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This post was contributed by Guillaume Payan, who is Law Professor at the University of Toulon.

Under the direction of its president, Marc Schmitz, the International Union of Judicial Officers (UIHJ) has edited a code, published by Bruylant, on digital enforcement (Global Code of Digital Enforcement). This Global Code was officially presented at the 24th World Congress of this organisation, held in Dubai in November 2021 (as announced here).

The result of the work of the Scientific Council of the UIHJ, this Global Code is an extension of the Global Code of Enforcement published in 2015, dealing with very current issues related to the dematerialization of debtors’ assets.

As designed by the UIHJ, the Global Code of Digital Enforcement is not legally binding. Nevertheless, there is reason to think that it will have concrete consequences in national law and on the work of intergovernmental organisations. It promotes a balanced enforcement system, by defining global enforcement standards that respect fundamental rights.

Although it essentially provides for substantive rules, the issues of private international law are not ignored, in particular regarding the applicable law to enforcement and the international jurisdiction of enforcement agents.

One of the great interests of this publication is to address the interaction between enforcement procedures and the digitalisation of Justice from all its angles. Thus, not only are dematerialised enforcement procedures considered, but also the use of enforcement procedures on digital assets. As such, the issue of the seizure of crypto-assets is dealt with in a very timely manner.

Available in both French and English, the Global Code of Digital Enforcement is structured in 7 parts, which are preceded by a Preamble which clearly sets out the context of the work (“Enforcement in the digital age”).

General Principles of Digital Enforcement

The first two articles relate to “respect for fundamental rights” and respect for “the ethical principles of digital use”, such as respect for human dignity, non-discrimination or even respect for personal data. This choice must be approved because digitalisation should only be considered as a tool in the service of rights that are prior and superior to it. In other words, this digitalisation should not be an end in itself and can only be conceived with respect for human rights. There are also a series of guarantees aimed at protecting against the risks associated with the use of artificial intelligence. For example, the code establishes a right to appeal to a judge in order to sanction an irregularity, to control the proportionality of an enforcement measure or to compensate a damage. In addition, there are obligations imposed on various parties (e.g. foreign enforcement agents, debtors, third parties) to cooperate in enforcement.

Applicable Law to Enforcement

The principle is that identified and accessible digital assets are seized in accordance with the law of their location, in compliance with the principle of territoriality of enforceability. With regard to unidentified or inaccessible digital assets, it is recommended to apply the law of the State that controls or ordered the enforcement.

Principles Specific to the Activity of Judicial Officers or Enforcement Agents

The main idea here is to allow enforcement agents to use digital tools to carry out their activities. With good reason, the question of access to information on the debtor’s assets is considered in a comprehensive manner (in particular, access to dematerialised registers and the use of drones).

Digital Enforcement Procedure

After outlining the general principles (such as the creation of dematerialised seizures, while maintaining physical non-digital seizures), the focus here is also on electronic access to data. To ensure efficiency, the possibility of electronic auctions is established. The rights of the parties are nevertheless preserved based on provisions relating to the security of digital procedures (e.g. secure cross-border communication).

Enforcement Against Digital Assets

In order to be able to carry out enforcement on digital assets, the procedures for locating and seizing them must be adapted. In this regard, it is specified, for example, that national laws should define seizure procedures adapted to digital assets and regulate their legal regime.

Use of Artificial Intelligence in Enforcement

Artificial intelligence is intended to help enforcement agents to assess the appropriate enforcement measures. While guaranteeing the right to appeal to a judge to compensate any damage suffered during an automated enforcement, it is important to allow the enforcement agents the possibility of setting up a “smart enforcement” mechanism. The use of blockchain technology is also key for the enforcement agents, together with the debtor and the creditor, to set up an automated process of compulsory enforcement, particularly when payments are made by cryptocurrency.

Seizure of Crypto-Assets

Access to crypto-assets and the procedure for seize crypto-assets are successively detailed. For example, it is recommended to create a national crypto-assets register and an obligation for the debtor to declare his crypto-assets to the enforcement agent in charge of enforcement. In addition, a distinction is made between the seizure of crypto-assets in the hands of a third party (e.g. exchange platform) or the seizure in the hands of the debtor.

