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The 36th Annual Survey of Choice of Law in the American Courts (2022) has been posted to SSRN.

The cases discussed in this year’s survey cover such topics as: (1) choice of law, (2) party autonomy, (3) extraterritoriality, (4) international human rights, (5) foreign sovereign immunity, (6) foreign official immunity, (7) adjudicative jurisdiction, and (8) the recognition and enforcement of foreign judgments. Happy reading!

John Coyle (University of North Carolina School of Law)
William Dodge (University of California, Davis School of Law)
Aaron Simowitz (Willamette University College of Law)

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 19th annual conference, taking place from Wednesday 11 – Thursday 12 October 2023 in Amsterdam (the Netherlands). Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference: “The Perpetual Renewal of European Insolvency Law”.

The conference is intended to focus on, inter alia, the following overall topics:

• Public and social policy and the impact on corporate rescue, and vice versa
• Cross-border issues (recognition, coordination)
• Asset tracing (including crypto assets)
• Competition for cases as a driving force for legislative reform
• International organisations update
• Sustainability and corporate restructuring
• Environmental claims in insolvency
• Transaction avoidance eclipsed in preventive restructuring procedures
• Pre-packs rehabilitated
• Asset partitioning: prudent entrepreneurship or manifestation of opportunism
• Modern issues surrounding directors’ duties to file for insolvency
• The impact and benefit (or not) of creditors’ committees
• EU Preventive Restructuring Directive

The IEAF board also invites submissions on other topics that fall with in the scope of the overall theme of the conference.

Conference methodology

In line with the practice established in our past academic conferences, the intention for the autumn conference is to have research papers that challenge existing approaches, stimulate debate and ask, and attempt to answer, comparative and interdisciplinary questions within the above broadly defined theme. Accordingly, proposals are invited that do more than just outline a topic of interest in respect of any given jurisdiction, but seek to understand, analyse and critique the fundamentals of insolvency and restructuring systems in ways that are relevant across jurisdictions and across fields of academic inquiry. Contributions must be in English.

Presenting at the IEAF conference

Expressions of interest in delivering a paper should be sent by email on or before 1 March 2023 to the IEAF’s Deputy Chair, Dr. Jennifer Gant.

Authors of papers selected for presentation will benefit from a waiver of the participation fee for the academic conference, however, they will be responsible for their own travel and accommodation costs. A limited number of travel grants are available for junior scholars invited to present.

For further information, see: www.insol-europe.org/academic-forum-events

I am mopping up draft posts so forgive me if some of them are a touch late compared to my original report on them on Twitter.  Asian Offshore Services v Self Elevating Platform ECLI:NL:RBROT:2023:34 of the Court of First Instance at Rotterdam is an interesting illustration of the positive conflicts rule of Article 4 juncto Article 63 Brussels Ia.

Article 4’s domicile rule is supplemented by Article 63’s definition of domicile for legal persons:

Article 63:

1.   For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its: statutory seat [Dutch: statutaire zetel]; central administration; [Dutch: hoofdbestuur] or principal place of business [Dutch: hoofdvestiging].

2.   For the purposes of Ireland, Cyprus and the United Kingdom, ‘statutory seat’ means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.

3.   In order to determine whether a trust is domiciled in the Member State whose courts are seised of the matter, the court shall apply its rules of private international law.

A63 may lead to so-called positive conflicts: more than one court considering itself to be the domicile of the defendant. This is interesting nota bene in the case of business and human rights cases where claimants may want to forum shop and sue in the EU, such as in Anglo American.

In the case at issue, the court first of all [4.2] dismisses the parties’ awkward consensus [4.1] that neither Brussels Ia, nor any international Treaty determines jurisdiction. Clearly Brussels Ia does apply (claimant is domiciled at Kuala Lumpur; defendant registered in Curaçao) and the Court applies it proprio motu.

The court then points to the statutory seat in Curaçao, and [4.9] notes SEP’s lack of contestation that Sliedrecht is its ‘fixed place of business’ as testified by an extract from the local commercial register. Now I a may be a stickler for language here but a fixed place of business is not the same as the principal place of business (which implies main business activities). It is the latter which the Regulation requires.

Geert.

EU Private International Law, 3rd ed. 2021, 2.131 ff.

First instance Rotterdam
Held Netherlands have A4 Brussels Ia 'domicile' jurisdiction because on the facts, 'principal place of business' of Curaçao incorporated corporation is in The Netherlands

ASIAN OFFSHORE SERVICES v SELF ELEVATING PLATFORM N.V.https://t.co/Luf7qg1tnR

— Geert Van Calster (@GAVClaw) January 17, 2023

UniCredit Bank Austria
Rapprochement des législations
Le droit du consommateur à bénéficier, en cas de remboursement anticipé de son crédit immobilier, d’une réduction du coût total du crédit n’inclut pas les frais indépendants de la durée du contrat

Summary provided by the author, Asif Efrat

In a globalized world, legal cases that come before domestic courts are often transnational, that is, they involve foreign elements. For example, the case before the court may revolve around events, activities, or situations that occurred in a foreign country, or the case may involve foreign parties or the application of foreign law. Such cases typically present an overlap between the legal authorities of two countries. To handle a transnational case cooperatively, one legal system must cede its authority over the case, in full or in part, to a foreign legal system. This effectively means that a local citizen would be subjected to the laws or jurisdiction of a foreign legal authority, and that raises a host of questions and concerns: Does the foreign legal system abide by the rule of law? Does it guarantee human rights? Will the foreign court grant our citizen the due process and fair treatment they would have enjoyed at home?

