Conflictoflaws

Written by Saloni Khanderia

Associate Professor Saloni Khanderia (Jindal Global Law School, O.P. Jindal Global University, Sonipat, India) recently published a new paper in the Commonwealth Law Bulletin, titled The Hague judgments project: assessing its plausible benefits for the development of the Indian Private International Law.

The author talks about the two international instruments which come under the esteemed Hague judgments project: the Convention of 30 June 2005 on Choice of Court Agreements [the HCCA] and the recent Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments [the Draft Convention], with specific reference to India. The question that the author raises is whether India should endorse the above two instruments. Even though India is a Member of the Hague Conference, it a non-signatory to any treaty or Convention regarding the international jurisdiction of courts and the consequent recognition and enforcement of foreign verdicts. Thus it becomes interesting to see the stance India should take. Initially, the author provides an overview of the judgments project, followed by the role of the HCCA and the Draft Convention and their applicability and contribution to transnational trade. The article presents a position of India in the sphere of private international law. It further analyses the role of the two instruments on the development of India’s private international law.

The author welcomes the freedom of choice of a forum that is granted to the parties in India in respect of civil and commercial transnational matters. However, there is a need for certainty in several matters. Looking at the jurisprudence it can be seen that the Indian courts have been dismissing cases where the parties have not chosen them as a governing forum. Conversely, the courts have taken cognizance and assumed jurisdiction where the same has been conferred upon them by the agreement. Ratification to the HCCA tends to solve this problem as would subject the Indian private international law to a fixed and consistent set of rules on (dis)regarding the choice of court agreements. HCCA also lays down exceptions in cases on an exclusive choice of court agreements, therefore, its incorporation in the Indian laws would guide the court as to when to disregard the choice of court agreement. The ratification would also help in the holistic development of the private international law by easing the need the file fresh suits for recognition and enforcement.

Indian’s archaic rules on private international law make it necessary for the country to endorse the Draft Convention as it would prevent the Indian courts from enforcing a foreign judgment that has been rendered in violation to such an agreement, on coming into effect. Like the HCCA it would ease the process of recognition and enforcement of foreign judgments as one would not have look

through the domestic laws before moving the courts. It would provide certainty to the litigants as would provide answers to inconsistent judgments and parallel proceedings. Although

the ground of public policy is seemingly recognized in India, the Draft Convention would enhance the predictability with respect to enforcement as it explicitly confers the requested court with the right to deny the enforcement, for this reason. The above arguments by the author clearly lay out the conclusion that India should endorse the HCCA and the Draft Convention under the Hague’s Judgment Project.

Over the course of the last few decades, the European legislature has adopted a total of 18 Regulations in the area of private international law, including civil procedure. The resulting substantial legislative unification has been described as the first true ‘Europeanisation’ of private international law, and even as a kind of ‘European Choice of Law Revolution’. However, it remains largely unclear whether the far-reaching unification of the ‘law on the books’ has turned private international law into a truly European ‘law in action’: To what extent is European private international law actually based on uniform European rules common to all Member States, rather than on state treaties or instruments of enhanced cooperation? Is the manner in which academics and practitioners analyse and interpret European private international law really different from previously existing domestic approaches to private international law? Or, rather, is the actual application and interpretation of European private international law still influenced, or even dominated, by national legal traditions, leading to a re-fragmentation of a supposedly uniform body of law?

In bringing together academics from all over Europe, How European is European Private International Law? sets out to answer – for the first time – these crucial and interrelated questions. It sheds light on the conspicuous lack of “Europeanness” currently symptomatic of European private international law and discusses how this body of law can become truly European in character in the future.

The book was edited by Jan von Hein, Eva-Maria Kieninger and Giesela Rühl and published by Intersentia. It is based on a conference that took place in Berlin in March 2018, see here and here.

Written by Alexia Pato, Senior Research Fellow at the University of Bonn
On 10 September 2019, I had the immense pleasure to attend a Conference on the role of private international law (PIL) academia in Latin America (LATAM), which took place in the fast-paced environment of the Max Planck Institute for Comparative and International Private Law (MPI) in Hamburg. The Conference was organised and chaired by Ralf Michaels and Verónica Ruiz Abou-Nigm. I thank them both for their warm welcome and congratulate them for the success of the Conference, which honours the long-standing PIL tradition in LATAM and encourages collaborative learning beyond borders.

This well-structured event encompassed two roundtables: whereas the first one dealt with PIL culture in LATAM, the second one discussed the impact of PIL schools of thought. Speakers of both roundtables prepared short handouts and submitted research questions to the audience, which created a fertile ground for interactions. The following paragraphs summarise the content of the presentations, as well as the follow-up discussions.

The PIL Culture in LATAM

The first roundtable discussed the specific features of academia in LATAM. In particular, María Mercedes Albornoz highlighted that many PIL scholars cumulate academic and professional positions. This might be unfortunate, as the time dedicated to research tends to decrease. A call for more interactions between PIL scholars around the world was made, in order to foster the exchange of ideas and the search for solutions to global concerns. This could be achieved through, e.g. the introduction of double university degrees or visiting programs for professors.

In that respect, the specific role of both the MPI and the Uruguayan Institute of Private International Law (IUDIP) was emphasised by Gonzalo Lorenzo Idiarte and Jan Peter Schmidt. First, Gonzalo Lorenzo Idiarte explained the key role of law Institutes in promoting scientific activities. Additionally, they help universities to deal with the increasingly higher number of students and the corresponding teaching workload. In particular, the IUDIP is active in organising academic events – such as conferences and reports – and regularly drafts PIL texts. The IUDIP is trying to acquire more visibility and encourage scholars to visit.

As for the MPI, Jan Peter Schmidt pointed out that the Institute has contributed to fruitful academic exchanges. On the one hand, many PIL scholars in LATAM visited the MPI and hence, participated to the diffusion of Latin American PIL in Europe. They often helped the MPI in its role of providing legal opinions to German courts on the application of foreign, Latin American law. Indeed, scholars are of utmost importance, as they provide access to “remote” literature and court decisions. On the other hand, renown PIL experts, such as Jürgen Samtleben, Paul Heinrich Neuhaus and Jürgen Basedow, reinforced the links of the MPI with LATAM countries.

Finally, Inez Lopes insisted on the role of ASADIP (Asociación Americana de Derecho Internacional Privado), which gives LATAM countries a voice at the global level. The influence of such an association is potentially huge. Vertically, it can assist LATAM countries in implementing international conventions and advise governments. Horizontally, since ASADIP takes part in several international organisations – such as the HCCH, UNIDROIT, UNCITRAL and OAS – it has a chance to participate in the decision-making process.

The language in which scientific works should be written was extensively discussed with the audience. In particular, should LATAM scholars publish in English? On the one hand, it was highlighted that English is a language that enables Latin American PIL to gain a global dimension. Indeed, the diffusion of knowledge in a globalised setting mainly takes place in that language. On the other hand, legal English describes the law of common law countries. Therefore, using English to describe PIL in LATAM could be perceived as a cultural mismatch.

The Impact of PIL Schools of Thought in LATAM

The second roundtable highlighted the fundamental role of scholars in drafting PIL acts and conventions. In Argentina, Ramírez, Vargas Guillemette and Alfonsín fostered the development of PIL, thanks to their rather avant-gardist ideas, as Cecilia Fresnedo de Aguirre explained. More recently, outstanding scholars contributed to the elaboration of PIL rules within the framework of international organisations, such as the HCCH, UNIDROIT and the OAS.

Although academia boosts the creation of PIL, parliaments tend to blatantly disregard PIL issues and texts. For example, Gonzalo Lorenzo Idiarte and Cecilia Fresnedo de Aguirre explained the challenging legislative path of the Uruguayan General Private International Law Bill. Academics drafted this text and presented it to the parliament, which rejected it three times (!). Its approval is still pending at the time I write those lines.

In Venezuela, the same trend is observable, as Javier Ochoa Muñoz explained. The Venezuelan Private International Law Bill was first drafted in 1965 but only approved in 1999, thanks to the work and energy of Tatiana Maekelt. Here too, an academic supported the development of PIL. Additionally, Tatiana Maekelt encouraged the creation of the ASADIP in 2007 and set up a successful Master Program in Private International and Comparative Law.

At the regional level, the Inter-American Specialized Conferences on Private International Law (CIDIP), organised under the auspices of the OAS, played an important role in the codification and harmonisation of PIL in LATAM. Today, however, this process stalls and, as a consequence, Valesca Raizer Borges Moschen asked if and how the role of the OAS should be redefined. She noted the increasing role of the Inter-American Juridical Committee and the preference for the creation of flexible PIL instruments.

