Conflictoflaws

Chinese Private International Law

Edited by Xiaohong Liu and Zhengyi Zhang

Written with the assistance of a team of lecturers at the Shanghai University of Political Science and Law, this book is the leading reference on Chinese private international law in English. The chapters systematically cover the whole of Chinese private international law, not just questions likely to arise in commercial matters, but also in family, succession, cross-border insolvency, intellectual property, competition (antitrust), and environmental disputes.  The chapters do not merely cover the traditional conflict of law areas of jurisdiction, applicable law (choice of law), and enforcement.  They also look into conflict of law questions arising in arbitration and assess China’s involvement in the harmonisation of private international law globally and regionally within the Belt and Road Initiative. Similarly to the Japanese and Indonesian volumes in the Series, this book presents Chinese conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of Chinese private international law.

Xiaohong Liu is Professor and President and Zhengyi Zhang is Associate Professor and Deputy Director of the International Affairs Office, both at Shanghai University of Political Science and Law, China.

May 2021   |   9781509924370   |   352pp   |   Hbk   |    RSP: £130

Discount Price: £104

Order online at www.hartpublishing.co.uk – use the code UG7 at the checkout to get 20% off your order!

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The Project Jean Monnet Network – BRIDGE, co-funded by the Erasmus+ Programme of the European Union, and the Latin-American Center for European Studies invite young Latin American researchers to submit their works to the “Monograph Contest for Young Latin American Researchers – Jean Monnet Award”, whose main objective is to foster excellence in research on topics related to European integration in Latin America.

Only unpublished monographs submitted by young researchers who are up to 30 years old at the date of the submission will be accepted. Authors must also be enrolled in any higher education institution of Latin America.

Monographs (between 60-120 pages) written in English, Spanish or Portuguese will be accepted and authors must submit their monographs by 1 August 2021.

For more information, access: https://eurolatinstudies.com/laces/announcement/view/25.

By Stephen G.A. Pitel, Western University

In common law Canada, it has long been established that a court will not recognize and enforce a foreign judgment concerning title to land in the forum.  The key case in support is Duke v Andler, [1932] SCR 734.

The ongoing application of that decision has now been called into question by the British Columbia Court of Appeal in Lanfer v Eilers, 2021 BCCA 241 (available here).  In the court below the judge relied on Duke and refused recognition and enforcement of a German decision that determined the ownership of land in British Columbia.  The Court of Appeal reversed and gave effect to the German decision.  This represents a significant change to Canadian law in this area.

The Court of Appeal, of course, cannot overturn a decision of the Supreme Court of Canada.  It reached its result by deciding that a more recent decision of the Supreme Court of Canada, that in Pro Swing Inc v Elta Golf Inc, 2006 SCC 52, had overtaken the reasoning and result in Duke and left the Court of Appeal free to recognize and enforce the German decision (see paras 44-45 and 74).  This is controversial.  It has been questioned whether Pro Swing had the effect of superseding Duke but there are arguments on both sides.  In part this is because Pro Swing was a decision about whether to recognize and enforce foreign non-monetary orders, but the orders in that case had nothing to do with specific performance mandating a transfer or title to land in the forum.

I find it hard to accept the decision as a matter of precedent.  The title to land aspect of the foreign decision seems a significantly different element than what is at issue in most non-monetary judgment decisions, such that it is hard to simply subsume this within Pro Swing.  What is really necessary is detailed analysis of whether the historic rule should or should not be changed at a normative level.  How open should courts be to recognizing and enforcing foreign judgments concerning title to land in the forum?  This raises related issues, most fundamentally whether the Mocambique rule itself should change.  If other courts now know that British Columbia is prepared to enforce foreign orders about land in that province, why should foreign courts restrain their jurisdiction in cases concerning such land?

In this litigation, the defendant is a German resident and by all accounts is clearly in violation of the German court’s order requiring a transfer of the land in British Columbia (see para 1).  Why the plaintiff could not or did not have the German courts directly enforce their own order against the defendant’s person or property is not clear in the decision.  Indeed, it may be that the German courts only were prepared to make the order about foreign land precisely because they had the power to enforce the order in personam and that it thus did not require enforcement in British Columbia (analogous to the Penn v Baltimore exception to Mocambique).

Given the conflict with Duke, there is a reasonable likelihood that the Supreme Court of Canada would grant leave to appeal if it is sought.  And if not, a denial of leave would be a relatively strong signal of support for the Court of Appeal’s decision.  But the issue will be less clear if no appeal is sought, leaving debate about the extent to which the law has changed.

Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers an analysis of some aspects of a judgment rendered by the Paris Court of Appeals.

Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”) introduced not only the first uniform provisional measure at the EU level but also the first European specific system to search for the debtors’ bank accounts. The so-called information mechanism is, though, less accessible than the EAPO itself. According to Article 5 of the EAPO Regulation, creditors can apply for an EAPO ante demandam, during the procedure on the substance of the matter; or when they have already a title (a judgment, a court settlement, or an authentic document). However, only creditors with a title can submit a request for information. Furthermore, in case the title is not yet enforceable, creditors are subject to specific additional prerequisites.

In broad terms, the information mechanism operates following a traditional scheme of cross-border cooperation in civil matters within the EU. A court in a Member State sends a request for information to an information authority in the same or other Member State. The information authority then searches for the bank accounts and informs the court of origin about the outcome of that search.

Member States have a wide margin of discretion in implementing the information mechanism. They can freely pick the national body appointed as information authority. They also have the freedom to choose whichever method they consider more appropriate to search for the debtors’ bank accounts as long as it is “effective and efficient” and “not disproportionately costly or time-consuming” (Article 14(5)(d) EAPO Regulation).

France assigned the role of information authority to its national enforcement authority, the bailiffs (“huissiers”). Information about the debtors’ bank accounts is obtained by filing an application with FICOBA (“Fichier national des comptes bancaires et assimilés”). FICOBA is a national register hold by the French tax authority containing data about all the bank accounts existing in France. Other Member States, such as Poland or Germany, have also relied on similar domestic registers.

This is where the paradox emerges. In France, creditors without an enforceable title who apply for a French domestic preservation order do not have access to FICOBA; conversely, creditors without an enforceable title who apply for an EAPO do. Article L151 A of the French Manual on Tax Procedures (“Livre des procédures fiscales”) expressly indicates that bailiffs can access FICOBA for the purpose of ensuring the execution of an enforceable title (“aux fins d’assurer l’exécution d’un titre exécutoire”). The only exception is found, precisely, when they have to search for information in an EAPO procedure. This situation generates an imbalance between creditors who can access the EAPO Regulation and those who cannot.

