Conflictoflaws

As announced earlier on this blog, the Gender and Private International Law (GaP) kick-off event took place on October 25th at the Max Planck Institute for Comparative and International Private Law in Hamburg.

This event, organized by Ivana Isailovic and Ralf Michaels, was a stimulating occasion for scholars from both Gender studies and Private and Public international law to meet and share approaches and views.

During a first session, Ivana Isailovic presented the field of Gender studies and its various theories such as liberal feminism and radical feminism. Each of these theories challenges the structures and representations of men and women in law, and helps us view differently norms and decisions. For example, whereas liberal feminism has always pushed for the law to reform itself in order to achieve formal equality, and therefore focused on rights allocation and on the concepts of equality and autonomy, radical feminism insists on the idea of a legal system deeply shaped by men-dominated power structures, making it impossible for women to gain autonomy by using those legal tools.

Ivana Isailovic insisted on the fact that, as a field, Gender studies has expanded in different directions. As a result, it is extremely diverse and self-critical. Recent transnational feminism studies establish links between gender, colonialism and global capitalism. They are critical toward earliest feminist theories and their hegemonic feminist solidarity perception based on Western liberal paradigms.

After presenting those theories, Ivana Isailovic asked the participants to think about the way gender appears in their field and in their legal work, and challenged them to imagine how using this new Gender studies approach could impact their field of research, and maybe lead to different solutions, or different rules. That was quite challenging, especially for private lawyers who became aware, perhaps for the first time, of the influence of gender on their field.

After this first immersion in the world of gender studies, Roxana Banu offered a brief outline of private international law’s methodology, in order to raise several questions regarding the promises and limits of an interdisciplinary conversation between Private International Law (PIL) and gender studies. Can PIL’s techniques serve as entry points for bringing various insights of gender studies into the analysis of transnational legal matters? Alternatively, could the insights of gender studies fundamentally reform private international law’s methodology?

After a short break, a brainstorming session on what PIL and Gender studies could bring to each other took place. Taking surrogacy as an example, participants were asked to view through a gender studies lens the issues raised by transnational surrogacy. This showed that the current conversation leaves aside some aspects which, conversely, a Gender studies approach puts at the fore, notably the autonomy of the surrogate mother and the fact that, under certain conditions, surrogacy could be a rational economic choice.

This first set of questions then prompted a broader philosophical debate about the contours of an interdisciplinary conversation between PIL and Gender studies. Aren’t PIL scholars looking at PIL’s methodology in its best light while ignoring the gap between its representation and its practice? Would this in turn enable or obfuscate the full potential of gender studies perspectives to critique and reform private international law?

As noted by the organizers, “although private international law has always dealt with question related to gender justice, findings from gender studies have thus far received little attention within PIL”. The participants realized that is was also true the other way around: although they were studying international issues, scholars working on gender did not really payed much attention to PIL either.

One could ask why PIL has neglected gender studies for so long. The avowedly a-political self-perception of the discipline on the one hand, and the focus on public policy and human rights on the other, could explain why gender issues were not examined through a Gender studies lens. However, Gender studies could be a useful reading grid to help PIL become aware of the cultural understanding of gender in a global context. It could also help to understand how PIL’s techniques have historically responded to gender issues and explore ways to improve them. Issues like repudiation recognition, polygamous marriage or child abductions could benefit from this lens.

It was announced that a series of events will be organized: reading groups, a full day workshop and a conference planned for the Spring of 2020.

If you want to know more about the project, please contact gender@mpipriv.de.

This week the Depositary of the HCCH Conventions informed all Contracting Parties that the UK ratification of the HCCH Child Support Convention and the UK accession to the HCCH Choice of Court Convention, including the UK extension to Gibraltar under both Conventions, remain suspended until 1 February 2020.

The above is pursuant to the declaration made by the United Kingdom on 30 October 2019, which informed the Depositary that “the European Council has agreed a further extension of the period for the withdrawal of the United Kingdom from the European Union under Article 50(3) of the Treaty on the European Union (the “Extension Period”) which would last until 31 January 2020, or any of the earlier specified dates on which the Withdrawal Agreement enters into force.”

This of course comes as no surprise to many of us. Nevertheless, it is important to bear in mind the new date specified by the Depositary, which seems to cope with a no-deal Brexit scenario and can have important practical consequences (e.g. applicable declarations, temporal scope of application). Importantly, and as indicated in the relevant notifications, in the event that a Withdrawal Agreement is signed, ratified and approved by the United Kingdom and the European Union and enters into force prior to or on 1 February 2020, the United Kingdom will withdraw the Instrument of Ratification and the Instrument of Accession (including the extension to Gibraltar) to the above-mentioned Conventions.

Our previous posts on this matter are available here (part I) and here (part II).

The notifications of the Depositary are available here (Child Support Convention) and here (Choice of Court Convention).

The European Union, as a Regional Economic Integration Organisation, approved both the Child Support Convention and the Choice of Court Convention on 9 April 2014 and 11 June 2015, respectively.

Erasmus School of Law has a vacancy for a postdoc position for a subproject on ADR within the ERC Consolidator project: ‘Building EU civil justice: challenges of procedural innovations bridging access to justice’ (EU-JUSTICE)

For this project, we are looking for a talented and energetic postdoctoral researcher with a strong interests in multidisciplinary research and the overall objectives of the project. The ideal candidate should be a dynamic and independent thinker with a team spirit, and should enjoy working in an international environment. The project is financed by the European Research Council under its ERC Consolidator scheme (funding ID 726032). The project is led by Prof. dr. Xandra Kramer. The project kicked off in September 2017 with a group of six researchers and a research assistant with diverse backgrounds who have very successfully collaborated in conducting and presenting research from a multidisciplinary perspective, organising international events, and reaching out to key stakeholders at national and European levels to create impact. The researcher will conduct research in the area of ADR, and will collaborate with the other project members, in particular with the PhD researcher working on ODR. While the research takes place in the context of the project description, the researcher remains free to develop his or her own strands of research within the broad area of ADR.

Check out our website is: www.euciviljustice.eu.

More information is available here.

Requirements

• hold a PhD, or obtain this before or shortly after appointment, in dispute resolution, or (European) civil procedure;
• good knowledge of alternative dispute resolution mechanisms;
• relevant international publications;
• experience with comparative law research;
• preferably experience with or qualifications in empirical legal research;
• human and managerial skills as well as a relevant professional network;
• excellent writing and oral skills in English;
• working proficiency in at least one or two other languages relevant for the project will be an asset.

Application and conditions of employment

Apply before 18 November 2019, in accordance with the requirements set out at Academic Transfer, where you will also find additional information on the terms of employment. The starting date is 1 January 2020 or any earlier if possible. The employment is for a fixed term of twenty months (1 September 2021), but may be extended for a fixed period if additional funding is obtained.

For more information contact Xandra Kramer, kramer@law.eur.nl

Written by Felix M. Wilke, Senior Lecturer at the University of Bayreuth, Germany.

Must a foreign judgment be recognised in which a jurisdiction agreement has been applied incorrectly, i.e. in which a court wrongly assumed to be competent or wrongly declined jurisdiction? Within the European Union, the basic answer is a rather straightforward “yes”. Recognition can only be refused on the grounds set forth in Article 45(1) Brussels Ibis Regulation, and unlike Article 7(1)(d) of the recently adopted HCCH Judgments Convention, none of them covers this scenario. What is more, Article 45(3) Brussels Ibis expressly states that the jurisdiction of the court of origin, save for certain instances of protected parties, may not be reviewed, not even under the guise of public policy.

