Conflictoflaws

Private International Law in Australia
The 4th edition of this leading book authored by Professors Reid Mortensen, Richard Garnett and Mary Keyes has been published with Lexis Nexis and is available for purchase as a paperback or an eBook here. Significant recent developments in the private international law of Australia, including legislative reforms and important case law, are examined in this edition. In addition to a detailed analysis of the principles applicable to jurisdiction, choice of law and the recognition and enforcement of foreign judgments, the authors give dedicated attention to international arbitration, family law and company law. This edition also features a brand-new chapter on the choice of law rules applicable to equitable claims and trusts. This book will be a valuable addition to the library of anyone with an interest in the private international law principles applicable in common law jurisdictions, particularly in Australia.

Commercial Issues in Private International Law: A Common Law Perspective
This collection, edited by Mr Michael Douglas and Professors Vivienne Bath, Mary Keyes and Andrew Dickinson, has just been published in Hart Publishing’s series, Studies in Private International Law. It is the culmination of the successful and enjoyable conference held at the University of Sydney in February of last year. The authors include judges, scholars and practitioners from Australia, New Zealand, Singapore and the United Kingdom. Their chapters deal with a range of contemporary topics, including rules for service out of the jurisdiction; case management stays; rules governing the recognition and enforcement of foreign judgments and their relationship with jurisdiction; arbitration; (overriding) mandatory rules; proof of foreign law and party autonomy, among others. The Honourable William MC Gummow, a retired justice of Australia’s highest court, remarks in the foreword that “Legal advisers, advocates, judges, scholars and students will find in these pages much to engage them and stimulate further thought.”. The book is available for purchase as a hardback or an eBook here.

The Diplomatic Session (basically a global meeting to negotiate a treaty(ies)) on the future convention on the recognition and enforcement of foreign judgments in civil or commercial matters will begin today and will end on 2 July 2019. This marks a milestone for the Hague Conference on Private International Law (HCCH) as the latest meeting of the Diplomatic Session was held more than 10 years ago, in 2007, on the Child Support Convention and its Protocol.

Not all preparatory documents are publicly available but the ones that are can be consulted here. See in particular the document on common courts, which refers to the Benelux Court of Justice and the future Unified Patent Court. The European Union has rightly clarified that the Court of Justice of the European Union is not a common court for the purposes of this Convention because the European Union would be able to join the treaty as a Regional Economic Integration Organisation (see Art. 27 of current draft), and hence its judgments would be within the scope of the Convention (see Annex II, paras 17 et seq.).

Please note that the meeting above-mentioned is  open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.

On 10 June 2019, the US Supreme Court granted certiorari in the case of Monasky v. Taglieri. By doing so, the US Supreme Court will finally resolve the split in the US Circuits regarding the standard of review and the best approach to follow in determining the habitual residence of a child under the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention).

The questions presented are:

1. Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the First Circuit has held, or under clear-error review, as the Fourth and Sixth Circuits have held.
2. Where an infant is too young to acclimate to her surroundings, whether a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.

Regarding the first question, it is important to note that findings of facts are reviewed for clear error and issues of law are reviewed de novo. This is of crucial importance as this would determine the extent to which the decision of the US district court can be reviewed by the US court of appeals, as these standards confer greater deference for findings of fact. The question then arises as to whether the determination of habitual residence is a mixed question of law and fact or only a question of fact.

The second question, and despite its simplicity, will deal with the current split in the US circuits regarding the extent to which courts can rely on the parents’ last shared intent or the child’s acclimatization or both in determining the habitual residence of a child.

This is well summed up by the Seventh Circuit Court of Appeals in Redmond v. Redmond (2013): “In substance, all circuits – ours included – consider both parental intent and the child’s acclimatization, differing only in their emphasis. The crux of disagreement is how much weight to give one or the other, especially where the evidence conflicts.”

In my personal opinion, the hybrid approach, that is relying on both shared parental intent and the child’s acclimatization (without placing more emphasis on one or the other, except perhaps for the case of newborns or very young infants), is the right approach to follow. This would avoid that parents create artificial jurisdictional links in a State and thus engage in forum shopping. The flip side of this argument is that this would necessarily mean less party autonomy in these matters. By following this approach, the United States would align itself to case law in Canada (Balev case – Canadian Supreme Court, see our previous post here), the European Union (Mercredi v. Chaffe, confirmed in O.L.v. P.Q.) and the United Kingdom (A. v. A. (Children: Habitual Residence)).

To conclude with the words of the Balev case: “[…] the hybrid approach to habitual residence best conforms to the text, structure, and purpose of the Hague Convention. There is no reason to decline to follow the dominant trend in Hague Convention jurisprudence. The hybrid approach should be adopted in Canada”.

Professor Yeo Tiong Min, SC (honoris causa), Yong Pung How Professor of Law at Singapore Management University, has kindly provided the following report:

“The Singapore Court of Appeal has recently affirmed the significance of giving effect to party autonomy in the enforcement of choice of court agreements under the common law in three important decisions handed down in quick succession, on different aspects of the matter: the legal effect of exclusive choice of court agreements, the interpretation and effect of non-exclusive choice of court agreements, and the effect of exclusive choice of court agreements on anti-suit injunctions.

In Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] SGCA 65, proceedings were commenced in Singapore in respect of an alleged breach of a commercial sale contract containing an exclusive choice of English court agreement. The agreement was dated before the Hague Convention on Choice of Court Agreements took effect in English law, so the Convention was not engaged. Like many other common law countries, the Singapore courts would give effect to the agreement unless strong cause can be demonstrated by the party seeking to breach the agreement. A complication arose because there had been four previous decisions of the Court of Appeal in the shipping context where proceedings had been allowed to continue in Singapore in the face of an exclusive choice of foreign court agreement because the court had found that the defence was devoid of merits. The claimant’s argument that based on these decisions the Singapore court should hear the case because there was no valid defence to its claim succeeded before the High Court.

Sitting as a coram of five on the basis of the significance of the issue, the Court of Appeal unanimously reversed the decision. It decided that the merits of the case were not a relevant consideration at the stage where the court was determining whether to exercise its jurisdiction, and departed from its previous decisions to the extent that they stood to the contrary. While affirming the continuing validity of the strong cause test, the court placed considerable emphasis on the element of contractual enforcement. Thus, factors that were reasonably foreseeable at the time of contracting would generally carry little or no weight. In particular, the court recast one of the traditional factors in the strong cause test, “whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages”, as an inquiry into whether the party seeking to enforce the choice of court agreement was acting abusively in the context of cross-border litigation. In the view of the court, the genuine desire for trial in the contractual forum has been adequately expressed in the choice of court agreement itself, and it is legitimate to seek the procedural advantages in the contractual forum. The court considered that strong cause would generally need to be established by either proof that the party seeking trial in the contractual forum was acting in an abusive manner (which is said to be a very high threshold), or that the party evading the contractual forum will be denied justice in that forum (ignoring the foreseeable factors), for example if war had broken out in that jurisdiction.

The court left open the question whether the same approach would be taken if the choice of court agreement had not been freely negotiated, taking cognisance of situations, especially in the shipping context, where contracting parties may find themselves bound by clauses the contents of which they have had no prior notice. The court expressed the tentative view that as a matter of consistency, the same approach should be adopted.

