Conflictoflaws

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 EFFORTS Project tackles, notably, the Brussels Ibis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order. By investigating the implementation of these Regulations in the national procedural law of, respectively, Belgium, Croatia, France, Germany, Italy, Lithuania, and Luxembourg, the Project aims at enhancing the enforcement of claims through more efficient procedures, case management, and cooperation in cross-border disputes.

The first edition of the EFFORTS Newsletter was just issued and is available here.

Project JUST-JCOO-AG-2019-881802

With financial support from the Civil Justice Programme of the European Union

Applications are now open for three- to six-month legal internships at our Permanent Bureau in The Hague, for the period from July to December 2021.

Interns work with our legal teams in the areas of Family and Child Protection Law, Legal Cooperation, Dispute Resolution, Commercial and Financial Law. It’s a great way to gain practical experience, deepen your knowledge of private international law, and to understand how the HCCH functions.

Due to the current global situation and the associated travel limitations and restrictions, the Permanent Bureau of the HCCH may consider the possibility that internships be carried out remotely. Interns may also be eligible for a monthly stipend.

We encourage you to share this opportunity with law students and graduates within your networks.

Applications should be submitted by 2 April 2021. For more information, please visit the Internships section of the HCCH website.

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

The transdisciplinary research project on  gender and private international law, which held its kickoff meeting in November 2019 followed by a reading group in Hamburg, will now hold its (postponed) big workshop on May 6-7, 2021. Over the past two years we have worked to create a transdisciplinary field of study at the intersection of feminist and gender studies and private international law. The workshop will establish cross-teaching between disciplines. It will consist of discussion groups covering the pressing topics of transnational surrogacy, the interaction between Western and Islamic family law, and the transnational regulation of queer families. Cyra Choudhury (Florida International University), Susanne Gössl (Kiel), Vanja Hamzi? (SOAS London), Elisabeth Holzleithner (Vienna), and Nadjma Yassari (MPI Hamburg) have agreed to be the convenors.

If you are interested in joining us in May, please send your application by April 2, 2021 at gender@mpipriv.de. You can find the full Call for Applications here:.  For more information about the project, please visithttps://www.mpipriv.de/gender.https://www.mpipriv.de/michaels

Please don’t hesitate to contact us at gender@mpipriv.de if you have any further questions.

We look forward to seeing you at the workshop!

Ivana Isailovi? (University of Amsterdam) & Ralf Michaels (MPI Hamburg)

I am co-coordinating together with other African private international law experts (Richard Frimpong Oppong, Anthony Kennedy, and Pontian Okoli) an extended and in-depth version of this blog post and more topics, titled “Investing in English-speaking Africa: A private international law toolkit”, which will be the topic of an online Master Class at TMC Asser Institute on June 24-25, 2021.

Introduction

In  the year 2020, the Nigerian Court of Appeal delivered at least three decisions on choice of court agreements.[1] I discussed two of those cases in this blog here and here. In the first two decisions delivered this year, the Nigerian Court of Appeal gave full contractual effect to the parties’ choice of court agreement.[2] In other words, the Nigerian Court of Appeal interpreted the parties’ choice of court agreement strictly according to is terms as it would do to a contractual document between commercial parties.

In November 30 2020, the Nigerian Court of Appeal delivered a third decision where it declined to enforce a Commonwealth of Virginia (in USA) Choice of Court Agreement.[3] In this connection, the author is of the view that the Court of Appeal’s decision was delivered per incuriam. This is the focus of this comment.

Facts

In this case, the claimant/respondent commenced action at the Kaduna High Court with a writ of summons and statement of claim dated the 18th December, 2018 wherein it claimed against the defendant/appellant, the sum of $18,103.00 (USD) being due and unpaid software licensing fee owed by them by virtue of the agreement between the parties dated 12th day of June, 2013.

The defendant/appellant filed a conditional appearance along with a Statement of defence and counter affidavit. Its argument, inter alia, was that by virtue of Article 12 and 13 of their agreement, the Nigerian court had no jurisdiction in this case. The relevant portion of their agreement reads as follows:

“ARTICLE 12
GOVERNING LAW: The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, USA without regard to the principle of conflicts of any jurisdiction.”
“ARTICLE 13
With the exception of an action or suit for the Licensee’s failure to make any payment required hereunder when there was no suit or action arising under this Agreement may be brought more than one (1) year following the occurrence giving rise thereto. All suits and actions arising under this Agreement shall be brought in the Commonwealth of Virginia, USA and License hereby submits to the jurisdiction of the Courts of the Commonwealth of Virginia and the United States District Courts Sitting in Virginia.”

By a ruling delivered on the 11th December, 2019, the trial High Court entered judgment in favour of the claimant/respondent. The defendant/appellant appealed to the Nigerian Court of Appeal.