Why, then, should one bother to read the book by Niklas Brüggemann, Die Anerkennung prorogationswidriger Urteile im Europäischen und US-amerikanischen Zivilprozessrecht (Mohr Siebeck) on the recognition of judgments in contravention of prorogation clauses in European and US-American law? The first and rather obvious reason can be found in the second part of the title. The book contains a concise, yet nuanced overview of the law of jurisdiction agreements in the US (in German). To the knowledge of this author, it has been 12 years since the last comparable work was published (Florian Eichel, AGB-Gerichtsstandsklauseln im deutsch-amerikanischen Handelsverkehr (Jenaer Wissenschaftliche Verlagsgesellschaft) – which dealt with recognition only in passing and was limited to German and US law). Thus, this new book can be recommended to anyone with sufficient command of the German language who is interested in this particular aspect of US civil procedure, whose concepts – if one even dares to use that term – partly differs from European ideas.

The second and main reason to concern oneself with Brüggemann’s book, however, is his proposition for a new ground of refusal of recognition: a new Article 45(1)(e)(iii) Brussels Ibis for which he even offers a draft. To this end, the author comprehensively analyses jurisdiction agreements within the Brussels Ibis framework. While Article 31(2) Brussels Ibis, one of the main innovations of the Recast, has indeed “enhance[d] the effectiveness of exclusive choice-of-court agreements” (Recital 22 Brussel Ibis), Brüggemann argues that the Regulation still safeguards jurisdiction agreements insufficiently. He points out several situations (e.g. asymmetrical agreements, mere derogation agreements) that Article 31(2) Brussels Ibis does not cover in the first place. He also argues in some detail that the court first seised is allowed to examine the jurisdiction agreement in question with regard to the existence of an agreement and its formal validity; its assessment would be binding upon other courts in line with Gothaer Allgemeine (ECJ Case C-456/11). This in turn would lead to a race to the courts and even to a race between the courts. (The latter metaphor is only partially convincing, for it is unlikely that the judges will intentionally accelerate their respective proceedings in order to “beat” the other court.)

Brüggemann goes on to argue that when it comes to jurisdiction agreements it is contradictory to make an exception to the principle of mutual trust in the lis pendens context but to strictly adhere to it in the recognition context. He demonstrates that, in particular, default judgments by a derogated court pose a significant risk for the defendant – one with which US civil procedure arguably deals more effectively. Alas, this appears to be the only instance in which the author’s comparative analysis, as interesting it is in and of itself, contributes to his broader point. He concludes by pointing out parallels to jurisdiction in insurance/consumer/employment matters (safeguarded at the stage of recognition by Article 45(1)(e)(i) Brussels Ibis) and exclusive jurisdiction (safeguarded at the stage of recognition by Article 45(1)(e)(ii) Brussels Ibis), and by suggesting that a special ground for refusal of recognition would have positive effects on the internal market.

While the abovementioned Judgments Convention is too recent to feature in the book, the author was able to consider its draft in a separate, albeit somewhat oddly positioned, chapter. Conspicuously absent is any specific discussion of the issue of damages for the violation of a choice of court agreement (see this recent post). The omission is certainly justifiable as Brüggemann is only concerned with procedural safeguards for jurisdiction agreements. But maybe such a remedy under substantive law could obviate or at least lessen the need for a separate ground of refusal of recognition? All in all, however, the author has carefully built a compelling case for an addition to Article 45(1) Brussels Ibis.

The Faculty of Law of Humboldt-University Berlin invites applications for 7 doctoral positions as Research fellow with 3/4-part-time-employment – E 13 TV-L HU1 (third party funding, short-term until 30 November 2021, prolongation is possible; engagement intended until 1 December 2019)

Job description:

• Research activities in the doctoral programme “Dynamic Integration – Law in-between Harmonisation and Plurality in Europe (DynamInt)” funded by the Deutsche Forschungsgemeinschaft (German Research Foundation, GRK 2483);
• Activities for your own scientific qualification (PhD within the thematic areas of the doctoral programme).

You can find more information about the post graduate program DynamInt online: https://www.rewi.hu-berlin.de/de/lf/oe/rhp/index.htm

Requirements

• First German State Examination in Law or Master Degree in Law (preferably with distinction or better);
• Sufficient command of German and at least one further European common language.

Application period until

1st November 2019 (not fixed, extension possible)

Application details

Applications must include a research proposal for the PhD discussing the state of research, framing a scientific question as well as a research plan.

Applications must indicate the identification number of this Call for application (DR/158/19) and should be sent to Humboldt University of Berlin, Faculty of Law, Professor Dr. Matthias Ruffert, Unter den Linden 6, 10099 Berlin or to the following e-mail address: DynamInt@rewi.hu-berlin.de (one PDF, max. 10 MB).

NB

The working language of the programme (courses, workshops etc.) is German. The PhD thesis may be written in English.

English text for information with additional explanations – only the German text is authoritative.

Workshop: Application of the “Second Generation” Regulations in The Netherlands

The Erasmus School of Law (Erasmus University Rotterdam, the Netherlands) will host a second national workshop on Thursday, 14 November 2019 from 9.30-13.00 hrs, in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE) (see our first workshop). This project (JUSTAG-2016-02) is funded by the Justice Programme (2014-2020) of the European Commission and aims to assess the functioning in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order (“EEO”), European Order for Payment (“EPO”), European Small Claims (as amended by Regulation (EU) 2015/2421) (“ESCP”) and the European Account Preservation Order (“EAPO”) Regulations.

The project is carried out by a European consortium involving the Max Planck Institute Luxembourg and the universities of Antwerp, Complutense of Madrid, Milan, Rotterdam, and Wroclaw, and is coordinated by Prof. Jan von Hein from the University of Freiburg.

The workshop will present the findings of the research in the Netherlands and discuss these with experts from legal practice and academics, with the aim of assessing and improving the application of these instruments.

The language of the workshop is mostly Dutch. Practitioners and academics interested in cross-border litigation are invited to participate in this event. The program can be found here. Contact address for registration and further information: ontanu@law.eur.nl.

The final conference for this IC2BE project will take place in Antwerp on 21-22 November 2019. For more information and registration see our previous post and the project website.

The third issue of 2019 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released and it features:

Stefania Bariatti, Professor at the University of Milan, Volontà delle parti e internazionalità del rapporto giuridico: alcuni sviluppi recenti nella giurisprudenza della Corte di giustizia sui regolamenti europei in materia di diritto internazionale privato (Party Autonomy and Characterization of a Legal Relationship as International: Some Recent Developments in the Jurisprudence of the Court of Justice on the EU Regulations in Private International Law; in Italian)

Two recent cases brought before the Court of Justice of the EU lead to meditate about the admissibility of choice of court clauses in favour of a foreign court and choice of law clauses in favour of a foreign law inserted in purely domestic contracts. In the Vinyls case, the Court of Justice has stated that the choice of a foreign law, that is valid according to the Rome I Regulation, is valid also for purposes of Article 16 of Regulation No 2015/848 (European Insolvency Regulation Recast), provided that such choice is not fraudulent or abusive. This solution, that is in line with the previous case-law of the Court, requires that the parties to a domestic contract carefully check the reasons for choosing a foreign law and it excludes that national provisions of law concerning the voidness or voidability of detrimental acts in case of insolvency qualify as mandatory rules under Article 3(3) of the Rome I Regulation. The second case, that will not be decided by the Court since it was repealed by the national judge, concerns the choice of a foreign forum in a domestic contract subject to the ISDA rules, that are widely used in international business transactions. Some recent judgments of the Court suggest that such choice is apt to qualify a domestic contract as ‘international’ for purposes of applying the Brussels I recast Regulation and is valid according to its Article 25.