The newly published book Intolerant Justice: Conflict and Cooperation on Transnational Litigation (Oxford University Press) argues that the human disposition of ethnocentrism – the tendency to divide the world into superior in-groups and inferior out-groups – would often lead policymakers to answer these questions negatively. The ethnocentric, who fears anything foreign, will often view the foreign legal system as falling below the home country’s standards and, therefore, as unfair or even dangerous. Understandably, such a view would make cooperation more difficult to establish. It would be harder to relinquish the jurisdiction over legal cases to a foreign system if the latter is seen as unfair; extraditing an alleged offender to stand trial abroad would seem unjust; and the local enforcement of foreign judgements could be perceived as an affront to legal sovereignty that contravenes fundamental norms.

This book examines who expresses such ethnocentric views and how they frame them; and, on the other hand, who seeks to dispel these concerns and establish cooperation between legal systems. In other words, the domestic political debate over transnational litigation stands at the center of this book.

In this debate, the book shows, some domestic actors are particularly likely to oppose cooperation on ethnocentric grounds: the government’s political opponents may portray the government’s willingness to cooperate as a dangerous surrender to a foreign legal system, which undermines local values and threatens the home country’s citizens; NGOs concerned for human rights might fear the human-rights consequences of cooperation with a foreign legal system; and lawyers, steeped in local rules and procedures, may take pride in their legal system and reject foreign rules and procedures as wrong or inferior.

By contrast, actors within the state apparatus typically view cooperation on litigation more favorably. Jurists who belong to the state – such as judges, prosecutors, and the justice-ministry bureaucracy – may support cooperation out of a concern for reciprocity or based on the principled belief that offenders should not escape responsibility by crossing national borders. The ministry of foreign affairs and the ministry of defense may similarly support cooperation on litigation that could yield diplomatic or security benefits. These proponents of cooperation typically argue that legal differences among countries should be respected or that adequate safeguards can guarantee fair treatment by foreign legal authorities. In some cases, these arguments prevail and cooperation on litigation is established; in other cases, the ethnocentric sentiments end up weakening or scuttling the cooperative efforts.

These political controversies are examined through a set of rich case studies, including the Congressional debate over the criminal prosecution of U.S. troops in NATO countries, the British concerns over extradition to the United States and EU members, the dilemma of extradition to China, the wariness toward U.S. civil judgments in European courts, the U.S.-British divide over libel cases, and the concern about returning abducted children to countries with a questionable human rights record.

Overall, this book offers a useful analytical framework for thinking about the tensions arising from transnational litigation and conflict of laws. This book draws our attention to the political arena, where litigation-related statutes and treaties are crafted, oftentimes against fierce resistance. Yet the insights offered here may also be used for analyzing judicial attitudes and decisions in transnational cases. This book will be of interest to anyone seeking to understand the challenges of establishing cooperation among legal systems.

Matthias Lehmann (University of Vienna) and Gilles Cuniberti (University of Luxembourg) are considering establishing an EAPIL Working Group on the Law Governing Digital Assets.

The first project of the Working Group would be to write a position paper to be filed for the purpose of the online consultation of the Draft UNIDROIT Principles and Commentary on Digital Assets and Private Law. The consultation ends on 20 February 2023.

The EAPIL position paper would focus on the private international aspects of the UNIDROIT proposal.

Any EAPIL Member interested in joining the Working Group should contact either Matthias Lehmann (matthias.lehmann@univie.ac.at) or Gilles Cuniberti (gilles.cuniberti@uni.lu) as soon as possible.

The New Age of Dispute Resolution: Digitization & Evolving Norms

Time: 18:30 – 20:30 pm

Venue: Bracewell LLP New York

When: 13 February Monday 2023

Organized with New York International Arbitration Centre, New York State Bar Association, and American Society of International Law

The event will be held in relation to UNCITRAL’s project on the Stocktaking of Dispute Resolution in the Digital Economy. As part of its stocktaking activities to seek inputs from different parts of the world, the Secretariat is organising this discussion with practitioners and academics in New York on two respective issues: (1) the use of technology in arbitration; and (2) online mediation. Presenters: (Panel 1) Christina Hioureas, Emma Lindsay, Hagit Muriel Elul, Martin Guys and Sherman W. Kahn; (Panel 2) Jackie Nolan-Haley and Sherman W. Kahn.

Après plus de vingt ans, le bilan de la législation de l’Union Européenne sur la protection des dessins ou modèles est positif, même s’il apparaît nécessaire de remédier à certaines lacunes pour que la protection soit « accessible, pérenne, efficace et cohérente ».

Sur la boutique Dalloz Code de la propriété intellectuelle 2023, Annoté et commenté Voir la boutique Dalloz

en lire plus

This post was written by Jachin Van Doninck (SEPIL coordinator, Vrije Universiteit Brussels) and Jerca Kramberger Škerl (University of Ljubljana)

It is fair to say that the attention for sustainability and sustainable development has seen a steady increase. The past decade, the United Nations has set out the Sustainable Development Goals (SDGs), based on the urgent need to shift the world onto a sustainable and resilient path. These SDGs are finding their way into policy making on every level and are also inspiring research in the legal field.[i] Recent scholarship has raised awareness for the potential of private international law to strengthen the SDGs’ plan of action (e.g. the seminal work edited by R. MICHAELS, V. RUIZ ABOU-NIGM and H. VAN LOON, 2021).[ii] Private International Law is also and increasingly being classified as a governance tool[iii] of a political nature.[iv]

The SEPIL network, funded by the EUTOPIA UNIVERSITY alliance explores the sustainability of European private international law as a system, i.e. in itself. Thus, the project’s intention was to move away from existing research on how private international law can be instrumentalized for the purpose of attaining the greater good (e.g. the Shell cases in The Netherlands and in the UK, reported on the conflictoflaws blog), and to question to what extent sustainability can (or must) exert a system-building function within this area of the law. Taking into account that PIL acts as potent tool for achieving the SDGs, the research group delved into the question of the sustainability of this tool in itself, thus ‘operating’ mainly within the SDG 16 (Peace, Justice and Strong Institutions).

