Conflictoflaws

US Supreme Court Fellowship applications open Fellows conduct independent research and work with one of four offices – the Office of the Counselor to the Chief Justice, the Administrative Office, the Sentencing Commission, and the Federal Judicial Center (the education and research arm of the US federal judiciary).

Applications are due 17 November 2023.  More information is found below. https://www.supremecourt.gov/fellows/apply.aspx

ACICA Announces First Scholarship Program from Education Fund Established following ICCA Congress

The Australian Centre for International Commercial Arbitration (ACICA) has just announced a new scholarship program supported by the Education Fund Established following the ICCA Congress in Sydney in 2018.  The program includes two biennial scholarships to legal practitioners who are admitted in South Pacific Island jurisdictions. Applications will open in 2024, and recipients will be: “- awarded the opportunity to attend AAW including the ACICA & Ciarb Australia International Arbitration Conference, the lead event of AAW; – supported by the ACICA Secretariat to obtain an understanding of ACICA’s work; – offered the opportunity to be a part of an ADR practitioner network that ACICA seeks to encourage in the South Pacific; and – offered the opportunity to learn more about and participate in ICCA activities directed at aspiring arbitration practitioners, such as the Young ICCA mentoring program, the ICCA Inclusion Fund and the Johnny Veeder Fellowship Program. provided with information or inclusion in relevant ICCA programs.” For more, see  https://protect-au.mimecast.com/s/_yjWCBNqjlCDXpGQoFkYzxS?domain=acica.org.au or https://protect-au.mimecast.com/s/2MiXCANpgjCZKLQyYupsjoq?domain=acica.org.au

 

On Tuesday, November 7, 2023, the Hamburg Max Planck Institute will host its 38th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Christine Budzikiewicz (Phillips-Universität Marburg) will speak, in German, about

The Proposal for the Creation of a European Certificate of Parenthood

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

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

Fresh from the print comes the book titled Cross-Border Trade Secret Disputes in the European Union: Jurisdiction and Applicable Law authored by Lydia Lundstedt, Senior Lecturer in Private International Law at the Stockholm University and Senior Lecturer in Intellectual Property Law at the Linköping University.

The book is offering an EU perspective on one of the important ways the companies are protecting their intellectual property and information in general. This book examines different approaches to trade secret protection in the EU Member States, and focuses on the jurisdiction and applicable law under Brussels I bis, Rome I and Rome II.

The book is available here, and code LUND35 will secure a 35% discount on the book price.

The second issue of the Revue critique de droit International privé of 2023 was released in August. It contains four articles and several case notes.

The first part of the issue features the doctrinal work of two young authors, who confront PIL techniques with contemporary developments in social sciences.

The first article Pour une approche décoloniale du droit international privé (A Decolonial Approach to Private International Law) is authored by Dr Sandrine Brachotte (Université Saint-Louis & Université de Lille). Following her doctoral work on The Conflict of Laws and Non-secular Worldviews: A Proposal for Inclusion (see presentation over at EAPIL), Dr Brachotte discusses colonial studies’ implications for PIL scholarship. She examines how plural normativities challenge the traditional conception of conflict of laws and then outlines the potential form of a decolonial PIL. An English translation of the article is available on the website of the editor. Its abstract reads as follows:

This article presents the decolonial approach to private international law, which has recently entered the list of pressing topics for the discipline, not only in colonised countries but also in Europe. In France, the subject may not yet be addressed as such, but it at least appeared in a Ph. D. thesis defended at the Sciences Po Paris Law School in May 2022, entitled “The Conflict of Laws and Non-secular Worldviews: A Proposal for Inclusion”. This thesis argues for an alternative theorisation of the notions of party autonomy, recognition, and international jurisdiction to make them more inclusive of non-occidental worldviews. After having offered a description of the decolonial approach and the current enterprise of decolonisation of private international law, this contribution summarises the essential points of the Ph. D. thesis in this respect and identifies the broader questions that it raises for private international law, especially as regards the notions of “law”, “foreign” and “conflict”.

Dr Élie Lenglart (Université Paris II Panthéon Assas) signed the second article on Les conflits de juridictions à l’épreuve de l’individualisme (Conflicts of Jurisdiction and Individualism). Dr Lenglart prolongs the reflection of his doctoral work on La théorie générale des conflits de lois à l’épreuve de l’individualisme (The General Theory of Conflicts of Laws Confronted with Individualism) in the field of conflicts of jurisdiction. He shows how the rules on jurisdiction and circulation of foreign judgments have been progressively liberalized, the satisfaction of individual interest becoming the gravity centre of PIL. The abstract reads as follows :

Individualism is one the characteristic features of modern legal theories. The emergence of the individualistic approach is profoundly linked to a special perception and evaluation of the reality based of the superiority of the individual. This conception has had decisive consequences in private international law. The impact of this tendency should not be underestimated. Its influence is noticeable in the first place on the determination of international competency of French jurisdictions, both via the provision of available courts to individuals and via the individuals’ propensity to extend their choices of jurisdictions based on their personal interests. It also influences the recognition and enforcement of foreign judgments by imposing the legal recognition of individual statuses under extremely liberal conditions, reorganizing in turn the whole system around the individual.

