Droit international général

Conflict-of-Norms in the Information Society: National Security and Cross-border Data Flow

Conflictoflaws - dim, 02/05/2023 - 08:47

This event is presented by Private International Law and Law & Technology interest groups of the American Society of International Law and the Sydney Centre for Asian and Pacific Law at the University of Sydney.

Online event | 11am-12pm, Fri 3 March

National security has increasingly become a concern for cross-border data flow. In this panel discussion, we will survey the conflicts and potential collaboration between protecting national security and enhancing digital trade.

Our distinguished panel will cover relevant laws and practices in big (the US and China), medium (the UK), and small (Vietnam and Taiwan) jurisdictions.

11am-12pm AEDT (Thu 2 March, 7-8pm EST)

Complimentary, however registration is essential.

Register here.

Comparative Analysis of Doctrine of Separability between China and the UK

Conflictoflaws - dim, 02/05/2023 - 08:35

Written by Jidong Lin, Wuhan University Institute of International Law

  1. Background

Separability is a world-recognized doctrine in commercial arbitration. It means that an arbitration clause is presumed to be a separate and autonomous agreement, reflecting contractual commitments that are independent and distinct from its underlying contract.[1] Such a doctrine is embraced and acknowledged by numerous jurisdictions and arbitral institutions in the world.[2]

However, there are different views on the consequences of separability. One of the most critical divergences is the application of separability in the contract formation issue. Some national courts and arbitral tribunals held that in relatively limited cases, the circumstances giving rise to the non-existence of the underlying contract have also resulted in the non-existence of the associated arbitration agreement, which is criticized as an inadequacy of the doctrine of separability.[3] On the contrary, other courts hold the doctrine of separability applicable in such a situation, where the non-existence of the underlying contract would not affect the existence and validity of the arbitration agreement. This divergence would directly affect the interest of commercial parties since it is decisive for the existence of the arbitration agreement, which is the basis of arbitration.

Two contrary judgements were recently issued by two jurisdictions. The Chinese Supreme People’s Court (hereinafter “SPC”) issued the Thirty-Sixth Set of Guiding Cases, consisting of six guiding cases concerning arbitration. In Guiding Case No. 196 Yun Yu v. Zhong Yun Cheng, the SPC explains the Chinese version of separability should apply when the formation of the underlying contract is in dispute.[4] Although the SPC’s Guiding Cases are not binding, they have an important persuasive effect and Chinese courts of the lower hierarchy are responsible for quoting or referring to the Guiding Cases when they hear similar cases. On the other hand, the English Court of Appeal also issued a judgement relating to separability, holding this doctrine not applicable in the contractual formation issue.[5]


  1. Chinese judgment

The Chinese case concerns a share transfer transaction between Yun Yu Limited. (hereinafter “YY”) and Shenzhen Zhong Yuan Cheng Commercial Investment Holding Co. Limited. (hereinafter “ZYC”). On 9th May 2017, YY sent the Property Transaction Agreement (hereinafter “PTA”) and the Settlement of Debts Agreement (hereinafter “SDA”) to ZYC. The PTA was based on the Beijing Stock Exchange (hereinafter “BSE”) model agreement. PTA and SDA included a dispute resolution clause in which the parties agreed that the governing law should be Chinese law and the dispute should be submitted to Beijing Arbitration Commission. On 10th May 2017, ZYC returned the PTA and SDA to YY with some revisions, including a modification on the dispute resolution clause, which changed the arbitration institution to the Shenzhen Court of International Arbitration. On 11st May 2017, YY commented on the revised version of the PTA and SDA but kept the dispute resolution clause untouched. In the accompanying email, YY stated, “Contracts confirmed by both parties would be submitted to Beijing Stock Exchange and our internal approval process. We would sign contracts only if we got approval from BSE and our parent company.” On the same day, ZYC returned the PTA and SDA with its stamp to YY. On 27th October 2017, YY announced to ZYC that the negotiation was terminated. On 4th April 2018, ZYC commenced arbitration based on the dispute resolution clause in PTA and SDA.

The SPC held that separability means the arbitration agreement could be separate and independent from the main contract in its existence, validity and governing law. To support its opinion, the SPC refers to Article 19 of the People’s Republic of China’s Arbitration Law (hereinafter “Arbitration Law”), which stipulates that: “An arbitration agreement shall exist independently, the amendment, rescission, termination or invalidity of a contract shall not affect the validity of the arbitration agreement.” SPC submits that the expression “(t)he arbitration agreement shall exist independently” is general and thus should cover the issue of the existence of the arbitration agreement. This position is also supported by the SPC’s Interpretation of Several Issues concerning the Application of Arbitration Law (hereinafter “Interpretation of Arbitration Law”), [6]Article 10 of which stipulates: “Insofar as the parties reach an arbitration agreement during the negotiation, the non-existence of the contract would not affect the validity of the arbitration agreement.” Thus, the SPC concluded that the existence of an arbitration clause should be examined separately, independent from the main contract. Courts should apply the general rules of contractual formation, to examine whether there is consent to arbitrate. If the court found the arbitration clause formed and valid, the very existence of the main contract should be determined by arbitration, unless it is “necessary” for the court to determine this matter. The SPC concludes that the PTA and SDA sent by YY on 11st May 2017 constituted an offer to arbitrate. The stamped PTA and SDA sent by ZYC on the same day constituted an acceptance and came into effect when the acceptance reached YY. Thus, there exists an arbitration agreement between the parties. It is the arbitral tribunal that should determine whether the main contract was concluded.


  1. English judgment

The English case concerns a proposed voyage charter between DHL Project & Chartering Limited (hereinafter “DHL”) and Gemini Ocean Shipping Co. Limited (hereinafter “Gemini”). The negotiations were carried on through a broker. On 25th August 2020, the broker circulated what was described as the Main Terms Recap. It is common ground that the recap accurately reflected the state of the negotiations thus far. Within the Recap, both parties agreed that the vessel would be inspected by Rightship. This widely used vetting system aims to identify vessels suitable for the carriage of iron ore and coal cargoes. Also, both parties agreed that the dispute should be submitted to arbitration. There was an attached proforma, including a provision that the vessel to be nominated should be acceptable to the charterer. Still, that acceptance in accordance with detailed requirements set out in clause 20.1.4 “shall not be unreasonably withheld”. By 3rd September, however, Rightship approval had not been obtained. DHL advised that “(p)lease arrange for a substitute vessel” and finally, “(w)e hereby release the vessel due to Rightship and not holding her any longer.” In this situation, the attached proforma was not approved by DHL, and there is no “clean” fixture, [7]which means the parties did not reach an agreement. After that, Gemini submitted that there is a binding charter party containing an arbitration clause and commenced arbitration accordingly.

The Court of Appeal made a detailed analysis of separability. Combining analysis of numerous cases, including Harbour v. Kansa, [8]Fiona Trust, [9]BCY v. BCZ[10] and Enka v. Chubb, [11]and analysis of International Commercial Arbitration written by Prof. Gary Born, the Courts of Appeal concluded that separability should not be applied if the formation of the underlying contract is in dispute. Separability applies only when the parties have reached an agreement to refer a dispute to arbitration, which they intend (applying an objective test of intention) to be legally binding. In other words, disputes as to the validity of the underlying contract in which the arbitration agreement is contained do not affect the arbitration agreement unless the ground of invalidity impeaches the arbitration agreement itself. But separability is not applicable when the issue is whether an agreement to a legally binding arbitration agreement has been reached in the first place. In this case, the parties agreed in their negotiations that if a binding contract were concluded as a result of the subject being lifted, that contract would contain an arbitration clause. However, based on the analysis of the negotiation and the commercial practice in the industry, the Court of Appeal concludes that either party was free to walk away from the proposed fixture until the subject was lifted, which it never was. Thus, there was neither a binding arbitration agreement between the parties.



