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Conventions & Instruments

On 6 October 2023, Rwanda deposited its instrument of accession to the HCCH 1961 Apostille Convention and applied to become a Member of the HCCH. Following a six-month voting period, and provided a majority of votes have been cast in its favour, Rwanda will be invited to become a Member by accepting the Statute of the HCCH. With the accession of Rwanda, the 1961 Apostille Convention now has 126 Contracting Parties. It will enter into force for Rwanda on 5 June 2024. More information is available here.

 

Meetings & Events

From 2 to 4 October 2023, the second meeting of the HCCH-UNIDROIT Joint Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens was held at the premises of the Secretariat of the International Institute for the Unification of Private Law (UNIDROIT) in Rome, in hybrid format. More information is available here.

On 5 October 2023, the Permanent Bureau of the HCCH organised CODIFI Edition 2023 – CBDCs, an online colloquium on selected topics related to the HCCH’s CBDCs Project, established in March 2023 to study the private international law implications of Central Bank Digital Currencies. More information is available here, and recordings of all the sessions are available here.

On 11 October 2023, the Permanent Bureau of the HCCH participated in the APEC Workshop on Secured Transaction Reform, organised by APEC, the United States, and Rikkyo University. During the workshop, the HCCH’s Deputy Secretary General, Dr Gérardine Goh Escolar, spoke about the private international law issues relevant to secured transactions reform, including the HCCH’s instruments and projects that may impact on choice-of-law rules relating to secured transactions.

From 10 to 17 October 2023, the Eighth Meeting of the Special Commission on the Practical Operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention was held in The Hague. The meeting was attended by over 470 delegates, in person and via videoconference, representing HCCH Members, non-Member Contracting Parties, and Observers. The meeting resulted in the adoption of 103 Conclusions & Recommendations providing guidance to (prospective) Contracting Parties on a wide range of issues relating to the implementation and practical operation of this Convention. More information is available here.

On 14 October 2023, Members of the International Hague Network of Judges (IHNJ) from over 30 jurisdictions met in The Hague on occasion of the 25th anniversary of the IHNJ. Established in 1998, the IHNJ facilitates international cooperation and communication between judges on the cross-border protection of children. More information is available here.

 

Publications & Documentation

On 3 October 2023, the Permanent Bureau of the HCCH announced the publication of the Proceedings of the Twenty-Second Session. The Twenty-Second Session of the HCCH, held from 18 June to 2 July 2019, resulted in the adoption of the 2019 Judgments Convention. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

The second and the third issue of 2023 of the Rivista di diritto internazionale privato e processuale (RDIPP) are out.

The second issue features three contributions.

Yuriko Haga, Avatars, Personalities in the Metaverse: Introductory Analysis on Conflict-of-Laws

When people perform various activities in the metaverse, another world on the Internet, they make avatars as their “proxy”, representing their personality. However, the connection between an avatar and its user is often unclear. In fact, avatars do not necessarily resemble to their user’s figure or face because people can decide its appearance at their disposal. The first question thus arises as to whether the attack on an avatar can be assimilated to an attack on the personality of a user, a person in real world. An avatar should be deemed part of the online personality of its user, and, considering the existing theory of personality rights, it is not completely separate from the person in the real world. Therefore, an attack brought against an avatar can deemed more or less an infringement against the user’s personality. The second question is then how to select the applicable law to such cases. An infringement of personality rights in the metaverse is by nature “international” because users can connect to that virtual “world” from all corners of the world. This leads to a difficulty in determining the place that the connecting factor designates. This paper examines the applicability of actual Japanese conflict-of-laws rule to issues occurring in the metaverse to show its boundary. The traditional theory posits to apply national laws to resolve legal issues, but the world of metaverse is often governed by rules of its own. It follows that the conflict-of-laws theory should now consider the applicability of the rules of other communities, such as the metaverse..

Pietro Franzina, La Cassazione muta indirizzo su Incoterms e luogo della consegna dei beni (The Court of Cassation Changes Approach on Incoterms and the Place of Delivery of the Goods)

The ruling by the Joint Chambers of the Italian Court of Cassation examined in this paper (Order No 11346 of 2 May 2023) innovates the Court’s case law regarding the relevance of Incoterms to the determination of the place of delivery of goods for the purposes of the rule of special jurisdiction in Art 7 No 1 of Regulation EU No 1215/2012 (Brussels I-bis). The Court of Cassation has eventually aligned its views on this issue to the interpretation provided by the Court of Justice in Electrosteel, for it acknowledged that the place of delivery must be determined, as a rule, in accordance with the agreement of the parties, whereas, on previous occasions, the Court of Cassation had rather expressed the opinion that the place of delivery normally coincides with the place of the final destination of the goods, and that only by way of exception (and subject to strict standards) the parties should be permitted to agree on a different place of delivery. The Joint Chambers of the Court of Cassation have also asserted, again realigning their approach to that of the Court of Justice, that the Incoterm «EXW» is not merely concerned with the allocation between the parties of the costs and risks of the transaction, but also entails an agreement as to the place of delivery. The ruling, the paper contends, must be welcomed, since it corrects a questionable approach that the Court of Cassation has followed for a long time. Nevertheless, the decision is not entirely convincing. One reason for criticism regards the fact that, like previous rulings of the Court of Cassation, the decision fails to properly distinguish between agreements on the place of performance and choice-of-court agreements. As observed by the Court of Justice in Zelger, only the latter are submitted to special conditions of form, imposed by the Regulation. For their part, agreements on the place of performance need to be concluded in writing only if the law applicable to the contract so provides, which is relatively uncommon. The Court of Cassation, it is suggested, should reassess the formalistic approach it has followed regarding Incoterms, if it is to fully comply with the indications of the Court of Justice.

Federica Sartori, Sull’ammissibilità di un’eterointegrazione tra legge straniera e lex fori in materia di risarcimento del danno non patrimoniale (On the Admissibility of Hetero-Integration between Foreign Law and Lex Fori in Matters of Compensation for Non-Pecuniary Damage)

This article focuses on an order issued by the Italian Supreme Court over the interpretative question about the possible integration of the foreign applicable law with the lex fori for the compensation of non-pecuniary damage. Through the analysis of opposing legal reasonings, this article examines the legal and jurisprudential bases of each thesis, leaning towards a negative solution in the present case according to the principle of the global application of foreign law, while awaiting for the Court to give its final decision in a public hearing on this relevant issue.

Two contributions appear in the third issue.

