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The author of this post is Lorenzo Acconciamessa, a PhD candidate at the University of Palermo and a teaching assistant at the Catholic University of the Sacred Heart in Milan.

By an order of 29 April 2020 the First Chamber of the Italian Supreme Court asked the Italian Constitutional Court to review the constitutional legitimacy of the combined operation of the various Italian rules of private international law governing the (non-)recognition of a foreign birth certificate attesting the existence of a parent-child relationship between a child born abroad by resorting to gestational surrogacy and his intended parent. In 2019, the Joint Chambers of the Supreme Court ruled that, on a proper interpretation of the Italian provisions of private international, such recognition ought to be denied on the ground that it would offend public policy. Put shortly, by its order of April 2020, the First Chamber of the Supreme Court asked the Constitutional Court to assess whether the above provisions, as interpreted by the Joint Chambers in the ruling of 2019, are consistent with the Italian Constitution.

One of the key issues that the Constitutional Court will need to address is whether, and to what extent, international human rights law – notably as expressed in the European Convention on Human Rights (ECHR) and the UN 1989 Convention on the Rights of the Child (CRC) – affects the ability of State’s authorities to refuse the recognition of personal statuses and family relationships on grounds of public policy, thereby precluding the cross-border continuity of the concerned persons’ family status validly and effectively created abroad. Indeed, pursuant to Article 117, paragraph 1, of the Italian Constitution, legislation cannot infringe the international obligations of Italy. In this regard, the Constitutional Court made clear that in the event of a conflict between a piece of domestic legislation and the obligations arising from an international treaty in force for Italy, the former must be considered to be unconstitutional and accordingly declared void.

The Facts

The case concerned a same-sex couple of Italian men who got married in Canada. Their marriage was recognised in Italy as a registered partnership, pursuant to Article 32-bis of the Italian Statute on Private International Law. They subsequently had a child in Canada by resorting to surrogate motherhood. Surrogacy is permitted in Canada, provided that the surrogate mother acts freely and altruistically. The child’s birth certificate had been recognised and recorded in Italy following a decision of the Registrar of the Municipality of Verona. However, the certificate merely mentioned the spouse having a biological bond with the child. The couple seised the Supreme Court of British Columbia to have the birth certificate rectified: they wished that both – the biological and the intended fathers – be referred to as the parents of the child. Their application was successful. The couple then requested that such rectification be recognised in Italy. The Registrar, however, dismissed the request, arguing that recognition would be at variance with the Italian public policy.

Determining the Extent of Public Policy: The Joint Chambers’ Approach

On several occasions, in the past, the Italian Supreme Court restricted public policy to such fundamental values as are shared by the international community. On those grounds, the First Chamber ruled in 2016 that the public policy defence could not be raised to prevent the recognition of a foreign birth certificate attesting the family relationship between a child and his two mothers (the biological one, who carried on the pregnancy, and the genetical one, who had donated the ovum). Public policy, the Court argued, encompasses fundamental principles enshrined in the Italian Constitution as well as in supranational and international human rights instruments by which Italy is bound. The best interests of the child, and his right to personal and social identity, are then to be considered as public policy principles.

According to this view, the mere incompatibility between foreign judgments or public acts and domestic mandatory provisions is not enough to trigger the public policy defence. The same approach was followed by the Court of Appeal of Venice in the case that the Italian Constitutional Court is now called upon to consider. In particular, the Court of Appeal submitted that the fact that Italian law fails to make provision for same-sex marriage and for the attribution, to both the parties of a same-sex couple, of the parental status over a child born through medically assisted procreation, is not, in itself, evidence of the existence of a corresponding public policy principle. The statutes providing for such rules, indeed, are mere expression of the legislature’s political discretion.

However, the State Attorney was not satisfied by the judgment of the Court of Appeal and moved to have the ruling reviewed by the Supreme Court. He argued that the recognition of the Canadian judgment would be in clear breach of the Italian legislation on filiation and medically assisted procreation and, as a consequence, at odds with the public order of Italy. The State Attorney, in particular, invoked a different conception of the public policy, as adopted by the Joint Chambers of the Supreme Court.

And indeed, in 2019 the Joint Chambers remarked that other principles of the forum must be taken into account when determining the scope of public policy, in addition to the principles arising from the Constitution and international instruments. Domestic ordinary legislation may be seen as providing evidence of the fundamental policies of the Italian legal order as well, namely where it implements the principles enshrined in the Constitution.

According to that approach, while the recognition of the family relationship between the child born under a surrogacy arrangement and the intended biological father – through the recording of the birth certificate – is justified by the existence of a biological relationship, the recording of the part of the certificate mentioning as parent the merely intended (non-biological nor genetic) father would be at odds with the Italian (criminal) prohibition of gestational surrogacy arrangements, provided for in Article 12, paragraph 6, of the Italian Statute on Medically Assisted Procreation. Such regulation is deemed by the Joint Chambers to implement constitutional principles concerning the protection of the dignity of the woman and, consequently, to express a public policy principle. In the Joint Sections’ view, such a statement is imposed by an incontestable appreciation of the legislator and by the Constitutional Court’s case-law. As a consequence, judges would be precluded from substituting their own assessment on this matter.

