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In Selecta Finance UK Ltd, Re [2020] EWHC 2689 (Ch) Johnson J considered the jurisdictional issues for schemes of arrangement in a touch more detail than recently has been the regular method in both convening and sanctioning hearings.

Selecta Finance UK Limited is a most recent addition to the ‘Selecta’ group , having been established only on 13 August 2020. (Selecta is said to be the leading provider of unattended self-service coffee and convenience food in Europe).  The Scheme concerns three series of senior secured Notes (“the Existing SSNs“), which have an aggregate principal amount of €1.24 billion plus CHF 250 million. The Existing SSNs were issued originally not by the Company but by Selecta Group BV, its parent company incorporated in the Netherlands. They were issued pursuant to a Trust Deed dated 2 February 2018 , and were originally governed by New York law and subject to a provision for the New York Courts to have exclusive jurisdiction.

With reference to authority, Johnson J accepts that the relevant parties in interest who qualify as the Scheme Creditors are the ultimate beneficial owners of the Existing SSNs. By 14 September 2020, the Existing SSN Holders holding a majority by value of the Existing SSNs had provided their consent to (among others) the following key changes to the terms of the SSNs:  i) Amendment of the governing law provisions of the Trust Deed so that the Existing SSNs are governed by English rather than New York law. ii) Amendment of the jurisdiction provisions of the Trust Deed so that the Existing SSNs are subject to the exclusive jurisdiction of the English Court in relation to any proceedings commenced by an obligor of the Existing SSNs, and the non-exclusive jurisdiction of the English Court in relation to other proceedings; iii) Accession of the Company to the Trust Deed as a co-issuer of the Existing SSNs.

At 18 it is said that an expert report on US and New York law confirms that the amendments to the governing law and jurisdiction clauses of the Trust Deed are valid under New York law and would be regarded as effective in any United States court applying that law.

The relevance of that finding for unwilling SSNs beneficiaries, I would argue, is not undisputedly established under Article 10 and Article 3(2) Rome I.

 

The Company then entered into a Supplemental Trust Deed on 14 September 2020 and thereby became a co-issuer of the Existing SSNs under the Trust Deed. As Johnson J notes at 44: it is only by means of the Supplemental Trust Deed that the Company became co-issuer of the Existing SSNs, and that the governing law and jurisdiction provisions were changed so as to refer to English law and jurisdiction.

It is clear that a jurisdictional link with England & Wales has been established specifically for the purpose of a company taking advantage of the scheme provisions in English law. With reference to Newey J in Re Codere Finance (UK) Ltd [2015] EWHC 3778 (Ch) which I reviewed here, this is held to be ‘good forum shopping’.

Article 25 Brussels Ia jurisdiction is only possible by means of the amendments to the Trust Deed effected via the Supplemental Trust Deed, as I also noted above. As I suggest there, had there been recalcitrant minority Note holders objecting to the change in court and law clause, I think the Scheme would not have been jurisdictionally home and dry on A25 choice of court grounds.

The next classic consideration is under Article 8(1)’s anchor defendant mechanism seeing as jurisdiction against the company is established per Article 4.

At 53 reference is made to Snowden J. who in Van Gansewinkel has suggested that in determining whether A8(1) applies, the Court is required to consider whether the “numbers and size of the scheme creditors domiciled in [the UK]” are “sufficiently large“: the result of that instruction is that applicants tend to point out the (debt) size of the creditors so domiciled, even if in DTEK Newey J held that size and number are irrelevant, ditto in Lecta Paper and Swissport Fuelling.

At 54 comes Johnson J’s obiter, useful finding:

Speaking for myself, I incline to the view that the presence of a single creditor is a necessary, but not of itself a sufficient, condition to the operation of Art. 8. I say that because in terms the power conferred by Art. 8 is engaged where “any one of” a number of defendants is domiciled in England & Wales, but even then the power is to be exercised only in cases where the language of the proviso in Art. 8 is satisfied – i.e., where the claims against the various defendants are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. I did not hear detailed argument on the meaning of this language, and in any event the application before me was uncontested, and so I express my view on it somewhat tentatively; but tentatively it seems to me that the question of expediency posed by the proviso is rather less about the geographical distribution in terms of number and size of the prospective defendants, and is rather more about the expediency in case management terms of connected claims being resolved in one place, even if only one anchor defendant is domiciled there. The argument in this case is that it is expedient for the claims against all EU domiciled Scheme Creditors to be resolved in one place, i.e. in England & Wales, because such claims all relate to the reorganisation of their indebtedness vis-à-vis the Company, and these Courts are best placed to resolve such questions given the separate jurisdiction they exercise over the Company under CA Part 26. Indeed, they may be uniquely placed to do so.

