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Symphony Environmental Technologies et Symphony Environmental / Parlement e.a.
Droit institutionnel
Produits à base de plastique oxodégradable : le Tribunal valide l’interdiction de mise sur le marché

The Paris-Saclay University and the law firm Linklaters LLP, in collaboration with Saint-Joseph University in Beirut, are organizing a competition on private international law  – Concours de Droit international privé (CDIP).

CDIP is designed for students of the first year of the master degree. The language of the competition is French.

The timetable of the 2024 edition is as follows:

• Beginning of February 2024 – publication of the case;
• Early May 2024 – deadline for responses from French students and selection of teams to take part in the oral part of the competition;
• July 2024 – deadline for the response from Lebanese students;
• Early September 2024 – deadline for the reply from French students;
• end of September 2024 – finals in the international chamber of the Paris Court of Appeal (to be confirmed).

Apart from enriching experiences, the prizes include a three-month internship at Linklaters LLP.

For the history of the competition and its previous editions please consult CDIP website. The webpage will be updated soon to provide further information about 2024 edition.

The Japanese Yearbook of Private International Law (kokusai shiho nenpo) (hereinafter “JYPIL”) is an annual publication of the Private International Law Association of Japan (kokusai shiho Gakkai) (hereinafter “PILAJ”). The PILAJ was founded in 1949 as an academic organization. Its main objective is to promote the study of private international law and encourage cooperation with similar academic institutions abroad, as well as coordination among private international law scholars. Since its inception, the PILAJ has organized conferences on a semi-annual basis and, since 2012, on an annual basis (see records of recent past conferences here).

 

Since 1999, PILAJ has been publishing its JYPIL (The contents of all volumes are available here.  The contents of volumes 1 (1999) to 19 (2017) are freely available. English abstracts of the papers published in Japanese are also available from volume 18 (2016)). JYPIL is a peer-reviewed journal that presents trends in academic research in the field of private international law in Japan, with high-quality discussion of the most important issues in the field from both Japanese and comparative law perspectives.

 

Recently, the 25th Volume (2023) of JYPIL has been published. It contains the following papers (abstracts are condensed summaries of the English summary provided by the authors):

 

1. Eiji ADACHI, Current Status and Problems of the System of the Recognition and Enforcement of foreign Judgments in Property Matters in Japan

Abstract: This paper provides an overview of the current status and upcoming challenges in Japan regarding the recognition and enforcement of foreign judgments. It outlines trends, legislative changes, and Supreme Court precedents since 1996, with a focus on judgments involving the United States and China. Despite a trend toward increased recognition, challenges remain, particularly highlighted by the 2019 Hondaya Judgment I, which raised questions about the service of foreign judgments on defendants consistent with Japanese public policy. The paper critiques the Supreme Court’s understanding of procedural ordre public, suggesting that it needs to be reformulated based on insights from European debates to address unnecessary and excessive scrutiny.

 

2. Masaaki HAGA, The Significance of the Hague Convention on Choice of Court Agreement and the Hague Convention on Recognition and Enforcement of Foreign judgments in Civil and Commercial Matters and the Possibility of Japanese Ratification

Abstract: The paper examines the potential benefits for Japan in ratifying the Convention on the Recognition and Enforcement of Foreign Judgments (2019) and the Convention on Choice of Court Agreement (2005). It discusses various aspects of these conventions, such as mutual applicability, jurisdictional issues, recognition of foreign judgments, and reciprocity. The paper suggests positive consideration for ratification, highlighting the importance of enhancing Japan’s role in international civil dispute resolution and ensuring predictability in such cases. It also explores potential solutions to reconcile differences between the conventions and Japanese law through declarations limiting recognition and enforcement.

 

3. Hiroyuki TEZUKA, Practical Issues Concerning Recognition and Enforcement of Foreign Judgments

Abstract: The paper addresses the practical challenges of recognizing and enforcing foreign judgments in Japan, examining issues such as indirect jurisdiction, exclusive choice of court agreements, and conflicts between arbitral tribunals and domestic courts. Part 2 provides practitioner insights into Japan’s potential accession to the Hague Conventions. Part 3 discusses possible legislative reforms to improve the recognition and enforcement process, drawing comparisons with the revised system for arbitral awards in Japan.

 

4. Naohiro KITASAKA, Recognition of Foreign Judgments Regarding Family-Related Cases – Recognition of Judgments Ancillary to the Divorce Case and the Effects of Foreign Adoption Decree

Abstract: This paper discusses amendments to Japan’s Personal Status Litigation Act, distinguishing between the recognition of foreign judgments in personal status litigation and domestic relations cases. In particular, it examines the recognition of ancillary judgments in divorce cases, concluding that they fall under article 118 of the Code of Civil Procedure. The paper also examines the effects of foreign adoption decrees, suggesting that recognition should cover the legal parent-child relationship and the termination of the pre-existing relationship, but not parental responsibility.

 

5. Manabu IWAMOTO, International Surrogacy and Recognition of Legal Parentage

Abstract: The paper discusses the legal complexities of surrogacy, particularly the challenges posed by varying legal recognition in different countries. While Japan does not recognize surrogacy locally, recent developments in Austria and Germany show recognition of children born through surrogacy abroad. The study examines European court decisions, domestic legislation, and international projects aimed at stabilizing the legal status of such children. It suggests that Japan might consider recognizing parentage through foreign decisions. The study emphasizes the importance of international cooperation to protect children and acknowledges differing views on banning surrogacy itself.

