Conflictoflaws

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.

Moderator:

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.

Panellists:

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 publication 25% off discount offer:

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.

Conventions & Instruments

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.

Meetings & Events

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.

POAM (Protection of Abducting Mothers in Return Proceedings) is a research project co-funded by the European Commission. It explores the intersection between domestic violence and international parental child abduction within the European Union. The project is concerned with the protection of abducting mothers who have been involved in return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction had been motivated by acts of domestic violence from the left-behind father.  POAM examines the usefulness of the Protection Measures Regulation and the European Protection Order Directive in the context of such return proceedings.

The POAM Conference will take place online via Zoom – due to the current global circumstances and, unfortunately, not as initially planned in Munich – on Friday, the 26th March 2021 from 9 a.m. to 1 p.m. (CET).

In the Conference, the POAM research team will present the results of the project and their best practice guide, and invite discussions moderated by external speakers and a panel to engage the participants. Please see the attached POAM Conference Programme for more details.

REGISTRATION: If you are interested in attending the online Conference, please register by email to tatjana.tertsch@jura.uni-muenchen.de

Please also indicate in the email whether you would require a confirmation of participation after attendance. We will provide you with the necessary link for the Zoom Conference a week before the event.

The CJEU’s interpretation of Article 7(2) Brussels Ia with regard to online defamation has long been criticized (including on this blog) for its lack of predictability, especially from the defendant’s point of view. While these concerns could, in many cases, be dismissed as purely academic, Case C-800/19 Mittelbayerischer Verlag seems to put them back on the agenda in a politically somewhat delicate context. AG Bobek’s Opinion on the case has been published today.

As a reminder, the legal framework emerging from the Court’s decisions in Shevill, eDate and Bolagsupplysningen can be summarised as follows: the victim of an alleged violation of personality rights can

• either seize the courts of their centre of interests (which regularly coincides with their domicile) and seek compensation of the entire damage as well as all other remedies,
• or seize the courts of each other Member State in which the content in question has been made available, with compensation being limited to the damage caused through publication in that Member State and ‘indivisible’ remedies such injunctions to rectify or delete not being available (the so-called ‘mosaic’ approach).
  

The case in Mittelbayerischer Verlag concerns the claim of a Polish holocaust survivor living in Poland, who is suing a German local newspaper who published an article on the internet that referred to a Nazi concentration camp in then-occupied Poland, using the phrase ‘Polish extermination camp’. As some readers might remember from a similar affair involving a German public broadcoaster and resulting in the refusal to enforce a Polish judgment by the German Bundesgerichtshof, Polish substantive law considers the use of the term ‘Polish extermination camp’ as an infringement of the personality rights of any Polish survivor of Nazi concentration camps because it could create the impression that those who have been prisoners in these camps may have played a role in their creation or operation.

Unlike the Court of Appeal of Kraków in the 2016 case, the Court of Appeal of Warsaw had doubts as to its international jurisdiction based on Article 7(2) Brussels Ia. While Warsaw clearly constituted the claimant’s centre of interest, the Court wondered if this was sufficient to render it competent for the entire range of remedies sought by the claimant (damages; prohibition to use the term in the future; public apology) given the circumstances of the case. In particular, the Warsaw court pointed out that the claimant did not claim to have personally accessed, let alone understood the article, which had only been online for a few hours; the claimant had also not been personally identified in the article in any way; the defendant, on the other hand, had not directed their article, or any other part of their online presence, to an audience in Poland.

The Warsaw Court of Appeal thus referred the following questions to the CJEU:

1. Should Article 7(2) [Brussels Ia] be interpreted as meaning that jurisdiction based on the centre-of-interests connecting factor is applicable to an action brought by a natural person for the protection of his personality rights in a case where the online publication cited as infringing those rights does not contain information relating directly or indirectly to that particular natural person, but contains, rather, information or statements suggesting reprehensible actions by the community to which the applicant belongs (in the circumstances of the case at hand: his nation), which the applicant regards as amounting to an infringement of his personality rights?
2. In a case concerning the protection of material and non-material personality rights against online infringement, is it necessary, when assessing the grounds of jurisdiction set out in Article 7(2) [Brussels Ia], that is to say, when assessing whether a national court is the court for the place where the harmful event occurred or may occur, to take account of circumstances such as:
   – the public to whom the website on which the infringement occurred is principally addressed;
   – the language of the website and in which the publication in question is written;
   – the period during which the online information in question remained accessible to the public;
   – the individual circumstances of the applicant, such as the applicant’s wartime experiences and his current social activism, which are invoked in the present case as justification for the applicant’s special right to oppose, by way of judicial proceedings, the dissemination of allegations made against the community to which the applicant belongs?’

In his Opinion, Advocate General Bobek (who had also rendered the AG Opinion in Bolagsupplysningen, calling for the abolition of ‘mosaic’ jurisdiction in cases of violations of personality rights) leaves no doubt that he still believes the current approach to Article 7(2) Brussels Ia to be imperfect (paras. 39–44). Yet, he argues that the present case is not the right place for its reconsideration because ‘the sticky issue in this case does not concern international jurisdiction, but rather the substance of the claim’ (para. 43). Thus, he proposes to adopt ‘a narrow and minimalist approach’ (para. 44).

