Conflictoflaws

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking a Legal Officer (Maternity Leave Replacement). The successful candidate will work primarily in the field of family law, focusing on the 1980 Child Abduction and 1996 Child Protection Conventions as well as on the Family Agreements project.

Applications should be submitted by Monday 31 May 2021 (00:00 CEST). For more information, please visit the Recruitment section of the HCCH website.

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

In December 2020, we reported about the Opinion presented by Advocate Generale Campos Sánchez-Bordona in the case Vereniging van Effectenbezitters, C-709/19. Today, the Court delivered its judgment in this case.

In brief, the request for a preliminary ruling arose out of the proceedings pertaining to a collective action for a declaratory judgment brought by an association against an oil and gas company on behalf of investors who bought, held or sold the ordinary shares through an investment account in the Netherlands. The association argued that this internationally listed company acted unlawfully towards its shareholders inasmuch as it made incorrect, incomplete and misleading statements about the circumstances pertaining to, inter alia, an explosion resulting in an oil spill. It is in this context that the referring court requested the Court of Justice to interpret Article 7(2) of the Brussels I bis Regulation.

At the request of the Court, in his Opinion of last December, AG Campos Sánchez-Bordona addressed two first preliminary questions. Thus, the third and fourth preliminary questions on international and internal territorial jurisdiction to hear subsequent individual claims of the investors were not addressed in the Opinion.

Ultimately, the third and fourth questions do not receive a definitive answer in the judgment either. The Court held that these questions are inadmissible as they are of hypothetical nature – in the proceedings pending before the referring court, no subsequent individual claim is concerned (paragraphs 38 and 39).

As to the first and second preliminary questions, these are worded as follows:

(1) (a)      Should Article 7(2) of [the Brussels I bis Regulation] be interpreted as meaning that the direct occurrence of purely financial damage to an investment account in the Netherlands or to an investment account of a bank and/or investment firm established in the Netherlands, damage which is the result of investment decisions influenced by globally distributed but incorrect, incomplete and misleading information from an international listed company, constitutes a sufficient connecting factor for the international jurisdiction of the Netherlands courts by virtue of the location of the occurrence of the damage (“Erfolgsort”)?

(b)      If not, are additional circumstances required to justify the jurisdiction of the Netherlands courts and what are those circumstances? Are the additional circumstances [namely, the fact that the international listed company focuses on global investment public, including the investors in the Netherlands, and the association represents a considerable number of investors in this Member State, the fact that the settlement reached by the international listed company with a number of shareholders in the United States of America was not proposed to the investors represented by the association and, lastly, the fact that the shareholders for whom this association is acting include consumers to whom the Brussels I bis Regulation affords special legal protection] sufficient to found the jurisdiction of the Netherlands courts?

(2)      Would the answer to Question 1 be different in the case of a claim brought under Article 3:305a of the BW by an association the purpose of which is to defend, in its own right, the collective interests of investors who have suffered damage as referred to in Question 1, which means, among other things, that neither the places of domicile of the aforementioned investors, nor the special circumstances of individual purchase transactions or of individual decisions not to sell shares which were already held, have been established?

 

In its judgment, the Court answered together this questions (paragraph 22) and held that Article 7(2) of the Brussels I bis Regulation must be interpreted to the effect that the direct occurrence, in an investment account, of purely financial damage resulting from investment decisions made on the basis of information which was readily available worldwide, but which was incorrect, incomplete and misleading and emanated from an international listed company, does not allow the international jurisdiction of the court of the Member State in which the bank or investment firm that holds that account is established to be founded on a connection with the place where the damage occurred, where that company was not subject to statutory reporting obligations in that Member State (paragraph 37).

The judgment can be consulted here (the English version is not yet available).

Electronic commerce: past, present and future

The UNCITRAL National Coordination Committee for Australia (UNCCA) invites you to attend its Seventh Annual May Seminar, to be held online as a webinar. This year we celebrate the 25th anniversary of the UNCITRAL Model Law on Electronic Commerce 1996, and the 20th Anniversary of the UNCITRAL Model Law on Electronic Signatures 2001.

Both of these Model Laws and the subsequent United Nations Convention on Electronic Communications in International Contracts 2005 have had a profound effect on the regulation of electronic commerce globally. In Australia, all of these developments have been incorporated in the Electronic Transactions Acts passed by the Commonwealth and all States and Territories. During 2020 the relevance of these enactments came to the fore as a result of the COVID pandemic.

In this live, interactive webinar, expert commentators from UNCITRAL and Australia will review the history of these developments in ecommerce, the current state of the law, as well as issues that are being considered for future work nationally and globally.

For more information, see here.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 13 May 2021 at 5:00 pm (Mexico City time – CDT), 12:00 am (CEST time). The topic of the webinar is International Judicial Co-operation in Times of Pandemic and will be presented by Professor Carlos Echegaray de Maussion (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/87893740067?pwd=L0w4cThOVkFzQ04rZUZvT0lnNGpHZz09

Meeting ID: 878 9374 0067

Password: BMAAMEDIP

Participation is free of charge.

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

 

 

In February 2021, the European Commission launched a study to assess the need for more effective legal protection of vulnerable adults within the European Union. As part of this study, a survey has now been published online for all legal practitioners working in the area: judges, lawyers, notaries, and other relevant authorities. Input from practitioners will be important in shaping any future legislative initiative.

The survey is open until 4 June 2021 and available at the following link: https://ec.europa.eu/eusurvey/runner/vulnerable_adults_practitioners.

Although the survey is in English, respondents are welcome to submit responses in any of the official EU languages.

For more information, see the survey link above or for more specific questions contact the project team at: < crossborder.adults@milieu.be >.

In collaboration with the University of Heidelberg, the Charles University of Prague and the University of Warsaw, the University of Milan is conducting the project ‘From Diversities to Unity through Coordination (EU-DUC)’ within the framework of the 1st Call for joint educational proposal promoted by the 4EU+ European University Alliance.