Opposition to the Scheme’s jurisdiction tends to evaporate once it gets to the convening and hearing stage. This is typically because the opposing creditors tend to by that stage be converted to the necessity of restructuring and the unattractiveness of having to pursue debt collection against a corporation in serious financial difficulty. As a result nearly all precedent is first instance only.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5. Third edition forthcoming February 2021.

Scheme of arrangement. Rare more detailed consideration of A8(1) BIA jurisdiction (upheld) by Johnson J.
Conclusions on A25 'good forum shopping' remain shaky in my view given change of choice of court and law provisions from New York to English law and court. https://t.co/yL2edW1tMc

— Geert Van Calster (@GAVClaw) October 14, 2020

In a judgment of 3 June 2020, the Paris Court of Appeal ruled that sanctions issued by the Security Council of the United Nations (UN) or by the European Union (EU) are international mandatory rules which define French public policy. As a result, the court ruled that, in principle, an arbitral award violating such sanctions could be set aside by a French court.

In contrast, the court ruled that unilateral sanctions issued by the United States of America do not constitute French public policy. As French authorities have expressed their hostility against them, US sanctions obviously cannot be regarded as defining the most important values of the French state. An arbitral award failing to take them into consideration might not, therefore, be challenged before French courts.

Background

The case was concerned with a gas storage contract to be performed in Yort-E-Shah, Iran. The initial contract was concluded in 2002 between an Iranian and a French company.  A number of letters of credit had been issued by various banks to guarantee the  performance of the contract. In 2008, a dispute arose between the parties. The Iranian party alleged various contractual breaches, terminated the contract and called the guarantees. The French party initiated proceedings before French courts to enjoin the banks from paying under the letters of credit, which were eventually dismissed (see the judgment of the French Supreme Court here).

The French party then initiated arbitration proceedings before an ICC tribunal in Paris arguing that the termination of the contract was illegal. The Iranian party made counterclaims. The tribunal allowed claims from both parties and, after setting them off, ultimately found in favour of the Iranian company.

The French company then initiated proceedings before French courts, arguing inter alia that the award was contrary to French public policy for failing to take into account applicable sanctions and should thus be set aside.

UN Sanctions

The first argument was that the arbitral tribunal had failed to apply UN Resolutions no 1737 of 23 December 2006, no 1747 of 24 March 2007 and no 1803 du 3 mars 2008. The Iranian party challenged the relevance of the UN resolutions for defining French public policy, arguing that UN resolutions are not directly applicable in France, were not implemented in the French legal order, and thus could not be considered as defining French public policy.

The court recognised that the UN resolutions were not directly applicable in France, and that they could not be characterised as French international mandatory rules. However, the court held that they were either foreign international mandatory rules, or  “genuinely international mandatory rules”. The court concluded by adding that, in any case, the objectives pursued by the UN, peace and international security, were essential values to the French state. In principle, therefore, arbitral awards violating UN sanctions would not comport with French public policy and could be set aside on this ground.

This wealth of reasons might reveal that none of them was particularly convincing.

The most unconvincing argument was certainly to distinguish between foreign international mandatory rules and mandatory rules of the forum. The purpose of the distinction is to grant discretion to courts to apply mandatory rules protecting the interests of foreign states. It seems hard, and pretty artifical, to establish a link between UN sanctions and certain states, but not others. A formalistic way of doing this would be to argue that UN sanctions would be non foreign mandatory rules only in the states which have not implemented them. Is that what the court means? If so, it should tell which foreign implementing legislation it is actually considering. And what if UN sanctions are not directly applicable in the vast majority of states? Are they foreign to everybody?

The concept of “genuinely international” mandatory rules (lois de police réellement internationales) is a reference to the idea that while arbitrators have no forum, and cannot be considered as more specifically bound by the mandatory rules of any given state, they should consider that they are the guardians of a genuinely international public policy composed of norms recognised as being of the utmost importance at a global level. The doctrine of “genuinely international public policy” (ordre public réellement international), or “genuinely international mandatory rules”, is a correction of the consequences of the delocalisation of arbitration promoted by the French law of arbitration. The reference to this doctrine in the context of court proceedings, however, raises a number of issues. First, the court implies that arbitral tribunals should be compelled to apply a rule which is not a French international mandatory rule, and that French courts would thus have no obligation to apply if the case was litigated in France. Second, while one can conceive that arbitrators do not have a forum and are thus not bound by the international mandatory rules of the seat of the arbitration, a French court does have a forum, and should thus care about French public policy.

