Conflictoflaws

The research on the cross-border collection of debts (in particular through the unified procedures in the EU) in the EC²BE project has produced interesting results. Here is a summary of the Belgian results. For those who want to know more, don’t forget to enrol to our final conference, which will address the matter in various EU States.

(This blog has also referred you to the various national seminars – for an overview, see here or contact one of the partners.)

EXECUTIVE SUMMARY

Written by Fieke van Overbeeke, translated from Dutch by Albert Kruger

A    INTRODUCTION

‘By nature advocates and judges appear to adopt a conservative approach. They are generally averse to changes or reforms in the field of procedure. The apathy of legal practitioners regarding the adoption of new legal provisions concerning civil procedure is widely known. (…) New procedural routes are not followed. Some novelties do not get entrenched.’ [J. Laenens e.a., Handboek Gerechtelijk Recht, 2016, p. 9 and 26 (own translation)].

Research by the University of Antwerp shows that EU legislation concerning civil procedure, specifically the European Enforcement Order (EEO 2004), the European Payment Order (EPO 2006), the European Small Claims Procedure (ESCP 2007) and the European Account Preservation Order (EAPO 2016) are seldom applied in Belgian legal practice. These Regulations nevertheless have the common feature that they all strive to provide simpler, cheaper, faster and more efficient procedures in the European judicial area. In that framework the EU Regulations provide favourable procedures for international claims. This has an added value for Belgian legal practitioners seeking to enforce such claims.

The crucial question that arises is whether the lack of enthusiasm for these Regulations can be explained with reference to the general situation regarding “new” procedural rules in Belgium, or whether there are additional reasons that can be addressed in order to guarantee the added value of these Regulations in Belgium. The University of Antwerp examined this question during the period from the beginning of 2018 up to the end of 2019. The results and recommendations of that study are published in Dutch in Tijdschrift@ipr.be (2019 issue 3), of which this executive summary gives the main traits.

The approach of the research is a classical method of qualitative legal analysis, where the sources legislation, case law and legal literature are at the core. All the decided cases were uploaded to a special data base, where central aspects and a summary of each case can be consulted free of charge: www.ic2be.eu. Here the reader will also find similar information about Germany, France, Italy, Luxembourg, The Netherlands, Poland, Spain and case law of the Court of Justice of the EU. This information was gathered by our project partners namely the University of Freiburg, the University of Milan, Erasmus University Rotterdam, the University of Worclaw, the Complutense University of Madrid, and the Max Planck Institute in Luxembourg for Procedural Law. The research was co-funded by the European Commission.

To complement this classical legal research, we conducted semi-structured interviews with legal practitioners from four target groups: judges, advocates/attorneys, corporate lawyers and consumers’ organisations.

In what follows we start by setting out a number of issues concerning the application of the Regulations, such as the extent to which the Regulations are known, the course of the actual procedure, technical questions and the protection of (weaker) procedural parties. Thereafter we provide some highlights of the research results for each of the Regulations investigated. Finally conclusions and recommendations are provided.

B  INVESTIGATION RESULTS

B.1. Urgent problems

a) Acquaintance with the Regulations

It appears that the general acquaintance with the Regulations is relatively low in Belgium. The interview participants unanimously stated that many judicial institutions (presiding officers and registrars), advocates and bailiffs are generally unaware of, and have little knowledge of the Regulations. At the same time it was determined that acquaintance with EU Regulations is a general problem in Belgium. Various participants said that the average Belgian presiding officer or advocate has problems in “reading and understanding” EU law and, as a result, interest for it is low.

In this context the question was asked whether sufficient information about the Regulation exists. Some participants stated that it is difficult to obtain reliable information, while others said that adequate information can be found if practitioners take the trouble to find it. Often reference is made to the European Judicial Atlas. The participants agreed that the Belgian government does little to make information available and distribute it.

b) Problems related to procedure

Under problems related to procedure the following were classified: the language, the speed of the procedure, the costs of the procedure, the notice or service of documents, the standard formulas and the use of modern information technology.

The interviews indicate that these issues were indeed problematic in Belgian legal practice. This has a negative impact on the application of the procedures. The article contains a detailed discussion of the extent of these problems and how some difficulties are avoided or resolved in practice.

1. c) Technical problems

Under technical problems are classified: the scope of the Regulations, the area of application, the determination of the judge with international and internal capacity. From the interviews it appears that uncertainty exists concerning scope of the EPO-Regulation, which is only applicable to cross-border claims. The question is whether creative constructions that aim to bring legal relationships that were initially purely Belgian within the scope of the Regulation are permissible. Opinions on this matter differ widely.

In addition, particularly concerning the domestic jurisdiction, there are a number of problems. It was seen that the complex Belgian jurisdiction rules can refer to a big merry-go-round of judges who may be able to hear the case. Some participants raised questions as to whether this situation conforms with EU rules because ‘it can hardly be expected from a foreign party to understand the complex Belgian competence rules’. Another point emerging from the interviews is that the large number of courts that may have jurisdiction could have a negative impact on the quality of the decisions because it can occur a judge with no, or only very little, experience with the Regulation or who do not properly understand it have to apply it.

d) Problems connected with the protection of parties

Problems connected with the protection of parties include consumer protection, the protection of the defendant against fraudulent or abusive procedures and the absence of a public policy test.

Problems concerning consumer protection arise in Belgium particularly in the EPO procedure. Many Belgian judges take a negative view of the system and the rules of the EPO-Regulation, particularly from the point of view of consumer protection (in particular the so-called inversion du contentieux – inversion of the procedure -, the low requirements regarding proof and the uncertain methods of service). According to one participant all Justices of the Peace are in principle opposed to an EPO procedure in B2C disputes. This attitude can be seen clearly in the various additional requirements that judicial officers impose in EPO procedures. This obviously reduces the attractiveness of these procedures, as is confirmed by various interviewed advocates and corporate lawyers, who criticise this situation severely and point to serious inroads on the EPO-Regulation.

B.2. The application of the Regulations in the Belgian legal practice

a) EEO-Regulation

The research has pointed out two problems in relation to the EEO: 1. The absence of a review procedure, as is described in the minimum standards of the EEO-Regulation; 2. The meaning of allowing a default for the possibility to dispute a claim or not.

The issue regarding the possibility of review is very serious, particularly because it is at present not even clear whether a decision can be certified as an EEO. Obviously this has a very negative effect on the application of the EEO-Regulation in Belgium, as has become apparent in the Imtech judgment of the Court of Justice EU (C-300/14) and the subsequent judgment of the Court of Appeal of Antwerp of 27 February 2017. The Court of Appeal found that the result of the Imtech judgment is that Belgian procedural law does not conform to the minimum standards set by the EEO-Regulation and that EEOs can therefore not be issued.

Having regard to these reasonably serious problems, many participants stated that they try to avoid using the EOO-Regulation. They rather opt for a national procedure in combination with the Brussel Ibis-Regulation because ‘the abolition of the exequatur in that instrument has the same effect’.

b) EPO-Regulation

From the investigation it appears that there is a fairly diverse legal practice in Belgium on the application of the EPO procedure, which has a negative effect on the success of the procedure. Without being exhaustive the following can be mentioned: the concepts ‘uncontested claim’ and ‘description of evidence’, the acceptance of the signing of the request by the bailiff, who has to serve the payment order, the time periods stipulated in the Regulation, the circumstances under which a review can take place, the requirements for compensation for legal costs and the divergent attitudes surrounding the EPO procedure itself.