In the third article, Prof. David Sindres (Université d’Angers) shares some Nouvelles réflexions sur les clauses attributives de compétence optionnelles (New Reflections on Optional Jurisdiction Clauses). He successively discusses the principles and conditions of liceity of both the jurisdiction clauses of optional application and the clauses that establish an option between designated jurisdictions under Brussel 1 recast (from a French law perspective).

The fourth article is dedicated to a selective account of French and European developments in immigration law. Prof. Thibaut Fleury Graff (Université Versailles Saint-Quentin-en-Yvelines) and Inès Giauffret (Ph. D. candidate at Université Versailles Saint-Quentin-en-Yvelines) discuss recent case law on the “age border” (cases about the appreciation of minority and the rights of detained minors) and the “state border” (cases about measures of placement in waiting zones, detention, and expulsion in French law) in a tensed international context.

The full table of contents is available here.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

This national conference will be held on 21 February 2024 at The University of Sydney Law School in Australia.

Business compliance in international transactions across the Asia-Pacific region holds immense importance for organizations seeking to expand their activities within this dynamic and evolving landscape. Multinational corporations operating in Asia Pacific often confront unique compliance challenges due to the swiftly changing regulatory and geopolitical environment in the region.

We welcome scholars, irrespective of their career stage, to submit paper or panel proposals for presentation at the conference. The event will take place at the Camperdown campus of the University of Sydney Law School in Sydney, Australia, on February 21, 2024 in a hybrid format (in-person or online presentation). The conference is specifically designed to provide researchers with the opportunity to present their work-in-progress papers to fellow scholars. The primary language of the conference will be English.

We are enthusiastic about receiving proposals that delve into various aspects of business compliance in international business transactions, especially:

• Key Compliance Risk Areas:
  • Criminal Law Compliance: corporate crime, anti-corruption law, fraud and cyber fraud, anti-money laundering and counter terrorism financing, etc.
  • Data Protection and Digital Trade Compliance: cross-border privacy protections, data security laws, crypto asset regulatory frameworks, governance of AI and digital trade, etc.
  • Dispute Resolution related Compliance: complex private international law issues associated with jurisdiction, choice of law, and judgement recognition and enforcement, arbitration and mediation, sanctions, foreign state sovereign immunity, etc.
  • Environmental, Social and Governance (ESG) Disclosure and Traceability Compliance: climate change disclosure regulations, modern slavery laws, regulations for sustainability of international supply chains in circular economy, etc.
• Compliance Expectations in these Risk Areas
• Recommended Best Practices

Other legal issues related to Business Compliance in International Commercial Transactions in Asia Pacific are also welcome.

Requirements for Abstract Submission:

For paper proposals, please submit a title and max 200-word abstract, along with a one-page CV. For panel proposals, please submit a title and max 800-word abstract, along with a three-page CV covering 3-4 panel members.

Proposal Due: 17 November 2023.
Announcement of successful submission: 4 December 2023.
Conference Date: 21 February 2024

More information can be found here.

Originally posted today on the NGPIL website.

On the 23rd November 2023, 5pm (WAT/Lagos/Abuja) the NGPIL will host our guest speaker Professor Wale Olawoyin SAN, FCIArb at this year’s conference. The event will explore the coming into force of the Arbitration and Conciliation Act 2023 and how, from a private international law perspective, the arbitration appeal process in Nigeria can be enhanced. Discussions will build on practice thus far, and will allow practitioners, judges and academics alike to develop knowledge and insight into its utility.

To register: https://us06web.zoom.us/webinar/register/WN_q5pY1JWARiaUxi1TIw8xBQ

These two volumes celebrate the 30th anniversary of the Japan Association of International Economic Law (JAIEL), which was founded in 1991. The Volumes include 30 contributions written by eminent Japanese scholars from different background, in particular, private international law, public international law, international economic law, competition law, intellectual property law etc.

 

                 

 

The blurb of the book reads as follows:

 

These two groundbreaking volumes look at complex legal issues in the changing global economy from the perspective of Asia and/or Japan. Contributors scrutinize the past, present, and future and discuss what the global legal order in economic fields could be like by navigating uncertain and turbulent times.

 

The books address six main themes: (1) Polarization and diversification of values, progress of regionalism and restructuring of multilateral rules, (2) Full-scale arrival of the digital economy and its impact, (3) Empowerment of private persons/entities, (4) Reconsideration of the concept of “territorial jurisdiction”, (5) Law of national security and rule in emergency situations, and (6) Values of Sustainable Development Goals (SDGs) in trade and investment liberalization rules. The books also examine various legal problems under the COVID-19 crisis and suggest how the post-COVID-19 global economic order will be from the perspective of Asia and/or Japan.

 

This comprehensive insight will shed light on the intertwined and complex phenomena of world economy and allow readers of business law and international law to have a better understanding of this volatile era.

 

The two volumes are particularly interesting as they make accessible to the global community of scholars and practitioners the remarkable Japanese scholarship of international economic law. In his Preface, Prof. Takao Suami (Waseda University), pointed out three features of the two volumes’ contributions: “Firstly, all of them are characterized by their Japanese perspectives. Since all lawyers cannot avoid bringing up their understanding of law including international law in their local contexts, it is unavoidable that approaches to international economic law are not identical in different places. These articles expose such non-Western perspectives to the world. Secondly, many of them deal with newly emerging issues. Japanese scholars are sensitive to change in a global society. Therefore, they deal not only with the digitalization of the global economy but also with the impact of COVID-19 or national security on the international economic order. Thirdly, they cover subjects concerning both public and private international laws (conflict of laws). Their combination constitutes a tradition of Japanese academic approaches. Japanese scholars understand that this combination has become more important than ever under the progress of globalization.”

