Conflictoflaws

A conference for a forthcoming Elgar Research Handbook on Extraterritoriality and International Law. The conference
will consist of a series of workshop panels, with the public being able to watch the discussions through a live webinar.
Opportunities will exist for audience Q&A.

Further information and registration can be found here: https://law.indiana.edu/news-events/lectures-events/extra.html

Hosted by:
Cedric Ryngaert
Utrecht University (Utrecht Centre for Accountability and Liability Law)

Austen Parrish
Indiana University Maurer School of Law

Day One
Wednesday, September 15

Welcome and Opening Remarks (8:15-8:30 am ET; 2:15-2:30 pm CET
Cedric Ryngaert, Professor of Public International Law, Utrecht University School of Law, Utrecht Centre for Accountability and Liability Law
Austen Parrish, Dean and James H. Rudy Professor of Law, Indiana University Maurer School of Law

Workshop #1 (8:30 am-10:00 am ET; 2:30-4:00 pm CET)
Moderator: Luca Pasquet, Assistant Professor, Utrecht University School of Law
1. Cedric Ryngaert, Professor of Public International Law, Utrecht University School of Law
International Jurisdictional Law
2. Michael Wood, Barrister, Twenty Essex Chambers & UN International Law Commission
Omri Sender, Advisor and Litigator in Public International Law
Extraterritorial Jurisdiction and Customary International Law
2. Tonya Putnam, Research Scholar, Arnold A. Salzman Institute of War and Peace Studies, Columbia
University
Political Science and Extraterritoriality
3. Maia Pal, Senior Lecturer in International Relations, Oxford Brookes University
Extraterritoriality and International Relations
4. Branislav Hock, Senior Lecturer in Economic Crime, Institute of Criminal Justice Studies, University of Portsmouth
Extraterritorial Corporate Crime Policing: Between Contestation and Cooperation

Workshop #2 (10:15-11:45 am ET; 4:15-5:45 pm CET)
Moderator: Francois Kristen, Professor, Utrecht University School of Law
1. Ellen Gutterman, Associate Professor, York University
Extraterritoriality in the Global Governance of Corruption: Legal and Political Perspectives
2. Anthony Colangelo, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, SMU Dedman School of Law
Criminal Extraterritoriality
3. Christian Tietje, Professor of Law, Martin-Luther University of Halle-Wittenberg
Cristina Lloyd, Lecturer and Senior Researcher, Martin-Luther University of Halle-Wittenberg
Sanctions
4. Matthias Lehmann, Professor of Law, University of Vienna
Extraterritoriality in Financial Law
5. Magnus Killander, Professor of Human Rights Law, University of Pretoria
Africa and Extraterritoriality

Day Two
Thursday, September 16

Workshop #3 (8:30 am-10:00 am ET; 2:30-4:00 pm CET)
Moderator: Hannah Buxbaum, Vice President for International Affairs, Indiana University; John E. Schiller
Chair in Legal Ethics and Professor of Law, Indiana University Maurer School of Law
1. Dan Jerker B. Svantesson, Professor, Bond University
Global Speech Regulation
2. Asaf Lubin, Associate Professor of Law, Indiana University Maurer School of Law
Cybersecurity
3. Christopher Kuner, Professor of Law and Co-chair of the Brussels Privacy Hub, Free University of Brussels
Data and Extraterritoriality
4. Timothy Holbrook, Vice Provost for Faculty Affairs and Asa Griggs Candler Professor of Law, Emory Law
Intellectual Property
5. Marek Martyniszyn, Interim Head of School, Senior Lecturer in Law, Queen’s University Belfast Law School
Antitrust and Competition Law

Workshop #4 (10:15-11:45 am ET; 4:15-5:45 pm CET)
Moderator: Kish Parella, Professor of Law, Washington and Lee University School of Law
1. William S. Dodge, John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law, UC Davis School of Law
Extraterritoriality in Statutes and Regulations
2. Yanbai Andrea Wang, Assistant Professor, University of Pennsylvania Carey Law School
Judicial Extraterritoriality
3. Matthew Garrod, Senior Lecturer in Law and Associate Tutor, University of Sussex
The Expansion of Treaty-Based Extraterritorial Criminal Jurisdiction
4. Ioanna Hadjiyianni, Lecturer in Law, University of Cyprus
Environmental Law
5. Peer Zumbansen, Professor of Business Law, McGill Law
Law’s Multiple Geographies

Day Three
Friday, September 17

Workshop #5 (8:30 am-10:00 am ET; 2:30-4:00 pm CET)
Moderator: Shruti Rana, Assistant Dean for Curricular and Undergraduate Affairs and Professor of International Law Practice, Indiana University, Hamilton Lugar School of Global and International Studies
1. Régis Bismuth, Professor, SciencesPo Law School
The European Experience
2. Danielle Ireland-Piper, Associate Professor, Bond University
Extraterritoriality in Commonwealth Nations: Common Law Perspectives from Australia, India, the United Kingdom, and New Zealand
3. Mari Takeuchi, Professor, Kobe University
Asian Experience
4. Alejandro Chehtman, Professor, University Torcuato Di Tella Law School
Extraterritoriality and Latin America
5. Cassandra Burke Robertson, John Deaver Drinko – BakerHostetler Professor of Law and Director of the Center for Professional Ethics, Case Western Reserve University School of Law
The United States Experience

Workshop #6 (10:15-11:45 am ET; 4:15-5:45 pm CET)
Moderator: Kushtrim Istrefi, Assistant Professor, Utrecht University School of Law
1. Samantha Besson, Professor, Collège de France
The Extraterritoriality of Human Rights
2. Chimène Keitner, Alfred and Hanna Fromm Professor of International Law, UC Hastings Law
The Extraterritorial Rights of Refugees
3. Sara L Seck, Associate Professor of Law, Yogis and Keddy Chair in Human Rights Law, and Associate Dean for Research, Dalhousie University
Emerging Issues and Practices
4. Ralf Michaels, Director Max Planck Institute for Comparative and International Private Law
Domestic Courts, Global Challenges
5. Austen Parrish, Dean & James H. Rudy Professor of Law, Indiana University Maurer School of Law
Sovereignty, Self-Determination, and Non-Intervention

Conference/Workshop Closing (11:45-noon ET; 5:45-6:00 pm CET)

Registration:
The Conference will be held in a workshop format and streamed as a Webinar. To register please use this link: https://iu.zoom.us/webinar/register/WN_Dbe536vPRdCQMgjCJTco6w

University of Rijeka, Faculty of Law is announcing this year’s call for applications to the Rijeka Doctoral Conference: RIDOC 2021. Open to any legal or related topic od doctoral research, the conference traditionally hosts at least one session in private international law. Applications should be sent to ridoc@pravri.hr before the end of August. The conference is planned to take place on 10 December 2021 in the hybrid format, while the abstracts will be published in an e-book.

The series of seminars are organised by the Ambrosio L. Gioja Research Institute of the University of Buenos Aires, the Center for Legal and Social Research of the National University of Córdoba (Argentina) and the National Council for Scientific and Technical Research (CONICET). The seminars will take place each Friday from 16 July to 27 August 2021 at 17:00 (Buenos Aires time) / 22:00 CEST time (Central European Summer Time).

The topics that will be discussed are very diverse, ranging from vaccination contracts to migration and Private International Law. The series of seminars will end on 27 August 2021 with a summary of the findings, coordinated by Candela Villegas and Luciana Scotti.

I am proud to announce that several AMEDIP members will be speaking at these seminars.

The seminars are free of charge but registration is required. Please click here to register.

Certificates of participation will be issued and certifications of approval will also be issued but only to those who prepare a final paper.

