Droit international général

A new Report on EU Policy Guidelines was just posted on the website of EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU), an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The Report was authored by Marco Buzzoni, Cristina M. Mariottini, Michele Casi, and Carlos Santaló Goris.

Building upon the outcomes of the national and international exchange seminars and the Project’s analytical reports, this Report formulates policy guidelines addressed to EU policymakers and puts forth suggestions to improve the current legal framework provided under the EFFORTS Regulations (namely: the Brussels I-bis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order) with regard to the enforcement of claims.

This Report was among the outputs and findings discussed at the Project’s Final Conference, hosted by the University of Milan on 30 September 2022, which provided an international forum where academics, policymakers, and practitioners discussed the Project’s key findings and exchanged their views on the national implementation of – and the path forward for – the EFFORTS Regulations. The content of the Final Conference will enrich the Final Study, which is forthcoming on the Project’s website.

Regular updates on the EFFORTS Project are available via the Project’s website, as well as LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

A quick update related to the public consultation launched by the French Ministry of Justice last June on the draft code of private international law to gather feedback from all stakeholders (announced here).

The deadline has been extended to 30 November 2022.

More information is available here.

Various posts have been published on this blog regarding the draft: see here for some general remarks, and here as regards specifically renvoi, foreign law, the recognition of marriages and companies. A German perspective on the draft is offered here.

Several years ago, I published a paper that examined how U.S. courts interpret choice-of-law clauses. That paper contains a detailed discussion of the most common interpretive issues—whether the clause selects the tort laws of the chosen jurisdiction in addition to its contract laws, for example—that arise in litigation. There was, however, one important omission. The paper did not consider the question of whether the word “laws” in a choice-of-law clause should be interpreted to select the laws of the chosen jurisdiction (1) at the time the contract was signed, or (2) at the time of litigation.

In declining to address this issue, the paper was in good company. Neither the Restatement (Second) of Conflict of Laws (§ 2) nor the draft Restatement (Third) of Conflict of Laws (§ 1.02) discuss the relationship between choice-of-law and time. Nevertheless, the omission bothered me.

In the spring of 2021, I saw that Jeff Rensberger at the South Texas College of Law had posted a paper to SSRN entitled Choice of Law and Time. After downloading and reading the paper, I discovered that it contained no discussion of choice-of-law clauses. It was devoted solely to the question of how courts should address the issue of temporality in cases where the parties had declined to select a law in advance. After reading the paper, I wrote to Jeff to propose that we collaborate on a second paper that specifically addressed the temporal question in the context of choice-of-law clauses. When we spoke on the phone to discuss the project, however, we did not agree on the answer. Jeff argued for the laws at the time of signing. I argued for the laws at the time of litigation.

In early 2022, Jeff sent me a draft of his new paper, Choice of Law and Time Part II: Choice of Law Clauses and Changing Law, which makes the case for interpreting choice-of-law clauses to select the law at the time of signing. In response, I drafted an essay arguing that they should be interpreted to select the law at the time of litigation. A draft of my essay, The Canon of Evolving Law, is now available for download on SSRN.

If you happen to be one of the small number of people in the world interested in this fascinating (though obscure) interpretive issue, I would encourage you to download both papers and decide for yourself who has the better of the argument.

[This post is cross-posted at Transnational Litigation Blog.]

All private international law events at the Court of Justice this month will take place on the same day, namely on 20 October.

To begin with, we will get to know AG Szpunar’s opinion on C-423/21, Grand Production.

The Oberster Gerichtshof (Austria) has lodged a request for a preliminary ruling with two questions on Directive 2001/29/CE (on the harmonisation of certain aspects of copyright and related rights in the information society) alone, and another one on the combined interpretation of provisions of said Directive and of Article 7(2) of the Brussels I bis Regulation, in a claim for injunctive relief of worldwide scope:

I. Is the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29/EC (…) to be interpreted as meaning that such communication is made by the direct operator (not established in the EU in this case) of a streaming platform, whereby that operator

– alone decides on the content and blacking out of TV programmes broadcast by it and implements them from a technical point of view,

– has sole administrator rights for the streaming platform,

– an influence which TV programmes can be received by the end user via the service, but cannot influence the content of the programmes,

– and is the sole point of control as regards which programmes and content can be watched in which territories and when,

where, in each case,

– the user is provided with access not only to broadcasting content whose online use has been authorised by the respective rightholders, but also to protected content for which rights clearance has not been obtained, and

– the direct operator of the streaming platform is aware that its service also enables the reception of protected broadcasting content without the consent of the rightholders by virtue of the fact that the end customers use VPN services which give the impression that the IP address and device of the end customers are located in areas for which the consent of the rightholder has been obtained, but

– the reception of protected broadcasting content via the streaming platform without the consent of the rightholders was in fact possible for several weeks even without VPN tunnelling?

II. If Question I is answered in the affirmative:

Is the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29/EC to be interpreted as meaning that such communication is also carried out by third parties (having, in this case, their registered offices in the EU) which are related, contractually and/or under company law, to the platform operator described in Question I., and which, without themselves having any influence on the blackouts and on the programmes and content of the broadcasts brought to the streaming platform,

– advertise the operator’s streaming platform and its services, and/or

– offer trial subscriptions to customers that automatically end after 15 days, and/or

– support the customers of the streaming platform as a customer service provider, and/or

– offer on their website paid subscriptions to the streaming platform of the direct operator and then act as the contracting partner of the customers and as the recipient of payment, whereby the paid subscriptions are created in such a way that an express reference to the fact that certain programmes are not available is made only if a customer explicitly indicates at the time of conclusion of the contract that he or she wishes to see those programmes, but, if customers do not express that wish or specifically enquire about such programmes, they are not informed of that fact in advance?

III. Are Article 2(a) and (e) and Article 3(1) of Directive 2001/29/EC, read in conjunction with Article 7(2) of Regulation (EU) No 1215/2012 (…) to be interpreted as meaning that, in the event of an allegation of infringement of copyright and related rights guaranteed by the Member State of the court seised, that court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs – because the territoriality principle precludes domestic courts from having competence to determine and examine the facts in relation to foreign acts of infringement – or can or must that court also rule on offences committed outside that territory (worldwide), as alleged by the infringed author?

In a nutshell, the third question seeks clarification regarding the principle of territoriality, in accordance with which the protection claimed by an applicant under Austrian copyright law relates only to Austria, and the applicant can therefore only claim injunctive relief which is limited to Austria.

Two further opinions are scheduled on the same day, one from AG Szpunar and the other from P. Pikamäe.

In C-291/21, Starkinvest, the Tribunal de première instance of Liège is asking the Court of Justice to interpret Articles 4, 7 and 8 of Regulation No 655/2014 establishing a European Account Preservation Order procedure.

In the case at hand, in 2015 the Court of Appeal of Liège had ordered a company incorporated under Irish law, subject to a penalty payment, to stop committing trademark infringements. Some years after the judgement was handed down and (allegedly) served, the claimant issued an order for payment in the sum of EUR 86 694.22, which included EUR 85 000 in penalty payments. Now, he has asked a first instance court to make a European Account Preservation Order in the principal amount of EUR 85 000, over such sums as may be held in the French bank account of the defendant. The claim is based on penalty payments alleged to be due from the defendant pursuant to the 2015 judgment delivered by the Court of Appeal of Liège.

The national court refers the following questions to the Court of Justice of the European Union for a preliminary ruling:

1. Does a judgment which has been served, ordering a party to make a penalty payment in the event of breach of a prohibitory order, constitute a decision requiring the debtor to pay the creditor’s claim within the meaning of Article 7(2) of Regulation No 655/2014 (…)?

2. Does a judgment ordering a party to make a penalty payment, although enforceable in the country of origin, fall within the meaning of ‘judgment’ in Article 4 of Regulation No 655/2014 (…) where there has been no final determination of the amount in accordance with Article 55 of Regulation 1215/12 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?’

In case C-393/21, Lufthansa Technik AERO Alzey, AG Pikamäe has been asked to give an opinion on a request for a preliminary ruling by the Lietuvos Aukščiausiasis Teismas (Lithuania). Four out of five questions concern the notion of ‘exceptional circumstances’ under Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims. The fifth question focuses on the relationship between Regulation Brussels Ibis and Regulation No 805/2004 as regards the suspension of enforcement proceedings when the enforceability of a court decision is suspended in the Member State of origin:

‘1.  How, taking into account the objectives of Regulation No 805/2004 (…), inter alia the objective of accelerating and simplifying the enforcement of judgments of Member States and effective safeguarding of the right to a fair trial, must the term ‘exceptional circumstances’ in Article 23(c) of Regulation No 805/2004 be interpreted? What is the discretion that the competent authorities of the Member State of enforcement have to interpret the term ‘exceptional circumstances’?

2. Are circumstances, such as those in the present case, related to judicial proceedings in the State of origin which decide a question regarding the setting aside of the judgment on the basis of which a European Enforcement Order was issued to be regarded as relevant when deciding on the application of Article 23(c) of Regulation No 805/2004? According to what criteria must the appeal proceedings in the Member State of origin be assessed and how comprehensive must the assessment of the proceedings taking place in the Member State of origin that is carried out by the competent authorities of the Member State of enforcement be?

3. What is the subject matter of the assessment when deciding on the application of the term ‘exceptional circumstances’ in Article 23 of Regulation No 805/2004: must the impact of the respective circumstances of the dispute when the judgment of the State of origin is challenged in the State of origin be assessed, must the possible potential benefit or harm of the respective measure specified in Article 23 of the regulation be analysed, or must the debtor’s economic abilities to implement the judgment, or other circumstances, be analysed?

4. Under Article 23 of Regulation No 805/2004, is the simultaneous application of several measures specified in that article possible? If the answer to this question is in the affirmative, what criteria must the competent authorities of the State of enforcement rely on when deciding on the merits and proportionality of the application of several of those measures?