The divergent practice can have far-reaching effects. For example, the concept of ‘uncontested claim’ permits the interpretation that the claim is initially (seriously) contested; the mere delivery of the plea causes the claim to be contested within the meaning of the EPO-Regulation. Some judges apply this correctly, while on the other hand a judge described the fact that the claim had previously been contested as ‘misleading’ the court, which resulted in the success of the review application.

c) ESCP-Regulation

It appears from the investigation that the ESCP procedure is seldom applied in Belgium. This means that this procedure has the same fate as in many other Member States. From earlier research it appeared that the causes are i.a. the lack of awareness of the procedure, the high translation costs and absence of clear rules regarding service and the actual enforcement.

Some participants in addition pointed out that there is a diversity between on the one hand the parties wanting to start the ESCP procedure and on the other hand the specialists dealing with cross-border disputes. The latter in principle do not concern themselves with minor claims, while the local advocate who is asked for advice is not necessarily aware of the ESCP procedure and furthermore does not derive much financial gain from conducting such proceeding.

Moreover consumer organisations point out that consumers still run the risk of high procedural costs when commencing a ESCP procedure.

d) EAPO-Regulation

It appears from the investigation that the EAPO-Regulation is seldom applied in Belgium, but this can be explained by its recent entry into force.

It is however important to note that it seems that the Belgian legislator made a mistake in the implementing act regarding the conditions under which the claimant has to provide security. Article 12 EAPO-Regulation requires that the claimant has to put up security in an amount that is sufficient to avoid abuse in the situation where the claimant does not yet have title. By means of the implementing act this has now been turned on its head in the Belgian Code of Civil Procedure, where the claimant who does have a title must provide security while the claimant who does not have a title clearly does not have to provide security. This must obviously be an error, because there is no logic to this provision.

C. CONCLUSIONS AND RECOMMENDATIONS

The main conclusion is that there is great variation in the application of the investigated Regulations in Belgian legal practice. Apart from the EAPO-Regulation, Belgium has not passed supplementary legislation to embed the Regulations in the Belgian legal order, whereas Belgian procedural law conflicts with the Regulations on various points. The absence of domestic legislation leads to many problems with regard to the efficacy of the procedure in Belgium and this has a substantial effect on the choices parties make between the different procedural routes.

It appears from the interviews that many legal practitioners experience problems when they invoke the Regulations. Some have given up the Regulations, while others use the Regulations but in doing so pay close attention to the specific legal practice at the court. The EPO procedure is comparatively used the most but, as one participant put it, it should have been used ‘millions and millions of times’.

Apart from the internal Belgian problems, it appears that the effectiveness of the procedures is still strongly influenced by the lack of harmonisation regarding the service of documents and the execution phase of the payment of the debt. Many participants said in the interviews that these two missing elements were the ‘Achilles heel’ in every cross-border case. One participant stated that ‘it could be very easy to obtain an enforceable title, but then there are paradoxically no EU rules for the actual enforcement phase’.

The low application of the Regulations in Belgium is thus not (only) caused by the general reservation by practitioners to use new procedural rules. A targeted approach can improve the success of these Regulations.

The article contains several detailed recommendations.

At a Belgian level these are mainly:

• embedding the Regulations in the Belgian legal order via legislation; and
• improving the judicial organisation.

At EU level these concern:

• EU action regarding cross-border service of documents and the enforcement phase;
• more support and stimuli for Member States to embed Regulations adequately in their national systems;
• the adaptation of the courts’ duty to serve documents.

The latest issue of Cuadernos de Derecho Transnacional, an open-access online journal focusing on private international law, is out. It can be downloaded here.

The fifty papers included in this issue (written in Spanish, English, French, Portuguese and Italian) address a broad range of topics, including the recognition of registered partnerships, jurisdiction over contractual disputes, the law applicable to donations, surrogate motherhood and the recognition of declaratory arbitral awards.

The next issue is due to be out in March 2020. Submissions will be considered if received before 15 December 2019.

The conference represents the final event of the project “C.L.A.S.S.4EU – 4EU training sessions on family law regulations for Cross-border Lawyers And Social Services” (JUST-JTRA-EJTR-AG-2016-763874, www.univr.it/class4eu), coordinated by the University of Verona in partnership with the University of Milano-Bicocca, University of Minho (Braga), Eötvös Loránd University (Budapest) and the Law Institute of Lithuania.

After the opening speech by Maria Caterina Baruffi (Professor at the University of Verona and Project Scientific Coordinator), selected aspects of cross-border family disputes, in light of new Regulation 2019/1111 (Brussels IIa Recast) and marking the 10th anniversary of the EU Charter of fundamentals rights becoming legally binding and the 30th anniversary of the UN Convention on the rights of the child, will be addressed by Paolo Bruno (JHA Counsellor at the Permanent Representation of Italy to the EU), Miloš Ha?apka (JHA Counsellor at the Permanent Representation of Slovakia to the EU), Jean Ayoub (Secretary General of ISS – International Social Service), Cinzia Calabrese (President of AIAF – Italian Family Lawyers Association), Agne Limante (Senior Researcher at the Law Institute of Lithuania), Orsolya Szeibert (Professor at the Eötvös Loránd University), Anabela Gonçalves (Professor at the University of Minho) and Costanza Honorati (Professor at the University of Milano-Bicocca).

The programme and more information on the event are available here.

The registration form is available here.

The Institute for German and International Civil Procedure at the Rheinische Friedrich Wilhelms University of Bonn, Germany, is looking for a highly skilled and motivated PhD candidate and fellow (Wissenschaftliche/r Mitarbeiter/in) to work in the fields of Private International Law and International Civil Procedure on a part-time basis (50%) as of 1 April 2020.

The successful candidate must hold the First or Second German State Examination in law with distinction (“Prädikat”) and is interested in the international dimensions of private law, in particular private international law and international civil procedure.

The fellow will be given the opportunity to conduct his/her PhD project (according to the Faculty’s regulations) under the supervision of the Director of the Institute Prof Dr Matthias Weller, Mag.rer.publ. (https://www.jura.uni-bonn.de/professur-prof-dr-weller/professor-dr-weller-magrerpubl/). The position is paid according to the German public salary scale E-13 TV-L, 50% (about 1,300 Euro net per month). The initial contract period is one year at least and up to three years, with an option to be extended. Responsibilities include supporting research and teaching on Private International Law and International Civil Procedure as well as a teaching obligation of two hours per week during term time.

If you are interested in this position, please send your application (cover letter in German; CV; and relevant documents and certificates, notably university transcripts and a copy of law degree) to Prof Dr Matthias Weller (weller@jura.uni-bonn.de). The University of Bonn is an equal opportunity employer.

(Summary of the conference by Dulce Lopes, University of Coimbra, and Massimo Foglia, University of Bergamo)