He develops this approach through two steps. First, he explains why he does not believe that the question of whether or not the claimant has been named (or otherwise personally identified) in the publication in question provides a helpful criterion for the establishment of centre-of-interests jurisdiction (paras. 45–57) as there is ‘no visible line in the sand’ (para. 51) but rather

[55] … a fluid, continuum of possible ‘degrees of individualisation’ to be assessed in the light of the infinite factual variety of cases, when looking at a given statement assessed in its context with regard to a particular claimant.

In a second step, AG Bobek then explains that centre-of-interests jurisdiction as established in eDate nonetheless requires a certain degree of foreseeability to be reconciliable with the aims of foreseeability and sound administration of justice as required by Recitals (15) and (16) of the Regulation. He believes that such foreseeability does not depend on the subjective intent of the publisher but rather requires an objective centre-of-gravity analysis (along the lines suggested by AG Cruz Villalón in his Opinion on eDate):

[69] I would also caution against introducing, in essence, ‘a criterion of intent’ to online torts. The subjective intent of the publisher at the time of publication, if indeed discernable, may be used as an indication only. It is, however, not conclusive. Instead, what matters is whether, as deduced from a range of objective ‘items of evidence’, it could reasonably have been foreseen that the information published online would be ‘newsworthy’ in a specific territory, thereby encouraging readers in that territory to access it. Such criteria could include matters such as the subject matter of the publication, the top-level domain of the website, its language, the section in which the content was published, the keywords supplied to search engines, or the website access log.

[70] However, since those considerations apply to the impact side of Bier, that is to say, where the damage occurred, it is indeed logical that they focus on the objective, subsequent impact of a given publication from the point of view of the public, rather than being primarily concerned with the original and rather subjective intentions of a publisher. It is from this perspective that, in line with recital 16 of Regulation No 1215/2012, a clear objective connection between the action and the forum ought to be assessed, which then justifies the seising of jurisdiction, as a counterweight to the virtually unlimited geographical reach of online content.

This culminates in the following proposition:

[73] … [A]t the level of international jurisdiction, the issue of foreseeability ought to be properly characterised as enquiring as to whether a particular statement, in view of its nature, context and scope, could have caused harm to a given claimant within the given territory. It thus relates clearly to foreseeability and predictability of the given forum. It should not be reduced to the question of whether a particular publisher knew or could have known the domicile of a possible victim at the time the material was uploaded online.

Applied to the case at hand

[74] … it is indeed difficult to suggest that it would have been wholly unforeseeable to a publisher in Germany, posting online the phrase ‘the Polish extermination camp of Treblinka’, that somebody in Poland could take issues with such a statement. It was thus perhaps not inconceivable that ‘the place where the damage occurred’ as a result of that statement could be located within that territory, especially in view of the fact that that statement was published in a language that is widely understood beyond its national territory. Within that logic, while it is ultimately for the national court to examine all those issues, it is difficult to see how jurisdiction under Article 7(2) of Regulation No 1215/2012 could be axiomatically excluded.

Although unlike eDate and Bolagsupplysningen, the case has not been assigned to the Grand Chamber, making any proper reconsideration of the two former decisions unlikely, it certainly provides another opportunity for incremental adjustments. The AG’s proposition may just fit that bill.

The Société de législation comparée has published a liber amicorum in honour of Professor Iacyr de Aguilar Vieira entitled (in French): Études en l’honneur du Professeur Iacyr de Aguilar Vieira. This book has been coordinated/compiled by Gustavo Cerqueira and Gustavo Tepedino. More information is available here.

This book may be purchased by clicking here (and here). A more favorable price is available until 8 April 2021. Those who acquire the book now (by way of a “souscription”) may consent to having their name appear at the end of the book.

Contributions are written in French, English, Italian and Spanish and range from commercial law to private international law to law and literature. Please find below the details as announced:

Droit civil, droit des affaires, droit international privé, droit privé comparé, droit du commerce international, littérature et droit, constituent autant de champs d’étude que des passions pour Iacyr de Aguilar Vieira durant son intense et fructueuse activité de recherche et d’enseignement au Brésil comme en Europe.

C’est dans ces domaines que ses élèves, collègues et amis, européens et sud-américains, rendent aujourd’hui un hommage amical à cette universitaire empreinte de liberté.

Arnoldo Wald, Lettre-préface en hommage au Professeur Iacyr de Aguilar Vieira

Danièle Alexandre, Témoignage d’une amitié franco-brésilienne

 

I – Droit civil et droit des affaires

Guido Alpa, L’applicazione diretta dei diritti fondamentali ai rapporti fra privati

Margarida Azevedo, The evolution of the concept of contractual justice

Rodrigo Octávio Broglia Mendes, Notes on the concept of “economy of the contract”

Geoffray Brunaux, Efficacité et effectivité de la réglementation des activités du commerce électronique

Diogo Leite de Campos, Mónica Martinez de Campos, Le logement familial : (in)saisissable ?

