Droit international général

This post introduces the paper by Fernando Gascón and Guillermo Schumann published in Ius Dictum, 5, 2021, The rules on lis pendens and on res judicata in the ELI/UNIDROIT Model European Rules of Civil Procedure. A pre-print version of the article is available here. Many thanks to Guillermo Schumann for the input.

Introduction

In 2020 the European Law Institute and UNIDROIT approved the European Rules of Civil Procedure (“ERCP”, also called “Model European Rules of Civil Procedure”): a set of rules intended to design a model, or, if preferred, an ideal civil procedure, with the potential to be operational in any European country. In that regard, it could be said that the ERCP aim to be a “Model Code of Civil Procedure” (although the “code” word has been purposely avoided by the Rules’ drafters) for European countries or, in a certain way, a sort of “Code of Best Practices”. Although a soft law instrument, the Rules stand as a unique text reflecting the outcome of an exhaustive and remarkable work of legal comparison by scholars and practitioners all around Europe (see on this point F. Gascón Inchausti, Las European Rules of Civil Procedure: ¿un punto de partida para la armonización del proceso civil?, Cuadernos de Derecho Transnacional, 2021).

The comparison has not only looked into national systems but has also considered existing European legislation and the acquis communautaire, as well as the case law of the CJEU and the European Court of Human Rights. The intention of the drafters has been to spot the best solution to difficulties faced by all legislators when planning a fair and efficient civil process —best practices or best rules approach—.

The paper by Fernando Gascón and Guillermo Schumann is devoted in particular to the rules on lis pendens (Rules 142-146) and res judicata (Rules 147-152), taking into account their mutual functional relationship, but also their interplay with other procedural institutions in the ERCP.

Lis Pendens and Res Judicata in a System in which “All the Pieces of the Puzzle Work Together”

As stated, the ERCP map out a comprehensive model of a declaratory civil procedure in which the different parts of the Rules are interrelated and meant to work as a system on its own. Therefore, the proper understanding of each rule requires looking at it within the structure. Consequently, the solutions provided by a rule can only be considered as “the best” and as a “model” because they have been conceived to operate inside that systematic ensemble.

Lis pendens and res judicata are legal institutions belonging to the “hardcore” of all procedural legal orders and, because of that, they had to be addressed by the ERCP.

Lis pendens, the rules on related actions and res judicata tend, among other, to regulate the relationship between parallel proceedings, with the same or connected subject matters, that are ongoing or that have ended with a final judgment. This is a decisive issue for both domestic and cross-border litigation. Lis pendens aims at preserving the future negative effect of res judicata in cases of proceedings with identical subject matters, while the stay and consolidation of strongly connected proceedings serve the purpose of preserving its positive effect. Therefore, these legal institutions are necessarily connected among them, but also with others such as the very definition of the “subject matter” of the proceedings or the “preclusion of the cause of action”.

A main goal of the ERCP is indeed to provide for a complete and systematic body of rules where  all “pieces of the puzzle work together” in a coherent manner.

The Lis Pendens and Related Actions in the ERCP: A (Quasi) Transplantation of the Regime of Brussels I Regulation (Recast)

The regulation of lis pendens and related actions proposed in the ERCP is based on the Brussels I Regulation (recast) (Articles 29-32) and on the case law of the CJEU on it. The drafters of the ERCP, having in mind that the European provisions are already working within the Union, thus that the national courts are already familiar with them, considered transplantation into domestic litigation as the best option.

It should be noted, though, that the Brussels I Regulation (recast) aims at regulating the European lis pendens within legal orders having different understandings of the notion of the “subject matter of the dispute” – sometimes, of lis pendens itself. The main purpose of the Brussels I Regulation (recast) and of the case law of the Court of Justice is therefore to set up, from a functional perspective, a system capable to operate detached from the conceptual constructs of the member States. To do so, the Court of Justice has shaped autonomous notions as a way to keep the system operating where indispensable: lis pendens is one of these notions.

Moreover, the scope of the Brussels I Regulation (recast) is limited, both because of the legislative competence of the EU and of the scope of the legal instrument itself. By way of consequence, the EU lawmaker had to address a wide range of issues arising in situations of cross-border parallel proceedings with a limited range of legal tools. This has entailed that the CJEU has broadened (or narrowed, as the case may be) the traditional scope of legal institutions conferring upon them functions that are carried out by other means in the internal legal systems of the Member States.

By contrast, the ERCP have the possibility and the purpose of providing for a complete system. In that vein, a quasi-automatic import of the lis pendens rules from the Brussels I Regulation (recast) may not offer the best solution in all circumstances. Not surprisingly, some of the mismatches and shadows already pointed out by academia concerning the regulation of lis pendens in Brussels I Regulation (recast) appear to be present in the ERCP as well.

Having this in mind, the paper by Fernando Gascón and Guillermo Schumann tries to shed some light on how the lis pendens and related actions operate within the system of the ERCP. It examines the function of the lis pendens and its relationship with the subject matter of the proceedings, the priority principle as the general rule for lis pendens in the ERCP, the exceptions to this principle, the related-actions regime and its relationship with the consolidation of proceedings.

The Rules on Res Judicata in the ERCP

There are different ways to understand and establish the boundaries of res judicata in the many legal orders across Europe. Whether the notion is restrictive or broad usually depends on which part of a judgement becomes res judicata: whether only the operative part of it, or also the legal reasoning. There are also important differences regarding the types of judgments that become res judicata.

As has just been said, the rules on lis pendens and on the stay and consolidation of “strongly related” proceedings tend to preserve the future negative and positive effect of res judicata. Because of that, the scope of res judicata inevitably impacts the regulation of those legal institutions.

From this overall approach, the paper examines the concept of finality in the ERCP, the types of judgments that become res judicata, the material, temporal and subjective scope of res judicata and the powers of the court concerning its assessment. Special attention is paid to the attribution of res judicata to judgments on procedural issues — e.g., the CJEU decision in the Gothaer case —, and to the relationship between the material scope of res judicata and the preclusion of causes of action that, with a broader or more limited scope and following diverse conceptual constructions, is known to most European legal orders.

Conclusion

The European Rules of Civil Procedure are an exciting initiative that shows the utility of Comparative Law as a tool to improve the civil justice system and the protection of the citizens’ rights —at the end of the day, this is what it all is about—. They are a unique instrument, which, on the one hand, facilitates self-cognition in that they allow seeing oneself mirrored in the “others”; on the other, they booster the European harmonization of civil procedure on a common basis.

The University of Turin and ILO International Training Centre’s Master in International Trade Law is pleased to announce that on Friday 10 December 2021 it will host a webinar (co-organised with UNIDROIT) on UNIDROIT’s Projects and Technology. The event will take place at 2.00 P.M. CET on Zoom via the following link: https://itcilo-org.zoom.us/j/84727714249?pwd=RC8vcFRibVZLY2pYRVpNQ0dza3JJdz09

The event will be introduced by Professor Silvia Ferreri (University of Turin). The speakers’ panel will be composed by Professor Anna Veneziano (Deputy Secretary-General, UNIDROIT, and University of Teramo), Professor Theresa Rodriguez de las Heras Ballel (University Carlos III, Madrid, and Roy Goode Scholar, UNIDROIT) and Dr. Philine Wehling (Legal Officer, UNIDROIT). Professor Cristina Poncibò (University of Turin) and Professor Gustavo Prieto (Ghent University) will participate as discussants.

Please find the event’s flyer below:

 

A webinar in English on Recent judgments on corporate responsibility for environmental damages will take place on 26 November 2021, from 15.00 to 17.00 CET, organised by the Interest Group on Private International Law of the Italian Society of International Law (SIDI).

The speakers will be Olivera Boskovic and Silvia Marino.

The event is part of a cycle titled Private International Law in Europe: New Developments on Corporate Social Responsibility and Private International Law. See here for further details.

Attendance is free. Those wishing to join the webinar are invited to send an e-mail to sidigdipp@gmail.com.

Yesterday the Mexican Senate appointed Loretta Ortiz Ahlf as a new Justice at the Mexican Supreme Court (Suprema Corte de Justicia de la Nación de México). She is a senior member (miembro numerario) of the Mexican Academy of Private International and Comparative Law (AMEDIP). Loretta Ortiz Ahlf has had several political and legal positions in the Mexican government as Congress Representative, Advisor of Human Rights, among others. For more information, click here.