Finally, the court explained that UN resolutions should be considered as defining French public policy because of the importance of the purpose that they served. The court ruled:

the aforementioned resolutions, in so far as they are intended to contribute to the maintenance or restoration of international peace and security, embody rules and values whose disregard must be considered to be incompatible with the French legal system and which therefore fall within the French concept of international public policy

International mandatory rules are defined by the importance of the purpose that they serve, so establishing the purpose of UN Resolutions in this context was no doubt important. Yet, one wonders whether the sole purpose of norms could make them international mandatory provisions irrespective of their enforceability in the relevant legal order.

EU Sanctions

The characterisation of EU sanctions contained in Regulations (EC) no 423/2007, (EU) no 961/2010 (EU) no 267/2012 was much simpler. EU regulations are directly applicable in all Member states. The court thus found that these regulations are French international mandatory rules and, because they contribute to the maintenance or restoration of international peace and security, also define French international public policy. In this context, the reference to the purpose of EU Regulations was aimed at distinguishing those EU regulations which would qualify as international mandatory provisions and those which would not.

US Sanctions

Finally, the court turned to US sanctions and ruled that they did not define French public policy. The court insisted that its role was to assess French public policy. For this purpose, it was highly relevant that the French state had repeatedly expressed through members of its government its opposition to the policy of the US to use unilateral sanctions, calling them unjustifiable and violations of international law. French authorities were working with other Member States to reinforce the economic sovereignty of the EU, in particular by reflecting on extending the scope of the EU blocking regulation (and possibly the French blocking statute). Thus, US sanctions clearly did not define French public policy

Conclusion

After elaborating quite extensively on the characterization of international sanctions as international mandatory rules, the court found that neither the UN Resolutions, nor the EU Regulations applied in the particular case, and that there had not been any actual violation of French public policy. It seems clear, therefore, that the court wanted to signal its doctrine and clarify that, while it would expect arbitrators to take into account UN and EU sanctions, it would participate in the effort of the French state to resist US unilateralism in this respect.

Comment le juge administratif doit-il apprécier le caractère manifeste de la violation du droit de l’Union européenne par une décision juridictionnelle susceptible d’engager la responsabilité pour faute de l’État ?

en lire plus

Droit international privé

Mineur

Détention provisoire

Détention provisoire

As I seem to be in a comparative mood today, thank you Jan Jakob Bornheim for flagging [2020] NZHC 2560 Lange v Lange. The case is further discussed by Jack Wass here – at the time of writing I only have Jack’s review to go on for the actual decision appears to be as yet unpublished.

TTPA 2010 follows the model of the more recent Hague Judgments Convention: recognition and enforcement of a judgment may be refused if it infringes jurisdictional rules detailed in the Act. For the case at issue, s 61(2)(c) of the TTPA is engaged. It requires the court to set aside registration of a judgment if it was “given in a proceeding the subject matter of which was immovable property” located outside Australia.

The determining concern is whether the New Zealand property was “in issue” (the words which Jack uses and which presumably Gault J employed; the Act itself uses ‘proceeding subject matter of which is’; compare with Brussels Ia’s ‘proceedings which have as their object’) in the proceedings. Gault J, citing authority, finds that a judgment setting aside a fraudulent disposition is not rendered unenforceable simply because the debt concerned the sale of New Zealand land. (A further appeal to ordre public was refused; for that to be successful, the result of recognition must, Jack notes, “shock the conscience” of the ordinary New Zealander” (Reeves v OneWorld Challenge LLC [2006] 2 NZLR 184 (CA) at [67].

Obvious comparative pointers with EU conflicts law are Webb v Webb, Weber v Weber, Schmidt v Schmidt, Komu v Komu etc.: readers will know that Article 24(1) Brussels Ia typically involves feuding family members.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.6 . Third edition forthcoming February 2021.