Estelle Fragu, Fernanda Sabrinni, L’imprévu dans le contrat

Laurent Gamet, Les avocats et l’intelligence artificielle. Des outils et des hommes

Nicolas Kilgus, Le droit réel sui generis : entre perspectives et interrogations

Giovanni Lobrano, Dai “mezzi per difendere la libertà” ai modi di costituirla. Per “sbloccare” la dottrina giuridica

Kevin Magnier-Merran, Observations sur la délimitation des usages

Marc Mignot, Le corpus jurisprudentiel issu de l’ordonnance n° 45-770 du 21 avril 1945 sur la nullité des actes de spoliation accomplis par l’ennemi ou sous son contrôle et édictant la restitution aux victimes

Pierre Mousseron, Bernard Laurent-Bellue, Pour un Droit coutumier des sociétés

Cyril Noblot, Clause compromissoire et clause de conciliation préalable obligatoire : exercice de droit comparé interne français

Fabrice Rosa, Le pouvoir de réglementation des personnes privées dans la théorie générale des obligations en droit français

Antonio Saccoccio, Mutuo real, acuerdo de mutuo y promesa de mutuo en derecho romano

Anderson Schreiber, Pour le dépassement de la théorie de l’imprévision (en faveur de l’équilibre contractuel in concreto)

Michel Storck, Les agences de conseil en vote : à la recherche d’une régulation

Gustavo Tepedino, L’efficacia dei diritti fondamentali nelle associazioni: la costituzionalità dei criteri di ammissione differenziati nell’esperienza brasiliana

 

II – Droit international

Renaud Alméras, Réflexion sur le contrôle par le juge français des décisions étrangères de saisie pénale

Andrea Bonomi, Recognition of foreign judgments in Brazil: some comparative law remarks also in light of the 2019 Hague Judgment Convention

Jamile Bergamachine Mata Diz, Pedro Campos Araújo Corgozinho, La qualification et le caractère dynamique des biens en droit international privé brésilien

Gustavo Ferraz de Campos Monaco, Mobilité de personnes et droit international privé : un regard brésilien

Claudia Lima Marques, Pablo Marcello Baquero, Gouvernance mondiale et droit de la consommation

Fernanda Munschy, Autonomie de la volonté en Amérique Latine : 27 ans après l’adoption de la Convention de Mexico sur la loi applicable aux contrats internationaux

Nicolas Nord, La reconstruction des règles de conflit relatives au contrat de travail international. Etude du droit européen à l’aune des incohérences jurisprudentielles

Naiara Posenato, On the formation of the electio iuris agreement: some comparative insights

Camille Reitzer, Qualification et méthode de la reconnaissance

Carmen Tiburcio, Choice of court agreements : a comparative analysis

Alan Wruck Garcia Rangel, Échanges épistolaires en droit international privé : les consultations juridiques de José Carlos de Almeida Arêas dans les dernières décennies du XIXe siècle

 

III – Droit privé comparé et droit du commerce international 

Olivier Cachard, La méthode comparatiste et l’hybridation des droits. L’exemple de la lex Schuman lors du recouvrement de l’Alsace et de la Moselle.

Andreia Costa Vieira, Sustainable foreign direct investments for emerging and developing countries

Milena Donato Oliva, Pablo Renteria, Filipe Medon, La protection des données personnelles au Brésil et en Europe

José Angelo Estrella Faria, Competition among legal systems: the influence of rankings in stimulating commercial law reform

Franco Ferrari, Friedrich Rosenfeld, Les limites à l’autonomie des parties en matière d’arbitrage international

Ana Gerdau de Borja Mercereau, Responsabilité sociale de l’entreprise et l’arbitrage d’investissement

Anne Gilson-Maes, La famille et le contrat en droit français – Analyse à la lumière du droit comparé

Carlos Nelson Konder, Tramonto o revirement della causa del contratto: Influenze europee sul diritto brasiliano

Sabrina Lanni, Imprevisión contrattuale: esperienze latinoamericane e armonizzazione del diritto

Andrea Marighetto, La clausola della buona fede nel commercio internazionale. Natura giuridica e profili comparatistici occidentali

José Antonio Moreno Rodrígues, International Sales Law and Arbitration

Magalie Nord-Wagner, Le droit et la quête du bonheur en droit comparé

Francisco Pignatta, La nouvelle loi de protection des données au Brésil : le RGPD comme référence et les difficultés de sa mise en œuvre

Marilda Rosado de Sá Ribeiro, Fernanda Torres Volpon, Ely Caetano Xavier Junior, Contrats internationaux complexes et la responsabilité civile précontractuelle dans une perspective comparative

Claude Witz, Influences de la Convention de Vienne sur le législateur français

 

IV – Droit et littérature

Luiz Felipe Araújo, The Lost Pathos of Rhetoric: human being, power and affections on Law in Friedrich Nietzsche

Gustavo Cerqueira, Pour un dictionnaire juridique de notions et de phénomènes contemporains

Arnaud Coutant, Aux origines du mouvement droit et littérature, le Professeur John Henry Wigmore

Thibault de Ravel d’Esclapon, Molière et le droit. À propos de Scapin, de ses fourberies et de la justice

Emilien Rhinn, La littérature au service d’un idéal politique : nationalisme français et femmes alsaciennes-lorraines (1871-1918)

Nunziata Valenza Paiva, Il diritto nei confronti delle favole : il contributo della letteratura nella costruzione della base morale, civica e giuridica dei bambini

 

 

 

The International Max Planck Research School for Successful Dispute Resolution in International Law (IMPRS-SDR) is accepting applications for PhD proposals within the research areas of the Department of International Law and Dispute Resolution and the Department of European and Comparative Procedural Law to fill a total of

5 funded PhD positions

at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.

