Droit international général

The Faculty of Law, Brawijaya University, Indonesia is organizing a one-day international online seminar on Private International Law in Islamic Countries – Developments and Challenges. The main purpose of the seminar is to examine and discuss the current situation of private international law in Islamic countries especially from the point of view of the influence of religion (Sharia/Islamic law) on the regulation of private international relationships.

Participation is free but online registration (here)  is kindly requested to receive the link to the conference, which will be emailed shortly before the event.

After registering, attendees will receive a confirmation email containing information about joining the webinar. The event will also be live streamed via YouTube (here). E-certificate for attendance will also be issued for attendees to prove that they joined the online seminar.

Details about the forthcoming seminar are as follows:

Date: 24 August 2021

Time: 13:00 (Western Indonesia Time); 14:00 (Brunei & Hong Kong Time); 15:00 (Japan Time)

Program (details can be found here):

1. Admittance for Key-note Speaker, Invited Speakers, and Seminar
2. Opening Ceremony by the Dean of the Faculty of Law, Brawijaya
3. Keynote Speech by Professor Yun Zhao, Representative of the HCCH Regional Office for Asia and the Pacific
4. Seminar Presentation (Moderator: Cyndiarnis, SH. MKn)

• • a. Associate Professor Béligh Elbalti, Ph.D., Graduate School of Law and Politics, Osaka University (The Influence of Islamic Law Principles on the Treatment of International Private Relationships – Family Law as Example)
  • b. Nobumichi Teramura, Assistant Professor of the Institute of Asian Studies, and University of Brunei Darussalam (Shariah as the Law Applicable to an International Commercial Contract: Challenges and Opportunities in Australia and Brunei)
  • c. Afifah Kusumadara, SH. LL.M. SJD., Faculty of Law, Brawijaya University (The connecting factors to determine the applicable law and the court jurisdiction in Indonesia: The interference of religion)

5. Question and Answer
6. Photo Session and Closing
7. Announcement by the M.C. concerning:

• • Certificates of Participation
  • Seminar materials

Any enquiries should be directed to seminar_pil@ub.ac.id. The organisers are looking forward to having fruitful discussion with and exchange of ideas among all participants.

 

 

A foreign judgment that cannot be enforced is useless no matter how well it is/was written. The fact that a foreign judgment can be readily enforced aids the prompt settlement of disputes and makes international commercial transactions more effective.  The importance of the enforcement of foreign judgments cannot be over-emhpasised because international commercial parties are likely to lose confidence in a system that does not protect their interests in the form of recognising and enforcing a foreign judgment.

Today Hart published a new private international law monograph focused on the recognition and enforcement of foreign judgments. Its title is “The Hague Judgments Convention and Commonwealth Model Law: A Pragmatic Perspective.” The author of this monograph is Dr Abubakri Yekini of the Lagos State University. The monograph is based on his PhD thesis at the University of Aberdeen titled “A Critical Analysis of the Hague Judgments Convention and Commonwealth Model Law from a Pragmatic Perspective.”

The abstract of the book reads as follows:

“This book undertakes a systematic analysis of the 2019 Hague Judgments Convention, the 2005 Hague Choice of Court Convention 2005, and the 2017 Commonwealth Model Law on recognition and Enforcement of Foreign Judgments from a pragmatic perspective.

The book builds on the concept of pragmatism in private international law within the context of recognition and enforcement of judgments. It demonstrates the practical application of legal pragmatism by setting up a toolbox (pragmatic goals and methods) that will assist courts and policymakers in developing an effective and efficient judgments’ enforcement scheme at national, bilateral and multilateral levels.

Practitioners, national courts, policymakers, academics, students and litigants will benefit from the book’s comparative approach using case law from the United Kingdom and other leading Commonwealth States, the United States, and the Court of Justice of the European Union. The book also provides interesting findings from the empirical research on the refusal of recognition and enforcement in the UK and the Commonwealth statutory registration schemes respectively.”

I have had the benefit of reading this piece once and can confidently recommend it to anyone interested in the important topic of recognition and enforcement of foreign judgments. The pragmatic approach utilised in the book makes the work an interesting read. My prediction is that this book will endure for a long time, and will likely be utilised in adjudication.

Background

In the judgment in TeamBank dated 19 January 2019, the CJEU ruled that Article 14 of the Rome I Regulation does nothing to identify the law governing the effects of assignment in relation to third parties. The court referred, inter alia, to Article 27(2) of the Rome I Regulation, which tasked the Commission to report on this issue and propose an amendment to the Regulation. In the meantime, the question will be governed by national conflict-of-laws rules.

But by which one? This interesting point was subsequently decided in a judgment by the Court of Appeal (Oberlandesgericht) Saarbrücken (Germany), which had requested the preliminary ruling from the CJEU.

German Conflicts Rule on Third-party Effects of Assignment

The legal situation in Germany in this respect is somewhat unclear. Until 2009, the Introductory Act to the German Civil Code (EGBGB) featured a rule on the law applicable to assignment in its former Article 33. Although this provision did not explicitly address third-party effects, it was interpreted by the courts and most authors as submitting them to the law of the assigned claim. Yet Article 33 EGBGB was repealed in 2009 by the German legislator because it considered the rule as no longer necessary due to entry into force of the Rome I Regulation.

Thus, the important gap of the Rome I Regulation regarding third-party effects of assignment, which the CJEU had correctly identified in TeamBank, became all the more significant. To close it, the Court of Appeal Saarbrücken refers to the old EGBGB rule and its long-standing interpretation. In the eyes of the court, the repeal of the provision does not matter, given the advantages of applying the law of the assigned claim to third-party effects. Specifically, the court highlights the rule’s contribution to the goal of legal certainty, which could not be achieved by other connecting factors. Moreover, it explicitly rejects the habitual residence of the assignor in this context, as it would not allow the same degree of predictability in the case of sequential assignments.

The Decision

Applying this conflicts rule, the court determines the law of Luxembourg as governing the third-party effects in the present litigation. To recall: In the underlying case, a Luxembourgish civil servant habitually resident in Germany had twice assigned her salary claims against her employer, first to a bank in Germany and thereafter to a bank in Luxembourg, before becoming bankrupt. The debtor was only informed of the second assignment. Afterwards, the two banks had a dispute about the rights to the salary.

The Court of Appeal starts by considering the validity of the first assignment from the point of view of German substantive law, which governs the assignment under Art 14(2) Rome I Regulation. However, these considerations were ultimately futile. Only thereafter did the court address the real issue, i.e. the law applicable to the third-party effects of the assignment.

Since the claim assigned was governed by Luxembourgish law, the court held the same to be applicable to the dispute between the banks before it. Based on an expert opinion, the court considers only the second assignment, which had been notified to the debtor, as valid under Luxembourg law. The fact that the previous assignment is valid under German law without any notice to the debtor would not matter as Luxembourgish law governs the third-party effects of both assignments.

A Look at the Commission Proposal

The Court of Appeal does not fail to acknowledge that under the European Commission’s Proposal for a Regulation on the law applicable to the third-party effects of assignment of claims, the connecting factor will be different because the habitual residence of the assignor takes centre stage (see Article 4(1) of the Proposal). However, the court also points to the various exceptions to this rule in Article 4(2) and (3) of the Proposal. Moreover, it points to the rule for priority conflicts in Article 4(4) of the Proposal. The court takes the view that the latter rule would have yielded the same result it had reached in the present case, i.e. the applicability of the law of Luxembourg.

It is respectfully submitted that the court erred on this last point. Article 4(4) of the Proposal contains a rule for priority conflicts that may arise where two assignments are covered by Article 4(1) and Article 4(2) or (3) of the Proposal. It therefore presupposes the applicability of two diverging connecting factors – habitual residence on the one hand, and the law governing the claim on the other. This, however, was not the case in the situation faced by the Court of Appeal, in which the one and the same rule and connecting factor – that of the habitual residence under Article 4(1) of the Proposal – would have been applicable. Had the Proposal already been adopted, it would thus have resulted in the applicability of German law and, consequently, the validity of the first assignment.

Conclusion

The case offers two take-aways: First, there is still considerable support in national courts for the law of the assigned claim as the relevant connecting factor for third-party effects of assignment. The long-awaited Regulation of the Commission will thus have to entail significant changes in the attitudes.