In Shanghai Turbo Enterprises Ltd v Liu Ming [2019] SGCA 11, the Court of Appeal was faced with an unusual clause: “This Agreement shall be governed by the laws of Singapore/or People’s Republic of China and each of the parties hereto submits to the non-exclusive jurisdiction of the Courts of Singapore/or People’s Republic of China.” The High Court found the choice of law agreement to be meaningless as a purported floating choice of law, and that the choice of court agreement was invalid as it could not be severed from the choice of law agreement. The court then applied the natural forum test and declined to exercise jurisdiction on the basis that China was the clearly more appropriate forum for the dispute. On appeal, the Court of Appeal agreed with the finding that the choice of law agreement was invalid, but held that the choice of court agreement could be severed from the choice of law agreement.

In a prior decision, the Court of Appeal in Orchard Capital I Ltd v Ravindra Kumar Jhunjhunwala [2012] SGCA 16, had considered a non-exclusive choice of court clause to be relevant at the very least as a factor in the natural forum test, and that the weight to be accorded to the factor depended on the circumstances of each case. It also considered that there was another possible approach to such clauses based on contractual enforcement principles, which it did not fully endorse as the parties had not raised arguments based on contractual intentions.

In Shanghai Turbo, the Court of Appeal had to face this issue squarely, and affirmed that if there is a contractual promise in the non-exclusive choice of court clause, the party seeking to breach the agreement had to demonstrate strong cause why it should be allowed to do so. The court went on to hold that, generally, where Singapore contract law is applicable, the “most commercially sensible and reasonable” construction of an agreement to submit, albeit non-exclusively, to a court is that the parties have agreed not to object to the exercise of jurisdiction by the chosen court. This inference does not depend on there being an independent basis for the chosen court to assume jurisdiction (eg, by way of choice of law agreement), or on the number of courts named in the clause. Conversely, there is generally no inference that the parties have agreed that the chosen court is the most appropriate forum to hear the case.

Thus, practically, where there is a non-exclusive choice of Singapore court clause, in general the Singapore will hear the case unless strong cause (the same test elucidated in Vinmar) is demonstrated by the party objecting to the exercise of jurisdiction by the Singapore court, but where there is a non-exclusive choice of foreign court clause, this is merely a factor in the natural forum test, as the party seeking trial in Singapore is not in breach of any agreement. On the facts, the court held that jurisdiction should be exercised because the defendant could not demonstrate strong cause.

It is to be noted these are canons of construction under Singapore law. Under Singapore private international law, the choice of court agreement is governed by the law that governs the main contract unless the parties have indicated otherwise. However, Singapore law will apply in default of proof of foreign law. Moreover, canons of construction may be displaced by evidence of contrary intention. The court left open the question – expressing no tentative view – whether the same approach would be taken for contracts which are not freely negotiated. However, as this is a question of interpretation, the context of negotiation could be a relevant indication of the true meaning of contractual terms.

The third case is on arbitration, but the Court of Appeal also made comments relevant to choice of court agreements. In Sun Travels & Tours Pvt Ltd v Hilton International (Maldives) Pvt Ltd [2019] SGCA 10, an injunction was sought to prevent reliance on a foreign judgment obtained in proceedings commenced in breach of an arbitration agreement. The court correctly identified the remedy sought as an anti-enforcement injunction, but nevertheless also discussed the anti-suit injunction because the case was argued on the basis that the injunction sought followed from an entitlement to an anti-suit injunction. The court clarified that an anti-suit injunction would generally be granted to enforce a choice of court agreement unless strong cause is demonstrated why it should be denied, and that there is no need to demonstrate vexatious or oppressive conduct independently. Thus, the law in this area is the mirror image of Vinmar. This case is particularly significant for Singapore because statements in the previous Court of Appeal decision in John Reginald Stott Kirkham v Trane US Inc [2009] SGCA 32 could be read as suggesting that the breach of contract is merely one factor to consider in determining whether the conduct of foreign proceedings abroad was vexatious.

These common law developments are highly significant in bringing greater consistency with developments elsewhere where party autonomy has come to assume tremendous significance. One is the Hague Convention on Choice of Court Agreements which took effect in Singapore law on 1 October 2016. Two critical aspects of this Convention are that a choice of the court of a Contracting State is deemed to be exclusive unless there are express provisions to the contrary, and that the chosen court should assume jurisdiction unless the choice of court clause is invalid. The second is the Singapore International Commercial Court (SICC) established in 2015. Where there is a choice (whether exclusive or not) of SICC clause, the SICC will assume jurisdiction unless the case is not an appropriate one having regard to the court’s character as an international commercial court. In addition, under the Rules of Court, a choice of the Singapore High Court made on or after 1 October 2016 is presumed to include the SICC unless expressly indicated otherwise. In both situations, the common law is not relevant, and to that extent, the practical effects of Vinmar and Shanghai Turbo will be limited. However, the extent to which anti-suit injunctions will be consistent with the Hague Convention on Choice of Court Agreements remains an open question, and it is certainly an area for watch for further developments.”

A more detailed discussion of the cases mentioned above can be found at: https://cebcla.smu.edu.sg/sites/cebcla.smu.edu.sg/files/Paper2019.pdf

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking to fill a Legal Officer position in the field of legal co-operation. The deadline for applications is 7 July 2019. For more information, click here.

The successful candidate is expected to assist with the preparation of the new editions of the Apostille Handbook and the Practical Handbooks on the Service and Evidence Conventions. In addition, and depending on the work programme of the HCCH governance body, “he or she will gradually also be expected to carry out work in other areas, including family law and commercial / finance law.”

The starting date is Monday 2 September 2019. The Permanent Bureau is offering a two-year contract with the possibility of renewal.

Dr Haris P. Meidanis – FCIArb, Meidanis, Seremetakis & Associates Law Firm, Athens, Greece

A recent judgment of the Mytilene Court of First Instance raised a very topical issue, related to the acceptance of international jurisdiction by Greek Courts in the case of hotel contracts, nothwistanding the prorogation clause in favour of the court of some other member state (in this case the courts of the Netherlands).

The guarantee contracts

The position of the court was that such a contract (a so-called guarantee) that essentially guarantees the payment of a certain number of hotel rooms by the tour operator, irrespective of the actual use of the reserved rooms, can be characterised as a lease contract for immovable property under the meaning of art. 24 of the Brussels Ia Regulation. The underlying idea is that such a contract is predominantly a lease contract regarding immovable property and the services aspect that coexists with the lease character of the same contract is diluted into the latter. Under this line of arguments, the court found that, nothwistanding the prorogation clause in favour of the courts of the Netherlands, the court of the place of the immovable property (Greece and in particular Mytilene) should be the only competent to hear the case (art. 24 of Brussels Ia Regulation).