Selected PhD candidates will receive full-time research contracts of initially 2 years, with a possible extension of up to additional 2 years depending on the availability of funds, the student’s progress, and the Directors’ approval. In addition to being embedded in one of the vibrant Departments and its activities, the PhD candidates will be part of the IMPRS-SDR through which they will receive additional scholarly guidance and take part in events, such as doctoral seminars, master classes, and lectures. PhD candidates will benefit from the productive working environment within an international and creative team of researchers and have the opportunity to establish contacts and networks with all participating institutions as well as visiting academics and practitioners.

The deadline for application is 31 March 2021.

Additional information is available here.

For any questions with regard to the IMPRS-SDR and this Call for Applications, please contact:
Dr. Michalis Spyropoulos, IMPRS-SDR Coordinator, at: imprs-sdr@mpi.lu

The Max Planck Institute Luxembourg strives to ensure a workplace that embraces diversity and provides equal opportunities.

From March 3 to May 13, 2021, the University of Milan will host a series of webinars dealing with cross-border civil and commercial litigation in Europe, as part of the three-year project funded by the European Union and named “Jean Monnet Module on Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe“.

The cycle of seminars will be divided into three modules, focusing, respectively, on relations and conflicts between national judges, European courts and international tribunals; on collective redress, addressed from a European, comparative and transnational perspective and in the context of different legal sectors; on the main procedural issues arising out of transnational litigation in financial law, IP law, labor law and family law disputes, as well as on the the current EU works on judicial cooperation and on the latter’s prospects after Brexit. A short module will provide participants with basic hints on written and oral legal advocacy.

The seminars, held by Italian and foreign experts with remarkable experience (not only academic, but also professional and institutional) in the sector, also due to their involvement in international research works and legislative reform projects coordinated by the European Commission, are aimed at Italian and foreign under- and post-graduate students, as well as professionals (the latter being entitled to continuing legal education credits).

To register (for the entire program or only for some modules), please fill in and submit, no later than Monday, March 1, 2021, the registration form retrievable here.

See here the Full Programme.

Written by Marcus Teo (Sheridan Fellow (Incoming), National University of Singapore)

The law in Singapore on Mareva injunctions supporting foreign proceedings is on the move again. The High Court’s recent decision in Allenger v Pelletier [2020] SGHC 279, issued barely a year after the Court of Appeal’s decision in Bi Xiaoqiong v China Medical Technologies [2019] 2 SLR 595; [2019] SGCA 50 (see previous post here) qualifies the latter, confounding Singapore’s position on this complex issue even further.

Pelletier sold shares to buyers in Florida while allegedly misrepresenting the company’s value. The buyers obtained arbitral awards against him, then obtained a bankruptcy order against him in the Cayman Islands. By this time, however, Pelletier had initiated several transfers, allegedly to dissipate his assets to Singapore among other jurisdictions. The buyers then initiated proceedings to clawback the transfers in the Cayman courts, and obtained a worldwide Mareva injunction there with permission to enforce overseas. Subsequently, the buyers instituted proceedings in Singapore against Pelletier in Singapore based on two causes of action – s 107(1) of the Cayman Bankruptcy Law (the “Cayman law claim”), and s 73B of Singapore’s Conveyancing and Law of Property Act (the “CLPA claim”) – and applied for a Mareva injunction to freeze his Singapore assets.

Senior Judge Andrew Ang acknowledged that “the Mareva injunction remains, at its very core, ancillary to a main substantive cause of action.” (Allenger, [125]). In doing so, he remained in step with Bi Xiaoqiong. Ang SJ eventually held that Mareva could be sustained based on the CLPA claim. However, he reasoned that the Cayman law claim could not; it is this latter point that is of relevance to us.

Ang SJ first held that the court had subject-matter jurisdiction over the Cayman law claim, because Singapore’s courts have unlimited subject-matter jurisdiction over any claim based on statute or common law, whether local or foreign. The statute that defined the court’s civil jurisdiction – Section 16(1) of the Supreme Court of Judicature Act (“SCJA”) – implicitly retained the position at common law, that the court possessed a generally “unlimited subject-matter jurisdiction”, while expressly defining only the court’s in personam jurisdiction over defendants ([45], [51]-[52]). The only limits on the court’s subject-matter jurisdiction, then, were those well-established in the common law, such as the Mozambique rule and the rule against the justiciability of foreign penal, revenue and public law claims ([54]). This was a conception of international jurisdiction organised primarily around control and consent rather than sufficient connections between causes of action and the forum, although Ang SJ’s recognition of the abovementioned common law exceptions suggests that a connection-based notion of jurisdiction may have a secondary role to play.