Second, the case illustrates that the complex Commission’s Proposal lends itself to misunderstandings, even in its – easier – original form. One of the major challenges will be to educate lawyers about its meaning and secure its correct application by courts throughout the Union.

Many thanks to Verena Wodniansky-Wildenfeld and Amy Held for their contribution to this post.

Yesterday (10 August 2021), the Hague Conference issued a press release according to which, on 23 July 2021, New Zealand ratified the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, which will enter into force for it on 1 November 2021.

Source : https://www.hcch.net/en/news-archive/details/?varevent=814

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 12 August 2021 at 5:00 pm (Mexico City time – CDT), 12:00 am (CEST time). The topic of the webinar is two thesis on private international law and will be presented by Professor Leonel Pereznieto Castro (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/84229739402?pwd=bXlib3IzQnkvUjlzS0VTbVQvcEpLQT09

Meeting ID: 842 2973 9402

Password: BMAAMEDIP

Participation is free of charge. This event will also be streamed live: https://www.facebook.com/AmedipMX

 

 

AMEDIP is also giving a series of lectures in a course addressed to judges and judicial officers, among others. This course consists of 100 hours of lectures on Private International Law and is being organized by the Federal Judicial School of Mexico. The program is available here.

As this course deals with a broad range of topics, it will have an impact on the better understanding of Private International Law in the Mexican judicial branch and may lead to better decision making in international cases. For more information, click here.

 

The Brazilian Association of Internationalist Lawyers (ABRINTER) will hold on August 11 and 12 its 1st Cycle of Lectures with the theme “Perspectives and Challenges of the New Borderless Law Practice” (in Portuguese).

 

The event brings 27 lectures on various topics involving law and international private law practice, and celebrates the cooperation protocols signed by the Brazilian association and the Federation of Young Lawyers from Mexico (Mexico) and the Algarve Law Association (Portugal).

 

Registration is free of charge. To register access the ABRINTER’s website: https://www.abrinter.adv.br/

Online Event on 11 and 12 August

The Brazilian Association of Internationalist Lawyers (ABRINTER) will hold on August 11 and 12 its 1st Cycle of Lectures with the theme “Perspectives and Challenges of the New Borderless Law Practice” (in Portuguese).

The event brings 27 lectures on various topics involving law and international private law practice, and celebrates the cooperation protocols signed by the Brazilian association and the Federation of Young Lawyers from Mexico (Mexico) and the Algarve Law Association (Portugal). This online event involves lawyers from Brazil, Mexico, and Portugal.

Registration is free of charge. To register access the ABRINTER’s website: https://www.abrinter.adv.br/“

The Brazilian Association of Internationalist Lawyers (ABRINTER) will hold on August 11 and 12 its 1st Cycle of Lectures with the theme “Perspectives and Challenges of the New Borderless Law Practice” (in Portuguese).

 

The event brings 27 lectures on various topics involving law and international private law practice, and celebrates the cooperation protocols signed by the Brazilian association and the Federation of Young Lawyers from Mexico (Mexico) and the Algarve Law Association (Portugal).

 

Registration is free of charge. To register access the ABRINTER’s website: https://www.abrinter.adv.br/

Tort Choice of Law Rules in Cross-border Multi-party Litigation under European and Chinese Private International Law

By Zhen Chen, PhD Researcher, University of Groningen

This blog post is part of the article ‘Tort Conflicts Rules in Cross-border Multi-party Litigation: Which Law Has a Closer or the Closest Connection?’ published by the Maastricht Journal of European and Comparative Law with open access, available at https://doi.org/10.1177/1023263X211034103. A related previous post is ‘Personal Injury and Article 4(3) of Rome II Regulation’, available here https://conflictoflaws.net/2021/personal-injury-and-article-43-of-rome-ii-regulation/

This article compares Owen v. Galgey under Article 4 Rome II Regulation and YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act in the context of cross-border multi-party litigation on tort liability. As to the interpretation of tort conflicts rules, such as lex loci delicti, the notion of ‘damage’, lex domicilii communis and the closer/closest connection test, these two cases demonstrate different approaches adopted in European and Chinese private international law. This article does not intend to reach a conclusion which law is better between Rome II Regulation and Chinese Conflicts Act, but rather highlights on a common challenge faced by both Chinese courts and English courts in international tort litigation and how to tackle such challenge in an efficient way.

I. Tort conflicts rules in China and the EU
It is widely accepted rule that lex loci delicti will be the applicable law for cross-border tort liability in private international law. This is also the case in China and the EU. The application of lex loci delicti, as a general rule, is stipulated in Article 44 Chinese Conflicts Act and Article 4(1) Rome II Regulation. However, Article 4(1) Rome II Regulation explicitly refers to the place of damage, namely ‘the law of the country in which the damage occurs’ (lex loci damni), and expressly excludes the place of wrong (‘the country in which the event giving rise to the damage occurred’) and the place of consequential loss (‘the country or countries in which the indirect consequences of that event occur’). By contrast, it remains unclear whether lex loci delicti in Article 44 Chinese Conflicts Act merely refers to lex loci damni, as such provision does not expressly state so.

The application of lex loci delicti in China and the EU is subject to several exceptions. Specifically, lex loci delicti is superseded by the law chosen by the parties under Article 44 Chinese Conflicts Act and Article 14 Rome II Regulation, while lex domicilii communis takes precedence over lex loci delicti under Article 44 Chinese Conflicts Act and Article 4(2) Rome II Regulation. Moreover, the escape clause enshrined in Article 4(3) Rome II Regulation gives priority to the law of the country which has a ‘manifestly closer connection’ with the tort/delict, of which the pre-existing relationship between the parties might be a contract. By contrast, Article 44 Chinese Conflicts Act does not provide an escape clause, but the closest connection principle, which is comparable to the closer connection test in Article 4(3) Rome II, is stipulated in several other provisions.

The questions raised in YANG Shuying v. British Carnival Cruise and Owen v. Galgey were how to determine the applicable law to tort liability in multiparty litigation under Article 44 Chinese Conflicts Act and Article 4 Rome II Regulation and what are the criteria for the closer/closest connection test.

II. Owen v. Galgey under Article 4 Rome II Regulation
In case Owen v. Galgey , a British citizen Gary Owen domiciled in England, fell into an empty swimming pool which was undergoing renovation works at a villa in France owned by the Galgey Couple, domiciled in England, as a holiday home. The British victim sued the British couple, their French public liability insurer, the French contractor carrying out renovation works on the swimming pool and its French public liability insurer for personal injury compensation. As regards which law is applicable, the British victim contended that French law should be applied by virtue of Article 4(3) Rome II Regulation, since the tort was manifestly more closely connected with France than it was with England. The British defendants held that English law should be applicable law under Article 4(2) Rome II Regulation, because the claimant and the defendants were habitually resident in England. The English High Court held the case was manifestly more closely connected with France, because France was the country where the centre of gravity of the situation was located.

III. YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act

In case YANG Shuying v. British Carnival Cruise, a Chinese tourist domiciled in China, sued the British Carnival Cruise Company, incorporated in the UK, for personal injury sustained in a swimming pool accident happened in the cruise when it was located on the high seas. The plaintiff signed an outbound travel contract with Zhejiang China Travel Agency for such cruise tour. The plaintiff held that English law, as the lex loci delicti, should be applicable since the parties did not share common habitual residence in China and the accident occurred on the cruise, which can be regarded as the territory of the UK according to the floating territory theory. The place of wrong and the place of damage were both on the cruise under Article 44 Chinese Conflicts Act. The defendant and the third party argued that Chinese law should be applied since the parties had common habitual residence in China, the floating territory theory was inapplicable and the (indirect) damage of the tort took place in China.