5. Is the legal regime laid down in Article 36(1) of Regulation (EU) No 1215/2012 (…) to be applied to a judgment of the State of origin regarding the suspension (or cancellation) of enforceability, or is a legal regime similar to that specified in Article 44(2) of that regulation applicable?

The facts of the case can be summarized as follows.

In enforcement proceedings, a bailiff operating in Lithuania is executing an order of the Amtsgericht Hünfeld (Local Court, Hünfeld, Germany), on the basis of which an enforcement order and a European Enforcement Order certificate had been issued regarding the recovery of a debt of the debtor for the benefit of the party seeking enforcement.

The debtor applied to the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) for withdrawal of the European Enforcement Order certificate and termination of enforcement. It claimed that the certificate had been issued unlawfully because the procedural documents of the Local Court, Hünfeld, had not been duly served on it. He also requested the bailiff to stay the enforcement proceedings in the Republic of Lithuania until its claims for withdrawal of the European Enforcement Order certificate and termination of enforcement had been examined in a final procedural decision of the court in Germany.

The bailiff refused to stay the enforcement proceedings, on the basis that the Lithuanian Code of Civil Procedure do not provide for a stay of the enforcement of a final judgment on the ground that claims for withdrawal have been made before a court of the State of origin. The District Court of Kaunas, Lithuania, before which an action regarding this refusal was brought, did not upheld the action. The Regional Court of Kaunas, exercising appellate jurisdiction, set aside the order of the court of first instance, upheld the action brought by the debtor and ordered the stay of the enforcement proceedings pending a full examination of the debtor’s claims by a final judgment of the German competent court.

The other party brought an appeal on a point of law before the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania).

Finally, the Court of Justice will hand down its judgment in case C-604/20, ROI Land Investments, also on 20 October. The Bundesarbeitsgericht (Germany) has requested the interpretation of rules on jurisdiction under the Brussels I bis Regulation, as well as of conflict of law provisions in Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I):

1. Is Article 6(1) read in conjunction with Article 21(2) and Article 21(1)(b) of Regulation (EU) No 1215/2012 (…) to be interpreted as meaning that an employee can sue a legal person – which is not his employer and which is not domiciled in a Member State within the meaning of Article 63(1) of the Brussels I Regulation but which, by virtue of a letter of comfort, is directly liable to the employee for claims arising from an individual contract of employment with a third party – in the courts for the place where or from where the employee habitually carries out his work in the employment relationship with the third party or in the courts for the last place where he did so, if the contract of employment with the third party would not have come into being in the absence of the letter of comfort?

2. Is Article 6(1) of the Brussels I Regulation to be interpreted as meaning that the reservation in respect of Article 21(2) of the Brussels I Regulation precludes the application of a rule of jurisdiction existing under the national law of the Member State which allows an employee to sue a legal person, which, in circumstances such as those described in the first question, is directly liable to him for claims arising from an individual contract of employment with a third party, as the ‘successor in title’ of the employer in the courts for the place where the employee habitually carries out his work, if no such jurisdiction exists under Article 21(2) read in conjunction with Article 21(1)(b)(i) of the Brussels I Regulation?

3. If the first question is answered in the negative and the second question in the affirmative:

(a)  Is Article 17(1) of the Brussels I Regulation to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b)  If so, is Article 17(1) of the Brussels I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable for claims of an employee arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

4. If, in answer to the above questions, the referring court is deemed to have international jurisdiction to rule on the dispute:

(a)   Is Article 6(1) of Regulation (EC) No 593/2008 (…) to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b)   If so, is Article 6(1) of the Rome I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable to an employee for claims arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

I reported here on the facts of the case. Interestingly, AG Richard de la Tour’s opinion of April 28, 2022, not yet available in English, offers the Court two possibilities. My translation for the first one would be:

1) Article 21, sections 1 and 2, of Regulation (EU) No. 1215/2012 (…) must  be interpreted in the sense that a natural or legal person, whether or not domiciled in the territory of a Member State, with whom an employee has concluded, not his employment contract, but an agreement that forms an integral part of said contract, by virtue of which said person is responsible for fulfilling the obligations of the employer towards the employee, can be classified as “employer” when it has a direct interest in the correct execution of the contract. The referring court must assess the existence of this direct interest globally, taking into account all the considerations of the case at hand.

2) Article 6(1) of Regulation No 1215/2012 must be interpreted as meaning that the application of the jurisdictional rules of national law must be excluded when the conditions of application of Article 21(2) of said Regulation are met.

In the event that the Court of Justice considers the dispute does not fall within the scope of application of Article 21(2) of Regulation No. 1215/2012, Mr. Richard de la Tour suggests answering that:

3) Article 17, paragraph 1, of Regulation No. 1215/2012 and article 6, paragraph 1, of Regulation (EC) No. 593/2008, must be interpreted in the sense that the concept of “professional activity” includes work for another’s account in an employment relationship.

4) Article 17(1) of Regulation No. 1215/2012 and Article 6(1) of Regulation No. 593/2008 must be interpreted as meaning that a letter of comfort that forms an integral part of a employment contract, by virtue of which a person is responsible for fulfilling the obligations of the employer towards the worker, is included in the concept of “professional activity”.

The decision will be delivered by the 3rd Chamber with M. Safjan reporting, sitting together with Ms. Jürimäe, M. Jääskinen, M. Piçarra and M. Gavalec.

Written by Mayela Celis

On 30 September 2022, a US District Court in Boston (Massachusetts, USA) dismissed the case filed by Mexico against the US weapons manufacturers regarding non-contractual obligations (among them, negligence and unjust enrichment). According to Reuters, the reason given by the judge to dismiss the case is that “federal law [Protection of Lawful Commerce in Arms Act] ‘unequivocally’ bars lawsuits seeking to hold gun manufacturers responsible when people use guns for their intended purpose” and that none of the exceptions contained therein applied.

One statement worthy of note as stated in multiple news media is: “While the court has considerable sympathy for the people of Mexico, and none whatsoever for those who traffic guns to Mexican criminal organizations, it is duty-bound to follow the law.”

The full case citation is Estados Unidos Mexicanos (plaintiff) vs. SMITH & WESSON BRANDS, INC.; BARRETT FIREARMS MANUFACTURING, INC.; BERETTA U.S.A. CORP.; BERETTA HOLDING S.P.A.; CENTURY INTERNATIONAL ARMS, INC.; COLT’S MANUFACTURING COMPANY LLC; GLOCK, INC.; GLOCK GES.M.B.H.; STURM, RUGER & CO., INC.; WITMER PUBLIC SAFETY GROUP, INC. D/B/A INTERSTATE ARMS (defendants), Case 1:21-cv-11269, filed in 2021.

In a nutshell, the allegations made by Mexico are the following (as stated in the complaint):

1. Defendants have legal duties to distribute their guns safely and avoid arming criminals in Mexico;
2. Defendants are fully on notice that their conduct causes unlawful trafficking to Mexico;
3. Defendants actively assist and facilitate trafficking of their guns to drug cartels in Mexico:
4. Defendants actively assist and facilitate the unlawful tracking because it maximizes their sales and profits;
5. The Government has taken reasonable measures to try to protect itself from defendants’ unlawful conduct;
6. Defendants cause massive injury to the government.

Claims for relief are (as stated in the complaint):

Negligence, public nuisance, defective condition – unreasonably dangerous, negligence per se, gross negligence, unjust enrichment and restitution, violation of CUTPA [Connecticut Unfair Trade Practices Act], Violation of Mass. G.L. c. 93A [Massachusetts Consumer Protection Act], punitive damages.

In addition to the argument given by the judge, I believe that it would be very hard to establish personal jurisdiction over the defendants. Think for example of the minimum contacts and the reasonableness test, in particular what are the contacts of the defendants with the state of Massachusetts (but see for example: Smith & Wesson is indeed based in Massachusetts until 2023), the existence of justified expectations that may be protected or hurt, and the forum State’s [the United States of America} interest in adjudicating the dispute.

Moreover, and aside from jurisdictional issues, given that the actual damage occurred overseas, an important issue would be to prove the causation link between the conduct of the defendants and the damage. This will prove particularly difficult considering all the intermediaries that exist in the weapons’ trade (legal and illegal, second-hand sales, pawn shops, etc.).

Nevertheless, this is a very interesting initiative and perhaps it is a battle worth fighting for (if only to raise public awareness). One thing is for sure: the Mexican Government has shown its increasing concern about the illicit traffic of firearms in its territory and its commitment to end it.

The Mexican Federal Government will appeal the judgment.  The official statement is available here.

We will post any new updates on this blog. Stay tuned!

Meetings & Events

On 1-2 September 2022, the HCCH Regional Office for Latin America and the Caribbean organised a judicial training on the 1980 Child Abduction Convention and 1996 Child Protection Convention in Barbados, attended by judges and senior practitioners in the field of child abduction from Barbados, the Bahamas, Belize and Trinidad and Tobago.

On 8 September 2022, the HCCH Regional Office for Latin America and the Caribbean organised a judicial training on the 1980 Child Abduction Convention in Trinidad and Tobago, attended by judges in the field of child abduction from Trinidad and Tobago and the Bahamas.

From 12 to 16 September 2022, the online HCCH CODIFI Conference brought together panelists and participants from a range of backgrounds to examine issues of private international law in the commercial, digital and financial sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the Principles on Choice of Law in International Commercial Contracts. More information is available here, and recordings of all the sessions are available here.

From 19 to 23 September 2022, the third meeting of the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation was held in hybrid format. The Group made further progress on the development of draft provisions on parallel litigation in civil or commercial matters, which may occur when separate proceedings are instituted before the courts of different States. More information is available here.

