. Clause 14.10 contains Epic’s contractual agreement with Apple to litigate in the Northern District of California:

Any litigation or other dispute resolution between You and Apple arising out of or relating to this Agreement, the Apple Software, or Your relationship with Apple will take place in the Northern District of California, and You and Apple hereby consent to the personal jurisdiction of and exclusive venue in the state and federal courts within that District with respect any such litigation or dispute resolution.

By introducing a custom payment facility, the August update breached the App Store Review Guidelines. Apple swiftly removed Fortnite from its App Store. There were three consequences of this removal: first, Fortnite could not be downloaded to an Apple device; secondly, previously installed iOS versions of Fortnite could not be updated; and, thirdly, Apple device users could not play against players who had the latest version of Fortnite.[22]

4         The Proceedings

On the same day as Apple removed Fortnite from the App Store, Epic commenced antitrust proceedings in the United States District Court for the Northern District of California, alleging Apple’s ‘monopolisation of certain markets’ in breach of the United States’ Sherman Act and other California legislation. The judgment in the US trial is expected later this year. Epic also sued Apple in United Kingdom, the European Union and Australia on competition grounds. In February, the United Kingdom’s Competition Appeal Tribunal refused permission to serve Epic’s claim on Apple in California because the United Kingdom was not a suitable forum (forum non conveniens).[23] Together with these legal actions, Epic commenced a marketing campaign urging the game’s worldwide fanbase to ‘Join the fight against @AppStore and @Google on social media with #FreeFortnite’.[24] Epic also released a video parodying Apple’s famous 1984 commercial called ‘Nineteen Eighty-Fortnite’.[25]

The Australian proceedings were brought in the Federal Court in November 2020. Epic’s complaint against Apple is the same as in the US, the EU and the UK, but with the addition of a territorial connection, ie developers of apps for use on Australian iOS devices must only distribute their apps through Apple’s Australian App Store and only use Apple’s in-app payment processing system. As a consequence, Epic alleges that Apple has contravened three provisions of Part IV of the Competition and Consumer Act 2010 (Cth) concerning restrictive trade practices and the Australian Consumer Law for unconscionable conduct. In addition to injunctive relief restraining Apple from continuing to engage in restrictive trade practices and unconscionable conduct, Epic seeks ancillary and declaratory relief.

Apple applied for a permanent stay of the Federal Court proceedings, relying on the choice of court agreement in the DPLA and the doctrine of forum non conveniens. Epic unsuccessfully argued that its claims under Australian law did not ‘relate to’ cl 14.10 of the DPLA.[26] More critically, Justice Perram did not think Epic had demonstrated strong reasons. He awarded Apple a temporary three-month stay of proceedings ‘to enable Epic to bring this case in a court in the Northern District of California in accordance with cl 14.10.’[27] Where relevant to the appeal, Justice Perram’s reasoning is discussed below.

5         The Appeal: Three Errors of Principle

The Full Court distilled Epic’s 17 grounds of appeal from Justice Perram’s decision into two main arguments. Only the second argument — turning on the existence of ‘strong grounds’[28] — was required to determine the appeal. Justices Middleton, Jagot and Moshinsky identified three errors of principle in Justice Perram’s evaluation of ‘strong reasons’, enabling them to re-evaluate whether strong reasons existed.

The first error was Justice Perram’s failure to cumulatively weigh up the reasons adduced by Epic that militated against the granting of the stay. Justice Perram had grudgingly granted Apple’s stay application without evaluating the five concerns he had expressed ‘about the nature of proceedings under Part IV which means they should generally be heard in this Court’,[29] as he was required to do. The five concerns were:[30]

1. The public interest dimension to injunctive proceedings under the Competition and Consumer Act;
2. The ‘far reaching’ effect of the litigation on Australian consumers and Australian app developers as well as the nation’s ‘interest in maintaining the integrity of its own markets’;
3. The Federal Court’s exclusive jurisdiction over restrictive trade practices claims;
4. ‘[D]icta suggesting that [restrictive trade practices] claims are not arbitrable’; and
5. That if the claim in California ‘complex questions of [Australian] competition law will be litigated through the lens of expert evidence’.

