Agrégateur de flux

RIDOC 2024: Rijeka Doctoral Conference has been announced by the RIDOC2024-Call.

Interested doctoral students and candidates in law or law-related areas may apply by sending the abstract accompanied by their CV to ridoc@pravri.uniri.hr.

Important dates:
20 September 2024 – application deadline
15 October 2024 – information on acceptance by the Programme Committee
13 December 2024 – conference presentation

RIDOC conferences have been organised by the University of Rijeka, Faculty of Law since 2016, regularly featuring sessions on private international law.

Matthias Lehmann (University of Vienna and Radboud University Nijmegen) has made available on SSRN the article on Digital Assets in The Conflict of Laws: A Comparative Search for the Ideal Rule that is being published on Singapore Journal of Legal Studies 2024. The abstract of the article reads as follows: Which law applies to private […]

By Csongor István Nagy, Professor of Law at the University of Galway, Ireland, and at the University of Szeged, Hungary, and research professor at the HUN-REN Center for Social Sciences, Hungary.

The overwhelming majority of the international community condemned Russia’s war against Ukraine as a gross violation of international law and several countries introduced unilateral measures freezing Russian assets. It has been argued that countries should go beyond that and use these assets for the indemnification of Ukrainian war damages. Confiscation would, however, be unprecedented and raise serious international law concerns. While states have, with good reason, been reluctant to react to one wrongful act with another, this question has given rise to intensive debate. Recently, the EU authorized the use of net profits from the frozen assets but not the assets themselves to support Ukraine.

In my paper forthcoming in the University of Pennsylvania Journal of International Law I argue that this question should be approached from the perspective of the public law-private law divide and international investment law may open the door to the use of a substantial part of the frozen assets for the purpose of war reparations. The pre-print version is available at SSRN.

 

Under international law, sovereign immunity rules out confiscation both as a countermeasure and a compensatory measure responding to acta jure imperii, such as military operations. Nonetheless, sovereign immunity does not extend to commercial matters, where judgments and awards can be enforced against state assets. Investment treaties, including the Russia-Ukraine BIT (RUBIT), “commercialize” acta jure imperii. They convert public law violations into quasi-commercial claims “immune from sovereign immunity.” Although not the norm, mass claims are not unknown in investment arbitration. This implies that if Ukrainian claims for war damages can be submitted to investment arbitration and incorporated into an arbitral award, they may have a solid legal basis for enforcement against Russian assets. A good part of these assets can be used for this purpose. Although “non-commercial” assets, such as the property of diplomatic missions, military assets, cultural property, items displayed at an exhibition and, most importantly, the property of the central bank are immune from enforcement due to sovereign immunity, sovereign direct investments, airplanes, ships and the assets of persons attributable to the state can be used to satisfy investment awards.

 

The key issue of the RUBIT’s applicability is territorial scope. Although, at first, the idea that Ukrainians may be awarded compensation on the basis of the RUBIT may raise eyebrows, in the Crimea cases arbitral tribunals just did that. They consistently applied the RUBIT to Russian measures and treated Crimea (strictly for the purpose of the BIT!) as the territory of Russia on account of de facto control and legal incorporation. The foregoing principles should be valid also outside Crimea in cases where Russia occupies a territory and/or unilaterally incorporates (annexes) it. And if these territories can be treated as a territory for which Russia bears responsibility under international law, Ukrainians may be able to rely on this responsibility.

 

The Crimea arbitral awards’ notion of territorial scope is not unprecedented in international law at all. For instance, in Loizidou v. Turkey and in Cyprus v Turkey, the European Court of Human Rights applied the European Convention on Human Rights to Turkey by reason of its occupation of Northern Cyprus. In Al-Skeini v. United Kingdom, it found the Convention applicable to the UK’s operations in Iraq on account of the occupation of the country.

 

Although the RUBIT was recently terminated by Ukraine, it remains in force until January 27, 2025, and has a “continuing effects” clause in Article 14(3), which sustains investment claims for ten years after termination.

 

 

Written by Hadrien Pauchard (assistant researcher at Sciences Po Law School)

The second issue of the Revue Critique de droit international privé of 2024 was released a few weeks back. It contains a rich thematic dossier of seven articles and several case notes.

Under the direction of Prof. Sabine Corneloup (Université Paris-Panthéon-Assas), the doctrinal section of this issue is entirely devoted to an in-depth study of the latest French immigration law (Loi n° 2024-42 du 26 janvier 2024 pour contrôler l’immigration, améliorer l’intégration). In line with the Revue Critique’s recent policy, this doctrinal part has been made available in English on the editor’s website (for registered users and institutions). Against the backdrop of tightening migration controls at the global scale, this Act radically shifts administrative, procedural, and substantial aspects of the status of aliens in France.

The dossier opens up with Prof. Hans van Loon’s (University of Edinburgh, former Secretary General of the HCCH) call for La nécessité d’un cadre mondial de coopération pour une réglementation durable de la migration de travailleurs (The need for a cooperative global framework for a sustainable regulation of labor migration). Its abstract reads as follows:

“Sustainable regulation of labor migration cannot be based exclusively on unilateral initiatives by a given country individually, but requires the development of a worldwide framework for cooperation between states, which is sorely lacking at present. Both realistic and highly ambitious, the author proposes a – fully drafted – framework convention aimed at strengthening practical cooperation at global level for a particular type of crossborder displacement of persons for work: temporary and circular migration. This framework could subsequently be extended to other types of migration.”

Adopting the same critical ambition, the subsequent articles further engage with the French bill by following the order of its chapters.

In this vein, Prof. Fabienne Jault-Seseke (Université Paris-Saclay, UVSQ) first assesses the law’s provisions relating to L’accès au séjour : l’objectif d’intégration au service d’un discours brouillé (Access to residency: the objective of integration serving a blurred discourse). It is introduced as follows:

“Fabienne Jault-Seseke highlights the restriction of the conditions for obtaining residence permits, both for new arrivals and for foreign citizens applying for long-term permits. With regard to one of the Act’s flagship measures – the regularization of undocumented workers in short-staffed occupations – the author regrets that the reform’s contribution is ultimately very limited, and that its scope has been further reduced by an administrative order, casting doubt on the legislator’s real desire to promote work as a factor of integration.”

Then, Prof. Thibaut Fleury Graff (Université Paris-Panthéon-Assas) severely judges L’éloignement des étrangers dans la loi du 26 janvier 2024 : régression des protections, extension des rétentions (The expulsion of foreign nationals under the January 26, 2024 law: regression of protections, extension of detentions). His contribution’s abstract reads as follows:

“The author shows the regression in protection resulting from the removal of legislative obstacles to expulsion. In place of the general, objective protection against expulsion enjoyed by certain categories of foreign nationals under the law, the reform substitutes a case-by-case review, by the administrative authority and the administrative judge, of the rights and freedoms constitutionally and conventionally recognized for foreign nationals. This casuistic approach to deportation is accompanied by new provisions facilitating measures that deprive or restrict freedom (administrative detention, house arrest, bans), the duration of which has also been extended.”

