Conflictoflaws

By Zheng Sophia Tang, Wuhan University (China) and Newcastle University (UK)

Mr Ting Liao, PhD candidate at the Wuhan University Institute of International Law, published a note on the Chinese Smart Court, which attracted a lot of interests and attention. We have responded a few enquires and comments, some relating to the procedure and feasibility of virtual/remote hearing. Based on the questions we have received, this note provides more details on how the virtual hearing is conducted in China.

1. Background

The fast development of virtual hearing and its wide use in practice in China is attributed to the Covid-19 pandemic. The pandemic causes serious disruption to litigation. China is a country that has adopted the toughest prevention and controlling measures. Entrance restriction, lockdown, quarantine and social distancing challenge the court process and case management. In the meantime, it offers the Chinese courts a chance to reform and modernize their judicial systems by utilizing modern technology. Since suspending limitation period may lead to backlog and delay, more Chinese courts favour the virtual proceedings. This strategy improves judicial efficiency and helps parties’ access to justice in the unusual circumstances.

Before the pandemic, Chinese courts have already started their exploration of online proceedings. In 2015, the Provisions of the SPC on Several Issues Concerning Registration and Filling of Cases provides the People’s courts should provide litigation services including online filing.[1] In the same year, the SPC published the Civil Procedural Law Interpretation, which states that the parties can make agreement on the form of hearing, including virtual hearing utilizing visual and audio transfer technology. The parties can make application and the court can decide whether to approve.[2] Although online trial from filing to hearing is permitted by law, but it was rarely used in practice due to the tradition and social psychology. The adoption of virtual proceedings for cases with large value is even rarer. The relevant procedure and technology are also taking time to progress and maturase.

Because the pandemic and the controlling measures make serious disruption to traditional form of litigation, online trial becomes more frequently used and develops to a more advanced stage. The SPC provids macro policy instructions that Chinese courts should actively utilize online litigation platform, such as China Movable Micro Court, which allows the parties to conduct litigation through mobile, and Litigation Service Website to carry out comprehensive online litigation activities, including filing, mediation, evidence exchange, hearing, judgment, and service of procedure.[3] While more administrative and technological efforts have been put in, and the pandemic made no better alternatives, more trials were done online. For example, between Feb and Nov 2020, 959 hearings (16.42%) and 5020 mediations were carried out online in the Qianhai Court. Between Feb and July 2020, courts in Beijing conducted average 1,300-1,500 virtual hearings per day.

Some important cases were also tried online. For example, Boa Barges As v Nanjing Yichun Shipbuilding concerned a dispute worth nearly $50,000,000.[4] The contract originally included a clause to resolve disputes in London Court of International Arbitration (LCIA) and to apply English law. However, the pandemic outbroke in the UK in March 2020. The parties entered into a supplementary agreement in May 2020 to submit the dispute to Nanjing Maritime Court and apply Chinese law. Chinese commentators believe the change of chosen forum and governing law demonstrates the parties’ trust on Chinese international judicial system and courts’ capacity. Nanjing Maritime Court followed the SPC instruction by allowing the foreign party to postpone submitting authorization notarization and authentication, and conducted online mediation. In China, mediation is part of the formal litigation procedure. The parties settled by mediation within 27 days.

In 2021, the SPC published the Online Litigation Regulations for the People’s Courts, including detailed rules for how online litigation should be conducted.[5] It provides five principles for online litigation, including fairness and efficiency, freedom of choice, protection of rights, convenience and security.[6] This Regulations provides further clarification of certain key procedural issues and provide unified micro-guidance which helps the local courts to operate in the same standards and according to the same rule.

2. Initiation of virtual hearing

Virtual proceedings may lead to several controversies. Firstly, how are the virtual proceedings initiated? Could the court propose by its own motive, or should the parties reach agreement? What if a physical trial is not possible due to the pandemic control, both the court and the claimant want a virtual trial, but the defendant refuse to consent? In such a case, would a virtual trial in the absence of the defendant an infringement of the defendant’s due process right and should not be enforced abroad? What if the defendant and the court agree to go ahead with a virtual trial, but the claimant refuses? Would a default judgment in the absence of the claimant infringe the claimant’s due process right?

The Online Litigation Regulations provides clear guidance. Online litigation should follow the principle of freedom of choice. In other words, parties should consent the online procedure and cannot be forced by the court.[7] If a party voluntarily chooses online litigation, the court can conduct litigation procedure online. If all the parties agree on online litigation, the relevant procedure can be conducted online. If some parties agree on online litigation while others not, the court can conduct the procedure half online for parties who give consent and half offline for other parties.[8] However, what if a party cannot physically participate in the offline litigation because of the pandemic, and this party also refuses online litigation? This party certainly can apply for suspension or postponement of procedure. However, if this party has no legitimate reason to refuse online litigation like technical problems or the lack of computer literacy, would not the court consider such a refusal unreasonable? Does it mean a person may use the refusal rights to delay otherwise legitimate procedure to the detriment of the other party? Would the refusal turn to be a torpedo action? Does this strict autonomy approach meet the purpose of good faith and judicial efficiency? Although the freedom of choice is important, would it necessary to provide some flexibility by allowing the court to assess special circumstances of a case? It seems that this strict consent condition is based on the traditional attitude against online litigation. This attitude makes offline litigation a priority and online litigation an exception, which will only be used by parties’ choice. This approach does not provide online litigation true equal footing as offline litigation, and still reflect the social psychological concern over the use of modern technology in the court room. Although the pandemic speed the development of online litigation in China, it is treated as an exceptional emergency measure and the emphasis on it may fade away gradually after the pandemic is ending, unless the social psychology is also changed after a longer period of successful use of online litigation.

3. Public hearing

Would virtual hearing satisfy the standard of public hearing? Certainly, there is no legal restriction preventing public access to the hearing.[9] Furthermore, the Online Litigation Regulations provides that online litigation must be made public pursuant to law and judicial interpretation, unless the case concerns national security, state secrets, individual privacy, or the case concerns a minor, commercial secrets and divorce where the parties apply for the hearing not be made public.[10] However, how to make online hearing public is a technical question. If the virtual hearing is organised online, without a openly published “link”, no public will be able to access the virtual court room and the trial is “secret” as a matter of fact. This may practically evade the public hearing requirement.

Chinese online litigation has taken into account the public hearing requirement. Both SPC litigation service website and the Movable Micro Court make open hearing an integral part of the platform. The public can register an account for free and log in the website. After log in, the public can find all available services in the page, including Hearing Livestream. After click in, the pubic can find the case that they want to watch by searching the court or browse the Live Courtroom Today. There are also recorded hearing for the public to watch. In contrast to traditional hearing, the only extra requirement for the public to access to the court is registration, which requires the verification of ID through triple security check: uploading the scan/photo of ID card, verifying mobile numbers via security code and facial recognition.

It shows that Chinese virtual hearing has been developed to a mature stage, which meets the requirement of due process protection and public hearing. Chinese virtue hearing has been systematically updated with the quick equipment of modern technologies and well-established online platform. This platform is made available to the local courts to use through the institutional power of the centre. Virtual hearing in China, thus, will not cause challenge in terms of public hearing.

4. Evidence

Although blockchain technology can prove the authenticity of digital evidence, many original evidence exists offline. The parties need to upload an electronic copy of those evidence through the “Exchange evidence and cross-examination” session of the smart court platform, and other parties can raise queries and challenges. During trial, the litigation parties display the original evidence to the court and other parties through the video camera. If the court and other parties raise no challenge during the pre-trial online cross-examination stage and in the hearing, the evidence may be admitted. It, of course, raises issues of credibility, because electronic copy may be tempered with and the image displayed by video may not be clear and cannot be touched, smelled and felt for a proper evaluation. Courts may adopt other measures to tackle this problem. For example, some courts may require original evidence to be posted to the court if the court and other parties are not satisfied of the distance examination of evidence. Other courts may organise offline cross-examination of the evidence by convening a pre-trial meeting. However, in doing so, the value of the online trial will be reduced, making the trial process lengthier and more inefficient.

The practical difficulty also exists in witness sequestration. Article 74 of the “Several Provisions of the Supreme People’s Court on Evidence in Civil Litigations” provides witnesses in civil proceedings shall not be in court during other witnesses’ testimony, so they cannot hear what other witnesses say.[11] This is a measure to prevent fabrication, collusion, contamination and inaccuracy. However, in virtual hearings, it is difficult for judges to completely avoid witnesses from listening to other witnesses’ testimony online.

 

 

[1] Provisions of the SPC on Several Issues Concerning Registration and Filling of Cases, Fa Shi [2015] No8, Art 14.

[2] The SPC Interpretation of the Application of the PRC Civil Procedure Law, Art 295.

[3] Notice of the SPC about Strengthening and Regulating Online Litigation during the Prevention and Controlling of the Covid-19 Pandemic, Fa [2020] 49, Art 1.

[4] The Supreme People’s Court issued the sixth of ten typical cases of national maritime trials in 2020: BOABARGESAS v Nanjing Yichun Shipbuilding Co., Ltd. Ship.

[5] SPC, Online Litigation Regulations for the People’s Court, Fa Shi [2021] No 12.

[6] Art 2.

[7] Art 2(2).

[8] Art 4.

[10] Art 27.

[11] Fa Shi [2019] 19.

 

Written by Lena-Maria Möller,
Max Planck Institute for Comparative and International Private Law
Visiting Scholar, New York University Abu Dhabi

 

On 7 November 2021, Abu Dhabi, the largest of seven emirates that form the United Arab Emirates, announced the passing of a new personal status law for non-Muslim foreigners. The law carries forward a series of recent legal reforms that aim at providing greater legal certainty for the country’s large expatriate population. The law’s novelty lies in the fact that it combines aspects of substantive and international family law. It is significant also because it introduces civil marriage – albeit only for non-Muslim foreigners – into the country’s domestic family law regime. While generally welcomed as possibly easing judicial procedure and court proceedings, the new legislation also raises several questions, especially as regards the law’s application alongside the Emirati conflict-of-laws rules.

 

Multinationalism and its challenges for family law

Since the country’s foundation exactly 50 years ago, the United Arab Emirates have been characterized by large-scale labor migration of both low- and high-skilled workers and, as a result, by its highly diverse, multinational population. In a country of around 10 million inhabitants, only a little over one million are national citizens. This demographic makeup has been a challenge for both national and international family law as around 70% of cases filed with the domestic family courts have an international element. Prior to recent legal reforms, foreigners would either settle their personal status matters in their home country, or they would approach the local personal status courts where, in theory, they could choose between having the Islamically inspired Federal Personal Status Codes of 2005 or the laws of their home country applied. In legal practice, however, most personal status cases were settled according to domestic law. Among the main reasons was reluctance on the part of some family court judges to apply a set of rules they were not familiar with as well as the parties’ concerns that the application of their own national law would lead to their case being more costly and time-consuming. This was because Emirati courts have demonstrated a strong tendency to consider the foreign law as a fact which will have to be proven by the parties.

While domestic and international family law have traditionally been a matter of federal legislation, a few years ago, the emirate of Abu Dhabi already launched a first local initiative to offer alternative jurisdiction to its (non-Muslim) expatriate community. In late summer 2017, the emirate announced that it would allow Christian expatriates to divorce through their church. Instead of filing a divorce petition with the domestic family courts, foreigners residing in Abu Dhabi henceforth had the option of seeking mediation in their own place of worship. The proposal envisioned that once the couple, through such church-run mediation, had reached a divorce agreement settling questions regarding assets and the custody of children, these documents only needed to be authorized by the national courts to become enforceable. Initially, the amendment had been agreed upon only between the emirate of Abu Dhabi and local Christian leaders, but the inclusion of Hindu and Sikh religious communities was equally envisioned. The initiative to introduce church-run mediation and dispute resolution for Christian expatriates, however, proved impractical. For example, it remained unclear what legal status such religious out-of-court agreements would have in the home countries of foreigners residing in the United Arab Emirates. This was the case especially for all those expatriates whose home countries had abolished religious family adjudication or required a court’s substantive involvement in the dissolution of a marriage. The proposed alternative jurisdiction thus failed to meet the needs of many non-Muslim expatriates and instead another legislative amendment was introduced at the federal level in 2020.