Pietro Franzina, Un nuovo diritto internazionale privato della protezione degli adulti: le proposte della Commissione europea e gli sviluppi attesi in Italia (A New Private International Law on the Protection of Adults: The European Commission’s Proposals and the Developments Anticipated in Italy)

The European Commission has presented on 31 May 2023 two proposals aimed to enhance, in cross-border situations, the protection of adults who are not in a position to protect their interests due to an impairment or the insufficiency of their personal faculties. One proposal is for a Council decision that would authorise the Member States to ratify, in the interest of the Union, the Hague Convention of 13 January 2000 on the international protection of adults, if they have not done so yet. The decision, if adopted, would turn the Convention into the basic private international law regime in this area, common to all Member States. The other proposal is for a regulation the purpose of which is to improve, in the relationships between the Member States, the cooperation ensured by the Convention. The paper illustrates the objects of the two proposals and the steps that led to their presentation. The key provisions of the Hague Convention are examined, as well as the solutions envisaged in the proposed regulation to improve the functioning of the Convention. The paper also deals with the bill, drafted by the Italian Government and submitted to the Italian Parliament a few days before the Commission’s proposals were presented, to prepare for the ratification of the Convention by Italy and provide for its implementation in the domestic legal order. The bill, it is argued, requires extensive reconsideration as far as the domestic implementation of the Convention is concerned. Alternative proposals are discussed in the paper in this regard.

Riccardo Rossi, Reflections on Choice-of-Court Agreements in Favour of Third States under Regulation (EU) No 1215/2012

The article deals with the absence of a provision addressing choice-of-court agreements in favour of third States under Regulation (EU) No 1215/2012 (“Brussels Ia Regulation”). The CJ case law and the present structure of the Regulation leave no room for the long-debated argument of effet réflexe. In light of Arts 33 and 34 (and Recital No 24), enforcing such agreements is now limited to the strict respect of the priority rule in the trans-European dimension. The first part of the article deals with the consequences of such a scheme. Namely, forum running, possible interferences with the free circulation of judgments within the EU pursuant to Art 45(1)(d), and inconsistencies with the 2019 Hague Convention. In its second part, from a de lege ferenda perspective, the article examines the most delicate issues raised by the need for introducing a new provision enforcing jurisdiction agreements in favour of third States: from the jurisdiction over the validity of such agreements, to the applicable law, to the weight to be given to the overriding mandatory provisions of the forum. Finally, it proposes a draft of two new provisions to be implemented in the presently-discussed review of the Brussels Ia Regulation.

Gustavo Cerqueira and Hugues Fulchiron have recently edited a new volume (in French) on the appliation of foreign law in the draft code of French private international law (Le droit étranger dans le projet de code de droit international privé – Connaissance et applicationdroit). They have kindly provided us with the following English summary:

On the occasion of the public consultation on the draft code of French private international law launched by the Ministry of Justice on 8 June 2022, the Société de législation comparée organized a debate in Paris on 13 September of the same year on the provisions relating to the knowledge and application of foreign law – Articles 13 and 14 of the draft.

Between consolidation of case law, methodological clarification, new procedural perspectives and recourse to institutional cooperation, the choices made by the drafters of the proposed Code offered a great opportunity for collective reflection, bringing together the key players in the field. This reflection was all the timelier given that these provisions were not given particular attention either in the explanatory memorandum to the draft code or in the commentaries on the draft code by academic writers.

The purpose of this book is therefore to bring to public debate the most salient issues relating to this often-neglected chapter of conflict of laws, while at the same time putting forward singular proposals to ensure that the content of foreign law in France is established as accurate as possible.

In recent years, the Société de législation comparée has taken an interest in the issue of understanding and applying foreign law. Through this new initiative, the Société works to enhance French private international law, in line with the goals set out in Article 1 of its Articles of Association.

Authors: Jean-Pierre Ancel, Gustavo Cerqueira, Nicolas Cornu Thénard, Sophie Couvez, Dominique Foussard, Hugues Fulchiron, Lukas Heckendorn Urscheler, Alice Meier-Bourdeau, Marie-Laure Niboyet, Sylvaine Poillot-Peruzzetto, Cyril Roth, Bernard Stirn.

Gustavo Cerqueira, Nicolas Nord, and Cyril Nourissat have recently edited a new volume on the “Certificat de coutume – Pratiques en droit des affaires internationales” (in French). The editors have kindly provided us with an English translation of the blurb available on the publisher’s website:

Statement or written certificate on the content of a foreign law rule, the Certificat de coutume is subject to a heterogeneous practice both in terms of its establishment and its processing Ignored by many jurists, its reliability is often called into question due to a double insufficiency that it may conceal: about the law attested when it is issued by a public authority, about the impartiality when a private person issues it.

However, these criticisms are not insurmountable. In addition to the combination with other means of establishing the content of the foreign law rule in question, the Certificat de coutume does not avoid obliterating any contradictory discussion and the freedom of interpretation of the authority before which it is produced. The liabilities associated with the Certificat de coutume, whether that of the drafter, the counsel of the parties or the notary using such a certificate, constitute a formidable safeguard against tendentious approaches. Above all, we must not ignore the virtues of empiricism, which could – in these times of debates regarding a future codification of French private international law – reveal important and good practices to be considered de lege ferenda.

The book contains the reflections of several experts on the practice –  little known to the public  – of the Certificat de costume in international affairs at a symposium held on 12 April 2022 at the Conseil supérieur du notariat français. The real added value of this book therefore lies in the desire to lift the veil on the Certificat de coutume, which currently constitutes a blind spot in private international law. Its name is certainly known to all, but its legal system still appears to be embryonic. The ambition of the symposium is to do constructive work and to offer concrete proposals, fruit of a collective reflection, bringing together the essential players in this field.

This book aims to be constructive and to come up with concrete proposals, the fruit of collective reflection, bringing together the key players in the field.

Authors: Bertrand Ancel, Oliver Berg, Marc Cagniart, Gustavo Cerqueira, Louis Degos, Karlo Fonseca Tinoco, Jacques-Alexandre Genet, Giulio-Cesare Giorgini, Kevin Magnier-Merran, Daniel Mainguy, Pierre Jean Meyssan, Pierre Mousseron, Nicolas Nord, Cyril Nourissat, Sylvaine Poillot-Peruzzetto, Pierre Tarrade, Jean-Luc Vallens, Pascal de Vareilles-Sommières.

The Centre for Private international Law of the University of Aberdeen’s Law School is continuing this year its series on Crossroads in Private International Law.