The allotment contracts

Interestingly, similar judgments of other courts of touristic destinations in Greece (Dodecanese islands, like Kos and Rhodes or of the Ionian island of Corfu) have issued similar judgments in the past, also in relation to the so-called allotment hotel contracts. Under them, the tour operator reserves rooms spanning from a minimum to a maximum pre-agreed number and agrees to use as many of them as it can and at the same time to lift by an agreed d-day, the reservation for the ones that are not to be used. Therefore, under the allotment contract, the reservation is not “guaranteed” for the totality of the rooms in question, as is the case with the “guarantee” contract. This point is generally downplayed by Greek courts who seem to be in favour of the application of art. 24 par. 1 of the Brussels I Regulation in every hotel contract, by emphasising on the fact that the primary character of such contracts is the lease.

Critique

This approach, although it does generally make sense, it also merits some qualification. To start with, the prorogation clause is a clause to be preserved by the parties. As is well known, one of the two ways to depart from such a clause in the context of Brussels Ia Regulation (the other is the tacit prorogation), is the case of the so-called exclusive jurisdiction of art. 24, the case of immovable property being one of them: This is the case among others “in proceedings which have as their object …tenancies of immovable property”. As explained, under Greek case law, it is admitted that this is the case and such contracts are predominantly lease of property contracts. Essentially, the question of pinpointing the legal nature of the guarantee and the allotment hotel contracts, is one of characterisation of private international law. It is  generally submitted that characterisation should not be made lege fori and it should take into account the meaning of the relevant juridical categories in a wider/ international environment. This been said, it looks that Greek courts tend to do the characterisation lege fori in relation to hotel contracts, presumably in order to feel more comfortable with an argumentation made in the context of Greek law only. To be noted that this approach in relation to art. 24 of the Brussels Ia Regulation has a strong support also by the doctrine, which at least partly, supports the lege situs interpretation,[1] which in our case coincides with the lex fori. Nevertheless, the suggestion of approaching the matter without a strict lege situs or lege fori approach, that is under the so-called autonomous interpretation, widely used under the various EU PIL Regulations, should not be underplayed. The Hacker case (C-280/90) is also relevant, to the extent that it excludes the application of art. 24 par. 1 in the case of package holidays. Therefore, the predominantly lease dimension of the hotel contracts under Greek law, should not always be taken for granted. The main question is whether the above described hotel contracts are contracts for lease of property under the above points. As a matter of fact, in hotel contracts, the counter signatory of the hotel owner is not the actual user of the property, but a tour operator who then “sells” a package to the end user. On the other hand, from the hotel owner point of view, the contract is predominantly a lease contract. Another critical point is that in real life, the imbalance of powers between a north European tour operator and a local 25 rooms family hotel can be enormous. Especially In the case that the tour operator simply reserves the totality of the hotel rooms and cancels the reservation without good cause, it puts the hotel owner in the extremely burdensome situation to have to file an action somewhere in Europe, usually in “unknown territory” and under generally uncomfortable conditions. If, therefore the totality of the hotel rooms (or almost the totality) is involved, it can be said that the lease dimension of the agreement should indeed always prevail, and this should generally be the case in guarantee hotel contracts. This should be so no matter if the autonomous or the lege situs characterisation is followed. This is not necessarily the case if a small number of the rooms of hotels are reserved or in the case of allotment. In the latter case, perhaps the reservation of the totality of the rooms should again direct us towards the application of art. 24 par. 1, but following a closer examination of the terms of the hotel agreement in order for us to be able to examine if in casu the lease dimension again prevails and if the cancellation of the agreement should end up to a damage to the owner, similar to the one it would suffer in the case of cancellation of a guarantee contract. In this context, the rest of the facts of the case, i.e percentage of the rooms in relation to overall number of rooms of the hotel in question, the degree of power imbalance of the parties, the rest of the services involved (see for example Pammer case C-585/08) cannot be ignored.

[1] De Lima Pinheiro, in Magnus/ Mankowski Brussels I Regulation 2nd ed. Seller 2012, art. 22 par. 25.

The 61th edition of the Séminaire de Droit Comparé et Européen /Seminar of Comparative and European Law of Urbino (Italy) will be held next summer, from 19 to 31 August. 

The Urbino Seminar has been taking place uninterruptedly since 1959. The underlying idea is to contribute to the development of knowledge of Comparative,  International (both public and private) and European law, benefiting of the relaxing time of the year and of the serenity of the environment of Urbino. The Seminar promotes multilingual competencies: presentations are in French, English or Italian, often followed by summarized translations in the other two languages.

This year’s seminar’s main topics are legislative cycle, international tax and bank law, new technologies, Brexit, European consumer law, public procurement, enforcement of foreign judgments, international criminal law and Unidroit principles. Speaker include Prof. Marie-Elodie ANCEL, (Paris-Est Créteil, UPEC), Alessandro BONDI (University of Urbino), Robert BRAY, (European Parliament), Georges CAVALIER (Université Jean Moulin, Lyon III), Emilio DE CAPITANI, (FREE Group), Andrea GIUSSANI (University of Urbino),  Francis Brendan JACOBS (University College Dublin), Jens KARSTEN (LL.M., Attorney-at-Law), Luigi MARI (University of Urbino), Triestino MARINIELLO (Edge Hill University),  Fabrizio MARRELLA (University of Venice Ca’ Foscari), Paolo MOROZZO DELLA ROCCA (University of Urbino), Ilaria PRETELLI (Swiss Institute of Comparative Law), Edoardo Alberto ROSSI (University of Urbino), Tuto ROSSI (Université de Fribourg), Helmut SATZGER (Ludwig-Maximilians-University Munich), Martin SVATOS (Charles University), Shlomit YANISKY-RAVID (Ono Academic College)

The whole program, as well as email addresses for further information,is available here, together with information on  enrollment, accommodation, and how to get to Urbino.

Issue 1 of the Journal of Private International Law is now available. It contains the following articles:

Rhona Schuz, Choice of law in relation to matrimonial property in the 21st century, pp. 1-49

Abstract: The traditional lack of consensus in relation to the choice of law rule/s governing matrimonial property has become topical and relevant over the last few years. The European Union, concerned about the impact of the disparities between the laws of Member States in this field, in the light of increasing divorce and migration, embarked on an initiative to harmonize private international law rules in relation to matrimonial property. However, the Regulation which it produced did not command universal support. Moreover, the recent demographic changes in Europe have added a new dimension to the problem. To date, relatively little attention has been paid to the choice of law implications of migration from non-Western States, in which religious or customary law governs the economic consequences of marriage and which typically have separate property systems which discriminate against women. The mass migration into Europe from such States over the past few years makes it imperative to consider the implications of the choice of law rules in relation to matrimonial property for migrants from non-Western States.

Accordingly, in the light of these developments, there is a need to revisit critically the issues involved and the different approaches to choice of law in relation to matrimonial property in the light of modern choice of law theory. This article meets this need by analysing the extent to which the various approaches best promote central choice of law objectives. In addition, insights are gleaned from the experience of the Israeli legal system in relation to couples migrating from Islamic States. The conclusions drawn from this analysis, which are significantly different from those which informed the EU Regulation, will be of value to law and policymakers throughout the world, when facing the challenge of making decisions pertaining to choice of law in relation to matrimonial property in the twenty-first century.