Written by Mayela Celis, UNED

The oral arguments of the case Golan v. Saada (20-1034) will take place tomorrow (Tuesday 22 March 2022) at 10 am Washington DC time before the US Supreme Court. For the argument transcripts and audio, click here. The live audio will be available here.

We have previously reported on this case here and here.

“QUESTION PRESENTED

The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is:

Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.” (our emphasis)

Please note that US courts often use the terms “ameliorative measures” and “undertakings” interchangeably (as stated in the petition). Also referred to as protective measures in other regions.

This case stems from the fact that there is a split in the US circuits (as well as state courts).

There were several amicus curiae briefs filed, three of which are worthy of note: the amicus brief of the United States, the amicus brief of Hague Conventions delegates Jamison Selby Borek & James Hergen and finally, the amicus brief filed by Linda J. Silberman, Robert G. Spector and Louise Ellen Teitz.

The amicus brief of the United States stated:

“Neither the Hague Convention on the Civil Aspects of International Child Abduction nor its implementing legislation requires a court to consider possible ameliorative measures upon finding under Article 13(b) that there is a grave risk that returning a child to his country of habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Rather, the Convention and ICARA leave consideration of possible ameliorative measures to a court’s discretion.”

The amicus brief of the Hague Delegates coincide with this statement of the United States, while the brief of professors Silberman, Spector and Teitz holds the opposite view.

As is widely known, the US Executive Branch’s interpretation of a treaty is entitled to great weight. See Abbott vs. Abbott 560 U. S. _ (2010); Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176.

In my personal opinion, the position taken by the United States is the correct one.

The fact is that the Hague Abduction Convention is silent on the adoption of ameliorative measures. Article 13 indicates: “the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that […]” (our emphasis). The discretion of the court is thus key. Besides, and as we all aware, the Child Abduction Convention is not a treaty on recognition and enforcement of protective measures.

In some legal systems, this void has been supplemented with additional legislative measures such as the Brussels II ter Regulation (2019/1111) in the European Union. Importantly, this instrument provides for the seamless enforcement of  provisional – including protective – measures, which makes it a much more cogent system (see, for example, recitals 30, 45 and 46, and articles 2(1)(b), 15 – on jurisdiction-, 27(5), 35(2) and 36(1)). And not to mention the abolition of the declaration of enforceability or the registration for enforcement, which speeds up the process even more.

Furthermore, and particularly in the context of the United States, the onus that ameliorative measures exist or could be made available should be placed mainly on the parties requesting the return, and not on the court. See the amicus brief filed by former US judges where they stressed that “mandating judicial analysis of ameliorative measures forces US courts beyond their traditional jurisdiction and interactions with foreign law / civil law judges perform investigatory functions; common law judges do not.”

Arguably, the 13(1)(b) Guide to Good Practice may be read as supporting both views. See in particular:

See paragraph 36: “The examination of the grave risk exception should then also include, if considered necessary and appropriate, consideration of the availability of adequate and effective measures of protection in the State of habitual residence.” (our emphasis).}

See paragraph 44: “Protective measures may be available and readily accessible in the State of habitual residence of the child or, in some cases, may need to be put in place in advance of the return of the child. In the latter case, specific protective measures should only be put in place where necessary strictly and directly to address the grave risk. They are not to be imposed as a matter of course and should be of a time-limited nature that ends when the State of habitual residence of the child is able to determine what, if any, protective measures are appropriate for the child. In certain circumstances, while available and accessible in the State of habitual residence, measures of protection may not be sufficient to address effectively the grave risk. An example may be where the left-behind parent has repeatedly violated protection orders.” (our emphasis)

But see in contrast paragraph 41 of the Guide, which was mentioned in the amicus brief of Child Abduction Lawyers Association (CALA).