The aim of the series is to explore the intersection between Private International Law and substantive areas of law, with the outcome of featuring cutting edge interdisciplinary research carried out by the Centre members.

The format is hybrid, with presentations and room for discussion.  Find out more and register for the individual events here; and sign up for selected seminars of for the entire series here.

Claimants suing multinational enterprises for business-related human rights abuses have recently had a good run in England. The Supreme Court cleared the jurisdictional hurdles for the claimants in Vedanta and Okpabi. This was followed by the Court of Appeal judgment in Begum and the High Court judgment in Josiya, which opened the door for value chain litigation. In Fundão dam, the Court of Appeal allowed a claim brought by over 200,000 Brazilians in the aftermath of the collapse of a dam in Brazil to proceed (meanwhile, the number of claimants has grown to 700,000, who are seeking £36bn in damages). And in Bravo, the High Court held that the law of a civil law country (Colombia) did not preclude the possibility of liability on the part of a parent company registered in England for the activities of its Colombian subsidiary. Although in Jallah (here and here), the courts held that a claim following an oil spill off the Nigerian coast was time-barred.

Business and human rights cases have even made their way to Scotland. The Court of Session (Outer House) allowed a claim brought by over 1,000 Kenyan tea pickers against a company registered in Scotland to proceed in Campbell v James Finlay (Kenya) Ltd.

Many other business and human rights cases, some of them quite innovative, are currently pending in English courts. All of this has cemented London’s reputation as a (and probably the) global centre for business and human rights litigation.

Ever since Brexit, however, there has been a sense that this type of litigation is running on borrowed time. The UK’s withdrawal from the Brussels system has expanded the use of forum non conveniens and, consequently, has significantly raised the risk of claims failing on jurisdictional grounds.

Limbu v Dyson Technology Ltd, in which the High Court (Deputy High Court Judge Sheldon KC) handed down its judgment on 19 October 2023, is the first post-Brexit case where this risk has materialised.

Facts

Dyson is a multinational enterprise specialising in designing and manufacturing premium household appliances. Its founder and chairman, Sir James Dyson, was a prominent Brexiteer. That is why he caused quite a stir when he announced in early 2019 that his company would move its headquarters to Singapore, although he stated that this move was ‘not linked to the departure from EU’. Dyson’s operational headquarters is now in Singapore, but its registered headquarters is still in England. Dyson has an elaborate value chain. Many of its suppliers are based in East Asia.

Two of Dyson’s suppliers are the Malaysian companies ATA Industrial (M) Sdn Bhd and Jabco Filter System Sdn Bhd. The claimants, who are migrant workers from Bangladesh and Nepal, were employed by the suppliers in their Malaysian factories. They allege that they were victims of various human rights abuses, including violations of labour standards by the suppliers and violations of human rights directly committed by the Malaysian police in which the suppliers were complicit. The claimants commenced proceedings against three companies that are part of the Dyson group, two of which are domiciled in England and one in Malaysia. No proceedings were commenced against the suppliers and the Malaysian police.

The claim was brought in negligence and unjust enrichment. Negligence is a well-known legal basis for remedying business-related human rights violations. The claim in this case builds on Begum and Josiya. The defendants’ duty of care is claimed to have originated from their control over the manufacturing operations and the working conditions at the suppliers’ factories, and out of their public declarations – in mandatory policies and standards – regarding upholding human rights in their value chain. Unjust enrichment is a relatively novel legal basis in this context. The essence of the unjust enrichment claim is that the defendants obtained an unjust benefit as a result of claimants’ circumstances. The claim was brought on 27 May 2022, which is well after the Brexit transition period ended on 31 December 2020. The Brussels I bis Regulation, therefore, did not apply.

The question before the court was one of jurisdiction. The court had jurisdiction over the English companies on the basis of their presence in England. The English companies, however, asked the court to stay the proceedings on the basis of forum non conveniens. The claimants sought permission to serve the claim form on the Malaysian company out of the jurisdiction. The defendants had not made an application to strike out the claim, nor had they made an application for summary judgment. The court, therefore, assumed that the claim was arguable and had a reasonable prospect of success. The claimants relied on the necessary and proper party jurisdictional gateway in relation to the Malaysian company. But was England the proper place in which to bring the claim? The Malaysian company sought to set aside the service of the claim form on the basis that England was not the forum conveniens.

The defendants made a number of undertakings to the court as to how they would conduct the proceedings if their application succeeded and the claim was brought in Malaysia. In essence, they undertook to submit to the jurisdiction of the Malaysian courts, to assist the claimants with some of the disbursements and costs, to agree to remote attendance at a hearing and the trial in Malaysia, and not to challenge the lawfulness of any success fee arrangement between the claimants and their Malaysian lawyers.

Judgment

The jurisdictional question was about forum non conveniens. Referring to Spiliada, the court said that the question had to be addressed in two stages. First, was England or Malaysia the natural forum for the litigation? Second, if Malaysia was the natural forum, where there any special circumstances by reason of which justice requires the trial to take place in England? In other words, was there a real risk, based on cogent evidence, that substantial justice would not be obtainable in Malaysia?

The court held that Malaysia was indeed the natural forum. The following factors in particular pointed to this conclusion: Malaysian law applied and the case raised novel points of law; and Malaysia was the centre of gravity of the case due to the harm and the underlying mistreatment occurring there. Interestingly, the availability of remote hearings and communication technology meant that the location of parties and witnesses was not regarded by the court as a particularly important factor.

The court then proceeded to Stage 2. It held that there was no reason for the trial to occur in England. The court found no cogent evidence that: migrant workers had no access to justice in Malaysia; there were no suitably qualified lawyers with necessary expertise who could team up in Malaysia; the proceedings in Malaysia would take too long; the disbursements to be paid by the claimants in Malaysia would be significant; the claimants could not find representation in Malaysia; the defendants or their lawyers would act outside the law, unethically or unprofessionally in Malaysia; it was inappropriate to rely on the defendants’ undertakings; the gaps in funding in Malaysia could not be filled by NGOs; and that partial contingency fee arrangements were unlawful or impracticable. In other words, there was no cogent evidence that the claimants would not obtain substantial justice in Malaysia.

Comment

Dyson is significant because it illustrates the effects of Brexit on business and human rights litigation in England. The combination of general jurisdiction under Brussels I bis and the CJEU’s judgment in Owusu no longer offers a safe jurisdictional haven for victims of business-related human rights abuses. It is clear from Dyson and the cases cited above that the natural forum is almost always going to be in the country where abuses and direct damage occur. There are cases, like Vedanta, where it is possible to prove that substantial justice cannot be obtained in the natural foreign forum. But, as Dyson shows, achieving this is difficult. Many alleged human rights abusers will benefit from this and, thus, collect a handsome ‘Brexit dividend’.