For more information, click here (Facebook page). The platform that will be used is Zoom. Any questions may be directed to seminario.gioja.cijs@gmail.com.

Since 2016, the European General Data Protection Regulation has been one of the most popular topics of discussion, academic and otherwise. While the PIL discussion has mostly focused on the unilateral conflicts rule in Article 3 of the Regulation, which defines its “external” scope of application, some scholars – like Martina Mantovani on this blog – have pointed out that despite providing a unified regime that applies across the Union, the Regulation’s repeated deference of specific questions to the laws of the Member States still requires a certain degree of “internal” coordination. On this aspect of the Regulation, Merlin Gömann has just published an impressive volume of over 800 pages (in German), offering what easily constitutes the most comprehensive treatment of the problem to date.

In essence, Gömann tries to work out how (and by whom) this coordination can (and must) be achieved according to primary EU law. He comes to the conclusion that the respective scopes of the national laws implementing the Regulation cannot be determined by unilateral conflict rules of the Member States but need to be derived from the Regulation itself. Accordingly, the conflict rules contained in many national laws implementing the Regulation are in violation of primary EU law (also explained in some more detail here).

According to the author, the necessary coordination between national laws must instead be achieved by applying Art. 3 GDPR by analogy. Gömann carefully explains the consequences of his proposition on more than 200 pages – including the somewhat surprising fact that national data-protection authorities might be required to apply the substantive data-protection laws of another Member State. And if this weren’t enough of an academic achievement already, Gömann concludes his book by also developing specific propositions on how the GDPR could be reformed in order to provide a proper system of coordination between the residual national laws.

According to a press release, the EU Commission has proposed for the EU to join the 2019 Hague Judgments Convention. So far, the Convention has been signed, but not yet ratified, by three states (Israel, Ukraine, Uruguay).

The full statement reads as follows:

International Justice: The Commission proposes for the EU to join the Hague Judgments Convention

Today, the Commission has adopted a proposal for the EU’s accession to the Hague Judgement Convention, an international treaty that facilitates the recognition and enforcement of judgements in civil and commercial matters in foreign jurisdictions. Didier Reynders, Commissioner for Justice, said: “Having one’s rights enforced in a country outside of the EU can be very cumbersome, both for private persons and for businesses. The EU joining the Hague Judgments Convention would improve legal certainty and save citizens and companies time and money. The average length of proceedings would decrease considerably.” Currently, EU citizens and businesses that want to have a judgment given in the EU to be recognised and enforced in a non-EU country face numerous legal issues due to the absence of an international framework. This legal uncertainty as well as the associated costs may cause businesses and citizens to give up on pursuing their claims or decide not to engage in international dealings altogether. The Convention on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, adopted in July 2019, offers a comprehensive legal framework with clear rules as to the recognition and enforcement of foreign judgments. The Commission’s proposal will now have to be adopted by the Council, with the European Parliament’s consent, for the EU to join the Convention. More information on the International Cooperation on Civil Justice is available here. (For more information: Christian Wigand – Tel.: +32 229 62253; Katarzyna Kolanko – Tel.: +32 229 63444; Jördis Ferroli – Tel.: +32 229 92729)

 

Problemy Prawa Prywatnego Mi?dzynarodowego is the leading Polish periodical in the field of private international law. While most of its articles are in Polish, Vol. 26 (2020) offers a treat to those of us not fluent in Polish: a collection of articles, most in English (one in French, three in Polish), by leading European scholars, and dedicated to one topic: EU Regulation 650/12 of 4 July 2012, the Succession Regulation. The contributions emerge from a conference held in Katowice in 2019 (a conference report is included). What makes the treat particularly sweet: the whole issue, as well as the individual articles, are available online!

Here is the table of contents:

 

Foreword Maciej Szpunar 7-8 DOI: https://doi.org/10.31261/PPPM.2020.26.01   PDF (English) STUDIA La réserve héréditaire dans le re`glement 650/2012 sur les successions Paul Lagarde 9-14 DOI: https://doi.org/10.31261/PPPM.2020.26.02   PDF (Français (France)) “Member States” and “Third States” in the Succession Regulation Jürgen Basedow 15-25 DOI: https://doi.org/10.31261/PPPM.2020.26.03   PDF (English) Application of the Succession Regulation by German courts — Selected Issues Christian Kohler 27-43 DOI: https://doi.org/10.31261/PPPM.2020.26.04   PDF (English) The Notion of “Court” under the Succession Regulation Michael Wilderspin 45-56 DOI: https://doi.org/10.31261/PPPM.2020.26.05   PDF (English) The Capacity and the Quality of Heir. Possible Interaction with Preliminary Questions Stefania Bariatti 57-70 DOI: https://doi.org/10.31261/PPPM.2020.26.06   PDF (English) The Regulation on Matrimonial Property and Its Operation in Succession Cases — Its Interaction with the Succession Regulation and Its Impact on Non-participating Member States Andrea Bonomi 71-89 DOI: https://doi.org/10.31261/PPPM.2020.26.07   PDF (English) The Influence of Bilateral Treaties with Third States on Jurisdiction and Recognition of Decisions in Matters on Succession — Polish Perspective Piotr Rylski 91-105 DOI: https://doi.org/10.31261/PPPM.2020.26.08   PDF (English) The Principle of a Single Estate and Its Role in Delimiting the Applicable Laws Krzysztof Pacu?a 107-123 DOI: https://doi.org/10.31261/PPPM.2020.26.09   PDF (English) Highlights and Pitfalls of the EU Succession Regulation Maksymilian Pazdan, Maciej Zachariasiewicz 125-187 DOI: https://doi.org/10.31261/PPPM.2020.26.10   PDF (English) Prawo w?a?ciwe dla czynno?ci prawnych zwi?zanych z zarz?dem sukcesyjnym Jacek Górecki 189-208 DOI: https://doi.org/10.31261/PPPM.2020.26.11   PDF GLOSY Glosa do postanowienia S?du Najwy?szego z dnia 23 marca 2016 r., sygn. akt: III CZP 112/15 Agata Kozio? 209-221 DOI: https://doi.org/10.31261/PPPM.2020.26.12   PDF Kolizyjnoprawna problematyka skuteczno?ci przelewu wierzytelno?ci wobec osób trzecich Glosa do wyroku Trybuna?u Sprawiedliwo?ci Unii Europejskiej z dnia 9 pa?dziernika 2019 r. w sprawie BGL BNP Paribas SA c/a TeamBank AG Nürnberg (C?548/18) Witold Kurowski 223-236 DOI: https://doi.org/10.31261/PPPM.2020.26.13   PDF VARIA Honorary Doctorate for Professor Paul Lagarde and the meeting of the European Group for Private International Law Maciej Szpunar, Maciej Zachariasiewicz, Krzysztof Pacu?a 237-240 DOI: https://doi.org/10.31261/PPPM.2020.26.14   PDF (English) Report from the conference ”Application of the Succession Regulation in the EU Member States”, Katowice 12 September 2019 Krzysztof Pacu?a 241-252 DOI: https://doi.org/10.31261/PPPM.2020.26.15   PDF (English)

 

On Thursday, 15 July from 15.30-17.30 CET the seminar European Civil Justice in Transition: Past, Present & Future will take place, organized by Erasmus School of Law in the context of the ERC project Building EU Civil Justice. You can register here.

In this last seminar of a series of six, key experts on European civil justice will share their views on current and future issues, including digitisation, collective redress, the Brussels I-bis reform, private and public justice, the funding of civil justice and the role of civil justice in today’s society.