In the fourth article, Prof. Natalie Joubert (Université de Bourgogne) takes a hard look on La loi Immigration du 26 janvier 2024 et les droits sociaux (The immigration law of January 26, 2024 and social rights). Her analysis is presented as follows:

“Natalie Joubert highlights the issue of ‘disguised national preference’, which was to have taken the form of a condition of length of legal residence in France – ultimately censured by the Constitutional Council – in historical context, before showing that this condition was not actually censured in itself, but only for its excessive duration. In terms of taking into account the vulnerability of foreign nationals, the author contrasts an advance in protection of access to housing, with a regression in the protection of young adults and asylum seekers.”

The Act also implements Une réforme structurelle du droit d’asile (A structural reform of asylum law), which is precisely the subject of Prof. Sabine Corneloup’s study. Its abstract reads as follows:

“In the field of asylum law, the most noteworthy contribution has been the structural reform of both the administrative and judicial phases of the asylum procedure. Sabine Corneloup analyzes the territorialization of the two phases, which raises considerable material and human stakes, and shows that the introduction of the principle of a single judge before the National Asylum Court, which removes the United Nations High Commissioner from the procedure, can only give rise to the most serious reservations. Whether or not the collegiate system is maintained in the future will depend exclusively on the policy of the President of the Court. With regard to the status of individuals, the author shows that, through the new cases of administrative detention and house arrest of asylum seekers, the Act affects the very legal grounds for such measures.”

The sixth contribution is authored by Stéphanie Gargoullaud (Cour d’appel de Paris) and tackles the procedural aspects of La loi Immigration du 26 janvier 2024 et les règles du contentieux administratif et judiciaire (The Immigration Act of January 26, 2024 and the rules of administrative and judicial litigation). The following abstract was provided:

“Stéphanie Gargoullaud analyzes the law’s main contributions to both judicial and administrative processes. The legislator’s stated aim of simplifying the rules 4 meets a strong expectation on the part of those concerned, given that the French system had become too complex. While simplification is perceptible in the case of administrative recourse, where the number of procedures has been reduced to three, it is hardly visible in the numerous provisions reforming court process concerning administrative detention and waiting zones.”

Last but not least, Prof. Jules Lepoutre (Université Côte d’Azur) discusses La nationalité dans la loi du 26 janvier 2024 : une apparition éphémère, des questions persistantes (Nationality in the law of January 26, 2024: a fleeting appearance, some enduring interrogations). The abstract reads as follows:

“Nationality and citizenship law was at the heart of parliamentary debates, even though it did not feature in the initial bill and occupies a rather anecdotal place in the enacted text. The provisions introduced by the Senators concerning the restriction of ‘droit du sol’, the extension of forfeiture of nationality, the raising of language requirements for naturalization, etc. did not pass constitutional scrutiny. Jules Lepoutre shows that both the policy pursued by the legislator and the control exercised by the constitutional court reveal much about contemporary issues relating to belonging: the presence of reiterative ideologies, and the strong interconnexion between nationality and citizenship on the one hand and immigration and integration on the other.”

What’s more, the international audience will undoubtedly be interested in the Bibliographic section of the issue, which has always been a remarkable feature of the Revue critique. Under the direction of Dr. Elie Lenglart (Université Université de Lille) and Dr. Sandrine Brachotte (UC Louvain), this section has diversified to include major French-language and non-French-language publications in both private international law and international arbitration, as well as contemporary works in global law. Notably, some reviews are authored in English and will therefore benefit readers beyond the borders of the francophonie.

The full table of contents is available here.

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

Dear Friends and Colleagues,

Kindly allow us to invite you to two events that mark the completion of a research project carried out at the University of Bonn in respect to the Washington Principles on Nazi-Confiscated Art: The elaboration of a “Restatement of Restitution Rules for Nazi-Confiscated Art“. The formal Closing Event of the Project (proceedings in German language) will take place at the University of Bonn on 4 September 2024 (7:00 p.m.). An international presentation will follow and take place at New York University (NYU) on 16 September 2024 (6:00-8:30 p.m.), organised by the  Center for Transnational Litigation, Arbitration and Commercial Law.

 

Five years ago, fundamental research started in Bonn to develop a “Restatement of Restitution Rules for Nazi-Confiscated Art” (RRR). This research was funded by the Federal Government Commissioner for Culture and the Media (“BKM”). Since then, around 1,300 cases from six jurisdictions – Germany, Austria, the Netherlands, France, the United Kingdom and Switzerland – have been recorded and their normative content comparatively scrutinized: Which „tipping points“ for evaluation recur? How have these points been handled in each case and why? Which arguments are systematically convincing in relation to others (“grammar of reasons”), which are less so? What are the principles that guide the decision-making process? Which procedural building blocks from current practice are convincing according to general procedural theory (“best practices”), which less so? The fundamental experience to be taken from the project is one that has always been described in comparative legal studies: only a comparison with others enables a true understanding of one’s own.

Our comparative work has resulted in a project text of around 1,100 pages: Eight articles – Art. 1 RRR to Art. 8 RRR – outline the central recurring issues in formulated rules, which are intended to reflect the normative essence of the issues. Some rules are rather concise, others concern a highly complex set of issues and therefore contain many paragraphs. The text of each rule is followed by a commentary explaining how the proposed rule was generated from practice, which tendencies in practice support the rule and which other tendencies appear to run counter to it. Country reports subsequently analyze the respective practice of the individual jurisdictions, always starting with an abstract overview of the respective issue. The case material referred to is then systematically organized in abstract summaries.

At our Talk at the New York University, we would like to present to you the results of our project. We feel greatly privileged that renowned professors and supporters of our project will deliver their comments on the RRR. The same holds true for the accompanying Closing Event at the University of Bonn on 4 September (in German). Following this event, we will invite you to a small reception.

If you are interested, please register: For the Talk in New York here, for the Closing Event in Bonn with sekretariat.weller@jura.uni-bonn.de. Regarding further information, please consult our institute’s homepage or refer to the atttached pdf Programme (NYU;Bonn). We would be very pleased to see you.