Since international codifications came to a standstill, Sebastián Paredes explained that, in the recent years, LATAM countries have engaged in individual, uncoordinated efforts to codify and modernise their PIL rules. This certainly created coordination issues and further complicated the quest for harmonised solutions to collective problems.

Finally, in his closing speech, Jürgen Samtleben talked about his first steps as a PIL academic in LATAM. He delighted the audience with many anecdotes and a touch of humour.

International and public law, ethics and economics for sustainable development – LEES is the name of the doctoral study programme jointly offered by the University of Milan, the University of Maastricht and the University of Rijeka. There are 6 scholarships available to excellent candidates who wish to conduct interdisciplinary research relevant to sustainability, including that related to private international law.

The call closes on 14 October 2019, and the studies commence as of the beginning of November 2019 in Milan. Further information and instruction is available here.

On Friday 27 September 2019, the Max Planck Institute Luxembourg will host a workshop on Cross-Border Debt Recovery in the EU – Application of the “second generation” regulations in France and Luxembourg. The workshop is organised in the framework of the IC2BE Project, conducted by a European consortium comprising the MPI Luxembourg and the Universities of Antwerp, Freiburg (coord.), Madrid, Milan, Rotterdam, and Wroclaw. Funded by the Justice Programme (2014-2020) of the European Commission, this Project (JUST-AG-2016-02) aims to assess the working in practice of the “second generation” of EU Regulations on procedural law for cross-border cases, i.e., the European Enforcement Order (Regulation (EC) No 805/2004, “EEO”), the European Order for Payment (Regulation (EC) No 1896/2006, “EPO”), the European Small Claims Procedure (Regulation (EC) No 861/2007 as amended by Regulation (EU) No 2015/2421, “ESCP”) and the European Account Preservation Order (Regulation (EU) No 655/2014, “EAPO”) Regulations.

The workshop will address the application in practice of such Regulations in Luxembourg and France. Mr. François Biltgen (CJEU), Prof. Burkhard Hess, and Prof. Cyril Nourissat will chair the workshop’s Sessions. As was the case with the previous workshop hosted by the MPI Luxembourg on 8 June 2018, this event will bring together academics from various institutions, judges, bailiffs, lawyers and representatives from consumer organisations.

This workshop is conceived as a closed event. However, people having a special interest in the topic may apply for admission provided they submit a short explanation to motivate their request. The working languages will be English and French.

Contact address: veerle.vandeneeckhout@mpi.lu

The case law database of the IC2BE project is available here (in progress).

For the National seminars that will be hosted in the participating countries, see here.

For information on the IC2BE final conference, that will be held in Antwerp on 21-22 November 2019, see here and here.

Within the ongoing EU Justice Project “Personalized Solution in European Family and Succession Law”, shortly known by the acronym PSEFS, the first stage of research has resulted in several publications. One of the most important is the e-book consisting of 28 reports by for the EU Member States concerning the forms of couples relations and patrimonial consequences thereof and succession regimes, which is accessible here. It also includes several questions regarding the private international law.

This massive publication has been summarised into the PSEFS Atlas provided for each EU Member State, containing information about the property regimes of married couples and registered partners and rules of succession. Designed as an informative tool for legal professionals and an effective support for citizens, it is accessible by clicking to the territory of the selected EU Member State on the map.

In the attempt to reach the public the team members also created two brochures, one with general information about the three regulations: the Succession Regulation, the Matrimonial Property Regulation and the Registered Partnership Property Regulation, and the other with case studies explaining the functioning of these regulations. The brochures are available in 5 languages by clicking on the pictures of their front pages under the respective results/information and support to the citizens section of the Project webpage.

The Project developments may also be followed on the PSEFS Facebook page. One of the forthcoming activities is the Ljubljana PSEFS Project Events. It is expected to gather close to hundred participants as it is open to both academics and practitioners interested in the topic regardless of their involvement in the PSEFS Project.

The Piraeus Court of Appeal refused recognition and enforcement of two English orders awarding damages for breaching a choice of court and a settlement agreement due to violation of the Greek procedural public policy.

Apostolos Anthimos

INTRODUCTION

The ruling forms part of the famous The Alexandros T saga. It comes as the expected step forward, after the judgment rendered by the English CoA in the case Starlight Shipping Company v Allianz Marine & Aviation Versicherungs AG (The Alexandros T [2014] EWCA Civ 1010. The latter decision has been already reported and criticized in our blog by Martin Ilmer. An extensive presentation and critical analysis of the judgment is also included in the doctoral thesis of my blog colleague, Mukarrum Ahmed, pp. 142-151. For a concise, however complete presentation of the case in its previous stages, see here. For a view in favor of the outcome in the UK courts, see here.

THE FACTS

The application for the declaration of enforceability concerned two orders issued by a judge of the High Court of England in 2014, awarding damages (amounting to 300.000 £) for breach of a choice of court and a settlement agreement between the parties. The orders were issued on the basis of a judgment of the High Court [Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] EWHC 3068 (Comm) (26 September 2014), see also [2015] 2 All E.R. (Comm) 747; [2014] 2 Lloyd’s Rep. 579], which granted declaratory relief in favor of the insurers, and specific performance and damages for the solicitors’ and adjuster’s, on the basis that the proceedings in Greece were in breach of the settlement agreements and the exclusive jurisdiction clauses of both the settlement agreements and the underlying policies.

The Piraeus 1st Instance Court granted exequatur [Nr. 3461/2015, unreported]. The Greek shipping company appealed pursuant to the Brussels I Regulation, seeking revocation in accordance with Article 45, in conjunction with Art. 34.1 Brussels I Regulation.

THE RULING

Initially, the Piraeus CoA engaged in an analysis of the Brussels regime, starting from the Brussels Convention. It then focused on the public policy defense under Article 34.1 Brussels I Regulation. In this context, the court underlined the significance of Article 8 of the Greek Constitution, which reads as follows: No person shall be deprived of the judge assigned to him by law against his will. Finally, the court made reference to the institution of anti-suit injunction, concluding what is already common ground for continental legal orders, namely that recognition of such measures may not be tolerated.

With respect to the issue at stake, the reasoning of the Piraeus CoA is brief and to the point. The court stated verbatim the following:

It is true that both the English court and the Judge issuing the orders did not issue anti-suit injunctions. However, judgments hindering the progress of litigation initiated in Greece by ordering damages, and warnings for further damages against the claimants in the Greek proceedings, are included both in the ruling and the orders aforementioned. Consequently, the above contain ‚quasi‘ anti-suit injunctions, which pose barriers towards free access to Greek courts, in violation of Article 6.1 ECHR and Articles 8.1 & 20 of the Greek Constitution, the provisions aforementioned belonging to the core of public policy in Greece.

Piraeus Court of Appeal, Nr. 371/1.7.2019

COMMENTS

The ruling of the Piraeus court does not come as a surprise. The reasoning might be laconic, nevertheless it is crystal clear, and in line with the comments made by Martin Ilmer &  Mukarrum Ahmed.

For the time being, no information is available on a possible final appeal lodged by the English side. I would however tend to believe that a final appeal is to be expected for the following reasons:

• In the course of proceedings initiated by the Greek side, at least three judgments issued by the Piraeus First Instance Court have incidentally recognized the same English judgments and orders, following the analysis embedded in the judgments of the High Court, the Court of Appeal and the Supreme Court of England respectively. It is therefore obvious that the Greek side will grab the chance given by the new ruling, and seek reversal in second instance.
• There is no precedent regarding the case at hand. Therefore, all cards are on the table: The Greek Supreme Court may allow or dismiss the appeal, whereas a preliminary reference to the CJEU is not to be excluded. The days of reluctance to submit preliminary questions seem to be gone for the Supreme Court [see C-436/16]. Actually, a preliminary reference would be the most prudent solution, given that the matter needs to be clarified on EU level.[contact-form]

In the last decade, the European Union has unified large segments of private international law for its Member States. However, existing treaties concluded by Member States with Third States enjoy priority over European private international law rules. This priority rule hampers the uniform application of EU law and creates friction with harmonised procedural rules. In addition, the legal relationships for large numbers of Third State citizens are not governed by EU private international law but by rules laid down in international treaties, which often dates back to the beginning of the 20th century.

The implications of this pluralism on the functioning of the rather new European private international law rules have not yet been explored in depth. The various international treaties or conventions concluded by the current Member States have neither been comprehensively collected nor has their content been analysed in a systematic manner. This book, published by Intersentia, aims to fill this gap in part. It is the fruit of a research group led by Anatol Dutta (LMU München) and Wolfgang Wurmnest (Universität Augsburg).