In this context, from 16 to 18 June 2021, the University of Milan will host the Overcoming Challenges, Addressing Conflicts, Settling Disputes Summer School on EU Business Law. The Summer School is open to students of 4EU+ universities, and it is envisioned to take place in a hybrid (online/in person) mode.

Students can register, from 15 April until 16 May 2021, on Eventbrite. With their registration, they must submit to Prof. Francesca C. Villata (euduc@unimi.it) their CV and a letter of motivation, indicating the order of preference between the 5 interactive modules offered with the Summer School.

More information on the 4EU+ European University Alliance and the Summer School’s Programme are available here.

Just as the Commission formally announced its refusal to give consent to the UK’s accession to the Lugano Convention, Andrew Dickinson has provided a comprehensive overview on the state of Private International Law for civil and commercial matters in the UK and EU, which has just been published in the latest issue of Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) (IPRax 2021, p. 218).

The article sketches out this ‘realignment of the planets’ from three angles, starting with the legal framework in the UK, which will now be based on the Withdrawal Act 2018, several other statutes and multiple pieces of secondary legislation. The latter include the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations, which entail a return to the rules previously applied only to non-EU defendants, and the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations, which (by contrast) essentially carries over the Rome I and II Regulation. With regard to jurisdiction, the situation is of course complicated by some residual remains of the Brussels regime, some new provisions aiming to preserve certain jurisdictional advantages for consumers and employees, and the interplay with the Hague Choice of Court Convention, all of which the article also covers in detail. Interestingly, especially in the context of last week’s news, Dickinson concludes the section on jurisdiction (on p. 218) as follows:

One might take comfort in the fact that there is nothing in the mechanisms and rules described above that is truly novel. In large part, the effect of the UK’s withdrawal from the EU will be to extend to the province formerly occupied by the Brussels-Lugano regime the conflict of law rules for situations lacking an EU connection, with which many cross-border practitioners will be familiar. Some will welcome, for example, the increased role for the doctrine of forum non conveniens or the removal of fetters on the UK courts’ ability to grant anti-suit injunctions. Others will see the transition to what is unquestionably a complex and piecemeal set of rules as a backward step, which nonetheless creates an opportunity to review, simplify and up- date the UK’s private international law infrastructure. The case for reform will grow if the UK’s application to rejoin the 2007 Lugano Convention does not bear fruit.

The text then goes on to describe the consequent changes in EU Private International Law and the effects of these changes on third states with whom the EU has concluded international agreements.

The article links up nicely with Paul Beaumont’s article on The Way Ahead for UK Private International Law After Brexit, which has just been published in this year’s first issue of the Journal of Private International Law and which considers the steps the UK should take to remain an effective member of international institutions such as the Hague Conference on Private International Law. Both articles can also be read in conjunction with Reid Mortensen’s contribution on Brexit and Private International Law in the Commonwealth and Trevor Hartley’s article on Arbitration and the Brussels I Regulation – Before and After Brexit, which appear in the same issue.

The first issue of the Journal of Private International Law for 2021 was released today and it features the following articles:

Paul Beaumont, Some reflections on the way ahead for UK private international law after Brexit

Since 1 January 2021 the UK has moved out of the implementation period for its withdrawal from the European Union (EU) and it is an appropriate time to reflect on the way forward for the UK in developing private international law. This article considers the practical steps that the UK should take in the near future. There is significant work that the UK can do to progress its commitment to the “progressive unification of the rules of private international law” by improving its commitment to the effective functioning of several key Conventions concluded by the Hague Conference on Private International Law (HCCH). Some of these steps can and should be taken immediately, notably accepting the accessions of other States to the Hague Evidence and Child Abduction Conventions and extending the scope of the UK’s ratification of the Adults Convention to England and Wales, and Northern Ireland. Other things require more consultation and time but there are great opportunities to provide leadership in the world by ratifying the Hague Judgments Convention 2019 and, when implementing that Convention which is based on minimum harmonisation, providing leadership in the Commonwealth by implementing, at least to some extent, the Commonwealth Model Law on Recognition and Enforcement of Civil and Commercial Judgments. Within the UK, as a demonstration of best constitutional practice, intergovernmental cooperation between the UK Government and the devolved administrations should take place to consider how intra-UK private international law could be reformed learning the lessons from the UK Supreme Court’s highly divided decision in Villiers. Such work should involve the best of the UK’s experts (from each of its systems of law) on private international law from academia, the judiciary and legal practice. Doing so, would avoid accusations that Brexit will see a UK run by generalists who give too little attention and weight to the views of experts. This use of experts should also extend to the UK’s involvement in the future work of HCCH at all levels. The HCCH will only be able to be an effective international organisation if its Members show a commitment to harnessing the talents of experts in the subject within the work of the HCCH.

 

Reid Mortensen, Brexit and private international law in the Commonwealth

“Brexit is a trading and commercial opportunity for the countries of the Commonwealth, as it makes it likely that, for many, their access to United Kingdom (UK) markets will improve significantly. The question addressed in this article is whether, to support more open and trading relationships, Brexit also presents opportunities for the development of the private international law of Commonwealth countries – including the UK. Focusing on Australia, Canada, New Zealand and Singapore, as well as the UK, an account is given of the relationship between the different systems of private international law in these Commonwealth countries in the period of the UK’s membership of the European Union (EU). Accordingly, consideration is given to the Europeanisation of UK private international law and its resistance in other parts of the Commonwealth. The continuing lead that English adjudication has given to private international law in the Commonwealth and, yet, the greater fragmentation of that law while the UK was in the EU are also discussed. The conclusion considers the need to improve the cross-border enforcement of judgments within the Commonwealth, and the example given in that respect by its federations and the trans-Tasman market. Possible directions that the cross-border enforcement of judgments could take in the Commonwealth are explored.”