As already noted on this blog, a PAX Moot Court Half-Day Conference was held on 26 April 2024, organized by the Centre for Private International Law at the School of Law of the University of Aberdeen, in cooperation with the Faculty of Law of the University of Ljubljana. The conference titled Private International Law in […]

The third issue of the Lloyd’s Maritime and Commercial Law Quarterly was recently released. It contains the following article, case note and book reviews:

Adrian Briggs, “The Hague 2019 Convention”

The Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters 2019 will come into force for the United Kingdom on 1 July 2025. It will represent the principal means for the mutual recognition of judgments between the United Kingdom and the European Union (and any other states adopting it), and it is for this reason timely to examine the instrument which will replace, but certainly not replicate, Chapter III of the Brussels I Regulation. In discussing the structure and detail of the Convention, it is noticeable how far it falls short of the pre-existing regime.

Pau S Davies and Katherine Ratcliffe, “Anti-Arbitration Injunctions and Stays to Arbitration”

Andrew Tettenborn, “Book Review – The 2019 Hague Judgments Convention”

Adrian Briggs, “Book Review – Governing aw Risks in International Business Transactions”

 

Emory University School of Law seeks applications from outstanding tenured scholars for a Distinguished Professorship in Civil Litigation. This professorship recognizes distinguished achievement in scholarship and teaching of disciplines related to civil litigation, including civil procedure, complex litigation, evidence, conflict of laws, and others focused on civil litigation. Candidates must have exceptional records in research, teaching, and service and have attained a J.D., Ph.D., or equivalent degree. Candidates should currently hold a tenured academic appointment and should be eligible for appointment as a full professor at Emory. For candidates meeting the law school’s standards for scholarly excellence and the demonstrated ability to teach civil litigation courses, the interest in teaching first-year Civil Procedure will be an additional positive factor.

Candidates must complete the online application which requires creating an account, uploading a resume or CV, and providing basic demographic information. In addition, applicants should submit a cover letter, a current CV, a published or unpublished academic article, a brief research agenda, and an indication of teaching interests (if not listed on the CV) to the chair of the Appointments Committee: Professor Joanna Shepherd, at law.faculty.appointments@emory.edu.  Applications will be considered on a rolling basis.

As already noted on this blog, Xandra Kramer (Erasmus University Rotterdam and Utrecht University) and Laura Carballo Piñeiro (University of Vigo) edited Research Methods in Private International Law – A Handbook on Regulation, Research and Teaching. An online book launch is scheduled for 10 September 2024, from 10am to 12pm CEST. During this event, several […]

A major reform of the CJEU was published at the OJEU last week: Regulation (EU, Euratom) 2024/2019 of the European Parliament and of the Council of 11 April 2024 amending Protocol No 3 on the Statute of the Court of Justice of the European Union, OJ L, 2024/2019, 12.8.2024. In particular, preliminary rulings will be shared between the Court of Justice and the General Court (insertion of Article 50 ter), a first since the creation of the preliminary rulings procedure. The same issue of the Official Journal publishes new version of the Rules of Procedure of both Courts and associated documents.

 The second issue of 2024 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Sara Tonolo, Professor at the University of Padova, Il contributo degli studiosi italiani ai corsi de l’Aja di diritto internazionale privato (1973-2023) [The Contribution of Italian Scholars to The Hague Academy Courses on Private International Law (1973-2023); in Italian]

The Private International Law Courses taught by Italian scholars within the Hague Academy have undergone an interesting evolution that deserves consideration on the occasion of the Academy’s Centennial Anniversary, especially regarding the period between 1973 and 2023. Alongside features commons to the courses of the initial period, such as the approach to the study of private international law, outlined by Pasquale Stanislao Mancini, and the comparative method, there are however distinctive and noteworthy features in the courses offered between 1973 and 2023. Among the topics analysed in the Italian Courses during the considered period, the recognition of the substantive effectiveness of judgments through private international law rules is particularly noteworthy both for its influence on the national codification of private international law, and for its relevance in addressing coordination issues arising from the communitarization of private international law. This topic is particularly relevant concerning the interrelation of private international law with other areas of international law, such as international protection of human rights. Given the circular relationship between international protection of human rights and private international law, coordination needs to be established within a debate that is becoming increasingly complex among private international law scholars, thanks also to the role of Italian scholars within the Hague Academy.

Giacomo Biagioni, Associate Professor at the University of Cagliari, Dichiarazione ONU sui diritti dei contadini e diritto internazionale privato dell’Unione europea [The UN Declaration on the Rights of Peasants and EU Private International Law; in Italian]

On 17 December 2018 the United Nations General Assembly adopted by a majority the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas, stressing the importance of agricultural production and recognizing individual and collective rights granted to people living and working in rural areas. The paper aims at assessing the possible impact of the principles enshrined in the Declaration on the system of private international law sources, moving from the general assumption that UN declaration of principles may contribute to the interpretation of domestic law. As peasants and other workers in rural areas can qualify, under the 2018 Declaration, as weaker parties, the paper attempts to clarify to what extent solutions enacted in EU private international law for other categories of weaker parties (such as employees or consumers) with regard to conflict-of-laws and to jurisdictional competence in contractual matters may be extendable to peasants. However, the general approach of EU instruments concerning judicial cooperation in civil matters does not seem to be especially open to receiving the instances of protection of the rights of categories of weaker parties, which are not expressly mentioned in those instruments. Accordingly, as the law now stands, only recourse to general clauses (fraude à la loi, public policy, overriding mandatory rules) may lead to give some consideration to the special position of peasants and other workers in rural areas and to adapt private international law rules to the protection of their fundamental rights.

This issue also comprises the following comments:

Anna Liebman, Research Fellow at the University of Milan, Il rinvio ai criteri della convenzione di Bruxelles del 1968 nel diritto internazionale privato italiano: orientamenti consolidati e questioni aperte [The Reference to the Jurisdiction Criteria of the 1968 Brussels Convention in Italian Private International Law: Established Orientations and Open Questions; in Italian]

The article examines a few issues arising in connection with the reference made by Art 3(2) of Law 31 May 1995 No 218 to the criteria laid down in the 1968 Brussels Convention. In the article, it is first observed how, in recent times and especially in the light of two recent judgments of the Italian Supreme Court, the traditional orientation has completely changed, and that scholars and jurisprudence agree in considering the reference made by this provision as a reference to the most recent EU regulations and not to the 1968 Convention. Second, the article emphasises need for a uniform interpretation of the criteria nationalised by Art 3(2), as this is considered the only solution that allows not to undermine the coherence of the system. Lastly, the  article takes into consideration the possibility for Italian judges to submit a reference for a preliminary ruling to the Court of Justice of the European Union concerning the interpretation of the European discipline made applicable through Art 3 of Law No 218/1995, a possibility that seems to find consideration in the European case law.