Decision

Though the Court of Appeal (Hussaini JCA) was of the view that the choice of court agreement in favour of the Commonwealth of Virginia (in USA) was clear and unambiguous and did not have any vitiating circumstances surrounding it (such as fraud), it unanimously held that it would not apply the principle of pacta sunt servanda (agreements between parties should be respected) in this case. It followed the obiter dictum of Oputa JSC which reads as follows:

“[Nigerian] Courts should not be 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 … Courts guard rather jealously their jurisdiction and even where there is an ouster clause of that jurisdiction by Statute it should be by clear and unequivocal words. If that is so, as is 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 a contract which does not rob the Court of its jurisdiction in favour of another foreign forum.”[4]

In applying this obiter dictum to the facts of the case, Hussaini JCA held as follows:

“By reason of Section 6(1)(2)(6)(b) of the Constitution of FRN, 1999 (as amended)  the judicial powers vested in the Courts “extend to all matters between persons or between Government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”. Consequently, no person or group of persons by their own private treaty or arrangements can agree to oust the jurisdiction and provisions vested in the Courts by the Constitution. Even where such clauses are put in place in or as a contract with international flavour to rob the Courts of the land of jurisdiction in favour of another foreign forum, the Courts of the land are obliged to apply the blue pencil rule to severe those clauses from the contract or ignore same by virtue of the Constitutional provision which confer on the Court, the jurisdiction and power to entertain those cases.
Talking about the jurisdiction of the Courts, the Court below, by virtue of Section 272 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) has jurisdiction to entertain cases such as recovery of debts, as in the instant case on appeal. It is for this reason that clauses in the likes of Articles 12 and 13 in the Article of the Agreement should be ignored when determining the rights and liabilities between the parties herein in matters such as this and the trial Court took the right approach when it discountenanced same to reach the conclusion that it did.
In any case, is it for the recovery of the sum of $18,103, (USD) only claimed by the Respondents, that parties herein are required, by that contract or agreement to submit themselves to a foreign forum in Virginia, USA for adjudication of their case, without consideration of the concomitant procedural difficulties attendant thereto, as for instance, of having to return the case to Nigeria, the place where the contract was concluded initially, to register the judgment obtained at that foreign forum, in Virginia, USA, to be enforced in Nigeria? I think the Courts in Nigeria, fully seized of the case, will in the exercise of its discretion refuse the request to refer the case to a foreign forum for adjudication. It is for all the reasons already expressed in this discourse that I hold the firm view that the trial Court was competent or is competent when it entertained and adjudicated over the recovery suit or action filed by the Respondent against the Appellant.”[5]

Comments

There are five comments that could be made about the Court of Appeal’s decision (Hussaini JCA) in A.B.U. v VTLS.[6] First, the Court of Appeal (Hussaini JCA) in A.B.U. v VTLS[7] followed Oputa JSC’s obiter dictum in Sonnar (Nig) Ltd v Partenreedri MS Norwind.[8] It should be stressed that Oputa JSC’s obiter dictum is not binding on lower courts according to the Nigerian common law doctrine of stare decisis. In addition, Oputa JSC’s obiter dictum was a concurring judgment. Indeed, the Supreme Court in Sonnar (supra) had unanimously given preference to the enforcement of a foreign jurisdiction clause except where strong cause is advanced to the contrary.[9] The majority of the Supreme Court did not treat it as an ouster clause. It is incongruous to hold, on the one hand, that the Nigerian court would hold parties to their bargain in enforcing a foreign jurisdiction clause except where strong cause is shown to the contrary, and on the other hand, treat a foreign jurisdiction clause as if it were an ouster clause. In Sonnar, the choice of court agreement was not enforced because strong cause was shown to the contrary – the proceedings would be time-barred in a foreign forum, and the claimant would not have access to justice.

Furthermore, the Nigerian Supreme Court in another case held that where a plaintiff sues in Nigeria in breach of a foreign jurisdiction clause, Nigerian law “requires such discretion to be exercised by granting a stay unless strong cause for not doing so is shown. The burden of showing such strong cause for not granting the application lies on the doorsteps of…the plaintiff.”[10] The Supreme Court in this case enforced the choice of court agreement and stayed the proceedings in Nigeria because the plaintiff did not file a counter affidavit to demonstrate strong reasons why the proceedings should not be heard in a foreign forum chosen by the parties.[11]

If the ratio decidendi in the Supreme Court cases in Sonar and Nika are applied to the recent Court of Appeal’s decision in A.B.U. v VTLS (supra), it is clear that the Court of Appeal (Hussaini JCA) reached its decision per incuriam. There was nothing in the judgment to demonstrate that the plaintiff provided strong reasons (such as time bar in a foreign forum) why the choice of court agreement in favour of the Commonwealth of Virginia (in USA) should not be enforced. The argument that the choice of court agreement is an ouster clause without more is not a strong reason not to enforce the choice of court agreement.

Second, a choice of court agreement in favour of another court does not mean the Nigerian court’s jurisdiction no longer exists (without jurisdiction) under the Nigerian constitution, as the Court of Appeal (Hussaini JCA) held in this case. Such jurisdiction exists, but it is up to the Nigerian court in exercise of its jurisdiction to decide whether or not to stay proceedings. This view is consistent with the Nigerian Supreme Court’s decisions in Sonar and Nika. The fact that such proceedings are stayed and not dismissed means that a Nigerian court’s jurisdiction is not ousted.

Third, some Nigerian judges confuse choice of court with choice of law. The Court of Appeal (Hussaini JCA) also fell into this error. The choice of the law of the Commonwealth of Virginia is not the same thing as choosing the courts of the Commonwealth of Virginia. For example, the Nigerian courts could assume jurisdiction and apply the law of the Commonwealth of Virginia.