Putting this legal argument aside, and in the context of the United States, there are several reasons why US courts should not be required to consider ameliorative measures (but may do so on a discretionary basis):

• The United States is not a Contracting Party to any global treaty that would allow the recognition and enforcement of protective measures (such as the 1996 Hague Protection of Children Convention – USA is only a signatory State);
• A great number of child abductions occur to and from the United States and Mexico. The Mexican legal system is not familiar with the recognition and enforcement of undertakings or with adopting mirror orders in the context of child abduction (or in any other context for that matter);
• Requiring courts to look into ameliorative measures in every single case would unduly delay abduction proceedings;
• Social studies have revealed that undertakings are very often breached once the child has been returned (usually with the primary carer, the mother), which has the direct result of leaving children and women in complete vulnerability. See Lindhorst, Taryn, and Jeffrey L Edleson. Battered Women, Their Children, and International Law : The Unintended Consequences of the Hague Child Abduction Convention. Northeastern Series on Gender, Crime, and Law. Boston, MA: Northeastern University Press, 2012.

In conclusion, I believe that we all agree that ameliorative measures (or undertakings) are important. But they must be adequate and effective and should not be adopted just for the sake of adopting them without any teeth, as this would not be in the best interests of the child (in concreto).

The VIII Congress of Private International Law of the University Carlos III of Madrid will take place on 12 and 13 May 2022. It will be devoted to Regulation (EU) 2019/1111 on jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction.

Those interested in presenting a paper are invited to submit the title of the paper and an abstract of a maximum of 800 words before 10 April 2022 at Congresodipr@uc3m.es.

The selected papers may also be published in the online journal Cuadernos de Derecho Transnacional.

Further information on the Congress is available here.

NASAMER Law Blog, by Dr. Nüsret-Semahat Arsel International Business Law Implementation and Research Center at Koç University, is an online platform featuring posts about international business law – defined broadly.

The blog has been launched in January this year with the inaugural piece written by Prof. Dr. Klaus Hopt entitled “Corporate Governance in the International Discussion“. The Academic Advisory Board of the blog is comprised of prominent scholars from the Universities of Oxford, Zürich, Singapore, LSE and Koç University.

The Editorial Board would like to invite submissions in the form of opinion & current awareness pieces discussing recent news and developments such as judgments and legislative changes and research pieces reporting on recently published or forthcoming literature such as journal articles and books, as well as on recent academic events such as conferences and workshops.

More information about the submission rules, the Academic Advisory Board, and the Editorial Board can be found on the blog website. For any inquiries, please do not hesitate to contact the editors via nasamerblog@ku.edu.tr.

La France préside le Conseil de l’Union européenne pour six mois. À cette occasion, la Délégation des Barreaux de France et Lefebvre Dalloz s’associent pour vous proposer ce podcast dont la vocation est de sensibiliser sur les travaux et les actions conduites dans le domaine de la justice au plan européen.

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It is interesting to imagine the legal position in Lambert v Motor Insurers’ Bureau (Rev1) [2022] EWHC 583 (QB) in a scenario of retained EU law post Brexit, rather than firmly within the scope of the Brussels Ia Regulation and applicable law under Rome II. By the mechanisms of EU consumer law and EU insurance law, mixed with the finest legal machinery in the area of subrogation, a UK resident party injured in a motor accident (here: at a private racing circuit in Spain) abroad is entitled to claim compensation from the Motor Insurers’ Bureau (‘MIB’) in certain circumstances, clarified by the UKSC in Moreno v MIB [2016] UKSC 52. Crowther DJ summarises these circumstances as [6]

broadly speaking, that the guarantee fund of the member State in which the accident occurred would be liable to compensate the injured person on the facts of the individual case, when applying the rules of the local law which govern such actions by injured persons against the local guarantee fund. In other words, if Mr Lambert can show that the Spanish guarantee fund would have been liable to him in respect of the accident, he can claim such compensation from the MIB as would have been payable by the local guarantee fund. It is common ground in this case that the scope of the insurance obligation for use of motor vehicles under Spanish law extended to cover participation in the track event, notwithstanding the fact that it was not on a road or other public place.

The latter element is unlike the UK where seemingly third party motor insurance for motor sport is not commercially available.

The law applicable to the claim is agreed to be English law. While not specified in the judgment, this is presumably because of Article 4(2) Rome II (where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply): both Mr Lambert, claimant, and Mr Prentice, said to be responsible for the accident, were participants in a track event, organised by a UK based track day operating outfit called Track Sense; both travelled to Spain from the UK.

