Conflictoflaws

Carmen Otero García-Castrillón, Complutense University of Madrid, has kindly provided us with her thoughts on personal data protection and international trade regulation. An extended version of this post will appear as a contribution to the results of the Spanish Research Project lead by E. Rodríguez Pineau and E. Torralba Mendiola “Protección transfronteriza de la transmisión de datos personales a la luz del nuevo Reglamento europeo: problemas prácticos de aplicación” (PGC2018-096456-B-I00).

 

The regulatory scenario

1. In digital commerce times, it seems self-evident that personal data protection and international trade in goods and services are intrinsically connected. Within this internet related environment personal data can be accessed, retrieved, processed and stored in a number of different countries. In this context, the legal certainty for economic actors, and even the materialisation or continuation of commercial transactions requires taking into consideration both, the international jurisdiction and the applicable law issues on the one hand, and the international trade regulations covering these commercial transactions on the other hand.

Too much personal data protection can excessively restrict international trade, especially in countries with less developed economies for which the internet is considered an essential sustainable development tool. Little protection can prejudice individual fundamental rights and consumers’ trust, negatively affecting international trade also. Hence, some kind of balance is needed between the international personal data flux and the protection of these particular data. It must be acknowledged that, summarising, whilst in a number of States personal data and their protection are fundamental rights (expressly in art. 8 CFREU, and as a part of the right to private and family life in art. 8 ECHR), in others, though placed in the individual’s privacy sphere (in the light of art. 12 UDHR), it is basically associated to consumer’s rights.

 

2. The only general international treaty specifically dealing with personal data protection is the Convention 108 + of the Council of Europe, for the protection of individuals with regard to the processing of personal data. The Convention defines personal data as any information relating to an identified or identifiable individual (art. 2.a) without an express and formal recognition of its fundamental right character. The Convention, whose raison d’etre was justified for need to avoid that the personal data protection controls interfere with the free international flow of information (Explanatory Report, para. 9), “should not be interpreted as a means to erect non-tariff barriers to international trade” (Explanatory Report, para. 25). Its rules recognise the individual’s rights to receive information on the obtaining and the treatment of their data, to be consulted and oppose that treatment, to get the data rectified or eliminated and to count, for all this, with the support of a supervisory authority and judicial and non-judicial mechanisms (arts. 8, 9 and 12). On the basis of these common standards, member States agree not to prohibit or subject to special authorisations the personal data flows as long as the transfer does not imply a serious risk of circumventing them (art. 14). Moreover, the agreed rules can be exempted when it is a “necessary and proportionate” measure “in a democratic society” to protect individual rights and “the rights and fundamental freedoms of others”, particularly “freedom of expression” (art. 11). Presently, 55 States are parties to this Convention, including the EU but not the US, that have an observer status.

 

Along these lines, together with other Recommendations, the OECD produced a set of Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data (11.7.2013; revising the 1980 version). After establishing general principles of action as minimum standards, it was concluded that the international jurisdiction and the applicable law issues could not be addressed “at that stage” provided the “discussion of different strategies and proposed principles”, the “advent of such rapid changes in technology, and given the non-binding nature of the Guidelines” (Explanatory Memorandum, pp. 63-64).

 

On another side, the World Trade Organisation (WTO) administers different Agreements multilaterally liberalising international trade in goods and services that count with its own dispute settlement mechanism. In addition, States and, of course, the EU and the US, follow the trade bilateralism trend in which data protection and privacy has begun to be incorporated. Recently, this issue has also been incorporated into the WTO multilateral trade negotiations on e-commerce.

 

CJEU Schrems’ cases

3. Last 16 July, in Schrems II (C-311/18), the CJEU declared the invalidity of the Commission Decision 2016/1250 on the adequacy of the protection provided by the Privacy Shield EU–US, aimed at allowing the personal data transfer to this country according to the EU requirements, then established by Directive 95/46 and, from 25 May 2018, by the Regulation 2016/679 (GDPR). On the contrary, Commission Decision 2010/87 (2016/2297 version) on the authorisation of those transfers through contractual clauses compromising data controllers established in third countries is considered to be in conformity with EU law.

 

In a nutshell, in order to avoid personal data flows to “data heavens” countries, transfers from the EU to third States are only allowed when there are guarantees of compliance with what the EU considers to be an adequate protective standard. The foreign standard is considered to be adequate if it shows to be substantially equivalent to the EU’s one, as interpreted in the light of the EUCFR (Schrems II paras. 94 and 105). To this end, there are two major options. One is obtaining an express Commission adequacy statement (after analysing foreign law or reaching an agreement with the foreign country; art. 45 GDPR). The other is resorting to approved model clauses to be incorporated in contracts with personal data importers, as long as effective legal remedies for data subjects are available (art. 46.1 and 2.c GDPR). According to the Commission, this second option is the most commonly used (COM/2020/264 final, p. 15).

 

4. In Schrems II the CJEU confirms that, contrary to the Privacy Shield Decision, the US data protection regime is not equivalent to EU’s one because it allows public authorities to access and use those data without being subject to the proportionality principle (para. 183; at least in some surveillance programs) and, moreover, without recognising data owners their possibility to act judicially against them (para. 187). It never rains but what it pours since, in 2015, a similar reasoning led to the same conclusion in Schrems I (C-362/14, 5.6.15) on the Safe Harbour Decision (2000/520), preceding the Privacy Shield one. Along these lines, another preliminary question on the Privacy Shield Decision is pending in the case La cuadrature du net, where, differing from Schrems II, its compatibility with the CFREU is expressly questioned (T-738/16). In this realm, it seems relevant noting that the CJEU has recently resolved the Privacy International case, where, the non-discriminated capture of personal data and its access by national intelligence and security agencies for security reasons, has been considered contrary to the CFREU unless it is done exceptionally, in extraordinary cases and in a limited way (C-623/17, para. 72). Given the nature of the issue at hand, a similar Decision could be expected in the La cuadrature du net case; providing additional reasons on the nullity of the Privacy Shield Decision, since it would also contravene the CFREU. Moreover, all this could eventually have a cascading effect on the Commission’s adequacy Decisions regarding other third States (Switzerland, Canada, Argentina, Guernsey, Isle of Man, Jersey, Faeroe Islands, Andorra, Israel, Uruguay, New Zealand and Japan).

 

5. As to the contractual clauses, beyond confirming the Commission analysis on their adequacy in this case, the CJEU states that it is necessary to evaluate the data access possibilities for the transferred country public authorities according to that country national law (para. 134). At the end of the day, EU Data Protection authorities have to control the risks of those authorities’ actions not conforming with EU standards, as much as the capability of the contractual parties to comply with the contractual clause as such. If the risk exists, the transfers have to be prohibited or suspended (para.135).

 

6. The EU personal data protection norms are imperative and apply territorially (art. 3 GDPR; Guidelines 3/18 EDPB version 2.1, 7.1.2020 and CJEU C-240/14, Weltimmo). Therefore, data “imports” are not regulated and the “exports” are subject to the condition of being done to a country where they receive EU equivalent protection. In the light of CJEU case law, the measures to watch over the preservation of the EU standard are profoundly protective, as could be expected provided the fundamental rights character of personal data protection in the EU (nonetheless, many transfers have already taken place under a Decision now declared to be void).

 

Hence, once a third country legislation allows its public authorities to access to personal data -even for public or national security interests- without reaching the EU safeguards level, EU Decisions on the adequacy of data transfers to those countries would be contrary to EU law. In similar terms, and despite the recent EDPB Recommendations (01 and 02/20, 10.11.2020), one may wonder how the contracts including those authorised clauses could scape the prohibition since, whatever the efforts the importing parties may do to adapt to the EU requirements (as Microsoft has recently announced regarding transfers to the US; 19.11.2020), they cannot (it is not in their hands) modify nor fully avoid the application of the corresponding national legislation in its own territory.

 

As a result, the companies aiming to do business in or with the EU, do not only have to adapt to the GRDP, but not to export data and treat and store them in the EU (local facilities). This entails that, beyond the declared personal data international transferability (de-localisation), de facto, it seems almost inevitable to “localise” them in the EU to ensure their protection. To illustrate the confusion created for operators (that have started to see cases been filed against them), it seems enough to point to the EDPB initial reaction that, whilst implementing the Strategy for EU institutions to comply with “Schrems II” Ruling, “strongly encourages … to avoid transfers of personal data towards the United States for new processing operations or new contracts with service providers” (Press Release 29.10.2020).

 

Personal data localisation and international trade regulation

7. There is a number of national systems that, one way or another, require personal data (in general or in especially sensitive areas) localisation. These kinds of measures clearly constitute trade barriers hampering, particularly, international services’ trade. Their international conformity relies on the international commitments that, in this case, are to be found in the WTO Agreements as much as in the bilateral trade agreements if existing. The study of this conformity merits attention.

 

8. From the EU perspective, as an initial general approach it must be acknowledged that, within the WTO, the EU has acquired a number of commitments including specific compromises in trans-border trade services in the data process, telecommunication and (with many singularities) financial sectors. Beyond the possibility of resorting to the allowed exceptions, the “localisation” requirement could eventually be infringing these compromises (particularly, arts. XVI and/or XVII GATS).

 

Regarding EU bilateral trade agreements, some of the already existing ones and others under negotiation include personal data protection rules, basically in the e-commerce chapters (sometimes also including trade in services and investment). Together with the general free trade endeavour, the agreements recognise the importance of adopting and maintaining measures conforming to the parties’ respective laws on personal data protection without agreeing any substantive standard (i.e. Japan, Singapore). At most, parties agree to maintain a dialog and exchange information and experiences (i.e. Canada; in the financial services area expressly states that personal data transfers have to be in conformity with the law of the State of origin). For the time being, only the Australian and New Zealand negotiating texts expressly recognise the fundamental character of privacy and data protection along with the freedom of the parties to adopt protective measures (international transfers included) with the only obligation to inform each other.

 

Concluding remarks

9. As the GDPR acknowledges “(F)lows of personal data to and from countries outside the Union and international organisations are necessary for the expansion of international trade and international cooperation. The increase in such flows has raised new challenges and concerns with regard to the protection of personal data.” (Recital 101). In facing this challenge, Schrems II confirms the unilaterally asserted extraterritoriality of EU personal data protection standards that, beyond its hard and fully realistic enforcement for operators abroad, constitute a trade barrier that could be eventually infringing its WTO Agreements’ compromises. Hence, in a digitalised and globally intercommunicated world, the EU personal data protection standards contribute to feeding the debate on trade protectionism. While both the EU and the US try to expand their respective protective models through bilateral trade agreements, multilaterally -among other initiatives involving States and stakeholders, without forgetting the role of technology (privacy by design)- it will be very interesting to see how the on-going WTO negotiations on e-commerce cover privacy and personal data protection in international trade data flows.

 

Written by Orji Agwu Uka, Senior Associate at Africa Law Practice (ALP)*

This is the fifth and final online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomicslaw.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, the second symposium was published by Anthony Kennedy, the third symposium was published by Richard Mike Mlambe, and the fourth symposium was published by Dr Abubakri Yekini.

For too long, law students in Nigerian universities have largely considered Private International Law [or Conflict of Laws as it is more commonly known in Nigeria] as an esoteric subject. Most students avoid it because of the adverse effect they think it is sure to have on their cumulative grade points average and the seeming lack of practical benefit of the subject to their future law practices. They do not know any better. Nigerian legal practitioners have had to provide legal advice and represent clients before trial and appellate courts as well as arbitral tribunals on disputes involving private international law questions within the context of Nigerian law. Those pieces of advice and legal representations would have benefitted greatly from a comprehensive private international law treatise. On their part, Nigerian courts have had to meander through the maze of interpreting questions of private international law without the benefit of the direction that high quality academic works [available in some other subject areas] provide. I am gratified to announce that finally, a Daniel is come to judgment.

Since Nigeria’s return to civilian rule in 1999, there have been significant increase in cross border trade, international business transactions and foreign investments in Nigeria. Successive Nigerian governments across all tiers have made the attraction of foreign investments a cardinal part of their economic policies and have accordingly made deliberate efforts and committed abundant resources to attract foreign investments into Nigeria.[1]This accords with the preponderance of opinion to the effect that, with the right economic policies, FDI inflow into developing economies can be a major catalyst for economic development.[2] With these activities however, have come the resultant need for increased attention to the body of laws in Nigeria that regulate transactions with multi-jurisdictional elements.

In a recent article, I called for increased study of private international law in Africa and the establishment of a harmonised private international legal regime especially in the context of the Agreement establishing the African Continental Free Trade Area (AfCFTA) which came into force on 30 May 2019.[3] I argued that the economic integration and the concomitant growth in international relationships that are sure to result from these integration efforts will undoubtedly lead to a rise in cross border disputes, which call for resolution using the instrumentality of private international law. That call, especially in the case of Nigeria, was significantly handicapped by the absence of a treatise length textbook on the subject.

Interestingly, I had, in that article, borrowed heavily from the writings of Professor Richard Frimpong Oppong, a renowned private international law expert in Africa, and Dr Chukwuma Samuel Okoli, a Postdoctoral Researcher at T. M. C. Asser Institute in the Hague and a prolific writer in the field of private international law in Nigeria. Writing on the importance of a private international law system that responds to the interests of Africa, Dr Okoli observed that with growing international trade with Africa comes an inevitable rise in disputes among contracting parties conducting trade on the continent.[4]According to him, when these disputes arise, questions such as what courts have jurisdiction, what law(s) should apply, and whether a foreign judgment will be recognised and enforced by the courts of African States, will need to be resolved for international trade to run smoothly.[5]

On his part, Professor Oppong, argued that a well-developed and harmonised private international law regime is an indispensable element in any economic community and can play a significant role in addressing issues such as the promotion of international trade and investment, immigration, regional economic integration, globalisation and legal pluralism.[6] It is altogether fitting that these two will join forces to produce the first treatise length textbook on private international law in Nigeria and it is against the foregoing backdrop that I wholeheartedly welcome the product of their collaboration – Private International Law in Nigeria.[7]

The book examines Nigerian law rules, principles, and doctrines for the resolution of disputes with cross-border components. The authors begin by tackling the elephant in the room which is to provide a helpful explanation of the conceptual and preliminary issues which constitute the most intricate aspects of private international law. The concepts addressed are Characterisation; Substance and Procedure; and of course, Renvoi which the authors wittingly recall has been described in the past as a subject loved by academics, hated by students and ignored by lawyers and judges. There is also a special treatment of the concept of domicile which is one of the cardinal concepts in the field of English private international law and by necessary implication that of Nigeria, and which is one of the fundamental connecting factors that indicate the law or jurisdiction that governs a dispute particularly in matters related to jurisdiction, family law, property law, and other issues affecting the legal rights and privileges of parties.

The book expertly navigates the topic of jurisdiction, a cardinal concept under Nigerian adjectival law, but which in some cases is weaponised and has now acquired exaggerated notoriety to the extent that it now constitutes a cog in the wheel of the smooth and timely determination of cases in Nigeria. To avoid the monster that jurisdiction as a concept has developed into, the book carefully focuses on a consideration of jurisdiction in actions in personam. The authors consider the rules for determining jurisdiction in actions in personam and the extent to which judges in Nigeria have succeeded or mostly failed in appreciating or applying jurisdictional rule son actions in personam especially by misapplying rules designed for international litigation in the context of interstate disputes in the unique federal system practiced in Nigeria.

The result of the authors’ analyses of Nigerian appellate courts’ cases bordering on the jurisdiction of Nigerian courts in actions in personam arising from causes of action which accrue outside the territorial jurisdiction of the courts is particularly eye-opening. The authors divide the failure of Nigerian courts in this regard into three scenarios to wit: cases where Nigerian courts reach the right decision but wrongly apply choice of venue rules to arrive at that decision; cases where Nigerian courts wrongly apply choice of venue rules and reach the wrong decision; and cases where Nigerian courts simply conflate the choice of venue provisions in the rules of the respective courts in Nigeria with the rules of private international law applicable in actions in personam in Nigeria. The reasoning of the courts in the cases treated leaves a lot to be desired and call for a dispassionate soul searching.

Private International Law in Nigeria lucidly addresses the historical controversies surrounding the requirement for leave to issue and serve a court process out of jurisdiction both in the case of interstate (domestic) disputes and in international disputes strictly so called. The book highlights the delicate balance between the Sheriffs and Civil Process Act and the various rules of court. For good measure, the authors clearly explain what the Nigerian Supreme Court got wrong in the infamous M. V. Arabella case [which the court has now thankfully moved away from].[8] In that case the Supreme Court set aside a writ of summons that was issued in the Federal High Court Lagos and served on a defendant resident in Abuja, Federal Capital Territory without the leave of court. The court relied on Order 10 rule 14 of the Federal High Court (Civil Procedure) Rules 1976[9] and discountenanced the contention of the appellant that the Federal High Court is one court and no leave of court is required to issue and serve a court process in one judicial division of the court (i.e. in one State) for service in another State. The authors however rightly highlight the reluctance of the Supreme Court to explicitly overrule cases that were obviously wrong, a trend that has been on the rise in the last two decades; and which is the subject of another day’s discussion.