Liam W. Harris, Understanding public policy limits to the enforceability of forum selection clauses after Douez v Facebook, pp. 50-96

Abstract: This article explores the nature of public policy limits to the enforcement of forum selection clauses, recently considered by the Supreme Court of Canada in Douez v Facebook. The public policy factors relied on by the plurality of the Court, inequality of bargaining power and the quasi-constitutional nature of the right at issue, possess neither the doctrinal clarity nor the transnational focus necessary to guide the deployment of public policy in this context. Here, I argue for a public policy exception to the enforcement of forum selection clauses based on the doctrine of mandatory overriding rules. This approach would focus on whether a forum selection clause has the effect of avoiding the application of local norms intended to enjoy mandatory application in the transnational context. This conception of public policy would be a more coherent guide to the exercise of courts’ discretion to enforce forum selection clauses in cases like Douez.

Adeline Chong & Man Yip, Singapore as a centre for international commercial litigation: party autonomy to the fore, pp 97-129

Abstract: This article considers two recent developments in Singapore private international law: the establishment of the Singapore International Commercial Court and the enactment of the Hague Convention on Choice of Court Agreements 2005 into Singapore law. These two developments are part of Singapore’s strategy to promote itself as an international dispute resolution hub and are underscored by giving an enhanced role to party autonomy. This article examines the impact of these two developments on the traditional rules of private international law and whether they achieve the stated aim of positioning Singapore as a major player in the international litigation arena.

Muyiwa Adigun, Enforcing ECOWAS judgments in Nigeria through the common law rule on the enforcement of foreign judgments, pp. 130-161

Abstract: The ECOWAS Court was established by the Revised ECOWAS Treaty. By virtue of that treaty, the Court has assumed an existence at the international plane and has delivered a number of judgments. This study therefore examines the enforcement of the judgments of the ECOWAS Court in Nigeria as a Member State. The study finds that Nigeria has not been enforcing the judgments of the Court like other Member States. The study further finds that there are five sources of international law namely: treaties, custom, general principles of law recognised by civilised nations, judicial decisions and the writings of the most qualified publicists and that while Nigerian law has addressed domestic effect of treaties and custom, that of other sources most notably the decisions of international tribunals has not been seriously addressed. The study therefore argues that the common law on the enforcement of foreign judgments can be successfully adapted to give domestic effect to the judgments of the ECOWAS Court as an international tribunal in Nigeria. The study therefore recommends that the Nigerian judiciary should take the gauntlet to make the judgments of the ECOWAS Court effective in Nigeria.

Justin Monsenepwo, Contribution of the Hague Principles on Choice of Law in International Commercial Contracts to the codification of party autonomy under OHADA Law, pp. 162-185

Abstract: The Organization for the Harmonization of Business Law in Africa (hereinafter referred to as OHADA) was created on 17 October 1993 to foster economic development in Africa by creating a uniform and secure legal framework for the conduct of business in Africa. In an effort to reform the law of contracts in its Member States, OHADA has prepared the Preliminary Draft of the Uniform Act on the Law of Obligations (hereinafter referred to as the Preliminary Draft). Several provisions of the Preliminary Draft set forth general principles concerning choice of law in international commercial contracts. Indeed, the Preliminary Draft encompasses innovative provisions on party autonomy in international contracts, such as the explicit recognition of the right of parties to choose the law applicable to their contracts and the inclusion of limited exceptions to party autonomy (overriding mandatory rules and public policy). Yet, it still needs to be improved in respect of various issues, including for instance the ability of parties to choose different laws to apply to distinct parts of their contract and the possibility for the parties to expressly include in their choice of law the private international law rules of the chosen law. This paper analyses the provisions of the Preliminary Draft in the light of the Hague Principles on Choice of Law in International Commercial Contracts (hereinafter referred to as the Hague Principles). More particularly, it explores how the Hague Principles can help refine the rules on party autonomy contained in the Preliminary Draft to enhance legal certainty and predictability in the OHADA region.

Jeanne Huang, Chinese private international law and online data protection, pp. 186-209

Abstract: This paper explores how Chinese private international law responds to online data protection from two aspects: jurisdiction and applicable law. Compared with foreign laws, Chinese private international law related to online data protection has two distinct features. Chinese law for personal jurisdiction is still highly territorial-based. The “target” factor and the interactive level of a website have no play in Chinese jurisprudence. Regarding applicable law, Chinese legislators focus more on the domestic compliance with data regulations rather than their extra-territorial application. Moreover, like foreign countries, China also resorts to Internet intermediaries to enhance enforcement of domestic law. These features should be understood in the Chinese contexts of high-level data localization and Internet censorship.

Giorgio Risso, Product liability and protection of EU consumers: is it time for a serious reassessment? pp 210 – 233 

Abstract: The European Union (EU) has not enacted a coherent and fully-fledged product liability regime. At the substantive level, the Product Liability Directive – adopted in 1985 – is the only piece of legislation harmonising the laws of the Member States. At the private international law level, the special choice-of-laws provision in the Rome II Regulation coexists with the general rules in the Brussels I-bis Regulation. Cross-border product liability cases are therefore subject to different pieces of legislation containing either “general” or “specific” provisions. In turn, such general and specific provisions do have their own rationales which, simplistically, can be inspired by “pro-consumer”, “pro-producer”, or more “balanced” considerations, or can be completely “indifferent” to consumer protection. This article examines the interactions between the Directive, the Rome II and the Brussels I-bis Regulations in cross-border product liability cases. The aim of this article is to assess whether the piecemeal regime existing at the EU level risks undermining the protection of EU consumers. The analysis demonstrates that the regime is quite effective in guaranteeing an adequate level of consumer protection, but reforms are needed, especially to address liability claims involving non-EU manufacturers or claims otherwise connected to third States, without requiring a complete overhaul of the EU product liability regime.

Guangjian Tu, The flowing tide of parties’ freedom in private international law: party autonomy in contractual choice of law in China, pp. 234-240 (Review Article)

Building on the successful conferences held in Aberdeen (2005), Birmingham (2007), New York (2009), Milan (2011), Madrid (2013), Cambridge (2015) and Rio (2017) the Journal of Private International Law will be holding its 8th Conference at the University of Munich from 12 – 14 September 2019.

Following the call for papers the Editors of the Journal (Professor Jonathan Harris QC of King’s College, Londonand Professor Paul Beaumont FRSE of the University of Aberdeen) and the organizer of the conference (Professor Anatol Dutta, University of Munich) have selected from a great number of applications from all over the world a variety of papers covering all areas of private international law which will be presented in a mixture of plenary (Friday) and parallel panel sessions (Thursday afternoon and Saturday morning).

We ask all speakers and guests to register via this website.

We thank the publisher Routledge and the German Federal Chamber of Notaries  for their generous support.

On 10–11 October 2019, the Albert-Ludwig-University of Freiburg (Germany) will host 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. For further information about the program and the process of registration, please click here.

The Käte Hamburger Center for Advanced Study “Law as Culture” invites academics of excellent standing to apply for a fellowship or junior fellowship for a maximum of 12 months (for the research period from April 1, 2020, to March 31, 2022) on the subject:

Law and Community

Subsequent to developing the “Law as Culture” paradigm in the first funding phase (2010-2016), the Center will now direct its attention to the interaction between law and other cultural spheres in the second funding phase (2016-2022). During the stated research period, the Center is dedicated to examining the relationship between Law and Community. Within this research area, the diversity of cultures of family law and societal forms globally will be examined. Research projects shall also be oriented towards one of the Center’s three traversal dimensions, namely “Cultures of Differentiation and Comparing Legal Cultures,” “Human Rights and Autonomy,” or “The Binding Force and the Emotive Foundations of the Law.”