Focused on the area of succession law, a field of law chosen in an exemplary manner, the book analyses the scope and effect of treaties and conventions with Third States on the functioning of the European Succession Regulation (Regulation No 650/2012). There are country reports from selected EU Member States (Austria, Belgium, Croatia, Czech Republic, Finland, France, Germany, Italy and Sweden) on the treaty law and its application. To understand if and how Third States apply and interpret these treaties and conventions, there are also reports form selected Third States (Bosnia and Herzegovina, Iran, Montenegro, North Macedonia, Serbia, Switzerland and Turkey). In addition, the book contains a chapter on the competences of the EU and of the Member States to revise the treaty law. The study concludes with a comparative report, which explores the background of the treaty law and discusses various policy options at the national and the European level to ameliorate the legal framework for cross-border succession cases.

To lay the foundation for a cross-border analysis of the treaty law, the book compiles 27 bilateral treaties and multilateral conventions dealt with by the national reports in the area of succession law. The relevant rules of these sources were also translated into English. Such a comprehensive collection and translation of the treaty law thus far does not exist.

The following authors were part of the working group and contributed to the book:

Davor Babi?, Andrea Bonomi,Slavko ?or?evi?, Anatol Dutta, Stéphanie Francq, Pietro Franzina, Samuel Fulli-Lemaire, Biset Sena Güne?, Markku Helin, Tena Hoško,Dirk Looschelders, Julie Mary, Zlatan Meški?, Magdalena Pfeiffer, Walter Pintens, Claudia Rudolf, Wolfgang Wurmnest, Nadjma Yassari.

Written by Jos Hoevenaars, Erasmus University Rotterdam (postdoc researcher ERC project Building EU Civil Justice)

An earlier post reported on the volatile situation of legal aid reform in the Netherlands in which I discussed the plans by Dutch Minister of Legal Protection Sander Dekker for the overhaul of the Dutch system for subsidized legal aid. The Dutch Bar Association is now once again sounding the alarm about the social advocacy. Pro Deo lawyers are paid so little in legal aid that more and more of them consider quitting or already have thrown in the towel. Since 2015, a reported 350 lawyers have already quit and 70% of the remaining lawyers says they consider stopping if the situation doesn’t change.

The general dean of the bar has therefore sent an urgent letter to Minister Dekker in which the Minister is being criticised for experimenting with new forms of justice administration and systemic changes to the legal aid scheme while effectively ignoring the acute problems that persist today.

The 2017 Van der Meer report already concluded that the Dutch system for subsidized legal aid, in which lawyers are awarded compensation based on a point-system, suffers from ‘overdue maintenance’ and that the actual time spent by lawyers no longer corresponds at all to the number of points awarded.

The reasons for this are diverse, but the report indicates that legislation and regulations have become much more complex, that those seeking justice are more demanding and that public administration is creating more legal conflicts than ever before. It also emphasized that the compensation for legal aid in the law of persons and family law is the most out of step. As concluded by Herman van der Meer, the president of the Court of Appeal in Amsterdam, and chair of the Committee, the award system still relies on standards of two decades ago: “If you look at family law, for example, it was quite common at the time of a divorce for the children and the house to go to the wife and for the husband to pay alimony. This is no longer the case these days. As a result, the judge, and therefore also the lawyer, has a lot more work to do with a case.”

The critique voiced by the Bar Association today, although perhaps more pressing now, is not new. In the past year the Dutch Association Pro Deo Lawyers (VSAN) has repeatedly and openly criticized the Minister’s reform plans, especially his sole focus on long-term goals while failing to address acute existing problems. According to VSAN, the new system in which there will be experimented with so-called legal assistance packages, will become an irresponsible system of trial and error, to the detriment of those seeking justice. The volatile situation has on several occasions lead to punctuality actions by pro deo lawyers, and again the bar is threatening such actions, or even general strikes if the Minister fails to address their concerns. In the words of the Dean: “If this call doesn’t work, the minister is actually saying that he doesn’t care.”

It is clear that the complex portfolio of the overhaul of the Dutch legal aid system will not go by unnoticed and continues to cause resistance and critique.

Written by Christiane von Bary, Ludwig-Maximilians-University Munich

The 8th edition of the biannual Journal of Private International Law Conference took place at the Ludwig-Maximilians-Universität in Munich from 12-14 September 2019, organized by Professor Anatol Dutta in cooperation with the editors of the journal, Professor Paul Beaumont and Professor Jonathan Harris.

The call for papers by the organisers resulted in a record number of applications and thus papers presented. More than 190 participants registered for the conference and delivered 114 papers over the course of the three days in Munich. With participants coming from around 50 jurisdictions ranging from Australia to Venezuela, all speakers had a truly international audience and were able to benefit from questions, insights and remarks by a very diverse group of private international law scholars. The diversity of the participants and speakers not only covered a wide variety of geographical backgrounds but also every stage of the academic career from doctoral candidate to senior professor. Due to the unexpectedly high interest in the conference, sadly some people who were interested could not attend due to space constraints – even despite a video transmission of the plenary session.

On Thursday and Saturday, a total of 28 parallel sessions took place. Blocks of seven alternative sessions happened at the same time and participants where free to choose according to their interests. This was a challenge not only for the participants who were spoilt for choice but also from an organisational perspective. In each session, up to four speakers presented their papers on related topics. There were several panels on topics related to jurisdiction, judgments or family law but also on subjects like child abduction, judicial cooperation, arbitration, technology or CSR. The presentations were all followed by lively and fruitful discussions each chaired by an expert in the relevant field. The animated debate often continued in the cafeteria and the sunny courtyard during the coffee breaks. Two speakers who were unable to attend in person even had the chance to participate via video call and answered questions remotely.

The plenary sessions on Friday allowed for a larger audience for four panels. Particularly interesting and thought provoking was the session on “Women and Private International Law” with Professors Roxana Banu, Mary Keyes, Horatia Muir Watt, Yuko Nishitani and Marta Pertegás Sender. Their contributions focussed on gender issues in private international law and provided a broad variety of perspectives in an area that has – so far – been largely neglected by the private international law community. The very existence of this community was addressed by Professor Ralf Michaels and Dr. Veronica Ruiz Abou-Nigm who spoke about what the heart of the endeavour of private international law is. During the days in Munich, which were not only filled by intellectual debate but also by colleagues and friends (re)connecting, the existence of an international community of private international law felt very much real.

The conference website (https://jprivintl2019.de/) will remain active and offers an overview of all papers as well as abstracts from many speakers. Finally, it was revealed that the next Journal of Private International Law Conference will take place in Singapore in 2021, organised by Professor Adeline Chong, which will be the first time the private international law community gathers in Asia.

From 12 to 14 September 2019, the Journal of Private International Law held its 8th Conference at the University of Munich, perfectly hosted and organized by our Munich-based colleague Anatol Dutta. Nearly 150 colleagues gathered from all over the world, amongst them many of the Conflictoflaws.net editors.

This was the perfect occasion to meet for us for dinner on the first evening. Some of our editors had never met personally before, and all of those present could exchange views and news on PIL as well as on the blog.

The bottom line of the meeting certainly was: onwards and upwards with our blog – it is worth it! The PIL community will have many occasions to get together in the near future, inter alia in Aarhus in May 2020. We will keep you posted!

For now, however, we are presenting to you our views and news from the Munich conference. The following short observations should give you some impressions of the fantastic panels and presentations. These are not meant to be a comprehensive conference report,  all the more so, because there is one in the pipeline for the blog by Christiane von Bary, Research Fellow with Anatol.

Here we go:

Plenary Sessions (Friday)

Matthias Weller

The first of the plenary sessions was opened by Matthias Lehmann, University of Bonn, Germany. He presented on the complex relations between “Regulation, Global Governance and Private International Law” with a view to: “Squaring the Triangle”. First of all, Lehmann explained the respective peculiarities of each of the poles of this triangle: PIL as an area of law that, as a reaction to cross-border legal relationships, is primarily rights-driven, based on a notion of equivalence of the selected laws, ideally resulting in multilateral connecting factors. And regulatory law as a reaction to public interests, managed by administrative agencies under a principally unilateral approach by territorially limited administrative acts or mandatory rules. Finally, both areas of law working together to achieve global governance of the respective subject-matters such as e.g. securities antitrust, data protection, environmental or cultural property protection law. Indeed, in all of these areas, the public-private divide is increasingly blurred (see also e.g. Burkhard Hess, The Private-Public Law Divide in International Dispute Resolution, Collected Courses of the Hague Academy of International Law 388, Boston 2018, http://dx.doi.org/10.1163/1875-8096_pplrdc_ej.9789004361201.C02). Lehmann then referred to central techniques of private international law to deal with regulatory rules such as e.g. Articles 3(3) and (4) or 9 of the Rome I Regulation and Article 14(2) of the Rome II Regulation. He also referred to Currie’s governmental interest analysis and Ehrenzweig’s local data theory, to a certain extent reflected by e.g. Article 17 Rome II Regulation. Lehmann pleaded in favour of overcoming (more strongly) the “public law taboo”. As a consequence, a more sophisticated approach for the application of public law in cross-border settings would be needed, as Lehmann further explained, e.g., by making use of auto-limitations or by creating parallel connecting factors for public and private law aspects of the respective subject-matter. Lehmann presented Article 6(3) of the Rome II Regulation for antitrust matters as an example. All of that should be coordinated to serve the public interest. Under such an approach, the question may of course arise as to what extent notions of private enforcement come into play (on this aspect see e.g. Hannah Buxbaum, Regulation and Private Enforcement in a Global Economy: Strategies for Managing Conflict, Collected Courses of the Academy 399, Boston 2019, http://conflictoflaws.net/2019/out-now-hannah-l-buxbaum-public-regulation-and-private-enforcement-in-a-global-economy-strategies-for-managing-conflict/).