In addition to the foregoing, the following comment is featured:

Martina Mantovani, PhD Candidate at the University of Paris II Pantheon-Assas and Research Fellow at the Max Planck Institute Luxembourg for Procedural Law, Horizontal Conflicts of Member States’ GDPR-Complementing Laws: The Quest for a Viable Conflict-of-Laws Solution (in English)

This paper offers a comparative overview of the national provisions defining the reach of the laws adopted by Member States on the basis of the opening clauses enshrined in the GDPR. It identifies the lack of coordination among the Member States’ complementing laws as a major hindrance to the proper functioning of the internal digital market, due to the paramount problems of over – and under – regulation, and increased potential for forum and law shopping stemming from the existing legislative framework. Against this backdrop, this paper submits that existing national rules of applicability may be deemed contrary to EU law, and should be interpreted, to the extent possible, “in conformity” with the wording and the purpose of the GDPR. In this vein the scheme and objectives of the GDPR, should be directly applied.

The latest issue of Erasmus Law Review, edited by Xandra Kramer and John Sorabji is dedicated to International Business Courts. It contains eleven papers focusing on a specific jurisdiction or on horizontal issues, including international jurisdiction and lawyers’ preferences in international litigation. The Introductory paper by the editors frames the discussion on international business courts and provides explanations for the rise ofthese courts in Europe and beyond, addresses aspects of
justice innovation and international competition, as well as the effect these new courts may have on
globalising commercial court litigation.

This issue of Erasmus Law Review results from the seminar ‘Innovating International Business
Courts: a European Outlook’ hosted by the Erasmus School of Law in Rotterdam, held on 10 July 2018, and coorganised by the Max Planck Institute for Procedural Law in Luxembourg and the Montaigne Centre for Rule of Law and Administration of Justice of Utrecht University. It includes the speaker contributions to that seminar and additional articles resulting from a call for papers on this blog.  The complete issue can be downloaded here. The table of contents is at the bottom of this post.

Similtaneously a book expanding on the topic and including a views from twelve jurisdictions has just been published: International Business Courts: A European and Global Perspective  (eds. Xandra Kramer & John Sorabji), Eleven International Publishing 2019. (order form) This electronic version of this book will become available open access soon.

These publications result from and are financed by the ERC Consolidator project Building EU Civil Justice at the Erasmus School of Law in Rotterdam.

Table of contents Erasmus Law Review 2019(1) – International Business Courts

(1) International Business Courts in Europe and Beyond: A Global Competition for Justice?
Xandra Kramer & John Sorabji

(2) A View from the Business and Property Courts in London
Sir Geoffrey Vos

(3) Commercial Litigation in Europe in Transformation: The Case of the Netherlands Commercial Court
Eddy Bauw
(4) International Commercial Courts in France: Innovation without Revolution?
Alexandre Biard
(5) Chambers for International Commercial Disputes in Germany: The State of Affairs
Burkhard Hess & Timon Boerner
(6) The Brussels International Business Court: Initial Overview and Analysis
Erik Peetermans & Philippe Lambrecht
(7) Requirements upon Agreements in Favour of the NCC and the German Chambers – Clashing with the Brussels Ibis Regulation?
Georgia Antonopoulou
(8) Matchmaking International Commercial Courts and Lawyers’ Preferences in Europe
Erlis Themeli
(9) The Singapore International Commercial Court: The Future of Litigation?
Man Yip
(10) Joinder of Non-Consenting Parties: The Singapore International Commercial Court Approach Meets Transnational Recognition and Enforcement
Drossos Stamboulakis & Blake Crook
(11) The Emergence of International Commercial Courts in India: A Narrative for Ease of Doing Business?
Sai Ramani Garimella & M.Z. Ashraful
(12) The Court of the Astana International Financial Center in the Wake of Its Predecessors
Nicolas Zambrana-Tevar

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

D. Einsele: The Law Applicable to Third-Party Effects of Assignments of Claims – A Critical Interjection Regarding the Commission’s Proposal

Claims are relative rights against the debtor. Therefore, third parties are not legally affected by the assignment of a claim. However, legal systems may protect third parties’ (economic) interest in knowing who the creditor of a claim is. Insofar, essentially two different means of making the assignment public have to be distinguished, i.e. “relative” publicity, in particular by notice of the assignment to the debtor, and “absolute” publicity, in particular by registration of the assignment in a public register. Whereas means of relative publicity usually can be qualified as rules covered by Art. 14(1) and 18(1) Rome I Regulation, means of absolute publicity are generally overriding mandatory provisions. Instead of qualifying different publicity provisions, Art. 4 of the Proposal establishes one single rule for all third-party effects of assignments. Yet it distinguishes, in a conceptually erratic manner, different cases of assignments of claims and allows for party autonomy relating to third-party effects, thereby infringing basic legal principles. The Proposal will also not bring about legal certainty regarding the third-party effectiveness of assignments. This is due to the “super” conflict rules of Art. 4(1) subs. 2, Art. 4(4) of the Proposal and the lack of (explicit) rules concerning chains of assignments. Requirements for absolute publicity – qualified as overriding mandatory provisions – would in any event not be caught by Art. 4 of the Proposal.

C. Thole: The distinction between EIR and Brussels Ia-reg. with respect to damage claims against third parties based on damages incurred by the general body of creditors

The recent judgment of the ECJ shows, once again, the difficulties in distinguishing between civil matters (falling within the scope of the Brussels Ia Regulation) and actions within the meaning of Art. 6 EIR which derive directly from the insolvency proceedings and are closely linked to them. The Court had to deal with a special action established under Dutch law that allows the insolvency practitioner to pursue a damage claim against third parties on the grounds of them allegedly being party to a misappropriation of assets committed by the debtor. The ECJ concluded that such a claim falls within the scope of the Brussels Ia Regulation, notwithstanding the fact that the action is brought by the liquidator in insolvency proceedings and the proceeds of the action, if the claim succeeds, accrue to the general body of creditors. Christoph Thole analyses the judgment and its consequences for other damage claims based on German law. He also argues that the ECJ is trying to more and more confine the criteria relevant under Art. 6 EIR to a sole criterion, i.e. the legal basis of the action. This shows some similarities with the approach followed by the ECJ with respect to the general distinction between civil and administrative matters under art. 1 Brussels Ia Regulation.

C.A. Kern/C. Uhlmann: International jurisdiction and actio pauliana (avoidance action) in the absence of insolvency proceedings

The ECJ ruled that international jurisdiction for the avoidance action of a Polish creditor against a Spanish third party which had received assets from the Polish co-contractor of the creditor can be based on Art. 7 No. 1 lit. a Brussels I bis Regulation. For the ECJ, international jurisdiction for an avoidance action against the “enriched” third party can be derived from the original contractual relationship between creditor and debtor. The authors criticize the decision of the ECJ and instead argue in favor of the general place of jurisdiction (Art. 4 para. 1 Brussels I bis Regulation).

K. Sirakova/P. Westhoven: Do broadly worded jurisdiction clauses cover actions based on the abuse of a dominant position?

The interpretation of jurisdiction agreements in the private enforcement of EU competition law continues to raise various questions in Member State courts even after the ECJ’s decision in CDC Hydrogen Peroxide. The latest ruling of the Luxembourg court in this context was the case Apple Sales International. The judgment clarifies some of the questions that remained open in the aftermath of the CDC-ruling and provides guidance on the interpretation of jurisdiction agreements by proposing a general differentiation between claims resulting from an infringement of Art. 101 TFEU and such based on Art. 102 TFEU. While the judgment will undoubtedly facilitate a swift decision of jurisdiction issues in many private enforcement cases, the approach of the ECJ should not be understood as entirely excluding the discretion of the national courts in interpretation matters. It remains the sole responsibility of the Member State judges to take into account the individual circumstances of each case.