The second error was Justice Perram’s ‘failure to recognise juridical disadvantages of proceeding in the US Court’.[31] The judge had accepted that litigating the case in California would be ‘more cumbersome’ since ‘expert evidence about the content of Australian law’ would be needed.[32] There was a risk that a California court ‘might decline to hear the suit on forum non conveniens grounds.’[33] Despite that, he concluded that ‘[a]ny inconvenience flows from the choice of forum clause to which Epic has agreed. It does not sit well in its mouth to complain about the consequences of its own bargain’.[34] However, the Full Court viewed the inapplicability of ‘special remedial provisions’ of the Australian Competition and Consumer Act in the California proceedings as the loss of a legitimate juridical advantage.[35]

The third error concerned a third party to the exclusive jurisdiction clause. In Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd, Justice Bell observed that the default enforcement position was inapplicable in cases where ‘not all parties to the proceedings are party to an exclusive jurisdiction clause’.[36] Apple Pty Limited, an Australian subsidiary of Apple, was not a party to the DPLA. Yet it was responsible ‘for the distribution of iOS-compatible apps to iOS device users’ within the Australian sub-market in a manner consistent with Apple’s worldwide conduct.[37] Moreover, Epic’s proceedings included claims under the Competition and Consumer Act and the Australian Consumer Law against the Australian subsidiary ‘for conduct undertaken in Australia in connection with arrangements affecting Australian consumers in an Australian sub-market.’[38] In this light, the Full Court rejected Justice Perram’s description of the joinder of Apple Pty Limited as ‘ornamental and ‘parasitic on the claims Epic makes against Apple’.[39]

6          The Appeal: Strong Reasons Re-evaluated

The stay should have been refused. The Full Court found a number of public policy considerations that cumulatively constituted strong reasons not to grant a stay of Epic’s proceedings. The judges discerned ‘a legislative policy that claims pursuant to [the restrictive trade practices law] should be determined in Australia, preferably in the Federal Court’ — although it was not the only court that could hear those claims.[40] Essentially, the adjudication of restrictive trade practices claims in the Federal Court afforded legitimate forensic advantages to Epic — benefits which would be lost if Epic were forced to proceed in California. These benefits included the availability of ‘specialist judges with relevant expertise’ in the Federal Court, the potential for the Australian Competition and Consumer Commission to intervene, and the opportunity for private litigants (as in this case) to ‘develop and clarify the law’.[41] Indeed, the Federal Court has not yet interpreted the misuse of market power provision in the Competition and Consumer Act relied upon by Epic, which came into effect in 2017.[42] The litigation will also impact millions of Australians who play Fortnite and the state of competition in Australian markets.[43]

 

 

[1] Epic Games, Inc v Apple Inc [2021] FCAFC 122.

[2] Epic Games, Inc v Apple Inc (Stay Application) [2021] FCA 338, [7] (Perram J).

[3] Ibid, [64] (Perram J).

[4] Epic Games, Inc v Apple Inc (n 1) [48].

[5] Ibid.

[6] Ibid, [90].

[7] Ibid, [97]. See James O’Hara, ‘Strategies for Avoiding a Jurisdiction Clause in International Litigation’ (2020) 94(4) Australian Law Journal 267. Compare Mary Keyes, ‘Jurisdiction under the Hague Choice of Courts Convention: Its Likely Impact on Australian Practice’ (2009) 5(2) Journal of Private International Law 181; Richard Garnett, ‘Jurisdiction Clauses since Akai’ (2013) 87 Australian Law Journal 134; Brooke Adele Marshall and Mary Keyes, ‘Australia’s Accession to the Hague Convention on Choice of Court Agreements’ (2017) 41 Melbourne University Law Review 246.

[8] A Nelson & Co Ltd v Martin & Pleasance Pty Ltd (Stay Application) [2021] FCA 754, [10] (Perram J) (emphasis added). See also Huddart Parker Ltd v Ship ‘Mill Hill’ (1950) 81 CLR 502, 508–9 (Dixon J); The Eleftheria [1970] P 94, 99 (Brandon J); Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418, 427–9 (Dawson and McHugh JJ), 445 (Toohey, Gaudron and Gummow JJ).