Instruction - Secret professionnel

A short note for the benefit of comparative contract lawyers who may find some interesting material when looking into the failed LVMH /Tiffany acquisition. That acquisition agreement (see SEC filing here)  is subject to the laws of Delaware other than claims against the financiers which are subject to the laws of New York (s.10.5). As readers might be aware, LVMH would seem to argue not that the Pandemic is a Material Adverse Effect which invalidates the merger. Rather, that Tiffany’s handling of its business in the pandemic is a MAE.

Of interesting comparative note therefore is Travelport Ltd & Ors v WEX Inc [2020] EWHC 2670 (Comm) where Cockerill J preliminarily discusses  the proper construction of, and burden of proof in relation to, the MAE definition contained in a Share Purchase Agreement (SPA) dated 24 January 2020. The substantive issues will be dealt with before her at a later stage.

Geert.

(Preliminary) findings of comparative relevance to #LVMH #Tiffany merger (which is subject to the laws of Delaware: see https://t.co/uxmBf2XeSY)
Proper construction of, and burden of proof re definition of Material Adverse Effect contained viz #Covid19 in SPA under English law. https://t.co/8l6N42YyTZ

— Geert Van Calster (@GAVClaw) October 12, 2020

Serena Forlati (University of Ferrara) and Pietro Franzina (Catholic University of the Sacred Heart, Milan) are the editors of a collection of essays titled Universal Civil Jurisdiction – Which Way Forward? which has been just published by Brill.

Enabling the victims of international crimes to obtain reparation is crucial to fighting impunity. In Universal Civil Jurisdiction – Which Way Forward? experts of public and private international law discuss one of the key challenges that victims face, namely access to justice. Civil courts in the country where the crime was committed may be biased, or otherwise unwilling or unable to hear the case. Are the courts of other countries permitted, or required, to rule on the victim’s claim? Trends at the international and the domestic level after the Naït-Liman judgment of the European Court of Human Rights offer a nuanced answer, suggesting that civil jurisdiction is not only concerned with sovereignty, but is also a tool for the governance of global problems.

Opened by a foreword by Giorgio Gaja (University of Florence, Judge at the International Court of Justice), the book features contributions by the editors themselves as well as by Beatrice I. Bonafè (University of Rome La Sapienza), Malgosia Fitzmaurice (Queen Mary University), Patrick Kinsch (University of Luxembourg), Mariangela La Manna (Catholic University of the Sacred Heart, Milan), Fabrizio Marongiu Buonaiuti (University of Macerata), Lucas Roorda and Cedric Ryngaert (both University of Utrecht), and Andrea Saccucci (University of Campania).

See here for more information, including the full table of contents.

The Council has made available today its 8 October 2020 Conclusions “Access to Justice – Seizing the Opportunities of Digitalisation”. There are attached to this post.

council-conclusions-access-to-justice-e28093-digitalisationDownload

HCCH 2019 Judgments Convention Repository

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 13 October 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

 

1. 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 R. “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 Çali?kan, Yusuf;
Çali?kan, 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 Efeçinar Süral, Ceyda
Possible Ratification of the Hague Convention by Turkey and Its Effects to the Recognition and Enforcement of Foreign Judgments, Public and Private International Law Bulletin 40/2 (2020)
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

 

by José Antonio Briceño Laborí, Professor of Private International Law, Universidad Central de Venezuela y Universidad Católica Andrés Bello

The Master’s Program in Private International Law and Comparative Law at the Universidad Central de Venezuela started on October 1st a series of conferences titled “Master Classes – Selected Topics on Private International Law” held in the Aula Maekelt (Maekelt Classroom), named in honor of the beloved late professor Tatiana B. de Maekelt. The conferences will be held in Spanish (unless otherwise indicated), every fifteen days through the application Google Meet (or other virtual conference application).

The Master Classes were inaugurated with a lecture by Professor Eugenio Hernández-Bretón titled “Scope of territorial application of data protection laws: a ‘revived’ conflict of laws?” where professor Hernández-Bretón explained the problems posed by the territoriality of data protection laws and how they can be solved through the principles of Private International Law. This opened a fruitful discussion among the attendees.

The next lecture will be held on October 15 at 4:00 p.m. (Venezuelan Time) by Professor Andrés Carrasquero Stolk on the subject “Enforcement immunity from judgements and awards against Venezuela”. If you want to attend this Master Class you can email the Master’s Program at mdipr.ucv@gmail.com, where they will give you all the information.

To stay current on the future activities of the Master’s Program, you can follow it on Twitter, Instagram, Facebook and LinkedIn.

