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Alfonso Luis Calvo Caravaca (University Carlos III of Madrid), Javier Carrascosa González (University of Murcia), María Asunción Cebrián Salvat (University of Murcia) and Isabel Lorente Martínez (University of Murcia) authored the European Kodex of Private international Law 2023. Cases & materials on European private international law.

The abstract reads:

The authors want this work to be able to operate as an instrument for improving legal quality in the practical application and in the study of private international law in the English language. In this sense, any opinion on “The European Kodex of Private international law” will be very well received, as it will help to outline, polish and improve these materials for the benefit of all legal operators dedicated to private international law and, ultimately, for the benefit of a correct and useful practice of this fascinating sector of law.

It is freely accessible here.

Few books can get you from the rainy coast of Newfoundland over 19th-century Holstein straight to sunny Queensland and back to the North of Pennsylvania, while telling stories of a retired MI5 agent, the largest Ponzi scheme in history, a company founded by the 41st President of the United States, the aftermath of the First Gulf War, and the collapse of the Federal Bank of Australia. The volume on The Common Law Jurisprudence of the Conflict of Laws, edited by Sarah McKibbin (University of Southern Queensland) and Anthony Kennedy (Serle Court), recently published by Hart, does just that, by discussing cases like Vita Food Products, Brook v Brook, Bonython v Commonwealth of Australia, AG v Heinemann Publishers (better known as the Australian Spycatcher case), Bremen v Zapata, Vizcaya v Picard, and Kuwait Airways (Nos 4 and 5).

 

Overall, the volume contains detailed accounts of 12 cases from 7 jurisdictions, providing context, summary, and critical commentary. The selected cases touch upon virtually all areas of private international law, from international jurisdiction over applicable law to recognition of foreign judgments. In addition to the high quality of the individual accounts, what makes this volume particularly intriguing is the authors’ focus on how the cases discussed have contributed to the development of the common law in the respective areas of private international law. As Andrew Bell writes in the foreword: ‘a fascinating depiction of parallel yet interdependent legal systems, at times moving in synchronicity and at other times starkly diverging, but all appealing to the same shared conceptual foundations of private international law norms.’

Consequently, the book is at the same time an insightful study of the incremental (and sometimes not so incremental) development of the common law, a rich collection of some of the most impactful and interesting decisions in the field of private international law, and a fantastic read for a day at the beach.

This post is by Carlos Manuel Vázquez, a professor of law at Georgetown Law School. It is cross-posted at Transnational Litigation Blog.

Claude Cassirer brought suit in federal court in California eighteen years ago against the Thyssen Bornemisza Museum of Madrid, Spain, to recover a painting by Camille Pissarro that was stolen from his grandmother by the Nazis during World War II.  After a reversal and remand from the U.S. Supreme Court last summer, the case is now before the Ninth Circuit for decision of the legal question that is likely to be decisive:  which law governs?

The district court and the court of appeals have so far framed the issue as a binary choice: the governing law on the merits is either that of Spain or that of California.   I suggest here that the issue is better framed as a choice between the law of Spain, on the one hand, and the laws of all the other states or countries with connections to the dispute, on the other.  (Disclosure: I submitted expert declarations in support of the plaintiffs on issues of public international law during earlier phases of this case.)

The U.S. Court of Appeals for the Ninth Circuit has affirmed the district court’s holding that, under the law of Spain, the plaintiff loses because the museum acquired title to the painting through adverse possession (otherwise known as acquisitive prescription).  It is equally clear that, under the law of California, the plaintiff would prevail because California does not recognize the acquisition of title to moveable property through adverse possession.  What has so far not featured prominently in the courts’ analyses of the choice-of-law issue is that the plaintiff would also prevail under the laws of all the other jurisdictions that have relevant connections to the dispute.  Under governmental interest analysis, this should be central to the analysis.

The Painting’s Journey

It is undisputed that the painting was looted from Lilly Cassirer by the Nazis.  After it was taken in Germany, the painting spent some time in California and Missouri and was subsequently sold to Baron Von Thyssen-Bornemisza by a Gallery in New York.  The painting then stayed at the Baron’s home in Switzerland for twelve years before it was loaned to the museum in 1988 and then sold to Spain in 1993.

The district court decided in this case that the Baron did not have valid title to the painting during the period in which he possessed it.  The Baron did not purchase the painting from someone with good title, and he did not obtain good title through adverse possession because he did not possess the painting in good faith, as required by Swiss law.  The court held that there were many red flags that should have alerted the Baron to the possibility that the painting had been stolen by the Nazis.

Accordingly, the museum did not acquire good title to the painting when it purchased it from the Baron in 1993.   But, the court held, the question whether the museum acquired title to the painting through adverse possession is governed by the law of Spain, and the law of Spain, unlike the law of Switzerland, allows acquisitive prescription if the painting is possessed for six years even without good faith.  The time period is longer if the possessor is an accessory to the theft, but someone who possesses the item without good faith is not for that reason alone deemed an accessory. Because the museum was not an accessory to the theft, the court held, the museum has acquired good title to the painting under the law of Spain because it had possessed it for just over six years before Claude Cassirer learned of its location and asked for it back.

California’s Approach to Choice of Law

The U.S. Supreme Court held in this case that, even in suits against foreign state instrumentalities under the Foreign Sovereign Immunities Act, a federal court must apply the choice-of-law rules of the state in which it sits.  The district court had applied California’s choice-of-law rules, but the Ninth Circuit did not review its analysis, having erroneously concuded that a federal choice-of-law rule applied. The appellate court must now review the district court’s application of California’s choice-of-law rules.

Under traditional choice-of-law rules, the issue of title to moveable property is governed by the law of the place where the property is located.  But California, like most U.S. states, long ago rejected the traditional choice-of-law approach and adopted in its place a form of governmental interest analysis.  This approach asks the courts, in cases in which the substantive laws of the relevant states differ, to determine whether the relevant states have an interest in having their laws applied.  If only one state has such an interest, then there is a false conflict, and the court applies the law of the only interested state.  If more than one state has an interest, there is a true conflict.  To resolve true conflicts, California has adopted the “comparative impairment” approach, under which the court applies the law of the state whose policies would be most impaired if not applied.

The district court in the Cassirer case focused on the interests of California and Spain.  The court first concluded that the laws of those two states differed because Spain recognizes acquisitive prescription of moveable property after six years even if the possession was not in good faith, whereas California does not recognize acquisitive prescription of moveable property.  The court then concluded that both California and Spain have an interest in having their laws applied.  Spain’s law prioritizes the interests of the possessor of the property and, more generally, the interest in certainty of title.  Spain’s interest is implicated in this case because the possessor is a Spanish entity and the painting is in Spain.  California’s law prioritizes the interest of the original owner of stolen property, and this policy is implicated in the case because the original owner’s heirs are domiciled in California.  Because both Spain and California have an interest in having their laws applied, the case presents a true conflict.

To this point, the district court’s analysis was sound.  The same cannot be said of its analysis of the next step—determining which state’s law would be more impaired if not applied.  The court concluded that Spain’s policies would be significantly impaired if not applied but California’s policies would be only minimally impaired.  Why?  Because California’s interest in having its law applied depended largely on the plaintiff’s fortuitous, unilateral decision to move to California in 1980, long after the painting had been stolen from his grandmother by the Nazis.

What the court overlooked, however, is that Spain’s interest in the case is equally fortuitous.  The painting was stolen in Germany and was located in California, Missouri, New York, and Switzerland before it made its way to Spain as a result of the Baron’s decision to establish a museum in Spain bearing his name. If California’s interest is to be discounted because it resulted from the plaintiff’s fortuitous decision, then Spain’s interest should similarly discounted because it resulted from the fortuitous decision of the museum’s predecessor in interest.

Spain’s Law on Acquisitive Prescription

Actually, it may not be fortuitous that stolen property will make is way to Spain, but the reason for this is one that should make a court wary to apply Spanish law.  Spain’s law of acquisitive prescription is unusually friendly to possessors of stolen property.  Common law jurisdictions generally do not recognize acquisitive prescription of moveable property.  They do not disregard the interests of possessors of property or the general interest in certainty of title, but they give effect to those interests through statutes of limitations, which limit the time the original owners have to initiate lawsuits to recover the property and in this way deter the original owners from sleeping on their rights.  But statutes of limitations often begin to run when the original owner discovers the location of the stolen property.  That is, indeed, the law in all states of the United States by virture of a federal law establishing a six-year statute of limitations for suits to recover Nazi-looted art, which begins to run upon discovery.  Other jurisdictions do recognize the acquisition of title by adverse possession, but (as discussed below) they generally require that the possessor have acquired the property in good faith, meaning without sufficient reason to believe that the property was stolen.  Jurisdictions that allow the acquisition of title by adverse possession without  good faith generally require a far longer period of possession than Spain’s six years (for example, twenty years under Italian law).

Spain’s law is unusually friendly towards possessors of stolen property in allowing the acquisition of title through bad faith adverse possession after a mere six years.  Spain is thus, relatively speaking, a haven for stolen property, and it would not be surprising to find that stolen property winds up there.  For this reason among others, scholars have advocated replacing the traditional situs rule for stolen cultural property with a lex originis rule, under which the law to be applied would presumptively be the law of the place where the property was stolen, coupled with a disciovery rule for triggering the running of the prescription period.  As noted, California has replaced the traditional rule with governmental interest analysis, but, in applying interest analysis, the same concern should lead California courts to resist applying the law of the place to which the stolen property was taken.  (Alternatively, the courts of California could refuse to apply the law the situs, if unusually friendly towards possessors of stolen property, on ground that the law contravenes California’s strong public policy.)