 

The table of content and the contributions’ abstracts are found here (Volume 1) and here (Volume 2).

Professor William S. Dodge, John D. Ayer Chair in Business Law; Martin Luther King Jr. Professor of Law, University of California, Davis, School of Law, will give a seminar entitled ‘U.S. Extraterritorial Jurisdiction-Myths and Reality’ at the Wuhan University School of Law on 15 Oct. at 15:00-16:30pm Beijing Time. This seminar will be chaired by Professor Sophia Tang, the Associate Dean of the Wuhan University Academy of International Law and Global Governance. Associate Professor Wenliang Zhang at the Renmin University, Associate Professor Xiongbin Qiao, Associate Professor Yong Gan, and Associate Professor Wenwen Liang at the Wuhan University will act as discussants. You can attend the seminar online through Tencent Meeting. Please follow the information below:

Time?2023/10/15 15:00-17:00 (GMT+08:00) Beijing Time

Meeting link?
https://meeting.tencent.com/dm/KADluwLhfmfc

Tencent Meeting ID: 991-898-184
Password: 89456

By Moses Wiepen, Legal Trainee at the Higher Regional Court of Hamm, Germany

In its decision of 21 July 2023 (V ZR 112/22), the German Federal Court of Justice confirmed that Art. 26 Brussels Ia Regulation applies regardless of the defendant’s domicile. The case in question involved an art collector filing suit against a Canadian trust that manages the estate of a Jew who was persecuted by the German Nazi regime. The defendant published a wanted notice in an online Lost Art database for a painting that the plaintiff bought in 1999. The plaintiff considers this as a violation of his property right.

In general, following the procedural law principle of actor sequitur forum rei, the Canadian trust should be brought to court in Canadian courts. Special rules are required for jurisdictions that deviate from this principle. The lower German court confirmed its authority based on national rules on jurisdiction. Under sec. 32 German Civil Procedure Code, tort claims can be brought to the court where the harmful act happened regardless of the defendant’s domicile. The German Federal Court of Justice established its jurisdiction on Art. 26 Brussels Ia Regulation as the lex specialis.

This may appear surprising as the scope of the Brussels Ia Regulations is generally limited to defendants domiciled in a member state of the EU, Artt. 4, 6 Brussels Ia Regulation. Exceptions to this rule are stated in Art. 6 Brussels Ia Regulation and – relying on its wording – limited to the Artt. 18 I, 21 II, 24 and 25 Brussels Ia Regulation. Nevertheless, due to the common element of party autonomy in Art. 25 and Art. 26 Brussels Ia Regulation, some parts of the literature – and now the German Federal Court of Justice – apply Art. 26 Brussels Ia Regulation to non-EU-domiciled defendants as well. The German Federal Court of Justice even considers this interpretation of Art. 26 Brussels Ia Regulation as acte clair and thus, it sees no need for a preliminary ruling of the CJEU under Art. 267 TFEU.

However, the Court’s argumentation is not completely persuasive. Firstly, the wording of Art. 26 Brussels Ia Regulation is open to other – even opposing – interpretations. Secondly, although it contains a party-autonomous element, Art. 26 Brussels Ia Regulation does not depend on the defendant’s choice of court. In fact, courts are not required to verify defendant’s awareness of jurisdictional risks in order to proceed in a court lacking jurisdiction. And unlike Art. 25 Brussels Ia Regulation, Art. 26 Brussels Ia Regulation can be part of a litigation strategy detrimental to the defendant

A detailed analysis on the court’s ruling in German is available here.

A Friday in early December is reserved for RIDOC: Rijeka Doctoral Conference, organised by the University of Rijeka, Faculty of Law. Doctoral students in law or law-related area who wish to join colleagues from different countries to test their research hypothesis and arguments before the expert panel are welcome to apply for the 2023 edition.

The call is open until 20 October and abstracts should be sent to ridoc@pravri.uniri.hr. More information is available here.

On 24 November 2023, the Institute for the History of Law at the University of Heidelberg (Institut für geschichtliche Rechtswissenschaft) is hosting a symposium on the new German Sales Law in cooperation with the Université de Lorraine. Further information can be found here (French version).

On 19-20 October 2023 the Conference Sustaining Access to Justice in Europe: New Avenues for Costs and Funding will take place live at Erasmus University Rotterdam. Renowned speakers from academia, policy, business and consumer associations from Europe, the US and Asia will discuss developments in funding, including third-party litigation funding and crowdfunding, collective actions, public interest litigation, ADR and ODR and entrepreneurial lawyering. Keynotes by Rachael Mulheron (Queen Mary University of London) and Andreas Stein (European Commission, DG Justice & Consumers)

You can register till Sunday 15 October! The program is available here and further information and registration is available here.

Description

Access to civil justice is of paramount importance for enforcing citizens’ rights. At the heart access to civil justice lies litigation funding and cost management. Yet, over the past decades, access to justice has been increasingly put under pressure due to retrenching governments, high costs of procedure, and inefficiency of courts and justice systems. Within this context, the funding of litigation in Europe seems to be shifting from public to private sources. Private actors and innovative business models have emerged to provide new solutions to the old problem of financial barriers to access to justice.