The Joint Chambers added that the protection of the (best) interests of the child, in any case, would be guaranteed by the possibility, for the intended, non biological parent, to resort to the “adoption in particular cases”, pursuant to Article 44, paragraph 1, of the Italian Statute on Adoption. It is a sort of last resort clause allowing for recognition of the emotional bond between the child and the intended parent, when he/she is also the biological parent’s spouse, or, in any case, provided that the relationship has been established as a social reality. The Joint Chambers tried to frame their approach within the European Court of Human Rights’ (ECtHR) doctrine of the margin of appreciation. In particular, they considered that Italy had already complied with ECHR standards by providing full recognition of the child’s relationship with the biological parent. By contrast, in the absence of a biological link with the intended parent, State’s authorities would retain a wide margin of appreciation in choosing the appropriate mechanism for assuring the establishment of a legal relationship comparable (not identical) to natural filiation.

The ECtHR Approach and the Issue of the States’ Margin of Appreciation

The Joint Chambers’ approach is not in itself at odds with the ECHR standards, at least as they were standing at the moment of the 2019 ruling. In the Strasbourg judges’ opinion, the right to personal identity, enshrined in Article 8 ECHR, may imply a right to the cross-border continuity of personal statuses and family relationships created abroad (see Marongiu Buonaiuti and Baratta). And indeed, non-recognition of family statuses validly and effectively created abroad interferes with the right to private and family life. The case at hand fulfils the conditions required under Article 8 ECHR to be entitled to that right: (1) from a formal point of view, the family tie has been validly and legally created before seeking its recognition; (2) from a substantial point of view, the family relationship has been established a social reality, having the child lived with the biological and the intended father since he was born. Moreover, the case involves essential interests of a child, which should be a primary consideration of the State (Neuliger and Shuruck, para. 135).

According to the Court’s well-established case-law, however, if the interference is prescribed in accordance with the law, pursues a legitimate aim and is “necessary in a democratic society” for achieving it, it can be defined as legitimate. Such right might be limited by applying the public policy clause, which is a rule of law aimed at protecting the essential interests (and values) of the State. States enjoy a margin of appreciation in striking such a fair balance between States’ interests and individuals’ rights, that, nevertheless, has been progressively restricted by the ECtHR.

In Negrepontis-Giannisis the Court ruled that the refusal on public policy grounds to recognize an adoption pronounced (in 1984) by a Court in the U.S. between an adult and his uncle, a bishop of the Orthodox Church, violated Article 8. A few years later, the Court asserted in Paradiso and Campanelli that the public policy defence cannot be resorted to as a sort of “charte blanche for any measure, since the State ha[s] an obligation to take the child’s best interests into account irrespective of the nature of the parental link, genetic or otherwise” (para. 80). The Grand Chamber reversed the judgment because it considered that no family relationship existed in the considered case. Therefore, it was unnecessary to determine whether the interference produced by the public policy defence was legitimate, given that there was no right to interfere with.

In two well-known cases concerning the recognition of the family relationship between the child born under a surrogacy arrangement and the biological parent, the ECtHR considered that, even when a State is invoking the international public policy exception, the Court “must, however, verify whether in applying that mechanism … the domestic courts duly took account of the need to strike a fair balance between the interest of the community in ensuring that its members conform to the choice made democratically within that community [prohibiting gestational surrogacy arrangements] and the interest of the applicants – the children’s best interests being paramount – in fully enjoying their rights to respect for their private and family rights” (Labassee, para. 63 and Mennesson, para. 84). It then concluded that the children’s right to personal identity– which involves the right to have their family relationship with the (intended) biological or genetic parent recognized – trumped the State’s interests in protecting those it considers as fundamental values of the fore. According to the Court, the State had to grant the recording of the birth certificate for, at that time, no valid alternatives existed, according to the case-law of the French Court of Cassation, for establishing such a family relationship.

As for the family relationship between the child born under a gestational arrangement and the (merely) intended (non biological nor genetic) parent, the ECtHR expressed its views in the first advisory opinion, delivered, pursuant to Protocol No. 16 to the ECHR, on 10th April 2019. Indeed, following the 2014 judgment in the Mennesson case, the French Cour de Cassation asked the Grand Chamber whether the State had, under the ECHR, an obligation to recognize the family relationship also with respect to the intended parent and whether, in this case, allowing the adoption of the child sufficed. As for the first question, the Court considered that «the general and absolute impossibility of obtaining recognition of the relationship … is incompatible with the child’s best interests» (para. 42). The Court did not distinguish between the fact of the intended mother being or not also the genetic or biological mother As for the second question, the Court stipulated that the case required a fair and appropriate balancing of interests. The invocation of the public policy clause – with the aim of denying direct recognition of the foreign birth certificate or judgment – would be legitimate, in the light of the State’s margin of appreciation, provided that, in any case, adoption or other available proceedings constitute “an effective [alternative] mechanism […], enabling the relationship to be recognized” (para. 54). Such a mechanism, in the Court’s opinion, should be appropriate (guaranteeing an effective recognition of parent-child relationship), rapid, and should allow for “an assessment by the courts of the child’s best interests in the light of the circumstances of the case” (ibidem). Moreover, recognition, whatever the legal instrument resorted to, must intervene not after its effective instauration as a social reality.

The Approach of the Supreme Court’s First Chamber

Although the ECtHR’s advisory opinion is not legally binding, the First Chamber of the Supreme Court in the 2020 Order considered it had to uphold its findings. It then questioned the Joint Chambers arguments concerning the public policy defence by highlighting, inter alia, that it is at odds with the developments in the ECtHR’s case law, at least for two reasons. On the one hand, the Court considered it is illegitimate to qualify the prohibition of surrogacy as public policy, and to make it automatically prevail over the best interests of the child, without an appropriate case-by-case evaluation. For this end, it should be assessed whether effective alternatives exist for upholding the best interests of the child. On the other hand (and consequently), the Italian legal system is currently at odds with the ECHR for the “adoption in particular cases” do not qualify as an effective alternative mechanism, in the abovementioned meaning.