However, Ang SJ then held that the court could not issue a Mareva injunction against Pelletier, because, as all parties had accepted, Singapore was forum non conveniens. This is where the difficulty began, because the court’s reasoning here was anything but clear. At times, Ang SJ suggested that Singapore being forum non conveniens precluded the existence of the court’s jurisdiction over Pelletier; for instance, he dismissed the buyer’s arguments for a Mareva injunction based on the Cayman law claim on grounds that “Singapore court would first have to have in personam jurisdiction over a defendant before it could even grant a Mareva injunction” ([145]). At other times, however, Ang SJ suggested that Singapore being forum non conveniens only prevented the court from “exercising its jurisdiction” over Pelletier ([123], emphasis added). The former suggestion, however, would have been misplaced: as Ang SJ himself noted ([114]), Pelletier had voluntarily submitted to proceedings, which gave the court in personam jurisdiction over him. That Ang SJ would otherwise have refused the buyers leave to serve Pelletier should also have been irrelevant: Section 16(1) of the SCJA, mirroring the position at common law, gives Singapore’s courts “jurisdiction to hear and try any action in personam where (a) the defendant is served with a writ of summons or any other originating process … or (b) the defendant submits to the jurisdiction of the [court]” (emphasis added).

Ang SJ’s objection, then, must have been the latter: if a court will not to exercise its jurisdiction over a defendant, it should not issue a Mareva injunction against him. This conclusion, however, is surprising. Ang SJ considered himself bound to reach that conclusion because of the Court of Appeal’s holding in Bi Xiaoqiong that “the Singapore court cannot exercise any power to issue an injunction unless it has jurisdiction over a defendant” (Bi Xiaoqiong, [119]). Yet, this hardly supports Ang SJ’s reasoning, because Bi Xiaoqiong evidently concerned the existence of jurisdiction, not its exercise. There, the Court of Appeal simply adopted the majority’s position in Mercedes Benz v Leiduck [1996] 1 AC 284 that a court need only possess in personam jurisdiction over a defendant to issue Mareva injunctions against him. It was irrelevant that the court would not exercise that jurisdiction thereafter; even if the court stayed proceedings, it retained a “residual jurisdiction” over them, which sufficed to support a Mareva injunction against the defendant (Bi Xiaoqiong, [108]). Indeed, in Bi Xiaoqiong itself the court did not exercise its jurisdiction: jurisdiction existed by virtue of the defendant’s mere presence in Singapore, and the plaintiff itself applied to stay proceedings thereafter on grounds that Singapore was forum non conveniens (Bi Xiaoqiong, [16], [18])

Ang SJ’s decision in Allenger thus rests on a novel proposition: that while a defendant’s presence in Singapore can support a Mareva against him even when Singapore is forum non conveniens, his submission to proceedings in Singapore cannot unless Singapore is forum conveniens, though in both situations the court has in personam jurisdiction over him. Moreover, while Ang SJ’s decision may potentially have been justified on grounds that the second requirement for the issuance of Mareva injunctions in Bi Xiaoqiong – of a reasonable accrued cause of action in Singapore – was not met, his reasoning in Allenger, in particular the distinction he drew between presence and submission cases, was directed solely at the first requirement of in personam jurisdiction. On principle, however, that distinction is hard to defend: in both scenarios, the court’s jurisdiction over the defendant derives from some idea of consent or control, and not from some connection between the substantive cause of action and the forum. If like is to be treated alike, future courts may have to relook Ang SJ’s reasoning on this point.

What was most surprising about Allenger, however, was the fact that Ang SJ himself seemed displeased at the conclusion he believed himself bound to reach. In obiter, he criticised Bi Xiaoqiong as allowing the “‘exploitation’ of the principle of territoriality by perpetrators of international frauds” (Allenger, [151]), and suggested that Bi Xiaoqiong should be overturned either by Parliament or the Court of Appeal ([154]). In the process, he cited Lord Nicholls’ famous dissent in Leiduck, that Mareva injunctions should be conceptualised as supportive of the enforcement of judgments rather than ancillary to causes of action (Leiduck, 305). The tenor of Ang SJ’s statements thus suggests a preference that courts be allowed to issue free-standing Mareva injunctions against any defendant with “substantial assets in Singapore which the orders of the foreign court … cannot or will not reach” (Allenger, [151]). Whether the Court of Appeal will take up this suggestion, or even rectify the law after Allenger, is anyone’s guess at this point. What seems clear, at least, is that Singapore’s law on Mareva injunctions supporting foreign proceedings is far from settled.

The Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law is currently recruiting new members for its team. Two fully-funded positions as Research Fellow (PhD candidate; m/f) for the Research Department of European and Comparative Procedural Law are currently open:

• Fixed-term contract for 2 years; contract extension is possible; 40 hrs/week; Luxembourg

Your tasks

The Research Fellow will conduct legal research (contribution to common research projects and own publications), particularly in the field of European and Comparative Procedural Law, while playing a central role in undertaking and developing team-driven projects within the Institute and in partnership with international collaborators.

The successful candidate will have the opportunity to contribute to the development of the Department of European and Comparative Procedural Law led by Prof. Dr. Dres h.c. Burkhard Hess and, in parallel, work on her/his PhD project. A supervision by Prof. Dr. Dres h.c. Hess of the successful candidate’s PhD thesis is also a possibility.

Your profile

Applicants shall have obtained at least a Master’s degree in Law with outstanding results: they must have ranked within the top 5-10 % of their class and shall have a deep knowledge of domestic and EU procedural law.

The successful candidate should demonstrate a great interest in academic research and have a high potential to develop excellence. Proficiency in English is compulsory (written and oral); further language skills (notably in French and German) are an advantage.

Documents required

A detailed CV comprising of a list of publications; copies of academic records; a PhD project description of no more than 1-2 pages with the name of the prospective PhD supervisor and the name of the institution awarding the PhD certificate; the name and contact details of two referees.