In September 2020, a federal decree-law amended the country’s international family law by introducing recourse to the lex loci celebrationis. Instead of applying the law of a husband’s nationality, as was the case before, on the federal level, questions of marriage and divorce are now governed by the law of the country in which the marriage was concluded. While, at first glance, this conflict-of-law rule signaled a departure from nationality as the main connecting factor, the amendment was in fact framed in terms of expatriates being given the option of having “their own” laws, and those to which they have a stronger connection, applied. The new decree-law therefore also reiterated that nationality would determine the law applicable to a deceased person’s estate. The principle aim of the amendment was to offer expatriates access to a legal regime that they felt closely connected with and that met their regulatory demands best.

 

New national legislation for international cases

With Abu Dhabi’s new personal status law for non-Muslim foreigners, the transition from religious affiliation to foreign nationality as the main connecting factor (and thereby identity marker in the eyes of the legislator) has been partially reversed. Admittedly, the law, which contains a mere twenty articles (as opposed to the 357 articles-long Federal Personal Status Code), offers an accessible and easy-to-understand basis for adjudicating the most common personal status cases, including concluding and dissolving a marriage before the soon-to-be-established bilingual (Arabic and English) family courts for non-Muslim foreigners. As proclaimed in Article 2, the law is based on international best practices and aims to provide foreigners with a law that they find familiar in terms of “culture”, “customs”, and language. The same article also highlights that among the principle aims of the law is to safeguard the best interests of the child particularly upon divorce of the parents. Article 3 allows foreigners to opt out of the new law and instead request the application of the law of their home country. It must be assumed that in such cases it still falls upon the parties to present the detailed content of the foreign law and provide the court with its official translation.

Eleven articles of the new law are dedicated to substantive questions of personal status and stipulate, inter alia, that spouses to a civil marriage must at least be eighteen years of age (which corresponds to the rules in the Federal Personal Status Code) and must both explicitly declare their consent to marriage (i.e., the woman must not be represented by a marriage guardian as the country’s Islamically inspired family law envisions instead) (Article 4). Both spouses have access to unilateral, judicial divorce without having to demonstrate reasons for divorce, and the court will not establish a party responsible for the breakdown of the marriage (Article 6-7). The law envisions post-divorce maintenance only for the wife and does not contain any provisions entitling the divorced husband to alimony (Article 8). This rule stands in contrast to a general provision in the new law, Article 16, which reiterates the equality of men and women in the application of the law. The default post-divorce custody arrangement is joint custody with the competent court having discretion to decide to the contrary (Article 9-10). Filiation of a child is established either through marriage or acknowledgment (Article 14). Finally, the new law also covers questions of testate and intestate succession, provides for the deposition of a foreigner’s will in a special register (Article 13), and defines proportional rights for inheritance in case a non-Muslim foreigner dies intestate. In this case, the default rule is that the estate is divided in half between the deceased’s spouse and their children (without any distinction between sons and daughters) or the deceased’s parents and siblings (Article 11).

As already noted, the law is rather straightforward and lays down the most basic rules for different matters of personal status. Any questions not covered in the law will be regulated according to local and federal laws and legislation (Article 18), presumably including the Federal Personal Status Code, and the law states that additional executive regulations will be passed to regulate the application of the law in detail (Article 19).

 

Open questions

A substantive family law that is only applicable to foreigners is by any means a novel approach in family law internationally. Had the new law been aimed at governing matters of personal status for all non-Muslims (foreigners and national citizens) in the country, it would be consistent with the firmly established approach in the region of dividing the applicable family and inheritance law along religious lines. In its current form, however, the law conflates religious affiliation and citizenship as connecting factors in international and domestic family law. This poses a problem for all Muslim foreigners in the United Arab Emirates, especially those hailing from countries without religiously inspired family law. Should they not wish to be subject to the country’s Federal Personal Status Code, they must still demand the application of the laws of their home country and will have to go through the time-consuming and costly process of proving the content of these laws to the competent court. Their fellow countrymen and -women are spared such efforts owing merely to their different religious affiliation.

One may also wonder about the chances of judgments based on the new law being recognized in the parties’ home countries. It will be difficult for foreign courts to comprehend why the Emirati conflict-of-laws rules lead to the application of foreign law when instead the same case has been decided by a domestic set of rules designed specifically for foreigners. To add clarity, it would be useful to reference the new personal status law in the relevant rules on international family law. In addition, the wording of Article 3, which allows for foreigners to demand “the application of the law of their home country”, should ideally refer to the applicable conflict-of-laws rules in the country’s Civil Code – as does the corresponding rule in the Federal Personal Status Code. Otherwise, in some personal status matters, divorce for example, a total of three applicable laws are now competing with one another: the new domestic law for non-Muslim foreigners, the law of their home country, and the lex loci celebrationis that was introduced through the abovementioned conflict-of-laws reform of 2020.

 

Note: The Personal Status Law for Non-Muslim Foreigners in the Emirate of Abu Dhabi has not yet been published in the local gazette. The analysis above is based on a first unofficial version of the law that was obtained in advance.

Author: Ting LIAO, Ph.D. candidate, Wuhan University Institute of International Law

A. Technology in the Context of Judicial Reform

According to Max Weber, “the modern judge is a vending machine into which the pleadings are inserted together with the fee, and which then disgorges the judgment together with the reasons mechanically derived from the code.” [1]Max Weber’s conjecture is a metaphor for the vital connotation of intelligence. The key elements of intelligence are people, data and technology. So, how these elements are utilized in the judicial system?

Generally, a significant number of courts are experimenting with the use of internet, artificial intelligence and blockchain for case filling, investigation and evidence obtaining, trials and the initiation of ADR procedures. The so-called smart justice projects are commenced in many countries. China has also made significant progress in this domain. In addition to accelerating the use of the internet technology, the Supreme People’s Court of China has demonstrated its ambition to use AI  and blockchain to solve problems in the judicial proceedings.[2]

B. Smart Court in China: An Overview

In China, the smart justice is a big project contains smart court, smart judicial administration and smart procuratorate. The smart court is the core of the entire smart justice project. “The Opinions of the Supreme People’s Court on Accelerating the Construction of Smart Courts” encourages people’s courts around the country to apply AI to provide smarter litigation and legal literacy services to the public, while reducing the burden of non-judicial matters for court staff as much as possible.

The construction of China’s smart courts involves more than 3,000 courts, more than 10,000 detached tribunals and more than 4,000 collaborative departments, containing tens of thousands of information systems such as information infrastructure, application systems, data resources, network security and operation and maintenance, etc. The entire smart court information system is particularly big and complex.

The smart court is a functional service platform for the informatization of the people’s courts. The platform integrates several cutting-edge technological capabilities, including face recognition identity verification, multi-way audio and video call functions, voice recognition functions and non-tax fee payment functions. These functions are tailor-made capability packages for courts, and they can be used in a variety of scenarios such as identity verification, online documents accessing, remote mediation, remote proceedings, enforcement, court hearing records and internal things. Through the smart platform, any court can easily access to the capabilities, and quickly get successful experiences from any other courts in China.

C. Examples of Good Practice

1. Provide Litigation Information and Services

Peoples’ Courts in nine provinces or municipalities, including Beijing, Shanghai and Guangdong, have officially launched artificial intelligence terminals in their litigation service halls. Through these AI terminals, the public can access information about litigation and judicial procedures, as well as basic information about judges or court staff. The AI terminals can also automatically create judicial documents based on the information provided by the parties. More importantly, the AI can provide the parties risk analysis before filing a lawsuit. For example, artificial intelligence machines in courts in Beijing, Shanghai and Jiangsu can assess the possible outcome of litigation for the parties. The results are based on the AI’s analysis of more than 7,000 Chinese laws and regulations stored in its system, as well as numerous judicial precedents. At the same time, the AI machine can also suggest alternative dispute resolution options. For example, when an arbitration clause is present, the system will suggest arbitration, in divorce cases, if one of the parties unable to appear in people’s court, then the smart system shall advise online mediation.

In addition to parties, as to the service for the court proceeding itself, the new generation of technology[3] is used in the smart proceeding and is deeply integrated with it. These technologies provide effective support for judges’ decision making, and provide accurate portraits of natural persons, legal persons, cases, lawyers and other subjects. They also provide fast, convenient and multi-dimensional search and query services and automatic report services for difficult cases.

2. Transfer of Case Materials

Some People’s Courts in Shenzhen, Shanghai and Jiangsu have set up artificial intelligence service terminals for parties to scan and submit electronic copies of materials to the court. This initiative can speed up the process of evidence submission and classification of evidence. In addition, digital transmission can also speed up the handover of case materials between different courts, especially in appellate cases where the court of first instance must transfer the case materials to the appellate court.

3. Evidence Collection and Preservation

Technically speaking, the blockchain and its extensions can be used to secure electronic data and prevent tampering during the entire cycle of electronic data production, collection, transfer and storage, thus providing an effective means of investigation for relevant organizations. Comparing to traditional investigation methods, blockchain technology is suitable as an important subsidiary way to electronic data collection and preservation. This is because the blockchain’s timestamp can be used to mark the time when the electronic data was created, and the signature from the person’s private key can be used to verify the party’s genuine intent. The traceable characteristics of blockchain can facilitate the collection and identification of electronic data.[4]

In judicial practice, for example, the electronic evidence platform is on the homepage of Court’s litigation services website of Zhengzhou Intermediate People’s. It is possible to obtain evidence and make preservation on judicial blockchain of the court. This platform providing services such as evidence verification, evidence preservation, e-discovery and blockchain-based public disclosure. The evidence, such as electronic contracts, can be uploaded directly via the webpage, and the abstract of electronic data can be recorded in the blockchain in real time. Furthermore, this judicial blockchain has three tiers (pictured below). The first tier is the client side, which helps parties submit evidence, complaints and other services. The second tier is the server side, which provides trusted blockchain services such as real-name certification, timestamping and data storage. The third tier is the judicial side, which uses blockchain technology to form a consortium chain of judicial authentication, notaries and the court itself as nodes to form a comprehensive blockchain network of judicial proceedings.[5] In other words, people’s court shall be regarded as the key node on the chain, which can solve the contradiction between decentralization and the concentration of judicial authority, and this kind of blockchain is therefore more suitable for electronic evidence preservation.

Secondly, for lawyers, the validity of electronic lawyer investigation orders can be verified through judicial blockchain, a technology that significantly enhances the credibility of investigation orders and the convenience of investigations. For example? in Jilin Province, the entire process of application, approval, issuance, utilization and feedback of an investigation order is processed online. Lawyers firstly apply for an investigation order online, and after the judge approves it, the platform shall create an electronic investigation order and automatically uploads it to the judicial blockchain for storage, while sending it to lawyers in the form of electronic service. Lawyers shall hold the electronic investigation order to target entities to collect evidence. Those entities can scan the QR code on the order, and login to the judicial blockchain platform to verify the order. Then they shall provide the corresponding investigation evidence materials in accordance with the content of the investigation order.[6]

In addition, it should be noted that Article 11 of the “Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases by Internet Courts”, which came into force in 2018, explicitly recognizes data carriers on the blockchain as evidence in civil proceedings for the first time, but their validity needs to be verified by the courts.

The issue of blockchain evidence has already caused discussion among judges, particularly regarding the use of blockchain-based evidence in cases. For instance, what criteria should courts adopt to read such data? Approaches in judicial practice vary. Currently, there is no consistent approach in people’s court as to whether blockchain evidence needs to be submitted as original evidence. In certain recent cases, such as (2019) Jing 0491 Min Chu No. 805 Case and (2020) Jing 04 Min Zhong No. 309 Case, the court’s considerations for the determination of blockchain evidence are inconsistent.

4. Case Management

People’s Courts in Shanghai and Shenzhen are piloting an artificial intelligence-assisted case management system that can analyze and automatically collate similar judicial precedents for judges to refer to. The system is also able to analyze errors in judgments drafted by judges by comparing the evidence in current cases with that in precedent cases. This will help maintain uniformity in judicial decisions. Currently, the system for criminal cases has been put into use, while the system for civil and administrative cases is still being tested in pilot stage.