The tensions described and analyzed as contradictions of normative orders in theories of legal pluralism can only be understood with view to the social communities hiding behind these with their respective religious, indigenous, local, and regional claims. In this context, the question of how these social communities are held together requires closer examination, as does their relationship to secondary, superordinate, and subordinate legal ties. Concretely speaking, ideas of superior or even universalist legal communities, such as the European Legal Community or a Human Rights Community, should be explored while bearing in mind the normative and emotionally affective boundaries of community building.

Shaped by social proximity and emotional entanglement, the family continues to be regarded as a central place where societal values are reproduced, goods are distributed, and mutual responsibility is assumed. The longstanding principle of family solidarity is reflected in numerous legal orders. At the same time, however, family law also mirrors changing family forms and family ideals. A wideranging transformation of society and its normative foundations manifests in the pluralization of family forms. It is precisely on the basis of that which constitutes the normative character of the family that constructions of “us” and “them” become clear. In cases involving foreign elements, for example, the law of the “other” is applied using private international family law; exceptions based on public policy nevertheless call for a “we.”

In addition to the comparison of family law cultures, the research area Law and Community seeks the comparison of (legal) cultures at the level of other forms of community and their connection to applicable law: Which social norm systems form traditional local neighborhoods, modern clan structures, or “post-traditional communities” in contemporary subcultures, and what is their relationship to state law? How are these particular claims to universal validity conveyed? To what extent is valid law accepted by them or pragmatically integrated, and do they attempt to enforce the ideas of norms beyond their own group boundaries?

The Käte Hamburger Center for Advanced Study “Law as Culture” offers a creative research atmosphere for various disciplines in the cultural and legal sciences. Academics of excellent standing are invited to apply by July 15, 2019. Applications should include a résumé, project description (5-10 pages), and selected publications, as well as list the applicant’s availability during the research period. They should be submitted preferably by email (kaesling@uni-bonn.de) or, alternatively, by mail:

Directorate of the Käte Hamburger Center for Advanced Study “Law as Culture”
c/o Dr. Katharina Kaesling
Research Coordinator
Konrad-Zuse-Platz 1-3
53227 Bonn
Germany

Further information can be found here.

At the Institute for Comparative and Private International Law of the Albert-Ludwig-University Freiburg (Germany), a vacancy has to be filled at the chair for private law, private international law and comparative law (chairholder: Prof. Dr. Jan von Hein), from 1 October, 2019 with

a legal research assistant (salary scale E 13 TV-L, personnel quota 50%)

The assistant is supposed to support the organizational and educational work of the chairholder, to participate in research projects of the chair as well as to teach his or her own courses (students’ exercise). Applicants are offered the opportunity to obtain a doctorate.

Applicants are expected to be interested in the chair’s main areas of research. They should be fluent in German and possess an above-average German First State Examination (at least “vollbefriedigend”) or a foreign equivalent degree. In addition, a thorough knowledge of German civil law as well as conflict of laws, comparative law and/or international procedural law is a necessity. Severely handicapped persons will be preferred provided that their qualification is equal.

Please send your application (CV, certificates and, if available, further proofs of talent) as a single pdf file via e-mail to ipr3@jura.uni-freiburg.de no later than 15 July, 2019. Alternatively, the documents may be sent to Prof. Dr. Jan von Hein, Institut für ausländisches und internationales Privatrecht, Abt. III, Peterhof, Niemensstr. 10, D-79098 Freiburg (Germany). As the application documents will not be returned, applicants are kindly requested to submit only unauthenticated copies.

The European Conference on Mediation in Cross-Border Succession Conflicts invites mediators, legal practitioners, researchers, policymakers and citizens who are interested in succession mediation and cross-border mediation. The EU-funded project FOMENTO (Fostering mediation in cross-border civil and succession matters) aims to contribute to foster a widespread use of mediation as a cost-effective solution to prevent and solve international disputes in civil and succession matters. The conference will take place in Leipzig (Germany) on 26 June 2019. It is a possibility for mediators and jurists to get in contact and exchange experience in the field of succession conflicts. It also provides a venue for giving and receiving constructive feedback on research in progress, networking and discussions for the advancement of mediation across Europe. The main topics of the conference include

• mediation in cross-border succession cases,
• cross-border mediation
• co-mediation in a cross-border context
• online mediation

For the full programme and registration, please click here.

The successful conclusion of the 7th edition PAX Moot Competition marked the 50th anniversary of EU Private International Law and was named after one of its “founding fathers”, Paul Jenard, who served as the Rapporteur of the 1968 Brussels Convention.

The PAX Competition is a specialized moot court competition focused on private international law issues. The PAX Competition was set up originally by Sciences Po (Paris) in 2012. Since 2018, the organising team includes private international law experts from different Universities and research institutions. This year, the University of Antwerp and the T.M.C. Asser Institute collaborated with Sciences Po in organising this moot court competition.

We are grateful for the support and the funding received from the European Commission, through the  JUDGTRUST project coordinated by the T.M.C. Asser Institute, and in particular thank our colleagues of the T.M.C Asser Institute for the excellent facilities provided for the moot.

On May 24 and 25, 2019, eleven teams from six States, including the Russian Federation and India, met in The Hague for the oral rounds of this competition. We would like to thank all participating teams for their commitment and excellent work on the moot! We congratulate the University of Antwerp as the winner of the 2019 Jenard Round of the Pax Competition and the University of Sorbonne for writing the winning memorials!

Registration for the 2020 is set to be open from November 2019 . We invite teams from all corners of the European Union and beyond to participate in the next edition of this Private International Law endeavour!

On Wednesday 12 June 2019, at 13.30, the Department of International, Legal, Historical and Political Studies of the University of Milan will host the conference “New Rules on Property Regimes for International Couples”.

Speakers include Ilaria Viarengo (University of Milan), Maria Vilar Badia (European Commission), Andrea Bonomi (Swiss Institute of Comparative Law), Cristina González Beilfuss (University of Barcelona), Janeen Carruthers (University of Glasgow), Paolo Pasqualis (Notary), Monica Velletti (Judge), Cinzia Calabrese (President of AIAF) and Pietro Franzina (University of Ferrara).

See here for registration, programme and further information.

Written by Sophie Hunter

Since 2017, the Supreme People’s Court of China (SPC) has established three internet courts in Hangzhou, Beijing and Guangzhou which are major hubs for e-commerce, the internet industry and the headquarters of giant internet companies like Alibaba and Baidu. With an internet penetration of 54% and approximately 800 million internet users, the introduction of such courts helps to reduce the rising number of online disputes between citizens in a time and cost efficient way thanks to the admissibility of blockchain backed online data as evidence. China’s leading role in internet litigation comes at no surprise since regular courts favor documentary evidence over live testimony and already so much is done online.

This post sheds light on this new model and how it has potential to influence other jurisdictions.