This appointment will certainly further the knowledge of Private International Law and Human Rights at the Mexican Supreme Court.

 

Louis d’Avout (University Paris II Panthéon-Assas) has posted a short paper in French on the Resurgence of the 1934 Franco-British Convention on the Enforcement of Foreign Judgments (La résurgence de la convention franco-britannique du 18 janvier 1934 pour l’exécution des jugements étrangers) on the website of the French Committee for Private International Law.

Unlike the Haut Comité Juridique de la Place Financière de Paris, which has opined that the 1934 Convention was abrogated by the Brussels Convention, Prof. d’Avout submits that the 1934 bilateral convention is still in force and governs the enforcement of British judgments in France. He notes that the requirements for enforcing judgments are, from a French perspective, old and potentially more restrictive than the French common law of judgments, but underscores that the Convention was interpreted initially as allowing the application of a more favourable common law of judgments by the Contracting States.

The paper is the written version of a speech given in a recent conference on Brexit organised by the Committee.

 

Dear Friends and Colleagues,

During the ongoing pandemic, the University of Bonn has remained very careful and did not allow on-site events of a larger scale so far. We have therefore once again made the decision to reschedule our Conference (originally planned for the 25/26 September 2020, and postponed to 13/14 September 2021) now to Friday and Saturday, 9 and 10 September 2022. Let’s hope the best that the pandemic will have withdrawn to an extent that allows our conference taking place as now planned.

As there are reasonable expectations for the HCCH 2019 Judgments Convention to enter into force by the end of 2022 or early 2023, we are confident – especially with a view to the latest Proposal of the European Commission – that we will experience an even more focused and rewarding discussion of our topic.

The list of speakers includes internationally leading scholars, practitioners and experts from the most excellent Universities, the Hague Conference on Private International Law (HCCH), the United Nations Commission on International Trade Law (UNCITRAL), and the European Commission (DG Trade, DG Justice). The Conference is co-hosted by the Permanent Bureau of the HCCH.

The Organizers kindly ask participants to contribute with EUR 200.- to the costs of the event and with EUR 50.- to the conference dinner, should they wish to participate. There is a limited capacity for young scholars to contribute with EUR 100.- to the conference (the costs for the dinner remain unchanged).

Please register with sekretariat.weller@jura.uni-bonn.de. Clearly indicate whether you want to benefit from the young scholars’ reduction of the conference fees and whether you want to participate in the conference dinner. You will receive an invoice for the respective conference fee and, if applicable, for the conference dinner. Please make sure that we receive your payment at least two weeks in advance. After receiving your payment we will send out a confirmation of your registration. This confirmation will allow you to access the conference hall and the conference dinner.

Please note: Access will only be granted if you are fully vaccinated against Covid-19. Please confirm in your registration that you are, and attach an e-copy of your vaccination document. Please follow further instructions on site, e.g. prepare for producing a current negative test, if required by University or State regulation at that moment. We will keep you updated. Thank you for your cooperation.

Further information: https://www.jura.uni-bonn.de/professur-prof-dr-weller/the-hcch2019-judgments-convention-cornerstones-prospects-outlook-conference-on-9-and-10- september-2022

 

Dates:                        Friday, 9 September 2022, and Saturday, 10 September 2022

Venue:                      Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn

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

 

Registration fee:                                                     € 200.-

Young Scholars rate (limited capacity):        € 100.-

Dinner:                                                                       €   50.-

  

Programme

 Friday, 9 September 2022

 

8.30 a.m.      Registration

9.00 a.m.      Welcome notes

Prof Dr Wulf-Henning Roth, Director of the Zentrum für Europäisches Wirtschaftsrecht, Rheinische Friedrich-Wilhelms-Universität Bonn, Germany

Dr Christophe Bernasconi, Secretary General of the HCCH

 

Part I: Cornerstones

1. Scope of application

Prof Dr Xandra Kramer, Erasmus University Rotterdam, Utrecht University, Netherlands

2. Judgments, Recognition, Enforcement

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

3. Indirect jurisdiction

Prof Dr Pietro Franzina, Catholic University of Milan, Italy

4. Grounds for refusal

Dr Marcos Dotta Salgueiro, Adj. Professor of Private International Law, Law Faculty, UR, Uruguay; Director of International Law Affairs, Ministry of Foreign Affairs, Uruguay

5. Trust management: Establishment of relations between Contracting States

Dr João Ribeiro-Bidaoui, First Secretary, HCCH / Dr Cristina Mariottini, Senior Research Fellow at the Max Planck Institute for International, European and Regulatory Law Luxemburg

 

1.00 p.m.                Lunchbreak

 

Part II:  Prospects for the World

1. The HCCH System for choice of court agreements: Relationship of the HCCH Judgments Convention 2019 to the HCCH 2005 Convention on Choice of Court Agreements

Prof Dr Paul Beaumont, University of Stirling, United Kingdom

2. The HCCH System and the Brussels System: Relations to the Brussels and Lugano Regime

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

3. European Union

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

4. Canada, USA

Professor Linda J. Silberman, Clarence D. Ashley Professor of Law, Co-Director, Center for Transnational Litigation, Arbitration, and Commercial Law, New York University School of Law, USA / Professor Geneviève Saumier, Peter M. Laing Q.C. Professor of Law, McGill Faculty of Law, Canada

5. Southeast European Neighbouring and EU Candidate Countries

Prof Dr Ilija Rumenov, Associate Professor at Ss. Cyril and Methodius University, Skopje, Macedonia

8.00 p.m.      Conference Dinner (€ 50.-)

  

Saturday, 10 September 2022

 

9.00 a.m.      Part II continued: Prospects for the World

6. Middle East and North Africa (including Gulf Cooperation Council)

Prof Dr Beligh Elbalti, Associate Professor at the Graduate School of Law and Politics at Osaka University, Japan

7. Sub-Saharan Africa (including Commonwealth of Nations)

Prof Dr Abubakri Yekini, University of Manchester, United Kingdom / Prof Dr Chukwuma Okoli, Postdoctoral Researcher in Private International Law at the T.M.C. Asser Institute, Netherlands

8. Southern Common Market (MERCOSUR)

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

9. Association of Southeast Asian Nations (ASEAN)

Prof Dr Adeline Chong, Associate Professor of Law, Yong Pung How School of Law, Singapore Management University, Singapore

10. China (including Belt and Road Initiative)

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

 

1.00 p.m.               Lunch Break

 

Part III: Outlook

1. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

2. International Commercial Arbitration and Judicial Cooperation in civil matters: Towards an Integrated Approach

José Angelo Estrella-Faria, Principal Legal Officer and Head, Legislative Branch, International Trade Law Division, Office of Legal Affairs, United Nations; Former Secretary General of UNIDROIT

3. General Synthesis and Future Perspectives

Hans van Loon, Former Secretary General of the HCCH

 

Please also consult our Repository HCCH 2019 Judgments Convention for the latest publications and materials on our subject-matter.

HCCH 2019 Judgments Convention Repository

In preparation of the Conference on the HCCH 2019 Judgments Convention on 9/10 September 2022, planned to be 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 20 November 2021: 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