Thursday, 15 July (15.30-17.30 CET) – Program

15.15 Waiting room opens

15.30 Opening

15.35-15.45 Xandra Kramer (Erasmus University Rotterdam/Utrecht University)

Introduction – Past, present and future: Highlights of European civil justice

15.45-16.00 Burkhard Hess (Max Planck Institute Luxembourg )

Reforming the Brussels Ibis Regulation in January 2022 – taking up the next reform step

16.00-16.15 John Sorabji (University College London; Barrister, 9 St John Street)

Digitisation and the development of Integrated Dispute Resolution

16.15-16.30 Eva Storskrubb (Uppsala University/Erasmus University Rotterdam)

Trust and Quality in Civil Justice

16.30-16.45 Alan Uzelac (University of Zagreb)

It’s better to burn out than to fade away: is civil justice here to stay?

16.45-17.30 Comments & discussion (moderated by Xandra Kramer and Alexandre Biard, Erasmus University Rotterdam)

 

The last issue of the Revue Critique de Droit International Privé has been released. It contains eight articles and several case notes.

The editorial (authored by Horatia Muir Watt, Dominique Bureau and Sabine Corneloup) and five of the articles deal with the reserved share (réserve héréditaire) in international successions. These five articles are authored by: Paul Lagarde (« Une ultime (?) bataille de la réserve héréditaire »), Cécile Pérez (« Quelques observations relatives à la réserve héréditaire dans le projet de loi confortant le respect des principes de la République »), Diane Le Grand de Belleroche (« Contre le retour du droit de prélèvement en droit français : une vue de la pratique du droit international »), Suzel Ramaciotti (« Le prélèvement compensatoire du projet d’article 913 du code civil à l’épreuve des exigences européennes et constitutionnelles »), and Nathalie Joubert (« Droit de prélèvement, réserve héréditaire, protection des héritiers contre les discriminations, quelle méthode ? »).

The sixth article, authored by Christelle Chalas and Horatia Muir Watt deals with the international jurisdiction of courts in matters relating to the environnemental responsibility of multinational companies.

In the seventh article, Vincent Richard presents the recast of the regulation on the service of judicial and extrajudicial documents.

The eighth article, by Christine Budzikiewicz, discusses the reform of international adoption law in Germany.

A full table of contents is available here.

In recent years, the debate surrounding consensual justice and party autonomy has received increasing attention in the national and international arenas and has raised a broad array of questions. In the pressing need to observe this phenomenon from different perspectives lies the rationale behind a newly founded biannual journal, Giustizia consensuale. The journal, founded and directed by Prof. Silvana Dalla Bontà and Prof. Paola Lucarelli, features contributions in both Italian and English.

By adopting an interdisciplinary and holistic approach, the journal aims to investigate the meaning of consensual justice, its relation with judicial justice, and the potential for integrating – rather than contrasting – these two forms of justice. This investigation is premised on the relationship between justice and private autonomy as well as forms of integrative, participatory, and restorative justice. By being particularly suited for meeting the needs of an increasingly complicated and multi-faceted society, these forms of justice ultimately promote social cohesion and reconciliation. Against this backdrop, Giustizia consensuale strives to make a valid contribution to the discourse on conflict and the meaning of justice by fostering an interdisciplinary dialogue which encompasses both theory and practice.

The first issue of Giustizia Consensuale has just been released and it features:

Silvana Dalla Bontà (University of Trento), Giustizia consensuale (‘Consensual Justice – A Foreword’; in Italian)

Paola Lucarelli (University of Firenze), Mediazione dei conflitti: una spinta generosa verso il cambiamento (Conflict Mediation: A Push for Cultural Change; in Italian)

From the Italian Recovery and Resilience Plan to the guidelines of the Italian Ministry of Justice, the urgency of a reform to strengthen out-of-court dispute resolution procedures clearly emerges. Recovery and resilience become fundamental objectives. Conflict mediation is the path chosen to achieve social cohesion and reconciliation. Promoting and strengthening this dispute resolution mechanism is important not only to reduce the judicial backlog, but also to empower the parties to self-tailor the solution of their conflict with the assistance of their attorneys. By fostering responsibility, self-determination, awareness and trust, mediation makes citizens and professionals protagonists in the process of change that combines judicial and consensual justice.

Francesco P. Luiso (University of Pisa), La «proposta» del mediatore (The Mediator’s ‘Dispute Settlement Offer’; in Italian)

The Italian Legislative Decree No. 28 of 4 March 2010 – implementing the Directive 2008/52/EC – enables, in certain conditions, the mediator to submit a settlement offer to the conflicting parties. In the case that the mediation fails, the judge, in the subsequent court proceedings, might sanction the non-accepting party when allocating procedural costs. Nonetheless, the aforementioned Legislative Decree does not compel the mediator to submit such a settlement offer. However, the mediation rules of some institutions oblige the mediator to make a settlement offer to the parties. Against this background, when ordering the parties to attempt mediation, some courts require them to file their mediation application with a mediation institution allowing the mediator to submit a settlement offer to the parties. In this article, the author argues that these court orders are against the above-mentioned Legislative Decree. In fact, this does not permit the judge to make any particular determination regarding the mediation procedure, the parties, or the mediator themselves. Furthermore, the author underlines how the judge could never take the mediator’s settlement offer into consideration in the pending proceedings. While the judge grounds their decision on what is right and what is wrong, the mediator’s settlement offer revolves around the needs and interests of the conflicting parties, thus impeding any comparison between their contents.

Antonio Briguglio (University of Rome ‘Tor Vergata’), Conciliazione e arbitrato. Conciliazione nell’arbitrato. Appunti sparsi fra diritto, psicologia e prassi (Conciliation and Arbitration. Conciliation in Arbitration. Notes on Law, Psychology, and Practice; in Italian)

The article deals with the relationship between conciliation and arbitration within the overall ADR system. It first analyses the conceptual, legal and systematic differences between conciliation and arbitration, with references to some areas of partial overlap (such as, for example, the one now opened by the Singapore Convention of 2019). The author then takes into consideration the parties’ and adjudicators’ different approaches to conciliation both in in-court proceedings and arbitration. Subsequently, the attention is focused on the attempt of conciliation in the course of the arbitral proceedings; on the so-called multi-step clauses that provide for a mandatory attempt of conciliation before the commencement of arbitration; and on the ‘award by consent’ in the practice of international arbitration.

Neil Andrews (University of Cambridge), Procedure, Party Agreement, and Contract (in English)

In this piece the author considers three points of interaction between agreement and procedure. (1) The parties might consensually choose the applicable procedure, notably the choice between (a) judicial proceedings and (b) arbitration. If they have chosen (a), the parties might stipulate which court and in which jurisdiction the matter will be litigated. Having chosen instead (b) arbitration, the parties will normally make explicit the ‘seat’ (London, Milan, New York, etc) and the size of the arbitral tribunal (one, three, five, etc). Also falling within (1), there is possibility that the parties will agree to impose on themselves preliminary ‘negotiation agreements’ and/or mediation agreements. (2) The parties can take a further step and specify or modify the elements of the relevant formal process (whether that process is court proceedings or arbitration). This modification of the default elements of the procedure will involve a ‘bespoke’ or ad hoc agreement, rather than simply adopting national or institutional procedural rules. However, this is less common. Most parties adopt without modification the relevant procedure ‘off the peg’. (3) Settlement is the consensual disposal or narrowing of the dispute. In practice, this is the most important way in which agreement and procedure interact. Settlement can occur before or after court or arbitration proceedings have commenced. It is also possible that settlement might occur even after the first-instance judgment has been obtained, for example, when appeal or enforcement proceedings are pending.