In a judgment rendered by the Paris Court of Appeal on 28 January 2021 (Cour d’appel de Paris, Pôle 1 – chambre 10, 28 janvier 2021, n° 19/21727), the court found that such a difference of treatment between creditors with and without access to the EAPO Regulation “constitutes an unjustified breach of equality and discrimination between creditors” (“cette différence de traitement constitue une rupture d’égalité injustifiée et une discrimination entre créanciers”). Relying on the principle of equality, the court decided to extend access to FICOBA, beyond the context of the EAPO Regulation, to those creditors without an enforceable title.

The relevance of this judgment lies in the French court’s use of the EAPO Regulation to interpret a national domestic procedure. The influence of the national civil procedures system on the European procedure is well known. Uniform European civil procedures, such as the EAPO Regulation, contain numerous references to the Member States’ national law. Furthermore, courts tend to read these instruments through the lens of the national civil procedural systems, even with regard to those aspects that should apply uniformly (here is an example concerning the EAPO Regulation kindly offered by Prof. Requejo Isidro). The Paris Court of Appeal shows us that the European civil procedures can also be a source of inspiration when it comes to interpreting domestic procedural law.

The irony behind this judgment is that, during the travaux préparatoires of the EAPO Regulation, the French delegation expressly requested to restrain access to the information mechanism to those creditors who had “an enforceable title to support [their] application”. One of the reasons argued by the delegation was that “in French law, access to information is only given if the creditor possesses an enforceable title”. Ultimately, it is the French civil procedural system that is being influenced by the EAPO Regulation, and not the other way around.

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking an Assistant Legal Officer. The successful candidate will work in the field of International Family Law and Child Protection, primarily in relation to the 2000 Convention on the Protection of Adults and the 2007 Convention on Child Support and its Protocol, but also the 1961 Convention on the Form of Testamentary Dispositions and 1970 Convention on the Recognition of Divorces.

Applications should be submitted by Friday 23 July 2021 (00:00 CEST). For more information, please visit the Recruitment section of the HCCH website.

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

 Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (019/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 6th CPLJ Webinar on 2 July 2021, 3:00 – 5:15 pm (CEST).

The programme reads as follows:

Chair: Loïc Cadiet (University of Paris I Panthéon-Sorbonne)

3:00 pm         Bruno Deffains (University of Paris II Panthéon-Assas / University Institute of France)

            Comparative procedural law and economics

3:30 pm          Discussion

4:00 pm          Intermission

4:15 pm           Remco van Rhee (Maastricht University)

            The use of foreign models of civil procedure in national law reform: ‘Lessons‘ from History?

4:45 pm           Discussion

5:15 pm           End of conference

The full programme is available here.

Participation is free of charge, but registration is required by 29 June 2021 via a short e-mail to events@mpi.lu.

(Image credits:  Rijksmuseum, Amsterdam)

Written by the Asian Business Law Institute and the Permanent Bureau of the HCCH

It was reported previously that the Asian Business Law Institute (ABLI) and the Permanent Bureau of the Hague Conference on Private International Law (HCCH) were to co-host a webinar titled HCCH 1970 Evidence Convention and Remote Taking of Evidence by Video-link on 1 June.

The session has since been successfully held. The organisers would like to share the summary and key takeaways of the session with readers of this blog. Readers who are interested in learning more about the session and requesting access to the video recording may contact ABLI at info@abli.asia.

On 1 June 2021, the Permanent Bureau of the Hague Conference on Private International Law (HCCH) and the Singapore-based Asian Business Law Institute co-hosted webinar HCCH 1970 Evidence Convention and Remote Taking of Evidence by Video-link, welcoming attendees from 30 different jurisdictions, including representatives of Central Authorities, HCCH Members, private practitioners, international public service officers and business professionals.

Dr Christophe Bernasconi, Secretary General of the HCCH, opened the webinar with a welcoming address where he underscored that the success of the 1970 Evidence Convention was attributable to not only its simplified transmission procedures and its flexibility to accommodate the needs of different legal traditions, but also the technology-neutral approach adopted by drafters, which has allowed the Convention to remain fit for purpose in the 21st century. Specifically, Dr Bernasconi highlighted that the Convention, with 63 Contracting Parties representing every major legal tradition, facilitated the transmission of thousands of requests for taking of evidence every year and allowed the use of video-link technology in the taking of evidence abroad.

Professor Yun Zhao, Representative of the HCCH Regional Office for Asia and the Pacific, was next to speak where he gave an overview of the operation of the Evidence Convention. He explained how the Convention provided, in Chapter I, a main channel of transmission under which a judicial authority in a requesting State may send a Letter of Request directly to a Central Authority in the requested State, before elaborating that the Convention also provided, in Chapter II, a streamlined process for the direct taking of evidence by commissioners or consuls, to which Contracting Parties may object upon or after accession. Professor Zhao pointed to the recently published Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention and outlined a plethora of ways in which video-link technology may be used to take evidence abroad, e.g. to facilitate the presence of the parties and their representatives by video-link at the execution of a request or to permit a commissioner located in the State of Origin to take evidence by video-link in the State of Execution.

Following Professor Zhao’s presentation, Mr Alexander Blumrosen, Partner at Polaris Law (Paris), provided a historical account of the use of the Evidence Convention in the United States and the significance of the landmark Supreme Court decision Aérospatiale. He went on to explain in detail, and by reference to his practical experience, how evidence located in France but needed for U.S. civil or commercial proceedings may be taken through a Letter of Request (under Chapter I) or more swiftly through a commissioner (under Chapter II). Mr Blumrosen highlighted that the execution of a Chapter I Letter of Request in France usually took between six weeks and three months, and that under Article 9 of the Convention, foreign counsel may be allowed to participate in the direct or cross examination of witnesses by video-link provided that such participation was expressly requested in the Letter of Request and allowed by local law and practice as it is in France. Mentioning that the taking of evidence by commissioner under Chapter II could be even faster and more flexible, Mr Blumrosen added that once the Central Authority had authorized a commissioner – which could take between one to ten days, depending on the matter – the evidence may be taken immediately either in person in conference room facilities or using video-link, without needing any further intervention or participation by a local judge. He mentioned the increased use of Chapter II discovery in requests from the U.S. over the last ten years, and applauded the qualified Article 23 reservation adopted by France to the Convention that allows for pre-trial discovery but requires requests to be “enumerated limitatively” and to be relevant to the underlying dispute in order to avoid overly broad “fishing expeditions”.

Turning attendees’ attention from France to Singapore was Mr Edmund Kronenburg, Managing Partner of Braddell Brothers LLP, who presented a brief overview of the operation of the Evidence Convention in Singapore by looking at the country’s legal framework. In his view, the popularity of the Convention was likely to increase in the coming years in tandem with Singapore’s efforts to reinforce its dispute resolution hub status. Mr Kronenburg then moderated a lively panel discussion among all panelists, including Mr Blumrosen, Justice Anselmo Reyes of the Singapore International Commercial Court, Dr João Ribeiro-Bidaoui, First Secretary at the HCCH and Professor Zhao.

