Conflictoflaws

Dr. João Ribeiro-Bidaoui (First Secretary at the Hague Conference on Private International Law) has posted a compelling answer on the Kluwer Arbitration Blog to the debate sparked by Prof. Gary Born’s criticism in a series of posts published on the same Blog (see Part I, Part II, and Part III). First Secretary Ribeiro-Bidaoui’s response is masterfully crafted in drawing the boundaries between equally valuable and essential instruments, and certainly constitutes a most welcome contribution.

For further commentary on these exchanges, see also on the EAPIL Blog, here.

The latest issue of RabelsZ is out. It contains the following articles:

Kai-Oliver Knops: Die unionsrechtlichen Voraussetzungen des Rechtsmissbrauchseinwands – am Beispiel des Widerrufs von Verbraucherdarlehens- und Versicherungsverträgen (The Requirements of EU Law on Abuse of Law and Abuse of Rights – the Example of the Right to Withdraw from Credit Agreements and Insurance Contract), Volume 85 (2021) / Issue 3, pp. 505-543 (39), https://doi.org/10.1628/rabelsz-2021-0023

In the European Union, it is apparently only in Germany that withdrawals by consumers and policy-holders are often rejected as invalid and abusive. Mostly it is argued that an objection of abuse is subject to national law and that application of the principle of good faith is a matter for the judge alone. In fact, the jurisprudence of the Court of Justice of the European Union sets strict limits on the objection of abuse and requires special justification, which the national legal system must comply with in accordance with the primacy of European Union law. Under EU law, withdrawal from consumer loans and insurance contracts will be vulnerable to an objection of legal abuse only in very exceptional cases and by no means as a rule.

 

Bettina Rentsch: Grenzüberschreitender kollektiver Rechtsschutz in der Europäischen Union: No New Deal for Consumers (Cross-Border Collective Redress: No New Deal for Consumers), Volume 85 (2021) / Issue 3, pp. 544-578 (35), https://doi.org/10.1628/rabelsz-2021-0024

The recently adopted Directive on representative actions marks the beginning of a new era for collective redress in the European Union. However, applying the Brussels Ia and Rome Regulations for questions regarding jurisdiction, recognition, enforcement and the applicable law entails jurisdictional and choice-of-law-related problems inherent in cross-border aggregate litigation as such: European private international law, including its rules on jurisdiction and enforcement, is designed for bipartisan proceedings and thus shows a variety of inconsistencies, deficits and contradictions when faced with collective redress. Moreover, applying a multitude of laws to a single collective proceeding generates prohibitive costs for the plaintiff side, while generating economies of scale on the defendant side. It is unlikely that the parties to collective proceedings will enter a subsequent choice of law agreement to reduce the number of applicable laws.

 

Frederick Rieländer: Der »Vertragsabschlussschaden« im europäischen Deliktskollisions- und Zuständigkeitsrecht (Locating “Unfavourable Contracts” in European Private International Law), Volume 85 (2021) / Issue 3, pp. 579-619 (41), https://doi.org/10.1628/rabelsz-2021-0025

The inconsistent case law of the ECJ concerning the task of locating pure economic loss, for the purposes of Art. 7 No. 2 Brussels Ibis Regulation and Art. 4 para. 1 Rome II Regulation, is characterisedby the absence of a careful theoretical analysis of the protective purposes of the relevant liability rules. In this article, it is submitted that in the voluminous category of cases where a party has been induced into entering an unfavourable contract with a third party, “damage” for the purposes of Art. 7 No. 2 Brussels Ibis Regulation and Art. 4 para. 1 Rome II Regulation generally occurs at the moment when the victim is irreversibly bound to perform its obligation to the third party, whilst it is immaterial whether and, if so, where the contract is performed. Although the locus contractus appears to be the most appropriate connecting factor in the majority of the relevant cases of misrepresentation – particularly for the purpose of tying prospectus liability to the market affected – it needs to be displaced, for instance, in those cases where consumers are lured into purchasing faulty products abroad by fraudulent misrepresentations on the part of the manufacturer.

 

Raphael de Barros Fritz: Die kollisionsrechtliche Behandlung von trusts im Zusammenhang mit der EuErbVO (The Treatment of Trusts under the European Succession Regulation), Volume 85 (2021) / Issue 3, pp. 620-652 (33), https://doi.org/10.1628/rabelsz-2021-0026

Few legal institutions cause more difficulties in the context of the European Succession Regulation (ESR) than trusts. There is, for instance, hardly any agreement on the scope of the exception created for trusts in Art. 1 para. 2 lit. j ESR. There is also widespread support in academic literature for the application of Art. 31 ESR to trusts, although neither the precise contours of this enigmatic provision nor its exact functioning in connection with trusts has yet been established. The present article addresses, therefore, the question of how trusts are to be treated within the ESR. In particular, it will be shown how Art. 1 para. 2 lit. j ESR is to be understood against the background of Recital 13. In addition, the question will be raised as to what extent Art. 31 ESR has any importance at all in connection with trusts.