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) 3 (2022), forthcoming (soon 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 vs. Litigation and Mediation in the Harmonization of the Rules of Transnational Commercial Dispute Settlement”, preprint (DOI:10.21203/rs.3.rs-953987/v1). 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) 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, forthcoming, (available here) 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) 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 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, forthcoming (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) Cuniberti, Gilles “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 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) 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) 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 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 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 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 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) Jacobs, Holger “Der Zwischenstand zum geplanten Haager Anerkennungs- und Vollstreckungsübereinkommen – Der vorläufige Konventionsentwurf 2016“, Zeitschrift für Internationales Privatrecht & Rechtsvergleichung (ZfRV) 2017, pp 24-30 Jacobs, Holger “Das Haager Anerkennungs- und Vollstreckungsübereinkommen vom 2. Juli 2019 – Eine systematische und rechtsvergleichende Untersuchung“, Tübingen 2021 Jang, Jiyong “Conditions and Procedure for Recognition and Enforcement of Foreign Judgments”, Korea Private International Law Journal 2021-01, pp. 399-430 Jang, Junhyok “The Public Policy Exception Under the New 2019 HCCH Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 97-111 Jang, Junhyok “2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Korea Private International Law Journal 2019-02, pp. 437-510. Jang, Junhyok “Practical Suggestions for Joining the 2019 Judgments Convention and Its Implications for Korean Law and Practice”, Korea Private International Law Journal 2020-02, pp. 141-217 Jovanovic, Marko Thou Shall (Not) Pass – Grounds for Refusal of Recognition and Enforcement under the 2019 Hague Judgments Convention, YbPIL 21 (2019/2020), pp. 309 – 332 Jueptner, Eva “The Hague Jurisdiction Project – what options for the Hague Conference?”, Journal of Private International Law 16 (2020), pp 247-274 Jueptner, Eva “A Hague Convention on Jurisdiction and Judgments: why did the Judgments Project (1992-2001) fail?”, (Doctoral Thesis, University of Dundee, 2020) Kasem, Rouzana “The Future of Choice of Court and Arbitration Agreements under the New York Convention, the Hague Choice of Court Convention, and the Draft Hague Judgments Convention”, Aberdeen Student Law Review 10 (2020), pp. 69-115 Kessedjian, Catherine “Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?“, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 19-33 Khanderia, Saloni „The Hague judgments project: assessing its plausible benefits for the development of the Indian private international law”, Commonwealth Law Bulletin 44 (2018), pp 452-475 Khanderia, Saloni “The Hague Conference on Private International Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?”, Journal of African Law 63 (2019), pp 413-433 Khanderia, Saloni “The prevalence of ‘jurisdiction’ in the recognition and enforcement of foreign civil and commercial judgments in India and South Africa: a comparative analysis”, Oxford University Commonwealth Law Journal 2021 Kindler, Peter “Urteilsfreizügigkeit für derogationswidrige Judikate? – Ein rechtspolitischer Zwischenruf auf dem Hintergrund der 2019 HCCH Judgments Convention“, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 241-253 Kostic-Mandic, Maja “Country Report Montenegro”, 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. 114-137 (available here) Lee, Gyooho “The Preparatory Works for the Hague Judgment Convention of 2019 and its Subsequent Developments in terms of Intellectual Property Rights”, Korea Private International Law Journal 2020-02, pp. 85-140 Liu, Guiqiang “Limitation Period for the Enforcement of Foreign Judgments”, China Journal of Applied Jurisprudence 2020-04, pp. 109-124 Liu, Yang; Xiang, Zaisheng “The No Review of Merit Clause in the Hague Judgments Convention”, Wuhan University International Law Review
2020-05, pp. 44-65 Malachta, Radovan “Mutual Trust between the Member States of the European Union and the United Kingdom after Brexit: Overview”, in Jirí Valdhans (ed.), COFOLA International 2020: Brexit and its Consequences – Conference Proceedings, Brno 2020, pp. 39-67 (available here) Mariottini, Cristina „Establishment of Treaty Relations under The 2019 Hague Judgments Convention“, YbPIL 21 (2019/2020), pp. 365-380 Mariottini, Cristina “The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, YbPIL 19 (2017/2018), pp 475-486. Martiny, Dieter “The Recognition and Enforcement of Court Decisions Between the EU and Third States”, in Alexander Trunk, Nikitas Hatzimihail (eds.), EU Civil Procedure Law and Third Countries – Which Way Forward?, Baden-Baden 2021, pp 127-146 Maude, L. Hunter “Codifying Comity: The Case for U.S. Ratification of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters”, Wisconsin International Law Review 38 (2021), pp. 108-138 Meier, Niklaus “Notification as a Ground for Refusal”, Netherlands International Law Review (NILR) 67 (2020), pp 81-95 Muir Watt, Horatia “Le droit international privé au service de la géopolitique : les enjeux de la nouvelle Convention de la Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale”, Revue Critique de Droit International Privé 2020, pp. 427-448 Nielsen, Peter Arnt “The Hague 2019 Judgments Convention – from failure to success”, Journal of Private International Law 16 (2020), pp 205-246 Nielsen, Peter Arnt “A Global Framework for International Commercial Litigation”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 415-433 North, Cara “The 2019 HCCH Judgments Convention: A Common Law Perspective”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 202-210 North, Cara “The Exclusion of Privacy Matters from the Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 33-48 Oestreicher, Yoav “ ’We’re on a Road to Nowhere’ – Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments”, The International Lawyer 42 (2008), pp 59-86 Okorley, Solomon “The possible impact of the Hague Convention on the Recognition and Enforcement of foreign Judgments in Civil or Commercial Matters on Private International Law in Common Law West Africa”, (Master’s Dissertation, University of Johannesburg, 2019; available: here) Pasquot Polido, Fabrício B. “The Judgments Project of the Hague Conference on Private International Law: a way forward for a long-awaited solution”, in Verónica Ruiz Abou-Nigm, Maria Blanca Noodt Taquela (eds.), Diversity and integration in Private International Law, Edinburgh 2019, pp. 176-199 Payan, Guillaume “Convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale”, in Hubert Alcarez, Olivier Lecucq (eds.), L’exécution des décisions de justice, Pau 2020, pp 167-183 Pertegás Sender, Marta “The 2019 Hague Judgments Convention: Its Conclusion and the road ahead”, in Asian Academy of International Law (publ.), Sinergy and Security: the Keys to Sustainable Global Investment: Proceedings of the 2019 Colloquium on International Law, 2019 Hong Kong, pp 181-190 Pertegás, Marta “Brussels I Recast and the Hague Judgments Project”, in Geert Van Calster (ed.), European Private International Law at 50: Celebrating and Contemplating the 1968 Brussels Convention and its Successors, Cambridge 2018, pp 67-82 Pertegás, Marta “The 2019 Hague Judgments Convention: The Road Ahead”, in Proceedings of the 16th PIL Regional Conference (Tirana, 2019), forthcoming (available here) Pocar, Fausto “Riflessioni sulla recente convenzione dell’Aja sul riconoscimento e l’esecuzione delle sentenze straniere”, Rivista di diritto internazionale privato e processuale 57 (2021), pp. 5-29 Pocar, Fausto “Brief Remarks on the Relationship between the Hague Judgments and Choice of Court Conventions”, in in Magdalena Pfeiffer, Jan Brodec, Petr Bríza, Marta Zavadilová (eds.), Liber Amicorum Monika Pauknerová, Prague 2021, pp. 345-353 Poesen, Michiel “Is specific jurisdiction dead and did we murder it? An appraisal of the Brussels Ia Regulation in the globalizing context of the HCCH 2019 Judgments Convention”, Uniform Law Review 26 (2021), pp. 1-13 Povlakic, Meliha “Country Report Bosnia and Herzegovina”, 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. 42-81 (available here) Qerimi, Donikë “Country Report Kosovo”, 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. 82-113 (available here) Qian, Zhenqiu “On the Common Courts Provision under the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Wuhan University International Law Review
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 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 385-4040 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) 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) 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 Spilberg, 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 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;
Wu, Qiong “The Hague Judgments Convention and how we negotiated it”, Chinese Journal of International Law 19 (2020) (available here) Sun, Xiaofei;
Wu, Qiong “Commentary and Outlook on the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Journal of International Law 2019-01, pp. 155-164+170 Symeonides, Symeon C. “Recognition and Enforcement of Foreign Judgments: The Hague Convention of 2019”, in Symeon C. Symeonides, Cross-Border Infringement of Personality Rights via the Internet, Leiden 2021, pp. 130-144 Takeshita, Keisuke “The New Hague Convention on Recognition and Enforcement of Foreign Judgments: Analysis on its Relationship with Arbitration”, Japanese Commercial Arbitration Journal (JCA) 2020-02, pp. 10-15 (available here) Takeshita, Keisuke “The New Hague Convention on Recognition and Enforcement of Foreign Judgments”, Japanese Commercial Arbitration Journal

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

Part 5: JCA 2020-11, pp. 35-41

Part 6: JCA 2020-12, pp. 43-48 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 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) 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., forthcoming Weller, Matthias „Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019“, in Christoph Althammer/Christoph Schärtl (eds.), Festschrift für Herbert Roth, forthcoming. 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 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 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) 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 “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) 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)

 

The Pax Moot Court competition of 2022 has been launched! This is the Borrás round – in memory of the great Private International Law scholar Alegría Borrás of Barcelona.

The facts of the case, the rules and the schedule are available at www.paxmoot.eu.

Students and coaches will find, like every year, elements of EU law and the global context, procedural technicalities and societal issues.