In the following session, Ralf Michaels, Hamburg, and Verónica Ruiz Abou-Nigm, Edinburgh, posed the question “Is Private International Law International?”. The presenters envisaged a kind of “invisible college” along the lines of Oscar Schachter, The Invisible College of International Lawyers, 72 Nw. U. L. Rev. 217 (1977 – 1978), perhaps in contrast to the somewhat disillusioned “Divisible College of International Lawyers” by Anthea Roberts, Is International Law International?, Oxford University Press 2017, Chapter 1 – another contribution to which the presenters made reference. Against this background, the “Private International Law for Laypersons Project” (PILL) was explained, on the premise that any non-PIL lawyer counts as a layperson in this sense. Within the project, interviews with PIL lawyers were conducted, including questions like “what belongs to PIL” or “what is the question of PIL”. All of that and more should result in (re-) building a truly international community, after phases of division and “parochialization” during the conflicts revolution in the USA, as well as later in EU PIL. Such a community may meaningfully devote itself to both a deep analysis of foundations as well as to working on practical solutions for cross-border settings. Otherwise, it was suggested, diplomatic conferences such those at The Hague on PIL projects and its preparatory works would suffer too much from a lack of common language for successful discourse and negotiation. The audience was pleased to be informed that a conference like the one on which this post is reporting may well count as an almost ideal “invisible college”.

Máire Ní Shúilleabháin, Dublin, presented on “Habitual Residence in Private International Law: Core Elements and Contextual Variability”. According to her analysis of the respective EU instruments and the case law, the term “habitual residence” strongly depends on its context, and these contextual elements are not sufficiently taken into consideration, which in turn leads to “mechanical” and irrational results. As an example, she referred to the English case of Marinos v. Marinos [2007] EWHC 2047 (see e.g. https://www.familylawweek.co.uk/site.aspx?i=ed907) a divorce proceeding under the Brussels II bis Regulation between a Greek husband and an English wife in which the question arose whether there could be two places of habitual residence. Shúilleabháin then identified a set of “context dependent elements” of the notion of habitual residence such as e.g. exclusivity, voluntariness, absence of any habitual residence etc., that should be applied as appears appropriate in differing normative contexts (e.g. divorce, child abduction, succession etc.).

Finally, Dicky Tsang, Hong Kong, gave a fascinating presentation about an ongoing empirical review of Chinese court practice in respect of choice of law. The underlying assumption of the project is, as was explained by the presenter, that Chinese courts do not apply foreign law, at least as long as there is no agreement on the choice of foreign law by the parties. Tsang introduced the audience to the respective steps of Chinese legislation on PIL over the years and could indeed show that not more than around 1.3% of all the cases reviewed with a foreign element so far applied foreign law and, to date, all of these cases relied on a choice of law agreement. Tsang called for improvement and considered new guiding principles by the Supreme People’s Court of China (SPC), which are guidelines for interpretation of an authoritative character. Such guidelines could bring about a more appropriate interpretation of openly-worded connecting factors such as e.g. the characteristic performance or the closest connection.

Giesela Rühl

The first of the Friday afternoon plenary sessions was devoted to an unprecedented and largely unexplored topic: Women in Private International Law. In fact, while gender issues have been studied widely in other disciplines, there is a striking gap in the private international law literature. Is this because the field has been predominantly shaped by men (in both scholarship, jurisprudence and practice)? Or is this because private international law, as a discipline, does not need a gender / feminist perspective, because it is, traditionally, understood to be neutral and detached from substantive policies and values?

The impressive panel of five female private international law scholars – Roxana Banu (University of Western Ontario, Canada), Mary Keyes (Griffith University, Queensland, Australia), Horatia Muir Watt (Ecole de droit Sciences-po, Paris, France), Yuko Nishitani (Kyoto University, Japan) and Marta Pertegás Sender (University of Antwerp, Belgium, and University of Maastricht, The Netherlands) – set out to answer these and related questions. And, in so doing, they did a remarkable job in demonstrating that private international law is not – and has never been – gender neutral. Roxana Banu and Mary Keyes, for example, showed how gender archetypes shaped traditional private international law, notably in the use of connecting factors in family law. And Horatia Muir Watt, Yuko Nishitani and Marta Pertegás Sender demonstrated how a feminist perspective, including through critical theory, can shed new light on private international law and help to better understand our discipline.

After the session attendants agreed that they had just witnessed something very special, something that might well one day be remembered as the birthdate of gender studies / feminist legal theory in private international law. In any event, the panel made clear that gender and feminist issues belong on the agenda of private international law. It is, therefore, to be hoped that after this conference scholars from across the board (women and men) will jump on the bandwagon to embark on a challenging journey that promises unexpected and fascinating insights into an old discipline.

Saloni Khanderia

The second of the Friday afternoon sessions comprised of a mixed range of contemporary issues that have been attracting considerable attention among policy-makers at the transnational level. The first two discussions chiefly concerned the challenges involved in the recognition and enforcement of foreign judgments in other jurisdictions. Adeline Chong from the Singapore Management University asserted that there were certain commonalities in the rules on the subject among the member countries, in which divergences were in terms of interpretation rather than principle. While there some other significant differences, namely the requirement of reciprocity and the status of foreign non-monetary judgments, she argued that the harmonisation of conflict-of-law rules on the recognition and enforcement of foreign judgments among the ASEAN countries was feasible. In doing so, Chong illustrated the application of the rules in Indonesia, Thailand, Singapore, Malaysia, Laos, Myanmar and India, to name a few.

In a related vein, Nadia de Araujo and Marcelo De Nardi from PUC-Rio / UNISINOS Brazil, focused their discussion on the significance of the Hague Judgments Project on the development of the Brazilian law on the recognising and enforcement of foreign judgments. Based on a survey conducted by De Araujo and De Nardi among arbitrators, judges and academics, the study depicted the broad ranging benefits for the jurisdiction in ratifying the Hague Conference’s Draft Convention on the Recognition and Enforcement of Civil and Commercial Judgments after its coming into effect. The third presentation in the session pertained to the Control of Foreign Direct Investments and Private International Law where Peter Mankowski from the University of Hamburg drew attention to the implications of the Rome Regulation (EU) 2019/452 for the screening of FDI into the Union. The fourth and last presentation of the Plenary session in the afternoon by Gerald Mäsch from the University of Münster was devoted to the complexities in the ascertainment of the applicable law to a Decentralised Autonomous Organisation.

Rui Dias

As was already discussed by Saloni Khanderia, the third presentation in the session pertained to the Control of Foreign Direct Investments (FDI) and Private International Law. The following lines add some additional thoughts to this session where Peter Mankowski from the University of Hamburg drew attention to Regulation (EU) 2019/452, on the basis of which the notion of FDI was defined (see Art. 2 pt. (1)). While in the past FDIs were widely welcome, with many host States even supporting FDIs through substantial subsidisation of private foreign investors, we seem to be witnessing a change in perspective with the growing presence and importance of State funds, state owned enterprises and enterprises instrumentalised for State purposes. Needless to say, trade wars and political antagonisms play an important role in this context. That is why some counter reactions are taking place, in the form of a rising level of control, namely in regards to key industries and strategic industries of host States.

After giving a concise but broad panorama of existing control regimes in national laws, Professor Mankowski addressed Regulation (EU) 2019/452 as a European framework setting a uniform screening template, even though the content of this screening will hinge on national laws. The last part of the presentation analysed the subject from the perspective of PIL, noting how FDI control law is typically a case of internationally mandatory laws, as defined in Art. 9(1) of the Rome I Regulation. Whereas there seems to be a clear case for the application of a Member State’s own lois de police as a host State, according to Art. 9(2), the application of other State’s law is more doubtful, given Art. 9(3) of the Rome I Regulation, where questions arise in the determination of the place of performance, particularly in share deals, as well as in the assessment of the fulfilment of the illegality requirement, after an actual interdiction is in place.