5. Online Proceedings

Chinese courts had already adopted online proceedings in individual cases before 2018. The Supreme People’s Court had released the Provisions of the Supreme People’s Court on Certain Issues Concerning the Hearing of Cases in Internet Courts. From 1 January 2020 to 31 May 2021, 12.197 million cases were filed online by courts nationwide, with online filing accounting for 28.3% of all cases filed; 6.513 million total online mediation, 6.142,900 successful mediation cases before litigation; 1.288 million online court proceedings 33.833 million electronic service of documents.[7]

Recently, the Supreme Court, some provincial courts and municipal courts have also issued rules on “online proceedings”. The Supreme People’s Court has issued the Online Litigation Regulations for the People’s Court 2021 which stipulates online litigation should follow the five principles, namely fairness and efficiency, legitimate and voluntary principle, protection of rights, principle of safety and reliability. This regulation emphasizes the principles of application of technology, strictly adhere to technology neutrality, to ensure that technology is reliable. [8]Furthermore, in 2021 the Supreme People’s Court has issued the Several Regulations on Providing Online Filing Services for Cross-border Litigants, relying on the provision of online filing for cross-border litigants through the China mobile micro court. Based on Tencent’s cloud technology, the Micro Court can also be linked to the most used communication tool in China, namely WeChat. Using the micro courts mini programs allows for a dozen functions such as public services, litigation, enforcement and personal case management.[9]

6. Framework of the Litigation Services Network

The litigation service network is an important carrier for the court to conduct business and litigation services on the Internet, providing convenient and efficient online litigation services for parties and litigation agents, greatly facilitating the public’s litigation, while strengthening the supervision and management of the court’s litigation services, enhancing the quality of litigation services and improving the standardization of litigation services. The picture shows the functioning and operation mechanism of a litigation services network.[10]

[1] See Max Weber, On Law in Economy and Society (Edward Shils and Max Rheinstein trans., Harvard University Press 1954).

[2] For example, in 2019, the Supreme People’s Court of China approved several documents such as “The Report on the Promotion of China Mobile Micro Courts”, “The Report on the Construction of the Smart Court Laboratory”, and “The General Idea of Comprehensively Promoting the Construction of Judicial Artificial Intelligence”.

[3] Including big data, cloud computing, knowledge mapping, text mining, optical character recognition (OCR), natural language processing (NLP) etc.

[4] See Trusted Blockchain Initiatives, White Paper on Blockchain Preservation of Judicial Evidence (2019).

[5] See Zhengzhou Court Judicial Service Website < http://www.zzfyssfw.gov.cn/zjy/> accessed 09 Nov. 2021; A consortium chain is a blockchain system that is open to a specific set of organizations, and this licensing mechanism then brings a potential hub to the blockchain, and The node access system in a consortium chain means that it already grants a certain level of trust to the nodes.. see also Internet court of Hangzhou < https://blockchain.netcourt.gov.cn/first>accessed 09 Nov. 2021.

[6] See e.g., a pilot project of the Supreme People’s Court of China, the Jilin Intermediate People’s Court proposed the Trusted Operation Application Scene: Full Process Assurance for Litigation Services (Electronic Lawyer Investigation Order); see also People’s Court Daily, Piloting the “judicial chain” and multipions practice of Jilin’s smart court construction< http://legal.people.com.cn/n1/2020/1124/c42510-31942250.html>accessed 08 Nov. 2021.

[7] See Chinanews < https://www.chinanews.com/gn/2021/06-17/9501170.shtml>accessed 08 Nov. 2021.

[8] SPC of PRC, Report about Online Litigation Regulation for the People’s Court< http://www.court.gov.cn/zixun-xiangqing-317061.html>accessed 08 Nov. 2021.

[9] See e.g., Xinhuanet < http://www.xinhuanet.com/legal/2020-05/07/c_1125953941.htm>accessed 08 Nov. 2021.

[10] Xu Jianfeng et.al., Introduction to Smart Court System Engineering (People’s Court Press 2021).

Written by Hans van Loon, a member of GEDIP and former Secretary General of the Hague Conference on Private International Law (HCCH).  This post was previously published by the EAPIL blog.

The European Group for Private International Law (GEDIP) at its annual – virtual – meeting in September 2021 adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability.

The GEDIP adopted this Recommendation although the Commission has not yet published its legislative initiative on mandatory human rights and environmental due diligence obligations for companies, to which EU Commissioner for Justice, Didier Reynders, committed on 19 April 2019[1]. Meanwhile, however, on 10 March 2021 the European Parliament adopted a Resolution “with recommendations to the Commission on corporate due diligence and corporate accountability”[2].  As the Commission will likely draw inspiration from this document, the GEDIP considered the EP Resolution when drafting its Recommendation. The GEDIP also took into account various legislative initiatives taken by Member States such as the 2017 French Loi sur le devoir de vigilance and the 2021 German legislative proposal for a Sorgfaltsplichtengesetz[3], as well as recent case law in the UK and the Netherlands[4]

The Recommendation starts from the premise that the future EU Instrument (whether a Regulation or a Directive) will have a broad, cross-sectoral scope, and will apply both to companies established in the EU and those in a third State when operating in the internal market. In order to accomplish its aim, the Instrument, in addition to a public law monitoring and enforcement system, should create civil law duties for the relevant companies. Since such duties may extend beyond Member States’ territories, they will give rise to issues of private international law. To be effective, the Instrument should not leave their regulation to the differing PIL systems of the Member States. Ultimately, the proposed rules may find their place in revised texts of EU regulations, including Brussels I recast, Rome I and Rome II. But since revisions of those regulations are unlikely to take place before the adoption of the Instrument, and as these rules are indispensable for its proper operation, the proposal is to include them in the Instrument itself.

The Recommendation therefore proposes that the Instrument extends the current provision on connected claims (Art. 8 (1) Brussels I) to cases where the defendant is not domiciled in a Member State, creates a forum necessitatis where no jurisdiction is available within the EU, determines that the Instrument’s provisions have overriding mandatory effect whatever law may apply to contractual and non-contractual obligations and companies, and extends the rule of Art. 7 of Rome II to claims resulting from non-compliance in respect of all matters covered by the Instrument, while excluding the possibility of invoking Art. 17 of Rome II by way of exoneration[5]

[1] European Commission promises mandatory due diligence legislation in 2021 – RBC (responsiblebusinessconduct.eu).

[2] https://www.europarl.europa.eu/doceo/document/TA-9-2021-0073_EN.html.

[3] See II Background to the Proposal, 3.

[4] See II Background to the Proposal 2.

[5] The Annex to the Proposal  contains suggestions concerning the form and the substantive scope of the future EU instrument.

Posted at the request of Aastha Asthana, Managing Editor of Trade Law and Development

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“Looking Ahead: Addressing the Challenges Faced by the International Trade Regime”

Issue 14.1 | Summer ’22

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a constructive and democratic debate on emergent issues in international economic law and to serve as a forum for the discussion and distribution of ideas. Towards these ends, the Journal has published works by noted scholars such as the WTO DDG Yonov F. Agah, Dr. (Prof.) Ernst Ulrich Petersmann, Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Dr. (Prof.) Gabrielle Marceau, Prof. Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law for seven consecutive years by Washington and Lee University, School of Law.

 

Pursuant to this philosophy, the Board of Editors of Trade, Law and Development is pleased to announce “Looking Ahead: Addressing the Challenges Faced by the International Trade Regime” as the theme for its next Special Issue (Vol. XIV, No. 1).

 

With the “crown jewel of the WTO” in crisis and the deadlock between developing and developed States in various negotiations at the WTO, Members’ confidence in the multilateral trading system is at an all-time low. This is evidenced by the rising number of FTAs around the globe, and States preferring regionalism over the multilateral framework. In turn, this has also severally impacted the WTO’s ability to provide a forum for negotiations to liberalise trade and establish new rules; to oversee and administer multilateral trade rules; and to resolve trade disputes amongst members. Furthermore, the disruption caused by the COVID-19 pandemic, has exacerbated the stress.  Resultantly, WTO Member States are adopting a more protectionist approach.

 

While the WTO’s role in helping economies recover from decreasing trade volumes has increased multi-fold, it remains to be seen how the organization will grapple with each of these challenges individually. Since TL&D’s objective is to provide a forum of exchange of ideas and constructive debate on legal and policy issues, the above-mentioned factors arguably constitute some of the biggest issues for international trade discourse this year. Through this theme, the Journal aims to encourage discussion particularly on how to protect the multilateral rules-based trading system and in turn, prevent the march towards a pre-WTO power-based trading system.

 

While the theme is broad enough to cover a wide range of issues, an indicative list of specific areas is as follows:

• Appellate Body Crisis and the Multi Party Interim Appeal Arrangement (MPIA)
• Transparency and Notification/ Transparency and Consensus-Building within the WTO
• Status of Developing Countries at the WTO
• China and the WTO
• Agriculture and Development vis-à-vis the WTO Agreement on Agriculture
• Environmental Sustainability
• Linking Trade and Non-Trade Issues
• COVID-19 and Reorganization of Global Supply Chains
• Increasing Reliance on the National Security Exception by WTO Members
• Increase in Barriers to Cross-Border Investments/ Protectionism
• USA and the WTO
• Stagnancy in Multilateral Trade Liberalisation
• Mega-Regional Trade Agreements as an Alternative to the WTO

 

These sub-issues are not exhaustive, and the Journal is open to receiving submissions on all aspects related to the challenges faced by the international trade regime and its impact on the global trading system.

 

Accordingly, the Board of Editors of Trade, Law and Development is pleased to invite original, unpublished manuscripts for publication in the Special Issue of the Journal (Vol. XIV, No. 1) in the form of ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’, focusing on the theme “Looking Ahead: Addressing the Challenges Faced by the International Trade Regime”.

 

Manuscripts received by March 15th, 2022, pertaining to any sub-theme within the purview of challenges faced by international trade will be reviewed for publication in the Summer ’22 issue.

 

Manuscripts may be submitted via e-mail. For further information about the Journal, please click here. For submission guidelines, please click here.

 

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

 

LAST DATE FOR SUBMISSIONS: 15 March, 2022

 

PATRON: P.P. Saxena | ADVISORS: Raj Bhala | Jagdish Bhagwati | B.S. Chimni | Glenn Wiser | Daniel B. Magraw, Jr. | Vaughan Lowe | Ricardo Ramirez Hernandez | W. Michael Reisman | M. Sornarajah | FACULTY–IN-CHARGE: Dr. Rosmy Joan | BOARD OF EDITORS: Amogh Pareek | Sahil Verma | Sukanya Viswanathan| Abilash Viswanathan| Aastha Asthana | Malaika Shivalkar | Nishant Sharma | Pranav Karwa | Rashmi John | Swikruti Nayak | Akshita Saxena | Ananya Awasthi | Anushka Mathur | Jahnavi Srivastava | Khushi Agrawal | Maulik Khurana | Nidhi Lakhotia | Ria Chaudhary | Yashvi Hora | Aarzoo Gang | Anoushka | Lipika Singla | Priyanshu Shrivastava | Simran Bherwani | Sneha Naresh | Vipashyana Hilsayan

Written by Stephen G.A. Pitel, Western University

The court’s decision in HMB Holdings Ltd v Antigua and Barbuda, 2021 SCC 44 (available here) is interesting for at least two reasons. First, it adds to the understanding of the meaning of “carrying on business” as a test for being present in a jurisdiction. Second, it casts doubt on the application of statutory registration schemes for foreign judgments to judgments that themselves recognize a foreign judgment (the so-called ricochet).

In this litigation HMB obtained a Privy Council judgment and then sued to enforce it in British Columbia. Antigua did not defend and so HMB obtained a default judgment. HMB then sought to register the British Columbia judgment in Ontario under Ontario’s statutory scheme for the registration of judgments (known as REJA). An important threshold issue was whether the statutory scheme applied to judgments like the British Columbia one (a recognition judgment). In part this is a matter of statutory interpretation but in part it requires thinking through the aim and objectives of the scheme.