 

Trevor Hartley, Arbitration and the Brussels I Regulation – Before and After Brexit

This article deals with the effect of the Brussels I Regulation on arbitration. This Regulation no longer applies in the UK, but the British Government has applied to join the Lugano Convention, which contains similar provisions. So the article also discusses the position under Lugano, paying particular attention to the differences between the two instruments. The main focus is on the problems that arise when the same dispute is subject to both arbitration and litigation. Possible mechanisms to resolve these problems – such as antisuit injunctions – are considered. The article also discusses other questions, such as freezing orders in support of arbitration.

 

Maksymilian Pazdan & Maciej Zachariasiewicz, The EU succession regulation: achievements, ambiguities, and challenges for the future

The quest for uniformity in the private international law relating to succession has a long history. It is only with the adoption of the EU Succession Regulation that a major success was achieved in this field. Although the Regulation should receive a largely positive appraisal, it also suffers from certain drawbacks that will require a careful approach by courts and other authorities as to the practical application of the Regulation. The authors address selected difficulties that arise under its provisions and make suggestions for future review and reform. The article starts with the central notion of habitual residence and discusses the possibility of having a dual habitual residence. It then moves to discuss choice of law and recommends to broaden further party autonomy in the area of succession law. Some more specific issues are also addressed, including legacies by vindication, the relationship between the law applicable to succession, the role of the legis rei sitae and the law applicable to the registries of property, estates without a claimant, the special rules imposing restrictions concerning or affecting succession in respect of certain assets, as well as the exclusion of trusts. Some proposals for clarifications are made in that regard.

 

Stellina Jolly & Aaditya Vikram Sharma, Domestic violence and inter-country child abduction: an Indian judicial and legislative exploration

The Hague Convention on the Civil Aspects of International Child Abduction aims to prevent the abduction of children by their parents by ensuring the child’s prompt return to his/her place of habitual residence. At the time of drafting the Convention, the drafters believed that non-custodial parents who were fathers perpetrated most of the abductions. However, the current statistics reveal the overwhelming majority of all abductors as primary or joint-primary caretakers. Unfortunately, it is unknown what exact proportion of these situations includes abductions triggered by domestic violence. In the absence of an explicit provision of domestic violence against spouses as a defence against an order of return, for a parent who has abducted a child to escape domestic violence, the relevant defence is of “grave risk of harm” to and “intolerable situation” for the child under Article 13(1)(b) of the Convention. However, the lack of guidance on what constitutes “grave risk” and “intolerable situation”, at least in the past, and its operationalisation in the context of domestic violence brings in pervasive indeterminacy in child abduction. In 2012, the Hague Conference on Private International Law identified “domestic violence allegations and return proceedings” as a key issue and recommended steps for developing principles on the management of domestic violence allegations in return proceedings leading to the adoption of a Good Practice Guide on this issue in 2020.

The Ministry of Women and Child Development (WCD) and the Ministry of Law and Justice, India, cite that most Indian parents who abduct their children happen to be women escaping domestic violence abroad. Thus, they are victims escaping for themselves and their children’s safety. This research has summed up the judgments delivered by High Courts and the Supreme Court of India on child abduction between 1984 and 2019. Through judicial mapping, the paper discusses the cases in which battered women have highlighted and argued domestic violence as a reason against their children’s return. The paper evaluates whether the reason given by the two ministries against India’s accession to the Hague Convention is reflected in cases that have come up for judicial resolution and what are the criteria evolved by the judiciary in addressing the concerns of domestic violence against a spouse involved in child abduction. The paper analyses India’s legislative initiative, the Civil Aspects of International Child Abduction Bill, 2016 and assesses the measures proposed by the Bill for considering domestic violence against a spouse in abduction cases.

 

Kittiwat Chunchaemsai, Legal considerations and challenges involved in bringing the 2005 Hague Convention on Choice of Court Agreements into force within an internal legal system: A case study of Thailand

Thailand must consider two vital elements, namely its internal legal system and environment before signing the Hague Convention on Choice of Court Agreements 2005 (Hague Convention). This paper investigates whether the law of Thailand in its current form is inconsistent with the Hague Convention. Articles 1–15 are examined to identify areas of inconsistency and to suggest appropriate solutions. This study finds that the internal legal system of Thailand is not quite in line with the Hague Convention. This conclusion leads to analytical recommendations to suit the needs of the current Thai legal system. Implementing these recommendations is necessary for Thailand if it intends to become a Party to the Hague Convention. Thailand must not only have a specific implementation act but must also review and revise the relevant laws appropriately.

 

Saeed Haghani,  Evolution of lex societatis under Iranian law: current status and future prospects

There has been a growing attention to applicable law to companies (lex societatis) in Iranian legal research. A brief study of relevant legal literature leads us to a list of both disagreements and complexities on the subject. Meanwhile, a recent parliamentary effort on the issue, illustrates the importance of lex societatis in the eyes of the Iranian legislature. A comparative approach would be of great help in the analysis of the formation and evolution of relevant Iranian legal rules. This paper tries to provide the reader with a comprehensive view of the current transitory state of Iranian law regarding lex societatis.

 

 

Volume 11/2019 of the Journal of Law & Islam / Zeitschrift für Recht & Islam (ZR&I) has just been published. The full issue is available online here. It includes case notes and articles devoted to questions of Islamic law and its interaction with other legal systems. Some of the articles are in English.

Editorial …………………………………………………………………………………… (7 f.)