Elisabetta Bani, Viviana Molaschi and Massimo Foglia, that welcomed the participants and emphasized the importance of the subject in the currant law debate, opened the Conference, that was immediately followed by a first session chaired by Radek Strugala. In this session some general issues were discussed, detailed and exemplified such as the autonomous interpretation of GDPR concepts (Agnieszka Guzewicz, University of Wroclaw) and the international law implications of the GDPR in several subjects such as private international law and international administrative law (Dulce Lopes and Geraldo Rocha Ribeiro, University of Coimbra). Federica Persano (University of Bergamo) followed and pointed out the insufficiencies of the GDPR in what regards children that are the most vulnerable group but also the main actor in the digital era.
The Second Session chaired by Dulce Lopes, continued with a two-fold debate on Patients and Privacy, both in Italy (Massimo Foglia, University of Bergamo) and in the Czech Republic (Petr Šustek, Tomáš Holçapek, Martin Šolc, Charles University). Data concerning health and the role of consent in medical records, clinical practice and biobanks were analysed crossing EU demands with national legislations and practices, showing that clarification in some areas is a necessity. Simon Taylor (University of Paris Nanterre) ensued directing the discussion to the private enforcement of the GDPR, giving note of some recent case law in the UK on non-pecuniary losses (one of which from the day previous to the Conference, Lloyd v. Google [2019] Court of Appeal, 2 October). Discussion that was resumed by Jonas Knetsch (University Jean-Monnet of Saint-Étienne) that focused on article 82.º of the GDPR, considering it to be a directly applicable provision but whose contours are ambiguous mainly in what refers to the assessment of the amount of damages, and called for a de minimis rules
On the second day of the Conference, under the moderation of Jonas Knetsch, Radoslaw Strugala (University of Wroclaw) decomposed the segments of article 82.º, concluding that the responsibility envisaged is irrespective of fault, but stated that responsibility imposed on the controller for acts of the processor is too burdensome and may lead to over deterrence. Albert Ruda-Gonzalez (University of Girona), pointed out that big data is “the new oil” full of possibilities but also challenges and analysed the current trend towards collective redress (for instance with the Cambridge Analytica case). Shaira Thobani (University of Torino) reflected on the privacy paradox (the fact that theoretically people care about data but do few to protect it) and asked therefore which should be the role of consent in data protection and if some questions should not be considered more of a consumer type issues and not a fundamental rights one.
The last session, chaired by Simon Taylor, was devoted to specific subjects that go beyond the RGDP but that influence or are influenced by it: Pelopidas Donos (Data Protection Officer of the European Investment Bank) analysed the influence of the mirror Regulation (EU) 2018/1725 on the organisation and practices of the BEI; Marco Rizzuti (University of Florence) debated the role of the right to be forgotten in legal history and contemporary legal though, analysing relevant case law that demonstrate that this right is nor permanent nor absolute; and Luca Ballerini (University of Trieste) dwelled on the post mortem protection of personal data, not included in the protection accorded by the GDPR.
All the sessions were highly debated and a publication is envisaged in a Special Issue of the European Journal of Privacy Law and Technologies (http://www.ejplt.tatodpr.eu).

Seminar: Instruments and solutions for a more effective cross-border debt recovery in the EU/“Strumenti e soluzioni per un più efficace recupero transfrontaliero dei crediti”.

On 8 November 2019, the University of Milan (Università degli Studi di Milano) will host a second national seminar in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE-JUSTAG-2016-02) funded by the Justice Programme (2014-2020) of the European Commission.

The project – coordinated by the University of Freiburg and conducted by a consortium comprising the Max Planck Institute Luxembourg for Procedural Law and the Universities of Antwerp, Madrid (Complutense), Milan, Rotterdam and Wroclaw – 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”), the European Order for Payment (“EPO”), the European Small Claims (as amended by Regulation (EU) 2015/2421) (“ESCP”) and the European Account Preservation Order (“EAPO”) Regulations.

The seminar will mark the occasion for the Italian team (Prof. Dr. Francesca C. Villata, Prof. Dr. Lidia Sandrini, Prof. Dr. Elena D’Alessandro, Dr. Gabriele Molinaro, Dr. Marco Farina, Dr. Valeria Giugliano) to present the findings of the research and discuss them with experts from legal practice and academics, with the aim of assessing and improving the application of these instruments and their interface with the Brussels I-bis and Insolvency Regulations in Italy.

The working language is Italian. Practitioners and academics interested in cross-border litigation are invited to participate (free of charge) in this event. More information on the program and on the registration is available here.

(With thanks to Dr. Valeria Giugliano for the tip-off)

by Thomas Pfeiffer, University of Heidelberg

EUFams II is a study funded by the European Commission with the objective of assessing the functioning and the effectiveness of European family and succession law. The project is coordinated by the Institute for Comparative Law, Conflict of Laws and International Business Law of Heidelberg University (Prof. Dr. Dr. h.c. Thomas Pfeiffer). Project partners are the Universities of Lund, Milan, Osijek, Valencia and Verona as well as the MPI Luxemburg. The two-year project entails various conferences and research activities, which will be completed by 31 August 2020.

A survey conducted in the first phase of EUFams II generated responses of approximately 1,400 professionals from 17 Member States. The main findings of the survey are presented in a report (with executive summary) drafted by Quincy C. Lobach and Tobias Rapp (Heidelberg University).

The results show a striking lack of overall familiarity with the instruments of European family and succession law. Respondents indicated that the legal framework is characterized by a high degree of complexity due to the multitude of instruments. Further matters include private divorces, party autonomy, and the impact of global migration flows and the so-called refugee crisis.

More information on EUFams II and its future research outputs can be found on the project’s website.

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.

The progressive global establishment of international commercial courts has marked a defining moment in the growth of the legal services sector in international commercial dispute resolution. By offering litigants the option of having their disputes adjudicated by experienced and specialized judges, often from both civil law and common law traditions, these courts have resulted in the jurisdictions that embraced them become a choice destination for foreign trade and investment dispute resolution. In this regard, see in particular this publication by Prof. Dr. Marta Requejo Isidro.

Contextualizing the establishment of international commercial courts – duly taking into account, in this framework, the role of Luxemburg as a dispute resolution hub – and investigating the impact of current national and global events on international commercial litigation, with a particular focus on the consequences potentially arising from Brexit, the Max Planck Institute Luxembourg for Procedural Law will host, on 14 October 2019, a conference on The New Litigation Landscape: International Commercial Courts and the Coordination of Cross-Border Proceedings.

The Conference will focus, in particular, on the following four major topics:

• The establishment of commercial courts around the globe specializing in cross-border disputes of high value;
• The new framework of global traditional cooperation established by the Hague Conference on Private International Law;
• The impact of Brexit on commercial cross-border litigation in Europe;
• The role of Luxembourg in the new litigation landscape.

More information on this event is available here.

The 6th Petar Sarcevic International Scientific Conference titled “Intellectual Property Rights in the EU: Going Digital” will be held in Zagreb, Croatia, on 18 and 19 October 2019. The conference is structured in three sessions and will gather EU and national judges, practitioners and academics to discuss current topics in copyright, trademarks and designs, along with the issues in IP enforcement. The conference is co-organised by the Croatian IP Office,the Faculty of Law of the University of Rijeka and the Croatian Comparative Law Association, while the main supporter is the EUIPO.

The conference is in Croatian and English with simultaneous translation.

More information is available at the conference web page: ps6conference.law.hr or at ikunda@pravri.hr.

Authors: Jie (Jeanne) Huang and Winston Ma

Following the promulgation of the judicial interpretation by the Supreme People’s Court (“SPC”) on 26 September 2019, Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (“Arrangement”) signed by Mainland China and Hong Kong on 2 April 2019 came into effect in Mainland China from 1 October 2019. This Arrangement provides mutual recognition and enforcement of interim measures between Hong Kong and Mainland China. It has generated broad coverage.[1] This post tries to add to the discussion by providing the first case decided under the Arrangement on 8 October 2019, and more broadly, the reflections on the continuing protests in Hong Kong and arbitration under “One Country, Two Systems’.