Nevertheless, Dyson has a silver lining. The court assumed that the claim was arguable and had a reasonable prospect of success because the defendants had not made an application to strike out the claim, nor had they made an application for summary judgment (see [18]). The judge reiterated, at [141], that it was reasonable to assume that the claimants had good prospects of success in their claims and would obtain substantial damages if successful. Furthermore, the claimants are likely to appeal and it is not inconceivable that the Court of Appeal might disagree with the judge on the forum non conveniens issue.

In cooperation with the Department of Law, Economics and Cultures of the University of Insubria (Italy), the Law Faculty of the University of Murcia (Spain) and the Law Faculty of the Jagiellonian University in Kraków (Poland), the European Association for Private International Law (EAPIL) has created a Winter School in European Private International Law.

The School’s inaugural session will take place from 12 to 16 February 2024 at the University of Insubria, in the cloister of the Basilica di Sant’Abbondio in Como, Italy. It will dedicated to the topic of ‘Personal Status and Family Relationships’. More information on the programme, which has been put together by Silvia Marino (University of Insubria), Javier Carrascosa González (University of Murcia), and Anna Wysocka-Bar (Jagiellonian University in Kraków), can be found on the official flyer. More information on the registration process can also be found here.

The organisers are also offering a teaser seminar on 4 December 2023, at 6pm (Italian time), which can be joined here.

The Roma Tre University and the Catholic University of the Sacred Heart have jointly organised a conference titled The Italian Scholars and The Hague Academy of International Law – A retrospective on the occasion of the Academy’s Centennial Anniversary, under the patronage of the Italian Ministry of Foreign Affairs and the Hague Academy itself.

The conference, due to take place on 30 November 2023 in Milan, at the Catholic University of the Sacred Heart, will discuss the contribution provided by Italian scholars to the development of both public and private international law through courses delivered at the Academy since 1923.

A final roundtable will be devoted to the challenges that face, today, those teaching and researching public and private international law, including the law of international arbitration.

Speakers include: Giulio Bartolini, Tullio Treves, Luca Radicati di Brozolo, Robert Kolb, Sergio Marchisio, Marina Castellaneta, Francesco Salerno, Sara Tonolo, Pasquale De Sena, Beatrice Bonafè, Annamaria Viterbo, Paolo Palchetti, Chiara Tuo, Giuseppe Nesi, Jean-Marc Thouvenin, Attila Tanzi, Giuditta Cordero-Moss, Massimo Benedettelli, and Verónica Ruiz Abou-Nigm.

A detailed programme can be found here.

The working languages will be English, French and Italian, with Italian presentations being simultaneously translated into English.

Attendance is on-site only. Prior registration is required through the form available here.

Written by Kamakshi Puri[1]

Arbitrability is a manifestation of public policy of a state. Each state under its national laws is empowered to restrict or limit the matters that can be referred to and resolved by arbitration. There is no international consensus on the matters that are arbitrable. Arbitrability is therefore one of the issues where contractual and jurisdictional natures of international commercial arbitration meet head on.

When contracting parties choose arbitration as their dispute resolution mechanism, they freely choose several different laws that would apply in case of disputes arising under the contract. This includes (i) the law that is applicable to the merits of the dispute, (ii) the institutional rules that govern the conduct of the arbitration, (iii) law that governs the arbitration agreement, including its interpretation, generally referred to as the ‘proper law of the arbitration agreement’. Similarly, contracting parties are free to choose the court that would exercise supervisory jurisdiction over such arbitration, such forum being the ‘seat’ of arbitration.

Since there is no global consensus on the matters that are arbitrable, and laws of multiple states simultaneously apply to an arbitration, in recent years, interesting questions surrounding arbitrability have presented themselves before courts adjudicating cross-border disputes. One such issue came up before the Singapore High Court in the Westbridge Ventures II v Anupam Mittal, succinctly articulated by the General Court as follows:

 

“which system of law governs the issue of determining subject matter arbitrability at the pre-award stage? Is it the law of the seat or the proper law of the arbitration agreement?”

 

In this piece, I will analyze the varied views taken by the General Court at Singapore (“SGHC”), Singapore Court of Appeal (“SGCA”) and the Bombay High Court (“BHC”) on the issue of the law(s) that would govern the arbitrability of the disputes in international commercial disputes.

The Westbridge Ventures-Anupam Mittal dispute began in 2021 when Mittal approached the National Company Law Tribunal in Mumbai (“NCLT Mumbai”) alleging acts of minority oppression and mismanagement of the company, People Interactive (India) Private Limited, by the majority shareholder, Westbridge Ventures. In response to the NCLT proceedings, Westbridge Ventures approached the Singapore High Court for grant of permanent anti-suit injunction against Mittal, relying on the arbitration agreement forming part of the Shareholders’ Agreement between the suit parties. Since 2021, the parties have successfully proceeded against one another before various courts in Singapore and India for grant of extraordinary remedies available to international commercial litigants viz anti-suit injunctions, anti-enforcement injunctions and anti-arbitration injunctions.

 

Singapore General Court Decision on Pre-award Arbitrability

 

Oppression and mismanagement claims are arbitrable under Singapore law but expressly beyond the scope of arbitration under Indian law. To determine whether proceedings before the NCLT were in teeth of the arbitration agreement, the court had to determine if the disputes raised in the NCLT proceedings were arbitrable under the applicable law. Thus, the question arose as to the law which the court ought to apply to determine arbitrability.

At the outset, the SGHC noted that the issue of arbitrability was relevant at both initial and terminal stages. While at the initial stage, non-arbitrable subject matter rendered arbitration agreements inoperative or incapable of being performed, at the terminal stage, non-arbitrability rendered the award liable to be set aside or refused enforcement. Since at the post-award stage, arbitrability would be determined by the enforcing court applying their own public policy, the lacuna in the law was limited to the issue of subject matter arbitrability at the pre-award stage.