Regrettably for academics and others, the litigants conducted the proceedings on the basis that the scheme DID apply to the British Columbia judgment. Within the scheme, Antigua relied on one of the statutory defences to registration. The defence, found in section 3(b), requires that “the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit during the proceedings to the jurisdiction of that court”. Three of the elements of this defence were easily established by Antigua, leaving only the issue of whether Antigua could be said to have been carrying on business in British Columbia. If not, the decision could not be registered in Ontario.

On the facts, Antigua had very little connection to British Columbia. What it did have was “contracts with four ‘Authorized Representatives’ with businesses, premises and employees in British Columbia for the purposes of its Citizenship by Investment Program  [which] … aims to encourage investments in Antigua’s real estate, businesses and National Development Fund by granting citizenship to investors and their families in exchange for such investments” (para 7). HMB argued this was sufficient to be carrying on business in British Columbia. The courts below had disagreed, as did all five judges of the Supreme Court of Canada (paras 47-49, 52).

Confirming this result on these facts is not overly significant. What is of more interest is the court, in its decision written by Chief Justice Wagner, offering some comments on the relationship between how the meaning of carrying on business in the context of taking jurisdiction relates to the meaning of that same phrase in the context of determining whether to recognize or register a foreign judgment. Below, one judge of the Court of Appeal for Ontario had held the meanings to be quite different in those different contexts, with a much lower threshold for carrying on business in the latter (para 18). The Supreme Court of Canada rejects this view. When considering presence in a jurisdiction by means of carrying on business there, the analysis is the same whether the court is assessing taking jurisdiction on that basis or is determining whether to give effect to a foreign judgment (and so engaging with the defence in section 3(b)) (paras 35, 41). This is welcome clarification and guidance.

One smaller wrinkle remains, not germane to this dispute. At common law the phrase “carrying on business” is used for two distinct aspects of taking jurisdiction: presence, where it grounds jurisdiction (see Chevron), and assumed jurisdiction, where it gives rise to a “presumptive connecting factor” linking the dispute to the forum (see Club Resorts). If you think that distinction seems odd, you are not alone (see para 39). Anyway, does the phrase also have the same meaning in these two contexts? The court expressly leaves that issue for another day, noting only that if there is a difference, the threshold for carrying on business would be lower in the assumed jurisdiction cases than the presence cases (para 40).

Returning to the issue not pursued by the parties: the status of ricochet judgments under registration schemes. The court could have said nothing on this given the position of the parties and the conclusion under section 3(b). However, Chief Justice Wagner and three of his colleagues expressly note that this is an “open question” and leave it for the future (paras 25-26). Saying the question is open is significant because there is obiter dicta in Chevron that these judgments are caught by the schemes (para 25). Indeed, Justice Cote writes separate reasons (despite concurring on all of the section 3(b) analysis) in order to set out her view that a recognition decision is caught by the scheme, and she points specifically to Chevron as having already made that clear (para 54). Her analysis of the issue is welcome, in part because it is a reasonably detailed treatment. Yet the other judges are not persuaded and, as noted, leave the matter open.

I find powerful the argument that the drafters of these statutory schemes did not contemplate that they would cover recognition judgments, and so despite their literal wording they should be read as though they do not. This would avoid subverting the purpose of the schemes (see para 25). On this see the approach of the Court of Appeal for England and Wales in 2020 in Strategic Technologies Pte Ltd, a decision Justice Cote criticizes for being “unduly focused” on what the statutory scheme truly intended to achieve and lacking fidelity to the actual language it uses (paras 67-68). I also find Justice Cote’s distinctions (paras 60-64) between foreign recognition judgments (which she would include) and foreign statutory registrations (which she would not include) unpersuasive on issues such as comity and judicial control.

In any event, unless this issue gets resolved by amendments to the statutory schemes to clarify their scope, this issue will require a conclusive resolution.

by Aline Beltrame de Moura, Professor at the Federal University of Santa Catarina, in Brazil

On November 9, 2021, at 4 pm (BR time – GMT -03:00), the Faculty of Law of the Federal University of Santa Catarina will hold a virtual conference, called II Jean Monnet Network Seminar – BRIDGE “Migration and Citizenship in the European Union and Latin America”.

Participants in the event include the Member of the European Parliament, Margarida Marques; the Deputy Head of the European Union Delegation in Brazil, Ana Beatriz Martins; the Regional Policy and Coordination Officer of the International Organization for Migration (IOM – South America), Ezequiel Texidó; the Deputy Representative of the United Nations High Commission for Refugees (UNHCR) in Brazil, Federico Martinez; the Immigration Legal Adviser of Unión Sindical Obrera in Spain, Max Adam Romero; and former employee of Argentina’s Dirección de Migraciones and professor at the Universidad Abierta Interamericana, Emiliano Bursese.

In addition to the Seminar, the event will also feature the presentation of sixteen articles selected through Call for Papers. The two best articles will be awarded the value of EUR 250 each. The Workshop presentations will take place on November 9 from 8:40 am to 12:00 pm (BR time – GMT -03:00), in a virtual mode.

The conference is part of the Jean Monnet Network project called “Building Rights and Developing Knowledge between European Union and Latin America – BRIDGE”, which is part of the Federal University of Santa Catarina (Brazil); the Faculty of Law of the University of Lisbon; the University of Seville (Spain); the University of Milan (Italy); the National Autonomous University (Mexico); the University of Buenos Aires (Argentina) and the University of Rosario (Colombia).

The seminar will be held in Portuguese and Spanish. Registration is free and must be made through the link https://www.even3.com.br/2seminariobridge

Check out the full schedule at: https://eurolatinstudies.com/laces/announcement/view/85

 

Guest post by Priskila P. Penasthika, Ph.D. Researcher at Erasmus School of Law – Rotterdam and Lecturer in Private International Law at Universitas Indonesia.

Indonesian Accession to the HCCH 1961 Apostille Convention

After almost a decade of discussions, negotiations, and preparations, Indonesia has finally acceded to the HCCH 1961 Apostille Convention. In early January this year, Indonesia enacted Presidential Regulation Number 2 of 2021, signed by President Joko Widodo, as the instrument of accession to the HCCH 1961 Apostille Convention. The HCCH 1961 Apostille Convention is the first HCCH Convention to which Indonesia became a Contracting Party.

In its accession to the HCCH 1961 Apostille Convention, Indonesia made a declaration to exclude documents issued by the Prosecutor Office, the prosecuting body in Indonesia, from the definition of public documents whose requirements of legalisation have been abolished in accordance with Article 1(a) of the HCCH 1961 Apostille Convention.

In accordance with Article 12 of the Convention, Indonesia deposited its instrument of accession to the HCCH 1961 Apostille Convention with the Ministry of Foreign Affairs of the Netherlands on 5 October 2021. The ceremony was a very special occasion because it coincided with the celebration of the 60th anniversary of the Convention. Therefore, the ceremony was part of the Fifth Meeting of the Special Commission on the practical operation of the HCCH 1961 Apostille Convention and witnessed by all Contracting Parties of the Convention.

The Minister of Law and Human Rights of the Republic of Indonesia, Yasonna H. Laoly, joined the ceremony and delivered a speech virtually via videoconference from Jakarta. Minister Laoly voiced the importance of the HCCH 1961 Apostille Convention for Indonesia and underlined Indonesia’s commitment to continue cooperating with the HCCH.

Indonesia’s accession to the HCCH 1961 Apostille Convention brings good news for the many parties concerned. The current process of public document legalisation in Indonesia still follows a traditional method that is highly complex, involves various institutions, and is time-consuming and costly. Because of the accession to the Convention, the complicated and lengthy procedure will be simplified to a single step and will involve only one institution – the designated Competent Authority in Indonesia. Referring to Article 6 of the HCCH 1961 Apostille Convention, in its accession to the Convention, Indonesia designated the Ministry of Law and Human Rights as the Competent Authority. When the HCCH 1961 Apostille Convention enters into force for Indonesia, this Ministry will be responsible for issuing the Apostille certificate to authenticate public documents in Indonesia for use in other Contracting Parties to the Convention.

A Reception Celebrating the 60th Anniversary of the HCCH 1961 Apostille Convention and Indonesian Accession

To celebrate the 60th anniversary of the HCCH 1961 Apostille Convention and Indonesia’s accession to it, an evening reception was held on 5 October 2021 at the residence of the Swiss ambassador to the Kingdom of the Netherlands in The Hague. The reception was organised at the invitation of His Excellency Heinz Walker-Nederkoorn, Swiss Ambassador to the Kingdom of the Netherlands, His Excellency Mayerfas, Indonesian Ambassador to the Kingdom of the Netherlands, and Dr Christophe Bernasconi, Secretary-General of the HCCH. Representatives of some Contracting Parties to the HCCH 1961 Apostille Convention attended the reception; among other attendees were the representatives from recent Contracting Parties such as the Philippines and Singapore, as well as some of the earliest signatories, including Greece, Luxembourg, and Germany.

The host, Ambassador Walker-Nederkoorn, opened the reception with a welcome speech. It was followed by a speech by Ambassador Mayerfas. He echoed the statement of Minister Laoly on the importance of the HCCH 1961 Apostille Convention for Indonesia, especially as a strategy to accomplish the goals of Vision of Indonesia 2045, an ideal that is set to commemorate the centenary of Indonesian independence in 2045. Ambassador Mayerfas also emphasised that Indonesia’s accession to the HCCH 1961 Apostille Convention marked the first important step for future works and cooperation with the HCCH.

Thereafter, Dr Christophe Bernasconi warmly welcomed Indonesia as a Contracting Party to the HCCH 1961 Apostille Convention in his speech at the reception. He also voiced the hope that Indonesia and HCCH continue good cooperation and relations, and invited Indonesia to accede to the other HCCH Conventions considered important by Indonesia.

The Entry into Force of the HCCH 1961 Apostille Convention for Indonesia

Referring to Articles 12 and 15 of the HCCH 1961 Apostille Convention, upon the deposit of the instrument of accession, there is a period of six months for other Contracting Parties to the Convention to raise an objection to the Indonesian accession. The HCCH 1961 Apostille Convention will enter into force for Indonesia on the sixtieth day after the expiration of this six-month period. With great hope that Indonesia’s accession will not meet any objection from the existing Contracting Parties to the Convention, any such objection would affect only the entry into force of the Convention between Indonesia and the objecting Contracting Party.  The HCCH 1961 Apostille Convention will therefore enter into force for Indonesia on 4 June 2022.

A more in-depth analysis (in Indonesian) concerning the present procedure of public document legalisation in Indonesia and the urgency to accede to the HCCH 1961 Apostille Convention can be accessed here. An article reporting the Indonesian accession to the HCCH 1961 Apostille Convention earlier this year can be accessed here.

The programme of the XLIV Seminar of the Mexican Academy of Private International and Comparative Law (AMEDIP) is now available here. As previously announced, the XLIV Seminar will take place online from 17 to 19 November 2021.

During this seminar, AMEDIP will pay tribute to the late Mexican professors José Luis Siqueiros Prieto, Rodolfo Cruz Miramontes and María Elena Mansilla y Mejía. Professors Siqueiros Prieto and Mansilla y Mejía were deeply involved in the negotiations – at different stages – of the HCCH Judgments Project and the HCCH 2005 Choice of Court Convention, among other international and regional Conventions.

Among the topics to be discussed are the impact of the pandemic on international family law, legal aspects surrounding vaccines, human rights and private international law, international contracts, arbitration and other selected topics. Speakers come from several Latin American States and a few from Europe: Mexico, Argentina, Brazil, Chile, El Salvador, the Netherlands, Peru, Spain and Uruguay.

Participation is free of charge. The language of the seminar will be Spanish.