What I would consider as an ambitious aspect of the book, however, is the authors’ categorical position regarding the non-binding effect of the obiter dicta of some Supreme Court decisions. For instance, while discussing a recent decision of the Nigerian Supreme Court,[10]the authors stated that the obiter dictum of Aka’ahs JSC is not binding on lower courts in Nigeria and should not be followed.[11]While this undoubtedly represents the correct position of the law in principle, it is however of doubtful practical effect given the peculiarity of the diminishing line between rationes decidendi and obiter dicta under the Nigerian version of the doctrine of stare decisis as well the attitude of Nigerian courts to decisions of higher courts.

Special consideration is also given to such procedural law concepts as ‘forum selection clauses’, ‘forum non conveniens’, ‘lis alibi pendens’ and ‘limitations on jurisdiction’ as well as the substantive law topics of Contract, Torts, Foreign Currency Obligations, Bills of Exchange, Marriage, Matrimonial Causes and Administration of Estates. Very crucially too, the book does not fail to address the critical topics of enforcement of foreign judgments and international arbitral awards, while the last two chapters, grouped under a part entitled, ‘International Civil Procedure’ are dedicated to the consideration of the procedural rules applicable in international civil disputes including domestic remedies affecting foreign proceedings, international judicial assistance in the service of legal processes and taking of evidence. Nigerian lawyers with cross border practices will find these two chapters particularly helpful. One topic that is however given a less than adequate treatment is the topic of adoption. To be fair, adoption law and procedure in Nigeria is largely covered in opacity but a more comprehensive treatment of the subject in this book would have finally afforded practitioners the long-needed reference point.

On the whole, the book draws on over five hundred Nigerian cases including [thankfully] contemporary judicial decisions touching on the subject of private international law, relevant legislations and academic writings while exploring, where necessary, comparative perspectives from other jurisdictions.

This book is without doubt, one of the most impactful legal textbooks in Nigeria in at least twenty five years. It is a refreshing addition to the legal libraries across Nigeria and beyond. Judges at all levels of courts in Nigeria, legal practitioners, arbitrators and lawmakers alike as well as law teachers, researchers and students, will find Private International Law in Nigeria a highly resourceful and practical guide that fills an intellectual void in a long neglected but increasingly critical field of law. It is a long overdue contribution to the field of private international law in particular, and to legal scholarship in Nigeria as a whole.

 

 

*Orji Agwu Uka is a Senior Associate at a top Commercial Law Firm in Lagos, Nigeria. He holds an LLM from King’s College London and an LLB from Abia State University, Uturu Nigeria.

[1]Akinlo Enisan, ‘Determinants of Foreign Direct Investment in Nigeria: A Markov Regime-Switching Approach’ (2018) RIC 21.

[2] Organisation for Economic Cooperation and Development, Foreign Direct Investment for Development: Maximising Benefits, Minimising Costs (OECD 2002) 3.

[3]Orji Uka, ‘Cross Border Dispute Resolution under AfCFTA: A Call for the Establishment of a Pan-African Harmonised Private International Legal Regime to Actualise Agenda 2063’ (2020) ALP available at http://alp.company/resources/business-advisory/cross-border-dispute-resolution-under-afcfta-call-establishment-pan last accessed on 11 November 2020.

[4]Chukwuma Okoli, ‘Private International Law in Africa: Comparative Lessons’ available at http://conflictoflaws.net/2019/private–international–law–in–africa–comparative–lessons/.

[5]Chukwuma Okoli, (n. 4) above.

[6] Richard Frimpong Oppong, ‘Private International Law and the African Economic Community: A Plea for Greater Attention’ The International and Comparative Law Quarterly, Vol. 55, No. 4 (Oct., 2006), Cambridge University Press pp.911-928 available at https://www.jstor.org/stable/4092623.

[7]Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, Private International Law in Nigeria Hart Publishing: Oxford, 2020.

[8]Owners of M. V. Arabella v Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182.

[9]For similar reasons, the Court of Appeal in Nestle (Nig) Plc v. Owners of M. V. MSC Agata(2014) 1 NWLR (Pt. 1388) 270 at pp. 288-290 set aside writ while relying on Order 6 rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000.

[10]Social Democratic Party v Bieman unreported decision of the Supreme Court in Appeal No. SC/341/2019 43.

[11]Chukwuma Okoli and Richard Oppong, (n. 7) above at p. 73.

by Tamás Szabados, ELTE Eötvös Loránd Universität Budapest

In disputes related to stolen or illegally exported cultural property, conflict of laws provisions often play a significant role due to the absence of universally accepted substantive private law rules. This has been analysed in a recent post shared on this blog.

In most private international laws, cultural goods are treated in the same way as any other object, and accordingly the law applicable to issues of property law is determined in accordance with the lex rei sitae principle. If cultural goods are stolen or illegally exported from a country and brought to another state, where a good faith buyer acquires ownership over the goods, the application of the lex rei sitae principle often results in the recognition of the title of the bona fide purchaser over that of the original owner. In order to promote the restitution of stolen and illegally exported cultural property, several authors argued that the lex rei sitae principle should be replaced by other connecting factors.

In the legal literature, much effort has been made to find a more suitable connecting factor. The application of the lex originis principle was widely proposed as an alternative. Nevertheless, the lex originis principle also has some flaws. Sometimes it may be difficult or impossible the geographical or cultural origin of the cultural goods. The place from which the cultural goods were stolen is not necessarily demonstrate a closer connection to the case than the lex rei sitae if the goods are only temporarily located on the territory of the state concerned.

It seems that there is a discernible trend in private international law codifications to address specifically stolen and illegally exported cultural property. They are typically based on a combination of the lex rei sitae and the lex originis principles and provide room for the parties’ autonomy. Such legislation has been enacted, among others, in Belgium (Belgian Private International Law Act, articles 90 and 92) and Hungary (Hungarian Private International Law Act, articles 46-47). It is also noteworthy that in a study the European Parliament also examined the possibility of the adoption of distinct conflict of laws rules for cultural goods and proposed a similar solution.

This current legislative trend is analysed in a recent article written by Tamás Szabados that has been published in the International Journal of Cultural Property. The author poses the question whether the recent private international law codifications have found the Holy Grail of the conflict of laws of cultural property.

The article is available through the website of the International Journal of Cultural Property here.

Written by Dr Abubakri Yekini, a Lecturer in Law at Lagos State University

This is the fourth and penultimate online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomicslaw.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, the second symposium was published by Anthony Kennedy, and the third symposium was published by Richard Mike Mlambe. A final blog posts on this online symposium will be published tomorrow.

 

I. Introduction

Private international law (PIL) is not one of those fanciful subjects that command the attention of students, academics and practitioners at least in Nigeria. As important as this field, it is still largely ignored. Several legal commentators have called our attention to the poor state of PIL in Africa generally (Oppong, 2006; Okoli, 2019). So, we can say Nigeria is not standing alone here. Dr Oppong is one of those who are passionate about the development of PIL in Africa, and I may add Nigeria. In a piece titled ‘Private International Law and the African Economic Community: A Plea for Greater Attention’, he lamented the general state of neglect of PIL in the African economic integration project. What caught my attention in that article was his remark on the treatment of jurisdiction agreements in some African countries such as Angola and Mozambique. He noted that:

“This hostility to jurisdiction agreements is akin to Latin American countries’ historical disdain for similar clauses founded on their rejection of the principle of party autonomy- a principle so important in international commerce. This treatment of jurisdiction agreements can be a disincentive to international commercial relations since they are very much part of the current modes of dealing across national boundaries” (p.917)

Although Dr Oppong did not examine the attitude of Nigerian courts on this issue, his new work which he co-authored with Dr Okoli (Okoli and Oppong, 2020) gives us an insight. The book is an excellent piece. For the first time, students and practitioners can have access to an avalanche of Nigerian PIL cases and they can measure the mood of Nigerian courts on important subject matters such as jurisdiction agreements. This topic was conceived while reviewing the book.

In recent years, Nigeria has been making frantic efforts to turn around its economy. There is a consistent drive at improving the ease of doing business, and various investment promotion laws have also been enacted to that effect. However, we seem not to appreciate the nexus between PIL and the promotion of cross border commercial transactions. We agree with Dr Oppong that PIL has a role to play in making Nigeria attractive for international trade and commerce. International businesspersons are more interested in economies that enforce contracts, protect and secure property rights, and have simple and efficient dispute resolution mechanisms in place. Jurisdiction agreements are part of contractual terms. As observed from the analysis of Okoli and Oppong (2020), it is difficult to give a straight answer on whether jurisdiction agreements are enforced by Nigerian courts. This calls for great concern as a negative attitude to jurisdiction agreements can potentially disincentives the inflow of foreign direct investment or international business transactions to Nigeria generally. Even if such businesses must be done in Nigeria, the least is that the non-enforcement of jurisdiction agreements will lead to an increase in transaction cost since there are uncertainties surrounding the enforcement of contracts. Investors may envisage multiple proceedings and the cost of such proceedings are factored into the contract ab initio. They might also envisage that judgments obtained abroad may not be enforced by Nigeria courts that might have earlier exercised jurisdiction in breach of the agreement. There is also the tendency to have inconsistent judgments.  These uncertainties are drawbacks on whatever reforms the Nigerian government might have been carrying out in the area of trade and investment.

Jurisdiction agreements are otherwise called choice of court agreements. In most cases, they form part of the contract agreement. They come in various forms. They may be symmetric (exclusive or non-exclusive) or asymmetric where one party is free to choose any preferred forum and the other party is restricted to a particular venue. Jurisdiction agreement is party autonomy has been embraced in almost all jurisdictions. Like arbitration agreements, parties are allowed to contract out of certain jurisdictions. While a contract may be formed or executed in jurisdiction A and B, the parties may wish that their disputes be resolved in jurisdiction C. For instance, many international contracts choose English courts as their preferred venue for litigation. Several reasons have been offered for this. They include case management system of the English courts (procedural efficiency), expertise in English law and complex commercial transactions, the quality of the English bar, availability of varieties of interim measures, prioritisation of private justice, independence of the judiciary, pro-enforcement of contracts and judgments amongst others.

 

II. Jurisdiction agreements in Nigerian courts

What is the attitude of Nigerian courts to jurisdiction agreements? Theoretically, we may say that Nigerian courts enforce jurisdiction agreements. There are numerous precedents extolling party autonomy and the need to enforce contracts freely negotiated by parties. Nevertheless, in practice, Nigerian courts assume jurisdiction, in some cases, in breach of jurisdiction agreements. There is hardly any distinction between exclusive and non-exclusive jurisdiction agreements. From Okoli and Oppong (2020), and my assessment of reported cases, jurisdiction agreements have only been upheld in five cases: Nso v Seacor Marine (Bahamas) Inc (2008) LPELR-CA, Beaumont Resources Ltd v DWC Drilling Ltd (2017) LPELR-42814 (CA), Nika Fishing Co Ltd v Lavina Corporation (2008) 16 NWLR (Pt 1114) 509, Megatech Engineering Ltd Sky Vission Global  Networks LLC (2014) LPELR-22539 (CA) and Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699 (CA).

An analysis of the reported cases on jurisdiction agreements reveals that jurisdiction agreements are jettisoned on three main grounds as presented below.

1. The mischaracterisation of jurisdiction agreement as an ouster clause

Nigerian jurisdictional law generally lacks any coherent theoretical foundation. Okoli and Oppong’s treatment of the topic in chapter 5 attest to this fact. Credit must be given to them for an attempt to synchronise and present in an intelligible form, a body of precedents that is riddled with inconsistencies and contradictions. Unlike elsewhere where courts consider many factors (eg reasonableness, party autonomy, due process, proximity, foreseeability) when treating adjudicatory jurisdiction, Nigerian courts largely see it from the prisms of territorialism and power. It is no surprise that the courts are extremely protective/jealous of their power when a matter is connected to the forum. They generally frown at any attempt to divest the courts of their jurisdiction. Hence, they characterise jurisdiction agreements as ouster clauses.

This mischaracterisation can be traced to Sonnar (Nig.) Ltd. v Nordwind(1987) 4 NWLR (Pt.66) 520 where the Supreme Court imported this idea relying on The Fehmarn[1957] 1 W.L.R. 815. In this case, Oputa JSC had this to say on jurisdiction agreements:

“[A]s a matter of public policy our courts should not he too eager to divest themselves of jurisdiction conferred on them by the Constitution and by other laws simply because parties in their private contracts chose a foreign forum and a foreign law. Courts guard rather jealously their jurisdiction and even where there is an ouster of that jurisdiction by Statute It should be by clear and unequivocal words, If that is so, as indeed It is, how much less can parties by their private acts remove the jurisdiction properly and legally vested In our courts? Our courts should be in charge of their own proceedings. When it Is said that parties make their own contracts and that the courts will only give effect to their intention as expressed in and by the contract, that should generally be understood to mean and imply as contract which does not rob the court of its jurisdiction in favour of another foreign forum (p. 544 paras B-E)

While an earlier case of Ventujol v Compagnie Francaise  DeL’AfrriqueOccidentale  (1949) 19 NLR 32 mentioned an ouster clause, most recent cases rely on the above exceprt from Sonnar. Oputa’s view was recently echoed by Nweze JSC in Conoil v. Vitol S.A. (2018) 9 NWLR (Pt. 1625) 463 at 502, para A-B where his Lordship noted that: “our courts will only interrogate contracts which are designed to rob Nigerian courts of their jurisdiction in favour of foreign fora or where, by their acts, they are minded to remove the jurisdiction, properly and legally, vested in Nigerian courts.”

The Fehmarn was a 1957 English decision and may well reflect the mood of the courts in that era where party autonomy was still emerging. Two problems are identified here. First, laws should always be read in context. The Fehmarn did not treat jurisdiction agreement as an ouster clause. Rather, that case established the fact that a court which is properly seized, nevertheless, has the discretion to decline jurisdiction in deference to the parties’ jurisdiction agreement. The substance of The Fehmarn is that “where there is an express agreement to a foreign tribunal, clearly it requires a strong case to satisfy this court that that agreement should be overridden ” (p. 820). Second, many Nigerian lawyers have equally misunderstood the nature of jurisdiction agreements. In those cases where the courts have shown this combative attitude, some counsel have asked courts for dismissal on the ground that the courts lacked jurisdiction based on jurisdiction agreements.

A wrong characterisation leads to negative treatment. While ouster clauses are special statutory clauses which are meant to prevent courts from entertaining specific cases that engage state interest, jurisdiction agreements only appeal to the courts to decline jurisdiction in deference to parties’ choice. It is interesting to also note that an arbitration agreement is never treated as such and there area plethora of authorities on this point (For instance see Felak Concept Ltd. v. A.-G., Akwa Ibom State (2019) 8 NWLR (Pt. 1675) 433; Mainstreet Bank Capital Ltd. v. Nig. RE (2018) 14 NWLR (Pt. 1640) 423). One wonders whether there is any rational or legal basis to treat a jurisdiction agreement differently from an arbitration agreement.

2. Mandatory statutes

Some Nigeran statutes confer mandatory jurisdiction over some subject matters on Nigerian courts. The reasonability or otherwise of such sweeping and exclusive jurisdiction over matters that are purely civil and commercial will not be addressed here for want of space. Examples of these statutes are the Admiralty Jurisdiction Act and the Civil Aviation Act. One can sympathise with Nigerian courts when they are asked to enforce jurisdictional agreements which fall within the scope of these statutes. No amount of judicial pragmatism would override mandatory national statutes vesting exclusive jurisdiction in Nigerian courts. It was on this basis that the courts refused to enforce jurisdictional agreements in Swiss Air Transport Coy Ltd v African Continental Bank (1971) 1 NCLR 213, for instance.

3. Forum non conveniens

Forum non conveniens(FNC) is a pragmatic procedural mechanism developed by common law judges (even though it has a Scottish origin) to advance efficiency and justice in civil litigation. Many transactions have connections with more than one jurisdiction and parties would want to commence litigation in any of those fora that can deliver maximum results for them. In some cases, it may be simply to harass the opponent. Thus, where a court has jurisdiction over a matter under its national laws, it can decline jurisdiction (by staying an action) to allow parties to litigate in a more convenient forum.

FNC test as stipulated by Brandon J in The Eleftheria[1969] 2 All ER 641 has been adopted and applied by the Nigerian Supreme Court in Sonnar (Nig.) Ltd. v Nordwind. Brandon J was merely laying down general factors that the court should consider when asked to decline jurisdiction. Brandon test supports the enforcement of jurisdiction agreement. The underlying principles are largely based on convenience and justice. The case emphasised “a strong’” cause for assuming jurisdiction in breach of a jurisdiction agreement. The strong cause has further been qualified in subsequent cases such as Donohue v Armco Inc &Ors [2001] UKHL 64 where many FNC grounds were discountenanced (see para 24-39). The US Supreme Court would also require ‘some compelling and countervailing reasons’ to allow an action to proceed in a non-chosen court if the agreement was reached “by experienced and sophisticated businessmen” (See Bremen v. Zapata Offshore Co.92 S. Ct. 1907 (1972)). This is contrary to the Nigerian courts’ approach where any FNC test no matter how weak may displace foreign jurisdiction clause. The Supreme Court recently re-emphasised the approval of any of the FNCs grounds in Nika Fishing Co Ltd. However, an application for stay was granted in that case because the party in breach did not file any counter affidavit.

