Droit international général

I am trying to catch up with blog posts this week and Robbins v Buzzfeed UK LTD (Approved) [2021] IEHC 433 goes back to the start of exam time at Leuven (early June). Claimant resides in California and is domiciled in the United States. Defendant has its registered office in London. The proceedings concern articles which were posted in May, June and November 2019 on the website “BuzzFeedNews.com” which related to claims of sexual misconduct, bullying and harassment, by the plaintiff, of certain employees and attendees at his events, alleged to have occurred between the 1980s and 2009 in the United States and in Canada.

Heslin J reviews the usual CJEU suspects, including Shevill and e-Date /Olivier Martinez, with [36] an interesting discussion of the impact of the applicable law. The substantively applicable law will always of course be a national law (additionally, Rome II exempts defamation from its scope of application). The Irish common law requires publication to at least one other, for there to be defamation. This would, so the argument goes, require claimant to prove the extent of consultation so as to establish jurisdiction. The judge holds that  Shevill is not authority

for the proposition that, in order to successfully invoke jurisdiction pursuant to Article 7(2), a plaintiff has an obligation to prove publication or that, having regard to the facts in the present case,  a plaintiff must prove that articles which he says were defamatory and which were in fact available to readers in this jurisdiction were downloaded or read by specific numbers of persons in this jurisdiction.

However he also holds claimant has proved readership figures of more than 13,000 as at the date the proceedings were instituted. I agree that as the passerelle to applicable law is noli sequitur in the application of A7(2) BIa. However the Mozaik findings in Shevill do mean that if such as here, jurisdiction is only based on locus damni, actual readership does need to be shown. A spanner in those works is CJEU Martinez at 51, where the CJEU uses the term “ accessible”, not the term “ accessed” [42].  In the light of claimant having proven actual downloads, the issue is of no relevance to the case [43] albeit it is yet more discussed and indeed at length, ia [57 ff] with reference to Ryanair v Fleming [2016] 2 IR 254 (a non-BIa case).

[79] a forum non application is of course rejected with reference to CJEU Owusu v Jackson despite a suggestion [83] that the principle in Owusu only applies to A4 BIa domicile jurisdiction.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.12.2.5.

The UK Supreme Court in Lloyd v Google [2021] UKSC 50 held a few weeks back. It allowed the appeal, meaning the Court of Appeal‘s judgment is no longer good law and the High Court‘s approach is now the rule. The judgment essentially means that loss of control over private data is not considered ‘damage’ within the data protection Act 1998. The issue is one of statutory interpretation: on its proper interpretation, the SC understands the term “damage” in s. 13 to mean material damage (financial loss for instance) or mental distress, and not just unlawful processing. Loss of control therefore may still play a role in the common law tort of misuse of private information, and ‘damage’ was of course also considered flexibly in the context of consequential losses (Brownlie).

On class actions, the SC’s judgment is a set-back, too, with the judgment [80] holding

What limits the scope for claiming damages in representative proceedings is the compensatory principle on which damages for a civil wrong are awarded with the object of putting the claimant – as an individual – in the same position, as best money can do it, as if the wrong had not occurred. In the ordinary course, this necessitates an individualised assessment which raises no common issue and cannot fairly or effectively be carried out without the participation in the proceedings of the individuals concerned. A representative  action is therefore not a suitable vehicle for such an exercise.

Geert.

The UK SC has allowed the appeal in Lloyd v #Google, restoring the first instance judge's narrower concept of damage (viz loss of control of personal data) under UK's implementation of the precursor to the #GDPR https://t.co/U5UToXDITq
For background see https://t.co/LOlbmKOolF pic.twitter.com/XkW97N4vVN

— Geert Van Calster (@GAVClaw) November 10, 2021

You are kindly invited for the online conference on “Human Mobility Becomes ‘Unwanted’ Migration When Meeting Borders: Tactics and Technologies of Migration Management” by Prof. Dr. Helga RITTESBERGER-TILIÇ (Middle East Technical University, Department of Sociology, Ankara, Turkey) on December 8, 2021, Wednesday between 12.30-13.30 (GMT+3). The conference is organised by Bilkent University as a part of the Talks on Migration Series within the Jean Monnet Module on European and International Migration Law. It will be held via zoom, free of charge. Please contact us (Jmmigration@bilkent.edu.tr) for participation.