C. Mayer: Pitfalls of public service and of choice of court agreements in international business transactions

In order to guarantee the applicant effective legal protection, the possibility of public service is indispensable, particularly in cross-border legal relations with non- EU Member States. However, in order to protect the defendant’s right to be heard, public service is permissible only under strict conditions, otherwise service is ineffective. A hasty recourse to this procedural means can therefore have considerable procedural, but also material legal consequences for an applicant entitled to claim, because ineffective service does not start the course of appeal periods nor the limitation period. The decision of the higher regional court of Hamburg discussed below shows that even small mistakes in allegedly simple procedural steps can be fatal to the plaintiff.

M. Brinkmann: Counterclaims under the Brussels I Regulation

In Petronas Lubricants Italy SpA ./. Livio Guida, the ECJ had the opportunity to refine the Court’s understanding of the relationship between claim and counter-claim required by Art. 8 Nr. 3 Brussels Ia Regulation. As in Northartov(C-306/17), a decision which had been published shortly before, the ECJ relied on the wording established in the Kostanjevec-case by asking whether the original claim and the counter-claim share a “common origin”. Such a common origin exists, according to the ECJ, even if the original claim is based on a contractual relationship and the counter-claim is based on a different contractual relationship as long as they arise from the “same facts”. If this requirement is met, the fact that the claim of the counter-claimant has previously been assigned to him by a third party, is irrelevant. The reasoning of the Court gives cause to revisit the basics of the jurisdiction for counter-claims in European Civil Procedure and to reflect on the admissibility of counter-claims against third parties under the Brussel Ia Regulation.

B. Heiderhoff: The „tricky” subjective element of habitual residence

The concept of habitual residence still poses problems for German courts. While the CJEU strongly favours a fact-based approach, national courts show a tendency to give greater weight to so-called subjective elements, i.e. factors such as attachment to the home state or the vague intention to move „back home“. Based on the analysis of several court decisions, including the CJEU’s UD ./. XB judgment, the article aims at clarifying the rather limited role of subjective criteria within the concept of habitual residence.

D. Looschelders: Waiving an inheritance before German courts in cases of international successions

Accepting or waiving an inheritance may pose considerable practical difficulties to heirs with habitual residence in a Member State different from the one in which the succession according to the European Succession Regulation is settled. In order to facilitate the acceptance or waiver of the succession, Article 13 of the European Succession Regulation assigns special jurisdiction to the court at the habitual residence of the person making the declaration. However, the interpretation of this provision raises some unresolved issues. The present decisions of the Higher Regional Courts of D sseldorf and Koblenz are the first statements by higher German courts in relation to this matter. Specifically, they deal with local jurisdiction, the effects of a waiver before a court at the habitual residence of the person making the declaration on the inheritance procedure of the competent court at the last habitual residence of the deceased and the necessity of court approval for waivers of minors. The article presents by means of these judgments that waivers of succession before German courts in cases of international successions lead to significant imponderability. Yet the author opines that the person making the declaration can counteract most of the uncertainties by following a careful approach.

C. Möllnitz: Violation of the national public policy by the registration of a noble name changed by deed poll and its effects on European fundamental rights

The current decision of the German Federal Court restricts the European right of freedom of movement by proscribing the registration of a name in Germany containing a former title of nobility due to a violation of the national public policy, even if the name is lawfully registered in another member state of the European Union. While the arguments on a violation of the national public policy are convincing, the justification of the restriction of the freedom of movement is questionable in the light of the European jurisprudence. The fact that former titles of nobility, as part of a name, are not completely banned in Germany raises doubts as to the necessity of this restriction.

B. Lurger: The Hypothetical Violation of EU Fundamental Freedoms Leads to a New Rule: Non-Possessory (German) Security Ownership Finally Survives the Transport to Austria

In its judgment of 23 January 2019 (3 Ob 249/18s), the Austrian Supreme Court (OGH) changed its line of decisions concerning the validity of nonpossessory security rights in movables which are brought to Austria. Before 2019, the Supreme Court (3 Ob 126/83) held that the (German) non-possessory security ownership („Sicherungseigentum“) of a German creditor in a movable became extinct the moment the movable (transported by the debtor) crossed the border from Germany to Austria. This was due to the Austrian “principle of possession of security objects”: Under Austrian law, pledges and security ownership are only valid when the security object rests in the “fists” of the creditor (= “Faustpfandprinzip” = “principle of fist pledge”). This principle was determined to apply as soon as the security object – in the hands of the debtor – entered Austrian territory. According to the judgment of 23 January 2019 the opposite is now correct: The non-possessory (German) security ownership now survives the transgression of the Austrian frontier. The Austrian “fist principle” does not apply. The validity of the foreign security right is solely based on the foreign (German) rules for security rights which applied due to the lex rei sitae when the security right was created (§ 31 Austrian IPRG) and which continue to apply. The main argument of the court for this about turn is the Austrian accession to the EU in 1995 which led to application of the fundamental freedoms of the TFEU. The (former pre-EU) application of the Austrian fist principle to imported security objects constituted (from 1995 onwards) an unjustified violation of the EU fundamental freedoms in most cases, according to the court. This argumentation is plausible and in line with major literature. The 2019 judgment establishes the recognition of non-possessory security rights in movables in Austria once these rights where validly created under the law of another EU Member State. This leads to less transparency and security on the credit security market in Austria with respect to movables. The question of whether the new PIL rule also applies to relations with Non-Member States can be answered in the affirmative.

M. Makowsky: The limitation of succession proceedings in cases of assets located in a third State pursuant to Art. 12 EU Succession Regulation

In principle, the EU Succession Regulation grants the courts of the member states jurisdiction to rule on the succession as a whole regardless of the location of the estate. If assets are located in a non-EU state, however, Art. 12 of the Regulation allows the court, at the request of the parties, to decide not to rule on these assets if it may be expected that its decision will not be recognised or declared enforceable in that third state. The Austrian Supreme Court has approved the limitation of succession proceedings in a case where part of the estate was located in Switzerland and the Swiss authorities had already issued a certificate of inheritance and appointed an executor. The Court argues that, due to these prior acts, a later decision by the Austrian probate court in respect of the Swiss estate could not be recognised in Switzerland. The article points out that firstly, it has to be determined whether the acts in the Swiss succession proceedings need to be recognised and therefore have a (res judicata) effect on the proceedings held in Austria. If the Swiss authorities’ acts, especially the certificate of inheritance, do not qualify as „decisions“ capable of recognition, they can hardly constitute a ground for non-recognition.

F. Fuchs: Cross-border effects of third-party notices and actions on a warranty with a special regard to the Portuguese Code of Civil Procedure

Under the Brussels Ia Regulation, a person domiciled abroad may be invited to join proceedings before the courts of a Member State pursuant to that Member State’s rules on third-party notice. The third-party notice enables the claimant, if he loses the case, to have a recourse against the third party with that third party being bound by the outcome of the first proceedings. Instead of rules on third-party notice, some Member States allow actions on a warranty. Both concepts aim to protect the interest of that party whose claim would be dismissed twice if the proceedings against two or more adversaries could not be combined. The situation in Portugal is quite interesting, given that its national law provides for both, third-party notices and actions on a warranty. This article offers an insight into the Portuguese Code of Civil Procedure. Moreover, it examines how the effects of a German third-party notice are recognized in other Members States and how a judgment on a warranty rendered in Portugal is recognized in Germany.