Before discussing the scope of the application of separability, one thing needed to be clarified in advance: Separability does not decide the validity or existence of the arbitration agreement in itself. Separability is a legal presumption based on the practical desirability to get away from a theoretical dilemma. However, separability does not mean the arbitration agreement necessarily exists or is valid. It only means the arbitration agreement is separable from the underlying contract, and it cannot escape the need for consent to arbitrate.[12] Therefore, the existence of the arbitration agreement should not be considered when discussing the scope of application of the arbitration agreement.

The justification of the doctrine of separability should be considered when discussing its scope of application. The justification for the doctrine of separability can be divided into three factors: (a) The commercial parties’ expectations. Parties to arbitration agreements generally “intended to require arbitration of any dispute not otherwise settled, including disputes over the validity of the contract or treaty. (b) Justice and efficiency in commerce. Without the separability doctrine, “it would always be open to a party to an agreement containing an arbitration clause to vitiate its arbitration obligation by the simple expedient of declaring the agreement void.” and (c) Nature of the arbitration agreement.[13] The arbitration agreement is a procedural contract, different from the substantive underlying contract in function. If these justifications still exist in the contract formation issue, the doctrine of separability should be applied.

It is necessary to distinguish the contract formation issue and contract validity issue, especially the substantive validity issue, when discussing the applicability of those justifications. The contract formation issue concerns whether parties have agreed on a contract. The ground to challenge the formation of a contract would be that the parties never agree on something, or the legal condition for the formation is not satisfied. The contract substantive validity issue is where the parties have agreed on a contract, but one party argue that the agreement is invalidated because the true intent is tainted. The grounds to challenge the substantive validity would be that even if the parties have reached an agreement, the agreement is not valid because of duress, fraud, lack of capacity or illegality. The formation and validity issues are two different stages of examining whether the parties have concluded a valid contract. The validity issue would only occur after the formation of the contract. In other words, an agreement can be valid or invalid only if the agreement exists.

It is argued that separability should be applicable to the formation of contract. Firstly, separability satisfies the parties expectation where most commercial parties expect a one-stop solution to their dispute, irrespective of whether it is for breach of contract, invalidity or formation. Furthermore,  the application of separability would achieve justice and efficiency in commerce. Separability is necessary to prevent the party from vitiating the arbitration obligation by simply declaring a contract not concluded. In short, since the justifications still stand in the issue of contract formation, separability should also apply in such an issue.

The English Court of Appeal rejected the application of separability in the formation of contract holding the parties’ challenge to the existence of the main contract would generally constitute a challenge to the arbitration clause. However, the same argument may apply for invalidity of the underlying contract. Since the arbitration agreement is indeed concluded in the same circumstances as the underlying contract the challenging to the validity of the contract may also challenge the validity of the arbitration clause, while separability still applies. On the contrary, the Chinese approach probably is more realistic. The SPC ruled that separability applies where the formation of the underlying contract is disputed. But before referring the dispute to arbitration, the SPC separately considered the formation of the arbitration clause. Only after being satisfied the arbitration clause is prima facie concluded, the court declined jurisdiction and referred the parties to arbitration.


[1] Ronan Feehily, Separability in international commercial arbitration; confluence, conflict and the appropriate limitations in the development and application of the doctrine, 34 Arbitration International 355 (2018), p. 356.

[2] See Blackaby Niegel, Constantine Partasides et al., Redfern and Hunter on International Arbitration, Kluwer Law International; Oxford University Press 2015, pp. 104–107.

[3] See Gary B. Born, International Commercial Arbitration (3rd edition), Kluwer Law International 2021, pp. 492-493.

[4] The Guiding Case No. 196: Dispute in Validity of Arbitration Agreement between YunYu Limited and Shenzhen ZhongYuanCheng Commercial Investment Holding Co. Limited.

[5] DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd [2022] EWCA Civ 1555 (24 November 2022)

[6] SPC’s Interpretation of Several Issues concerning the Application of Arbitration Law, Fa Shi?2006?No. 7.

[7] Clean Fixture is a concept in the maritime area. It means the Parties’ confirmation that the contract has been concluded and that there are no further Subjects and/or restrictions to the execution of the agreed Contract. The Fixture is not clean until both parties have waived their subjects/restrictions.

[8] Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd [1993] QB 701.

[9] Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40, [2007] 4 All ER 951.

[10] BCY v BCZ [2016] SGHC 249, [2016] 2 Lloyd’s Rep 583.

[11] Enka Insaat ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38, [2020] 1 WLR 4117

[12] See McNeill M. S. & Juratowitch B., Agora: Thoughts on Fiona Trust: The Doctrine of Separability and Consent to Arbitrate, 3 Arbitration International 475 (2008).

[13] See Gary B. Born, International Commercial Arbitration (3rd edition), Kluwer Law International 2021, p. 428.

Call for Papers: SLS Conflict of Laws Section, Oxford Brookes, 2023

Conflictoflaws - sam, 02/04/2023 - 01:46

The convenors of the SLS Conflict of Laws section, Lauren Clayton-Helm and Bobby Lindsay, have been so kind as to share the following call for papers with us.

This is a call for papers and panels for the Conflict of Laws section of the 2023 Society of Legal Scholars’ Annual Conference to be held at Oxford Brookes, from 27th – 30th June.  The Conflict of Laws section will meet in the second half of the conference on 29–30 June and will have four sessions, each lasting 90 minutes.

The 2023 conference is in person with a virtual element. The virtual element to the conference will take place, for the Conflict of Laws section, on the 29th June 2023. Those who wish to present their papers virtually should select that option in Oxford Abstracts. Please note that speakers who select to present in person will be unable to revert to virtual delivery at a later date. We will be using Oxford Abstracts as the virtual platform this year. Those attending remotely on the 29th June will be able to participate in the sessions on those days, as well as having access to the plenary sessions.  There are significant costs involved in including a virtual element to the conference, and the numbers opting to attend virtually are quite low, but we are keen to ensure as many people have access to the conference as possible. On that basis, not only have we retained our two day virtual option, but we will also be providing remote access to all of the papers to delegates attending virtually, and where permission is granted by the presenters through Oxford abstracts.

In addition, the Society has set aside a fund of up to £10,000 as a hardship fund (https://sls.onlinesurveys.ac.uk/sls-hardship-fund-2023) to support attendance by those with special circumstances or in financial hardship warranting additional support. Priority for support will be given to applicants who have no other source of funding.

Doctoral students are very welcome and are encouraged to submit papers for consideration in the Subject Sections Programme. There will not be a separate doctoral stream at the 2023 conference.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 17 February 2023.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed http://https://auth.oxfordabstracts.com/?redirect=/stages/4957/submitter– and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk

This year we are trialling first blind peer review, with a subsequent non-blind review once initial decisions have been made to consider profile diversity before final decisions are made and communicated.

Decisions will be communicated by the 10th March.

We welcome proposals for papers and panels on any issue relating to Law and the Public Good. We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.  Sessions are 90 minutes in length and so we recommend panels of three speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papersas possible are able to present, speakers should not present twice at the conference at the expense of another credible paper.  With this in mind, when you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £300 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.  To be eligible:

  • speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
  • papers must not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count);
  • papers must be uploaded to the paperbank by 11:59pm UK time on Friday 23 June 2023;
  • papers must not have been published previously or have been accepted or be under consideration for publication; and
  • papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

In 2020 the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

  • speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
  • papers must not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count);
  • papers must be uploaded to the paperbank by 11:59pm UK time on Friday 23 June 2023;
  • papers must not have been published previously or have been accepted or be under consideration for publication; and
  • papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.
  • Where a paper eligible for this prize wins the Best Paper Prize, the judges may at their discretion award the prize for Best Paper by a Doctoral Student to a different nominated paper
  • The judges may announce a shortlist at their discretion with the winner to be announced by the first week in August.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 21 April 2023 to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.