 

6. Akira SAITO, Globalised Business and Anti-Corruption Legal Strategies: Challenges for Private International Law in Promoting Public Policy

Abstract: The paper calls for a shift in private international law to address global challenges like the SDGs and ‘Business and Human Rights.’ Proposing a name change to conflicts law studies, the author emphasizes the need for a broader approach. Using the prevention of bribery as an example, the paper underscores challenges in coordinating legal systems and the urgency for interdisciplinary collaboration in private international law studies to meet current demands.

 

7. Midori NARAZAKI, Climate Change Litigation and Private International Law: Review of the Hague District Court’s Judgment against Royal Dutch Shell

Abstract: This paper analyzes a landmark decision by the District Court of The Hague on May 26, 2021, ordering Royal Dutch Shell to reduce its greenhouse gas emissions by 45% by 2030. The decision is the first to recognize a corporate duty to mitigate climate change under tort law. The analysis outlines four key issues: the nature of climate change damages, the attribution of responsibility for policy decisions to the parent company, the application of an unwritten standard of care based on human rights principles, and the consideration of the impact of emission permits on civil law obligations. The paper examines the decision’s significance in private international law and its consistency with climate attribution science.

 

8. Mitsuki KATOH, Right to Claim Special Contribution Fee (a Statutory Care Legacy) in Austrian Private International Law

Abstract: The paper explores Japan’s unique special contribution claims system introduced in 2018 under article 1050 of the Japanese Civil Code. It compares this system to the legal frameworks of other countries, particularly the German Civil Code and Austria’s Pflegevermächtnis introduced in 2015. Both Japan and Austria aim to address challenges associated with an aging population and compensating those providing long-term care for the elderly. The legal nature of Pflegevermächtnis is debated, with scholars questioning whether it falls under inheritance law or unjust enrichment. Understanding these distinctions is essential for interpreting the right to claim special contribution under Japanese private international law.

 

9. Koji TAKAHASHI, Conflict-of-Law Issues Pertaining to Tokenization on Distributed Ledgers

Abstract: This paper discusses the legal aspects of tokenization, focusing on determining the governing law for tokenized rights. It distinguishes between a token-centered and a right-centered approach and argues in favor of the latter. The right-centered approach suggests that issues related to tokenized rights should be determined by the law applicable to the represented right, making consideration of token ownership unnecessary except in specific contexts where the ownership theory is adopted. The paper highlights the importance of this approach in the evolving landscape of crypto-assets and tokenization. 

 

10. Yuko NISHIMURA, The Scope of Exclusivity in Article 6 of the 2019 Hague Judgments Convention: Analysis of the “Right in rem” in Immovable Property in ECJ Judgments

Abstract: This paper examines the scope of article 6 of the 2019 Hague Judgments Convention, which will enter into force in September 2023. The Convention, which focuses on indirect jurisdiction for recognition and enforcement, prohibits the circulation of judgments outside the location of the property. The paper analyzes the potential impact in Japan, comparing article 6 with provisions in the Japanese Code of Civil Procedure. It predicts limited impact due to existing CCP provisions, but highlights potential challenges for the circulation of Japanese judgments abroad. Drawing parallels with ECJ rulings on the Brussels Regime, the analysis narrows the interpretation of article 6 and influences Japan’s ratification considerations.

 

11. Satoshi WATANABE, A Study on the Petition for Revocation of the Child Return Order on Article 117 of the Japanese Implementation Act of the Hague Child Abduction Convention – The Legal Nature of the Petition and Practical Guidance for its Application

Abstract: The paper explores article 117 of the Japanese Implementation Act of the Hague Child Abduction Convention, allowing the revocation of child return orders under changed circumstances. Examining two Supreme Court decisions from 2017 and 2020, the analysis covers grounds for revocation, the child’s refusal to return, and discrepancies with EU and Anglo-American Law decisions. It criticizes the domestic focus in Japanese implementation, urging better coordination and information sharing for aligning decisions with international norms.

 

12. Masanori TAKEDA, Current Status and Issues of Attorney Activities regarding Applications for Assistance in Child’s Return from the United States to Japan

Abstract: The paper addresses the challenges faced by attorneys handling child abduction cases from the United States to Japan under the Child Abduction Convention. It emphasizes the importance of utilizing State Department financial assistance and highlights the difficulties of selecting U.S. attorneys with limited budgets. Despite potentially disappointing outcomes, the continued commitment of attorneys and support for petitioners is critical. The paper calls for continued financial support from the Ministry of Foreign Affairs and recognition of such legal efforts as pro bono by Japanese bar associations.

 

The current and past volumes of JYPIL can be ordered from the publisher’s website. (Shinzansha).