Margherita Ramajoli (University of Milan), Per una giustizia amministrativa alternativa con particolare (anche se non esclusivo) riguardo alle transazioni pubblicistiche (For an Alternative Administrative Justice: Focusing on Public Dispute Settlements; in Italian)

The use of alternative dispute resolution mechanisms in public interest litigation brings both substantial and procedural advantages. They may improve the quality of public decision-making, foster the adoption of shared solutions, re-establish dialogue between parties whose relations are bound to last over time, contribute to moralisation by making clear agreements otherwise not intended to emerge, and finally, make the administrative judicial review more efficient by directing the demand for justice elsewhere. In addition, alternative dispute resolution mechanisms are in tune with the current changes in administrative law; there is a deep link between droit souple and justice douce, between soft law and ADR, between non-traditional substantive law and alternative administrative judicial review. However, alternative justice is a phenomenon not yet sufficiently developed in public litigation, because of some debated issues in its use. Specifically, it is not easy to harmonise the very purpose of ADR to definitively settle a dispute with the perpetual protection of public interest institutionally entrusted to administrative authorities, as demonstrated by how the latter use the settlement. The introduction of a framework law on ADR in public interest litigation could solve some of the most dramatic issues, naturally maintaining the indispensable flexibility.

Teresa Arruda Alvim (Pontifícia Universidade Católica de São Paulo) and Márcio Bellocchi (Universidade de São Paulo), Mediazione. Il frutto di un buon esercizio del diritto (Mediation. The Result of a Mindful Exercise of Rights; in Italian)

In the last few decades, even civil law jurisdictions have witnessed an increase in the promotion of alternative dispute resolution. Among various reasons for its adoption, ADR affords the parties the possibility to self-tailor a solution to their conflict while significantly diminishing the case overload of the judiciary. Nevertheless, just as varied are the obstacles to the diffusion of ADR, ranging from the lack of preparation of mediators to the traditional adversarial approach of attorneys. The authors examine each of these profiles in the perspective of the Brazilian legal system, analysing the reasons behind the promotion of ADR, its practical implications, and the future outlook on a multi-door justice.

Colin Rule (University of Stanford), Reinventing Justice with Online Dispute Resolution (in English)

Online Dispute Resolution (ODR) is the study of how to use technology to help parties resolve their disputes. Originally created to help e-Commerce companies build trust with their users, ODR is now being integrated into the courts to expand access to justice and reduce costs. With the expansion of artificial intelligence and machine learning, ODR has the potential to play a major role in the justice systems of the future, but there are many questions that still need to be answered. This article outlines the need for ODR, provides a short history of its development, and describes some of the challenges that could accompany its expansion.

Silvana Dalla Bontà (University of Trento), Una giustizia «co-esistenziale» online nello spazio giuridico europeo? Spunti critici sul pacchetto ADR-ODR per i consumatori (‘Co-Existential’ Online Justice within the EU Judicial Area? Some Constructive Criticism on the Consumer ADR/ODR Package; in Italian)

Since the 1990s, the European Community, now the European Union, has shown particular regard to the matter of extra-judicial settlement of civil and commercial disputes. The European Union recognized the added value brought by alternative dispute resolution mechanisms in answering the problems posed by cross-border litigation and thus facilitating the creation of the Single Market. The Community’s attention first focused on consumer disputes (Recommendations 98/257/EC and 2001/310/EC); it subsequently extended its reach to all civil and commercial disputes (Directive 2008/52/EC); ultimately, it reverted its focus back to consumer disputes with the Directive on consumer Alternative Dispute Resolution (ADR) and the Regulation on consumer Online Dispute Resolution (ODR),  both adopted in 2013. This article proposes an in-depth analysis of the objectives, the scope, and the application of the two above-mentioned legal acts composing the so-called ADR/ODR package for consumers, highlighting its strengths and weaknesses. In particular, the discussion focuses on the ODR Platform for the resolution of consumer-to-business disputes launched by the European Union in 2016. In reviewing its functioning through the statistical data collected by the European Union, the author inquires whether the ODR Platform provides for the creation of a ‘co-existential justice’ in the European legal area or whether other complementary instruments should be implemented to grant a high standard of protection for consumers as the European Treaties impose.

 

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

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

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

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

(This post is provided by Zeyu Huang, who is an associate attorney of Hui Zhong Law Firm based in Shenzhen. Mr. Huang obtained his LLB degree from the Remin University of China Law School. He is also a PhD candidate & LLM at the Faculty of Law in University of Macau. The author may be contacted at the e-mail address: huangzeyu@huizhonglaw.com)