With the participation of academics, policymakers, practitioners, academics and representatives of civil society from all over Europe and beyond, the conference seeks to delve deeper into the financial implications of access to justice and the different ways to achieve sustainable civil justice systems in Europe. The topics addressed in this international academic conference include different methods of financing dispute resolution and regulating costs, such as third-party funding, crowdfunding, blockchain technologies, public interest litigation, developments in ADR/ODR to enhance access to justice, new business models of legal professionals as well as law and economics perspectives on litigation funding.

This conference is organised by Erasmus School of Law in the context of the NWO Vici Project: ‘Affordable Access to Justice’, funded by the Dutch Research Council.

The latest issue of the Dutch Journal on Private International Law (NIPR) has been published.

NIPR 2023 issue 3

EDITORIAL

M.J. de Rooij, Het leed van de circulerende Unieburger en het Europese begrip van de favor divortii [The suffering of the circulating Union citizen and the European concept of favor divortii] / p. 381-384

ARTICLES

C. Vanleenhove, The Hague Judgments Convention versus national regimes of recognition and enforcement: a comparison between the Convention and the Belgian Code of Private International Law / p. 385-399

Abstract
The adoption of the Hague Judgments Convention marks a landmark step in the Judgments Project that the Hague Conference on Private International Law has undertaken since 1992 in the context of transnational disputes in civil and commercial matters. The creation of a uniform set of core rules on the recognition and enforcement of foreign judgments in a cross-border civil and commercial setting promotes effective access to justice and facilitates multilateral trade, investment, and mobility. As far as Belgium is concerned, in the relationship with other non-EU Contracting States the Convention will replace the Code of Private International Law that since 2004 has governed the recognition and enforcement of third State judgments in Belgium. The entry into force of the Convention calls for a comparison of the Convention’s regime with that of the Code of Private International Law. As the two instruments fall within the same ballpark in terms of their openness and given the Convention’s deferral to more favourable domestic rules, the Convention adds another avenue through which a successful party can enforce its foreign judgment in Belgium. From the Belgian perspective the potential circulation of Belgian judgments in other Contracting States with stringent national rules on enforcement perhaps constitutes the most considerable benefit of the Convention.

G. van Calster, Brussels Ia and the Hague Judgments Convention: a note on non-domiciled parties and on reflexive jurisdictional rules / p. 401-407

Abstract
The process that led to the Hague Judgments Convention was inspired by the ‘Brussels regime’ (the EU’s approach to encouraging the free movement of judgments in civil and commercial matters). In the present note I explore two likely areas of tension between Brussels Ia and the Hague Convention: the limited circumstances where non-EU domiciled defendants will nevertheless be captured by the EU jurisdictional rules; and the developing ‘reflexive effect’ of exclusive jurisdictional gateways. I suggest that the EU would do well seriously to consider a reflexive application of its exclusive jurisdictional rules, and that the current review of Brussels Ia would be a good opportunity to do so.

A.A.H. van Hoek, F. van Overbeeke, Over open eindes en nauwere banden: een nieuw hoofdstuk in de Van den Bosch/Silo-Tank-saga / p. 409-420

Abstract
In this brief contribution we pay attention to the latest judgment of the Dutch Supreme Court in the protracted litigation over the employment conditions of Hungarian truck drivers who perform international transport operations on behalf of a Dutch logistics company while being officially employed by a Hungarian sister company of the Dutch firm. The case led to the CJEU judgment FNV/Van den Bosch, C-815/18, ECLI:EU:C:2020:976 (NIPR 2021-55) where the application of the Posting of Workers Directive to this scenario was discussed. The current case pertains to the law that is applicable to the individual employment contracts under Article 8 Rome I.

We comment on the problem of identifying the place from where the work is habitually performed in the case of highly mobile transport operations, the root of which lays in pertaining EU caselaw. We also discuss the fact that the Dutch Supreme Court applied the criteria mentioned in the Schlecker case (C-64/12, ECLI:EU:C:2013:551, NIPR 2013-347) in a strict manner, without taking the specific context of the Schlecker case fully into account. Finally, we recommend that the Court of Appeal of Amsterdam (to which the case has been referred) should submit further preliminary questions to the CJEU: 1. Should the reason why workers are covered by the social security system of their home country be taken into account when weighing the relevance of this criterion – and more particularly, what relevance does the insurance status have in transport cases?; 2. Which factors should (or may) be taken into account to establish a closer connection when the applicable law is determined on the basis of the establishment through which the worker was employed?

Written by Mayela Celis

The eighth meeting of the Special Commission on the Practical Operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention will be held from 10 to 17 October 2023 in The Hague, the Netherlands. For more information, click here.

One of the key documents prepared for the meeting is the Global Report – Statistical study of applications made in 2021 under the 1980 Child Abduction Convention, where crucial information has been gathered about the application of this Convention during the year 2021. However, these figures were perhaps affected by the Covid-19 pandemic as indicated in the Addendum of the document (see paragraphs 157-167, pp. 33-34). Because it refers to a time period in the midst of lockdowns and travel restrictions, it is not unrealistic to say that the figures of the year  2021 should be taken with a grain of salt. For example, the overall return rate was the lowest ever recorded at 39% (it was 45% in 2015). The percentage of the combined sole and multiple reasons for judicial refusals in 2021 was 46% as regards the grave risk exception (it was 25% in 2015). The overall average time taken to reach a final outcome from the receipt of the application by the Central Authority in 2021 was 207 days (it was 164 days in 2015). While statistics are always useful to understand a social phenomenon, one may only wonder why a statistical study was conducted with regard to applications during such an unusual year – apart from the fact that a Special Commission meeting is taking place and needs recent statistics -, as it will unlikely reflect realistic trends (but it can certainly satisfy a curious mind).