Dyrektor Izby Administracji Skarbowej w Lublinie (Fraude d’un employé)
Fiscalité TVA
Fraude à la TVA : l’employé utilisant les données de son employeur pour émettre de fausses factures est redevable du montant des taxes qu’elles mentionnent

Reti Televisive Italiane
Liberté d'établissement
Limite horaire de spots publicitaires télévisés : les messages promotionnels de programmes de radio diffusés sur des chaînes de télévision du même groupe d’entreprises ne sont pas, en principe, des messages qui concernent les propres programmes de ces chaînes de télévision

Direktor na Glavna direktsia "Natsionalna politsia" pri MVR - Sofia
Espace de liberté, sécurité et justice
Droit à l’effacement : la conservation générale et indifférenciée, jusqu’à leur décès, de données biométriques et génétiques des personnes condamnées pénalement est contraire au droit de l’Union

Landeshauptmann von Wien (Regroupement familial avec un mineur réfugié)
Espace de liberté, sécurité et justice
Un réfugié mineur non accompagné reconnu a droit au regroupement familial avec ses parents même s’il est devenu majeur au cours de la procédure de regroupement familial

On 19 January 2024, the High Court of England and Wales (Dias J) gave a judgment in Border Timbers Ltd v Zimbabwe, which concerned an application to set aside an order granting registration of an ICSID award. The court dismissed the application while holding that the execution of the award was precluded by state immunity.

To reach this conclusion, the court dealt with interesting questions of private international law and international arbitration, namely the distinction between recognition, enforcement and execution of awards and the application of state immunity to the execution of ICSID awards.

Facts

Zimbabwe lost an ICSID arbitration (Border Timbers Limited, Timber Products International (Private) Limited, and Hangani Development Co (Private) Limited v Republic of Zimbabwe (ICSID Case No. ARB/10/25)). The award was not satisfied. The award-creditor successfully applied for registration and entry of judgment on the award in England pursuant to the Arbitration (International Investment Disputes) Act 1966 (“1966 Act”) and section 62.21 of the Civil Procedure Rules. The award-debtor applied to set aside the registration of the award on the basis that it was immune from the jurisdiction of the UK courts under the State Immunity Act 1978 (“1978 Act”).

Legal Framework

Articles 53-55 of the ICSID Convention deal with the recognition and enforcement of ICSID awards in the Contracting States. The first sentence of Article 54(1) states that “Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.” Article 54(3) specifies that the execution of ICSID awards is governed by the laws concerning the execution of judgments of the requested state. Article 55 preserves the application of the requested state’s law of state immunity from execution.

The 1966 Act implements the ICSID Convention in UK law. Section 1 of the Act provides for the registration of ICSID awards. Section 2(1) of the Act specifies that the effects of registration are that a registered award “shall, as respects the pecuniary obligations which it imposes, be of the same force and effect for the purposes of execution as if it had been a judgment of the High Court”. The Act does not address foreign states’ immunity from execution.

The 1978 Act provides for general immunity from jurisdiction except insofar as one of the stipulated exceptions can be established. The award-creditor argued that the exceptions in sections 2 (“submission to jurisdiction”) and 9 (“arbitrations”) of the Act applied. Section 2 specifies that a state is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the UK courts. Section 9 states that where a state has entered into a written arbitration agreement, it is not immune as respects proceedings in the UK courts which relate to the arbitration, subject to any contrary provision in the arbitration agreement.

Judgment

The court held that Articles 53-55 of the ICSID Convention stipulated that every Contracting State undertook to recognise an ICSID award as binding for the purposes of res judicata and to enforce any pecuniary obligations it imposed by giving it the same status as a final judgment of its own courts. The requested court cannot re-examine the award on its merits or refuse recognition or enforcement on grounds of public policy. Questions of execution were left to national courts and laws. In particular, Article 54(1) amounted to a waiver of state immunity in respect of recognition and enforcement, but not in relation to processes of execution against assets.

The exception to state immunity in section 2 of the 1978 Act was drafted with reference to specific proceedings before a specific court, thus requiring any submission to be in respect of the jurisdiction actually being exercised in those proceedings. A waiver of immunity unrelated to any identifiable proceedings was therefore not synonymous with a submission to the jurisdiction under section 2. Article 54 of the ICSID Convention was not a sufficiently clear and unequivocal submission to the jurisdiction of the English courts for the purposes of recognising and enforcing the award against the award-debtor. The award-debtor, therefore, had not submitted to the jurisdiction of the English courts within the meaning of section 2 for the purposes of obtaining recognition and enforcement of the award.

Unfortunately, the court’s discussion of the exception to state immunity in section 9 of the 1978 Act is somewhat unclear. After finding that section 9 required or permitted the English courts to re-examine the jurisdiction of the tribunal (whether an ICSID or non-ICSID tribunal) and that ICSID awards did not fall to be treated differently from other awards in this respect, the court concluded, at [89], that:

The position under section 9 is therefore different from that which pertains under section 2 in relation to Article 54. The enquiry which the court has to conduct under section 2 is whether there was a submission to the jurisdiction. On my analysis, the existence of a valid award is a given in that context, and the only question is whether it was rendered pursuant to Convention procedures. Questions of jurisdiction simply do not arise.

Therefore, according to the court, the award-creditor did not establish the applicability of the section 9 exception.