When confronted with international parallel proceedings due to the existence of a competent foreign court having adjudicative jurisdiction, the seized foreign court located in common law jurisdictions seems to see it as no offence to Chinese courts by granting anti-suit injunctions to restrain Chinese proceedings. This is because the common law court believes that “An order of this kind [anti-suit injunction] is made in personam against a party subject to the court’s jurisdiction by way of requiring compliance with agreed terms. It does not purport to have direct effect on the proceedings in the PRC. This court respects such proceedings as a matter of judicial comity”. [1] However, the fact that the anti-suit injunction is not directly targeted at people’s courts in the PRC does not prevent Chinese judges from believing that it is inappropriate for foreign courts to issue an anti-suit injunction restraining Chinese proceedings. Instead, they would likely view such interim order as something that purports to indirectly deprive the party of the right of having access to Chinese court and would unavoidably impact Chinese proceedings.
The attitude of Chinese courts towards the anti-suit injunction – a fine-tuning tool to curb parallel proceedings – has changed in recent years. In fact, they have progressively become open-minded to resorting to anti-suit injunctions or other similar orders that are issued to prevent parties from continuing foreign proceedings in parallel. Following that, the real question is whether and how anti-suit injunction is compatible with Chinese law. Some argued that Article 100 of the PRC CPL provides a legal basis for granting injunctions having similar effects with anti-suit injunction at common law. [2] It provides that:
“The people’s court may upon the request of one party to issue a ruling to preserve the other party’s assets or compel the other party to perform certain act or refrain from doing certain act, in cases where the execution of the judgment would face difficulties, or the party would suffer other damages due to the acts of the other party or for other reasons. If necessary, the people’s court also could make a ruling of such preservative measures without one party’s application.” [3]
Accordingly, Chinese people’s court may make a ruling to limit one party from pursuing parallel foreign proceedings if such action may render the enforcement of Chinese judgment difficult or cause other possible damages to the other party.
In maritime disputes, Chinese maritime courts are also empowered by special legislation to issue maritime injunctions having anti-suit or anti-anti-suit effects. Article 51 of the PRC Maritime Special Procedure Law provides that the maritime court may upon the application of a maritime claimant issue a maritime injunction to compel the respondent to do or not to do certain acts in order to protect the claimant’s lawful rights and interests from being infringed. [4] The maritime injunction is not constrained by the jurisdiction agreement or arbitration agreement as agreed upon between the parties in relation to the maritime claim. [5] In order to obtain a maritime injunction, three requirements shall be satisfied – firstly, the applicant has a specific maritime claim; secondly, there is a need to rectify the respondent’s act which violates the law or breaches the contract; thirdly, a situation of emergency exists in which the damages would be caused or increased if the maritime injunction is not issued immediately. [6] Like the provision of the PRC CPL, the maritime injunction issued by the Chinese maritime court is mainly directed to mitigate the damages caused by the party’s behaviour to the other parties’ relevant rights and interests.
In Huatai P&C Insurance Corp Ltd Shenzhen Branch v Clipper Chartering SA, the Maritime Court of Wuhan City granted the maritime injunction upon the claimant’s application to oblige the respondent to immediately withdraw the anti-suit injunction granted by the High Court of the Hong Kong SAR to restrain the Mainland proceedings. [7] The Hong Kong anti-suit injunction was successfully sought by the respondent on the grounds of the existence of a valid arbitration agreement. [8] However, the respondent did not challenge the jurisdiction of the Mainland maritime court over the dispute arising from the contract of carriage of goods by sea. Therefore, the Maritime Court of Wuhan City held that the respondent had submitted to its jurisdiction. As a result, the application launched by the respondent to the High Court of the Hong Kong SAR for the anti-suit injunction to restrain the Mainland Chinese proceedings had infringed the legitimate rights and interests of the claimant. In accordance with Article 51 of the PRC Maritime Special Procedure Law, a Chinese maritime injunction was granted to order the respondent domiciled in Greece to withdraw the Hong Kong anti-suit injunction (HCCT28/2017). [9] As the maritime injunction in the Huatai Property case was a Mainland Chinese ruling issued directly against the anti-suit injunction granted by a Hong Kong court, it is fair to say that if necessary Chinese people’s court does not hesitate to issue a compulsory injunction “which orders a party not to seek injunction relief in another forum in relation to proceedings in the issuing forum”. [10] This kind of compulsory injunction is also called ‘anti-anti-suit injunction’ or ‘defensive anti-suit injunction’. [11]
When it comes to civil and commercial matters, including preserving intellectual property rights, the people’s court in Mainland China is also prepared to issue procedural orders or rulings to prevent the parties from pursuing foreign proceedings, similar to anti-suit injunctions or anti-anti-suit injunction in common law world. In Guangdong OPPO Mobile Telecommunications Corp Ltd and its Shenzhen Branch v Sharp Corporation and ScienBiziP Japan Corporation, the plaintiff OPPO made an application to the seized Chinese court for a ruling to preserve actions or inactions.[12] Before and after the application, the defendant Sharp had brought tort claims arising from SEP (standard essential patent) licensing against OPPO by commencing several parallel proceedings before German courts, a Japanese court and a Taiwanese court. [13] In the face of foreign parallel proceedings, the Intermediate People’s Court of Shenzhen City of Guangdong Province rendered a ruling to restrain the defendant Sharp from pursing any new action or applying for any judicial injunction before a Chinese final judgment was made for the patent dispute. [14] The breach of the ruling would entail a fine of RMB 1 million per day. [15] Almost 7 hours after the Chinese ‘anti-suit injunction’ was issued, a German ‘anti-anti-suit injunction’ was issued against the OPPO. [16] Then, the Shenzhen court conducted a court investigation to the Sharp’s breach of its ruling and clarified the severe legal consequences of the breach. [17] Eventually, Sharp choose to defer to the Chinese ‘anti-suit injunction’ through voluntarily and unconditionally withdrawing the anti-anti-suit injunction granted by the German court. [18] Interestingly enough, Germany, a typical civil law country, and other EU countries have also seemingly taken a U-turn by starting to issue anti-anti-suit injunctions in international litigation in response to anti-suit injunctions made by other foreign courts, especially the US court. [19]
In some other IP cases involving Chinese tech giants, Chinese courts appear to feel more and more comfortable with granting compulsory rulings having the same legal effects of anti-suit injunction and anti-anti-suit injunction. For example, in another seminal case publicized by the SPC in 2020, Huawei Technologies Corp Ltd (“Huawei”) applied to the Court for a ruling to prevent the respondent Conversant Wireless Licensing S.A.R.L. (“Conversant”) from further seeking enforcement of the judgment rendered by the Dusseldorf Regional Court in Germany. [20] Before the application, a pair of parallel proceedings existed, concurrently pending before the SPC as the second-instance court and the Dusseldorf Regional Court. On the same date of application, the German regional court delivered a judgement in favour of Conversant. Within 48 hours after receiving the Huawei’s application for an anti-suit injunction, the SPC granted the injunction to prohibit Conversant from applying for enforcement of the German judgment; if Conversant failed to comply with the injunction, a fine (RMB 1 million per day) would be imposed, accumulating day by day since the date of breach. [21] Conversant applied for a reconsideration of the anti-suit injunction, and it was however rejected by the SPC eventually. [22] The SPC’s anti-suit injunction against the German regional court’s decision compelled both parties to go back to the negotiating table, and the dispute between the two parties striving for global parallel proceedings was finally resolved by reaching a settlement agreement. [23]
The SPC’s injunction in Huawei v. Conversant is commended as the very first action preservation ruling having the “anti-suit injunction” nature in the field of intellectual property rights litigation in China, which has prematurely established the Chinese approach to anti-suit injunction in judicial practice. [24] It is believed by the Court to be an effective tool to curb parallel proceedings concurrent in various jurisdictions across the globe. [25] We still wait to see Chinese court’s future approach in other civil and commercial matters to anti-suit injunction or anti-anti-suit injunction issued by itself as well as those granted by foreign courts.

———-

1. See Impala Warehousing and Logistics (Shanghai) Co Ltd v Wanxiang Resources (Singapore) Pte Ltd [2015] EWHC 811, para.144.
2. See Liang Zhao, ‘Party Autonomy in Choice of Court and Jurisdiction Over Foreign-Related Commercial and Maritime Disputes in China’ (2019) 15 Journal of Private International Law 541, at 565.
3. See Article 100, para.1 of the PRC CPL (2017).
4. See Article 51 of the PRC Special Maritime Procedure Law (1999).
5. See Article 53 of the PRC Special Maritime Procedure Law (1999).
6. See Article 56 of the PRC Special Maritime Procedure Law (1999).
7. See Huatai Property & Casualty Insurance Co Ltd Shenzhen Branch v Clipper Chartering SA (2017) E 72 Xing Bao No.3 of the Maritime Court of Wuhan City.
8. See HCCT 28/2017 of the High Court of the Hong Kong SAR.
9. See (2017) E 72 Xing Bao No.3.
10. See Andrew S. Bell, Forum Shopping and Venue in Transnational Litigation (Oxford University Press 2003), at 196.
11. See ibid.
12. See (2020) Yue 03 Min Chu No.689-1.
13. See ibid.
14. See ibid.
15. See ibid.
16. See ibid.
17. See ibid.
18. See ibid.
19. See Greta Niehaus, ‘First Anti-Anti-Suit Injunction in Germany: The Costs for International Arbitration’ Kluwer Arbitration Blog, 28 February 2021.
20. See Huawei Technologies Corp Ltd and Others v Conversant Wireless Licensing S.A.R.L. (2019) Zui Gao Fa Zhi Min Zhong No.732, No.733, No.734-I.
21. See ibid.
22. See Conversant Wireless Licensing S.A.R.L. v Huawei Technologies Corp Ltd and Others, (2019) Zui Gao Fa Zhi Min Zhong No.732, No.733, No.734-II.
23. See Case No.2 of the “10 Seminal Intellectual Property Right Cases before Chinese Courts”, Fa Ban [2021] No.146, the General Office of the Supreme People’s Court.
24. See ibid.
25. See ibid.

Written by Ekaterina Pannebakker

On 1 July 2021, Switzerland, which is the depository of the Lugano Convention 2007, notified the Parties to the Convention of the EU’s refusal to give its consent to the UK’s accession to the Convention. The notification is available on the website of the Swiss Department of Foreign Affairs in several languages. It states the EU is not ‘in a position to give its consent to invite the United Kingdom to accede to the Lugano Convention’, quoting the note verbale received by the depository from the EU on 28 June 2021.

This is the final chord in the consideration of the UK’s after-Brexit application to accede to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Lugano, 2007. As previously reported on conflictoflaws (inter alia), the accession to the Convention is subject to the consent of all the current Parties. The EU’s refusal was expected, since the European Commission gave a negative advice to the European Parliament. Noteworthy is perhaps that the Convention does not limit the number of attempts a State can make to accede to the Convention. This means (theoretically) the UK can apply again in the future.