[9] Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496, 505 [43].

[10] There was some argument about onus in Epic Games (Stay Application) (n 2) [35]–[40] (Perram J).

[11] Incitec (n 9) [49]; Andrew S Bell, ‘Jurisdiction and Arbitration Agreements in Transnational Contracts: Part I’ (1996) 10 Journal of Contract Law 53, 65. See generally O’Hara (n 7).

[12] (1996) 188 CLR 418, 445 (Toohey, Gaudron and Gummow JJ). See also Marshall and Keyes (n 7) 257.

[13] Australian Health and Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419, 438 [80] (Bell P).

[14] Australian Consumer Law s 18.

[15] Incitec (n 9) 506 [47], [49] (Allsop J); Marshall and Keyes (n 7) 258.

[16] Australian Health (n 13) 423 [1] (Bathurst CJ and Leeming JA), 442 [90] (Bell J).

[17] Epic Games (Stay Application) (n 2) [6] (Perram J).

[18] @TimSweeneyEpic (Twitter, 29 July 2020, 1:29 pm AEDT) <https://twitter.com/TimSweeneyEpic/status/1288315775607078912>.

[19] See, eg, Nick Statt, ‘The 70-30 Revenue Split is Causing a Reckoning in the Game Industry’, protocol (Web Page, 4 May 2021) <https://www.protocol.com/newsletters/gaming/game-industry-70-30-reckoning?rebelltitem=1#rebelltitem1>.

[20] @TimSweeneyEpic (Twitter, 26 June 2019, 10.13 am AEDT) <https://twitter.com/TimSweeneyEpic/status/1143673655794241537>.

[21] Epic Games (n 1) [5].

[22] Epic Games (Stay Application) (n 2) [7].

[23] Epic Games, Inc v Apple Inc [2021] CAT 4.

[24] ‘#FreeFortnite’, Epic Games (Web Page, 13 August 2020) <https://www.epicgames.com/fortnite/en-US/news/freefortnite>.

[25] Fortnite, ‘Nineteen Eighty-Fortnite – #FreeFortnite’ (YouTube, 13 August 2020) <https://youtu.be/euiSHuaw6Q4>.

[26] Epic Games (Stay Application) (n 2) [11]–[12].

[27] Ibid, [66].

[28] Epic Games (n 1) [41], [47].

[29] Ibid, [57].

[30] Epic Games (Stay Application) (n 2) [59]–[63].

[31] Epic Games (n 1) [58].

[32] Epic Games (Stay Application) (n 2) [53].

[33] Ibid, [44].

[34] Ibid, [58].

[35] Epic Games (n 1) [62].

[36] Australian Health (n 13) 442 [90] (Bell P).

[37] Epic Games (n 1) [74].

[38] Ibid, [78].

[39] Ibid.

[40] Ibid, [99]. The Full Court clarified that ‘other Australian courts may determine Pt IV claims, but within a limited compass and for specific reasons’: [116].

[41] Ibid, [104], [107], [122].

[42] Ibid, [107].

[43] Ibid, [97].

The Mexican Academy of Private International and Comparative Law (AMEDIP) has just published the 25th Anniversary Issue of the Mexican Journal of Private International Law.  It is available here.

One of the main aims of this journal is to publish the papers presented at AMEDIP’s annual seminars, which must comply with the requirements set out in the convocations and are peer-reviewed. Click here to access the Journal page.

Below is the table of contents of the 25th Anniversary Issue (in Spanish):

 

DOCTRINA

– Pros  y  contras  del  Convenio  de  la  Haya  de  1996,  sobre  la competencia, la ley aplicable, el reconocimiento, la ejecución y cooperación en materia de responsabilidad parental y de medidas de protección de los niños / María Virginia Aguilar

– La retención ilícita del menor en un contexto familiar transfronterizo: aspectos de competencia judicial internacional / David Carrizo Aguado

– La (Des)  Apreciación Conjunta de  los  Convenios  de  la  Haya de 1980 y 1996 por el Tribunal Europeo de Derechos Humanos y el Perjuicio al Principio del Interés  Superior del Niño / Aline Beltrame de Moura