 

Written by Jingru Wang, Wuhan University Institute of International Law

 

1.Background

Three days after its low-key listing in the US on 30 June 2021, Didi Chuxing (hereinafter “Didi”) was investigated by the Cyberspace Administration of China (hereinafter “CAC”) based on the Chinese National Security Law and Measures for Cybersecurity Review.[1] Didi Chuxing as well as 25 Didi-related APPs were then banned for seriously violating laws around collecting and using personal information,[2] leading to the plummet of Didi’s share. On 16 July 2021, the CAC, along with other six government authorities, began an on-site cybersecurity inspection of Didi.[3] The CAC swiftly issued the draft rules of Measures for Cybersecurity Review and opened for public consultation.[4] It proposed that any company with data of more than one million users must seek the Office of Cybersecurity Review’s approval before listing its shares overseas. It also proposed companies must submit IPO materials to the Office of Cybersecurity Review for review ahead of listing.

It is a touchy subject. Didi Chuxing is a Beijing-based vehicle for hire company. Its core business bases on the accumulation of mass data which include personal and traffic information. The accumulated data not only forms Didi’s unique advantage but also is the focus of supervision. The real concern lays in the possible disclosure of relevant operational and financial information at the request of US securities laws and regulations, which may cause data leakage and threaten national security. Therefore, China is much alert to information-based companies trying to list overseas.

The overseas listing of China-related companies has triggered regulatory conflicts long ago. The Didi event only shows the tip of an iceberg. This note will focus on two issues: (1) China’s supervision of red-chip companies’ overseas listing; (2) the conflicts between the US’s demand for disclosure and China’s refusal against the US’s extraterritorial jurisdiction.

 

2. Chinese supervision on red-chip companies’ overseas listing

A red-chip company does most of its business in China, while it is incorporated outside mainland China and listed on the foreign stock exchange (such as New York Stock Exchange). Therefore, it is expected to maintain the filing and reporting requirements of the foreign exchange. This makes them an important outlet for foreign investors who wish to participate in the rapid growth of the Chinese economy. When asking Chinese supervision on red-chip companies listed overseas, such as Didi, the foremost question is whether the Chinese regulatory authority’s approval is required for them to launch their shares overseas. It is uneasy to conclude.

One reference is the Chinese Securities Law. Article 238 of the original version of the Chinese Securities Law provides that “domestic enterprises issuing securities overseas directly or indirectly or listing their securities overseas shall obtain approval from the securities regulatory authority of the State Council following the relevant provisions of the State Council.” This provision was amended in 2019. The current version (Art. 224 of the Chinese Securities Law) only requires the domestic enterprises to comply with the relevant provisions of the State Council. The amendment indicated that China has adopted a more flexible approach to addressing overseas listing. Literally, the securities regulatory authority’s approval is no longer a prerequisite for domestic enterprises to issue securities overseas.

When it comes to Didi’s listing in the US, a preliminary question is the applicability of such provision. Art. 224 is applied to “domestic enterprise” only. China adopts the doctrine of incorporation to ascertain company’s nationality.[5] According to Article 191 of the Chinese Company Law, companies established outside China under the provisions of foreign law are regarded as foreign companies. Didi Global Inc. is incorporated in the state of Cayman Islands, and a foreign company under the Chinese law. In analogy, Alibaba Group Holding Ltd., another representative red-chip enterprise, had not obtained and not been required to apply for approval of the Chinese competent authority before its overseas listing in 2014. A Report published by the Chinese State Administration of Foreign Exchange specifically pointed out that “domestic enterprises” were limited to legal persons registered in mainland China, which excluded Alibaba Group Holding Ltd., a Cayman Islands-based company with a Chinese background.[6]

In summary, it is fair to say that preliminary control over red-chip enterprise’s overseas listing leaves a loophole, which is partly due to China’s changing policy. That’s the reason why Didi has not been accused of violating the Chinese Securities Law but was banned for illegal accumulation of personal information, a circumvent strategy to avoid the possible information leakage brought by Didi’s public listing. Theoretically, depends on the interpretation of the aforementioned rules, the Chinese regulatory authority may have the jurisdiction to demand preliminary approval. Based on the current situation, China intends to fill the gap and is more likely to strengthen the control especially in the field concerning data security.