The meeting will be held via Zoom. The access details are the following:

https://us02web.zoom.us/j/5554563931?pwd=WE9uemJpeWpXQUo1elRPVjRMV0tvdz09

Meeting ID: 555 456 3931

Password: 00000

For more information, see AMEDIP’s website and its Facebook page

The third issue of the Lex & Forum is dedicated to the topic of the limits of private autonomy in the EU. The preface was prepared by Professor Emeritus and President of the International Hellenic University Athanassios Kaissis. The central topic of the present issue (Focus) is further elaborated by the contributions of Professor Spyros Tsantinis on the importance of private autonomy in European and international procedural law, and of Dr. Konstantinos Voulgarakis on the protection mechanisms in the case of choice of court agreements. Furthermore, Dr. Stefanos Karameros is analyzing the extension of the choice of court agreements in case of privies in law or privies in blood, after the Kauno Miesto decision.

The Focus of this issue is further enriched by the contributions of Judge Dimitrios Titsias on private autonomy in family law, and of Judge Antonios Vathrakokoilis on the choice of applicable law by the diseased according to the EU Regulation No 650/2012. The Focus also contains the analysis of Professor Komninos Komnios on the execution of judgments on investment arbitration within the EU after the Achmea case and the examination of Dr. Nikolaos Zaprianos on the applicable law in online consumer disputes.

The Focus is further enriched by selected case law and, amongst others, the judgment No 362/2020 of the Herakleion Court of First Instance on the subjection of hotel contract cases under the exclusive jurisdiction of immovable property, with a case note by Anastasia Kalantzi, the judgment No 13.2.2020, n. 3561 by the Italian Cassazione Civile (S.U.), on the relationship between the provisions of the Montreal Convention and a prorogation agreement in case of airplane transport, with a case note by Judge Ioannis Valmantonis, and the case 3 Ob 127-20b of the Oberster Gerichtshof on the scenario of parallel non-exclusive prorogation and arbitration clauses, with a case note by Dr. Ioannis Revolidis. Finally, the Focus is concluded by Dr. Apostolos Anthimos’s case note on the Greek Supreme Court (Areios Pagos) judgment No 767/2019, regarding the execution of an American judgment that lost its validity domestically.

The scientific topics of the present issue consist of the contribution of Professor Paris Arvanitakis on the issue of asymmetrical choice of court agreements.

Lex&Forum is renewing its appointment with its readers in the upcoming issue, dedicated to the latest updates concerning the Hague Convention for the unification of private international law, especially after the EU’s succession.

Robin Cupido (University of Cape Town), Benedikt Schmitz (University of Groningen), and Michiel Poesen (KU Leuven) will be hosting a conference on Taking Stock of Globalisation: the Protection of Economically and Socially Weaker Parties in South African, Dutch, Belgian, and EU Private International Law, which will be held on 16/17 June 2022 in Leuven, Belgium, both in person and online.

The organisers are inviting Dutch- or Afrikaans-speaking junior researchers (PhD candidates, and postdocs/researchers with up to 5 years of experience) to submit an abstract, which should be written in Dutch or Afrikaans and must relate to either South African, Belgian, Dutch, or European Union private international law. Abstracts should not exceed 400 words, and should indicate to which panel they relate most. Applicants whose abstract is selected will be asked to submit a paper in advance of the conference, which they then present in-person or remotely. Abstracts must be submitted to the conference organisers (conference@weakerpartyprotection.com) up until including 27th November 2021. Decisions will be communicated no later than 17th December 2021.

Further information can be found at https://weakerpartyprotection.com/.

On Tuesday, Nov 2, 2021, the Hamburg Max Planck Institute will host its 15th  monthly virtual workshop Current Research in Private International Law at 11:00-12:30. Verónica Ruiz Abou-Nigm (Edinburgh University and currently a fellow at the  Max Planck Institute for Comparative and International Private Law) will speak, in English, about the topic An Intercultural Paradigm for Private International Law

What does an interculturalist perspective bring to private international law? A dialogical constructivist intercultural paradigm for private international law reflects a post-modern conception of law that embraces cultural diversity and pluralism; strives to invert its technical indifference (‘neutrality’) into technical (pluralist) commitment to normative societal changes; and promotes broader intersectional bottom-up engagement (grounded on freedom and solidarity). This rupturist yet constructive relational (engaging with the concrete other) paradigm, challenges and crosses boundaries between the public and private, mobilises the discipline towards inclusivity and against inequalities, and interlinks the local, the national, the regional and the global spheres, promoting an ethos of fruitful intercultural and inter-systemic communication (fostering deeper dialogues between different modes of thinking, and different knowledge systems), of value to our multicultural societies.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here. If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

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

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

T. Maxian Rusche: Available actions in the German courts against the abuse of intra-EU investor-State arbitration proceedings

The Court of Justice of the European Union ruled in Achmea that intra-EU investment arbitration violates fundamental rules of EU law. However, arbitration tribunals have revolted against that judgment, and consider in constant manner that they remain competent to decide cases brought by EU investors against EU Member States. German law offers an interesting option for States to defend themselves against new intra-EU investment arbitration cases. Based on § 1032 paragraph 2 Civil Procedure Code, the German judge can decide on the validity of the arbitration agreement if a case is brought prior to the constitution of the arbitration tribunal. Recently, Croatia has successfully used that possibility in an UNCITRAL arbitration initiated by an Austrian investor on the basis of the Croatia-Austria BIT. The Netherlands have recently brought two cases in ICSID arbitrations based on the Energy Charter Treaty. If the investor refuses to comply with a finding that there is no valid arbitration agreement, Member States can seek an anti-arbitration injunction.

 

F.M. Wilke: German Conflict of Laws Rules for Electronic Securities

In June 2021, Germany introduced the option of electronic securities, doing away with the traditional principle that securities must be incorporated in a piece of paper. The blockchain-ready Electronic Securities Act (Gesetz über elektronische Wertpapiere: eWpG) comes with its own conflict of laws provision. This paper addresses the subject matter, connecting factors, and questions of the applicable law of said rule. One main challenge consists in reconciling the new rule with an existing (much-discussed, yet still quite opaque) conflict of laws provision in the Securities Account Act. While the connecting factor of state supervision of an electronic securities register may appear relatively straightforward, it is shown that it can actually lead to gaps or an accumulation of applicable laws. While the Electronic Securities Act contains a solution for the former issue, the latter proves more complicated. Finally, it is not obvious whether the new rule allows a renvoi. The author tentatively suggests a positive answer in this regard.

 

M. Pika: The Choice of Law for Arbitration Agreements

Ever since 2009, when the German choice-of-law provisions for contracts were removed and the Rome I Regulation with its carve-out for arbitration agreements entered into force, the choice of law for arbitration agreements has been debated in Germany. On 26 November 2020, the German Federal Court of Justice addressed this matter, albeit inconclusively. The court held that the enforcement provision Article V (1) lit. a New York Convention applies already before or during arbitral proceedings. Pursuant to this provision, the arbitration agreement is governed by the law chosen by the parties and, subsidiarily, the law of the seat. This leads to an internationally well-known follow-up problem: whether the parties, when choosing the law applicable to the main contract, have impliedly chosen the law applicable to the arbitration agreement. This matter was left open by the Federal Court of Justice.

 

F. Rieländer: Joinder of proceedings and international jurisdiction over consumer contracts: A complex interplay between the Brussels Regime and domestic law of civil procedure

Whether the “international nature” of a contractual relationship between two parties to a dispute established in the same Member State might possibly stem from a separate contract between the claimant and a foreign party, for the purposes of determining jurisdiction according to the Brussels Ibis Regulation, continues to be a contentious issue ever since the ECJ ruling on the Maletic case (C-478/12). Particularly illuminating are two recent decisions given by the Bayerisches Oberstes Landesgericht. Whilst the Court, understandably enough, did not wish to deviate from the case law of the ECJ, it probably unnecessarily extended the purview of the dubious Maletic judgment in Case 1 AR 31/20. With regard to division of labour on part of the defendants there is no need for an overly expansive interpretation of the term “other contracting party” within the meaning of Article 18(1) Brussels Ibis Regulation because the “international element” of a contractual relationship between a consumer and a trader established in the Member State of the consumer’s domicile simply derives from the subject-matter of the proceedings where the contractual obligation of the trader is to be performed in another State. Taken in conjunction with its decision in Case 1 AR 56/20, the Court seemingly favours a subject-matter-related test of “international character”, while the Court at the same time, in Case 1 AR 31/20, respectfully adopts the authoritative interpretation of the ECJ in Maletic. Simply for the sake of clarity, it should be mentioned that even if the legal relationship between a consumer and one of the defendants, considered alone, bears no international character, a subsequent joinder of proceedings at the legal venue of the consumer’s place of residence is nonetheless possible pursuant to § 36(1) No 3 ZPO (German Code of Civil Procedure) if jurisdiction is established in relation to at least one of the defendants according to Article 18(1) Brussels Ibis Regulation and the general place of jurisdiction of all other defendants is situated in the Federal Republic of Germany

 

M. Andrae: For the application of Art. 13 (3) No. 2 EGBGB, taking into account the spirit and purpose of the law against child marriage

Art. 13 (3) No. 2 EGBGB (Introductory Law to the Civil Code) stipulates that a marriage can be annulled under German law if the person engaged to be married was 16 but not 18 years of age at the time of the marriage. The legal norm relates to a marriage where foreign law governs the ability to marry and where the marriage has been effectively concluded under this law. The rule has rightly been heavily criticized in the scientific literature. As long as the legal norm is applicable law, it should be interpreted in a restrictive manner, as far as the wording and the purpose of the law against child marriage allow. The article focuses on the intertemporal problem. In addition, it is discussed whether the legal norm is to be applied universally or only if there is a sufficient domestic reference. The article follows the restrictive interpretation of the BGH of Section 1314 (1) No. 1 BGB, insofar as it concerns marriages that are covered by Art. 13 (3) No. 2 EGBGB. According to this, the court can reject the annulment of the marriage in individual cases, if all aspects of the protection of minors speak against it.

 

D. Looschelders: Cross-border enforcement of agreements on the Islamic dower (mahr) and recognition of family court rulings in German-Iranian legal relations

The cross-border enforcement of agreements on the Islamic dower (mahr) can present significant difficulties in German-Iranian legal relations. These difficulties are compounded by the fact that mutual recognition of family court rulings is not readily guaranteed. Against this background, the decision of the Higher Regional Court of Celle deals with the recognition of an Iranian family court ruling concerning a claim for recovery of the Islamic dower. The Higher Regional Court of Hamburg on the other hand discusses in its decision whether a husband can sue his wife for participation in a divorce under Iranian religious law as contained in their divorce settlement agreement on the occasion of a divorce by a German court. The recognition of a judicial divorce is not per se excluded in Iran; however, the husband required his wife’s participation due to Iranian religious laws in order for her waiver on the Islamic dower to gain legal effectiveness under Iranian law. The court rejected the claim as it drew upon the state divorce monopoly contained in Art. 17 (3) EGBGB (Introductory Act to the German Civil Code) and § 1564 BGB (German Civil Code). Consequently, despite the waiver declared in Germany, the respondent is free to assert her claim for recovery of the Islamic dower in Iran.

 

M. Andrae: HMP: Maintenance Obligations between ex-spouses if the parties lived together as an unmarried couple for a long time before the marriage

The main focus is on the relationship between Art. 3 (general rule on applicable law) and Art. 5. (special rule with respect to spouses and ex-spouses) of the 2007 Hague Maintenance Protocol. The following legal issues are discussed: Are maintenance obligations arising out of unmarried relationships included within scope of the HMP? Is Art. 5 HMP to be interpreted as an exception in relation to Art. 3 HMP? How is the phrase “closer connection with the marriage” in the Art. 5 HMP to be interpreted? Should a period of time in an unmarried relationship before a marriage be taken into account in relation to Art. 5 HUP? What is the significance of the last common habitual residence during the marriage with regard to the escape clause if the parties previously lived in different countries for professional reasons?

 

C. von Bary: Recognition of a Foreign Adoption of an Adult

In its decision on the recognition of a foreign adoption of an adult, the German Federal Court of Justice addresses questions concerning procedure and public policy. The special provisions for proceedings in adoption matters do not apply in recognition proceedings, which has consequences for the remedies available. Considering the effect on the ground for refusal of recognition due to a lack of participation (§ 109(1) No. 2 FamFG), courts only have to hear the other children of the adopting person rather than them being a party to the proceedings. The Court also sets strict criteria for a violation of public policy in the case of a foreign adoption of an adult. It only amounts to a violation of public policy when the parties deliberately seek to evade the prerequisites under German law by going abroad, which seems to imply that there are no fundamental principles specific to the adoption of an adult.