The First Chamber relied on a combination of domestic and international human rights sources to shape the extent of public policy and concluded that the principle of the best interests of the child is part of the Italian international public policy. The application of the public policy exception then requires a balancing of interests between, on one hand, the child’s interest in having his/her relationship with the intended parent recognized and, on the other hand, the State’s interests in avoiding recognition of acts which are perceived as incompatible with domestic fundamental values. According to the First Chamber, such a balancing assessment might lead to the application of a foreign law or the recognition of foreign judgments (or public document) even in violation of domestic (ordinary) rules, provided that the supreme principles of the legal order – in particular, those concerning the fundamental rights and human dignity – are not violated.

The “adoption in particular cases” would not entail such a fair balance, for it does not create a full parent-child relationship, it requires a time-consuming and complex proceeding, exposing the child’s to a period of incertitude, and is conditioned upon the parties’ will. As for the content of the established relationship, it is not comparable to natural filiation, given that it does not involve family bonds between the child and the adopter’s relatives nor succession rights. And while the State’s margin of appreciation under the ECHR, the Supreme Court argued, is wide as regards the means by which family relationships are recognised, it is not as wide as regards the “intensity” and content of such relationships.

For all the above reasons, the First Chamber of the Italian Supreme Court asked the Constitutional Court whether the Joint Sections’ approach is constitutionally legitimate, also, and in particular, in the light of the State’s obligations arising from the ECHR and the CRC.

One should also consider that the “downgrading” of the family relationship through the “adoption in particular cases”, beyond being illegitimate in light of the constitutional principle of the unity of the status filiationis irrespective of the modality and circumstances of the child’s conception and birth, would also infringe the standards that have been recently clarified by the ECtHR.

Indeed, two months after the order of the First Chamber the ECtHR delivered its judgment in D. v. France. The Court implicitly confirmed the necessity of a full legal recognition of the intended parent-child relationship, although it admitted that the methods for achieving that aim can be determined by the State in the exercise of its margin of appreciation. It means that such recognition must not necessarily be achieved through the recording of the birth certificate, provided that the State guarantees and effective and rapid recognition. The ECtHR indeed concluded that the refusal to record the birth certificate of a child born in Ukraine through a gestational arrangement as long as it mentioned the intended mother – who was also the genetic mother – as the legal mother, did not violate Article 8 ECHR. In the Court’s reasoning, the French Cour de Cassation had already confirmed possibility for the (intended) mother to adopt her spouse’s child – for the birth certificate had been recorded in respect of the intended biological father – by way of full adoption. In the Court’s view, that possibility sufficed in order to establish an effective legal parent-child relationship. And indeed, full adoption is pronounced through a rapid proceeding (para. 67) and produces « des effets de même nature que la transcription de l’acte de naissance étranger s’agissant de la reconnaissance du lien de filiation entre l’enfant et la mère d’intention » (para. 66). The case seems then to confirm, a contrario, the Italian First Chamber’s argument: the denial to record the birth certificate is legitimate as long as an alternative mechanism enabling the establishment of a full parent-child relationship exist. Therefore, in Italy, where full adoption is not allowed in the same circumstances, the recording of the birth certificate seems the last valid alternative.

Thoughts and Perspectives

The approach of the First Chamber is commendable from an inter-systemic point of view, for it gives due relevance to the ECtHR approach. In this regard, one should also consider that France already complied with the ECtHR recommendation, given that the intended parent can resort to full adoption. Moreover, in the Mennesson case the Court de Cassation finally allowed the recognition of the parent-child relationship through the recording the foreign birth certificate which mentioned the intended mother as the legal mother (see Arrêt n. 648 P+B+R+I). Given the circumstances of the case, in fact, the Court considered that, following 15 years of judicial proceedings, the best interests of the child required an immediate recognition of the relationship, without imposing to the intended mother the institution of an adoption proceeding.

However, it is unlikely that the Italian Constitutional Court will conclude that non-recognition amounts to a violation of the Constitution. In fact, the Court itself ruled in the past that gestational arrangements violate the woman’s dignity and that, in any case, the adoption in particular cases is an adequate alternative to the (full) recognition of the parent-child relationship (Judgment No. 272 of 2017). It has also ruled against same-sex filiation through medically assisted procreation (Judgment No. 221 of 2019).

The relevant issue will thus concern the parameter of constitutionality arising from Article 117 of the Italian Constitution. Pursuant to that provision, as interpreted by the Constitutional Court since the twin Judgments Nos 348 and 349 of 2007, the legitimacy of ordinary legislation is also assessed against such international treaties as are in force for Italy. The Constitutional Court is then, first of all, called to assess whether the developments in the ECtHR’s case-law have already restricted the State’s margin of appreciation in respect of the recognition of the family relationship between the child born abroad under a surrogacy arrangement and the intended parent.

However, the late approach of the Constitutional Court has mitigated to idea of the prevalence of international principles over national ones (Judgment No. 269 of 2017) and has considerably impacted the extent of the binding nature of ECtHR’s judgments for national judges (Judgment No. 49 of 2015). It is then possible that the Constitutional Court will stipulate that the Constitution prevails over those international obligations. In fact, should the Constitutional Court conclude that the absence of suitable alternatives actually precludes Italian authorities, in the light of the ECHR, from invoking the public policy clause, it is also possible that the constitutional judges will invoke the doctrine of the “counter-limits”, although that doctrine, as for now, has been invoked only in relation to customary international law and European Union law. In particular, it has been invoked by the Constitutional Court (Judgment No. 238 of 2014), with respect to the dispute between Italy and Germany which arose when the Italian Supreme Court ruled that Germany was not entitled to immunity from Italian jurisdiction in civil proceedings where the claimants pleaded redress for serious human rights violations perpetrated by the Third Reich in Italy during World War II. The Constitutional Court concluded that respect for international obligations of the State – namely, the customary rule on State immunity as well as the judgment of the International Court of Justice which had condemned Italy to uphold such rule – could not extent to the point of infringing the “supreme” principles enshrined in the Constitution.