In Ubani v Jeco Shipping Lines (1989) 3 NSC 500 and Inlaks Ltd v Polish Ocean Lines (1989) 3 NSC 588, jurisdiction agreements were not enforced either because the matter would be statute-barred in the chosen jurisdiction or parties and evidence were located in Nigeria. It is conceded that one of the tests of FNC is the availability of an alternative forum. It can easily be argued that these decisions are justified on the ground of justice because the Claimants would not be able to file a claim in the chosen jurisdiction. However, there is a danger in applying FNC grounds to jurisdiction agreements. As rightly suggested in Donohue where jurisdiction agreement is in issue, FNC grounds should ordinarily not apply. Non-enforcement of jurisdiction agreement should be restricted to very strong reasons such as where third parties who are not bound by the agreement are parties to the suit or where the claim falls within the exclusive jurisdiction of the non-chosen forum (see Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90; Continental Bank NA v Aeakos Compania Naviera SA and Others [1994] 1 WLR 588). One can also add inability to sue in the chosen forum for reasons beyond parties’ control such as the ongoing global lockdown (RCD Holdings Ltd v LT Game International (Australia) Ltd [2020] QSC 318) or the protection of weaker parties like consumers and employees. This is the approach of the English courts and the same is followed in other commonwealth jurisdictions such as Australia (FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 559) and New Zealand (RCD Holdings Ltd v LT Game International (Australia) Ltd (supra); Kidd v van Heeren [1998] 1 NZLR 324). A party who agreed to litigate in a particular forum had contracted to be bound by the law and procedure of that jurisdiction. Limitation period, location of parties and evidence should not be a valid excuse without more. Put differently, inconvenience and procedural disadvantages should be discountenanced especially when those factors are forseeable when parties are negotiating the contract ()

 

III       Conclusion

Legal certainty and predictability of results are key values of modern PIL especially in the area of cross border commercial transactions. A PIL framework that is driven by these values will promote and enhance commercial activities because it is a risk management mechanism in itself. Businesspersons are interested to do business in jurisdictions where contracts are enforced. They want to make informed decisions about the governing law of the contracts, the jurisdiction in which contractual disputes are resolved, jurisdictions whose judgments can be respected and enforced abroad.

Courts ought to help parties to achieve their contractual goals. They should neither frustrate negotiated terms nor rewrite them for the parties provided it is a contract that is negotiated at arm’s length. Nigerian courts should promote party autonomy as much as practicable. With this approach, foreign businesses would take the Nigerian justice system seriously and would be confident to do business with Nigeria. It can potentially attract more FDIs to Nigeria if we earn the trust of foreign investors.

Non-enforcement of jurisdiction agreements disincentives commercial transactions because of litigation and enforcement risks. Assuming that foreign companies must do business with Nigerians nevertheless, these risks ultimately be factored into contractual negotiations as businessmen would not want to spend their profits on litigation in unfamiliar/non-chosen fora. Cost of doing business with Nigeria will invariably be higher and this will further lead to an increase in the cost of goods and services in Nigeria.

Based on the foregoing, it is only sensible that Nigerian courts should give maximum effect jurisdiction agreements. The first task is to get the legislators to review some of the extant legislation such as the Admiralty Jurisdiction Act and Civil Aviation Act which vest exclusive jurisdiction in Nigerian courts over a wide range of purely private commercial transactions. Also, the courts can learn from the developments in other jurisdictions, particularly, how “strong cause” has been redefined in the light of modern developments to admit of only genuine cases where it is either practically or reasonable impossible to litigate in the chosen forum or where non-parties are genuinely involved in the suit. Lastly, Nigeria needs to join the Hague Conference and the 2005 Choice of Court Convention. It will benefit from the rich jurisprudence and expertise available at the Hague Conference and foreign businesspersons will be assured of the commitment of Nigeria to the enforcement of jurisdiction agreements.

 

 

The Global struggle towards affordable access to justice: Dutch baby steps towards a more open legal market

 Written by Jos Hoevenaars, Erasmus University Rotterdam (postdoc researcher ERC project Building EU Civil Justice)

In a global context of civil justice in crisis (Zuckerman) and a legal professional under pressure to adjust to the rapidly changing legal landscape (Susskind), experiments, adjustments and transformations in the way justice is done are an almost daily occurrence. Last week, the Dutch Bar Association announced an experiment to (slightly) open up the legal market in the Netherlands.

Effective yet affordable legal representation

The administration of (civil) justice remains an expensive practice, both in terms of public spending on the courts and publicly funded legal aid, as well as for those seeking justice. In most jurisdictions, access to justice remains a far cry from reality for large sections of society. Effective yet affordable legal representation has long been one of the most important stumbling blocks, and it goes without saying that in cross-border cases these costs only increase, while self-presentation – even if allowed – is often illusory.[1] With high and unpredictable lawyer fees as one of the most prevalent impediments to access, there have been many attempts at transforming the market for legal representation.

On the side of the legal system, we have seen moves away from strict legal representation requirements by a lawyer towards more self-representation and ‘do-it-yourself-justice’, taking lawyers out of the equation altogether (a practice leading to some disastrous results in some places). And, in response to the resulting challenges faced by litigants in person, we see movements in the direction of permitting for different forms legal representation, such as the so-called ‘McKenzie friends’ in UK courts, or the ‘Lay Assistant Scheme’ in Singapore, that allow for non-lawyers to be present in court to assist self-representing litigants (to a limited extent).

If we add to this the growing market of private dispute resolution as well as the tectonic shifts that are to be expected from the technological innovations (in both legal aid provisions and the digitalization of court procedures) we can see how such moves are likely small steps on a long and winding road of radical transformations of the legal profession, and likely of legal markets and the justice system as a whole. In the Dutch context, we witnessed one of those small steps last week.

Burgeoning shifts in the Dutch legal market

On December 3rd the Dutch Bar Association (NOvA) announced an experiment to give more leeway to lawyers from legal assistance insurers and claims settlement offices, by letting lawyers not employed by a law firm represent clients in court. As in many other legal systems, the legal market in the Netherlands has long been a hermetically sealed bulwark. While in large parts of the Dutch legal system assistance by a lawyer is mandatory, litigation with the use of a lawyer is only allowed if that lawyer is employed firm that is owned by layers. Legal departments of service providers such as accountancy organizations and claims settlement offices are therefore sidelined in court. In this recent move, however, the bar association gave the green light to the Hague legal aid provider SRK, a company that is not owned by lawyers, to offer lawyers’ services to people who are uninsured – a practice that up until now was restricted. This move is heralded as a crucial first step to break open the strictly regulated legal market in the Netherlands.

Bar under pressure

The move does not come as a complete surprise, NOvA has been under growing pressure by the Dutch Authority for Consumers and Markets (ACM) to adjust its professional rules because they may frustrate market forces. In February of this year, rather than taking action directly, the ACM gave the bar association a last chance to adjust its rules itself, while emphasizing that it could still conduct an investigation if there was reason to do so.

This pressure resulted from a request by legal aid provider SRK. The company wants to have its lawyers provide services to clients without legal expenses insurance through its subsidiary company BrandMR. However, this would go directly against NOvA rules, which stipulate, among other things, that lawyers may provide their services only while employed by an office that is owned by lawyers. This rule is meant to prevent lawyers from being guided by business interests rather than those of their clients.

There is one exception to this rule: lawyers may be employed by a (non-lawyer owned) legal expenses insurer, provided they work exclusively for insured persons, which is the practice of SRK. However, by also catering to non-insured persons SRK would violate that principle. With BrandMR, SRK targets the market of people who earn too much for subsidized legal aid yet have no legal aid insurance. According to the legal aid provider, about 25% of the Dutch population, especially young people, avoid legal assistance because they are not insured and consider the costs of a lawyer too high and unpredictable.

Since October of this year, and in defiance of the Bar’s rules, people without insurance can turn to SRK if they have a conflict. Under the BrandMR label, SRK offers them legal assistance at a fixed price, instead of the hourly rate that law firms charge. SRK director Peter Leermakers says he ‘supports’ all the rules of the legal profession, but not this one. ‘Our lawyers have been allowed to work for people with legal expenses insurance for over 15 years. Then why not for people without insurance? Why should they suddenly no longer be independent? ‘ He argues that the independence of the lawyers at SRK is guaranteed by an internal committee, which is assisted by two lawyers who previously were acting deputies of NOvA.

Political support

There has been political support for for SRK’s attempt to stretch the rules for the legal profession in the Netherlands. Minister Sander Dekker of Legal Protection (VVD) has submitted a bill to allow experiments in the Dutch legal system. He wants to offer citizens more flexible access to justice and reduce the costs of justice through a wide range of potential changes to and shifts in the Dutch justice landscape. He has already indicated several times that he welcomes initiatives such as those of SRK, and also hinted in the House of possible measures if the bar does not seriously consider how it can help foster new business models in the legal profession.

As described here in an earlier blogpost, the Minister previously clashed with the legal profession about legal aid funding. The government pays lawyers for people who cannot afford it themselves. Lawyers will then receive compensation based on a system of fixed rates for each type of court case. According to many lawyers, these are too low, but Dekker refused to make more money available, eventually leading to a strike by lawyers at the end of 2019.

A five-year experiment

The bar association thus yields to heavy pressure from politics, cartel watchdog ACM and non-industry service providers eager to enter the legal market. Although, rather than a full-fledged rule change that would open up the legal market to a host of providers, for the time being the admission of SRK is ‘an experiment’ with a maximum duration of five years. Service providers other than SRK may also participate, under the watchful eye of the Bar. The experiment is part of a broader investigation into a possible new system of regulations around permitting alternative business structures for lawyers.

The experiment announced by the NOvA must therefore be viewed in that light. “There needs to be movement on this subject somewhere, either by the NOvA, either by the ministry or the ACM,” said General Dean of the Dutch Bar Frans Knüppe. “We think it is wise to start the experiment now, and thus gain knowledge and experience on this fundamental issue. We expect that the Minister and ACM will not have to take any steps for the time being.” Knüppe emphasized that the NOvA is open to new initiatives, as long as the core values – in this case lawyers’ independence – ??are guaranteed.

International shifts in the legal market

While the move by the NOvA is only a small step towards rule changes, in terms of corporate structures it could potentially lead to a significant shift in the character of the Dutch legal market. The opening up of commercial opportunities for legal service providers could be part of the solution for the segment of the population that earn too much for subsidized legal aid but are not wealthy enough to employ costly and often unpredictable services of a lawyer without legal aid insurance.

The changes in the Dutch context do not stand on their own, as we have seen considerable volatility in legal market globally. In the United Kingdom and the United States, established law firms have been facing competition for much longer. The 2011 Legal Services Act in England has made it possible for parties other than lawyers to become co-owners of a law firm. As a result, law firms can collect money from outside the company, at the stock exchange for example. The new law opened the door for non-lawyers such as accountants and bailiffs, as well as supermarkets, to enter the legal market.

It remains to be seen what the impact of this temporary rule change will be on the Dutch legal market. The board of representatives of the NOvA expressed concern that the experiment could potentially lead to shifts in the legal landscape that prove to be irreversible after the five-year experiment. On the other hand, the ACM has applauded the move by the NOvA, yet also questions whether the relaxing of the rules goes far enough.

On request of the Ministry of Justice and Security and the NOvA, the WODC (Research and Documentation Centre) of the Ministry is currently conducting research into the consequences of the admission of alternative business structures in the legal profession.

 

[1] Hoevenaars, J. & Kramer, X.E. (2020). Improving Access to Information in European Civil Justice: A Mission (Im)Possible? In Informed Choices in Cross-Border Enforcement. Cambridge: Intersentia

Last week, the United States Supreme Court heard arguments in Republic of Hungary v. Simon and Federal Republic of Germany v. Philipp. The basic question in these cases is whether the plaintiffs (Holocaust survivors and the heirs of Holocaust victims) can pursue claims in U.S. federal court seeking compensation from European countries and their agencies or instrumentalities for takings of property during the Second World War. The more nuanced question presented to the Supreme Court by the Governments of Hungary and Germany is whether U.S. federal courts may abstain from resolving such claims on the grounds of “international comity” – the principle that courts must respect the legislative, executive and judicial acts of a foreign sovereign – when jurisdiction is based on the expropriation exception of the Foreign Sovereign Immunities Act (“FSIA”). Germany presents the additional question of whether that exception “provides jurisdiction over claims that a foreign state violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established customary international law addressing states’ expropriation of property.”

The factual background of these cases has been fully recounted elsewhere, but the basic storyline is well known. The case against Germany involves the Welfenschatz (or the Guelph Treasure), a collection of medieval art that was owned by a consortium of German-Jewish art dealers, but purchased in 1935 by a group of Nazis for less than the art’s true value. After a Government-sponsored mediation process failed in Germany, the heirs of the original owners (including citizens of the United States) filed suit in U.S. federal district court against Germany and the Prussian Cultural Heritage Foundation, which has held the collection since after World War II. The district court denied motions to dismiss; the U.S. Court of Appeals for the District of Columbia Circuit affirmed. The case against Hungary is a federal class action filed by 14 former Hungarian nationals who claim to be the successors-in-interest to Hungary’s state-owned railroad; they seek compensation for the property taken from them and base jurisdiction on the expropriation exception to the FSIA. The district court dismissed the claims for lack of subject-matter jurisdiction (and against the railroad for lack of personal jurisdiction), but the D.C. Circuit reversed. When the case was remanded, the district court again dismissed the case on comity abstention and forum non conveniens grounds; a divided panel of the D.C. Circuit again reversed, which put the case before the Supreme Court.

Germany and Hungary argued before the Court that the source of jurisdiction does not affect the availability of international comity abstention, and nothing in the text of the FSIA shows that Congress removed international comity as a basis for abstention, especially because it left in place analogous comity-based doctrines such as forum non conveniens.. Indeed, the FSIA states that, when a foreign state lacks sovereign immunity, it “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” Because private litigants can seek dismissal based on international comity, the argument goes, states that have lost sovereign immunity must be able to obtain dismissal on the same grounds. And, the two state-litigants add, the comity implications loom large here: to wit, a State’s responsibility to its Holocaust victims is of “profound historical and political importance,” implicating budgetary, taxation and policy priorities; these cases often involve historical artifacts that hold a unique position in local history and culture; and the United States has limited factual ties to such disputes.

The United States appears as amicus curiae in support of both countries and was granted argument time in both cases. It argued that that the D.C. Circuit erred in concluding that the FSIA leaves “no room” for discretionary international comity abstention. The United States also identified several potential harms to foreign-relations interests if comity abstention is categorically unavailable in FSIA cases, the most notable of which is that the United States will have greater difficulty persuading foreign partners to establish mediation and compensation mechanisms for human-rights violations if those schemes will receive no deference in later-filed U.S. litigation.

For their part, both sets of plaintiffs argued that Congress codified pre-existing principles of international comity in enacting the FSIA in 1976, granting or withholding immunity as principles of comity dictated. In their view, allowing comity to creep back into the FSIA’s comprehensive scheme would conflict with the FSIA’s purpose of ensuring uniform sovereign-immunity determinations based on clear legal standards, and hasten a return to the pre-FSIA regime that Congress sought to displace. Put simply, when the Act provides jurisdiction over a foreign sovereign, it is because Congress determined that international comity does not call for immunity in those circumstances. Congress left no room for application of a discretionary and atextual doctrine of international-comity-based abstention when the FSIA provides jurisdiction. The Hungary plaintiffs continue that abstention, even if it is within the court’s discretion, is not appropriate here because the United States’ has a clear foreign-policy interest in providing justice to Holocaust survivors where the Defendant State has failed to establish a mechanism for resolving such claims.

The arguments drew a number of pointed questions from the bench; a fulsome discussion of the questions posed to the advocates can be found elsewhere, but some of the more interesting exchanges were about the historical background to the FSIA and its purposeful shift of immunity determinations from the executive to the judicial branch. For instance, Justices Gorsuch and Kagan wondered whether the States’ arguments replicated the pre-FSIA days, when executive-driven sovereign immunity determinations were unpredictable. Justice Sonia Sotomayor noted that in enacting the FSIA, Congress took sovereign immunity issues out of the executive’s hands; she wondered if abstaining substitutes the judicial determination that a case does not belong in federal court for the FSIA-codified congressional determination that it does. Chief Justice John Roberts pressed the United States on why it “has scrupulously avoided taking a position” on what the courts should do in the Simon case on whether abstention is warranted, suggesting that the executive branch is expecting the courts to do the difficult and sensitive work that comity abstention requires. For further commentary on this blog regarding international comity as well as an approach to international comity abstention, see here, here, here, and here.

A decision is expected before June 2020.

This report has been prepared by Priyanka Jain, a researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, and Ph.D. candidate at the University of Luxembourg.

 

Introduction:

 

On 8-9 October 2020, ERA – the Academy of European Law – organized its Annual Conference on European Consumer Law 2020. It provided an insight into the main priorities of the new Consumer Agenda and remarks on key topics such as the impact of Covid-19 on consumer protection, the new Digital Services Act package, and the Collective redress framework in the EU with a specific focus on the new EU Directive on representative actions for the protection of collective interests of consumers. This report starts with an introduction to several presentations given by renowned scholars, followed by an overview of the recent Representative Actions Directive.