China’s political strategy towards innovation and internet

Like many other countries, China views the Internet as key to its future growth and development opportunities. The Chinese government maintains the world’s most sophisticated internet censorship apparatus called the Great Firewall. After the 2017 cybersecurity law, the level of internet freedom in the country declined as a result of strengthened repressive restrictions on online activities and onerous financial burdens on technology companies, independent media, and bloggers. President Xi Jinping announced plans at the 19th Communist Party Congress in October 2017 to transform China into a “cyber superpower”. China’s Internet Plus strategy, which is part of this initiative, encompasses innovations such as internet courts, in order to actively promote the healthy development of e-commerce, industrial networks, and Internet banking, as well as facilitate the growth of new industries and the expansion of its companies’ international Internet footprint. Although China has recently clamped down on cryptocurrencies, it hailed blockchain development in its five-year plan to 2021.

The new model of specialized courts for internet-related disputes or Internet Courts

According to the Provisions published by the SPC (Provisions on Several Issues Concerning the Trial of Cases by the International Courts) the Internet Courts focus on disputes involving: the online sale of goods and services, lending, copyright and neighboring rights ownership and infringement, domains, infringement on personal rights or property rights via the Internet, product liability claims, and Internet public interest litigation brought by prosecutors. The litigation process is conducted solely online, including the service of legal documents, the presentation of evidence, and the actual trial itself which, to comply with principles of trial in person and direct speech principle, rely on the online video system.

A major advantage of such courts is that it addresses the increasing workload and burden on the judiciary. The average duration of these online trials in Hangzhou in 2017/18 was 28 minutes, and the average processing period from filing to trial and conclusion was 38 days. However, the Hangzhou Internet Court has also been criticized for its lack of impartiality, since it is technically supported by Alibaba and its subsidiaries which are related to most disputes in the region. Other courts have not faced such criticism.

Blockchain mechanisms as a new method to authenticate evidence

Blockchain-related innovations are increasingly becoming relevant to legally authenticate evidence. Since a blockchain generates immutable, time-stamped data which can then be used as an auditable trail, it seems likely that the legal sphere will get heavily influenced in the near future by the security of the blockchain (which is set before any transactions or documentation takes place). China is ahead of the game in this respect. At the 2019 Forum on China Intellectual Property Protection, the president of the Beijing Internet Court (established in September 2018, and has since processed 14,904 cases) reportedly said that the court employs technologies such as artificial intelligence (AI) and blockchain to render judgement.

Since most of the evidence in the cases heard by Internet Courts is electronic data and is stored on the Internet, the SPC outlined in its Provisions that the Internet court can rely on evidence provided by the parties that can be authenticated by electronic signatures, time stamps, hash value verification, blockchain and other tamper-proof verification methods. Before the implementation of the Provisions, the Internet Court in Hangzhou for the first time in China admitted evidence that was authenticated by blockchain technology in an online copyright infringement case, which confirmed that data uploaded to a blockchain platform reflected its source, generation and path of delivery, and were therefore reliable evidence. Since, China’s Supreme Court ruled that evidence authenticated with blockchain technology is binding in legal disputes.

Internet courts rely on blockchain to deal with a range of cases such as disputes over liability for Internet tort and other types of Internet-related disputes in the areas of intellectual property rights and administrative litigation. An Internet judge in China’s Hangzhou province relied on blockchain to defend Intellectual Property rights because such technology is paramount to safeguard authors’ ownership over their work. In August 2018, the same court handed down a judgment on China’s first case of unfair competitionin big data products. As Wang Jiangqiao, a judge at the Internet Court, sums up “since blockchain guarantees that data can not be tampered, all digital footprints stored in the judicial blockchain system have legal effect.”

Can this model be exported to Western jurisdictions?

With the increasing reliance on internet for both private and business matters, the number of disputes is likely to increase in the near future. Internet Courts like the ones in China could provide a model to improve efficiency, significantly reduce costs and address infringements that may have been too cost-effective to pursue otherwise, while removing at the same time human interference as much as possible, which will make the information stored on blockchain more credible as noted by Qin Pengfei, a paralegal with Shanghai Dabang Law firm. Already the US State of Vermont has passed legislation to allow courts to use data on blockchain as evidence. In 2018, the U.K. Law Commission has announced its plans to review legal frameworks involving smart contracts so that it doesn’t lag behind as blockchain legal applications develop. However, no other country has yet actively followed suit with China’s model of Internet Courts. One reason copyright lawyer Liu Hongze argues is the fact that the acceptance of evidence stored on the blockchain may have little impact now on non-internet-related civil or criminal lawsuits. Indeed, blockchain data being legal evidence is relatively new and courts’ acceptance of it will depend on individual courts and situations. Nevertheless, what is certain is that China’s Internet Courts have a strong potential to launch the reliance of blockchain in the legal sphere, and western countries should watch such developments carefully not to fall behind. The recent backlash on Facebook with the judgment of the Bundeskartellamt demonstrates the need to respond to an ever increasing backlog of internet related disputes which interwind privacy, competition, data, cybersecurity and technology. Specialized courts such as Internet Courts might well be the answer.

Riga Graduate School of Law (RGSL) calls for applications for the following academic vacancy:

Docent in Private Law with additional specialization in Private International Law or International Commercial Law or Comparative Contract Law, for election term of 6 years.

Requirements for applicants:

• Compliance with the requirements of the Regulations on Academic and Administrative Personnel Positions of Riga Graduate School of Law;
• At least 3 years of academic work experience in English language;
• Documented experience in research and scientific publications during the last 6 years;
• Participation in scientific conferences and international projects during the last 6 years.

Main tasks:

• Provision of study work in Bachelor and Master level programmes;
• Involvement in research and at least five publications in recognized peer-reviewed academic outlets during the election term;
• Participation in RGSL governance bodies;
• Engagement in RGSL community service.

Monthly salary up to EUR 2.200,00 for full-time work-load.

Applicants should submit the following documents:

• Application letter;
• Professional curriculum vitae (in Europass format) in Latvian and English;
• Copies of documents certifying the relevant education;
• List of publications and/or significant achievements in the relevant field, from the last 6 years.

The Regulations on Academic and Administrative Personnel Positions of Riga Graduate School of Law can be found here.

Deadline for application is 17  June 2019. Applications should be sent by postal mail to Riga Graduate School of Law, Str?lnieku 4k-2, R?ga, LV 1010, Latvia or by email to vacancies@rgsl.edu.lv (Subject heading: “Academic personnel vacancies”).

For additional inquiries please contact Ms. Ieva Racenaja, Director of Riga Graduate School of Law, at ieva.racenaja@rgsl.edu.lv.

Riga Graduate School of Law informs that personal data included in the application shall be processed in order to conduct the selection of candidates (on the grounds of legitimate interests). The controller of such personal data processing is Riga Graduate School of Law.

The Paris Court of Appeal will host a symposium on “L’attractivité de la place de Paris: Les chambres commerciales internationales: fonctionnement et trajectoire” (The attractiveness of Paris’s jurisdiction. The international Commercial Chambers: functioning and future trends) on June 14, 2019 (2pm-6pm).  

Readers of this blog will remember that on February 7, 2018, the International Commercial Chamberof the Paris Court of Appeal was inaugurated.