In the present case, there is the possibility that the Constitutional Court will conclude that the prohibition of surrogacy arrangements actually implements fundamental constitutional principles that cannot be trumped by ECHR obligations. And given that treaty provision, by definition, must respect constitutional provisions, the Court could also come to the same conclusion without invoking the counter-limits doctrine.

Should the Constitutional Court reject, for that or other reasons, the referral, the First Chamber would be obliged to apply the current interpretation of the public order defence, as stipulated by the Joint Chambers. In this case, the couple might then apply to the ECtHR, seeking a declaration that Italy violated Article 8 ECHR.

In conclusion, while the First Chamber is trying to engage in a dialogue with the ECtHR and to uphold its findings in the Italian legal order, the case also prospects the possibility of a direct clash between the European Court of Human Rights and the Italian Constitutional Court, concerning a very sensitive and ethical issue. Given that it is quite unlikely that the Parliament would opt for a reform of the legislation to comply with the ECHR standards, the Constitutional judgement will decide whether Italy will be in a systemic and persistent situation of breaching the ECHR.

By Zheng (Sophia) Tang

1 Anti-suit Injunctions issued in Huawei v Conversant and Xiaomi v Intel Digital

Chinese courts have issued two anti-suit injunctions recently in cross-border patent cases. The first is the Supreme Court’s ruling in Huawei v Conversant, (2019) Zui Gao Fa Zhi Min Zhong 732, 733 and 734 No 1. (here) Huawei, a Chinese telecom giant brought an action on 25 Jan 2018 in Jiangsu Nanjing Intermediate Court requiring determination of FRAND royalty for all Chinese patents held by Conversant that is essential to 2G, 3G and 4G standard (standard essential patent or ‘SEP’). Conversant brought another action in Düsseldorf, Germany on 20 April 2018 claiming Huawei infringed its German patents of the same patent family. On 16 Sept 2019, the Chinese court ordered a relatively low rate pursuant to Chinese standard and Conversant appealed to the Supreme Court on 18 Nov 2019. On 27 Aug 2020, the German Court held Huawei liable and approved the FRAND fee proposed by Conversant, which is 18.3 times of the rate determined by the Chinese court. Pursuant to Huawei’s application, the Chinese Supreme Court restrained Conversant from applying the German court to enforce the German judgment. The reasons include: the enforcement of the Düsseldorf judgment would have a negative impact on the case pending in Chinese court; an injunction is necessary to prevent irreparable harm to Huawei; the damage to Conversant by granting the injunction is significantly smaller than the damage to Huawei if not granting injunction; injunction will not harm public interest or international comity.

On 9 June 2020, Chinese company Xiaomi brought the proceedings in the Wuhan Intermediate Court requesting the determination of the global FRAND rate for SEPs held by the US company, Inter Digital. On 29 July, Intel Digital sued Xiaomi in Delhi High Court in India for infringement of Indian patents of the same patent family and asking for injunction. The Wuhan Intermediate Court ordered Inter Digital to stop the injunction application in India and prohibited Intel Digital from applying injunctions, applying for the determination of FRAND rate or enforcing junctions already received in any countries. (Xiaomi v Intel Digital (2020) E 01 Zhi Min Chu 169 No 1) The court provides reasons as follows: Inter Digital intentionally brought a conflicting action in India to hamper the Chinese proceedings; the Indian proceedings may lead to judgments irreconcilable to the Chinese one; an anti-suit injunction is necessary to prevent irreparable harm to Xiaomi’s interests; an anti-suit injunction will not harm Intel Digital’s legitimate interests or public interests.

2 Innovative Judicial ‘Law Making’ to Transplant Foreign Law

These two cases are interesting in that they open the door for the courts to ‘make law’ by providing Chinese legislation innovative interpretation. Chinese law does not explicitly permit the courts to issue anti-suit or anti-arbitration injunctions. Article 100 of the Civil Procedure Law of China permits Chinese courts to order or prohibit the respondent to do, or from doing, certain actions, if the respondent’s behaviour may lead to the difficulty to enforce the judgment or cause other damages to the other party. But this act preservation provision was generally used only in the preservation of property, injunction of infringing actions, or other circumstances where the respondent’s action may directly cause substantive harm to the applicant’s personal or proprietary rights. It has never been applied as the equivalent to anti-suit injunctions. The ‘Provisions of the Supreme People’s Court on Several Issues concerning the Application of Law in Cases Involving the Review of Act Preservation in Intellectual Property Disputes’ (No. 21 [2018] of the Supreme People’s Court) enforced from 1 Jan 2019 did not mention the court’s competence to issue anti-suit injunction. These two judgments provide innovative interpretation to Art 100 by extending act preservation measures to cover anti-suit injunction.