Rechtsprechung & Urteilsberichte (Case Law) ………………………………………………. (9–36)

Bruno Menhofer, Verpflichtung zur Mitwirkung an religiöser Scheidung und Grenze der rechtlichen Bindung –
Anmerkung zum Beschluss des OLG Hamburg vom 25. 10. 2019 – 12 UF 220/17
[Duty to Participate in a Religious Divorce and its Legally Binding Limits – Commentary
on the Ruling of Hamburg?s Higher Regional Court (Oberlandesgericht [OLG] Hamburg)
of 25. 10. 2019 – 12 UF 220/17] ……………………………………………….. (9–14)

Bruno Menhofer, Function follows form – Zur Entscheidung des BGH über die Formbedürftigkeit der Vereinbarung
einer Brautgabe nach deutschem Recht
[Function Follows Form – Comment on the Federal Court of Justice (Bundesgerichtshof [BGH]
Judgment Regarding Formal Requirements of a Dowry Agreement under German Law]    (15–23)

Rike Sinder, Entscheidungsanmerkung zu BVerfG, Beschluss der 2. Kammer des Ersten Senats vom 29. 04. 2020 –
1 BvQ?44/20 – Freitagsgebet im Ramadan in Zeiten von Corona-Verordnungen
[Commentary on the Federal Constitutional Court (Bundesverfassungsgericht [BVerfG]) Order
of the 2nd Chamber of the First Senate of 29 April 2020 – 1 BvQ 44/20 – Friday Prayer
during Ramadan and the COVID-19 Ban on Church Services]    (25–30)

Andrés Ring & Jivesh Chandrayan, Enforcement of UAE Judgments in India.    (31–36)

Articles.    (37–116)

Abdessamad Belhaj, The Jurist’s Resilience: The European Council for Fatwa and Research and the Corona Fatawa.    (37–52)

Ahmed Gad Makhlouf, Ma??hib in der Moderne: Kontinuität und Wandel des traditionellen madhab-Wesens
innerhalb der gegenwärtigen kollektiven Fiqh-Gremien
[Madahib in Modern Times: Continuity and Change of Traditional madhab Scholarship
within Contemporary Collective Fiqh-Comittees]    (53–73)

Ranya Jamil, ‚Fatwa-Import‘ und seine Auswirkungen auf muslimische Minderheiten in Europa
[Fatwa-import and its Impact on Muslim Minorities in Europe]   (75–84)

Mina Moazzeni, S. Kamal Keshiknevis Razavi & Abbas Ahmadvand, Der historiografische Wert von Texten zur Islamischen Rechtswissenschaft (fiqh) – Eine Fallstudie:
Al-Hawi li-l-Fatawi von Galal ad-Din as-Suyuti

[The Historiographical Value of Texts on Islamic Jurisprudence (fiqh) – A Case Study:
Al-Hawi li-l-Fatawi von Galal ad-Din as-Suyuti]    (85–102)

Rana Alsoufi, Ibn Hazm’s Refutations of Causality in Islamic Law (Ibtal at-Talil fi Ahkam ad-Din) (103–116)

Forschungsbericht / Research Report. (117–128)

Susan Rutten, Traditional and Religious Marriages. Research, Practices and Policies in the Netherlands. (117–128)

Rezensionen / Reviews. (129–159)

Sebastian Maisel, Review: Ahmed Abd-Elsalam: Das beduinische Rechtssystem: Konzepte – Modelle –
Transformationen (Beiruter Texte und Studien 136), Würzburg 2015. (129–131)

Björn Bentlage, Review: Shaheen Sardar Ali: Modern Challenges to Islamic Law. Cambridge 2016. (133–135)

Silvia Tellenbach, Rezension zu Olaf Köndgen: The Codification of Islamic Criminal Law in the Sudan –
Penal Codes and Supreme Court Case Law under Numayri and al-Bashir
(Studies in Islamic Law and Society 43), Leiden/Boston 2018. (137–141)

Abir Haddad, Rezension zu Abdurrahim Kozali / Ibrahim Salama / Souheil Thabti (Hgg.): Das islamische
Wirtschaftsrecht (Reihe für Osnabrücker Islamstudien 19), Frankfurt am Main 2016. (143–152)

Achim-Rüdiger Börner, Rezension zu Peter-Christian Müller-Graff (Hg.): EU-Nachbarschaftspolitik – Nordafrika und Nahost
(Schriftenreihe des Arbeitskreises Europäische Integration e. V. 102), Baden-Baden 2017. (153–159)

Tagungsberichte / Conference Reports. (161–205)

Hadi Enayat & Mirjam Künkler, Conference Report: The Politics of Law and the Judiciary in Contemporary Iran –
Aga Khan University (London), December 4, 2018. (161–164)

Mouez Khalfaoui, Tagungsbericht: Islamic Family Law in Europe and the Islamic World.
Symposium am Schloss Herrenhausen (Hannover), 25.–27. September 2019. (165–169)

Mikele Schultz-Knudsen, Conference Report: Islam and Europeanization – Legal Perspectives, Centre for European
and Comparative Legal Studies, Faculty of Law, University of Copenhagen, October 4, 2019. (171–182)

Gianluca Parolin, Conference Report: Words Laying Down the Law: Translating Arabic Legal Discourse,
Aga Khan University, London, UK, October 7 & 8, 2019. (183–194)

Lara-Lauren Goudarzi-Gereke, Conference Report: Law Between Dialogue and Translation: Harmonizing National Law
with International Law – The Case of Women’s Rights in Palestine, University of Göttingen,
Germany, November 5 & 6, 2019. (195–199)

Isabel Schatzschneider & Rosa Shuaibat, Workshop-Bericht: God’s Justice and Animal Welfare, Department Islamisch-Religiöse Studien
an der Friedrich-Alexander-Universität Erlangen-Nürnberg, 13. & 14. Dezember 2019. (201 f.)

Viktor Forian-Szabo, Martin Baumgartner & Leonard Soldo, Conference Report: Modern Law and Institutional Decay – The Ecology of Institutional Transplants
in the Muslim World, University of Vienna, Faculty of Law, February 10 & 11, 2020. (203–205)

Call for Papers (Aufruf zum Einreichen von Beiträgen) (207–210)

Marcus Teo also recently published an article  with International and Comparative Law Quarterly titled: “Narrowing Foreign Affairs Non-Justiciability.”