Spanish law however determines the preliminary issue as highlighted by the Supreme Court, Spanish law being the law which would have been applicable to any hypothetical claim which Mr Lambert might have brought against the Spanish guarantee fund. This is where things get interesting. The Motor Insurance Directives support a direct claim against one’s national MIB, subject to the law of the MS where the accident happened, sustaining liability in the circumstances. However Rome II somewhat curtails its action radius by declaring that it does not apply to ‘evidence and procedure’. This is a carve-out which is problematic in specific instances as I explain ia here. On such instance are issues of limitation however these it seems ([14)] were not pursued.

In the case at issue, parties’ agreement ([9]) is that by analogy to A1(3) Rome II, matters of evidence and procedure are outside the scope of the material substantive law and fall to be determined in accordance with English law as the law of the forum (lex fori in principle determines issues of evidence and procedure). Equally, on an analogous basis to A22(1) Rome II, parties agree that Spanish law will apply insofar as it contains rules which raise presumptions of law or determine the burden of proof.

The common law treating foreign law as fact, means the content of that foreign law is established often with the help of parties (if need be cross-examined) experts however [17] is for the English judge to determine. The remainder of the case therefore is spent discussing the expert evidence (with the judge doing some fine distinguishing of the case-law both experts referred to) together with the factual elements, to conclude [94]

Mr Lambert’s actions were 25% causative of the accident and Mr Prentice’s 75%. It follows that Mr Lambert’s claim for damages against MIB succeeds to the extent of 75% of his loss or damage.

Lest my understanding of the insurance Directives fails me (which it could well do), this means that claim on 75% of the damage remains to be judged under English  tort law. With presumably a repeat of the causation test, this time under English law.

A clearly written judgment which no doubt benefitted from the considerable practice experience of the judge on the matters at hand.

Geert.

 

Applicable law, accident at motorcycle track event
Rome II evidence, procedure exception mutatis mutandis (per motor insurance regulations), and approach to Spanish law as a matter of fact
Judgment by @sarahcrowtherqc
Lambert v [MIB] [2022] EWHC 583 (QB)https://t.co/OhVSZ1ljt0

— Geert Van Calster (@GAVClaw) March 16, 2022

Stefan Grundmann (Professor of Transnational Law and Theory at the European University Institute, Florence, and Professor of Private and Business Law at Humboldt-University, Berlin) and Mateusz Grochowshi (Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law, Hamburg, Assistant Professor at the Institute of Law Studies of the Polish Academy of Sciences, Warsaw, and Fellow at the Information Society Project, Yale Law School) edited a book on European Contract Law and the Creation of Norms that has just been published with Intersentia.

The works contained in this volume sketch a broad landscape of sources of modern contract law, with a particular focus on European private law rules. With this the contributions seek to provide a better understanding of the identity of present-day contract law through an analysis of the multitude of social and economic dynamics that shape the normative landscape.

The blurb of the book reads as follows:

The book provides a broad and topical perspective of the sources of modern contract law. It examines the creation of contract law as a multi-pronged occurrence that involves diverse types of normative content and various actors. The book encompasses both a classical perspective on contract law as a state-created edifice and also delves into the setting of contractual rules by non-state actors. In so doing, the volume thoroughly analyses present-day developments to make sense of shifting attitudes towards the overall regulatory paradigm of contract law and those that reshape the classic view of the sources of contract law. The latter concerns, in particular, the digitalisation of markets and growing trends towards granularisation and personalisation of rules.

The book builds on the EU private law perspective as its primary point of reference. At the same time, its reach goes far beyond this domain to include in-depth analysis from the vantage points of general contract theory and comparative analysis. In so doing, it pays particular attention to theoretical foundations of sources of contract law and values that underpin them. By adopting such diversified perspectives, the book attempts to provide for a better understanding of the nature and functions of present-day contract law by capturing the multitude of social and economic dynamics that shape its normative landscape.

The volume gathers a unique and distinguished group of contributors from the EU, USA and Israel. They bring research experience from various areas of private law and contribute with diverse conceptual perspectives.

A summary of contents is available here.

The Chinese University of Hong Kong’ Cross-Border Legal issues Dialogue Seminar Series presents this online seminar by Professor Richard Garnett on 1st April 2022 12.30pm -2pm (Hong Kong time; GMT +8 hours).