It is important to note that anti-suit injunction is a controversial instrument used to combat the conflict of jurisdiction and forum shopping. It is not issued frequently or lightly. Instead, there is a high threshold to cross. In England, for example, an anti-suit injunction can be ordered only if the foreign proceedings are vexatious or oppressive and England is the natural forum, (Airbus Industrie GIE v Patel [1999] AC 119) or the foreign proceedings would breach a valid exclusive jurisdiction or arbitration clause between the parties. (The “Angelic Grace”, [1995] 1 Lloyd’s Rep. 87) In both cases, neither courts justify China is a natural forum. Such justification may be more difficult in disputes concerning foreign patent due to the territoriality of patent.  Furthermore, foreign proceedings are not oppressive just because they award higher rate to the parent holder, which is not properly handled either by the Chinese judgments. In the US, anti-suit injunction requires the parties and issues in foreign proceedings are ‘the same’ as the local ones. (E. & J. Gallo Winery v. Andina Licores SA, 446 F. 3d 984 (Court of Appeals, 9th Circuit 2006)) This barrier is difficult to lift in disputes concerning infringement of national patents in the same family. In FRAND cases, the court usually relies on the ‘contractual umbrella over the patent’ to avoid the difficulty brought by the territoriality of patent. (Huawei v Samsung, Case No. 3:16-cv-02787-WHO) Even if a contractual approach is adopted, the court still needs to ascertain the foreign litigation may frustrate a local policy, would be vexatious or oppressive, would threaten the U.S. court’s in rem jurisdiction, or would prejudice other equitable considerations. (Zapata Off-Shore Company v. Unterweser Reederei GMBH, 428 F.2d 888 (United States Court of Appeals, Fifth Circuit, 1970))

The Chinese judgments show clear sign of borrowing the common law tests. In particular, the Huawei v Conversant judgment has high similarity with Huawei v Samsung judgment rendered by the California Northern District Court. The problem is the enjoined Düsseldorf judgment awarded FRAND rate instead of an unconditional injunction like the Shenzhen judgment. While enforcing a permanent injunction in the biggest market of Samsung may lead to a forced settlement which would make the US proceedings unnecessary or redundant, enforcing the court determined FRAND rate covering only one state may not have the same effect on the Chinese proceedings. In particular, due to different standards to calculate the FRAND rate, a higher rate covering the German market is not oppressive and would not result in a forced settlement for Chinese FRAND rate. The Wuhan judgment focuses on the vexatious foreign proceedings brought in bad faith and abuse of process. The Wuhan court considers the Indian proceedings was brought to frustrate the pending proceedings before the Wuhan court. The judgment seems to follow the English trait. However, the court did not fully explain how an action purely covering Indian patents and concerning Indian market would affect the Chinese proceedings based on contract. It is also unclear whether Chinese court could award a global FRAND rate as the English court will do. Although in contrast to many other judgments, these two judgments show reasonable quality and laudable efforts of reasoning, reading in details may suggest the courts have learnt more in form instead of substance. The judicial transplant of very unfamiliar common law instruments into Chinese practice seems a little awkward and immature.

3 Comity, Pragmatism and Rule of Law

Anti-suit injunction is a controversial instrument in that it may infringe foreign judicial sovereignty and comity. Even if it is technically directed to the respondent not a foreign court, it makes judgment on the appropriateness of foreign proceedings, which, in normal circumstances, should be judged by the foreign court. No matter how indirect the interference is, an interference is there. Such an approach is fundamentally incompatible with Chinese jurisprudence and diplomatic policy, which emphasise on the principle of sovereign equality and non-interference. China usually considers parallel proceedings tolerable which concern the judicial sovereignty of two countries and each could continue jurisdiction pursuant to their domestic law. (Art 533 of Civil Procedural Law Judicial Interpretation by SPC) Adopting anti-suit injunction to tackle foreign parallel proceedings or related proceedings directly contradicts this provision.

Since Chinese courts would not deviate from the central government’s policy, the two judgments may be a sign to show China is gradually adjusting its international policy from self-restraint to zealous competition, at least in the high-tech area. This is consistent with China’s strategic plan to develop its high-tech industry and a series of reform is adopted to improve IP adjudication. It may imply consideration of diffused reciprocity, i.e. since some foreign courts may issue anti-suit injunction to obstruct Chinese proceedings, Chinese courts should have the same power. It may also reflects China’s increased confidence on its institutions led by its economic power. The transplant of anti-suit injunction cannot be deemed as admiring foreign law, but a pragmatic approach to use any tools available to achieve their aims. Since anti-suit injunctions may interfere a state’s sovereignty, a foreign state may issue ‘anti-anti-suit injunction’ to block it. While injunction wars occur in high-tech cases, the final trump card should be a country’s economic power. Since China is the biggest market for many telecom products, it would be the last market that most companies would give up, which would provide Chinese courts a privilege.

Finally, since anti-suit injunction is not included explicitly in Chinese law, there is no consistent test applying to it. The two judgments have applied different tests following the practice from different common law countries. It is also noted that the lack of relevant training in exercise discretion in issuing anti-suit injunctions or applying precedents leads to uncertainty and some discrepancy. Issuing anti-suit injunction is serious in that it may affect comity and international relation. It is thus cannot be adopted randomly or flexibly by mirroring one or two foreign judgments. If China indeed wants to adopt anti-suit injunction, a test guidance should be provided. Anti-suit injunction needs to be issued under the rule of law.

 

 

 

 

In preparation of the Video Roundtable by the University of Bonn and the HCCH on 29 October 2020, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

Update of 27 June 2020: New entries are printed bold.