The fourth and last presentation of the Plenary session in the afternoon, by Gerald Mäsch from the University of Münster, was devoted to the complexities in the ascertainment of the applicable law to a DAO, an abbreviation for Decentralised Autonomous Organisation. Professor Mäsch explained how a DAO literally lived in the ether, meaning on the blockchain of Ethereum, one of bitcoin’s rival crypto currencies. Interested investors sent digital coins to the fund and voted on whether money should be put in a given project, so that funds would flow automatically to that project after the approval of a proposal.

The fact that decision-making took place in cyberspace, totally decentralized, under no corporate structure, where governance rules were automated and enforced using software, in particular smart contract code, raises difficult localization issues, and thus puzzle even the most skilful private international lawyers. In fact, it is not clear which law should be applicable to ae DAO: an exercise of characterization might lead us to identify a partnership, a company (but where is the seat or the place of incorporation of this ethereal entity?), or even a contract (even though Art. 1 (2) f of the Rome I Regulation might leave it out of its scope of application). If for the actual, original DAO a trust company was incorporated in Switzerland, not every future DAO will have the same specifics, which leaves us all with the defying question: are there law-free corners in cyber space?

Parallel Sessions (Thursday and Saturday)

On Thursday as well as on Saturday, there was a large number of parallel sessions, and we collected the following selected views and news:

Corporate Social Responsibility

Adeline Chong

This session dealt with a very timely topic given greater awareness on issues such as climate change and the exploitation of workers in developing countries. Three papers explored the relationship between private international law and corporate social responsibility (CSR). The first paper by Bastian Brunk of the University of Freiburg looked at “Private International Law for Corporate Social Responsibility” and focussed particularly on violations of human rights. Brunk discussed the modes by which the CSR agenda could be implemented (eg, by international soft law regulation) and grappled with issues arising from the fact that CSR is not a separate category in the conflict of laws. The second paper by Nguyen Thu Thuy of Nagoya University considered transnational corporations and environmental damages in Vietnam. Vietnamese law has provisions dealing with environmental pollution, but enforcement of the law is not robust. Vietnamese law also does not have any rules dealing with the piercing of the corporate veil which may enable local victims to sue non-Vietnamese parent companies. She suggested several ways in which the law could be reformed to ensure better protection for local residents against environmental pollution by transnational corporations. The last paper was by Eduardo Alvarez-Armas of Brunel Law School. He considered the significant case of Lliuya v RWE in which a Peruvian farmer sued RWE, a German energy company, in Germany, claiming that RWE’s contributions to global warming contributed to the melting of a glacial lake near his home. Alvarez-Armas highlighted the impact of Article 17 of the Rome II Regulation on climate change litigation, which may enable defendants to escape or reduce their liability. A lively discussion followed the papers raising thought-provoking questions such as the extent to which each of us, as fellow contributors to climate change, ought to be held responsible, and the proper balance to be struck between the rights of victims of climate change and the rights of energy corporations who are, after all, producing a necessary resource.

 Child Abduction

Apostolos Anthimos

In one of the morning sessions, chaired by Prof. Nishitani, Kyoto University, Child Abduction was scrutinized from a different perspective by Prof. Lazic, Utrecht University & T.M.C. Asser Institute, and Dr. Jolly, South Asian University New Delhi. Prof. Lazic elaborated on the expected repercussions of the forthcoming Regulation 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction
(Brussels II bis Recast), whereas Dr. Jolly focussed on the situation in her jurisdiction, explaining the reasons why India has still not ratified the Hague Convention.

In the ensuing discussion, Prof. Beaumont expressed in an adamant fashion his reservations in regards to the added value of Chapter III (Articles 22-29) of the new Regulation. Practical aspects of the interdependence between relocation and child abduction were also debated, on the occasion of a very recent ruling of the Greek Supreme Court on the matter.

ADR

Apostolos Anthimos

The noon session, chaired by Prof. de Araujo, Pontifical Catholic University, Brazil, included four presentations on ADR issues. Dr. Lederer, Hogan Lovells, Munich, presented the recent efforts of the EU in the field of ODR. Dr. Meidanis, Meidanis Seremetakis & Associates, Athens, and Ms. Saito, Kobe University, examined the issue of the recognition and enforcement of mediation settlement agreements in the EU and the Hague Judgments Convention respectively. Finally, Dr. Walker, Warwick University, focussed on the interrelationship between ADR & Hague Children’s Conventions. In addition, she reported on the treatment of the subject matter from a UK perspective.

The nature of MSA (Mediated Settlement Agreements) monopolized the ensuing discussion. Interesting interventions and insightful views were voiced by Prof. Pertegás Sender, Maastricht University, and Prof. Hau, Munich University.

“Technology 1”

Ivana Kunda

Technology was one of the common denominators for the presentation in the last Thursday term for parallel sessions. Chaired by Prof. Matthias Weller, University of Bonn, this session touched upon three different technology-related topics. The first one, presented by the author of these lines, attempted to raise awareness about the lack of PIL in the EU Digital Single Market strategy. This being said, the development on the PIL plane are increasingly related to digital environment, and especially internet, which is intrinsically cross-border. Following the chair’s question, the conclusion was that an integral approach is warranted particularly because the traditional connecting factors often lead to illogical results or are impossible to apply altogether. This has been confirmed also by Prof. Koji Takahashi, Doshisha University, who analysed in depth the issue of Blockchain-based crypto-assets from the PIL perspective. He discussed contractual issues, in particular difficulties related to characterisation and characteristic performance, and tort and quasi-delicts focusing on the constant problems of localisation. He was reluctant to accept localisation of the platform’s by the owners’ headquarters, as suggested from the audience in the course of discussion. Further, he pointed to the property-related dilemmas in the context of bankruptcy which came into spotlight due to the Tokyo District Court case Mt. Gox, and restitution claim subsequent to theft. Last speaker Dr. Marko Jovanovic, University of Belgrade, reopened the issue of online defamation, providing a fresh look at some policy aspects thereof. He rejected the link to the tortfeasor arguing that will result in statute shopping.  He also addressed the pros and cons of the place where the damage occurs, place of the victim’s habitual residence, and the centre of interest of the victim (borrowed it from the jurisdiction area, what is the already practiced by the Dutch courts as prof. Aukje van Hoek, University of Amsterdam, commented). One of the points raised concerned also the role of the private acts of harmonisation, which the online platforms seem to be relying on.

“Jurisdiction V”

Ekaterina Pannebakker

The last and actually fifth parallel session on Jurisdiction, chaired by  Alexander Layton QC, started with an overview of the new PIL rules in Japan, South Korea and China, including the Japanese Civil procedure law of 2012, Korean Private International Law act of 2018, the Legal Assistance project in Japan and others. In her overview, Eonsuk Kim from Bunkyo Gakuin University, Tokyo, traced down the borrowings between these countries’ PIL laws and – most interestingly – the influence of the uniform EU PIL rules on the developments of PIL in these countries. Thereafter, Alexander Layton QC, in his capacity as the chair of the session, presented the paper prepared by Dr. Ling Zhu from Hong Kong Polytechnic University, who could not attend the conference. Dr. Ling Zhu’s contribution addressed the conflicts between the jurisdiction of the maritime Courts and the People’s Courts in China. Finally, it was my own turn to zoom in on the nuances in the definition of the autonomous concept of ‘habitual residence of the child’ in the rules on jurisdiction in matters of parental responsibility of Brussels IIa.

The “Jurisdiction” Track of the Conference (“Jurisdiction I to V”)

Tobias Lutzi

Many of the parallel sessions were held together by a common thread, allowing participants to put together a relatively coherent line of panels, if they so wished. This concept certainly worked very well as far as the “jurisdiction” track of the conference was concerned, which connected a series of five panels in total. They created highly stimulating discussions and a genuinely fruitful exchange of ideas between panelists and members of the audience, many of whom consequently found themselves in the same room more often than not.

The discussion was particularly lively in those panels that managed to bring together multiple papers engaging with the same or similar questions, such as the two panels on jurisdictions clauses (which offered theoretical analysis (Brooke Marshall, who took a deep dive into the possible conceptual bases, and Elena Rodriguez Pineau), new angles (Sharar Avraham-Giller and Rui Dias, who addressed the particularities of intra-corporate litigation), and numerous national perspectives (Inez Lopes, Valesca Raizer, Tugce Nimet Yasar, and Biset Sena Gunes) or the panel on the Brussels Ia Regulation (combining a discussion of recent trends in its interpretation by the CJEU (Michiel Poesen, regarding Art 7(1), and Laura van Bochove, regarding Art 7(2)) with somewhat more basic questions as to its interplay with national law (my own paper).