 

Upcoming Events

Registrations are now open for HCCH Asia Pacific Week 2022, to be held from 18 to 20 October in Manila, the Philippines. The conference will act as a forum for the exchange of ideas and viewpoints from across Asia and the Pacific on some of the most prominent HCCH Conventions and instruments, as well as on the HCCH’s ongoing normative projects and possible future work, in the areas of transnational litigation and legal cooperation, international family and child protection law, and commercial, digital and financial law. More information is available here.

 

Vacancies

Applications are now open for the position of Legal Officer within the Transnational Litigation & Apostille Division of the Permanent Bureau of the HCCH. The deadline for the submission of applications is 14 October 2022. 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.

Priskila Pratita Penasthika (Assistant Professor in Private International Law at the Faculty of Law, Universitas Indonesia) has just published her PhD dissertation with Eleven under the title Unravelling Choice of Law in International Commercial Contracts. Indonesia as an Illustrative Case Study.

The abstract reads as follows:

Despite the paramount role of choice of law in international contractual relationships, its implementation in various countries remains disparate. Many countries have acknowledged and given effect to choice of law, but some other countries persist in opposing it. The lingering reluctance in enforcing choice of law remains a challenging impediment to cross-border commercial relationships.

Strict adherence to the territoriality principle, absence of special provisions or clear guidelines of choice of law, and difficulties in confirming the content of the chosen foreign law are among the reasons for the reluctance to give effect to choice of law. These circumstances are encountered by some countries, including Indonesia.

This book not only unravels the reasons for Indonesia’s reluctance and its subsequent lack of advancement on choice of law, but also examines possible solutions to the problem. Building on in-depth doctrinal research, supported by qualitative interviews, this research will serve as an essential point of reference for academics, practitioners, and policymakers interested in private international law and cross-border commercial litigation.

The book offers a thorough analysis into why and to what extent Indonesia deviates from applying choice of law in international commercial contracts and identifies related factors to this situation. The study makes use of various research methods to analyse in-depth the situation of choice of law in international commercial contracts. The doctrinal method allows the scholar to explore and describe the theoretical and regulatory frameworks of choice of law that are available at the global, regional, and national levels. This is complemented by an empirical part based on qualitative interviews carried out with practitioners and experts in Indonesia, and a detailed analysis of national case law after 2002 concerning contracts where parties made use of a choice of law clause. The interviews allowed the researcher to gain a better understanding of the problems and difficulties facing the Indonesian judicial practice with regard to choice of law.

This publication could not have been more timely given that it has taken Indonesia around 55 years since its independence to finally have a statutory provision that acknowledges the freedom of the parties to choose the law applicable to a contract.

Nevertheless, the prevailing provisions appear insufficient to deal with the complexity of international commercial transactions. The academic discussion on the topic has been rather sluggish for a long period in Indonesia.

With the ongoing reforms and the national policy vision (Visi Indonesia 2045) aiming to encourage international trade, this book has the potential to bring back into the arena advanced discussions on the topic. It is certainly a valuable study for international readers interested in choice of law who would otherwise not be able to easily access decisions of Indonesian courts in this area of private international law as well as gaining a detailed understanding of the complexity of the national system.

Additionally, it is a useful tool for Indonesian policymakers, practitioners, and scholars as it highlights a number of improvements that could be embarked upon in the future. This will also assist courts to secure parties’ access to justice, and promote certainty and predictability in the settling of international commercial contract disputes.

The second issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. In addition to recent case law and other materials, it features two essays and one shorter paper

Costanza Honorati, Giovanna Ricciardi, Violenza domestica e protezione cross-border (Domestic Violence and Cross-Border Protection)

Domestic violence has drawn increasing attention both from the lawmaker and legal scholars. Legal means to prevent domestic violence and protect women have been promoted and implemented at the national and supranational levels. This article concentrates on seeking and enforcing civil protection measures in cross-border family conflicts. Protective measures are often sought and taken in the State where the prospective victim (and often also the tortfeasor) is habitually resident. PIL issues are however rarely addressed. Regulation (EU) No 606/2013 on mutual recognition of protection measures in civil matters provides a useful instrument when the need for recognition and enforcement in a different Member State arises at a later stage. Less dealt with is the issue of selecting an appropriate ground for jurisdiction, which is not governed by the mentioned Regulation. The latter issue becomes especially relevant in the very peculiar case of protection measures to be issued in the so-called State of refuge when a mother challenges a situation of domestic violence as a ground for leaving the State of a child’s habitual residence and searches for protection elsewhere. The interplay between domestic violence and abduction cases, a situation quite frequent in practice but rarely addressed in legal literature, is further explored and dealt with.

Ilaria Viarengo, The Coordination of Jurisdiction and Applicable Law in Proceedings Related to Economic Aspects of Family Law

This article addresses the complex features and problems arising from the combined application of all European and international instruments dealing with divorce and the economic aspects of family law. The need to avoid litigation proceedings in different jurisdictions, entailing the duplication of proceedings and costs and the need to have divorce and all the financial aspects governed by the same law are of central importance from a practical point of view. This article provides an analysis of whether and to what extent these two needs can be satisfied with the combined application of the EU family law regulations at issue. Firstly, it deals with some general issues whose solution could have an impact on the coordination among all these instruments. Consequently, it examines the interplay among rules on jurisdiction and applicable law, including the role of party autonomy in pursuing coordination.

Curzio Fossati, La residenza abituale nei regolamenti europei di diritto internazionale privato della famiglia alla luce della giurisprudenza della Corte di giustizia (Habitual Residence in EU Private International Law Regulations in Family Matters in View of the Case-Law of the Court of Justice)

This article deals with the concept of habitual residence, which is in widespread use in the EU Regulations in the field of family law. Firstly, the article gives an overview of these Regulations, and then it analyses the case-law of the CJEU on the criterion of habitual residence referred to children, deceased persons, and spouses. The contribution examines two fundamental elements of the concept of habitual residence identified both by CJEU and scholars: the objective element, i.e. a sufficiently stable presence of a person in a Member State, and the subjective element, i.e. the intention of the person concerned to establish the permanent or habitual centre of his or her interests in that place. The article also tries to identify the most suitable method of interpretation of the concept of habitual residence and, in particular, it investigates which approach is more desirable between a uniform approach (which fosters a uniform definition of habitual residence in EU law) and a functional one (which implies an interpretation that takes into account the aim of the disposition in which the concept is used). Ultimately, the Author endorses the solution adopted by the CJEU in the IB case, which combines the aforementioned approaches.

By judgment of 28 September 2022 – XII ZR 7/22 (so far, only the press release is available, on which the following considerations are based), the German Federal Court of Justice held that Hungarian street tolls can be claimed before German courts.

The claimant is a Hungarian company that collects Hungarian street tolls, the defendant a domestic car rental company. According to Hungarian regulation, it is the registered keeper of the car that owes the toll. If the toll is not paid by a virtual vignette (e-Matrica), an „increased substitute toll“, five times higher than the vignette, must be paid within 60 days, afterwards additonally a large „processing fee“. The first instance rejected the claim, on appeal the defendant was ordered to pay the claimed amount, the second appeal, on issues of law alone, confirmed the judgment on first appeal (except on the issue of which currency could be claimed, Hungarian Forinth or also Euros optionally).

The main point on the second appeal was whether the public policy exception in Article 21 Rome I Regulation applies. This analysis implies that the claim is characterised as contractual and that the Hungarian law on street tolls applies. The first issue was rather whether imposing liability solely on the part of the registered keeper would conflict with German public policy in case that this keeper is a car rental company whose business obviously is renting out its registered cars to the respective driver. As German law (section 7 German Road Traffic Act) prescribes, rather similarly, at least a subsidiary liability of the registered keeper, the Court rightly rejected a violation of German public policy. Since this result was obvious, the issue must have been dealt with upon party submission with which the Court has to deal with as a matter of fair proceedings (right to be heard, extending to a right to see the Court dealing with the Party’s core points).

More interestingly, the „increased substitute toll“ was seen as a contractual penalty which was – again rightly – considered as „not entirely unknown under German law“, referring to similar substitute tolls indeed used in contracts for tramway or underground railroad traffic etc. if the traveller does not have a valid ticket. One is tempted to add that a contractual practice does not necessarily indicate the legal validity of this practice, but as this practice is virtually uncontested it is certainly convincing to take it as a „proof“ for how German law deals with contractual penalties. The German Civil Code provides for the basis in sections 339 et seq., combined with sections 305 et seq. (control of unfair terms).

On the issue of the currency of the claim, the Court observed that the debt in question in foreign currency can only be claimed in that foreign currency unless the applicable Hungarian law allows optional payment in Euros. In order to assess this point of Hungarian law the case was referred back to the court of first instance.

The case shows that Member State Courts continue being careful before striking down the results of a foreign applicable law as a violation of the national public policy. Had the highest instance of the German civil courts tended towards the opposite it would have had the obligation to refer the question to the ECJ whether activating the public policy exception was still within the confines of this exception as defined in its outer limits by European Union law. Rejecting a public policy violation in the sense of Article 21 Rome I Regulation (and comparable provisions in EU PIL) puts this decision in a (small) series of decisions of Member State courts, compared to almost none that actually assessed a violation. Nevertheless, it is remarkable that the court of appeal gave leave for a second appeal on the grounds that the questions on Article 21 Rome I Regulation would be of fundamental relevance („von grundsätzlicher Bedeutung“). Otherwise, the case could not have reached the Federal Court of Justice, as complaints against not giving leave are only admissible beyond a value of the appeal of EUR 20.000, and the total sum of the claim here was not more than approximately EUR 1.300.

Perry Dane (Rutgers) law schools has posted Party Autonomy and the Challenge of Choice of Law on SSRN.

The abstract reads:

A perennial question in choice of law is whether parties to a contract can select the jurisdiction whose law will govern their contract. This so-called “party autonomy” problem is vexing and intriguing, in part because contemporary discussions often overlook in contemporary discussions.