 

H. Roth: Enforcement issues due to a decision repealed in the State of origin

The decision of the German Federal Court of Justice was handed down pursuant to intertemporal civil procedure law and also to the Brussels I Regulation, which requires a declaration of enforceability for enforcement in another Member State. The court rightly upheld its settled case-law that a decision subsequently repealed in the State of origin cannot be authorized for enforcement. The ruling of the German Federal Court of Justice has significance for future cases examined on the basis of the new Brussels Ia Regulation, which states that enforcement can occur in another Member State without a declaration of enforceability. If the decision in the State of origin is subsequently repealed, a debtor in the executing State can choose for this fact to be taken into account either in the refusal of enforcement proceedings pursuant to Articles 46 et seq. Brussels Ia Regulation or in the execution itself by the competent executing body pursuant to Section 1116 of the German Code of Civil Procedure (ZPO).

 

O. Remien: Étroitement liée? – On jurisdiction for a damages action against an arbitrator after setting-aside of the award and artt. 1 (2) (d) and 7 (1) (b) Brussels Ibis-Regulation

In Saad Buzwair Automotive Co, Cour d’appel and Tribunal Judiciaire de Paris were of opposite opinions on the question which courts are competent to decide on a damages action against an arbitrator after setting-aside of the award. In an ICC arbitration with seat in Paris but hearings and domicile of the three arbitrators in Germany, the Qatari claimant had been unsuccessful against the Emirati respondent, but later the award had been set aside by the Cour d’appel de Paris and this setting-aside been confirmed by the Cour de cassation. The Qatari company sued one of the German arbitrators for damages before the Paris courts. The first instance Tribunal Judiciaire found that the arbitration exception of art. 1 (2) (d) Brussels Ibis did not apply to the action for damages based on an alleged breach of the arbitrator’s contract; further, it held that the place of performance under art. 7 (1) (b) Brussels Ibis was in Germany where the arbitrators lived and had acted. The Cour d’appel disagreed, the leitmotiv being that the damages action is closely connected (étroitement liée) to the arbitration. It found that the arbitration exception applied, so that the Brussels Ibis Regulation was inapplicable, and that under the autonomous French place of performance rule the place of performance was in Paris. After recalling the importance of the arbitrator’s contract this note distinguishes the damages action against the arbitrator from the arbitration between the original parties, points out that the courts of the seat of the arbitration are not necessarily competent for damages actions against an arbitrator and stresses the negative consequence of the ruling of the Cour d’appel – an eventual judgment awarding damages would not fall under the Brussels Ibis Regulation and thus not necessarily be enforceable in other Member States! Further, it is unclear whether the arbitration exception would also apply to an action for payment of the arbitrator’s fees. Finally, the situation where an arbitral award is not set-aside, perhaps even cannot be set aside, by the courts of the seat but where its enforcement is denied in another state is taken account of and can in case of a damages action lead to the competence of a court other than that of the seat of the arbitration. As to the place of performance, the two courts apply similar autonomous French respectively EU-rules, but with diverging results: the Cour d’appel stressing again the close connection, the Tribunal Judiciaire applying a more concrete fact-based approach. In sum, there are good arguments in favour of the decision of the Tribunal Judiciaire and a judgment of the ECJ on these questions would be welcome.

 

 

The third issue of 2021 of the Dutch journal on private international law (NIPR) is available. A number of papers are dedicated to Brexit and private international law.

 

Brexit en ipr/brexit and pilSumner, Eerst de echtscheiding, dan de afwikkeling! Brexit en het internationaal privaatrecht / p. 433-453

Abstract

Brexit has changed a lot in the legal landscape. There are few areas of the law that have been unaffected, and international family law is no exception. In this article, attention will be paid to the various areas of international family law that have been affected by the Brexit, drawing attention to the new legal regimes that are applicable with respect to these areas of the law (for example divorce, child protection and maintenance). Each section will further discuss how the new regime differs from the old regime, drawing attention to particular difficulties that may occur in the application of these new rules to the specific situation of the United Kingdom.

Berends, Internationaal insolventierecht tussen het Verenigd Koninkrijk en Nederland na de Brexit / p. 454-470

Abstract

What are the legal consequences in the Netherlands of a British insolvency proceeding since Brexit? In the Netherlands, there is no Act on this matter, and the answers must be found in case law. A foreign representative does not need to apply for recognition. He can exercise his rights unless an interested party prevents him from doing so in a legal procedure, for instance on the ground that the recognition of the insolvency proceeding would be contrary to public policy. A foreign proceeding has the applicable legal consequences according to the law of the State where the insolvency proceeding was opened, with some exceptions. Execution against the debtor’s assets in the Netherlands remains possible.

What are the legal consequences in the United Kingdom of a Dutch insolvency proceeding since Brexit? The United Kingdom has enacted the Model Law of the United Nations Commission on International Trade Law. A foreign representative must apply for recognition. Upon recognition, individual actions concerning the debtor’s assets and execution are stayed, unless such actions and execution are necessary to preserve a claim against the debtor. The consequences of recognition can be modified or terminated if the Court is not satisfied that the interests of interested parties are adequately protected. The so-called Gibbs Rule applies: a party to a contract made and to be performed in England is not discharged from liability under such contract by a discharge in bankruptcy or liquidation under the law of a foreign country in which he is domiciled.

Bens, Brussel na de Brexit: nieuwe regels in burgerlijke en handelszaken? / p. 471-492

Abstract

The UK formally left the EU on 31 January 2020, although the Brussels Ibis Regulation remained applicable in and for the UK until the end of the transition period on 31 December 2020. This article analyses the changes in the framework for international jurisdiction and the recognition and enforcement of decisions in cross-border civil and commercial matters between the Netherlands and the UK after 1 January 2021. After setting the historical context, the transitional provisions provided for the Brussels regime in the Withdrawal Agreement are scrutinised. It is argued that, considering these arrangements and the current EU framework for judicial co-operation in civil and commercial matters, the Brussels Convention and the NL-UK Enforcement Treaty of 1967 are not applicable to proceedings instituted after 1 January 2021. Consequently, the rules governing international jurisdiction and the cross-border recognition and enforcement of judgements applicable to ‘new’ cases and judgements are outlined and salient problems are highlighted. It is argued that most of these rules are not new, but are rather cast in a different perspective through Brexit, thereby raising some ‘old’ problems that require careful (re-)consideration of the post-Brexit legal framework.

 

Other articles

 

L.M. van Bochove, De voorzienbaarheid herzien? De fluctuerende invulling van het vereiste dat bevoegdheid ex artikel 7(2) Brussel Ibis redelijkerwijs voorzienbaar is / p. 493-506

Abstract

This article discusses the requirement that the jurisdiction over matters in tort, based on Article 7(2) Brussels Ibis Regulation, is reasonably foreseeable for the defendant. An analysis of CJEU case law shows that the interpretation of what is ‘reasonably foreseeable’ fluctuates. Often, the threshold is set rather low, but in two recent cases the CJEU seems to have adopted a stricter interpretation. In VEB/BP and Mittelbayerischer Verlag, the foreseeability requirement actually precludes the attribution of jurisdiction on the basis of established (sub-)criteria, including the place of damage and the centre of main interest. This article attempts to identify the rationale for the use of different yardsticks of reasonable foreseeability. It offers two possible explanations: the degree of the culpability of the defendant and the desired outcome in terms of jurisdiction, in particular the opportunity to use jurisdiction rules as a means to promote the enforcement of EU law. However, both explanations are problematic, in view of the Regulation’s scheme and objectives. This paper argues in favour of a uniform, rather strict interpretation, which ensures that the defendant can reasonably foresee the jurisdiction of the court and avoids a multitude of competent courts. Current law offers no legal basis to consider the enforcement of (EU) law as a factor to establish a reasonably foreseeable jurisdiction; this would require intervention by the European legislator.

 

Schmitz, Rechtskeuze in consumentenovereenkomsten: artikel 6 lid 2 Rome I-Verordening en de Nederlandse rechter / p. 507-331

Abstract

Party autonomy has been a widely accepted principle of private international law ever since the Rome Convention. Yet, the right to choose the applicable law is often restricted when weaker parties are involved. According to Article 6(2) Rome I Regulation, the parties to a consumer contract may choose the applicable law provided that this choice does not deprive ‘the consumer of the protection afforded to him’ by the objectively applicable law (the law of his habitual place of residence). In the Netherlands, academic opinion is still divided on the issue of how ‘deprived of protection’ should be interpreted. Some argue that the objectively applicable law trumps the chosen law, even if the latter is more beneficial for the consumer. Others want to apply the law that better protects the consumer – regardless of whether it is the chosen or the objectively applicable law. This question goes hand in hand with a (possibly complex) legal comparison between both systems of law. How this comparison needs to be exercised is unclear. Delving deeply into Dutch case law shows that Dutch judges do not have a ‘joined approach’. This paper uses a case study to illustrate that following a certain approach when applying Article 6(2) Rome I can alter the level of protection that the consumer enjoys. A lack of guidance from the European Court of Justice could be at fault here; and national courts should refer a question as to the ‘right way’ of applying Article 6(2) Rome I to the Court.

te Winkel, X.P.A. van Heesch, The Shell judgment – a bombShell in private international law? / p. 532-542

Abstract

This article discusses the recent judgment of the District Court of The Hague in Milieudefensie et al. v. RDS (May 26, 2021, ECLI:NL:RBDHA:2021:5337). It reviews the most important substantive rulings of the Court and then focusses on the private international law aspects of the case. Milieudefensie et al. argued that the adoption of the concern policy for the Shell Group by RDS qualifies as the Handlungsort and that Dutch law is therefore applicable to their claims based on Article 7 Rome II Regulation. RDS disagreed with this line of reasoning for multiple reasons. Since there is (as yet) no legal precedent regarding this discussion, both Milieudefensie and RDS relied on the analogous application of case law that concerned the interpretation of the Handlungsort under the Brussels Ibis Regulation. The legal debate between the parties regarding this aspect and the conclusion of the Court are set out in this article. The authors conclude with an analysis of the assessment of the Court and suggest that, given the impact of this ruling and the fact that there is no legal precedent, the Court ex officio should have requested a preliminary ruling from the Court of Justice.

Case note

Arons, HvJ EU 12 mei 2021, zaak C-709/19, ECLI:EU:C:2021:377, NIPR 2021, 267 (VEB/BP) / p. 543-550

Abstract

In this judgment the CJEU has ruled on localising purely financial losses in order to determine jurisdiction in tort claims. A claimant may sue a defendant on the basis of Article 7(2) of the Brussels Ibis Regulation in the court of another Member State at the place where the harmful event occurred or may occur. The CJEU has reiterated that the ‘place where the harmful event occurred’ may not be construed so extensively as to encompass any place where the adverse consequences of an event caused damage to the claimant.

For jurisdiction on this basis a close connection has to be established between the place where the damage occurred and the court addressed by the claimant. This ensures certainty for the defendant: the defendant has to be able to reasonably foresee the court(s) where he may be sued.

The mere location of an investment account is not sufficient to establish the required close connection; additional circumstances are required (paras. 34 and 35). In the Kolassa case (C-375/13) information was published and notified by the defendant in a prospectus aimed at investors in Austria. The CJEU ruled that foreseeability is not ensured if the claim is brought before the courts in the Member State where the investment account used for the purchase of securities listed on the stock exchange of another State is situated, and the issuer of those securities is not subject to statutory reporting obligations in the Member State where the investment account is held by the purchaser (para. 34). A claim can only be brought on the basis of Article 7(2) against a listed company for publishing misleading information to investors in the jurisdiction where that company had to comply, for the purposes of its listing, with statutory reporting obligations. It is only in that Member State that a listed company can reasonably foresee the existence of an investment market and incur liability (para. 35).

 

This post is written by Joshua Folkard, Barrister at Twenty Essex.