Fourth, looking at the bigger picture, I generally acknowledge that the principle of pacta sunt servanda in enforcing choice of court agreements are aimed at enhancing the efficacy of business transactions and, legal certainty and predictability in international commercial litigation. However, I must point out that despite the Nigerian Supreme Court decisions on the point that hold that choice of court agreements should be enforced except there are strong reasons to the contrary, I am generally not in favour of Nigerian courts declining jurisdiction in international commercial litigation. It ultimate hurts the Nigerian economy (e.g. less job for Nigerian lawyers), hampers access to Nigerian justice, and does not help Nigerian judges in strengthening our legal system. What is the solution? I suggest that in the future the Nigerian Supreme Court should apply the test of “interest of justice” in determining whether or not it will enforce a choice of court agreement. Thus, all the circumstances of the case should be considered as to whether the interest of justice will be served if the choice of court agreement is enforced. I also suggest that in such cases where a choice of court agreement is enforced in Nigeria, a stay for a maximum of six months should be granted. If the claimant does not institute the case in the chosen foreign court within six months, Nigerian courts should assume jurisdiction. In addition, if it is sufficiently demonstrated that the chosen foreign forum later becomes inaccessible or impracticable for the claimant to sue, the Nigerian court should retain jurisdiction to handle such claims.

Sixth, Nigeria should consider ratifying the Hague Choice of Court Convention, 2005. This Convention will work better in Nigerian courts if litigation is made attractive for international commercial actors, so they can designate Nigerian courts as the chosen forum. Speed, efficiency, legal aid for poor and weaker parties, and integrity of the Nigeria’s system are some of the issues that can be taken into account in enhancing Nigeria’s status as an attractive forum for international commercial litigation.

Conclusion

The Nigerian Court of Appeal has delivered three reported decisions on choice of court agreements in the year 2020. The recent Court of Appeal’s decision in A.B.U. v VTLS (supra) was reached per incuriam because it is inconsistent with Nigerian Supreme Court decisions that hold that a choice of court agreement should be enforced except there are strong reasons to the contrary.

The Nigerian Supreme Court in the future should rise to the occasion to create new tests for determining if a choice of court agreement should be enforced in Nigeria. These tests should reconcile the needs of access to Nigerian justice on the one hand, and respecting the contractual agreements of parties to designate a foreign forum.

The Nigerian government should create the necessary infrastructure and requirements that will enable Nigeria effectively ratify and implement the Hague Convention on Choice of Court agreements, 2005.

[1] Kashamu v UBN Plc (2020) 15 NWLR (Pt. 1746) 90; Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699(CA); A.B.U. v VTLS (2020) LPELR-52142 (CA).

[2] Kashamu v UBN Plc (2020) 15 NWLR (Pt. 1746) 90; Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699(CA).

[3] A.B.U. v VTLS (2020) LPELR-52142 (CA).

[4](1987) 4 NWLR 520, 544 – 45, approving Lord Denning’s statement in The Fehmarn [ 1958 ] 1 All ER 333 , 335 . Cf. Conoil Plc v Vitol SA (2018) 9 NWLR 463, 489 (Nweze JSC) – “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.” See also LAC v AAN Ltd (2006) 2 NWLR 49, 81 (Ogunbiyi JCA as she then was).

[5]A.B.U. v VTLS (2020) LPELR-52142 (CA) 15 – 18.

[6] (2020) LPELR-52142 (CA),

[7] (2020) LPELR-52142 (CA),

[8](1987) 4 NWLR 520, 544 – 45

[9] Even Oputa JSC held thus: ‘Where a domestic forum is asked to stay proceedings because parties in their contract chose a foreign Court … it should be very clearly understood by our courts that the power to stay proceedings on that score is not mandatory. Rather it is discretionary which in the ordinary way, and in the absence of strong reasons to the contrary will be exercised both judiciously and judicially bearing in mind each parties right to justice ’ –Sonnar (supra) at 545 (emphasis added).

[10] Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509, 535 (Mohammed JSC, as he then was).

[11] Conoil Plc v Vitol SA (2018) 9 NWLR 463, 489 (Nweze JSC), 500-1 (Okoro JSC), 502 (Eko JSC).

Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (O19/13946847), involving more than one hundred scholars from all over the world.

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

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 3rd CPLJ Webinar on 16 April 2021, 3:00 – 5:15 pm (CET).

The programme reads as follows:

Chair:  Burkhard Hess (Director of the Max Planck Institute Luxembourg and CPLJ Editor)

3:00 pm  Oscar Chase (New York University)

Comparative Procedural Law and Culture

3:30 pm Discussion

4:00 pm Intermission

4:15 pm  Fausto Pocar (University of Milan)

Comparative Procedural Law: A View from Practice

4:45 pm Discussion

5:15 pm End of conference

The full programme is available here.

Participation is free of charge, but registration is required by 9 April 2021 via a short e-mail to events@mpi.lu.

(Image credits:  Rijksmuseum, Amsterdam)

by Fabrizio Marrella

Event: Brexit and International Business Law/ Brexit e diritto del commercio internazionale

When: 26 March 2021, at 14.30 CET

How: Free access upon enrolment by sending an email at  fondazione@ordineavvocatifirenze.eu  the contact person is: Ms. Giovanna Tello.

Working languages: English and Italian with no simultaneous translation.