 

Day 1: The New Consumer Law Updates, digital transition, and green transition

 

The New Consumer Agenda, which presents a vision for the EU consumer policy from 2020 to 2025, builds on the 2012 Consumer Agenda (which expires in 2020) was the focus of the first panel. Massimo Serpieri (Deputy Head of Unit, DG Justice and Consumers, European Commission, Brussels) spoke about the action plan for the next five years to empower European consumers to play an active role in the green and digital transitions. She mentioned how the Agenda also addresses the need to increase consumer protection and resilience during and after the COVID-19 pandemic, which brought significant challenges affecting the daily lives of consumers.

Ursula Pachl (Deputy Director-General, BEUC – The European Consumer Organisation, Brussels) then expanded on the challenges of the COVID-19 outbreak and the need for drawing lessons from the crisis to reshape consumer protection and accelerate the digital and green transition. The core of her presentation was the inevitability of a powerful Competition Law framework for consumer choice, higher quality, and more investments, as well as the need for protecting consumers and ensuring that they have the right to object to decisions made by machines in the arena of automated decision-making.

 

Teresa Rodríguez de las Heras Ballell (Associate Professor, Carlos III University, Madrid) started the second panel of the discussion by giving a brief background on the new Digital Services Act package, a comprehensive set of rules comprising of the Digital Services Act and Digital Markets Act. They will create a safer and more open digital space, with European values at its core. With this, she addressed the need for updating the E-commerce Directive of the year 2000. The manner in which the E-commerce Directive has been implemented across the EU varies greatly, and national jurisprudence on online liability today remains very fragmented. This fragmentation has created uncertainty in the implementation regime, and it is, therefore, essential to revise the EU liability regime for online intermediaries.

Jan Penfrat (Senior Policy Advisor, EDRi – European Digital Rights, Brussels) proceeded then by highlighting the key issues raised by dominant platforms ahead of the adoption of the new Digital Services Act package. He addressed the main problems with centralized platforms, which dominate the online space, and work on the business model of providing free services in exchange of highly confidential personal data by analyzing Regulation (EU) 2019/1150 on promoting transparency for business users of online intermediation services.

The second half of the first day was dedicated to a discussion on the Green Transition and how to achieve sustainable consumption. Emmanuelle Maire (Head of Unit, DG Environment, European Commission, Brussels) started the discussion with a comprehensive overview of the European Commission’s New Circular Economy Action Plan with a focus on main proposals concerning consumers.

Guaranteeing sustainability at the pre-contractual stage was the focus of the presentation of Petra Weingerl (Assistant Professor, University of Maribor), in which she analyzed the Guidance on implementation of the Unfair Commercial Practices Directive. This was followed by the presentation of Evelyne Terryn (Professor, Catholic University of Leuven), which focused on the topic of promoting sustainable choices at the contractual stage and the “right to repair” under the Sale of Goods Directive.

A discussion was then convened on best practices of the transition to the Circular Economy, in the Member States in Belgium and France by Evelyne Terryn, Slovenia by Petra Weingerl and Sweden by Carl Dalhammar (Associate Professor, International Institute for Industrial Environmental Economics, Lund University) on the need for minimization of waste to achieve a circular economy. The following round table discussion that ensued between Eva Dalenstam (Policy Officer, Circular Economy, DG Environment, European Commission, Brussels), Carl Dalhammar, Margreeth Pape (Programme Manager, Sustainability and Logistics, Thuiswinkel.org) offered an insight into the main challenges posed in the real world while bringing the green and digital transitions together and explained ways to achieve more sustainable e-commerce.

 

 

Day 2: Recent Case Law Update of CJEU and Collective Redress

The next day’s first panel began with a presentation from Massimiliano Puglia (Legal Secretary, Court of Justice of the European Union, Luxembourg), who provided a comprehensive overview of cases involving consumer protection at the CJEU in the past year. He spoke about several important cases involving judicial cooperation in civil matters under Regulation (EU) No. 1215/2012 (C-213/18, easyJet; C-343/19, Verein für Konsumenteninformation ) and protection of consumers against unfair contract terms  C?511/17, Lintner; C?260/18, Dziubak;  C?125/18, Gómez del Moral Guasch; C-779/18, Mikrokasa and Revenue; C-81/19, Banca Transilvania).

 

Christine Riefa (Reader in Law, Brunel University, London) proceeded then with an interesting discussion on the concept of ‘vulnerable consumer’ and the lack of access to justice to such a consumer who is a weaker party in the justice system.

 

Stefaan Voet (Associate Professor, Catholic University of Leuven) was then handed the floor to reflect on the final text of the proposed Directive on representative actions for the protection of the collective interests of consumers, which is a part of the 2018 New Deal for Consumers. After providing some brief background, Stefaan Voet focused on four points of the Directive – scope of application, the cross-border element of representative actions, application of private international law, funding, and financing. He analyzed the standing of qualified entities and criteria for recognizing such qualified entities to bring a cross border action under the said draft directive. The Representative Actions Directive (Directive 2020/1828) has now been finalized and published on 25 November 2020.

 

Highlights of the Representative Actions Directive

 

The recent Directive on representative actions for protecting the collective interests of consumers repeals the earlier Injunctions Directive 2009/22/EC (hereinafter referred to as the Directive) and creates provisions for qualified representative entities, private or public entities to lodge cross-border claims. As per the said Directive, three types of representative entities shall have the standing to bring representative actions on behalf of consumers. These are private representative entities designated in advance by the Member States and placed in a publicly available list, representative bodies designated on an ad hoc basis for a specific action or particular consumer organization, and independent public bodies.

For domestic actions, Member States have to set out proper criteria consistent with the objectives of the Directive. Accordingly, all entities complying with the requirements of the Directive would have the right to benefit from its regime. The EU legislator offers some flexibility to the Member States regarding the possibility to designate entities on an ad hoc basis for bringing specific representative actions. The proposed Directive allows ‘qualified entities’ to bring actions against the infringement by traders before the competent court or administrative bodies in other Member Nations. This means that ‘qualified entities’ have standing before the competent courts or other administrative bodies in all Member Nations to file a representative action. In other words, Member States are bound to accept the legal standing of foreign ‘qualified entities’ who fulfil the requirements established by their national laws in order to take action, in case an infringement of the collective interests of consumers has a cross-border dimension. Article 4 of the Directive states that cross-border cases can be brought by entities that comply with the following criteria. It must at least have 12 months of activity in protecting consumer’s interests; it must be of a non-profit character; its statutory purpose demonstrates that it has a legitimate interest in protecting consumer interests. Additionally, it must be independent of third parties whose interests oppose the consumer interest, it must not be subject to an insolvency procedure or declared insolvent, and it must make public disclosure of the information demonstrating compliance of the above.

Additionally, qualified entities from different Member States can also join hands to file a claim before a single court having jurisdiction under relevant EU and national law. It is important to mention here that the requirements of the Directive entail that the statutory purpose of qualified entities demonstrates that they have a legitimate interest in protecting consumer interests. They must demonstrate that they have been functioning in the field of protection of consumer interests for about one year. At the same time, they must be able to bear the costs of the representative proceedings on their own and disclose that they are capable of doing so. The Member States, which designate qualified entities, shall verify whether they continue to fulfil these criteria every five years. If they fail to comply with these criteria, the Member States have the power to revoke their designation. Thus, the standard for determining the capacity of the qualified entity is now the ‘economic capability’ and not based on the litigant’s rights or moral agency. The display of economic capability will require the qualified entities to thrive in the field of consumer protection continuously, and it will not be long before collective redress actions become a means of survival of these entities.

Further, in the context of cross-border cases, Member States may also designate entities representing consumers from the different Member States. Article 6 of the said Directive allows mutual recognition of legal standing of qualified entities designated in advance in one Member State as per Article 4(1) to seek representative action in another Member State. However, it is important to note that it is yet to be seen how the Directive will be implemented in the Member States.

 

Finally, in the last presentation of the second day, Alexia Pato (Postdoc Research Fellow, University of McGill, Montreal) addressed the interplay between collective redress and general data protection regulation(GDPR) with a focus on the representation of data subjects under its Article 80. The said provision allows consumer associations to litigate on behalf of data subjects.  She also spoke about the said Representative Actions Directive and that data protection has been added into the scope of the Directive. She pointed out that it will be interesting to see how the Directive will be implemented in the Member States.

 

To sum up, this two-day event provided an up-to-date insight into the latest policy developments, legislative initiatives, and case law in the field of consumer protection, including related conflict-of-laws issues. The detailed presentations from renowned experts in this field generated a good understanding of several challenges faced by the consumer in the real world and the future consumer agenda to ensure effective consumer protection.

In an article available here and forthcoming in the University of Pittsburgh Law Review, Professor Ronald A. Brand discusses the purposeful structure of the Hague Judgments Convention and how that structure can aid the implementation and operation of the Convention in countries with existing liberal and non-discriminatory approaches to judgments recognition—like the United States. In sum, the Convention is built on a list of “jurisdictional filters” in Article 5(1) and grounds for non-recognition in Article 7; if the former is satisfied, the judgment may circulate under the Convention, subject only to the grounds for non-recognition found in the latter. However, and importantly, Article 15 allows the recognition or enforcement of judgments under national law. For countries like the United States, with very liberal existing law on the recognition of foreign judgments, Article 15 may in fact provide a more efficient, effective, and economical approach, even under the Convention. This article addresses this concept.

Written by Ulla Liukkunen, Professor of Labour Law and Private International Law at the University of Helsinki

The volume ´Employment and Private International Law´, edited by Ulla Liukkunen, has been published in the Private International Law Series (series editor: Symeon C. Symeonides)

of Edward Elgar Publishing in December 2020.

This edited collection gathers together a set of articles that address labour law and labour protection issues that are central to understanding the complex development of private international law and its tasks as well as broadening challenges of this field. The introduction by the editor, Ulla Liukkunen, Professor of Labour Law and Private International Law at the University of Helsinki, draws attention to characteristics of major developments in the field but also assesses the broader regulatory framework and challenges under way to traditional approaches. These challenges relate to both transnational labour law developments that require reassessment of the role of private international law and developments that derive from the ongoing transformation of substantive employment law itself, unfolding the limitations of protection restricted to a certain pre-determined legal status of the weaker party only.

With the legal landscape of labour protection changing, Liukkunen examines how private international law should be affected. According to her, old conceptions on which protection in private international law is traditionally based are becoming too narrow to be solely prioritized. Liukkunen discusses the importance of viewing the role private international law has assumed in the transnational dimension of collective bargaining and employee participation. Especially in the EU, regulatory approaches have been adopted that use private international law rules in a coordinative way so that labour rights can be upheld despite the pressures of the market.

The particular role of private international law as the ´mediator´ between labour law and company law in EU legislation reflects the expanding materialization of private international law. According to Liukkunen, it also relates to the use of conflicts law in order to enable establishment of transnational institutional structures that reduce obstacles to private regulatory authority. Moreover, the article analyses private self-regulation and related governance structures from the perspective of private international law, stressing a need for response to collisions posed by transnational normativities involved.

 

Written by Richard Mike Mlambe, Attorney and Lecturer at University of Malawi- The Polytechnic

This is the third online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomics.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, and second symposium was published by Anthony Kennedy. More blog posts on this online symposium will follow this week.

Introduction

The Nigerian private international law (hereinafter PIL) regime is significantly influenced by the common law. As a result, the common law plays a major role in providing the applicable rules on the recognition and enforcement of foreign judgments.[1] Like in many other common law jurisdictions, Nigerian courts recognize and enforce foreign judgments only if, in the eyes of Nigerian PIL, the foreign court had jurisdiction to render the judgment in question.[2] The recognized bases of jurisdiction are submission, residence and presence of the defendant within the foreign country.[3] This is also the position in other common law countries such as South Africa[4], Australia[6]and Malawi.[7]

As a result of the foregoing, Nigerian courts would refuse to recognize and enforce a judgment of a foreign court where the defendant was not present/resident in the foreign country and did not submit to its jurisdiction.[8] It must be emphasized that once the court finds that none of the above grounds is established, then the foreign court is deemed not to have possessed jurisdiction regardless of any connection that the parties or the transaction in issue may have had with the foreign country.

 

Nigerian and Canadian PIL

Okoli and Oppong have observed as follows:

“It is open to question whether the existing recognised bases of international competence – residence, presence, and submission – are adequate for the current international climate of increased trade, movement of persons, and transnational relationships. From a comparative perspective, Canadian courts have applied the real and substantial connection test. This basis   requires that a significant connection exist between the cause of action and the foreign court. Such a connection could include the fact that the cause of action arose in the jurisdiction of the foreign court, or that jurisdiction was the place in which the contractual obligation was to be performed. The ‘real and substantial connection’ test has not found favour outside Canada, and the test has been the subject of academic criticism.”[9]

Under Canadian PIL, the traditional common law principles are recognized such that a foreign court will be deemed to have jurisdiction if the defendant submitted to the jurisdiction of that court[10] or where the defendant was resident[11] or present[12] in the territory of the foreign court. In addition to these bases, the foreign court’s jurisdiction will be recognized where there was a real and substantial connection between the matter and the foreign court.[13] The real and substantial connection test entails that a Canadian court can recognize and enforce a foreign judgment that was delivered in circumstances where the defendant was not physically present in the jurisdiction when served with the originating process, as long as a real and substantial connection between the case or the parties and that foreign jurisdiction exists. This is therefore an additional ground of jurisdiction to the traditional common law grounds obtaining in Nigeria and other common law jurisdictions.

While Nigerian courts insist on the physical presence/residence of the defendant in the foreign territory[14]Canadian courts will go further to determine if there was a real and substantial connection between the matter and the foreign forum. This paper discusses the differences in the two approaches in view of their impact on the interests of justice between the parties, and suggest, with reasons, that Nigeria and the rest of the common law should derive lessons from Canadian PIL.

 

Discussion

This paper acknowledges that the requirement of presence of the defendant in the territory of the foreign court at the time of service ensures that the proceedings are conducted in accordance with the principles of natural justice. If the defendant was not present, the necessary originating processes may fail to reach him, or at least in good time, so as to have sufficient time to defend his case.[15]

However, the fact that in Nigerian a court may be satisfied that the foreign court had jurisdiction merely by virtue of the defendant’s presence therein, without more, is not satisfactory. Firstly, such an approach enables recognition of a foreign judgment that was rendered by a court that was not connected, or at least sufficiently connected, to the case, and therefore an inappropriate court. As a result, the international jurisdiction of a court that has no connection at all with the case or the parties would be established simply because the defendant happens to have been present within that country, no matter how brief the stay may have been in that country. This may encourage forum shopping.[16] The plaintiff may deliberately institute proceedings in a court that is not connected to the case and therefore inappropriate, knowing that the resulting judgment will be accorded recognition and enforcement in Nigeria. Actually, it is this paper’s view that if this is to be followed to its ultimate logical conclusion, then any country in the world has jurisdiction to render a judgment capable of recognition in Nigeria and other common law countries as long as the originating process was served on the defendant within its territory regardless of how little, if any, is that jurisdiction’s connection to the case.[17] We do not believe that such a result is consistent with the ends of justice.[18]

 

Secondly, the insistency on the presence of the defendant in the foreign court practically means that an unscrupulous defendant is at liberty, at the first hint of a dispute, to prevent the plaintiff from getting a judgment capable of recognition in England merely by leaving the natural and appropriate jurisdiction in which the plaintiff may institute proceedings against him. Much as the plaintiff may still initiate the proceedings against the defendant and service be effected in accordance with the procedure for service out of jurisdiction, this paper’s view is that as long as the plaintiff would be unable to secure recognition and enforcement of that judgment on the ground of the defendant’s absence from the jurisdiction, the plaintiff’s right to access to justice and legal remedies would be infringed.[19]

Actually, in our view, the injustice occasioned by the insistence on the presence of the defendant as a necessary and sufficient condition as far as jurisdiction is concerned, may be suffered not only by the plaintiff but also by the defendant. The plaintiff, as stated in the preceding paragraph, may be unable to enforce a judgment that was obtained in a country that is very appropriate forum as long as the defendant was not present, notwithstanding his right to access to justice and effective remedies.[20] On the part of the defendant, a Nigerian court may recognize and enforce a foreign judgment rendered by a court that was not in any material way connected to the case.[21] It is our view that considerations such as these necessitate a revision in the common law approach to presence as a ground of jurisdiction for purposes of recognition and enforcement of foreign judgments.[22]

Under Canadian PIL, a foreign judgment will be enforced against a defendant who was not present within the territory of the foreign forum provided that there was a real and substantial connection between the matter and the forum.[23] Further, it must be noted that the Canadian court will ensure that the rights of the defendant were protected and that the proceedings were conducted in accordance with the principles of natural justice.[24] Put precisely, the courts will require the judgment creditor[25] to satisfy them that the defendant was aware of the proceedings against him through proof of service. The real and substantial connection test therefore enables the plaintiff to have the judgment enforced in circumstances where the court properly exercised jurisdiction even if service was not effected on the defendant within the foreign court’s territory. In this case, the plaintiff’s fundamental right to access to justice and legal remedies as well as the defendant’s right to be duly served with the originating process and to have sufficient time to defend his case are both served.[26]

There are two points that need to be made here. Firstly, under Nigerian PIL, provision is made for service outside jurisdiction if the defendant is not present within the jurisdiction and the case is sufficiently connected with Nigeria and it is the appropriate forum for hearing the case.[27] It can be argued, therefore, that if Nigerian law recognizes that there are circumstances under which courts can properly exercise jurisdiction against a defendant who is not within the jurisdiction and was actually served out of jurisdiction with originating process, why should they not accept that other courts can also exercise jurisdiction under the same circumstances and therefore be able to recognize and enforce judgments rendered by foreign courts under similar circumstances?[28]

Secondly, it must be stated that Nigerian courts are able to decline jurisdiction, when called upon to hear a case, if upon considering all relevant factors, they form the view that another forum exists with jurisdiction and is the more appropriate forum.[29] However, when a judgment is brought for recognition in Nigeria, Nigerian courts would not examine the appropriateness of the foreign court and would recognize that judgment even if the case was not in any way connected to that jurisdiction as long as the defendant’s presence is established. Why should the Nigerian courts, and indeed the courts in other common law jurisdictions, be able to recognize that jurisdiction should be exercised when it is appropriate to do so in the interest of justice when they are asked to hear a case, and then take a very different approach when it comes to recognition of foreign judgments so that they end up recognizing judgments rendered by forums that would be deemed appropriate?[30]

It is submitted that refusal to recognize and enforce foreign judgments by common law courts on the basis of the defendant’s absence from the foreign court, even when the matter was sufficiently connected to that foreign court, is an affront to the ends of justice in international litigation and is not in accordance with the realities of international commercial life. The approach of the Canadian courts through the adoption of the ‘real and substantial connection’ test is commendable. This paper laments that Nigeria and other common law jurisdictions have not joined Canada in this positive direction. An opportunity arose in Malawi, another common law jurisdiction, to modernize her international civil procedure when the Courts (High Court) (Civil Procedure) Rules (2017) were enacted. There is no provision at all with regard to recognition and enforcement of foreign judgments, which leaves the common law regime unchanged. One can only express regret at this missed opportunity.