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

1. Explanatory Reports

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

2. Bibliography

Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Blom, Joost “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 Bonomi, Andrea “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 Bonomi, Andrea “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 Bonomi, Andrea;
Mariottini, Cristina M. “(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 Borges Moschen, Valesca Raizer;
Marcelino, Helder “Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319

(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) Brand, Ronald A. “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 Brand, Ronald A. “Jurisdictional Developments and the New Hague Judgments Project”, “in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon”, Cambridge 2013, pp 89-99 Brand, Ronald A. “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 Brand, Ronald A. “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 Çaliskan, Yusuf;
Çaliskan, Zeynep “2 Temmuz 2019 Tarihli Yabanci Mahkeme Kararlarinin Taninmasi ve Tenfizine Iliskin Lahey Anlasmasinin Degerlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245

(An Evaluation of 2 July 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) Clavel, Sandrine; Jault-Seseke, Fabienne “La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale: Que peut-on en attendre?”, Travaux du comité français de Droit international privé, Vol. 2018-2020, forthcoming (Version provisoire de la communication présentée le 4 octobre 2019 available here) Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 Cuniberti, Gilles “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 de Araujo, Nadia; De Nardi, Marcelo;
Spitz, Lidia “A nova era dos litígios internacionais”, Valor Economico 2019 de Araujo, Nadia;
De Nardi, Marcelo;
Lopes Inez;
Polido, Fabricio „Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34

  de Araujo, Nadia;
De Nardi, Marcelo „Consumer Protection Under the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 67-79 de Araujo, Nadia;
De Nardi, Marcelo „22ª Sessão Diplomática da Conferência da Haia e a Convenção sobre sentenças estrangeiras: Primeiras reflexões sobre as vantagens para o Brasil da sua adoção“, Revista de la Secretaría del Tribunal Permanente de Revisión 7 No. 14 (2019), páginas 198-221

(22nd Diplomatic Session of The Hague Conference and the Convention on Foreign Judgments: First Reflections on the Advantages for Brazil of their Adoption) Dotta Salgueiro, Marcos “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”, Netherlands International Law Review (NILR) 67 (2020), pp 113-120 Douglas, Michael;
Keyes, Mary;
McKibbin, Sarah;
Mortensen, Reid “The HCCH Judgments Convention in Australian Law”, Federal Law Review 47 (2019), pp 420-443 Franzina, Pietro; Leandro, Antonio

  “La Convenzione dell’Aja del 2 luglio 2019 sul riconoscimento delle sentenze straniere: una prima lettura”, Quaderni di SIDIblog 6 (2019), pp 215-231, available at http://www.sidi-isil.org/wp-content/uploads/2020/09/Quaderni-di-SIDIBlog-6-2019.pdf

(The Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments: A First Appraisal) Fuchs, Felix “Das Haager Übereinkommen vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Urteile in Zivil- oder Handelssachen“, Gesellschafts- und Wirtschaftsrecht (GWR) 2019, pp 395-399 Garcimartín, Francisco “The Judgments Convention: Some Open Questions”, Netherlands International Law Review (NILR) 67 (2020), pp 19-31 Goddard, David „The Judgments Convention – The Current State of Play”, Duke Journal of Comparative & International Law 29 (2019), pp 473-490 He, Qisheng “The HCCH Judgments Convention and the Recognition and Enforcement of Judgments pertaining to a State”, Global Law Review 3 (2020), pp 147-161 He, Qisheng “Unification and Division: Immovable Property Issues under the HCCH Judgement Convention”, Journal of International Law 1 (2020), pp 33-55 Jacobs, Holger “Der Zwischenstand zum geplanten Haager Anerkennungs- und Vollstreckungsübereinkommen – Der vorläufige Konventionsentwurf 2016“, Zeitschrift für Internationales Privatrecht & Rechtsvergleichung (ZfRV) 2017, pp 24-30 Jang, Junhyok “The Public Policy Exception Under the New 2019 HCCH Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 97-111 Jovanovic, Marko Thou Shall (Not) Pass – Grounds for Refusal of Recognition and

Enforcement under the 2019 Hague Judgments Convention, YbPIL 21 (2019/2020), pp. 309 – 332 Juepter, Eva “The Hague Jurisdiction Project – what options for the Hague Conference?”, Journal of Private International Law 16 (2020), pp 247-274 Kessedjian, Catherine “Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?“, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 19-33 Khanderia, Saloni „The Hague judgments project: assessing its plausible benefits for the development of the Indian private international law”, Commonwealth Law Bulletin 44 (2018), pp 452-475 Khanderia, Saloni “The Hague Conference on Private International Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?”, Journal of African Law 63 (2019), pp 413-433 Mariottini, Cristina „Establishment of Treaty Relations under The 2019 Hague Judgments