1. Mutual recognition and enforcement of interim measures between Hong Kong and Mainland China

Hong Kong Arbitration Ordinance has long been allowing parties to arbitral proceedings in any place to apply to the courts of Hong Kong for interim measures. Interim measures include injunction and other measures for the purpose of maintaining or restoring the status quo pending determination of the dispute; taking action that would prevent, or refraining from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral proceedings; preserving assets; or preserving evidence that may be relevant and material to the resolution of the dispute. However, in contrast to the liberal Hong Kong counterpart, people’s courts in Mainland China are conservative. Chinese law limits interim measures to property preservation, evidence preservation and conduct preservation. More important, Mainland courts generally only enforce interim measures in support of arbitration administered by domestic or foreign-related arbitration institutions of the People’s Republic of China (PRC). This is because Article 272 of Chinese Civil Procedure Law provides that where a party applies for a preservation measure, the foreign-related arbitral institution of PRC shall submit the party’s application to the intermediate people’s court at the place of domicile of the respondent or at the place where the respondent’s property is located. Article 28 of Chinese Arbitration Law states that if one of the parties applies for property preservation, the arbitration commission shall submit to a people’s court the application of the party in accordance with the relevant provisions of the Civil Procedure Law. Article 10 of Chinese Arbitration Law restricts arbitration institutions to those registered with the judicial administrative department of the relevant province, autonomous region or municipalities directly under the Central Government.[2]

There are few exceptions to the Mainland conservative approach. First, since 2017, ad hoc arbitration has been permitted in China’s pilot free trade zones.[3] Therefore, Mainland courts are likely to issue interim measures in support of such ad hoc arbitration. Second, a party to a maritime arbitration seated outside of Mainland China can apply for property preservation to the Chinese maritime court of the place where the property is located.[4] However, the property to be preserved was limited to vessels, cargos carried by a vessel, and fuel and supplies of a vessel.[5]

The third exception is created by the recent Arrangement. Arbitral proceedings commenced both before and after 1 October 2019 are potentially caught by the Arrangement, under which property, evidence and conduct preservation orders could be granted by the courts in Mainland China to assist the Hong Kong arbitration.

The scope of the Arrangement confines to arbitral proceedings seated in Hong Kong and administered by institutions or permanent offices meeting the criteria under Article 2 of the Arrangement. Six qualified institutions have been listed on 26 September 2019, being Hong Kong International Arbitration Centre (“HKIAC”), ICC Hong Kong, CIETAC Hong Kong, Hong Kong Maritime Arbitration Group, eBRAM International Online Dispute Resolution Centre and South China International Arbitration Centre (Hong Kong). Future applications will also be considered and the list may be subject to alteration.

Articles 3-5 of the Arrangement set out the procedural requirements for applying to the courts in Mainland China for interim measures. Since time is of essence, application can be made by a party to the arbitration directly to the relevant Mainland Chinese court before an arbitration is accepted by an arbitration institution.[6] If the arbitration has been accepted, the application should be submitted by the arbitration institution or representative office.[7]

Article 8 of the Arrangement further reflects the importance of timeliness by demanding the requested court to make a decision after examining the application “expeditiously”. Nevertheless, the Arrangement is silent on the specific time limit applicable to the court’s examination process. Pursuant to Article 93 of the Chinese Civil Procedure Law, the court is to make an order within 48 hours after receiving an application for property preservation prior to the commencement of arbitration; Furthermore, Article 4 of the Provisions of the SPC on Several Issues concerning the Handling of Property Preservation Cases by the People’s Courts demands the court to make an order within 5 days after the security is provided, and within 48 hours in cases of emergency.

The first case decided under the Arrangement demonstrates how “expeditiously” a people’s court can make a decision. In the morning of 8 October 2019, the Shanghai Maritime Court received a property preservation application submitted by HKIAC. In this case, the arbitration applicant is a maritime company located in Hong Kong and the respondent is a company in Shanghai. They concluded a voyage charter party which stated that the applicant should provide a vessel to transport coal owned by the respondent from Indonesia to Shanghai. However, the respondent rescinded the charter party and the applicant claimed damages. Based on the charter party, they started an ad hoc arbitration and ultimately settled the case. According to the settlement agreement, the respondent should pay the applicant USD 180,000. However, the respondent did not make the payment as promised. Consequently, the respondent brought an arbitration at the HKIAC according to the arbitration clause in the settlement agreement. Invoking the Arrangement, through the HKIAC, the applicant applied to the Shanghai Maritime People’s Court to seize and freeze the respondent’s bank account and other assets. The Shanghai Court formed a collegial bench and issued the property preservation measure on the same date according to the Arrangement and Chinese Civil Procedure Law.

2. Protests in Hong Kong

As the first and so far the only jurisdiction with the special Arrangement through which parties to arbitration can directly apply to Mainland Chinese courts for interim measures, Hong Kong has been conferred an irreplaceable advantage while jockeying to be the most preferred arbitration seat for cases related to Chinese parties. Arbitration that is ad hoc or seated outside Hong Kong cannot enjoy the benefits of the Arrangement. Parties to an arbitration seated in Hong Kong are encouraged to select one of the listed institutions to take advantage of the Arrangement. Meanwhile, the Arrangement also attracts prominent international arbitration institutions to establish permanent offices in Hong Kong.

One may argue that the Arrangement is the necessary consequence of the “One Country, Two Systems” principle and the increasingly close judicial assistance between Mainland China and Hong Kong. Especially in the context of China’s national strategy to develop the Greater Bay Area, the notion of “one country, two systems, three jurisdictions” makes Hong Kong the only common-law jurisdiction to deal with China-related disputes.[8]

However, to what extent may the recent protests negatively impact on the arbitration industry in Hong Kong? Notably, London and Paris have also experienced legal uncertainly (Brexit in the UK) and protests (Yellow vests movement in France) in recent years. Nevertheless, the Hong Kong situation is more severe than its western counterparts in two aspects. First, currently, the protestors have impacted on the traffic inside Hong Kong. Last month, they even blocked the Hong Kong airport. It is not surprising that parties may want to move the hearings outside of Hong Kong just for the convenience of traffic, if the arbitration is still seated in Hong Kong. Second, the continuation of protests and the uncertainty of the Chinese government’s counter-measures may threaten parties’ confidence in choosing Hong Kong as the seat for arbitration. The Arrangement brings an irreplaceable advantage to Hong Kong to arbitrate cases related with Chinese parties. However, this significance should not be over-assessed. This is because by choosing a broad discovery and evidence rule, parties and tribunals have various means to deal with the situation where a party wants to hide a key evidence. Arbitration awards can be recognized and enforced in all jurisdictions ratified the New York Convention. Therefore, the value of the Arrangement is mainly for cases where the losing party only has assets in Mainland China for enforcement.

The flourish of arbitration in Hong Kong is closely related to Mainland China. However, Hong Kong, if losing its social stability due to the protests, will lose its arbitration business gradually. In the Chinese Records of the Grand Historian (Shiji by Han dynasty official Sima Qian), there is a famous idiom called “cheng ye xiao he bai ye xiao he”.[9] It means the key to one’s success is also one’s undoing. It is the hope that Mainland China and Hong Kong can find a solution quickly so that the arbitration industry in Hong Kong can continue to be prosperous. This is more important than the implementation of the Arrangement.

Authors:

Jie (Jeanne) Huang is an associate professor at University of Sydney Law School, Australia, jeanne.huang@sydney.edu.au.

Winston Ma is an LLB student at University of Sydney Law School, Australia

[1] E.g. http://arbitrationblog.kluwerarbitration.com/2019/07/24/arrangement-concerning-mutual-assistance-in-court-ordered-interim-measures-interpretations-from-a-mainland-china-perspective-part-i/?_ga=2.249539525.310814453.1570572449-887368654.1570572449.

[2] There are different opinions regarding whether Article 10 and 28 of Chinese Arbitration Law restrict the interim measures to arbitration administered by Chinese arbitration institutions. See the judgment of [2016] E 72 Cai Bao No. 427 issued by Wuhan Maritime Court. In this case, the Ocean Eleven Shipping Corporation initiated an arbitration in HKIAC against Lao Kai Yuan Mining Sole Co., Ltd. The applicant was a company in South Korea and the respondent a Chinese company. The parties had disputes over a voyage charter party. In order to ensure the enforcement of the coming award in Mainland China, the applicant applied to Wuhan Maritime Court to freeze USD 300,000 in the respondent’s bank account or seizure, impound or freeze other equivalent assets. The People’s Insurance Company provided equivalent insurance for the applicant’s property preservation application. Wuhan Maritime Court permitted the property preservation application according to Article 28 of Chinese Arbitration Law and Article 103 of the Civil Procedure Law. However, this case is inconsistent with majority cases where Chinese courts rejected to issue interim measures for arbitration administered by ad hoc or arbitration institutions registered outside of Mainland China.