The latest issue of RabelsZ has just been published. It contains the following articles:

Olaf Meyer, Parteiautonomie bei Mehrrechtsstaaten (Party Autonomy in States with More than One Legal System), pp. 721 et seq

Where parties’ choice of law in private international law is limited to states with which they have reasonably close ties, similar restrictions usually apply to their choice of local law in states having more than one legal system. However, applying the same limits to both contexts is not mandatory. On the international level there is already a connecting factor that has designated the applicability of the law of a multi-law state. At the local level it is then a question of fine-tuning within that state’s legal order. To undertake this fine-tuning exercise on the basis of purely objective criteria is, however, more difficult within a single non-unified legal system than it is between two different states. This is because the relevant facts are packed more densely together and people are more mobile within the same state. Hence, the habitual residence of a person or the closest connection to the facts of a case tends to be more difficult to localise than in cases with connections to different states. Here lies an essential difference between international and inter-local conflicts of laws, which would justify a different approach to resolving them.

Zufall, Frederike, Shifting Role of the “Place”: From locus delicti to Online Ubiquity in EU, Japanese and U.S. Conflict of Tort Laws, pp. 760 et seq

This article examines the evolution of conflict rules in their perception of “place”: the basis for determining jurisdiction and the applicable law. To examine this topic from a global perspective, the legal systems of the EU, Japan, and the U.S. are analyzed and contrasted as representative legal systems from around the world (I.). Europe can be seen as the cradle of the concept of locus delicti, upholding it, albeit with reinterpretation, until today. Like other Asian countries, Japan received locus delicti as a legal transplant, implementing and adapting it in its own way. Finally, the U.S. is known for pursuing a different approach and different connecting places as a result of its conflicts revolution. This study, then, aims to combine a comparative approach with conceptual analysis, tracing the evolution of locus delicti as first received from Roman law (II.), through its reinterpretation to address cross-border and multi-state torts (III.), and the adoption of different connecting approaches (IV.), to questions arising from the ubiquity raised by the Internet (V.). To ensure a comprehensive approach, this paper will cover aspects of both the applicable law and jurisdiction, while at the same time having cognizance of their conceptual differences. It will be shown that in seeking “connecting factors”, “contacts”, or “interests”, connection to a place is increasingly lost, blurring territoriality and provoking the question of whether pursuing a fair balance between the parties should, instead, lead our legal reasoning (VI.).

Oliver Mörsdorf, Private enforcement im sekundären Unionsprivatrecht: (k)eine klare Sache? (Private Enforcement under Secondary EU Private Law: (Not) a Clear Matter?), pp. 797 et seq

National private law is increasingly determined by EU legislation which either directly establishes standards of conduct between individuals or obliges Member States to do so. However, such legislation often lacks clarity as to whether private law remedies are granted in cases of non-compliance. In Van Gend & Loos the EJC held that the EEC (now EU) creates individual rights that are directly enforceable before national courts. The Court later developed this principle of direct effect into a far-reaching duty for Member States to ensure the enforcement of individual rights by providing remedies such as a right to invoke the nullity of legal provisions or contract clauses and a right to claim damages from public authorities and private persons. Most legal writers take a functional approach to the question of which EU laws contain individual rights, arguing that the involvement of individuals in enforcement of EU law calls for over-all recognition of individual rights. This private enforcement approach might fit primary law but cannot be transferred to secondary law, where the ECJ’s recognition of individual rights goes along with a reduction of EU lawmakers’ prerogative to decide on the enforcement standard. The question of whether a secondary law provision contains an individual right thus must be answered strictly by interpreting that provision, taking into account not only its wording and context but also the legislative process preceding its adoption. A prerogative to decide autonomously on the creation of individual rights should be rejected, however, regarding EU provisions that give specific expression to individual rights deriving from primary law. Even if one accepts EU lawmakers’ power to define the scope of primary law to some extent, this power cannot include the very character of provisions as individual rights.

Leon Theimer, The End of Consumer Protection in the U.S.? –Mandatory Arbitration and Class Action Waivers, pp. 841 et seq

Historically, in the early twentieth century, mandatory arbitration was almost non-existent due to the judiciary’s widespread refusal to enforce arbitration agreements. This began to change slowly when Congress passed the Federal Arbitration Act (FAA) in order to provide a forum for merchants to settle fact-based contractual disputes. […] The sweeping change towards individual arbitration in consumer disputes is underpinned by the Supreme Court’s jurisprudence, which over the last forty years has overwhelmingly favoured the party seeking to arbitrate.  While it is beyond the scope of this article to analyse the entirety of the Supreme Court’s FAA jurisprudence, Part II will trace arbitration’s ascent from the enactment of the FAA in 1925 to the prominent status it enjoys today, particularly focusing on and critically analysing key decisions rendered in the last four decades. Part III will discern some of the most important implications of the status quo and discuss what is left of consumer protection in the arbitration context in the United States today. Lastly, Part IV will explore some approaches that would enhance consumer protection in arbitration along with their prospects, criticisms and justifications.

Written by Professor Stephen G.A. Pitel, Western University

The decision of the Supreme Court of Canada in R.S. v P.R., 2019 SCC 49 (available here) could be of interest to those who work with codified provisions on staying proceedings. It involves interpreting the language of several such provisions in the Civil Code of Quebec. Art. 3135 is the general provision for a stay of proceedings, but on its wording and as interpreted by the courts it is “exceptional” and so the hurdle for a stay is high. In contrast, Art. 3137 is a specific provision for a stay of proceedings based on lis pendens (proceedings underway elsewhere) and if it applies it does not have the same exceptional nature. This decision concerns Art. 3137 and how it should be interpreted.

P.R. (the husband) filed for divorce in Belgium. R.S. (the wife) filed for divorce three days later in Quebec. The husband sought to stay the Quebec proceedings on the basis of lis pendens. [para. 2] The motions judge refused a stay but the Quebec Court of Appeal reversed and granted a stay. The Supreme Court of Canada (6-1) reversed and restored the original refusal of a stay. The upshot is that the wife is allowed to proceed with divorce proceedings in Quebec.

The dispute was protracted largely because the husband, under Belgian law, purported to revoke all gifts he had given to the wife during their marriage. [paras. 2 and 13] These were worth more than $33 million. This is legal under Belgian law though not free from controversy [para. 59].

Art. 3137 provides “On the application of a party, a Québec authority may stay its ruling on an action brought before it if another action, between the same parties, based on the same facts and having the same subject is pending before a foreign authority, provided that the latter action can result in a decision which may be recognized in Québec, or if such a decision has already been rendered by a foreign authority.”

One of the central issues for the court was whether a Belgian decision could be recognized in Quebec. Because a Belgian court would give effect to the revocation of the gifts in its decision, Justice Abella did not think so. She held that “foreign judgments which annihilate not only countless international instruments regarding the equality of spouses and the protection of a vulnerable one, but also the very philosophical underpinnings of the provisions in the [Civil Code of Quebec] contradict those conceptions and will not be recognized in Quebec.” [para 142] In her view no Belgian decision accepting the revocation of the gifts on these facts could be recognized in Quebec: refusal under Art. 3155(5) – “the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations” – was inevitable. On this view, Art. 3137 did not apply and so there was no basis for a stay.