 

This Thursday AG Campos Sánchez-Bordona delivered his Opinion in the case IB, C-289/20. It is another request for a preliminary ruling addressing the issue of multiple places of residence. The recent take on this issue concerned the framework established by the Succession Regulation. In its judgment in the case E.E., C-80/19, the Court of Justice held the last habitual residence of the deceased, within the meaning of that regulation, must be established by the authority dealing with the succession in only one of the Member States.

In the case IB, C-289/20, the Court is invited to interpret the Brussels II bis Regulation in the context of a request for a preliminary ruling originating from the proceedings for a divorce.

The preliminary question reads as follows:

Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of [the Brussels II bis Regulation] that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?

In his Opinion, AG proposes to the Court to consider that under the Brussels II bis Regulation a spouse may have only one place of habitual residence (points 83 et 90). If, in fact, as the preliminary question presupposes, a spouse divides his life between two Member States, it has to be considered that he or she does not have a place of habitual residence within the meaning of Article 3 of the Regulation (point 98). If that leads ultimately to the situation where no forum within the EU can hear the case for a divorce, in order to remedy situations of denial of justice, the jurisdiction might be exceptionally attributed to the courts of one of the Member State where the spouse resides (points 100 and 101).

Instead of providing a summary of the elaborate analysis offered by the Opinion, it seems more meaningful to highlight some of its points.

At the outset, AG observes that the entry into force of the Regulation 2019/1111 will not affect the rules on jurisdiction of relevance for a divorce already provided for in the Brussels II bis Regulation (point 27).

He also seems to reject the idea that notion of ‘habitual residence’ should necessarily receive the same meaning among the EU private international law instruments that elevate the place of habitual residence to the role of a connecting factor (point 39). Scepticism regarding this idea is expressed on several occasions (see, for instance, point 50).

The subjective factor that corresponds to the intention of a spouse might come into play when identifying the place of habitual residence. According to AG, the criteria that normally characterize “habitual residence” may be supplemented – or even replaced – by the intentions of a spouse (point 66).

Under the Brussels II bis Regulation a spouse may have only one place of habitual residence and multiple places of “non-habitual” residence which are, however, irrelevant for the purposes of Article 3 (points 83 et 90).

Ultimately, where no court has jurisdiction pursuant to the Brussels II bis Regulation, including the national rules of jurisdiction that may be of relevance under Article 7 of the Regulation (residual jurisdiction), the courts of one of the Member States where the spouse (non-habitually) resides may exercise jurisdiction in order to remedy situations of denial of justice (points 100 and 101). This consideration seems to draw inspiration from the doctrine of the forum of necessity, even though this notion itself does not appear in the Opinion. Besides, at least to a certain extent the terms employed here seem to echo the wording of Recital 16 of the Maintenance Regulation and Recital 31 of the Succession Regulation, which contrary to the Brussels II bis Regulation explicitly provide for a forum of necessity. In a similar vein, the reference to the “deprivation of the judicial protection within the Union” at point 99 (“ne priverait pas nécessairement les parties de la protection juridictionnelle au sein de l’Union”) may make one think of Article 47 of the Charter.

The Opinion can be consulted here (no English version yet).

On July 20, 2021 (14.00 – 19.00), Università degli Studi, Milan will host (in streaming) the Annual Conference of the EU-funded project Jean Monnet Module on “Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe”.

The topic of this year – “Incentives and Challenges to Transnational Access to Justice” – will be addressed by distinguished panelists in two Round-Tables on, respectively, Third-party Funding in International Dispute Resolution and E-Justice in International Dispute Resolution.

The event is organized with the support of the Eramus+Programme of the European Union, the Centre of Research on European and Transnational Dispute Settlement (EUTraDiS), the European Court of Arbitration (CEA) and the Jean Monnet Chair on EU Health Legal Framework and Competition Law (EHCL).

Please find here the complete programme.

Registration is due by 15 July 2021, by completing and submitting this registration form (also referred to in the flyer).

For any information, please contact Prof. Albert Henke (albert.henke@unimi.it)

Andrea Bonomi and Patrick Wautelet, with the cooperation of Ilaria Pretelli, Eva Lein, Guillaume Kessler, Sara Migliorini and Konstaninos Rokas published Le droit européen des relations patrimoniales de couple (Bruylant). This is an extensive commentary (1368 pages) on the EU Regulations on Matrimonial Property (2016/1103) and on the Property Consequences of Registered Partnerships (2016/1104). These regulations came about through the process of enhanced cooperation and are in force in eighteen of the twenty-seven EU Member States.

The book is similar to the Commentary on the EU’s Succession Regulation (650/2015), Le droit européen des successions by the same main authors.

The book starts with an elaborate introduction which sets the context and gathers information on the preparatory steps towards the regulations (the kind of thing we miss since we don’t have an official report on the Regulations). It refers the reader to various studies and opinions that were produced in the preparatory phase. The introduction further sets out the main characteristics of the Regulations, which the authors have identified as the following:

• one single attachment;
• unchangeability of the applicable law;
• preference for party autonomy;
• coordination with other EU regulations on related matters;
• dissociation between jurisdiction and applicable law.

The authors also point out the drawbacks of some of the choices that the legislator made, such as that courts often have to apply foreign law, and that different legal systems might apply to divorce, maintenance, succession and matrimonial property if couples move across borders.

After an explanation of the scope of application (material, temporal and spatial), the commentary follows an article-by-article approach. Every article is discussed in detail, in the context of  legislation and case law (on the EU and Member State levels) and a wealth of legal literature. The reader is offered sound theory combined with practical examples in the form of (fictitious) cases. The makes the book a useful tool for practitioners, judges, notaries and academics alike.

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

O. Remien: The European Succession Regulation and the many questions of the European court practice – five years after entry into force

After five years of application of the European Succession Regulation it is time to have a look at European court practice: The general connecting factor of habitual residence has somehow been addressed by the European Court of Justice (ECJ) in E.E., but especially national court practice shows many interesting cases of the necessary overall assessment. Choice of law by the testator is particularly important and a notary should point not only at the present situation, but also at possible developments in the future. Estate planning has become more interesting. The legacy per vindicationem (Vindikationslegat, i.e. with in rem effect) recognized in Kubicka poses specific problems. The position of the surviving spouse under § 1371 BGB in German law has become a highly debated subject and here the aspect of free movement of persons is highlighted. The European Succession Certificate also raises many questions, among them the applicability of the competence rules in case of national notarial succession certificates or court certificates, cases Oberle, WB and E.E.. The article pleads for an equilibrated multilateral approach. Donation mortis causa will have to be dealt with by the ECJ soon. Five years of application of the Succession Regulation – and many questions are open.

 

P. Hay: Product Liability: Specific Jurisdiction over Out-of-State Defendants in the United States

“Stream of commerce” jurisdiction in American law describes the exercise of jurisdiction in product liability cases over an out-of-state enterprise when a product produced and first sold by it in another American state or a foreign country reached the forum state and caused injury there. The enterprise cannot be reached under modern American rules applicable to “general” (claim unrelated) jurisdiction. Can it be reached by exercise of “specific” (claim related) jurisdiction even though it did not itself introduce the product into the forum state? This is an important question for interstate American as well as for foreign companies engaged in international commerce. The applicable federal constitutional limits on the exercise of such “stream of commerce” jurisdiction have long been nuanced and uncertain. It was often assumed that the claim must have “arisen out of” the defendant’s forum contacts: what did that mean? The long-awaited U.S. Supreme Court decision in March 2021 in Ford vs. Montana now permits the exercise of specific jurisdiction when the claim arises out of or is (sufficiently) “related” to the defendant’s in-state contacts and activities. This comment raises the question whether the decision reduces or in effect continues the previous uncertainty.