– El papel controversial del TEDH en la interpretación del Convenio  de  la  Haya  de  25  de  octubre  de  1980  sobre los Aspectos Civiles de Sustracción Internacional de Menores: Especial referencia a los casos Neulinger y Shuruk c. Suiza y X. c. Letonia  / María Mayela Celis Aguilar

– Algunos apuntes sobre sobre la competencia jurisdiccional civil internacional en materia de alimentos a la luz del Convenio de la Haya sobre los Aspectos Civiles de la Sustracción Internacional de Menores y el Derecho Procesal Peruano / Luis Raúl Serrano Arribasplata

– La extensión de  las  cláusulas  arbitrales a  partes no  signatarias con base en la Teoría del Grupo de Sociedades / Jorge I. Aguilar Torres

– Comentarios al Convenio de la Haya del 2 de julio de 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras en materia Civil y comercial / Francisco José Contreras Vaca

– El Derecho Internacional Privado en el contexto internacional actual: Las reglas de competencia judicial internacional indirecta en el Convenio de la Haya de 2 de julio de 2019 y el acceso a la justicia / Carlos Eduardo Echegaray de Maussion

– La aplicación de la regla de conflicto en materia mercantil / James A. Graham

– Extraterritorialidad de la Foreing Corrupt Practices Act de 1977 / Francisco Jesús Goytortúa Chambon

– La Nacionalidad Mexicana / Leonel Pereznieto Castro

– Democracies and Major Economies are becoming authoritarian; Multilateralism and the rule of law is threatened: and the case of president Donald Trump / James Frank Smit

 

LA VOZ DEL COMITÉ EDITORIAL

– Los primeros 25 años de la Revista Mexicana de Derecho Internacional Privado y Comparado / Jorge Alberto Silva

– Contribución de la Revista Mexicana de Derecho Internacional Privado y Comparado al estudio y a la regulación de las transacciones privadas internacionales / José Carlos Fernandez Rozas

– Cultura de Arbitraje / Bernardo M. Cremades

 

NOTAS

– Los MASC: La incorporación de la TIC a procesos judiciales y alternativos / Erick Pérez Venegas

– Exposición de motivos: mi vida dedicada al DIPr / Leonel Pereznieto Castro

 

RESEÑAS

– Ortiz Ahlf Loreta: El derecho de acceso a la justicia de los inmigrantes en situación irregular / Jorge Alberto Silva

– Aguilar María Virginia: Manual de Derecho Familiar / Leonel Pereznieto Castro

– -Enríquez Rosas José David y González de Cossío Francisco: Arbitraje Comercial y de Inversión en el Sector Energético / Erick Pérez Venegas

– Pérez Amador Barrón: El Derecho internacional Privado / Leonel Pereznieto Castro

– Silva Jorge Alberto: Rapsodia Jurídica, selección de estudios  jurídicos  / Nuria González Martín .

 

DOCUMENTOS

– Ley Uruguaya de Derecho internacional Privado

Dr. João Ribeiro-Bidaoui (First Secretary at the Hague Conference on Private International Law) has posted a compelling answer on the Kluwer Arbitration Blog to the debate sparked by Prof. Gary Born’s criticism in a series of posts published on the same Blog (see Part I, Part II, and Part III). First Secretary Ribeiro-Bidaoui’s response is masterfully crafted in drawing the boundaries between equally valuable and essential instruments, and certainly constitutes a most welcome contribution.

For further commentary on these exchanges, see also on the EAPIL Blog, here.

The latest issue of RabelsZ is out. It contains the following articles:

Kai-Oliver Knops: Die unionsrechtlichen Voraussetzungen des Rechtsmissbrauchseinwands – am Beispiel des Widerrufs von Verbraucherdarlehens- und Versicherungsverträgen (The Requirements of EU Law on Abuse of Law and Abuse of Rights – the Example of the Right to Withdraw from Credit Agreements and Insurance Contract), Volume 85 (2021) / Issue 3, pp. 505-543 (39), https://doi.org/10.1628/rabelsz-2021-0023

In the European Union, it is apparently only in Germany that withdrawals by consumers and policy-holders are often rejected as invalid and abusive. Mostly it is argued that an objection of abuse is subject to national law and that application of the principle of good faith is a matter for the judge alone. In fact, the jurisprudence of the Court of Justice of the European Union sets strict limits on the objection of abuse and requires special justification, which the national legal system must comply with in accordance with the primacy of European Union law. Under EU law, withdrawal from consumer loans and insurance contracts will be vulnerable to an objection of legal abuse only in very exceptional cases and by no means as a rule.