The museum might argue that there is no evidence that the painting was brought to Spain to take advantage of its unusually friendly law.  It may well be true that the Baron did not sell the painting to the museum in Spain in order to launder his stolen painting.  The museum’s web site indicates that, in 1988, the Baron had offers for his collection from the United Kingdom, California (Getty Foundation) and Germany, but chose to establish the museum in Spain because his fifth wife, a Spanish beauty queen, wanted to establish an art museum in her home country.  Be that as it may, it is equally true that the plaintiff’s decision to move to California was not driven by his desire to take advantage of California’s more protective law.  Indeed, when he decided to move to California, he assumed that the painting had been lost or destroyed during the war.

In sum, if the fact that the Baron’s decision to sell the painting to a museum in Spain was not taken for opportunistic reasons is not a reason to discount Spain’s interest, then the fact that Claude Cassirer’s decision to move to California was not made for opportunistic reasons is equally a reason not to discount California’s interest.  The painting’s presence in Spain, in the hands of a Spanish museum, is (at best) just as fortuitous as Claude Cassirer’s decision to move to California.

Other Interested Jurisdictions

If so, then how does one break the tie?  One answer might be to apply the law of the forum, and indeed there is California case-law placing the burden on the party arguing against applying forum law.

But, on closer inspection, the relevant interests are not in equipoise.  California and Spain are not the only jurisdictions with connections to this dispute.  Both the painting and Lilly Cassirer were initially located in Germany.  Germany’s law allows acquisitive prescription in ten years, but only if the property was possessed in good faith.  (A statute of limitations cuts off the original owner’s power to bring an action to recover the property after thirty years, but it does not vest title in the possessor.) As the district court held in this case, the Baron did not acquire title to the property under Swiss law of acquisitive prescription by virtue of his possession of the painting because he did not possess the painting in good faith. Application of the German law of acquisitive prescription leads to the same conclusion.  The court did not address whether the museum possessed the painting in good faith because that issue was not relevant under Spanish law.  But surely the Baron’s lack of good faith should be attributed to the museum that he co-founded and bears his name.  In any event, as the district court found, the red flags that alerted the Baron to the possibility that the painting was stolen by the Nazis were equally apparent to the museum.

As noted, the painting later spent time in California, Missouri, and New York. The laws of Missouri and New York on acquisitive prescription are in all relevant respects the same as California’s.  The painting then spent some time in Switzerland, and, as we have seen, the plaintiff should prevail under Swiss law as well.

As for Lilly Cassirer, after escaping from Germany, she lived for some time in England.  English law, like the law of California, does not technically recognize acquisitive prescription, but its statute of limitations limits the time in which to bring an action for conversion.  The limitations period has the same effect as acquisitive prescription because § 3(2) of the Limitations Act provides that, after the expiry of the limitations period for bringing an action for conversion, the original owner’s title to the movable property is extinguished.  The limitations period is generally six years, but in the case of theft, the limitations period begins to run from the date of the first “innocent” conversion. “As regards the original thief, or . . . any party acquiring the movable from him who is not in good faith,” Faber & Lurger note, “it would appear that there is no limitation period for the bringing of an action in coversion.”

From England, Lilly moved to Ohio, which has the same law regarding adverse possession as California.  Neither Lilly’s moves to England and Ohio nor Claude’s move to California were driven by a desire to take advantage of those states’ protective law of acquisitive prescription.  Indeed, if Lilly had wanted to take advantage of a jurisdiction’s law of acquisitive prescription, she could have moved to practically any jurisdiction other than Spain.  As we have seen, Spain’s law of acquisitive prescription (as interpreted by the district court and court of appeals in this case) is an outlier in recognizing a change of title as a result of possession of stolen property without good faith in a mere six years.

Should the court broaden its focus and consider the laws and interests of these other jurisdictions?  The district court’s own analysis suggests so.  After all, if the interest of the plaintiff’s current place of domicile is discounted because it resulted from his fortuitous decision, then surely the law and interest of the place from which he moved should be considered instead.  Courts that discount a party’s domicile if acquired after the start of the dispute generally consider instead the interest of the jurisdiction from which the party moved.  And if the interest of the place to which the stolen painting was taken is discounted because it resulted from the fortuitous (or non-fortuitous) decision of the possessor’s predecessor, then surely the interest of the place from which painting was taken should be considered instead. The district court additionally discounted California’s interest because the original taking did not occur in California and because the Baron did not purchase the painting in California.  These reasons for discounting California’s interest suggest that the court should consider instead the laws of the place where the original taking occurred (Germany) and the place where the Baron bought the painting (New York).

There is, indeed, substantial authority for the proposition that the interests of jurisdictions with connections to the dispute should be aggregated when these laws have the same content.  The Restatement (Second) of Conflict of Laws makes this point explicitly.  A comment to § 145 on torts explains that “when certain contacts involving a tort are located in two or more states with identical local law rules on the issue in question, the case will be treated for choice-of-law purposes as if these contacts were grouped in a single state.”  The same comment appears in numerous other provisions of the Second Restatement, including the provision on real property (§ 222) and the provision on chattels (§ 244).  The laws of the jurisdictions discussed above are not identical in all respects, but they are identical in the relevant respect: under each of these laws, the plaintiff should prevail.

Although California has not adopted the Restatement (Second) as its choice-of-law rule, the Restatement’s approach to aggregation is in principle equally relevant to governmental interest analysis in general.  A contrary rule would allow circumvention of the relevant states’ interests in a dispute through a divide-and-conquer strategy.  The district court in this case appears to have fallen into this trap.

Conclusion

On remand from the Supreme Court, the Ninth Circuit certified the choice-of-law question under California law to the California Supreme Court, but that court denied the request. It is now up to the Ninth Circuit to review and correct the district court’s application of California’s choice-of-law rules.  In doing so, the court of appeals should consider not just the interests of California and Spain but also those of Germany, New York, Missouri, Switzerland, England, and Ohio. The fact that all those jurisdictions would reach the same result as California is a strong reason to rule in favor of the plaintiff in this case.

Today, the Uniform Law Review published a private international law article titled: CSA Okoli, “The Significance of a Forum Selection Agreement as an Indicator of the Implied Choice of Law in International Contracts: A Global Comparative Perspective”. 

The abstract reads as follows:

Where the parties to an international contract fail to specify the choice of law, a forum selection agreement is one of the most, if not the most, significant factors to consider in implying the choice of law in many international, supranational, regional instruments, and national jurisdictions. However, it is an ill-defined, notoriously complex, and hotly debated issue as to the weight that should be attached to a forum selection agreement in implying the choice of law. Hence, this article is devoted to discussing this topic from a comparative perspective, in order to propose a guide to global uniform criteria. To achieve this, the article covers all relevant international, regional, and supranational instruments, and selected legal systems in Africa, Asia, Australasia, Europe, the Middle East, and North and South America. The legal systems compared include those from the global North and global South, including common law, civil law, and mixed legal systems. The article’s core proposal is that an exclusive forum selection agreement should be a key factor in implying the choice of law. However, except in such cases as where a forum is chosen on a neutral basis, there should be a general requirement of corroboration with at least one other factor of significance. The aim of the proposal is to contribute to greater uniformity, predictability, and certainty in the global community in this field of law.

 

 

 

Very recently, Indonesian private international law has attracted significant scholarship in the English language.[1] Dr Penasthika’s monograph (‘the monograph’)[2] is one such work that deserves attention for its compelling and comprehensive account of choice of law in international commercial contracts in Indonesia. My review attempts to capture the methodology, summarise the contents, and give a verdict on the quality of this monograph.

 

Penasthika has based this work on her PhD thesis, undertaken at Erasmus University in Rotterdam. The monograph contains six chapters over 233 pages, excluding the acknowledgments, table of contents, lists of tables and figures, abbreviations, bibliography, and annex. A robust and clearly expressed methodology of doctrinal and empirical research is applied. The monograph predominantly examines 19 Indonesian court decisions on choice of law in international commercial contracts during the period, 2000-2020. It is mainly written from a civil law perspective, which is unsurprising, given that the author is Indonesian and wrote her thesis in the Netherlands – both Indonesia and the Netherlands are civil law countries. One positive aspect of the methodology that is especially worth mentioning is Penasthika’s very transparent and thorough account of the state of previous academic research in Indonesia, and the gap she has endeavoured to fill with her monograph.

 

The first chapter provides an introduction to the book, the central theme of which is the reluctance to give effect to choice of law (especially foreign law) in international commercial contracts in Indonesia, compared with global developments. Consequently, Penasthika states that some of the core benefits of giving effect to choice of law in international commercial contracts would contribute to Indonesia’s VISI 2045 to rank among the world’s most developed countries; improve the practice of international dispute settlement in Indonesia; promote the harmonisation project on private international law in Asia and global initiatives, and lead to the legal reform of outdated rules on choice of law in Indonesia.

 

Conversely, Chapter One also acknowledges the book’s limitations, namely, that it only covers the express choice of law in international commercial contracts. Therefore, implied or tacit choice of law, law in the absence of choice, and contracts for the protection of weaker parties have not been included. Moreover, no new choice of law theories have been advanced, and the issue of forum selection clauses has not been addressed. However, a further limitation that Penasthika could have considered is whether 19 judicial decisions represent an adequate sample size for empirical research in a monograph.