  

TABLE OF CONTENTS

________________

Foreword …………………………………………………………………………………………… xi

Abbreviations …………………………………………………………………………………… xiii

Doctrine

Janeen CARRUTHERS

Discerning the Meaning of “Habitual Residence of the Child” in

UK Courts – A Case for the Oracle of Delphi ……………………………………… 1

Christian KOHLER

The EU Succession Regulation before the German Courts 2016-2019 ….. 37

Mihail DANOV

Cross-Border Litigation – New Data, Initial Brexit Implications in

England and Wales and Long-Term Policy Choices …………………………… 57

Nikitas E. HATZIMIHAIL

On the Doctrinal Beginnings of the Conflict of Laws ……………………….. 101

Interim Measures in International Commercial Litigation

Proceedings of the SICL’s 31st Private International Law Day –

Lausanne, 23 May 2019

Andrea BONOMI

Interim Measures at the Crossroads of International Litigation and

Arbitration – Some Remarks on Concurrent Jurisdiction and Cross-

Border Enforcement ……………………………………………………………………… 137

Alexander LAYTON

Interim Measures in English Law and their Circulation …………………….. 159

Sandrine GIROUD / Noémie RAETZO

The Recognition and Enforcement of Foreign Interim Measures

in Switzerland ……………………………………………………………………………… 175

Ilaria PRETELLI

The Law Applicable to Provisional and Protective Measures – With

a Focus on the EU System of Ancillary Reliefs ………………………………… 197

Gilles CUNIBERTI

Jurisdiction to Grant Interim Measures in Support of Arbitration –

The Influence of European Law …………………………………………………….. 225

Laurent HIRSCH

Swiss Practice of Interim Relief in International Arbitration ……………… 237

Karim EL CHAZLI / Ahmed HABIB

Interim Measures in International Arbitration – An Arab Perspective …. 259

viii

The 2019 Hague Judgments Convention

Matthias WELLER

The Jurisdictional Filters of the HCCH 2019 Judgments Convention ….. 279

Marko JOVANOVIC

Thou Shall (Not) Pass – Grounds for Refusal of Recognition and

Enforcement under the 2019 Hague Judgments Convention ………………. 309

Lidia SPITZ

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 ……………………….. 333

Cristina M. MARIOTTINI

Establishment of Treaty Relations under The 2019 Hague Judgments

Convention ………………………………………………………………………………….. 365

National Reports

Yitshak COHEN

International Jurisdiction of the Rabbinical Courts in Claims for

Divorce in Israel ………………………………………………………………………….. 381

Florence GUILLAUME

The Connecting Factor of the Place of Celebration of Marriage in

Swiss Private International Law …………………………………………………….. 399

Yin LIU

Recognition of Foreign Same-Sex Unions in China ………………………….. 425

Richard Frimpong OPPONG / Sam TECLE

The lex loci delicti Rule in Canadian Conflict of Laws ……………………… 457

Eduardo PICAND ALBÓNICO

Law of Succession to Estates of Deceased Persons in Chilean Private

International Law …………………………………………………………………………. 489

Court Decision

Wolfgang FABER

Foreign Proprietary Security Rights Failing to Comply with National

Publicity Standards to Be Accepted? On Case No. 3 OB 249/18S of the

Austrian Supreme Court of Justice …………………………………………………. 509

ix

Forum

Pascal FAVROD-COUNE

The Legal Position of the Weaker Party in B2B Relationships with

Online Platforms in the European Union – An Analysis of Dispute

Resolution Mechanisms in Regulation (EU) 2019/1150…………………….. 523

Maria Chiara MARULLO

“Almost” Universal Jurisdiction …………………………………………………….. 549

Adeline MICHOUD

Public Policy Exceptions in U.S. and European Private International

Law – An Ultimate Fortress for Social and Environmental Standards? 569

Chukwuma Samuel Adesina OKOLI

Choice of Law in The European Union – Common Law Procedure and

Evidence …………………………………………………………………………………….. 589

Sven RIVA

Decentralized Autonomous Organizations (DAOs) in the Swiss

Legal Order …………………………………………………………………………………. 601

Cassius Jean SOSSOU BIADJA

Bridging the Gap in the OHADA Treaty with Respect to the

Interpretative Role of the CCJA in Arbitration Matters ……………………… 639

Index ………………………………………………………………………………………………. 663