To conclude the session, Dr Ribeiro-Bidaoui spoke of the salient benefits and main features of another HCCH instrument, the 1965 Service Convention, highlighting that the Service Convention, with 78 Contracting Parties, was accessible to almost 70% of the global citizenship who represents more than 80% of the world’s GDP.?

The Permanent Bureau of the HCCH and ABLI are heartened by the positive feedback received after the webinar. Some Singaporean practitioners who were in the midst of preparing for virtual hearings found the session especially timely. One attendee from the business community commented that although not legally trained, he found the discussions useful in understanding the difficulties involved in multi-jurisdictional legal processes from the perspective of running a multinational business. Attendees joining from outside of Singapore said they benefited most from learning about the implementation of the Evidence Convention in places other than their home jurisdictions. Specifically, Matthijs Kuijpers and Sofja Goldstein from Amsterdam-based law firm Stibbe shared that they found it extremely valuable for their international litigation practice to have judges, practitioners and academics from various jurisdictions exchange and discuss experiences and best practices. In particular, they very much appreciated that the organisers actively engaged practitioners during the session as such engagement helped overcome issues that would inevitably rise over time given that the methods of taking evidence today differ significantly from how it was envisioned when the Convention was drafted.

The organisers thank all attendees for their active participation and warm reception and look forward to having more such opportunities for exchange of ideas and sharing of experiences.

The full version of the key panel discussion takeaways can be read here.

The Young Research Network of the European Association of Private International Law (EAPIL) has just launched its latest research project, which is being led by Tobias Lutzi, Ennio Piovesani, and Dora Rotar. The project will focus on the national rules on jurisdiction in civil and commercial matters over non-EU defendants, in light of the report envisioned in Article 79 Brussels Ia Regulation.

As the project will primarily be based on national reports describing the situation in each Member State (structured by a detailed questionnaire), the organizers are currently still looking for participants who would be interested in providing a national report for one of the following Member States: Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania, Slovakia, Slovenia, and Sweden.

The full Call for Participants can be found here.

Xu Huang, Wuhan University Institute of International Law

1. Background
On 10 June 2021, China’s Standing Committee of the National People’s Congress (hereinafter “NPC”) issued “Anti-Foreign Sanctions Law of the People’s Republic of China” (hereinafter “CAFSL”), which entered into force on the date of the promulgation. This is a reaction in response to the current tension between China and some western countries, in particular, the US and the EU that have imposed a series of sanctions on Chinese officials and entities. For example, in August 2020, the Trump administration imposed sanctions on 11 individuals for undermining Hong Kong’s autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong. In June 2021, President Biden issued Executive Order 14032 to amend ban on US persons purchasing securities of certain Chinese companies. In March 2021, the EU imposed unilateral sanctions on relevant Chinese individuals and entity, based on the human rights issues in Xinjiang. China has responded by imposing counter sanctions, which were issued by the Ministry of Foreign Affairs as administrative orders. The Anti-Foreign Sanctions Law provides the legal basis for China’s further action and counter measures. This law was enacted after only two reading rather than normal three demonstrating China’s urgent need to defend itself against a growing risk of foreign hostile measures.

2. The main content

Competent Authority: All relevant departments under the State Council have been authorized to involve in issuing the anti-sanction list and anti-sanction measures (Art. 4 and Art. 5). The “Ministry of Foreign Affairs” and “other relevant departments under the State Council” are authorized to issue orders of announcement (Art. 9). Reviewing from the current practice of China’s response to foreign sanctions, the Ministry of Foreign Affairs has always issued sanctions lists against foreign individuals and organizations, so it is likely that the China’s Ministry of Foreign Affairs will still lead the movement of announcing and countering the foreign sanctions. However, other departments now also have the authority to sanction relevant individuals and entities. This provides flexibility if the foreign sanctions relate to a particular issue that is administrated by the particular department and when it is more efficient or appropriate for the particular department to handle it directly.

Targeted measures: Circumstances under which China shall have the right to take corresponding anti-sanction measures are as follows: (1) a foreign country violates international law and basic norms of international relations; (2) contains or suppresses China on various pretexts or in accordance with its own laws; (3) adopts discriminatory restrictive measures against any Chinese citizen or organization; (4) meddles in China’s internal affair (Art. 3).The CAFSL does not expressly specify whether the circumstances should be satisfied simultaneously or separately. From the perspective of legislative intent, it is obvious that the full text of the CAFSL is intended to broaden legal authority for taking anti-sanctions measures in China, so it may not require the fulfilment of all four conditions.

It does not clarify the specific meanings of “violates international law and the basic norms of international relations”, “contains or suppresses”, and “meddles in China’s internal affairs”, which vary in different states and jurisdictions. But considering the sanctions issued by China and answers by the NPC spokesman, the key targeted circumstances are meddling China’s internal affairs. It is reasonable to assume that these circumstances mainly aimed at unilateral sanctions suppressing China under the pretexts of so-called sea-based, epidemic-based, democracy-based and human rights-based issues in Xinjiang, Tibet, Hong Kong and Taiwan. Therefore, other issues may not be included.

Art. 3 aims against the sanctions imposed by foreign states, for example the US and the EU. But from the text of the law, the concept of “sanctions” is not used, instead the concept of “discriminatory restrictive measures” is adopted, which isvery vague and broad. Discriminatory restrictive measures can be interpreted as foreign unilateral sanctions directly targeting Chinese individuals and organizations, which are the so-called “primary sanctions”, different from the “secondary sanctions” restricting Chinese parties from engaging in normal economic, trade and related activities with directly sanctions third state’s parties. In a press conference, the NPC spokesman stated that “the main purpose of the CAFSL is to fight back, counter and oppose the unilateral sanctions against China imposed by foreign states.” It should only apply to tackle the primary sanctions against China.

Targeted entities: The targeted entities of anti-sanction list and anti-sanction measures are vague and broad. The targeted entities of anti-sanctions list include individuals and organizations that are directly involved in the development, decision-making, and implementation of the discriminatory restrictive measures (Art. 4). What means involvement in the development or decision-making or implementation is ambiguous. And the indirect involvement is even vaguer, which may broaden the scope of the list. Besides, following entities may also be targeted: (1) spouses and immediate family members of targeted individuals; (2) senior executives or actual controllers of targeted organizations; (3) organizations where targeted individuals serve as senior executives; (4) organizations that are actually controlled by targeted entities or whose formation and operation are participated in by targeted entities (Art. 5).