The PAX Moot is a specialised moot court competition dedicated to students interested in Transnational Law and Private International Law issues. This year the Pax Moot Round is named after the Alegría Borrás Rodríguez (1943-2020).

The Borrás Round of the competition will require participants to deal with the complexities and nuances of how international conventions and European regulations interact with each other in the context of globalisation as well as situations such as Brexit where certain prior available instruments stop producing their effects. The case is grounded in the present challenging global events – the effects of COVID-19 virus on businesses and individuals, Brexit and environmental actions to reach carbon neutrality. The series of events to discuss involve the application of the Singapore Convention on Mediation and the European Order for Payment procedure.

The competition opens for the registration of the teams on 22 November 2022 and comprises a written and an oral round. The students participating in the PAX Moot will be required to address matters of jurisdiction, service of documents, settlement agreement and recognition of judgment in England.

More information about the competition and its timetable are available here. The rules of the competition are available here.

Two recent articles have been published by International and Comparative Law Quarterly:

TC Hartley, “Basic Principles of Jurisdiction in Private International Law: The European Union, United States and England”

This article consists of a comparative study of the basic principles underlying the rules of jurisdiction in private international law in commercial cases in the law of the European Union, the United States and England. It considers the objectives which these rules seek to achieve (protection of the rights of the parties and respect for the interests of foreign States) and the extent to which these objectives are attained. It takes tort claims, especially in the field of products-liability, as an example and considers which system has the most exorbitant rules. It suggests explanations for the differences found.

F Rielaender, “Aligning the Brussels Regime with the Representatives Action Directive”

European private international law has long been recognised as improperly set up to deal with cross-border collective redress. In light of this shortcoming, it seems unfortunate that the private international law implications of the Representative Actions Directive (Directive (EU) No 2020/1828) have not yet been addressed coherently by the European legislator. This article examines to what extent the policy of promoting collective redress can be supported, even if only partially, through a reinterpretation of the jurisdictional rules of the Brussels Ia Regulation. Furthermore, it discusses which legislative measures need to be adopted to better accommodate collective redress mechanisms within the Brussels regime.

The new edition of the Commentary on EU-Zivilprozessrecht: EuZPR authored by Professor Dr. Dr. h.c. Peter Schlosser, Emeritus at the Ludwig Maximilian University of Munich, and Professor Dr. Dres. h.c. Burkhard Hess, founding Director at the Max Planck Institute Luxembourg, has just been released.

The revised and extended version of the commentary assesses and explains the ever-increasing importance of the coordination of cross-border civil proceedings in the European Area of Civil Justice. In an easy to handle style and with a specific look to the needs of legal practice, the commentary elucidates the entire acquis of the European procedural law in civil and commercial matters. The eminent authors comment the Brussels Ibis Regulation (being the core instrument of judicial cooperation in the Union), the EU-Regulations of the European Order for Payment, of the European Enforcement Order, the Small Claims Regulation and the Regulation establishing a European Account Preservation Order Procedure. The EU-Regulations on the Service of Documents and on the Taking of Evidence are equally commented. With regard to the latter, the commentary already provides valuable guidance on the forthcoming recasts of the upcoming regulations (applicable in 2022).

Extensive references to case law, especially of the European Court of Justice, but also of national courts and the legal literature are the building blocks of the Commentary. The authors equally focus on current challenges such as the ramifications arising from Brexit and the relations to other third states. Overall, this commentary is a must be for legal practitioners and for academics working in this field.

The European Parliamentary Research Service of the European Parliament has issued on November 18th, 2021, a Briefing on The United Kingdom’s possible re-joining of the 2007 Lugano Convention.

The summary of the briefing reads as follows:

The 2007 Lugano Convention is an international treaty that regulates the free movement of court judgments in civil cases between the Member States of the EU, on one hand, and the three EFTA states (Switzerland, Norway and Iceland), on the other. The convention effectively extends the regime of quasi-automatic recognition and enforcement of judgments that was applicable between EU Member States at the time under the Brussels I Regulation (No 44/2001).

Whereas the EU rules currently in force regulating the free movement of judgments in civil cases between the EU Member States – the 2012 Brussels I-bis Regulation (1215/2012) – bring about an even higher level of integration and presume, therefore, a very high level of mutual trust between the national judiciaries of the Member States, relations between the EU and EFTA Member States remain at the level of integration prescribed in 2001 by the Brussels I Regulation.

Following the expiry of the transition period provided for by the Withdrawal Agreement between the United Kingdom (UK) and the EU, the UK is no longer bound by either the Brussels I-bis Regulation or the 2007 Lugano Convention. Given the fact that the latter is open not only to EU and EFTA Member States, but also explicitly to third countries, the UK has made a bid to re-join the Lugano Convention. For a third country to become part of this legal regime, all parties to the convention must give their explicit consent. Whereas this has been the case with Switzerland, Norway and Iceland, the European Commission, acting on behalf of the EU as a party to the 2007 Lugano Convention, has indicated that it is not prepared to grant such consent, effectively blocking – for the moment – the UK’s reintegration within the Lugano regime of mutual recognition of civil judgments.

For the Commission, accession to the Lugano regime is bound up with the notion of close economic integration with the EU, presupposing a high level of mutual trust. Participation in the Lugano system should not therefore be offered to any third country that is not part of the internal market.

As announced earlier on this blog, the EAPIL Founding Conference will eventually take place on 2, 3 and 4 June 2022 in Aarhus, hosted by the Aarhus University.

Early bird registration for the conference ends on 30 November 2021. See here for further details.

A general presentation of the conference can be found here. See here for the full program as well as for details on venue, travel and accommodation.

For more information, please write an e-mail to Morten Midtgaard Fogt at mmf@law.au.dk.

The third issue of 2021 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Cristina Campiglio, Professor at the University of Pavia, Conflitti positivi e negativi di giurisdizione in materia matrimoniale (Positive and Negative Conflicts of Jurisdiction in Matrimonial Matters)

Regulation (EC) No 2201/2003 (Brussels II-bis) provides for a range of alternative grounds for jurisdiction in matrimonial matters and is strongly marked by the favor actoris principle. The system sets the scene not only for forum shopping but also for a rush to the court. However, spouses who have the nationality of different Member States and reside in a Third State remain deprived of the right to an effective remedy before an EU court. Taking a cue from a case currently pending before the Court of Justice of the European Union, this article examines the possible avenues to address these cases of denial of justice, also in light of Art. 47 of the EU Charter of Fundamental Rights. This analysis is conducted, in particular, with the overarching goal of launching, at a political level, a general reflection on the question of conflicts of jurisdiction and on the opportunity to create a coherent, unified “European system” in which general and special regulations operate in a coordinated manner. 

Fabrizio Marrella, Professor at the Ca’ Foscari University of Venice, Forza maggiore e vendita internazionale di beni mobili in un contesto di pandemia: alcune riflessioni (Force Majeure and International Sales of Goods in the Context of a Pandemic: Some Remarks)

For centuries, national legal systems have recognised both the principle pacta sunt servanda and its exceptions, i.e. the rebus sic stantibus and ad impossibilia nemo tenetur principles. However, the manner in which these basic rules operate varies in the landscape of comparative law. The unforeseeable change of circumstances is among the most relevant issues for international contracts. For this reason, international commercial practice has provided some standard solutions. The Vienna Convention on the International Sale of Goods (CISG) of 11 April 1980 is among the instruments that provide some uniform law solutions: however, these are not satisfactory when compared to modern commercial practice and the potential litigation arising from the Covid-19 pandemic crisis. In this context, legal doctrine on the private international law aspects of force majeure also seems scarce. This article explores some of the most pressing private international law issues arising from the impact of the Covid-19 pandemic on cross-border B2B contracts. Notably, it analyses the choice of the lex contractus and its scope in relation to force majeure, addressing issues of causation, penalty clauses, evidence (with particular reference to “force majeure certificates” imposed by some governments), payment, and overriding mandatory rules.

The following comments are also featured:

Marco Argentini, PhD Candidate at the University of Bologna, I criteri di radicamento della giurisdizione italiana nei contratti di trasporto aereo transnazionale (The Criteria for Establishing Italian Jurisdiction in Contracts for International Carriage by Air)

This article analyses the rules to identify the competent courts, in the field of international air carriage contracts, for passenger claims aimed at obtaining the flat-rate and standardised rights provided for in Regulation No 261/2004 and the compensation for further damage under the Montreal Convention. In particular, the jurisdiction over the former is governed by the Brussels I-bis Regulation, whereas the one over the latter is governed by the Convention itself. Since passengers are the weaker contractual party, the article also addresses some remedies to avoid fragmentation of legal actions between courts of different States, as well as the particular case, tackled by the Court of Justice of the European Union, of a flight forming part of a broader package tour.