 

In FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45 (“Brownlie II”), the Supreme Court held as a matter of ratio by a 4:1 majority that consequential loss satisfies the ‘tort gateway’ in Practice Direction (“PD”) 6B, para. 3.1(9)(a).

 

Background

 

PD 6B, para. 3.1(9)(a) provides that tort claims can be served out of the jurisdiction of England & Wales where “damage was sustained, or will be sustained, within the jurisdiction”. Brownlie concerned a car accident during a family holiday to Egypt, which tragically claimed the lives of Sir Ian Brownlie (Chichele Professor of Public International Law at the University of Oxford) and his daughter Rebecca: at [1], [10] & [91]. On her return to England, however, Lady Brownlie suffered consequential losses including bereavement and loss of dependency in this jurisdiction: at [83].

 

The question whether mere consequential loss satisfies the tort gateway had been considered before by the Supreme Court in the very same case: Brownlie v Four Seasons [2017] UKSC 80; [2018] 2 All ER 91 (“Brownlie I”). By a 3:2 majority expressed “entirely obiter” (Brownlie II, at [45]) the Court had answered affirmatively: [48]-[55] (Baroness Hale), [56] (Lord Wilson) & [68]-[69] (Lord Clarke). However, the obiter nature of that holding combined with a forceful dissent from Lord Sumption (see [23]-[31]) had served to prolong uncertainty on this point.

 

Majority’s reasoning

 

When asked the same question again, however, a differently-constituted majority of the same Court gave the same answer. Lord Lloyd-Jones (with whom Lords Reed, Briggs, and Burrows agreed: see [5] & [7])) concluded that there was “no justification in principle or in practice, for limiting ‘damage’ in paragraph 3.1(9)(a) to damage which is necessary to complete a cause of action in tort or, indeed, for according any special significance to a place simply because it was where the cause of action was completed”: at [49]. The ‘consequential’ losses suffered in England were accordingly sufficient to ground English jurisdiction for the tort claims.

 

Three main reasons were given. First, Lord Lloyd-Jones held that there had been no “assimilation” of the tests at common law and under the Brussels Convention/Regulation, which would have been “totally inappropriate” given the “fundamental differences between the two systems”: at [54]-[55]. Second, his Lordship pointed to what he described as an “impressive and coherent line” of (mostly first-instance) authority to the same effect: at [64]. Third, it was said that the “safety valve” of forum conveniens meant that there was “no need to adopt an unnaturally restrictive reading of the domestic gateways”: at [77].

 

Economic torts?

 

What is now the position as regards pure economic loss cases? Although Lord Lloyd-Jones concluded that the term “damage” in PD 6B, para. 3.1(9)(a) “simply refers to actionable harm, direct or indirect, caused by the wrongful act alleged” (at [81]), his Lordship expressly stated that:

 

• “I would certainly not disagree with the proposition, supported by the economic loss cases, that to hold that the mere fact of any economic loss, however remote, felt by a claimant where he or she lives or, if a corporation, where it has its business seat would be an unsatisfactory basis for the exercise of jurisdiction”: at [76].

 

• “The nature of pure economic loss creates a need for constraints on the legal consequences of remote effects and can give rise to complex and difficult issues as to where the damage was suffered, calling for a careful analysis of transactions. As a result, the more remote economic repercussions of the causative event will not found jurisdiction”: at [75].

 

The status of previous decisions on the meaning of PD 6B, para. 3.1(9)(a) in economic tort cases appears to have been called into doubt by Brownlie II because (as noted by Lord Leggatt, dissenting: at [189]) those decisions had relied upon an “inference” that PD 6B, para. 3.1(9)(a) should be interpreted consistently with the Brussels Convention/Regulation. That approach was, however, rejected by both the majority and minority of the Supreme Court: at [74] & [189]. It therefore appears likely that the application of Brownlie II to economic torts will be the subject of significant future litigation.

Conventions & Instruments

On 5 October 2021, Indonesia deposited its instrument of accession to the HCCH 1961 Apostille Convention, in a ceremony held during the meeting of the Special Commission on the practical operation of the Apostille Convention. With the accession of Indonesia, the Apostille Convention now has 121 Contracting Parties. It will enter into force for Indonesia on 4 June 2022. With this accession, Indonesia becomes the 156th HCCH Connected Party. More information is available here.

Meetings & Events

On 4 October 2021, the HCCH hosted the 12th International Forum on the electronic Apostille programme (e-APP). Throughout the day, experts from around the globe shared their experiences with the development and implementation of the e-APP, its role in the context of e-Government initiatives, and the future of document authentication. More information is available here.

From 5 to 8 October 2021, the Fifth Meeting of the Special Commission on the practical operation of the Apostille Convention was held via videoconference. The meeting coincided with the 60th anniversary of the Apostille Convention. The Special Commission considered the scope and operation of the Convention, including the electronic Apostille Programme (e-APP). Delegates discussed matters relating to the COVID?19 pandemic, plans for the second edition of the Apostille Handbook, and the outcomes of the Experts Group on the e-APP and New Technologies. More information is available here.

On 7 October 2021, the HCCH hosted a virtual seminar on the HCCH 1965 Service Convention and the HCCH 1970 Evidence Convention for the Supreme Court of Ukraine. This will be the first of a series of seminars, organised through the generous support of the EU Project Pravo-Justice, aimed at facilitating the proper and effective implementation of the HCCH Conventions and instruments in Ukraine. More information is available here.

On 8 October 2021, the HCCH hosted a virtual seminar on the negotiation and adoption of the HCCH 2019 Judgments Convention. More information on the 2019 Judgments Convention is available here.

From 11 to 15 October 2021, the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation met for the first time, via videoconference. The Group commenced work on the development of draft provisions on parallel proceedings, to further inform policy considerations and decisions in relation to the scope and type of any new instrument. More information is available here.

On 19 October 2021, the HCCH hosted the HCCH|Approach Global Event. Held online in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention, the event featured a series of lectures and a live panel discussion by global experts. The winners of the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition were announced during the event. More information is available here.

On 28 October 2021, the HCCH Regional Office for Latin America and the Caribbean hosted an online event for Central Authorities of the HCCH 1996 Child Protection Convention from the region, as part of the HCCH|Approach Initiative.

Other

Save the Date: HCCH a|Bridged Edition 2021 will be held online on Wednesday, 1 December 2021. This year’s edition will discuss contemporary issues relating to the application of the?HCCH 2005 Choice of Court Convention,?including the establishment of?international commercial courts around the globe and how it enables party autonomy. Registration will open on Monday, 1 November. More information is available here.

Vacancy: Applications are now open for the position of Library Assistant (8 to 16 hours per week). The deadline for the submission of applications is this Sunday, 31 October 2021 (12:00 a.m. CET). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Guest post by Dr Sagi Peari, Senior Lecturer/Associate Professor at the University of Western Australia

When it comes to the question of the applicable law that governs disputes involving corporations: one must make a sharp distinction between two principal matters: (1) matters relating to external interactions of corporation (such as disputes between a corporation and other external actors, such as other business entities or individuals); and (2) matters relating to the internal interactions of a corporation (such as disputes within the corporate structure or  litigation between a corporation and its directors). A claim of a corporation against another in relation to a breach of contract between the two is an example of a dispute related to external affairs of a corporation. A claim of a corporate shareholder against a director in the firm is an example of a dispute concerning corporate internal affairs.

The division between external and internal affairs of corporation is an important one for the question of applicable law. A review of the case law suggests a strong tendency of the courts to apply the same choice-of-law rules applicable to private individuals. Thus, the general rule of the place of tort applies equally to corporations and private individuals.[1] In similar, the advancing principle of party autonomy[2] does not distinguish between corporations and other litigants on its operational level. The very fact that litigation involves a corporation does not seem prima facie to affect the identity of the applicable law rules.

The situation becomes dramatically different in cases concerning the internal affairs of a corporation. These are the situations involving claims between the corporate actors (i.e. executives, shareholders and directors) and claims between those actors and the corporation itself. Here, different considerations seem to apply. First, internal affairs of corporations tend to be excluded by the various international statutes aiming to harmonise the applicable law rules.[3] Second, there is a clear tendency of the rules to adhere to a single connecting factor (such as the place of incorporation or corporate headquarters with some further constitutional implications[4]) to determine the question of the applicable law. Thirdly, there is a clear tendency of rejecting the party autonomy principle in this sphere according to which  corporate actors are not free to determine the applicable law to govern their dispute.[5]

One of the neglected frameworks for addressing the external/internal affairs distinction relates to the classical corporate law theory on the nature of corporations and the relationships within the corporate structure. Thus, the classical vision of corporations perceives a corporation as an artificial entity that places the state at the very centre of the corporate creation, existence and activity.[6] Another, perhaps contradictory vision, challenges the artificial nature of corporation. It views corporation as an independent moral actor what dissects its existence from the originating act of incorporation.[7] Lastly, the third vision of corporation evaluates the corporate existence from the internal point of view by focusing on the bundle/nexus of contracts within the corporate structure.[8]

One could argue that an exercise of tackling the various theories of corporations could provide an invaluable tool for a better understanding of the internal/external division and subsequently shed light on the question of applicable law rules. Thus, for example, the traditional insistence of choice-of-law to equalise between corporations and private individuals seems to correlate with the ‘personality’ vision of corporation. On a related note, the insistence of the choice-of-law doctrine on a single connecting factor that denies party autonomy seems to be at odds with the nexus-contract theory and aligns with the traditional artificial entity theory of the corporation.

From this perspective, placing this question within the conceptual framework of corporate law could enable us to grasp the paradigmatic nature of the division and contemplate on whether the various suggestions for reform in the area of choice-of-law rules applicable to corporations do not just correlate with the underlying concerns and rationales of private international law/conflict of laws, but also those of corporate law.

I have tackled these (and other) matters in my recent article published in the 45 (3) Delaware Journal of Corporate Law 469-530 (2021) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3905751.

 

[1] See eg Regulation 864/2007, on the Law Applicable to Non-Contractual Obligations (Rome II), 2007 O.J. (L 199) 40 (EC), art 4 (1).

[2] See eg Hague Principles on Choice of Law in International Commercial Contracts, 2015.

[3] See eg Regulation 864/2007, on the Law Applicable to Non-Contractual Obligations (Rome II), 2007 O.J. (L 199) 40 (EC), art 1 (2) (f).

[4] See eg Case C-212/97, Centros Ltd. v. Erhvervs-og Selskabsstyrelsen, 1999 E.C.R. I-1459, 2 C.M.L.R. 551 (1999).

[5] See eg Hague Principles, Commentaries, 1.27-1.29.

[6] See eg Dartmauth College v Woodward 17 U.S. 518, 636 (1819)

[7] See eg Peter A French, ‘Responsibility and the Moral Role of Corporate Entities’, in Business as Humanity (Thomas J Donaldson and RE Freeman eds, 1994) 90.

[8] Of course, the distinction between the above-mentioned three theories is not sharp and variations and overlaps have been suggested over the years in the corporate law literature.

 

The Research Center on Private International Law of the University Jean Moulin Lyon III (EDIEC – EA 4185) is organizing a 3-day conference (dir. sc. Ludovic Pailler et Cyril Nourissat). The ambitious program proposed by the organizers does not only aim to take stock of a vicennial construction of the law of judicial cooperation in civil matters. It should also allow the speakers to assess whether this field of Union law is merely a pile of autonomous texts (at most likely to constitute a few large blocks – family, obligations, etc.) or whether, beyond that, a comprehensive work is taking shape, a true “system” of private international law, in particular thanks to the many judgments handed down by the Court of Justice of the European Union. This event will also be an opportunity to question the necessity of a system of private international law in order to constitute the area of civil justice called for by the European Commission.