Short description: Webinar on the most relevant legal profiles following the process following the Referendum of 23 June 2016, which led to BREXIT on 31 January 2020. The end of the transitional period on 31 December 2020 led to the Trade and Cooperation Agreement (“TCA”) of 24 December 2020 which avoided the “No Deal”. Since January 1st, 2021, the United Kingdom is no longer part of the EU’s customs and tax territory. The TCA creates a free trade area for goods without extra duties or quotas for products, but introduces new rules on rules of origin and labelling of Italian products exported to the United Kingdom as well as new rules for online international sales contracts. The TCA does not clearly regulate the area of financial services, nor it provides detailed regulation for automatic mutual recognition of professional qualifications. All in all, Brexit and TCA require an assessment of current and future international commercial contracts between EU and British companies as well as an evaluation of civil and commercial dispute resolution tools, including arbitration.

Here is the link : https://www.unive.it/data/agenda/3/47520

Prof. Fabrizio Marrella

Prorettore alle Relazioni internazionali e alla Cooperazione internazionale/ Vice Rector for International Relations and International Cooperation

Ordinario di Diritto Internazionale / Chair of International Law

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

On March 15th, 2021, at 5 pm (PT time – GMT 0), the Faculty of Law of the University of Lisbon will hold the conference “EU-Latin America trade and investment relations”. The conference is part of the Jean Monnet Network project “Building Rights and Developing Knowledge between European Union and Latin America – BRIDGE”.

Among the participants the Minister of State and Foreign Affairs of Portugal, the President of the European Parliament’s Delegation for relations with Brazil; the EU Ambassador to Brazil, the Undersecretary for Foreign Affairs of Mexico and a former Secretary of the Tribunal Permanente de Revisión del Mercosur.

A Workshop about the EU-Latin American trade and investment relations, will precede the conference (at 1 pm – PT time – GMT 0), with the presentation of the selected scientific papers from professors and researchers of nine different countries universities.

The Seminar will be held in Portuguese and Spanish, via zoom. For more information, click here.

by Felix M. Wilke, University of Bayreuth, Germany

Most readers of this blog will be well aware that, according to the ECJ, the “place of performance” of a contractual obligation within the meaning of Article 7(1)(a) Brussels Ibis is not a concept to be understood independently from national law. Rather, in order to determine this place, one must apply the substantive law designated by the forum’s conflict-of-law rules. The ECJ has held so for decades, starting with Tessili (Case C-12/76, ECLI:EU:C:1976:133, at 13). Recent decisions by the ECJ have led me to doubt that Tessili still is lex terrae Europaea, at least as far as contracts with some relation to a right in rem in immovable property are concerned. (And I am not alone: Just today, Marion Ho-Dac analyses this issue as well over at the EAPIL Blog.)

The applicability of Article 7(1)(a) Brussels Ibis in the context of co-ownership agreements

To begin with, it is necessary to establish what Article 7(1)(a) Brussels Ibis has to do with co-ownership agreements. Article 24(1) Brussels Ibis might appear to be the more natural jurisdictional rule in this context. But it does not suffice that a case has some connection to property law. Article 24(1) Brussels Ibis only applies if the action is based on a right in rem. The Court has been characterising rights as rights in rem independently from national law (a point I would agree with). The main feature of a right in rem is its effect erga omnes (Wirkung gegenüber jedermann; effet à l’egard de tous – see Case C-292/93, ECLI:EU:C:1994:241– Lieber, at 14). Thus, Art. 24(1) Brussels Ibis will not apply to a dispute concerning rights whose effect is limited to other co-owners and/or the association of co-owners. Rather, Article 7(1)(a) Brussels Ibis comes into play. The Court considers the corresponding obligations as freely consented to, as they ultimately arise from the voluntary acquisition of property, regardless of the fact that the resulting membership in the association of co-owners is prescribed by law (Case C-25/18, ECLI:EU:C:2019:376 – Kerr, at 27). This applies, e.g., to a co-owner’s payment obligation arising from a decision taken by the general meeting of co-owners.

From Schmidt to Ellmes Property

Kerr only concerned the question of whether Art. 7(1)(a) Brussels Ibis applies to such disputes at all. The Court had reasoned (to my mind quite correctly) in Schmidt (Case C-417/15, ECLI:EU:C:2016:881, at 39) earlier that an action based on the alleged invalidity of a contractual obligation for the conveyance of the ownership of immovable property is no matter falling under Article 24(1) Brussels Ibis. It then had gone beyond the question referred to it and stated that Article 7(1)(a) Brussels Ibis applies, noting that this contractual obligation would have to be performed in Austria (being the location of the immovable property in question). Ellmes Property (Case C-433/19, ECLI:EU:C:2020:900, reported on this blog here and here) now combines the two strands from Kerr and Schmidt. This recent case again concerns a dispute in the context of a co-ownership agreement. One co-owner sued the other for an alleged contravention of the designated use of the respective apartment building (i.e., letting an apartment out to tourists). If this designated use does not have effect erga omnes, e.g. cannot be relied on against a tenant, the CJEU would apply Article 7(1)(a) Brussels Ibis. But once again, the Court does not stop there. It goes on to assert that “[The obligation to adhere to the designated use] relates to the actual use of such property and must be performed in the place in which it is situated.” (at 44).