You may apply online until 28 February 2021.

Contact: recruitment@mpi.lu

The Max Planck Institute Luxembourg strives to ensure a workplace that embraces diversity and provides equal opportunities.

 

By Jie (Jeanne) Huang, Associate Professor, University of Sydney Law School Australia

In 2013, the plaintiffs, ePayment Solutions Pty Ltd (EPS) and RCD Holdings Ltd (RCD) concluded a written contract with the defendant, LT Game International (Australia) Ltd (LT) about the development and installation of a computer betting game. LT is a company incorporated in the Virgin Islands and registered in Australia as a foreign company. The contract was signed in Australia. Its Clause 10 provides.

“10. Governing Law

Any dispute or issue arising hereunder, including any alleged breach by any party, shall be heard, determined and resolved by an action commenced in Macau. The English language will be used in all documents.”

When a dispute arose, the plaintiffs commenced the proceedings at the Supreme Court of Queensland in Australia ([2020] QSC 318). The defendant entered a conditional appearance and applied to strike out the claim, or alternatively, to have it stayed as being commenced in this court contrary to the contract. This case shed useful light on how an Australian court may address the impacts of COVID-19 on foreign jurisdiction clauses.

The parties did not dispute that Clause 10 was an exclusive jurisdiction clause choosing courts in Macau China. However, an exclusive foreign jurisdiction clause does not exclude Australian courts’ jurisdiction. The plaintiffs alleged that the Supreme Court of Queensland should not enforce the exclusive jurisdiction clause due to the COVID?19 pandemic for two reasons.

First, the pandemic currently prevents the plaintiffs from commencing proceedings in Macau. The court rejected this argument because no evidence suggested that representatives of the plaintiffs had to be present in Macau for lawyers retained by them to commence proceedings.

Second, plaintiffs also alleged that their witnesses could not travel from Australia to Macau because of the pandemic. The court also rejected this argument because of insufficient evidence. According to the court, the plaintiffs did not provide any evidence of the impact of COVID?19 in Macau, for example, what restrictions were being experienced now, what restrictions were likely to be experienced in the future and how long those restrictions may persist. There was also no evidence showing when a trial of proceedings commenced now in Macau might be heard. Although Australian witnesses might be called in the Macau proceedings, the plaintiffs did not identify any specific persons who would be called were residents in Australia. It was also unclear whether overseas witnesses might be called if the proceedings were conducted in Australia as Australia also imposed strict travel restrictions.

Finally, the court ruled for the defendant and dismissed the plaintiffs’ claim. Nevertheless, the court indicated that the plaintiffs could recommence the proceedings in Queensland if the circumstances of the COVID-19 pandemic changed materially in Macao in the future.

Comments:

It is well established that an exclusive foreign jurisdiction clause does not operate to exclude Australian courts’ jurisdiction; however, the courts will hold the parties to their bargain and grant a stay of proceedings, unless the party who seeks that the proceedings be heard in Australia can show that there are strong reasons against litigating in the foreign jurisdiction.[1] In exercising its discretion, the court should take into account all the circumstances of the particular case. However, doubts have been cast as to whether courts should consider financial or forensic inconvenience attaching to the nominated foreign jurisdiction, at least when these factors should have been known to the parties at the time the exclusive jurisdiction clause was agreed by them.[2]

In RCD, the court correctly held that Clause 10 should be interpreted as manifesting an intention that disputes would be determined in Macau by applying the law of Macau. Although the application of Macau law might bring financial benefits to the defendant because it is more difficult to prove liability for damages under the Macau law than the law in Australia. However, this is insufficient to convince the court to exercise jurisdiction because the potential financial benefits for the defendant are what the parties have bargained for.

Regarding the location of witnesses, the court is also correct that parties should expect that breaches may occur in Australia as the contract would be partially performed there, and consequently, witnesses in Australia may need to be called for proceedings in Macao. Therefore, the location and travel of witnesses are not a strong reason for Australian courts to exercise jurisdiction.

The outbreak of the COVID-19 pandemic is a factor that parties could not reasonably expect when they concluded their foreign jurisdiction clause. If a plaintiff wants to convince an Australian court to exercise jurisdiction in spite of an exclusive foreign jurisdiction clause, this plaintiff must provide solid evidence of the impacts of the COVID-19 pandemic on foreign proceedings. If the plaintiff can show that the pandemic developed so as to effectively prevent, or unduly frustrate the plaintiff in litigating in the foreign jurisdiction, then that might be a discretionary consideration, with any other relevant considerations, in favor of allowing the plaintiffs to litigate in Australia.

 

[1] High Court of Australia decisions such as Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 445, Oceanic Sunline Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 259, Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502 at 508-509.

Decisions of intermediate courts of appeal such as Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) & Ors (2010) 79 ACSR 383 at 402-403, [88]-[89], Australian Health & Nutrition Association Ltd & Anor v Hive Marketing Group Pty Ltd & Anor (2019) 99 NSWLR 419 at 438, [78], Venter v Ilona MY Ltd [2012] NSWSC 1029.

[2] Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496 at 506 and Australian Health & Nutrition Association Ltd & Anor v Hive Marketing Group Pty Ltd & Anor (2019) 99 NSWLR 419.