The conflict of laws has traditionally drawn a sharp distinction between jurisdiction and applicable law. The conventional approach suggests that a court only reaches the question of the law to be applied to the merits after the tribunal has determined that it has the power to adjudicate the action. Common law systems have however long recognised that a court has a discretion to accept or decline jurisdiction (determine the appropriate forum) and that a relevant factor in this discretion is the applicable law.

The purpose of this presentation is to examine the current status of the applicable law in jurisdiction and forum disputes, noting the trend in countries such as Australia to give the factor substantial weight and significance.

About the speaker:

Richard Garnett is Professor of Private International Law at the University of Melbourne, Australia and a consultant in international disputes at Corrs Chambers Westgarth. Richard regularly advises on cross-border litigation and arbitration matters and has appeared as advocate (barrister) before several tribunals including the High Court of Australia. Richard has written extensively in the fields of conflict of laws, foreign state immunity and international arbitration, with his work cited by leading tribunals around the world, including the International Court of Justice, the European Court of Human Rights, the English Court of Appeal, United States federal district courts, the Singapore Court of Appeal and Australian, Israeli and New Zealand courts. Richard has also served as expert member of the Australian Government delegation to the Hague Conference on Private International Law, to negotiate the 2005 Hague Convention on Choice of Court Agreements and the 2019 Convention on Recognition and Enforcement of Foreign Judgments.

Please register by 5 pm, 31 March 2022 (Hong Kong time; GMT +8 hours) to attend the seminar.

 

Commission / Danemark (AOP Feta)
Agriculture
Selon l’avocate générale Ćapeta, le Danemark a manqué aux obligations qui lui incombent en vertu du droit de l’Union en ne cessant pas d’utiliser l’appellation « Feta »

Zubaydah v Foreign And Commonwealth Office & Ors [2022] EWCA Civ 334  discusses the same issue as Rahmatullah and Ali v MOD and FCO which I review here (and in which I later inserted the High Court judgment in current case).

What law is applicable to torts allegedly committed by the UK Security Services against a detainee subjected to “enhanced interrogation techniques” by the US CIA. The essence of the claimant’s claim is that the Services were aware that the claimant was being subjected to extreme mistreatment and torture at secret CIA “black sites” in six different countries, but nevertheless sent numerous questions with a view to the CIA eliciting information from him, expecting and intending (or at any rate not caring) that the claimant would be subject to such mistreatment and torture at interrogation sessions conducted for the purpose of attempting to obtain this information.

The first instance judge had refused to overturn the mosaic of six applicable laws (of the countries involved: Thailand, Poland, the US’ base at Guantanamo Bay, Morocco, Lithuania and Afghanistan) which follows from the standard application of the residual English conflict of laws rules (the EU Rome II Regulation does not apply): these point to lex locus damni. Males LJ to my mind unconvincingly does overturn that general rule, with  some reliance on the Supreme Court in VTB Capital Plc v Nutritek. 

The Court holds [37] that the judge had failed to focus on the tort allegedly committed by the UK Services (with too much emphasis on the treatment of claimant in the six countries, by the CIA); [38] wrongly discounted the reasons advanced by claimant for saying that the factors connecting the tort with the Six Countries were of reduced significance (this includes the fact that the claimant had no control whatever over his location and in all probability no knowledge of it either; and that there was a (jurisdictional) forum shopping element in the transfers to the 6 countries: keeping him away from jurisdictions with less forgiving rules on the practices concerned); and [40] the fact that the actions taken by the Services were undertaken “for the perceived benefit of the UK”, that is to say in the interests of this country’s national security.

The reasonable expectations of claimant play a big role in the analysis: claimant could have expected [41] that the conduct of any country’s security services having to do with him would be governed by the law of the country concerned. As for the Services, they would reasonably have expected that their conduct here would be subject to English law.

Throughout the judgment Males LJ puts great emphasis on what he notes [22] as an overarching aim of the relevant Act, which is ‘the reasonable and legitimate expectations of the parties to a transaction or an occurrence.’ However that is the Law Commission’s view on the raison d’être of conflict of laws full stop. I am not so sure it can serve as a determinative principle in the application of a specific rule of the Act.