In contrast, Justice Gascon, joined by four other judges, held that a Belgian decision could be recognized in Quebec. The threshold is low, requiring only the possibility or plausibility of recognition. [para. 48] The focus is not on the specific provisions of any rule that the foreign court might apply in reaching its decision but on the outcome or decision itself. [para. 56] He held that “the husband was required to show only that there was a possibility that the eventual Belgian decision would not be manifestly inconsistent with public order as understood in international relations.” [para. 57] He listed several possible outcomes by which the Belgian court might render a decision that could be recognized in Quebec, including the prospect that a Belgian court might not give effect to the revocation of the gifts on the basis that the law so allowing is unconstitutional. [paras. 58-63]

On Justice Gascon’s reasoning, Art. 3137 did apply, making a stay available. However, the provision is discretionary, expressly using the word “may”. [para. 67] Justice Gascon considered that the motions judge’s decision to not grant a stay based on this discretion was not unreasonable and so should not have been disturbed by the Court of Appeal. [para. 80]

Unlike the other six judges, Justice Brown thought that a stay should be granted. In his dissent, he expressed concern about the motions judge’s reasoning. He held that the motions judge had, in interpreting the conditions that trigger Art. 3137, made “overriding” errors that justified appellate intervention. [para. 162]  He also held that the motions judge had not truly exercised the discretion under Art. 3137. [para. 169] Accordingly he was prepared to exercise it afresh and held (agreeing with the Quebec Court of Appeal) that the Quebec proceedings should be stayed. The factors favoured proceedings in Belgium, especially the concern that any Quebec judgment would not be recognized in Belgium because the Belgian proceedings had started first. [para. 186]

It appears that one of the key reasons for the split between Justice Gascon and Justice Brown is that the former focused on the substantial assets in Quebec, which would of course be subject to a Quebec divorce decision [para. 91], whereas the latter focused on the substantial assets in Belgium that would be unaffected by a Quebec divorce decision [para. 187]. This goes to the exercise of the discretion to ignore the lis pendens and refuse a stay. One of the relevant factors for this is whether the court’s eventual judgment would be recognized by the forum first seized. It is easy to appreciate that this factor does not matter if that judgment does not need to be recognized there at all to be effective and, in contrast, that it is vital if it must be. [para. 90] The facts position this case somewhere in between the ends of this spectrum.

The split between Justice Gascon and Justice Abella in part is based on their understanding of Belgian law. Justice Abella repeatedly noted that there is no evidence – Belgian law being a matter of fact in a Canadian court – that a Belgian court would do anything other than give effect to the revocation. [paras. 117-21] In contrast, Justice Gascon held there was at least some evidence going the other way [para. 59] and in addition he was prepared to rely on the possibility that certain arguments might be successfully advanced. [paras. 61-62]

Many of the issues in this case arise specifically because of the separate treatment under Quebec law of lis pendens. The analysis at common law could have been quite different, all conducted under the rubric of the doctrine of forum non conveniens. Parallel proceedings would have been one of the factors considered in the analysis. But the common law has been prepared to reject according much if any weight to first-in-time proceedings based only on relatively short differences in timing (in this case, three days). Indeed, Justice Gascon noted the tension caused by strict application of first-in-time rules, either when staying proceedings or deciding whether to recognize a foreign judgment. [para. 89]

One small point might be worth a final comment. In developing the proper interpretation of Art. 3137 the judges stressed that if successfully invoked by the defendant it leads to a stay of proceedings, which is less final and so less prejudicial to the plaintiff than an outright dismissal of the proceeding. A proceeding so stayed could, if justice demanded, be reactivated. This is contrasted with the general provision in Art. 3135. [paras. 72-73 and 179] However, that provision, while not using the word “stay”, uses the phrase “decline jurisdiction”. The judges treated it is as a given that this means the proceedings are dismissed and at an end. But is it not at least arguable that to decline jurisdiction the court must first have jurisdiction, and that the declining amounts to a stay of that jurisdiction and not a dismissal? The court could have explained the basis for its position on this issue somewhat more fulsomely.

The World Intellectual Property Organisation (WIPO) and the Hague Conference on Private International Law (HCCH) have just published When Private International Law Meets Intellectual Property – A Guide for Judges. The guide, which has been co-authored by Annabelle Bennett (Former Judge at the Federal Court of Australia) and Sam Granata (Judge at the Court of Appeal of Antwerp, Belgium, and at the Benelux Court of Justice, Luxembourg), aims to provide practical guidance with regard to the intersection of intellectual property and private international law.

The guide has been published under a Creative-Commons License and can be downloaded from the HCCH and WIPO websites. It can also be purchased from WIPO as a print-on-demand publication.

On 17 October 2019 the island nation Palau acceded to the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention).

As indicated in the Depositary’s notification, the Apostille Convention will enter into force between the Republic of Palau and the other Contracting States, which have not raised an objection to its accession, on 23 June 2020.

This accession follows after an important neighbouring State joined the Apostille Convention, namely the Philippines (EIF: 14 May 2019).

This week the Hague Conference on Private International Law (HCCH) announced the release of a new publication: When Private International Law Meets Intellectual Property – A Guide for Judges. This Guide is co-authored by Annabelle Bennett (Australia) and Sam Granata (Belgium), with the co-ordination of the Secretariats of the World Intellectual Property Organization (WIPO) and the HCCH.

For more information, see the HCCH news item.

Prof. Jean-Marc Thouvenin, Secretary-General of The Hague Academy of International Law, kindly informs us about the Academy’s Centre for studies and research 2020 programme – highly recommended!

The Centre for studies and research of The Hague Academy of International Law welcomes applications for its 2020 programme on “Applicable law issues in international arbitration”.

International arbitration has long been the most successful method for settling all kind of international commercial disputes, and still is – notwithstanding the surrounding criticism – the leading method for settling disputes between foreign investors and the host state. One of the characteristics of international arbitration is that it to a large extent relies on an international or transnational legal framework. The effects of arbitration agreements and of arbitral awards, as well as the role of the courts regarding arbitration agreements and awards, are regulated in international conventions such as the New York or the ICSID Conventions. Furthermore, although there is room for specificities of national law, commercial arbitration acts are largely harmonised especially through the impact of the UNCITRAL Model Law. Similarly, even if arbitral institutions try to distinguish one from each other by providing for some specific tools, the essential content of arbitration rules does not vary. It can be said, consequently, that the transnational framework of arbitration is intended to create to the extent possible an autonomous system of dispute resolution, which can be applied in a uniform way irrespective of the country in which the proceedings take place or the award is sought enforced. The procedural autonomy of arbitration may also have an impact on how arbitral tribunals relate to the substance of the dispute.

As arbitral awards are final and binding, and domestic courts and ICSID annulment committees do not have the power to review them in the merits, arbitral tribunals enjoy a considerable flexibility in selecting and applying the rules of law applicable to the dispute, even though they are constrained to respect the will of the parties. Legal literature has strongly emphasized that this flexibility creates an expectation of delocalization: both from the procedural and from the substantive point of view, arbitration is described as a method for settling disputes that strives for uniformity on a transnational level and should not be subject to national laws. The autonomy and flexibility of arbitration, however, are not absolute. The international instruments that regulate arbitration either make, in some contexts, reference to national law or call for the application of (general or concrete) international law. Also, they do not cover all aspects of arbitration, thus leaving room for national regulation. Additionally, the restricted role that courts and ICSID ad hoc committees have in arbitration does not completely exclude that national law may have an impact. While court and committee control is not a review in the merits, application of the parameters for validity or enforceability of an award, even where these parameters are harmonised, may depend on national regulation.

Importantly, the definition of what disputes are arbitrable is left to national law. While the scope of arbitrability has been significantly expanded starting from the last two decades of the last century, there are signs now that it may be restricting. The scope of arbitrability may be looked upon as a measure of the trust that the legal system has in arbitration. From another perspective, it may represent the way in which States approach the settlement of international commercial disputes: intending to keep an exclusive power by means of the exclusion of private deciders, or adopting the role of controllers of the regularity of arbitration. As far as investment arbitration is specifically concerned, it is well known that States’ attitudes are diverse and may change from time to time. In both cases, States’ policy choices may have an impact on applicable law issues.