Other documents that are also worth noting are the following (both Preliminary Documents and Information Documents):

Child abduction and asylum claims

• Prel. Doc. No 16 of August 2023 – Discussion paper on international child abduction return applications where the taking parent lodged a parallel asylum claim. This document submits the following for discussion and includes a useful annex with decisions rendered in the UK, Canada and USA about this issue (SC stands for Special Commission):

43. The SC may wish to discuss how the issue of delays in processing the asylum claims could be addressed when a return application is presented, and what the solutions could be to avoid such delays ultimately pre-empting a return application under the 1980 Child Abduction Convention, in particular:

a. Bearing in mind the confidentiality rules that apply to asylum proceedings, consideration can be given to whether general information can be shared, where possible and appropriate, (between authorities of the requested State/country of asylum only) for example, regarding timeframes and average duration periods, steps or stages of such proceedings.

b. Where possible and appropriate, consideration can be given to whether asylum claims can be treated and assessed on a priority basis when a return application is presented under the 1980 Child Abduction Convention.

c. Consideration can be given to whether stays of return proceedings can be avoided in order to prevent that allegations are made concerning the settlement of the child in the new environment, and whether an eventual stay can only be considered regarding the implementation and enforcement of the return order. 

44. The SC may wish to discuss to what extent it is possible to have some level of coordination or basic exchange of information between the different spheres of the government and competent authorities that process the different proceedings, when/if allowed by the relevant domestic laws and procedures and respectful of confidentiality and judicial independence principles. Where possible and appropriate, such coordination could:

a. Encompass, for example, that the competent authority responsible for the return application informs the competent authority responsible for the asylum claim of the return application.

b. Include establishing procedures, guidelines or protocols to ensure that both proceedings are dealt with expeditiously.

This is a sensitive topic that deserves attention, as disclosing that a child is present in a specific State can have a great impact on the safety of the person seeking asylum (usually, the parent).

Transfer of jurisdiction under 1996 Child Protection Convention

• Prel. Doc. No 17 of August 2023 – Transfer of jurisdiction under the 1996 Child Protection Convention (Arts 8 and 9). It is submitted the following:

55. The SC may wish to consider adopting the following Conclusions and Recommendations:

a. The SC invited Contracting States, which have not done so already, to consider designating, in accordance with the Emerging Guidance regarding the Development of the IHNJ, one or more members of the judiciary for the purpose of direct judicial communications within the context of the IHNJ.

b. Recalling Article 44 of the 1996 Convention, the SC encouraged Contracting States to designate the authorities to which requests under Articles 8 and 9 are to be addressed, as such a designation could greatly assist in improving the processing times of requests for a transfer of jurisdiction. Depending on domestic policies and requirements relating to the judiciary, Contracting States may choose to designate a member of the IHNJ (if applicable) and / or the Central Authority to receive requests for transfers of jurisdiction.

c. The SC encouraged authorities requesting a transfer of jurisdiction to, in the first place, informally consult their counterparts in the requested State, to ensure that their requests are as complete as possible and that all necessary information and documentation is furnished from outset to meet the requirements of the requested State.

d. Recalling Principle 9 of the Emerging Guidance regarding the Development of the IHNJ,139 the SC encouraged Central Authorities that are involved in a transfer of jurisdiction request and judges engaging in direct judicial communications pertaining to a request for a transfer of jurisdiction to keep one another informed regarding the progress and outcome of such a request. Doing so could further assist in addressing delays and enhance the efficiency of processing requests under Article 8 or 9 of the 1996 Convention.

e. The SC invited the PB to circulate the questionnaire annexed to Prel. Doc. No 17 of August 2023 to all Contracting States to the 1996 Convention, with a view collecting information from judges and Central Authorities regarding requests under Article 8 or 9. The SC further invited the PB to review Prel. Doc. No 17, in the light of the responses from Contracting States, and to submit the revised version of Prel. Doc. No 17 to the Council on General Affairs and Policy (CGAP). The SC noted that it will be for CGAP to determine the next steps in this area (e.g., whether there is a need to form a Working Group consisting of judges and representatives from Central Authorities to identify good practices pertaining to requests for a transfer of jurisdiction under the 1996 Convention). 

The transfer of jurisdiction (as foreseen in those articles) is sometimes little known in some civil law States (in particular, Latin America) so these suggestions are very much welcome.

Placement or provision of care of a child (incl. kafala) under the 1996 Child Protection Convention

• Prel. Doc. No 20 of September 2023 – Placement or provision of care of the child in another Contracting State under the 1996 Child Protection Convention (Art. 33). Interestingly, this document includes as annex Working Document No 10 Proposal from the delegation of Morocco about “The Kafala procedure as established by the law of 10 September 1993 on abandoned children” of 30 September 1996. This Prel. Doc. suggests the following:

64. The SC may want to discuss what clearly falls within the scope of application of Article 33 of the 1996 Convention and what clearly falls out of the scope of application of Article 33. 