I am not saying that the outcome of the case is wrong. Yet the judgment gives the impression of a correction of the judge’s factual balancing act between the different factors, rather than an error of law, and the emphasis on legitimate expectations feels a bit artificial in the circumstances. Add to this that [35] nobody suggested on the facts of this case that one applicable law might apply to the tort of misfeasance in public office and another to the tort of false imprisonment. Both parties proceeded on the basis that the law applicable to the claimant’s claims as a whole was either English law or the law of the Six Countries, and so did the Court of Appeal. This, too, may make the judgment’s authority limited.

Finally Males LJ holds obiter [51 ff] and correctly that it is too early to decide whether the application of the foreign laws, had they been applicable, would have had to be set aside on the basis of ordre public: while some evidence on the law of the 6 countries had been presented, there had not yet been proper discussion of same.

Geert.

See my analysis of an earlier, similar High Court case with different outcome here https://t.co/NRZYDLJjZJ (Rome I does not apply). https://t.co/N3bKc7g3gm

— Geert Van Calster (@GAVClaw) March 16, 2022

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has just issued an “Information Note – Children deprived of their family environment due to the armed conflict in Ukraine”. Click here for the English version and here for the French version. The HCCH news item is available here.

The Charles De Visscher Center for International and European Law (CeDIE, UCLouvain, Belgium) will host a conference on Surrogacy and Private International Law, on 31 March 2022.

The conference aims at discussing the theoretical and practical debates on surrogacy, by presenting both the rules of domestic law (including a comparative law approach) and the rules of private international law, with an emphasis on the latter. It will also provide for an opportunity to revisit some of the issues related to the ethical and human rights implications of surrogacy.

Speakers will include legal and medical practitioners as well as academics.

Geneviève Schamps (Professeure, UCLouvain), Jehanne Sosson (Professeure, UCLouvain, avocat), Hugues Fulchiron (Professeur, Université Jean Moulin Lyon 3, Juge, Cour de cassation française), Patrick Wautelet (Professeur, ULiège), Petra Hammje (Professeure, Université de Nantes), Michelle Giroux (Professeure, Université d’Ottawa), Geoffrey Willems (Professeur, UCLouvain), Julie Mary (Assistante et doctorante, UCLouvain) , Amélie Panet (Maître de conférences, Université Jean Moulin Lyon 3),Catherine de Bouyalski (Avocate au barreau de Bruxelles), Nicolas Gendrin (Juge, Tribunal de la famille de Namur), Florence Anciaux Henry de Faveaux (Conseiller, Cour d’appel de Mons), Géraldine Mathieu (Maître de conférences, Université de Namur & ULiège), Sylvie Sarolea (Professeure, UCLouvain, avocate), Caroline Mecary (Avocate aux barreaux de Paris & du Québec), Candice Autin (Médecin gynécologue, Responsable du centre de Procréation Médicalement Assistée au CHU Saint-Pierre), Jean-Philippe Cobbaut (Professeur, Université catholique de Lille & UCLouvain) and Jean-Yves Carlier (Professeur, UCLouvain & ULiège, avocat). 

The working language will be French.

The full programme is available here. Online registration is open here.

Dans un arrêt du 24 février 2022, le juge européen a jugé que le règlement n° 261/2004 ne s’applique pas à un vol avec correspondance(s) faisant escale sur le territoire de l’Union mais dont ni le lieu de départ ni la destination finale ne se trouve sur le territoire de l’Union.

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C’est une forme d’inertie que vient mettre en lumière la Cour des comptes dans son rapport dressant l’état des lieux des routes nationales et départementales et de leur entretien, publié le 10 mars.  

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As announced a few days ago on this blog, a dedicated page has been created in the website of the European Association of Private International Law to collect information about funding or other opportunities offered to refugee scholars and scientists. Some opportunities are available to refugee scholars from any country, others to refugee scholars from Ukraine only, others still to refugee scholars from Ukraine, Russia and Belarus.

The page is constantly updated. The latest update is now on-line.

Those aware of additional funding opportunities (including opportunities for remunerated work to be carried remotely from Ukraine or other places) are invited to get in touch with the Secretary General at secretary.general@eapil.org.