Two further panels then added a large variety of additional aspects and ideas, including inter alia a discussion of the need for, and adequacy of, the so-called gateways for service-out jurisdiction in English law (Ardavan Arzandeh), the new Israeli legislation on international jurisdiction (Iris Canor), the apparent convergence of international discussions in Japan and Korea (Eonsuk Kim), the elusive concept of the habitual residence of the child in the Brussels IIa Regulation (Ekaterina Pannebakker), and the future work of the HCCH with regard to “direct” jurisdiction (Eva Jueptner; as opposed to “indirect” jurisdiction in the sense of the 2019 Convention).

It is hardly surprising that this wide panorama of international jurisdiction featured many cases and controversies that had also been discussed on this blog, including, for example, the Canadian Supreme Court’s decision in Haaretz.com v Goldhar (http://conflictoflaws.net/2018/supreme-court-of-canada-israel-not-ontario-is-forum-conveniens-for-libel-proceedings/) (discussed by Stephen Pitel), the UK Supreme Court’s decision in Brownlie v Four Seasons (http://conflictoflaws.net/2018/uksc-on-traditional-rules-of-jurisdiction-brownlie-v-four-seasons-holdings-incorporated/) (discussed by Ardavan Arzandeh) or the European Court of Justice’s decisions in Feniks (http://conflictoflaws.net/2018/forcing-a-square-peg-into-a-round-hole-the-actio-pauliana-and-the-brussels-ia-regulation/) (discussed by Michiel Poesen) and Schrems (http://conflictoflaws.net/2018/fifty-shades-of-facebook-blue-ecj-renders-decision-on-consumer-jurisdiction-and-assigned-claims-in-case-c-49816-schrems-v-facebook/) (discussed by Laura van Bochove).

Outlook

The 8th Conference of the Journal of Private International Law again was a great success, both scholarly as well as socially. The next conference in 2021 will be hosted by one of the blog’s editors Adeline Chong in Singapore. We are looking forward to it!

The HCCH is seeking to retain a Consultant who will conduct a study and draft a further Report on specific aspects relating to the HCCH’s ongoing legislative project on Tourists and Visitors.

Interested? For more information, follow this link to the vacancy announcement.

Panthéon-Assas (Paris 2) University will host a conference on November 21 on jurisdiction clauses: “La clause attributive de juridiction : de la prévisibilité au désordre”.

The first part of the conference is dedicated to the factors of disorder, such as the application of the clauses in financial matters, the implications of personal data protection, and other limits to the clauses’ effectiveness. The second part will discuss ways to enhance the protection afforded to the parties by jurisdiction clauses.

The conference will take place in the Salle des Conseils, 12 place du Panthéon 75005, Paris.

Registration is open until November 8th.

The full programme is available here

written by Tobias Lutzi

Last week’s decision by the CJEU in Case C-172/18 AMS Neve has rightly received a lot of attention from IP lawyers (see the comments by Eleonora Rosati on IPKat; Terence Cassar et al. on Lexology; James Nurton on ipwatchdog.com; see also Geert van Calster on gavclaw.com). As it adds another piece to the puzzle of international jurisdiction for online infringements of IP rights, it also seems suitable for discussion on this blog.

The EU Framework of International Jurisdiction for Online Infringements of IP rights

The rules on international jurisdiction established by EU instruments differ depending on the specific type of IP right in question.

Jurisdiction for infringements of IP rights that are protected through national law (even where it has been harmonised by EU Directives) is governed by the general rule in Art 7(2) of the Brussels Ia Regulation. Accordingly, both the courts of the place of the causal event – understood as the place where the relevant technical process has been activated (Case C-523/10 Wintersteiger, [34]–[35], [37]) – and the courts of the place of the damage – understood as the place of registration (for trademarks: Wintersteiger, [28]) or access (for copyright: Case C-441/13 Hejduk, [34]), limited to the damage caused within the forum (Hejduk, [36]) – can be seised.

The wide range of courts that this approach makes available to potential claimants in internet cases has however been somewhat balanced out through an additional substantive requirement. Starting with Case C-324/09 L’Oréal, [64], the Court of Justice has repeatedly found an IP right in a given member state to be infringed only where the online activity in question had been directed or ‘targeted’ at consumers in that member state. The Court has also made clear, though, that this requirement is to be distinguished from the requirements for jurisdiction under Art 7(2) Brussels Ia, which could still be based on the mere accessibility of a website, regardless of where it was targeted (see Case C-170/12 Pinckney, [41]–[44]).

Turning to the second group of IP rights, those that are protected under ‘uniform’ EU instruments, the rules of the Brussels Ia Regulation are displaced by the more specific rules contained in the relevant instrument. Under Art 97(1) of the EU Trademark Regulation 207/2009 (now Art 125(1) of Regulation 2017/1001) for instance, jurisdiction is vested in the courts of the member state in which the defendant is domiciled; in addition, certain actions, including actions over infringements, can also be brought in the courts of the member state in which ‘the act of infringement’ has been committed or threatened pursuant to Art 97(5) (now Art 125(5)). While this latter criterion may have appeared to simply refer to the place of the causal event of Art 7(2) Brussels Ia in light of the Court of Justice’s decision in Case C-360/12 Coty Germany, [34] (an interpretation recently adopted by the German Federal Court (BGH 9 Nov 2017 – I ZR 164/16)), the Court of Justice had never specified its interpretation in cases of online infringements.

The Decision in AMS Neve

This changed with the reference in AMS Neve. The CJEU was asked to interpret Art 97(5) of Regulation 207/2009 in the context of a dispute between the UK-based holders of an EU trademark and a Spanish company that had allegedly offered imitations of the protected products to consumers in the UK (and elsewhere) over the internet. While the Intellectual Property and Enterprise Court (which is part of the High Court) had held that it had no jurisdiction because the ‘place of infringement’ referred to in Art 97(5) was the place in which the relevant technical process had been activated, i.e. Spain, ([2016] EWHC 2563 (IPEC)), the Court of Appeal (Kitchen LJ and Lewison LJ) was not persuaded that this conclusion necessarily followed from the CJEU’s case law and submitted the question to the CJEU for a preliminary ruling ([2018] EWCA Civ 86).

The Court of Justice has indeed confirmed these doubts and, held that the ‘place of infringement’ in Art 97(5) must be understood as ‘the Member State within which the consumers or traders to whom that advertising and those offers for sale are directed are located’ (AMS Neve, [65]). To arrive at this conclusion the Court had to drastically limit the scope of the relevant section in Coty (see AMS Neve, [44]) and to extend the substantive criterion of ‘targeting’ established in L’Oréal (which the Court has since relied on in numerous contexts, typically involving internet activities: see Case C-191/15 VKI, [43], [75]–[77]) to the question of international jurisdiction, at least as far as the Trademark Regulation is concerned.

In addition to improving the protection of trademark owners (see AMS Neve, [59] and [63]), the decision seems to rely on two considerations.

First, unlike a general instrument on jurisdiction such as the Brussels Ia Regulation, Regulation 207/2009 defines itself the relevant infringements (in Art 9), which include acts of advertising and offers for sale (see AMS Neve, [54]). Therefore, even though the wording of Art 97(5) does not make any reference to a requirement of targeting (as Eleonora Rosati rightly notes), there may at least be some indirect reference to the concept.

Second, and more importantly, Art 97 is followed by Art 98, which specifies the territorial scope of jurisdiction based on Art 97; it distinguishes between full jurisdiction (of the courts of the member state of the defendant’s domicile, Art 98(1)) and territorially limited jurisdiction (of the courts of the place of infringement, Art 98(2)). This distinction, which is reminiscent of the Court’s decision in Case C-68/93 Shevill and the following case law, indeed seems to provide a strong argument not to limit Art 97(5) to the place of the causal act, where a territorial limitation would make rather little sense.

Still, it seems questionable if the Court’s decision in AMS Neve does not run counter to the idea of vesting jurisdiction in clearly identifiable courts so as to reduce the risk of irreconcilable decisions. As the Court acknowledges (see AMS Neve, [42]), its interpretation of Art 97(5) allows the holder of an EU Trademark to bring multiple actions against an alleged online infringer, which would not fall under constitute lis pendens as they would concern different subject matters (i.e. infringements in different member states).

The Court of Justice appears to have attached more significance to these concerns when interpreting Art 8(2) Rome II in Joined Cases C-24/16 and C-25/16 Nintendo, which similarly refers to the country ‘in which the act of infringement was committed.’ In this regard, the court had explained that

the correct approach for identifying the event giving rise to the damage is not to refer to each alleged act of infringement, but to make an overall assessment of that defendant’s conduct in order to determine the place where the initial act of infringement at the origin of that conduct was committed or threatened. (Nintendo, [103])

It is unfortunate that this reasoning has not been extended to Art 97(5) of the Trademark Regulation.