Convention“, YbPIL 21 (2019/2020), pp. 365-380 Mariottini, Cristina “The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, YbPIL 19 (2017/2018), pp 475-486. Meier, Niklaus “Notification as a Ground for Refusal”, Netherlands International Law Review (NILR) 67 (2020), pp 81-95 Nielsen, Peter Arnt “The Hague 2019 Judgments Convention – from failure to success”, Journal of Private International Law 16 (2020), pp 205-246 North, Cara “The 2019 HCCH Judgments Convention: A Common Law Perspective”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 202-210 North, Cara “The Exclusion of Privacy Matters from the Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 33-48 Oestreicher, Yoav „ ’We’re on a Road to Nowhere’ – Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments”, The International Lawyer 42 (2008), pp 59-86 Pertegás Sender, Marta “The 2019 Hague Judgments Convention: Its Conclusion and the road ahead”, in Asian Academy of International Law (publ.), Sinergy and Security: the Keys to Sustainable Global Investment: Proceedings of the 2019 Colloquium on International Law, 2019 Hong Kong, pp 181-190 Pertegás, Marta “Brussels I Recast and the Hague Judgments Project”, in Geert Van Calster (ed.), European Private International Law at 50: Celebrating and Contemplating the 1968 Brussels Convention and its Successors, Cambridge 2018, pp 67-82 Ribeiro-Bidaoui, João “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 Rumenov, Ilija “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-4040 Saumier, Geneviève “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 49-65 Schack, Haimo “Wiedergänger der Haager Konferenz für IPR: Neue Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens?“, Zeitschrift für Europäisches Privatrecht (ZEUP) 2014, pp 824-842 Schack, Haimo „Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 1-96 Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 Spitz, Lidia „Refusal of Recognition and Enforcement of Foreign Judgments on Public Policy Grounds in the Hague Judgments Convention – A Comparison with The 1958 New York Convention“, YbPIL 21 (2019/2020), pp 333-364 Stein, Andreas „Das Haager Anerkennungs- und Vollstreckungsübereinkommen 2019 – Was lange währt, wird endlich gut?“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 197-202 Stewart, David P. „Current Developments: The Hague Conference adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, American Journal of International Law (AJIL) 113 (2019), pp 772-783 Taquela, María Blanca Noodt; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue Critique de Droit International Privé 2019, pp 353-366 Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279 – 308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in: Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed., forthcoming Weller, Matthias Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019, in Christoph Althammer/Christoph Schärtl, Festschrift für Herbert Roth, in Vorbereitung. Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 5 (2017), pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368

 

The new issue of the Revue Critique de Droit International Privé (3/2020) is out. It contains three articles and numerous case notes.

In the first article, Horatia Muir Watt (Sciences Po) addresses the challenges raised by the new Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, under a geopolitical perspective (Le droit international privé au service de la géopolitique : les enjeux de la nouvelle Convention de la Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale)

The political stakes of the apparently innocuous legal regime governing the cross-border movement of judgments may be more complex and less rational than it might appear on reading the text of the new international convention, which has succeeded unexpectedly in coming into being twenty years after the failure of the previous great millennium project. The key to understanding these stakes lies in four different directions : the new place of the European Union at the negotiating table, exclusive of its Member States ; the awakening of China to the potential of private international law in terms of soft power to be wielded in support of the rebirth of the imperial Silk Route ; the post Brexit reintroduction of the markets of the Commonwealth into the wider game ; the weakening of the position of the United States in the era of “post-shame”. However, a further factor may be that the rules for the recognition and enforcement of foreign judgements are caught up in an additional race between competing models of international commercial dispute resolution.

In the second article, Dominique Foussard (Avocat au Conseil d’Etat et à la Cour de Cassation, French Bar) offers the opportunity to (re)discover the great figure of Jean-Jacques Gaspard Foelix (1791-1853) and its contribution to Private international Law (Le droit international privé de Foelix ou l’art périlleux de la transition, 1840-1847).

In the third article, Christiane Lenz (Rechtsanwältin, Qivive Avocats & Rechtsanwälte, German Bar) discusses the issue of provisional measures, pursuant article 35 of the Brussels I Regulation, in a Franco-German perspective (L’exploitation du rapport d’expertise français par le juge allemand : la toute-puissance de l’article 35 du règlement Bruxelles I bis).

Pursuant to Article 35 of Regulation 1215/2012, French Courts can order provisional measures according to Article 145 of the French Code of Civil Procedure despite a jurisdiction clause in favor of German courts if it is necessary to preserve evidence and if the means of evidence are located in France. French expert reports can be used in front of German Courts on the basis of the principle of substitution. In light of Article 35 of Regulation 1215/2012, Article 145 of the French Code of Civil Procedure must be interpreted in a way which does not require the application of the condition « before any legal process ». In addition, Article 35 of Regulation 1215/2012 may prevent the effects of Articles 29 and 31 (2) of Regulation 1215/2012 and the res iudicata effect.

It is worth noting that the editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (Slow savoir et transition périlleuse).

The full table of contents is available here.

As announced earlier on this blog, the Conference Frontiers in Civil Justice organized by the ERC team of Erasmus School of Law in Rotterdam, will take place on 16 and 17 November 2020.

The conference addresses four key issues in civil justice, which require a deeper and renewed reflection in light of their contribution of facilitating access to justice. Those concern the shaping of the interaction between formal and informal justice, the digitalization of consumer dispute resolution, the collectivizing and monetizing of civil litigation and justice innovation.

Renowned speakers and selected speakers following a call for papers will give their views. Keynotes will be given by Professor Dame Hazel Genn (UCL) and Hrvje Grubisic (European Commission).

View the programme and register for free online participation  here.

The conference is set up as a blended event, with speakers at the site and some presenting online. We will only be able to host a limited number of guests. If necessary, in the light of the COVID-19 situation, the conference will take place online entirely.
For more information, do not hesitate to contact us at kas@law.eur.nl (Betül).

This conference is organised by Erasmus School of Law of Rotterdam University and funded by an ERC consolidator grant from for the project ‘Building EU Civil Justice’.