The abstract reads as follows:

“The UK Supreme Court’s decision in Belhaj v Straw defined foreign affairs non-justiciability and unearthed its constitutional foundations. However, two decisions since Belhaj—High Commissioner for Pakistan v Prince Muffakham Jah and The Law Debenture Trust Corpn plc v Ukraine—have called Belhaj into doubt, narrowing non-justiciability to give effect to ordinary private law rights. This article analyses these decisions and argues that their general approach of subjecting issues involving transactions between sovereign States to private international law’s framework is desirable, because the constitutional foundations of non-justiciability identified in Belhaj are shaky. Yet, it is suggested that private international law itself may require courts to exercise judicial restraint on these issues, given its goal of upholding the efficient resolution of international disputes in appropriate fora.”

The University of Pittsburgh Center for International Legal Education (CILE) and Asian Studies Center (ASC) invite you to join us for a timely conference on Deals and Disputes: China, Hong Kong, and Commercial Law on May 18-20, 2021, from 8:00-11:00 a.m. EDT each day.

The May 18 panel will consider the lessons of Changzhou Sinotype Technology Co., Ltd. v. Rockefeller Technology Investments (Asia) in the California courts, considering contract terms, arbitration and litigation strategy, arbitral award and judgment recognition, and the application of the Hague Service Convention.

The May 19 panel will assess international commercial courts and arbitral institutions in Asia, particularly in light of recent developments in Hong Kong.

The May 20 panel will take a broader view of political and legal challenges facing Hong Kong after the National Security Law in June 2020.

Keynote addresses on May 18 and 19 will be given by Professor Susan Finder of Peking University School of Transnational Law, and Antony Dapiran, author of City on Fire: The Fight for Hong Kong.

Registration is free, and can be achieved on the link in the full program for the conference, which is available here.

Pennsylvania lawyers may receive CLE substantive credits for up to 7 hours.

The Asser Institute and the IJI are organising a Masterclass about international B2B contracts and private international law. This Masterclass is in Dutch and aimed at lawyers with an international law practice.

For more information on the programme see here: Masterclass 1 IJI Asser

 

The Asser Institute and the IJI are organising a Masterclass about international B2B contracts and private international law on June 28 and 29, 2021. This Masterclass is in Dutch and aimed at lawyers with an international law practice.

 

For further information see here

by Roxana Banu

The ISS has been hiding in plain sight in the history of private international law since the 1920s. Anyone lucky enough to visit ISS-USA’s archives at the University of Minnesota would be astonished by ISS’s extensive engagement with virtually every aspect of transnational family law. During the first half of the 20th century the ISS left no stone untouched in an effort to devise an international socio-legal framework for cross-border family maintenance claims. It lobbied scholars, consuls, employers, national legislators and international organizations; its global network of social workers worked together to inform women living abroad when their husbands attempted to file divorce proceedings in the U.S.; it experimented with entirely new and imaginative legal arguments to convince U.S. courts to assume jurisdiction over foreign women’s maintenance claims against their husbands living in the U.S.; and it submitted expert evidence to the Child Welfare Committee of the League of Nations.

Unbeknownst to contemporary private international law scholars, the report sent by Ernst Rabel to the League of Nations on cross-border maintenance claims had in fact been commissioned by the ISS and based almost entirely on its case files. The entire project on cross-border maintenance claims was in fact the brainchild of Suzanne Ferriere, ISS’s General Secretary until 1945 and thereafter its assistant director and one of only three women on the International Committee of the Red Cross during WWII.

In the 1930s the ISS was involved in the debates on the nationality of married women at the League of Nations. Unlike other feminist organizations, which were skeptical of the League’s attempt to conceptualize the issue of married women’s nationality as a conflict of laws question, the ISS offered an analysis of its case records precisely to press the League to become more conscious and more precise about the conflict-of-laws dimensions of the issue of married women’s nationality. It continued to press for legal aid for foreign citizens, to help foreigners bring inheritance and property claims either in the U.S. or in their countries of origin and to press U.S. and foreign courts to co-operate with each other in cross-border family law matters.

In between the two World Wars several ISS social workers were responsible for the relocation of Jewish children to the U.S., devising new rules on cross-border guardianship and adoption almost from scratch. After the Second World War ISS personnel collaborated with the United Nations Relief and Rehabilitation Administration in setting up cross-border adoption and guardianship standards for displaced unaccompanied minors. Meanwhile, back in the U.S., ISS members petitioned the US Congress to raise the quota for adopted children and to disallow adoptions by proxy.

Most of the issues the ISS had been working on in the first half of the 20th century belonged to an unchartered private international law territory. With modest funds, ISS branches often engaged in detailed legal research projects. Among many other gems, ISS USA’s archive contains numerous article clippings, extensive correspondence and research inquiries sent to universities, legislators or other social workers in an attempt to piece together private international law concepts and techniques that were unknown even to legal practitioners and scholars at the time.

Recovering the history of ISS’s engagement with private international questions is worthwhile in itself. But even more remarkably, one could zoom in and out of the ISS and thereby begin to write an entirely new history of private international law. Zooming in, one is exposed to a surprising joined history between transnational social work and private international law. As the ISS was pioneering new transnational case-law methods, it placed private international law squarely in its center, to the dismay of both social workers and private international law scholars. Reading social workers’ forays into private international law together with their writings on transnational social work methods and on multiculturalism offers a new window into private international law’s and social workers’ engagements with the foreign, contradictory and paradoxical as they may be. Zeroing in on the ISS as a private international law agent also exposes a whole range of women – social workers, philanthropists, ambassadors’ wives, Hollywood actresses – that are entirely unknown to a field that it yet to write its gendered history.