The party autonomy problem is more consequential than most issues in choice of law. But it is also important as a singular window into the intellectual fabric of choice of law and as a leading edge for new and potentially subversive insights.

This essay is a chapter in an Oxford University Press volume on the “Philosophical Foundations of Conflict of Laws.” The essay argues that party autonomy does not have one comprehensive justification, but that it might be justified by a set of distinct if overlapping arguments that point to vital ideas often overlooked in the contemporary conversation. If choice of law doctrine embraces party autonomy, it might be in part because its shapers instinctively and inchoately recognize those considerations.

The most speculative and problematic argument is based on a version of natural law. Another argument relies on an important distinction between what I have called second-order and first-order choice of law. Yet another builds on an effort at a more sophisticated understanding of what it means for persons to be attached (or to attach themselves) to the legitimate governance of a legal system. The last argument is grounded in legal pluralism, though not of the usual sort.

These distinct bases for party autonomy are not only of theoretical interest. They also generate different answers to some of the material subsidiary questions that arise in any doctrinal consideration of party autonomy. That in turn suggests that the doctrine of party autonomy might require more nuance and fine-grained distinctions than most current treatments have given it.

The paper is forthcoming in Philosophical Foundations of Conflict of Laws (Oxford University Press, Roxana Banu, Michael Green, Ralf Michaels, eds., 2022).

The Institute for German and International Civil Procedure at the Rheinische Friedrich Wilhelms University of Bonn, Germany, is looking for a highly skilled and motivated PhD candidate and fellow (Wissenschaftliche/r Mitarbeiter/in) to work in the fields of Private International Law, International Civil Procedural Law and/or International Commercial Arbitration on a part-time basis (50%) as of 1 April 2023.

The successful candidate must hold the First or Second German State Examination in law with distinction (“Prädikat”) and is interested in the international dimensions of private law, in particular private international law, international civil procedural law, and/or international commercial arbitration.

The successful candidate will be given the opportunity to conduct her/his PhD project (according to the Faculty’s regulations) under the supervision of the Director of the Institute Prof Dr Matthias Weller, Mag.rer.publ. (https://www.jura.uni-bonn.de/professur-prof-dr-weller/professor-dr-weller-magrerpubl/). The position is paid according to the German public service salary scale E-13 TV-L, 50%. The initial contract period is one year at least and up to three years, with an option to be extended. Responsibilities include supporting research and teaching on Private International Law, International Civil Procedure and/or International Commercial Arbitration as well as a teaching obligation of two hours per week during term time.

If you are interested in this position, please send your application (cover letter in German; CV; and relevant documents and certificates, notably university transcripts and a copy of the German State Examination Law Degree) to Prof Dr Matthias Weller (weller@jura.uni-bonn.de). The University of Bonn is an equal opportunity employer.

The (first instance) court at Rotterdam has upheld anchor jurisdiction and refused an application for an Article 34 Brussels Ia stay. The case concerns victims of earthquakes in the Brasilian Maceió region, which they argue are caused by the mining activities of Braskem. The judgment is only available in Dutch.

The Dutch anchor defendants are intra-group suppliers of ia specialty chemicals, and finance. The main target of the claim of course is the Brasilian mother holding. Whether the latter can be brought into the proceedings is not subject to Brussels Ia but rather to Dutch residual rules. However just as in e.g. Shell, the Dutch rules are applied with CJEU authority on Article 8(1) Brussels Ia firmly in mind. In much more succinct terms than the English courts in similar proceedings, the Dutch courts [6.16] finds the cases so ‘closely related’ that it is expedient to hear the cases together. It emphasises that while the respective roles and liabilities of the various undertakings concerned is likely to be very different, there is a bundle of legal and factual questions that runs jointly throughout the various claims. [6.18] it emphasises that the decision to base the European headquarters of the group, and the finance activities at Rotterdam, implies that the concern reasonably could have foreseen it would be sued here.

Equally succinctly [6.19 ff] the Court rejects the argument that the use of the Dutch corporations as anchor defendants is an abuse of process. Such abuse must be narrowly construed and  it is far from obvious that the claim against the anchors is entirely without merit.

Seemingly defendants tried to argue forum non conveniens however [6.23] the court points out such construction does not exist in The Netherlands and obiter it adds (like the Court of Appeal in Municipio) that practical complications in either hearing of the case or enforcement of any judgment are not a reason to dismiss jurisdiction.

Request for a stay in the procedures viz the Brasilian corporations [6.26] is rejected on (Dutch CPR) lis pendens rules for the parties in the proceedings are not the same. Article 34 is dealt with in two paras (quite a contrast with the E&W courts). The pending procedures vis-a-vis Article 34 are not, it seems, Brasilian Civil Public Actions – CPAS (these were at issue in Municipio de Mariana (of some interest is that the law firm behind the claims is the same in both cases)). Rather, pending liquidation proceedings are considered as the relevant assessment points. [6.28] obiter the court finds that the cases are most probably not related. It grounds  its decision however on a stay not being in the interest of the sound administration of justice. The court holds that the Brasilian proceedings are not likely to be concluded within a reasonable time. Defendants’ commitment at hearing to speed up the process in Brasil, are met with disbelief by the court given the defendants’ attitude in the Brasilian procedures hitherto.

[6.32] permission to appeal the interim judgment on jurisdiction is denied. This means that, like in Airbus, discussion on the private international law issues is likely only to resurface at the stage of appealing the judgment on the merits, too.

An important judgment: other than Petrobas, there are to my knowledge no continental judgments discussing Article 34 in this intensity (there are E&W judgments, as readers of the blog will know).

Geert.

See also ‘Dude, where’s my EU court? On the application of Articles 33-34 Brussels Ia’s forum non conveniens- light rules’, Journal of Private International Law, forthcoming 2022.

 

Dutch court refuses Article 34 Brussels Ia lis pendens applicationhttps://t.co/F46tkOlcRe
Pollution case against #braskem will go ahead in home of Dutch mother corporation. More on the blog soonhttps://t.co/jfa1Sb5o3t @PogustGoodhead

— Geert Van Calster (@GAVClaw) September 26, 2022

The Aberdeen Centre for Private International Law is organising a seminar as part of their ‘Crossroads in Private International Law’ webinar series on : Private international law’s contribution to the regulation of Artificial Intelligence (AI): An EU perspective.

The seminar will take place on 5 October 2022, 16:00 – 17:30 UK time.

Speaker: Dr Michiel Poesen, Lecturer in Law, University of Aberdeen, School of Law

Moderator: Tim Dornis, Professor of Private Law and Intellectual Property Law, Leibniz University, Hannover, Germany

Here is further information provided by the Centre: In this webinar, we will bridge artificial intelligence (AI) and EU private international law, i.e. the body of rules that determine which country’s law applies to cross-border legal relationships involving private parties, such as businesses, consumers or employees.

  To that aim, we will start by scrutinising the current legal framework for its capacity to deal with cross-border private law claims arising out of the application of AI systems. Then, we will evaluate the recent proposal of the European Parliament for a bespoke EU Regulation concerning civil liability for harm caused by AI, which included a novel rule of private international law.   Here, we will also reflect on the role private international law could play in the EU’s emerging regulatory policy for AI systems. Attendance is free, but registration is mandatory.

HCCH 2019 Judgments Convention Repository

 

In preparation of the Conference on the HCCH 2019 Judgments Convention on 9/10 June 2023, taking place on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

Update of 28 September 2022: New entries are printed bold.

Please also check the “official” Bibliography of the HCCH for the instrument.

 

I. Explanatory Reports

Garcimartín Alférez, Francisco;
Saumier, Geneviève „Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128

 

II. Bibliography

Ahmed, Mukarrum “Brexit and the Future of Private International Law in English Courts”, Oxford 2022 Åkerfeldt, Xerxes ”Indirekta behörighetsregler och svensk domsrätt – Analys och utredning av svensk domstols behörighet i förhållande till 2019 års Haagkonvention om erkännande och verkställighet” (Examensarbete inom juristprogrammet, avancerad nivå, Örebro Universitet, 2021 ; available here)

 

“Indirect jurisdiction and Swedish law – Analysis and inquiry of the jurisdiction of Swedish courts in relation to the 2019 Hague Convention on Recognition and Enforcement” Al-Jubouri, Zina Hazem “Modern trends for the recognition and enforcement of foreign judgments in civil and commercial matters accordance the 2019 Hague Convention”, Tikrit University Journal for Rights (TUJR) 2022-03, pp. 79-109 (available here) Amurodov, Jahongir “Some issues of Ratification of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019) by the Republic of Uzbekistan”, Uzbek Law Review 2020-03, pp. 11-116 (available here) Arslan, Ilyas “The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Uluslararasi Ticaret ve Tahkim Hukuku Dergisi 10 (2021), pp. 329-402 Badr, Yehya Ibrahim “The Hague 2019 Convention for the Recognition and Enforcement of Foreign Judicial Decisions: A Comparative Study”, International Journal of Doctrine, Judiciary, and Legislation (IJDJL) 2 (2021), pp. 427-468 (available here) Balbi, Francesca “La circolazione delle decisioni a livello globale: il rogetto di convenzione della Conferenza dell’Aia per il riconoscimento e l’esecuzione delle sentenze straniere” (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2019; available: here) Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul R. “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Beaumont, Paul;
Holliday, Jane (eds.) “A Guide to Global Private International Law”, Oxford 2022, forthcoming. Biresaw, Samuel Maigreg “Appraisal of the Success of the Instruments of International Commercial Arbitration vis-a-vis International Commercial Litigation and Mediation in the Harmonization of the Rules of Transnational Commercial Dispute Resolution”, Journal of Dispute Resolution 2022-02, pp. 1-27 (preprint available here) Blanquet-Angulo, Alejandra “Les Zones d’ombre de la Convention de La Haye du 2 Juillet 2019”, Revue Internationale de Droit Comparé (RIDC), 73 (2021), pp. 53-71 Blom, Joost “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 Bonomi, Andrea “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 Bonomi, Andrea “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 Bonomi, Andrea;
Mariottini, Cristina M. “(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 Borges Moschen, Valesca Raizer;
Marcelino, Helder “Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319