 

Bettina Rentsch: Grenzüberschreitender kollektiver Rechtsschutz in der Europäischen Union: No New Deal for Consumers (Cross-Border Collective Redress: No New Deal for Consumers), Volume 85 (2021) / Issue 3, pp. 544-578 (35), https://doi.org/10.1628/rabelsz-2021-0024

The recently adopted Directive on representative actions marks the beginning of a new era for collective redress in the European Union. However, applying the Brussels Ia and Rome Regulations for questions regarding jurisdiction, recognition, enforcement and the applicable law entails jurisdictional and choice-of-law-related problems inherent in cross-border aggregate litigation as such: European private international law, including its rules on jurisdiction and enforcement, is designed for bipartisan proceedings and thus shows a variety of inconsistencies, deficits and contradictions when faced with collective redress. Moreover, applying a multitude of laws to a single collective proceeding generates prohibitive costs for the plaintiff side, while generating economies of scale on the defendant side. It is unlikely that the parties to collective proceedings will enter a subsequent choice of law agreement to reduce the number of applicable laws.

 

Frederick Rieländer: Der »Vertragsabschlussschaden« im europäischen Deliktskollisions- und Zuständigkeitsrecht (Locating “Unfavourable Contracts” in European Private International Law), Volume 85 (2021) / Issue 3, pp. 579-619 (41), https://doi.org/10.1628/rabelsz-2021-0025

The inconsistent case law of the ECJ concerning the task of locating pure economic loss, for the purposes of Art. 7 No. 2 Brussels Ibis Regulation and Art. 4 para. 1 Rome II Regulation, is characterisedby the absence of a careful theoretical analysis of the protective purposes of the relevant liability rules. In this article, it is submitted that in the voluminous category of cases where a party has been induced into entering an unfavourable contract with a third party, “damage” for the purposes of Art. 7 No. 2 Brussels Ibis Regulation and Art. 4 para. 1 Rome II Regulation generally occurs at the moment when the victim is irreversibly bound to perform its obligation to the third party, whilst it is immaterial whether and, if so, where the contract is performed. Although the locus contractus appears to be the most appropriate connecting factor in the majority of the relevant cases of misrepresentation – particularly for the purpose of tying prospectus liability to the market affected – it needs to be displaced, for instance, in those cases where consumers are lured into purchasing faulty products abroad by fraudulent misrepresentations on the part of the manufacturer.

 

Raphael de Barros Fritz: Die kollisionsrechtliche Behandlung von trusts im Zusammenhang mit der EuErbVO (The Treatment of Trusts under the European Succession Regulation), Volume 85 (2021) / Issue 3, pp. 620-652 (33), https://doi.org/10.1628/rabelsz-2021-0026

Few legal institutions cause more difficulties in the context of the European Succession Regulation (ESR) than trusts. There is, for instance, hardly any agreement on the scope of the exception created for trusts in Art. 1 para. 2 lit. j ESR. There is also widespread support in academic literature for the application of Art. 31 ESR to trusts, although neither the precise contours of this enigmatic provision nor its exact functioning in connection with trusts has yet been established. The present article addresses, therefore, the question of how trusts are to be treated within the ESR. In particular, it will be shown how Art. 1 para. 2 lit. j ESR is to be understood against the background of Recital 13. In addition, the question will be raised as to what extent Art. 31 ESR has any importance at all in connection with trusts.