SEPIL organised two closed seminars in Ljubljana (29-30 September 2022) and Brussels (24-25 October 2022). The goals of the meetings were threefold:

• to catch up with the state of the art of the research on sustainability and law, both regarding the individual SDGs and the sustainability of law;
• to try to delimitate the question(s) of PIL as a tool to achieve sustainable development and sustainability as a tool to enhance PIL;
• to explore the research potential of the aforementioned SEPIL idea.

The Ljubljana edition was kicked off by Anna Maria Wilmot (VUB), who presented an outline of her current PhD research on the interplay between sustainability and the Belgian system of civil adjudication. She explained how any attempt at a systemic appraisal of the sustainability of European private international law would have to begin with a clear understanding of sustainability as a layered concept. Jachin Van Doninck (also at VUB) connected Anna Maria’s research with the SEPIL project by elaborating on how legal scholarship and the courts are heavily involved in instrumentalizing private international law for the purpose of attaining sustainability and sustainable development. He pointed out that a fundamental analysis of the sustainability of private international law itself is lacking, which is precisely where SEPIL’s research focus would lie. University of Ljubljana’s Jerca Kramberger Škerl continued with an overview of the UN Sustainable Development Goals and a short presentation on how private international law can, first, serve as a tool to attain those goals, and second, adapt itself to respect those goals. In the afternoon, these SDGs were made concrete through topical examples. A first one was offered by University of Gothenburg’s Anna Wallerman Ghavanini through her presentation on judicial protection for victims of discrimination in EU private international law, explaining that effective access to justice (SDG 16) for victims of discrimination (SDG 5) reveals shortcomings in the current private international law framework. Second, University of Ljubljana’s Filip Dougan focused on the interplay between the UN Sustainable Development Goal 5 (Gender Equality) and the EU private international law. Erik Björling, also from the University of Gothenburg, then challenged our thinking with the question “Can retrospective civil procedure be prospective?”. Using notions of procedural legal theory (naming, blaming, claiming, rational discourse, reduction of complexity), he touched on several core issues of private international law such as jurisdiction, choice of law and enforcement. The stage had been set for the Brussels edition.

Part of the Brussels edition was dedicated to discussing selected reading materials, featuring Schultz’ “Carving up the internet”, EJIL 2008, 799; Salminen and Rajavuori’s “Private International Law, Global Value Chains and the externalities of transnational production: towards alignment?”, Transnational Legal Theory 2021, 230; Meeusen’s “Interaction between EU Regulations and Member State Codification of Private International Law: from patchwork to network”, and Weller and Schulz’s “Political private international law. How European are Overriding Mandatory Provisions and Public Policy Exceptions?”.[v] Directly or indirectly, these materials nourished our thinking on PIL from a policy perspective, e.g. by questioning the Savignian outlook of European private international law or the interplay between European and national initiatives in this field of law. Inspired by Rizcallah’s work on mutual trust,[vi] Jachin Van Doninck closed the first day of the Brussels edition with a presentation on “SEPIL and fundamental legal values: a ‘mutual trust’ perspective”, reflecting on sustainability as a governance principle in the field of PIL.

The next day, SEPIL had the pleasure to welcome University of Antwerp’s Thalia Kruger as guest speaker. Her involvement in and contribution to the R. Michaels, V. Ruiz Abou-Nigm and H. van Loon volume provided the setting for an exchange on the criticism directed against the SDGs for their alleged insistence on growth and the pitfalls of a European-centred approach to PIL.  A guided tour to the Belgian Court of Cassation ignited queries on how the Dutch and French speaking chambers of the Court try to prevent discrepancies in their case law and made us come full circle: how can private international, and any legal framework with ‘systemic’ aspirations for that matter, become sustainable?

All in all, this research community has successfully identified several crucial issues concerning the sustainability of European PIL as well as established a research platform for the continued pursuit for more sustainable legal solutions. As is often the case, the questions brought forward outnumber the answers at this stage: How does PIL in itself achieve sustainability (SDG 16), and how can it contribute as a tool for promoting other SDGs? How is national autonomy to be balanced with harmonization in the regulation of PIL? What role for mutual trust? And how can digitalization contribute to sustainability? Future research should address these questions systemically as well as bottom-up, exploring the sustainability of PIL in relation to various SDGs. With sustainability taking an ever more central position in legal research and practice alike, we foresee that the field will continue to develop, and we look forward to contributing to this development.

 

SEPIL is short for Sustainable European Private International Law. With funding from the EUTOPIA UNIVERSITY alliance, it brings together six researchers:  Jachin VAN DONINCK and Anna Maria WILMOT (Vrije Universiteit Brussel), Jerca KRAMBERGER ŠKERL and Filip DOUGAN (University of Ljubljana); and Anna WALLERMAN GHAVANINI and Erik BJÖRLING (University of Gothenburg).

[i] V. MAUERHOFER, D. RUPO AND L. TARQUINIO (eds.), Sustainability and law: general and specific aspects, Cham, Springer, 2020, 773 p.

