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A French Décret, allows, for the time of the state of emergency, notarization by a French notary without a need for parties to be physically present. Explanation and analysis is here and (briefly) here. Importantly, the possibility is also open to non-residents of France.  Notaries in France had, unsurprisingly, warned of the risk of fraud, but the Conseil d’Etat approved of the decret.

Austria has a similar rule in sec. 90a of its Notary Act. In Germany, this is not (yet?)possible: Art. 40(1) of the German Notarisation Act requires physical presence of the parties; the greatest distance allowed is, apparently, the way to the parking lot. Estonia has introduced an e-notary for notarisation from abroad, but this is available only in Estonian embassies.

The French and Austrian rules raise interesting private international law questions. Usually, notarization requires physical presence – which is why so many lawyers fly from Germany to France to have contracts notarized. Can they now stay at home? If two French domiciliaries sign a contract electronically while in Switzerland, and notarization happens in France, is this a case of Art. 11(1) Rome I Regulation? That would lead to the odd result that the formal requirements would follow from either Swiss law or from the law applicable to the contract (which need not be French law) and not necessarily the law of the place where the French notary sits. And yet, Art. 11(2) seems inapplicable because the notary is not an agent of the parties. Should it be applicable by analogy? Should there be a special rule for notaries that used to be unnecessary because notarization always requires physical notaries? Or is this another reason to rethink the principle of locus regit actum for internet contracts?

DIFC Courts, the Dubai International Financial Centre’s Courts, is one of the new generation of international commercial courts. Its rulings piggyback unto recognition and enforcement treaties which the UAE concludes with third countries (India being a recent example).

In GFH Capital Ltd v Haigh & Ors [2020] EWHC 1269 (Comm) Henshaw J first of all notes that there is no such treaty between the UK and the UAE hence he considers recognition of the July 2018 DIFC judgment by Sir Jeremy Cooke under common law principles. Helpfully, these principles have been summarised in a January 2013 Memorandum of Guidance as to Enforcement between the DIFC Courts and the Commercial Court, Queen’s Bench Division, England and Wales. Under discussion in the case is mostly the condition that the foreign court be a court of competent jurisdiction; that the foreign judgment be not obtained fraudulently; and that its recognition be not incompatible with English ordre public.

The judgment is an extensive treatment of the relevant principles and therefore suited to comparative materials.

Geert.

Enforcement of @DIFCCourts judgment
Application of common law principles (no releant Treaty with the UAE). https://t.co/VHgkTw7DHG

— Geert Van Calster (@GAVClaw) May 20, 2020

Fernando Gascón Inchausti (Complutense University of Madrid) and Burkhard Hess (MPI Luxembourg) have edited The Future of the European Law of Civil Procedure, a book published by Intersentia.

The publisher’s blurb reads:

The European lawmaker is currently overseeing what appears to be a paradigm shift in the way that cross-border litigation is conducted within the European Union. This matter was initially conceptualised from the perspective of international judicial cooperation, based on the notion of mutual trust and mutual recognition. Recent developments, however, have introduced the option of harmonisation as a new regulatory approach.

The first part of the book is focused on the possible methodological approaches at hand. Special emphasis is placed on the role of the Court of Justice of the European Union as a “promoter” of a European Procedural Law (principle of effectiveness and principle of equivalence). The second part assesses to what extend harmonisation is already used: “vertically”, through the regulations on international judicial cooperation, for example the European Account Preservation Order; and “horizontally”, through the promotion of harmonised standards promoted by the directives on intellectual property rights and competition damages (access to information and evidence), or in the directive on trade secrets and in the field of data protection (protection of confidential information). With a view to the future, the final part examines two more recent initiatives: ELI-UNIDROIT and the proposal for a directive on common minimum standards of civil procedure in the EU.

The Future of the European Law of Civil Procedure: Coordination or Harmonisation? clearly outlines the motivations of the various national and institutional players in the regulation of civil procedural law and identifies potential obstacles likely to be encountered along the way that will be useful for every lawyer in the field.

The authors include Dominik Düsterhaus (Court of Justice of the European Union), Stefan Huber (University of Tübingen), Christoph A. Kern (University of Heidelberg), Stephanie Law (MPI Luxembourg), Patricia Llopis Nadal (University of Valencia), Janek T. Nowak (MPI Luxembourg), Marta Requejo Isidro (MPI Luxembourg), Vincent Richard (MPI Luxembourg), Elisabetta Silvestri (University of Pavia), Michael Stürner (University of Konstanz), María Luisa Villamarín López (Complutense University of Madrid), Enrique Vallines García (MPI Luxembourg).

See here for more information, including the table of contents.

William S. Dodge has posted Jurisdiction, State Immunity, and Judgments in the Restatement (Fourth) of US Foreign Relation Law on SSRN. The paper features in the latest issue (vol. 19, issue 1) of the Chinese Journal of International Law.

The abstract reads:

In 2018, the American Law Institute published the Restatement (Fourth) of Foreign Relations Law, which restates the law of the United States governing jurisdiction, state immunity, and judgments. These issues arise with great frequency in international cases brought in US courts, including cases involving Chinese parties. This article provides an overview of many of the key provisions of the Restatement (Fourth). The article describes the Restatement (Fourth)’s treatment of the customary international law of jurisdiction, as well the rules of US domestic law based on international comity that US courts apply when deciding international cases.

In response to the COVID-19 pandemic and following a video message of the Secretary General, the Permanent Bureau (PB) of the Hague Conference on Private International Law has developed a COVID-19 Toolkit.

The COVID-19 Toolkit spots situations covered by Hague instruments on which the pandemia may have a particular impact, and compiles references to specific HCCH resources and publications thereto relevant in light of the current global situation. It is designed to assist users of the HCCH Conventions and other instruments in these challenging times and beyond.

The HCCH COVID-19 Toolkit is divided into two main categories: International Child Protection and Family Matters, covering, inter alia, child abduction, family maintenance and intercountry adoption, and International Legal Cooperation, Litigation and Dispute Resolution, concerning, among other things, service of documents and the taking of evidence abroad.

Within each category, a short description is made on the presumable effect of the pandemia, followed by a quick access to the most pertinent instruments or guides connected, such as the Guide to good practice on the “grave risk exception” to prompt return under Article 13(1)(b) of the 1980 Child Abduction Convention.

The PB has expressed its hope that “the Toolkit will continue to encourage the effective operation of the HCCH instruments, ultimately ensuring better access to justice for individuals, families and companies across the globe, as well as facilitating cross-border trade, investment and dispute resolution, even in these uncertain times”.

It is indeed a worthy initiative with a helpful, user-friendly outcome (which, when it comes to putting legal rules into practice, is more than welcome).