 

Written by Jingru Wang, Wuhan University Institute of International Law

 

1.Background

Three days after its low-key listing in the US on 30 June 2021, Didi Chuxing (hereinafter “Didi”) was investigated by the Cyberspace Administration of China (hereinafter “CAC”) based on the Chinese National Security Law and Measures for Cybersecurity Review.[1] Didi Chuxing as well as 25 Didi-related APPs were then banned for seriously violating laws around collecting and using personal information,[2] leading to the plummet of Didi’s share. On 16 July 2021, the CAC, along with other six government authorities, began an on-site cybersecurity inspection of Didi.[3] The CAC swiftly issued the draft rules of Measures for Cybersecurity Review and opened for public consultation.[4] It proposed that any company with data of more than one million users must seek the Office of Cybersecurity Review’s approval before listing its shares overseas. It also proposed companies must submit IPO materials to the Office of Cybersecurity Review for review ahead of listing.

It is a touchy subject. Didi Chuxing is a Beijing-based vehicle for hire company. Its core business bases on the accumulation of mass data which include personal and traffic information. The accumulated data not only forms Didi’s unique advantage but also is the focus of supervision. The real concern lays in the possible disclosure of relevant operational and financial information at the request of US securities laws and regulations, which may cause data leakage and threaten national security. Therefore, China is much alert to information-based companies trying to list overseas.

The overseas listing of China-related companies has triggered regulatory conflicts long ago. The Didi event only shows the tip of an iceberg. This note will focus on two issues: (1) China’s supervision of red-chip companies’ overseas listing; (2) the conflicts between the US’s demand for disclosure and China’s refusal against the US’s extraterritorial jurisdiction.

 

2. Chinese supervision on red-chip companies’ overseas listing

A red-chip company does most of its business in China, while it is incorporated outside mainland China and listed on the foreign stock exchange (such as New York Stock Exchange). Therefore, it is expected to maintain the filing and reporting requirements of the foreign exchange. This makes them an important outlet for foreign investors who wish to participate in the rapid growth of the Chinese economy. When asking Chinese supervision on red-chip companies listed overseas, such as Didi, the foremost question is whether the Chinese regulatory authority’s approval is required for them to launch their shares overseas. It is uneasy to conclude.

One reference is the Chinese Securities Law. Article 238 of the original version of the Chinese Securities Law provides that “domestic enterprises issuing securities overseas directly or indirectly or listing their securities overseas shall obtain approval from the securities regulatory authority of the State Council following the relevant provisions of the State Council.” This provision was amended in 2019. The current version (Art. 224 of the Chinese Securities Law) only requires the domestic enterprises to comply with the relevant provisions of the State Council. The amendment indicated that China has adopted a more flexible approach to addressing overseas listing. Literally, the securities regulatory authority’s approval is no longer a prerequisite for domestic enterprises to issue securities overseas.

When it comes to Didi’s listing in the US, a preliminary question is the applicability of such provision. Art. 224 is applied to “domestic enterprise” only. China adopts the doctrine of incorporation to ascertain company’s nationality.[5] According to Article 191 of the Chinese Company Law, companies established outside China under the provisions of foreign law are regarded as foreign companies. Didi Global Inc. is incorporated in the state of Cayman Islands, and a foreign company under the Chinese law. In analogy, Alibaba Group Holding Ltd., another representative red-chip enterprise, had not obtained and not been required to apply for approval of the Chinese competent authority before its overseas listing in 2014. A Report published by the Chinese State Administration of Foreign Exchange specifically pointed out that “domestic enterprises” were limited to legal persons registered in mainland China, which excluded Alibaba Group Holding Ltd., a Cayman Islands-based company with a Chinese background.[6]

In summary, it is fair to say that preliminary control over red-chip enterprise’s overseas listing leaves a loophole, which is partly due to China’s changing policy. That’s the reason why Didi has not been accused of violating the Chinese Securities Law but was banned for illegal accumulation of personal information, a circumvent strategy to avoid the possible information leakage brought by Didi’s public listing. Theoretically, depends on the interpretation of the aforementioned rules, the Chinese regulatory authority may have the jurisdiction to demand preliminary approval. Based on the current situation, China intends to fill the gap and is more likely to strengthen the control especially in the field concerning data security.