[ii] R. MICHAELS, V. RUIZ ABOU-NIGM and H. VAN LOON, The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law, Cambridge, Intersentia, 2021, 574 p., (open access)

[iii] R. MICHAELS, V. RUIZ ABOU-NIGM and H. VAN LOON, “The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law” in R. MICHAELS, V. RUIZ ABOU-NIGM and H. VAN LOON, The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law, Cambridge, Intersentia, 2021, 13.

[iv] M.-P. WELLER and A. SCHULZ, “Political private international law. How European are Overriding Mandatory Provisions and Public Policy Exceptions?” in J. VON HEIN E.-M. KIENINGER and G. RÜHL (ed.), How European is European Private International Law? Sources, Court Practice, Academic Discourse, Antwerp, Intersentia, 2019, (285) 286.

[v] The latter two were published in J. VON HEIN E.-M. KIENINGER and G. RÜHL (ed.), How European is European Private International Law? Sources, Court Practice, Academic Discourse, Antwerp, Intersentia, 2019.

[vi] C. RIZCALLAH, Le principe de confiance mutuelle en droit de l’Union européenne. Un principe essential à l’épreuve d’une crise des valeurs, Bruxelles, Bruylant, 2020, 666 p., reported here; for a different perspective, based on trust management, see M. WELLER, “Mutual Trust”: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?” in Collected Courses of The Hague Academy of International Law – Recueil des cours, vol. 423, 2022, reported on the conflictoflaws blog.

A conference on “The Law of Treaties as Applied to Private International Law” will take place at the Catholic University of Milan on 5 and 6 May 2023, under the auspices of the Italian Society of International Law and EU Law (SIDI) and the European Association of Private International Law (EAPIL).

The event aims to discuss the impact of the rules of treaty law on the formation, interpretation and implementation of international conventions laying down rules of private international law, and to assess whether, and in which way, the specific object and features of private international law have a bearing on the operation of the law of treaties in this area.

Speakers and chairs include Paul Beaumont (University of Stirling), Catherine Brölmann (University of Amsterdam), Sergio Carbone (University of Genova, Emeritus), Luigi Crema (University of Milan), Zeno Crespi Reghizzi (University of Milan), Pedro De Miguel Asensio (Complutense University of Madrid), Malgosia Fitzmaurice (Queen Mary University of London), Burkhard Hess (Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law), Patrick Kinsch (University of Luxembourg), Catherine Kessedjian (University Paris II Panthéon-Assas, Emerita), Jan Klabbers (University of Helsinki, TBC), Antonio Leandro (University of Bari), Alex Mills (University College London), Etienne Pataut (University Paris I – Panthéon-Sorbonne), Andrea Schulz (German Federal Ministry of Justice), Jean-Marc Thouvenin (University of Paris Nanterre; Secretary-General of The Hague Academy of International Law), Chiara Tuo (University of Genova), Hans van Loon (former Secretary-General of the Hague Conference on Private International Law), and Jan Wouters (KU Leuven).

A roundtable on “The role of IGOs in the elaboration, implementation and coordination of private international law treaties”, chaired by Fausto Pocar (University of Milan, Emeritus), will feature interventions by Luca Castellani (Secretary of Working Group IV (Electronic Commerce) – Uncitral), Nicolas Nord (Secretary-General of the International Commission on Civil Status), Andreas Stein (Head of Unit (Civil Justice) at the European Commission Directorate-General for Justice and Consumers – Civil and commercial justice) and Ignacio Tirado (Secretary-General of the International Institute for the Unification of Private Law (Unidroit), among others.

A key-note speech will be delivered by Maciej Szpunar (Judge at the Court of Justice of the European Union, TBC). Closing remarks will be provided by Stefania Bariatti (University of Milan).

The conference, in English, will be on-site only.

See the full programme and the registration form. Early bird rates are offered to those registering before 6 March 2023.

For further information: pietro.franzina@unicatt.it.

A new law on international commercial arbitration was published on the 4th of February in Greece. It is the fruit of the efforts by a committee established by the Ministry of Justice. The previous law nr. 2735/1999 is abolished.

The new law nr. 5016/2023 consists of 59 articles, whereas the predecessor had only 37 articles. Both laws are based on the UNCITRAL Arbitration Rules. The main novelties of the recent law are the following:

• Article 11 covers the issue of the validity of the arbitration agreement.
• Article 16 introduces a provision for multiparty arbitration.
• Article 22 regulates the issue of the arbitrator’s liability.
• Article 24 introduces a provision for the unification of multiple arbitrations.
• Article 35 contains a special rule for the production of documents and the submission of evidence.
• Last but not least, Article 46 sets the stage for the foundation of Arbitration Centers by private companies or public law corporations, such as Bar Associations. Some of them have already established Arbitration Centers (mostly if not exclusively for purely domestic disputes) in the major cities of the country, such as Athens and Thessaloniki. The new law grants them access to international commercial disputes.

Carpatair / Commission
Aide d'État
Le Tribunal annule la décision de la Commission européenne validant les aides roumaines à l’aéroport international de Timișoara en faveur de Wizz Air

Aquind e.a. / Commission
Marché intérieur de l’énergie et liste des projets d’intérêts commun de l’Union : le Tribunal rejette le recours du groupe Aquind

In a decision of November 2022, the Swedish Labour Court held that Qatar had, at least in part, the right to invoke state immunity from jurisdiction in connection with proceedings relating to an employment matter.

Background

An employee at the Qatari embassy in Stockholm was summarily dismissed in September 2021. He filed a lawsuit against the State of Qatar in the Stockholm District Court requesting invalidation of, and compensation for, unfair dismissal. Qatar objected to Swedish jurisdiction by invoking State immunity under international law.