Claudia Cantone, PhD Candidate at the University “Luigi Vanvitelli” of Campania, Estradizione e limiti all’esercizio della giurisdizione penale extraterritoriale nel diritto internazionale: riflessioni a margine della sentenza della Corte di cassazione n. 30642/2020 (Extradition and Limits to the Exercise of Extraterritorial Criminal Jurisdiction in International Law: Reflections on the Court of Cassation’s Judgment No 30642/2020)

This article builds upon the judgment of the Court of Cassation 22 October 2020 No 30642, delivered in an extradition case towards the United States of America. The decision of the Supreme Court is noteworthy since, for the first time, the Court examines the restrictions imposed by public international law on States in the exercise of criminal jurisdiction outside their territory. Notably, it states that the existence of a “reasonable connection” could justify the exercise of extraterritorial jurisdiction under international law. In this regard, the Author also analyses the emerging principle of jurisdictional reasonableness in the theory of jurisdiction under international law. Finally, the paper focuses on whether, in extradition proceedings, the judicial authority of the requested State might ascertain the basis of jurisdiction upon which the request is based, taking into consideration the absence of any provision in extradition treaties allowing such assessment.

Curzio Fossati, PhD Candidate at the University of Insubria, Le azioni di private enforcement tra le parti di un contratto: giurisdizione e legge applicabile (Private Enforcement Actions between Parties to a Contract: Jurisdiction and Applicable Law)

This article deals with the main private international law issues of antitrust damage claims between contracting parties, according to the latest rulings of the Court of Justice of the European Union. In particular, these issues concern (a) the validity and the scope of jurisdictions clauses, (b) the determination of jurisdiction under the Brussels I-bis Regulation, and (c) the applicable law under the Rome I and the Rome II Regulations. The article aims at demonstrating that the analysis of these aspects should be preceded by the proper characterization of the damage action for breach of competition law between contracting parties. The conclusion reached is that the adoption of a univocal method to characterize these actions as contractual or non-contractual fosters coherent solutions.

In addition to the foregoing, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Matthias HAENTJENS, Financial Collateral: Law and Practice, Oxford University Press, New York, 2020, pp. XXXIX-388.

O’Loan and Scott v MIB and AIG (Fintan O’Loan and Elisabeth Scott v Motor Insurance Bureau and AI Europe SA) involves the same Loi Badinter that was also the subject of Marshall v MIB. I was alerted to the case buy Ian Denham’s post. Judgment is as yet unreported and I am grateful to Ian for having sent me copy.

The contested claim is the one of Ms Scott v AIG. She was the front seat passenger of the hire car, insured by AIG and driven by Mr O’Loan, her partner, when the car was driven into by an uninsured, French registered car. Ms Scott therefore turns to the driver, her partner (in reality, the insurer of the hire car), to have her damage covered under the strict liability (no need to show fault) rule of the French Loi Badinter.

To get to French law however she needs to overcome Article 4(2) Rome II’s provision that in case victim and party claimed to be liable are habitually resident in the same country at the time the damage occurs, the laws of that country apply. A4(3) is the portal to that escape route:

(3) Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.

It was conceded by both parties [12] that the district judge cut quite a few corners on the A4(3) analysis and Platts J therefore started afresh. Winrow v Hemphill of course was referred to, as was Owen v Galgey (the conclusions of which I disagreed with).

The judge notes (as does the Handbook: para 4.39) that it is important to identify what is meant by “the tort/delict’ in A4(3) before considering whether that tort/delict is more closely connected with a country other than England. A4(3) holds that ‘the tort’ (not individual elements of the tort, such as the event and/or the damage and /or anything singular at all) needs to be ‘more closely connected’.

I disagree with the judge [23] that ‘the tort’ or ‘delict’ clearly refers to the event which caused the damage, or ‘the incident’ [24]. In the case of a tortious obligation ‘the tort’ arguably refers to the classic 3 elements of event, damage, and causal link between the two (all three here clearly referring to France). I do agree it does not refer to the cause of action which arises from the incident [24]. While linguistically speaking that may be caught be ‘the tort’ for it would be one of its consequences, it would also mean that remedies available, or not, for instance would play a role in determining lex causae. Where Rome II envisages such assessment, it says so explicitly: such as in Article 7’s environmental damage rule.

The judge’s reasons for opting for displacement are [30]

I therefore consider the connection with France to be manifestly closer than the connection with England: the collision was in France; it was between two vehicles registered in France; the damage was caused in France in that the initial injury was suffered in France. Further, the circumstances were such that the claim of first claimant is to be dealt with under French law.

That last element is in slight contradiction I find to the judge’s consideration signalled above, that an advance on (remedies available or not under the) lex causae, must not play a role. If that is the case for claimant seeking to overturn A4(2)’s presumption, arguably there must not be a role either for the lex causae of other claims involved in the case.

Of note is the judge’s emphasis on the vehicles both being registered in France. If that is an element, travellers of countries without strict liability rules, might have a strong incentive indeed to hire cars rather than drive their own when driving in EU Member States with strict liability rules such as the Loi Badinter.

Appeal dismissed, for the result is the same (French law applies) even if the route to it was quite different from the first judge.

I do not think the analysis on ‘the tort’ is quite there yet.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 4.5.2 (para 4.39 ff).

Of much note and my review shall be on the blog soon. (There is a queue, plus the posts inevitably are playing snakes and ladders with my day jobs). https://t.co/JxrMg02Sxh

— Geert Van Calster (@GAVClaw) November 15, 2021

 

Yesterday (17 November 2021) the Russian Federation signed the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (HCCH 2019 Judgments Convention). The HCCH news item is available here.

No declarations were filed. Click here (Depositary’s website).

It should be noted that in order to consent to be bound by the treaty, the Russian Federation would need to deposit an instrument of ratification, acceptance or approval (art. 24(2) of the  HCCH 2019 Judgments Convention). In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (art. 18 of the UN Vienna Convention on the Law of Treaties).

***

The HCCH 2019 Judgments Convention is not yet in force. In accordance with its article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”

There are currently five signatory States: Costa Rica, Israel, the Russian Federation, Ukraine and Uruguay. The act of signing a treaty does not count towards the timeline specified in article 28 of the HCCH 2019 Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.

 

The fourth issue of the Journal du droit international for 2021 has just been released. It contains two articles and several case notes relating to private international law issues, including the 2020 annual case-law review of EU private international law supervised by Louis d’Avout (University of Paris II).

In the first article, the International Law Association (ILA) pays tribute to the memory of Philippe Kahn (Hommage à Philippe Kahn, by Catherine Kessedjian, Geneviève Bastid Burdeau, Éric Loquin, Jean-Michel Jacquet, Marie Cornu, Ali Bencheneb & Franck Latty).

The English abstract reads:

Philippe Kahn was above all a researcher, an inventive person, an explorer. The French Branch of the International Law Association paid tribute to him on April 8, 2021. The tribute, in its entirety, is available on Youtube. The texts reproduced here concern only his scientific contributions highlighted by the authors in the various fields that his insatiable curiosity led him to tackle: international contracts, the financing of international trade, cultural heritage and the art market, outer space, to mention just a few aspects of his work.

In the second article, Gwendoline Lardeux (Aix-Marseille University) analyses some difficult private international law issues in real property matters (De certaines hypothèses délicates du droit international privé des immeubles).

The English abstract reads:

The autonomous concepts of European conflict of laws are progressively shaped, litigation after litigation, through Court of justice, as European substantive law as such is lacking. This jurisdiction is therefore referring to International private law goals to choose or reject any qualification. This is clearly the case for the immovable suit. The different regulations on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters provide indeed an exclusive jurisdictional competence to the courts of the situs rei « in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property » (see Reg. Brussels I bis, art. 24, 1°, al. 1er). Those both hypotheses are raising difficult legal qualification issues regarding numerous intricate contracts or institutions.

A full table of contents can be downloaded here.