Upon detailed consideration, the SGHC concluded that it was the law of the seat that would determine the issue of subject matter arbitrability at the pre-award. The court reasoned its decision broadly on the following grounds:

• Contracts are a manifestation of the party autonomy principle. States being asked to give effect to a contract ought to respect party autonomy but for very limited grounds, such as public policy considerations. Power of the seat court to limit the arbitral tribunal’s jurisdiction, and consequently affect party autonomy, ought to be limited to necessary constraints posed by such seat State’s public policy;
• Since seat courts their own law at the post-award stage (in setting-aside and enforcement proceedings), it would be a legal anomaly for the same court to rely on different systems of law to determine subject-matter arbitrability at pre and post-award stages. This could also result in a situation where a subject matter, being arbitrable under the law of the arbitration agreement despite being non-arbitrable under the law of the seat, is first referred to arbitration however later the resulting award is set aside;
• Courts should, as a general position, apply their own law unless specifically directed by law to another legal system. Public interest and state policy favoured the promotion of International Commercial Arbitration. It was neither necessary nor desirable for a court to give effect to a foreign non-arbitrability rule to limit an otherwise valid arbitration agreement. Arbitrability was therefore a matter to be governed by national courts by applying domestic law.

Interestingly, despite noting that arbitrability was an issue of jurisdiction and that non-arbitrability made an agreement incapable of being performed, the SGHC distinguished the scenarios where a party’s challenge was based on arbitrability and where parties challenged the formation, existence, and validity of an agreement. The court held that for the former, the law of seat would apply, however, for the latter, the proper law of arbitration agreement could apply.

Accordingly, the SGHC held that oppression and mismanagement disputes were arbitrable under the law of the seat, i.e., in Singapore law, the arbitral tribunal had exclusive jurisdiction to try the disputes raised by the parties. An anti-suit injunction was granted against the NCLT proceedings relying on the arbitration agreement between the parties.

 

Appeal before the Singapore Court of Appeal  

 

Mittal appealed the SGHC judgment before the Singapore Court of Appeal. The first question of law before the SGCA was whether the SGHC was correct in their holding that to determine subject matter arbitrability, lex fori (i.e., the law of the court hearing the matter) would apply over the proper law of the arbitration agreement. Considering the significance of the issue, Professor Darius Chan was appointed as amicus curie to assist the court.

Professor Chan retained the view that lex fori ought to be the law applicable to the question of arbitrability. This was for reasons of predictability and certainty, which weighed on the minds of the drafters of the UNCITRAL Model Law. Although the Model Law was silent on the question of pre-award arbitrability since it was clear on the law to be applied post-award, a harmonious reading of the law was preferable. The courts ought to generally apply lex fori at both, pre and post-award stages.

The SGCA disagreed. It held that the essence of the principle of arbitrability was public policy. In discussing issues of predictability, certainty, and congruence between law to be applied at pre and post-arbitral stages, the parties had lost sight of the core issue of public policy in considering the question of arbitrability. Public policy of which state? – it unequivocally held that it was public policy derived from the law governing the arbitration agreement. Where a dispute could not proceed to arbitration under the foreign law that governed the arbitration agreement for being contrary to the foreign public policy, the seat court ought to give effect to such non-arbitrability.

The SGCA relied on the same concepts as the General Court albeit to come to the opposite conclusion:

• Arbitration agreements are the manifestation of party consensus. When parties expressly adopt a system of law to govern their arbitration agreement, public policy enshrined under such law ought to be given effect. Further, if arbitrability is a question of jurisdiction, then it necessarily follows that the law of the agreement from which jurisdiction of the tribunal is derived be considered first.
• As regards the potential anomaly with the seat court applying different laws pre and post-award, SGCA held that non-arbitrability under the law of the seat would be an additional obstacle to the enforcement of the arbitration agreement. This could, however, not go to say that the law of the seat would be the only law to govern arbitrability. Accordingly, the SGCA upheld a composite approach:

“55. Accordingly, it is our view that the arbitrability of a dispute is, in the first instance, determined by the law that governs the arbitration agreement. … where a dispute may be arbitrable under the law of the arbitration agreement but Singapore law as the law of the seat considers that dispute to be non-arbitrable, the arbitration would not be able to proceed. In both cases, it would be contrary to public policy to permit such an arbitration to take place. Prof Chan refers to this as the “composite” approach.”

• On the state policy to encourage International Commercial Arbitration, the court noted that principles of comity, requiring the court to respect public policy under foreign undoubtedly outweighed the policy to encourage arbitration. This was despite Prof. Chan’s concerns that expanding the grounds for refusal of reference of arbitration was “unnecessarily restrictive and not in line with the general tendency to favor arbitration”.

 

On facts, however, the court noted that the law of the arbitration agreement was in fact Singapore law itself, and Indian law was but the law of the substantive contract. Accordingly, arbitrability had to be determined under Singapore law and the appeal was dismissed.

 

Anti-Enforcement Injunction by the Bombay High Court

 

Mittal approached the Bombay High Court seeking an anti-enforcement injunction against the SGHC decision, and for a declaration that NCLT Mumbai was the only forum competent to hear oppression and mismanagement claims raised by him.

The BHC did not directly consider the issue of the law governing arbitrability, however, the indirect effect of the anti-enforcement injunction was the court determining the same. The BHC’s decision reasoned as follows – the NCLT had the exclusive jurisdiction to try oppression and mismanagement disputes in India, such disputes were thus non-arbitrable under Indian law. The enforcement of any ensuing arbitral award would be subject to the Indian Arbitration Act. An award on oppression and mismanagement disputes would be contrary to the public policy of India. Enforcement of an arbitral award in India on such issues would be an impossibility – “What good was an award that could never be enforced?”. The court noted that allowing arbitration in a case where the resulting award would be a nullity would leave the plaintiff remediless, and deny him access to justice. An anti-enforcement injunction was granted.

The BHC’s decision can be read in two ways. The decision has either added subject matter arbitrability under a third law for determining jurisdiction of the tribunal, i.e., the law of the court where the award would inevitably have to be enforced or the decision is an isolated, fact-specific order, not so much a comment on the law governing subject matter arbitrability but based on specific wording of the arbitration clause which required the arbitral award to be enforceable in India, although clearly the intent for the clause was to ensure that neither parties resist enforcement of the award in India and not to import India law at the pre-award stage.

 

Concluding Thoughts

 

The SGHC is guided by principles of party autonomy and Singapore policy to encourage International Commercial Arbitration, on the other hand, the Court of Appeal was driven by comity considerations and the role of courts applying foreign law to be bound by foreign public policy. Finally, the Indian court was occupied with ensuring “access to justice” to the litigant before it, which according to the court overrode both party autonomy and comity considerations. Whether we consider the BHC decision in its broader or limited form, the grounds for refusing reference to arbitration stand invariably widened. Courts prioritizing different concerns as the most significant could potentially open doors for forum shopping.