[3] SPC Opinions on Providing Judicial Safeguard for the Building of Pilot Free Trade Zones, Fa Fa [2016] No. 34, http://www.court.gov.cn/fabu-xiangqing-34502.html.

[4] Art. 21(2) of the Interpretation of the SPC on the Application of the Special Maritime Procedure Law of the PRC, Fa Shi [2003] No. 3.

[5] Ibid., art. 18.

[6] Art. 3 of the Arrangement.

[7] Ibid., art. 2.

[8] China has made the economic integration between the Grater Bay Area a national strategy. The Grater Bay Area includes Hong Kong, Macao and Guangdong Province https://www.bayarea.gov.hk/sc/outline/plan.html.

[9] https://en.wiktionary.org/wiki/%E6%88%90%E4%B9%9F%E8%90%A7%E4%BD%95%EF%BC%8C%E8%B4%A5%E4%B9%9F%E8%90%A7%E4%BD%95.

China is one of few countries that permits the parties to choose the applicable law governing cross-border infringement of intellectual property disputes. Article 50 of the Chinese Law Applicable to Foreign-Related Civil Relations 2010 (Conflicts Act) provides that the parties could choose Chinese law (lex fori) after dispute has arisen to derogate from the default applicable law, i.e. lex loci protectionis, in IP infringement disputes.

This choice of law rule was applied by the Beijing IP Court in its 2017 decision on Xiang Weiren v  Peng Lichong (“Drunken Lotus”), (2015) Jing Zhi Min Zhong Zi 1814. The claimant published his painting “Drunken Lotus” in 2007. In 2014, the defendant exhibited his artwork entitled “Fairy in Lotus” in Mosco and Berlin, which allegedly had infringed the claimant’s copyrights. Although the parties did not enter into an explicit choice of law agreement, both parties submitted their legal arguments based on Chinese Copyright Law, which was deemed an “implied” ex post choice of Chinese law. Beijing IP Court thus applied Chinese law to govern the infringement dispute.

This case reveals a number of interesting points. Party autonomy may provide a practical alternative to lex loci protectionis in infringements occurring in multiple jurisdictions. In the Drunken Lotus case, applying lex loci protectionis would result in the application of two foreign laws, Russian and German law, respectively to the infringement occurred in Russia and Germany. In the even worse scenario, where a copyright is infringed in the internet, the territoriality nature of copyrights may result in multiple, similar but independent, infringements occurring in all countries where the online information is accessed, causing more difficulties for the claimant to enforce their rights based on multiple applicable laws.

However, there may be no convincing argument to limit the choice to the lex fori. If party autonomy is justifiable in IP infringement, which is controversial, it would be appropriate for the parties to choose any law. The only justification of such a limitation probably sterns from judicial efficiency and pragmatism. It would be more convenient for the court to apply its own law. Also in practice, it is very common that when the litigation is brought in China and especially where both parties are Chinese, the parties naturally rely on Chinese law to support their claims or defences without being aware of the potential choice of law questions. It renders “implied” ex post choice exist very frequently and make it legitimate for Chinese court to apply Chinese law in most circumstances. It is also likely that allowing the parties to choose the lex fori could be an attractive reason for the claimants, especially those in multi-jurisdiction infringement disputes, to bring the action in China, granting Chinese court a competitive advantage versus other competent jurisdictions.

Furthermore, the Chinese law only permits party autonomy in infringement of IPRs. Any issues concerning substance of IPRs, including ownership, content, scope and validation, are exempt from party autonomy (Art 48 of Contracts Act). These issues are usually classified as the proprietary perspective of IPRs, exclusively subject to the lex protectionis to the exclusion of party autonomy. However, before a court could properly consider the infringement issue, it is inevitable to know at least the content and scope of the disputed IPR in order to ascertain parties’ rights and obligations. In other words, the substance and infringement of IPRs are two different, but closely related, issues. Applying party autonomy means the court should apply two different laws, one for the substance and the other infringement, causing depacage. The necessity to decide the content of IPRs may largely reduce the single law advantage brought by party autonomy in multi-jurisdictional infringements. In the Drunken Lotus case, Chinese court simply applied Chinese law to both the content and infringement issues, without properly considering substance and infringement classification.

Conference on Due Process in International Commercial Arbitration will be held on 18 Oct 2019 at the New York University Lester Pollack Colloquium Room, organised by NYU Centre for Transnational Litigation, Arbitration and Commercial Law.

This event will discuss the topics addressed in the national reports drafted on the basis of a questionnaire prepared by Professors Franco Ferrari, Dietmar Czernich, and Friedrich Rosenfeld. The ultimate goal behind the national reports and the discussion that will take place at the conference is to provide the necessary background information for the preparation of a set of guidelines on due process in international arbitration. The purpose of these guidelines is twofold. On the one hand, they will identify the appropriate standard of due process that arbitrators should apply in international arbitration proceedings. On the other hand, they will contain recommendations on how arbitrators can respond to misuses of due process by recalcitrant parties. To this end, they will identify appropriate case management techniques that help to ensure the efficiency of the proceedings. For further information, please find the Due Process Conference Program October 2019.

On the occasion of the 40th anniversary of the Austrian Private International Law Act, the Interdisciplinary Association of Comparative and Private International Law (IACPIL/IGKK) will be hosting a lecture series in Vienna, starting from 11 December 2019. The lectures will address the future role of the national PIL codifications of EU member states and the application of the Austrian Act during the last decades. Given the comparative focus of the lectures, the organisers are kindly inviting colleagues from all jurisdictions to attend and participate in the discussions. The working languages will be German and English.

A flyer with more information can be found here, the address for registration is office@igkk.org.

Written by Zeno Crespi Reghizzi, Associate Professor of International Law at the University of Milan

The recognition of punitive damages represents a controversial issue in Europe. For many years, due to their conflict with fundamental principles of the lex fori, punitive damages have been found to be in breach of public policy by some European national courts. This has prevented the recognition and enforcement of foreign judgments awarding them, or (more rarely) the application of a foreign law providing for these damages.

More recently, the negative attitude of European courts vis-à-vis punitive damages has been replaced, at least in some States, by a more open approach. The latest example is offered by a revirement of the Italian Supreme Court case law as per its judgment no 16601 of 5 July 2017.

This book – edited by Stefania Bariatti, Luigi Fumagalli, and Zeno Crespi Reghizzi and published by Wolters Kluwer-CEDAM – intends to explore the relationship between punitive damages and European private international law from different angles. After introducing the topic from a comparative law perspective, the chapters of this book examine, in particular, the purpose and operation of public policy as applied to punitive damages, the solutions adopted by the case law of various European States, the treatment of punitive damages in international commercial arbitration, and the emerging trends in EU and ECHR law.

The contributions have been prepared by leading legal scholars from different jurisdictions and are based on papers presented at a conference that took place on 11 May 2018 at the Department of Italian and Supranational Public Law of the State University of Milan, with the support of the SIDI Interest Group on Private International Law and the “Rivista di diritto internazionale privato e processuale”.

Save the Date – 14 November 2019

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. Detailed information on the program and (free of charge) registration will follow soon. Contact address for further information: ontanu@law.eur.nl

On 25 and 26 October 2019 Benedetta Cappiello and Gherhardo Carullo from the Università degli Studi di Milano will host a conference dealing with blockchain from a legal perspective. The focus is on the positive effects that this technology can generate. Special attention is paid to projects that aim to promote sustainability through blockchain solutions. One of the panels is devoted to jurisdiction and the law applicable to smart contracts.