Enrico Pedrotti, Juris Doctor, Problemi di giurisdizione in tema di azione contrattuale di garanzia proposta in via autonoma [Questions of Jurisdiction in Contractual Warranty Actions Brought in Autonomous Proceedings; in Italian]

Relying on the Italian Court of Cassation’s judgment No 613 of 8 January 2024, according to which Italian courts do not have jurisdiction pursuant to Art 8(2) of Regulation (EU) No 1215/2012 when an action on guarantee is brought in autonomous proceedings, this article discusses the link between such provision and national procedural rules on guarantees, highlighting how the exercise of judicial discretion in the authorization of a third-party claim in accordance with Art 269 of the Italian Code of Civil Procedure bears significant consequences on jurisdiction. Furthermore, the Author discusses the applicability of Art 7(1)(b) of Regulation No 1215/2012 on the basis of Art 3 of Law 31 May 1995 No 218 reforming the Italian system of private international law, in case the place of performance is located outside the EU, concluding in the negative.

Finally, the issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Mihail DANOV, Private International Law and Competition Litigation in a Global Context, Hart Publishing, Oxford, 2023, pp. XI-375.

Private International Law in BRICS: Convergence, Divergence and Reciprocal Lessons, edited by Stellina Jolly and Saloni Khanderia, has just been published by Bloomsbury Publishing. The blurb reads: This book examines the convergences, divergences and reciprocal lessons that the BRICS countries (Brazil, Russia, India, China and South Africa) share with one another in developing the principles […]

By Dr Benjamin Hayward
Associate Professor, Department of Business Law and Taxation, Monash Business School
X: @LawGuyPI, @MonashITICL

On 7 August 2024, the High Court of Australia handed down its long-awaited decision in Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24. The dispute arose out of a domestic commercial arbitration seated in South Australia, where the Commercial Arbitration Act 2011 (SA) is the relevant lex arbitri. That Act is a domestically focused adaptation of the UNCITRAL Model Law on International Commercial Arbitration (with its 2006 amendments).

The respondent to the arbitration sought to rely upon proportionate liability legislation found in the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) and in the Competition and Consumer Act 2010 (Cth). The High Court was asked to determine whether those proportionate liability regimes could be applied in the arbitration. A very practical difficulty arose here, reflected in Steward J noting (in dissent) that the High Court was ‘faced with an invidious choice’: see [228]. Were the proportionate liability laws not to apply in the arbitration, the respondent might find themselves liable for 100% of the applicant’s loss, when they would not be liable to that same extent in court proceedings applying the same body of South Australian law. But were the proportionate liability laws to apply, the applicant might find themselves able to recover only a portion of their loss in the arbitration, and might then have to then pursue court proceedings against another third party wrongdoer to recover the rest: given that joinder is not possible in arbitration without consent.

By a 5-2 majority, the High Court decided that these proportionate liability regimes were to be applied in the arbitration. There has been much commentary published already as to what this means for arbitration law in Australia – including here, and here. What might be of most interest for this blog’s audience, however, is to note that the High Court’s reasoning was grounded in the application of private international law.

All of the High Court’s judgments in Tesseract – both majority and dissenting – recognised that whether or not the substantive law aspects of the two relevant proportionate liability regimes applied in the arbitration was a question of applicable law, to be resolved via South Australia’s implementation of Art. 28 Model Law. This is not the first time that this provision has been addressed by the High Court of Australia. The High Court was also required to analyse its effect in a failed constitutional challenge to Australia’s implementation of the Model Law in the international commercial arbitration context in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533. In that case, it was confirmed that Art. 28 Model Law does not require arbitrators to apply the law correctly. It was also confirmed that there is no separate term implied into an arbitration agreement having that effect.

It does not appear that the relationship between TCL and Tesseract has been appreciated in some existing commentaries on Tesseract, including in this blog which asks ‘[i]f the arbitrator gets it wrong, will that open the award to an enforcement challenge[?]’ Viewing Tesseract in light of TCL’s previous analysis, it appears that there should be no recourse against an award if an arbitrator correctly identifies the law of an Australian jurisdiction as applicable, but incorrectly applies (or even completely fails to apply) that jurisdiction’s proportionate liability laws. It is now trite law in Australia, as around the world, that errors of law do not ground recourse against an award under either the Model Law or the New York Convention.

Interestingly, the fact that Art. 28 Model Law was the key provision underpinning the High Court’s analysis in Tesseract should also answer a matter identified in some other commentaries – including here, here, and here – around Queensland law prohibiting parties from contracting out of its proportionate liability regime, and Victorian, South Australian, ACT, and Northern Territory law being silent on that contracting out issue. Since Art. 28(1) Model Law permits parties to choose rules of law, and not only law in the sense of a complete State legal system, it is arguably open to arbitrating parties to exclude the operation of proportionate liability laws in all Australian jurisdictions regardless of what they say about contracting out. In such cases, the parties would simply be choosing rules of law – which is a type of choice that Art. 28(1) Model Law permits.

Thus, whilst one of the first questions asked about Tesseract has been ‘[i]s the decision arbitration-friendly?’, it is perhaps not too controversial to suggest that Tesseract was a case less about arbitration itself, and more about private international law.

The book is based on Dr. Ekaterina Aristova’s PhD thesis, completed at the University of Cambridge and subsequently refined through postdoctoral research at the University of Oxford. The core content of the book spans eight chapters across 297 pages, excluding the preface, series editor’s preface, table of contents, and index.

The book explores the approach of English courts to jurisdictional issues in foreign direct liability (FDL) claims brought against English-based parent companies and their foreign subsidiaries as co-defendants. While written from the perspective of English law, it incorporates comparative insights from similar FDL claims in other jurisdictions, including Australia, Canada, EU Member States, and the US.

The book is particularly notable for its observation—citing Professor Robert McCorquodale—that FDL claims intersect with various fields of law, such as domestic criminal law, tort law, contract law, human rights and constitutional law, comparative law, public international law, and private international law. Despite these intersections, the book primarily focuses on the private international law aspect of civil jurisdiction in FDL claims before English courts.

Chapter 1 introduces the book by highlighting the significant role of transnational corporations (TNCs) and the substantial impact their operations have had on human rights violations within the business context. It also briefly clarifies key terminologies used throughout the book.

The introduction is divided into three crucial sections. Section A provides the necessary context for discussing foreign direct liability (FDL) claims. Section B defines the book’s scope, identifies the research questions, and outlines the general methodology employed in the study. Section C concludes with an overview of the book’s structure.

Chapter 2 addresses a major challenge in the regulation of transnational corporations (TNCs): the mismatch between the global nature of TNCs’ operations, carried out by legally distinct companies, and the territorial jurisdiction of sovereign states. Aristova highlights the difficulties in providing a clear legal definition of TNCs due to their complex, multi-tiered structures. While a precise definition is not offered, she notes that TNCs typically possess characteristics of corporate groups and contractual networks.