 

 

[1] Kamakshi Puri is an LLM graduate from the University of Cambridge. She is currently an Associate in the Dispute Resolution Practice at Cyril Amarchand Mangaldas. Views and opinions expressed in the text are the author’s and not attributable to any organization.

The Netherlands International Law Review (NILR) has issued a call for papers, in particular for private international law perspectives of public interest litigation.

 

Public interest litigation

Globally, we are witnessing an increase in what is called ‘public interest litigation’. In particular, climate change lawsuits taking place in several countries (e.g. in the Netherlands the Urgenda and Shell cases) are generating global attention. Another example of this type of litigation concerns the protection of privacy (e.g. the lawsuits against Facebook and TikTok). Although there is not yet a well-defined definition of the phenomenon, it is generally accepted that public interest litigation is understood to mean legal action that is taken on a human rights or equality issue of broad public concern.

 Call for papers

The Netherlands International Law Review (NILR) invites researchers to submit abstracts for an upcoming Special Issue devoted to Public Interest Litigation. We are interested in papers focusing on questions of private international law and/or public international law with regard to this phenomenon in a broad sense. We particularly encourage contributions that address private international law questions.

Abstracts should be no longer than 500 words and should be submitted by January 2nd 2024 to nilr@asser.nl. Submissions are limited. The selection criteria will be based on the quality of the research and its originality. We also strive to ensure a diversity of represented legal systems and topics. If an abstract is accepted, this will be communicated by February 1st 2024. After acceptance, draft papers are to be submitted at the latest by May 1st 2024. The draft papers will be assessed by the editorial board of the NILR according to standard criteria. This assessment will be communicated to the author shortly afterwards.

NILR

The Netherlands International Law Review (NILR) is one of the world’s leading journals in the fields of public and private international law. It is published three times a year, and features peer-reviewed, innovative, and challenging articles, case notes, commentaries, book reviews and overviews of the latest legal developments in The Hague. The NILR was established in 1953 and has since become a valuable source of information for scholars, practitioners and anyone who wants to remain up to date concerning the most important developments in these fields.

As announced on this blog, the inaugural edition of the European Association of Private International Law Winter School will take place in Como between 12 and 16 February 2024.

Organised by the University of Insubria, in cooperation with the Jagiellonian University in Kraków, the University of Murcia and the University Osijek, this year’s edition of the Winter School will be devoted to Personal Status and Family Relationships.

The lectures, in English, will discuss a range of issues relating to the cross-border continuity of status, filiation, and family relationships between adults. Both Hague conventions and EU legislative measures will be examined, with an approach combining theory and practice. There will be ample room for interaction with (and among) the participants.

The teaching staff consists of Silvia Marino (University of Insubria, director of the School), Laura Carpaneto (University of Genova), Javier Carrascosa González (Universidad de Murcia), Ester di Napoli (University of Ferrara), Cristina González Beilfuss (Unversity of Barcelona), Satu Heikkilä (LL.D., Administrative Law Judge), Katja Karjalainen (University of Eastern Finland), Máire Ní Shúilleabháin (University College Dublin), Etienne Pataut (University of Paris 1), Paula Poretti (University of Osijek), Nadia Rusinova (Hague University), Raffaele Sabato (Judge of the European Court Human Rights), Ian Sumner (Tilburg University), Camelia Toader (former-Judge of the Court of Justice), Ioan-Luca Vlad (University of Bucharest), Michael Wilderspin (EU Commission Legal Advisor), Anna Wysocka-Bar (Jagiellonian University), Mirela Župan (University of Osijek).

The detailed programme can be found here.

The School is aimed primarily at law graduates, law practitioners and PhD candidates with an interest in private international law, EU law and human rights law.

Those interested in attending the School are invited to submit their application through this form before  25 January 2024.

Admission fees are as follows: early bird (by 12 December 2023): 180 Euros; ordinary: 250 Euros.

A reduced fee of 80 Euros is offered to one student from any of the Universities that are partners in the project  and one for a Ukrainian student.

For information: eapilws@gmail.com.

Visite à la Cour de justice de l'Union européenne de la présidente de la République de Slovénie, Mme Nataša Pirc Musar

Staatsanwaltschaft Berlin (EncroChat)
Espace de liberté, sécurité et justice
Selon l’avocate générale Tamara Ćapeta, un procureur peut émettre une décision d’enquête européenne (DEE) ayant pour objet la transmission d’éléments de preuve déjà en la possession d’un autre État membre

LATAM Airlines Group
Transport
Refus d’embarquement anticipé : les passagers ont droit à une indemnisation même s’ils ne se sont pas présentés à l’enregistrement et s’ils ont été informés de ce refus d’embarquement au moins deux semaines avant l’heure de départ du vol prévue

FT (Copies du dossier médical)
Principes du droit communautaire
Protection des données à caractère personnel : un patient a le droit d’obtenir gratuitement une première copie de son dossier médical

On 12 October 2023, the Court of Justice of the EU, following an Opinion of the Advocate General Sánchez-Bordona, handed down its long-awaited judgment in OP (C-21/22). The case concerns the application of the Succession Regulation to third States’ nationals, where a bilateral agreement is in place between the Member State whose authorities are seised and the third State in question.

The preliminary question originates from Poland, and represents the second attempt to seise the Court of Justice of the issue. In the OKR case, C-387/20, a similar question was raised by a notary public but the Court held that the request for a preliminary ruling was inadmissible.

Facts of the Case and Proceedings in Poland

OP is a Ukrainian national who resides in Poland and co-owns an immovable property there. OP wanted to draw up a notarial will in Poland choosing Ukrainian law as applicable to her future succession. The notary refused to do so on the ground that Article 37 of the 1993 Poland-Ukraine Bilateral Agreement does not provide for such possibility. In fact this Article states that:

Legal relationships in matters relating to the succession of movable property shall be governed by the law of the Contracting Party of which the deceased was a national at the time of his or her death.

Legal relationships in matters relating to the succession of immovable property shall be governed by the law of the Contracting Party in the territory of which that property is situated. (…)

OP brought an action before a court in Poland against the notary’s refusal. She argued that the 1993 Poland-Ukrainian Bilateral Agreement does not govern the choice of applicable law, and that, accordingly, a choice is admissible under Article 22 of the Succession Regulation. Article 75(1) of the Succession Regulation, which provides that the regulation does “not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation” does not prevent such a choice, she added, given that the 1993 Poland-Ukraine Bilateral Agreement is silent as to party autonomy in succession matters.