 

3. The conflict between the US’s demand for audit and China’s refusal against the US’s extraterritorial jurisdiction

Another problem is the conflict of supervision. In 2002, the US promulgated the Sarbanes-Oxley Act, under which the Public Company Accounting Oversight Board (hereinafter “PCAOB”) was established to oversee the audit of public companies. Under the Sarbanes-Oxley Act, wherever its place of registration is, a public accounting firm preparing or issuing, or participating in the preparation or issuance of, any audit report concerning any issuer, shall register in the PCAOB and accept the periodic inspection.[7] The PCAOB is empowered to investigate, penalize and sanction the accounting firm and individual that violate the Sarbanes-Oxley Act, the rules of the PCAOB, the provisions of the securities laws relating to the preparation and issuance of audit reports and the obligations and liabilities of accountants. Opposed to this provision (although not intentionally), Article 177 of the Chinese Securities Law forbids foreign securities regulatory authorities directly taking evidence in China. It further stipulates that no organization or individual may arbitrarily provide documents and materials relating to securities business activities to overseas parties without the consent of the securities regulatory authority of the State Council and the relevant State Council departments. Therefore, the conflict appears as the US requests an audit while China refused the jurisdiction of PCAOB over Chinese accountant companies.

It is suspected that despite the PCAOB’s inofficial characteristic, information (including the sensitive one) gathered by the PCAOB may be made available to government agencies, which may threaten the national security of China.[8] Consequently, China prevents the PCAOB’s inspection and some of Chinese public accounting firm’s application for registration in the PCAOB has been suspended.[9] In 2013, the PCAOB signed a Memorandum of Understanding with Chinese securities regulators that would enable the PCAOB under certain circumstances to obtain audit work papers of China-based audit firms. However, the Memorandum seems to be insufficient to satisfy the PCAOB’s requirement for supervision. The PCAOB complained that “we remain concerned about our lack of access in China and will continue to pursue available options to support the interests of investors and the public interest through the preparation of informative, accurate, and independent audit reports.”[10] After the exposure of Luckin Coffee’s accounting fraud scandal, the US promulgated the Holding Foreign Companies Accountable Act in 2020. This act requires certain issuers of securities to establish that they are not owned or controlled by a foreign government. Specifically, an issuer must make this certification if the PCAOB is unable to audit specified reports because the issuer has retained a foreign public accounting firm not subject to inspection by the PCAOB. If the PCAOB is unable to inspect the issuer’s public accounting firm for three consecutive years, the issuer’s securities are banned from trade on a national exchange or through other methods.

China has made “national security” its core interest and is very prudent in opening audit for foreign supervisors. From the perspective of the US, however, it is necessary to strengthen financial supervision over the public listing. As a result, Chinese enterprises have to make a choice between disappointing the PCAOB and undertaking domestic penalties. Under dual pressure of China and the US, sometimes Chinese companies involuntarily resort to delisting. This may not be a result China or the US long to see. In this situation, cooperation is a better way out.

 

4. Conclusion

China’s upgrading of its cybersecurity review regulation is not aimed at burning down the whole house. Overseas listing serves China’s interest by opening up channels for Chinese companies to raise funds from the international capital market, and thus contribute to the Chinese economy. The current event may be read as a sign that China is making provisions to strengthen supervision on red-chip companies’ overseas listing. It was suggested that the regulatory authority may establish a classified negative list. Enterprises concerning restricted matters must obtain the consent of the competent authority and securities regulatory authority before listing.[11] It is not bad news for foreign investors because the listed companies will undertake more stringent screening, which helps to build up an orderly securities market.

 

 

 

[1] http://www.cac.gov.cn/2021-07/02/c_1626811521011934.htm

[2] http://www.cac.gov.cn/2021-07/04/c_1627016782176163.htm; http://www.cac.gov.cn/2021-07/09/c_1627415870012872.htm.

[3] http://www.cac.gov.cn/2021-07/16/c_1628023601191804.htm.

[4] Notice of Cyberspace Administration of China on Seeking Public Comments on the Cybersecurity Review Measures (Draft Revision for Comment), available at: http://www.cac.gov.cn/2021-07/10/c_1627503724456684.htm

[5] The real seat theory is recommended by commentators, but not accepted by law. Lengjing, Going beyond audit disputes: What is the solution to the crisis of China Concept Stocks?, Strategies, Volume 1, 2021, p. 193.

[6] 2014 Cross-border capital flow monitoring report of the People’s Republic of China, available at: http://www.gov.cn/xinwen/site1/20150216/43231424054959763.pdf

[7] Sarbanes-Oxley Act, §102(a), §104 (a) & (b).

[8] Sarbanes-Oxley Act, §105 (b)(5)(B).

[9] https://pcaobus.org/Registration/Firms/Documents/Applicants.pdf

[10] China-Related Access Challenges, available at: https://pcaobus.org/oversight/international/china-related-access-challenges.

[11] https://opinion.caixin.com/2021-07-09/101737896.html.

The second issue of 2021 of Dutch PIL journal, including both English and Dutch language papers, has just been published.