In order to take up this major scientific challenge, the colloquium brings together eminent European authors, specialists in Private international law and Union law. Their analysis will be usefully completed by a comparative approach from points of view from outside the Union (China, Maghreb, USA) and by the intervention of practitioners (lawyers, bailiffs, notaries), better able to evaluate the usefulness of a system for their daily work.

by Paul Patreider

The European Project “DXB – Identities on the move – Documents cross borders” aims at facilitating the dissemination and implementation of Regulation (EU) 2016/1191 in the everyday practice of several EU Member States, improve the knowledge of the links between circulation of public documents, fundamental rights and freedom of movement, ensure a sound implementation of the Regulation for “hard cases” and raise awareness among registrars and legal practitioners. The partnership is supported by a consortium of academic institutions and associations of registrars. More information on the Project and its partners on the official website.

DxB’s Final Conference takes place on 23–24 June 2022 at the premises of A.N.U.S.C.A.’s Academy in Castel San Pietro Terme, Bologna (Italy). The conference will offer a unique opportunity to take stock of the implementation status of Regulation (EU) 2016/1191. The event will also launch the Commentary and the EU-wide comparative survey placing the Regulation in the context of daily national practice.

The Conference will be a truly international event, gathering scholars, registrars, public administrators, political scientists, judges, PhD students and practitioners from all over Europe. Translation services are offered in English, Italian and German. To ensure wide participation as well as the variety of topics and viewpoints, we are pleased to announce a Call for Papers & Panels.

 

CONFERENCE TOPICS

Regulation (EU) 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents has so far gone largely unnoticed in scholarly debates and practitioners’ discussions. As issues related to the circulation and mutual recognition of authentic instruments in civil status and criminal matters are becoming more and more pressing, the Regulation represents a great opportunity to strengthen the principles and values of the European Union.

Given the strict connection between the scientific and practical dimension of Regulation 2016/1191, authors are invited to examine how this act is currently implemented in the context of national civil status systems and fundamental rights. They should explore the potential positive impact on the freedom of movement of European citizens and on the enjoyment of their fundamental rights as well as focus on critical aspects and deficiencies of the current legal framework.

We encourage applicants to submit proposals for papers and panels related to the Regulation and its context. Possible topics include:

• The creation of a common European civil status framework;
• The notion of “public document” under the Regulation and similar instruments (e.g. formal and substantial requirements) and under domestic law;
• The circulation of criminal records;
• Problems arising from the lack of standardized definitions shared by all Member States (e.g. “crime”, “sex”, “intended parent”, “intersex” );
• The impact of the Regulation on the effective exercise of the freedom of movement;
• Connections between EU citizenship, national citizenship status, and circulation of public documents;
• Case-law of the Court of Justice influencing the interpretation and implementation of the Regulation, with special regard to the Charter of Fundamental Rights and the ECHR;
• Exercise of electoral rights and the circulation of public documents under Article 2.2. of the Regulation;
• Analysis of “hard cases” when applying the Regulation (e.g. marriages celebrated by religious authorities as third-country public documents etc.);
• The Regulation in comparison to the ICCS Conventions and other relevant international conventions (e.g. the Hague Apostille Convention (1961));
• E-Justice Portal tools (e.g. the multilingual form-filling system) and the efficiency of the Internal Market Information System (IMI) in the event of doubts as to the veracity of the documents, or the authenticity of the authority that signed them;
• The digitalization of documents and their circulation; how to ensure the authenticity of digital documents (both native digital size or digital copies of a paper original); forms of electronic signature or seals, with special regard to electronic signatures governed by the eIDAS Regulation and country-specific standards;
• Extension of the scope of the Regulation to public documents relating to, among others, the legal status and representation of a company or other undertakings, diplomas, certificates and other evidence of formal qualifications, officially recognised disabilities, etc. (see article 23 of the Regulation);
• Critical issues related to multilingual standard forms (regional/local linguistic minorities; public documents for which multilingual standard forms are not yet established by the Regulation etc.).

 

WHO SHOULD PARTICIPATE

Participation is not restricted to lawyers or to established scholars. We welcome registrars, public administrators, professionals, practitioners, doctoral students. We welcome proposals that offer multi-disciplinary perspectives from various areas of law (including European, civil, administrative, comparative, international, criminal, and labour law), as well as from scholars in the humanities and the social sciences (e.g. history, economics, political science, sociology) with an interest in the Conference’s themes. We also welcome submissions from both senior and junior scholars (including doctoral students) as well as interested practitioners.

 

PAPER AND PANEL SUBMISSIONS

• Submit your PAPER proposal with an abstract of a maximum of 500 words and 5 keywords. The abstract must also contain Title, Name, Affiliation (e.g. university, institution, professional association), Country and E-mail address.
• Submit your PANEL proposal with an abstract of a maximum of 800 words and 5 keywords. We welcome a state-of-the art symposium or a round-table providing on key issues. Fully formed panel proposals should include at least three and no more than five presentations by scholars or practitioners who have agreed in advance to participate. Panel proposals should also identify one panel chair/moderator. Include: title of the panel, names of speakers and of the chair/moderator and their affiliation (e.g. university, institution, professional association), title of each presentation (if applicable), e-mail address of panel participants, language(s) to be used.

We encourage submissions in English. However, as part of the vision of a truly European conference, paper and panel proposals will also be accepted in Italian and German.

Selected paper authors will receive further information on the publication of the proceedings.

Submission templates for paper & panel proposal are available on the DXB website.

 

HOW AND WHEN TO SUBMIT

Send proposals to: info@identitiesonthemove.eu. Indicate in the e-mail subject line: “Conference call – name of the (lead) author (or moderator) – Title of the paper or panel proposal”.

The deadline for submitting the paper or panel abstract proposal is 22 December 2021.

Applicants will be informed about the outcome of the abstract selection process no later than 15 January 2022. If successfully selected, full papers must be submitted by 15 April 2022.

 

PROGRAMME AND REGISTRATION

The draft of the Conference Programme will be published on 1st March 2022. The final Conference Programme with all panel sessions will become available on 25 April 2022.

Registration for the Conference opens on the DXB website on 15 January and closes on 20 May 2022.

The event will be held in person, in compliance with the current health safety regulations, and will also be broadcast online via live streaming with free access.

Onsite participants will need a Covid-19 digital certificate (Green Pass), or equivalent certificate recognized under Italian law, if still so required by the Authorities at the time of the conference.

N.B. All speakers and moderators, including those invited under the call, are required to attend the event in person.

Registration fee: it includes conference materials, shuttle service (see website for details), tea/coffee and lunch refreshments as well as the certificate of attendance.

Ordinary fee: 80 Euros

Reduced student fee (including Ph.D. students): 40 Euros

Check the Project website for updates.

This project was funded by the European Union’s Justice Programme (2014–2020). Project number: 101007502. The content of this Call represents the views of the partners only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

Mag. Paul Patreider, Institut für Italienisches Recht, Fachbereich Privatrecht, Universität Innsbruck

On October 18, 2021 Professor Monika Pauknerová, professor for private international law and international trade law at Charles University in Prague, Czech Republic, celebrated a significant jubilee. Colleagues and friends from many countries contributed to a liber amicorum to her honour:

Magdalena Pfeiffer, Jan Brodec, Petr Bríza and Marta Zavadilová (eds.). Liber Amicorum Monika Pauknerová. Praha: Wolters Kluwer ?R, 2021, 552 p. ISBN 978-80-7676-186-5.  The publication contains 47 contributions in English, Czech and Slovak, most of them on private international law.

 

 

TABLE OF CONTENT

Nadia de Araujo and Marcelo De Nardi
International Jurisdiction in Civil or Commercial Matters: HCCH´s New Challenge

Jürgen Basedow
International Transport Conventions and the European Union

Paul Beaumont and Jayne Holliday
Habitual Residence in Child Abduction Cases: The Hybrid Approach Is Now the Norm bur How Much Weight Should Be Given to Parental Intention?

Alexander J. Belohlávek
Conflicting Interpretations of International Treaties

Karel Beran
Cím se liší „právní entita“ od právnické osoby (úvaha nad „jinou než fyzickou
osobou“ podle § 30 odst. 1 z. m. p. s.)

Michael Bogdan
Article 36 of the EU Insolvency Regulation and the Treatment of General
Priority Rights

Jan Brodec
Vliv lex loci arbitri na prubeh mezinárodní obchodní arbitráže

Petr Bríza
Determination of the Law Applicable to a Share Transfer Agreement: Are All
Doubts Dispelled after the TVP Case?

Giuditta Cordero-Moss
Private International Law in Arbitration

Elizabeth B Crawford and Janeen M Carruthers
The Incurious Curia

Stanislava Cerná
Stát jako ovládající osoba

Lucie Dolanská Bányaiová
Jak moc musí být cizí rozsudek vykonatelný?

Katerina Eichlerová
EMCA – inspirace (nejen) pri vymezení požadavk? na oznacení pobocky

Richard Fentiman
Foreign Law as Local Law: a Case of Mistaken Identity?

Zuzana Fišerová
Zamyšlení nad kolizní úpravou pro rozvod manželství s mezinárodním prvkem
aneb nastal cas, aby CR pristoupila k narízení ?ím III?

Cristina González Beilfuss
Prorogation of Jurisdiction in Parental Responsibility Matters under Regulation
(EU) No. 2019/1111

Trevor Hartley
The Concept of a Consumer under Brussels I: the Petruchová Case

Elena Júdová
Špeciálne režimy v európskom medzinárodnom práve súkromnom

Zdenek Kapitán
Mezinárodní pravomoc ceských soudu ve vecech péce o deti založená na
státním obcanství

Catherine Kessedjian
Mediation for Disputes in Investment Matters

Zdenek Kühn
Vztah ceské Ústavy k mezinárodnímu právu

Ivana Kunda
Overriding Mandatory Provisions before the CJEU: Takaways or Getaways?

Tuula Linna
Sustainability and Insolvency Proceedings

Alena Macková a Filip Crncevic
Systém mimosoudního rešení sporu spotrebitel? v CR perspektivou ADR

Peter Mankowski
Presumptions, Escape Clauses and Protective Regimes under the Rome
I Regulation

Milan Müller
Mezinárodní postoupení pohledávek a jeho úcinky na tretí strany ve svetle
pripravované nové evropské právní úpravy

Hans Ulrich Jessurun d’Oliveira
“Latent” Citizens. What Do They Tell Us about the Concept of Citizenship?

Jan Ondrej
Smlouvy o mezinárodní preprave se zamerením na Úmluvu o prepravní
smlouve v mezinárodní silnicní nákladní doprav? a její provádení v právu CR

Daniel Patek
Úcinky (nekalé) souteže

Marta Pertegás Sender
Cross-Border Liability Cases in the European Union: No Good Match with the
Special Jurisdiction Rules of the Brussels I Regulation?

Magdalena Pfeiffer
The Cinderella Treatment of Foreign Arbitral Awards in the Czech
Enforcement Procedure

Fausto Pocar
Brief Remarks on the Relationship between the Hague Judgments and Choice
of Court Conventions

Helena Prášková
Konsenzuální a smírná rešení rozporu ve verejné správe

Ilaria Pretelli
Three Patterns, One Law: Plea for a Reinterpretation of The Hague Child
Abduction Convention To Protect Children from Exposure to Sexism,
Misogyny and Violence Against Women

Elena Rodríguez Pineau
Parallel Litigation in Proceedings Relating to Data Protection

Nadežda Rozehnalová
Cesta k soucasnému uchopení imperativních predpis?

Kvetoslav Ružicka
Náklady stran v rozhodcím rízení

Pavel Simon
Potíže spojené s ur?ením místn? p?íslušného soudu ve sporech s mezinárodním
prvkem aneb o zbyte?nosti § 11 odst. 3 o. s. ?.

Michal Skrejpek
Commercium inter gentes

Josef Staša
Cel?eprávní procesní mix po cesku

Pavel Svoboda
Trnitá cesta ke kodexu unijního správního práva procesního

Pavel Šturma
Pojem due diligence v mezinárodním investicním právu

Zbynek Švarc
Odpovednost dopravce za škodu v mezinárodní silnicní preprave zboží

Michal Tomášek
Nejpríznivejší sudište japonských šógunu

Aukje A.H. van Hoek
The Declaratory Judgment—between Remedy and Procedural Technique

Spyridon Vrellis
Family Reunification in Greek Immigration Law

Marta Zavadilová
Kulhající manželství osob stejného pohlaví

 

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