Decision

In a preliminary decision, the Stockholm District Court granted Qatar State immunity regarding the invalidation claim, but denied it with respect to the claim for compensation. The Labour Court, which was the court of appeal and last instance in the matter, agreed with the District Court’s conclusion.

In its decision, the Labour Court held that the dispute had such a “close connection” to Sweden that Swedish courts should be able to assert jurisdiction, unless Qatar had the right to invoke state immunity. The court continued by stating that whether or not state immunity from jurisdiction should be respected is dependent on customary international law. In this regard, the court held that the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property is representative of customary international law.

Article 11 of the 2004 UN Convention deals with employment law matters. The provision contemplates several exceptions to State immunity in this field, i.e., situations where a State, as a defendant before the courts of another State, are not entitled to immunity.

Article 11(2)(c) sets out that States are immune from jurisdiction whenever “the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual”. Although this provision does not explicitly deal with the invalidation of a dismissal, the Swedish Labour Court concluded that such invalidation is equivalent to reinstatement. With references to the European Court of Human Rights’ (ECtHR’s) judgments Naku v. Lithuania and Sweden and Cudak v. Lithuania, the Labour Court found that granting State immunity does not amount to a violation of the employee’s right to a fair trial under Article 6 in the European Convention of Human Rights (ECHR).

In its examination of the ECtHR’s judgments, the Labour Court noted that Naku had requested both reinstatement and damages and that the ECtHR had found that it was wrong to grant State immunity in that case. The Labour Court noted that the ECtHR made a point that an employee under Lithuanian law could be given severance pay instead of reinstatement. There is no possibility for a court to do so under Swedish law when a former employee has pleaded invalidation of an employer’s dismissal. Therefore, the Labour Court concluded that granting State immunity for Qatar was not a violation of Article 6 in the ECHR.

Analysis

The Swedish Labour Court’s decision is, in my opinion, problematic and can be criticized for at least three reasons. First, the Labour Court makes no references to EU private international law. Second, the Labour Court’s formalistic approach to public international customary law is erroneous. Third, the Labour Court only – selectively – referred to ECtHR case law on the balance of state immunity and the right to a fair trial. In the following, I will develop those three points of critique.

EU Private International Law Determines Jurisdiction

Whether or not a Swedish court has jurisdiction in an international employment law matter follows from the Brussels I bis Regulation.

Under Article 1, the Regulation shall apply in “civil and commercial matters.” This concept has, on several occasions, been interpreted by the Court of Justice of the European Union (CJEU) as including actions by public authorities, as long as they do not exercise public powers. Further, it is clear that this also extends to embassy employment cases (see, e.g., ZN, C-280/20, paras 26–28, and Mahamdia, C-154/11, para 56). Even under the old Brussels I Regulation, it was clear that the regulation was applicable to third countries’ embassies, as they are to be considered “establishments” (Mahamdia, p. 41). Under the Brussels I bis Regulation, Article 6 has been extended to apply to all matters in which an employee habitually carries out his or her work in the EU, regardless of where the employer is domiciled. In such cases, the Regulation must be applied in the EU Member States (Roi Land Investments, C-604/20 para 48).

With this in mind, it is misleading that the Swedish Labour Court seemingly applies the jurisdictional standard of “Swedish interest of adjudication” that is used against defendants domiciled in third countries, without mentioning the Brussels I bis Regulation.

The 2004 UN Convention Does Not Reflect International Customary Law

The Labour Court oversimplifies customary international law by referring mechanically to the 2004 UN Convention.

Customary international law is defined by its constantly evolving nature and the fact that it must be derived from state practice. Therefore, international customary law cannot ever really be codified. The convention may serve as one of many pieces of public international customary law, but cannot be applied mechanically.

When using the 2004 convention, one shall bear in mind that there were some controversies about the content of the convention when it was adopted and that it still has not gathered enough support to enter into force. Further, since the convention was drafted nearly 20 years ago, important case law development has been made by i.a. both the CJEU and the ECtHR regarding State immunity in embassy employment disputes. As case law from these courts is to be applied by Swedish courts, irrespective of customary international law, it is questionable that this case law was not taken into consideration. This leads me to my third point of critique: that the Labour Court did not correctly refer to relevant EU and ECtHR case law.

The Labour Court Did Not Correctly Refer to Relevant ECtHR and CJEU Case law

Over the last 15 years, the ECtHR has developed a unanimous approach to State immunity in embassy employment law cases. This approach is made clear in the 2019 judgment Ndayegamiye-Mporamazina v. Switzerland. In this judgment, the ECtHR makes clear that an important feature for granting state immunity from jurisdiction is that the employee can access courts elsewhere. In Ndayegamiye-Mporamazina v. Switzerland, the employee could initiate proceedings in the embassy state of Burundi. Access to courts elsewhere in the world has long been a cornerstone in the evaluation of upholding state immunity (see Prince Hans-Adam II of Liechtenstein v. Germany). In the Swedish Labour Court’s decision, the access to courts in Qatar was not assessed at all.

Concluding Remarks

In my opinion, it is a pity that the Labour Court did not pay attention to neither the EU private international law aspect nor the relevant case law developments from the ECtHR. For the development of customary international law regarding state immunity in embassy employment matters, well-motivated case law is needed. Due to the flaws described above, the Swedish Labour Court’s decision can hardly be seen as a contribution to the development of customary international law.

Wang Jingru, Wuhan University Institute of International Law

 

Background

In November 2022, Beijing Fourth Intermediate People’s Court delivered the landmark decision in Ruili Airlines Co. Ltd. and Others v. CLC Aircraft Leasing (Tianjin) Co., Ltd. For the first instance, the Chinese court confirmed the legitimacy of third-party funding in arbitration and clarified the standard of review regarding the challenge towards it.