?Chen Zhi?Wangjing & GH Law Firm, PhD Candidate at University of Macau)

Finality of tribunal’s decision without any challenging system on merits issues has been well established and viewed as one of the most cited benefits of arbitration, which can be found in most influential legal documents such as 1958 New York Convention and UNCIITRAL Model Law on International Commercial Arbitration (issued in 1985, as revised in 2006).

Nevertheless, among all salient features of arbitration, finality of award is probably the most controversial one. In the investment arbitration, the question has been canvassed at length and has been serving as one of the central concerns in the ongoing reform of investment arbitration.[i] While in commercial arbitration, some practitioners and commentators are also making effort to advocate an appeal system. For example, a report by Singapore Academy of Law Reform Committee in February of 2020 strongly recommended introduction of appeals on question of law into international arbitration seated in Singapore,[ii] and has ignited a debate in this regard.

In legal practice, there are some legislations or arbitration institutions provide approaches allowing for the parties to apply for reconsideration of the award, which can be summarized into 3 categories: 1. The appellate mechanism conducted by state courts; 2. Appellate mechanism within the arbitration proceedings and; 3. Alternative to appellate mechanism by arbitration society.

This article will start by giving a brief introduction about the forgoing systems, and comment on the legitimacy and necessity of appellate mechanism in commercial arbitration.

• Appealing mechanism before the court

1.1 Appellate Mechanism in England

When it comes to appellate mechanism conducted by state courts, the appeal mechanism for question of law as set out in section 69 of 1996 English Arbitration Act(EAA) is one of the most cited exceptions. It is undeniable that Section 69 of EAA constitutes an appellate mechanism in respect of arbitration conducted by judicial institutions. Nevertheless, some clarifications shall be made in this regard:

(1) The appellate mechanism serves as a default rule rather than a mandatory one, which allows parties to contract out of it. Apart from an agreement which explicitly excludes the appellate system, such consensus can be reached by other means. One of the methods is the parties’ agreement on dispensing with reasons for the arbitral award, which is overall a rare practice in the field of international commercial arbitration while frequently used within some jurisdictions and sectors. Another way is the designation of arbitration rules containing provisions eliminating any appeal system, such as arbitration rules of most world renowned arbitration institutions. For instance, Article 26.8 of London Court of International Arbitration Rules(The LCIA Rules) explicitly stipulates that parties waive “irrevocably” their right to appeal, review or recourse to any state court or other legal authority in any form.[iii] Therefore, parties may easily dispense with the right to appeal by reference of arbitration before The LCIA Rules or under its rules.

(2) Albeit parties fail to opt out of such appeals, the court is still afforded with discretion on rejection of a leave to commence such appeal. As provided by Section 69 (3) of EAA, such leave shall be granted only certain standards are satisfied, inter alia, the manifest error in the disputed award or raise of general public importance regarding the debating question.

(3) The competence of the appealing court is confined to review the question of laws and shall not impugned on the factual issue. In other words, any alleged errors in fact finding by tribunal is out of the court’s remit. English courts are tended to reject efforts dressing up factual findings as questions of law, and have set up a high threshold regarding mixed questions of law and fact.[iv]

The abovementioned three factors have enormously narrowed down the scope of appellate system under Section 69 of EAA. Statistics in recent years also reveal the extreme low success rate in both granting of leave and overturning of the outcome. From 2015 to March 2018, more than 160 claims had been filed, while only 30 claims were permitted and 4 claims succeeded.[v] Hence, the finality of arbitration award is overall enshrined in England. Parties can hardly count on the appeal proceedings set forth in Section 69.

1.2 Appellate Mechanism Outside England

Some other jurisdictions have embedded similar appellate system, Canada and Australia employed an opt-out model like Section 69 of EAA.[vi] Other jurisdictions have adopted stringent limits on such appeal. in Singapore, appeal on merits of award is only provided by Arbitration Act governing domestic arbitration and not available in arbitration proceedings under International Arbitration Act. The Arbitration Ordinance of Hong Kong SAR of China provides an opt-in framework which further narrows down the use of appellate mechanism.

Appeal in the court is somehow incompatible with the minimal intervene principle as set out in legislations like UNCITRAL Model Law. Further, it will not only enormously undermine efficiency of arbitration but also make the already-clogged state courts more burdensome. The important consideration about the appeal against question of law in the court is the development of law through cases,[vii] while it is not suitable for all jurisdictions.

• Internal appellate of arbitration institution

Apart from state courts, some arbitration institutions may have the authority to act as appellate bodies under their institutional rules, which can be summarized as “institutional appellate mechanism”. While such system can be observed in the arbitration concerning certain sectors such as the appeal board of The Grain and Feed Trade Association, it is rarely used by institutions open for all kinds of commercial disputes, with exceptions such as The Institute of Conflict Prevention and Resolution (CPR) and Judicial Arbitration & Mediation Services, Inc (JAMS).[viii]

Shenzhen Court of International Arbitration (SCIA) is the first arbitration institution in Mainland China who introduced optional appellate arbitration procedure into its arbitration rules published in December of 2018 (having come into effective since February 2019), enclosed with a guideline for such optional appellate arbitration procedure.

SCIA’s Optional Appellate Arbitration Procedure provides an opt-in appellate system against the merits issue of an award where the below prerequisites are all satisfied: (1) pre-existing agreement on appeal by parties; (2) such appeal mechanism is not prohibited by the law of the seat; (3) the award is not rendered under expedited procedure set out in SCIA Arbitration Rules.[ix]

If all the above conditions are satisfied and one of the dispute parties intend to appeal, the application of appeal shall be filed the appeal within 15 days upon receipt of the disputing award and an appealing body composed of 3 members will be constituted through the appointment of SCIA’s chief. The appealing body is afforded with broad direction to revise or affirm the original award, of whom the decision will supersede the original award.[x]

The SCIA appellate mechanism is a bold initiative, while some uncertainties may arise under the current legal system in Mainland China:

First is the legitimacy of an internal appellate system under current legislation system. Though the current statutes do not contain any provision specifying the institutional legitimacy of an appellate mechanism, while legal risk may arise by breach of finality principle set out in the Article 9 of PRC Arbitration Law, which expressly stipulates that both state court and arbitration institution shall reject any dispute which has been decided by previous award. In this respect, any decision by an appealing system, regardless of whether it is conducted by state court, is likely to be annulled or held unenforceable subsequently. Apparently, SCIA was well aware of such risk and set forth the first prerequisite for the system such that parties may circumvent the risk through designation of arbitral seat.

The second is the risk brought by designation of arbitration seat other than Mainland China while no foreign-related factor is involved. Current law in PRC is silent on the term of arbitration seat, even though the loophole may be well resolved by the new draft of revised Arbitration Law which has been published for public consultation since late July 2021,[xi] it is still unclear whether parties to arbitration without foreign-related factors have the right to designate a jurisdiction other than Mainland China. As per previous cases, courts across the jurisdiction has been for a long time rejecting parties’ right to agree on submission of case to off-shore arbitration institutions provided that no foreign-related factor can be observed in the underlying dispute.[xii]If the same stance keep unchanged in respect of parties’ consent on arbitration seat, parties’ agreement on designating an off-shore seat to avoid the scrutiny will be invalidated and the SCIA appellate mechanism will thereby not be available.

Third is the possibility of contradictory results. In Mainland China, a domestic award is final upon parties and hence enforceable without any subsequent proceedings. With this regard, SCIA’s appellate mechanism may create two contradictory outcomes in one dispute resolution proceeding under the current legal system. If the successful party seeks for enforcement of award by concealing the existence of appeal proceedings, the court will enforce it basing on its text. Even though the court is aware of the appeal proceedings in the course of enforcement, it is not obliged to stay the enforcement in absence of any legal basis. In other words, the appeal mechanism will be meaningless for all parties in case of the launch of enforcement proceedings .

• Alternatives to appealing mechanism

As mentioned above, in Mainland China there is no room for a review on merits system in commercial arbitration under Article 9 of PRC Arbitration Law. This article has been verbatim transplanted into the most recent draft of revised Arbitration Law which has been published for public consultation since late July 2021. Therefore, the much-cited bill brings no assistance in this regard.

With all that said, a few institutions have set up a special system called “pre-decision notification”??????as an alternative to mirror the function of appeal mechanism, which is said to be credited to Deyang Arbitration Commission of Sichuan Province dated back to 2004, according to a piece of news in August 2005 reported by Legal Daily, a nationwide legal professional newspaper run by the Supreme People’s Court.[xiii] Pre-decision notification allows for tribunal to notice parties their preliminary opinions about the case before rendering the final decision, and ask for parties’ comments within fixed duration. Tribunal’s preliminary opinions can be revised by the final award based on comments by parties, occurrence of new fact after deliberation, or merely on the tribunal’s own initiative.