 

It includes these papers:

K.C. Henckel, Rechtskeuze in het ipr-arbeidsrecht: enkele gedachten over het begunstigingsbeginsel / p. 251-273

This article discusses the preferential law approach that is enshrined in Article 8(1) Rome I Regulation. This provision limits the effects of a choice of law in the sense that the choice may not deprive the employee of the protection afforded to him by the mandatory provisions of the law that would have applied in the absence of a choice. It is generally accepted that the law that is most favourable to the employee merits application. The determination of this preferential law requires a comparison between the chosen law and the law that would have applied in the absence of such a choice. The article examines the method of comparison used throughout Dutch case law which shows that a preferential law approach is rarely applied. Instead, the majority of judgments apply the mandatory provisions of the objectively applicable, Dutch, law without further explanation. Since the application of the preferential law approach seems to be plagued by ambiguity, this article questions the desirability and practical feasibility of the comparison between the chosen law and the mandatory provisions of the law that would have applied in the absence of such a choice.

 

L.C.J. van Apeldoorn, Erkenning van internationale rechtspersonen in het Nederlandse privaatrecht / p. 274-291

This article examines the grounds for the recognition of the legal personality of international legal persons in Dutch private law, focussing in particular on foreign states and international organizations. Based on an analysis of the decision of the Dutch Hoge Raad (Supreme Court) in UNRRA/Daan, it is argued that the legal personality of international organizations is recognised by means of the (analogous) application of a rule, codified in Article 10:119 of the Dutch Civil Code, according to which the legal personality of a corporation depends on its personal law. When considering the personal law of international organisations, which is public international law including the terms of the founding treaty, decisive is not whether the organisation is an international legal person, but whether it is granted, on the basis of public international law, legal personality in the legal orders of its member states. The rule governing the recognition of the legal personality of international organisations is not applicable to foreign states because public international law does not imply or require that states are afforded legal personality in municipal law. Rather, it is argued, the legal personality of foreign states is recognised on the basis of an unwritten rule of Dutch private international law, originating in international comity, that attributes legal personality to foreign states. The application of this rule coincides in practice with the application of another rule also originating in comity, requiring as a matter of public international law that foreign states are granted standing to be party to legal proceedings before municipal courts.

 

Okoli, An analysis of the Nigerian Court of Appeal’s decisions on foreign choice of court agreements in the year 2020 / p. 292-305

In Nigeria valid commercial contracts between parties are treated as sacrosanct and binding by Nigerian courts. It is however uncertain (unlike in the European Union) whether a valid foreign choice of court agreement, which is a term of the parties’ contract, will be enforced by Nigerian courts. In this connection, the decisions of Nigerian courts are not consistent. Nigerian courts have applied three approaches to the enforcement of foreign choice of court agreements – ouster clauses, the Brandon test, and the contractual approach. This article analyses the approach of Nigerian appellate courts to the enforcement of foreign choice of court agreements in light of three Court of Appeal decisions delivered in the year 2020.

 

latest phds, summary: Stuij, Iura novit curia en buitenlands recht. Een rechtsvergelijkend en Europees perspectief (dissertatie Erasmus Universiteit Rotterdam, 2021) (samenvatting proefschrift) / p. 306-311

This contribution is a short summary of a PhD thesis defended at Erasmus School of Law on April 29th, 2021, on the legal maxim iura novit curia in relation to the application of foreign law in civil proceedings. The thesis is a result of a comparative research into Dutch, German and English law, as well as European law. It analyses, evaluates and recommends several approaches to the problem of foreign law in civil litigation. This contribution discusses, inter alia, the method of the thesis including its comparative approac

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

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

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

Austen Parrish
Indiana University Maurer School of Law

Day One
Wednesday, September 15

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

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

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

Day Two
Thursday, September 16

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

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

Day Three
Friday, September 17

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The full statement reads as follows:

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

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

 

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

Here is the table of contents:

 

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

 

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

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

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

15.15 Waiting room opens

15.30 Opening

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

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

15.45-16.00 Burkhard Hess (Max Planck Institute Luxembourg )

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

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

Digitisation and the development of Integrated Dispute Resolution

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

Trust and Quality in Civil Justice

16.30-16.45 Alan Uzelac (University of Zagreb)

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

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

 

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

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

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

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

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

A full table of contents is available here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

———-

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

Written by Ekaterina Pannebakker

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

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

 

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

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

The preliminary question reads as follows:

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

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

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

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

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

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

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

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

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

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

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

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

Please find here the complete programme.

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

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

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

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

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

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

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

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

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

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

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

 

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

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

 

W. Wurmnest: International Jurisdiction in Abuse of Dominance Cases

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

 

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

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

 

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

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

 

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

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

 

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

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

 

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

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

 

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

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

 

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

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