With best wishes,

Lauren and Bobby

Registration open: German Conference for Young Scholars in Private International Law 2023

Conflictoflaws - ven, 02/03/2023 - 19:49

As previously announced, the 4th German Conference for Young Scholars in Private International Law will take place on 23 and 24 February 2023 at Sigmund Freud University in Vienna.

The theme of the conference is

Deference to the foreign – empty phrase or guiding principle of private international law?


Although primarily held in German, a significant amount of presentations will be offered in English, including

“The metaphor of the ‘dismal swamp’: an ecosophical approach to the conflict of laws” by Prof. Horatia Muir Wat (Keynote lecture)

“Overriding Mandatory Rules and Choice of Law Rule in Procedure: Opposite Trends?” by Shahar Giller (presentation)

“Mind the Gap – Adaptation Mechanisms in the Cross-Border Enforcement of Judgments” by Tess Bens (presentation)

“Connecting Factors: Tools or Loopholes in Achieving Deference to the Foreign” by Stefano Dominelli and Michael Cremer (short presentation)

For further information and registration, please visit the event’s homepage – the organizers kindly ask to register by 17 February 2023.

Efrat on Conflict and Cooperation on Transnational Litigation

EAPIL blog - ven, 02/03/2023 - 08:00

Asif Efrat (Reichman University, Israel) authored a book titled Intolerant Justice – Conflict and Cooperation on Transnational Litigation, with Oxford University Press.

In a globalized world, national legal systems often face dilemmas of international cooperation: Should our citizens stand trial in foreign courts that do not meet our standards? Should we extradite offenders to countries with a poor human rights record? Should we enforce rulings issued by foreign judges whose values are different from our own? Intolerant Justice argues that ethnocentrism—the human tendency to divide the world into superior in-groups and inferior out-groups—fuels fear and mistrust of foreign justice and sparks domestic political controversies. Skeptics portray foreign legal systems as a danger and a threat to local values and interests. Others, however, seek to dispel these concerns, arguing that legal differences among countries should be respected. Such disagreements often make it harder to establish cooperation on litigation.

The book traces this dynamic in a range of fascinating cases, including the American hesitation to allow criminal trials of troops in the courts of NATO countries; the dilemma of extradition to China; the European wariness toward U.S. civil judgments; and the controversy over the prosecution of foreign terrorist fighters for ISIS. Despite the growing role of law and courts in international politics, Intolerant Justice suggests that cooperation among legal systems often meets resistance, but it also shows how this resistance can be overcome. These insights will speak to anyone who seeks to strengthen the rule of law and international collaboration in an era of increasing nationalism. 

The table of contents can be accessed here.

Dutch judge gives green light to export ban for fuels banned under EU law. Gives short shrift to extraterritoriality and leakage arguments.

GAVC - jeu, 02/02/2023 - 18:18

In Zenith Energy Amsterdam B.V. and Exolum Amsterdam BV v The Netherlands a Dutch judge last week rejected the challenge by fuel traders of the Dutch ban on export of fuels to non-EU (particularly Ecowas) countries of fuels falling short of the EU requirements under Directive 98/70. The Dutch Statute is the culmination of established Dutch studies of the sector (The Netherlands being a prime tank storage country) and of repeated EOWAS calls that the export causes issues on their territories.

A first test is the duty of care under the Dutch environmental laws, which in summary obliges industry et al to prevent and /or limit the environmental and public health impacts of their production. The judge [4.10] refers to the travaux and recitals of the Act which contains the duty of care, as having recognised the global, one might say ‘extraterritorial’  impact of Dutch and European industrial activities, and emphasises that the duty of care requires a dynamic interpretation in line with societal and technical developments.

In 4.13 the judge emphasises that Directive 98/70 does not harmonise export outside of the EU and that the Directive therefore does not impede national rules on export and in 4.14 the rule is said not to force duties upon third States who themselves have signalled the difficulties. The judge also explicitly refers to Urgenda and UNEP to emphasise that looking after the environment and public health elsewhere, is an expression of the State’s own duty of care. 4.16 ‘fuel leakage’ (the drug dealer defence: trade will just move elsewhere, Antwerp in particular) has not been made out on the facts, quite the opposite, the State can show that the majority of traders already export cleaner fuel from Dutch ports.

Of note is also that the judge, Vetter J, in commendable Dutch style, does not exhaust himself in the arguments, rather cutting straight to the chase.

A judgment of note. Geert.

Judge OKs Dutch fuel export ban, prohibiting export of fuel already banned in EU, in particular to ECOWAS countries
Extends corporations' duty of care to health, environment abroad; rejects Qs of extraterritoriality and 'drug dealer defence'

Judgment (NL) https://t.co/qd08kZbYYc https://t.co/ya28uy9CxB

— Geert Van Calster (@GAVClaw) January 28, 2023

The standard of human rights review for recognition and enforcement of foreign judgments: ‘due satisfaction’ or ‘flagrant denial of justice’?

Conflictoflaws - jeu, 02/02/2023 - 10:11

Note on Dolenc v. Slovenia (ECtHR no. 20256/20, 20 October 2022)

by Denise Wiedemann, Hamburg

1.      Facts and Holding

On 20 October 2022, the ECtHR issued a decision that provides guidance regarding the human rights review of recognition and enforcement decisions. The decision concerns the recognition of Israeli civil judgments by Slovenian courts. The Israeli judgments obliged Vincenc Vinko Dolenc, an internationally renowned neurosurgeon, to compensate a former patient for pecuniary and non-pecuniary damage in an amount equivalent to approximately 2.3 million euros (para. 22). Dolenc had performed surgery on the claimant, who was left severely disabled. After Slovenian courts recognized the Israeli judgments, Dolenc applied to the ECtHR. He contended that Slovenia had violated Art. 6(1) ECHR because it had recognized Israeli judgments that resulted from an unfair proceeding. Specifically, he argued that he had been unable to participate effectively in the trial in Israel because the Israeli court had refused to examine him and his witnesses by way of the procedure provided under the Hague Evidence Convention (para. 61).

The ECtHR found that the Slovenian courts had not examined the Israeli proceedings duly and had not given enough weight to the consequences that the non-examination of the witnesses had for the applicant’s right to a fair trial (para. 75). Therefore, the ECtHR unanimously held that Slovenia had violated Art. 6(1) ECHR.

2.      Standard of Review

In its reasoning, the Court confirmed the standard of review that it had laid down in Pellegrini v. Italy (no. 30882/96, ECtHR 20 July 2001). In Pellegrini, the ECtHR found that Contracting States to the ECHR have an obligation to refuse recognition or enforcement of a foreign judgment if the defendant’s rights were violated during the adjudication of the dispute in the state of the judgment’s origin (para. 40). As in Dolenc v. Slovenia, the ECtHR in Pellegrini did not examine whether the proceedings before the court of origin complied with Art. 6(1) of the Convention. Instead, the Court scrutinized whether the Italian courts, i.e. courts in the state of enforcement, applied a standard of review in reviewing the foreign judgment which was in conformity with Art. 6(1) ECHR. As regards the standard of review, the ECtHR required the Italian courts to ‘duly satisfy’ themselves that the proceedings in the state of the judgment’s origin fulfilled the guarantees of Art. 6(1) ECHR (para. 40). Thus, when recognizing or enforcing a civil judgment from a non-Contracting State, Contracting States have to verify that the foreign proceedings complied with Art. 6(1) ECHR.

Yet, in respect of other issues, the ECtHR has limited the standard of review from due satisfaction to that of a ‘flagrant denial of justice’. In the criminal law context, the ECtHR held in Drozd and Janousek v. France and Spain that Contracting States are obliged to refuse the enforcement of a foreign sentence only if ‘it emerges that the conviction is the result of flagrant denial of justice’ (para. 110). The same limited review has been applied to extradition cases (Othman (Abu Qatada) v. the United Kingdom) and to child return cases (Eskinazi and Chelouche v. Turkey). A flagrant denial of justice is a breach that ‘goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.’ (Othman, para. 260).