 

Conclusion

It has been seen that presence of the defendant in the foreign jurisdiction is a basis of jurisdiction of the foreign court for a judgment rendered by that court to be recognized and enforced in Nigeria. In Canada, it is also a recognized basis of the jurisdiction of the foreign court but a foreign judgment may be recognized even when the defendant was not present in the foreign country as long as a real and substantial connection exists between the matter and the foreign jurisdiction.

This paper is of the view that the insistence of the common law on the presence of the defendant in the foreign country leads to injustices in circumstances where recognition is accorded to a judgment having been delivered in a foreign forum that was not appropriate, on one hand, or when a foreign judgment is refused recognition where it was rendered by an appropriate court merely on the basis of the defendant’s absence from the foreign jurisdiction, on the other hand. It is therefore submitted that Nigeria and the rest of the common law should join Canada in applying and developing a test that prevents presence or absence of a defendant from undermining the ends of justice in international litigation and, in particular, in the recognition and enforcement of foreign judgments.

[1] See Richard Frimpong Oppong Private International Law in Commonwealth Africa (Cambridge University Press) 2013 p. 313.

[2] Nigeria law has both a statutory and common law regime for the enforcement of foreign judgments. In this paper, the focus is exclusively on the common law regime. Further, this paper focuses on jurisdiction as a condition of the recognition and enforcement of the foreign judgment and the other conditions (such as finality of the foreign judgment) are not addressed.

[3] Oppong (n1 ) 320.

[4] Richman vBen Tovim, SCA [2006] 148, [2007] (2) SA 283

[5] Burham vSuperior Court of California, 495 US 604; and Born, Rutledge and Kluwer International Civil Litigation in United States Courts (2011) 1120.

[6] Herman vMeallin (1891) 8 WN (NSW) 38.

[7] Malawi also has both a statutory and common law regime for the recognition and enforcement of foreign judgments.

[8] Submission is established either through choice of forum agreements or where he defendant pleads to the merits of the case without contesting jurisdiction which the court otherwise did not have.

[9] Chukwuma Samuel Adesina Okoli and Richard Fimpong Oppong Private International Law in Nigeria (Bloomsbury publishing) 2020 p 353.

[10] Richardson v Allen (1916), 28 D.L.R. 134 (Alta S.C. (A.D.))

[11] First Hawaiian Bank v Smith, [1999] A.J. No. 643, 245 A.R. 148 (Alta Q.B.).

[12] Royal Bank of Canada v Industmarine Ltd., [1982] B.C.J. No. 2365. The constitutionality of mere presence as a ground of jurisdiction is however a controversial issue in Canada.

[13] Morguard Investment Ltd v De Savoye, [1990] S.C.J, No.135, 76 D.L.R. (4th) 256 (S.C.C.). This is a landmark and revolutionary decision that marked a departure from the refusal of recognition of foreign judgments if the defendant was absent from the jurisdiction of the court that delivered the judgment. The court felt that time had come to take a different approach to recognition and enforcement of foreign judgments. Indeed the principles laid down in this case have been confirmed in the subsequent case law of the Supreme Court of Canada, most notably, in Beals v Saldanha (2003) 3 SCR 416.

[14] Assuming that the defendant did not submit to the jurisdiction of the foreign court

[15] See Castel Conflict of Laws Cases, Notes and Materials (1968) 956 where the author actually states that the question of whether a court should have jurisdiction to entertain actions against absent defendants and give judgments which though effective territorially can be recognized in other jurisdictions is a policy issue not for the courts, thereby suggesting (it is submitted) that the court should be slow to render recognition to such judgments except where by legislation they are empowered to do so.

[16] See Tilbury, Davies an Opeskin Conflict of Laws in Australia (2002) 139 where the learned authors write: “A party engages in forum shopping when it seeks to litigate its case in a forum has little genuine connection with the court or the parties. Both plaintiff and defendant may influence the forum in which a case is tried, but the plaintiff is usually better able to do so”.

[17] See Collins (ed) Dicey, Morris and Collins on the Conflict of Laws (2012) 693 who seem to justify mere presence as a ground of jurisdiction on the basis of the temporary allegiance owed by the defendant to the local sovereign.

[18] See Ehrenzweig The Transient Rule of Personal Jurisdiction; The “Power” Myth and Forum Conveniens in Jurisdiction and Private International Law (2014) 565.

[19] It is therefore respectfully submitted that this may amount to a denial of the right to legal remedies and redress by preventing the plaintiff from enforcing the judgment. See generally Grosvenor Casinos Ltd v Ghassan Halaoui (2009 ) 10 NWLR 309.

[20] See TC Hartley International Commercial Litigation Texts, Cases and Materials in Private International Law (2015) 406. The learned author states that actually as far as English courts are concerned, if the defendant was absent from the jurisdiction in question, the fact that a contract was breached in that foreign country or that the tort was committed there does not suffice to confer jurisdiction on the foreign court.

[21] This means that the plaintiff may benefit from his forum shopping.

[22] Indeed the consideration of the injustices occasioned by the traditional common law principles convinced the Supreme Court of Canada to adopt the real and substantial connection test.

[23] See n 13.

[24] If the plaintiff fails to show that the principles of natural justice were adhered to the court will refuse recognition of the foreign judgment.

[25] Usually the plaintiff

[26] It is the submission of this paper that this is the approach that is in accord with the nature of private international law because it is based on the recognition that the parties will not always be physically present in the same jurisdiction when causes of action arise between them. The real and substantial connection test, in the view of this paper, is a recognition of this reality.

[27] See, for example, High Court of Kaduna State (Civil Procedure) Rules 2007, Ord. 8, r. 1)

[28] In other words, why should Nigerian court be able to exercise jurisdiction when they are not ready to recognize the judgments rendered by foreign courts under the same circumstances?

[29] The doctrine of forum non conveniens. On this doctrine in general see Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460.

[30] In other words, why should the Nigerian court recognize that there are circumstances under which they may not be the appropriate forum for the trial of certain cases and decline to do so, and fail to recognize that the same may be the case in other jurisdictions and only regard mere physical presence of the defendant in the foreign territory as conclusive, no matter how improper the exercise of jurisdiction may have been in the foreign court?

 

The Minerva Center for Human Rights at Tel Aviv University will host an  international socio-legal (zoom-) workshop on 22-23 June 2021 to explore the impact of the Covid-19 crisis and its regulation on cross-border families:

Cross-border families (also known as transnational and globordered families) are a growing and diverse phenomenon. People around the globe create bi-national spousal relations, are assisted by cross-border reproduction services, or by a migrant care worker who provides care for a dependent family member. Likewise, families become cross-bordered when one of the parents relocates, with or without the child, or when a parent abducts the child. In addition, increasing rates of forced or voluntary migration create more and more cross-border families, with different characteristics and needs. While some kinds of cross-border families have attracted the attention of legal scholarship, other kinds are still neglected, and much is yet to be studied and discussed regarding the challenges embedded in the attempt to secure the right to family life in the age of globalization.

The global Covid-19 crisis provides more, and alarming, evidence of the socio-legal vulnerabilities of cross-border families. For example, bi-national couples are separated for long periods of time; intended parents are unable to collect their baby from the country of the surrogate; and families assisted by a migrant care worker, the workers, and their left behind families, are entangled in new complex relations of power and dependency. Likewise, the right to heath is at risk when a family member is denied treatment because of partial citizenship status, and questions such as the enforcement of child support across borders are even harder to address than in more peaceful times.

Crises, such as the Covid-19 pandemic, are often a methodological opportunity for socio-legal research. In many cases, a major social crisis shakes habitualization, and opens up taken for granted social scripts to individual and collective reflection. Likewise, such a crisis involves risk regulation and, in the current case, also plague governance—involving intense emergency regulative changes made by different nation-states that might both reveal and challenge deeply shared norms regarding familial rights and national interests. Hence, our current era lends itself more readily than stable, routinized periods to the investigation of current regulation, and the imagining of options for new regulation regarding cross-border families.

On 22-23 June 2021, we plan an international socio-legal workshop that will explore the impact of the Covid-19 crisis and its regulation on cross-border families. We hope to explore the ways Covid-19 restrictions affect cross-border families, and the role of the law, in different countries, in shaping this impact and in challenging it.

The questions during the workshop might include, but are not limited to:

• How does the Covid-19 crisis affect cross-border families?
• How do legal Covid-19 restrictions affect cross-border families?
• Did national jurisdictions adapted their substantial and procedural laws to meet the challenges faced by cross-border families during the pandemic?
• What can be learned from comparing different jurisdictions in their response to cross-border families’ needs during the pandemic?
• What can be learned about the interrelations between globalization, borders, families, and the law, from this crisis?
• What are the lessons to be learned from the pandemic on how can national, regional and international law be developed to better protect the rights of cross-border families, and those involved in their creation and everyday familial doing, in times of crisis and in more stable times?

Confirmed Keynote Speaker: Prof. Yuko Nishitani, Kyoto Univiertys Law School

The workshop will be conducted via Zoom, and is sponsored by the Minerva Center for Human Rights at Tel Aviv University. It will be open to the public, and hopefully, will set the foundations for further multinational research and collaboration.

We will give serious consideration to all high-quality relevant research, from any discipline. Work in progress is welcome, as long as the presentation holds new findings or insights and not only declaration of intent. Faculty members as well as independent researchers and advanced research students are welcome to submit.

The screening process for the workshop will include two phases:

Phase I – Abstract: 

Abstracts should include:

• An overview of the main question and arguments of your contribution (up to 500 words)
• Key words
• Contact details [author(s), affiliation (including institute and department), and e-mail address]
• Short bio of author/s (up to 250 words, each)

Abstracts must be in English and be submitted to this email address: eynatm@media-authority.com

Deadline for submission: 28 February 2021.

Phase II – Summary:

Those who’s abstract will be accepted, will be notified by 31 March 2021 and will be asked to submit a 3-pages summary of their paper by 20 April 2021. Accepted papers will be presented at the workshop. Presenters are expected to take part in all the workshop’s sessions.

Academic Organizers:

Prof. Daphna Hacker, Law Faculty and Gender Studies Program, Tel Aviv University; Prof. Paul Beaumont, Law Faculty, University of Stirling; Prof. Katharina Boele-Woelki, Bucerius Law School, Hamburg; Prof. Sylvie Fogiel-Bijaoui, The College of Management Academic Studies; Dr. Imen Gallala-Arndt, Max Planck Institute for Social Anthropology; Dr. Sharon Shakargy, Faculty of Law, Hebrew University; Prof. Zvi Triger, Law School, The College of Management Academic Studies

On 18 and 19 March 2021, the third German Conference for Young Private International Law Scholars will be held at the Max Planck Institute for Comparative and International Private Law in Hamburg (via Zoom). The conference is dedicated to the question “PIL for a better world: Vision – Reality – Aberration?” The programme, as well as further information on how to register, can be found here. Twitter: @IPR_Nachwuchs

 

Written by Anthony Kennedy, Barrister at Serle Court

This is the second online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomicslaw.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong. More blog posts on this online symposium will follow this week.

Introduction

Authority exists for the proposition that a creditor of a foreign judgment may bring an action at common law in Nigeria, by which action he, in effect, seeks recognition and/or “enforcement” of that foreign judgment[1]. The common law action has not been abolished by statute or disapproved judicially but, sadly, it is not widely understood or used by practitioners/courts in Nigeria. This is unfortunate, especially where the statutory mechanism[2] for the enforcement of foreign judgments is certainly limited but otherwise shrouded in confusion[3]. This paper argues for a reawakening of the common law action.

 

The construction placed on the statutory regime

It is impossible properly to assess the scope for the common law action in Nigeria without first addressing the statutory mechanism for the enforcement of foreign judgments. The common law action only works in the space which has been left for it by the applicable statutory regime. Moreover, tactically, judgment creditors are likely to favour registration of the foreign judgment  under that statutory regime, where such registration is permitted, given the “better protection” which such regime affords them, at least theoretically, when compared with the common law[4].

With that in mind, the authorities yield the following propositions:

1. the Reciprocal Enforcement of Foreign Judgments Ordinance 1922 (the ‘1922 Ordinance’) is still in force and applies to those jurisdictions to which it was extended by Proclamation prior to the passing of the Foreign Judgments (Reciprocal Enforcement) Act 1961[5] (the ‘1961 Act’);

 

2. the provisions of the 1961 Act only come into effect upon the making of an order by the Minister of Justice (pursuant to Section 3 of the 1961 Act)[6] and no such order has yet been made; but

 

3. notwithstanding proposition 2, Section 10(a) of the 1961 Act does have effect, thereby providing the time limit within which the application to register a foreign judgment in Nigeria must be made[7]. Moreover, Section 10(a) of the 1961 Act applies even where the foreign judgment is from a jurisdiction to which neither the 1922 Ordinance nor the 1961 Act has been extended[8].

 

Difficulties generated by the legal profession’s approach to proposition 1

Proposition 1 holds, it is submitted, and, of itself, generates no difficulty for the continued existence and/or growth of the common law action. That said, the legal profession’s approach (and that of the courts) to proposition 1 has been problematic.

Two points are worth making here; both are demonstrative of problems which beset the current state of the law. First, insufficient attention has been paid to the consequence of proposition 1, meaning that its import has not been fully understood. This may, of course, be the result of practitioners and judges concentrating on establishing and endorsing proposition 1 (which process is still ongoing, given the difficult relationship between proposition 1 and proposition 3[9]). Even so, difficulty remains. By way of example: Section 3(1) of the 1922 Ordinance provides that an application for registration be made “at any time within twelve months after the date of the judgment, or such longer period as may be allowed by the court…” (italics added). Where one would have expected argument as to why the court should have, in the legitimate exercise of its discretion, extended the time within which the application could be made, one finds none[10]. A chance to establish when a judgment creditor might appeal to the court’s discretion[11], and, correlatively, when he might have to fall back on the common law action, has been missed.

The second point follows from the first. While, as noted, tactically less advantageous than registration under the statutory regime, Section 3(4) of the 1922 Ordinance allows a judgment creditor to bring an action at common law on the foreign judgment, rather than have it registered under the 1922 Ordinance itself[12]. In circumstances where courts have not heard substantial argument on the Section 3(1) discretion and/or have exhibited a hostile attitude towards extending the time within which to make the application for registration[13], one would have expected a much greater role carved out for the common law action; one remains disappointed. And doubly so because, while not free from all controversy[14], the common law action may be brought within a longer period of time than the 1922 Ordinance permits (if one discounts the fact that the court may, at its discretion, extend time thereunder). At a stroke – so long as the judgment debtor could demonstrate that the other requirements had been met[15] – reliance on the common law action would remove the judgment creditor’s need to act as swiftly as the 1922 Ordinance has been made to require[16].

 

Difficulties generated directly by proposition 3

The language in which Section 10(a) of the 1961 Act is couched gives rise to similar problems as those described when dealing with the first point under the previous sub-heading. Leaving those to the side, it is the second sentence of proposition 3 which poses the most significant risk to the continued life (such as it is) of the common law action in Nigeria. If “registration” is contemplated (or somehow required) when dealing with judgments from jurisdictions to which the statutory regime has not been extended, the common law action (which has nothing at all to do with “registration” of a foreign judgment) is rendered completely useless[17].