The remaining question was whether state immunity was engaged at all in relation to an application for registration of an ICSID award. The court held that the procedure for registration of ICSID awards set out in section 62.21 of the Civil Procedure Rules did not require service of any originating process or involved any exercise of discretion or adjudication. This was because the award-creditor had a statutory entitlement to have the award registered, subject only to proof of authenticity and other evidential requirements. The foreign state was not impleaded unless and until the order granting registration was served on it. The doctrine of state immunity had no application at the anterior stage of registration. It was the service of process on a state that involved an exercise of sovereignty. This contrasted with the mere notification of the application for registration. The opportunity of a state to assert immunity before any attempt was made to execute against its assets was adequately secured by requiring service of the order for registration. Consequently, the award-debtor could not apply to set aside the registration of the award on the basis that it was immune from the jurisdiction of the UK courts. However, it could claim immunity in relation to any further steps towards execution.

Interestingly, the court further stated that this approach enabled a principled distinction to be drawn between applications to enforce ICSID awards, which were not served and where the award could not be reviewed, and applications to enforce awards under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. The NYC potentially required service and expressly required the court to exercise its adjudicative jurisdiction in determining that no defences applied.

Comment

The judgment is of interest for private international law for three reasons. First, it illustrates, in very clear terms, the difference between recognition, enforcement and execution of an award. Second, it confirms the conceptual distinction between a general waiver of immunity and a submission to jurisdiction. Third, it clarifies the ministerial (and not adjudicative) nature of the act that the court is asked to perform on an application for registration of an ICSID award.

However, the reasoning of the court is not entirely satisfactory. After repeatedly reading paragraph 89 of the judgment, I still do not understand why the court concluded that the award-creditor did not establish the applicability of the section 9 exception. A more persuasive line of reasoning would have been to point out that the award-debtor’s offer of ICSID arbitration, as contained in Article 10(2) of the Switzerland-Zimbabwe BIT, incorporated the ICSID Convention, including Article 55, which provides that questions of execution are left to national courts and laws – this could have amounted to a “contrary provision in the arbitration agreement” within the meaning of section 9(2) of the 1978 Act.

Soulignant la nécessité d’apporter une protection appropriée aux personnes dénonçant les faits de harcèlement moral ou sexuel dont elles s’estiment les victimes, la Cour européenne considère qu’en refusant d’adapter aux circonstances de l’espèce les critères de la bonne foi, les juridictions françaises ont porté une atteinte disproportionnée à la liberté d’expression garantie par l’article 10 de la Convention. 

en lire plus

Earlier this month (9 January 2024), the Republic of Cabo Verde acceded to the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, which will enter into force for it on 12 January 2025 [Note: this is not our reading of Article 60 of the Convention]. With the accession of Cabo Verde, 49 States and the European Union will be bound by the 2007 Child Support Convention.

Source: https://www.hcch.net/en/news-archive/details/?varevent=955

The fourth edition of European Private International Law – Commercial Litigation in the EU, authored by Geert van Calster (KU Leuven), is out. The book is published by Bloomsbury.

This classic textbook provides a thorough overview of European private international law. It is essential reading for both practitioners and students of private international law and transnational litigation, wherever they may be located: the European rules extend beyond European shores.

Opening with foundational questions, the book clearly explains the subject’s central tenets: the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort). Additional chapters explore private international law and insolvency, freedom of establishment, and the impact of private international law on corporate social responsibility. The relevant Hague instruments, and the impact of Brexit, are fully integrated in the various chapters.

Drawing on the author’s rich experience, the new edition retains the book’s hallmarks of insight and clarity of expression ensuring it maintains its position as the leading textbook in the field.

Written by Sandrine Brachotte who obtained a PhD. in Law at Sciences Po, Paris and is a Guest Lecturer at UCLouvain (Saint-Louis, Brussels).

1. PIL and (De)coloniality in Europe

This post follows Susanne Gössl’s blog post series on ‘Colonialism and German PIL’ (especially s. 3 of post (1)) and offers a French perspective of the issue of PIL and (de)coloniality – not especially focused on French PIL but based on a francophone article to be published soon in the law and anthropology journal Droit et Culture. This article, called ‘For a decolonisation of law in the global era: analysis of the application of postcolonial law in European states’, is addressed to non-PIL-specialist scholars but builds on a European debate about PIL and (de)coloniality that has been nourished by scholars like Ralf Michaels, Horatia Muir Watt, Veronica Ruiz Abou-Nigm, as well as by Maria Ochoa, Roxana Banu, and Nicole Štýbnarová, notably at the occasion of the 2022 Edinburgh conference (reported about on this blog, where I had the chance the share a panel with them in relation to my PhD dissertation (see a short presentation on the EAPIL blog)).

The PIL and (de)coloniality analysis proposed in this post is based on decolonial theory and postcolonial studies, which I will here call ‘decoloniality’. Given this framework (notably nicely presented here), I shall preliminarily stress that it requires acknowledging the limit of the contribution I can make to the debate on PIL and (de)coloniality as a Western jurist. Therefore, this post aims at encouraging non-Western and/or non-legal scholars to contribute to the discussion. It also urges the reader to consider that the non-West and non-legal scholarship about law and (de)coloniality is extremely rich and should not be missed by the Western PIL world.