 

Chapter Two of this work proceeds to discuss choice of law in international commercial contracts in a global context. The key contribution of this chapter is that it provides a theoretical framework for discussing choice of law in further chapters of the monograph. First, the history of choice of law theory and debate is traced and summarised, dating back to 120-118 BC and extending into the 20th century. Second, the chapter traces the wide acceptance of choice of law in the 20th century across a large number of countries and regions. Nevertheless, Penasthika also highlights that a few countries remain reluctant or hostile to choice of law, despite widespread acceptance of the principle in the 21st century. She is of the view that this resistance is due to concerns over territoriality and sovereignty in the countries involved. Fourth, the chapter discusses the regional and international harmonisation of choice of law.

 

In addition, Chapter Two contains an interesting theoretical debate on choice of law, which may be encapsulated in the question: is choice of law based on the perspective of state or party sovereignty? Alternatively, who has the authority to permit parties to make a choice of law: the state or the parties themselves?

 

Chapter Two then examines the way in which choice of law functions, including the international character of the contract, types of contracts (such as weaker party or commercial, and immovable property), the validity of the choice of law agreement, the chosen law, and the choice invalidating the contract. Finally, this second chapter discusses the limits on choice of law, such as public policy and mandatory rules.

 

In Chapter Three, Penasthika looks at Indonesia’s civil law and private international law regime. The key contribution of this chapter is that it gives the reader an understanding of the sources of Indonesia’s private international law regime, which helps clarify the chapters that follow. Chapter Three also contains a thorough and enlightening evaluation of Indonesian scholarly views on choice of law in contract. Essentially, this chapter lays the foundation for discussing Indonesian choice of law rules on commercial contracts in subsequent chapters. Like other Asian and African countries, Indonesia experiences legal pluralism, due to its history of Dutch colonialism and a form of apartheid. Thus, in the Indonesian legal system, there is an interplay of civil law, which is inherited from the Dutch East Indies, adat (customary law), and Islamic law. It was especially fascinating to me to discover here that the Indonesian language is usually a legal requirement for drafting contracts involving Indonesians. This may be aimed at protecting Indonesians in transactions and preserving their indigenous language.

 

Next, Chapter Four contains what I would describe as the real ‘meat’ of the monograph, looking at how Indonesian practitioners (judges and lawyers) handle choice of law in international commercial matters, particularly regarding issues of foreign law. This fourth chapter summarises and analyses 19 Indonesian decisions from 2000 to 2020. The discussion is divided into three parts: (i) refusing jurisdiction based on foreign forum, illustrated by four cases; (ii) refusing jurisdiction on the basis of foreign law, illustrated by seven cases, and (iii) disregarding choice of forum and choice of law, illustrated by eight cases. The latter two approaches are dominant in Indonesian practice.

 

As the reader, one thing I found striking about Indonesian practice is that a choice of foreign law alone can oust the jurisdiction of the Indonesian courts. Penasthika rightly observes that this signifies confusion between jurisdiction and choice of law, because what the Indonesian courts should apply is substantive and not procedural law. Procedural law matters are reserved for the forum, and some Indonesian judges only appear to see the procedural aspects of choice of law. I would also add that the Indonesian approach ignores the global reality of applying foreign law, which is at the heart of private international law. This confusion results in a loss of dispute resolution business for practitioners in Indonesia, which is not good for Indonesia’s economy. The big question is, why do many Indonesian judges refrain from applying choice of law, especially foreign law? This interesting question is mainly addressed in Chapter Five, which contains the empirical research.

 

In Chapter Five, Penasthika presents the results of her interviews with practitioners (including Indonesian judges and lawyers, and foreign consultants who are familiar with the Indonesian legal system), a legal scholar (with expertise in private international law), and an expert attached to the court (with expertise in choice of law issues in Indonesia). These interviews especially explore the problem of applying foreign law in Indonesia.

 

The central cause of the problem is identified as the Indonesian Supreme Court decision in Bernhard Josef Rifeel v PT Merck Indonesia,[3] which ousted the jurisdiction of the Indonesian courts based on foreign law. This decision has since been followed by many Indonesian judges. However, Penasthika and several other scholars question the accuracy of the decision and the cases in which it has been applied.

 

Drawing upon the interview data, Penasthika states the reasons for foreign law not being applied in the Indonesian courts, as follows:

‘(i) it is difficult to delve into a foreign law; (ii) it is hard to apply a foreign law correctly; (iii) Indonesian judges are not trained to settle disputes governed by foreign law; (iv) the law of civil procedure in Indonesia does not provide clear rules regarding disputes involving foreign elements, such as foreign party or foreign law; (v) the judges consider that foreign law contradicts Indonesian law; and (vi) Indonesian judges espouse legal positivism.’[4]

 

Additionally, some judges, citing Article 1338 BW in Indonesia, regard the choice of foreign law as a contractual agreement not to resolve a dispute in the Indonesian courts, and many lawyers present a contract claim as tort. This practice is seriously criticised by Penasthika, in the first instance because it confuses substantive contract law with choice of law, and in the second, because it is tantamount to abusive litigation tactics.

 

Chapter Six then concludes the monograph, summarising the research findings and making proposals and suggestions for future research. First, Penasthika states that Indonesia could indeed fulfil its vision for 2045 to become a highly developed country, provided that its courts give effect to choice of law rules, as opposed to Indonesia isolating itself from global trends in the choice of law for commercial contracts. Second, knowledge of choice of law needs to be expanded in Indonesia. Third, the regulatory framework for choice of law in Indonesia requires development, and fourth, judicial practice should be improved in the context.

 

The author closes with the prediction that choice of law will become a topical and fascinating field in Indonesia.

 

My verdict is that this monograph is an indispensable research work on choice of law in international commercial contracts in Indonesia. I highly commend it as a work of quality, researched and written to a high standard. Anyone interested in choice of law will therefore be fascinated by this book.

 

 

[1] YU Oppusunggu, ‘Indonesia’ in A Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia (Asia Business Law Institute, Singapore, 2017) 91 – 104; A Kusumadara, ‘Indonesia’ in A Reyes (ed), Recognition and Enforcement of Judgments in Civil and Commercial Matters (Hart, 2019) 243 – 258; A Kusumadara, Indonesian Private International Law (Hart, 2021); A Kusumadara, ‘Indonesia’ in A Reyes and W Lui (eds), Direct Jurisdiction: Asian Perspectives (Hart, 2021) 249 – 273; J Lumbantobing and BS Hardjowahono, ‘Indonesia: Indonesian Perspectives on the Hague Principles’ in D Girsberger et al (eds) Choice of Law in International Commercial Contracts: Global Perspectives on the Hague Principles (Oxford: Oxford University Press 2021) paras 25.01 – 25.43; PP Penasthika, Unravelling Choice of Law in International Commercial Contracts: Indonesia as an Illustrative Case Study (The Hague: Eleven Publishers 2022).

[2] Penasthika (ibid).

[3]  Judgment of the Supreme Court 1537K/PDT/1989, 21 January 1991.

[4]  Penasthika (n 1), 179.

 

A new anthology titled Applicable Law Issues in International Arbitration has been published in the Hague Academy of International Law’s Centre of Resarch Series.

The book is the result of research undertaken by scholars accepted to the Centre for Studies and Research in International Law and International Relations in 2021.

Giuditta Cordero-Moss and Diego P. Fernández Arroyo were the directors of the research centre.  The two directors have also edited the anthology which includes a selection of 16 works stemming from that research session (authored by Apollin Koagne Zouapet, Ana Coimbra Trigo, Didier Bationo, Wendinkonté Sylvie Zongo, Ali Kairouani, Nicola Strain, Andrea Mackielo, Alexandre Senegacnik, Ludovica Chiussi Curzi, Giulia Vallar, Marco Buzzoni, Yağmur Hortoğlu, Paola Patarroyo, Erik Sinander, Federico Cabona, and Lito Dokopoulou), as well as two chapters written by the specially invited guests Franco Ferrari and Luca Radicati di Brozolo.

In the introduction, the editors reflect on the research results and conclude that “determining the applicable law in arbitration is a manifold task that needs to balance involved interests, which are not necessarily always consistent with each other”.

The table of contents of the anthology can be read here.

Written by Dr. Meng Yu and Dr. Guodong Du, co-founders of China Justice Observer*

On 20 August 2023, China Justice Observer released the 2023 version of List of China’s Cases on Recognition of Foreign Judgments. To date, we have collected 98 cases involving China and 25 foreign States and regions. (Note: Foreign divorce judgments are excluded in the Case List.)

The Case List was issued on July 16, 2019, and is updated annually. The 2020 update and 2022 update were also posted on Conflictoflaws.net.

The full version of the 2023 List of China’s Cases on Recognition of Foreign Judgments is available here.