The Shanghai Maritime Court adopted a strict interpretation of the term ‘the parties’ by excluding the third party and denied the application of floating territory theory in this case. The court held that the application of the lex loci delicti leads to neither English law nor Chinese law. Instead, it is advisable to apply the closest connection principle to determine the applicable law. Based on a quantitative and qualitative analysis ofTort Choice of Law Rules in Cross-border Multi-party Litigation under European and Chinese Private International Law

Zhen Chen

This blog post is part of the article ‘Tort Conflicts Rules in Cross-border Multi-party Litigation: Which Law Has a Closer or the Closest Connection?’ published by the Maastricht Journal of European and Comparative Law with open access, available at https://doi.org/10.1177/1023263X211034103. A related previous post is ‘Personal Injury and Article 4(3) of Rome II Regulation’, available here https://conflictoflaws.net/2021/personal-injury-and-article-43-of-rome-ii-regulation/

This article compares Owen v. Galgey under Article 4 Rome II Regulation and YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act in the context of cross-border multi-party litigation on tort liability. As to the interpretation of tort conflicts rules, such as lex loci delicti, the notion of ‘damage’, lex domicilii communis and the closer/closest connection test, these two cases demonstrate different approaches adopted in European and Chinese private international law. This article does not intend to reach a conclusion which law is better between Rome II Regulation and Chinese Conflicts Act, but rather highlights on a common challenge faced by both Chinese courts and English courts in international tort litigation and how to tackle such challenge in an efficient way.

I. Tort conflicts rules in China and the EU
It is widely accepted rule that lex loci delicti will be the applicable law for cross-border tort liability in private international law. This is also the case in China and the EU. The application of lex loci delicti, as a general rule, is stipulated in Article 44 Chinese Conflicts Act and Article 4(1) Rome II Regulation. However, Article 4(1) Rome II Regulation explicitly refers to the place of damage, namely ‘the law of the country in which the damage occurs’ (lex loci damni), and expressly excludes the place of wrong (‘the country in which the event giving rise to the damage occurred’) and the place of consequential loss (‘the country or countries in which the indirect consequences of that event occur’). By contrast, it remains unclear whether lex loci delicti in Article 44 Chinese Conflicts Act merely refers to lex loci damni, as such provision does not expressly state so.

The application of lex loci delicti in China and the EU is subject to several exceptions. Specifically, lex loci delicti is superseded by the law chosen by the parties under Article 44 Chinese Conflicts Act and Article 14 Rome II Regulation, while lex domicilii communis takes precedence over lex loci delicti under Article 44 Chinese Conflicts Act and Article 4(2) Rome II Regulation. Moreover, the escape clause enshrined in Article 4(3) Rome II Regulation gives priority to the law of the country which has a ‘manifestly closer connection’ with the tort/delict, of which the pre-existing relationship between the parties might be a contract. By contrast, Article 44 Chinese Conflicts Act does not provide an escape clause, but the closest connection principle, which is comparable to the closer connection test in Article 4(3) Rome II, is stipulated in several other provisions.

The questions raised in YANG Shuying v. British Carnival Cruise and Owen v. Galgey were how to determine the applicable law to tort liability in multiparty litigation under Article 44 Chinese Conflicts Act and Article 4 Rome II Regulation and what are the criteria for the closer/closest connection test.

II. Owen v. Galgey under Article 4 Rome II Regulation
In case Owen v. Galgey , a British citizen Gary Owen domiciled in England, fell into an empty swimming pool which was undergoing renovation works at a villa in France owned by the Galgey Couple, domiciled in England, as a holiday home. The British victim sued the British couple, their French public liability insurer, the French contractor carrying out renovation works on the swimming pool and its French public liability insurer for personal injury compensation. As regards which law is applicable, the British victim contended that French law should be applied by virtue of Article 4(3) Rome II Regulation, since the tort was manifestly more closely connected with France than it was with England. The British defendants held that English law should be applicable law under Article 4(2) Rome II Regulation, because the claimant and the defendants were habitually resident in England. The English High Court held the case was manifestly more closely connected with France, because France was the country where the centre of gravity of the situation was located.

III. YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act

In case YANG Shuying v. British Carnival Cruise, a Chinese tourist domiciled in China, sued the British Carnival Cruise Company, incorporated in the UK, for personal injury sustained in a swimming pool accident happened in the cruise when it was located on the high seas. The plaintiff signed an outbound travel contract with Zhejiang China Travel Agency for such cruise tour. The plaintiff held that English law, as the lex loci delicti, should be applicable since the parties did not share common habitual residence in China and the accident occurred on the cruise, which can be regarded as the territory of the UK according to the floating territory theory. The place of wrong and the place of damage were both on the cruise under Article 44 Chinese Conflicts Act. The defendant and the third party argued that Chinese law should be applied since the parties had common habitual residence in China, the floating territory theory was inapplicable and the (indirect) damage of the tort took place in China.

The Shanghai Maritime Court adopted a strict interpretation of the term ‘the parties’ by excluding the third party and denied the application of floating territory theory in this case. The court held that the application of the lex loci delicti leads to neither English law nor Chinese law. Instead, it is advisable to apply the closest connection principle to determine the applicable law. Based on a quantitative and qualitative analysis of all connecting factors, the court concluded that China had the closest connection with the case and Chinese law applied accordingly.

IV. Comments

Both Article 44 Chinese Conflicts Act and Article 4 Rome II Regulation apply to multi-party litigation on tort liability. Article 4(1) Rome II merely refers to lex loci damni and limits the concept ‘damage’ to direct damage, whilst Article 44 Chinese Conflicts Act can be interpreted broadly to cover the law of the place of wrong and the term ‘damage’ include both direct damage and indirect damage or consequential loss. As to lex domicilii communis, the law of the country of the common habitual residence of some of the parties, instead of all parties, should not be applicable in accordance with Article 4(2) Rome II and Article 44 Chinese Conflicts Act. The exercise of the closest connection principle or the manifestly closer connection test under 44 Chinese Conflicts Act and Article 4(3) Rome II Regulation requires the the consideration of all relevant factors or all the circumstances in the case. When conducting a balancing test, the factor of the place of direct damage should not be given too much weight to the extent that all other relevant factors are disregarded. A quantitive and qualitative analysis should be conducted to elaborate the relevance or weight of each factor to determine the centre of gravity of a legal relationship.
all connecting factors, the court concluded that China had the closest connection with the case and Chinese law applied accordingly.

IV. Comments

Both Article 44 Chinese Conflicts Act and Article 4 Rome II Regulation apply to multi-party litigation on tort liability. Article 4(1) Rome II merely refers to lex loci damni and limits the concept ‘damage’ to direct damage, whilst Article 44 Chinese Conflicts Act can be interpreted broadly to cover the law of the place of wrong and the term ‘damage’ include both direct damage and indirect damage or consequential loss. As to lex domicilii communis, the law of the country of the common habitual residence of some of the parties, instead of all parties, should not be applicable in accordance with Article 4(2) Rome II and Article 44 Chinese Conflicts Act. The exercise of the closest connection principle or the manifestly closer connection test under 44 Chinese Conflicts Act and Article 4(3) Rome II Regulation requires the the consideration of all relevant factors or all the circumstances in the case. When conducting a balancing test, the factor of the place of direct damage should not be given too much weight to the extent that all other relevant factors are disregarded. A quantitive and qualitative analysis should be conducted to elaborate the relevance or weight of each factor to determine the centre of gravity of a legal relationship.

The Jean Monnet Network – BRIDGE project, cofunded by EU Erasmus+ Programme, and the Latin American Center of European Studies invite the academic community to submit scientific papers to the Workshop event of the II Jean Monnet Network Seminar on “Migration and Citizenship in the European Union and Latin America”, which will be held virtually on the 9 November 2021, hosted by the Federal University of Santa Catarina (Brazil).

The selected articles will be invited to publish in the Latin American Journal of European Studies or in the Collection of the Workshop.  The top two articles will also receive an award of EUR 250 each.

Those who are interested must submit the article by 15 October 2021 to the email: network@eurolatinstudies.com.

Call for papers – English

Call for papers – Spanish

Call for Paper – Portuguese

More information here.

The first issue of the Latin American Journal of European Studies (ISSN 2763-8685) has just been published. It is an open access publication of the Latin American Center of European Studies, created by the BRIDGE Project of Jean Monnet Network with funding from the Erasmus + Program of the European Commission.

The main purpose of the Journal is to publish research related to the European Union Law and Policies and International Relations of the European Union with third countries and Latin America to create new knowledge, build bridges of dialogue, as well exchange good practices between these regions.

The second issue of the Journal is open to submission until November 1st, 2021 and contains a thematic dossier on Migration and Citizenship in the EU and Latin America.