In 2021, the CIETAC rendered an arbitral award addressing the dispute arising from an aircraft leasing agreement. In this case, the claimant, CLC Aircraft Leasing (Tianjin) Co., Ltd., was funded by a third-party funder, IMF Bentham Limited. The respondents, Ruili Airlines Co. Ltd. (Ruili Airlines), Yunnan Jingcheng Group Co., Ltd. and Dong Lecheng, opposed enforcement of the award before Wuxi Intermediate People’s Court .[i] After being dismissed by the Wuxi Court, the respondents challenged the arbitral award before Beijing Fourth Intermediate People’s Court and were again dismissed.[ii]

Legal Issues

The respondents challenged the arbitral awards based on four grounds: first, the composition of the tribunal was not in accordance with the arbitration rules; second, the claimant and the tribunal breached the principle of confidentiality for disclosing information to the third-party funder; third, the tribunal failed to bear the parties fair opportunity to present the case; fourth, the arbitral award infringed the social public interest.[iii] The court reviewed the challenge under Article 281 of the Chinese Civil Procedure Law, which dealt with the challenge to foreign-related arbitral awards. Given our focus on third-party funding, this note only discussed the first two grounds.

Composition of the Tribunal

The respondents submitted that Rollin Chan, the arbitrator appointed by the claimant, was affiliated with the Nixon Peabody CWL, a Hong Kong law firm which had a significant relationship with the funder, IMF Bentham Limited. The Nixon Peabody CWL Law Firm had provided legal services to HSBC Group and JP Morgan Group, which were actual controllers of IMF Bentham Limited’s two main shareholders, HSBC Custody Nominees (Australia) Limited and JP Morgan Nominees Australia Limited. The respondents argued that this relationship fell within the arbitrator’s obligation to disclose. However, neither did Rollin Chan disclose the relationship nor did he resign, which raised justifiable doubts about his independence and impartiality.

The court first pointed out that the current law did not prohibit third-party funding arbitration. The third-party funding and the funder’s relationship with the arbitrator are related to the credibility of arbitration and the integrity of the award. Therefore, the court’s analysis focused on the challenge to the arbitrator and the disclosure of the third-party funder.

As explained by the court, the mechanism of challenge to arbitrators intended to eliminate the arbitrators with conflicts of interest which might undermine the fair trial and decision. The disclosure obligation requires the arbitrators to disclose any fact within their knowledge regarding their relationship with the case, the parties, members of the tribunal or other situations which may raise justifiable doubts about their independence and impartiality to the parties and the arbitration institution. Meanwhile, the court stressed that the arbitrators’ obligation to disclose should be based on their knowledge of potential conflicts of interest which may give rise to justifiable doubts about their independence and impartiality. Arbitrators could be challenged based on grounds specified by law or arbitration rules. If the relations were not known to the arbitrators and were insufficient to undermine the independence and impartiality of the arbitration, the arbitrator would not breach the duty for not disclosing the relationship. Likewise, there would be no violation against the provision of challenge to arbitrators.

In this case, the court found that Rollin Chan was a consultant of Nixon Peabody CWL instead of an associate or a partner who got dividends. He was based in Shanghai instead of Hong Kong. He did not engage in office matters and did not know about the dealings between Nixon Peabody CWL and IMF’s shareholders, as well as their actual controllers. Also, it was confirmed that none of them had been Nixon Peabody CWL’s clients. While they could connect with Nixon Peabody law firms in other regions, those law firms were independent of Nixon Peabody CWL. Nixon Peabody was an international lawyer network. Law firms within the network were separate entities subject to respective supervision of different jurisdictions. These law firms did not share client information or financial income. The respondents presented evidence to expose the business relationship between Nixon Peabody LLP (US) and HSBC (US), JP Morgan (US). However, the evidence mistook Nixon Peabody LLP (US) for Nixon Peabody CWL (HK). Also, HSBC (US) and JP Morgan (US) were different from the funder’s shareholders, HSBC Custody Nominees (Australia) Limited and JP Morgan Nominees Australia Limited. Therefore, the court concluded that the evidence was insufficient to prove the conflicts of interest or create a ground for challenge.

The court confirmed that the civil party had the legitimate right to accept third-party funding. Such a choice shall be respected as long as the arrangement does not breach the law or undermine the integrity of the award. In the absence of guidance on the disclosure of third-party funding, it is encourageable for the party to disclose the existence of third-party funding, which assists the parties in exercising their right based on the information.

Confidentiality

The respondents submitted that the third-party funder got information on the procedure and merits of the case. Considering that the funder was a listed company, the outcome of the case could be disclosed to the public. Therefore, the claimant and the tribunal breach the principle of confidentiality.

As acknowledged by the claimant, information including the procedural arrangement and the arbitral award was shared with the funder. For this issue, the court clarified that the key to confidentiality was withholding the information from the public so as to protect the parties’ commercial secrets and social image. While the arbitration rules prohibit disclosure to the “outsider”, information can be shared with the people concerned. In practice, the people concerned, such as the secretary of the tribunal and the parties’ shareholders who had significant interest in the case, could gain information about the arbitration, even though such disclosure was not explicitly allowed by the arbitration rules. Since the current rules did not preclude third-party funders from sponsoring the parties to engage in arbitration, the establishment of a funding relationship did not violate the principle of confidentiality.