The key features of the updated list are:

• The List comprises 25 concise reports for each jurisdiction, together with a chart of bilateral judicial assistance treaties which China has concluded with 39 States, of which 35 bilateral treaties include judgment enforcement clauses.
• A total of nine newly added cases involve two treaty jurisdictions – France (one case) and Vietnam (one case) – and seven non-treaty jurisdictions, namely, Australia (one case), Canada (one case), Germany (one case), New Zealand (one case), South Korea (one case), the UK (one case), and the US (one case).
• Please note that in In re DAR (2022) Jing 01 Po Shen No. 786), the Beijing First Intermediate People’s Court ruled to recognize a German court’s bankruptcy ruling based on the principle of reciprocity. This is the second case involving de jure reciprocity -a new liberal reciprocity test for the recognition and enforcement of foreign judgments in China. The first of its kind was the Spar Shipping case reported in 2022, in which an English monetary judgment was recognized in China for the first time.
• Another noteworthy case is SD Biotechnologies Co. Ltd v. 99 Trade Co. Ltd (2019) Jing 04 Xie Wai Ren No.3, where the Beijing Fourth Intermediate People’s Court ruled to recognize and enforce a trademark judgment of the Korean Supreme Court. This case marks the first time that Chinese courts have recognized and enforced an intellectual property judgment.
• Other newly added cases, whether foreign judgments to be enforced in China or Chinese judgments to be enforced in foreign jurisdictions, provide a valuable comparative perspective on key issues in the eyes of courts from different jurisdictions, such as interim measures (China), limitation period (Australia), due process and public policy (Vietnam), finality (Canada), and the ground of systemic lack of due process (the US).
• Each case has been reviewed and more details, such as the grounds, the case numbers, and causes of action, have been added.
• Case analyses have been aggregated under the country tags since 2022, so it is now easier to track down relevant cases, together with their information and analyses, in each country/region report. For example, under the tag ‘US-China Judgments Recognition and Enforcement’, one can find relevant case analyses involving mutual recognition and enforcement of judgments between the US and China.

As always, we endeavor to collect all Chinese court decisions involving the recognition and enforcement of foreign judgments (“REFJ”), and foreign counterparts concerning the recognition and enforcement of Chinese judgments. The Case List is made available for our readers to build reasonable expectations on REFJ in China.

The Case List is continually updated with new reports. Case information, comments, and suggestions are most welcome. Please feel free to contact Ms. Meng YU via e-mail at meng.yu@chinajusticeobserver.com.

 

*We would like to thank the following persons/institutions that shared thoughts and valuable information with us:

Dr. Béligh Elbalti, Associate Professor, Graduate School of Law and Politics, Osaka University, Japan; Dr. ZHANG Wenliang, Associate Professor, School of Law, Renmin University of China; Dr. SU Xiaoling, Lawyer at Beijing DHH Law Firm; Mr. WANG Chengjie, Lawyer at Allbright Law Offices (Shanghai);Wonbanglaw; Ms. Renee M Wong, Attorney at Goldberger and Dubin PC (New York); Dr. WANG Yahan, Associate Professor, Henan University School of Law; Mr. Angus Ni, Litigation attorney at AFN Law PLLC (Seattle); Asian Business Law Institute; Ms. Dawei Gongsun, Partner at DGW Kramer LLP (New York).

On 13 April 2023, the University Paris Dauphine hosted a conference on State Immunity from Enforcement (L’immunité d’exécution de l’Etat).

Speakers included Philippe Théry (Univ. Paris Panthéon-Assas), Louis Perreau-Saussine (Univ. Paris Dauphine), Gilles Cuniberi (Univ. Luxembourg), Sophie Lemaire (Université Paris Dauphine), Nathalie Meyer-Fabre (Avocate au Barreau de Paris), Duncan Fairgrieve (Univ. Paris Dauphine), Fabrizio Marrella (Univ. Ca’ Foscari), David Pavot (Univ. Sherbrooke), Mathias Audit (Univ. Panthéon-Sorbonne), Juliette Morel-Maroger (Univ. Paris Dauphine), Jérôme Chacornac (Univ. Paris Panthéon-Assas), Hélène Tissandier (Univ. Paris Dauphine), Victor Grandaubert (Univ. Paris Nanterre), Renaud Salomon (Cour de cassation).

The videos of the conference of the various sessions of the conference are freely available and can be accessed here.

Guest Post by Chytanya S. Agarwal*

I. Introduction

Rising cross-border migration of people and concomitant increase in lawsuits relating to matrimonial disputes between couples brings to the forefront the issue of conflict of jurisdictional laws (219th Law Commission Report, ¶1.1-¶1.2). Mbatha v. Cutting is one such recent case that grapples with conflict of laws pertaining to divorce and division of matrimonial property when the spouses are domiciled in separate jurisdictions. In this case, the Georgian Court of Appeal dealt with competing claims from a couple who married in New York and had their matrimonial domicile in South Africa. The wife, domiciled in Georgia, USA, argued for the application of the matrimonial property regime of South Africa – their only (though temporary) common matrimonial domicile. In determining the applicable law, the Court upheld the traditional approach, which favours lex situs for real property and lex domicilii for personal property.

In this article, I contextualise Mbatha in the context of Indian litigants, particularly foreign-domiciled Non-Resident Indians (‘NRIs’) married under Indian personal laws and having their property located both within India and in foreign territory. Firstly, I analyse Mbatha by comparing it with the prevalent approaches in private international law. Secondly, I examine the Indian jurisprudence on the applicability of foreign judgements concerning matrimonial disputes. Thirdly, I submit that Mbatha complies with the Indian lex situs rule insofar as real property is concerned. However, by determining its subject-matter jurisdiction by solely considering Georgian law, Mbatha sets itself on a collision course with the Indian approach on the subject-matter jurisdiction of foreign courts. Lastly, I analyse the implications of this uncertainty regarding enforceability of foreign judgements on matrimonial property. In conclusion, I propose a solution that draws on public international law to resolve the challenge presented by conflicting rules on choice of law.

 II. Traditional Approach vs. Modern Approaches to Conflict of Laws

The primary source of private international law are municipal laws of nations. Their divergence in the face of potential applicability is the root cause of conflict of laws. In this section, I examine the approaches to conflict of laws from the perspective of mutability i.e., change in applicable personal laws of spouses during their marriage. It has three main approaches under private international law – the doctrines of immutability, mutability, and the partial mutability. The lex situs approach upheld in Mbatha falls under the “partial mutability” rule.

Under the “doctrine of immutability”, the personal law during marriage governs the property relations of spouses forever (Schuz, p.12). Once determined, this law stands ‘immutable’/unalterable. Strict immutability approach is favoured for predictability of applicable laws (p.45). It is also supported on the ground of legitimate expectations of the parties. In short, the parties can expect the personal law of their marriage to govern their relations unless they determine their choice of law through a separate agreement (p.29-30).

In “doctrine of mutability,” the applicable law never remains fixed. It can change depending on changes in forum, changes in religion, nationality, domicile, etc. For instance, under the lex fori approach followed in American states, the courts partition the entire matrimonial property by applying the law of the forum, regardless of where and when the said property was acquired (Wasserman, p.23). This approach is justified on the grounds of state interest because the greatest interest of the forum state in matrimonial cases is to ensure the application of its laws (Schuz, p.38). However, this approach poses the risk of “forum shopping” or the practice of filing claims in jurisdictions where lex fori favours the petitioner’s case.

The third approach is the “partial mutability” approach which finds an echo in Mbatha. As mentioned, the traditional approach in Mbatha favoured lex situs (i.e., the law of the jurisdiction where the real property is located) and lex domicilii (i.e., the law of the owner’s domicile at the time the personal property was acquired). In the doctrine of “partial mutability”, a change in matrimonial domicile would trigger a change in the governing laws without having any retroactive effect on already acquired property (Schuz, p.12). For instance, if a married couple buys property in Country X, then the laws of country X alone would govern this property. However, this does not prevent them from applying the laws of Country Y to a property situated in Country Y. Thus, the applicable matrimonial property law changes depending upon the location in which the spouses buy the matrimonial property without prejudicing vested rights. Its underlying rationale is protecting both state interests and legitimate expectations of the parties. This is because the state where the relevant property is situated has the greatest interest in ensuring that it is governed by its own laws. Additionally, parties have the reasonable expectation that the law governing the property should always be that at the time of the acquisition of that asset (Schuz, p.32).

 III.  Indian Jurisprudence on Foreign Judgements Concerning Personal Laws

While private international law has undeveloped jurisprudence in India, it has a growing trend due to the import of foreign laws and foreign judgements by NRIs who have emigrated from India (219th Law Commission Report, ¶2.1-¶2.2). In this section, I analyse the Indian judgements dealing under three issues concerning foreign verdicts on matrimonial relations recognised by the 65th Law Commission Report (¶3.2). These issues, equally pertinent in the context of matrimonial property relations, are (i) grounds for jurisdiction, (ii) choice of law, and (iii) law on recognition.

1.  Jurisdiction

Indian law has generally opposed the application of foreign judgements on the ground that the foreign forum did not possess sufficient jurisdiction under the personal law governing the parties. A plain reading of the text of the Indian Succession Act and the Hindu Succession Act shows that they only govern the devolution of immovable property situated in India irrespective of the domicile of the person who owned the property. The Acts extend only to the Indian territory and do not have extra-territorial application. As per the Code of Civil Procedure (‘CPC’), any suit for the partition of immovable property must be filed in the court within whose local jurisdiction the property is located.