(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) Borisov, Vitaly Nikolaevich “2019 Hague Judgments Convention: Global Recognition and Enforcement of Civil and Commercial Judgments (Review of the International Conference held in Hong Kong on September 9, 2019), Journal of Foreign Legislation and Comparative Law 2020-03, pp. 166-172 (available here) Brand, Ronald A. “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 Brand, Ronald A. “Jurisdictional Developments and the New Hague Judgments Project”, in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon, Cambridge 2013, pp 89-99 Brand, Ronald A. “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 Brand, Ronald A. “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 Brand, Ronald A. “The Hague Judgments Convention in the United States: A ‘Game Changer’ or a New Path to the Old Game?“, University of Pittsburgh Law Review 82 (2021), pp. 847-880 (available here) Brannigan, Neil “Resolving conflicts: establishing forum non conveniens in a new Hague jurisdiction convention”, Journal of Private International Law 18 (2022), pp. 83-112 Cai, Ya-qi “Feasibility Study on China’s Ratification of the HCCH Judgment Convention from the Perspective of Indirect Jurisdiction”, Journal of Taiyuan Normal University (Social Science Edition) 2021-04, pp. 74-80 Çaliskan, Yusuf;
Çaliskan, Zeynep “2 Temmuz 2019 Tarihli Yabanci Mahkeme Kararlarinin Taninmasi ve Tenfizine Iliskin Lahey Anlasmasinin Degerlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245 (available here)

(An Evaluation of 2 July 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) Cardoso, Connor J. “Implementing the Hague Judgments Convention”, New York University Law Review 97 (2022), forthcoming (Draft available here) Celis Aguilar, María Mayela “El convenio de la haya de 30 de junio de 2005 sobre acuerdos de elección de foro y su vinculación con el ‘proyecto sobre Sentencias’ (y viceversa)”, Revista mexicana de Derecho internacional privado y comprado N°40 (octubre de 2018), pp. 29-51 (available here) Chai, Yuhong ; Qu, Zichao “The Development and Future of the Hague Jurisdiction Project”, Wuhan University International Law Review 2021-05, pp. 27-52 (online first) Chen, Shun-Hsiang “Signed, Sealed, & Undelivered: Unsuccessful Attempts of Judgment Recognition Between the U.S. and China”, Brooklyn Journal of Corporate, Financial & Commercial Law 16 (2022), pp. 167-189 (available here) Chen, Wendy “Indirect Jurisdiction over the Recognition and Enforcement of Judgments of Foreign Courts in Compulsory Counterclaims”, Journal of Xingtai University 2019-04, pp. 106-110 Cheng, Xian-ping; Liu, Xian-chao “On the Application of the Severable Clause in The Hague Judgments Convention”, Harbin Normal University Social Science Journal 2021-05, pp. 30-34 Choi, Sung-Soo “Review of the several issues of the Convention on the Recognition and Enforcement of Foreign Judgments”, Gachon Law Review 14 (2021), pp. 37-68 (available here) Clavel, Sandrine ; Jault-Seseke, Fabienne “La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale : Que peut-on en attendre ?”, Travaux du comité français de Droit international privé, Vol. 2018-2020, Paris 2021 (Version provisoire de la communication présentée le 4 octobre 2019, available here) Clover Alcolea, Lucas “The 2005 Hague Choice of Court and the 2019 Hague Judgments Conventions versus the New York Convention – Rivals, Alternatives or Something Else?”, Mc Gill Journal of Dispute Resolution 6 (2019-2020), pp. 187-214 Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 Cong, Junqi “Reinventing China’s Indirect Jurisdiction over Civil and Commercial Matters concerning Foreign Affairs – Starting from the Hague Judgment Convention” (Master’s Thesis, National 211/985 Project Jilin University; DOI: 10.27162/d.cnki.gjlin.2020.001343) Contreras Vaca, Francisco José “Comentarios al Convenio de la Haya del 2 de julio de 2019 sobre Reconcimiento y Ejecución de Sentencias Extranjeras en materia civil y comercial”, Revista mexicana de Derecho internacional privado y comprado N°45 (abril de 2021), pp. 110-127 (available here) Cui, Zhenghao “On the Coordination between the Draft Convention on Judicial Sale of Ships and the related Conventions of the Hague Conference on Private International Law”, China Ship Survey 2021-04, pp. 65-68 Cuniberti, Gilles “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 DAV (German Bar Association) “Position Paper on the EU’s possible accession to the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of the Hague Conference on Private International Law”, Berlin 2020 (available here) de Araujo, Nadia ; de Nardi, Marcelo ;
Spitz, Lidia “A nova era dos litígios internacionais”, Valor Economico 2019 de Araujo, Nadia ;
de Nardi, Marcelo ;
Lopes Inez ;
Polido, Fabricio „Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34 de Araujo, Nadia ;
de Nardi, Marcelo „Consumer Protection Under the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 67-79 de Araujo, Nadia ;
de Nardi, Marcelo „22ª Sessão Diplomática da Conferência da Haia e a Convenção sobre sentenças estrangeiras : Primeiras reflexões sobre as vantagens para o Brasil da sua adoção“, Revista de la Secretaría del Tribunal Permanente de Revisión 7 No. 14 (2019), páginas 198-221

(22nd Diplomatic Session of The Hague Conference and the Convention on Foreign Judgments: First Reflections on the Advantages for Brazil of their Adoption) de Araujo, Nadia ;
De Nardi, Marcelo “International Jurisdiction in Civil or Commercial Matters: HCCH’s New Challenge”, in Magdalena Pfeiffer, Jan Brodec, Petr Bríza, Marta Zavadilová (eds.), Liber Amicorum Monika Pauknerová, Prague 2021, pp. 1-11 Dlmoska, Fani “Would the Judgments Convention lead to unification of the ratification and enforcement of foreign judgments in the SEE Countries: The possible impact of the Judgments Convention”, SEELJ Special Edition No. 8 (2021), pp. 81-103 Dordevic, Slavko “Country Report Serbia”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 180-202 Dotta Salgueiro, Marcos “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”, Netherlands International Law Review (NILR) 67 (2020), pp 113-120 Douglas, Michael;
Keyes, Mary;
McKibbin, Sarah;
Mortensen, Reid “The HCCH Judgments Convention in Australian Law”, Federal Law Review 47 (2019), pp 420-443 Du, Tao “Frontiers of Private International Law Around the World: An Annual Review (2019-2020)”, Chinese Review of International Law 2021-04, pp. 103-128 (available here) Dyrda, Lukasz “Judicial Cooperation in Civil and Commercial Matters in the Context of the European Union’s Planned Accession to the 2019 Hague Judgments Convention after Brexit”, Europejski Przeglad Sadowy 2022-5, pp. 22-29 Echegaray de Maussion, Carlos Eduardo “El Derecho Internacional Privado en el contexto internacional actual : Las reglas de competencia judicial indirecta en el Convenio de la Haya de 2 de Julio de 2019 y el accesso a la justicia” Revista mexicana de Derecho internacional privado y comprado N°45 (abril de 2021), pp. 128-139 (available here) Efeçinar Süral “Possible Ratification of the Hague Convention by Turkey and Its Effects to the Recognition and Enforcement of Foreign Judgments”, Public and Private International Law Bulletin 40 (2020), pp. 775-798 (available here) EGPIL/GEDIP Observations on the possible accession of the European Union to the Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments, Text adopted on 9 December 2020 following the virtual meeting of 18-19 September 2020 (available here) | Zeitschrift für Europäisches Privatrecht (ZEuP) 2021, pp. 474-476 Ermakova, Elena ; Frovola, Evgenia ; Sitkareva, Elena “International Economic Integration and the Evolution of the Principles of Civil Procedure”, in Elena G. Popkova, Bruno S. Sergi, Modern Global Economic System, Basel 2021, pp. 1589-1597 European Union (EU)/ European Commission “Proposal for a Council Decision on the accession by the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, COM(2021) 388 final (available here) Fan, Jing “On the Jurisdiction over Intellectual Property in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Chinese Yearbook of Private International Law and Comparative Law 2018-02, pp. 313-337 Fan, Jing “Reconfiguration on Territoriality in Transnational Recognition and Enforcement of Intellectual Property Judgments”, Chinese Review of International Law 2021-01, pp. 90-112 (available here) Farnoux, Étienne “Reconnaissance et exécution des jugements étrangers en matière civil ou commerciale : À propos de la Convention de La Haye du 2 juillet 2019”, La Semaine Juridique 2019, pp. 1613-1617 Forner Delaygua, Joaquim-Joan “El Convenio de La Haya de 2 julio 2019 como nuevo marco normativo de las sentencias en materia de contractual comercial”, in Pérez Vera et al. (eds.), El Derecho internacional privado entre la tradición y la innovación – Obra homenaje al Profesor doctor José María Espinar Vicente, Madrid 2020, pp. 307-325 Franzina, Pietro; Leandro, Antonio

  “La Convenzione dell’Aja del 2 luglio 2019 sul riconoscimento delle sentenze straniere : una prima lettura”, Quaderni di SIDIblog 6 (2019), pp 215-231 (available here)