Several cases may be cited which combine to paint a rather gloomy picture in this regard. Teleglobe America Inc v 21st Century Technologies[18]is, as far as one can tell, the judiciary’s first (and so most egregious) brushstroke but others have since been added[19]. Taken collectively, they suggest that there is no room left for the common law action, even though there is Supreme Court authority which suggests that the statutory regime was not designed to kill it off.

To be sure, the statutory regime, properly construed, applies only to foreign judgments from a narrow field of jurisdictions. If this is thought to be a problem, the answer does not lie, it is submitted, in a distorted interpretation and application of that statutory regime. Supplementing (a narrow) statutory regime by allowing a judgment creditor to resort to the common law action makes sense: it recognises that the necessary reciprocity which underpins the statutory regime is absent in the majority of circumstances while, at the same time, preserving the judgment creditor’s ability to obtain the debt which the judgment debtor is said to owe, at least in circumstances where Nigerian legal policy (as set out in the rules which govern the common law action) thinks that he should. Judgments which treat this idea with kindness, or at least do not dismiss it out of hand, are to be welcomed[20].

 

 

Difficulties generated indirectly by proposition 3

If proposition 3’s formulation is the product of perceived problems either with the statutory regime or the common law action itself, that is most unfortunate. For, rather than alleviating those problems, proposition 3 rather ensures that they will continue, at least until action on the part of the legislator (which action appears to be some way off).

Removing the common law action from view means that the rules which govern that common law action cannot be changed by the judiciary (which change might allow certain kinks within those rules to be ironed out). To be sure, the common law world has not stood still in relation to the enforcement of foreign judgments: interesting questions remain to be explored. For instance, there is ongoing debate as to the circumstances in which a foreign court should be accorded international jurisdiction over the judgment debtor[21] and different views have been expressed regarding whether the common law may be used to enforce judgments from supra-national tribunals[22]. Consideration of these questions in Nigeria has been stymied by the side-lining of the common law action.

Perhaps even more importantly, with an eye to the future, deliberately obscuring the common law action prevents one from taking a clear view of the current Nigerian legal system, insofar as it relates to the enforcement of foreign judgments, and so, in turn, prevents an assessment of the merits of signing up to international projects, like the recent (and still draft) Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The answer to such questions is of supreme importance if Nigeria wishes to attract (legal) business from the continent as a whole. Those answers must be reached using all of the information available, which is why the common law action must somehow be revived.

 

 

 

 

 

 

[1]Alfred C Toepfer Inc v Edokpolor (1965) NCLR 89. More recently, see: Wilbros West Africa v Mcdonnel Contract Mining Ltd (2015) All FWLR 310.

[2] The overarching statutory regime for enforcement of foreign judgments comprises the Reciprocal Enforcement of Foreign Judgments Ordinance 1922 and the Foreign Judgments (Reciprocal Enforcement) Act 1961.

[3] Olawoyin, Enforcement of Foreign Judgments in Nigeria: Statutory Dualism and Disharmony of Law (2014) 10 JIPL 129, 140.

[4]CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, 2020) 360.

[5]Macaulay v RZB of Austria (2003) 18 NWLR 282.

[6]Marine & General Assurance Company Plc v Overseas Union Insurance Ltd (2006) 4 NWLR 622; Grosvenor Casinos Ltd v Ghassan Halaoui (2009) 10 NWLR 309.

[7]Witt & Busch Ltd v Dale Power Systems PLC (2007) 17 NWLR 1.

[8]Teleglobe America Inc v 21st Century Technologies Ltd (2008) 17 NWLR 108.

[9]VAB Petroleum Inc v Momah (2013) 14 NWLR 284.

[10] By way of example, see Macaulay, supra fn. 5, and Marine & General, supra fn. 6.

[11] For a recent example of when an English court might be likely to exercise a similar discretion, see: Berhad v Frazer-Nash Research Ltd[2018] EWHC 1848 (QB).

[12] Though, where he does so, he is subject to a costs penalty where the conditions in Section 3(4) of the 1922 Ordinance are not satisfied.

[13] See the cases cited supra fn. 10.

[14] Compare, for instance, the competing views of the proper period of limitation as expressed by Olaniyan, The Commonwealth model and conundrum in the enforcement of foreign judgement regime in Nigeria, (2014) Commonwealth Law Bulletin, 40:1, 76, 88 (who seemingly advocates a standard 12 year time limit) and Okoli and Frimpong Oppong “Private International Law in Nigeria”(Hart Publishing, 2020), at 358-359 (who state that it depends on the state of Nigeria in which the action is brought).

[15] As to which, see Okoli and Frimpong Oppong, supra fn. 14 at 351-358.

[16]In this respect, Ogbuagbu JSC’s judgment in Grosvenor, supra fn. 6, at 334-335 is particularly disappointing. See: Okoli and Frimpong Oppong, supra fn. 14, at 373.

[17] See, to similar effect, Olaniyan, supra fn. 14, 88.

[18]Supra fn. 8.

[19] See, inter alia, African Reinsurance Corp v Gilar Cosmetic Store (2010) All FWLR 1194 (concerning a judgment from Liberia) and Obasi v Mikson Establishment Industries Ltd (2016) 16 NWLR 335 (concerning a judgment from Niger).

[20]Wilbros, supra fn. 1. Even there, however, Counsel took great pains to say that this was not an attempt to enforce a foreign judgment and the reasoning of the court in relation to that submission is not always easy to understand.

[21] Compare the position adopted by the Supreme Court of Canada in (originally)Beals v Saldanha 2003 SCC 72 and (more recently) Club Resorts Ltd v Van Breda [2012] 1 SCR 572 with that of the English Supreme Court in Rubin v Eurofinance SA [2012] UKSC 46.

[22] Compare the decision of the South African Constitutional Court in Government of the Republic of Zimbabwe v Fick [2013] ZACC 22 with that of the Ghanaian Supreme Court in Republic v High Court (Commercial Division) Accra, ex parte AG NML Capital and Argentina, Civil Motion No J5/10/2013. For a Nigerian perspective, see: Adigun, Enforcing ECOWAS judgments in Nigeria through the Common Law Rule on the Enforcement of Foreign Judgments (2019) 15 JIPL 130.

In what appears to be a rather straightforward extension of the Court’s earlier decisions in Cases C-498/16 Schrems and C-208/18 Petruchová, the CJEU held last week in Case C-774/19 Personal Exchange that a natural person contracting with the operator of an online gambling service remains a consumer in the sense of Article 15 of Regulation 44/2001 (Brussels I; now Article 17 or Regulation 1215/2012 (Brussels Ia)) even if they use it for many hours a day and make their living from it.

The question was referred in the context of a dispute between a user and the operator of a gambling website, concerning the alleged violation of certain rules by the user and the subsequent deletion of their account by the operator. The user, who had been playing about 9 hours of online poker per weekday for several years and won considerable sums of money from it, had brought an action in Slovenia although the contract, which the user had agreed to upon registration on the website, contained an exclusive jurisdiction clause in favour of Malta. As the defendant had not disputed that the service had been directed to Slovenia in the sense of Article 15(1)(c) Brussels I, the validity of the jurisdiction clause under Article 17 Brussels I (now Article 19 Brussels Ia) depended entirely on whether or not the user could still be considered a consumer in the sense of Article 15.

Although the Court begins its answer by the usual emphasis on the exceptional character and the resulting need for a narrow interpretation of Articles 15–17 (para. 24) and on the need to look at the purpose of the contract in question (para. 31), the rest of the decision consists entirely of a discussion of whether the claimant may have lost (“peut se voir refuser”) the quality of a consumer for the different reasons invoked by the defendant. According to the Court, this was not the case, neither in light of the sums earned by the claimant (paras. 33–36; as already decided in Petruchová) nor in light of their expertise (paras. 37–40; as already decided in Schrems). While the Court acknowledges the need for a dynamic interpretation of Article 15 (paras. 41–42), by which a party entering into a contract as a consumer could theoretically lose this status at a later point in the contractual relationship, the need for predictability prevents the consideration of the aforementioned factors.

In what Geert van Calster rightly describes as a confusing reference to substantive consumer law, the Court then also discusses to what extent the frequency and volume of the activity must be taken into account (paras 43–49). Seemingly seeking to align its decision with the one in Case C-105/17 Kamenova, where this factors had been considered, the Court qualifies it by holding that the claimant consumer does not lose this quality as long as they do not offer their services as a poker player for remuneration or formally register them.

Written by Dr. Chukwuma Samuel Adesina Okoli, Post-Doctoral Researcher, T.M.C. Asser Institute and Dr. Richard Frimpong Oppong, Associate Professor, University of Bradford, School of Law

We earlier announced that the editors of Afronomicslaw.org invited Chukwuma and Richard to organise a symposium on Private International Law in Nigeria. The introduction to the symposium has now been published today in Afronomicslaw.org. Other posts on the symposium will be posted daily this week.

This Symposium focuses on the recent publication: Private International Law in Nigeria. For many, Nigeria needs no introduction: it is a federal country consisting of thirty-six states and the Federal Capital Territory, Abuja. With increased cross-border transactions and investments, the significance of private international law (or conflict of laws) – the body of law that aims to resolve claims involving foreign elements – has become more accentuated than ever. Indeed, private international law rules have sometimes been invoked in resolving disputes with inter-state dimensions within the federation, especially on jurisdiction and choice of law matters. Conflict of laws has also been used to resolve disputes involving internal conflicts between various customary laws and between customary laws and the Nigerian Constitution or enabling statues, especially in the area of family law. In essence, because of its federal structure, private international law is relevant in both the inter-state and international litigation in Nigeria.

Prior to the publication of Private International Law in Nigeria, there was no comprehensive treatise on the subject in Nigeria. The Book aims to fill that academic void: drawing on over five hundred Nigerian cases, statutes, and academic commentaries, the Book examines mainly jurisdiction (in inter-state and international disputes), choice of law, and the recognition and enforcement of foreign judgments and international arbitral awards. It also examines remedies that affect foreign judicial proceedings such as antisuit injunction, and international judicial assistance to serve legal process and take evidence.

This Symposium brings together the reflections of four scholars on the book and explores some of the issues arising therefrom. In the Book, we examine the common law regime for enforcing foreign judgments in Nigeria and reveal the under-developed state of the law. Anthony Kennedy, a barrister at Serle Court, focuses on this aspect of the book to forcefully argue for a “reawakening of the common law action” to enforce foreign judgments. Kennedy is critical, and rightly so, of how the legal profession and the courts have treated the common law regime notwithstanding clear authority from the Supreme Court of Nigeria that the statutory regime for enforcing foreign judgments was not designed to kill of the common law regime. Kennedy argues that by not side-lining the common law regime, Nigeria may be able to partake in the judicial development of the regime that is going on in other parts of the common law world, as well as international projects such as the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, 2019.

Richard Mike Mlambe, an Attorney and Lecturer at University of Malawi- The Polytechnic, picks up the theme of reform and judicial development of private international law, in a comparative discussion on the bases of jurisdiction in an action to enforce a foreign judgment. Mlambe commends Canada’s “real and substantial connection” basis of international competence. The real and substantial connection test promotes the liberal flow of judgments across borders. Mlambe calls on Nigeria and other common law jurisdictions to join Canada on its “lonely revolution”.

Dr Abubakri Yekini, a Lecturer in Law at Lagos State University, explores the enforceability of jurisdiction agreements in Nigeria drawing on the Book’s discussion which reveals, in the words of Yekini that “it is difficult to give a straight answer on whether jurisdiction agreements are enforced by Nigerian courts” – a state of affairs which he rightly argues creates uncertainties and is not good for international business transactions. Yekini examines three significant challenges to the enforcement of jurisdiction agreements in Nigeria, namely the courts’ mischaracterisation of such agreement as “ouster clauses”; mandatory statutes vesting exclusive jurisdiction in Nigeria courts; and the misapplication of the doctrine of forum non conveniens in cases involving breach of jurisdiction agreement, instead of the strong cause test. Yekini makes an impassioned plea for Nigerian courts to “promote party autonomy”, and a call on Nigeria to become party to the Convention on Choice of Court Agreements, 2005.

Orji Agwu Uka, a Senior Associate at Africa Law Practice (ALP), reflects on the state of private international law in Nigeria and calls for its wider study. Indeed, as Uka rightly acknowledges, for more than a decade, scholars have lamented the level of interest in private international law in Africa. Happily, private international law in Africa can hardly now be described as “the Cinderella subject seldom studied [and] little understood”. Uka undertakes a broad but careful review of the book – highlighting various topics examined in the book but focusing especially on the law on jurisdiction in international and inter-state matters. Uka commends Private International Law in Nigeria for filling a significant academic void on the Nigerian legal landscape.

It is our hope that the Book and this Symposium, in addition to being a rich legal resource for lawyers, judges and legislators would spur on further study of private international law in Nigeria, and Africa. Indeed, the Nigerian Group on Private International Law(“NGPIL”) has already been established and “set sail”. NGPIL aims to “(1) to improve the law in Nigeria in matters relating to private international law (“PIL”) (2) to persuade the Nigerian government to accede to the Hague Conventions on PIL (3) to liaise with other experts, groups, and research centres on PIL on a global level (4) to nurture, guide and develop the legal mechanism and framework for PIL in Nigeria (5) to be the collective voice of PIL experts for the Nigerian government, the judiciary, lawyers and other relevant stakeholders and, (6) to improve the links and communication between PIL experts in Africa”. The book: Private International Law in Nigeria will certainly make the work of NGPIL less daunting.

 

 

The following post has been written by Ennio Piovesani, PhD Candidate at the Universities of Turin and Cologne.

While negotiations for an agreement on the future partnership between the EU and the UK are pending, a spectre haunts Europe: reciprocity.

I. The Residual Role of the Requirement of Reciprocity

In some EU Member States, provisions of national-autonomous aliens law enshrine the requirement of reciprocity. Those provisions are largely superseded by exceptions established in international law, including international treaties (so-called “diplomatic reciprocity”). EU (primary and secondary) law establishes broad exceptions concerning EU citizens and legal persons based in the EU.

In the context of EU / UK relations, the Withdrawal Agreement relieves UK nationals and legal persons from the requirement of reciprocity in the EU Member States. However, the scope of the exception established by the Withdrawal Agreement is limited in (personal and temporal) scope. An agreement on the future partnership between the EU and the UK could establish “full reciprocity” (Cf. points 29 and 49 of the Political Declaration accompanying the Withdrawal Agreement). Instead, if new arrangements will not be made, at the end of the transition period, in cases not covered by the Withdrawal Agreement, the method of reciprocity might once more play a residual role in the context of the treatment of UK nationals and legal persons in some EU Member States.

II. German Case-Law on Reciprocity with the UK and Civil Procedure

The spectre of reciprocity, in relations with the UK, was evoked in three recent cases brought before the German courts. The three cases concern provisions of German-autonomous aliens law in the field of civil procedure, which enshrine the requirement of reciprocity.

1. § 110 ZPO (Security for Court Costs)

In particular, two of the mentioned cases concern § 110 ZPO. Pursuant to § 110(1) ZPO claimants not (habitually) residing in the EU (or in the EEA) must provide security for court costs (if the defendant requests so). § 110(2) ZPO provides exceptions to that duty. The claimant is relieved from the duty to provide security if an international treaty so provides (See § 110(2) no 1 ZPO) or if a treaty ensures the enforcement of the decision on court costs (see § 110(2) no 2 ZPO; see also the other exceptions listed in § 110(2), nos 3–5 ZPO).

In 2018 – before the UK’s withdrawal from the EU –, in a case brought before the Düsseldorf Regional Court, a German defendant sought a decision ordering the UK claimant to provide security under § 110 ZPO (Düsseldorf Regional Court, interim judgment of 27 Sept 2018 – 4c O 28/12). The Regional Court dismissed the defendant’s application, since (at that time) the UK was still an EU Member State. The German court thus shun an investigation as to “whether other international treaties might relieve the claimant from the obligation of providing security for costs after the [UK’s] withdrawal”.

Subsequently, in 2019 – after the UK’s withdrawal from the EU, during the transition period –, a German defendant sought from the Dortmund Regional Court a decision ordering the claimant seated in London to provide security under § 110 ZPO (Dortmund Regional Court, interim judgment of 15 July 2020 – 10 O 27/20). The Regional Court dismissed the defendant’s application, noting that – in the light of the legal fiction created by the Withdrawal Agreement – the UK must be considered as an EU Member State until the end of 2020. The German court – like the Düsseldorf Regional Court – shun an investigation as to whether treaties other than the Withdrawal Agreement relieve UK claimants – not habitually residing in the EU (or in the EEA) – from the duty of providing security under § 110 ZPO.

It appears that, apart from the Withdrawal Agreement, a treaty establishing diplomatic reciprocity for the purposes of § 110(2) no 1 ZPO does not exist yet (cf. ECJ, judgment 20 Mar 1997 – C-323/95).