It has been argued that in cases regarding the recognition or enforcement of a foreign civil judgement, the review should likewise be limited because the fundamental rights violation in the state of recognition or enforcement would be only of an indirect nature (e.g. Matscher, ‘Der Begriff des fairen Verfahrens nach Art. 6 EMRK’ in Nakamura et al. (eds), Festschrift Beys, Sakkoulas, Athens 2003, pp. 989–1007, 1005). Contrary to this view, the ECtHR confirmed in Dolenc v. Slovenia the requirement of an unlimited review of the proceeding in the state of origin; the Court saw ‘no reason to depart from the approach set out in Pellegrini’ (§ 60).

The approach taken in Pellegrini and Dolenc is convincing with regard to Art. 1 ECHR, which obliges the Contracting States to fully secure all individuals’ rights and freedoms. A deviation from the requirement set out in Art. 1 ECHR is not justified by the fact that recognition or enforcement of a decision issued in violation of Art. 6(1) ECHR would only be of an indirect nature; rather, such a recognition or enforcement would exacerbate the violation and would, therefore, be in direct breach of the Convention. The ECtHR explained the restricted level of review in extradition and child return cases with the fact that, unlike in a recognition or enforcement situation, ‘no proceedings concerning the applicants’ interests [had] yet been disposed of’ (see  Eskinazi and Chelouche v. Turkey).

 However, it is not obvious why the ECtHR applies different standards for the enforcement of foreign criminal judgments (‘flagrant denial of justice’) and the recognition or enforcement of foreign civil judgment (‘due satisfaction’). Whereas Contracting States are not required to verify whether a foreign criminal proceeding was compatible with all the requirements of Art. 6(1) ECHR, they are obliged to do so when a foreign civil proceeding is at issue. In justifying the reduced effect of Art. 6(1) ECHR in criminal cases, the Court explained that a review of all the requirements of Art. 6(1) ECHR would ‘thwart the current trend towards strengthening international cooperation in the administration of justice, a trend which is in principle in the interests of the persons concerned.‘ (Drozd and Janousek v. France and Spain, para. 110). Thus, the ECtHR seems to place greater importance on cooperation in criminal matters than on cooperation in civil matters. A reason is not apparent.

3.      Situations Allowing for a More Limited Review

Despite the confirmation of Pellegrini v. Italy in Dolenc v. Slovenia, the ECtHR left open the possibility of a more limited review in certain civil recognition and enforcement cases. First, the Pellegrini case and the Dolenc case concerned judgments emanating from non-Contracting States. If, in contrast, the recognition or enforcement of a judgment from a Contracting State was at issue, debtors would be obliged to challenge violations of Article 6(1) ECHR in the state of the judgment’s origin. If debtors fail to do so – e.g. if they miss the time limit for lodging a complaint at the ECtHR (Art. 35(1) ECHR) –, a further review in the state of enforcement would not be successful. Otherwise, procedural limits for human rights challenges would lose their preclusive effect.

Second, the ECtHR qualified Pellegrini as a case having ‘capital importance’ (para. 40) and Dolenc as a case of ‘paramount importance to the defendant’ (para. 60). While Pellegrini concerned a decision annulling a marriage, i.e. determining personal status, the foreign judgment in Dolenc caused serious financial and reputational damage to the applicant. However, it is questionable why a judgment for payment of a small amount of money should allow for a more limited review as Art. 1 ECHR does not differentiate between important and less important matters.

Finally, different standards would in any event apply to recognition and enforcement within the EU: In the case of recognition and enforcement under strict EU procedures (without the possibility of refusal), Member States benefit from the ‘presumption of compliance’ (Sofia Povse and Doris Povse v. AustriaAvoti?š v. Latvia). With this presumption, the ECtHR seeks to establish a balance between its own review powers vis-à-vis states and its respect for the activities of the EU. In cases with a margin of manoeuvre, in particular through the public policy clause, the ECtHR will not require the Member State of recognition or enforcement to ‘duly satisfy’ itself that the adjudication proceeding in the Member State of origin complied with Art. 6(1) ECHR. Rather, the ECtHR will assess only whether the application of the public policy clause has been ‘clearly arbitrary’ (Royer v. Hungary, para. 60).

Public Institution for Social Security (PIFFS) v Ruimy. The High Court on ‘case pending’ in Article 34 Brussels Ia (forum non light), and a disappointing obiter conflation of forum non and Article 34.

GAVC - jeu, 02/02/2023 - 10:10

In Public Institution for Social Security v Ruimy & Anor [2023] EWHC 177 (Comm) Jacobs J rejected both a forum non conveniens argument and an (acquired Brussels Ia) Article 34 Brussels Ia argument (raised by a Luxemburg-based defendant).

My paper on the Article 34 genesis and case-law hitherto is here.

Current claims are related to earlier jurisdictional challenges, culminating in The Public Institution for Social Security v Banque Pictet & Cie SA & Ors [2022] EWCA Civ 29 which I discuss here.

PIFSS is a Kuwaiti public institution responsible for Kuwait’s social security system and pension scheme. The claims involve alleged corruption of PIFSS. Director General by international financial institutions and intermediaries in return for causing or influencing PIFSS to invest substantial funds with or through those institutions and intermediaries (or related entities).

Following the Court of Appeal’s decision in January 2022 to uphold the successful jurisdictional challenge by some of the parties (‘the Mirabaud parties’), PIFSS have commenced proceedings against three of the Mirabaud parties (Banque Mirabaud, Mr Pierre Mirabaud and Mr Fauchier-Magnan) in Switzerland. These Swiss proceedings no longer, include a claim in respect of one of the schemes, the ‘Aerium’ scheme. Instead, the claim in those proceedings concerns a large number of other schemes in which the Mirabaud parties are alleged to have participated or assisted.

The forum non arguments are discussed [43] ff and are of course only possible because the United Kingdom are no longer party to the Lugano Convention (and the Swiss proceedings initiated post Brexit). At the heart of the forum non conveniens argument of some of the defendants in current claim, incl. Ruimy, is the proposition that the Aerium Scheme claims should be heard in Switzerland alongside the other claims advanced against the Mirabaud parties. [65] ff Jacobs J holds that defendants have not shown that Switzerland was clearly or distinctly more appropriate than the English forum.

I do not discuss forum non in detail for the interest of the post lies more with the Article 34 analysis.

This is discussed briefly [118] ff with the judge unfortunately albeit obiter following defendants’ concession that failure of the forum non argument would also sink Article 34. The reasoning seems to be that Article 34’s “necessary for the proper administration of justice” test fails if the third State at issue is not shown to be  the clearly or distinctly more appropriate than the English forum. As I discuss in my paper, this is wrong, and it falls into the same trap as the first instance judge in Municipio. While considerations relevant to the forum non test may play a role in Article 34, it is wrong to conflate the two tests.

As noted this view is made obiter only for the formal reason for the judge to reject the Article 34 defence is his decision that Article 34(1)’s condition  that an action be ‘pending before a court of a third State at the time when a court in a Member State is seised of an action which is related to the action in the court of the third State’, has not been met. Per the Court of Appeal in Municipio, “The action in the third state must be pending before the third state court when the member state court becomes seised of the action” (see also Henshaw J in Viegas v Cutrale[149]).

[122] Swiss proceedings which might potentially be considered to be relating to the English proceedings came too late, they were most definitely not pending at the time of the current English claims.