Anti-sanction measures: The relevant departments may take four categories of anti-sanction measures: (1) travel ban, meaning that entry into China will not be allowed and deportation will be applied;(2) freezing order, namely, all types of property in China shall be seized, frozen or detained; (3) prohibited transaction, which means entities within the territory of China will not be allowed to carry out transactions or other business activities with the sanctioned entities; (4) the other necessary measures, which may include measures like “arms embargoes” or “targeted sanctions” (Art. 6). Former three anti-sanction measures have been taken by the Ministry of Foreign Affairs in practice. For example, on 26 March 2021, China decided to sanction relevant UK individuals and entities by prohibiting them from entering the mainland, Hong Kong and Macao of China, freezing their property in China, and prohibiting Chinese citizens and institutions from doing business with them.

Relevant procedure: The decisions made by the competent authorities shall be final and not subject to judicial review(Art. 7).The counterparty shall not file an administrative lawsuit against anti-sanction measures and other administrative decisions. The counterparty can change the circumstance causing anti-sanction measures, and request the relevant department for the modification and cancellation of anti-sanction measures. If any change in the circumstances based on which anti-sanction measures are taken happens, the competent authorities may suspend, change or cancel the relevant anti-sanction measures (Art. 8). The transparency requirement stipulates the relevant orders shall be announced (Art. 9).

A coordination mechanism for the anti-foreign sanctions work shall be established by the state to coordinate the relevant work. Coordination and cooperation, and information sharing among various departments shall be strengthened. Determination and implementation of the relevant anti-sanction measures shall be based on their respective functions and division of tasks and responsibilities (Art. 10).

Legal consequences of violation: There are two types of legal consequences for violating the obligation of “implementation of the anti-sanction measures”. Entities in the territory of China will be restricted or prohibited from carrying out relevant activities (Art. 11). Any entities, including foreign states’ parties, will be held legally liable (Art. 14).
Besides, a party suffering from the discriminatory restrictive measures may be entitled to bring a civil action against the entities that comply with the foreign discriminatory measures against China (Art. 12). The defendant, in theory, includes any entities in the world, even entities that are the nationals or residents of the country imposing sanctions against China. It is curious how this can be enforced in reality. In particular, if a foreign entity has no connections with China, it is hard for a Chinese court to claim jurisdiction, and even taking jurisdiction, enforcing judgments abroad can also be difficult, if not impossible. Because enforcement jurisdiction must be territorial, without assets and reputation in China, a foreign state’s party may disregard the Chinese anti-sanction measure.

3. Impact of the CAFSL

The CAFSL is a higher-level legislation in Chinese legal system than the relevant departmental rules, such as the Chinese Blocking Rules and “unreliable entity list” . It is a much more powerful legal tool than former departmental rules as it directly retaliates against the primary sanction on China. It provides a legal basis and fills a legal gap. However, it may not be good news for international businesses that operate in both the US and China. Those companies may have to choose between complying with foreign sanctions or Chinese laws, which may probably force some enterprises to make strategic decision to accept risk of penalty from one country, or even to give up the Chinese or US market. The CAFSL is vaguely drafted and likely to create unpredictable results to the commercial transaction and other interests. The application and enforcement of the CAFSL and Chinese subsequent rules and regulations may give detailed interpretation to clarify relevant issues to help parties comply with the CAFSL. However, to China, the CAFSL serves apolitical purpose, which is more important than the normal functioning of a law. It is a political declaration of China’s determination to fight back. Therefore, the most important matter for Chinese law-makers is not to concern too much of the detailed rules and enforcement to provide predictability to international business, but to send the warning message to foreign countries. International businesses, at the same time, may find themselves in a no-win position and may frequently face the direct conflict of overriding mandatory regulations in China and the US. By placing international businesses in the dilemma may help to send the message and pressure back to the US that may urge the US policy-makers to reconsider their China policy. After all, the CAFSL is a counter-measure, which serves defensive purposes, and would not be triggered in the absence of sanctions against Chinese citizens and entities.

The Hague Academy of International Law is holding its Summer Courses on Private International Law for the first (and perhaps last) time online from 26 July to 13 August 2021. Registration is open until Sunday 27 June 2021 at 23:59 The Hague time. More information is available here.

As you may remember, we announced in a previous post that the 2020 Summer Courses were postponed and that the only prior time that the courses were cancelled was World War II.

This year’s general course will be delivered by NYU Professor Linda Silberman and is entitled The Counter-Revolution in Private International Law in the United States: From Standards to Rules. The special courses will be given by José Antonio Moreno Rodríguez, Mary Keyes, Pietro Franzina (former editor of Conflictoflaws.net), Sylvain Bollée, Salim Moollan, Jean-Baptiste Racine and Robert Wai. The inaugural lecture will be delivered by Alexis Mourre, President of the International Court of Arbitration of the ICC. The poster is available here.

The holding of the Summer Courses in times of the Covid-19 pandemic attests to the perseverance of the Hague Academy, which has organised two live broadcasts per day to cater to people living in different time zones.

Please note that “no certificate of attendance will be delivered upon completion of the courses. Instead, each attendee will receive an electronic certificate of enrolment at the end of the session.”

If you are interested in a more full-fledged experience, you may consider registering for the Winter Course, which appears to be an in-person course. Registration for the Winter Courses 2022 is open since 1 June 2021 and will end 31 July (scholarships) and 29 September 2021 (full fee). For more information, click here.

The CJEU has just rendered its decision in Case C-800/19 Mittelbayerischer Verlag (currently only available in French). The Court held that the courts of the claimant’s ‘centre of interests’ have jurisdiction (on this basis) only if the content complained of contains ‘objective and verifiable elements allowing to identify, directly or indirectly, the claimant as an individual’ (para 46). Accordingly, a Polish Holocaust survivor could not sue a German publishing house over the use of the term ‘Polish extermination camp’ in an online article in Poland.

The factual and legal background of the case are described in some detail in our report on the AG Opinion – in a nutshell, the case is about whether a Polish survivor of the Holocaust can sue the publisher of a German newspaper in Poland for an alleged violation of his personality rights (including his national dignity) by an online article containing the phrase ‘Polish extermination camp’. As the claimant sought a range of remedies, at least some of which should only be available in a court with ‘full’ jurisdiction (as per the Court’s decision in Case C-194/16 Bolagsupplysningen, para 48), he needed to rely on the Court’s ‘centre of interests’ criterion to seize the Polish courts. Yet, both the referring court and AG Bobek had doubts if this criterion would not require some kind of limit to prevent the publisher of an online article to be sued in all member states in which a person potentially affected in their national dignity might have their centre of interests.