(The Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments: A First Appraisal) Fuchs, Felix “Das Haager Übereinkommen vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Urteile in Zivil- oder Handelssachen“, Gesellschafts- und Wirtschaftsrecht (GWR) 2019, pp 395-399 Garcimartín, Francisco “The Judgments Convention: Some Open Questions”, Netherlands International Law Review (NILR) 67 (2020), pp 19-31 Garnett, Richard “The Judgments Project: fulfilling Assers dream of free-flowing judgments”, in Thomas John, Rishi Gulati, Ben Koehler (eds.), The Elgar Companion to the Hague Conference on Private International Law, Cheltenham/Northampton 2020, pp. 309-321 Goddard, David „The Judgments Convention – The Current State of Play”, Duke Journal of Comparative & International Law 29 (2019), pp 473-490 Grodl, Lukas “Forum Non Conveniens Doctrine – post Brexit Applicability in Transnational Litigation”, Casopis pro právní vedu a praxis 30 (2022), pp. 285-303 (available here) Gu, Weixia “A Conflict of Laws Study in Hong Kong-China Judgment Regionalism: Legal Challenges and renewed Momentum”, Cornell International Law Journal 52 (2020), pp. 591-642 Guez, Philippe ;
de Berard, François ; Malet-Deraedt, Fleur ; Roccati, Marjolaine ; Sinopoli, Laurence ; Slim, Hadi ; Sotomayor, Marcelo ; Train, François-Xavier “Chronique de droit international privé appliqué aux affaires, Revue de droit des affaires internationales – 1 décembre 2018 au 31 décembre 2019”, Revue de Droit des Affaires Internationales 2020, pp. 237-274 Gugu Bushati, Aida “Country Report Albania”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 16-41 (available here) Guide, Jia
[Foreign Ministry of the People’s Republic of China] “Address by the Director of the Department of Treaty and Law of the Ministry of Foreign Affairs Jia Guide at the Opening Ceremony of the International Symposium on the Hague Judgment Convention (9 September 2019)”, Chinese Yearbook of International Law 2019, pp. 503-505 Gusson Said, Enza ; Quiroga Obregón, Marcelo Fernando “Homologação de sentenças estrangeiras e o Judgements

Project”, Derecho y Cambio Social N.º 60 (2020) en línea,
pp. 1-13 (available here) Häggblom, Annie ”2019 ars Haagkonvention om erkannande och verkstallighet av utlandska domar pa privatrattens omrade: Ett framgangsrikt internationellt instrument pa den internationella privatrattens omrade?” (Examensarbete i internationell privat- och processrätt, Uppsala Universitet, 2021; available here)

“The Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters : A successful international instrument in the field of private international law?” He, Qisheng “The HCCH Judgments Convention and the Recognition and Enforcement of Judgments pertaining to a State”, Global Law Review 3 (2020), pp 147-161 (available here) He, Qisheng “Unification and Division: Immovable Property Issues under the HCCH Judgement Convention”, Journal of International Law 1 (2020), pp 33-55 He, Qisheng “The HCCH Judgments Convention and International Judicial Cooperation of Intellectual Property”, Chinese Journal of Law 2021-01, pp. 139-155 He, Qisheng “Latest Development of the Hague Jurisdiction Project”, Wuhan University International Law Review 2020-04, pp. 1-16 He, Qisheng “ ’Civil or Commercial Matters’ in International Instruments Scope and Interpretation”, Peking University Law Review 2018-02, pp. 1-25 (available here) He, Qisheng “A Study on the Intellectual Property Provisions in the ’Hague Convention on Judgment’ – On the Improvement of Transnational Recognition and Enforcement of Intellectual Property Judgments in China”, Journal of Taiyuan University (Social Science Edition) 2020-05, pp. 40-47 He, Qisheng “Negotiations of the HCCH 2019 Judgments Convention on State Immunity and Its Inspirations”, Chinese Review of International Law 2022-02, pp. 40-52 He, Qisheng “Dilemma and Transformation of the Hague Jurisdiction Project”, Wuhan University International Law Review 2022-02, pp. 36-58 Herrup, Paul;
Brand, Ronald A. “A Hague Convention on Parallel Proceedings”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2021-23, pp. 1-10 (available here) Herrup, Paul;
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2019-01, pp. 59-74 (available here) Qian, Zhenqiu;
Yang, Yu “On the Interpretation and Application of the Cost of Proceedings Provision under the Hague Judgment Convention”, China Journal of Applied Jurisprudence 2020-04, pp. 96-108 Reisman, Diana A. A. “Breaking Bad: Fail –Safes to the Hague Judgments Convention”, Georgetown Law Journal 109 (2021), pp. 880-906 Revolidis, Ioannis « From the ashes we will rise – recognition and enforcement of international judgments after the revival of the Hague Convention », Lex & Forum 4/2021 Reyes, Anselmo „Implications of the 2019 Hague Convention on the Enforcement of Judgments of the Singapore International Commercial Court”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 695-709 Ribeiro-Bidaoui, João “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 Rumenov, Ilija “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-404 Rumenov, Ilija “Country Report North Macedonia”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 138-179 (available here) Rumenov, Ilija “The indirect jurisdiction of the 2019 Hague Convention on recognition and enforcement of foreign judgments in civil or commercial matters – Is the “heart” of the Convention”, SEELJ Special Edition No. 8 (2021), pp. 9-45 Sachs, Klaus;
Weiler, Marcus “A comparison of the recognition and enforcement of foreign decisions under the 1958 New York Convention and the 2019 Hague Judgments Convention”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 763-781 Saito, Akira “Advancing Recognition and Enforcement of Foreign Judgments: Developments of Inter-Court Diplomacy and New Hague Judgments Convention”, Kobe Law Journal 2019-03, pp. 59-110 (available here) Salim, Rhonson “Quo Vadis Consumer Dispute Resolution? – UK & EU Cross Border Consumer Dispute Resolution in the Post Brexit Landscape”, Revista Ítalo-Española De Derecho Procesal 2022-01, forthcoming (E-pub ahead available here) Sánchez Fernández, Sara “El Convenio de la Haya de Reconocimiento y Ejecución de Sentencias”, Revista Española de Derecho Internacional 73 (2021), pp. 233-252 Saumier, Geneviève “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 49-65 Schack, Haimo “Wiedergänger der Haager Konferenz für IPR: Neue Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens?“, Zeitschrift für Europäisches Privatrecht (ZeuP) 2014, pp 824-842 Schack, Haimo „Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 1-96 Senicheva, Marina “The Relevance and Problems of the Hague Convention of July 2, 2019 on the Recognition and Enforcement of Foreign Judgments Ratification by the Russian Federation”, Advances in Law Studies 8 (2020), online (available: here) Shan, Juan “A study on the Anti-trust Provisions in the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 318-335 Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 1)”, Journal of Russian Law No. 2020-07, pp. 170-186 (available here) Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 2)”, Journal of Russian Law No. 2020-11, pp. 140-54 (available here) Shen, Juan “Further Discussion on the Drafts of the Hague Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and Considerations from Chinese Perspective”, Chinese Review of International Law 2016-06, pp. 83-103 (available here) Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 Silberman, Linda “The 2019 Judgments Convention: The Need for Comprehensive Federal Implementing Legislation and a Look Back at the ALI Proposed Federal Statute”, NYU School of Law, Public Law Research Paper No. 21-19 (available here) Skvortsova, Tatyana Aleksandrovna;
Denyak, Victoria Yurievna “On the issue of Recognition and Enforcement of Court Decisions of a Foreign State in the Russian Federation”, Collection of selected Articles of the International Scientific Conference, Saint Petersburg (2021), pp. 258-261 Solomon, Dennis “Das Haager Anerkennungs- und Vollstreckungsübereinkommen von 2019 und die internationale Anerkennungszuständigkeit“, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 873-893 Song, Jianli “ ‘Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments’ and its influence on my country”, People’s Judicature (Application) 2020-01, pp. 88-92 (available here) Song, Lianbin; Chen, Xi “The Judicial Difference and International Coordination of the Recognition and Enforcement of Foreign Punitive Damages Judgements: Also on China’s Corresponding Measures Under the Frame of HCCH Convention”, Jiang-Huai Tribune 2021-03, pp. 111-113 Spitz, Lidia „Homologação De Decisões Estrangeiras No Brasil –  A Convenção de Sentenças da Conferência da Haia de 2019 e o contrôle indireto da jurisdição estrangeira”, Belo Horizonte 2021 Spitz, Lidia „Refusal of Recognition and Enforcement of Foreign Judgments on Public Policy Grounds in the Hague Judgments Convention – A Comparison with The 1958 New York Convention“, YbPIL 21 (2019/2020), pp 333-364 Stein, Andreas „Das Haager Anerkennungs- und Vollstreckungsübereinkommen 2019 – Was lange währt, wird endlich gut?“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 197-202 Stewart, David P. „Current Developments: The Hague Conference adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, American Journal of International Law (AJIL) 113 (2019), pp 772-783 Stitz, Olivia “Comity, Tipping Points, and Commercial Significance: What to expect of the Hague Judgments Convention”, Corporate and Business Law Journal (Corp. & Bus. L.J.) 2 (2021), pp. 203-236 (available here) Storskrubb, Eva “The EU Commission’s Proposal for the EU to Accede to the Hague Judgments Convention”, EU Law Live Weekend Edition No. 75 (2021), pp. 10-16 (available here) Suk, Kwang-Hyun “Principal Content and Indirect Jurisdiction Rules of the Hague Judgments Convention of 2019”, Korea Private International Law Journal 2020-02, pp. 3-83 Sun, Jin;
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Part 1: JCA 2020-04, pp. 40-45 (available here)

Part 2: JCA 2020-05, pp. 40-45 (available here)

Part 3: JCA 2020-06, pp. 42-49 (available here)

Part 4: JCA 2020-10, pp. 40-46 (available here)

Part 5: JCA 2020-11, pp. 35-41 (available here)

Part 6: JCA 2020-12, pp. 43-48 (available here)

Part 7: JCA 2021-02, pp. 50-56 (available here)

Part 8: JCA 2021-04, pp. 45-51 (available here)

Part 9: JCA 2021-07, pp. 46-53 (available here)