65. The SC may want to consider discussing the use of the term “approved” in C&R No 42 of the 2017 SC as it does not appear in Article 33 of the 1996 Convention. 

66. The SC may want to consider whether additional information should be provided in the Country Profile for the 1996 Convention in addition to what appears under Sections 16 to 19 and 36 of the draft Country Profile to assist with the implementation of Article 33.

67. The SC may want to consider developing a Guide, illustrated by examples, to assist Contracting States with the implementation and operation of Article 33. In addition to covering issues relating to the scope of application of Article 33, the Guide could cover the different issues of procedure relating to Article 33 as presented in this Prel. Doc. Such a Guide would raise awareness as to the mandatory nature of Article 33. The SC may wish to recommend that such a Guide be developed by a Working Group. 

68. The SC may want to consider the need to develop a model recommended form for the purpose of requests under Article 33.

The conclusions suggested in this document are very much needed, in particular given that the operation of Article 33 of the 1996 Convention in the Contracting States is far from ideal (the FAMIMOVE project is studying this Article in the context of kafala).

The Guide to Good Practice on the grave risk exception (art. 13(1)(b)) under the Child Abduction Convention – pointing to a mistake in the Guide

• Info. Doc. No 6 of October 2023 – “A mistake waiting to happen: the failure to correct the Guide to Good Practice on Article 13(1)(b)” – Article by Professor Rhona Schuz and Professor Merle Weiner. I fully endorse the position adopted by Professors Schuz and Weiner and have included my views on this issue in a previous post see here and have discussed this at length in my recent book on international child abduction.

The Note of the International Social Service (ISS) where it highlights (perhaps rightfully), among other things, that the Malta Process and the Central Contact Points are underutilized

• Info. Doc. No 1 of February 2023 – ISS – General information & Response to Prel. Doc. No 2 of October 2022

The Note of the International Association of Child Law Researchers showcases the new publication Research Handbook on International Child Abduction: The 1980 Hague Convention (Cheltenham: Edward Elgar Publishing, 2023) – We will be preparing a book review, which will be posted on CoL – stay tuned!

• Info. Doc. No 4 of September 2023 – International Association of Child Law Researchers (IACLaR) – Observer Note

 

Magdalena Pfeiffer (Charles University Prague) and Anatol Dutta (Ludwig-Maximilians-Universität München) will be hosting a workshop on the Proposal for a EU Regulation on Parenthood and the Creation of a European Certificate of Parenthood (discussed here) on 24 November 2023 in Prague.

Further information can be found on the flyer.

Caroline Sophie Rapatz, University of Kiel, has just published her German-language Habilitationsschrift on “European Union Private International Law – Role Model or Hegemony? Delimitations and Effects in Relation to National and International Conflict of Laws” (Das Internationale Privatrecht der EU – Vorbild oder Vormacht? Abgrenzungen und Wirkungen im Verhältnis zum nationalen und völkerrechtlichen Kollisionsrecht, Beiträge zum ausländischen und internationalen Privatrecht 139, Mohr Siebeck 2023 (XXVI, 693 p.)  The book analyses the consequences of the Europeanisation of private international law (PIL) for the traditional regulatory levels of national and international (treaty and convention) conflict-of-laws rules and for the system of conflict-of-laws as a whole. The author has kindly provided has with the following summary of her insights:

Originally, PIL was a national matter: Legal systems provided their own conflict-of-laws rules as a supplement to their substantive private law. In the course of the 20th century, harmonised rules for individual issues or areas of PIL were created through numerous bilateral treaties and multilateral conventions. As specific supplements and narrow exceptions, these could be integrated smoothly into the overall systematic structure of the national PIL concepts. Since the turn of the millennium, however, the unification of PIL in Europe through EU Regulations, directly applicable and replacing the Member States’ national rules, has added a new regulatory level – leading to today’s complex multi-level system. Within a few years, the EU conflict-of-laws Regulations have cut wide swathes into both national and international PIL, with considerable consequences triggered by their implementation. Simultaneously, the EU Regulations are incomplete with regard to several key issues and an overall system at the European level can only be surmised – it is left to the other regulatory levels to provide solutions for the problems caused by these lacunae. On the other hand, an increasingly strong influence of the assertion of European values can be observed.

The monograph examines EU PIL’s expansive claim to application vis-à-vis the traditional regulatory levels, focusing on the direct and indirect effects of the European instruments in the current network of conflict-of-laws rules. What consequences does the Europeanisation of various areas of PIL entail for the national conflict-of-laws concepts of the individual Member States and for the existence and the future of PIL treaties and conventions? An in-depth analysis based on representative examples shows that after only a decade, the initial approach to the European unification of PIL through separate, area-specific Regulations is already causing massive difficulties in practice. In the near future, a fundamental reorientation and reconceptualization of EU PIL will be unavoidable.

The introduction (Part I – Das EU-IPR als neue Regelungsebene [EU Conflict-of-Laws as a New Regulatory Level]) places the objective of the study in the current context of academic discussion and outlines its structure and method. The current state of the interplay of national, treaty/convention and European conflict-of-laws rules is presented and the basic relationships between the different regulatory levels established.

The first step of the in-depth analysis explores the direct effects of EU PIL (Part II – Konturen des EU-Kollisionsrechts [Contours of EU Conflict-of-Laws]). The intention for the European PIL instruments to be applied is outlined by their material scope of application. More or less clearly formulated positive demands for application entail a displacement of the Member States’ conflicts rules previously applicable; negative delimitations limit each EU Regulation’s application with regard to certain issues in favour of national rules, treaties and conventions or other European instruments. Frequently these European gaps are motivated by the endeavour to avoid conflicts – resulting, however, in selective exceptions with regard to problematic aspects.