Biography:
Prof. Dr. Helga RITTESBERGER-TILIÇ is a member of the Department of Sociology at Middle East Technical University (Ankara, Turkey) since 1985. She received her doctorate degree from Essen University, Germany.
She has extensively worked on different aspects of international as well as national migration. She covered a wide field of subthemes such as return migration from Germany, migration to Europe, human trafficking, unacompanied migrant children, foreign domestic women labor in the informal economy in Turkey, integration of Syrian migrants into the Turkish labor market, ‘legal’ foreigners in Turkey as well as rural-to-urban migration processes and urban poverty in the national Turkish context.

Abstract:
Human Mobility becomes ‘unwanted’ Migration When Meeting Borders: Tactics and Technologies of Migration Management
Some researchers might stress a quantitative analysis of numbers of ‘forced’ migrants, refugees, asylum seekers, deportations etc. or we may say the quantification of state categorizations of different types of wanted and unwanted migrants. Others might be more interested in the study of how social relations produce discriminatory practices such as the subjectification of deportees, the role of criminalization and securitization discourses, etc.
The categorization into ‘those migrants, who deserve’ and ‘those, who do not deserve’ to stay, live, and work in a country is part of multiple processes in which a variety of tactics, tools and strategies are employed by different actors on local, regional and global levels. There is a wide range of actors: politicians, civil society organizations, academia, media, migrant solidarity organizations, local people and the migrants themselves. But the underlying assumption that migrants are part of a subordinate inclusion into local and global labor regimes remains.
Among the strategies of migration management changing of border regimes and control mechanisms, closing of borders, policing and an increase in deportation measures can be listed. Migrants were forced to return, stay in hotspot detention camps, find ‘alternative’ routes, or built their self-made camps like in Calais. The migrants trying to pass border crossings and fighting police, pushbacks of crowded boats and death statistics are presented to us, the audience, as a mediatic spectacle. The manifestation of the COVID 19 pandemic can be stressed, referring to changing tactics of ‘re-bordering’ the national borders as purposeful activities in the name of public health emergency on a global scale.
Thus, the process of building borders and the externalization of border regimes should be part of a discussion on ’forced’ migration without forgetting that migrants are disposable labor but also subjective beings.

A series of webinars have taken place since June this year to celebrate European Law Institute’s 10th anniversary. The latest in the series is about the ELI project on the Protection of Adults in International Situations and is scheduled for 7 December 2021, from 18:15 to 19:45 (CET),

The ELI project on adults seeks to encourage the European Union to consider both external action and the enactment of legislation in the field. The final report provides analysis and proposals regarding further issues surrounding the application of the Hague Convention of 13 January 2000 on the International Protection of Adults or otherwise relevant to the protection of adults in international situations. It also includes a checklist intended for practitioners, to encourage the development of private mandates within the ambit of the substantive laws of the Member States.

Confirmed speakers are: Aneta Wiewiórowska-Domagalska (Chair; ELI Executive Committee member; Senior Research Fellow, University of Osnabrück), Pietro Franzina (ELI Project Co-Reporter; Professor at the Catholic University of the Sacred Heart, Milano), Richard Frimston (ELI Project Co-Reporter; Consultant, Russell Cooke), Philippe Lortie (First Secretary, Hague Conference on Private International Law (HCCH)), Pascal Pichonnaz (ELI President; Professor, Faculty of Law of the University of Fribourg), Geraldo Ribeiro (Chair of the HCCH Working Group charged with drafting a practical handbook on the Hague Convention of 13 January 2000 on the International Protection of Adults), Salla Saastamoinen (Director for civil and commercial justice, DG JUST, European Commission) and Adrián Vázquez Lázara (Member of the European Parliament; JURI Committee Chair).