Part 10: JCA 2021-09, pp. 40-46

Part 11: JCA 2021-10, pp. 48-54

Part 12: JCA 2022-01, pp. 45-52

Part 13: JCA 2022-03, pp. 44-51

Part 14: JCA 2022-05, pp. 58-55

Part 15 JCA 2022-07, pp. 49-55 Taquela, María Blanca Noodt ; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 Tian, Hongjun “The Present and Future of the Recognition and Enforcement of Civil and Commercial Judgments in Northeast Asia: From the Perspective of the 2019 Hague Judgments Convention”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 300-317 Tian, Xinyue;
Qian, Zhenqiu;
Wang, Shengzhe “The Hague Convention on the Recognition and Enforcement of Foreign Judgments (Draft) and China’s Countermeasure – A Summary on the Fourth Judicial Forum of Great Powers”, Chinese Yearbook of Private International Law and Comparative Law 2018-01, pp. 377-388 Trooboff, Peter D.;
North, Cara; Nishitani, Yuko;
Sastry, Shubha; Chanda, Riccarda “The Promise and Prospects of the 2019 Hague Convention: Introductory Remarks”, Proceedings of the ASIL Annual Meeting 114 (2020), pp. 345-357 Tsang, King Fung;
Wong, Tsz Wai “Enforcement of Non-Monetary Judgments in Common Law Jurisdictions: Is the Time Ripe?”, Fordham International Law Journal 45 (2021), pp. 379-428 (available here) van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue critique de droit international privé (Rev. Crit. DIP) 2019, pp. 353-365 Viegas Liquidato, Vera Lúcia “Reconhecimento E Homologação De Sentenças Estrangeiras : O Projeto De Convenção Da Conferência da Haia”, Revista de Direito Brasileira 2019-09, pp. 242-256 Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Wang, Quian “On Intellectual Property Right Provisions in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, China Legal Science 2018-01, pp. 118-142 (available here) Wang, Yahan “No Review of the Merits in Recognizing and Enforcing Foreign Judgments”, China Journal of Applied Jurisprudence 2020-04, pp. 78-95 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 (available here) Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279-308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed. 2022 Weller, Matthias „Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019“, in Christoph Althammer/Christoph Schärtl (eds.), Festschrift für Herbert Roth, Tübingen 2021, pp. 835-855 Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Wu, Qiong “The Overview of the 22nd Diplomatic Session of the Hague Conference on Private International Law”, Chinese Yearbook of International Law 2019, pp. 337-338 Xie, Yili “Research on the Intellectual Property Infringment System of the Hague Judgments Convention”, China-Arab States Science and Technology Forum 2021-09, pp. 190-194 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 2017-05, pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Xu, Guojian “On the Scope and Limitation of the Global Circulation of Court Judgments: An Analysis on the Application Scope of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 269-299 Yang, Liu “The Applicable Conditions of the Lis Pendens Rule under the Hague Judgments Convention”, Journal of Ocean University of China (Social Sciences) 2022-05, pp. 99-111 Yang, Yujie “On the Rules of indirect Jurisdiction responding to Litigation – Based on Article 5, Paragraph 1, Item 6 of the Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters” (Master Thesis China Foreign Affairs University Beijing 2021) Yekini, Abubakri

  “The Hague Judgments Convention and Commonwealth Model Law – A Pragmatic Perspective”, Oxford 2021. Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Yuzhakov, D.A. “Legal Regulation of the Procedures for Enforcement of Decisions of Foreign Courts in Economic Disputes”, Urgent Issues of the Entrepreneurship Law, Civil Litigation and Arbitration (Perm State University) No. 4 (2021), pp. 119-123 (available here) Zasemkova, Olesya Fedorovna “ ‘Judicial Convention’ as a New Stage in the Recognition and Enforcement of Foreign Judgments”, Lex Russica 2019-10, pp. 84-103 (available here) Zasemkova, Olesya Fedorovna “Recognition and Enforcement of Foreign Judgments in the Context of the Adoption of the « Judicial Convention » 2019”, in Zhuikov V.M., Shchukin A.I. (eds.), Liber Amicorum Natalia Ivanovna Marysheva, pp. 196-211 Zernikow, Marcel “Recognition and Enforcement of Foreign Decisions in MERCOSUR Letters Rogatory (Carta Rogatória) and National Civil Procedure” Yearbook of Private International Law 22 (2020/2021), pp. 353-380 Zhang, Chunliang;
Huang, Shan “On the Common Courts Rules in Hague Judgments Convention – China’s way for the Judicial Assistance under Belt and Road Initiative”, Journal of Henan University of Economics and Law 2020-05, pp. 103-113 Zhang, Lizhen “On the Defamation Problem in the Hague Judgments Project: Ever In and Now out of the Scope”, Wuhan University International Law Review 2019-01, pp. 41-58 (available here) Zhang, Wenliang “The Finality Requirement of Recognition and Enforcement of Foreign Judgments”, Wuhan University Law Review 2020-02, pp. 19-38 Zhang, Wenliang; Tu, Guangjian “The Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement: Comparison and Prospects for Implementation”, Chinese Journal of International Law 20 (2021), pp. 101-135 Zhang, Wenliang;
Tu, Guangjian “The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 Zhang, Zhengyi;
Zhang, Zhen “Development of the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and Its Implication to China”, International and Comparative Law Review 2020, pp. 112-131 Zhao, Ning “The HCCH 2019 Judgments Convention, adding essential components for an effective international legal framework on recognition and enforcement”, in UIHJ (ed.), David Walker (dir.), Cyberjustice, de nouvelles opportunités pour l’huissier de justice / Cyberjustice, New Opportunities for the Judicial Officer – XXIVe Congrès de l’Union Internationale des Huissiers de Justice – Dubai – 22 au 25 Novembre 2021, Bruxelles 2021, pp. 120-133 Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368 Zirat, Gennadii “Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: A new Contribution of the Hague Conference on Private International Law to the Unification of International Civil Procedure”, Ukrainian Journal of International Law 2020-03, pp. 105-112 (available here)

III. Recordings of Events Related to the HCCH 2019 Judgments Convention

ASADIP; HCCH “Conferencia Internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras”, 3 December 2020 (full recording available here and here) ASIL “The Promise and Prospects of the 2019 Hague Convention”, 25-26 June 2020 (full recording available here and here) Department of Justice Hong Kong; HCCH “Inaugural Global Conference – 2019 HCCH Judgments Convention: Global Enforcement of Civil and Commercial Judgments”, 9 September 2019 (recording available here) HCCH “HCCH a|Bridged: Innovation in Transnational Litigation – Edition 2021: Enabling Party Autonomy with the HCCH 2005 Choice of Court Convention”, 1 December 2021 (full recording available here) HCCH “22nd Diplomatic Session of the HCCH: The Adoption of the 2019 Judgments Convention”, 2 July 2020 (short documentary video available here) JPRI; HCCH; UNIDROIT; UNCITRAL “2020 Judicial Policy Research Institute International Conference – International Commercial Litigation: Recent Developments and Future Challenges, Session 3: Recognition and Enforcement of Foreign Judgments”, 12 November 2020 (recording available here) UIHJ; HCCH “3rd training webinar on the Hague Conventions on service of documents (1965) and recognition and enforcement of judgements (2019)”, 15/18 March 2021 (full recording available here in French and here in English) University of Bonn; HCCH “Pre-Conference Video Roundtable on the HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil and Commercial Matters between the EU and Third Countries”, 29 October 2020 (full recording available here) Lex & Forum Journal; Sakkoula Publications SA « The Hague Conference on Private International Law and the European Union – Latest developments », 3 December 2021 (full recording available here)

 

In a judgment of 12 January 2022, the French Supreme Court for civil and criminal matters (Cour de cassation) ruled again that foreign judgments ordering the payment of disproportionate financial awards violate French public policy and will be denied enforcement on this ground.

Background

The case was concerned with a loan made by a Russian bank to two Russian spouses who were both domiciled in Russia. The purpose of the loan, it seems, was to purchase immovables in Russia. The lender sought repayment of the loan in Russian courts, and a court of St Petersburg eventually the borrowers to repay. The contract provided for the payment of various interests, including an interest ranging from 30 to 50% in case of default.

The bank sought to enforce the Russian judgment in France, aiming at a home of the borrowers on the French Riviera

The spouses resisted enforcement of the judgment on the ground that the interest rate was contrary to French public policy.

First Judgment

The Paris Court of Appeal has initially declared enforceable the Russian judgment on the ground that the French rules prohibiting that interest rates go beyond a certain level (usury) were not internationally mandatory.

In a judgment of 17 October 2018, the Cour de cassation allowed an appeal against this decision by ruling that the court of appeal should have concretely assessed whether the interest rate applied by the foreign court might violate French public policy.

Second Judgment

The case was remanded to another chamber of the Paris court of appeal which denied enforcement to the Russian judgments. The court relied on the caselaw of the Cour de cassation which has ruled since 2010 that, while punitive damages are not, per se, contrary to French public policy, they can be if they are disproportionate.

The appeal of the bank to the Cour de cassation was dismissed. The French supreme court held that the court of appeal had rightly ruled that, while punitive damages are not, per se, a violation of French public policy, financial awards are contrary to public policy when the financial award was disproportionate considering 1) the harm suffered and 2) the contractual breach.

The court concluded that the application of the interest rate violated French public policy, as informed by the fundamental right to property.

Assessment

The judgment is merely a confirmation of a clear trend in the case law of the Cour de cassation to assess the proportionality of financial awards granted by foreign courts. Although the first judgment of the court was concerned with punitive damages, the scope of the rule is much broader, as confirmed by this judgment. The Paris court of appeal has also suggested that it would apply it in the context of enforcement of arbitral awards.

The appeal had made an interesting, and to my knowledge, novel argument. It insisted that proportionality should also be assessed with respect to the wealth of the debtors. It is unknown whether the debtors were oligarchs with other properties throughout western Europe, but should it matter for the analysis? The argument is rejected, but only on the basis that it had not been made before the court of appeal.