In preparation of the Conference on the HCCH 2019 Judgments Convention on 13/14 September 2021, planned to be taking place (if Covid-19 allows it) on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, and we will update …

Update of 16 February 2021: New entries are printed bold. Please also check the list of video recording of events on the Convention at the bottom, if you like.

Please also check the “official” bibliograghy of the HCCH for the instrument.

Explanatory Reports

Garcimartín Alférez, Francisco;
Saumier, Geneviève „Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128

 

Bibliography

Balbi, Francesca “La circolazione delle decisioni a livello globale: il progetto di convenzione della Conferenza dell’Aia per il riconoscimento e l’esecuzione delle sentenze straniere” (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2019; available: here) Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul R. “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Blom, Joost “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 Bonomi, Andrea “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 Bonomi, Andrea “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 Bonomi, Andrea;
Mariottini, Cristina M. “(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 Borges Moschen, Valesca Raizer;
Marcelino, Helder “Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319

(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) Brand, Ronald A. “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 Brand, Ronald A. “Jurisdictional Developments and the New Hague Judgments Project”, “in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon”, Cambridge 2013, pp 89-99 Brand, Ronald A. “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 Brand, Ronald A. “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 Brand, Ronald A. “The Hague Judgments Convention in the United States: A ‘Game Changer’ or a New Path to the Old Game?“, University of Pittsburgh Law Review, forthcoming, (available here) Çaliskan, Yusuf;
Çaliskan, Zeynep “2 Temmuz 2019 Tarihli Yabanci Mahkeme Kararlarinin Taninmasi ve Tenfizine Iliskin Lahey Anlasmasinin Degerlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245

(An Evaluation of 2 July 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) Clavel, Sandrine; Jault-Seseke, Fabienne “La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale: Que peut-on en attendre?”, Travaux du comité français de Droit international privé, Vol. 2018-2020, forthcoming (Version provisoire de la communication présentée le 4 octobre 2019, available here) Clover Alcolea, Lucas “The 2005 Hague Choice of Court and the 2019 Hague Judgments Conventions versus the New York Convention – Rivals, Alternatives or Something Else?”, Mc Gill Journal of Dispute Resolution 6 (2019-2020), pp. 187-214 Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 Cuniberti, Gilles “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 de Araujo, Nadia; de Nardi, Marcelo;
Spitz, Lidia “A nova era dos litígios internacionais”, Valor Economico 2019 de Araujo, Nadia;
de Nardi, Marcelo;
Lopes Inez;
Polido, Fabricio „Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34 de Araujo, Nadia;
de Nardi, Marcelo „Consumer Protection Under the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 67-79 de Araujo, Nadia;
de Nardi, Marcelo „22ª Sessão Diplomática da Conferência da Haia e a Convenção sobre sentenças estrangeiras: Primeiras reflexões sobre as vantagens para o Brasil da sua adoção“, Revista de la Secretaría del Tribunal Permanente de Revisión 7 No. 14 (2019), páginas 198-221

(22nd Diplomatic Session of The Hague Conference and the Convention on Foreign Judgments: First Reflections on the Advantages for Brazil of their Adoption) Dotta Salgueiro, Marcos “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”, Netherlands International Law Review (NILR) 67 (2020), pp 113-120 Douglas, Michael;
Keyes, Mary;
McKibbin, Sarah;
Mortensen, Reid “The HCCH Judgments Convention in Australian Law”, Federal Law Review 47 (2019), pp 420-443 Efeçinar Süral Possible Ratification of the Hague Convention by Turkey and Its Effects to the Recognition and Enforcement of Foreign Judgments, Public and Private International Law Bulletin 40/2 (2020), pp. 785 et seq. Fan, Jing “On the Jurisdiction over Intellectual Property in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Chinese Yearbook of Private International Law and Comparative Law 2018-02, pp. 313-337 Franzina, Pietro; Leandro, Antonio

  “La Convenzione dell’Aja del 2 luglio 2019 sul riconoscimento delle sentenze straniere: una prima lettura”, Quaderni di SIDIblog 6 (2019), pp 215-231, available at http://www.sidi-isil.org/wp-content/uploads/2020/09/Quaderni-di-SIDIBlog-6-2019.pdf

(The Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments: A First Appraisal) Fuchs, Felix “Das Haager Übereinkommen vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Urteile in Zivil- oder Handelssachen“, Gesellschafts- und Wirtschaftsrecht (GWR) 2019, pp 395-399 Garcimartín, Francisco “The Judgments Convention: Some Open Questions”, Netherlands International Law Review (NILR) 67 (2020), pp 19-31 Garnett, Richard “The Judgments Project: fulfilling Assers dream of free-flowing judgments”, in: Thomas John, Rishi Gulati, Ben Koehler (eds.), The Elgar Companion to the Hague Conference on Private International Law, Cheltenham/Northampton 2020, pp. 309-321 Goddard, David „The Judgments Convention – The Current State of Play”, Duke Journal of Comparative & International Law 29 (2019), pp 473-490 He, Qisheng “The HCCH Judgments Convention and the Recognition and Enforcement of Judgments pertaining to a State”, Global Law Review 3 (2020), pp 147-161 He, Qisheng “Unification and Division: Immovable Property Issues under the HCCH Judgement Convention”, Journal of International Law 1 (2020), pp 33-55 Jacobs, Holger “Der Zwischenstand zum geplanten Haager Anerkennungs- und Vollstreckungsübereinkommen – Der vorläufige Konventionsentwurf 2016“, Zeitschrift für Internationales Privatrecht & Rechtsvergleichung (ZfRV) 2017, pp 24-30 Jang, Junhyok “The Public Policy Exception Under the New 2019 HCCH Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 97-111 Jang, Junhyok “2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Korea Private International Law Journal 25 (2019), pp. 437-510. Jovanovic, Marko Thou Shall (Not) Pass – Grounds for Refusal of Recognition and