2. § 917(2) ZPO (Writ for Pre-Judgment Seizure)

The third case brought before the German courts concerns § 917(2) ZPO. Pursuant to the first sentence of § 917(2) ZPO, a writ for pre-judgment seizure can be issued if the prospective judgment will have to be enforced abroad and if “reciprocity is not granted” (i.e. if an international treaty does not grant that the judgment will be eligible for enforcement in the given foreign country).

In 2019 – before the UK’s withdrawal from the EU –, in a case brought before the Frankfurt Higher Regional Court, a German claimant applied for a writ under § 917 ZPO against a UK defendant (Frankfurt Higher Regional Court, judgment of 3 May 2019 – 2 U 1/19). The Higher Regional Court noted that reciprocity under § 917(2) first period ZPO could have been lacking if, after the UK’s withdrawal from the EU, the Brussels Ia Regulation would have not been replaced by new arrangements granting the enforcement of (German) judgments in the UK. This notwithstanding, the German court decided not to issue the writ under § 917(2) first period ZPO, since failure to conclude new agreements replacing the Brussels Ia Regulation was (at that time) unlikely. In fact, the court pointed to the then ongoing negotiations between the EU and UK, namely to Art. 67(II) of the draft Withdrawal Agreement (today’s Art. 67(1)(a) Withdrawal Agreement), providing for the continued application of the Brussels Ia Regulation in the UK.

It appears that, apart from the Withdrawal Agreement, a treaty establishing diplomatic reciprocity with the UK, for the purposes of § 917(2) ZPO, does not exist yet (unless the 1960 Convention between the UK and Germany for reciprocal recognition and enforcement of judgments – or even the 1968 Brussels Convention – will “revive”). An (albeit limited) exception concerns cases covered by exclusive choice-of-court agreements in favour of German courts falling under the 2005 Hague Convention (in fact, on 28 Sept 2020, the UK has deposited its instrument of accession to the 2005 Hague Convention, which should grant continuity in the application of the same Convention in the UK after the transition period).

III. Conclusion

In conclusion, at the end of the transition period, in cases not covered by the Withdrawal Agreement, unless new arrangements are made, the requirement of reciprocity might play a residual role in the context of the treatment of UK nationals and legal persons in some EU Member States, such as Germany.

This entry is the second of two parts that provide an introduction to the Elgar Companion to the Hague Conference on Private International Law (HCCH). It outlines the editors’ reflections on the 35 Chapters, drawing out some of the key themes that emerged from the Companion, including the HCCH’s contribution to access to justice and multilateralism. Together, Parts I and II offer readers an overview of the structure of the Companion (Part I, published on Conflict-of Laws on 8 December 2o2o) as well as of the core themes as they emerged from the 35 Chapters (Part II).

Both parts are based on, and draw from, the Editors’ Introduction to the Elgar Companion to the HCCH, which Elgar kindly permitted.

General reflections

The contributions in the Companion chronicle the evolution of the HCCH in the last 127 years and provide a deep insight into the operation and workings of the Organisation. In addition, they critically assess the past and current work of the HCCH, as well as providing impetus for possible future directions. The editors Thomas John, Rishi Gulati and Ben Koehler encouraged the authors to use the Companion as a platform for critical reflections and assessments – their familiarity with the HCCH, the Organisation’s work, but also its mandate and capacity, ensures the great value of each individual contribution.

The Companion can be of much interest in three particular ways.

First, it is an academic contribution that provides considered expositions on current and future legal issues in private international law in general. The selection of authors, which are drawn from different regions and legal backgrounds, allowed considering topics from a number of different perspectives. The quality of the contributions will result in the Companion serving a most useful source in the substantive development of private international law. It also will constitute a useful resource for States, judges, legal practitioners, academics, and other public and private international organisations engaged in advancing private international law, not only in terms of gaining an understanding of existing HCCH instruments, but also in their efforts towards legislative and policy reform.

Second, the Companion aims to provide considerable and thorough insight into the workings of the organisation itself, and thus serve well as a comprehensive practical guide to the HCCH. This will appeal to those who wish to gain a better understanding of the HCCH as an Organisation regardless of their familiarity with it. It may also benefit those who have been working with the Organisation for some time and wish to broaden or deepen their understanding further.

Finally, in addition to highlighting the successes of the HCCH, the aim has also been to critically analyse the organisation and its work. Much work has been done by the HCCH, but more is required, and the 35 Chapters reveal four underlying themes.

Theme I: Private international law and access to justice

The first underlying theme that can be observed throughout all contributions is how access to justice values increasingly underpin private international law. Just some examples include the call for enhanced access to documents in multiple languages; better use of technology to improve legal cooperation across borders; the need to enhance access to justice for consumers and international tourists; the impact of the right to a fair trial on access to justice for the employees of international organisations such as the HCCH; the bearing of fair trial rights on civil jurisdiction, such as through the doctrine of forum non conveniens; and ensuring access to justice for vulnerable sections of society.

In all those instances, access to justice is an important value, and in its various manifestations, starts to underpin and shape the development of private international law. This is a positive development. Private international law ought to be more than mere technical rules but should be driven by underlying tangible values that have great practical importance. Access to justice is a laudable tangible value, recognised in Sustainable Development Goal 16 of the UN. Private international law, and in particular the HCCH, could play a significant role in providing and strengthening access to justice at an international level. And there is some indication that the Organisation appreciates that it indeed can play this role, hinting at it in its most recent HCCH Strategic Plan 2019 – 2020. However, its appreciation is limited and mentioned only in the context of the HCCH’s non-normative work.[1] Based on the discussions in the Companion, it seems that the HCCH could – and should – pursue a comprehensive access to justice agenda across its entire normative and non-normative work programme with much more vigour than is currently the case.

Theme II: the interaction between public and private international law

Another theme underpinning the Companion’s contributions is the increased interaction between public and private international law. This theme is discernible in many Chapters, including in those that deal with civil jurisdiction. It transpires that this area is one where public and private international law can especially inform each other. While this interaction is now subject to increased academic scrutiny, the same does not seem to be the case in practice. Thus, it seems important, that the HCCH pays more attention to public international law developments when pursuing its projects, especially in the sphere of the further work on the Judgments Project. Equally, such increased attention to the public realm could mean that the public realm is likely to return the favour, which is equally needed.

Moreover, the interaction between HCCH instruments and human rights treaties, such as the UNCRC and UNCRPD, was evident. With many HCCH international family law instruments concerned with child protection and the protection of other vulnerable persons, this interaction is hardly surprising. But clear interrelationships exist in other spheres as well. For example, modern work environments, which are radically shifting through remote work technology and flexible workplace, the HCCH could also work towards greater cooperation with other international organisations, such as the ILO, to assist in developing international labour standards that better protect the rights of weaker parties, including the rules on civil jurisdiction in employment cases.

Theme III: Hard and soft law instruments

A third theme that emerged was the HCCH’s willingness to adopt soft law instruments as opposed to only facilitate the negotiation of binding international agreements or HCCH Conventions. There is no better example of this than the adoption of the 2015 Choice of Law Principles, which promote party autonomy.

With party autonomy perhaps now constituting a recognised connecting factor in private international law, as is also evident with the adoption of the 2005 Choice of Court Convention underpinned by this same connecting factor, the HCCH has no doubt made an important stride to embrace the potential of soft law instruments to achieve international consensus. Following the adoption of the 2019 Judgments Convention, which was decades in the making, and only successfully negotiated after the failures of the past were recognised, rectified, and compromises made, perhaps soft law instruments could be pursued with greater energy by the HCCH. Ultimately, it will be the experience of the 2015 Choice of Law Principles that will dictate whether more soft law instruments are negotiated under the umbrella of the HCCH.

Theme IV: multilateralism

A fourth theme that emerged is perhaps more subtle: multilateralism. The Companion recalls that the founder of the HCCH, T M C Asser, conceived the first Conference in 1893 not only as a platform which develops unified rules of private international law, but also as a forum in which experts come together and develop these rules in a peaceful and professional setting. This goal has not changed, and multilateral expertise is combined to forge innovative legal solutions to the vexed challenges of a globalized world. And these solutions are adopted by consensus, the decision-making technique which lies at the very heart of the HCCH.

When dealing with the Organisation, it is important to appreciate that it decides on every aspect of its work programme and budget by reaching to the furthest extent possible consensus among its Members.[2] This consensus-based approach has been chosen not without reason. While much effort may be exerted to achieve consensus, and achieving it may take longer, consensus-based decision making ensures the maximum buy-in of the Members in the outcomes produced by the HCCH. This buy-in becomes very clear in the Organisation’s premier decision-making bodies, the Diplomatic Sessions, which adopt the HCCH’s multilateral Conventions; the Council on General Affairs and Policy (CGAP), the “engine room” which determines the Organisation’s annual work programme; and the Council of Diplomatic Representative (CDR), which takes important financial and budgetary decisions. A common saying in all bodies, but also in Working and Experts’ Groups, is: nothing is agreed, until everything is agreed; and everything is agreed by consensus.[3]

This consensus-based approach to the multilateral work of the HCCH has been highly successful for the Organisation. It ensured that the development of private international law rules remained based on expertise and enjoys significant buy-in. But the HCCH is unlikely to be immune from the challenges to building consensus as experienced by other international organisations. Therefore, it will remain important for the HCCH to constantly review and, if necessary, to adapt its consensus-based approach to decision-making. This will be paramount so that the HCCH continues Asser’s vision that a peaceful and professional forum develops multilaterally unified private international law.

Final remarks

Overall, and despite some regions not yet as connected to the HCCH as they perhaps should be, the HCCH is now a global organisation for the unification of private international law. It is the world organisation for legal cooperation. It is 127 years old and going strong. The HCCH is highly relevant and important in an increasingly internationalised world. It is no doubt an organisation with a bright future. At a time when we are witnessing a pushback against multilateralism, the HCCH is an admirable example of the value of international cooperation and how international organisations can improve the day-to-day lives of people and enhance certainty and predictability for cross-border trade and commerce.

However, as the Companion makes apparent, while much has been done, more is required. The editors hope that the Companion will be a contribution to the understanding of the HCCH and the development of the Organisation as well as of private international law.

[1] A possible connection of the non-normative work of the HCCH is not a strategic priority of the HCCH per se but is mentioned in the Context to Strategic Priority 2. See HCCH, Strategic Plan of the HCCH 2019 – 2022 (2019) 5, <https://assets.hcch.net/docs/bb7129a9-abee-46c9-ab65-7da398e51856.pdf> accessed 30 April 2020.

[2] See Statute of the HCCH, Article 8(2) and Rules of Procedure of the HCCH, Rule II.H.3, available <https://www.hcch.net/en/governance/rules-of-procedure>.

[3] The Rules of Procedure of the HCCH have rules to support voting both at meetings, i.e. at Diplomatic Sessions, CGAP and CDR, as well as by distance. See Rules of Procedure of the HCCH, Rule II.H.4 and Rule II.I.6, available <https://www.hcch.net/en/governance/rules-of-procedure>. To the Editors’ knowledge, the HCCH has never taken a decision by vote at a meeting.

The Chinese villages win a lawsuit in China to repatriate a Mummified Buddha Statue hold by a Dutch Collector

—What Role has Private International Law Played?

By Zhengxin Huo, Professor of Law, China University of Polit’l Science and Law; Associate Member of International Academy of Comparative Law; Observer of the UNESCO 1970 Convention. Email: zhengxinh@cupl.edu.cn. The author would like to thank Dr. Meng YU for valuable comments.

1. Introduction

On 4 December 2020, the Sanming Intermediate People’s Court of China’s southeastern Province of Fujian rendered a judgment ordering the Dutch defendants to return a stolen 1,000-year-old Buddhist mummy, known as the statue of Zhanggong-zushi, to its original owner: two village committees in the Province within 30 days after the verdict comes into effect. [1]

This is the first time in history that a Chinese court seized jurisdiction over a case filed by Chinese plaintiffs to repatriate a stolen cultural property illicitly exported. Once published, the judgment has aroused immediate attention both at home and abroad. Given the enormous quantity of Chinese cultural property stolen and illegally exported overseas, the potential influence of the judgment can hardly be overstated. This note focuses on the major legal issues that the Chinese judgment dealt with and attempts to analyse the role of private international law that has played.

 

2. Summary of Facts

Oscar Van Overeem, a Dutch architect, purchased a Buddhist statue for 40,000 Dutch guilders (US $20,500) in 1996 from a collector in Amsterdam who had acquired it in Hong Kong. In 1996, Van Overeem contacted a restorer to repair some chips and cracks in the exterior. When the restorer opened the bottom of the statue, he found two small pillows, and resting on the pillows, the body of a mummified monk. Initial radiocarbon testing found that the body was approximately 900-1000 years old. The statue was taken to the Meander Medical Center in Amersfoort, where a full CT scan was performed and samples taken through endoscopy. The investigative team found scraps of paper on which Chinese characters were written, placed inside the body in the cavities normally containing organs. These identified the Buddhist mummy as the mummy of a monk known as “Zhanggong-zushi”.

 

In 2014, Van Overeem loaned the statue to the Drents Museum in Assen for an exhibition, “Mummy World,” which traveled to the Hungarian Natural History Museum in the spring of 2015. Press reporting on the Hungarian exhibition alerted the Chinese villagers. Based on photographs from Hungary and archival materials in China, the Chinese villagers believe the statue is the one that have held the mummy of the village’s patriarch, Zhanggong Zushi. The statue was enshrined in the Puzhao Temple, jointly owned by the two villages named “Yunchun” and “Dongpu”, and worshiped by the local residents, for over 1,000 years until it went missing in December 1995.

 

After an unsuccessful negotiation, the Committee of Yunchun Village and the Committee Dongpu Village sued Van Overeem to demand the statue’s return both in Fujian Province of China and in Amsterdam of the Netherlands at the end of 2015,[2] fearing that a statute of limitation might bar their case. Three years later, the Amsterdam District Court made a decision on 12 December 12, 2018, [3] ending one chapter in the legal battle over the statue of Zhanggong-zushi, but failed to resolve a controversial situation or illuminate the path forward for the parties, as the Dutch court did not decide anything about the ownership of the parties.[4] It simply determined not to hear the case, based on its finding that the two village committees did not have standing to sue in the Dutch court.[5]

 

Against this background, the lawsuit before the Chinese court is more important in terms of legal analysis. According to the information released by the Sanming Intermediate People’s Court (the Court), it formally filed the case on 11 December 2015, which then served the Dutch defendants by international judicial cooperation. The Court, thereafter, held the hearings on 26 July and 12 October of 2018 respectively, and publicly pronounced the judgement on 4 December 2020.[6] Lawyers of both sides were present both at the hearings and the pronouncement of the judgement. From the perspective of private international law, the following two issues, among others, are particularly worth of concern:

 

(1) Jurisdiction: The Court exercised the jurisdiction over the dispute because the Dutch defendants did not raise an objection to its jurisdiction who responded to the action timely.[7]

(2) Application of Law: Based on the interpretation of “the lex rei sitae at the time that the legal fact occurred” in Article 37 of the Private International Law Act, the Court held that Chinese law, rather than Dutch law, shall govern the ownership of the statue.[8]

 

3. The Jurisdiction of the Chinese Court: Prorogated Jurisdiction

Jurisdiction is the first issue that the Court had to consider when it dealt with the dispute. Under the Civil Procedure Law of China (CPL), the general rule of territorial jurisdiction is that a civil action shall be brought in the People’s Court of the place in which the defendant is domiciled subject to various exceptions grouped together under the title of “special jurisdictions”.[9] As the defendants in the present case are domiciled in the Netherlands,[10] the jurisdiction of the Court depended on “special jurisdictions” among which the jurisdiction on actions on contractual disputes or disputes over property rights is most relevant.

 

In international civil litigation, many cases involve a foreign defendant not domiciled or residing within China. Given the importance of some of such cases, the CPL empowers Chinese courts the jurisdiction over actions involving contract disputes or disputes over property rights against a non-resident defendant if certain conditions are satisfied. Article 265 of the CPL prescribes the following:[11]

In the case of an action concerning a contract dispute or other disputes over property rights and interests, brought against a defendant who has no domicile within the territory of the People’s Republic of China, if the contract is signed or performed within the territory of the People’s Republic of China, or if the object of the action is located within the territory of the People’s Republic of China, or if the defendant has distrainable property within the territory of the People’s Republic of China, or if the defendant has its representative office within the territory of the People’s Republic of China, the People’s Court of the place where the contract is signed or performed, or where the object of the action is, or where the defendant’s distrainable property is located, or where the torts are committed, or where the defendant’s representative office is located, shall have jurisdiction.

 

Therefore, for actions concerning a dispute over property rights brought against a defendant who has no domicile in China, a Chinese Court may exercise jurisdiction if one of the following conditions are satisfied: (1) the property is located in China; (2) the defendant has distrainable property in China; (3) the tort was committed in China; (4)the defendant has its representative office in China.

 

In the case at hand, one can hardly argue that the Court has the jurisdiction under Article 265 of the CPL, as the statue is not located in China when the action was filed, nor did the defendants steal it or purchase it in China, nor do they have distrainable property or representative office in China. However, the Court ruled that its jurisdiction over the case was established pursuant to the prorogated jurisdiction under the CPL regime.