Case laws have also supported this position consistently. In Duggamma v. Ganesha Keshayya (¶5-¶7, ¶14), it was held that the decision of a foreign court concerning title to Indian property would be devoid of legal effects. Harmindar Singh v. Balbir Singh held that disputes concerning any immovable property have to be decided not just by the laws of the country where the land is situated, “but also by the courts of that country.” Even if the parties had submitted to the jurisdiction of the foreign court, the foreign verdict is enforceable only to the extent it applies to property situated outside India. Conversely, Indian courts have upheld the disposition of overseas family property by foreign courts. Even in cases concerning other matrimonial disputes such as divorce, the Supreme court has held that the forum must have jurisdiction as per the law under which the parties married. For instance, foreign courts have been barred from annulling marriages between Indians. To summarise, Indian courts have generally disfavoured the adjudication of matrimonial disputes by foreign courts on the ground of lack of jurisdiction.

2.  Application of Indian Law

In the absence of legislative guidance, this sphere of private international law is heavily reliant on case laws (219th Law Commission Report, ¶3.2). A perusal of judgements (see here and here) shows that real property located in India can be governed only by Indian law (i.e., lex situs). At the same time, Indian courts have ruled that Indian law is inapplicable in foreign jurisdictions. In Ratanshaw v. Dhanjibhai, the Bombay High court upheld the English rule of lex situs for the succession of property situated in India. At the same time, Indian courts recognising lex situs have respected foreign judgements concerning overseas property, and have observed that foreign forums should also reciprocate by recognising Indian judgements concerning immovable property in India. In Y. Narasimha Rao v. Y. Venkata Lakshmi, the Supreme Court ruled that per Section 13(c) of the CPC, even if the parties submit to the jurisdiction of the foreign forum, the only law applicable in matrimonial disputes is the one under which the parties married. However, in Nachiappa Chettiar v. Muthukaruppan Chettiar, the Indian law was held inapplicable in the case of properties situated outside India. Per Nachiappa Chettiar, the family property cannot be deemed partible under the Hindu Succession Act since it was located outside the jurisdiction of Indian courts. In Dhanalakshmi v. Gonzaga (¶34-¶43), the Hindu joint family system was held inapplicable in Pondicherry due to the invalidity of the Hindu Succession Act’s extraterritorial application. So, Indian courts have also respected foreign lex situs with respect to foreign property.

3.   Recognition: Other preconditions

In addition to satisfying the requirements of jurisdiction and lex situs, there also exist procedural safeguards under CPC that must be satisfied for the foreign verdict to have a conclusive effect. Respect for principles of natural justice is one such prerequisite, entailing that judgements passed by forum non-conveniens are unenforceable in India. Additionally, fraud by one of the parties can also be a vitiating factor. For instance, in Satya, the husband “successfully tricked” a Nevada court to grant a divorce decree on the ground that hehad obtained the domicile of Nevada due to residence of 6 months. Here, the Chandrachud, J. held that the husband had no intention of permanently residing in Nevada and, this, the foreign verdict was unenforceable due to fraud. The need for procedural safeguards for the protection of the weaker party was also emphasised in Neeraja Saraph v. Jayant V. Saraph.

IV.  Mbatha’s Implications on NRIs

The Mbatha approach of lex situs is compatible with Indian law. However, I argue that by determining its overall jurisdiction based on the domicile of one of the spouses,[1] Mbatha erroneously conflated the jurisdiction to determine divorce with the jurisdiction to determine the partition of matrimonial property. As per Georgian law, the court had both the subject-matter jurisdiction and personal jurisdiction to decide the divorce petition since one of the spouses had resided in Georgia for more than 6 months.[2] However, the court cited no authority regarding the validity of its jurisdiction to adjudicate on the division of overseas matrimonial property. The effect of Mbatha is that the court would apply the domestic law of the place where the property is situated, even if such a place is beyond the court’s local limits. For example, the Court in Georgia may apply the laws of a foreign jurisdiction to partition the foreign matrimonial property. This principle, called renvoi in private international law, has limited application in the Indian context (the only case where it was invoked yet not applied is Jose Paul Coutinho v. Maria Luiza Valentina Pereira).

Additionally, the Court determined its subject-matter jurisdiction based on Georgian law. However, as mentioned earlier, the forum should have competent jurisdiction as per the law governing the parties. A foreign forum applying Indian law on Indian property lacks the jurisdiction to do so as per Indian law. Hypothetically, if a Georgian court were to apply the Indian Succession Act to properties situated in India, it lacks the jurisdiction to do so since neither the Act nor CPC confers any jurisdiction on foreign forums to partition Indian property. However, Mbatha nevertheless compels it to apply foreign law even if the foreign law does not grant it requisite jurisdiction.

Another issue is created by the absence of any matrimonial property regime in Indian personal laws. This might lead to rejection of Indian law in the foreign forum since it might consider the lack of rights in the matrimonial property as opposed to their public policy since it is discriminatory towards women. By combining renvoi with this public policy argument, courts can effectively nullify Indian lex situs. Such instances have happened in Israel, where courts have abstained from applying Islamic law on couples migrating from Islamic countries on the ground that the Islamic matrimonial property regime violates gender equality and is thus opposed to Israeli public policy.[3]

 V. A Public International Law Solution to Conflict of Laws?

As explained, while Mbatha’s lex situs rule protects state interests, it has the potential of frustrating parties’ legitimate expectations by subjecting NRIs to matrimonial property regimes of foreign forums, even when Indian personal laws do not contain the concept of matrimonial property. In this regard, public international law gives the solution of making the rules on choice of laws uniform through an overarching treaty like the Hague Conventions (see here and here). The enactment of a composite legislation on private international law along the lines of the 1978 Hague Convention on Matrimonial property regimes to prevent the misapplication of foreign law (219th Law Commission Report, ¶5.2) can go a long way in preventing future conflicts between matrimonial legal systems. This harmonising principles on choice of laws is also more feasible, and has less costs than the alternative of uniformising matrimonial property regimes altogether since such family law regimes are intrinsic to the cultural backdrop of specific legal systems. As shown by Mills (pp.7-10), private disputes are becoming increasingly enmeshed with public international law considerations. The adoption of such treaty is also consistent with the growing view on the intersection of public and private international law to resolve pitfalls in existing legal systems (Maier, pp.303-316).

 

*Chytanya S. Agarwal is a third-year B.A., LL.B. (Hons.) student at the National Law School of India University (NLSIU), Bangalore, and a Blog Editor at the Indian Journal of Law and Technology (IJLT). The author can be reached at chytanya.agarwal@nls.ac.in.

[1] Restatement of the Law, Conflict of Laws (2nd), ss70-72.

[2] Mbatha, pp.746-747.

[3] Also see Nafisi v Nafisi ACH (1996) PD 50(3) 573; Azugi v Azugi (1979) (III) 33 PD 1. Here, despite the “doctrine of immutability” endorsed by Israeli law, the court applied lex fori on an Iranian couple on the grounds, inter alia, of public policy and gender parity.

Florence Guillaume (Professor of Private International Law at the University of Neuchâtel, Switzerland, and Founder of the LexTech Institute) has made available on SSRN a draft version of a paper on Decentralized Autonomous Organizations (DAOs) Before State Courts. How can private international law keep up with global digital entities? that is forthcoming in a book edited by Madalena Perestrelo de Oliveira and Antonio Garcia on DAO Regulation: Principles and Perspective for the Future.

The abstract reads as follows:

This paper examines civil and commercial disputes involving Decentralized Autonomous Organizations (DAOs) and the complex questions of private international law that arise. The legal capacity of a DAO to be a plaintiff or defendant in court varies across jurisdictions, highlighting the need to determine the applicable law to a DAO. A distinction must be made between different types of DAOs. There are currently a few jurisdictions, notably in the United States, that have enacted DAO legislation defining a legal status for such entities. Those regulated DAOs are governed by both computer code and company law. In other jurisdictions, existing company structures can be used to offer a legal wrapper to DAOs. However, the vast majority of DAOs currently in existence are constituted and solely governed by code, posing challenges in bringing them before a state court.

The paper explores recent case law and the difficulties in identifying the appropriate party to sue when pursuing a DAO. Using Swiss law as a basis, it examines the qualification of DAOs under private international law and the challenges of anchoring a global digital entity to a specific jurisdiction. The article illustrates these challenges through three types of disputes: governance, contractual, and tort-related. Determining jurisdiction over a DAO-related dispute requires applying private international law rules. Although the paper assumes Swiss courts for convenience, the reasoning can be applied to different legal systems due to the similarities in conflict of jurisdiction rules. However, challenges persist even if a court has jurisdiction and renders a decision, as enforcement may prove difficult, especially on-chain. Additionally, initiating legal proceedings against a DAO presents issues with serving court documents. DAOs offer opportunities for innovative electronic methods of document service, but specific requirements and restrictions exist for international service of documents. Practical difficulties may arise, making it impractical or unattainable to serve court documents on the defendant.

The analysis concludes that state courts currently struggle to ensure reliable access to justice in disputes involving DAOs. As an alternative to state courts, opting for Alternative Dispute Resolution (ADR) mechanisms, such as Blockchain-based Dispute Resolution (BDR), can offer a simpler and more efficient solution depending on circumstances. In any case, entrusting dispute resolution to a BDR mechanism avoids the complexities associated with state court procedures.

Joseph Singer (Harvard Law School) has posted Conflict of Abortion Laws on SSRN.