The conference aims at:

• offering a critical analysis of the potential benefits and legal risks of distributed ledger technologies;
• scrutinizing opportunities offered by blockchain technology and possible regulatory frameworks;
• discussing the legal implications of blockchain technologies;
• presenting real-world blockchain projects applied to society;
• bringing together different stakeholders to discuss the future role of governments and the contemporary challenges to public trust.

Conference programme:

DAY 1 – October 25th

9:00 – 9:30: Registration

9:30 – 10:15: Welcome from: E. Franzini, University Chancellor; V. Nardo, Presidente Ordine Avvocati; L. Violini, Head of Department Diritto pubblico italiano e sovranazionale

10:30 –11:00: The Italian perspective: “An Introduction”

• P. Ciocca, Commissario Consob

11:00 – 11:30: Coffee Break

11:30 –12:15: Plenary Session: Understanding Blockchain: “An introduction”

• C. Malcolm, Head, Blockchain Policy Center, OECD-OCDE, tbc

12:30 – 13:45: Lunch

13:45 –14:15: Workshop:“How to ‘mine’?”

• C. Biondi Santi, BitMiner Factory, Firenze

14:30 –16:15: PlenarySession:“Blockchain in law”

Chair: NerinaBoschiero,FacultyDean

• P. de Filippi, Permanent Researcher at the National Center of Scientific Research (CNRS) and Faculty Associate at the Berkman Klein Center for Internet and Society at Harvard University
• O. Goodenough, Director of the Center for Legal Innovation, Vermont Law School – CodeX Affiliated
• T. Schrepel, Utrecht University School of Law

16:15 – 16:45: Coffee Break

16:45 –18:00: “Blockchain in action: Crypto currencies”

Chair: Gabriele Sabbatini

• G. Zucco, BlockchainLabit, founder
• P. Dal Checco, Turin University
• R. Ghio, WizKey

16:45 –18:15: “Smart legal contract: forum and applicable law issue”

Chair:Benedetta Cappiello, University of Milan

• G. Rühl, Professor Friedrich Schiller University, Jena
• P. Bertoli, Professor Università degli Studi dell’Insubria
• M. T. Giordano, LT42

DAY 2 – October 26th

9:30 –10:30: Plenary session:“Blockchain as a tool to achieve the SDGs”

Chair: Cesare Pitea, University of Milan

• R. della Croce, OCSE, Senior Economist, Blockchain and green finance
• G. Baroncini Turrichia, HELPERBIT founder, Blockchain Project applied
• G. Coppi, Fordham University, International Humanitarian Affairs

10:30 – 11:00: Coffee break

11:00 –12:30: “Who and how to decide?”

Chair: Alessandro Palumbo, Ph.D., CEOJUR

• P. Ortoloni, Radboud University, Nijmegen
• A. Santosuosso, Professor Università degli Studi di Pavia
• J. Lassègue, Professor and Chargé de recherche CNRS

11:00 – 12:30: “Transparency Issue”

Chair: Gherardo Carullo

• M. Nastri, Notaio
• M. Finck, Max Planck Institute for innovation and competition
• A. Zwitter, Dean, Rijksuniversiteit Groningen

For further information contact Benedetta Cappiello (benedetta.cappiello@unimi.it)

written by Ivana Isailovic & Ralf Michaels 

We are excited to announce the launch of a new transdisciplinary research project,  Gender and Private International Law (GaP), based at the Max Planck Institute for Comparative and International Private Law (MPI). 

This project is born out of a sense of scholarly and political urgency in a rapidly shifting world, where both conversations about gender equality and a powerful backlash against gender and LGBTQI justice are on the rise. Unlike other legal fields, private international law (“PIL”) has for the most part been absent from this conversation, with some rare (here, here & here) exceptions (see also the panel on women & PIL). The field is almost never analyzed using the concept of ‘gender’, or using methodologies and ideas developed by gender studies scholars. Similarly, scholars working on gender and the law tend to overlook how PIL regulates gender and distributes power and privilege at the transnational level. Transnational studies focusing on gender, often prioritize human rights analyses, or cultural issues, ignoring how PIL techniques and practices interact with identity, and negotiate differences.

Our goal is to create a space for transdisciplinary research and cross-learning at the intersection of PIL and gender and feminist studies. Over the course of this academic year, we will put in place a series of discussion groups bringing together a diverse group of legal scholars working on gender, and PIL scholars interested in gender justice issues. Sessions, organized around short readings, will address methodological questions as well as some of the most pressing topics in PIL, such as the regulation of transnational surrogacy, the recognition of Islamic family law, or international abduction. Our goal with this project is also to give a platform to emergent scholars representing a diversity of voices and backgrounds.

This academic year, we plan to organize three types of events at the MPI in Hamburg. 

• The first one will be the kick-off event, taking place on Friday, Oct. 25, from 2-5 pm. Ivana Isailovi? (MPI and Northeastern University, US) and Roxana Banu (Western University, Ontario, and Queen Mary University, UK) will guide a discussion examining the connections between gender studies and PIL. The event will be followed by a brainstorming session on how to move the project further.
  
  
• Over the course of the Fall 2019, and possibly into the Spring, we will also organize a series of intimate reading groups around canonical texts in gender studies and PIL respectively. PIL scholars and scholars working on gender and law will meet to discuss these texts in an informal setting. More information about these reading groups will be available soon.
• The final event for this academic year, to take place in the Spring of 2020, will be a full-day workshop with discussion groups organized around several specific themes. Similarly to the kick-off event, each discussion will be guided by a PIL expert and gender and law scholars.
  

In order to ensure that cost is not a barrier for participants, travel reimbursements will be available for emerging scholars who could not otherwise attend. 

If you want to attend the kick-off event, please write, by October 18, to veranstaltungen@mpipriv.de. For any general questions concerning the project, including the stipend, please write to gender@mpipriv.de. 

We look forward to seeing you at the MPI in Hamburg!

This post was written by Ms Martina Mantovani, Research Fellow at the Max Planck Institute Luxembourg. The author is grateful to her colleague, Ms Adriani Dori, for pointing out the tweet.

On 26th September 2019, Dutch MEP Sophie in ‘t Veld announced through her Twitter account the lodging of a question for written answer to the EU Commission, prompting the opening of an investigation (and, eventually, of infringement proceedings) in relation to a commercial use of the European Criminal Record Information System (ECRIS). A cornerstone of judicial cooperation in criminal matters, this network is allegedly being exploited by a commercial company operating on the European market (hereinafter name, for the purposes of this entry, The Company), in order to provide, against payment, a speedy and efficient service to actual or prospective employers, wishing to access the criminal records of current employees or prospect hires. Commercial activities of this kind raise a number of questions concerning, first and foremost, the lawfulness of the use of the ECRIS network beyond its institutional purpose, as well as the potential liability under EU law of the national authorities which are (more or less knowingly) fostering such practices. Moreover, as specifically concerns the topic of interest of this blog, such commercial practices exemplify how law shopping, stemming from the lack of coordination of Member States’ data protection laws, can be turned into a veritable profit-seeking commercial endeavor. As it is, these commercial practices are made possible not only by the specific legislation instituting the ECRIS, but also due to the legal uncertainty and fragmentation fostered by the GDPR. In fact, this Regulation leaves rooms for maneuver for Member States’ legislators to specify its provisions in relation to, inter alia, the processing of personal data in the context of employment (art 88), without nonetheless providing for either a guiding criterion or an explicit uniform rule to delimit or coordinate the geographical scope of application of national provisions enacted on this basis. This contributes to creating a situation whereby advantage might be taken of the uncertainty relating to the applicable data protection regime, to the detriment of the fundamental right to data protection of actual or prospective employees.

The ECRIS: institutional mission and open concerns.