All the foregoing considerations, succinctly exposed, are the frame for the present topic. On such a basis, it is possible to develop two lists of issues to be individually addressed. The first list deals with the fundamental aspects of the topic. Among the issues included therein, some refer to all types of arbitration, while others are rather specific to either commercial or investment arbitration. The second list responds to the fact that the applicable law is not necessarily unitary. Indeed, according to the principle of severability, a different law may apply to the procedural aspects and to the substantive aspects of the dispute, and within these two categories there are further possibilities for severing the applicable law. Thus, one can wonder to which issues is it appropriate to apply international sources of law, to which issues is it appropriate to apply soft sources of law, to which is it appropriate to apply national sources of law, and to which issues is it appropriate to apply (or to create) transnational standards. Or a combination of these sources? On which basis may this selection be made, and what are its effects on the autonomy of arbitration, on the expectations of the parties and on the credibility and legitimacy of arbitration as an out-of-court judicial system that enjoys enforceability?

The general and specific above-mentioned questions may be discussed for each of the following issues:

I. General issues

1. Available rules of law regarding substantive issues – The strength of soft sources
2. Available rules of law regarding procedural issues – The scope and applicability of the lex arbitri
3. Selection of the applicable law by the parties (???)
4. How do arbitrators ascertain the rules of law applicable to the merits?
5. Overriding mandatory rules of a law not chosen by the parties
6. How do arbitrators interpret international contracts?
7. How do arbitrators interpret international treaties?
8. Effects of precedents in arbitration
9. Iura novit arbiter
10. Control by domestic courts of the law applied to the merits
11. Control by means of procedural public policy
12. Misapplication of the law as manifest excess of powers of the tribunal under ICSID Convention

II. Specific cases of determination of the applicable law

1. Validity of the arbitration agreement and effects on non-signatories
2. Assignment of contract containing an arbitration clause
3. Qualification of the arbitrators
4. Production and admissibility of evidence
5. Legal privilege
6. Emergency arbitrator: procedural and substantive issues
7. Interim measures
8. Legal capacity to sign the disputed contract
9. Interests on the awarded amounts
10. Arbitrability
11. Res iudicata
12. Liability of arbitrators

The co-directors of the 2020 Centre (Prof. Giuditta Cordero-Moss (University of Oslo) & Prof. Diego Fernández Arroyo (Sciences Po, Paris)) invite applications from researchers including students in the final phase of their doctoral studies, holders of advanced degrees in law, political science, or other related disciplines, early-stage professors and legal practitioners. Applicants should identify the specific topic on which they intend to write. Participants will be selected during the spring of 2020, and will convene at The Hague from August 17 to September 4, 2020, to finalize their papers. The best articles will be included in a book to be published in the fall of 2021.

Further information is available here.

On 24-25 October 2019, the Max Planck Institute Luxembourg for Procedural Law will host an International Exchange Seminar in the framework of the Project “EUFams II – Facilitating Cross-Border Family Life: Towards a Common European Understanding”. Funded by European Commission, the Project aims to develop a common expertise and understanding of the EU instruments in family law: notably, it identifies practical problems and puts forth solutions to secure a uniform, coherent and consistent application of such instruments.

The Project tackles, in particular, the Regulations on matrimonial matters and matters of parental responsibility, including child abduction ((EC) No 2001/2003 to be repealed by (EU) 2019/1111), maintenance obligations ((EC) No 4/2009), successions ((EU) No 650/2012), the two Regulations implementing enhanced cooperation in matters of matrimonial property regimes and the property consequences of registered partnerships ((EU) 2016/1103 and 1104). It also tackles the Regulation adopted to simplify the requirements for cross-border use and acceptance of certain public documents in the European Union ((EU) 2016/1191) and the relevant Hague instruments. Furthermore, to ensure a comprehensive approach the Project engages with the legal challenges arising from the current refugee crisis and the potential impacts of Brexit on family law.

Gathering renowned academics from various institutions, judges, notaries, lawyers, and representatives of international organizations and family law associations, the International Exchange Seminar will address and explore possible solutions to controversial or problematic issues that were identified in the course of the National Exchange Seminars hosted, in the framework of the Project, by the Project Partners, and namely the Universities of Heidelberg (coord.), Lund, Milan, Osijek, Valencia and Verona.

The Program of the International Exchange Seminar is available here.

The Project’s research outputs and case law database are accessible here and here (both in progress).

For more information on the Project, see here and here.

This project was funded by the European Union’s Justice Programme (2014-2020). The content of this study represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

Written by Mayela Celis

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is organising an event entitled HCCH a / Bridged: Innovation in Cross-Border Litigation and Civil Procedure, which will be held on 11 December 2019 in The Hague, the Netherlands. This year edition will be on the HCCH Service Convention.

The agenda and the registration form are available here. The deadline for registrations is Monday 11 November 2019. The HCCH news item is available here.

A bit of background with regard to the HCCH Service Convention and IT: As you may be aware, the Permanent Bureau published in 2016 a Practical Handbook on the Operation of the Service Convention (available for purchase here), which contains a detailed Annex on the developments on electronic service of documents (and not only with regard to the Service Convention). In that Annex, developments on the service of documents by e-mail, Facebook, Twitter, etc. and its interrelationship with the Service Convention were analysed.  Not surprisingly, cases where electronic service of process was used were rare under the Service Convention (usually, the physical address of the defendant is not known, thus the Service Convention does not apply and the courts resort to substituted service).

A more important issue, though, appears to be the electronic transmission of requests under the Service Convention. According to a recent conclusion of the HCCH governance council, it was mandated that:

Electronic transmission of requests

“40. Council mandated the Permanent Bureau to conduct work with respect to the development of an electronic system to support and improve the operation of both the Service and Evidence Conventions. The Permanent Bureau was requested to provide an update at Council’s 2020 meeting. The update should address the following issues: whether and how information technology would support and improve the operation of the Conventions; current practices on the electronic transmission of requests under the Conventions; legal and technological barriers to such transmission and how best to address these; and how a possible international system for electronic transmission would be financed. “

In contrast, the European Union seems to be more at the forefront in encouraging electronic service of documents as such, see for example the new proposal for Regulation on the service of judicial and extrajudicial documents in civil or commercial matters, click here (EU Parliament, first reading).

Article 15a reads as follows:

“Electronic service

1. Service of judicial documents may be effected directly on persons domiciled in another Member State through electronic means to electronic addresses accessible to the addressee, provided that both of the following conditions are fulfilled: [Am. 45]

(a) the documents are sent and received using qualified electronic registered delivery services within the meaning of Regulation (EU) No 910/2014 of the European Parliament and of the Council, and [Am. 46]

(b) after the commencement of legal proceedings, the addressee gave express consent to the court or authority seized with the proceedings to use that particular electronic address for purposes of serving documents in course of the legal proceedings. [Am. 47].”

By adding the word “both” the European Parliament seems to restrict electronic service to documents after service of process has been made (see previous European Commission’s proposal). This, in my view, is correct and gives the necessary protection to the defendant. In the future and with new IT developments, this might change and IT might be more widely used by all citizens (think of a government account for each citizen for the purpose of receiving government services and service of process -although service of process comes as a result of private litigation so this might be sensitive-), and thus this might provide more safeguards. In my view, the key issue in electronic service is to obtain the consent of the defendant (except for cases of substituted service).

On 24 and 25 October, the 3rd IBA Litigation Committee Conference on Private International Law will take place in Palazzo Turati, Milan, Italy. It will deal with Brexit, International Commercial Courts and Sanctions. More information are available on the IBA conference website.

The programme reads as follows:

Welcome remarks

• Angelo Anglani NCTM, Rome; Co-Chair, IBA Litigation Committee
• Vinicio Nardo Chairman, Consiglio dell’Ordine degli Avvocati di Milano, Milan

Keynote address
International dispute resolution in turbulent times – is there a role for private international law?