The chapter then discusses the challenges and potential solutions for holding TNCs accountable, focusing on the principles of corporate legal personality that separate parent companies from their subsidiaries and the public international law principle of territoriality. Finally, Aristova traces the origins of an emerging legislative trend toward legally binding instruments that mandate parent companies of TNCs to conduct human rights due diligence in cross-border business operations.

Chapter 3 provides a comprehensive analysis of litigation against transnational corporations (TNCs) across various jurisdictions, with a particular focus on English courts. It examines how foreign direct liability (FDL) claims have contributed to enhancing corporate accountability for human rights violations.

The chapter begins by introducing a hypothetical FDL case, involving an English-based parent company accused of negligently exercising (or failing to exercise) control over the overseas operations of its foreign subsidiary, resulting in harm to the subsidiary’s employees. Next, it explores how tort law, particularly the negligence element of the duty of care, has been utilised in English courts to circumvent the principle of corporate legal personality, which separates parent companies from their subsidiaries.

Chapter 3 also offers a comparative overview of the global litigation landscape, highlighting key case law developments in Western countries where powerful multinational corporations are headquartered. Jurisdictions considered include the United States, Canada, EU Member States (notably Germany and The Netherlands), and Australia, where claimants have sought justice by initiating FDL claims.

Finally, the chapter addresses the regulatory function of FDL claims, examining issues such as the uneven litigation landscape, fact-sensitive inquiries, the lack of precedents, the interplay between tort law and human rights, barriers to justice in home states, the balance between compensation and deterrence, and the question of whether tort law provides an effective solution.

Chapter 4 examines the capacity and challenges faced by English courts in adjudicating foreign direct liability (FDL) claims.

First, Section A presents the pre-Brexit framework of jurisdictional rules, focusing on Articles 4, 8, 33, and 34 of the Brussels I Recast Regulation. During the UK’s membership in the EU, establishing the domicile of an EU defendant company in transnational and parallel litigation was crucial for determining jurisdiction. It also considers the traditional English jurisdictional rules applied to other foreign companies during the pre-Brexit period.

Second, Section B addresses the impact of Brexit on jurisdictional matters. Post-Brexit, jurisdiction between the UK and the EU is now determined primarily by English traditional jurisdiction rules, the Hague 2005 Convention, and as from 1 July 2025,  the Hague 2019 Convention. Under common law, jurisdiction is fundamentally based on service, which is divided into two categories: jurisdiction as of right and jurisdiction with leave of the court. Jurisdiction as of right is determined by service and submission, subject to the principle of forum non conveniens. Jurisdiction with leave of the court is governed by Civil Procedure Rules 6.36 and 6.37, which require the claimant to demonstrate that (i) a jurisdictional gateway applies, (ii) the claim has a reasonable prospect of success, and (iii) England is the appropriate forum to hear the case.

Finally, Section C concludes by discussing some of the conceptual and practical flaws in the jurisdictional rules applied by English courts in FDL claims.

Chapter 5 explores the impact of transnational corporations (TNCs) and their rapid expansion across borders, which complicates the traditional view of private international law as a neutral set of rules. While Aristova does not seek to challenge the conventional understanding of the discipline or propose a normative stance on its role in addressing globalisation, the chapter instead aims to establish a more refined and focused approach to exercising jurisdiction in FDL claims.

Chapter 6 builds on the objectives of Chapter 5 by identifying the key factors to consider when assessing the suitability of English courts as a forum for disputes involving English parent companies and their foreign subsidiaries as co-defendants. These factors are divided into two categories: the private interests of litigants involved in FDL claims and the State’s interests in exercising jurisdiction over such cases.

Section A briefly examines why claimants often choose to bring FDL claims in England, setting the stage for jurisdictional disputes over the venue. Section B evaluates the claimants’ choice of forum against the procedural fairness of jurisdictional rules from the corporate defendant’s perspective. It considers factors such as the English-based parent company’s personal connections to the home state, the economic and managerial structure of TNCs, the avoidance of parallel litigation across multiple forums, the burden on corporate defendants defending in England, and the predictability and legal certainty of jurisdictional rules.

Section C discusses the broader policy implications English courts cannot avoid when English-based TNCs are accused of overseas human rights violations. It argues that the increasing significance of international, regional, and domestic frameworks for holding TNCs accountable calls for an open acknowledgment of the public interest in trying FDL claims against English parent companies and their subsidiaries in English courts.

Finally, Section D considers English courts’ assertions of jurisdiction in FDL claims from the perspective of host states, addressing foreign policy concerns such as potential infringements on state sovereignty. It examines whether home state adjudication of FDL claims can align with the host state’s interests.

Chapter 7 explores whether introducing a new connecting factor that explicitly accounts for the economic reality of transnational corporations (TNCs) could better address the complexities of FDL claims and improve how English courts determine jurisdiction. Aristova discusses the economic enterprise theory, which proposes that when a parent company and its subsidiaries are closely integrated and function as a single economic entity, their separate legal identities may be disregarded. This theory, Aristova explains, could provide a new framework for jurisdiction in FDL claims.

Aristova acknowledges that the economic enterprise theory has received limited attention in academic and judicial contexts and remains somewhat vague and uncertain. Nevertheless, she suggests that the theory might offer a viable approach for FDL jurisdiction cases in English courts.

I must confess, without claiming expertise in this area, that Chapter 7 is particularly complex—especially the discussion of the economic enterprise theory, which I found unclear. Aristova distinguishes this theory from the concept of piercing the corporate veil, but her arguments would have been more persuasive had she more convincingly demonstrated why this theory is superior to the existing tort-based approach. The current approach, endorsed by the UK Supreme Court, holds that a parent company owes a duty of care to individuals harmed by its subsidiary’s activities if it exercises de facto control or oversight over the relevant harmful actions. Furthermore, Aristova does not advance the economic enterprise theory with much confidence, instead tentatively suggesting it as a potential alternative for future legislative consideration.

Chapter 8 concludes the work by reaffirming the importance of ensuring that victims of FDL claims are given the opportunity to have their day in court and access a remedy.

A minor critique is that the use of abbreviations in the substantive chapters could have been reduced to improve readability. A better approach would be to introduce the full term followed by its abbreviation in each chapter, rather than doing so only once for the entire book.

Overall, the monograph is well-written and highly engaging. It is thorough, particularly in its coverage of English cases, and Aristova demonstrates expert knowledge of the subject.