2. For a Case-by-Case Approach

Against this background, the argument made here is that the decolonisation of Western PIL, if it is to happen (which decoloniality demands, based on the concept of global coloniality), should be based on a certain methodology (see eg the decolonial legal method elaborated by Tchepo Mosaka). Such methodology may require a case-by-case approach, to complement the study of the applicable legal framework. This seems at least necessary in the context, studied in the aforementioned article, where a postcolonial law is to be applied as foreign law by the Western forum (typically but not only in the context of migration), given that ‘postcolonial law’ hides a form of legal pluralism. It thus potentially covers not only state law, but also customary law and/or religious law.

To study this kind of situation, I argue, a case-by-case approach is needed because the legal pluralism of each postcolonial state is idiosyncratic. Notably, the postcolonial state law may refer to some religious or customary norms (which is a form of official legal pluralism); or these non-state norms may be followed by the population because the state institution is deficient or because a large part of the population simply does not follow the state legal standards (which is a form of de facto legal pluralism); or yet, certain state legal concepts or standards may reflect some custom or religious norms or practices.

More generally, the case-by-case approach allows a more nuanced (although also more complex) analysis of the (de)colonial character of current Western PIL standards. For PIL rules and judicial practices may appear colonial (ie, as imposing a Western ‘worldview’) or decolonial (ie, as granting space to ‘colonised’ worldviews) depending on the case, rule and/or judicial practice concerned. In addition, the case-by-case approach enables the consideration of the personal experience and possible vulnerable position of the parties – something that is also demanded by decoloniality. Therefore, the case-by-case approach seems appropriate to also study other questions than the application of postcolonial law discussed here, such as the limits of the Western definition of some important PIL concepts (like family and habitual residence, discussed in Susanne Gössl’s post (2), or party autonomy, of which I have shown a colonial aspect via a case study in my PhD dissertation (see here) and that is also discussed in Susanne Gössl’s post (4)).

3. The Example of X v Secretary of State for the Home Department ([2021] EWHC 355 (Fam))

To illustrate the argument, I choose a UK case that enters into a direct dialogue with Susanne Gössl’s reflection about the notion of habitual residence (see post (2)). In this case, X v Secretary of State for the Home Department ([2021] EWHC 355 (Fam)), the claimant demanded the recognition by the UK authorities of her child’s adoption in Nigeria. Under the applicable UK PIL rules, this adoption had to be recognised in the UK if it complied with the Nigerian law, ie Article 134(b) of the 2004 Child Rights Law. This article provides that the adopter and the adopted must have their residence in the same state. In the absence of any Nigerian caselaw interpreting the notion of residence under Article 134(b), the question came as to whether it had to be interpreted based on UK law or on local customary norms.

Pursuant to the relevant customary law, two circumstances should be considered that could lead to locate the claimant’s residence in Nigeria. On the one hand, the claimant had an ‘ancestral history and linkage’ with Nigeria. One the one hand, as she lived most of the time in the UK to work, she entrusted her adopted child to her mother but took full financial responsibility for the child and made all decisions relating to the child’s upbringing. Pursuant to UK law, more specifically Grace ([2009] EWCA Civ 1082), in case where someone lives in between several countries, the notion of residence had to be interpreted following a ‘flexible nuanced approach’ (para. 84(5)).

In February 2021, the UK judge recognised the adoption established in Nigeria, based on the interpretation of residence in UK law. To this end, the judge used the presumption, which is part of UK PIL, of similarity between foreign law and domestic law. Following Brownlie ([2021] UKSC 45), the judge applied the presumption because, like the UK, Nigeria is a common law system. Then, referring to Grace, the judge located the claimant’s residence in Nigeria. In this regard, she considered the claimant’s ‘close cultural and family ties’ with Nigeria, the fact that she maintained a home there for her mother and children, and the circumstance that ‘[h]er periods of time in [Nigeria] were not by chance, but regular, family focused and with a clear purpose to spent time with her children’ (para. 84(6)).

4. A PIL and Decoloniality Analysis: Opening the Floor

From a PIL and decoloniality perspective, several points can be made. Notably, from a strict legal point of view (lacking anthropological insights), the judge’s interpretation of the UK law notion of residence in this case seems flexible enough to include various, Western and non-Western, worldviews. Yet, one may question the application of the UK legal presumption. Because Nigerian state law is common law indeed, but it shares legality with customary laws and Sharia. Therefore, from a decolonial point of view, the judge could have usefully investigated the question as to whether, to interpret similar laws as the Child Rights Law, Nigerian courts consider customary law (and potentially, the judge did so (see para. 84(5)), but then it would have been welcome to mention it in the judgment). If so, she could have interpreted the notion of residence, not based on UK law, but based on the relevant local customary norms.

These case comments are made just to start a wider discussion – not only about this case but also about other cases. For, in my view, the PIL and (de)coloniality debate is a great occasion to have another, alternative, look at some rules and caselaw, and to open the floor to non-Western and/or non-PIL scholars.