A Tessili-shaped hole in the Court’s reasoning

In other words, the Court seems at least twice to have determined the place of performance itself, without reference to the applicable law – even though there does not seem to be any pertinent rule of substantive law that the Court would have been competent to interpret. A reference to Tessili or any decision made in its wake is missing from both Schmidt and Ellmes Property. (In his Opinion on Ellmes Property, Advocate General Szpunar did not fail to mention Tessili, by the way.) And in Ellmes Property, the Court proceeds to argue that this very place of performance makes sense in light of the goals of Brussels Ibis and its Article 7 in particular. The Court thus uses jurisdictional arguments for a question supposedly subject to considerations of substantive law.

“Here’s your answer, but please make sure it is correct.”

Admittedly, the statement in Schmidt was made obiter, and the Court locates the place of performance only “subject to verification by the referring court” in Ellmes Property. The latter might be a veiled reference to Tessili. But why not make it explicit? Why not at least refer to the Advocate General’s opinion (also) in this regard? And why the strange choice of the word “verification” for question of law? But the Court has not expressly overruled Tessili. Furthermore, I do not want to believe that it has simply overlooked such an important strand of its case-law presented to it on a silver platter by the Advocate-General, one arguably enshrined in the structure of Article 7(1) Brussels Ibis, anyway. Hence, I (unlike Marion Ho-Dac, although I certainly agree with her as to the low quality of the judgment in Ellmes Property) still hesitate to conclude that Tessili must be disregarded from now on. This assumption, however, leads to one further odd result. While the referring court that had asked the ECJ for clarification of the place of performance does receive a concrete answer, it now has to check whether this answer is actually correct. Granted, it is not uncommon for the Court to assign certain homework to the referring court. Yet here, the former employed some new standard and tasked the latter to check whether the result holds up if one applies the old standard.  I fail to see the point of this exchange between the national court and the Court of Justice.

(A full case note of mine (in German) on Ellmes Property, touching on this issue as well as others, is forthcoming in the Zeitschrift für das Privatrecht der Europäischen Union (GPR).)

Invitation by Angélique Devaux, Notary

The “Chaire du Notariat” of the University of Montreal is organising a webinar on 17 March 2021 at 9am (EST) on the impact in Quebec and in France of the new European Regulation on Successions.

Through practical cases, the speakers will deal with the resolution and prevention of disputes in matter international successions between France and Quebec by taking into consideration the scope of the New European Regulations on matrimonial property regimes and on successions.

Moderator:

Julie Loranger, Notary, Montreal (Canada), BCF Avocats

Speakers:

Me Angélique DEVAUX, Notaire, Cheuvreux Notaires, Paris (France), LL.M American Law IUPUI Robert McKInney School of Law

Me Jeffrey TALPIS, Montreal University, Head of Chaire du Notariat, corresponding of CRIDON Lyon

Professor Emeritus Georges Khairallah, Université de Paris II Panthéon – Assas, consultant au CRIDON de Paris, droit international privé

To enrol, see the website of the Chaire du Notariat.

Invitation by Dr Orsolya Toth, Assistant Professor in Commercial Law, University of Nottingham

The University of Nottingham Commercial Law Centre will hold its inaugural Nottingham Arbitration Talk on Wednesday 17 March at 2-4 pm.  The Centre is delighted to welcome distinguished speakers to the event drawn from both academia and practice.  The Keynote address will be given by Professor Sir Roy Goode, Emeritus Professor of Law at the University of Oxford.  The speaker panel will host Angeline Welsh (Essex Court Chambers), Timothy Foden (Lalive) and Dr Martins Paparinskis (University College London).

The theme of the event will be ‘Procedure and Substance in Commercial and Investment Treaty Arbitration’.  It will address current and timeless issues, such as the influence of procedure on the parties’ substantive rights, the recent phenomenon of ‘due process paranoia’ in arbitration and the current state of the system of investment treaty arbitration.

All welcome and free to attend.  For detailed programme and registration please visit https://unclcpresents.eventbrite.co.uk

On 5 March 2021, the Conclusions & Decisions of the HCCH governing body, the Council on General Affairs and Policy (CGAP), were released. Click here for the English version and here for the French version.

Although there is a wide range of topics discussed, I would like to focus on three aspects: gender issues, the Jurisdiction Project and future meetings.

1) Today is International Women’s Day and there are important conclusions on gender issues. The Conclusions & Decisions No 52-54 read as follows:

“G. Geographic Representation

“52. Reaffirming the principles of universality and inclusiveness, CGAP reiterated its commitment to ensuring appropriate geographic representation at the HCCH. Recognising the importance of this issue, CGAP agreed to maintain this item on the agenda for its 2022 meeting. CGAP invited the  PB  to facilitate,  within  existing  resources,  informal  consultations  ahead  of  the  2022 meeting of CGAP,  through in-person meetings, while ensuring the opportunity for any HCCH Member to participate.

53. In the context of this discussion, CGAP also recalled the importance of ensuring appropriate gender representation.

54. CGAP requested the  PB  to  provide  a  historical  overview  of  geographic  and  gender  representation in the key bodies and groups of the Organisation ahead of the 2022 meeting of CGAP.” (our emphasis)

Awareness of gender representation is always a victory for everyone!

2) As you may know, a spin-off from the Judgments Project was the establishment of the Experts’ Group on the Jurisdiction Project. The purpose of this Group was to continue its discussions on “matters relating to direct jurisdiction (including exorbitant grounds and lis pendens / declining jurisdiction)”, “with a view to preparing an additional instrument”. It met 5 times.