 

 

 

 

 

 

 

 

 

 

 

The book by Brand, Coffee, and Herrup offers a thorough examination of the Hague 2019 Convention on the Recognition and Enforcement of Foreign Judgments (commonly referred to as “The Hague Judgments Convention”). Concluded on July 2, 2019, the Convention currently has 31 Contracting States, including all 27 EU member states, the European Union, and Ukraine. Uruguay has signed and ratified the Convention, which will enter into force on October 1, 2024. The United Kingdom has ratified the Convention, with the Convention taking effect there on July 1, 2025.

The book primarily focuses on the interpretation of The Hague Judgments Convention, offering 226 pages of substantive content spread across 11 chapters (excluding the table of contents, appendix, and index). It is largely intended as a practitioner’s guide. The three authors, all from the United States, and also all member of the U.S. Delegation to Special Commissions and the Diplomatic Sessions of the Hague Conference on Private International Law that adopted the 2005 Convention on Choice of Court Agreements (“Hague 2005 Convention”) and the Hague Judgments Convention. They strive for objectivity but on few occasions critique the Convention through the lens of U.S. conflict of laws. They particularly challenge the Convention’s approach to recognition and enforcement, which relies on rigid rules predominantly linked to physical presence—a methodology influenced by the Brussels I Recast Regulation.

Chapter 1 provides an introduction to The Hague Judgments Convention, highlighting its three core functional provisions. First, Article 4(1) stipulates that recognition and enforcement of judgments can only occur between Contracting States, as outlined in Chapter II of the Convention, and subject to other provisions. Second, Article 5(1) sets forth the eligibility criteria for recognition and enforcement of foreign judgments, listing thirteen specific provisions, with an additional criterion in Section 6. Third, Article 6 establishes the requirement that foreign judgments in rem (concerning property) are only recognised and enforced if the property was located in the court of origin. Regardless of national law, if the property in question was not situated in the country of origin, the Convention mandates that such judgments be denied recognition and enforcement.

The authors in the Introduction highlight the significance of the Hague 2019 Convention in five key ways. First, it facilitates globalisation by supporting the transnational movement of people, goods, and services. Second, the Convention should be viewed as a global instrument that complements the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Hague 2005 Convention on Choice of Court Agreements, as these other instruments do not specifically address the broad spectrum of issues—including non-contractual obligations—covered by the recognition and enforcement of foreign judgments. Third, the Hague 2019 Convention governs the recognition and enforcement of foreign judgments by courts, indicating that it involves the judicial exercise of State powers and necessitates judicial cooperation among contracting states. Fourth, the Convention does not address the jurisdiction to adjudicate (“direct jurisdiction”) but rather assesses how the court of origin exercised jurisdiction based on minimum acceptable conditions (“indirect jurisdiction”). Finally, unlike the Brussels I Recast, which relies on rigid classifications of subject matters, the Hague Judgments Convention adopts a broader approach to eligibility criteria, focusing on the connections between the judgment debtor and the country of origin, the subject matter and the country of origin, as well as consent.

The introduction concludes with reflections on how the Hague Judgments Convention may be interpreted in the future, particularly regarding concepts that are not clearly defined within the Convention.

Chapter 2 offers a concise overview of judgment recognition in the absence of a judgment’s convention, emphasising historical perspectives on the global recognition and enforcement of foreign judgments, as well as national and regional initiatives, particularly in the United States and the European Union. A notable point is the commendation of Article 15 of The Hague Judgments Convention, which permits Contracting States to apply their national rules for recognising and enforcing foreign judgments if those rules are more favourable than the Convention’s provisions. Essentially, the Convention establishes only the minimum criteria for the recognition and enforcement of foreign judgments.

Chapter 3 provides a brief history of the negotiations that led to the formation of The Hague Judgments Convention. Notably, Professor Arthur von Mehren initially proposed a model combining direct and indirect jurisdiction rules for the Convention—a mixed or double Convention model similar to Brussels I Recast. However, unlike Brussels I Recast, these jurisdictional rules were intended to be neither exhaustive nor exclusive. Following the entry into force of The Hague 2005 Convention, which focused on exclusive choice of court agreements related to both jurisdiction and enforcement of foreign judgments, the Hague Experts Working Group was tasked with developing separate conventions: one for recognition and enforcement and another for jurisdiction. Consequently, on July 2, 2019, the Diplomatic Session concluded The Hague Convention on the Recognition and Enforcement of Foreign Judgments.

Chapter 4 centres on the interpretation of The Hague Judgments Convention, making it a crucial part of the book given its overall focus on interpretation. The authors explain that their approach is primarily text-based, adopting a positivist and autonomous methodology. However, they acknowledge several challenges, such as determining the “correct” autonomous interpretation and grappling with terms that are not clearly defined within the Convention. In the absence of a “Global Court” to resolve these ambiguities, there is a risk of divergent interpretations by the courts of Contracting States, which could hinder the realisation of Article 20 of the Convention, which aims to ensure that interpretation respects its international character and promotes uniformity.

The authors also argue that, since the Convention was forged through consensus, any provisions not grounded in clear, established agreement may be subject to varying national interpretations. Despite these challenges, they propose alternative methods for interpreting the Convention, including considering the preamble, extra-textual sources of consensus, the explanatory report, statements from the plenary sessions of the diplomatic conference, and other sources within the Judgments Project, as well as drawing parallels with The Hague 2005 Convention.

Chapters 5 through 9 offer a detailed analysis of the substantive provisions of the Hague Judgments Convention, providing commentary on each Article and its subsections. Each chapter begins by quoting the relevant Article, followed by a precise analysis.

Chapter 5 focuses on Chapter I of the Hague Judgments Convention, which addresses the scope and definitions outlined in Articles 1 to 3. Article 1 establishes that the Convention applies exclusively to civil and commercial matters and pertains to judgments from Contracting countries, excluding inter-state judgments. Article 2 enumerates the matters that are excluded from the Convention’s scope, while Article 3 provides definitions, including the specific meaning of “judgment.”

Chapter 6 delves into Chapter II of the Hague Judgments Convention, which addresses the obligations for recognition and enforcement and the criteria for eligibility outlined in Articles 4 to 6. The authors identify these Articles as the operational core of the Convention, forming the essential framework for the recognition and enforcement of foreign judgments. They emphasize that the Convention is primarily concerned with regulating the process of recognition and enforcement, rather than directly mandating the recognition and enforcement of judgments.

Chapter II of the Convention begins with Article 4, which stipulates that a judgment rendered by a court in a Contracting State must be recognised and enforced in other Contracting States in accordance with the provisions of Chapter II. Article 5 outlines the specific and often narrow criteria for eligibility for the recognition and enforcement of judgments that possess certain characteristics. Article 6 establishes obligations that both regulate and restrict the recognition or enforcement of certain judgments, overriding other provisions of the Convention in the process.