In preparation of the Video Roundtable by the University of Bonn and the HCCH on 29 October 2020, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

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

1. Explanatory Reports

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

2. Bibliography

Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Blom, Joost “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 Bonomi, Andrea “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 Bonomi, Andrea “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 Bonomi, Andrea;
Mariottini, Cristina M. “(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 Borges Moschen, Valesca Raizer;
Marcelino, Helder “Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319

(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) Brand, Ronald A. “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 Brand, Ronald A. “Jurisdictional Developments and the New Hague Judgments Project”, “in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon”, Cambridge 2013, pp 89-99 Brand, Ronald A. “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 Brand, Ronald A. “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 Çaliskan, Yusuf;
Çaliskan, Zeynep “2 Temmuz 2019 Tarihli Yabanc? Mahkeme Kararlar?n?n Tan?nmas? ve Tenfizine Ili?kin Lahey Anla?mas?n?n De?erlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245

(An Evaluation of 2 July 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 de Araujo, Nadia;
De Nardi, Marcelo;
Lopes Inez;
Polido, Fabricio „Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34 de Araujo, Nadia;
De Nardi, Marcelo „Consumer Protection Under the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 67-79 de Araujo, Nadia;
de Nardi, Marcelo „22ª Sessão Diplomática da Conferência da Haia e a Convenção sobre sentenças estrangeiras: Primeiras reflexões sobre as vantagens para o Brasil da sua adoção“, Revista de la Secretaría del Tribunal Permanente de Revisión 7 No. 14 (2019), páginas 198-221

(22nd Diplomatic Session of The Hague Conference and the Convention on Foreign Judgments: First Reflections on the Advantages for Brazil of their Adoption) Dotta Salgueiro, Marcos “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”, Netherlands International Law Review (NILR) 67 (2020), pp 113-120 Douglas, Michael;
Keyes, Mary;
McKibbin, Sarah;
Mortensen, Reid “The HCCH Judgments Convention in Australian Law”, Federal Law Review 47 (2019), pp 420-443 Fuchs, Felix “Das Haager Übereinkommen vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Urteile in Zivil- oder Handelssachen“, Gesellschafts- und Wirtschaftsrecht (GWR) 2019, pp 395-399 Garcimartín, Francisco “The Judgments Convention: Some Open Questions”, Netherlands International Law Review (NILR) 67 (2020), pp 19-31 Goddard, David „The Judgments Convention – The Current State of Play”, Duke Journal of Comparative & International Law 29 (2019), pp 473-490 He, Qisheng

  “The HCCH Judgments Convention and the Recognition and Enforcement of Judgments pertaining to a State”, Global Law Review 3 (2020), pp 147-161 Jacobs, Holger “Der Zwischenstand zum geplanten Haager Anerkennungs- und Vollstreckungsübereinkommen – Der vorläufige Konventionsentwurf 2016“, Zeitschrift für Internationales Privatrecht & Rechtsvergleichung (ZfRV) 2017, pp 24-30 Jang, Junhyok “The Public Policy Exception Under the New 2019 HCCH Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 97-111 Jovanovic, Marko Thou Shall (Not) Pass – Grounds for Refusal of Recognition and Enforcement under the 2019 Hague Judgments Convention, YbPIL 21 (2019/2020), pp. 309 – 332 Kessedjian, Catherine “Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?“, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 19-33 Khanderia, Saloni „The Hague judgments project: assessing its plausible benefits for the development of the Indian private international law”, Commonwealth Law Bulletin 44 (2018), pp 452-475 Khanderia, Saloni “The Hague Conference on Private International Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?”, Journal of African Law 63 (2019), pp 413-433 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue Critique de Droit International Privé 2019, pp 353-366 Mariottini, Cristina „Establishment of Treaty Relations under The 2019 Hague Judgments Convention“, YbPIL 21 (2019/2020), pp. 365-380 Mariottini, Cristina “The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, YbPIL 19 (2017/2018), pp. 475-486. Meier, Niklaus “Notification as a Ground for Refusal”, Netherlands International Law Review (NILR) 67 (2020), pp 81-95 North, Cara “The 2019 HCCH Judgments Convention: A Common Law Perspective”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 202-210 North, Cara “The Exclusion of Privacy Matters from the Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 33-48 Oestreicher, Yoav „ ’We’re on a Road to Nowhere’ – Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments”, The International Lawyer 42 (2008), pp 59-86 Pertegás Sender, Marta “The 2019 Hague Judgments Convention: Its Conclusion and the road ahead”, in Asian Academy of International Law (publ.), Sinergy and Security: the Keys to Sustainable Global Investment: Proceedings of the 2019 Colloquium on International Law, 2019 Hong Kong, pp 181-190 Pertegás Sender, Marta “Brussels I Recast and the Hague Judgments Project”, in Geert Van Calster (ed.), European Private International Law at 50: Celebrating and Contemplating the 1968 Brussels Convention and its Successors, Cambridge 2018, pp 67-82 Ribeiro-Bidaoui, João “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 Rumenov, Ilija “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-4040 Saumier, Geneviève “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 49-65 Schack, Haimo “Wiedergänger der Haager Konferenz für IPR: Neue Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens?“, Zeitschrift für Europäisches Privatrecht (ZEUP) 2014, pp 824-842 Schack, Haimo „Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 1-96 Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 Spitz, Lidia „Refusal of Recognition and Enforcement of Foreign Judgments on Public Policy Grounds in the Hague Judgments Convention – A Comparison with The 1958 New York Convention“, YbPIL 21 (2019/2020), pp. 333-364 Stein, Andreas „Das Haager Anerkennungs- und Vollstreckungsübereinkommen 2019 – Was lange währt, wird endlich gut?“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 197-202 Stewart, David P. „Current Developments: The Hague Conference adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, American Journal of International Law (AJIL) 113 (2019), pp 772-783 Taquela, María Blanca Noodt; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279 – 308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in: Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed., forthcoming Weller, Matthias “Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019”, in Christoph Althammer/Christoph Schärtl, Festschrift für Herbert Roth, in Vorbereitung. Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Xu, Guojian

  “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 5 (2017), page 100-130 Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available at: https://journalsonline.academypublishing.org.sg/e-First/Singapore-Academy-of-Law-Journal) Zhao, Ning

  “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), page 345-368