The 2021-1 edition includes the following articles:

 

Dossier: EU-Latin America trade and investment relations

Las relaciones Eurolatinoamericanas en el marco de la nueva política comercial de la Unión Europea, p. 14-37

Carlos Francisco Molina del Pozo

 

Environmental conditionality in Eu-Latin America trade relations, p. 38-63

Giulia D’Agnone

 

El derecho de los tratados en el arbitraje de inversión intra-Unión Europea, p. 64-108

Rafael Tamayo-Álvarez

 

Sistema de solución de controversias en materia de inversiones en los tratados negociados por la Unión Europea con México y el Mercosur (2019/2020): Un estúdio comparativo, p. 109-138

Gabriela Teresita Mastaglia

 

Uma década de política europeia de investimento estrangeiro: balanço e perspectivas futuras, p. 139-156

Maria João Palma

 

Unión Europea-América Latina y el Caribe: comercio e inversión y el acuerdo de asociación Unión Europea-Mercosur en su pilar comercial y sus potenciales efectos em el sector agroindustrial, p. 157-199

Silvia Simonit

 

La integración Centroamericana y el acuerdo de asociación entre esa región y la Unión Europea, p. 200-230

Nancy Eunice Alas Moreno

 

A cooperação jurídica dentro da União Europeia e do Mercosul: a agilização do processo civil internacional no âmbito da regionalização, p. 231-253

Marcel Zernikow

 

A abertura ao comércio internacional da contratação pública no Brasil: entre o Acordo sobre Compras Governamentais (GPA) e o acordo EU/Mercosul, p. 254-296

Nuno Cunha Rodrigues

 

Articles

Data protection implications through an inner-connected world: European Union’s contributions towards the brazilian legislative scenario, p. 297-318

Beatriz Graziano Chow; Clarisse Laupman Ferraz Lima

 

A União Europeia e a questão Turco-Cipriota: aspectos normativos, geopolíticos e migratórios, p. 319-354

Clarice Rangel Schreiner; Eveline Vieira Brigido; Roberto Rodolfo Georg Uebel

 

Interview

Por uma aliança estratégica Mercosul e União Europeia: O papel da Europa para o fortalecimento da Sustentabilidade – Entrevista com Ignacio Ybañez, Embaixador da União Europeia no Brasil

Jamile Bergamaschine Mata Diz

 

The full edition is available here.

 

 

As reported by Fabienne Jault-Seseke on this blog, the French supreme court for civil and criminal matters (Cour de cassation) ruled in a judgment of 26 May 2021 that “the principles of primacy and effectiveness of European Union law” require that French courts apply ex officio certain choice of law rules contained in EU Regulations.

This is a significant evolution from the doctrine that the court had adopted 20 years ago. This doctrine was the result of decades of academic debates and changes in the case law of the court. Interestingly enough, at the end of the 1980s, the court had ruled that choice of law rules contained in international conventions (essentially the conventions negotiated under the aegis of the Hague Conference of Private International Law) deserved a different status and should be applied ex officio, but the court dropped this exception a few years later.

Background: The Peculiar Consequence of Applying Choice of Law Rules

As most civil law jurisdictions, France recognises the principle jura novit curia. Article 12 of the French Code of Civil Procedure provides that courts must decides disputes in accordance with the legal rules which are applicable and that they should do so ex officio if necessary.

The extension of these principles to choice of law rules was always debated, however. One likely explanation is that the operation of choice of law rules may result in the designation of foreign law. The content of foreign law needs then to be determined, and this process typically involves private experts who must be remunerated (remarkably, French courts virtually never appoint judicial experts for that purpose, although they routinely do so for establishing complex facts). It is understandable, therefore, that the parties would not always want to engage the resources for establishing the content of foreign law, in particular for cases with limited financial stakes, or involving impecunious parties. The obligation to apply systematically choice of law rules may thus have appeared as generating severe practical difficulties, and it took the Cour de cassation decades to craft a doctrine which would weigh the competing interests in a satisfactory manner.

Why Impose Ex Officio Application when the Parties Could Settle?

The current doctrine of the court was adopted in two judgments of 26 May 1999. The obligation of French courts to apply ex officio choice of law rules has since then been based on a major distinction. In matters where the parties may not dispose of their rights (e.g. parenthood, as in the first 1999 judgment), French courts ought to apply choice of law rules ex officio. In contrast, in matters where the parties may dispose of their rights (e.g. an international sale of goods, as in the second 1999 judgment), French courts have no obligation to apply choice of law rules if none of the parties raised their application or the application of foreign law. The system is mixed: some choice of law rules must be applied ex officio, others need not.

The distinction is between rights that the parties may dispose of, and rights that parties may not dispose of. The origin of the distinction is to be found in the writings of the most influential scholar in French private international law in the last decades, Pierre Mayer. Mayer argued that, while in principle foreign law should be considered as law and thus applied ex officio, an exception should be made for those rights which the parties could modify, and indeed waive. This is because they could decide to settle their dispute at any time, under any terms. Thus, a pragmatic solution should be to allow them to argue their case under the (French) law of the forum if they so wish. Just as they could have ignored the content of the applicable law to reach a settlement, they should be allowed to implicitly designate another law.

The Scope of the New Obligation to Apply EU Choice of Law Rules Ex Officio

The new rule laid down by the court in the judgment of 26 May 2021 establishes a distinction between two categories of EU choice of law rules. The Cour de cassation rules that the obligation to apply them ex officio is limited to mandatory choice of law rules, and that mandatory choice of law rules are rules that cannot be derogated from. This is a clear reference to party autonomy, that many EU regulations of private international law recognise. The meaning of the ruling is thus that the obligation is limited to the application of choice of law rules for which the European lawmaker did not grant freedom of choice to the parties.

The particular case was concerned with a tort action for unfair competition. The applicable choice of law rule is contained in Article 6 of the Rome II Regulation, and it expressly excludes the power of the parties to choose the applicable law (Art. 6(4)). The rule in Article 6 is thus to be considered as an EU mandatory choice of law rule, and French courts must now apply it ex officio.

In contrast, the general choice of law rule in Article 4 of the Rome II Regulation (application of the law of the place of damage in tort actions) is a default choice of law rule. It only applies in the absence of a choice of the applicable law made by the parties pursuant to Article 14 of the Rome II Regulation. Likewise, in contractual matters, the parties may choose the law governing their contract in most cases (under Article 3), which means than most choice of law rules contained in the Rome I Regulation are defaults.

Although the Court does not say so, it seems clear that the distinction that it has introduced is inspired from its 20 year old doctrine distinguishing between rights that the parties may dispose of, and rights that parties may not dispose of. But it is not absolutely identical. In this case, the action was concerned with an act of unfair competition which affected exclusively the interests of a single competitor (Rome II Regulation, Art. 6(2)). It was governed by general fault based tort liability. The interests involved were purely private, and it is likely that the parties could freely settle the action. Under the old doctrine, it seems that a French court would not have had the obligation to apply the choice of law rule ex officio. Under the new doctrine, it should have, because the parties may not freely choose the applicable law (although they may still freely settle).

Primacy and Effectiveness of EU Law?

Would it be a problem for the effectiveness of EU law if the parties were allowed to argue a case of unfair competition under the law of the forum instead of the law designated by the applicable EU choice of law rule? The Brussels Ibis Regulation grants jurisdiction to a number of courts in the EU, and other courts might apply all choice of law rules ex officio. In most Member States, however, the idea that courts, after ruling that foreign law applies, might then go on and establish the content of foreign law without the cooperation of the parties is, at best, unrealistic. And in most Member States, if foreign law cannot be established, courts will apply the law of the forum. You can lead a horse to water, but you can’t make him drink.

So the crucial question is that of the establishment of the content of foreign law. At the present time, the courts of most Member States do not have the possibility to ascertain the content of foreign law without the assistance of the parties. For this to change, considerable resources would need to be invested, to establish either centre(s) of comparative law which could provide expert opinions, or a network of courts which would be required to cooperate for that purpose. As long as these resources are not invested, the issue of the ex officio application of choice of law rules cannot be addressed without taking into account the interests of the parties.

Crossposted at EULawLive.