Due to the primacy of the EU Regulations over the Member States’ PIL, the relationship between these two levels focuses on the scope of the different conflicts rules determined at the European level – crystallized in questions of characterisation with regard to individual legal institutions. On the one hand, under the European Regulations some areas have been expanded considerably compared to the previous understanding in Member States’ national PIL, to the detriment of the latter. On the other hand, politically sensitive issues which in principle fall within the material scope of the European PIL instruments are often deliberately excluded from them. This unilateral European determination of the scope of the EU instruments results in a considerable curtailment of the areas left to the national regulatory level – but at the same time the Member States need to close the gaps of the European PIL Regulations, the extent of which is not always clearly determined.

For the relationship between European Regulations and international agreements, an initial practical challenge lies in the identification of the existing bilateral treaties and multilateral conventions. An exemplary overview illustrates the diversity and variety of the conflict-of-laws rules of international origin competing with the EU rules. A remedy to the current information deficit in this regard is urgently needed; a solution might lie in the creation of a European central information platform. The interplay of European and international conflicts rules is subject to a broad spectrum of different coordination mechanism. Generally, it is characterised by the primacy of pre-existing agreements between Member States and Third States over EU Regulations, which necessitates exceptions of varying scope from the EU conflicts rules.

Additional difficulties arise with regard to intertemporal issues as the application of European and national conflict-of-laws rules overlaps in transitional phases and the coordination of the temporal scope of application of European and international instruments is not always entirely smooth.

On the whole, the material scope of application of European PIL proves to be fragmentary. Shifts and gaps on the EU level force the Member States to react within their remaining ambit, the prima facie unaffected conflict-of-laws rules in treaties and conventions are facing highly complex coordination issues in their interplay with the new European rules. EU PIL self-determines its scope of application, motivated by European interests. This proves dangerous in several respects – first and foremost because it hardly takes into account the repercussions that a scope of Europeanisation “according to the EU’s taste” entails for the formally unaffected other regulatory levels.

A second step of analysis scrutinises the influences of Europeanisation on national and international PIL that go beyond the European Regulations’ direct application (Part III – Wirkungen des EU-Kollisionsrechts [Effects of EU Conflict-of-Laws]). The Member States’ conflicts systems cannot limit their reaction to simple deletions, but constantly need to ensure the compatibility of the remaining national rules with EU PIL and fill the gaps of the latter. In the Member States’ PIL, various approaches can be identified: an upholding or establishment of independent national conflicts rules, an orientation of the national rules towards their new European context, or a renunciation of national rules in favour of an extended or analogous application of the EU Regulations. A closer look at these mechanisms shows that the issues remaining for the national regulatory level can only be solved with a view to the European developments. In addition to this “pull effect” of European PIL, an increasingly strong influence of EU primary law has to be taken into account. The requirements the ECJ is deriving from the fundamental freedoms have an ever-growing impact on the Member States’ national PIL. A primary law duty to recognise (personal) status would lead to a fundamental upheaval of the conception of conflict-of-laws, which could ultimately only be implemented reasonably on the European level. The discussion of controversial questions of legal policy is currently shifting to the establishment of limits for the consequences of the fundamental freedoms for conflict-of-laws rules – which frequently entails the direct confrontation of European and Member State national values. In the meantime, the PIL rules formally remaining at the national level are under the de facto compulsion to adapt to the European circumstances and requirements in all regards and areas: genuine national conflict-of-laws rules are increasingly disappearing.

The impact of Europeanisation on treaty and convention PIL is more subtle, but no less momentous. The unchanged conflicts rules of the international instruments are no longer applied in their original context of national PIL, but now interact with EU PIL. Different approaches led to coordination problems and friction losses; the direct comparison with the modern European rules frequently makes the older treaty and convention PIL appear outdated and disadvantageous. In the case of multilateral conventions, the necessity of a uniform interpretation in all Member States harbours the additional danger of a shift in interpretation caused by European predominance. Concerning the further developments on the international level, the EU holds a considerable power position. In terms of competence, it increasingly replaces its Member States; in terms of content, reforms and new instruments at the international level only have a realistic chance if they are compatible with EU approaches and values. The EU’s participation in multilateral conventions can contribute to a global harmonisation of PIL – but the de facto supremacy of the European positions and the current lack of an effective institutional counterweight are cause for concern. The explosive potential of these imbalances for both legal technique and legal politics should not be overlooked, and more attention granted to the frequently overlooked relationship between the European and international regulatory levels.

In addition, the effects of the Europeanisation of PIL reach beyond conflict of laws – as a look at some exemplary consequences for substantive law and international civil procedure illustrates.

At all levels, EU PIL thus results in extensive “long-distance effects” far beyond the technical scope of its legal instruments. It proves to be a deceptive pretence that the other regulatory levels remain unaffected: in practice, the leeway formally remaining for national, treaty and convention PIL rules is rapidly dwindling. Resistance against the replacement and pulling mechanisms in favour of European approaches and ideas is hardly possible.