The webinar will also feature a 20–25 minute Q&A session with attendees.

Attendance is free. The registration form is available here.

by Poomintr Sooksripaisarnkit

On 25th November 2021, the English Law Commission published its Advice to Government on smart legal contracts. While the English Law Commission is anticipating launching in mid-2022 a project to review conflict of law rules to emerging technology, in Chapter 7 of this Advice, it discusses issues relevant to the jurisdiction of English courts concerning smart legal contracts. The term ‘smart legal contracts’ is explained at paragraph 2.11 of the Advice as: “legally binding contracts in which some or all of the contractual obligations are defined in and/or performed automatically by a computer program”.

In England, whether a court will have jurisdiction over a contractual dispute depends on either a party’s presence or domicile or by how or where a contract is formed. The English Law Commission found that identifying a party’s identity, presence, or domicile in the context of smart legal contracts can be problematic because parties can use pseudonyms in transactions on a distributed ledger. Concerning the place where the contract is formed, this depends upon the type of smart legal contracts in question. For smart legal contracts agreed upon in natural language but with automated performance, the place of formation can be determined by the normal rules of contract formation with reference to the natural language negotiations. For solely code smart legal contracts, a further distinction needs to be made between a unilateral one (whereby a party uses code on a distributed ledger and the other party acts upon) and a bilateral one (whereby a party uses a computer program on a distributed ledger to make an offer which is then accepts by a computer program deployed by the counter party). In case of a unilateral one, uncertainty exists because the place can be either a place where the other party performs the act pursuant to the deployed code or a place where acceptance is communicated to the offeror or there may be other potential places. For a bilateral one, the place can be either the place where the offeree is when his computer program accepts the offer, or it might be where the offeree is when the acceptance is communicated to the offeror. Or such place may be where the offeror is when the acceptance takes place or where the offeror is when the acceptance is communicated. Alternatively, the place of formation may be determined by the location of certain numbers of participating nodes. For hybrid smart legal contracts where terms are defined in natural language as well as defined in code, if such contracts are taken to be formed when the parties sign natural language terms, then there is no new complexity. On the other hand, if they are taken to be formed when coded terms are deployed, then same complexity in the context of solely code smart legal contracts arises. On either form, there will be more complexity due to multi-party arrangements as well as due to the nature of the distributed ledger technology itself. The English Law Commission ultimately was of the view that a bespoke principle to identify the place of formation of smart legal contracts should be developed. Parties are also encouraged to embed a jurisdiction clause in their smart legal contract. A possibility that the jurisdiction may be based upon the location of an agent was also considered. On this, a computer coder engaged to produce coded terms for a smart legal contract is taken to be an agent.

At times, an applicable law to contract may constitute a basis for establishing the court’s jurisdiction. On this, the English Law Commission pointed out that parties cannot choose a platform protocol as a governing law since this is not a “law” of a particular country as in Article 3(1) of the Rome I Regulation, which the English choice of law rules are still based upon. Nevertheless, the parties can incorporate the platform protocol as terms in their contract. While it will be difficult for parties to include a coded choice of law clause in their contract, the parties are advised to include a comment or other natural language provision so to stipulate the choice of law. In the absence of the express choice, Article 4(1) of the Rome I Regulation set out rules to determine the applicable law in certain types of contracts. The English Law Commission did not view these connecting factors to create any novel problem. Yet, the difficulty lies in identifying counter parties. In the absence of specific rules in Article 4(1), in Article 4(2), the applicable law is determined by the place of characteristic performance. In this context the characteristic performer is “the person that, but for the automation, would have performed the obligation that is characteristic of that type of contract, even if the actual performance of that duty is automated”. Failing this, the closest connection as per Article 4(3) and (4), this can be drawn from several connecting factors (no.7.92):

“(1) The identities, habitual residences, and domiciles of the parties (and/or of their agents).
(2) The place where any real-world performance takes place.
(3) The location of the nodes running the smart legal contract…
(4) The location of the party who instigates the creation of the smart legal contract.
(5) The place where the relevant smart legal contract platform is based.
(6) The domicile of the ledger’s gatekeeper/controller, if the relevant ledger is permissioned.
(7) The law governing any closely related contracts.
(8) The location of the private key…
(9) The location of any real-world assets to which the smart legal contract relates;
(10) The location of any cryptoasset to which the smart legal contract relates…”

Similar connecting factors are also applicable in the context of forum (non) conveniens consideration.