The abstract reads:

When a resident of an anti-abortion state goes to a prochoice state to get an abortion, which law applies to that person? To the abortion provider? To anyone who helps them obtain the abortion? Since Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, states have passed conflicting laws regarding abortion, and courts will need to determine whether anti-abortion states can apply their laws to persons or events outside their territory either through civil lawsuits or criminal prosecution. This article canvasses the major disputes likely to arise over conflicts of abortion law and the arguments on both sides in those cases. It addresses both common law analysis and the constitutional constraints on application of state law under the Full Faith and Credit Clause and the Due Process Clause, and it comes to some conclusions both about what laws should apply in different fact settings and how the choice of law analysis should proceed.

Since Dobbs focused on the “history and tradition” behind rights under the Due Process Clause, and because the constitutional test for “legislative jurisdiction” that regulates when a state can apply its law to a controversy is partly based on the Due Process Clause, we start with the prevalent approaches to conflicts of law available to judges at the time the Bill of Rights was adopted in 1791 and when the Fourteenth Amendment was adopted in 1868, focusing on the “comity” approach championed by Justice Joseph Story. We consider also the First Restatement’s vested rights approach in vogue between the end of the nineteenth century and the middle of the twentieth century. We then move to modern choice of law analysis to determine which law applies when a person leaves their state to obtain an abortion. We will consider the Second Restatement’s “most significant relationship” test, the “comparative impairment” approach, the “better law” and “forum law” approaches, as well as the emerging Third Restatement of Conflict of Laws rules being drafted right now by the American Law Institute.

One set of cases involves conduct that is wholly situated within the borders of the anti-abortion state. That state has full authority under the Constitution to regulate its internal affairs and to apply its laws to people who distribute or use anti-abortion medication there or who otherwise assist residents in violating its laws prohibiting or limiting access to abortion. Anti-abortion states have full authority to regulate conduct within their borders. However, the First Amendment protects people who provide information about the availability of abortion services in other states where it is legal, and the constitutional right to travel should protect those who transport someone out of state to get an abortion in a prochoice state or who subsidize the cost of such out-of-state travel.

A second set of cases concerns cross-border torts where conduct in a prochoice state has effects in an anti-abortion state. Courts traditionally apply the law of the place of injury to those cases if it was foreseeable that the conduct would cause the injury there. But there are traditional exceptions to the place of injury rule that should apply in the abortion context when the place of conduct defines the conduct as a fundamental right and immunizes the actor from liability or places a duty or an affirmative privilege on the abortion provider to provide the care. Courts should depart from the place of injury rule in those circumstances when conduct is wholly confined to the immunizing (prochoice) state, and that means that an anti-abortion state cannot legitimately punish an abortion provider in a prochoice state who provides care there in reliance on rules of medical ethics that require the care to be provided. Nothing would violate rule of law norms more severely than placing a person under a simultaneous duty to provide care and a duty not to provide that care. On the other hand, anti-abortion states have full authority to regulate out-of-state conduct that does spill over the border into the anti-abortion state, such as shipping abortion medication to a recipient there. Difficult issues of foreseeability and proximate cause arise when an abortion provider prescribes abortion medication in a prochoice state but knows or suspects that the patient will be taking the medication back to the anti-abortion state to ingest. In some fact settings, the foreseeability issue is significant enough that it may rise to a constitutional limitation on the powers of the anti-abortion state to apply its law to out-of-state conduct or to assert personal jurisdiction over the abortion provider. In other cases, the place of injury has the constitutional authority to apply its law to out-of-state conduct that the actor knows will cause unlawful harm across the border but it may or may not have personal jurisdiction over the nonresident provider.

A third set of cases involve bounty claims, tort survival lawsuits, or wrongful death suits that an anti-abortion state might seek to create by giving claims to one of its residents against the resident who left the state to get the abortion. Such cases may be viewed as “common domicile” cases by the anti-abortion state since both plaintiff and defendant reside in the anti-abortion state. That may tempt the anti-abortion state to apply its laws to an abortion that takes place in another state even though both conduct and injury occurred in a state that privileges the conduct and immunizes the defendant from liability. However, the law of the place of conduct and injury should apply in those cases since the prochoice law is a “conduct-regulating rule,” and choice of law analysis, traditional rules, and constitutional constraints on legislative jurisdiction all require deference to the law of the prochoice state in such cases. Courts sometimes apply the law of the common domicile when the law at the place of conduct and injury is not geared to regulating conduct there, but the opposite is true for laws directed at conduct, and this article will show why prochoice laws that define abortions as a fundamental right are conduct-regulating rules. The same is true for the question of criminal prosecution. An anti-abortion state has no legitimate authority to punish a resident who leaves the state to get an abortion in a state where abortion is protected as a fundamental right.

The paper is forthcoming in the Northeastern University Law Review.

Four years after the 8th JPIL conference in Munich, the global community of PIL scholars finally got another opportunity to exchange thoughts and ideas, this time at Singapore Management University on the kind invitation of our co-editor Adeline Chong.

The conference was kicked off by a keynote speech by Justice Philip Jeyaretnam (Singapore International Commercial Court), providing an in-depth analysis of the Court of Appeal’s decision in Anupam Mittal v Westbridge Ventures II [2023] SGCA 1 (discussed in more detail here).

The keynote  was followed by a total of 23 panels and four plenary sessions, a selection of which is summarised below by our editors.

Arbitration (Day 1, Panel 1)
Saloni Khanderia

The panel discussed various aspects of arbitration ranging from arbitration clauses to the recognition and enforcement of arbitral awards.

The session commenced with Dr. Ardavan Arzendeh of the National University of Singapore present his paper on ‘Jurisdiction and Arbitration Clauses in the Same Contract’, evaluating the treatment of jurisdiction and arbitration clauses in the same contract through the law of England and Wales. The speaker stated that there are 2 categories of such cases: 1) the clauses are naturally reconcilable through importance given either to the wording of the clauses or the intention of the parties; and 2) the clauses are not naturally reconcilable as the parties have included an exclusive jurisdiction and a mandatory arbitration clause in the agreement. The courts in these instances have typically given importance to the arbitration clause. The presentation suggested a more defensible course of action in such a situation: Courts should approve both the clauses and give a choice to the parties to pursue the matter either through litigation or arbitration. Hence, giving equal weight to the choices of the parties.

The second speaker, Ms. Ana Coimba Trigo of the NOVA School of law presented her paper on ‘Deference or Distrust? Recognizing Foreign Commercial Arbitration Awards in the US Against Procedural Fairness Concerns’. The presentation focused on Article V(1)(b) of the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, 1958, that allows parties to oppose the recognition and enforcement of arbitral awards on very selected grounds. Frequently referred to as “procedural fairness”. However, the Convention is silent on the interpretation and application of this ground. Additionally, there is no indication of what law is appliable to this ground. This leads to uncertainty as to what standards the US courts apply in interpreting and applying Article V(1)(b) of the Convention. A reading of the existing empirical data allows us to understand whether the US courts cite other foreign courts and if they follow a comparative approach and what are the diverse standards (lex fori or another lenient approach) applied when distrust of foreign arbitrators is raised by the parties.

Following this, Dr. Priskila Pratita Penasthika from The Universitas Indonesia presented her paper on ‘CAS Arbitration Award: Its Jurisdictional and Enforcement Issues in Indonesia’. The Court of Arbitration for Sport (CAS) does not always require a specific arbitration agreement between the parties for conferring jurisdiction on it. Instead, the CAS may accept a sports related dispute if the statutes or regulations designate that it has jurisdiction. The presentation analysed whether sports- related arbitration would be covered under the ambit of commercial awards for them to be recognised and enforced in Indonesia under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958.

The final speakers, Mr. Gautam Mohanty from Kozminski University and Dr. Wasiq Abass Dar from O.P. Jindal Global University presented their paper on ‘Strategic Leveraging of Party Autonomy in Private International Law: Determining the Limits in International Commercial Arbitration’. The presentation focused on demarcating the outer limits of party autonomy in private international law. It particularly focused on mandatory rules and public policy as they are limitations to party autonomy. It highlighted the impact of new dimensions of mandatory rules and public policy on party autonomy. The presentation analyses the conflict of laws situation when tribunals are faced with a situation of having to disregard the applicable law chosen by the parties on account of overriding mandatory norms. It also analyses the role and application of international and transnational public policy. The presentation analysed the theoretical approaches taken by tribunals in relation to mandatory norms such as contractual, jurisdictional and the hybrid approach.

Foreign Judgments (Day 1, Panel 2)
Tobias Lutzi

The first panel dedicated to foreign judgments began with Aygun Mammadzada (Swansea Law School) making the case for the UK and Singapore ratifying the 2019 HCCH Judgments Convention. Compared to the common-law rules on recognition & enforcement (to which many European judgments will also be subject in the UK post-Brexit), she argued the Convention offers an acceptable, more streamlined framework, e.g. because it does not require a judgment creditor to seek a domestic decision based on the judgment debt.

Anna Wysocka-Bar (Jagiellonian University) then looked in more detail at the exclusion of contracts of carriage from the 2019 Convention (Art 2(1)(f), putting it into the context of the specific treatment those contracts also receive in other contexts. According to the speaker, this peculiar treatment appears to be primarily driven by the existence of other, potentially conflicting conventions such as the CMR Convention. Looking at the specific provisions in those Conventions pertaining to foreign judgments, though, Anna convincingly demonstrated that the potential for conflict is actually very small, making it difficult to justify the exclusion.