A report of the Experts’ Group was presented to the CGAP. It includes an aide-mémoire of the Chair (Annex I) and a Summary of the Responses to the Questionnaire on Parallel Proceedings and Related Actions in Court-to-Court Cases (Annex II). See here the Report on the Jurisdiction Project.

Interestingly, three options on the possible types of future instrument(s) were discussed by the Experts’ Group but views were divided: [Option A] Binding instrument on direct jurisdiction, including on parallel proceedings; [Option B] Binding instrument on parallel proceedings, and a binding additional protocol on direct jurisdiction; [Option C] Binding instrument on parallel proceedings, and a non-binding instrument (e.g., model law, guiding principles, etc.) on direct jurisdiction (see page 5).

A clear and strong preference was expressed for Options A and C (experts were divided).

In my personal opinion Option C seems to be the more sensible option. As expressed by the experts favoring this option: “[…] with  a  common  consideration being that diverse legal backgrounds and jurisdictional rules from around the world would  make  a  binding  instrument  on  direct  jurisdiction  difficult  to  conclude  and  to  implement.  These experts also noted that Option A may not be feasible due to existing differences in opinion of experts and considering past similar attempts. In this context, they considered it more useful to develop  a  soft  law  instrument  on  direct  jurisdiction  and  were  open  to  considering  the  viability  of  different  types  of  soft  law  instruments  such  as  a  model  law,  principles,  or  guidelines.  Given  the  need  to  deal  with  parallel  proceedings  in  practice,  they  expressed  a  preference  for  developing  a  binding instrument on parallel proceedings.”

Following the conclusion of the work of the Experts’ Group on the Jurisdiction Project, a new Working Group on matters related to jurisdiction in transnational civil or commercial litigation was established, and Professor Keisuke Takeshita (Japan) was invited to chair the Working Group.

The Conclusion & Decision No 9 of the CGAP reads:

“9. In continuation of the mandate on the basis of which the Experts’ Group had worked, CGAP mandated:

a. The Working Group to develop draft provisions on matters related to jurisdiction in civil or commercial matters,  including  rules  for  concurrent  proceedings,  to  further  inform  policy  considerations  and  decisions  in  relation  to  the  scope  and  type  of  any  new  instrument.

b. The Working Group to proceed in an inclusive and holistic manner, with an initial focus on developing binding  rules  for  concurrent  proceedings  (parallel  proceedings  and  related  actions  or  claims),  and  acknowledging  the  primary  role  of  both  jurisdictional  rules  and  the  doctrine  of  forum  non  conveniens,  notwithstanding  other  possible  factors, in developing such rules.

c. The Working Group to explore how flexible mechanisms for judicial coordination and cooperation can support  the  operation  of  any  future  instrument  on  concurrent  proceedings and jurisdiction in transnational civil or commercial litigation.

d. The PB to  make  arrangements  for  two  Working  Group  meetings  before the 2022 meeting of CGAP, with intersessional work, so as to maintain momentum. If possible, one meeting will be held after the northern hemisphere summer of 2021, and another in early 2022, with a preference, where possible, for hosting in-person meetings” (our emphasis).

3) With regard to future meetings, there are a few meetings in the pipeline, among them:

Special Commission meetings (SC – basically, a global meeting of experts)

• Special Commission on the practical  operation  of  the  2007  Child  Support  Convention  and  its  Protocol – postponed to March-June 2022 (first SC meeting ever on this Convention & Protocol)
• Special Commission on the Apostille Convention + 12th e-APP Forum – to be held online in October 2021
• Special Commission on the practical  operation  of  the  1993  Adoption  Convention – postponed to July 2022

Edition  2021  of  HCCH  a|Bridged will focus  on  the  2005 Choice  of  Court  Convention (incl. and “subject  to  available  resources,  the  circulation  of  a  brief  questionnaire  to  elicit  reasons  as  to  why  more  States  have  not  become  party  to  the  Convention”).

The COVID-19 Pandemic has impacted on commercial dispute resolution in China, Singapore and Australia. The important question is whether these impacts will be transformed into legal doctrines and shape the development of law for commercial dispute resolution in the long term.

Experienced panellists will consider how Covid-19 has promoted online trials in China, influenced forum non conveniens and other aspects of international commercial litigation in the Singapore courts, and challenged service of process outside Australia and other private-international-law related issues.

In 2021, besides this panel discussion, the Centre for Asian and Pacific Law (CAPLUS) at the Sydney Law School will organize a series of events on the (post)development of Covid-19 in the Asia-Pacific region focusing on social justice, civil rights and religion, and trade and investment legal issues.

Professor Vivienne Bath’s teaching and research interests are in international business and economic law, private international law and Chinese law. Professor Bath has extensive professional experience in Sydney, New York and Hong Kong, specialising in international commercial law, with a focus on foreign investment and commercial transactions in China and the Asian region.

Dr. Wenliang Zhang is an Associate Professor at Renmin University of China Law School. He has been teaching and doing research in the field of international disputes resolution, with a focus on international jurisdiction and global judgments recognition. His works appear in peer-reviewed international journals including Vanderbilt Journal of Transnational Law, Journal of International Dispute Settlement, Yearbook of Private International Law and Chinese Journal of International Law.