The ECRIS is based on two separate but related pieces of legislation, Council Framework Decision 2009/315/JHA and Council Decision 2009/316/JHA, as well as on a separate data protection framework, previously set out by Council Framework Decision 2008/977/JHA, now repealed and replaced by Directive (EU) 2016/680. The intuitional mission of the ECRIS consists in providing competent public authorities from one Member States with access to information from the criminal records of nationals of other Member States. By facilitating the exchange of information from criminal records, this network aims at informing the authorities responsible for the criminal justice system of the background of a person subject to legal proceedings, so that his/her previous convictions can be taken into account to adapt the decision to the individual situation (Recital 15 of Council Framework Decision 2009/315/JHA). The ECRIS additionally aims at ensuring that a person convicted of a sexual offence against children will no longer be able to conceal this conviction or disqualification with a view to performing professional activity related to supervision of children in another Member State (Recital 12 of Council Framework Decision 2009/315/JHA, in conjunction with article 10(3) of Directive 2011/93/EU). In current law, ECRIS applications for accessing extracts from criminal records can be filed by judicial or competent administrative authorities, such as bodies authorized to vet persons for sensitive employment or firearms ownership. In such cases, these applications must be submitted with the central authority of the Member State to which the applicant authority belongs. This central authority may (and not shall) submit the request to the central authority of another Member State in accordance with its national law. In addition, access requests can also be filed by the person concerned for information on own criminal records. In this case, the central authority of the Member State in which the request is made may, in accordance with its national law, submit a request to the central authority of another Member State for information and related data to be extracted from its criminal record, provided the person concerned is or was a resident or a national of either the requesting or the requested Member State. In relation to information extracted via the ECRIS for any purposes other than that of criminal proceedings, a Statewatch Report of 2011 already expressed serious concerns, noting that while the European Data Protection Supervisor recommended that requests of this kind should have only be allowed “under exceptional circumstances”, the Council Framework Decision did not finally introduce such a stringent limitation. Moreover, since, under current article 7, the requested central authority shall reply to such requests in accordance with its national law, this piece of legislation provides “an opportunity for the widespread cross-border exchange of information extracted from criminal records for a variety of purposes unrelated to criminal proceedings”. That same Report additionally stresses the huge potential for “information shopping” that may thus arise, insofar as applicants who are not able to obtain information on an individual from that person’s home Member State, may access it via another Member State which also holds the information and has less stringent data protection legislation.

New commercial practices.

It is within this framework that the new commercial practices lying at the heart of Ms Sophie in ‘t Veld’s question must be understood. The commercial services in question are provided by The Company, expressly identified in the MEP’s interrogation. On its website, The Company takes great care to specify that, while it may have a name which closely echoes the EU system, it remains a private company offering commercial services and that “the purpose of this similarity is to highlight [it uses] the EU structures to access information on criminal records”. According to the same source, the services provided aim at addressing a widespread need of employers from Europe and rest of the world, who wish to ensure that their employees have no criminal background. Having remarked that said employers often struggle to perform background checks in a compliant manner, with legislation varying across the European Union rendering such a check “complicated, time consuming or impossible”, The Company proposes an innovative solution. According to its website, it “discovered” that by resorting to a EU program called European Criminal Records Information System, it is “able to address all of those concerns and offer easy and compliant access to state-issued EU criminal records certificates”. The FAQs further specify how this procedure works in practice. They confirm that all certificates are obtained from central criminal registers of EU Member States. What makes the service provided “unique” is that The Company is declaredly streamlining all access requests through the ECRIS central authority of just one Member State, who requests criminal information from its European counterparts on The Company’s behalf. According to both The Company’s website and MEP Sophie in ‘t Veld’s interrogation, the National Criminal Register of this Country “play[s] a role of a middleman in the flow of documentation and requests the information from the central register of the destined country”. While The Company claims that “the application is made with the applicant’s full awareness and explicit consent”, the MEP stresses “it is not clear whether the person whose records are obtained has given explicit consent”. In fact, it must be acknowledged that the website’s wording is rather ambiguous, being unclear whether the expression “the applicant” refers to the employer seeking the company’s services, or to the persons whose criminal records are being accessed.  The way in which The Company (which, incidentally, has UK phone number and which, according its website’s FAQ’s, seems to direct its services primarily to employers operating in the UK and Ireland) is effectively resorting to a foreign National Criminal Register for accessing the ECRIS remains a mystery. In fact, The Company cannot certainly be counted among either the administrative or the judicial authorities admitted to filing a request under Council Framework Decision 2009/315/JHA. Two highly speculative guesses might be made. A first possibility might be that the National Criminal Register allegedly playing the role of middleman might be misapplying the Framework Decision by submitting requests filed by non-legitimate applicants (as MEP in ‘t Veld seems to imply, by appealing to the principle of mutual trust and by envisioning the possibility of opening infringement proceedings). As it is, the form for access requests used by said National Criminal Register does not strictly require, according to its letter, that person filing the request shall be the same person whose criminal records need to be obtained, although it contains the explicit warning that “obtaining unauthorized information about a person from the National Criminal Register is punishable by a fine, restriction of liberty or imprisonment up to 2 years”.  A second possibility is that the company might be exploiting individual access requests, which – it must be stressed – could concern only “residents or nationals of the requesting or requested Member State” (article 6§2 of Council Framework Decision 2009/315/JHA). In such cases, one might imagine that, after being approached by the employer, The Company would transmit the aforementioned form to the employee/prospect hire, who would personally sign the form, thus explicitly consenting to the procedure. From the standpoint of data protection law, however, such an approach would not be less problematic. As repeatedly confirmed by the Article 29 Working Party, an employer which processes personal data (even within the framework of a recruitment process) qualifies as a controller of the employee/prospect hire personal data, having moreover very limited possibilities to rely on the employee’s express consent as a lawful basis for their processing.  Furthermore, such approach remains even more controversial if account is taken of the fact that it may be purposefully used to circumvent the more restrictive data protection provisions in matters of employment enacted by another Member State.

The Member State’s law applicable to the processing of personal data in the context of employment.

Albeit having been promoted by the EU Commission as “a single, pan-European law for data protection”, the new GDPR fails to level out all legislative differences in the Member States’ data protection laws. As mentioned above, it provides in fact a margin of maneuver for Member States to specify its rules, including for the processing of special categories of personal data. To that extent, it does not exclude Member State law that sets out the circumstances for specific processing situations, including determining more precisely the conditions under which the processing of personal data is lawful (recital 10). In this vein, its article 88 provides that “Member States may, by law or by collective agreements, provide for more specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees’ personal data in the employment context, in particular for the purposes of recruitment […]”. Commercial practices such as those signaled by Ms in ‘t Veld seem to thrive on this situation of persisting legal uncertainty and fragmentation. In fact, some Member States’ data protection legislation expressly prohibits the use of individual access requests to criminal record in connection with the recruitment of an employee, except for very exceptional circumstances. Nonetheless, such legislative measures are often rendered toothless at the international level, either because the legislator limited – more or less willingly – their reach to the domestic domain, or because their geographical scope of application, left undefined by the relevant GDPR- complementing law, remains highly ambiguous. This is precisely what happens in relation to the British and the Irish Data Protection Acts, expressly mentioned by The Company’s website.