Zooming out of the ISS offers yet another lens through which to re-write private international law’s history. On the one hand, ISS combined a micro-analysis on individual cases and individual families with a macro-analysis of the geopolitical context causing hardship for families across borders. Tapping into this dual standpoint presses private international law, through the eyes of the ISS, to reconstruct its relationship with migration law and policy and with the field of international relations. On the other hand, moving the analysis from the ISS outward means joining private international law back with the extensive network that the ISS itself was relying on when doing its work. Among many other remarkable figures, this network exposes Jewish women émigrés to the Americas who were using their dual-legal background to help migrants or who had managed to become private international law professors in their own right. For example, although most would be familiar with Werner Goldschmidt’s work in Private International Law, few would know that his sister-in-law, Ilse Jaffe Goldschmidt opened an ISS branch in Venezuela (the Nansen Medal was awarded to its director general, Maryluz Schloeter Paredes, in 1980) and worked extensively on cross-border adoption matters.

Engaging with the history of the ISS means retracing an incredible range of connections between private and public international, migration law and policy, foreign affairs and social work, connections which were often built and fostered by the ISS itself. The archive contains interviews, studies in refugee camps, cross-branches socio-legal research studies, expert opinions offered to a whole range of actors, reports and opinion pieces on a broad set of geopolitical and socio-legal topics, as well as confidential letters sent between the branches cataloging the challenges of their unprecedented work. Whether one is interested to recover the range of private international law projects that the ISS was involved in or engages with the ISS as a window through which to gage a new history of private international law, its extensive archives in every corner of the world are waiting to be explored.

Roxana Banu is a Lecturer in Private International Law at Queen Mary University of London, Faculty of Law. Roxana researches on legal history and feminist perspectives on private international law. She is the author of Nineteenth Century Perspectives on Private International Law (OUP, 2018) and “A Relational Feminist Perspective on Private International Law,” awarded the ASIL Prize for the best paper in Private International Law in 2016. She is currently writing a book on a gendered history of private international law, which includes a more detailed discussion of the role of the ISS in the history of private international law. She offers a brief portrait of the women of the ISS in Roxana Banu, “Forgotten Female Actors in the History of Private International Law. The Women of the International Social Service 1920-1960,” in Immi Tallgren ed., Portraits of Women in International Law (forthcoming with OUP, 2021).

 

originally posted at www.iss-usa.org March 3, 2021

Thanks to Emmanuel Guinchard for the tip-off.

The European Commission is not agreeing to the the accession by the United Kingdom to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 2007. The Convention was applicable in the United Kingdom until 31 December 2020 due to the UK’s membership of the European Union. Since that date the UK is no longer Party to the Convention.

Accession to the Convention is limited: it is open to Members of the European Free Trade Association and EU Member States acting on behalf of certain overseas territories (Art. 70 and 71). If other States wish to accede, the unanimous acceptance by the Contracting States is required (Art. 70 and 72,3). As this is an exernal competence of the European Union (see the Lugano Opinion, 1/03 of 2006 by the European Court of Justice), the European Union should decide on the UK’s request for accession.

The European Commission’s refusal of the UK’s request is based on its assessment of the Lugano Convention’s nature as meant for States with a close regulatory integration with the EU and its view that the Hague Conventions should be used for relations between the EU and third States. Hopefully this means signature and ratification by the EU of the 2019 Hague Judgments Convention soon. Currently the Convention has only been signed by Israel, Ukraine and Uruguay and has not yet entered into force (see status).

The 2005 Hague Choice-of-Court Convention is already in force in the EU and in the UK, along with Mexico, Montenegro and Singapore. Besides these states, China, Israel, North Macedonia, Ukraine and the United States have signed but not yet ratified the convention (see status).

See the Commission’s communication.

Starting Thursday, 6 May, the ERC Building EU Civil Justice team at Erasmus School of Law will organize a bi-weekly seminar. The series will cover a variety of topics in the field of European civil justice and zoom in on the key topics the ERC group has been working on over the past years. These include the privatization and digitalization of civil justice, cross-border judicial co-operation, international business courts, and self-representation. Each session will bring together invited speakers and one of the ERC researchers. To join us for one or more of these sessions, please register here over Eventbrite.

Thursday, 6 May (15:00-17:00)

The Role of Out-of-Court Justice in the European Enforcement Regime

Friday, 21 May (10:00-12:00)

Modernising European Cross-Border Judicial Collaboration

Friday, 4 June (10:00-12:00)

Digital Constitutionalism and European Digital Policies

Friday, 18 June (10:00-12:00)

The Arbitralization of Justice

Friday, 2 July (10:00-12:00)

Civil Justice Without Lawyers: Moving Beyond an Adversarial System of Adjudication

Friday, 16 July (10:00-12:00)

European Civil Justice in Transition: Past, Present & Future

The first seminar (Thursday, 6 May 15:00-17:00) will deal with the role of out-of-court justice in the European enforcement landscape. Invited speaker Fabrizio Cafaggi (Italian Council of State) will talk about the role of Article 47 EUCHR in shaping the European enforcement triangle (administrative, judicial and ADR). Betül Kas (Erasmus University Rotterdam) will reflect on the role of collective ADR by example of the Volkswagen litigation.

The latest issue (21/1) of the Dutch journal Nederlands Internationaal Privaatrecht has been published. It includes the following articles.

Vriesendorp, W. van Kesteren, E. Vilarin-Seivane & S. Hinse, Automatic recognition of the Dutch undisclosed WHOA procedure in the European Union / p. 3-17

On 1 January 2021, the Act on Court Confirmation of Extrajudicial Restructuring Plans (‘WHOA’) was introduced into the Dutch legal framework. It allows for extrajudicial debt restructuring outside of insolvency proceedings, a novelty in the Netherlands. If certain requirements – mostly relating to due process and voting – are met, court confirmation of the restructuring plan can be requested. A court-confirmed restructuring plan is binding on all creditors and shareholders whose claims are part of that plan, regardless of their approval of the plan. WHOA is available in two distinct versions: one public and the other undisclosed. This article assesses on what basis a Dutch court may assume jurisdiction and if there is a basis for automatic recognition within the EU of a court order handed down in either a public or an undisclosed WHOA procedure.