Upon a first reading of the decision, four aspects may be noted:

(1) The Court appears to have followed the AG’s proposition to adopt “a narrow and minimalist approach [to] this case” (Opinion, para 43). Thus, instead of a full reconsideration of the ‘centre of interests’ criterion, let alone of its interpretation of Art. 7(2) Brussels Ia with regard to personality rights as a whole (as Geert van Calster was hoping for), the Court has opted for its incremental readjustment.

(2) But the importance of the readjustment should not be underestimated. Despite giving access to the ‘full’ range of remedies, the Court has never had an opportunity to specify the exact requirements of ‘centre of interests’ jurisdiction as introduced in Joined Cases C-509/09 and C-161/10 eDate. Although clearly intended to protect the claimant (see eDate, para 47), para 50 of the decision certainly left room for additional requirements regarding the connection between the publication in question and the forum.

The CJEU now has indeed picked up this paragraph and argues that in a situation such as the present one, in which the claimant has – unlike in eDate and Bolagsupplysningen – not been directly targeted by the publication in question, it would hurt the aim of predictability if the claimant could sue for the entirety of the damage (and all injunctions) at their ‘centre of interests’, which the defendant could not reasonably predict (paras 35–38). In support, the Court also cites the need for a particularly close link between the case and the forum for special jurisdiction (para 40), as well as the aim to prevent a multiplication of grounds of jurisdiction (para 39 – a point not easily reconcilable with the Court’s continued adherence to the mosaic principle). On this basis, it formulates the rule cited above:

[46] article 7, point 2, du règlement no 1215/2012 doit être interprété en ce sens que la juridiction du lieu où se trouve le centre des intérêts d’une personne prétendant que ses droits de la personnalité ont été violés par un contenu mis en ligne sur un site Internet n’est compétente pour connaître, au titre de l’intégralité du dommage allégué, d’une action en responsabilité introduite par cette personne que si ce contenu comporte des éléments objectifs et vérifiables permettant d’identifier, directement ou indirectement, ladite personne en tant qu’individu.

(3) It is certainly a step forward that for once, the Court acknowledges the difficulties that its previous case law created for defendants of claims of alleged violations of personality rights through the internet (as to which see Lutzi, Private International Law Online, 2020, paras 4.75–83).

Yet, the Court does not go as far as proposed by AG Bobek, who, like AG Cruz-Villalón did before him, suggested the introduction of an objective foreseeability test, focusing on the relationship between the forum and the content in question (Opinion, paras 58–74; which would not necessarily have prevented the Polish courts from taking jurisdiction here). As a consequence, the new criterion introduced by the Court will raise many of the difficult questions of fact that AG Bobek warned against (Opinion, paras 45–57).

(4) The fact that the Court only considered ‘centre of interests’ jurisdiction may be seen as confirmation that at least some of the remedies sought by the claimant were ‘indivisible’ and therefore required ‘full’ jurisdiction. In this regard, the decision lends support to the reading of Bolagsupplysningen according to which most, if not all injunctions fall into this category (see Stadler, JZ 2018, 94, 95; Lutzi (2018) 34 LQR 208, 212).

With regard to the case at hand, the Court has been very clear that it does not pass the newly introduced threshold for ‘centre of interests’ jurisdiction (see also paras 36, 43, 45):

[44] Or, en l’occurrence, [le demandeur] n’est manifestement pas identifié en tant qu’individu, que ce soit directement ou indirectement, dans le contenu mis en ligne sur le site Internet de Mittelbayerischer Verlag […].

Accordingly, the Court did not need to engage with a number of follow-up questions raised obiter by AG Bobek (paras 75–87), including the potential role of the e-Commerce Directive.

Overall, it seems like the court has added another piece to the mosaic (pun intended) that is its case law on international jurisdiction for violations of personality rights through the internet. It appears not unlikely that the Court will continue to incrementally readjust individual pieces of this mosaic, rather than ever reconsidering it in its entirety – the next opportunity for which is just around the corner with Case C-251/20 Gtflix Tv.

The Minerva Centre for Human Rights at Tel Aviv University is organising an international socio-legal workshop that will explore the impact of the Covid-19 crisis and its regulation on cross-border families. Topics include issues of belonging, travel restrictions, civil rights, birth across borders, international child abduction and transnational homes in pandemic times.

The workshop will take place on 22 June 2021. The  full program and registration form are available.

For additional information, contact eynatmey@tauex.tau.ac.il

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its annual XLIV Seminar entitled “New perspectives for Private International Law in a post-pandemic society” (perspectivas para el derecho internacional privado en una sociedad post-pandemia) from 17 to 19 November 2021 for the second time online.

The main focus of the seminar will be to analyse the impact of the Covid-19 pandemic on the development of private international law.

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by September 1st 2021. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

Participation is free of charge. The platform that will be used is Zoom and it will also be streamed via Facebook Live. For more information, please click here.

The Milan Law Review (MLR) of the State University of Milan Law Faculty is a multidisciplinary and multilingual law journal, published on a six-monthly basis in open access mode. 

Articles on topics of private international law, public international law and European Union law are welcome. 

Papers can be written in Italian or English. Instructions for authors and more information about the journal can be found on the website: https://riviste.unimi.it/index.php/milanlawreview/about. 

Papers may be submitted to the Journal by email to the following address: milanlawreview@unimi.it. 

The next deadline for submitting papers is 31 October 2021.

Written by William S. Dodge (Professor, University of California, Davis, School of Law)

& Wenliang Zhang (Associate Professor, Renmin University of China Law School)

In Shanghai Yongrun Investment Management Co. v. Kashi Galaxy Venture Capital Co., the Supreme Court of New York (New York’s court of first instance) denied enforcement of a Chinese court judgment on the ground that the judgment “was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” The decision disagrees with every other U.S. and foreign court to have considered the adequacy of the Chinese judicial system in the context of judgments recognition. In recent years, there has been a growing trend in favor of the recognition of Chinese judgments in the United States and U.S. judgments in China. See William S. Dodge & Wenliang Zhang, Reciprocity in China-U.S. Judgments Recognition, 53 Vand. J. Transnat’l L. 1541 (2020). Unless this recent decision is overturned on appeal, it threatens to reverse the trend, to the detriment of judgment creditors in both countries.

In 2016 Shanghai Yongrun purchased an interest in Kashi Galaxy. In 2017, Kashi Galaxy agreed to repurchase that interest for RMB 200 million, an agreement that Kashi Galaxy allegedly breached by paying only part of the repurchase price. The agreement was governed by Chinese law and provided that suits could be resolved by courts in Beijing. In 2018, Shanghai Yongrun sued Kashi Galaxy, Maodong Xu, and Xu’s wife in the Beijing No. 1 Intermediate People’s Court. After a trial in which defendants were represented by counsel, the court granted judgment in favor of Shanghai Yongrun. The Beijing Higher People’s Court affirmed the judgment on appeal, but it could not be enforced in China because no assets were available within the court’s jurisdiction.