Comments

Supporters of third-party funding argue that this mechanism could promote access to justice for impecunious parties and help the parties to overcome liquidity issues,[iv] which makes it an essential complement to the arbitration market. However, despite the fact that the third-party funding in arbitration has somewhat become a common phenomenon, worries about its adverse influence on arbitration are not unfounded. Third-party funders are stimulated by the economic interest directly connected to the outcome of the arbitration. To secure the recovery and maximize the profit, third-party funders may recommend counsel or arbitrators with whom they are familiar to the parties. They may also precipitate the “claim inflation” which exceeds the real loss of the funded party.[v] The third-party funding raises debate on its legitimacy and brings novel questions to be answered.

In this case, the Chinese court directly clarified the legitimacy of third-party funding and the standard of review. With the ambition to build up an attractive arbitral seat, China takes a rather friendly position to embrace this fast-growing mechanism. The court confirmed that third-party funding was not forbidden by the current law. Accordingly, it is natural to disclose relevant information to the third-party funder which is not viewed as a breach of confidentiality. The challenge to third-party funding will be assessed case by case. The arbitral award can only be set aside if third-party funding hinders the arbitration proceedings or undermine the integrity of the arbitral awards. The decision also shed some light on procedural control over third-party funding arbitration. The court held that the relationship between the arbitrator and third-party funder could also give rise to justifiable doubts about the arbitrator’s independence and impartiality. Besides, without explicit guidance of law, the court encouraged the funded party to disclose the existence of third-party funding, which was consistent with the common anticipation of arbitration practitioners.[vi] Whilst a single decision is not required to address everything, the way forward remains to be seen.

 

[i] See Ruili Airlines Co. Ltd. and Others v. CLC Aircraft Leasing (Tianjin) Co., Ltd. (2022) Su 02 Zhi Yi No. 14.

[ii] See Ruili Airlines Co. Ltd. and Others v. CLC Aircraft Leasing (Tianjin) Co., Ltd. (2022) Jing 04 Min Te No. 368.

[iii] Ibid.

[iv] See Marie Stoyanov and Olga Owczarek, ‘Third-Party Funding in International Arbitration: Is it Time for Some Soft Rules?’ (2015) 2(1) BCDR International Arbitration Review 171, 172.

[v] See John Beechey, ‘The Pandora’s Box of Third-Party Funding: Some Practical Suggestions for Arbitrators in Light of Recent Developments’ (2019) 20 ICCA Congress Series 558, 573.

[vi] See School of International Arbitration at Queen Mary University of London, 2015 Improvements and Innovations in International Arbitration, available at: https://arbitration.qmul.ac.uk/research/2015/index.html.

On Tuesday, February 14, 2023, the Hamburg Max Planck Institute will host its 30th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CET). Tobias Helms (Universität Marburg) will speak, in German, about the topic

the Proposal for a Council Regulation on Jurisdiction, Applicable Law, Recognition of Decisions and Acceptance of Authentic Instruments in Matters of Parenthood.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Confédération paysanne e.a. (Mutagenèse aléatoire in vitro)
Rapprochement des législations
Techniques de modification génétique : la Cour précise le statut de la mutagenèse aléatoire in vitro au regard de la directive OGM

The European Commission is adopting a package of infringement decisions due to the absence of communication by Member States of measures taken to transpose EU directives into national law. Among these, the Representative Actions Directive (EU) 2020/1828, whose description can be found in this blog.

Since the Representative Actions Directive entered into force in December 2020, Member States had two years to transpose it into their national law and to inform the Commission, with a further six months for the new provisions to come into effect.

While there is work ongoing in most Member States on adopting the laws, a large number of Member States failed to notify national measures fully transposing the Representative Actions Directive by the deadline set for 25 December 2022 and will therefore be receiving letters of formal notice: Belgium, Bulgaria, Czechia, Denmark, Germany, Estonia, Ireland, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Luxembourg, Malta, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland and Sweden.

Member States concerned now have two months to reply to the letters of formal notice and complete their transposition, or the Commission may decide to issue a reasoned opinion.

On December 30, 2022, the Chinese legislator, the Standing Committee of the National People’s Congress, published a draft of the Civil Procedure Law Amendment for public consultation. The draft suggested important amendments to procedures in foreign-related cases including jurisdiction, service, taking evidence, forum non-convenience, lis pendens, and judgment recognition and enforcement.

The Berkeley Center for Law and Technology organized a panel discussion on the draft. The program is now available to watch for free on its B-CLE platform. Linked below is access to the program’s recording:

https://bk.webcredenza.com/program?id=85027

 

In February 2023, the Court of Justice of the European Union will publish two decisions and one opinion, all three on Thursday 16.

The expected judgments concern case C-393/21, Lufthansa Technik AERO Alzey, and C-638/22 PPU, Rzecznik Praw Dziecka e.a. (Suspension de la décision de retour).

In C-393/21, the Lietuvos Aukščiausiasis Teismas (Lithuania) is asking the Court to interpret Article 23 of Regulation No 805/2004, as well as Article 36(1) and Article 44(2) of Regulation No 1215/2012.