The only potentially relevant “proceedings”, in the context of Article 34, are the proceedings commenced by the service of the commandements de payer, however, they are held not to qualify: [129]

I agree with PIFSS that the request and issue of the commandements de payer did not mean that proceedings were “pending before a court” of Switzerland. In short, this is because there was no document lodged with any court. Commandments de payer are issued by administrative authorities, not a court. …a commandement de payer is at most a precursor to an action in court. In the present case, there was an objection by the recipient, with the result that court proceedings were then necessary if the requesting party wanted to take matters forward. This is what happened in the present case, when PIFSS did issue civil proceedings against the Mirabaud parties in 2022. But there were no relevant court proceedings issued by PIFSS in Switzerland prior to that time.

A judgment of note.


Third party funding for climate change litigation.

GAVC - jeu, 02/02/2023 - 09:05

A short note to refer to this post on the Wave News which focuses on third party litigation funding and how it might be used in climate change litigation, with input by Yours Truly. A good introductory summary of the opportunities and points of attention of third party funding generally, too.


Of #climatelitigation note and happy to have contributed. https://t.co/tOYu0Lqr9N

— Geert Van Calster (@GAVClaw) February 1, 2023


French Supreme Court Rules on Scope of Exclusive Jurisdiction over Company Registry

EAPIL blog - jeu, 02/02/2023 - 08:00

In a judgment of 11 January 2023, the French supreme court for private and criminal matters (Cour de cassation) ruled that the exclusive jurisdiction of the courts of the place where a public registry is held under Article 24(3) of the Brussels I bis Regulation only covers actions concerned with the formal validity of an entry in such a registry.


The case was concerned with the enforcement of an English judgment over the shares of a French company owned by the judgment debtor.

The creditor, English corporation Barclay Pharmaceuticals, had obtained a judgment in 2012 from the English High Court ordering its debtor, a French individual, to pay over £ 12 million. The judgment was declared enforceable in France under the Brussels I Regulation.

It seems that it was not  easy to find assets belonging to the debtor and the creditor sought and obtained from the English high court an order in 2018 declaring that the shares owned by the wife of the debtor in a French company were only held fictitiously by the wife, and that they should be considered as actually owned by the debtor, her husband.

On the basis of the English 2012 judgment and 2018 order, the creditor had a French enforcement authority carry out an enforcement measure over the shares.


The debtor challenged the validity of the enforcement measure in French courts on a number of grounds.

Nouveau Tribunal de Commerce et Conseil de Prud’hommes de Bobigny (93)

One of them was that the 2018 English order could not be enforced in France, because the proceedings fell within the exclusive jurisdiction of French courts. The debtor argued that the proceedings had “as their object the validity of an entry in a public register” in the meaning of Article 24(3) of the Brussels I bis Regulation. As a result, the English High Court lacked jurisdiction, and its order could not produce effect in France.

The particular company was a Société Civile Immobilière (SCI). The shareholders of French SCIs appear in the French register for companies (Registre du commerce et des sociétés). The name of the wife presumably appeared in the register. A logical (but, importantly, not necessary, see below) consequence of the English order was that the entry into the registry would become inaccurate. There was, therefore, some potential influence of the English order over an entry into a French registry.

The issue before the Cour de cassation was thus to define the scope of the exclusive jurisdiction under Art. 24(3). The Court defines it as limited to proceedings concerned with the “formal validity” of entries into the registry.

In this case, the English court had ruled on the accuracy of an entry. This was an issue of substance, not form. Nobody was suggesting, and certainly not the English court, that the requirement for registering those shares had not been complied with. The English order had only ruled that the owner of the shares was different from that appearing in the register.

The appeal was thus dismissed, and the enforceability of the 2018 English order confirmed, since the English court had not violated the exclusive jurisdiction of French courts.


The rationale for the exclusive jurisdiction over public registries seems to be that such registries are public authorities, and that foreign states cannot interfere with the operation of a public authority. This certainly explain why the procedure for registering a company in a public registry is necessarily governed by the law of the local state, and that only local courts could assess whether it was complied with. That is likely the idea behind the concept of “formal validity”.

Yet, whether formal validity can always be distinguished from  substantive validity is not obvious. This might well depend on the effect of the registration. If, under the applicable law, the registration determines the existence of the right (e.g. the ownership of the shares), then it is not easy to distinguish between formal and substantive validity.

But the law was simpler in this case. Under French law, the ownership of shares in SCIs is not determined by the registration. The effect of the registration is merely to extend the effects of the right to certain third parties. But registration is not mandatory. A transfer of ownership of shares would be valid as between the parties and third parties knowing about it without registration.

In this context, the distinction of the Cour de cassation makes sense. If the parties could transfer shares without registration, an English court could equally rule on the ownership of shares without interfering with the French registry.

Conclusion: it is unclear whether the concept of validity of an entry in a public registry under article 24(3) can be defined without reference to national law and the effect of registration in the relevant Member State.

Chronology of Practice: Chinese Practice in Private International Law in 2021

Conflictoflaws - mer, 02/01/2023 - 19:44

Professor HE Qisheng  has published the annual report, Chronology of Practice: Chinese Practice in Private International Law in 2021, now in its 9th year. The article has been published by the Chinese Journal of International Law, a journal published by Oxford University Press..

This survey contains materials reflecting the Chinese practice of Chinese private international law in 2021. Firstly, regarding changes in the statutory framework of private international law in China, six legislative acts, one administrative regulation on Counteracting Unjustified Extra-Territorial Application of Foreign Legislation and Other Measures, and six judicial interpretations of the Supreme People’s Court (“SPC”) were adopted or amended in 2021, covering a wide range of matters, including punitive damages, online litigation, online mediation, and international civil procedure. Secondly, five typical cases on Chinese courts’ jurisdiction are selected to highlight the development of Chinese judicial practice in respect of consumer contracts, abuse of dominant market position, repeated actions and other matters. Thirdly, this survey considers 18 cases on choice-of-law issues relating, in particular, to capacities of legal persons, proprietary rights, employee contracts, mandatory rules, gambling and public policy. Fourthly, two significant decisions on punitive damages of intellectual property are reported. Fifthly, several key decisions in the recognition and enforcement of foreign judgments, international arbitration agreements and foreign settlement agreements, are reproduced. Lastly, this survey also covers the Summaries of the National Symposium on Foreign-related Commercial and Maritime Trials of Courts published by the SPC, an official document which represents the current judicial practices in the Chinese courts, and which is expected to provide guidance in the adjudication of foreign-related matters in the future.

Table of Contents

  1. Introduction
  2. Overview

II.A. Report on the Work of the SPC in 2021

II.B. Laws and the SPC’s interpretations

III. Jurisdiction

III.A. Rules in the SPC Summaries on Foreign-related Trials

III.B. Consumer contract

III.C. Different courts agreed upon in the principal and accessory contract

III.D. Jurisdiction over abuse of dominant market position

III.E. Repeated actions

  1. Choice of law

IV.A. Rules in the SPC Summaries on Foreign-related Trials

IV.B. Capacity of legal person

IV.C. Rights in rem

IV.D. Obligations

IV.E. Mandatory rules

IV.E.i. Foreign exchange guarantee

IV.E.ii. Share transfer

IV.F. Gambling and public order

  1. Intellectual property

V.A. New rules on punitive damages

V.B. Selected cases on punitive damages in Chinese courts

  1. Foreign judgments

VI.A. Rules in the SPC Summaries on Foreign-related Trials

VI.B. Cases about recognition and enforcement of foreign judgments

VII. International arbitration and foreign awards

VII.A. Rules in the SPC Summaries on Foreign-related Trials

VII.B. Arbitration clause and a lien dispute over the subject matter

VIII. Confirmation of the validity of foreign settlement agreement

Here are the links to the article:

Bonn University / HCCH Conference — The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook, 9 and 10 June 2023

Conflictoflaws - mer, 02/01/2023 - 16:10
Registration now open



Friday and Saturday, 9 and 10 June 2023


Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn




Registration Fee: € 220.- Young Scholars Rate (limited capacity): € 110.- Dinner (optional):                      € 60.-

Registration: Please register with sekretariat.weller@jura.uni-bonn.de. Clearly indicate whether you want to benefit from the young scholars’ reduction of the conference fees and whether you want to participate in the conference dinner. You will receive an invoice for the respective conference fee and, if applicable, for the conference dinner. Please make sure that we receive your payment at least two weeks in advance. After receiving your payment we will send out a confirmation of your registration. This confirmation will allow you to access the conference hall and the conference dinner.