Arons, Vaststelling van de internationale bevoegdheid en het toepasselijk recht in collectieve geschilbeslechting. In het bijzonder de ipr-aspecten van de Richtlijn representatieve vorderingen / p. 18-34

The application of international jurisdiction and applicable law rules in collective proceedings are topics of debate in legal literature and in case law. Collective proceedings distinguish in form between multiple individual claims brought in a single procedure and a collective claim instigated by a representative entity for the benefit of individual claimants. The ‘normal’ rules of private international law regarding jurisdiction (Brussel Ibis Regulation) and the applicable law (Rome I and Rome II Regulations) apply in collective proceedings. The recently adopted injunctions directive (2020/1828) does not affect this application.

 Nonetheless, the particularities of collective proceedings require an application that differs from its application in individual two-party adversarial proceedings. This article focuses on collective redress proceedings in which an entity seeks to enforce the rights to compensation of a group of individual claimants.

Collective proceedings have different models. In the assignment model the individual rights of the damaged parties are transferred to a single entity. Courts have to establish its jurisdiction and the applicable law in regard of each assigned right individually.

In the case of a collective claim brought by an entity (under Dutch law, claims based on Art. 3:305a BW) the courts cannot judge on the legal relationships of the individual parties whose rights are affected towards the defendant. The legal questions common to the group are central. This requires jurisdiction and the applicable law to be judged at an abstract level.

Bright, M.C. Marullo & F.J. Zamora Cabot, Private international law aspects of the Second Revised Draft of the legally binding instrument on business and human rights / p. 35-52

Claimants filing civil claims on the basis of alleged business-related human rights harms are often unable to access justice and remedy in a prompt, adequate and effective way, in accordance with the rule of law. In their current form, private international law rules on jurisdiction and applicable law often constitute significant barriers which prevent access to effective remedy in concrete cases. Against this backdrop, the Second Revised Draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises has adopted a number of provisions on private international law issues which seek to take into account the specificities of such claims and the need to redress the frequent imbalances of power between the parties. This article analyses the provisions on jurisdiction and applicable law and evaluate their potential to ensure effective access to remedy for the claimants.

Conference report

Touw, The Netherlands: a forum conveniens for collective redress? / p. 53-67

On the 5th of February 2021, the seminar ‘The Netherlands: a Forum Conveniens for Collective Redress?’ took place. The starting point of the seminar is a trend in which mass claims are finding their way into the Dutch judicial system. To what extent is the (changing) Dutch legal framework, i.e. the applicable European instruments on private international law and the adoption of the new Dutch law on collective redress, sufficiently equipped to handle these cases? And also, to what extent will the Dutch position change in light of international and European developments, i.e. the adoption of the European directive on collective redress for consumer matters, and Brexit? In the discussions that took place during the seminar, a consensus became apparent that the Netherlands will most likely remain a ‘soft power’ in collective redress, but that the developments do raise some thorny issues. Conclusive answers as to how the current situation will evolve are hard to provide, but a common ground to which the discussions seemed to return does shed light on the relevant considerations. When legal and policy decisions need to be made, only in the case of a fair balance, and a structural assessment thereof, between the prevention of abuse and sufficient access to justice, can the Netherlands indeed be a forum conveniens for collective redress.

 

Latest PhDs

Van Houtert, Jurisdiction in cross-border copyright infringement cases. Rethinking the approach of the Court of Justice of the European Union (dissertation, Maastricht University, 2020): A summary / p. 68-72

The dissertation demonstrates the need to rethink the CJEU’s approach to jurisdiction in cross-border copyright infringement cases. Considering the prevailing role of the EU courts as the ‘law finders’, chapter four argues that the CJEU’s interpretation must remain within the limits of the law. Based on common methods of interpretation, the dissertation therefore examines the leeway that the CJEU has regarding the interpretation of Article 7(2) Brussels Ibis in cross-border copyright infringement cases.

On 22 April 2021, Advocate General Campos Sánchez-Bordona presented his Opinion in the joined cases SC Gruber Logistics and Sindicatul Lucratorilor din Transporturi, C-152/20 and 218/20, in which he addresses in a pedagogical manner a number of issues of relevance to the choice of law to an individual employment contract under Article 8 of the Rome I Regulation as well as, indirectly, to the choice made in relation to a consumer contract under Article 6 of the Regulation.

Since numerous judgments and opinions were delivered at the Court of Justice at the end of April, we are only now reporting on the present cases, which are by no means less interesting than those previously covered.

 

Factual context

The factual contexts of the two requests for a preliminary ruling are somewhat similar. Both in the case C-152/20 and in the case C-218/20, the procedure pending before the national court (same for these two cases) concerns an action on payment of certain sums to the employees engaged as lorry drivers.

Notwithstanding the existence of some nuance discussed below, in both cases the employment contracts are said to contain a choice of law clause in favour of Romanian law.

In the former case, the employment contracts provided that the employees shall carry out their work in Romania and in “any location in the country and abroad as may be requested”. However, the employees argue that the place of performance lied within the territory of Italy and thus, according to Article 8 of the Rome I Regulation, it is the law of this Member State that governs at least their minimal wage.

In the latter case, the contract did not mention any specific place of performance. It is argued though that the employee carried out his work in Germany.

 

Preliminary questions and their assessment in the Opinion

It is in this context that the referring court decided to stay the main proceedings in these two cases and to refer to the Court nearly identical sets of three questions.

At the outset, AG notices that while the referring court is not asking for the interpretation of the Directive 96/71 (Posted Workers Directive 1996), it cannot be a priori excluded that the provisions thereof are of relevance in the context of the present cases. With respect to the terms and conditions of employment specified in its Article 3(1), the Directive would mandate the application of the law of the Member State where the work is carried out, rather than of the law applicable to the employment contract under the Rome I Regulation (points 29 to 33). However, in the absence of any clear information supporting the relevance of the Directive, AG deems it appropriate to follow the premise on which the national court relies: at present, it is the Rome I Regulation at stake (point 34).