The establishment of this specialized appellate international Commercial Chamberfollows the creation of the first International Chamber of the Paris Commercial Court of First Instance (“Chambre de Droit International du Tribunal de Commerce”) and fits well in the current developments of the international business courts all over Europe (and out of Europe too).

The international chambers of the Paris Commercial Court and Court of Appeal (hereafter referred to as the “International Commercial Courts of Paris” or the “ICCP”) are the latest examples of the modernization of French Legal System with respect to dispute resolution in commercial matters.

In the context of Brexit, the creation of the ICCP aims at enhancing the attractiveness and international competitiveness of French courts, combining flexibility, high quality and low costs.

The Paris Court of Appeal and the Faculty of Law of the Université de Paris Est Créteil (UPEC) will organize a symposium on June 14, 2019 at the Paris Court of Appeal.  The conference will discuss the attractiveness of the Paris courts taking into account its latest evolution: the creation of the International Commercial Courts of Paris, with a focus on how these courts work in practice.

After the opening by Chantal Arens, first president of the Paris Court of Appeal and Gilles Cuniberti, professor of law at the University of Luxembourg, the event will be divided into three parts:

1. Origins and creation of the ICCP, with a comparative approach to other commercial courts in Europe.
2. Analysis of the mechanisms allowing access to the ICCP, with practical insight into the drafting and interpretation of choice of court clauses, the types of disputes that may fall within the scope of the Chambers and the relationships with arbitration.
3. Analysis of the procedural rules before the Chambers, with a specific focus on how the Chambers work in practice, the use of the English language, the available tools for the parties, and the current rules of practice established or being discussed in the Chambers.

The conference, led by the judges sitting in the Paris international chambers, will provide a valuable feedback of 18 months of existence of the International Commercial Chamber of the Paris Court of Appeal. The future trends of the French ICCP, and their interaction with other courts in Europe will also be debated.

Emmanuel Gaillard, Visiting Professor at Yale Law School and Harvard Law School, will give the closing speech.

A detailed description of the afternoon’s program can be found on the Paris Court of Appeal’s website (in French only/English version to be published soon).

You can register by writing an email to: colloque.ca-paris@justice.fr

Links to previous relevant posts:

http://conflictoflaws.net/2011/paris-commercial-court-creates-international-division/

http://conflictoflaws.net/2018/doors-open-for-first-hearing-of-international-chamber-at-paris-court-of-appeal/

http://conflictoflaws.net/2018/the-domino-effect-of-international-commercial-courts-in-europe-whos-next/

On the occasion of the XVIII National Meeting of Private International Law Professors, the Private International and Comparative Law Master’s Degree Program of the Central University of Venezuela will launch its new website and the first issue of its yearbook in Caracas. The event, organized jointly with the “Tatiana de Maekelt” Institute of Law, will gather professors of Private International Law from different Venezuelan law schools to discuss current topics of interest, including new methods of teaching and evaluation in this subject.

The Yearbook will allow professors, graduates, current students and visiting professors to share their views on the classic and current topics of Private International and Comparative Law. Its launching represents the desire to have a specialized publication on these matters within the Venezuelan forum.

The first issue of the Yearbook contains the first thesis submitted for a Master’s Degree on the institution of renvoi, four papers spanning International Procedural Law, electronic means of payment, cross-border know-how contracts and International Family Law, sixteen of the papers presented during the Commemoration of the Twentieth Anniversary of the Venezuelan Private International Law Act’s entry into force, held on February 6, 2019 and a collaboration by Professor Esplugues Mota, Professor of Private International Law at the University of Valencia (Spain), where he recalls his time as a visiting professor in 2000, 2003 and 2008.

The Yearbook’s full table of contents is as follows:

Eugenio Hernández-Bretón
Presentación (Presentation)

I. Trabajos de Tesis (Thesis)

Caroline Bergeron

El reenvío en el Derecho Internacional Privado contemporáneo (The renvoi in Contemporary Private International Law)

II. Trabajos monográficos (Papers)

José Antonio Briceño Laborí

El principio de favor recognitionis como criterio de interpretación de los requisitos de eficacia de las sentencias extranjeras. Perspectivas desde el Derecho internacional privado venezolano (The Principle of favor recognitionis as an interpretation criterion of the effectiveness requirements of foreign judgements. Perspectives from Venezuelan Private International Law)

Andrea Cruz Suárez y Pedro Ramírez Braiz

El Dash como medio electrónico de pago. Aspectos contractuales internos e internacionales (Dash as an electronic means of payment. Internal and international contractual aspects)

Luis Carlos Mota Arocha

Derecho aplicable a contratos internacionales de know how de acuerdo a la Ley de Derecho internacional privado (Law applicable to international know-how contracts according to the Private International Law Act)

Eugenio Hernández-Bretón

La fractura de la familia venezolana ante el Derecho internacional privado (The fracture of the Venezuelan family before Private International Law)

III. Events. Commemoration of the twentieth anniversary of the Private International Law Act’s entry into force

Eugenio Hernández-Bretón

La Ley de Derecho Internacional Privado y la universidad venezolana. Palabras de apertura (The Private International Law Act and the Venezuelan university. Opening words).

Claudia Madrid Martínez

Reflexiones en torno al sistema de fuentes del Derecho internacional privado venezolano (Reflections on the system of sources of the Venezuelan Private International Law Act).

Victor Gregorio Garrido Ramos

Cuestiones terminológicas en el artículo 1 de la Ley de Derecho Internacional Privado venezolana (Terminological issues in Article 1 of the Venezuelan Private International Law Act).

Anna María Tambasco B.

Situaciones jurídicas válidamente creadas (Vested Rights)

Rubén Valdivieso

Orden Público (Ordre Public)

Mirian Rodríguez Reyes de Mezoa

Los derechos reales en la Ley de Derecho Internacional Privado venezolana. 20 años después (In rem rights under the Venezuelan Private International Law Act. 20 years later)

Guillermo Palao Moreno

Criterios de conexión para la determinación de la ley aplicable en materia de familia y sucesiones en los sistemas de Derecho internacional privado venezolano y europeo (Connection criteria for the determination of the applicable law to family and successions matters under the Venezuelan and European Private International Law systems)

Froila Eugenia Pimentel C.

La indemnización de los daños punitivos en Venezuela en aplicación del artículo 9 de la Ley de Derecho Internacional Privado (The compensation of punitive damages in application of the Article 9 of the Private International Law Act)

Rosalvi Villegas

El principio de proximidad en la Ley de Derecho de Internacional Privado venezolana (The principle of proximity in the Venezuelan Private International Law Act)

Gerardo Feliche Lione Pedra

La cláusula de sumisión a la jurisdicción en los contratos de adhesión y las soluciones prácticas aportadas por la Ley de Derecho Internacional Privado (The choice of forum clause in adhesion contracts and the practical solutions provided by the Private International Law Act).

Andrea Carolina Olivares Hernández

La sumisión contemplada en el artículo 46 de la Ley de Derecho Internacional Privado (Submission to Venezuelan courts under Article 46 of the Private International Law Act).

Andrés Carrasquero Stolk

Derogatoria de la jurisdicción de los tribunales venezolanos en contratos de trabajo internacionales (Derogation of the Venezuelan jurisdiction in international labour contracts).