Please note: Access will only be granted if you are fully vaccinated against Covid-19. Please confirm in your registration that you are, and attach an e-copy of your vaccination document. Please follow further instructions on site. Thank you for your cooperation.



Friday, 9 June 2023


8.30 a.m.      Registration

9.00 a.m.      Welcome notes

Prof Dr Matthias Weller, Director of the Institute for German and International Civil Procedural Law, Rheinische Friedrich-Wilhelms-Universität Bonn;
Dr Christophe Bernasconi, Secretary General, HCCH

Moderators: Prof Dr Moritz Brinkmann, Prof Dr Nina Dethloff, Prof Dr Matthias Weller, University of Bonn; Prof Dr Matthias Lehmann, University of Vienna; Dr João Ribeiro-Bidaoui, Former First Secretary, HCCH


Part I: Cornerstones

  1. Scope of application
    Prof Dr Xandra Kramer, Erasmus University Rotterdam, Utrecht University, The Netherlands
  1. Judgments, Recognition, Enforcement
    Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich, Germany
  1. The jurisdictional filters
    Prof Dr Pietro Franzina, Catholic University of Milan, Italy
  1. Grounds for refusal
    Adj Prof Dr Marcos Dotta Salgueiro, University of the Republic, Montevideo; Director of International Law Affairs, Ministry of Foreign Affairs, Uruguay
  1. Article 29: From a Mechanism on Treaty Relations to a Catalyst of a Global Judicial Union
    Dr João Ribeiro-Bidaoui, Former First Secretary, HCCH
    Dr Cristina Mariottini, Senior Research Fellow at the Max Planck Institute for International, European and Regulatory Law, Luxembourg


1.00 p.m.     Lunch Break

  1. The HCCH System for choice of court agreements: Relationship of the HCCH Judgments Convention 2019 to the HCCH 2005 Convention on Choice of Court Agreements
    Prof Dr Paul Beaumont, University of Stirling, United Kingdom

Part II: Prospects for the World 

  1. European Union
    Dr Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission
  1. Perspectives from the US and Canada
    Professor Linda J. Silberman, Clarence D. Ashley Professor of Law, Co-Director, Center for Transnational Litigation, Arbitration, and Commercial Law, New York University School of Law, USA
    Professor Geneviève Saumier, Peter M. Laing Q.C. Professor of Law, McGill Faculty of Law, Canada
  1. Southeast European Neighbouring and EU Candidate Countries
    Prof Dr Ilija Rumenov, Associate Professor at Ss. Cyril and Methodius University, Skopje, North Macedonia


8.00 p.m.     Conference Dinner (€ 60.-)

Dinner Speech
Prof Dr Burkhard Hess, Director of the Max Planck Institute for International, European and Regulatory Law, Luxembourg


Saturday, 10 June 2023


9.00 a.m.      Part II continued: Prospects for the World

  1. Perspectives from the Arab World
    Prof Dr Béligh Elbalti, Associate Professor at the Graduate School of Law and Politics at Osaka University, Japan
  1. Prospects for Africa
    Prof Dr Abubakri Yekini, University of Manchester, United Kingdom
    Prof Dr Chukwuma Okoli, Postdoctoral Researcher in Private International Law, T.M.C. Asser Institute, The Netherlands
  1. Gains and Opportunities for the MERCOSUR Region
    Prof Dr Verónica Ruiz Abou-Nigm, Director of External Relations, Professor of Private International Law, University of Edinburgh, United Kingdom
  1. Perspectives for ASEAN
    Prof Dr Adeline Chong, Associate Professor of Law, Yong Pung How School of Law, Singapore Management University, Singapore
  1. China
    Prof Dr Zheng (Sophia) Tang, University of Newcastle, United Kingdom


1.00 p.m.     Lunch Break


Part III: Outlook

  1. Lessons Learned from the Genesis of the HCCH 2019 Judgments Convention
    Dr Ning Zhao, Principal Legal Officer, HCCH
  1. International Commercial Arbitration and Judicial Cooperation in civil matters: Towards an Integrated Approach
    José Angelo Estrella-Faria, Principal Legal Officer and Head, Legislative Branch, International Trade Law Division, Office of Legal Affairs, United Nations; Former Secretary General, UNIDROIT
  1. General Synthesis and Future Perspectives
    Hans van Loon, Former Secretary General, HCCH


Poster Bonn HCCH Conference-30-01-23





HCCH Monthly Update: January 2022

Conflictoflaws - mer, 02/01/2023 - 09:35

Conventions & Instruments

On 1 December 2022, the 2007 Maintenance Obligations Protocol entered into force for Ukraine. At present, 31 States and the European Union are bound by the Protocol. More information is available here.

On 7 December 2022, the 1961 Apostille Convention entered into force for Saudi Arabia. The Convention currently has 124 Contracting Parties. More information is available here.

On 1 January 2023, the 1980 Child Abduction Convention entered into force for Cabo Verde. The Convention currently has 103 Contracting Parties. More information is available here.

On 19 January 2023, El Salvador deposited its instrument of accession to the 1970 Evidence Convention. The Convention, which currently has 65 Contracting Parties, will enter into force for El Salvador on 20 March 2023. More information is available here.


Publications & Documentation

On 20 December 2022, the Permanent Bureau published the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children. More information is available here.

On 18 January 2023, the Permanent Bureau published the second edition of the Practical Handbook on the Operation of the Apostille Convention. More information is available here.



On 13 December 2022, the Permanent Bureau celebrated the 10th anniversary of the establishment of the HCCH Regional Office for Asia and the Pacific. More information is available here.


These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Private International Law in the Proposal by the UNIDROIT Working Group on Digital Assets

EAPIL blog - mer, 02/01/2023 - 08:00

UNIDROIT has started an online consultation on its Draft Principles and Commentary on Digital Assets and Private Law, which Marco Pasqua has thankfully posted on this blog.

Principle 5 titled “Conflict of laws” will be of special interest for our readers, yet even experts of the field may have trouble understanding this somewhat complex provision. As an observer in the Working Group, I would like to give some background.

Scope ratione materiae

The subject of Principle 5 is the law applicable to proprietary issues in digital assets. A digital asset is defined in a broad way as an “electronic record which is capable of being subject to control” (Principle 2(2)). This covers all cryptocurrencies and tokens. The term “proprietary issues” is not defined but can be understood as encompassing the existence and transfer of ownership as well as other rights in rem.

Party Autonomy

The law governing proprietary issues in digital assets is defined by a waterfall.

The first two levels are dominated by party autonomy. Principle 5(1)(a) refers to the law expressly specified in the digital asset itself, whereas Principle 5(1)(b) points to the law chosen for the system or platform on which the asset is recorded.

Free choice of law may be seen as a heresy in property law. Yet it must be borne in mind that the blockchain environment is relatively self-contained. A restricted choice of the applicable property law has already been accepted in the Hague Intermediated Securities Convention. This was a door-opener, even though the EU did not sign up.

The problem lies elsewhere. Virtually none of the existing digital assets or systems contains a choice of law. This is by no means a coincidence, but the result of the anti-etatist beliefs of the social circles in which the technology was conceived. Since these beliefs are unlikely to change any time soon (if ever), choice of law for a blockchain will remain as rare as hen’s teeth.

Options A and B

If the governing law is not chosen (i.e. virtually always), the draft provides two options (Principle 5(1)(c)). Under Option A, a state can specify the relevant rules of its forum law which should govern, and to the extent these are insufficient, refer to the UNIDROIT Principles as a kind of gap-filler. Under Option B, it can declare the UNIDROIT Principles to apply directly, without specifying any part of its domestic law.