The Court delivered earlier this week (2 August 2021) its decision in case C‑262/21 PPU (A v B), which is about the impact of a transfer decision under Regulation no 604/2013 on the terms “wrongful removal or retention” under Article 2 Brussels II bis (adoption of the transfer decision followed by its annulment without the tranferred persons being authorised to return). The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 2, point 11, du règlement (CE) no 2201/2003 […] doit être interprété en ce sens que ne peut constituer un déplacement illicite ou un non-retour illicite, au sens de cette disposition, la situation dans laquelle l’un des parents, sans l’accord de l’autre parent, est conduit à emmener son enfant de son État de résidence habituelle vers un autre État membre en exécution d’une décision de transfert prise par le premier État membre, sur le fondement du règlement (UE) no 604/2013 du Parlement européen et du Conseil, du 26 juin 2013, établissant les critères et mécanismes de détermination de l’État membre responsable de l’examen d’une demande de protection internationale introduite dans l’un des États membres par un ressortissant de pays tiers ou un apatride, puis à demeurer dans le second État membre après que cette décision de transfert a été annulée sans pour autant que les autorités du premier État membre aient décidé de reprendre en charge les personnes transférées ou d’autoriser celles-ci au séjour ».

Source : https://curia.europa.eu/juris/document/document.jsf;jsessionid=F6B1AEDDB2F275B0B192DEE518C60676?text=&docid=244847&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=4913022

This event is organised by CANACO and the Chamber of Commerce of Mexico. Registration is free of charge. To register send a message to the following email address: arbitrajecanaco@arbitrajecanaco.com.mx.

Gary Born’s approach has been controversial. See our previous post here. The EAPIL blog has also been very active on this topic, see the recent post: The 2005 Hague Convention on Choice-of-Court Agreements: A Further Reply to Gary Born. Thus this event promises to be extremely interesting and will allow the further exchange of views.

Dear Friends and Colleagues,

 

even though the pandemic situation seems to decrease in our part of the world, the University of Bonn remains very careful and will still not allow on-site events of a larger scale for the next months. We have therefore once again made the decision to reschedule the Conference (originally planned for the 25/26 September 2020, and already postponed to 13/14 September 2021) on Friday and Saturday, 9 and 10 September 2022. However, as there are reasonable expectations for the HCCH 2019 Judgments Convention to enter into force around that time, we are confident – especially with a view to the latest recommendations of the European Commission – that we will experience an even more focused and rewarding discussion on the topic.

Please, find below the preliminary programme of the Conference.

 

***

Brexit has become reality – one more reason to think about the EU’s Judicial Cooperation with third states:

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighboring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe.

The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, there seems to be no elaborate EU strategy on judicial cooperation in civil matters with countries outside of the Union, despite the DG Trade’s realisation that “trade is no longer just about trade”. Especially, there is no coherent plan for establishing mechanisms for the coordination of cross-border dispute resolution and the mutual recognition and enforcement of judgments. This is a glaring gap in the EU’s policy making in external trade relations.

This is why the Bonn group of PIL colleagues – Moritz Brinkmann, Nina Dethloff, Philipp Reuss, and Matthias Weller – will host a conference on Friday and Saturday, 9 and 10 September 2022, at the University of Bonn that seeks to explore ways in which judicial cooperation in civil matters between the EU and third countries can be improved by the HCCH 2019 Judgments Convention as an important driver, if not game changer, of legal certainty in cross-border commercial relations.

The list of speakers includes internationally leading scholars, practitioners and experts from the Hague Conference on Private International Law (HCCH), the United Nations Commission on International Trade Law (UNCITRAL), and the European Commission (DG Trade, DG Justice).

The Conference is co-hosted by the HCCH as one of the first European events for discussing the HCCH 2019 Judgments Convention. The Conference will be further supported by the Zentrum für europäisches Wirtschaftsrecht at the University of Bonn and The International Litigation Exchange (ILEX).

The Organizers will kindly ask participants to contribute with € 100.- to the costs of the event (includes conference dinner).

 

Dates:

Friday, 9 September 2022, and Saturday, 10 September 2022.

 

Venue:

Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn

 

Registration: sekretariat.weller@jura.uni-bonn.de

 

Registration Fee: € 100.-

To be transferred to the following account (you will receive confirmation of your registration only after payment was booked on this account):

Bonn Conference 2020

IBAN: DE71 5001 0517 0092 1751 07

BIC:   INGDDEFF (ING-Diba Bank)

 

Programme

Friday, 9 September 2022

 

1.30 p.m.     Registration

2 p.m.          Welcome note

Prof Dr Wulf-Henning Roth, University of Bonn, Director of the Zentrum für Europäisches Wirtschaftsrecht (ZEW)

Dr Christophe Bernasconi, Secretary General of the HCCH (video message)

2.10 p.m.      Part I: Cornerstones

Chair of Part 1: Prof Dr Matthias Weller

Keynote: Hague Conference’s Perspective and Experiences

Hans van Loon, Former Secretary General of the Hague Conference on Private International Law, The Hague

1. Scope of application

Prof Dr Xandra Kramer, Erasmus Universiteit Rotterdam, Netherlands

2. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich, Germany

Discussion

 

3.30 p.m.     Coffee Break

 

4.00 p.m.      Part II: Cornerstones (Cont.)

Chairs of Part 2: Prof Dr Nina Dethloff / Prof Dr Moritz Brinkmann

3. Jurisdictional filters

Prof Dr Pietro Franzina, Università Cattolica del Sacro Cuore Milano, Italy

4. Grounds for refusal

Prof. Dr. Marcos Dotta, Universidad de la República, Uruguay; Sub Director de Asuntos de Derecho Internacional del Ministerio de Relaciones Exteriores de Uruguay

Discussion

5. Trust management: Establishment of relations between Contracting States

João Ribeiro-Bidaoui, First Secretary of the HCCH, Netherlands

6. “The Hague System”: Relation to the HCCH 2005 Convention on Choice of Court Agreements

Prof Paul Beaumont, University of Stirling, United Kingdom

7. “The Hague System” and “the Brussels System”: Relations to the Brussels and Lugano Regime

Prof Marie-Élodie Ancel, Université Paris-Est Créteil, France

Discussion

 

7.30 p.m.               Conference Dinner

 

 

Saturday, 10 September 2022

9.00 a.m.     Part III: Prospects for the World

Chairs of Part 3: Prof Dr Moritz Brinkmann / Prof Dr Philipp Reuss

1. European Union (EU)

Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission

2. South European Neighbouring and EU Candidate Countries

Ass. Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia

3. Africa (Commonwealth / common law)

Dr. Abubakri Yekini, Lagos State University, Nigeria
Dr. Chukwuma Okoli, Postdoctoral Researcher in Private International Law at the T.M.C. Asser Institute, Netherlands

4. MERCOSUR

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh, United Kingdom

Discussion

 

11:00 a.m.    Coffee Break

 

11:30 a.m.    Part IV: Prospects for the World (Cont.)

Chair of Part 4: Prof Dr Nina Dethloff

5. ASEAN

Adeline Chong, Associate Professor of Law, Singapore Management University, Singapore

6. China (OBOR)

Prof Zheng (Sophia) Tang, University of Newcastle, United Kingdom

Discussion

 

12:30 p.m.   Part V: Outlook

Chair of Part 5: Prof Dr Matthias Weller

7. International Commercial Arbitration

Jose Angelo Estrella-Faria, Senior Legal Officer UNCITRAL Secretariat, International Trade Law Division Office of Legal Affairs, United Nations, Former Secretary General of UNIDROIT

8. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

Discussion

 

1.30 p.m.     Closing Remarks

Dr João Ribeiro-Bidaoui, First Secretary, HCCH

This post was contributed by Eirini Tsikrika, Master 2 Paris 1 Panthéon-Sorbonne, Ph.D candidate at the National and Kapodistrian University of Athens 

 

On the 25th of June the Supreme Court of Greece has rendered a provisional judgment to request preliminary ruling of the CJEU on the question of compatibility of the right to damages for breach of a choice-of-court agreement with the European ordre public. The judgment forms part of the group of decisions related to the Alexandros T case [Starlight Shipping Company v Allianz Marine & Aviation Versicherungs AG ([2014] EWCA Civ 1010)]. The case has also been reported by Apostolos Anthimos, who had already stressed out the importance of an EU level solution, see his blog posts concerning Decisions Nr. 371/2019 and Nr. 89/2020 of the Piraeus Court of Appeal respectively. Also, the procedural history of the case in England is meticulously exposed in the post of Dr. Martin Ilmer.