Jim Yang Teo (Singapore Management University) finally discussed the problem of res judicata within the framework of the Belt & Road Initiative, contrasting the approach advocated by China (based on a triple-identity test and limited to claim preclusion, at the exclusion of issue exclusion) with the transnational approach of the Singaporean courts emerging from Merck Sharp & Dohme Corp v Merck KGaA [2021] SGCA 14. According to the speaker, this latter approach, which notably includes consideration of comity, may be particularly relevant interesting in the context of an inherently transnational project like the Belt & Road Initiative.

Plenary Session 2
Michael Douglas

The second plenary session, chaired by Ardavan Arzandeh (NUS), explored some interesting issues of direct and indirect jurisdiction. Stephen GA Pitel (Western University) kicked things off with a presentation that was right up my ally: ‘The Extraterritorial Impact of Statutory Jurisdiction Provisions’. He considered the example of a jurisdictional provision of a privacy statute of British Columbia in matters with a foreign element. The specific example provoked consideration of a broader question: how should a forum deal with an applicable foreign statute which includes a provision that actions under the statute must be heard in a certain court of that foreign statute’s local jurisdiction? See Douez v Facebook, Inc [2017] 1 SCR 751. The Canadian approach seems sensible; I wonder if it can neatly transpose to my native Australia, which includes an explicit US-style full faith and credit provision in the Constitution. (Over coffee, my compatriots wondered whether our messy Cross-vesting Scheme would have a role to play.)

The other three presentations of the plenary were also compelling. Junhyok Jang (Sungkyunkwan University) spoke on ‘Jurisdiction over the Infringement of Personality Rights via the Internet from a Korean Perspective – Effects Test as an Alternative to the Quantitative Dépeçage of Shevill’. The Korean perspective was comparative; the presentation compared the South Korean approach to those of the EU and the US. While the presentation offered a view on how approaches to the topic were converging between jurisdictions, diversity remains. Eg in Australia, the mere occurrence of some of the damage in the jurisdiction—which in the case of defamation, could involve hurt feelings in the forum when present there—could justify exercise of long-arm jurisdiction, no matter how many elements the matter otherwise features. The speech was another reminder of the ongoing challenges that digital subject matter pose for the traditional territorialism of private international law.

Yeo Tiong Min (SMU), a home-town hero whose monograph on choice of law for equity is must-read material for common (private international) lawyers, looked at the res judicata effects of foreign judgments for issue estoppel in a presentation on ‘Challenging Foreign Judgments for Errors of Law and the Common Law’. (I will have to go away and read Merck Sharp & Dohme Corp v Merck KGaA (2021) 1 SLR 1102 properly.) Louise Ellen Teitz (Roger Williams University) rounded out the plenary with her speech on ‘Judgment Recognition and Parallel Litigation: The Carrot and Stick’. The presentation informed me of how the issue has been playing out in the USA, comparing the situation there to the work done in international fora like the HCCH. All the talk of lis pendens got me lis peckish for some lunch. Fortunately, it was lunchtime after this plenary.

Choice of Law (Day 3, Panel 3)
Zheng Sophia Tang

The panel focuses on choice of law, chaired by Prof Sophia Tang. Assoc Prof Dr Philippine Blajan at Sorbonne School of Law, University Paris 1 presented ‘The Combination of Party Autonomies in the Private International Law of Contracts: Security, Virtuosity, Tyranny?’ She proposed that, in civil and commercial practices, parties of a contract should attach importance to the interactions between choice of jurisdiction and choice of law. Firstly, the effect of choice of law is uncertain until the lex fori is identified. Secondly, even if there is a choice of court clause, one party could still bring a suit in another court in breach of the jurisdiction clause, and evade the mandatory provisions of the forum state. Through combining their choices, the parties enhance their freedom of contract because they escape a mandatory provision. Thirdly, Prof Blajan listed various types of combination between choice of law and choice of court clauses, including choice of state law and choice of state court, choice of state law and choice of non-state court, choice of non-state law and choice of non-state court and so on.

The second speaker is Prof Saloni Khanderia at OP Jindal University, who presented ‘The Law Applicable to Documentary Letters of Credit in India: A Riddle Wrapped in an Enigma?’ Prof Khanderia points out that letters of credit has received negligible attention from Indian lawmakers, regardless of their significance in fostering international trade in India. As there is no specific legislation for letter of credit in India, the UCP might be the only choice for the parties and the court. But there are several exceptions to the application of the UCP, including the agreements that are expressly excluded from the application of the UCP, claims containing allegations of fraud and so on. In such a case, the Indian court would apply lex fori. On the other hand, in lack of any supreme principles of the interpretation of application of law, courts are given great discretion to the application of the UCP and other laws. Prof Khanderia proposed limiting the application of the lex fori to adjudicate claims on fraud, and replacing the lex fori with the lex loci solutions to identify the country with which the contract has the closest and most real connection.

The third speaker Asst Prof Migliorini at the Uni of Macau presented ‘Contracts for the Transfer of Personal Data in Private International Law — A European Perspective’. In data transactions where the seller established in the EU and the buyer a non-EU jurisdiction, the GDPR would be applied extraterritorially. The GDPR would be applied as overriding mandatory rules under the context of cross-border transaction, which would lead to the conflict with the proper law of the transaction contract. However, could data be treated as ‘property’ and subject to a commercial contract? Would status of a fundamental right hamper the commercial transfer of personal data? Prof Migliorini suggests that contracts for transfer of personal data should be qualified as transfer of license to use the personal data, so that the complicated issues of personal data trading and human rights shall not arise and mandatory provisions of the law governing the initial license (i.e. the GDPR) should apply.

—

Overall, the conference highlighted the range and wealth of current research on PIL. It is no surprise that participants are already looking forward to the next JPIL conference, which will take place at University College London in September 2025.

Professor Yeo Tiong Min (Singapore Management University – Yong Pung How School of Law) has recently published a seminal book entitled “Commercial Conflict of Laws” (Academy Publishing, 2023).

 

 

The book aims to introduce readers to “the concept, principles and techniques of the common law of Singapore in dealing with problems in the conflict of laws, with an emphasis on cross-border commercial transactions” (p. v). The book consists of 14 chapters dealing with the core issues of private international law (conflict of laws), i.e. international jurisdiction (Chapters 2 to 7), foreign judgments (Chapters 8 to 10) and choice of law (Chapters 11 to 14).

The book’s blurb reads as follows:

 

“Understanding of the principles of conflict of laws is essential to lawyers who aim to service the highly globalised and interconnected economy of Singapore. This book deals with the central principles, methodologies, and controversies in the subject, with focus on topics that are relevant to commercial transactions. It examines the jurisdiction of the Singapore courts (including the Singapore International Commercial Court) in cross-border litigation, the effect of foreign judgments in Singapore, choice of law methodologies and their particular application to contractual and non-contractual obligations and inter vivos property transactions. The common law principles are discussed in the context of the framework of Singapore legislation, including the Choice of Court Agreements Act implementing the Hague Convention on Choice of Court Agreements, the refreshed Reciprocal Enforcement of Foreign Judgments Act, as well as the new Rules of Court of 2021.”

 

The book, which is the result of many years of expertise, will certainly provide readers with important comparative law elements on how private international law operates in Singapore based on its common law and statutory regimes.

 

It should be noted that earlier this year, Professor Yeo Tiong Min also published the course he delivered at the Hague Academy of International Law (Summer Course of Private International Law of 2022). The course is entitled “Common Law, Equity and Statute: The Effect of Juridical Sources on Choice-of-Law Methodology”, Collected Courses of the Hague Academy of International Law, Vol. 431 (2023).

On 11 August 2023, the American Journal of Comparative Law, published an article online titled: “The Myth of Transnational Public Policy in International Arbitration”  The abstract reads as follows:

This Article traces the concept of transnational public policy as developed in the context of international arbitration at the intersection between legal theory and practice. The emergence of such a transnational public policy, it is claimed, would enable arbitrators to safeguard and ultimately to define the public interests that need to be protected in a globalized economy, irrespective of national laws. A historical contextualization of efforts to empower merchants and their practices in Germany and the United States in the nineteenth and early twentieth centuries highlights their reliance on the mythical lex mercatoria that shaped English commercial law. Further contextualization is offered by the postwar invocation of “general principles of law recognized by civilized nations,” to keep at bay the application of supposedly less civilized, parochial legal orders, and by the consequent emergence of the “new” lex mercatoria as conceptualized especially in France. These developments paved the way, on the theory side, for later conceptualizations of self-constitutionalizing law beyond the state, especially by Gunther Teubner, and, on the practice side, for the notion of transnational public policy developed by arbitrators, especially by Emmanuel Gaillard, culminating in jurisprudential claims of an autonomous arbitral legal order with a regulatory dimension. In all these constructions, the recourse to comparative law has been a crucial element. Against this rough intellectual history, the Article offers a critique of today’s construction of transnational public policy by probing into its constitutional dimension and the respective roles of private and public interests. This allows, in particular, to draw on parallels to historic U.S. constitutional debates on the allocation of regulatory powers in federalism.

The Department of Private International Law at the University of Groningen is looking for an assistant professor in the field of European private international law to strengthen education and research. Candidates from outside the Netherlands are expressly invited to apply.

The responsibilities include: teaching English language classes on private international law within the existing bachelor- and master programmes; supervising bachelor and master theses in the field of private international law; conducting research within the area of European private international law (in line with the Faculty’s research programme PIPR (Public Interests and Private Relationships); supervising PhD projects together with the Professor of Private International Law; engage in the development of research projects.