 

3. The conflict between the US’s demand for audit and China’s refusal against the US’s extraterritorial jurisdiction

Another problem is the conflict of supervision. In 2002, the US promulgated the Sarbanes-Oxley Act, under which the Public Company Accounting Oversight Board (hereinafter “PCAOB”) was established to oversee the audit of public companies. Under the Sarbanes-Oxley Act, wherever its place of registration is, a public accounting firm preparing or issuing, or participating in the preparation or issuance of, any audit report concerning any issuer, shall register in the PCAOB and accept the periodic inspection.[7] The PCAOB is empowered to investigate, penalize and sanction the accounting firm and individual that violate the Sarbanes-Oxley Act, the rules of the PCAOB, the provisions of the securities laws relating to the preparation and issuance of audit reports and the obligations and liabilities of accountants. Opposed to this provision (although not intentionally), Article 177 of the Chinese Securities Law forbids foreign securities regulatory authorities directly taking evidence in China. It further stipulates that no organization or individual may arbitrarily provide documents and materials relating to securities business activities to overseas parties without the consent of the securities regulatory authority of the State Council and the relevant State Council departments. Therefore, the conflict appears as the US requests an audit while China refused the jurisdiction of PCAOB over Chinese accountant companies.

It is suspected that despite the PCAOB’s inofficial characteristic, information (including the sensitive one) gathered by the PCAOB may be made available to government agencies, which may threaten the national security of China.[8] Consequently, China prevents the PCAOB’s inspection and some of Chinese public accounting firm’s application for registration in the PCAOB has been suspended.[9] In 2013, the PCAOB signed a Memorandum of Understanding with Chinese securities regulators that would enable the PCAOB under certain circumstances to obtain audit work papers of China-based audit firms. However, the Memorandum seems to be insufficient to satisfy the PCAOB’s requirement for supervision. The PCAOB complained that “we remain concerned about our lack of access in China and will continue to pursue available options to support the interests of investors and the public interest through the preparation of informative, accurate, and independent audit reports.”[10] After the exposure of Luckin Coffee’s accounting fraud scandal, the US promulgated the Holding Foreign Companies Accountable Act in 2020. This act requires certain issuers of securities to establish that they are not owned or controlled by a foreign government. Specifically, an issuer must make this certification if the PCAOB is unable to audit specified reports because the issuer has retained a foreign public accounting firm not subject to inspection by the PCAOB. If the PCAOB is unable to inspect the issuer’s public accounting firm for three consecutive years, the issuer’s securities are banned from trade on a national exchange or through other methods.

China has made “national security” its core interest and is very prudent in opening audit for foreign supervisors. From the perspective of the US, however, it is necessary to strengthen financial supervision over the public listing. As a result, Chinese enterprises have to make a choice between disappointing the PCAOB and undertaking domestic penalties. Under dual pressure of China and the US, sometimes Chinese companies involuntarily resort to delisting. This may not be a result China or the US long to see. In this situation, cooperation is a better way out.

 

4. Conclusion

China’s upgrading of its cybersecurity review regulation is not aimed at burning down the whole house. Overseas listing serves China’s interest by opening up channels for Chinese companies to raise funds from the international capital market, and thus contribute to the Chinese economy. The current event may be read as a sign that China is making provisions to strengthen supervision on red-chip companies’ overseas listing. It was suggested that the regulatory authority may establish a classified negative list. Enterprises concerning restricted matters must obtain the consent of the competent authority and securities regulatory authority before listing.[11] It is not bad news for foreign investors because the listed companies will undertake more stringent screening, which helps to build up an orderly securities market.

 

 

 

[1] http://www.cac.gov.cn/2021-07/02/c_1626811521011934.htm

[2] http://www.cac.gov.cn/2021-07/04/c_1627016782176163.htm; http://www.cac.gov.cn/2021-07/09/c_1627415870012872.htm.

[3] http://www.cac.gov.cn/2021-07/16/c_1628023601191804.htm.

[4] Notice of Cyberspace Administration of China on Seeking Public Comments on the Cybersecurity Review Measures (Draft Revision for Comment), available at: http://www.cac.gov.cn/2021-07/10/c_1627503724456684.htm

[5] The real seat theory is recommended by commentators, but not accepted by law. Lengjing, Going beyond audit disputes: What is the solution to the crisis of China Concept Stocks?, Strategies, Volume 1, 2021, p. 193.

[6] 2014 Cross-border capital flow monitoring report of the People’s Republic of China, available at: http://www.gov.cn/xinwen/site1/20150216/43231424054959763.pdf

[7] Sarbanes-Oxley Act, §102(a), §104 (a) & (b).