What is striking is that the conflict-of-laws method is completely ignored here. The law of the forum or the UNIDROIT Principles govern, regardless of the connections of the case.

This may be justified insofar as substantive law harmonisation on the international level is achieved, i.e. in case of Option B. But where a state follows Option A by specifying certain rules of the forum as applicable, these rules would in fact govern all situations world-wide before its courts. Other states following Option A would also specify their own national rules. Divergences between these rules will not only be cast in stone, but exacerbated by substantive rules of PIL (règles matérielles de droit international privé). The result will be a global jumble, leading to the opportunities of forum shopping which PIL experts know so well. 

UNIDROIT Trumps National Law

If the governing law is not chosen, nor the substantive rules or the UNIDROIT Principles on Digital Assets apply, then the law applicable by virtue of the PIL rules of the forum governs (Principle 5(1)(c)). The PIL rules are thus relegated to the last level. What is more, no harmony is achieved, as not a single indication is given on how the states should fashion their PIL. Anything goes – hardly a recipe for global harmonisation.

Joint Project with HCCH

The Hague Conference on PIL has just published a joint proposal with UNIDROIT for a “Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens”. It shall deal specifically with Principle 5 of the UNIDROIT Draft. This is the first joint project between the two institutions. One may nurture the hope that it will result in more precise and elaborate connecting factors. Until then, the need for clearer conflicts rules may be highlighted in the UNIDROIT online consultation, which is open until 20 February 2023.

Negotiorum gestio – The Unchartered Territory of EU PIL

EAPIL blog - mar, 01/31/2023 - 08:00

The rules on negotorium gestio in Article 11 Rome II Regulation have received little attention so far and are rarely well understood. Jonas Fritsch has written a PhD thesis on them, in which he compares the different legal systems of the Member States and examines in detail the connecting factors of Article 11 Rome II. He has kindly provided the following summary:

Negotiorum gestio is a concept that can be described as multifaceted. Whilst in Germany it is subject to many controversial discussions in academia, other Member States of the EU barely know it. In any case, its scope is vague. This is why the EU’s ambition to create a uniform conflict of laws rule was described by the Hamburg Group for Private International Law as “a bold attempt”. The presented thesis sheds light on the end product of EU’s work by analyzing in particular Article 11 of EU’s Rome II Regulation. This provision is interpreted in detail and considered in the context of the other provisions of EU’s regulatory framework.

The analysis is preceded by a section deemed to create a methodological foundation for the later work. Here, for example, the question is addressed as to whether in European law a distinction must be made between “mere” interpretation and further development of the law (so-called “Rechtsfortbildung”). Whilst the CJEU does not differentiate between both concepts of methodology, it is shown that they differ considerably. For this reason, the author opts for identifying a legal finding that goes beyond mere interpretation and applying the appropriate methods to this. By referencing the discussion in German academia, it is shown that it is no longer a matter of “mere” interpretation when the law’s wording is exceeded.

On this basis, Article 11 Rome II is examined. Here, selected legal systems (in particular Germany, Austria, France, Spain and Italy) are studied with regard to their view on negotiorum gestio. From this, conclusions are drawn on the scope of application of Article 11 Rome II. At the end it becomes clear that the provision’s scope includes all claims that arise when a person (the intervenor) intervenes in the affairs of a third party (the principal), does not (exclusively) act in his or her own interest and is not obliged to do so.

Subsequently, the connecting factors provided for in Article 11 Rome II are analyzed. Particularly neuralgic is Article 11(3) Rome II. The “country in which the act was performed” is difficult to identify in some cases as there is uncertainty about the meaning of the term “act”. This causes problems, for example, when the actions of the intervenor are locally distinct from their effects – additional examples are presented in the book. It is demonstrated that Article 11(3) Rome II can be directly applied only if the intervenor’s actions immediately coincide with an interference with absolutely protected rights (such as body integrity or property) or the principal’s unpaid obligations (i. e. payment of the principal’s debts). In all other cases, the purpose (or “telos”) underlying Article 11(3) Rome II is missed. This is why the author states that Rome II contains an unconscious lacuna in this regard: It can be assumed that the European legislator intended to regulate all cases of negotiorum gestio; however, it has not been able to consider all possible constellations. This lacuna needs to be filled and this should be done by applying the law of the place where the specific interest of the principal is located; this constitutes a neutral connecting factor and is thus in line with the telos of Article 11(3) Rome II. Stating this, the author also mentions that other scholars might disagree with the presented way of solution and rather refer to the escape clause contained in Article 11(4) Rome II to handle those cases. However, he points to the uncertainties regarding the proper application of the escape clause and that it does not apply here on the basis of the proper understanding.

Finally, the European civil procedural law and the qualification of claims arising out of negotiorum gestio are discussed. The thesis reveals that such claims are subject to the jurisdiction according to Article 7 No. 2 Brussels Ibis and cannot be qualified contractually”.

Contact the author: jonas.fritsch@staff.uni-marburg.de

Conference in Milan on the European Account Preservation Order, 3 March 2023

Conflictoflaws - lun, 01/30/2023 - 10:00

On 3 March 2023, the Catholic University of the Sacred Heart will host a conference titled The European Account Preservation Order – Six Years On. The aim is to discuss the operation of Regulation (EU) 655/2014 in light of practice and case law, six years after its provisions became applicable, in January 2017.

Presentations will be given in English and Italian, with simultaneous interpretation.

The speakers include Fernando Gascón Inchausti (Complutense University of Madrid), María Luisa Villamarín López (Complutense University of Madrid), Katharina Lugani (Heinrich Heine University, Düsseldorf), Antonio Leandro (University of Bari), Carlos Santalò Goris (Max Planck Institute, Luxembourg), Caterina Benini (Catholic University of the Sacred Heart), Elena Alina Ontanu (Tilburg University), Raffaella Muroni (Catholic University of the Sacred Heart), Elena D’Alessandro (University of Torino), and Gilles Cuniberti (University of Luxembourg).

The event will also serve as a launch event for an article-by-article commentary on the EAPO Regulation, edited by Elena D’Alessandro and Fernando Gascón Inchausti, and recently published by Edward Elgar Publishing in its Commentaries in Private International Law series. Augusto Chizzini (Catholic University of the Sacred Heart) and Luca Radicati di Brozolo (formerly of the same University, now partner at ArbLit) will discuss the commentary with the editors and the audience.

Attendance is free, but prior registration is required.

See the registration form and the full programme. For further information: pietro.franzina@unicatt.it

The Law of Treaties as Applied to Private International Law

EAPIL blog - lun, 01/30/2023 - 08:00

A conference on The Law of Treaties as Applied to Private International Law is scheduled to take place in Milan on 5 and 6 May 2023, under the auspices of the Italian Society of International Law and EU Law (SIDI) and the European Association of Private International Law (EAPIL).

The conference will be opened by two general presentations. Catherine Brölmann (University of Amsterdam) will present the rules of public international law relating to treaties and discuss the manner in which, and the extent to which, they can reflect the specificities of the subject-matter of the treaty concerned. Patrick Kinsch (University of Luxembourg) will outline the relevance of the law of treaties to the development and implementation of international conventions in the field of private international law.

Five thematic panels will follow, each featuring a discussion between experts in the law of treaties and speakers familiar with the practice relating to private international law treaties, respectively.

The first panel, on The conclusion and entry into force of private international law treaties, will be chaired by Hans Van Loon (former Secretary-General of the Hague Conference on Private International Law). The discussion will involve Jean-Marc Thouvenin (University of Paris Nanterre; Secretary-General of The Hague Academy of International Law) and Antonio Leandro (University of Bari).