1. How, taking into account the objectives of Regulation No 805/2004, inter alia the objective of accelerating and simplifying the enforcement of judgments of Member States and effective safeguarding of the right to a fair trial, must the term ‘exceptional circumstances’ in Article 23(c) of Regulation No 805/2004 be interpreted? What is the discretion that the competent authorities of the Member State of enforcement have to interpret the term ‘exceptional circumstances’?
2. Are circumstances, such as those in the present case, related to judicial proceedings in the State of origin which decide a question regarding the setting aside of the judgment on the basis of which a European Enforcement Order was issued to be regarded as relevant when deciding on the application of Article 23(c) of Regulation No 805/2004? According to what criteria must the appeal proceedings in the Member State of origin be assessed and how comprehensive must the assessment of the proceedings taking place in the Member State of origin that is carried out by the competent authorities of the Member State of enforcement be?
3. What is the subject matter of the assessment when deciding on the application of the term ‘exceptional circumstances’ in Article 23 of Regulation No 805/2004: must the impact of the respective circumstances of the dispute when the judgment of the State of origin is challenged in the State of origin be assessed, must the possible potential benefit or harm of the respective measure specified in Article 23 of the regulation be analysed, or must the debtor’s economic abilities to implement the judgment, or other circumstances, be analysed?
4. Under Article 23 of Regulation No 805/2004, is the simultaneous application of several measures specified in that article possible? If the answer to this question is in the affirmative, what criteria must the competent authorities of the State of enforcement rely on when deciding on the merits and proportionality of the application of several of those measures?
5. Is the legal regime laid down in Article 36(1) of Regulation (EU) No 1215/2012 … on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be applied to a judgment of the State of origin regarding the suspension (or cancellation) of enforceability, or is a legal regime similar to that specified in Article 44(2) of that regulation applicable?

I summarized the facts of the main proceedings here. AG Pikamäe made his opinion public on October 20, 2022. There is no English translation available so far. A non-official one could be:

1. Article 23 of Regulation (EC) No. 805/2004 … must be interpreted in the sense that the expression “exceptional circumstances”, for the purposes of this provision, includes the serious and irreparable damage that would be caused to the debtor by the immediate execution of the resolution certified as a European enforcement order, which (the damage) characterizes an urgent situation that corresponds to the debtor to demonstrate. If proven, it will be for the court or competent authority of the executing Member State to weigh the interests at stake in the light of all the relevant circumstances of the specific case.

Only the measures limiting the enforcement procedure, referred to in article 23, letters a) and b), of said Regulation may be subject to a combined application.

2. Articles 6 and 11 of Regulation No. 805/2004 shall be interpreted as meaning that where the enforceability of the decision certified as a European enforcement order in the Member State of origin has been suspended and the certificate provided for in Article 6(2) of that Regulation has been transmitted to the competent authority in the executing Member State, the latter will be obliged, within the framework of the application of the applicable national rules, to guarantee the full effectiveness of article 11 of said Regulation by means of the suspension of the enforcement procedure.

The deciding Chamber is composed by judges Lycourgos, Rossi, Bonichot, Rodin, and Spineanu-Matei acting as reporting judge.

My summary of the facts corresponding to Case C-638/21 PPU can be read here. The opinion of AG Emiliou, available only in a few languages – not English – were published on January 12. My translation would be:

On the one hand, Article 11(3) of Council Regulation (EC) No 2201/2003, read in conjunction with Articles 2 and 11 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, as well as, of the other hand, Articles 7 and 47 of the Charter of Fundamental Rights of the European Union, should be interpreted in the sense that they are opposed to national legislation entailing the suspension by operation of law, on a simple unsubstantiated request from certain authorized public entities, of the execution of a final decision to return pronounced at the end of two ordinary instances, during a first two-month period these entities dispose of to lodge an appeal in cassation and, as the case may be, for the entire duration of this appeal.

The decision will be taken by a Chamber of five judges, namely Safjan, Piçarra, Jääskinen, Gavalec and Jürimäe, with the latter as reporting judge.

Finally, AG Pikamäe will hand in the opinion in case C-567/21, BNP Paribas, a request from the Cour de Cassation (France). The main proceedings relate to an action for payment of various sums, brought in France against a French company by one of its former employees in connection with his dismissal . Previously, he had initiated proceedings in London, his last place of work, and he had obtained a judgment ordering that company to pay him compensation for unfair dismissal. The French courts must now determine if the previous decision (i.e. the English one) has any bearing in the admissibility of the claim filed with them.

1. Must Articles 33 and 36 of Council Regulation (EC) No 44/2001 (…) be interpreted as meaning that, where the legislation of the Member State of origin of the judgment confers on that judgment authority such as to preclude a new action being brought by the same parties for determining the claims that could have been raised in the initial proceedings, the effects which that judgment has in the Member State in which enforcement is sought preclude a court of that latter State, whose legislation, as applicable ratione temporis, provided in employment law for a similar obligation of concentration of claims, from adjudicating on such claims?
2. If the first question is answered in the negative, must Articles 33 and 36 of Council Regulation No 44/2001 be interpreted as meaning that an action such as a claim of unfair dismissal in the United Kingdom has the same cause of action and the same subject matter as an action such as a claim of dismissal without actual and serious cause in French law, so that the employee’s claims for damages for dismissal without actual and serious cause, compensation in lieu of notice, and compensation for dismissal before the French courts are inadmissible after the employee has obtained a decision in the United Kingdom declaring that there has been an unfair dismissal and making a compensatory award in that respect? Is it necessary in that regard to distinguish between, on the one hand, the damages for dismissal without actual and serious cause that might have the same cause of action and the same subject matter as the compensatory award and, on the other, the compensation for dismissal and compensation in lieu of notice which, in French law, are payable where the dismissal is based on an actual and serious cause, but are not payable in the event of dismissal based on serious misconduct?
3. Likewise, must Articles 33 and 36 of Council Regulation No 44/2001 be interpreted as meaning that an action such as a claim of unfair dismissal in the United Kingdom and an action for payment of bonuses or allowances provided for in the contract of employment have the same cause of action and the same subject matter when those actions are based on the same contractual relationship between the parties?

The decision on this case will be rendered by a Chamber of five judges – Jürimäe, Safjan, Piçarra, Jääskinen and Gavalec, this time with Judge Jääskinen reporting.