Professor Fausto Pocar Università degli Studi di Milano, Milan

Session One

Brexit – the impact on jurisdiction and private international law

With just one week until the deadline, we will check the status of the most controversial event in the history of the European Union. The session will focus on the impact of Brexit on jurisdiction and private international law and look at the possible effects on solutions and perspectives in international commercial disputes.

Session Chair
Carlo Portatadino Weigmann, Milan; Secretary, IBA Litigation Committee

Speakers

• Professor Stefania Bariatti Università degli Studi di Milano, Milan
• Alexander Layton QC Twenty Essex, London

Session Two

The mushrooming of International Commercial Courts throughout Europe – reasons and perspectives

In 2016, on the occasion of the 2nd IBA Litigation Committee Conference on Private International Law, we explored the new phenomenon of the International Commercial Courts and discussed whether the 2005 Hague Convention on Choice of Court Agreements could enhance their role in international commercial dispute resolution. Since that time, and also in light of Brexit we have been assessing the mushrooming of International Commercial Courts throughout Europe. This session will examine the experiences of several jurisdictions and focus on the future perspective on the phenomenon in Europe.

Session Chair
Jacques Bouyssou Alerion, Paris; Treasurer, IBA Litigation Committee

Speakers

• Martin Bernet Bernet Arbitration / Dispute Management, Zurich
• Hakim Boularbah Loyens & Loeff, Brussels
• Jean Messinesi Honorary President, Tribunal de Commerce de Paris, Paris
• Duco Oranje President, NCC Court of Appeal, Amsterdam
• Professor Giesela Rühl Friedrich-Schiller-Universität Jena, Jena
• Mathias Wittinghofer Herbert Smith Freehills, Frankfurt

Session Three

Sanctions – politics, procedures and private international law

This session will consider the increasing impact of sanctions on politics and economics. The panellists will present the workings of the European and US sanctions systems and illustrate the resulting consequences on international trade and cross-border disputes. The session will also focus on how clients approach and deal with the matter.  

Session Chair
Christopher Tahbaz Debevoise & Plimpton, New York

Speakers

• Shannon Lazzarini Group Deputy General Counsel & Head of Group Litigation, Unicredit, Milan
• Richard Newcomb DLA Piper, Washington DC
• Michael O’Kane Peters & Peters, London
• Marco Piredda Senior Vice-President, International Affairs, ENI, Rome
• Professor Hans van Houtte KU Leuven, Leuven, Belgium

Closing remarks

Tom Price Gowling WLG, Birmingham; Co-Chair, IBA Litigation Committee

With judgment of 17 October 2019 (III ZR 42/19) the German Federal Supreme Court held that a contracting party may be entitled to compensation for the costs incurred through the violation of a choice of court agreement. The basic facts and the main reasoning of the Court is summarized below. The full press release (in German) is available here.

Facts of the case:

The parties involved in the litigation were telecommunications companies. The defendant was domiciled in Bonn (Germany) and the plaintiff was domiciled in Washington, D.C. (United States). They were linked through an “Internet Peering Agreement” according to which they were mutually required to receive the data traffic of the other party at so-called peering points, to transport it on their network to the customers connected via the network and to provide the necessary transmission capacity at the peering points within their networks. The contract provided for application of German law and jurisdiction in Bonn (Germany).

In 2016, after the plaintiff’s efforts to achieve the (free) increase in transmission capacity had failed, it filed a lawsuit in a District Court in the United States. requesting the creation of additional capacity. The District Court dismissed the claim for lack of jurisdiction pointing to the choice of forum clause in the contract. The plaintiff, therefore, filed a lawsuit with the Bonn Regional Court whereas the defendant filed a counterclaim demanding reimbursement of the costs it incurred through the proceedings in the United States.

The Bonn Regional Court dismissed the main lawsuit, but granted the counterclaim which, however, was rejected upon appeal of the plaintiff by the Court of Appeal. The Federal Supreme Court with its judgement of 17 October 2019 reversed the Court of Appeal judgment and held that the defendant is, in fact, entitled to reimbursement of its costs.

Legal reasoning:

The Federal Supreme Court argues that the parties’ agreement, notably the choice of court and the choice of law clause, is to be interpreted as meaning that the parties are required to bring actions only in Bonn and failing that – at least to the extent that the court seized, such as the District Court, recognizes the lack of jurisdiction – to reimburse the other party for the costs incurred thereby. The parties, through the choice of court and choice of law clause, expressed their interest in making legal disputes foreseeable both from a substantive and a procedural point of view. It was the parties’ aim to create legal certainty and to make the (economic) risk associated with litigation calculable. By specifying a place of jurisdiction, they aimed to prevent forum shopping and to avoid costly disputes about jurisdiction. This goal the Federal Supreme Court argues, can only be achieved if the aggrieved party is entitled to reimbursement of its costs.

On 3rd October, the amendments to the Reciprocal Enforcement of Foreign Judgments Act (“REFJA”) came into force. REFJA is based on the UK Foreign Judgments (Reciprocal Enforcement) Act 1933, but in this recent round of amendments has deviated in some significant ways from the 1933 Act. The limitation to judgments from “superior courts” has been removed. Foreign interlocutory orders such as freezing orders and foreign non-money judgments now fall within the scope of REFJA. So too do judicial settlements, which are defined in identical terms to the definition contained in the Choice of Court Agreements Act 2016 (which enacted the Hague Convention on Choice of Court Agreements into Singapore law).

In relation to non-money judgments, such judgments may only be enforced if the Singapore court is satisfied that enforcement of the judgment would be “just and convenient”. According to the Parliamentary Debates, it may not be “just and convenient” to allow registration of a non-money judgment under the amended REFJA if to do so would give rise to practical difficulties or issues of policy and convenience. The Act gives the court the discretion to make an order for the registration of the monetary equivalent of the relief if this is the case.

An interlocutory judgment need not be “final and conclusive” for the purposes of registration under REFJA. The intention underlying this expansion is to allow Singapore courts to enforce foreign interlocutory orders such as asset freezing orders. This plugs a hole as currently Mareva injunctions are not regarded as free-standing relief under Singapore law. It has recently been held by the Court of Appeal that the Singapore court would only grant Mareva injunctions in aid of foreign proceedings if: (i) the Singapore court has personal jurisdiction over the defendant and (ii) the plaintiff has a reasonable accrued cause of action against the defendant in Singapore (Bi Xiaoqing v China Medical Technologies Inc [2019] SGCA 50).

New grounds of refusal of registration or to set aside registration have been added: if the judgment has been discharged (eg, in the event of bankruptcy of the judgment debtor), the damages are non-compensatory in nature, and if the notice of the registration had not been served on the judgment debtor, or the notice of registration was defective.

It is made clear that the court of origin would not be deemed to have had jurisdiction in an action in personam if the defendant voluntarily appeared in the proceedings solely to invite the court in its discretion not to exercise its jurisdiction in the proceedings. Henry v Geoprosco [1976] QB 726 would thus not apply for the purposes of REFJA although its continued applicability at common law is ambiguous (see WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri Lanka [2002] 1 SLR(R) 1088).

All along, only judgments from the superior courts of Hong Kong SAR have been registrable under REFJA. The intention now is to repeal the Reciprocal Enforcement of Commonwealth Judgments Act (“RECJA”; based on the UK Administration of Justice Act 1920) and to transfer the countries which are gazetted under RECJA to the amended REFJA. The Bill to repeal RECJA has been passed by Parliament.

The amended REFJA may be found here: https://sso.agc.gov.sg/Act/REFJA1959