Luis David Briceño Pérez

Las acciones por intereses o derechos colectivos o difusos no son class actions (Actions for collective or diffuse interests or rights are not class actions)

María Alejandra Ruíz

Ejecución de las medidas cautelares de conformidad con la Ley de Derecho Internacional Privado venezolana (Enforcement of precautionary measures under the Venezuelan Private International Law Act)

José Antonio Briceño Laborí

Efectos de las sentencias extranjeras y procedimiento de exequátur (Effects of foreign judgments and exequatur procedure).

Eugenio Hernández-Bretón

La “historia secreta” de la Ley de Derecho internacional privado. Palabras de clausura (The “secret history” of the Private International Law Act. Closing remarks).

IV. Visiting Professors

Carlos Esplugues Mota

La Maestría de Derecho internacional privado de la Universidad Central de Venezuela: tres participaciones y un agradecimiento infinito (The Private International Law Master’s at the Central University of Venezuela: three visits and infinite gratitude)

The event will take place on June 10th.

Upon release the Yearbook will be available at: http://www.mdipc-ucv.com

Hans van Loon, former Secretary General of the Hague Conference on Private International Law (HCCH), has just published an article entitled “Towards a global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters” in the Collection of Papers of the Faculty of Law, Niš, No 82, Year LVIII, 2019 (see pp. 15-36). The paper develops a lecture held at the Law Faculty.

The author has provided the following summary of his article (emphasis has been added):

The article traces the history of the “Judgments Project”, and provides background on the current negotiations at the Hague Conference on Private International Law, which have resulted in the May 2018 draft Convention, and, it is hoped, will very soon culminate in the adoption of a Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. To that end, a Diplomatic Session has been convoked at the Peace Palace in The Hague (the Netherlands) from 18 June to 2 July 2019.

The article starts by recalling the interaction between, on the one hand, the 1971 Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters and its Supplementary Protocol, and, on the other, the 1968 Brussels Jurisdiction and Enforcement Convention (now: Brussels I recast). The 1968 Brussels Convention drew inspiration both from the 1971 Hague Convention and its Protocol (excluding exorbitant grounds of jurisdiction) and the 1965 Hague Choice of Court Convention. Yet, it went beyond those instruments by (1) providing uniform rules on original jurisdiction; (2) enabling recognition and enforcement generally without review of the original grounds of jurisdiction; and (3) benefitting from a mechanism of uniform interpretation by the Court of Justice of the European Union (CJEU). The success of the Brussels Convention, however, contributed to a lack of interest in the 1971 Convention, which never came off the ground. Other reasons were the 1971 Convention’s alleged discriminatory effect vis-à-vis companies and persons not domiciled in Europe and the issue of bilateralisation – the 1971 Convention required for its operation a supplementary agreement between any two Contracting States, an issue that has come up again in the current negotiations.

In 1992, having considered the possibility of bilateral negotiations with EEC Member States, the USA made a proposal to the Hague Conference for a “mixed” Convention. The idea was that this instrument would provide a list of permitted grounds of jurisdiction and a list of prohibited grounds of jurisdiction, while leaving a “grey area” that would allow Contracting States to establish additional grounds of original jurisdiction and provisions on recognition and enforcement under national law. With the “mixed” Convention idea as a start, negotiations took place between 1996-2001.They ultimately led, via a preliminary draft Convention, to an “Interim text” adopted at a diplomatic conference in 2001. The dynamics of those negotiations were very much determined by the transatlantic dimension, with different, and as it turned out, incompatible strategic objectives (the US being interested in securing recognition and enforcement of its judgments in Europe, and non-discrimination regarding direct grounds of jurisdiction for US-based companies and persons, and Europe, in urging the US to reduce the reach of jurisdiction of its courts regarding Europe-based companies and persons). The resulting text left many issues unresolved, including: (1) (commercial) activity as a ground of jurisdiction (2) the use of the internet, including e-commerce, (3) the protection of weaker parties, in particular consumers and employees, (4) intellectual property (IP), (5) the issue of bilateralisation and (6) the relationship with the Brussels/Lugano texts. It was therefore decided to take a step back, and focus first, separately as with the 1965 Convention, on choice of court agreements.

The article then discusses how the 2005 Choice of Court Convention was able to avoid some of these six major issues, and how it dealt with the remaining ones. Importantly, the Choice of Court Convention found a solution for its relationship to the Brussels/Lugano texts (it also had a substantial impact on the Brussels I recast). In fact, the 2005 Convention provides an important source of inspiration for the 2018 draft, which can be seen, for example, in the definition of its substantive scope, and its provisions on recognition and enforcement, including of judgments awarding punitive damages. However, the coming negotiations are still faced with several of the aforementioned major issues, and some new ones.

Meanwhile, however, the dynamics of the negotiations have changed. Whereas in the past the transatlantic dimension was predominant, the current negotiations have taken on a much more global character, China and other (formerly) “emerging” States having become more actively involved. In some respects, this adds to the difficulty of reaching agreement (for instance regarding IP). On the other hand, the current negotiations are limited to recognition and enforcement only. Yet, indirectly, the difference in approach to judicial jurisdiction between the US – where this is a constitutional matter, with a focus on the relationship between the defendant and the forum (the article discusses recent developments in the case law of the US Supreme Court on international jurisdiction) – and most other States – where the focus is on the relationship between the subject matter of the litigation and the forum – has reappeared in the current negotiations.

The article discusses how this is reflected in the draft, in particular in art. 5, in its provisions on contracts, torts, the internet, intellectual property and consumers and employees.

It is noted, with some regret, that as a result, the torts jurisdiction provision is very limited, indeed even narrower than its predecessor in the 2001 Interim text. It is hoped that the final text will make room for recognition and enforcement of judgments emanating from the court of the place where the injury arose, at least if the defendant could reasonably foresee that its conduct would give rise to the harm in that State. This would be important, for example, concerning civil judgments resulting from cross-border environmental litigation. Regarding IP, the May 2018 draft does not take a firm position, and it even leaves open the possibility of a complete exclusion. That would be a step back in comparison with the Choice of Court Convention, so hopefully it will be possible to avoid such a far-reaching result.  

Finally, a number of other, including novel, features of the draft are highlighted. Some concern is expressed about the addition of “situations involving infringements of security or sovereignty of [the requested] State” as a ground of refusal of recognition and enforcement (art. 7 (1) (c)), because that may invite a review of the merits of the judgment, which is in principle, rightly, prohibited (art. 4(2)). Interesting novelties include a provision which gives the requested court a certain flexibility in dealing with judgments that are subject to review in the State of origin (art. 4 (4)); the exclusion of forum non conveniens at the stage of recognition and enforcement (art. 14 (2)), and a tentative provision dealing with “common courts”, such as the future Unified Patent Court art. 4 (5).

The article concludes by expressing the hope that the Convention will avoid the complexity of its 1971 predecessor, notably by avoiding its bilateralisation system, or at least by drafting it in such a manner that it does not make the ratification unattractive or its application unduly difficult. In any event, the Convention will fulfill a long-felt need for a global multilateral framework for the recognition and enforcement of civil and commercial judgments, and thereby contribute to the global transnational legal order.