In 2020, Shanghai Yongrun brought an action against Kashi Galaxy and Xu in New York state court, seeking to have the Chinese judgment recognized and enforced. Article 53 of New York’s Civil Practice Law and Rules (CPLR) has adopted the 1962 Uniform Foreign Money-Judgments Recognition Act (1962 Uniform Act), which provides that final money judgments rendered by foreign courts are enforceable in New York unless one of the grounds for non-recognition set forth in CPLR 5304 is established. These grounds include that the foreign court did not have personal jurisdiction, that the foreign court did not have subject matter jurisdiction, that the defendant did not receive notice of the foreign proceeding, that the judgment was obtained by fraud, that the judgment is repugnant to the public policy of the state, that the judgment conflicts with another final judgment, that the judgment is contrary to a forum selection clause, that personal jurisdiction was based only on service, and that the judgment is for defamation and provided less protection for speech than would be available in New York. The defendants raised none of these grounds for non-recognition. Instead, they raised the broadest and least frequently accepted ground: that “the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” CPLR 5304(a)(1).

To find a systemic lack of due process in the Chinese judicial system, the New York court relied entirely on the State Department’s Country Reports on Human Rights Practices for 2018 and 2019. In particular, the court quoted the observations that Chinese “[j]udges regularly received political guidance on pending cases, including instructions on how to rule, from both the government and the [Chinese Communist Party], particularly in politically sensitive cases” and that “[c]orruption often influenced court decisions.” The court held that these country reports “conclusively establish as a matter of law that the PRC judgment was rendered under a system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law in the United States.”

The implications of this ruling are broad. If the Chinese judicial system suffers from a systemic lack of due process, then no Chinese court judgments may ever be recognized and enforced under New York law. What is more, ten other states have adopted the 1962 Uniform Act, and an additional twenty-six states have adopted the updated 2005 Uniform Foreign-Country Money Judgments Recognition Act (2005 Uniform Act), which contains the same systemic due process ground for non-recognition. If followed in other jurisdictions, the New York court’s reasoning would make Chinese judgments unenforceable throughout much of the United States.

But it seems unlikely that other jurisdictions will follow suit or that the New York court’s decision will be upheld on appeal. U.S. decisions denying recognition on systemic due process grounds are rare. The leading cases have involved extreme and unusual circumstances: a Liberian judgment rendered during that country’s civil war when the judicial system had “collapsed,” Bridgeway Corp. v. Citibank, 201 F.3d 134, 138 (2d Cir. 2000), and an Iranian judgment against the sister of the former Shah, Bank Melli Iran v. Pahlavi, 58 F.3d 1406 (9th Cir. 1995). Although other courts have considered State Department country reports to be relevant in considering claims of systemic due process, none has found them to be dispositive. For example, the Fifth Circuit rejected a claim that Moroccan courts suffered from systemic lack of due process notwithstanding a statement in the 2009 country report that “in practice the judiciary . . . was not fully independent and was subject to influence, particularly in sensitive cases.” DeJoria v. Maghreb Petroleum Exploration, S.A., 804 F.3d 373, 381 (5th Cir. 2015). This language about Moroccan courts is quite similar to the country report statements about China that the New York court found conclusive.

With respect to China specifically, no U.S. court had previously denied recognition based on a systemic lack of due process. To the contrary, a prior New York state court decision held that “the Chinese legal system comports with the due process requirements,” Huizhi Liu v. Guoqing Guan, Index No. 713741/2019 (N.Y. Sup. Ct., Jan. 7, 2020),  and a federal court in California concluded that “the Chinese court was an impartial tribunal.” Qinrong Qiu v. Hongying Zhang, 2017 WL 10574227, at *3 (C.D. Cal. 2017). Other U.S. decisions have specifically noted that the party resisting enforcement had not alleged systemic lack of due process as a ground for non-recognition. See Global Material Technologies, Inc. v. Dazheng Metal Fibre Co., 2015 WL 1977527, at *7 (N.D. Ill. 2015); Hubei Gezhouba Sanlian Industrial Co. v. Robinson Helicopter Co., 2009 WL 2190187, at *6 (C.D. Cal. 2009).

China has been promoting the rule of law, and its legal system is modernizing to follow internationally accepted standards. The independence of China’s judiciary is guaranteed by its Constitution and other laws. To promote international trade and investment, China has emphasized the independence and impartiality of its courts. Other countries have repeatedly recognized and enforced Chinese judgments, including Australia, Canada, Germany, Israel, the Netherlands, New Zealand, Singapore, South Korea, and the United Kingdom. When parties have questioned the integrity of the Chinese judicial system as a whole, courts have rejected those arguments. Recently, in Hebei Huaneng Industrial Development Co. v. Deming Shi, [2020] NZHC 2992, the High Court of New Zealand found that the Chinese court rendering the judgment “was part of the judicial branch of the government of the People’s Republic China and was separate and distinct from legislative and administrative organs. It exercised a judicial function. Its procedures and decision were recognisably judicial.” When claims of improper interference are raised in the context of judgments recognition, the New Zealand court suggested, “the better approach is to see whether justice was done in the particular case.”

The New York court’s decision in Shanghai Yongrun is not only contrary to past decisions involving the enforcement of Chinese judgments in the United States and other countries. It also threatens to undermine the enforceability of U.S. judgments in China. Under Article 282 of the Civil Procedure Law of the People’s Republic of China, foreign judgments are recognized and enforced “in accordance with the principle of reciprocity.” For U.S. judgments, Chinese courts in cases like Liu v. Tao (Reported on by Ron Brand) and Nalco Co. v. Chen have found China’s reciprocity requirement to be satisfied by U.S. decisions that recognized and enforced Chinese judgments. If U.S. courts change course and begin to hold that China’s judiciary can never produce enforceable judgments, Chinese courts will certainly change course too and deny recognition to U.S. judgments for lack of reciprocity.

Maintaining reciprocity with China does not require U.S. courts to enforce every Chinese judgment. U.S. courts have denied recognition and enforcement of Chinese judgments when the Chinese court lacked personal jurisdiction, Folex Golf Indus., Inc. v. O-Ta Precision Industries Co., 603 F. App’x 576 (9th Cir. 2015), or when the Chinese judgment conflicted with another final judgment, UM Corp. v. Tsuburaya Prod. Co., 2016 WL 10644497 (C.D. Cal. 2016). But so far, U.S. courts have treated Chinese judgments the same as judgments from other countries, applying the case-specific grounds for non-recognition in an evenhanded way. The systemic due process ground on which the New York court relied in Shanghai Yongrun is fundamentally different because it holds Chinese judgments to be categorically incapable of recognition and enforcement.