 

The facts of the case

The dispute arose out of a marine insurance contract, which contained a choice-of-court agreement designating the courts of London as competent. After the shipwreck of the ship, the ship owners brought proceedings against the insurers before the High Court of Justice, which were finally ended with the parties reaching an out-of-court settlement. The settlement agreement itself contained also a prorogation clause in favor of the English courts.

At a later stage, the ship owners brought action before the courts of Piraeus, alleging damages suffered due to the conduct of the other party in the English proceedings. This conduct consisted of the systematic discrediting of the seaworthiness of the ship by using false evidence.

As a response, the insurers contested the jurisdiction of the Greek courts, by invoking the prorogation clauses contained in both the insurance contract and the settlement agreement. Furthermore and while proceedings before the court of Piraeus were still pending, the insurers filed a damages claim before the High Court of Justice for breach of the choice-of-court agreements, seeking recovery for the legal costs and expenses incurred in the Greek proceedings.

Their action was fully accepted by virtue of the [2014] EWHC 3028 (Comm) decision of the High Court of Justice, as the latter acknowledged the existence of a valid, exclusive choice-of-court agreement in favor of the English jurisdiction. Subsequently, the courts of Piraeus declined jurisdiction and dismissed the claim of the ship owners on the grounds of the res judicata effect of the English judgment, while refusing the existence of grounds for non recognition of the English judgment in Greece (Dec. Nr. 899/2016, 28.3.2016, Piraeus Court of First Instance).

 

The decision of the Court of Appeal

The ship owners formed an appeal against the decision of the Court of First Instance, alleging that the latter was wrong to recognize a decision granting compensation for breach of a choice-of-court agreement, on the grounds of violation of the principle of mutual trust and of the European ordre public.  Therefore, the decision of the Court of Appeal (Dec. Nr. 465/2020, 07.03.2019, Piraeus Court of Appeal) was focused on two points:

1. The affinity of a decision recognizing the right to damages for breach of a choice-of-court agreement with the anti-suit injunctions.
2. The violation of the procedural ordre public as ground for non recognition and enforcement of such decisions, under the Articles 34 (1) and 45 (1) of the EU Regulation 44/2001 (Brussels I Regulation).

As far as it concerns the first point, the Court of Appeal refused to draw a parallel between the right to damages for breach of a choice-of-court agreement and the anti-suit injunctions, which have been explicitly banned from the system of the Brussels I Regulation by virtue of the CJEU’s Turner v. Grovit and West Tankers v. Allianz decisions (although West Tankers concerned an arbitration agreement, dealing primarily with the question of the Regulation’s scope of application). According to the Greek courts, such decisions do not aim at the international jurisdiction of a foreign court but they refer exclusively to the non-execution of the prorogation agreement-as it would be with the failure to comply with any other contractual obligations- and consequently to the existence or non-existence of contractual liability lying with the violating party. (For a different view on the question of compatibility with the principle of mutual trust, see the analysis included in the doctoral thesis of Dr. Mukarrum Ahmed).

Proceeding with the second point, the court stresses that each decision admitting violation of a choice-of-court agreement and consequently international jurisdiction of the forum prorogatum cannot but correlatively refuse international jurisdiction of the forum yet seized. Hence, that is perfectly tolerated by the European ordre public, since it doesn’t constitute an illegitimate interference in the adjudicatory jurisdiction of a foreign court but results from the mere application of the rules of the Brussels I Regulation. And the Court went on, to point out that even a false application of the rules of the Regulation could not justify the non recognition of the decision of a Member State, since a violation of the rules on international jurisdiction does not establish a violation of the procedural public order. It is clear-the court continues- that the misinterpretation or false application of the rules on international jurisdiction is overridden by the objective of the free circulation of judgments within the European judicial area.

Based on these assertions, the Court of Appeal declared lack of       jurisdiction of the Greek courts to rule on the merits of the case, confirming the decision of the Court of First Instance.

The exequatur procedure and the preliminary reference to the CJEU

In the meantime, a parallel exequatur procedure has been initiated at the insurers’ initiative, who sought to execute the English judgment in Greece. The relevant exequatur request was fully accepted, while the application for refusal of enforcement filed by the ship owners, was rejected. Finally, the ship owners seized the Supreme Court pursuant to Article 44 and Annex IV of the Regulation, so that the question shall be resolved by means of a final and irrevocable decision. The Supreme Court, requesting a preliminary ruling, addressed to the CJEU -almost verbatim- the following questions (Dec. Nr. 820/2021, 25.6.2021, Supreme Court of Greece):

1. In addition to the conventional anti-suit injunctions, are there any other decisions or orders which, even implicitly, impede the applicant’s right to judicial protection by the courts of a Member State and therefore fall under the scope of the Articles 34 (1) and 45 (1) of the Brussels I Regulation? And more specifically, can a decision granting compensation for breach of a choice-of-court agreement, be considered as being against the European public order?

 

1. In case of a negative answer to the first question, do such decisions still fall under the scope of the Articles 34 (1) and 45 (1) of the EU Regulation 44/2001, once they are considered as being against the national public policy of Greece, so that the objective of the free movement of civil judgments within the European Union c?uld be overridden in that case?

It needs to be noted that the English, Spanish courts and recently the German BGH have already acknowledged the right to damages for breach of a jurisdiction clause. Yet the CJEU had not the chance to take position on such question, since the forum derogatum was in the previous cases a non EU member-state, where the principle of mutual trust does not apply. It remains to be seen whether the solution adopted by the national courts, will be expanded to the European judicial area. A highly anticipated decision with secondary implications also on the key issue of the nature of a choice-of-court agreement.

This post was contributed by Dr. Sally El Sawah, Avocat aux Barreaux de Paris et du Caire, Registered Foreign Lawyer (England & Wales), Co-Founder & Head of Arbitration and Litigation at JUNCTION (Paris).

In a judgment of 12 May 2021 (no. 19-13.853), the French supreme court for civil and criminal matters (Cour de cassation) ruled that central bank accounts are un-attachable assets according to Article L-153-1 of the Monetary and Financial Code (“CMF”). Therefore, any debate about the waiver by the State of its immunity from execution was irrelevant. Although the entire grounds of appeal before the Cour de cassation were based on the State immunity from execution, its scope and limits and the consequences of its waiver, the Court of cassation has decided to shift the debate to the question of un-attachability (“insaisissabililté”) of central bank accounts. Un-attachability echoes the inviolability for diplomatic property. Even though they produce similar effects, un-attachability, inviolability and immunity are three separate legal concepts such that a waiver of the latter is ineffective to the former two.

Background

It is possible today to talk about the Commisimpex saga, that would join the landmark precedents Noga, NML Capital and Yukos in the realm of State Immunity from execution.

This case is one of the many failed attempts of post-judgment measures of constraint exercised by the Congolese company Commissions Import Export SA (Commisimpex) in execution of two final and enforceable arbitral awards rendered against the Democratic Republic of Congo (“the DRC”) on December 3, 2000, and January 21, 2013. The fact that the contractual documents contained a clause providing for the waiver by the DRC of its immunity from execution was not of great assistance to Commisimpex when it tried to attach the DRC’s and/or its emanations’ assets for over a decade now. These attachments involved a pallet of assets ranging from mere shares in a société civile immobilière (non-trading real-estate company) to bank accounts of the DRC’s consular and diplomatic representations in France.

Here, they involved the Democratic Republic of Congo’s account with the Bank of Central African States (“BEAC”) held in France. This case was another opportunity for the Court of cassation to interpret (and perhaps revisit its reading of) Article L.153-1 of the Monetary and Financial Code (“Article L-153-1CMF) in light of Articles 18 and 19(a) and (b), and 21.1(c) and 21.2 of the United Nations Convention on Jurisdictional Immunities of States and their Property (“UNCSI”, although not yet entered into force, but from the perspective that it is a codification of customary international law), and Article 6§1 of the ECHR and Article 1 of its First Protocol.