One notable case about the pre-decision notification mechanism is decided by Xi’an Intermediate Court of Shanxi Province dated 18 April of 2018.[xiv] The case concerns an arbitration proceeding administered by Shangluo Branch of Xi’an Arbitration Commission where the tribunal dispatched preliminary opinion to parties at the outset, whilst ruled on the contrary in the final decision. The plaintiff (respondent of the arbitration proceeding) subsequently commenced an annulment proceeding against the award on the basis that the final decision is contradictory with the one set out in pre-decision notice (together with other reasons which were not relevant to the topic of this article), whilst the court refused to set aside the award by simply indicated that the reasons replied upon by plaintiff had no merits, without giving any further comment on such system.

In another noteworthy case which concerns the fact that tribunal ruled adversely after considering parties’ comments on opinion set out in pre-decision notice, in the annulment proceeding, the Guiyang Intermediate Court of Guizhou Province explicitly endorsed the legitimacy of pre-decision notification, by stating that even though it is not regulated in any current legislation, pre-decision notice can be viewed as an investigation method by means of tribunal’s query to the parties, instead of a decision by tribunal. Therefore, the discrepancy between pre-decision opinion and final award does not amount to annulment of the award.[xv]

The abovementioned court decisions are somehow problematic: the pre-decision notification is by no means a mere investigating tool for the tribunal. While the preliminary opinion is made and dispatched, it shall be deemed that the tribunal has taken the stance, which shall be distinguished from tribunal’s query about facts or laws in a neutral and open minded manner which is widely accepted in commercial arbitration.[xvi] Therefore, subsequent comments by parties would constitute a de facto appealing mechanism before the same decision-making body, which will give rise to problems such as postponing the arbitral proceedings and the question of conflict of interest. Moreover, it probably produces unfairness for parties dissatisfying with the preliminary opinion may spare no effort to change the tribunal’s mind by intervening tribunal’s autonomy (even by taking irregular or illegal measures).

Overall, pre-decision notification is a highly controversial practice which received lots of criticisms, and hence does not constitute a mainstream system in China. None of the first-class arbitration institutions (including CIETAC, Beijing Arbitration Commission, Guangzhou Arbitration Commission, etc.) had ever embraced such system in the field of commercial arbitration. Some institutions are seeking to repeal or limit the use of such system. For example, Zunyi Arbitration Commission abolished such system in its rules released in 2018, while other arbitration commissions who are consistently strong champions of this system also opined that it is only used in rare cases with higher controversy and complexity.

Despite of these pitfalls and controversies, the courts’ decisions clearly reveal that pre-decision notification system per se is not necessarily a breach of finality principle set out in arbitration legislation and hence feasible for parties if it is explicitly set out in applicable arbitration rules.

Pre-decision notification has been introduced into investment arbitration in recent years, Beijing Arbitration Commission has incorporated such system into its investment arbitration which was finalized and published in September 2019, which provides that the tribunal shall provide parties with the draft of award and seek for their comments, and may give proper consideration to the parties’ feedback.[xvii] By the language, pre-decision notification will act as a mandatory rule while any investor-state case is being administered by this institution.

4.Comments

Several pertinent issues have been raised with regard to appellate mechanism in arbitration, which can be boiled down to several sub-issues including legitimacy, efficiency and fairness, as well as preference of parties.

4.1 Legitimacy Perspective

According to leading legislations across the world, the competence of state court confined to procedural issues in respect of judicial review over arbitration award, with rare and narrow exceptions such as the public policy set out in UNCITRAL Model Law and New York Convention. With this respect, even though some commentators argue that an appeal on merits is not necessarily a breach of finality and minimal intervene principles set out in UNCITRAL Model Law,[xviii] a mandatory and all-catching appealing system encompassing both factual and legal issues conducted by state court is undeniably incompatible with modern arbitration legislation.

In this respect, an internal appealing mechanism conducted by arbitration institution seems to be less controversial in respect of legitimacy at first glance. While it may also be viewed as a breach of finality of award in the context of some specific legislations such as Article 9 of PRC Arbitration Law.

4.2 Efficiency and Fairness

Finality principle in commercial perceivably enhances the efficiency of dispute resolution by relieving both parties and states from endless and burdensome appealing and reconsidering proceedings, while efficiency is not free from problem while the fairness issue is concerned, giving rise to pertinent considerations about correction of error, enhancement of consistency and the increase of transparency.

Nevertheless, the fairness argument is less convincing in the context of international commercial arbitration in which parties are seeking for a neutral forum in avoidance of local protectionism.[xix] Further, consistency and transparency is less concerned in the context of arbitration which is viewed to be tailored for individual cases while less public concerns are involved, comparing with litigation.

4.3 Preference of Parties

It can be drawn from above analysis that there is no one-standard-fitting all approach for the appeal mechanism in commercial arbitration, in that scenario, parties’ preference shall be taken into account by virtue of the autonomy nature of commercial.

An worldwide survey conducted by Queen Mary University in 2015 provides that 23% of the respondents were in favor of an appeal mechanism in commercial arbitration (compared to 36% approval rate in the same question about investment arbitration),[xx] which reveals a boost about 150% while compared with the rate in 2006 survey (around 9%).In 2018 survey, 14% of the respondents had selected “lack of appeal mechanism on the meritss” as one of the three worst characteristics of arbitration.[xxi]

In a nutshell, statics reveals the increasing demand for appeal system, while it is premature to say that preference for appeal mechanism has been the mainstream in commercial arbitration, it has given rise to concerns by arbitration practitioners and proper response shall be made accordingly.

[i]See Elsa Sardinha, The Impetus for the Creation of an Appellate Mechanism, in Meg Kinnear and Campbell McLachlan (eds), ICSID Review – Foreign Investment Law Journal, Oxford University Press 2017, Volume 32 Issue(3) pp. 503 – 527S https://www.sal.org.sg/sites/default/files/PDF%20Files/Law%20Reform/2020%20Report%20on%20the%20Right%20of%20Appeal%20against%20International%20Arbitration%20Awards%20on%20Questions%20of%20Law.pdf

[ii] See Singapore Academy of Law Reform Committee, Report on the Right of Appeal against International Arbitration Awards on Questions of Law February 2020, available at

[iii] Article 26.8 of LCIA Arbitration Rules?coming into effective since October 2020?,available at https://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2020.aspx

[iv] See Teresa Cheng, The Search for Order Within Chaos in the Evolution of ISDS, CIArb’s 45th annual Alexander Lecture on 16 January 2020, available at https://www.doj.gov.hk/en/community_engagement/speeches/20200116_sj1.html

[v] Ben Sanderson et al.,Appeals under the English Arbitration Act 1996?available at https://www.dlapiper.com/en/uk/insights/publications/2018/05/appeals-under-the-english-arbitration-act-1996/#:~:text=Section%2069%2C%20meanwhile%2C%20is%20a%20non-mandatory%20provision%20of,the%20English%20courts%20on%20a%20point%20of%20law.

[vi]T. Dedezade, Are You In or Are You Out? An Analysis of Section, 69 of the English Arbitration Act 1996: Appeals on a Question of Law, 2 Intl. Arb. L.J. 56 (2006) available at http://corbett.co.uk/wp-content/uploads/Taner-s-69-article.pdf

[vii] Ibid.

[viii] See Rowan Platt, The Appeal of Appeal Mechanisms in International Arbitration: Fairness over Finality?, Journal of International Arbitration , Volume 30 Issue 5 p. 548?2013?

[ix] See Article 68 of SCIA Arbitration Rules(coming into effective since 2019),available at http://scia.com.cn/upload/20201027/5f97bf7833c8c.pdf

[x] See SCIA Guidelines for the Optional Appellate Arbitration Procedure, available at http://www.scia.com.cn/files/fckFile/file/SCIA%20Guidelines%20for%20the%20Optional%20Appellate%20Arbitration%20Procedure.pdf

[xi] See Anton Ware et al., Proposed Amendments to the PRC Arbitration Law: A Panacea?, available at http://arbitrationblog.kluwerarbitration.com/2021/09/09/proposed-amendments-to-the-prc-arbitration-law-a-panacea/

[xii] See a seminal case (2013)??????10670? by Beijing 2nd Intermediate Court in January of 2014, which concerns an award rendered in proceedings governed by KCAB, the court rejected enforcement of KCAB award by the reason that the underlying dispute did not have any foreign-related factor, despite of the fact that one party to the proceedings is an enterprise wholly subsidized by Korean citizens.