Dr. Adeline Chong is an Associate Professor at the School of Law, Singapore Management University. She has published in leading peer-reviewed journals such as the LQR, ICLQ, LMCLQ and JPIL. She is the co-author of Hill and Chong, International Commercial Disputes: Commercial Conflict of Laws in English Courts (Oxford, Hart, 4th edn, 2010). She is the Project Lead of the Asian Business Law Institute’s project on the Recognition and Enforcement of Foreign Judgments in Asia. Her work has been cited by the Singapore, Hong Kong, New South Wales and New Zealand Court of Appeals, the Singapore and New Zealand High Courts, the UK Law Commission, as well as in leading texts on conflict of laws. She has appeared as an expert on Singapore law before a Finnish court and issued a declaration on Singapore law for a US class action.

Dr. Jie (Jeanne) Huang is an Associate Professor at the Sydney Law School. She teaches and researches in the fields of private international law and digital trade. She has published four books and authored many articles in peer-reviewed law journals, such as Journal of Private International Law and Journal of International Economic Law. She is the Deputy Director of CAPLUS. She also serves as an Arbitrator at the Hong Kong International Arbitration Center, Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center), Nanjing Arbitration Commission and Xi’an Arbitration Commission. She has also appeared as an expert witness for issues of Chinese law and private international law at the courts in Australia and the US.

Webinar via Zoom, Friday 12 March, 1pm AEST.

Once registered, you will receive Zoom details closer to the date of the webinar.

CPD Points: 1

Registration: https://law-events.sydney.edu.au/talkevents/aftermath-of-pandemic

New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution

Edited by Luke Nottage, Shahla Ali, Bruno Jetin & Nubomichi Teramura

Discount 25% by applying Code 25NEWF21

You are kindly invited for the conference on “Regional Migration Governance: Soft Law and the Diffusion of Policies on Integration and Inclusion (Focus on South America Regionalism)” by Dr. Verónica Ruiz Abou-Nigm (senior Lecturer in Private International Law at Edinburgh Law School and the principal investigator of the GCRF funded project Migration in Latin America (MiLA)) on March 9, 2021, Tuesday between 12.30-13.30 (GMT+3). The conference is organised by Bilkent University as a part of the Talks on Migration Series within the Jean Monnet Module on European and International Migration Law. It will be held via zoom, free of charge. Please contact us (Jmmigration@bilkent.edu.tr) for participation.

Today (3 March 2021) Israel signed the HCCH Convention of 30 June 2005 on Choice of Court Agreements (2005 Choice of Court Convention) and the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Judgments Convention). The HCCH news item is available here.

It should be noted that in order to consent to be bound by the treaties, Israel would need to deposit an instrument of ratification, acceptance or approval under each instrument. In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (article 18 of the UN Vienna Convention on the Law of Treaties).

The 2005 Choice of Court Convention has currently 32 Contracting Parties. The act of signing does not make Israel a “Contracting Party” (yet) but it is definitely a good step forward and an excellent sign of the relevance of the Convention today.

The 2019 Judgments Convention is not yet in force. In accordance with its article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”

There are currently three signatory States: Israel, Uruguay and Ukraine. The act of signing a treaty does not count towards the timeline specified in article 28 of the 2019 Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.

The Organization of American States (OAS) is organizing a virtual forum as noted in the poster above. For more information, click here.

This virtual forum will address the report: Improving transparency: international law and State cyber operations – fifth report drawn up by Professor Duncan B. Hollis. This report is available here and has been translated into the four official languages of the OAS: Spanish, English, French and Portuguese.

While this report touches upon international law in general, it may still be of interest to some of our readers.

March 2021 edition of the virtual workshop series “Current Research in Private International Law” will host Professor Horatia Muir Watt from the University Sciences-Po Paris. She will be speaking on “Capitalism’s Boundary Struggles: a Private International Law Approach”.

The guest speaker’s abstract states:

Our current awareness of crisis (whether sanitary, ecological, financial, economic, social etc) has led to various reflections and initiatives within law designed for the most part to improve regulation. The focus of this paper is very different and builds upon research currently conducted within the Globinar “Law Crisis and Capitalism” (with H. Alviar and G. Frankenberg). It starts from the idea that the “boundary struggles” that produce crises are endemic to capitalism’s modus operandi (as in the “critical conversation” between N. Fraser and R. Jaeggi). This metaphor suggests that private international law is a good place to think about the role of law in the generation, evolution, exacerbation or pacification of such conflicts that arise at the frontiers of different spheres. In this presentation, I shall suggest a few areas in which an analysis in terms of private international law’s political economy may be instructive.

The virtual workshop will take place on Tuesday, 2 March 2021 at 11:00 hours (CET) via Zoom. Access is free of charge, but registration is required by 1 March 2021 using the registration link.

On 1 February 2021, the HCCH 1965 Service Convention entered into force for the Marshall Islands. It currently has 78 Contracting Parties. More information is available here.

On 1 February 2021, the HCCH 2007 Child Support Convention entered into force for Serbia. At present, 41 States and the European Union are bound by the Convention. More information is available here.

On 1 February 2021, the HCCH 1993 Adoption Convention entered into force for Saint Kitts and Nevis. It currently has 103 Contracting Parties. More information is available here.

From 1 to 5 February 2021, the Experts’ Group on Jurisdiction met for the fifth time, via videoconference. The discussion focused on questions of policy, including in relation to rules of direct jurisdiction, parallel proceedings, related claims, and mechanisms for judicial coordination and cooperation. More information is available here.