Enforcement under the 2019 Hague Judgments Convention, YbPIL 21 (2019/2020), pp. 309 – 332 Jueptner, Eva “The Hague Jurisdiction Project – what options for the Hague Conference?”, Journal of Private International Law 16 (2020), pp 247-274 Jueptner, Eva “A Hague Convention on Jurisdiction and Judgments: why did the Judgments Project (1992-2001) fail?”, (Doctoral Thesis, University of Dundee, 2020) Kasem, Rouzana “The Future of Choice of Court and Arbitration Agreements under the New York Convention, the Hague Choice of Court Convention, and the Draft Hague Judgments Convention”, Aberdeen Student Law Review 10 (2020), pp. 69-115 Kessedjian, Catherine “Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?“, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 19-33 Khanderia, Saloni „The Hague judgments project: assessing its plausible benefits for the development of the Indian private international law”, Commonwealth Law Bulletin 44 (2018), pp 452-475 Khanderia, Saloni “The Hague Conference on Private International Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?”, Journal of African Law 63 (2019), pp 413-433 Mariottini, Cristina „Establishment of Treaty Relations under The 2019 Hague Judgments

Convention“, YbPIL 21 (2019/2020), pp. 365-380 Mariottini, Cristina “The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, YbPIL 19 (2017/2018), pp 475-486. Martiny, Dieter “The Recognition and Enforcement of Court Decisions Between the EU and Third States”, in Alexander Trunk, Nikitas Hatzimihail (eds.), EU Civil Procedure Law and Third Countries – Which Way Forward?, Baden-Baden 2021, pp 127-146 Meier, Niklaus “Notification as a Ground for Refusal”, Netherlands International Law Review (NILR) 67 (2020), pp 81-95 Nielsen, Peter Arnt “The Hague 2019 Judgments Convention – from failure to success”, Journal of Private International Law 16 (2020), pp 205-246 North, Cara “The 2019 HCCH Judgments Convention: A Common Law Perspective”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 202-210 North, Cara “The Exclusion of Privacy Matters from the Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 33-48 Oestreicher, Yoav “ ’We’re on a Road to Nowhere’ – Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments”, The International Lawyer 42 (2008), pp 59-86 Okorley, Solomon “The possible impact of the Hague Convention on the Recognition and Enforcement of foreign Judgments in Civil or Commercial Matters on Private International Law in Common Law West Africa”, (Master’s Dissertation, University of Johannesburg, 2019; available: here) Pasquot Polido, Fabrício B. “The Judgments Project of the Hague Conference on Private International Law: a way forward for a long-awaited solution”, in Verónica Ruiz Abou-Nigm, Maria Blanca Noodt Taquela (eds.), Diversity and integration in Private International Law, Edinburgh 2019, pp. 176-199 Pertegás Sender, Marta “The 2019 Hague Judgments Convention: Its Conclusion and the road ahead”, in Asian Academy of International Law (publ.), Sinergy and Security: the Keys to Sustainable Global Investment: Proceedings of the 2019 Colloquium on International Law, 2019 Hong Kong, pp 181-190 Pertegás, Marta “Brussels I Recast and the Hague Judgments Project”, in Geert Van Calster (ed.), European Private International Law at 50: Celebrating and Contemplating the 1968 Brussels Convention and its Successors, Cambridge 2018, pp 67-82 Pertegás, Marta “The 2019 Hague Judgments Convention: The Road Ahead”, in Proceedings of the 16th PIL Regional Conference (Tirana, 2019), forthcoming (available here) Qian, Zhenqiu “On the Common Courts Provision under the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Wuhan University International Law Review
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Yang, Yu “On the Interpretation and Application of the Cost of Proceedings Provision under the Hague Judgment Convention”, China Journal of Applied Jurisprudence 2020-04, pp. 96-108 Reyes, Anselmo „Implications of the 2019 Hague Convention on the Enforcement of Judgments of the Singapore International Commercial Court”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 695-709 Ribeiro-Bidaoui, João “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 Rumenov, Ilija “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-4040 Sachs, Klaus;
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Recordings of Events Related to the HCCH 2019 Judgments Convention

HCCH “22nd Diplomatic Session of the HCCH: The Adoption of the 2019 Judgments Convention”, 2 July 2020 (short documentary video available here) University of Bonn; HCCH “Pre-Conference Video Roundtable on the HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil and Commercial Matters between the EU and Third Countries”, 29 October 2020 (full recording available here) JPRI; HCCH; UNIDROIT; UNCITRAL “2020 Judicial Policy Research Institute International Conference – International Commercial Litigation: Recent Developments and Future Challenges, Session 3: Recognition and Enforcement of Foreign Judgments”, 12 November 2020 (recording available here) ASADIP; HCCH “Conferencia Internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras”, 3 December 2020 (full recording available here and here)