As my fellow editor Thalia Kruger has already signaled earlier, the final conference for the EU-funded IC2BE project on the cross-border enforcement of claims in the EU will take place in Antwerp (Belgium) on 21 and 22 November 2019. The conference will try to assess how the European framework of cross-border enforcement can be made more coherent and effective. In particular, the conference will discuss the application of the Regulations on the European Enforcement Order, the European Payment Order, the European Small Claims Procedure and the Account Preservation Order in various Member States as well as by the Court of Justice of the EU. This event brings together high-level practitioners from the European Commission, the CJEU as well as from Member State courts and authorities with distinguished scholars from across the EU.

The case law database of the IC2BE project is available here.

The current programme looks as follows:

Day 1, 21 November 2019

• 12.30-13.45 Registration and light lunch
• 13.45 Welcome (Johan Meeusen, University of Antwerp)

Section 1: Survey and Evaluation (Chair Stefania Bariatti, University of Milan)

• 14.00-14.30 IC2BE: Research Methodology, Key Findings and Best Practices (Jan von Hein, University of Freiburg)
• 14.30-15.00 CJEU case law on Cross-Border Enforcement (Veerle Van Den Eeckhout, Max Planck Institute Luxembourg)
• 15.00-15.30 Discussion
• 15.30-16.00 Coffee Break
• 16.00-17.30 Country reports Belgium (Fieke van Overbeeke, University of Antwerp), The Netherlands (Alina Ontanu, Erasmus University Rotterdam), Poland (Agnieszka Guzewicz and Agnieszka Lewestam-Rodziewicz, University of Wroc?aw), Spain (Samia Benaissa Pedriza, University of Complutense, Madrid)
• 17.30-18.00 Discussion

Day 2, 22 November 2019

Section 1 (continued) (Chair Agnieszka Frackowiak-Adamska, University of Wroc?aw)

• 9.00-10.00 Country Reports Germany (Tilman Imm, University of Freiburg), France and Luxembourg (Carlos Santaló Goris, Max Planck Institute Luxembourg), Italy (Valeria Giugliano, University of Milan)
• 10.00-10.15 Discussion
• 10.15-10.45 Coffee Break

Section 2: Perspectives (Chair Francesca Villata, University of Milan)

• 10.45-11.15 Towards a more coherent EU framework for cross-border enforcement (Burkhard Hess, Max Planck Institute, Luxembourg)
• 11.15-11.35 Making cross-border enforcement more effective for creditors (Gilles Cuniberti, University of Luxembourg)
• 11.35-11.55 Ensuring an adequate protection of debtors, in particular consumers, in cross-border enforcement (Fernando Gascón Inchausti, Complutense University, Madrid)
• 11.55-12.15 Third-state relations and cross-border enforcement after “Brexit” (Paul Beaumont, University of Stirling)
• 12.15-12-30 Comment by CJEU judge Camelia Toader
• 12.30-13.00  Discussion
• 13.00-14.00 Lunch
• 14.00-14.20 Technological progress and alternatives to the cross-border enforcement of small claims (Giesela Rühl, Friedrich-Schiller University Jena)
• 14.20-14.40 Improving access to information about cross-border enforcement (Xandra Kramer, Erasmus University Rotterdam)
• 14.40-15.00 Discussion

Section 3: Stakeholders’ views (Chair Carmen Otero, Complutense University, Madrid)

• 15.00-16.00 Stakeholder panel discussion
  • Ilse Couwenberg of the Belgian Court of Cassation,
  • Dr. Bartosz Sujecki, lawyer, Utrecht
  • Dr. Katarzyna Guzenda, German-Polish Center for Consumer Information, Brandenburg (Germany)
  • Patrick Gielen, huissier (Belgium)
• 16.00-16.15 Break

Section 4: Policy (Chair Marta Requejo, CJEU, Référendaire Cabinet de l’Avocat Général M. Campos Sánchez-Bordona)

• 30-17.30 Policy makers

• • Dr. Andreas Stein, European Commission, DG Justice, Head of Unit
  • Paulien van der Grinten, Ministry of Justice of The Netherlands
  • European Parliament, Legal Affairs Committee (tbc)
• 17.30-18.00 Discussion and closing remarks (Chair Thalia Kruger, University of Antwerp)

See here for further details on registration, which is free (only the dinner is to be paid by attendees). Antwerp is close to Brussels and Amsterdam and can easily be reached by train from either of those cities.

National seminars will also take place in the participating countries. See here for the dates.

The HCCH just released a short documentary on the adoption of the 2019 HCCH Judgments Convention.

Shot during the 22nd Diplomatic Session of the HCCH, which took place in June / July 2019, this documentary gives unprecedented insights into the finalisation of the negotiations of this game changing treaty. Follow the delegates during the negotiations and join them at the ceremonial signing of the Convention on 2 July 2019.

This documentary is also a unique opportunity to hear the Secretary General, Dr Christophe Bernasconi; the Chair of the Commission of the Diplomatic Session on the Judgments Convention, David Goddard QC; as well as H. E. Maria Teresa Infante, Ambassador of the Republic of Chile to the Kingdom of the Netherlands; and Professor Elizabeth Pangalangan, University of the Philippines, share first hand their experiences and impressions during the Diplomatic Session, and explain the key elements of the 2019 HCCH Judgments Convention as well as the benefits it will offer.

The video is now available on the HCCH’s YouTube channel (https://youtu.be/DTlle58s64s).

This is a reminder that the Permanent Bureau of the Hague Conference on Private International Law (HCCH) seeks high-achieving interns for January to July 2020.

An internship with the HCCH offers a unique opportunity to deepen the knowledge of private international law, better understand how the HCCH functions, and contribute to the work of the Organisation.

Interested? Then lodge your application by Monday 30 September 2019.

For more information, including the application requirements, check out the HCCH website at: https://www.hcch.net/en/recruitment/internships#legal.

Apostolos Anthimos

THE FACTS

There is no need to repeat the facts which are already reported in my previous posts (see links above). There are however some novelties: The application for recognition concerned indeed the divorce between the same parties, as in the first case; however, this time the request referred to a judgment of the Abdeen Court of 1st Instance, which rectified the divorce issued before the notary public. In particular, the divorce was previously registered as of a revocable nature [revocable repudiation]. Given that the waiting period had expired, and the husband did not ask for his wife’s return in the marital home, a new application was filed before the Abdeen court, aiming at the rectification of the registration, i.e. from revocable to an irrevocable divorce.

THE RULING

The court began with an analysis of the pertinent provisions, i.e. Article 780 Code of Civil Procedure, which is the rule for the recognition of foreign judgments issued in non-contentious proceedings, also covering foreign legal instruments. It first underlined the obvious difficulties in accepting a divorce by repudiation, which clearly violates the equality of sexes. However, and this is the novelty of the ruling, recognition may not be denied, if the applicant is the wife; otherwise, the public policy defence would cause unfair solutions in concreto.

The court entered then into the facts of the case. It first considered the Egyptian decision as similar to a Greek final and conclusive judgment. It then examined whether the foreign court applied the proper law. In this context, it made reference to Article 16, in conjunction with Art. 14.2 Greek Civil Code, which enumerates three options: The law of common nationality; the law of the last common residence; and the law with which the parties are in the closest possible connection. Since Cairo was the last common residence, the application of Egyptian law was the proper solution.

Coming back to the public policy issue, the Thessaloniki Court reiterated that the general approach goes indeed towards a public policy violation, given that repudiation runs contrary to the European Convention of Human Rights. However, in the case at hand, the applicant has fully accepted the dissolution of her marriage in this fashion; moreover, she was the one seeking the rectification in Egypt, and filing for the recognition of the talaq in Greece. A dismissal of the application would lead to an absurd situation, i.e. the existence of a marriage which none of the spouses wishes to maintain. In addition, forcing the applicant to initiate divorce proceedings in Greece would be costly and time-consuming.

For all the reasons aforementioned, the Thessaloniki court granted the application.

[CFI Thessaloniki, 17/07/2019, Nr. 8458/2019, unreported].

COMMENTS

The ruling of the Thessaloniki court is very welcome for the following reasons, which I listed in my last year’s post:

1. It bypassed an Athens Court of Appeal judgement from the ‘90s, which ruled out any attempt to recognize a talaq, even if requested by the spouse.
2. It took a firm stance, triggered by a 2016 ruling of the Supreme Court’s Full Bench [Areios Pagos 9/2016], stating that the public policy clause is not targeting at the foreign legislation applied in the country of origin or the judgment per se; moreover, it focuses on the repercussions caused by the extension of its effects in the country of destination.
3. It made clear reference to the futility of fresh divorce proceedings in Greece, which would cause significant costs to the applicant and prolong the existence of a marriage no longer desired by any of the parties involved.