MEKH / ACER
Énergie
Le Tribunal déclare inapplicables les dispositions du règlement 2017/459 relatives au processus de création de capacités supplémentaires pour le transport de gaz

The Center for Law, Economics and Policy Studies (CEDEP) is organising an online course on Choice of Law, International Contracts and the Hague Principles. For more information on this course, click here.

The course will officially begin on Tuesday 22 March 2022, with weekly sessions (a total of 9) to be released on Tuesdays (which may be supplemented with additional lessons in May). The sessions will be in English with Spanish subtitles and will be available throughout the year 2022 on the CEDEP e-learning platform, thus there is no deadline for registration. The registration fee is 90USD – several payment methods are possible (including online). To register click here.

CEDEP has kindly provided in advance the link to the Introductory Session (Choice of Law – 22 March 2022) for Conflictoflaws.net readers, which may be viewed free of charge here: 1. Choice of Law – Introductory Session.

The speakers of the Introductory Session are Luca Castellani (UNCITRAL), Anna Veneziano (UNIDROIT) and Ning Zhao (HCCH) and the topic is UNCITRAL, HCCH, and UNIDROIT Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales. The Legal Guide and other information may be accessed on the Hague Conference website, click here.

The e-learning platform will also make available relevant bibliography, the presentations of the speakers, discounts for a relevant publication and much more. A certificate of participation will be given if a minimum attendance is confirmed.

Below is a list of the speakers per session:

The editors of the Italian Review of International and Comparative Law (IRIC) welcomes papers from scholars and practitioners at all stages of their career for the Volume 1 of 2023.

Papers may cover any topic, under public international law, private law and comparative law, of the issues related to the interaction between the EU legal order and international arbitration, including:
– The influence of EU law on the concept of arbitrability.
– The exclusion of commercial arbitration from the Bruxelles I-bis Regulation.
– The legal consequences of Brexit on international arbitration in Europe.
– The circulation of judgments concerning international arbitration within the EU;
– The future evolution of ISDS in the EU.
– The regulation of international investments between the EU, its Member States and third countries.
– Treaty law issues concerning the validity and the effectiveness of intra-EU bilateral investment treaties (BITs) and the use of public international law by the CJEU.
– The fate of the 1994 Energy Charter Treaty.
– The application of EU law by international arbitrators.
– International investment law before EU Member States domestic courts.
– The enforcement of arbitral decisions concerning intra-EU BITs in EU and third countries.
– EU law as a form of public policy precluding the enforcement of arbitral decisions.
– The potential effects of the CJEU’s decisions concerning international commercial arbitration or ISDS.

Papers containing also a reference to Italy, or the Italian practice will be particularly appreciated.

The selection of papers will be based on the submission of abstracts of max. 1.000 words to iricsubmissions@gmail.com by 1 April 2022. Selected authors will be informed by 30 April 2022.

Final papers will have to be submitted by 15 September 2022 and may have the forms of essays, comments, case notes, recent developments and review essays; each of the latter has a different range of words allowed. Submitted abstracts will have to mention the tentative title of the paper and the form expecred to be used.

Further information available here.

En 2018, dans la loi Essoc, le Parlement avait demandé un rapport au gouvernement sur la question des sur-transpositions. Actuel-direction-juridique publie aujourd’hui ce document, communiqué au Parlement avec deux ans de retard. Dans ce court rapport, le gouvernement semble évacuer le problème : « ce phénomène, souvent dénoncé, est en réalité moins important que ce qui avait pu être envisagé et correspond dans la majorité des cas à un choix politique assumé ».

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Written by William S. Dodge (Professor, University of California, Davis, School of Law)

Should courts in the United States refuse to recognize and enforcement Chinese court judgments on the ground that China does not provide impartial tribunals or procedures compatible with the requirements of due process of law? Last April, a New York trial court said yes in Shanghai Yongrun Investment Management Co. v. Kashi Galaxy Venture Capital Co., relying on State Department Country Reports as conclusive evidence that Chinese courts lacked judicial independence and suffered from corruption. As Professor Wenliang Zhang and I pointed out on this blog, the implications of this decision were broad. Under the trial court’s reasoning, no Chinese judgment would ever be entitled to recognition in New York or any of the other U.S. states that have adopted Uniform Acts governing foreign judgments. Moreover, U.S. judgments would become unenforceable in China because China enforces foreign judgments based on reciprocity. But on March 10, just three weeks after oral argument, New York’s Appellate Division answered that question no, reversing the trial court’s decision.