Article L-153-1 was adopted in 2005 to limit the possibility of attachment over central bank accounts held in France on behalf of a State, regardless of the identity of the account holder. In other words, even if the account is held in the name of the central bank itself, and not that of the State, this did not constitute a reason to allow the attachments over these accounts. Any attempt to distinguish between the accounts held on behalf of the State based on the purpose for which they were used was also doomed to fail. Whether or not the accounts held on behalf of the State were in use or destined to be used for a commercial purpose was irrelevant. In any event, it was de facto impossible to prove such use for many reasons, amongst which was the principle of banking secrecy. In addition to these restrictions, another one was added by this article; it required the creditor holding a final enforceable title to obtain leave from the execution judge prior to making the attachment (although such requirement does not exist for the other creditors who hold a final and enforceable title against non-sovereigns). In practice, it has become impossible to seize central bank accounts in France, regardless of their holder or the purpose of their use.

Analysis

As expressly mentioned in the travaux préparatoires, the purpose behind Article L153-1 was to increase the competitiveness of Paris as an attractive financial hub of foreign central bank reserves. Such purpose was sufficient for the Court of cassation to declare the conformity of Article L153-1 with the French Constitution (Cass. civ. 2, July 11, 2013, no. 1340.036). The conformity of this article with the ECHR was also confirmed by the French Court of cassation (Cass. civ. 2, January 11, 2018, no. 16-10.661). In that decision, the Court of cassation affirmed that the restriction to article 6§1 was reasonable and proportionate insofar as it pursued the legitimate purpose of complying with customary international law rules. It was proportionate since even though the burden of proof that the accounts held by the Central Bank for its own account was used for other than governmental non-commercial purposes difficult, it was not impossible.

In the judgment commented here, the appellant raised similar arguments. On the one hand, Commisimpex tried to convince the Court of cassation that there was waiver of state immunity from execution. On the other hand, the alternative measures of recourse providing for a possible recourse by the Creditor before administrative courts to engage the responsibility of the French State for violation of the principle of equality before public charges when it granted immunity from execution to the foreign State were not applicable in the case at hand. Indeed, Commisimpex was not a taxpayer in France, and thus could not avail itself of the possibility of recourse before French administrative courts (definitely, the appellant was alluding to the Court of cassation’s decision of May 25, 2016, no. 15-18.646).

Following its traditional stern and concise way of making solemn declarations of principle, the Court of cassation stated that the purpose behind Article L.153-1 was to protect the functioning of institutions which contribute to the definition and implementation of the State monetary policy and to prevent the blockade of foreign exchange reserves deposited in France. This purpose was legitimate. Accordingly, the subsequent restriction to the right of property and the right of access to court and to an effective execution of final judicial decisions which resulted from the un-attachability of these accounts was legitimate. It was also proportionate insofar as it was limited to the central bank assets deposited in France and did not encompass all the other property of the State. Therefore, there was no violation of Article 6§1 of the ECHR, nor of the right to property under Article 1§1 of the Additional Protocol to the ECHR.

However, the Court of cassation’s declaration that the proportionality test was met since State assets other than central bank accounts could be seized is strikingly theoretical. Indeed, the Loi Sapin II, adopted in 2016, has embraced the same approach as in L-153-1 CMF with a requirement of prior leave and a presumption of the governmental non-commercial nature of State assets listed in that law, which rendered any possible enforcement over State assets illusionary.

It is noteworthy that in this decision, the attachment pursued the Democratic Republic of Congo’s account with the Bank of Central African States, and not those of the Central Bank of Congo (“CBC”). The BEAC operates as the central bank of six African States including the Democratic Republic of Congo and coexists in parallel with the CBC. The broad wording of Article L.153-1 which uses the terms “central bank” and “monetary authority” allows the protection of not only the CBC, but also any other entity which performs central bank functions and acts as a State’s monetary authority, such as the BEAC according to its Charter (Article 1). However, the main difference between these two central banks is that the BEAC in fact enjoys the privileges and immunities of international organisations (Article 6.1 of its Charter). One may wonder in such case whether Article L-153-1 CMF was the right provision to apply, and thus, whether there was room for the application of the so-called “un-attachability”. Indeed, Article 6.6 of the BEAC’s Charter provides that “only the net credit balances of accounts opened in the books of the Central Bank may be subject to seizure, in execution of a final judicial decision”. It is striking that this issue was not addressed by the Court of cassation (perhaps it has not been raised by the appellants before the Court of Appeal in the first place).

Regardless of the particularity of the BEAC and its Charter, what seems more striking though, is the absence of any reference whatsoever to Article 21.2 UNCSI, which provides for a possible attachment of central banks accounts in case of express waiver according to Articles 18.a and 19.a of the UNCSI.  Placing the debate on the ground of un-attachability allowed the Court of cassation to mute any possible argument based on such waiver. Immunity and un-attachability are two different concepts. The waiver by the DRC of its immunity from execution was thus inoperative and could not encompass un-attachable assets. Hence, the Court of cassation did not have to conciliate the un-attachability of Article L.153-1 CMF with the regime of central bank accounts under UNCSI.

Most likely, the real reason behind the Court of cassation’s new approach lies in the bad experience it has encountered when it has tried to be bold back in 2015 in the same Commisimpex Saga (Cass. Civ. 1e, May 13, 2015, no. 13-17.751). One may recall that, back then, the bold yet accurate interpretation adopted by the Court of cassation of Article 21 UNCSI to tackle the issue of waiver of State immunity from execution over diplomatic bank accounts has cost it the “legislative censure” by the Sapin II Act. This legislative reform has de facto rendered any possible execution over foreign States’ assets practically impossible. It is permissible in these circumstances to say that State immunity from execution in France has in fact become (quasi) absolute. Any kind of State property which is not evidently and ostensibly commercial, will be protected by State immunity from execution, and when the conditions for an exception thereto can be met, French courts could avoid the discussion by inventing a new layer of protection that it may call un-attachability …

Of course, it is important to attract foreign exchange reserves to the deposit of the Banque de France, yet, not at the high price of the Rule of law.

After arguing that States Should Not Ratify, and Should Instead Denounce, the Hague Choice-Of-Court Agreements Convention, Gary Born received a series of serious criticisms by Trevor Hartley, Andreas Bucher and the Hague Conference of Private International Law.

Mr Born has responded to some of these criticisms in two further posts at the Kluwer Arbitration Blog.

At the invitation of the Editors of the EAPIL Blog, Trevor Hartley, Professor emeritus at the London School of Economics, offers the following rejoinder.

I assume we can all agree on two things: first, corrupt and biased judges exist; secondly, corrupt and biased arbitrators exist. Since the parties to an arbitration agreement choose the arbitrators and the parties to a choice-of-court agreement choose the court, this ought not to be a problem. However, for one reason or another, a party to an arbitration agreement may find himself before an arbitrator whom he believes to be corrupt and biased; likewise, a party to a choice-of-court agreement may find himself before a judge whom he believes to be corrupt and biased. If we can agree on all this, the matter comes down to the safeguards against the enforcement of a corrupt award under the New York Convention and the safeguards against the enforcement of a corrupt judgment under the Hague Convention. I want to examine this in order to see how the two instruments compare.ague Convention.

The grounds for refusing to recognize or enforce an award are set out in Article V of the New York Convention. The equivalent grounds under the Hague Convention are in Article 9. We will consider them one by one.

Arbitration Agreement Invalid

Under New York, an award will not be recognized or enforced if the arbitration agreement was invalid: Article V(1)(a). This covers incapacity of the parties and other grounds of invalidity. The capacity of the parties is governed by ‘the law applicable to them’; other grounds of validity are governed by the law to which the parties have subjected the agreement or, failing any indication thereon, the law of the country where the award was made. Under Hague, a judgment under a choice-of-court agreement will also be refused recognition if the agreement is null and void: Article 9(a). The applicable law is stated to be the law of the State of the chosen court; but if the chosen court has already held the agreement to be valid, this is conclusive.

However, under Article 9(b) of Hague, recognition and enforcement may also be refused if a party lacked capacity to conclude the agreement under the law of the requested State (the State asked to recognize the judgment). Thus, New York is slightly stronger in general, in that it gives the parties the right to subject the validity of the agreement to some law other than that of the country where the award is made. However, Hague is slightly stronger as regards capacity, in that it requires capacity to exist under both the law of the chosen court and the law of the country asked to recognize the judgment.