Finally, an interesting aspect of the case is that it had so few connections with France. Decades ago, this would have been perceived as critical, under the doctrine of effet attenué de l’ordre public: situations created abroad should not be scrutinised as closely (read: not scrutinised at all) as situations to be created in France. But the Cour de cassation has not applied or referred to this doctrine in decades. The judgment does not even care to respond to the argument, which confirms that the doctrine has become obsolete under French law.

The International Journal of Procedural Law is a new  multilingual journal that provides an international research platform for scholars and practitioners in the field of procedural law, especially in civil matters.

The following papers were published in this issue:

Editorial

E Oteiza

DOCTRINE/STUDIES

A Nylund, “Introduction: Perspectives on Orality in Civil Proceedings”

FG Inchausti, “Challenges for Orality in Times of Remote Hearings: Efficiency, Immediacy and Public Proceedings”

MA Hjort, “Orality and Digital Hearings”

V Benabou and E Jeuland, “From the Principle of Immediacy to the Principle of Presence: A French Example and a Comparative Law Perspective”

A Nylund, “Oral Proceedings during the Preparatory Stage”

M Strandberg, “Immediacy, Orality and Appellate Proceedings”

 

PRATIQUE/PRACTICE

Analyse Comparative/ Comparative Perspectives

C Wendelstein, “Online Trading of Cryptocurrencies: A European Civil Procedure Law Perspective”

TA Alvim et al, “Class Actions in Brazil”

MA Lupoi, “Grandes Décisions/Leading Cases”

 

 

A collection of essays in honour of Haimo Schack (Ius Vivum: Kunst – Internationales – Persönlichkeit: Festschrift für Haimo Schack zum 70. Geburtstag) has just been published by Mohr Siebeck, edited by Sebastian Kubis, Karl-Nikolaus Peifer, Benjamin Raue and Malte Stieper.

The book brings together more than ninety contributions, mostly in German, grouped under six headings: art law and the law of culture; intellectual property law; private international law; international civil procedure; the law of personality; civil law, civil procedure and comparative law.

The section devoted to private international law features essays by Christine Budzikiewicz, Morten M. Fogt, Susanne Gössl, Jan von Hein, Christian Heinze, Peter Huber, Claudia Mayer, Joachim Münch, Dennis Solomon and Astrid Stadler.

The international civil procedure section comes with essays by Jürgen Basedow, Dagmar Coester-Waltjen, Gilles Cuniberti, Masahisa Deguchi, Tanja Domej, Anatol Dutta, Martin Gebauer, Reinhold Geimer, Wolfgang Hau, Peter Hay, Burkhard Hess, Jan Felix Hoffmann, Abbo Junker, Eva-Maria Kieninger, Christian Kohler, Herbert Kronke, Sebastian Kubis, Stefan Leible, Felix M. Wilke, Dieter Leipold, Luís de Lima Pinheiro, Volker Lipp, Mark Makowsky, the late Peter Mankowski, Peter G. Mayr, Pedro A. De Miguel Asensio, Thomas Pfeiffer, Oliver Remien, Herbert Roth, Rolf A. Schütze, Michael Stürner, Rolf Stürner, Christoph Thole, Dimitrios Tsikrikas, Rolf Wagner and Markus Würdinger.

Issues related to private international law and international litigation are also dealt with in contributions found in other sections.

The full table of contents is available here.

The ILA Reporter, the official blog of the International Law Association (Australian Branch), is currently calling for submissions on private international law to be published on the website.

The Reporter provides leading analysis, commentary and discussion on public and private international law issues, which have a bearing on Australia and the wider region. The length of contributions is flexible – anywhere between 500 and 1,500 words is ideal, and we frequently publish multi-part article series.

Would you or any of the postgraduate students in the law school be interested in publishing in the ILA Reporter?

Terms and conditions for the submissions are available here, and submissions should conform to the ILA Reporter’s Style Guide here.

 

On Tuesday, October 4, 2022, the Hamburg Max Planck Institute will host its 26th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. -12:30 p.m. (CEST). Prof. Sabine Corneloup (Paris-Panthéon-Assas University) will speak, in English, about the topic

Migrants in Transit or Under Temporary Protection: How Can Private International Law Deal With Provisional (But Not Necessarily Short-Term) Presence?

An increasing number of migrants are provisionally present in the territory of a State other than their State of origin, be it because they are granted temporary protection until they can return to their country of origin (4 million refugees from Ukraine registered for Temporary Protection in Europe), or because migration policies – notably externalization measures – prevent them from accessing the territory of their State of destination. As a result, many migrants are blocked for months if not years in transit countries at the external borders of Europe, before being able to resume their migratory route. Their provisional presence, which initially was meant to remain transitional and short-term, often becomes indefinite. In the meantime, life goes on: children are born, couples marry and divorce, parental child abductions take place etc.
How can Private International Law deal with these situations? The presentation aims to explore PIL connecting factors, such as nationality, habitual residence and mere presence, and assess their appropriateness for migrants on the move or under temporary protection. The 1951 Geneva Refugee Convention, which requires that the personal status of refugees be governed by the law of domicile or residence, does not provide an answer to all difficulties.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

This post was written by Robert Vogelauer, Vienna.

In a decision of 27 January 2022 the Austrian Supreme Court ruled on how Brexit affects a British Private Limited Company (Ltd.) that was incorporated in England but conducted all of its business operations in Austria (OGH 9 Ob 74/21d). It did so only a couple of months after a German court denied a Berlin-based Ltd. legal capacity in a similar case (OLG München, 29 U 2411/21 Kart), though the Austrian court came to a different conclusion.

Facts, Procedure and Holding

In 2016, a UK Ltd. based in Styria (Austria) sued one of its clients for payment of outstanding debt before an Austrian court. The legal proceedings dragged on for several years. In February 2021, the defendant filed to have the lawsuit dismissed, arguing that the Ltd. had lost its legal capacity due to Brexit and could therefore no longer be party to the proceedings. In response, the claimant petitioned the court to change its party designation to that of an Austrian civil law partnership (GesbR) – a strange choice, since a GesbR also lacks legal capacity. The courts of first and second instance agreed with the defendant and dismissed the lawsuit. The Austrian Supreme Court, however, decided that the proceedings could continue, though the claimant’s party designation would have to be changed to the name of the Ltd.’s sole shareholder.

Application of Austrian International Company Law

The court stated that since the claimant was no longer incorporated in an EU Member State, Austrian international company law would determine the company’s legal capacity. The court then applied the real seat theory according to § 10 of the Austrian Private International Law Act, which states that a company’s legal capacity is to be assessed under the law of the country where its headquarters are located. Since the headquarters were undoubtedly located in Styria, the court applied Austrian company law.

The court ruled that the Ltd. had lost its legal capacity because Austrian company law only grants legal personhood to an exhaustive list of corporate forms (numerus clausus), with the Ltd. not being one of them.

Despite this, it did not dismiss the lawsuit. According to the court, a Ltd. with headquarters in Austria was not legally inexistent, but would rather need to be viewed “through the lense of Austrian company law”. The court ruled that the sole shareholder of the Ltd. had become its universal successor by analogously applying § 142 of the Austrian Business Code (usually referred to for dissolving partnerships) and was now to be considered a merchant under Austrian law. As the universal successor of the Ltd., the sole shareholder could continue the proceedings in place of the Ltd., though the party designation would have to be changed.

Comparison to the OLG Munich’s Decision

The decision from the Austrian Supreme Court came only months after the Higher Regional Court of Munich (OLG Munich) dismissed the lawsuit of a UK Ltd. based in Berlin for lack of legal capacity. Though the courts reach different conclusions, their reasoning is quite similar for the most part. Both courts agree that the UK-EU Trade and Cooperation Agreement cannot be invoked to avoid the application of the real seat theory and that the Ltd. as such cannot remain party to the proceedings. They also agree it would go against creditors’ and public interest to treat the Ltd. as legally inexistent. The OLG Munich then applies what it calls the “mild” real seat theory and states a Ltd. will have to be categorized as a merchant or a partnership under German law. The Austrian Supreme Court reaches the same result by looking at the Ltd. “through the lense of Austrian company law”.

The OLG Munich’s decision leaves something to be desired from a procedural standpoint. It dismissed the lawsuit without answering whether or not it considered the Ltd. and its shareholder(s) to be the same procedural party. This is of crucial importance because by dismissing the lawsuit for lack of legal capacity, the Ltd – or rather, its shareholders – retroactively lost lis pendens status for their claim, meaning even if they filed the lawsuit again under their own names, statutory limitation periods would apply as if the previous lawsuit had ended the day after Brexit. If the court had ruled that the Ltd. and its shareholders were the same party from a procedural standpoint, then the proceedings could have continued with a changed party designation. Furthermore, the court would technically be required to order a change of party designation ex officio if it believed the Ltd.’s shareholder(s) to be the same party. The Austrian Supreme Court avoided this issue by declaring the sole shareholder to be the Ltd.’s universal successor, which meant they also succeeded the Ltd. in the proceedings.

Assessment

Shareholders of UK Ltds. based in Austria have effectively lost the protection of their corporate entity and can now personally be held liable for their company’s debts. It would have been desirable if the court had at least shielded shareholders from liability for debts incurred before Brexit – though this would have required a bit of a methodological stretch.

Austria-based Ltds. face further legal uncertainty because the UK – like many other countries – assesses legal capacity for companies based on the place of incorporation. This means UK Ltds. only operating in Austria are still recognized as legal entities by the UK and other countries that also follow the incorporation theory. This may result in situations where a contract with the Ltd. is considered valid before a foreign court, but in Austria it would be considered void or – even if it was not – it would be unclear who the parties to that contract were. Austrian courts will have to deal with these issues in future rulings.