For full access of the Advice: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2021/11/Smart-legal-contracts-accessible.pdf

Dr Poomintr Sooksripaisarnkit is Lecturer in Maritime Law, Australian Maritime College, University of Tasmania and Senior Research Fellow, Research Centre for Private International Law in Emerging Countries, University of Johannesburg

Dr. Lenka Valkova, Researcher at the University of Milan, offers a description of the Proposal for a Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the judicial cooperation, COM(2021) 759 final, issued on 1 December 2021.

Although a comprehensive set of instruments were designed to enhance judicial cooperation and access to justice in cross-border civil, commercial and criminal cases at EU level, most of them do not provide for engaging in communication between authorities and individuals or legal entities through digital means.

During the COVID-19 pandemic, in many instances national courts have been unable to maintain normal operations and were forced to switch to the use of digital technologies (e.g. email, videoconference, etc.). However, many of the technical solutions employed were developed in an ad hoc manner. Against this background, in December 2020 the Commission adopted a Communication on the digitalisation of justice in the EU proposing a set of measures to bring forward digitalisation at both the national and EU level in line with the ‘digital by default’ principle. Such principle should be understood as a way to improve the efficiency and resilience of communication, reduce costs and administrative burden, by making the digital channel of communication the preferred one to be used (on the Communication see here and Commission Staff Working Document Accompanying the Communication see here).

In this framework, and following the publication of The Roadmap and Public consultation, the Proposal for a Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the judicial cooperation, was issued on 1 December 2021 (on the Proposal and also on the Impact Assessment see here). According to the Proposal, the Regulation shall apply to electronic communication between competent authorities and between natural or legal persons and competent authorities, and videoconferencing in proceedings falling under the scope of the legal acts listed in Annex I, and notably the Brussels Ibis Regulation, the Regulation on European Order for Payment Procedure, the Regulation on European Enforcement Order for Uncontested Claims, the Regulation on European Small Claims Procedure, the Regulation on European Account Preservation Order, the Regulation on Insolvency Proceedings, the Brussels IIter Regulation, the Maintenance Regulation, the Regulations on Matrimonial Property Regimes and on the Property Consequences of Registered Partnerships (on complete list of the legal instruments in Annex I see here).

To guarantee a common approach towards the use of modern technologies in cross-border judicial cooperation and access to justice, this initiative aims to make using digital communication compulsory for communication between courts and competent authorities through a decentralised IT system, subject to justified exceptions in case of disruption of the system or in other specific circumstances. Moreover, the Regulation should provide a legal basis for the electronic communication between courts and natural and legal persons and for the use of videoconferencing or other distance communication technology for oral hearings in cross-border cases. To this end, the European electronic access point, located on the European e-Justice Portal, which may be used by natural and legal persons for electronic communication with the courts and competent authorities in civil and commercial matters with cross-border implications, will be established. While the courts and competent authorities will be required to accept electronic communication from natural and legal persons, the use of the digital channel will be voluntary for the natural and legal persons. In fact, to respect the needs of disadvantaged groups and vulnerable people and to ensure that citizens who lack digital skills, who live in remote areas or whose personal capacity does not allow them a seamless access to the digital tools, the paper-based communication will be maintained as an option.

This Proposal and other EU initiatives concerning cross-border civil, commercial and family law in the digital world will be discussed on 8 December 2021 during the event PhD Book Club – EU PIL in Digital World. The event is organized under the auspices of the Digital in Law project, co-funded by the Erasmus+ Programme of the European Union.