Insufficient Notice

Under New York, another ground for non-recognition is that the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case: Article V(1)(b). Under Hague, there are two grounds for non-recognition. Under Article 9(c)(i), recognition may be refused if the document which instituted the proceedings (or an equivalent document, including the essential elements of the claim) was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence. However, the defendant loses this right if he entered an appearance and presented his case without contesting notification in the court of origin (provided that the law of the State of origin permitted notification to be contested). This has the same effect as the ground under New York, though Hague is more fleshed out. The second ground under Hague is that the document was notified to the defendant in the requested State in a manner that was incompatible with fundamental principles of the requested State concerning service of documents: Article 9(c)(ii). This has no equivalent under New York.

New York is slightly wider in that it also permits non-recognition where the party is ‘otherwise unable to present his case’. There is no exact equivalent to this under Hague, though if his inability to present his case is due to chicanery by the other party, Article 9(d) would come into play. This gives another ground for non-recognition, namely that the judgment was obtained by fraud in connection with a matter of procedure.

Outside the Scope of the Submission

Under New York, recognition of an award can be challenged on the ground that the award deals with a difference outside the scope of the submission to arbitration: New York, Article V(1)(c). At first sight, there appears to be no equivalent to this in Hague. However, the duty to recognize and enforce a judgment applies only to a judgment given by a court of a Contracting State ‘designated in an exclusive choice of court agreement’: Hague, Article 8(1). The term ‘exclusive choice of court agreement’ is defined in Article 3(a) as an agreement that designates a court (or several courts) ‘for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship’ (italics added). If the designated court decided a matter that did not concern the legal relationship specified in the choice-of-court agreement, it could be argued that the court was no longer designated in the choice-of-court agreement. Then the judgment would not be subject to recognition and enforcement under the Convention. If this is right—and it surely must be—the Hague Convention produces the same result.

Composition of the Arbitral Authority

Another ground for non-recognition under New York is that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties (or, failing such agreement, was not in accordance with the law of the country where the arbitration took place): New York, Article V(1)(d). For obvious reasons, there is no equivalent to this under Hague. However, if the court which gave the judgment was not designated in the choice-of-court agreement, the judgment would not, for the reasons explained in the previous paragraph, be subject to recognition and enforcement under the Convention.

Award Not Binding on the Parties

Under New York, recognition and enforcement of an award may be refused if it has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made: Article V(1)(e). This is supported by Article VI, which makes provision for the adjournment of enforcement proceedings where an application is made for the setting aside or suspension of the award. Under Hague, there are two provisions, which together have the same effect. The first is Article 8(3), which provides that a judgment will be recognized only if it has effect in the State of origin and will be enforced only if it is enforceable in the State of origin. If has been set aside or suspended in the State of origin, it will not be recognized or enforced. The second is Article 8(4), which provides that recognition or enforcement may be postponed or refused if the judgment is the subject of review in the State of origin or if the time limit for seeking ordinary review has not expired. (It goes on to say that a refusal does not prevent a subsequent application for recognition or enforcement of the judgment.) Taken together, these provisions give protection that is at least as good as that under New York.

Subject Matter Not Capable of Settlement by Arbitration

Another ground for non-recognition under New York is that the subject matter of the difference is not capable of settlement by arbitration under the law of the country in which enforcement is sought. There is no equivalent to this under Hague since there are few matters within the subject-matter scope of the Convention that are not capable of settlement by a court. However, if the judgment did concern such a matter, public policy could be invoked.

Public Policy

In both New York and Hague, the most important safeguard is the provision which allows recognition and enforcement to be refused on the ground of public policy. The relevant provision in New York is Article V(2)(b) and in Hague it is Article 9(e). The provision in New York simply says that recognition and enforcement may be refused if it would be contrary to the public policy of the country concerned. Hague, however, is a little more detailed. After saying that recognition or enforcement may be refused if it would be manifestly incompatible with the public policy of the requested State, it adds ‘including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State’.

A Problem

This all seems clear; however, there is a problem. Article 8(2) of Hague provides that the court asked to recognize and enforce the judgment is bound by the findings of fact on which the court of origin based its jurisdiction (unless the judgment was given by default). Does this mean that if the court of origin ruled that its members were not corrupt, the court asked to recognize and enforce the judgment cannot question this? If this were true, it would be a serious defect. However, the answer is given in the Explanatory Report, which was approved by all the States that participated in the Conference which drew up the Convention. The relevant paragraphs are 166–169. The first point made is that the court addressed will not have to accept the legal evaluation of the facts adopted by the court of origin. For example, if the court of origin found that the choice-of-court agreement was concluded by electronic means that satisfied the requirements of the Convention, the court addressed would be bound by the finding that the agreement was concluded by electronic means, but not by the finding that it satisfied the requirements of the Convention.

The second point is that the court asked to recognize and enforce the judgment is only bound by the findings of fact of the court of origin with regard to the grounds of non-recognition specified in Article 9(a) and (b). The rule does not apply to the grounds in the other sub-paragraphs of Article 9, that is sub-paragraphs (c), (d) and (e). This is because these latter provisions do not concern jurisdiction. The Report states in paragraph 167:

The position is different with regard to the grounds of non-recognition laid down in sub-paragraphs c), d) and e) of Article 9. These are not concerned with jurisdiction under the Convention, but with public policy and procedural fairness. Thus, the court addressed must be able to decide for itself, in accordance with these sub-paragraphs, whether the defendant was notified; whether there was fraud; or whether there was a fair trial: a finding by the judge of origin that he did not take a bribe, for example, cannot be binding on the court addressed.

A footnote adds that this also applies to a finding by an appeal court that the first instance judge was not guilty of corruption.

Paragraph 168 of the Report continues:

The same is true with regard to procedural fairness under sub-paragraph e). Assume that the defendant resists recognition and enforcement on the ground that the proceedings were incompatible with the fundamental principles of procedural fairness of the requested State. He claims that he was not able to go to the State of origin to defend the case because he would have been in danger of imprisonment on political grounds. A finding by the court of origin that this was not true cannot be binding on the court addressed. Where matters of procedural fairness are concerned, the court addressed must be able to decide for itself.

In view of this, we can conclude that rule that findings of fact are binding does not seriously compromise the safeguards.

Conclusions

As this short discussion has shown, the safeguards in the two instruments have almost the same effect. One cannot say that one is better than the other. In any event, where the judgment is tainted by corruption or bias, public policy would always ensure that it was not recognized or enforced. Of course, there is the question of proof, but this is just as much a problem in the case of an award as in the case of a judgment.

The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and of an instrument that would channel parallel proceedings to a “better’ forum.

The authors of this brief article advance the view that a convention regulating jurisdiction is not a good approach, but that an instrument finding a “better” forum in parallel proceedings, constructed on an open-minded and non-dogmatic basis, is needed, desirable, and feasible.

The piece is located here.

Membership

On 1 July 2021, Mongolia deposited its instrument of acceptance of the Statute, becoming the 89th Member of the HCCH. More information is available here.

Conventions & Instruments  

On 3 July 2021, the HCCH 1961 Apostille Convention entered into force for Jamaica. It currently has 120 Contracting Parties. More information is available here.

On 30 July 2021, the HCCH 1970 Evidence Convention entered into force for Georgia. It currently has 64 Contracting Parties. More information is available here.

Meetings & Events

From 5 to 9 July 2021, the Experts’ Group on Parentage/Surrogacy met for the ninth time, via videoconference. The Group discussed the scope of the possible draft Convention on legal parentage and the scope of the possible draft Protocol on legal parentage established as a result of an (international) surrogacy arrangement. More information is available here.

On 27 July 2021, the Permanent Bureau announced that Edition 2021 of HCCH a|Bridged will be dedicated to the HCCH 2005 Choice of Court Convention and held online on 1 December 2021. More information is available here.

On 28 July 2021, the Permanent Bureau launched the Advancing and Promoting the Protection of All Children (Approach) Initiative, in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. As part of this initiative, the Permanent Bureau is organising two competitions: the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition. Submissions are due on 1 October 2021. More information is available here.

Publications & Documentation

On 2 July 2021, the Permanent Bureau announced the publication of translations, in Albanian, Macedonian, and Bosnian-Serbian-Montenegrin languages, of the Explanatory Report on the HCCH 2019 Judgments Convention. These are the first available translations after the official publication of the Explanatory Report in October 2020. They were supported by the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), Open Regional Fund for South East Europe – Legal Reform (ORF – Legal Reform). More information is available here.

 

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