Can an enforcement judgment issued by a foreign court be recognized and enforced in another jurisdiction? This is a fundamental question concerning the recognition and enforcement of foreign judgments. The answer appears to be relatively straightforward: “No”. Foreign enforcement judgments are not eligible to be recognized and enforced as they are not decisions on the merits (see in relation with the HCCH 2019 Convention, F Garcimartín and G Saumier, Explanatory Report (HCCH 2020) para. 95, p. 73;  W Hau “Judgments, Recognition, Enforcement” in M Weller et al. (eds.), The HCCH 2019 Judgments Convention: Cornerstones, Prospects, Outlooks (Hart 2023) 25). This is usually referred to as the “prohibition of double exequatur” or, following the French adage: “exequatur sur exequatur ne vaut”. This question was recently presented to the Dubai Supreme Court (DSC), and its decision in the Appeal No. 1556 of 16 January 2024 offers some useful insights into the status foreign enforcement (exequatur) decisions in the UAE.

 

I – Facts

In 2012, X (appellee) obtained a judgment of rehabilitation from the United States District Court for the Eastern District of New York ordering Y (appellant, residing and working in Dubai) to pay a certain amount of money. X later sought to enforce the American judgment in Canada (Ontario) via summary judgment procedures. In 2020, the Ontario court ordered enforcement of the American judgment, in addition to the payment of other fees and interests. The judgment was later amended by a judgment entered in 2021. X then sought enforcement of the Canadian judgment in Dubai by filing an application with the Execution Court of the Dubai Court of First Instance. The Enforcement Court issued an order declaring the Canadian judgment enforceable in Dubai. The enforcement order was later upheld on appeal. Y appealed to the DSC.

Before the DSC, Y argued that (1) the American judgment was criminal in nature, not civil; (2) the Canadian judgment was merely a summary order declaring the American judgment enforceable in Ontario; and (3) the Ontario judgment did not resolve any dispute between the parties, as it was a declaration that the American judgment was enforceable in Ontario.

 

II – Ruling

The DSC found merit in Y’s arguments. In particular, the DSC held that the Court of Appeal erred in allowing the enforcement of the Canadian judgment in Dubai despite Y’s arguments that the Canadian judgment was a summary judgment enforcing an American judgment. The Supreme Court reversed and remanded the appealed decision.

 

III – Comments

The case commented here is particularly interesting because, to the best of the author’s knowledge, it is the first case in which a UAE Supreme Court (it should be remembered that, there are four independent Supreme Courts in the UAE. For an overview, see here) has been called to rule on the issue of double exequatur. In this regard, it is remarkable that the issue of double exequatur is rarely discussed in the literature, both in the UAE and in the other Arab Middle Eastern jurisdictions. Nevertheless, it is widely accepted that a judgment a foreign court declaring enforceable a foreign judgment cannot be eligible to recognition and enforcement in other jurisdictions. (For some recent applications of this principle by some European courts, see eg. the Luxembourg Court of Appeal decision of 13 January 2021; the Court of Milan in a case rendered in February 2023. Comp. with the CJEU judgment of 7 April 2022, C?568/20, J v. H Limited. For a brief discussion on this issue in this blog, see here). This is because a judgment declaring enforceable a foreign judgment “is, by its own terms, self-limited to the issuing state’s territory, or: as a sovereign act it could not even purport to create effects in another sovereign’s territory” (Peter Hay, “Recognition of a Recognition Judgment within the European Union: “Double Exequatur” and the Public Policy Barrier” in Peter Hay et al. (eds.), Resolving International Conflicts – Liber Amicorum Tibor Várady (CEU Press, 2009) 144).

The present case highlights a possible lack of familiarity with this principle within the Dubai courts. Specifically, the lower courts overlooked the nature of the Canadian judgment and declare it enforceable in Dubai. In its appeal, the judgment debtor did not explicitly avail itself with the prohibition of double exequatur although it argued that that the Canadian judgment was “not a judgment on the merits”. The judgment debtor merely stated the Ontarion court’s judgment was a summary judgment declaring a foreign judgment of criminal rather than civil nature enforceable in Canada and not abroad .

While the Supreme Court acknowledged the merits of the judgment debtor’s arguments, its language also might suggest some hesitation or unfamiliarity with the legal issue involved. Indeed, although the Court did not dispute the judgment debtor’s assertions that the “Canadian judgment was a summary judgment declaring enforceability and an American reorganization judgment,” it reversed the appealed decision and remanded the case, stating that the judgment debtor’s arguments were likely – “if they appeared to be true” – to lead to different results.

In the author’s view, such a remand may have been unnecessary. The court could have simply declared the Ontario enforcement order unenforceable in Dubai on the basis of the “exequatur sur exequatur ne vaut” principle.

One might question the rationale behind the judgment creditor’s choice to seek the enforcement of the Canadian judgment rather than the original American judgment in this case. One might speculate that the judgment creditor sought to avoid enforcement of an order to pay a specific sum arising out of a criminal proceeding. However, it is recognized in the UAE that civil damages awarded in criminal proceedings are likely to be considered enforceable (see, eg., the Federal Supreme Court’s decision, Appeal No. 247 of November 6, 2012, regarding the enforcement of civil damages awarded by an Uzbek criminal court).

Another possible consideration is that the judgment creditor sought to increase the likelihood that its application would be granted, as Dubai courts have shown reluctance to enforce American judgments in the past (see eg., Dubai Court of Appeal, Appeal No. 717 of December 11, 2013, concerning a Nevada Court judgment; DSC, Appeal No. 517 of August 28, 2016, concerning a California court judgment). In both cases, enforcement of the American judgments was refused due to the lack of reciprocity with the United States (however, in the first case, on a later stage of the proceeding, the DSC treated the Nevada judgment as sufficient proof of the existence of the judgment creditor’s debt in a new action on the foreign judgment (DSC, Appeal No. 125/2017 of 27 April 2017). The first case is briefly introduced here).