Applications must be filed by 31 August 2023, at the end of the day, through a dedicated form.

More information can be found here..

In Crane Bank Ltd & Ors v DFCU Bank Ltd & Ors [2023] EWCA Civ 886 core issue is the scope and application of the foreign act of state rule and of the limitations and exceptions to which it is subject. The foreign act of state rule in its narrow sense essentially holds that courts should not question the validity of acts taken by a foreign government within that government’s territory – see Reliance. [2] the facts:

The first appellant, Crane Bank Limited (“CBL”), was formerly a major commercial bank in Uganda. The second to seventh appellants are shareholders in CBL. In these proceedings the appellants assert that from about Spring 2016 senior Ugandan government officials and officials of the Bank of Uganda (“the BoU”) engaged in a corrupt scheme to take control of CBL, making improper use of statutory and regulatory powers to do so, and then to sell its assets for the benefit of the parties to the scheme. The appellants allege that the first respondent (“DFCU Bank”), another Ugandan commercial bank, joined the corrupt scheme as purchaser of CBL’s assets from the BoU (acting as receiver of CBL), that purchase being at a gross undervalue. DFCU Bank’s holding company (the second respondent) and certain current and former executives and directors of DFCU Bank (the third to fifth respondents) are also alleged to have joined the scheme

[5] appellants contend that the first instance Judge should have found that there was at least a serious issue to be tried (for the purpose of founding jurisdiction) that:

i) the sale by the BoU (as receiver) to DFCU Bank was commercial rather than sovereign in character, therefore falling outside the foreign act of state rule (“the Commercial Activity Exception”); and/or

ii) all of the executive acts in question engaged the English public policy of combatting and not giving legal protection to bribery and corruption, therefore falling outside the foreign act of state rule (“the Public Policy Exception”); and/or

iii) investigating the acts of bribery and corruption alleged against DFCU Bank in paragraph 69(m) of the Amended Particulars of Claim (“the APoC”) did not require the Court to inquire into or adjudicate on the legality of executive acts of the Ugandan state, and so would not infringe the foreign act of state rule (“the Kirkpatrick Exception”); and/or

iv) the application of the foreign act of state rule in this case would be incompatible with Article 6 of the European Convention on Human Rights and therefore contrary to s.6 of the Human Rights Act 1998 (“the Article 6 issue”).

The Foreign Act of State rule is expressed [13] as that courts “will not adjudicate or sit in judgment on the lawfulness or validity under its own law of an executive act of a foreign state, performed within the territory of that state”. It is different from foreign sovereign immunity:“Whereas immunity bars an otherwise good legal claim against a specific person, the foreign act of state rule provides that a claim which falls within it is not a good claim at all as a matter of English law, no matter the identity of the defendant” ([69]).

For his definition, Lord Justice Philipps refers to the Supreme Court in “Maduro Board” of the Central Bank of Venezuela v “Guaidó Board” of the Central Bank of Venezuela [2023] AC 156. Futher reference is made [14] to Yukos Capital for the exceptions:

Yukos Capital (No. 2) [2014] QB 458 at [68]-[115]. For the purposes of the appeal, the following are relevant:

(i) the Public Policy Exception:

“”[T]he doctrine will not apply to foreign acts of state which are in breach of clearly established rules of international law, or are contrary to English principles of public policy, as well as where there is a grave infringement of human rights”. (Oppenheimer v Cattermole [1976] AC 249, 277–278, per Lord Cross; Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883; Yukos Capital (No 2), paras 69-72.)”

(ii) the Commercial Activity Exception:

“The doctrine does not apply where the conduct of the foreign state is of a commercial as opposed to a sovereign character. (Empresa Exportadora de Azucar v Industria Azucarera Nacional SA (The Playa Larga) [1983] 2 Lloyd’s Rep 171; Korea National Insurance Corpn v Allianz Global Corporate & Specialty AG [2008] EWCA Civ 1355; [2008] 2 CLC 837; Yukos Capital (No 2), paras 92-94.)”

(iii) the Kirkpatrick Exception:

“The doctrine does not apply where the only issue is whether certain acts have occurred, as opposed to where the court is asked to inquire into them for the purpose of adjudicating on their legal effectiveness. (Kirkpatrick (1990) 493 US 400; Yukos Capital (No 2), paras 95-104.)”

The appeal was not allowed on the latter exception but it was on the other two, with Phillips LJ giving complete yet concise analysis of such good quality that there is little point in trying to summarise it here: please refer to the judgment.

I will say a little more about the A6 ECHR argument. The discussion here echoes the discussion in SKAT on Dicey Rule 3 and substantive v jurisdictional rules, and Belhaj v Straw [2017] UKSC 3: where Phillips LJ refers to distinction between domestic laws which excluded liability (which do not engage Article 6) and procedural bars (which do). [71] it is held that the result of foreign act of State is that  domestic law provides a complete defence to what would otherwise be an actionable (therefore A6 ECHR kosher) claim and [72] that, if a proportionality test were to be introduced in foreign act of State (so as to meet alleged A6 ECHR standards), “it would have a major impact on the rule and its applications”. That latter statement I would suggest does not cut much ice in light of a potential ECHR incompatibility.

There is undoubtedly more to be said however seeing as the appeal was largely successful, no more is to be expected from appellants at least on these issues.

Geert.

! scope & application of foreign act of state rule and of the limitations and exceptions to which it is subject.
Ia whether there is impact from A6 ECHR rights

Crane Bank Ltd & Ors v DFCU Bank Ltd & Ors [2023] EWCA Civ 886https://t.co/26BU9W9fOs

— Geert Van Calster (@GAVClaw) July 27, 2023

2024 applications for a 6-month internship in The Hague, Netherlands are now open for Australian law school graduates

The Australian Institute of International Affairs and the Australian Branch of the International Law Association call for applications for the 2024 Peter Nygh Hague Conference Internship.

Awarded annually, the Nygh internship offers a postgraduate student or graduate of an Australian law school the exciting opportunity to undertake a 6-month internship with The Hague Conference on Private International Law, in the Netherlands.

The successful applicant will have the chance to work with some of the world’s leading private international law practitioners and will be provided with finances to assist with travel costs and living expenses.

Previous Nygh interns have worked on projects in fields including: family law; evidence and access to justice; cross border flow of personal data; migration; civil liability for trans-boundary harm and commercial dispute resolution. For many interns, the opportunity to observe the negotiation of an international convention first-hand has been a highlight of their internship, all whilst living and working in the Netherlands.

English and French are the two working languages of the Hague Conference and Australian law graduates and final year law students with French language skills are encouraged to apply for the internship.

The Peter Nygh Hague Conference Internship was established in memory of the late Hon Dr Peter Nygh AM, a renowned international lawyer and former judge of the Family Court of Australia.

Applications for the 2024 Nygh Internship close on 30 September 2023. For further information and application instructions visit: http://www.internationalaffairs.org.au/youth-andcommunity/nygh-internship/ or email Nicola Nygh at nicola.nygh@rllawyers.com.au

Media enquiries: Natasha Eloise | Media & Communications (+61) (02) 6282 2133 | 0406 664 510 | natasha.eloise@internationalaffairs.org.au

The ILA Australian Branch is pleased to present the first seminar in its 2023 Early Career Seminar Series on topics in private international law.

The event will be an online lunch time discussion on Thursday, 17 August 2023 at 1.00pm AEST.

The panel will feature the speakers below.

Speakers and topics:

Dr Sarah McKibbin, University of Southern Queensland: The Australian Doctrine of Forum Non Conveniens in Practice

Rachel Van Der Veen, Australian Public Service: Fiduciary Duties and the 1985 Trusts Convention

Commentator: Dr Brooke Marshall, UNSW Sydney

Chair: Danielle Kroon, Marque Lawyers

 

Further details including registration are here.

Lawrence Collins (UCL, former Justice of the UK Supreme Court) has posted Reflections on the Law Governing Confidentiality in Arbitration on SSRN.

The abstract reads:

The paper considers the law governing confidentiality in international arbitration, and in particular where there is a binary choice between the law governing the arbitration agreement and the law of the seat of the arbitration. The paper concludes that not only is there no binary choice, but also that the solution may depend upon the forum in which the issue arises, and that it will be only very rarely that the issue will need to be addressed directly.

The paper was published in Brekoulakis et al (eds), Achieving the Arbitration Dream: Liber Amicorum for Professor Julian DM Lew (Wolters Kluwer, 2023).

Now published on SSRN, Paul Herrup and Ron Brand from the University of Pittsburgh School of Law have taken “A Further Look at a Hague Convention on Concurrent Proceedings.”

The current project of the Hague Conference on Private International Law has reached a critical juncture that requires careful consideration of the terms that delineate the scope of the proposed convention. Work to date has not followed the mandate of the Council on General Affairs and Policy to produce a convention that would deal with concurrent proceedings, understood as including pure parallel proceedings and related actions. In two previous articles they have addressed the practical needs that should be addressed by the concurrent proceedings project and the general architecture of such a convention. The process is now mired in terminological confusion that has hampered progress on a practical result. Differing interpretations of the directions given to those doing the work has led to situations in which the participants have been speaking past each other. In this article, they provide a reminder of the common law/civil law divergence of approaches to concurrent litigation; review the approach taken in the EU’s Brussels I (Recast) Regulation and the problems it has created; and offer suggestions regarding the proper scope and architecture of a global convention addressing the problem of concurrent proceedings.