From 8 to 11 February 2021, the Experts’ Group on International Transfer of Maintenance Funds met via videoconference. The Group continued its work discussing good practices and identifying possible future improvements in relation to the cross-border transfer of child support payments, with a view to facilitating the most cost-effective, transparent, prompt, efficient and accessible cross-border transfer of funds. More information is available here.

From 15 to 17 February 2021, the Experts’ Group on Parentage/Surrogacy met for the eighth time, via videoconference. The Group discussed what the focus of its work should be at its next meeting(s) in order to prepare its final report on the feasibility of a possible future general private international law instrument on legal parentage and the feasibility of a separate possible future protocol with private international law rules on legal parentage established as a result of an international surrogacy arrangement. More information is available here.

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

The fourth issue of 2020 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) has been released. It features:

Cristina Campiglio, Professor at the University of Pavia, Il matrimonio in età precoce nel diritto internazionale privato (Child Marriage in Private International Law; in Italian)

• In recent years, international instruments to combat early and forced marriages have been flanked by national legislative interventions aimed at denying, or at least limiting, the recognition of marriages concluded abroad by minors. The private international law techniques used in Europe are different but fundamentally referable to special public policy clauses, in some cases inspired by the German doctrine of Inlandsbeziehung. Failure to recognize marital status – with the inevitable repercussions on immigration policies, specifically in the context of family reunification – can harm the fundamental rights of those concerned. Due to its abstract nature, the legislative approach is not able to carry out the evaluation of the minor’s concrete interest that only a case-by-case approach can ensure.

Costanza Honorati, Professor at the University Milan-Bicocca, Il ritorno del minore sottratto e il rischio grave di pregiudizio ai sensi dell’art. 13 par. 1 lett. b della convenzione dell’Aja del 1980 (Return of the Abducted Child and the Article 13(1)(b) ‘Grave Risk of Harm’ Defence in the 1980 Hague Convention; in Italian)

• The “grave risk of physical or psychological harm, or of an intolerable situation” defense pursuant to Article 13(1)(b) of the 1980 Hague Convention constitutes the central hub of the conventional system. In fact, it expresses the difficult balance between, on the one hand, the general imperative to return the abducted child and, on the other, the need to refuse his return in the individual specific case, when this is likely to cause the minor a grave risk of harm. This article examines the application that the exception receives both in the recent Guide to Good Practice prepared by the HCCH Conference and published in March 2020, and in the Italian courts. Through the analysis of many unpublished cases, the peculiarities of the Italian practice on a central provision for effective protection of the abducted child are thus highlighted.

The following comments are also featured:

Loris Marotti, Research Associate at the University of Milan, Aspetti problematici dell’accordo sull’estinzione dei trattati bilaterali di investimento tra Stati membri dell’Unione europea (Problematic Aspects of the Agreement for the Termination of Bilateral Investment Treaties between EU Member States; in Italian).

• On 5 May 2020, 23 Member States signed the Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union, providing for the termination of all Intra-EU BITs concluded between the parties. The Termination Agreement, which entered into force on 29 August 2020, represents the last step taken by Member States to comply with the European Court of Justice ruling in the Achmea judgment, where the Court found investor-State arbitration based on BITs incompatible with EU treaties. This paper discusses a number of issues arising out of the Termination Agreement. After illustrating its scope and content, the paper focuses on its most controversial aspects, namely the termination of BITs together with the sunset clauses therein contained, and the impact of the Agreement on pending arbitration proceedings. It is argued that while the Agreement seems to be in line with the general international law on treaty termination, its impact on pending proceedings is likely to be problematic according to the general principles regulating the judicial function in international law. Moreover, the paper analyses the controversial implications stemming from the Agreement in terms of the relations between Member States parties to the Agreement and third parties to the ICSID Convention, as well as its impact on investors’ position under international and domestic law.

Marco Pedrazzi, Professor at the University of Milan, Dal disdegno per il diritto internazionale («notwithstanding»…) alla prevalenza del «rule of law»: il controverso percorso che ha portato alla promulgazione della legge del Regno Unito sul mercato interno (From the Contempt for International Law (‘Notwithstanding’…) to the Prevalence of the ‘Rule of Law’: The Controversial Path that Led to the Promulgation of the UK Internal Market Act 2020; in Italian).

In addition to the foregoing, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Christopher Kuner, Lee A. Bygrave, Christopher Docksey (eds.), The EU General Data Protection Regulation (GDPR). A Commentary, Oxford University Press, Oxford, 2020, pp. XXXV-1393.

The Committee Investigating Intercountry Adoption, has recommended that The Netherlands suspend intercountry adoptions. The interdisciplinary committee considered the history and legal evolution, and did an in-depth investigation into adoptions from five selected countries (Bangladesh, Brazil, Colombia, Indonesia and Sri Lanka). It looked into the consequences for the people involved (adoptees, birth families and adoptive families), the perception in society, the best interests of the child and the right to know one’s origins and identity. It came to the conclusion that there have been too many abuses and that the current system is still open to fraud and abuses. It further stated that the lessons learned should be applied to new methods of family formation such as surrogacy.

For those who do not read Dutch, the Commission issued a press release in English and published an English summary of the report.

The Committee, established by the Minister for Legal Protection, Mr. Sander Dekker, was chaired by Mr. Tjibbe Joustra and further composed of Prof. Dr. Beatrice de Graaf and Mr. Bert-Jan Houtzagers.