[xiii] See Li Yongli et al., Enhancing Arbitration Legislation through Pre-Decision Notification. Legal Daily, 16 August 2005, p,12???????????“????”???????????????????2005?8?16??12???

[xiv] 2018 Shan 01 Min Te No. 99?2018??01??99?

[xv] 2016 Qian 01 Min Te No. 48?2016??01??48?

[xvi] Per the common practice and well established principle, tribunals are free to delivery query to parties in respect of both factual finding and ascertaining law (Jura Novit Curia), while it shall be conducted in a manner that being prepared to consider legal positions advanced by the parties, irrespective of questions well known to the tribunal. See: Revista Brasileira de Arbitragem, International Law Association Committee on International Commercial Arbitration Ascertaining the Contents of the Applicable Law in International Commercial Arbitration Report for the Biennial Conference in Rio de Janeiro, August 2008,

[xvii] Article 42.4 of Beijing Arbitration Commission/Beijing International Arbitration Center Rules for International Investment Arbitration?available at https://www.bjac.org.cn/page/data_dl/touzi_en.pdf

[xviii] See Singapore Academy on Law Reform Committee: Report of Appeal Against International Arbitration Awards on Questions of Law, February 2020, available at https://www.sal.org.sg/sites/default/files/PDF%20Files/Law%20Reform/2020%20Report%20on%20the%20Right%20of%20Appeal%20against%20International%20Arbitration%20Awards%20on%20Questions%20of%20Law.pdf

[xix] Noam Zamir ,Peretz Segal, Appeal in International Arbitration—an efficient and affordable arbitral appeal mechanism‘, in William W. Park (ed), Arbitration International, Oxford University Press 2019, Volume 35 Issue 1) p. 84.

[xx] See Queen Mary, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, p,8 available at http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbitration_Survey.pdf

[xxi] See Queen Mary & White Case, 2018 International Arbitration Survey: The Evolution of International Arbitration, p,8 available at http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2018-International-Arbitration-Survey—The-Evolution-of-International-Arbitration-(2).PDF

Facts

An Austrian national (A) was born in 1975 as a woman. In 2010, at A’s request, the Austrian authorities changed A’ first name, and in 2016 A’s gender to “male”. A married a German male national in July 2019 in Berlin. On the same day, A gave birth to their common child there. The German authorities were unsure about how to enter A into the birth register.

Ruling

On 21 January 2021, the Court of Appeal Berlin (Kammergericht) rendered a Solomonic judgment (docket number 1 W 1290/20, published in NJW-RR 2021, p. 387, paywall access here). It ruled that A was to be registered as the child’s mother, but that A’s gender was to be recorded as “male”. This solution was reached through applying a combination of the formal rules governing the birth register, conflict-of-laws rules, and an interpretation of substantive law.

Formal Rules on Civil Status

The Court justified the registration of A as a “mother” by the formal procedural rules governing the German civil status (Personenstandsgesetz) as the lex fori. According to these rules, the person giving birth to the child is to be registered as the mother, independently of their gender. A’s status as a mother would follow from the fact that A had given birth to the child.

Conflict of Laws

The Court also tried to justify this rather formalistic solution by the law applicable to the substantive legal relationship between A and the child. In order to do so, it had to identify the law applicable to kinship.

The Court highlighted that since the child has its habitual residence in Germany, German law applied to the relation of kinship (Article 19(1) 1 of the German Introductory Act to the Civil Code – EGBGB). Yet in addition to habitual residence, German international family law provides further connecting factors with the goal of establishing, as far as possible, a parent-child relationship. In particular, the relationship of descent from a parent can also be derived from the law of the state of this parent’s nationality (see Art 19(1) 2 EGBGB). In the present case, given A’s Austrian nationality, this would lead to Austrian law. Finally, kinship could also be established under the law governing the general effects of the marriage (Art 19(1) 3 EGBGB). Under German conflicts law, the general effects of same-sex marriages are, in the absence of a choice of law by the spouses, submitted to the law where the same-sex marriage is registered (Art 17b(4) EGBGB).  In the present case, this again led to German law. Hence, German and Austrian law apply to questions of kinship, with a preference for the law that is more likely to establish a parent-child-relationship.

Substantive Kinship Law

A substantive problem is that the German Civil Code defines the mother of a child as the “woman who gave birth to the child” (sec. 1591 German Civil Code – BGB). A very similar provision exists under Austrian law (sec. 143 Austrian Civil Code – ABGB). Seemingly, these provisions do not allow a man to be registered as a mother.

However, the German Federal Court had previously held that the role of the mother and the female gender must always be attributed to the person giving birth to the child (Bundesgerichtshof, decision of 6 September 2017 – XII ZB 660/14). It is true that the Act on Transsexuals, on which the Federal Supreme Court had relied, was not applicable given that A had changed its name and gender abroad, i.e., under Austrian law. Nevertheless, the Berlin Court of Appeal followed the precedent set by the Federal Supreme Court. It argued that the notions “mother” and “woman” in sec. 1591 BGB would refer to a specific role in the procreation of the child, and were to be understood in a biological and not in a legal sense. Since A had given birth to the child, A would have to be considered as the mother and consequently also as a “woman” for the purposes of this provision.

The Berlin Court of Appeal also pointed out that A could not be registered as a father, despite being male. A did not meet the necessary requirements to be registered as the child’s father, as he was neither married to the mother at the time of the child’s birth, nor has his paternity been acknowledged or established by the court (sec. 1592 German Civil Code – BGB). Moreover, under German law, every child can only have one father and one mother. As A’s husband had been registered as the father, this role was precluded for A. The Court also pointed out that gender-neutral registration is not foreseen under German law.

In Austria, no special rules exist for transsexual persons as mothers. Yet the Court of Appeal pointed to the Austrian practice under which a woman who had changed her gender before giving birth to a child could be entered into the central civil status register as the mother. The result would be basically the same as under German law.

Substantive Gender Law

With regard to the recording of A’s gender in the birth register, the Berlin Court of Appeal referred to Art 7 EGBGB, which submits questions concerning the legal personality and legal capacity of natural persons to the law of their nationality. This provision would apply, by analogy, also to gender identity. Hence, Austrian law was applicable. The Court remarked that the Austrian authorities had issued a birth certificate for A with the gender “male”. Similar documents had been submitted for purposes of the wedding. The Austrian authorities had also recorded A’s gender as male when registering the child’s birth in the general civil status register. There could therefore be no serious doubt about A’s gender. The Austrian acts and documents would have to be respected in Germany. As a result, a man was registered as a mother.

Assessment

The case illustrates the need for reform to German and Austrian family law. Both still are based on the assumption that the mother of a child is always a woman, which is no longer universally true, as illustrated by the present case. The Berlin Court of Appeal’s distinction between the sex in a biological sense and gender a legal sense can hardly convince when applied in a purely legal context. Where someone is recognised as having a certain gender, this must apply in all legal circumstances. The proper solution therefore would be to define the mother purely functionally as the person giving birth to remove the reference to a “woman” in both sec. 1591 German BGB and sec. 143 Austrian ABGB. This could be best done by a change of the law; in the absence of such reform, an adaptive interpretation is indispensable.

With regard to A’s gender, the Berlin Court of Appeal could have shortened its ruling. It should simply have accepted the Austrian documents on the basis of the CJEU case law that demands the recognition of civil status acts rendered in other Member States (see for the registration of names e.g. CJEU, C-391/09, Runevič-Vardyn and Wardyn). A conflicts analysis was therefore unnecessary in this context.

On 15 November 2021, the JURI committee of the European Parliament held a hearing on EU Private International Law. The focus was on issues that would need to be addressed in a review of the current rules, including as regards Corporate Due Diligence and SLAPPs (Strategic Lawsuits Against Public Participation).

Giesela Rühl (Humboldt University of Berlin, and Secretary General of EAPIL), Geert Van Calster (Leuven University), and Olivera Boskovic (Université Paris Déscartes) took part in the hearing.

The video recording of the hearing can be found here.