Put shortly, the view submitted by OP was that Article 21(1) and (2) of the Succession Regulation correspond to Article 37 of the Agreement, whereas Article 22 of the Succession Regulation, which allows for the choice of national law of the deceased, does not have any counterpart in the Agreement. As a result, Article 22 of the Succession Regulation is applicable (and enables the person concerned to make a choice of law) no matter whether the Bilateral Agreement takes precedence over the Succession Regulation. The domestic court, having doubts on the above view, submitted to questions to the Court of Justice of the EU.

Preliminary Questions and Answers of the Court

The first preliminary question was a straightforward one to answer. The domestic court wanted to know whether Article 22 of the Succession Regulation means that a third-country national residing in a Member State of the EU may choose the law of that third State as the law governing future succession case.

The Court of Justice answered in positive stating that a third-country national residing in a Member State of the EU may choose the law of that third State as the law governing his or her succession as a whole (OP, para. 24)

The answer to the second question seems far more interesting and important for the understanding and applying of the Succession Regulation.

The referring court asked whether Article 75(1) of the Succession Regulation, read in conjunction with Article 22 means that, where a Member State of the EU has concluded, before the adoption of the regulation, a bilateral agreement with a third State which designates the law applicable to succession and does not expressly provide for the possibility of choosing another law, a national of that third State, residing in the Member State in question, may choose the law of that third State to govern his or her succession as a whole.

In other words, the Polish court wanted to know whether OP may choose Ukrainian law as applicable to her succession in accordance with Article 22 of the Succession Regulation, while drafting her will in front of a notary public in Poland, even though 1993 Poland-Ukrainian Bilateral Agreement does contain conflict of law rules relating to succession and does not provide for any party autonomy to that respect.

The Court of Justice answered that Article 75(1) of the Succession Regulation read in conjunction with Article 22, in circumstances such as those of the case examined, does not exclude that a national of a third State, residing in the EU Member State, may be barred from choosing the law of that third State to govern his or her succession as a whole. The above is true provided that the Member State of the EU in question has concluded (before the adoption of that regulation) a bilateral agreement with that third State which designates the law applicable to succession and does not expressly provide for the possibility of choosing another law (see: OP, para. 38). Hence, theoretically, the Succession Regulation does not preclude a situation in which a Ukrainian citizen might not be able to choose Ukrainian law as applicable while drafting a will in front of a notary public in Poland.

Comments on the Judgment

In order to know whether the Succession Regulation applies one must examine its scopes, namely: (1) material one – it  covers succession to the estates of deceased persons (Article 1(1)); (2) territorial one –  it covers EU Member States, with the exception of Ireland and Denmark (Recitals 40, 41, the UK also never applied it) and (3) temporal one – it applies as of 17 August 2015 to the succession cases of persons deceased starting from that day (Art. 83(1) and 84 Succession Regulation). The Succession Regulation applies to succession cases covered by its scopes irrespective nationality or habitual residence of the deceased and irrespective where the assets of the estate are located. Hence, as rightly underlined by the Court of Justice, any person may choose applicable law in accordance with Article 22 of the Succession Regulation (not only an EU citizen). This follows also from the wording of Article 21 which provides for universal application of the conflict of law rules of the Succession Regulation.

Hence, the clou here lies not in the Chapter III “Applicable Law” of the Succession Regulation, but the 1993 Poland-Ukraine Bilateral Agreement. The Court of Justice therefore explained the meaning of Article 75(1) of the Succession Regulation. It underlined that where a Member State is a party to a bilateral agreement concluded with a third State (before the entry into force of the Succession Regulation), which contains provisions laying down rules applicable to succession, it is those provisions which, in principle, are intended to apply, instead of these of the Succession Regulation (OP, para. 27). In view of the Court of Justice, the Succession Regulation does not override these provisions simply because they do not provide for party autonomy and possibility of choosing applicable law by the testator (OP, para. 33).

It should be noted, however, that the Court of Justice while explaining that the bilateral agreement takes precedence before the Succession Regulation uses the expression “in principle” (see: OP, para. 27). Hence, this conclusion is of general, abstract character. It applies to every bilateral agreement and not necessary to this particular one and this particular case. Further, the Court of Justice states that “the scheme” of Succession Regulation “does not preclude a situation where, under a bilateral agreement concluded between a Member State and a third State (…), a third-country national residing in the Member State bound by that bilateral agreement does not have the right to choose the law applicable (…)” (OP, para. 37).

Nowhere in the judgment does the Court of Justice discuss the exact content of the 1993 Poland-Ukraine Bilateral Agreement. It does not say that 1993 Poland-Ukraine Bilateral Agreement excludes the possibility of choosing applicable law. It is left for the domestic court to analyze 1993 Poland-Ukraine Bilateral Agreement and finally decide.

La rédaction de Dalloz actualité suspend ses publications pendant les vacances de la Toussaint.

en lire plus

L’instance en cours interrompue, en vertu du droit français, jusqu’à ce que le créancier ait produit sa créance dans la procédure d’insolvabilité étrangère n’est pas reprise à la suite de la seule assignation en intervention forcée du syndic étranger, celle-ci ne valant pas déclaration de créance.

en lire plus

The third issue of 2023 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Pietro Franzina, Professor at the Università Cattolica del Sacro Cuore, Un nuovo diritto internazionale privato della protezione degli adulti: le proposte della Commissione europea e gli sviluppi attesi in Italia (A New Private International Law on the Protection of Adults: The European Commission’s Proposals and the Developments Anticipated in Italy; in Italian)

The European Commission has presented on 31 May 2023 two proposals aimed to enhance, in cross-border situations, the protection of adults who are not in a position to protect their interests due to an impairment or the insufficiency of their personal faculties. One proposal is for a Council decision that would authorise the Member States to ratify, in the interest of the Union, the Hague Convention of 13 January 2000 on the international protection of adults, if they have not done so yet. The decision, if adopted, would turn the Convention into the basic private international law regime in this area, common to all Member States. The other proposal is for a regulation the purpose of which is to improve, in the relationships between the Member States, the cooperation ensured by the Convention. The paper illustrates the objects of the two proposals and the steps that led to their presentation. The key provisions of the Hague Convention are examined, as well as the solutions envisaged in the proposed regulation to improve the functioning of the Convention. The paper also deals with the bill, drafted by the Italian Government and submitted to the Italian Parliament a few days before the Commission’s proposals were presented, to prepare for the ratification of the Convention by Italy and provide for its implementation in the domestic legal order. The bill, it is argued, requires extensive reconsideration as far as the domestic implementation of the Convention is concerned. Alternative proposals are discussed in the paper in this regard.