Written by John Coyle, the Reef C. Ivey II Distinguished Professor of Law, Associate Professor of Law at the University of North Carolina School of Law

The choice-of-law clause is now omnipresent.  A recent study found that these clauses can be found in 75 percent of material agreements executed by large public companies in the United States.  The popularity of such clauses in contemporary practice raises several questions.  When did choice-of-law clauses first appear?  Have they always been popular?  Has the manner in which they are drafted changed over time?  Surprisingly, the existing literature provides few answers.

In this post, I try to answer some of these questions.  The post is based on my recent paper, A Short History of the Choice-of-Law Clause, which will be published in 2020 by the Colorado Law Review.  The paper seeks, among other things, to determine the prevalence of choice-of-law clauses in U.S. contracts at different historical moments.  The paper also attempts to determine how the language in these same clauses has evolved over time.

Prevalence

The paper first traces the rise of the choice-of-law clause in the United States over the course of the 19th  and 20th centuries.  It shows how these clauses were first adopted in the late 19th century by companies operating in a small number of industries – life insurance companies, transportation companies, and mortgage lenders – doing extensive business across state lines.  These clauses soon migrated to other types of agreements, including prenuptial agreements, licensing agreements, and sales agreements.  One can find examples of clauses in each of these types of agreements in cases decided between 1900 and 1920.  It is challenging, however, to estimate what percentage of all U.S. contracts contained a choice-of-law clause at points in the distant past.  To calculate this number accurately, one would need to know, first, the total number of contracts executed in a given year, and second, how many of these contracts contained choice-of-law clauses.  From the vantage point of 2019, it is simply not possible to gather this information.

It is possible, however, to obtain a rough sense for the prevalence of such clauses by looking to books of form contracts.  In an era before photocopiers – let alone computers and word processors – lawyers would routinely consult form books containing samples of many different types of contracts when called upon to draft a particular type of agreement.  General form books typically contained hundreds of agreements, organized by type, that could be quickly and cost-effectively deployed by the contract drafter when the need arose.  Since these books provide a historical record of what provisions were typically included from specific types of agreements at a particular time, they offer a potential means by which scholars can get a general sense for the prevalence of the choice-of-law clause in a particular era.  One need only select a well-known form book from a given year, count the number of contracts in the form book, and determine what percentage of those contracts contain choice-of-law clauses.

Using this approach, I reviewed more than two dozen form books with the aid of several research assistants.  The earliest form book dated to 1860.  The contracts in that book contained not a single choice-of-law clause.  The most recent form book dated to 2019.  Sixty-nine percent of the contracts in this book contained a choice-of-law clause.  The bulk of our time and attention was spent on form books published between these years.  With respect to each book, we recorded the total number of contracts contained therein as well as the number of those contracts that contained a choice-of-law clause.  When our work was done, it became clear that the choice-of-law clauses were infrequently used until the early 1960s, as demonstrated on the following chart.

While the clause was known to prior generations of contract drafters, it was not widely used until 1960.  This is the year in which the clause truly began its long march to ubiquity.

There are many possible explanations for why the choice-of-law clause gained traction at this particular historical moment.  One possibility is that the enactment of the Uniform Commercial Code (UCC) spurred more parties to write choice-of-law clauses into their agreements.  Significantly, the draft UCC contained a provision that specifically directed courts to enforce choice-of-law clauses in commercial contracts when certain conditions were met.  Although the UCC was first published in 1952, it was substantially revised in 1956 and was not enacted by most states until the early 1960s.  It may not be a coincidence that one sees an uptick in the number of choice-of-law clauses appearing in form books at the same moment when many states were in the process of enacting a statute that directed their courts to enforce these provisions.

Language

The second part of the paper chronicles the changing language in choice-of-law clauses.  This inquiry also presents certain methodological challenges.  It is obviously impossible to review and inspect every choice-of-law clause used in the tens of millions of U.S. contracts that entered into force over the past 150 years.  In order to overcome these challenges, I turned to a somewhat unusual source – published cases.  Over a period of several years, I worked with more than a dozen research assistants to comb through such cases in search of choice-of-law clauses.  Whenever we found a clause referenced in a case, we inputted that clause – along with the year the contract containing the clause was executed and the type of contract at issue – to a spreadsheet.  When the work was complete, I had collected 3,104 choice-of-law clauses written into contracts between 1869 and 2000 that selected the law of a U.S. jurisdiction.  We then set about analyzing the language in these clauses.  In conducting this analysis, I ignored the choice of jurisdiction (e.g., New York or England).  I was concerned exclusively with the other words in the clause (e.g., made, performed, interpreted, construed, governed, related to, conflict-of-laws rules, etc.).

This inquiry generated a number of interesting insights.  First, I found that the Conflicts Revolution in the United States had little to no impact on the way that choice-of-law clauses were drafted.  The proportion of clauses referencing the place where the contract was made or the place where it was to be performed remained constant between 1940 and 2000.  Second, I found that while the proportion of clauses containing the words “interpreted” or “construed” similarly remained constant during this same time frame, the proportion of clauses that containing the word “governed” rose from 40 percent in the 1960s to 55 percent in the 1970s to 68 percent in the 1980s to 73 percent in the 1990s.  It is likely that this increase was driven in part by court decisions rendered in the late 1970s suggesting that the word “govern” was broader than the word “interpret” or “construe” in the context of a choice-of-law clause.

Third, I found that it can be extremely difficult to predict when contract drafters will revise their choice-of-law clauses.  In contemporary practice, one routinely comes across clauses that carve out the conflicts law of the chosen jurisdiction.  (“This Agreement shall be governed by the laws of the State of New York, excluding its conflicts principles.”)  This addition constitutes a relatively recent innovation; the earliest example of such a provision appears in a case decided in 1970.  In the 1980s, roughly 8 percent of the clauses in the sample contained this language.  By the 1990s, the number had risen to 18 percent.  While there is no real harm in adding this language to one’s choice-of-law clause, the overwhelming practice among U.S. courts is to read this language into the clause even when it is absent.  Its relatively rapid diffusion is thus surprising.

Conversely, very few contract drafters revised their clauses during this same time period to select the tort and statutory law of the chosen jurisdiction.  This omission is baffling.  U.S. courts have long held that contracting parties have the power to select the tort and statutory law of a particular jurisdiction in their choice-of-law clauses.  It stands to reason that large corporations (and other actors in a position to dictate terms) would have raced to add such language to their clauses to lock in a wider range of their home jurisdiction’s law to be invoked in future disputes.  The clauses in the sample, however, indicate that the proportion of clauses containing such language held constant at 1 percent to 2 percent throughout the 1970s, 1980s, and 1990s.  The failure of this particular innovation to catch on during the relevant time period is likewise surprising.

Conclusion

The foregoing history looks to contract practice as it relates to choice-of-law clauses in the United States.  There is no reason, however, why scholars in other nations could not deploy some of the same research methods to see if the choice-of-law clauses in their local contracts exhibit a similar trajectory.  (Among other things, my paper contains a detailed discussion of methods.)  Most well-resourced law libraries contain old form books that could be productively mined to determined when these provisions came into vogue across a range of jurisdictions.  A review of such books could shed welcome light on the evolution of the choice-of-law clause over time across many different jurisdictions.

[This post is cross-posted at Blue Sky Blog, Columbia Law School’s Blog on Corporations and the Capital Markets]

As previously announced on this blog, the Albert-Ludwig-University of Freiburg (Germany) will host, on 10–11 October 2019, the final conference of the German branch in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE). Funded by the Justice Program (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims and the Account Preservation Order Regulations. As a result, a database of CJEU and national case law has been created which is available here. The project is carried out by a European consortium (the MPI Luxembourg and the universities of Antwerp, Complutense (Madrid), Milan, Rotterdam, and Wroclaw) and is coordinated by Prof. Jan von Hein, Freiburg. Confirmed speakers include Professors Eva Lein (Lausanne), Caroline Meller-Hannich (Halle), Christoph Althammer (Regensburg), Florian Eichel (Bern), Christian Heinze (Hanover) Haimo Schack (Kiel), and Michael Stürner (Konstanz). In addition, the conference will feature a panel discussion by distinguished practitioners, Prof. Dr. Andreas Baumert (Achern), Dr. David Einhaus (Freiburg), and Dr. Carl Friedrich Nordmeier (Frankfurt). The language of the conference will be German. Participation is free of charge (except for the dinner), but requires a registration which is still possible here.