These findings lead to the conclusion that the current European approach to unifying PIL by selective legal instruments is not suitable for the future (Part IV – Die Zukunft des EU-Kollisionsrechts [The Future of EU Conflict-of-Laws]). The relationship between the different regulatory levels needs to be redefined with awareness of the far-reaching European influence on all conflict-of-laws areas. In relation to the Member States’ PIL, the EU must either exercise self-restraint and permanently leave clearly delineated areas to the national level, or it must resolutely take the step towards full harmonisation. Building on this decision, the international instruments of PIL can then be re-evaluated and restructured in relation to Third States. While a critical review and streamlining of the Member States’ inventory of treaties and conventions is desirable, their primacy must not be undermined. For the creation of new global instruments, an active European participation is to be hoped for – but not a unilateral EU dominance. Finally, the first decade of practical application of EU conflict-of-laws has brought to light some need for improvement also within the European regulatory level.

In the 21st century, conflict-of-laws cannot be imagined without EU PIL. At the moment, its relationship to national, treaty and convention PIL is at a conceptual crossroads. In the very near future, the failed approach of individual EU Regulations will have to be replaced by a coherent and flexible model of coordination which takes into account the interests and needs of all participants and regulatory levels.

The first edition of the HAIL Advanced Courses in Hong Kong, organised in cooperation with with the Asian Academy of International Law and (AAIL) and the Hong Kong Department of Justice, will take place on 11-15 December 2023 with a focus on “Current Trends on International Commercial and Investment Dispute Settlement“.

For this special programme, the Secretary-General of The Hague Academy of International Law (Professor Jean-Marc Thouvenin) has invited leading academics and practitioners from around the world to Hong Kong, including Diego P. Fernández Arroyo (Science Po, Paris), Franco Ferrari (New York University),  Natalie Morris-Sharma (Attorney-General’s Chambers, Singapore), Matthias Weller (University of Bonn) and Judge Gao Xiaoli (Supreme People’s Court, China), who will deliver five expert lectures on:

Lecture 1: ‘The United Nations Convention on International Settlement Agreements Resulting from Mediation’ (Natalie Morris-Sharma)
Lecture 2: ‘Investor-State Dispute Settlement’ (Diego P. Fernández Arroyo)
Lecture 3: ‘International Commercial Arbitration’ (Franco Ferrari)
Lecture 4: , ‘Settlement of International Disputes before Domestic Courts’ (Matthias Weller)
Lecture 5: ‘Latest Developments of Dispute Resolution in China’ (Judge Gao Xiaoli)

This course is free of charge. However, full attendance is mandatory. Interested candidates are invited to send the completed application form to events@aail.org by 13 October 2023. All applications are subject to review. Succesful applicants will receive email confirmation by October 31. Registered participants will have pre-course access to the HAIL e-learning platform that provides reading materials prepared by the lecturers. A certificate of attendance will be awarded to participant with a perfect attendance record.

For further information provided by the organisers, please refer to the attached HAIL eFlyer and application form.

Wuhan University and Fudan University are co-organising an International Symposium “Legalisation of Foreign Relations in China” on 14 Oct 2023. This symposium will discuss the two most important developments in Chinese law relating to foreign relations, i.e. the Foreign Relations Law and the Foreign State Immunities Law. Some presented articles will be published in the special session of the Chinese Journal of Transnational Law. This symposium will be held in person and online. Everyone is welcome. For more information and the link to attend the symposium online, please follow the event page: https://online.fliphtml5.com/nrdjx/fnwu/

On Tuesday, October 10, 2023, the Hamburg Max Planck Institute will host its 37th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CEST). Diego P. Fernández Arroyo (Sciences Po Law School) will speak, in English, about

Transnational Commercial Arbitration as Private International Law Feature

A significant part of private international law (PrIL) disputes is nowadays solved by means of arbitration. At the same time, the range of arbitrable issues has been growing up for decades. Consequently, arbitration is no longer ignored by PrIL scholars, who, nevertheless, hesitate about how to deal with it. Many of them are only attracted by the fact that arbitral tribunals are often confronted to ordinary problems of determining the law applicable to a particular issue. Through the lens of this classical-PrIL approach, they identify sometimes conflict-of-law rules in arbitration instruments. Without denying any interest to this option, we will try to provide a more comprehensive view, starting by revising the very respective notion of arbitration and PrIL as well as their interaction, and concluding to challenge the excessive role played by the seat of the arbitration.

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

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

A book edited by Anselmo Reyes, Wilson Lui, and Kazuaki Nishioka on Choice of Law and Recognition in Asian Family Law has just been published in the Hart Studies in Private International Law -Asia.

The blurb read as follows:

This thematic volume in the series Studies in Private International Law – Asia outlines the general choice of law and recognition rules relating to family matters of 15 Asian jurisdictions: Mainland China, Hong Kong, Taiwan, Japan, South Korea, Singapore, Malaysia, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Thailand, Sri Lanka and India. The book examines pressing questions and proposes ways in which their systems may be reformed. A concluding chapter considers the extent to which Asian cross-border family law systems can and should be harmonised.

The book provides a comprehensive analysis of cross-border family law challenges, including child surrogacy, child abduction, the recognition of same-sex unions, the recovery of maintenance, and the regulation of intercountry adoption. These are among the matters now testing Asian institutions of private international law and acting as forces for their modernisation.

With contributions by leading Asian private international law experts, the book proposes necessary reforms for each of the jurisdictions analysed as well as for Asia as a whole.