As background, it is important to note that the recognition and enforcement of foreign country judgments in the United States is generally governed by state law. Twenty-eight states and the District of Columbia have enacted the 2005 Uniform Foreign-Country Money Judgments Recognition Act. In nine additional states, its predecessor, the 1962 Uniform Foreign Money-Judgments Recognition Act, remains in effect. At the time of the trial court’s decision, the 1962 Uniform Act governed in New York, but it was superseded by the 2005 Uniform Act on June 11, 2021. Both Uniform Acts provide for the nonrecognition of a foreign judgment if “the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”

This systemic lack of due process ground for nonrecognition comes from the U.S. Supreme Court’s 1895 decision in Hilton v. Guyot, issued at a time when lawyers routinely distinguished between civilized and uncivilized nations. It was incorporated in the 1962 Uniform Act at the height of the Cold War, and included in the 2005 Uniform Act without discussion, apparently to maintain continuity with the 1962 Act. Despite its codification for nearly sixty years, fewer than five cases have refused recognition on this ground. The leading case is Bridgeway Corp. v. Citibank, involving a Liberian judgment issued during its civil war, when the judicial system had almost completely broken down.

Shanghai Yongrun involved a business dispute between two Chinese parties, which was submitted to a court in Beijing under a choice-of-forum clause in the parties’ agreement. The defendant was represented by counsel, presented its case, and appealed unsuccessfully. Nevertheless, the New York trial court held that the Chinese judgment was not enforceable because China lacks impartial tribunals and procedures compatible with due process. The court relied “conclusively” on China Country Reports prepared by the State Department identifying problems with judicial independence and corruption in China.

In a brief order, the Appellate Division reversed. It concluded that the trial court should not have dismissed the action based on the Country Reports. These Reports did not constitute “documentary evidence” under New York’s Civil Practice Law and Rules. But more fundamentally, reliance on the Country Reports was inappropriate because they “primarily discuss the lack of judicial independence in proceedings involving politically sensitive matters” and “do not utterly refute plaintiff’s allegation that the civil law system governing this breach of contract business dispute was fair.”

On this, the Appellate Division was clearly correct. The State Department prepares Country Reports to administer provisions of the Foreign Assistance Act denying assistance to countries that consistently engage in gross violations of human rights, not to evaluate judicial systems for other purposes. See 22 U.S.C. §§ 2151n & 2304. The Reports themselves warn that they “they do not state or reach legal conclusions with respect to domestic or international law.” Moreover, if these Reports were used to determine the enforceability of foreign judgments, China would not be the only country affected. An amicus brief that I wrote and fourteen other professors of transnational litigation joined noted that State Department Country Reports expressed similar concerns about judicial independence, corruption, or both with respect to 141 other countries, including Argentina, Brazil, Italy, Japan, Mexico, South Korea, and Spain.

The Appellate Division concluded that “[t]he allegations that defendants had an opportunity to be heard, were represented by counsel, and had a right to appeal in the underlying proceeding in the People’s Republic of China (PRC) sufficiently pleaded that the basic requisites of due process were met.” By focusing on the facts of the specific case, the Appellate Division appears to have taken a case-by-case, rather than a systemic, approach to due process. Such a case-by-case approach is expressly permitted under the 2005 Uniform Act, which adds as a new ground for nonrecognition that “the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.” Such a case-specific approach avoids the overinclusiveness of denying recognition on systemic grounds when there are no defects in the judgment before the court.

The Appellate Division’s decision in Shanghai Youngrun continues the growing trend that Professor Zhang and I have noted of U.S. decisions recognizing and enforcing Chinese judgments. Just two months before this decision, in Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan, a U.S. district court in Illinois recognized and enforced a Chinese judgment in another business dispute. The court expressly rejected the New York trial court’s holding in Shanghai Yongrun, noting “the multiple federal cases … where American courts enforced Chinese court judgments and/or acknowledged the adequacy of due process in the Chinese judicial system.” One hopes that this trend will continue.