The positive outcomes at both the first and second instance levels may lend credence to this hypothesis. In general, however, there is no inherent reason why a Canadian judgment would be treated differently in the absence of a relevant treaty between the UAE and Canada (on the challenges of enforcing foreign judgments in the UAE, particularly in Dubai, in the absence of a treaty, please see our previous posts here and here).

Willamette University College of Law and the Conflict of Laws Section of the Association of American Law Schools are hosting a SYMposium to celebrate Professor and Dean Emeritus Symeon Symeonides on May 8-9, 2024.

Professor Symeonides will retire from the Willamette University College of Law faculty in 2025. The SYMposium will celebrate both him as a person, as well as a scholar who has made major contributions in the fields of conflict of laws, comparative law, and transnational litigation, among others.

Please register at this link to join us at the Willamette University campus or virtually for this event to celebrate Professor Symeonides.

Conflict of Laws Workshop and Call for Papers

We are excited to announce that the inaugural, biennial Conflict of Laws Workshop (CLW) will be hosted by Willamette University College of Law in beautiful Salem, Oregon, on May 10, 2024.
The CLW aims to provide a forum to discuss new work in conflict of laws. The CLW welcomes work on all aspects of conflict of laws, including civil, criminal, domestic and transnational conflict of laws. We welcome all those writing and working in the field of conflict of laws to attend.

Please note that on May 8th and 9th, Willamette University College of Law will host a symposium in honor of Professor and Dean Emeritus Symeon Symeonides. CLW participants are invited to attend the symposium as well.

Those wishing to present a paper for discussion should submit a two-page abstract by March 1, 2024. Please email abstracts in Word of PDF format to roger.michalski@ou.edu and asimowitz@willamette.edu.

Logistics

The CLW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches

The Law Faculty of Humboldt University is inviting applications for a four-year PostDoc position in European law. The position is fully paid and funded by the graduate research programme DynamInt (Dynamic Integration Order) which itself is funded by the German Research Foundation (Deutsche Forschungsgemeinschaft).

The PostDoc is supposed to pursue her/his research project in the field of European Law (including European Private International Law and International Civil Procedure). She/he is also expected to interact with the group of young researchers, who all work on their dissertation projects within the thematic framework of harmonization and plurality tendencies in the EU.

The position is targeting German-speaking researchers (in contrast to the international PostDoc positions advertised last week). More information is available here.

 

 

The graduate resesarch programme DynamInt (Dynamic Integration Order) of Humboldt University is inviting international PostDocs to apply for a short-term (3 to 6 months), fully paid research stay in Berlin.

The PostDoc is supposed to pursue her/his research project in the field of European Law. She/he is also expected to interact with the group of young researchers, who all work on their dissertation projects within
the  thematic framework of harmonization and plurality tendencies in the
EU.

More information are available here.

Dans une nouvelle affaire mettant en cause l’entreprise d’assurance de droit danois Alpha Insurance, la Cour de cassation confirme ses solutions en matière d’interruption de l’instance en cours en France en cas d’ouverture d’une procédure d’insolvabilité dans un autre État membre tout en dispensant d’utiles enseignements quant à l’office du juge en matière de détermination de la teneur du droit étranger désigné applicable.

Sur la boutique Dalloz Droit et pratique des procédures collectives 2023/2024 Voir la boutique Dalloz

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The University of Antwerp has opened two vacancies for PhD research related to private international law.

The first covers inter alia EU private international law, and will be supervised by prof. dr. Johan Meeusen and prof. dr. Mathieu Leloup. The four-year scholarship is sponsored by the Research Foundation – Flanders (FWO). The candidate will write a PhD on mutual trust and rule of law requirements in the field of judicial cooperation in civil and criminal matters. The researcher will have to examine, inter alia, the enforcement of the European Union’s rule of law requirements by courts applying EU private international law instruments. All information on this position, and how to apply, can be found on the University of Antwerp’s website.

The second is on the cusp of private and public international law and will be supervised by Thalia Kruger. This position, also for four years, is funded by the Law Faculty. The research will be about international contracts in the context of international treaties on water. The highland water project (Lesotho and South Africa) is a possible approach. More information and requirements are also available on the website of the University of Antwerp.

 

The latest issue of the Dutch Journal on Private International Law (NIPR) has just been published

NIPR 2023 issue 4

 

EDITORIAL

I. Sumner, The next stops on the European international family law train / p. 569-571

Abstract
The European legislature is not yet finished with the Europeanisation of private international family law. This editorial briefly introduces two new proposals, namely the Proposal for a European Parentage Regulation and the Proposal for a European Adult Protection Regulation.