 

W. Wurmnest: International Jurisdiction in Abuse of Dominance Cases

The CJEU (Grand Chamber) has issued a landmark ruling on the borderline between contract and tort disputes under Article 7(1) and (2) of the Brussels I-bis Regulation. Wikingerhof concerned a claim against a dominant firm for violation of Art. 102 TFEU and/or national competition law rules. This article analyses the scope of the ruling and its impact on actions brought against dominant firms for violation of European and/or national competition law and also touches upon the salient question as to what extent such disputes are covered by choice of court agreements.

 

C.F. Nordmeier: The waiver of succession according to Art. 13 Regulation (EU) 650/2012 and § 31 IntErbRVG in cases with reference to third countries

According to Art. 13 Regulation (EU) 650/2012, a waiver of succession can be declared before the courts of the state in which the declarant has his habitual residence. The present article discusses a decision of the Cologne Higher Regional Court on the acceptance of such a declaration. The decision also deals with questions of German procedural law. The article shows that – mainly due to the wording and history of origin – Art. 13 Regulation (EU) 650/2012 presupposes the jurisdiction of a member state bound to the Regulation (EU) 650/2012 to rule on the succession as a whole. Details for establishing such a jurisdiction are examined. According to German procedural law, the reception of a waiver of succession is an estate matter. If Section 31 of the IntErbRVG is applicable, a rejection of the acceptance demands a judicial decree which is subject to appeal.

 

P. Mankowski: The location of global certificates – New world greets old world

New kinds of assets and modern developments in contracting and technology pose new challenges concerning the methods how to locate assets. In many instances, the rules challenged are old or rooted in traditional thinking. Section 23 of the German Code of Civil Procedure (ZPO) is a good example for such confrontation. For instance, locating global certificates requires quite some reconsideration. Could arguments derived from modern legislation like the Hague Intermediated Securities Convention, Art. 2 pt. (9) EIR 2015 or § 17a DepotG offer a helping hand in interpreting such older rules?

 

S. Zwirlein-Forschner: All in One Star Limited – Registration of a UK Company in Germany after the End of the Brexit Transition Period

Since 1 January 2021, Brexit has been fully effective as the transition period for the UK has ended. In a recent decision, the Federal Court of Justice (BGH) has taken this into account in a referral procedure to the Court of Justice of the European Union (CJEU). The decision raises interesting questions on the demarcation between register law and company law, on conflict of laws and on the interpretation of norms implementing EU law. This article comments on these questions.

 

K. Sendlmeier: Informal Binding of Third Parties – Relativising the Voluntary Nature of International Commercial Arbitration?

The two decisions from the US and Switzerland deal with the formless binding of third parties to arbitration agreements that have been formally concluded between other parties. They thus address one of the most controversial issues in international commercial arbitration. Both courts interpret what is arguably the most important international agreement on commercial arbitration, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. The Supreme Court has ruled that the Convention does not preclude non-signatories from being bound by arbitration based on equitable estoppel in US arbitration law. In the Swiss decision, the binding nature of a non-signatory is based on its interference in the performance of the main contract of other parties. According to the established case law of the Swiss Federal Tribunal, this binding approach does not conflict with the New York Convention either.

 

K. Bälz: Can a State Company be held liable for State Debt? Piercing of the Corporate Veil vs. attribution pursuant to Public International Law – Cour d’appel de Paris of 5 September 2019, No. 18/17592

The question of whether the creditor of a foreign state can enforce against the assets of public authorities and state enterprises of that state is of significant practical importance, particularly in view of the increasing number of investment arbitrations. In a decision of 5 September 2019, the Paris Court of Appeal has confirmed that a creditor of the Libyan State can enforce an arbitral award against the assets of the Libyan Investment Authority (LIA), arguing that – although the LIA enjoys separate legal personality under Libyan law – it was in fact an organ (émanation) of the Libyan State, that was functionally integrated into the state apparatus without clearly separated assets of its own. This approach is based on public international law concepts of state liability and diverges from corporate law principles, according to which a shareholder cannot generally be held liable for the corporation’s debts.

 

O.L. Knöfel: Liability of Officials for Sovereign Acts (acta iure imperii) as a Challenge for EU and Austrian Private International Law

The article reviews a decision of the Supreme Court of the Republic of Austria (Case 1 Ob 33/19p). The Court held that a civil action for compensation brought in Austria, by the victim of a downhill skiing accident, against a German school teacher on account of alleged negligence during a reconnaissance ride down an Austrian ski slope, does not constitute a “civil and commercial matter” under the Rome II Regulation, as it involves an actum iure imperii (Art. 1 cl. 1 Rome II Regulation). As a consequence, the Court applied German Law, relying on an alleged customary conflicts rule (lex officii principle), according to which indemnity claims against officials who act on behalf of the State are inevitably and invariably governed by the law of the liable State. Finally, the Court held that an action brought directly against a foreign official in Austria is not barred by sec. 9 cl. 5 of the Austrian Act of State Liability (Amtshaftungsgesetz). The Court’s decision is clearly wrong as being at variance with many well-established principles of the conflict of laws in general and of cross-border State liability in particular.

 

E. Piovesani: Italian Ex Lege Qualified Overriding Mandatory Provisions as a Response to the “COVID-19 Epidemiological Emergency”

Art. 88-bis Decree-Law 18/2020 (converted, with modifications, by Law 27/2020) is headed “Reimbursement of Travel and Accommodation Contracts and Package Travel”. This provision is only one of the several provisions adopted by the Italian legislator as a response to the so-called “COVID- 19 epidemiological emergency”. What makes Art. 88-bis Decree-Law 18/2020 “special” is that its para. 13 qualifies the provisions contained in the same article as overriding mandatory provisions.

 

The General Secretariat of the International Social Service (ISS) in Geneva has published an important bilingual study in English and French entitled:  “KAFALAH – Preliminary analysis of national and cross-border practices” – “La KAFALAH: analyse préliminaire de pratiques nationales et transfrontières” (2020).

For a general overview of the ISS and its relationship with PIL, see our previous post “The Role of the International Social Service in the History of Private International Law,” written by Roxana Banu.

Below is a summary of the publication “KAFALAH – Preliminary analysis of national and cross-border practices” based on the foreword drawn up by Hans van Loon, Member of the Institut de Droit International and Former Secretary General of the Hague Conference on Private International Law, and Hynd Ayoubi Idrissi, Professor of Law at the Université Mohammed V and Member of the United Nations Committee on the Rights of the Child. 

By way of background, please note the difference between adoption and kafalah. As stated in this publication: “the very essence of adoption is the creation of a stable legal and social filiation bond between the adoptee and his/her adoptive  parent(s)  and  (in  full  adoption)  the  cessation  of  the biological bond with the family of origin. From a Western perspective,  this  is  the  main  criterion  for  differentiating  between  adoption  and  kafalah.  From the perspective of countries whose legal systems are based on or influenced by Sharia, despite the specificities of each country, reference is often made to a common approach to adoption – that is, its prohibition.”  (p.15). As to its meaning, “Kafalah is a child protection measure in countries whose legal systems are based on or influenced by Islamic law (Sharia […]). Its effects vary greatly from one country to the next” (p. 4).