New York may be on the verge of expanding the case-specific ground for non-recognition by adopting the 2005 Uniform Act to replace the 1962 version that is currently in place. A bill to adopt the 2005 Act has passed both the Assembly and the Senate in New York. The 2005 Act adds two grounds for non-recognition not found in the 1962 Act: (1) that “the judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment”; and (2) that “the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.” These grounds, already found in the laws of twenty-six other states that have adopted the 2005 Uniform Act, would allow New York courts to review foreign judgments for corruption and for lack of due process in the specific case without having to condemn the entire foreign judiciary as incapable of producing recognizable judgments. It is worth noting that the defendants in Shanghai Yongrun did not claim that there was any defect in the Chinese proceedings that led to the judgment against them.

Many court systems around the world are imperfect. The case-specific grounds for non-recognition found in the 1962 and 2005 Uniform Acts allow U.S. courts to refuse enforcement to foreign judgments on a range of case-specific grounds from lack of jurisdiction or notice, to public policy, to corruption or lack of due process. These case-specific grounds largely eliminate the need for U.S. courts to declare that an entire judicial system is incapable of producing valid judgments.

Election or political party disputes often feature before Nigerian courts. In Nigeria jurisdiction in matters of conflict of laws (called “territorial jurisdiction” by many Nigerian judges) also applies to matters of disputes between members of a political party in the inter-state context.[1]

In Oshiomhole v Salihu (No. 1)[2] (reported on June 7, 2021), one of the issues for determination was whether the High Court of the Federal Capital Territory, Abuja possessed territorial jurisdiction to handle a dispute between members of Nigeria’s ruling political party. The 1st defendant/appellant was at the time the National Chairman of the 2nd defendant/appellant (the ruling party in Nigeria). It was alleged by some Members of the party that he had been suspended at the ward level in Edo State and he was thus disqualified from holding the position of National Chairman. The 1st defendant/appellant, inter alia, filed a preliminary objection to the suit and argued that the High Court of the Federal Capital Territory did not possess territorial jurisdiction because the cause of action arose in Edo State where he was alleged to have been suspended as the National Chairman. The Court of Appeal (per Onyemenam JCA in his leading judgment) dismissed the preliminary objection and held as follows:

“The issue herein is straightforward. Order 3 rule 4 of the High Court of Federal Capital Territory (Civil Procedure) Rules 2018 provides that:

“All other suits shall where the defendant resides or carries on business or where the cause of action arose in the Federal Capital Territory, be commenced and determined in the High court of Federal Capital Territory, Abuja.”

By this Rule, apart from the matters that fall under Order 3 Rules 1 & 2 of the High Court of Federal Capital Territory (Civil Procedure) Rules 2018, the High Court of Federal Capital Territory, Abuja shall have territorial jurisdiction where:

1. The defendant resides within the Federal Capital Territory or
2. The defendant carries on business within the Federal Capital Territory or
3. The cause of action arose within the Federal Capital Territory or

In either of the three circumstances stated above, the High Court of Federal Capital Territory, Abuja shall have territorial jurisdiction to hear and determine the suit. The appellants’ contention herein is that the cause of action arose in Edo State and not in the Federal Capital Territory, Abuja and as such the High court of Federal Capital Territory, Abuja lacks the jurisdiction to hear the suit. This argument is one third percent correct for the simple fact that, where cause of action arose is not the sole source of territorial jurisdiction of the High court of Federal Capital Territory, Abuja. In the instant case, the office of the 1st appellant as National Chairman of the 2nd appellant; as well as the Registered office and Secretariat of the 2nd appellant are both within the Federal Capital Territory, Abuja. This makes the High court of Federal Capital Territory, Abuja, have territorial jurisdiction over the suit filed by the respondents under Order 3 rule 4(1) of the High Court of Federal Capital Territory(Civil Procedure) Rules, 2018…

I therefore hold that the trial court has the territorial jurisdiction to hear the respondent’s suit and resolve the issue in favour of the 1st – 6th respondents.”[3]

The above rationale for the Court of Appeal’s decision of Onyemenam JCA in his leading judgment is clearly wrong. Order 3 rule 4 of the High Court of Federal Capital Territory (Civil Procedure) Rules 2018 is a choice of venue rule for allocating jurisdiction as between the judicial division of the Federal Capital Territory for the purpose of geographical and administrative convenience. It cannot and should not be used to resolve inter-state matters of conflict of laws. It is submitted that the better view is stated by the Court of Appeal in Ogunsola v All Nigeria Peoples Party,[4] where Oduyemi JCA in his leading judgment at the Court of Appeal, rightly held that:

“Where the dispute as to venue is not one between one division or another of the same State High Court or between one division or the other of the F.C.T. Abuja High Court, but as between one division or the other of the F.C.T Abuja High Court, but as between the High Court of one State in the Federation and the High Court of the F.C.T. then the issue of the appropriate or more convenient forum is one to be determined under the rules of Private International Law formulated by courts within the Federation.”[5]

In Oshiomhole (supra) the opportunity was missed to apply and develop jurisdictional conflict of law rules for disputes between members of a political party in Nigeria. The  result of the decision reached in Oshiomhole (supra) in applying choice of venue rules through Order 3 rule 4 of the High Court of Federal Capital Territory (Civil Procedure) Rules 2018 will conflate with the principles of Nigerian private international as the defendants were resident in the State they were sued. So the Court of Appeal in Oshiomhole (supra) incorrectly reasoned its way to the right conclusion – the High Court of the Federal Capital Territory had jurisdiction in this case.

Unfortunately, in recent times the Supreme Court of Nigeria has held that the High Court of a State cannot establish jurisdiction over a cause of action that occurs in another State – the strict territorial jurisdiction approach.[6] This approach has also been applied to disputes between members of a political party.[7] This approach is also wrong as it ignores the principles of traditional Nigerian common law conflict of laws. It also leads to injustice and unduly circumscribes the jurisdiction of the Nigerian court, which ultimately makes Nigerian courts inaccessible and unattractive for litigation. Nigerian courts should have jurisdiction as of right once a defendant is resident or submits to the jurisdiction of the Nigerian court. In Oshiomhole (supra), if the strict territorial jurisdiction approach was applied, the High Court of the Federal Capital Territory, Abuja would not have had jurisdiction because the cause of action arose in Edo State.

In summation, applying the right principle of private international law, the Court of Appeal in Oshiomhole (supra) reached the right decision (residence of the defendant) through an incorrect reasoning of relying on Order 3 rule 4 of the High Court of Federal Capital Territory (Civil Procedure) Rules 2018, which is choice of venue rule for judicial divisions within a State. If the recent Supreme Court cases, which apply the strict territorial jurisdiction approach was applied in this case, Oshiomhole (supra) would be per incuriam and, the High Court of the Federal Capital Territory, Abuja would not have had jurisdiction because the cause of action arose in Edo State.