In essence, the requests for a preliminary ruling raise three intertwined issues, namely: first, the interplay between the law chosen by the parties and the law that would be applicable in the lack of that choice, next, the qualification of the provisions on minimum wage as the “provisions that cannot be derogated from by agreement” within the meaning of Article 8(1) of the Regulation and finally, the admissibility of a compulsory (ex lege and de facto) choice of law clause in an individual employment contract.

 

1)    Interplay between the law chosen by the parties and the law that would be applicable in the lack of that choice

The first question as phrased by the referring court reads: “does the choice of law applicable to an individual employment contract exclude the application of the law of the country in which the employee has habitually carried out his or her work or does the fact that a choice of law has been made exclude the application of the second sentence of Article 8(1) of [the Rome I Regulation]?”

At first glance, the intention of the referring court may not seem perfectly clear. At least since the Rome Convention, the choice of law for the employment contract may not have the result of depriving the employee of the protection afforded to him (her) by provisions that cannot be derogated from by agreement under the law that would have been applicable in the absence of choice.

Indeed, as the referring court puts it in the requests for a preliminary ruling where it adopts a different perspective, by its first question it asks, in essence, whether Article 8(1) of the Rome I Regulation implies that a national court may override the parties’ choice of law where it appears from all the circumstances that the contract is more closely connected with a different country. It is not clear whether the reference to a ‘more closely connected’ country implies that the referring court is envisaging the application of Article 8(4) of the Regulation instead of Article 8(2) of the Regulation. This seems however to be irrelevant in the context of the issue at stake.

In his Opinion, mirroring the first question as phrased by the referring court, AG considers that the law chosen by the parties applies also with respect to “the protection afforded to [employee] by provisions that cannot be derogated from by agreement”, as long as the chosen law offers equal or higher standard of protection (point 107, first indent).

In actuality, AG seems to identify in a precise manner the point of hesitation that inspired the specific wording of the first question. For the referring court, the law applicable in the absence of choice seems to be starting point and the law chosen by the parties is seen as a subsequent intervening factor.

Regardless where such starting point is set, the law that would have been applicable in the absence of choice applies insofar as the law chosen by the parties is less protective towards the employee. This is arguably also the case under Article 6 of the Rome I Regulation.

 

2)    Qualification of the provisions on minimum wage as the “provisions that cannot be derogated from by agreement”

By its second question, the referring courts seeks to establish whether the provisions on minimum wage may be qualified as the “provisions that cannot be derogated from by agreement” within the meaning of Article 8(1) of the Rome I Regulation.

In this context, AG clarifies that the notion of “provisions that cannot be derogated from by agreement” is not equivalent to the notion of “overriding mandatory provisions” in the sense of Article 9 of the Regulation (points 64 to 68).

Answering the second question, he considers that the provisions on minimum wage of the country where the employee has habitually carried out his (her) work may in principle be qualified as “provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable”. This consideration is accompanied by a caveat. The prevalence of these provisions depends on their “configuration” in the national legal system in question, which it is for the referring court to verify (point 107, second indent).

 

3)    Admissibility of a compulsory (ex lege and de facto) choice of law clause in an individual employment contract

The third question contains some nuance. In essence, the referring courts is attempting to determine whether a compulsory (ex lege in the case C-152/20 and de facto in the case C-218/20) choice of law clause in an individual employment contract is admissible under Article 3 of the Rome I Regulation.

On the one hand, in the case C-152/20, the third questions reads: “[does] the specification, in an individual employment contract, of the provisions of the Romanian Labour Code does not equate to a choice of Romanian law, in so far as, in Romania, it is well-known that there is a legal obligation to include such a choice-of-law clause in individual employment contracts? In other words, is Article 3 of [of the Rome I Regulation] to be interpreted as precluding national rules and practices pursuant to which a clause specifying the choice of Romanian law must necessarily be included in individual employment contracts?”

On the other hand, in the case C-218/20, the third question is phrased as follows: “does the specification, in an individual employment contract, of the provisions of the Romanian Labour Code equate to a choice of Romanian law, in so far as, in Romania, it is well-known that the employer predetermines the content of the individual employment contract?”.

In his assessment of the third questions, AG distinguishes these two scenarios but evaluates them in the light of single core question: if a choice of law clause is compulsory, may one still consider that the parties have exercised their freedom of choice of the law applicable to their contract? (see, in that vein, points 98 and 104).

Ultimately, the proposed answer to the third question in the two cases is that Articles 3 and Article 8 of the Rome I Regulation are to be interpreted to the effect that a choice of the law applicable to an individual employment contract, explicit or implicit, “must be free for both parties” (“ha de ser libre para ambas partes”), which is not the case where a national provision requires a choice of law clause to be inserted in that contract. However, Articles 3 and 8 of the Regulation do not prevent such a clause from being drafted in the contract in advance by decision of the employer, to which the employee gives his consent (point 107, third indent).

The Opinion can be consulted here (the English version is not available).

Symeon C Symeonides recently published his regular piece with American Journal of Comparative Law  titled “Private International Law Bibliography 2020: U.S. and Foreign Sources in English.”

Arthur Poon recently published an article with International and Comparative Law Quarterly titled: “Determining the Place of Performance under Article 7(1) of the Brussels I Recast.”

The abstract reads as follows:

“This article calls for a reassessment of the methodology in determining the place of contractual performance under Article 7(1) of the Brussels I Regulation Recast. The first part of the article deals with Article 7(1)(a). It argues that in light of the adoption of autonomous linking factors under Article 7(1)(b), more types of contracts presently not covered within the ambits of Article 7(1)(b) should centralise jurisdiction at the places of performance of their characteristic obligations. The second part of the article considers the way Article 7(1) operates when there are multiple places of performance under the contract. The test devised by the Court of Justice of the European Union in this regard is not only difficult to apply, but the application of the test also often does not guarantee a close connection between the claim and the court taking jurisdiction. This article argues that when a claim is made in respect of a contractual obligation to be performed in more than one Member State, Article 4 should be applied instead of Article 7(1).”