 

Prorogated jurisdiction under the CPL refers to situations where a party institutes proceedings in a court, and the other party implicitly acquiesces to the jurisdiction of that court by responding to the action and not raising an objection to the jurisdiction. That is to say, the defendant’s failure to object is understood as defendant’s consent to the Chinese court’s jurisdiction. Article 127 of the CPL provides as follows:[12]

Where a party raises any objection to jurisdiction after a case is accepted by a people’s court, the party shall file the objection with the people’s court during the period of submitting a written statement of defense. The people’s court shall examine the objection. If the objection is supported, the people’s court shall issue a ruling to transfer the case to the people’s court having jurisdiction; or if the objection is not supported, the people’s court shall issue a ruling to dismiss the objection. Where a party raises no objection to jurisdiction and responds to the action by submitting a written statement of defense, the people’s court accepting the action shall be deemed to have jurisdiction, unless the provisions regarding tier jurisdiction and exclusive jurisdiction are violated.

 

Since the defendant’s failure to object constitutes consent to jurisdiction, it is imperative that defendants, foreign defendants in particular, raise a timely jurisdictional objection. Under Article 127 of the CPL, if a party to a civil action objects to the jurisdiction of a People’s Court, the objection must be raised within the time period prescribed for the filing of answers. According to Articles 125 and 268, defendant shall have fifteen days, or thirty days if residing outside the territory of China, to file his answer upon receipt of plaintiff’s complaint. Thus, if a defendant wants to challenge the People’s Court’s jurisdiction, he must do so within this statutory fifteen-day or thirty-day period.[13]

 

It should be noted that the Dutch defendants in the present case did not raise objection to the jurisdiction of the Court; instead, they had responded to the lawsuit by submitting a written statement of defense represented by two Chinese lawyers, to the surprise of many observers. Hence, jurisdiction of the Court over this case was established under the prorogated jurisdiction of the CPL in an unexpected manner.

 

4. Choice of Law Issue: Lex Rei Sitae = Lex Furti?

One of the most widely accepted and significant rules of private international law today is that, in determining property rights, a court applies lex rei sitae. This rule has been accepted by Chinese private international law, though party autonomy is placed before lex rei sitae by Article 37 of the Private International Law Act. Given that it is very rare that the parties reach agreement on the applicable law after the dispute over the property has occurred, the lex rei sitae plays a de facto decisive role.

 

However, the question of application of the lex rei sitae in specific cases remains open out of diverse possible interpretations of the rule. From the perspective of comparative law, it can be found that many jurisdictions, say England, prefer to apply the law of the place of last transaction,[14] while others, say France, apply the law of place where goods are located at the time of the litigation.[15] As far as China is concerned, its courts has never clarified the meaning of the lex rei sitae in Article 37 of the Private International Law Act; therefore, the outcome of the present action was entirely dependent on the interpretation of this article.

 

The Chinese plaintiffs commenced the action for recover of the stolen statue by arguing, among other things, that they are its owners because bona fide acquisition does not apply to stolen cultural property under the Property Law of China. The Dutch defendants took the stand, claiming to have purchased the statue on good title under Dutch Civil Code. Thus, it had to be decided which of the two laws shall be used in the present case: whether Chinses law or Dutch law shall govern the ownership of the statue. The Court, by resorting to Article 37 of the Private International Law Act, held that title was to be determined by Chinese law.

 

However, the Court acknowledged that the statue was stolen and illicitly exported before the implementation of the Private International Law Act, therefore, it had to decide in the very beginning whether the Act is applicable to the present dispute. To determine the issue, the Court referred to Article 2 of the Judicial Interpretation on the the Private International Law Act issued by the Supreme People’s Court,[16] which states that:

As to a civil relationship involving foreign elements which occurred before the implementation of the Private International Law Act, People’s Court shall determine the governing law according to the choice-of-law rules effective at the time of the occurrence of such relationship. In case no choice-of-law rules existed at that time, the Private International Law Act may be resorted to in order to determine the applicable law.

 

Given the General Principles of Civil Law, the most significant and primary legislation on private international law in China before 2010, is silent on the law applicable to property right,[17] the Court decided it is proper to invoke the Private International Law Act to fill the lacunae pursuant to the above article. The Court then referred to Article 37 of the Private International Law Act of China which provides that “the parties may choose the law applicable to the real rights in movable property; in the absence of such choice, the lex rei sitae at the time when the legal fact occurred applies”.[18] As the parties in the case failed to reach agreement on the applicable law, the Court decided that the ownership of the statue shall be governed by the lex rei sitae at the time when the legal fact occurred.

 

With regard to the meaning of “the time when the legal fact occurred”, the Court stated that it pointed to the time when the statue was stolen, rather than the time when Oscar Van Overeem purchased it in Amsterdam. Summarising the conclusion, the judge stressed that the statue is a cultural property of great historic and religious significance, instead of an ordinary property. As the illicit traffic of cultural property usually creates a number of legal facts which inevitably leads to the proliferation of the lex rei sitae, including the law of the location of a cultural property had been stolen (lex furti), the law of the place of first transaction, the law of the place of last transaction, the law of the place of exhibition, the law of the location of a cultural property at the time of litigation, etc., the judge emphasised the need to spell out the lex rei sitae at the time when the legal fact occurred for the cases of recovering cultural property.

 

The Court stressed that when interpreting the lex rei sitae in a cultural property repatriation case, the object and purpose of international conventions of cultural property should be taken into consideration. It went on to highlight two conventions to which China is a contracting party: Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“the 1970 Convention”) and Convention on Stolen or Illegally Exported Cultural Objects (“the 1995 Convention”). As both those conventions are devoting to prohibiting the illicit trafficking of cultural property and facilitating the return of cultural property to its origin nations, the Court concluded that it should interpret the lex rei sitae at the time when the legal fact occurred in the light of their object and purpose.

 

Hence, the Court decided that the lex rei sitae at the time when the legal fact occurred should be understood as the lex furti, i.e., law of the location of a cultural property had been stolen, insofar as such interpretation favours the protection of cultural heritage and facilitates the return of cultural property illicitly trafficked, whereas the place of transaction not only favours the laundering of stolen cultural property but also adds considerable uncertainty to the question of title.

 

The Court then referred to the Property Law of China under which bona fide acquisition does not apply to stolen cultural property. Consequently, the Court ruled that the Chinese village committees retain the title of the statue and demanded the defendants to return it to plaintiffs.

 

5. Concluding Remarks

Under the CPL, judicial proceedings in China occur in two instances, namely, trial and appeal. Therefore, the Dutch defendants are entitled to appeal to the Higher People’s Court of Fujian Province within 30 days. If they do not appeal within the time limit, the judgment will become effective.

 

At the present stage, it is not clear whether the defendants will comply with the judgment or appeal, or simply ignore it. Though as a Chinese, I do hope that the Dutch defendants will return the statue as ordered by the Court; nevertheless, I am afraid that ignoring the Chinese judgment may be one of their reasonable options because of serious obstacles to recognize and enforce this Chinese judgment in the Netherlands.

 

In spite of the uncertainty ahead, one cannot overestimate the significance of this judgment. First of all, as noted in the very beginning, this is the first time that a Chinese court exercises the jurisdiction over case to recover a Chinese cultural property stolen and illicitly exported. Therefore, it is a historic judgment, no matter it will be enforced or not in the future.

 

Second, the Court in the judgement clarified for the first time that “lex rei sitae at the time when the legal fact occurred” in Article 37 of the Private International Law should be interpreted in the light of the object and purpose of the 1970 Convention and the 1995 Convention, so that the lex furti, i.e., Chinese law, shall govern the ownership of cultural property lost overseas. Given the huge number of Chinese cultural property stolen and illicitly exported abroad, the author believes the impact of the judgment is tremendous.

[1] The Committee of Yunchun Village and the Committee Dongpu Village v. Oscar Van Overeem, Design & Consultancy B.V. and Design Consultancy Oscar van Overeem B.V., the Sanming Intermediate People’s Court (2015) Sanmin Chuzi No. 626, Date of judgment: 4 December 2020.

[2] China villagers launch Dutch court bid to retrieve mummy, https://www.bbc.co.uk/news/world-europe-40606593, last visited on 8 December 2020.

[3] C/13/609408 / HA ZA 16-558, Court of Amsterdam, 12 December 2018, available at https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2018:8919, last visited on 8 December 2020.

[4] Chinese villagers disappointed about Dutch rejection of mummy Buddha repatriation case, http://www.xinhuanet.com/english/2018-12/14/c_137672368.htm, last visited on 8 December 2020.

[5] Uncertain Future for Golden Statue Holding Buddhist Mummy, https://culturalpropertynews.org/uncertain-future-for-golden-statue-holding-buddhist-mummy/, last visited on 8 December 2020.

[6] http://fjfy.chinacourt.gov.cn/article/detail/2020/12/id/5647265.shtml, last visited on 8 December 2020.

[7] The Committee of Yunchun Village and the Committee Dongpu Village v. Oscar Van Overeem, Design & Consultancy B.V. and Design Consultancy Oscar van Overeem B.V., the Sanming Intermediate People’s Court (2015) Sanmin Chuzi No. 626, Date of judgment: 4 December 2020, p.21.

[8] Id,. at pp. 24-35.

[9] Zhengxin Huo, Private International Law (2017), pp.148-151.

[10] The defendants are Oscar Van Overeem, Design & Consultancy B.V. and Design Consultancy Oscar van Overeem B.V.

[11] Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] art. 265 (1991, revised in 2017) (PRC).

[12] Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] art. 127 (1991, revised in 2017)(PRC).

[13] Zhengxin Huo, Private International Law (2017), p.157.

[14] E.g., Winkworth v. Christie’s Ltd.[1980] 1 Ch. 496.

[15] Stroganoff-Scerbatoff v. Bensimon, 56 Rev. crit. De dr. int. privé(1967).

[16] See Zhengxin Huo, ‘Two Steps Forward, One Step Back: A Commentary on the Judicial Interpretation on the Private International Law Act of China’ (2013) 43 HKLJ 685, 710.

[17] The General Principles of Civil Law was adopted at the Fourth Session of the Sixth National People’s Congress on April 12, 1986, coming into force on January 1, 1987. It was abolished on January 1, 2021 when the Civil Code of the PRC took effect. For a quite a long period, the GPCL was the most important source of Chinese private international law. Structurally, the GPCL has devoted an entire chapter to regulating the conflict of laws (i.e., Chapter Eight, Application of Laws to Civil Matters Involving Foreign Elements), where nine conflict rules can be found.

[18] Zhonghua Renmin Gongheguo Shewai Minshi Falvguanxi Shiyongfa [Act on the Application of Laws over Foreign-related Civil Relationships] art. 37 (2010) (PRC).

 

 

 

 

 

 

Guest post by Franz Kaps, Attorney at law at DLA Piper, Frankfurt am Main

The resurgence of COVID-19 (Coronavirus) cases has been observed in countries around the world after COVID-19 outbreaks were successfully curbed earlier this year. To flatten the curve of the second wave of the pandemic governments again closed “non-essential businesses”, restricted travel and imposed “lockdowns” and “stay-at-home orders”. Beyond the health and human tragedy of the pandemic, it caused the most serious economic crisis since World War II, which also affected commercial contracts. In cases where the COVID-19 virus or government measures have affected commercial contracts, it is necessary to carefully analyse the state of affairs to determine the appropriate remedy.

The ICC Force Majeure Clause

Whether a force majeure clause is applicable in a particular case, and what its consequences would be, depends primarily on the wording of the clause. Courts have held that force majeure clauses are to be interpreted in a narrow sense and that performance under a contract is ordinarily excused only if the event preventing performance is explicitly mentioned in the force majeure clause. However, the state-of-the-art ICC Force Majeure Clause (Long Form) 2020 in Paragraph 3 (e) only presumes an epidemic to be a force majeure event but does not cover pandemics such as COVID-19. The difference between an epidemic and a pandemic is that an epidemic is a disease happening in a particular community. A pandemic, in contrast, is a disease that spreads over a whole country or the whole world. Due to its global spread, COVID-19 is classified as a pandemic.

In order to invoke the force majeure defence Paragraph 1 ICC Force Majeure Clause additionally requires that the party affected by the impediment proves that the following three conditions are met:

1. the impediment is beyond its reasonable control; and
2. the impediment could not reasonably have been foreseen at the time of the conclusion of the contract; and
3. the effects of the impediment could not reasonably have been avoided or overcome by the affected party.

The events enumerated in Paragraph 3 ICC Force Majeure Clause which are presumed to fulfil conditions a) and b) under Paragraph 1 ICC Force Majeure Clause do not explicitly cover pandemics. Consequently, a party claiming a force majeure defence as a result of the COVID-19 pandemic must prove all three conditions.

Whether the impact and governmental measures triggered by COVID-19 are beyond the reasonable control of the parties depends on the specifics of each case. In many cases of mandatory governmental measures it will be relatively straight-forward for a party to argue this successfully.

With regard to the second condition – the reasonable foreseeability of the COVID-19 pandemic according to Paragraph 1 (b) ICC Force Majeure Clause – the point in time when the parties have concluded their contract is crucial. In October 2019, the effects of COVID-19 were less foreseeable than in December 2019, and in any case, as of March 2020, it was at least foreseeable that the COVID-19 virus would in some way interfere with the performance of contractual obligations.

In 2020, countries adopted differentiated approaches to combat the COVID-19 pandemic. These approaches included stay-at-home orders, travel restrictions, closure of non-essential businesses and lockdowns. It is also not yet possible to foresee which government measures will be taken to ensure a flatter curve for the second COVID-19 wave in winter of 2020 and beyond. This is particularly true as countries previously known for their laid-back COVID-19 policies are currently considering changing their policies and are willing to adopt stricter measures in response to the second wave of the COVID-19 virus. Sweden, for example, which was known for its special path without restrictions, mandatory requirements to wear masks, or lockdowns, has now introduced COVID-19 restrictions to contain the spread of COVID-19 and does not rule out local lockdowns. In the US, too, it is very probable that tougher COVID-19 measures will be implemented by the government at the latest when President-elect Biden takes office in January 2021.

Besides government COVID-19 measures, it is difficult for the parties to foresee specific effects of the COVID-19 virus on global supply chains and the performance of their obligations.

With regard to the second wave or further waves of the COVID-19 pandemic, it is therefore difficult for a party to foresee the exact impact of the Covid-19 virus in the individual countries and the various measures taken by the respective governments.

The third requirement under Paragraph 1 ICC Force Majeure Clause, that the effects of the impediment could not reasonably have been avoided or overcome by the affected party, again lacks legal certainty and is subject to the specificities of the case at hand – particularly regarding the reasonable remedies available to the party to eliminate and overcome the consequences of the COVID-19 pandemic.

Only if the conditions set out above are fulfilled can a party successfully invoke the force majeure defence pursuant to Paragraph 5 ICC Force Majeure Clause and be relieved from its duty to perform its contractual obligations and from any liability in damages or from any other contractual remedy for breach of contract.

State-of-the-Art Force Majeure Clause

This legal uncertainty regarding the impact of COVID-19 under the modern ICC Force Majeure Clause as well as under other force majeure clauses requires parties to first clarify whether their clause generally covers pandemics. Secondly, in light of the second wave of COVID-19, parties should consider amending their force majeure clauses to include or exclude the novel COVID-19 pandemic as a force majeure event in order to provide legal certainty as to whether a contract must be performed and whether a damage claim for non-performance of contractual obligations exists.

When pandemics are included in a force majeure clause as a force majeure event, an affected party under Paragraph 3 ICC Force Majeure Clause needs only to prove that the effects of the impediment could not reasonably have been avoided or overcome. Parties should therefore consider reviewing and updating their clauses and contemplate including pandemics as a force majeure event. In our globalised world, the next pandemic will spread sooner or later – therefore a lege artis force majeure clause must cover pandemics as a force majeure event. Where a pandemic is included in a force majeure clause, parties should refer to an objective criterion such as a pandemic declared by the World Health Organization to define when pandemics trigger the force majeure consequences. By linking a pandemic to such an objective criterion, disputes as to whether a pandemic in the sense of the force majeure clause exists can be avoided.

Besides updating their force majeure clause parties should consider temporarily modifying their clauses in light of the current second wave of the COVID-19 virus. Parties, when amending their force majeure clause, may decide either to introduce a clause ensuring that effects and governmental measures due to the ongoing COVID-19 pandemic are not covered by their clause, or opt for a clause encompassing the current COVID-19 pandemic. Which option a party should select is a policy question and depends on the characteristics of the case. A party affected by the COVID-19 pandemic in the performance of its contractual obligations – because, for example, it depends heavily on international supply chains easily disrupted by the effects of the COVID-19 pandemic – should, on the one hand, ensure that the parties incorporate a force majeure clause encompassing the COVID-19 pandemic as a force majeure event. On the other hand, if the risk of non-performance of contractual obligations as a result of the COVID-19 virus is primarily in the risk sphere of the other party, a party may contemplate excluding the COVID-19 pandemic from the scope of the force majeure clause. In any case, a good starting point for future “tailor-made” force majeure clauses – which take into account the parties’ specific needs – is the balanced ICC Force Majeure Clause.