***

Despite its modest title, this publication covering 222 pages is a unique and undoubtedly one of the most extensive studies carried out on the institution of the kafalah (also spelled kafala). The kafalah is widely applied in countries whose legal system is based on or influenced by Sharia law. For those countries (except for a minority that also recognise adoption) kafalah is the preeminent child care measure for children without a family environment or with one that is at risk of breakdown. Although the kafalah increasingly interacts with the legal systems of Western countries, it is not well-known or understood in Europe, the Americas, Australia and New Zealand. The impetus of this study came from the practical experience of ISS’s International Reference Centre for the Rights of Children Deprived of the Family at the International Social Service (ISS/IRC), which showed that this lack of understanding can seriously affect children deprived of parental care in cross-border situations.

Following the introduction, Part I sets the international scene of kafalah. An important step to greater international recognition of this institution as an alternative care measure for children deprived of their families was the specific reference to kafalah in the Convention on the Rights of the Child (1989), followed by its inclusion as a child protection measure in the Hague Child Protection Convention (1996) and the UN Guidelines on the Alternative Care of Children (2009). Part I then continues analyzing the various forms, structures and functions of kafalah, comparing it to other protection measures such as adoption, and noting the Western perspective on kafalah.

Part II provides an extensive and detailed overview of the implementation of kafalah and analogous institutions in countries whose legal system is based on or inspired by Sharia law, with in-depth studies on Egypt, Iran, Iraq, Jordan, Morocco, Pakistan, Sudan, Djibouti, Lebanon, Malaysia, and Tunisia, and practical comments and suggestions by ISS/IRC for each State.  It analyses the many social problems surrounding kafalah in these States, several of which have very large populations (e.g., Indonesia, Pakistan, Egypt, Iran) or must deal with large numbers of displaced or refugee families and children (e.g., Iraq, Lebanon). Many of these countries are facing poverty, lack of adequate infrastructures for the protection of children and families, stigmatization of single mothers, child abandonment, and child labour, among others. A Technical Note provided by ISS/IRC mentions many ongoing efforts to regulate kafalah in order to better protect children’s rights, and suggests a number of issues to consider, offering practical tools to national stakeholders, including a compelling case study on “Preventing unjustified family separation”.

Part III addresses the recognition of kafalah and analogous institutions in “receiving States”. It starts with a Case Study on “The crucial questions to ask oneself as a professional in a receiving State”, when confronted with a kafalah issue, with alternative suggestions for possible approaches. Then follow: a discussion of the principle of subsidiarity in cross-border kafalah placements; “Considerations about the (non)-applicability of the 1993 Hague Convention to cross-border kafalah placements” by Laura Martínez-Mora (Secretary at the Hague Conference); and a discussion of the 1996 Hague Convention on Child Protection as an international framework for cross-border kafalah. See in particular the interview with Hans van Loon “4. The 1996 Hague Convention on Child Protection: An international framework for cross-border kafalah?,” which provides an insight into the interaction between Kafalah and the modern Hague Children Conventions (pp. 135-137).

Part III concludes with a comprehensive analysis of the treatment of kafalah in several receiving States: Australia, Belgium, Denmark, France, Germany, Italy, New Zealand, Norway, Spain, Switzerland, and the United States of America. Like Part II, Part III concludes with a Technical Note with a summary of positive trends as well as common challenges regarding the kafalah in receiving States, during the four different stages of (1) the pre-placement process; (2) the decision to establish a Kafalah; (3) the transfer of the child and immigration considerations; and (4) the treatment of the kafalah in the receiving State and post-placement considerations.

The study concludes with four Annexes and an extensive bibliography (see in particular Annex IV).

Annex I: Historical and contemporary considerations on Sharia Law, by M. Keshavje Mohammed, a renowned international specialist on cross cultural mediation, offers helpful background insights on the legal systems where kafalah is practiced.

Annex II: International case law relating to kafalah provides an overview and analysis of cases dealt with by the European Court of Human Rights and the UN Committee on the Rights of the Child.

Annex III: EU l instruments applicable to kafalah, deals with the European Union Directives on Family Reunification Directive and the Citizens’ Rights Directive and presents case law of the Court of Justice of the European Union.

Annex IV: Tools to foster strengthened cross-border cooperation. This Annex suggests and develops the possibility of strengthening cooperation between kafalah and non-kafalah States through a bilateral agreement. To that end it presents (1) a Checklist for the establishment of such a bilateral agreement: how to ensure better protection of children placed abroad under a kafalah in (and beyond) the context of the 1996 Hague Convention, and (2) a Model for the establishment of such an agreement regarding the cross-border placement of children in a foster family or institution, or their provision of care by kafalah or an analogous institution. It offers one Model for States that are both bound by the 1996 Hague Convention, and another, more extensive, one for States that are not both bound by the 1996 Hague Convention.

Annex IV concludes with a brief overview, written by Justice V. Bennett and M. MacRitchie, on the benefits of direct judicial communication and sharing the Australian experience on how direct judicial communication could be applied to cross-border kafalah placements

On Tuesday, July 6, 2021, the Hamburg Max Planck Institute will host its twelfth monthly virtual workshop in private international law at, exceptionally, 15:00-16:30. Since January of this year, we have been alternating between English and German language. Hannah Buxbaum (Indiana University) will speak, in English, about the topic

Equivalence Regimes in Transnational Regulation: From Comparability to Convergence

The presentation will be followed by open discussion. All are welcome. More information and sign-uphere This is the twelfth such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, Anatol Dutta in October, Susanne Gössl in November, Marc-Philippe Weller in December, Macjiej Szpunar in January, Dagmar Coester-Waltjen in February, Horatia Muir Watt in March, Burkhard Hess in April, Marta Pertegas in May, and Tania Domej in June. The series will take a summer break in August and return in September. Stay tuned! If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

 

 

 

 

The Nigeria Group on Private International Law held its inaugural lecture on June 21, 2021. The video recording of the event is now available on the Group’s website: here  

Back in April we reported about the Opinion delivered by AG Campos Sánchez-Bordona in the case Vorarlberger Landes- und Hypotheken-Bank, C-301/20, which revolves around the effects produced by an European Certificate of Succession and its certified copy, time-wise (first and third questions) as well as ratione personae, by reason of the person concerned (second question). At the request of the Court, the Opinion covered only the third preliminary question. In today’s judgment, the Court addresses all three questions.

In brief, the case concerned a certified copy of an European Certificate of Succession, which bore a marking ‘unlimited’ in the ‘Valid until’ field (element linked to the first and third questions). Moreover, the certified copy in question was issued on the application of only one of the two heirs concerned by the main proceedings emanating from Austria (element linked to the second question).

 

First and third questions, effects time-wise

The Court considered that the first and third question should be examined jointly; for the Court, by these two questions the referring court sought to establish whether a certified copy of an European Certificate of Succession which bears a marking ‘unlimited’ is valid and produces its effects (described in Article 69 of the Succession Regulation) with no further limitation, as long as this copy was valid when it was first submitted to the concerned authority (paragraph 20).

According to the Court’s answer, such certified copy is valid for six month following its issuance and continues to produce its effects, in the sense of Article 69 of the Regulation, if it was valid when it was first submitted to the competent authority (paragraph 37).

 

Second question, effects by reason of the person concerned

By its second question, the referring court sought to establish whether an European Certificate of Succession produces its effects only in favour of the person who has applied for it (under this hypothesis, only that person could use the certificate and rely on its effects) or it produces such effects in favour of all persons who are mentioned in its content by name as heirs, legatees, executors of wills or administrators of the estate, regardless whether they applied for it.

The Court clearly approved the second hypothesis; the European Certificate of Succession produces its effects in favour of all persons mentioned in it, whether they have applied for the issue of certificate or not (paragraph 45).

 

The judgment can be consulted here (in French).