Chapter 7 explores additional provisions related to the obligations of recognition and enforcement, as outlined in Articles 7 to 15 of the Hague Judgments Convention. Article 7 introduces discretionary grounds for refusing the recognition or enforcement of judgments that fall within the Convention’s scope and meet the eligibility criteria of Article 5(1). In some cases, these grounds are broader than those listed in the Hague 2005 Convention. The authors emphasize that the Convention is designed to regulate the recognition and enforcement of judgments within its defined scope, rather than to establish a comprehensive policy for all judgments.

Article 8 deals with the status of certain judgments that may include content outside the Convention’s scope, such as preliminary questions. Article 9 introduces a severability rule, while Article 10 addresses the handling of damages awards. Article 11 brings judicial settlements under the Convention for enforcement purposes. Article 12 outlines the documents required when seeking recognition or enforcement, and Article 13 covers additional procedural points. Article 14 deals with the costs of proceedings. Lastly, Article 15 preserves the right of Contracting States to recognise or enforce judgments under their national law, including their conflict of law rules, but prohibits this in cases involving judgments on rights in rem in immovable property that fall under Article 6.

Chapter 8 examines the general clauses outlined in Articles 16 to 23 of The Hague Judgments Convention. The authors note that these “General Clauses” have the potential to significantly influence the outcome of specific requests for recognition or enforcement. Article 16, for instance, contains transitional rules that determine when the Convention’s provisions will apply to the recognition and enforcement of judgments, based on the date the Convention takes effect between the State of origin and the requested state.

Articles 17 to 19 allow States to make certain declarations that can tailor the application of specific Convention rules under particular circumstances. Article 20 emphasizes the importance of promoting uniformity in the interpretation and application of the Convention. Article 21 authorizes a review of the Convention’s operation. Article 22 provides rules for applying the Convention in “non-unified legal systems,” while Article 23 addresses the relationship between the Convention and other international instruments.

Chapter 9 covers the final clauses outlined in Articles 24 to 32 of The Hague Judgments Convention. The authors explain that these “Final Clauses,” found in Chapter IV of the Convention, establish the rules governing the Convention as a treaty. Article 24 specifies the procedures for States to sign, ratify, accept, approve, or accede to the Convention. Article 25 allows States with two or more territorial units, where different legal systems apply to matters covered by the Convention, to adapt the application of the Convention to those units.

Articles 26 and 27 set forth rules for Regional Economic Integration Organizations (REIOs). Article 28 details the provisions regarding the entry into force of the Convention, while Article 29 outlines the effects of the Convention between Contracting States. Article 31 provides the procedure for a Contracting State to denounce the Convention, and Article 32 outlines the rules for depositary notifications.

Chapter 10 examines the role of the Convention within the context of current practices in the United States. The authors note that while the U.S. has generally been receptive to recognising and enforcing foreign judgments, U.S. judgments have not always received reciprocal treatment in other countries. They suggest that the Convention could help address this issue by improving the treatment of U.S. judgments abroad. The chapter also briefly explores the potential impact of the Convention’s implementation in the U.S., particularly considering whether Article 15 might encourage U.S. courts to adopt an even more liberal approach to the recognition and enforcement of foreign judgments.

Chapter 11 serves as the conclusion, summarising the authors’ key points. They make three general observations: First, they argue that the 2019 Hague Judgments Convention, on balance, represents a significant positive development for transnational litigation, offering a comprehensive framework for the recognition and enforcement of a wide range of foreign judgments. Second, they caution that some of the Convention’s central provisions may eventually be seen as flawed and outdated. Third, they suggest that there are measures that could be explored and utilised to mitigate these potential issues.

Overall, the book leaves a positive impression. It is accessible and easy to understand, particularly for those with a background in private international law. The writing is clear and free from typographical errors.

 

The University of Sheffield will host on 6 September 2024 a symposium to celebrate David McClean’s scholarship over 60 years.  Organised by Verónica Ruiz Abou-Nigm, Paul Beaumont and Jonathan Harris, the event is in person only. Speakers include David McClean himself, Roxana Banu (University of Oxford), Jonathan Harris (King’s College London), Campbell McLachlan (University of Cambridge), Hans […]

Written by Rishi Gulati

After a highly successful first series, all episodes of UEA Law School’s Second Podcast Series hosted by Rishi Gulati are now available on leading platforms, including on Apple Podcasts, Spotify and SoundCloud. The second series consists of several interesting discussions on key transnational concerns with experts from around the world.

There are two episodes on climate change litigation. Tyndall Centre PhD researcher Millie Prosser and Friends of The Earth Lawyer and PhD researcher Acland Bryant are joined by the renowned environmental lawyer David Wolfe KC and Norwich-based climate litigator Dr Andrew Boswell to discuss the opportunities and limitations in UK climate change litigation in the context of judicial review, and Rishi Gulati is joined by Dr Dalia Palombo on the potential impact of the landmark April 2024 European Court of Human Rights climate change decisions on corporations.

In other episodes, there are conversations between the host and Mr William Rook on sports and human rights, with Dr Nikos Skoutaris on state secession, and with Dr Hansong Li on the history & current political climate of the Indo-Pacific.

The series also consists of recordings from two fascinating events. One of the episode presents the Earlham Law Lecture 2024 by  Professor Sarah Green, Law Commissioner for Commercial and Common Law “on the topic: Of Digital Assets and Sausages: Confessions of a Law Commissioner”. Another episode brings to listeners the launch of the Elgar Companion to the United Nations Commission on International Trade Law which includes remarks from Ms Anna Joubin-Bret,  Secretary of the United Nations Commission on International Trade Law, and Director at the International Trade Law Division of the Office of Legal Affairs at the United Nations. Finally, one of the episodes is a conversation between Rishi Gulati and Ms Kate Lister, London-based singer and song-writer, voice coach, and graduate of the Guildhall School of Music, on presentation skills and voice tips.

The third series will return in September 2024 with several more fascinating discussions!

The latest issue of RabelsZ has just been released. It contains the following contributions which are also available open access:

 

OBITUARY

Holger Fleischer, Heike Schweitzer: Ernst-Joachim Mestmäcker – † 22 April 2024, pp. 215–222, DOI: https://doi.org/10.1628/rabelsz-2024-0033

 

ESSAYS

Klaus Ulrich Schmolke: Das Prinzip der beschränkten Gesellschafterhaftung – Ein Streifzug durch die Debatten- und Argumentationsgeschichte, pp. 223–277, DOI: https://doi.org/10.1628/rabelsz-2024-0022

The Concept of Limited Shareholder Liability – A Walk Through History’s Debates and Lines of Argument. Today, the concept of limited shareholder liability is considered a core feature of the modern corporation. And indeed, limited liability has been continuously provided for in the corporate (and limited partnership) laws of western jurisdictions since the 19th century. However, limited liability is not such a matter of course as it is widely perceived today. Rather, it took tough disputes and hard-fought debates before the legislators of the major European jurisdictions of the time were able to bring themselves to provide for limited shareholder liability without tying it to prior state approval. Even after this breakthrough, the debate about the legitimacy and scope of limited liability flared up time and again. This is particularly true for the close corporation, in which the shareholders also exercise control over the management of the business. This article traces the historical dimension of the transnational debate and evaluates the arguments for and against limited shareholder liability that have been put forward over time. The insights gained thereby provide a basis for analysing and evaluating the currently revived criticism of limited shareholder liability.