[1]Ogunsola v All Nigeria Peoples Party (2003) 9 NWLR (Pt. 826) 462, 480.

[2] (2021) 8 NWLR (Pt. 1778) 237.

[3]Oshiomhole v Salihu (No. 1) (2021) 8 NWLR (Pt. 1778) 237, 275-6.

[4](2003 ) 9 NWLR (Pt. 826) 462, 480 .

[5] Ogunsola v All Nigeria Peoples Party (2003 ) 9 NWLR (Pt. 826) 462, 480 .

[6] Capital Bancorp Ltd v Shelter Savings and Loans Ltd (2007) 3 NWLR 148; Dairo v Union Bank of Nigeria Plc (2007) 16 NWLR (Pt 1059) 99,

[7]Mailantarki v Tongo & Ors (2017) LPELR-42467; Audu v. APC & Ors (2019) LPELR – 48134.

Published in the Oxford University Commonwealth Law Journal by Saloni Khanderia, Alexander von Humboldt Fellow (Experienced Researcher), Chair for Civil Law, International Private Law and Comparative Law, Ludwig Maximilian University, München and Professor of Law, OP Jindal Global University, Sonipat, India.

The article provides a comparative analysis of the mechanism to determine the ‘international jurisdiction’ of a court in the recognition and enforcement of foreign judgments in civil and commercial matters in Indian and South African private international law. It examines the theoretical bases for executing foreign judgments in these jurisdictions and the grounds on which a foreign court will be considered as ‘internationally competent’ under the private international laws of these BRICS jurisdictions. Accordingly, it demonstrates how the rules to ascertain the competency of the foreign forum in these jurisdictions are narrow and, consequently, impede the free movement of judgments and prevents access to justice. The article highlights some plausible ways to improve the free movement of judgments and access to justice in India and South Africa. In particular, it suggests the endorsement of the Hague Conventions on the Choice of Court Agreements and the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.

The full text of the article may be found here.

The University of Szeged Faculty of Law and the ELKH Centre for Social Sciences, Institute for Legal Studies are organizing an international online conference: “Cross-Border Litigation in Central-Europe: EU Private International Law before National Courts”. The conference will present the main results of the EU-funded CEPIL research project (“Cross-Border Litigation in Central-Europe: EU Private International Law before National Courts”, 800789 — CEPIL — JUST-AG-2017/JUST-JCOO-AG-2017). The CEPIL project inquires whether EU PIL functions optimally in the CE Member States in order to secure “a Europe of law and justice”. It examines whether EU PIL instruments are applied in CE Member States in a correct and uniform manner, whether Member State courts deal appropriately with disputes having a cross-border element and whether the current legal and institutional architecture is susceptible of securing legal certainty and an effective remedy for cross-border litigants. The project’s research output will be published by Kluwer International.

The online conference will take place via Microsoft Teams on July 6, 2021. The full programme of the event is available here. Participation is free but online registration is kindly requested to receive the link to the conference, which will be emailed shortly before the event.

The INCLUDE project is nearing it end. The project, co-funded by the European Commission, departed from the finding in previous research that children involved in child abduction cases feel frustrated by the lack of clear information and involvement. The teams discussed with youngsters what they think the needs of children are in child abduction cases. These workshops took place in Hungary and Cyprus and led to a Pratice Guide aimed at professionals dealing with child abduction proceedings or the enforcement of return orders. The national reports of Hungary and Cyprus are also available.

The results will be set out and discussed at the final conference (on Zoom) on 24 June (afternoon) and 25 June (morning). Registration is free: see the site of Missing Children Europe.

The United Nations Convention on International Settlement Agreements resulting from Mediation (the ‘Singapore Convention’) entered into force on 12 September 2020. However, the Convention has not been signed by the EU or its Member States. What keeps the EU or its member states from signing the Singapore Convention on Mediation? Experts will discuss pertinent aspects of the Singapore Convention on Mediation to create awareness of the Convention and will debate the EU’s position.

Webinar Link
DATE: Friday 18 June 2021 | 11:00 – 13:00 CET Vienna time (17:00 -19:00 GMT+8
Singapore Time)

To access the webinar use this link:

https://vuw.zoom.us/webinar/register/WN_hSFTXym_SrKRCTIsZ7NgLQ
Please email herman.verbist@everest-law.be if you have any questions.

11.00 (CET) Welcome by Sir Michael Burton, President of FICA

11.05 (CET) Roundtable “The reflection process of the European Commission”
• Is the accession to the Singapore Convention an exclusive jurisdiction of the EU or is it a shared competence of the EU and Member States?
• To what extent would the Singapore Convention benefit EU stakeholders?
• Developing mediation policies and practices in Europe.
• The views of States that signed the Singapore Convention.

12.00 (CET) Break

12.05 (CET) Roundtable “What is the impact of the Singapore Convention on the EU laws and policies?”
• Does the Singapore Convention interfere with the EU internal regulatory framework (as REIO)?
• The role of the Hague Convention on Choice of Forum 2005 or the Hague Judgments Convention 2019.

Panellists include:
• Dr Nadja Alexander, Professor at Singapore Management University
• Ms Anna Joubin-Bret, Secretary of UNCITRAL
• Sir Michael Burton, President of FICA
• Mrs Francisca da Silva Dias Van Dunem, Minister of Justice of Portugal & Chair of the Council of Ministers of Justice during the Portuguese Presidency to the Council (tbc)
• Dr Catherine Kessedjian, former Deputy Secretary General of the Hague Conference on Private International Law & Professor emerita at University Panthéon-Assas Paris II
• Mr Bernard Lange, Chairman of INTA, European Parliament (tbc)
• Dr Dr hc Thomas Pfeiffer, Professor at Heidelberg University & Chair of the European Law Institute Special Interest Group on Dispute Resolution
• Mr Didier Reynders, European Commissioner for Justice (tbc)
• Dr Norel Rosner, Legal and Policy Officer, Directorate-General for Justice and Consumers, European Commission
• Ms Natalie Morris-Sharma, former Chair of UNCITRAL Working group II which drafted the Singapore Convention & Deputy Senior State Counsel with Singapore’s Attorney-General Chambers
• Dr Rimantas Simaitis, Chairman of the CEPEJ-GT-MED
• Mr Aleš Zalar, former Minister of Justice of Slovenia and current co-chair of ELI hub in
Slovenia, will be moderating the roundtable.

Participants will be able to raise questions. Participation is free of charge. In cooperation with: