Conflictoflaws

A book edited by Kazuaki Nishioka on Treatment of Foreign Law in Asia  has just been published in the Hart Studies in Private International Law -Asia.

The blurb read as follows:

How do Asian courts ascertain, interpret, and apply a foreign law as the law governing the merits of the case? What should judges do if parties do not raise or disagree on the content of foreign law? This thematic volume in the Studies in Private International Law – Asia series analyses the treatment of foreign law before judicial authorities, that is, how the courts of Asian states deal with the proof of foreign law in court litigation involving cross-border elements.

The individual chapters cover 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 Introduction and Conclusion examine similarities and differences in the approaches taken by the 15 Asian states with a view to assessing the extent to which those approaches are consistent or different from each other. The book also puts forward suggestions for harmonising differing approaches, especially between Asian common law and civil law states.

The book is a one-stop reference guide on the treatment of foreign law in Asia and will be indispensable to judges, practitioners, and scholars not just in Asia, but worldwide.

Jürgen Samtleben just published a collection of his work on the PIL of Latin America; he kindly shared the following announcement with us:

Jürgen Samtleben has authored numerous articles over the years on private international law and international civil procedure in Latin America. These contributions have now been updated and systematically organized into a single volume, thereby offering a unique overview of the conflict of laws in Latin American countries. The collection of articles in German, Spanish and English is supplemented by a comprehensive volume containing the relevant statutory materials in their original language as well as in German translation.

The indices of volume I (‘Rechtsordnungen’) and volume II (‘Gesetzestexte’) can be found here and here. More information is available here.

A new conflict of laws article was just published today on the African Journal of International and Comparative Law. It is titled: CSA Okoli, A Yekini & P Oamen, “The Igiogbe Custom as a Mandatory Norm in Conflict of Laws: An Exploration of Nigerian Appellate Court Decisions.”

The abstract reads as follows:

Under the Igiogbe custom of the Bini Kingdom of Edo State Nigeria, the eldest surviving son exclusively inherits the ancestral home of his deceased father. This custom is a mandatory norm in conflict of laws. Litigation on the custom has been described as a matter of life and death. There is a widely shared view among academic writers, practitioners, and judges that this customary law is absolute. Contrary to this popular view, this work argues that the Igiogbe custom can be displaced by statute and other customary or religious laws. To substantiate this position, this article examines all the reported appellate court decisions on the Igiogbe custom and other connected principles. It is often taken for granted that every Bini man is subject to customary law, thereby leading to the overriding application of the Igiogbe custom. Recent developments in case law suggest otherwise. There is a conflict of personal law question that is often ignored in most litigation concerning the Igiogbe. Careful consideration of this question can potentially lead to the application of other systems of succession law (statutory, religious, and other customary laws) other than the Igiogbe custom. Besides, these conflict of laws techniques and constitutional human rights norms can be used to strike the appropriate balance between competing interests and reasonable legitimate expectations of the deceased and their heirs.

 

Originally posted in the NGPIL website

The Nigeria Group on Private International Law “(NGPIL”) invites submissions for the annual NGPIL Conflict of Laws’ Competition. The winner will be awarded for the best essay on any aspect of Nigerian conflict of laws. Entries will be accepted from the following: an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practising and residing in Nigeria. The essay should be unpublished at the time of submission. Submitted essays should be in the English language. Submitted essays should also be within five to eight thousand words. Competitors may be citizens of any nation, age or gender but must be an undergraduate and/or postgraduate scholar studying in Nigeria, or any lawyer below five years post-call experience practising and residing in Nigeria.

The first prize is  150,000 Naira (NGN), and the winner of the competition will be encouraged to publish the paper in any high-quality peer reviewed journal on private international law (conflict of laws). The second prize is  90,000 Naira (NGN), and third prize is  60,000 Naira (NGN). The prize is sponsored by and will be awarded by NGPIL.

Submissions to the Prize Committee must be received no later than January 15, 2024. Entries should be submitted by email in Word or pdf format. The winner will be announced no later than 2 months after the deadline. Decisions of the NGPIL on the winning essay and on any conditions relating to this prize are final. Submissions and any queries should be addressed by email to ngpilaw@gmail.com. All submissions will be acknowledged by e-mail.

Previous Winners

Oluwabusola Fagbemi (Winner for the 2022/2023 session)

Solomon Adegboyo (Winner for the 2021/2022 session)

 

The question of the accession (or reluctance to accede) of Muslim countries to the 1980 HCCH Convention has attracted the interest of scholars from Muslim countries and abroad. Scholars who have addressed this issue have come to different (sometimes contradictory) conclusions, especially when it comes to the influence of classical Islamic rules and principles on the attitudes and policies of Muslim states. Unfortunately, it is not uncommon that the available studies on this subject do not take into account the actual judicial practice of Muslim jurisdictions and focus more on the (theoretical) compatibility (or not) of Islamic rules and principles underlying the 1980 HCCH Convention.

 

This post briefly presents some decisions dealing with the issue of cross-border child abduction under the 1980 HCCH Convention in a Muslim state, Morocco, but without going into too much into details or assessment, as this deserves to be done properly in a dedicated article. Morocco became a member state of the HCCH in 1993 and a party to the 1980 HCCH Convention in 2010. It is often presented in literature as the first Islamic country to ratify the 1980 HCCH Convention. The Convention effectively entered into force in Morocco on March 1, 2012, with the publication of the text of the Convention in the Official Gazette (No. 6026). Since then, and for more than a decade, Moroccan courts have been dealing with cross-border abduction cases under the Convention. To my knowledge, there are so far seven Supreme Court decisions on the application of the 1980 HCCH Convention. Surprisingly, these cases have not been included in the database maintained by the HCCH (INCADAT), nor (apparently) have they been reported or commented on elsewhere, although they provide extremely valuable material for the study of the operation of the 1980 HCCH Convention in an Islamic context.

 

The seven cases are summarized in the following tables:

 

Case 1 Ruling No. 283 of 2 June 2015 (Case No. 443/2/1/2014) Taking Parent Mother (M), Moroccan national Left behind Parent Father (F), Moroccan national, domiciled in France Child(ren) 1 (son) Moroccan national born in France Age (at the time of the return order application as deduced from the facts) 4 Return requested to France Cited Articles Art. 3, Art. 12, Art. 13 Legal Issue(s) Whether there was a wrongful removal of the child and whether the 1980 HCCH Convention should apply Ruling (loose summary) M and F had their habitual residence in France with their child before M returned to Morocco with the child. According to Frech law (Art. 371-1 and 2 Civil Code), which is the law of the child’s place of habitual residence prior to its removal to Morocco, custody (hadhana) is a right jointly shared by the parents during their marriage

Morocco has ratified the 1980 HCCH Convention, thus its application should take precedence over national law upon its publication. The court of the appealed decision which failed to apply the HCCH Convention violated the Constitution and the provisions of the Convention Outcome Appeal admitted. The appealed decision rejecting the return of the child overturned

 

Case 2 Ruling No. 90 of 26 January 2016 (Case No. 286/2/1/2015) Taking Parent Father (F), Moroccan national, domiciled in Morocco Left behind Parent Mother (M), German national, domiciled in Germany Child(ren) 4 (3 sons and 1 daughter). All Moroccan nationals Age

(At the time of the return order application as deduced from the facts) 13, 11, 9, and 6 Return requested to Germany Cited Articles Art. 2, art. 3 Legal Issue(s) Whether there was child abduction in the meaning of the 1980 HCCH Convention Ruling (loose summary) The children’s habitual residence is in Morocco (as they have been living there with their father since M decided to return to Germany). Therefore, the conditions for the application of the Convention are not met. Outcome Appeal admitted. The appealed decision ordering the return of the children overturned

 

Case 3 Ruling No. 196 of 27 March 2018 (Case No. 660/2/1/2016) Taking Parent Mother (M), Muslim Moroccan Left behind Parent Father (F), non-Muslim Italian Child(ren) 2 (sons) born out of wedlock in Italy Age (at the time of the return order application as deduced from the facts) One has 7, the age of the other is not unclear due to confusing details in the judgment Return requested to Italy Cited Articles Art. 3, Art. 12, Art. 14 Legal Issue(s) Whether the application of the 1980 HCCH Convention depends on the existent of a legitimate filiation between the children and their father Ruling (loose summary) It was established that the two children had been removed from their habitual residence in Italy to Morocco in violation of the provisions of the 1980 HCCH Convention, which does not require the existence of legitimate bond (filiation) between the parents and the child. Outcome Appeal rejected. The appealed decision ordering the return of the children affirmed

 

Case 4 Ruling No. 303 of 28 July 2020 (Case No. 629/2/2/2018) Taking Parent Mother (M), Moroccan Left behind Parent Father (F), Moroccan, domiciled in Belgium Child(ren) 1 (daughter) Age (at the time of the return order application as deduced from the facts) unclear Return requested to Belgium Cited Articles Art. 3, Art. 5, Art. 16 Legal Issue(s) Whether the mother’s action for custody can be admitted despite the ongoing proceedings for the return of the child return under the 1980 HCCH Convention Ruling (loose summary) By rendering a decision on the custody despite the ongoing proceedings to order the return of the child, the court of the appealed decision violated the provisions of the Convention Outcome Appeal admitted. The appealed decision conferring custody to the mother overturned

 

Case 5 Ruling No. 38 of 2 February 2021 (No. 1226/2/1/2019) Taking Parent Father (seems to be Moroccan) Left behind Parent Mother (seems to be Canadian) Child(ren) 2 (daughters) Age (at the time of the return order application as deduced from the facts) 11, 5 Return requested to Canada (Ontario) Cited Articles Art. 13(4) Legal Issue Whether the opinion of the children who refused to return with their mother should be heard and taken into account Ruling (loose summary) The court of the appealed decision which disregarded the father’s arguments according to which his daughters refuse to return to Canada and that they suffer from their mother’s mistreatment and refused to accept his request to initiate an investigation in order to find the truth violated the provisions the Convention Outcome Appeal admitted. The appealed decision ordering the return of the children overturned with remand

 

Case 6 Case 6: Ruling No. 297 of 8 June 2021 (Case No. 61/2/1/2020) Taking Parent Mother (M) (nationality unclear, but seems to be Moroccan) Left behind Parent Father (F) (nationality unclear, but seems to be Moroccan) domiciled in Belgium Child(ren) 1 (son). The child in this case had a brother Age (at the time of the return order application as deduced from the facts) 8 Return requested to Belgium Cited Articles Art. 3, Art. 17 Legal Issue Whether the judgment conferring custody to the taking parent in the State where the child was wrongfully retained could justify the refusal to order the return of the child to the State of its habitual residence Ruling (loose summary) The judgment rendered in the State where the child was retained attributing custody of the child should not be taken into account. The court of the appealed decision which considered that the M’s refusal to return the child constituted a wrongful retention within the meaning of article 3, overturned the first instance decision of the CFI and ordered the return of the child to Belgium, exercised its discretion in assessing the facts and correctly took into account the best interests of the child Outcome Appeal dismissed. The appealed decision ordering the return of the child affirmed

 

Case 7 Ruling No. 421 of 26 July 2022 (Case No. 200/2/1/2019) Taking Parent Father (F) (nationality unclear but seems to be Moroccan) Left behind Parent Mother (M) (nationality unclear but seems to be Moroccan) domiciled in Belgium Child(ren) 3 (1 daughter and 2 sons) Age (at the time of the return order application as deduced from the facts) 10 and 8 for the sons, 3 for the daughter Return requested to Belgium Cited Articles Art. 13 [(1)(b)] Legal Issue Whether there was grave risk that could justify the refusal to return the children to their place of habitual residence Ruling (loose summary) The evidence and testimony presented to the court show that the mother, who was prosecuted for adultery, verbally and physically abused the children and lacked moral integrity and rectitude (as she used to invite a stranger into the home and cheated on the father in front of the children); therefore, returning the children to their mother would expose the children to grave risks. Outcome Appeal admitted. The appealed decision which ordered the return of the children overturned

 

 

 

 

It is a truth universally acknowledged that a significant portion of international commerce is organized around instruments and structures that do not emanate from national states and laws but from private entities. Traditionally, most legal scholars addressing this phenomenon could be sorted into one of two camps: those who want to limit the notion of ‘law’ to the state and see instances of private ordering primarily as social, rather than legal phenomena; and those who consider national law already as a abstract concept with limited and decreasing importance for the reality of international business. Torsten Kindt belongs to neither of those two camps. With his recently published book, based on his doctoral thesis, he attempts to fill the gap left between the two seemingly irreconcilable positions, with a special focus on the transnational dimension of private ordering.

Kindt develops his argument in two steps. In the first part of the book (chapters 1 and 2), he takes a closer look at three instruments of particular importance for the financial sector that have largely been developed by private actors and independently from state law: letters of credit, syndicated loans, and credit derivatives. He focuses on the structural similarities between those instruments in order to demonstrate, in particular, the surprising degree to which they still incorporate and react to state law.

In the second part of the book (chapters 3 to 6), Kindt then introduces the concept of the ‘transnational contract’ – a contract corresponding to, and executed in accordance with, an internationally accepted model document negotiated and supervised by members of the relevant sector or industry – in order to discuss the ways in which existing state law can, in turn, incorporate the reality of the previously discussed instruments. For each area of law discussed – choice of law, contract law, and international civil procedure – Kindt identifies a variety of avenues for such incorporation, including, e.g. a (very) generous approach to choice-of-law and choice-of-court clauses that are linked or correspond to a model document.

Listing all the other intersections between transnational contracts and state law discussed by Kindt would exceed the limits of this post. Fortunately, though, the book itself is available open access, offering to the reader not only a wealth of insights into the private ordering of international finance but also a spirited and stimulating discussion of its present and potential future incorporation into national and international private law. It is highly recommended to anyone working on international business law, legal pluralism, and anything in between.

 

The international seminar “Vulnerability: a Matter of Perspective(s)”, is scheduled to be held online on Friday, 29 September 2023, starting at 10 a.m. CET on Microsoft Teams.

The seminar is centered around Private International Law (PIL). Specifically, various sessions of the seminar will delve into the diverse and interdisciplinary perspectives of PIL in the context of ‘Vulnerability.’ Many presentations will scrutinize the role of PIL, as well as international conventions and treaties, in relation to vulnerable communities, territories, and individuals. Additionally, the seminar will emphasize the importance of PIL in devising viable solutions. These solutions aim to ensure that present and future generations can remain in their homelands and achieve sustainable human development. This encompasses a broad range of societal aspects, including food, housing, artificial intelligence, and finance.

The teams link to access the seminar is: https://tinyurl.com/25knxwa8

The conference is a collaborative effort between EuriConv (www.euriconv.eu) and Omninext (www.omninext.it).

The seminar’s format comprises three sessions:

English session at 10 a.m. CET
Italian session at 4 p.m. CET
Spanish and Portuguese session at 6 p.m. CET

Each session will be coordinated by Ivan Allegranti, Ph.D. Candidate in Civil Law at the University of Camerino, while the coordination of the entire seminar is curated by Allegranti himself together with Jorge Gracia Ibáñez and Míriam Villamil Balestro. The panels will feature insights from distinguished academics and researchers across Italy, Germany, Spain, Argentina, India, Portugal, and Brazil.

Introductory Context of the Seminar: The concept of ‘Vulnerability’ has recently gained paramount importance across various disciplines – from philosophy, politics, and law to the socio-economic domain. Today, this term encompasses broader themes like environmental conservation, formulation of policies at various levels, and an array of nuanced meanings when linked with individual experiences. It provokes profound deliberations on human interactions, societal unity, and sustainable advancement. As researchers, understanding and articulating this multifaceted notion becomes essential.

The scientific committee includes: Patricia Branco, Lucia Briamonte, Piermichele La Sala, Mariana N. Sánchez, Gerald G. Sander, and Antonio Sàrcina.

The technical secretariat of the event is composed by: Grazia Sàrcina and Ilaria Tonti.

Subsequent to the seminar, the proceedings will be published in a collective work which will be released in the weeks following the event.

Furthermore, this seminar will set the stage for EuriConv’s upcoming initiative on Disaster Risk Management and the Right to Remain in Your Own Homeland, laying the groundwork for a series of future scientific initiatives.

For general information or inquiries about the seminar please contact EuriConv at: connect@euriconv.eu.

The Permanent Bureau is pleased to announce that a colloquium on Central Bank Digital Currencies (CBDCs), titled “CODIFI Edition 2023 – CBDCs”, will be held online on Thursday 5 October 2023, following the mandate of the Council on General Affairs and Policy (CGAP) at its 2023 meeting (C&D No 17).

CODIFI Edition 2023 – CBDCs will cover selected topics related to the HCCH’s CBDCs Project, established by CGAP in March 2023 with the mandate to study the private international law implications of CBDCs. The colloquium will feature a series of pre-recorded video discussions, led by subject-matter experts of the CBDCs Project and other specialists of academia, government, and industry. Live discussion sessions will also take place on the same day to summarise the proceedings and provide more insights and some ideas on the way forward.

The colloquium will be streamed on the HCCH LinkedIn page from 9.30 a.m. (CEST) on Thursday 5 October 2023. The opening session, starting at 9.30 a.m. (CEST), will be followed by the release of the pre-recorded video discussions. In addition to being streamed on the HCCH LinkedIn page throughout the morning, the pre-recorded video discussions will also be available for on-demand viewing on the HCCH website and the HCCH YouTube channel. The live panel and the live interview will be streamed on the HCCH LinkedIn page from 12.30 p.m. and 2.30 p.m. (CEST), respectively.

To register for updates on the colloquium, please indicate your interest here.

For more information, please consult the HCCH’s website and the colloquium’s draft agenda.

 

Description

This important book systematically analyses the private international law issues regarding private antitrust damages claims which arise out of transnational competition law infringements. It identifies those problems that need to be considered by injured parties, defendants, judges and policy-makers when dealing with cross-border private antitrust damages claims in a global context. It considers the post-Brexit landscape and the implications in cross border private proceedings before the English courts and suggests how the legal landscape should be developed. It also sets out how private international law techniques could play an increasingly important role in private antitrust enforcement.

Comprehensive and rigorous, this is required reading for scholars of both competition litigation and private international law.

Reposted from Thought Leaders 4 Fire

Commercial Disputes and anti-suit relief in Anglophone Africa – a panel discussion
06 Oct 2023

Location: 12:00-1:00 pm UK Time Virtual Event (Zoom)
Members: FREE to attend – Book by 06 Oct
Non Members: Register above as a member and attend for FREE – Book by 06 Oct

Highlights

The anti-suit injunction or interdict is a powerful tool in the court’s weaponry when dealing with both domestic and cross-border commercial disputes. Courts in Anglophone Africa, and especially those in Nigeria and the Republic of South Africa, have recently given guidance to litigants on the requirements which have to be satisfied in order to obtain anti-suit relief.

In this panel discussion, chaired by Andrew Moran KC, the various speakers will discuss the jurisprudence of the Nigerian and South African courts, with a view to identifying what litigants and those who advise them will need to keep in mind when applying for anti-suit relief.

Andrew Moran KC and Anthony Kennedy are the authors of Commercial Litigation in Anglophone Africa (2nd Ed Juta), an authoritative work which details the broad framework of the private international law rules in operation in each of the sixteen Anglophone jurisdictions considered; Botswana, Gambia, Ghana, Eswatini, Kenya, Lesotho, Liberia, Malawi, Namibia, Nigeria, Sierra Leone, South Africa,  Tanzania, Uganda, Zambia and Zimbabwe.

The second edition, published in March 2023, provides a refined explanation of the law to be applied as it relates to, (i) civil jurisdiction over commercial disputes involving a foreign element; (ii) the enforcement of foreign judgments; and (iii) the availability and nature of the interim remedies in each of the sixteen jurisdictions addressed.

The authors also provide coverage of the potential availability of an anti-suit injunction (in common law jurisdictions) or anti-suit interdict (in Roman-Dutch law jurisdictions). The second edition details the further entrenchment of the principle of forum non conveniens into the civil law of jurisdiction in the Republic of South Africa.  The text is available to order from Juta and Amazon.

 

Written by Ugljesa Grusic, Associate Professor at University College London, Faculty of Laws

 

Jacco Bomhoff (LSE), Ugljesa Grusic and Manuel Penades (KCL) are pleased to announce that the LSE Law School will host a symposium to celebrate the scholarly work of emeritus professor Trevor C Hartley.

Trevor has long been one of the world’s most distinguished scholars of Conflict of Laws (Private International Law), continuing a tradition started at the LSE by Professor Otto Kahn-Freund. For many decades, he has been at the forefront of developments in the field. As a prominent critic, notably of the Court of Justice’s efforts to unify European private international law. But also as an active participant in projects of legislation and modernization. And as author of authoritative treatises and clear and accessible student textbooks.

His publications include the Hartley & Dogauchi Explanatory Report on the 2005 Hague Convention on Choice of Court Agreements, Hague lectures on ‘Mandatory Rules in International Contracts: the Common Law Approach’ and ‘The Modern Approach to Private International Law – International Litigation and Transactions from a Common-Law Perspective’, student textbook on International Commercial Litigation (CUP, now in its third edition from 2020), and monographs on Civil Jurisdiction and Judgments in Europe (OUP, now in its second edition from 2023) and Choice-of-Court Agreements under the European and International Instruments (OUP, 2013).

This Symposium will bring together colleagues and friends, from the UK and abroad, to celebrate and discuss Trevor’s many contributions. It is organised around some of the main themes of Trevor’s private international law scholarship.

The first panel will focus on global and comparative private international law. Paul Beaumont, Alex Mills, Veronica Ruiz Abou-Nigm, and Koji Takahashi (chair Roxana Banu) will discuss the 2019 and 2005 Hague Conventions, common law and civil law traditions in private international law, and the role of private international law in protecting global commons.

The second panel will examine contemporary English conflict of laws, through the lens of Trevor’s famous ICLQ article on the systematic dismantling of the common law of conflict of laws. Eva Lein, Andrew Dickinson, Jonathan Harris, and Adrian Briggs (chair Pippa Rogerson) will discuss the ‘Italian torpedo’, anti-suit injunctions, forum non conveniens, and the residual influence (if any) of the Brussels I Regulation in English law.

The third panel will focus on dispute resolution. Alexander Layton, Richard Fentiman, Jan Kleinheisterkamp, and Linda Silberman (chair Yvonne Baatz) will explore the reflexive effect of EU private international law and dispute resolution clauses, the interplay between EU (private international) law and arbitration, and the comparison between the 2005 Hague Convention and the New York Convention.

In addition, Lawrence Collins, Hans van Loon, Damian Chalmers, and Carol Harlow will give keynote speeches, reflecting on Trevor’s influence on private international law, the work of the Hague Conference, EU law, and LSE.

This is an in-person event. It is open to all, subject to capacity, but registration is required. Please follow this link for more information about the event, including programme and registration.

Jacco Bomhoff (LSE), Ugljesa Grusic and Manuel Penades (KCL) are pleased to announce that the LSE Law School will host a symposium to celebrate the scholarly work of emeritus professor Trevor C Hartley.

Trevor has long been one of the world’s most distinguished scholars of Conflict of Laws (Private International Law), continuing a tradition started at the LSE by Professor Otto Kahn-Freund. For many decades, he has been at the forefront of developments in the field. As a prominent critic, notably of the Court of Justice’s efforts to unify European private international law. But also as an active participant in projects of legislation and modernization. And as author of authoritative treatises and clear and accessible student textbooks.

His publications include the Hartley & Dogauchi Explanatory Report on the 2005 Hague Convention on Choice of Court Agreements, Hague lectures on ‘Mandatory Rules in International Contracts: the Common Law Approach’ and ‘The Modern Approach to Private International Law – International Litigation and Transactions from a Common-Law Perspective’, student textbook on International Commercial Litigation (CUP, now in its third edition from 2020), and monographs on Civil Jurisdiction and Judgments in Europe (OUP, now in its second edition from 2023) and Choice-of-Court Agreements under the European and International Instruments (OUP, 2013).

This Symposium will bring together colleagues and friends, from the UK and abroad, to celebrate and discuss Trevor’s many contributions. It is organised around some of the main themes of Trevor’s private international law scholarship.

The first panel will focus on global and comparative private international law. Paul Beaumont, Alex Mills, Veronica Ruiz Abou-Nigm, and Koji Takahashi (chair Roxana Banu) will discuss the 2019 and 2005 Hague Conventions, common law and civil law traditions in private international law, and the role of private international law in protecting global commons.

The second panel will examine contemporary English conflict of laws, through the lens of Trevor’s famous ICLQ article on the systematic dismantling of the common law of conflict of laws. Eva Lein, Andrew Dickinson, Jonathan Harris, and Adrian Briggs (chair Pippa Rogerson) will discuss the ‘Italian torpedo’, anti-suit injunctions, forum non conveniens, and the residual influence (if any) of the Brussels I Regulation in English law.

The third panel will focus on dispute resolution. Alexander Layton, Richard Fentiman, Jan Kleinheisterkamp, and Linda Silberman (chair Yvonne Baatz) will explore the reflexive effect of EU private international law and dispute resolution clauses, the interplay between EU (private international) law and arbitration, and the comparison between the 2005 Hague Convention and the New York Convention.

In addition, Lawrence Collins, Hans van Loon, Damian Chalmers, and Carol Harlow will give keynote speeches, reflecting on Trevor’s influence on private international law, the work of the Hague Conference, EU law, and LSE.

This is an in-person event. It is open to all, subject to capacity, but registration is required. Please follow this link for more information about the event, including programme and registration.

Written by NIE Yuxin, Wuhan University Institute of International Law

 

1. Background

China’s Civil Procedure Law was enacted in April 1991 by the Fourth Session of the Seventh National People’s Congress. Since then, it had undergone four revisions in 2007, 2012, 2017, and 2021. However, no substantial revisions were made to the provisions concerning foreign-related civil litigation. The latest amendments to the Civil Procedure Law in 2023, referred to as the new CPL, involve 26 amendments, including 14 modified articles and 15 new additions. Notably, 19 changes deal with the special provisions on cross-border procedures.

2. Jurisdiction

2.1 Jurisdiction grounds
Special jurisdiction: The new CPL expands the scope of jurisdiction by introducing additional connecting factors and fall-back provisions. The new law widens the category of disputes previously covered from “contractual disputes or other property rights disputes” to “litigation other than disputes involving personal relationships” (Art. 276, para. 1). Compared to the previous CPL, this expansion encompasses non-property rights disputes involving personal relationships, such as foreign-related marriage, adoption, maintenance, and guardianship disputes, thereby addressing the previous omission of non-property rights disputes. Further, the new CPL introduces “the place of torts committed within the territory of China” as a new connecting factor for jurisdiction. Additionally, a new fall-back provision of “other appropriate connections” is included, granting Chinese courts greater flexibility over foreign-related cases. Article 276 stipulates that the Chinese court may have jurisdiction if the dispute is of other appropriate connections with China (Art. 276, para. 2).

It is worth noting that the “other appropriate connections” provision has a certain degree of openness. What constitutes an appropriate connection is ambiguous. Previously, the Supreme People’s Court established judicial guidance on this issue regarding standard-essential patents cases. For instance, in Godo Kaisha IP Bridge 1 v. Huawei, the Supreme People’s Court found an appropriate connection between the city of Dongguan and the dispute, citing evidence that Huawei Terminal Co., Ltd. – being primarily responsible for manufacturing and selling Huawei’s smart terminal products – was domiciled there. Dongguan would also be a key location for implementing the essential patents at issue following any agreement between the parties. On this basis, the Supreme People’s Court deemed Dongguan to have an appropriate connection to the case. By incorporating the principle of appropriate connection into the new CPL, its application scope expands beyond intellectual property cases to other foreign-related cases. However, determining the standards for appropriate connection in practice will undoubtedly pose a significant challenge going forward.
To some extent, this provision allows Chinese courts the flexibility to exercise jurisdiction in appropriate circumstances, providing a channel for Chinese enterprises and citizens to seek remedies from domestic courts when their interests are harmed abroad. In practice, courts should take caution when assessing jurisdiction based on the appropriate connection. From a systematic perspective, the appropriate connection should bear some resemblance to the jurisdictional connecting factors listed in this article, such as the place of contract, place of performance, location of the subject matter of the litigation, location of attachable assets, place of the tort, and the domicile of the defendant’s representative. In addition, China could consider deriving insights from the indirect jurisdiction grounds established in the Hague Judgement Convention 2019. These grounds represent a consensus and are accepted by the majority of countries. If China were to refer to the Convention’s standards when considering appropriate connection, it would gain greater predictability and reciprocity. This could facilitate the recognition and enforcement of Chinese judgments abroad, especially among Convention contracting states.

Choice of court agreement: Prior to this amendment, except for disputes related to foreign maritime matters, choice of court agreements designating Chinese court were subject to the prerequisite that the case has a practical connection with China. While China established two international commercial courts to specially hear international commercial cases, the cases they can accept are still limited by the requirement of actual connection under the legal framework of previous CPL. This overly conservative jurisdiction regime hampered the international commercial courts from taking jurisdiction over offshore cases without connection to China.
The newly introduced Article 277 of the CPL breaks this constraint. It allows the parties to choose Chinese courts by writing even if Chinese courts do not have any connection with the dispute. This legislative change provides a clear legal basis for Chinese courts to exercise jurisdiction over offshore cases, expands both the types of cases they can accept and their geographical reach. Moving forward, this change will benefit Chinese courts by enabling them to actively exercise jurisdiction and provide judicial support for the Belt and Road Initiative, positioning China as a preferred location for international litigation. Ultimately, it will enhance the international competitiveness and influence of Chinese judiciary.
However, the amendment does not specify whether parties can choose foreign courts without any connections with the dispute. To align with international common practice and promote reciprocity, it is recommended to clearly state that parties have the freedom to choose any courts, Chinese or foreign, to hear cross-border disputes even if the courts lack practical connections with the dispute.
The amendment does not address some matters that remain unclear in Chinese law. For example, which law applies to determine the substantive validity of jurisdiction agreements? In practice, courts may apply either the law of the forum or the law governing the main contract to this matter, leading to uncertainty.

Responding jurisdiction: Article 278 of the new CPL introduces the rule of responding jurisdiction. It stipulates that if a party does not raise an objection to the jurisdiction and participates in the proceedings by submitting a defence or filing a counterclaim, the Chinese court shall be deemed to have jurisdiction (Art. 278). Further, in contrast to the previous draft amendment, the new CPL expands the scope of jurisdiction by appearance from the defendant to all parties involved.

Exclusive jurisdiction: Under the previous CPL, exclusive jurisdiction covered l disputes related to immovable property, port operations, succession, and contracts involving Sino-foreign joint ventures, Sino-foreign cooperative business enterprises, and Sino-foreign cooperative exploration and development of natural resources. The new CPL adds two additional categories of cases under exclusive jurisdiction: disputes arising from the establishment, dissolution, liquidation of legal persons or other organizations established within China’s territory, and disputes related to the validity of intellectual property rights granted through examination within China’s territory (Art. 279). These amendments are consistent with international common practice.

2.2 Conflict of jurisdiction, Lis pendens and Forum Non Conveniens
Parallel proceedings: The new CPL formally adopts the rule for parallel proceedings. First of all, the law accepts parallel proceedings. Article 280 explicitly provides that: “For the same dispute arises between the parties involved, if one party initiates a lawsuit in a foreign court and the other party initiates a lawsuit in a Chinese court, or if one party files lawsuits in both a foreign court and a Chinese court, the Chinese court may accept the case if it has jurisdiction according to this law.” However, if the parties have entered into an exclusive jurisdiction agreement selecting a foreign court, provided it does not violate the provisions of the CPL regarding exclusive jurisdiction and does not involve China’s sovereignty, security, or public interests, the Chinese court may decide not to accept the case; if the case has already been accepted, the court shall dismiss the lawsuit (Art. 280). This amendment reflects the respect for the parties’ autonomy in cases where it does not violate the principle of exclusive jurisdiction and demonstrates China’s active implementation of international judicial cooperation through legislation.

First-in-time rule: Article 281 of the new CPL adopts the first-in-time rule to address jurisdictional conflicts arising from international parallel litigation. After a Chinese court accepts a case under Article 280, Article 281 then permits the Chinese court to suspend its proceedings if a party applies in writing on the grounds that proceedings involving the same parties and subject matter have already commenced earlier before a foreign court. However, if the first-seized court fails to exercise jurisdiction, the Chinese court may resume the proceedings to protect the parties’ legitimate right to litigation. According to this provision, the parties have significant discretion in requesting the suspension or resumption of litigation.
The first-in-time rule includes two exceptions: (1) when the parties agree to the jurisdiction of the Chinese courts, or the dispute falls under the exclusive jurisdiction of the Chinese courts, and (2) when it is clearly more convenient for the case to be heard by the Chinese courts. The issue here is that it is not clear whether the choice of Chinese courts by the parties includes non-exclusive selection. In addition, the determination of whether the Chinese courts are clearly more convenient requires the court to exercise discretionary judgment, which introduces uncertainty.

Forum Non Conveniens: The 2023 amendments formally accept forum non conveniens and relaxed the conditions for its application in compared to previous judicial interpretation. In order to apply forum non conveniens the defendant must raise an objection to jurisdiction, and the court will not assess forum non conveniens by its own motion. Article 282 listed five factors for the court to exercise discretion: (1) The underlying facts of the dispute did not occur within China’s territory, and it is significantly inconvenient for the Chinese court to hear the case and for the parties to participate in the proceedings; (2) There is no agreement between the parties to submit to the jurisdiction of the Chinese court; (3) The case does not fall under the exclusive jurisdiction of the Chinese court; (4) The case does not involve China’s sovereignty, security, or public interests; (5) It is more convenient for a foreign court to hear the case. The standard to apply forum non conveniens is thus more relaxed than China’s previous practice. The difference between the CPL 2023 and the Judicial Interpretation of CPL 2022 can be found in this table.

 

Article 530 of the Judicial Interpretation of CPL 2022 Article 282(1) of the CPL 2023 When a foreign-related civil case meets the following conditions simultaneously, the Chinese court may render a ruling to dismiss the plaintiff’s lawsuit and inform them to file a lawsuit with a more convenient foreign court: For foreign-related civil case accepted by the Chinese court, where the defendant raises an objection to jurisdiction, and simultaneously meets the following conditions, the court may render a ruling to dismiss the lawsuit and inform the plaintiff to file a lawsuit with a more convenient foreign court: (1) The underlying facts of the dispute did not occur within China’s territory, and it is significantly inconvenient for the Chinese court to hear the case and for the parties to participate in the proceedings; (“added”) (1) The defendant requests that a more convenient foreign court has jurisdiction over the case or raises an objection to jurisdiction; “deleted” (2) There is no agreement between the parties to submit to the jurisdiction of the Chinese court; (2) There is no agreement between the parties to submit to the jurisdiction of the Chinese court; (3) The case does not fall under the exclusive jurisdiction of the Chinese court; (3) The case does not fall under the exclusive jurisdiction of the Chinese court; (4) The case does not involve the interests of China, its citizens, legal persons or other organizations; (4) The case does not involve China’s sovereignty, security, or public interests; (5) The main facts in dispute did not occur within China’s territory and Chinese law does not apply to the case, creating significant difficulties for the Chinese court in ascertaining facts and applying the law; “deleted” (6) The foreign court has jurisdiction over the case and it is more convenient for it to hear the case. (5) It is more convenient for a foreign court to hear the case.

 

In practice, Chinese courts often refuse to apply the doctrine of forum non conveniens due to the criterion that the case does not involve the interests of China, its citizens, legal persons, or other organizations. Courts often assess whether a case involves Chinese interests or parties based on nationality or habitual residence. The removal of this criterion reduces the obstacles to the judicial application of the forum non conveniens doctrine.
Finally, to better safeguard parties’ interests, Art. 282 (2) provides: if the foreign court refuses jurisdiction after the plaintiff’s claim is dismissed, or fails to take necessary actions or render judgement within a reasonable period, and the plaintiff sues again in China, the Chinese court shall accept it. It aims to protect the claimant’s effective access to justice.

 

3. Judicial assistance

Service of process abroad: Compared to domestic service of process, the process of serving documents in cross-border cases involves more complex procedures, longer duration and lower efficiency. This significantly affects the progress of cross-border judicial procedures. The new CPL enriches the means of cross-border service of process. While retaining the existing methods of service through treaties, diplomatic channels, and embassy channels, the CPL 2023 improves other methods of services and add additional modes of services. See the table below.

Article 274 of the CPL 2022 Article 283 of the CPL 2023 A court may serve process on a party which has no domicile within China’s territory in the following manners: A court may serve process on a party which has no domicile within China’s territory in the following manners: (1) in accordance with the provisions of an international treaty concluded or acceded to by the home country of the party to be served and China; (1) in accordance with the provisions of an international treaty concluded or acceded to by the home country of the party to be served and China; (2) through diplomatic channels; (2) through diplomatic channels; (3) by entrusting the service to Chinese embassy or consulate in the country where the party is domiciled, if the party is a Chinese national; (3) by entrusting the service to Chinese embassy or consulate in the country where the party is domiciled, if the party is a Chinese national; (4) by entrusting the service to the litigation agent authorized by the party to be served to receive service of process; (4) by entrusting the service to the litigation agent appointed by the party in this case; (5) by delivering the document to the representative office or a branch office or business agent authorized to receive service of process established by the party to be served within China’s territory; (5) by delivering the documents to the solely funded enterprise, representative office, branch office or authorized business agent established by the party to be served within China’s territory; (6) where the party is a foreigner or stateless person who acts as the legal representative or main person in charge of a legal person or any other organization established within China’s territory, and is a co-defendant with such legal person or other organization, by delivering the documents to such legal person or other organization; (“added”) (7) where the legal representative or main person in charge of a foreign legal person or any other organization is within China’s territory, by delivering the documents to such legal representative or main person in charge; (“added”) (6) by mail, if the law of the country where the party is domiciled permits service of process by mail and a receipt showing the date of delivery has not been returned within three months after the date of mailing, provided that other circumstances sufficiently show the document has been served; (8) by mail, if the law of the country where the party is domiciled permits service of process by mail and a receipt showing the date of delivery has not been returned within three months after the date of mailing, provided that other circumstances sufficiently show the document has been served; (7) by fax, email or any other means capable of confirming receipt by the party to be served; (9) by electronic means capable of confirming the receipt of the documents by the recipient, unless prohibited by the law of the country where the party is domiciled; (10) by any other means agreed by the party, unless prohibited by the law of the country where the party is domiciled. (“added”) (8) by public announcement if none of the above means is feasible, in which case the document shall be deemed to have been served after six months from the date of the public announcement. If none of the above means is feasible, public announcement shall be made, and the documents shall be deemed to have been served after 60 days from the date of announcement.

Obtaining evidence abroad: Article 284 of the new CPL introduces provisions for obtaining evidence from abroad. In addition to the traditional methods of obtaining evidence through treaties or bilateral agreements with the country where the evidence is located, as well as through diplomatic channels, the new provision authorises other means to take evidence abroad, including entrusting Chinese embassy or consulate in the country where the party or witness is located to obtain evidence, obtaining evidence through real-time communication tools with the consent of both parties, and by other means agreed upon by both parties.

 

4. Recognition and enforcement of foreign judgments and arbitral awards

Requirement for the recognition and enforcement of foreign judgments: Articles 297 and 298 of the new CPL retain the principle of reciprocity as a prerequisite of recognition and enforcement of foreign judgement. They state that foreign judgments should be recognized and enforced in accordance with international treaties that China has concluded or based on the principle of reciprocity. However, the reciprocity principle raises the following issues.
Firstly, the term “reciprocity” is ambiguous, and China’s judicial practice of using the de facto reciprocity has made it difficult for many foreign court judgments to be recognized and enforced in Chinese courts. Secondly, although the “presumed reciprocity” standard has been suggested in the “Opinions of the Supreme People’s Court on Providing Judicial Services and Safeguards for the Belt and Road Initiative” and the “Nanning Declaration” adopted at the Second China-ASEAN Chief Justices’ Roundtable, these documents are not binding and this new standard has limited impact on judicial practice. Further, even if presumed reciprocity is adopted, there may still be arbitrary situations. For example, a foreign court may refuse to recognize a Chinese judgment because that the domestic judgment has already become res judicata, but this does not mean that the foreign court will not recognize the Chinese judgment. Nevertheless, the existence of negative precedence may be enough to deny presumed reciprocity.
Notably, Article 49 of the Minutes of the National Symposium on the Foreign-related Commercial and Maritime Trials 2021 establishes a reporting and notification mechanism for recognizing and enforcing foreign court judgments. It requires that in cases where the court needs to examine the application of the reciprocity principle, it should submit the proposed decision to the higher court in its jurisdiction for review. If the higher court agrees with the proposed handling, it should submit its review opinion to the Supreme People’s Court for verification. Only after receiving a response from the Supreme People’s Court can a ruling be made. In March 2022, the Shanghai Maritime Court, after seeking instructions from the Supreme People’s Court, applied the standard of de jure reciprocity to determine the existence of reciprocity between China and the United Kingdom in the recognition and enforcement of civil and commercial judgments in the case of SPAR Shipping Co., Ltd. v. Dalian Xin Hua Logistics Holdings (Group) Co., Ltd. (2018) Hu 72 Xie Wai Ren 1. This was the first precedent case of reciprocity recognition by Chinese courts. Subsequently, on December 19, 2022, the High Court of England and Wales issued a summary judgment in the case of Hangzhou J Asset Management Co Ltd & Anor v Kei [2022] EWHC 3265 (Comm), recognizing and enforcing two Chinese judgments. This was the first time that Chinese court judgments were recognized and enforced in the UK. It opens up new possibilities for mutual recognition and enforcement of civil and commercial judgments between China and the UK.

Grounds for refusing to recognize and enforce foreign court judgments: Article 300 of the new CPL stipulates five grounds for refusing to recognize and enforce foreign court judgments. These include: (1) When the foreign court lacks jurisdiction over the case pursuant to Article 301 of the CPL; (2) When the defendant has not been properly served or, even if properly served, has not had a reasonable opportunity to present its case, or when a party lacking litigation capacity has not been adequately represented; (3) When the judgment or ruling was obtained through fraudulent means; (4) When a Chinese court has already rendered a judgment or ruling on the same dispute, or has recognized a judgment or ruling on the same dispute rendered by a court of a third country; (5) When it violates the basic principles of Chinese laws or undermines China’s national sovereignty, security, or public interests. The prerequisite for recognizing and enforcing foreign court judgments is that the court rendering the judgment must have jurisdiction over the case.
Article 301 clarifies the three circumstances for determining foreign courts’ lack of jurisdiction over a case, namely: (1) the foreign court has no jurisdiction over the case according to its laws, or has jurisdiction according to its laws but lacks an appropriate connection to the dispute; (2) violation of the provisions of the CPL on exclusive jurisdiction; (3) violation of the parties’ exclusive choice of court agreement. Among them, the “appropriate connection” requirement in the first provision also echoes the rules for determining special jurisdiction over foreign-related cases under Article 276. Determining appropriate connection will likely be a focus in future foreign civil and commercial litigation disputes.
Article 302 further elucidates the fourth ground for refusing to recognize and enforce judgments. This ground mainly applies to parallel proceedings. According to this provision, the court should review the previously rendered effective foreign court judgment and suspend domestic proceedings. If the foreign judgment meets the requirements for recognition and enforcement, it should be recognized and enforced, and the domestic proceedings should be dismissed. If it does not meet the requirements for recognition and enforcement, the domestic proceedings should resume. This provision aligns with Article 7(1)(5) and (6) of the HCCH Judgment Convention 2019, which China signed and joined on 2019, but has not yet ratified.

Recognition and enforcement of foreign arbitral awards: A significant change pertaining to arbitration decisions in the new law is that it clearly establishes the “place of arbitration” as the standard for determining the nationality of an arbitration decision. See the table below.

Article 287(2) of the CPL 2022 Article 297(2) of the CPL 2023 Where a party applies for enforcement of an effective arbitration award of an international arbitral institution of China, if the party against whom enforcement is sought or the property thereof is not within China’s territory, the applicant shall apply directly to the foreign court having jurisdiction for recognition and enforcement. Where a party applies for enforcement of an effective arbitration award which is made within China’s territory, if the party against whom enforcement is requested or its property is not within China’s territory, the applicant may apply directly to the foreign court having jurisdiction for recognition and enforcement. Article 290 of the CPL 2022 Article 304 of the CPL 2023 Where an arbitration award of a foreign arbitral institution requires recognition and enforcement by a Chinese court, a party shall apply directly to China’s intermediate court at the place of domicile of the party against whom enforcement is sought or at the place where the property thereof is located, and the Chinese court shall process the application in accordance with an international treaty concluded or acceded to by China or under the principle of reciprocity. Where a legally effective arbitral award which is made outside China’s territory requires recognition and enforcement by a Chinese court, a party may apply directly to China’s intermediate court at the place of domicile of the party against whom enforcement is sought or at the place where the property thereof is located. If the domicile of the party against whom the application is made or its property is not within China’s territory, the party may apply to the intermediate court of the place where the applicant is domiciled or that has appropriate connection with the dispute adjudicated in the award. (“added”) The Chinese court shall process the application in accordance with an international treaty concluded or acceded to by China or under the principle of reciprocity.

 

Chinese judicial practice on the nationality of arbitral awards has shifted from the “the location of the arbitral institution” standard to the “place of arbitration” standard. Several landmark cases reflect this change. The new CPL further cements the seat of arbitration standard, aligning with international practices. When parties apply to Chinese courts for recognition and enforcement of arbitration rulings made by foreign arbitration institutions within China, it facilitates their recognition and enforcement. This change not only encourages foreign arbitration institutions to conduct arbitration within China, but is also better enables Chinese courts to exercise judicial supervision.

 

5. Foreign immunity

In this revision of the CPL, a specific provision is added to clarify that in civil litigation involving foreign states, the relevant laws on immunity of foreign states in China shall apply; if no provisions are specified, the CPL shall apply (Art. 305). It is worth noting that the Law on Immunity of Foreign States was promulgated on September 1, 2023, and will be implemented from January 1, 2024. The Law on Immunity of Foreign States primarily stipulates the conditions under which a foreign state can become a defendant in a legal proceeding in China, hence providing a legal basis for when a foreign state cannot claim immunity from the jurisdiction of Chinese courts. On the other hand, the CPL provides the general procedural framework for all civil cases, and determines jurisdictional rules. This includes when and which court in China has the power to hear a case. So, essentially, the CPL determines which specific court has jurisdiction over the case, while the Law on Immunity of Foreign States regulates the separate substantive issue of whether the foreign state defendant is immune from such jurisdiction.

 

6. Conclusion

The 2023 amendments to the CPL have brought about significant improvements to the special provisions governing procedures for foreign-related civil litigation. The new amendment not only takes into account China’s domestic situations but also keeps up with the latest international legislative developments in the field, drawing on the latest achievements in international legislation. Some provisions have learnt from the latest international framework, such as the HCCH Choice of Court Convention 2005 and HCCH Judgment Convention 2019.
Of course, some new challenges emerge. First, how to define the concept of appropriate connection as a new jurisdiction ground. Second, the asymmetric approach that allows the parties to choose unrelated Chinese courts but requires the chosen foreign court to have practical connection is controversial. Thirdly, the principle of reciprocity as a prerequisite remains a barrier to enforce foreign judgments in China. When the refusal grounds are adopted, which are enough to protect Chinese interests, the requirement of reciprocity becomes unnecessary and redundant. Nonetheless, more clarification will be introduced in practice which hopefully will address some of the above problems.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 5 October 2023 at 2:30 pm (Mexico City time), 10:30 pm (Europe, CEST time) to launch the book entitled:

International Child Abduction: jurisprudential, doctrinal and critical study of the 1980 Child Abduction Convention. Key concepts and solutions to application problems (Madrid: Dykinson, 2023) 604 pp.

For more information about the book, see our previous post here.

The book will be presented by the author and the following AMEDIP members: Professors Jorge Alberto Silva Silva and Nuria González Martín, as well as the family law attorney María Virginia Aguilar.

The webinar will be held in Spanish and the details are:

Link: https://us02web.zoom.us/j/89498755044?pwd=NmFjQjAxZ2pSTW9tNVlqTC81NnM1dz09

Meeting ID: 894 9875 5044

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

Written by Dr. Delphine Porcheron, Associate Professor at the University of Strasbourg Law Faculty

On October 19 and 20, the University of Strasbourg is organizing a symposium on Reparation for “Crimes of the Past”.

Mass crimes, deportations, spoliations, colonial exploitation, slavery… The “crimes of the past” are first known to us as historical facts. Their protagonists have mostly disappeared; they have been documented by historians; almost all of them are mentioned in school textbooks. They have become part of our collective memory as disastrous episodes of a bygone past.

And yet, decades later, claims for reparation are initiated. Individuals and groups who have been materially, socially or psychologically affected by these events are turning to justice. They expect not just symbolic recognition, but genuine reparation for their losses, compensation for their suffering, and restoration of their social status.

But are State courts capable of responding appropriately to these claims? Are the law and litigation practice capable of delivering justice? What other institutional mechanisms can be implemented to this end?

These are the questions that the speakers at this symposium will attempt to answer, combining legal, historical and philosophical approaches by looking successively at “Jurisdictional avenues of reparation” and “Alternative avenues of reparation”.

The list of speakers and chairpersons includes: Magali Bessone, Jean-Sébastien Borghetti, Nicolas Chifflot, Marc Del Grande, Peggy Ducoulombier, Gabriel Eckert, Michel Erpelding, Etienne Farnoux, Samuel Fulli-Lemaire, Antoine Garapon, Bénédicte Girard, Patrick Kinsch, Marc Mignot, Horatia Muir-Watt, Etienne Muller, Dorothée Perrouin-Verbe,, Delphine Porcheron, Thibault de Ravel d’Esclapon, Mathieu Soula, Jeanne-Marie Tufféry-Andrieu, Patrick Wachsmann

For registration and more information, see here.

The Series Editors of International and Comparative Business Law and Public Policy are hosting a book launch and cocktail party to celebrate the publication of Blockchain & Private International Law, edited by Andrea Bonomi, Matthias Lehmann, and Shaheeza Lalani (reviewed here by Christina Blanchet Valle).

The hybrid event will take place on 5 October, 5pm Swiss Time, both at the University of Lausanne, IDHEAP, AULA, and online (Zoom-Link).

The 2023 Annual Conference of the Chinese Society of Private International Law was held on 14-16 of September in Wuhan, PRC. This is probably the most important academic event for Chinese scholars specializing and researching in the area of private international law. This year, there were more than 300 participants.

After the HCCH Asia Pacific Week in Hong Kong, the Secretary General of the HCCH, Dr. Christophe Bernasconi was invited to attend the conference and give a speech. He was also invited to act as a commentator for a panel of plenary session which was conducted in English.

How does the anchor defendant mechanism operate in the realm of EU trade marks and actions on trade mark infringement? Is the existence of an exclusive distribution agreement between the defendants sufficient to rely on this mechanism? Those are the questions that the Court of justice addresses in its judgment handed down this morning in the case Beverage City Polska, C-832/21.

 

Factual context  and preliminary question

A Polish company manufactures, advertises and distributes an energy drink. Its managing director is domiciled in the city where this company is based.

A German company is connected to the Polish one through an exclusive distribution agreement for Germany – on this basis, it sourced the energy drink from the Polish Company. Its managing director is also domiciled in Germany, in a different state of that country.

Another German company being a proprietor of an EU trade mark brings an action for injunctive relief throughout the entire EU and supplementary claims against the Polish and German companies as well as against their managing directors before a court in Germany, with jurisdiction over the place where the managing director of the German company is domiciled.

The German court bases its jurisdiction over the Polish defendants (the company and its managing director) on Article 8(1) of the Brussels I bis Regulation, referring to the principles established in the judgment of the Court of Justice in Nintendo.

As a reminder, Article 8(1) of the Brussels I bis Regulation – applicable in the case via Article 122 of the EU trade mark Regulation – states: ‘A person domiciled in a Member State may also be sued […] where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.’

This decision is contested by the Polish company and its managing director.

The second instance court refers the following question to the Court of Justice for a preliminary ruling:

‘Are claims “so closely connected” that it is expedient to hear and determine them together to prevent irreconcilable judgments, within the meaning of Article 8(1) of [Regulation No 1215/2012], where, in infringement proceedings for infringement of an EU trade mark, the connection consists in the fact that the defendant domiciled in a Member State (here, Poland) supplied the goods which infringe an EU trade mark to a defendant domiciled in another Member State (here, Germany) whose legal representative, against whom infringement proceedings have also been brought, is the anchor defendant, if the parties are connected to each other only through the mere supply relationship beyond which there is no legal or factual connection?’

 

Opinion of Advocate General

In his Opinion delivered this March, AG Richard de la Tour proposed the Court to answer the preliminary question in a following manner:

‘Article 8(1) of the Brussels I bis Regulation […] must be interpreted as meaning that more than one defendant, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled that are seised, in the context of infringement proceedings, of claims brought against them by the proprietor of an EU trade mark where the defendants are alleged to have infringed that trade mark in a materially identical manner through each of their acts in a supply chain. It is for the court seised to assess whether there is a risk of irreconcilable judgments resulting from separate proceedings, taking into account all the relevant material in the case file.’

 

Answer of the Court

In its judgment handed down this Thursday, the Court reminds that according to its case law in order for Article 8(1) to apply, it must be ascertained whether, between various claims brought by the same applicant against various defendants, there is a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. For decisions to be regarded as irreconcilable, it is not sufficient that there be a divergence in the outcome of the disputes, but that divergence must also arise in the context of the same situation of fact and law (para. 28).

Concerning the first requirement (ie. the same situation of law) the Court bases its reasoning on the universal effect of an EU trade mark within the territory of EU Member States. As such, for the Court, this requirement does not seem to be problematic in the situation at hand (para. 29 to 31).

This is the second requirement (ie. the same situation of fact) that is put under more scrutiny. The Court notes that – according to the information provided by the referring judge – the Polish and German companies do not belong to the same group. Furthermore, there is no link between the Polish company and its director, on the one hand, and the director of the German company described by the referring courts as an ‘anchor defendant’, on the other hand (para. 32).

Hence, the sole element potentially connecting the defendant companies seems to be the exclusive distribution agreement. The question is therefore whether such an agreement is sufficient to meet the requirement of ‘the same situation of fact’.

The Court starts it reasoning with a reminder: the purpose of the jurisdiction rule referred to in Article 8(1) of Brussels I bis Regulation is to facilitate the proper administration of justice, to reduce as far as possible the possibility of concurrent proceedings and thus to avoid solutions that might be irreconcilable if the cases were tried separately (para. 34). In order to assess whether there is a connection between the various claims brought before it, it is for the national court to take into account, in particular, the fact that several companies established in different Member States are accused, each separately, of the same acts of infringement in respect of the same products (para. 36).

Echoing the Opinion of its Advocate General, the Court states that the existence of a connection between the claims in question is based primarily on the relationship between all the acts of infringement committed, rather than on the organizational or capital links between the companies concerned. Similarly, in order to establish the existence of a single factual situation, particular attention must also be paid to the nature of the contractual relations existing between the companies involved (para. 37).

For the Court, the existence of the exclusive distribution agreement renders it more foreseeable that multiple actions on trade mark infringement will be considered as meeting the requirement of ‘the same situation of fact’ (para. 38).

The Court also noted that – as it transpires from the case file and the hearing – the close cooperation between the companies manifested itself in the operation of their websites, the domains of which belonged to only one of the co-defendants, through which the products at issue in the main proceedings were marketed by means of cross-references between these sites (para. 39). This also reveals the foreseeable nature of the obligation to respond to allegations of infringement from the same source before the same court (para. 40).

Probably to nuance those considerations, the Court adds that the circumstances justifying the reliance on the anchor defendant mechanism cannot be created in an artificial manner just in order to establish jurisdiction over co-defendants; that is, however, not the case if a ‘close link’ exists between the defendants – such a ‘close link’ exists in presence of an interest in hearing and judging them together to avoid solutions that might be irreconcilable if the cases were judged separately (para. 43-45).

Ultimately, the Court answered the preliminary question by stating that:

‘[…] a number of defendants, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled before which, in the context of an infringement action, claims have been brought against all of those defendants by the proprietor of an EU trade mark where they are each accused of having committed a materially identical infringement of that trade mark and they are connected by an exclusive distribution agreement.’

 

Some highlights and remarks…

At least three aspects of the case merit particular attention:

• first, the requirement of ‘the same situation of fact’ appears to hinge on the defendant’s foreseeability that he may be summoned to a court with jurisdiction over other individuals or entities he collaborate with. In other terms, the closer the contractual link and the more intensive the cooperation are, the more one exposes himself to the risk of being sued outside of the court of his domicile through the anchor defendant mechanism;
• second, while the judgment stresses the relevance of contractual relations between the defendants and the fact of them being bound by an exclusive distribution agreement, it remains to be seen how this can translate into the situation of the managing director of a company against which the action is also brought through the anchor defendant mechanism; there is also even more fundamental the question of the possibility to consider that an action brought against the director of a company can ‘anchor’ via Article 8(1) the actions against another company and its director; those inquiries received consideration in the Opinion (points 68 et seq.);
• third, echoing the possibility to rely on the interdiction of the abuse of EU law from Vinyls Italia (para. 54 and 55) in the realm of private international law, the Court underscores that the facts underpinning a case should not be artificially fabricated just in order to justify the reliance on the anchor defendant mechanism.

 

The judgment can be found here.

 

On 27 October 2023, the Department of Private Law of Maastricht University (the Netherlands) is hosting a lecture by Prof. Dr. Horatia Muir Watt, Professor at the Sciences Po Law School (Paris), entitled: “Ecological Jurisprudence: The Shape of Legality at its Own Last Frontier (a Private International Law Approach)” at 17:00 (CEST time). This event will take place onsite and in English. For more information, click here.

Registration is free of charge. The deadline to register is 19 October 2023.

A Research Seminar with PhD researchers and Prof. Dr. Horatia Muir Watt will take place that same day from 10.00 – 12.00.

Prof. Horatia Muir Watt has recently published a book entitled: The Law’s Ultimate Frontier: Towards an Ecological Jurisprudence: A Global Horizon in Private International Law (Oxford: Hart, 2023). More information is available here.

Tim Wöffen (University of Osnabrück) kindly made us aware of the Proposal for a Directive on European cross-border associations, adopted on 5 September by the Commission. The proposal aims to facilitate cross-border activities of non-profit associations in the EU and to improve the functioning of the Internal Market by removing legal and administrative barriers for non-profit associations that operate or wish to operate in more than one Member State. With regard to private international law, Articles 4 and 22 et seq seem particularly relevant. The public is invited to give their comments until November 1st.

Tim offers some initial thoughts (in German) here.

 

ZVglRWiss 122 (2023) no. 3 A Symposium in Liechtenstein on Comparative and Private International Law Aspects of Crypto Currencies and Assets

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft, ZVglRWiss) features various contributions to a comparative law symposium that was held at the Private University in the Principality of Liechtenstein (UFL) in autumn 2022. The topic consisted of legal aspects of crypto currencies and assets, with a particular focus on comparative law and private international law. Here are the articles’ German titles and their English abstracts:

 

Kryptowerte als Herausforderung für Rechtsbefolgung und Rechtsdurchsetzung

Erstes rechtsvergleichendes Symposion an der Privaten Universität im Fürstentum Liechtenstein

Heribert Anzinger und Gerhard Dannecker

ZVglRWiss 122 (2023) 243–251

A short introduction into the symposium’s subject.

 

Phänomenologie und zivilrechtliche Einordnung von Kryptowährungen und anderen Kryptowerten

Dörte Poelzig und Moritz Kläsener

ZVglRWiss 122 (2023) 252–268

Crypto assets have been the subject of lively discussion in German civil law literature for several years now. However, no comprehensive regulation has been enacted to date. Thus, the question remains as to how the various manifestations of crypto assets are to be classified under civil law, and what consequences this has, in particular, for legal protection and the manner of disposal. This question naturally concerns not only the German, but also the other European legislators. This article is concerned with the legal discussion in Liechtenstein, Switzerland, and Austria, meaning that its focus lies on legal systems that show a certain proximity to German law. Nevertheless, the article also takes a look at the less closely related English legal system. The solutions that were found in these legal systems will be presented here and compared with the German approaches in literature and legislation.

 

Kryptowerte als Herausforderung für Rechtsbefolgung und Rechtsdurchsetzung

Matthias Lehmann

ZVglRWiss 122 (2023) 269–288

This paper compares emerging conflict-of-laws rules designed to determine the law applicable to digital assets, such as Bitcoin, Ether or stablecoins. Such rules have been developed in the U.S., England, Germany, Switzerland and Liechtenstein; in addition, UNIDROIT has recently drafted a Principle on the question. The article gives an overview of the different rules and tries to distill an “ideal” rule from them. The result could, for example, serve as inspiration for the German legislator or for the joint project of UNIDROITand the Hague Conference on Private International Law.

 

Kryptowerte als Tatertrag, Tatmittel, Tatobjekt und Tatprodukt

Jonas Stürmer

ZVglRWiss 122 (2023) 289–303

Crypto assets continue to be particularly popular with criminals and play a major role in various crimes. Although this also regularly poses practical difficulties for law enforcement authorities, it sometimes also offers opportunities for investigations. The particularly practice-relevant confiscation according to sections 73 onwards of the German Criminal Code as well as provisional preservation, on the other hand, are legally possible; here, too, practical challenges occur.

 

Rechtsbefolgung und Rechtsdurchsetzung bei Kryptowerten im Steuerrecht

Daniela Hohenwarter-Mayr und Christina Mittermayer

ZVglRWiss 122 (2023) 304–337

The increase in popularity of alternative means of payment is bringing crypto assets closer to the focus of tax law. Due to their characteristics and various functionalities the proper taxation of income from cryptocurrencies is however a challenge. In addition to substantive law hurdles also the efficiency of tax enforcement is not ensured. Austria addresses these difficulties by incorporating cryptocurrencies into the taxation scheme for capital assets and the deduction of a withholding tax. This paper deals with the Austrian approach from a comparative law perspective, its constitutional implications and the need for an accompanying international exchange of information.

 

Kryptowerte und der Datenschutz

Jörn Erbguth

ZVglRWiss 122 (2023) 338–355

Blockchains have a complex relation to data protection. On the one hand, they are subject to criticism due to distributed responsibility and immutability – on the other hand, they can empower individuals and protect privacy better than centralized approaches through privacy enhancing technology. However, in the field of crypto asset trading, upcoming financial market regulations, e.g. the MiCA regulation, prohibit the use of anonymization features and facilitate the identification of transactions written on public blockchains with transaction parties. The paper discusses the compliance of crypto asset trading with the GDPR.

 

Kryptowerte als Herausforderung für staatliche Regulierung

Ergebnise und Forschungsperspektiven des Ersten rechtsvergleichenden Symposions an der Privaten Universität im Fürstentum Liechtenstein

Tina Ehrke-Rabel

ZVglRWiss 122 (2023) 356–360

A short summary of the symposium’s main results and further perspectives for research.