This issue also comprises the following comment:

Riccardo Rossi, Juris Doctor, Reflections on Choice-of-Court Agreements in Favour of Third States under Regulation (EU) No 1215/2012

This article tackles the absence of a provision addressing choice-of-court agreements in favour of third States under Regulation (EU) No 1215/2012 (“Brussels Ia Regulation”). The CJEU case law and the present structure of the Regulation leave no room for the long-debated argument of effet réflexe. In light of Arts 33 and 34 (and Recital No 24), enforcing such agreements is now limited to the strict respect of the priority rule in the trans-European dimension. The first part of the article deals with the consequences of such a scheme. Namely, forum running, possible interferences with the free circulation of judgments within the EU pursuant to Art 45(1)(d), and inconsistencies with the 2019 Hague Convention. In its second part, from a de lege ferenda perspective, the article examines the most delicate issues raised by the need for introducing a new provision enforcing jurisdiction agreements in favour of third States: from the jurisdiction over the validity of such agreements, to the applicable law, to the weight to be given to the overriding mandatory provisions of the forum. Finally, it proposes a draft of two new provisions to be implemented in the currently discussed review of the Brussels Ia Regulation.

In addition to the foregoing, this issue includes a chronicle by Francesca C. Villata, Professor at the University of Milan, Il regolamento (UE) 2023/1114 relativo ai mercati delle cripto-attività: prime note nella prospettiva del diritto internazionale privato (Regulation (EU) 2023/1114 on Market in Crypto-Assets: First Remarks from a Private International Law Perspective; in Italian).

Finally, the following book review by Francesca C. Villata, Professor at the University of Milan, is featured: Gabriele CARAPEZZA FIGLIA, Ljubinka KOVA?EVI?, Eleonor KRISTOFFERSSON (eds), Gender Perspectives in Private Law, Springer Nature, Chan, 2023, pp. XV-242.

The latest issue of RabelsZ has just been released. It contans the following articles:

Horatia Muir Watt: Alterity in the Conflict of Laws. An Ontology of the In-Between
[18th Ernst Rabel Lecture, 2022] [OPEN ACCESS], 433–464, DOI: 10.1628/rabelsz-2023-0063

The conflict of laws can serve heuristically to underscore two established but radically opposing models of modernist legal ordering: multilateralism and statutism. Such a prism is helpful if we want to rethink (as we must!) our late-modern legality’s deep epistemological settings in the shadow of the »catastrophic times« to come, whether in terms of environmental devastation or political dislocation. Both phenomena are profoundly linked and indeed constitute two faces of alterity, natural and cultural, from which modernity has progressively taught us to distance ourselves. Importantly, law encodes the conditions that produce these dual somatic symptoms in our contemporary societies. This chasm between nature and culture has produced humanity’s »ontological privilege« over our natural surroundings and a similar claim of superiority of modern (Western) worldviews over »the rest«. In this respect, the main achievement of the moderns, as Bruno Latour wryly observed, has been to universalise the collective blindness and amnesia that allow our »anthropocentric machine« to hurtle on, devastating life in its path and devouring the very resources it needs to survive.

Anton S. Zimmermann: Kriegskollisionsrecht. Ein Beitrag zum international-privatrechtlichen Umgang mit Gebietseroberungen (War and the Conflict of Laws – Private International Law’s Treatment of Territorial Conquest), 665–496, DOI: 10.1628/rabelsz-2023-0058

 The Russian war of aggression against Ukraine constitutes a breach of a fundamental consensus in public international law: states have authority over their territory. One element of territorial sovereignty is the right to legislate in the field of private law. If a territory is conquered, this right is – in breach of public international law – usurped by the conquering state. This article examines how private international law deals with such changes in factual power. It demonstrates that private international law is more flexible than is commonly assumed and that it can provide a differentiated and adequate reaction to occupations and annexations.

Wenliang Zhang, Guangjian Tu: Recent Efforts in China’s Ambition to Become a Centre for International Commercial Litigation, 497–531, DOI: 10.1628/rabelsz-2023-0064

The last decade or so has witnessed intensifying efforts by China to reshape its legal framework for international commercial litigation. These efforts echo its advancement of the »One Belt and One Road Initiative« and a policy of strengthening the foreign-related rule of law. But the measures so far have been piecemeal and were adopted mainly by the Supreme People’s Court (SPC). Leading lower Chinese courts, the SPC has zealously advanced the reform of international commercial litigation by devices such as international commercial courts (ICCs), anti-suit injunctions, forum non conveniens and de jure reciprocity favouring recognition and enforcement of foreign judgments. Such efforts may help modernize China’s mechanism for international commercial litigation, and more are expected. Although what the SPC has been doing moves closer to the global mainstream and is on the right track, deep reforms are still needed before the Chinese international commercial litigation regime can »go global«.

Mathias Habersack, Peter Zickgraf: Sorgfaltspflichten und Haftung in der Lieferkette als Regelungsmodell: Rechtsentwicklung – Rechtsvergleichung – Rechtsökonomik – Rechtsdogmatik (Corporate Sustainability Due Diligence and Supply Chain Liability as a Regulatory Model: Legal Developments – Comparative Assessment – Economic Analysis – Legal Theory), 532–607, DOI: 10.1628/rabelsz-2023-0060

The proposal for a Corporate Sustainability Due Diligence Directive significantly exceeds the German Supply Chain Act (LkSG) not only in terms of its scope of application and the protected interests, but also regarding the enforcement mechanism in the event of a violation of a due diligence duty. While the LkSG has taken a stand against private enforcement in its § 3 para. 3 s. 1, Art. 22 of the proposed Corporate Sustainability Due Diligence Directive makes companies civilly liable for misconduct committed by their subsidiaries and business partners. The present article deals with the conceptual fundamentals of this regulatory model: From a comparative perspective, the proposed duties and accompanying civil liability mark a departure from the independent contractor rule which is deeply rooted in the tort laws of the German and Anglo-American legal families; the proposed regulatory model thus brings about a sector-specific paradigm shift in the law of non-contractual liability. From a law and economics perspective, however, the proposed regulatory model is justifiable given the special factors present in typical cases. The liability risks associated with the regulatory model appear to be manageable for companies if the pre-conditions of their potential civil liability are more clearly specified.

 

BOOK REVIEWS

As always, this issue also contains several reviews of literature in the fields of private international law, international civil procedure, transnational law, and comparative law (pp. 608–640).