ARTICLES

B. van Houtert, Het Haags Vonnissenverdrag: een game changer in Nederland? Een rechtsvergelijkende analyse tussen het verdrag en het commune IPR / p. 573-596

Abstract
On 1 September 2023, the 2019 Hague Judgments Convention (HJC) entered into force in the Netherlands. This article examines whether the HJC can be considered as a game changer in the Netherlands. Therefore, a legal comparison has been made between the HJC and Dutch Private International Law (PIL) on the recognition and enforcement of non-EU judgments in civil and commercial matters. This article shows that the HJC can promote the recognition and enforcement of judgments rendered by non-EU countries in the Netherlands mainly because of the facultative nature of the grounds for refusal in Article 7 HJC. Furthermore, the complementary effect of Dutch PIL on the basis of Article 15 HJC facilitates recognition as some indirect grounds of jurisdiction are broader or less stringent, and some grounds are lacking in Article 5(1) HJC. Compared to the uncodified Dutch PIL, the HJC provides procedural advantages as well as legal certainty that is beneficial to cross-border trade, mobility and dispute resolution. Moreover, preserving the foreign judgment, instead of replacement by a Dutch judgment, serves to respect the sovereignty of states as well as international comity. Despite the limited scope of application, there is an added value of the HJC in the Netherlands because of its possible application by analogy in the Dutch courts, as a Supreme Court’s ruling shows. The Convention can also be an inspiration for the future codification of the Dutch PIL on the recognition and enforcement of foreign judgments regarding civil matters. Furthermore, the application of the Convention by analogy will contribute to international legal harmony. Based on the aforementioned (potential) benefits and added value of the HJC, this article concludes that this Convention can be considered as a game changer in the Netherlands.

K.J. Krzeminski, Te goed van vertrouwen? Een kanttekening bij het advies van de Staatscommissie voor het Internationaal Privaatrecht tot herziening van artikel 431 Rv / p. 597-618

Abstract
In February 2023, the Dutch Standing Government Committee for Private International Law rendered its advice on the possible revision of Article 431 Dutch Code of Civil Proceedings (DCCP). This statutory provision concerns the recognition and enforcement of foreign court judgments in civil matters to which no enforcement treaty or EU regulation applies. While paragraph 1 of Article 431 DCCP prohibits the enforcement of such foreign court judgments absent an exequatur regime, paragraph 2 opens up the possibility for new proceedings before the Dutch courts. In such proceedings, the Dutch Courts are free to grant authority to the foreign court’s substantive findings, provided that the foreign judgment meets four universal recognition requirements. The Standing Government Committee proposes to fundamentally alter the system under Article 431 DCCP, by inter alia introducing automatic recognition of all foreign court judgments in the Netherlands. In this article, the concept of and the justification for such an automatic recognition are critically reviewed.

B.P.B. Sequeira, The applicable law to business-related human rights torts under the Rome II Regulation / p. 619-640

Abstract
As the momentum for corporate liability for human rights abuses grows, and as corporations are being increasingly brought to justice for human rights harms that they have caused or contributed to in their global value chains through civil legal action based on the law of torts, access to a remedy remains challenging. Indeed, accountability and proper redress rarely occur, namely due to hurdles such as establishing the law that is applicable law to the proceedings. This article aims to analyse the conflict-of-laws rules provided for under the Rome II Regulation, which determines the applicable law to business and human rights tort actions brought before EU Courts against European parent or lead corporations. In particular, we will focus on their solutions and impact on access to a remedy for victims of corporate human rights abuses, reflecting on the need to adapt these conflict rules or to come up with new solutions to ensure that European corporations are held liable for human rights harms taking place in their value chains in a third country territory.

CASE LAW

M.H. ten Wolde, Over de grenzen van de Europese Erfrechtverklaring. HvJ EU 9 maart 2023, ECLI:EU:C:2023:184, NIPR 2023-753 (R. J. R./Registr? centras V?) / p. 641-648

Abstract
A European Certificate of Succession issued in one Member State proves in another Member State that the person named therein as heir possesses that capacity and may exercise the rights and powers listed in the certificate. On the basis of the European Certificate of Succession, inter alia, foreign property can be registered in the name of the relevant heir. In the Lithuanian case C-354/21 R. J. R. v Registr? centras V?, the question arose whether the receiving country may impose additional requirements for such registration when there is only one heir. The Advocate General answered this question differently from the European Court of Justice. Which view is to be preferred?

SYMPOSIUM REPORT

K. de Bel, Verslag symposium ‘Grootschalige (internationale) schadeclaims in het strafproces: beste praktijken en lessen uit het MH 17 proces’ / p. 649-662

Abstract
On 17 November 2022, the District Court of The Hague delivered its final verdict in the criminal case against those involved in the downing of flight MH17 over Ukraine. This case was unique in many ways: because of its political and social implications, the large number of victims and its international aspects. The huge number and the international nature of the civil claims for damages exposed several practical bottlenecks and legal obstacles that arise when civil claims are joined to criminal proceedings. These obstacles and bottlenecks, which all process actors had to address, were the focus of the symposium ‘Large-scale (international) civil claims for damages in the criminal process: best practices and questions for the legislator based on the MH17 trial’ that took place on 10 October 2023. A summary of the presentations and discussions is provided in this article.

 

Bundesrepublik Deutschland (Effet d’une décision d’octroi du statut de réfugié)
Espace de liberté, sécurité et justice
Avocate générale Medina : un État membre n’est pas tenu de reconnaître le statut de réfugié accordé dans un autre État membre