• The UK Data Protection Act 2018

This law, meant to adapt the UK data protection regime to the GDPR, provides, under its Section 184, that:

 “it is an offence for a person (“P1”) to require another person to provide P1 with, or give P1 access to, a relevant record in connection with— (a)the recruitment of an employee by P1; (b)the continued employment of a person by P1; or (c)a contract for the provision of services to P1.” According to Schedule 18 of the same law,  “relevant record” means— […] (b)a relevant record relating to a conviction or caution …[which] (a)has been or is to be obtained by a data subject in the exercise of a data subject access right from a person listed in sub-paragraph (2), and (b)contains information relating to a conviction or caution. The Company is well aware of these restrictions, which are expressly reported on its website (reference is made to Section 56 of the Data Protection Act (DPA) 2015, corresponding to Section 184 of the new DPA 2018). Nonetheless, it is further clarified that “[The Company] do[es] not make any requests under section [184] of the DPA, therefore [being] not limited by [it]” and that, consequently, it might even be “safer”, as a UK-based employer, to resort to its services. And this might admittedly be true, since the prohibition set out by Section 184 solely concerns records obtained by a data subject in the exercise his/her access right from one of the UK-based authorities listed in §3(2) of Schedule 18, and not by a foreign Criminal Register. Nonetheless, despite the apparent lawfulness of the whole process, the fact remains that the use (or abuse?) of an EU system, established to address specific needs of the judicial cooperation in criminal matters, becomes, in practice, the tool for enabling a UK-established employer to access employees’ personal data which he could not lawfully access domestically. This goes explicitly against the declared ratio and aim of Section 184 of the UK Data Protection Act. As clarified by the Explanatory Notes, this provision aims at thwarting conducts which may give the employer access to records which they would not otherwise have been entitled. There are, in fact, established legal routes for employers and public service providers to carry out background checks, which do not rely on them obtaining information via subject access requests. Disclosure and Barring Service (DBS) checks can in fact be performed locally only by one responsible organizations registered with DBS and according to the procedure and guarantees set out by British law.

• The Irish Data Protection Act 2018

The other relevant national GDPR-complementing provision is Section 4 of this law, entitled “obligation not to require data subject to exercise right of access under Data Protection Regulation and Directive in certain circumstances”. This provision prohibits a person from requiring, in connection with the recruitment of an individual as an employee or his continued employment, that individual to exercise his rights of access to own criminal records, or to supply the employer with data obtained as a result of such a request. Again, The Company’s website specifies that the services provided are not based on requests under Section 4 of the Irish law, and that this provision does not consequently constitute a limitation, thus making the use of their services “safer” for employers. It must be noted, however, that as opposed to the British provision, Section 4 does not limit the scope of the prohibition to records obtained by requesting access to Irish authorities. Therefore, the extent to which the processing of employees’ personal data, including their criminal records,  will be covered by Section 4 of the Irish Data Protection Act will finally depend on the identification of the scope of application of this Act as a whole. The problem with the Irish Data Protection Act (and with many other national GDPR-complementing laws, such as, inter alia, the Italian and the Spanish legislations) is that it does not explicitly define its geographical reach, thus fostering uncertainty as to the range of factual situations effectively covered and governed by its complementing provisions. This omission has been maintained in the final text of the Irish Data Protection Act despite the contrary advice given, during the drafting process, by the Irish Law Society. This pointed to such a lacuna as a potential source of ambiguity, for both individuals and controllers/processors, with regard to the remit and applicability of that piece of legislation. In particular, clarity as to what entities the Data Protection Act 2018 applies would have been especially desirous “given the number of corporations processing personal data on a large scale in Ireland and the likely queries that might otherwise arise and require judicial clarification”.

The need for better coordination of national data protection laws in the context of employment.

Following Ms in ‘t Veld’s question, the EU Commission will eventually investigate whether such a use of the ECRIS system is compliant with EU law, and whether the National Criminal Register in question is lawfully taking action on the basis of applications filed by/or with the help of The Company. In any event, the objective difficulties that may be encountered, in current law, in deciding over the lawfulness of commercial practices this kind, which might be merely taking advantage of pre-existing legislative loopholes and gaps, are a clear cry for better coordination of the Member States’ data protection laws enacted on the basis of the opening clauses enshrined in the GDPR. In a related paper, which is forthcoming in the Rivista italiana di diritto internazionale privato e processuale, this author tries and demonstrate that this problem is of an overarching nature, not being limited to the rather specific issues of, on the one side, the parochial approach adopted by the UK Parliament in defining the reach of its provision on forced access to criminal records for employment purposes and, on the other side, the silence kept by many national legislators concerning the geographical reach of their domestic data protection law. As it is, the entire European regime on data protection is deeply and adversely affected by a generalized lack of coordination of the spatial reach of domestic GDPR-complementing provisions. Lacking any uniform solution at EU level (set out either by the GDPR itself or by other existing instruments) the delimitation of the scope of application of national GDPR-complementing provisions is in fact left to unilateral and uncoordinated initiatives of domestic legislators. The review of existing national legislation evidences the variety of techniques and connecting factors employed for these purposes by the several Member States, which is liable to generate endemic risks of over- and under-regulations, and, above all, gaps of legal protection which are perfectly exemplified by, but not limited to, the commercial practices arisen in relation to the use of the ECRIS.

This book is published as part of Hart’s Studies in Private International Law- Asia series. It is edited by Anselmo Reyes who is a Guest Professor at the Law Faculty of Doshisha University  and an International Judge of the Singapore International Commercial Court.

The publisher’s blurb is as follows:

“This collection offers a study of the regimes for the recognition and enforcement of foreign commercial judgments in 15 Asian jurisdictions: mainland China, Hong Kong, Taiwan, Japan, Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka and India. For practising lawyers, the book is intended as a practical guide to current law and procedures for enforcing judgments in the selected jurisdictions. However, it does not stop at describing current law and practice. Of interest to academics and students, it also analyses the common principles of the enforcement regimes across the jurisdictions, and identifies what should be regarded as the norm for enforcement in Asian countries for the purpose of attracting foreign direct investment and catalysing rapid economic development.

In light of the common principles identified, the book explores how laws in Asia may generally be improved to enable judgments to be more readily enforced, while ensuring that legitimate concerns over indirect jurisdiction, due process and domestic public policy are respected and addressed. With this in mind, the book discusses the potential impact that the adoption of the 2005 Hague Convention on Choice of Court Agreements might have on Asian jurisdictions; it also considers the potential impact of the convention for the enforcement of judgments in civil and commercial matters presently being drafted by the Hague Conference on Private International Law.

This timely book argues that it is imperative to adopt a uniform system for the recognition and enforcement of judgments throughout Asia if there is to be traction for the enhanced cross-border commerce that is expected to result from endeavours such as the ASEAN Economic Community (AEC), the Belt and Road Initiative (BRI), CPTPP (also known as TPP-11), and RCEP.

Anselmo Reyes is Guest Professor at the Law Faculty of Doshisha University in Kyoto and an International Judge of the Singapore International Commercial Court.”

Written by Mayela Celis

A meeting on the international transfer of maintenance funds was held in The Hague, the Netherlands from 16 to 18 September 2019. The Conclusions and Recommendations are available here.

Among the solutions contemplated were the establishment of a centralised point for international transfers for both incoming and outgoing transfer of funds, the abolishment of the usage of cheques and how to increase transparency and cost reduction to the transfer of funds. The meeting also discussed the benefits and disadvantages of bundled payments, as well as the use of blockchain and other payment transfer solutions.

While the Experts’ Group discussed solutions and good practices in the context of the 2007 HCCH Child Support Convention, these are equally important to the United Nations Convention of 1956 on the Recovery Abroad of Maintenance Obligations, Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, and other regional or bilateral instruments.

It should be noted that pursuant to its Article 49, the 2007 HCCH Child Support Convention prevails over the 1956 United Nations Convention in so far as its scope of application as between the relevant States coincides with the scope of application of the 2007 HCCH Convention.

The European Union, as a Regional Economic Integration Organisation, approved the 2007 HCCH Child Support Convention, which entered into force for the EU on 1 August 2014 (with the exception of Denmark which has not yet acceded to it)

The HCCH news item is available here.