[8] Sarbanes-Oxley Act, §105 (b)(5)(B).

[9] https://pcaobus.org/Registration/Firms/Documents/Applicants.pdf

[10] China-Related Access Challenges, available at: https://pcaobus.org/oversight/international/china-related-access-challenges.

[11] https://opinion.caixin.com/2021-07-09/101737896.html.

The second issue of 2021 of Dutch PIL journal, including both English and Dutch language papers, has just been published.

 

It includes these papers:

K.C. Henckel, Rechtskeuze in het ipr-arbeidsrecht: enkele gedachten over het begunstigingsbeginsel / p. 251-273

This article discusses the preferential law approach that is enshrined in Article 8(1) Rome I Regulation. This provision limits the effects of a choice of law in the sense that the choice may not deprive the employee of the protection afforded to him by the mandatory provisions of the law that would have applied in the absence of a choice. It is generally accepted that the law that is most favourable to the employee merits application. The determination of this preferential law requires a comparison between the chosen law and the law that would have applied in the absence of such a choice. The article examines the method of comparison used throughout Dutch case law which shows that a preferential law approach is rarely applied. Instead, the majority of judgments apply the mandatory provisions of the objectively applicable, Dutch, law without further explanation. Since the application of the preferential law approach seems to be plagued by ambiguity, this article questions the desirability and practical feasibility of the comparison between the chosen law and the mandatory provisions of the law that would have applied in the absence of such a choice.

 

L.C.J. van Apeldoorn, Erkenning van internationale rechtspersonen in het Nederlandse privaatrecht / p. 274-291

This article examines the grounds for the recognition of the legal personality of international legal persons in Dutch private law, focussing in particular on foreign states and international organizations. Based on an analysis of the decision of the Dutch Hoge Raad (Supreme Court) in UNRRA/Daan, it is argued that the legal personality of international organizations is recognised by means of the (analogous) application of a rule, codified in Article 10:119 of the Dutch Civil Code, according to which the legal personality of a corporation depends on its personal law. When considering the personal law of international organisations, which is public international law including the terms of the founding treaty, decisive is not whether the organisation is an international legal person, but whether it is granted, on the basis of public international law, legal personality in the legal orders of its member states. The rule governing the recognition of the legal personality of international organisations is not applicable to foreign states because public international law does not imply or require that states are afforded legal personality in municipal law. Rather, it is argued, the legal personality of foreign states is recognised on the basis of an unwritten rule of Dutch private international law, originating in international comity, that attributes legal personality to foreign states. The application of this rule coincides in practice with the application of another rule also originating in comity, requiring as a matter of public international law that foreign states are granted standing to be party to legal proceedings before municipal courts.

 

Okoli, An analysis of the Nigerian Court of Appeal’s decisions on foreign choice of court agreements in the year 2020 / p. 292-305

In Nigeria valid commercial contracts between parties are treated as sacrosanct and binding by Nigerian courts. It is however uncertain (unlike in the European Union) whether a valid foreign choice of court agreement, which is a term of the parties’ contract, will be enforced by Nigerian courts. In this connection, the decisions of Nigerian courts are not consistent. Nigerian courts have applied three approaches to the enforcement of foreign choice of court agreements – ouster clauses, the Brandon test, and the contractual approach. This article analyses the approach of Nigerian appellate courts to the enforcement of foreign choice of court agreements in light of three Court of Appeal decisions delivered in the year 2020.

 

latest phds, summary: Stuij, Iura novit curia en buitenlands recht. Een rechtsvergelijkend en Europees perspectief (dissertatie Erasmus Universiteit Rotterdam, 2021) (samenvatting proefschrift) / p. 306-311

This contribution is a short summary of a PhD thesis defended at Erasmus School of Law on April 29th, 2021, on the legal maxim iura novit curia in relation to the application of foreign law in civil proceedings. The thesis is a result of a comparative research into Dutch, German and English law, as well as European law. It analyses, evaluates and recommends several approaches to the problem of foreign law in civil litigation. This contribution discusses, inter alia, the method of the thesis including its comparative approac