The second panel, chaired by Sergio Carbone (University of Genova, Emeritus), will be devoted to The observance, application and interpretation of private international law treaties. Luigi Crema (University of Milan), Pedro De Miguel Asensio (Complutense University of Madrid) and Paul Beaumont (University of Stirling) will speak on the topic.

The third panel will be about The amendment and succession of private international law treaties: Catherine Kessedjian (University Paris II Panthéon-Assas, Emerita) will moderate a discussion between Jan Wouters (KU Leuven) and Andrea Schulz (German Federal Ministry of Justice).

Burkhard Hess (Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) will chair the fourth panel, on The management of conflicts between private international law treaties, with Jan Klabbers (University of Helsinki, TBC) and Alex Mills (University College London) as speakers.

Finally, with Etienne Pataut (University Paris I – Panthéon-Sorbonne) chairing, Malgosia Fitzmaurice (Queen Mary University of London), Chiara Tuo (University of Genova) and Zeno Crespi Reghizzi (University of Milan) will discuss issues in connection with Avoiding, exiting and litigating commitments arising from private international law treaties.

A roundtable on The role of IGOs in the elaboration, implementation and coordination of private international law treaties, chaired by Fausto Pocar (University of Milan, Emeritus), will follow. Participants will include: Nicolas Nord (Secretary-General of the International Commission on Civil Status), Andreas Stein (Head of Unit (Civil Justice) at the European Commission Directorate-General for Justice and Consumers – Civil and commercial justice), Ignacio Tirado (Secretary-General of the International Institute for the Unification of Private Law (Unidroit), and Luca Castellani (Secretary of Working Group IV (Electronic Commerce) – Uncitral).

The conference, which will also feature a key-note speech by Maciej Szpunar (Judge at the Court of Justice of the European Union, TBC), will be closed by remarks by Stefania Bariatti (University of Milan).

The conference is organised by a scientific committee consisting of Stefania Bariatti, Giacomo Biagioni, Pietro Franzina and Lorenzo Schiano di Pepe, and will take place at the Catholic University of the Sacred Heart.

The full programme can be found here, together with additional practical information. Those wishing to attend must fill in the registration form available here. Early bird rates are offered to those registering before 6 March 2023.

For further information, please write an e-mail to: pietro.franzina@unicatt.it.

Book launch/webinar: Cross-border litigation in Central Europe 23 February 2023

Conflictoflaws - ven, 01/27/2023 - 16:33

The Centre for Private International Law of the University of Aberdeen is organising a webinar/book launch for Csongor István Nagy (ed.), Cross-Border Litigation in Central Europe (Kluwer Law International, 2022) on 23 February 2023, 13:00 – 15:00 UK time.


Prof Carmen Otero García-Castrillón, Complutense UniversityComplutense University, Madrid (Spain)

Dr Mihail Danov, University of Exeter (UK)

Prof Csongor István Nagy, University of Szeged (Hungary)


Dr Michiel Poesen, University of Aberdeen (UK)

Please register and find more information here.


Bravo v Amerisur Resources (Putumayo Group Litigation). Claimants survive time-bar challenge despite questionable finding on Rome II’s evidence and procedure carve-out.

GAVC - ven, 01/27/2023 - 12:12

In Bravo & Ors v Amerisur Resources Ltd (Re The Amerisur plc Putumayo Group Litigation) [2023] EWHC 122 (KB) claimants, who live in remote rural communities in the Putumayo region of Colombia, seek damages from the defendant pursuant to the Colombian Civil Code, and in reliance on Colombia Decree 321/1999, in respect of environmental pollution caused by a spill (or spills) of crude oil on 11 June 2015. The claimants’ two causes of action are pleaded under the headings (i) guardianship of a dangerous activity and (ii) negligence. It is common ground between the parties that the oil spillage was the result of deliberate acts by terrorist organisation, FARC.

Steyn J yesterday held on preliminary issues, including statute of limitation. Defendant contends that the two year limitation period provided by relevant Colombian law re Colombian group actions (‘Law 472’), applies to the claim. Parties agree that in substance, Colombian law is lex causae per A4 and A7 Rome II.

Claimants rely on two points of English law and one of Colombian law. First, they contend that the relevant Article of Law 472 is a procedural provision within the meaning of A1(3) Rome II, and therefore it falls outside the scope of Rome II. I believe they are right but the judge did not. Secondly, they refute the defendant’s contention that this action should be treated as a group action under Law 472. Thirdly, even if they are wrong on both those points, they submit that application of the time limit of Law 472 would be inconsistent with English public policy, and so the court should refuse to apply it pursuant to A26 Rome II.

All but one links to case-law in this post refer to my discussion of same on the blog, with pieces of course further linking to the judgment. Apologies for the pat on my own back but it is nice to see that all but one (Vilca, where parties essentially agreed on the Rome II issue) of the cases referred to in the judgment all feature on the blog.

For claimants, Alexander Layton KC referred to Wall v Mutuelle de Poitiers Assurances and Actavis UK Ltd & ors v Eli Lilly and Co (where the issues were discussed obiter). Defendants rely on Vilca v Xstrata Ltd [2018] EWHC 27 (QB)KMG International NV v Chen [2019] EWHC 2389 (Comm), Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB), [2020] ILPr 44 and Johnson v Berentzen [2021] EWHC 1042 (QB).

My reception of the High Court’s conclusions in KMG, Pandya, and Johnson was not enthusiastic, and in my review of Pandya in particular I also suggest that the same scholarship relied on in this case, did not actually lend support to the  defendant’s arguments, and I stand by that, too.

Hence Steyn J’s conclusion [102] that Article 15 Rome II

contains a list of matters which are ‘in particular’ to fall under the designated law, irrespective of whether they would be classified as matters of substance or procedure

and [106]

that the provisions of article 15 of Rome II should be construed widely

in my view is wrong. (Note the linguistic analysis in [110] will be of interest to readers interested in authentic interpretation of multi-lingual statutes).


[109] The key question then is which Colombian limitation period applies to these English proceedings, which brings the judge to discuss [115] ff ia Iraqi Civilians v Ministry of Defence (No.2). Here the judge, after discussing Colombian law evidence, holds [137]

that this action has not been brought under Law 472, and it does not fall to be treated as if it had been brought as a Colombian group action. Therefore, this action is not time-barred pursuant to article 47 of Law 472.

Hence claimants lost the argument on Rome II’s procedural exception but won the argument on application of Colombian law.

[139] ff whether the limitation rule should be disapplied pursuant to A26 Rome II is discussed obiter and summarily, with reference of course to Begum v Maran which I discuss here. The judge holds A26’s high threshold would not be met.

Both parties have reason to appeal, and one wonders on which parts of Rome II, permission to appeal will be sought.


EU Private International Law, 3rd ed. 2021, ia para 4.80.


Successful claimants (represented ia by @alexwlayton instructed by @leighdayintl) in Amerisur Putumayo Group Litigation -Colombia crude oil spill
Preliminary Rome II issues include qualification of issues as procedural, public policy

[2023] EWHC 122 (KB)https://t.co/X139KicNzR

— Geert Van Calster (@GAVClaw) January 27, 2023

Draft UNIDROIT Principles on Digital Assets and Private Law – Online Consultation

EAPIL blog - ven, 01/27/2023 - 08:00

The International Institute for the Unification of Private Law (UNIDROIT) is presently conducting a public consultation regarding a set of Draft Principles and Commentary on Digital Assets and Private Law.

These Principles have been prepared by the Working Group on Digital Assets and Private Law over the course of 7 sessions between 2020-2022. Additional information about the Working Group and its meetings can be found here.

Comments should be provided in English, using this online form. The form is divided into seven sections consistent with the text of the Principles; section II is about private international law.

The deadline to submit comments is 20 February 2023. The Working Group will consider the comments received at its next session (8-10 March 2023).

For further information, please contact Hamza Hameed at h.hameed@unidroit.org.


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