 

Sandra Hadrowicz: Natural Restitution in a Comparative Legal Perspective –
An Underappreciated Remedy or an Unnecessary Relic?, pp. 278–306, DOI: https://doi.org/10.1628/rabelsz-2024-0030

Natural restitution is one of the permissible methods for remedying damage in numerous legal orders. However, this form of compensation is much less frequently used in practice than monetary compensation. While monetary compensation is a universally found method of reparation in major legal orders, the issue is more complex when it comes to natural restitution. In some countries (e. g. England, France, the Netherlands), natural restitution is used only by way of exception, in specific cases. In others (e. g. Poland), despite the injured party being given the right to choose the method of reparation, natural restitution is very rarely requested by injured parties. Even more intriguingly, in jurisdictions where natural restitution is theoretically upheld as a principle – including Germany, Austria, Portugal, and Spain – its actual adoption by courts remains relatively rare. The question then arises: Have courts and victims come to undervalue natural restitution or even forgotten of its existence? Or, conversely, does it represent an obsolete or unnecessary element of compensation law?

 

 

Domenico Damascelli: Determining the Applicable Law in Matrimonial Property Regimes –
On the Interpretation of Article 26 Regulation (EU) No 2016/1103 in the Absence of Choice-of-law and Common Habitual Residence, pp. 307–324, DOI: https://doi.org/10.1628/rabelsz-2024-0032

Wishing to remain faithful to the alleged principle of immutability of the law governing matrimonial property regimes, the literature interprets Art. 26 para. 1 Regulation (EU) No 2016/1103 such that if the spouses have their habitual residence in different States at the time of marriage, it is necessary to wait for a period of time to ascertain whether they will move it to the same State. If so, only the law of that State is to apply (retroactively); if not, one of the other two laws indicated in Art. 26 is to apply (once and for all). This position gives rise to uncertainty in the determination of the applicable law and is contradicted by literal, systematic and teleological interpretations of the Regulation, which show that, in the absence of a common habitual residence, the law governing the matrimonial property relationships is, depending on the circumstances, the one provided for in letters b or c of para. 1 of Art. 26. However, this law may change the moment the existence of a first common habitual residence is ascertained, regardless of whether it was established immediately, shortly, or long after the conclusion of the marriage.

 

 

María Mercedes Albornoz: Private International Law in Mexico’s New National Code of Civil and Family Procedure, pp. 325–354, DOI: https://doi.org/10.1628/rabelsz-2024-0031

In June 2023, Mexico enacted a National Code of Civil and Family Procedure that includes private international law provisions on procedural matters. The adoption of this Code constitutes a landmark reform in the Mexican legal system, modernizing and, for the first time, unifying civil and family procedural laws across the country. The Code’s primary objectives are to streamline legal processes, enhance judicial efficiency, and promote consistency in civil and family litigation. This article contains a study of the main rules that adjust the goals of the Code to cross-border cases. Some of those rules introduce significant innovations compared with previous bodies of procedural legislation in force in Mexico. It sets direct rules for international jurisdiction as well as novel provisions on foreign law, rules on international cooperation and recognition and enforcement of foreign judgments, and provisions on international child abduction. Furthermore, the Code promotes digital justice and thus expressly allows and promotes the use of technological resources in international cooperation. All these rules are expected to improve access to justice in private international law cases.

 

MATERIALS

Jürgen Samtleben: Mexiko: Nationales Zivil- und Familienprozessgesetzbuch 2023 (Auszug) [Mexico: National Code of Civil and Family Procedures 2023 (German Translation, Excerpt)], pp. 355–378, DOI: https://doi.org/10.1628/rabelsz-2024-0021

 

BOOK REVIEWS

As always, this issue also contains several reviews of literature in the fields of private international law, international civil procedure, transnational law, and comparative law (pp. 379–421).

Le Tribunal de l’UE devient compétent pour connaître des questions préjudicielles dans six matières spécifiques

Issue 3/2024 of ZEuP – Zeitschrift für Europäisches Privatrecht has just been published. It includes contributions on EU private law, comparative law, legal history, uniform law, and private international law. The full table of content can be accessed here.

The following contributions might be of particular interest for the readers of this blog:

• Die Europäisierung des internationalen Erwachsenenschutzes
  Jan von Hein on the proposal for a regulation on the international protection of adults: On 31.5.2023, the European Commission presented a proposal for a regulation on the international protection of adults. This proposal is closely intertwined with the Hague Convention on the international protection of adults. Therefore, the proposed regulation shall be accompanied by a Council decision authorising Member States to become or remain parties to the Hague Convention. The following contribution analyses the proposed regulation and its relationship with the Hague Convention.
• Justizgrundrechte im Schiedsverfahren? – Pechstein und die Folgen fu?r die Handelsschiedsgerichtsbarkeit
  Gerhard Wagner and Oguzhan Samanci on human rights and commercial arbitration: Does the ECHR and the German constitution require public hearings in arbitral proceedings, provided that one of the parties had the power to impose the arbitration agreement on the other through a contract of adhesion? This article analyzes the potential implications that the Pechstein decision of the Federal Constitutional Court and ist precursor in the jurisprudence of the ECHR may have for commercial arbitration. The focus is on arbitration clauses in general business terms and in contracts with undertakings that occupy a dominant position in a specific market. The conclusion is that, despite the broad formula employed by the Federal Constitutional Court, the right to a public hearing should remain limited to sports arbitration.
• Die Auslegung von EuGH-Entscheidungen – ein Blick aus der Gerichtspraxis
  David Ullenboom on the interpretation of CJEU decisions: This article examines the question whether a European methodology is needed to interpret judgments of the CJEU for judicial practice. It argues that judgments of the CJEU need to be interpreted in the same way as legal provisions and are therefore subject to a grammatical, systematic, genetic and teleological interpretation in order to determine their meaning for future legal cases.
• Schweizerisches Bundesgericht, 8 June 2023, 5A_391/2021
  Tanja Domej discusses a decision of the Swiss Federal Tribunal on the recognition of the deletion of a gender registration under German law.