The quarterly “Polish Civil Procedure” (“Polski Proces Cywilny”) just published a special issue on international procedural law and private international law. The issue is entirely devoted to international family law. Under the common title “New efforts in judicial cooperation in European child abduction cases”, it gathers contributions drafted in English and coming from authors representing several jurisdictions.

A special attention is being given to the Regulation 2019/1111. In fact, as Editor-in-Chief of the quarterly, Karol Weitz, and his colleagues clarify in the Editorial, it is the upcoming entry intro application of the Regulation that has prompted them to “invite distinguished and well-known academics from all over Europe to share their ideas [in particular on] the practical problems of its application by national courts and predicted impacts of amendments introduced pursuant to the [Regulation] as well as the outlook for the future developments in the field of European private international and procedural law, with a particular emphasis on cross-border family law matters”.

In addition to the print, the contributions contained in this issue are available online. The texts themselves as well as the table of content with abstracts can be consulted here.

Single-click shortcut for our readers:

Dieter Martiny

New efforts in judicial cooperation in European child abduction cases

Burkhard Hess

Towards a Uniform Concept of Habitual Residence in European Procedural and Private International Law?

Michele Angelo Lupoi

Between parties’ consent and judicial discretion: joinder of claims and transfer of cases in Regulation (EU) 2019/1111

Maciej Szpunar, Krzysztof Pacula

Forum of necessity in family law matters within the framework of EU and international law

Olga Bobrzynska

Brussels II ter Regulation and the 1996 Hague Convention on Child Protection – the interplay of the European and Hague regimes in the matters of parental responsibility

Fernando Gascón Inchausti, Pilar Peiteado Mariscal

International child abduction in the case law of the Court of Justice of the European Union: learning from the past and looking to the future

Zofia Kubicka-Grupa

A review of the Polish Supreme Court case law in international family law matters (from January 2015 to April 2021)

Two texbooks on French private international law were recently published in a new edition.

Prof. Bernard Haftel (University Sorbonne Paris Nord) is the author of a short text (375 p.) presenting concisely French private international law in the series Cours Dalloz. The book (and the series) are meant to offer a accessible yet complete treatment of the field. The book covers jurisdiction, foreign judgments and choice of law. It is divided in two parts: a general part and a special part presenting personal status, property, obligations and property aspects of family law (matimonial property regimes and succession).

For more details, see here.

Prof. Sandrine Clavel (University Paris Saclay) is a the author of a longer text (700 p.) also presenting French private international law in another series of the same publisher, Hypercours Cours & TD. It is designed to support students not only in the context of the lectures (Cours), but also in the context of the small classes associated with the lecture that they may choose to follow (Travaux dirigés, ‘TD‘). The book contains a comprehensive treatment of the field distinguishing between general theory of choice of law (Part I) and of international civil procedure (Part II) and rules applying more specifically to natural persons, family, legal persons, property, contracts and torts (Part III). But the book also contains numerous exercises and teaching tools meant to assist students, in particular in the context of travaux dirigés. These tools range from definitions, summaries of French and European leading cases and multiple choice questionnaires, to exams, including 26 with a full correction. The exams include case commentaries (an exercise very peculiar to French legal education), essays and practical exercises.

For more details, see here.

A monthly (online) seminar series on Trends and Challenges in Costs and Funding of Civil Justice will be launched on 15 December 2021 and run till June 2022. The seminars aim to discuss developments in costs and funding of civil litigation in Europe and at the global level, including third-party litigation funding, crowdfunding, collective and public interest ligitation, legal mobilization, austerity policies and funding of ADR. The seminars are organized  by the team of the five year Vici project ‘Affordable Access to Justice’, financed by the Dutch Research Council, at Erasmus School of Law in Rotterdam.

You can register for all or some of the seminars here.

The first seminar will address key issues in access to justice and costs and funding, including funding of international commercial litigation, third-party funding of collective redress and Law & Economics views on litigation funding. It is combined with the launch of the book New Pathways to Civil Justice in Europe (Springer, 2021) which resulted from a conference organized by the Rotterdam ERC team Building EU Civil Justice.

Access to Justice and Costs and Funding of Civil Litigation – 15 December 2021, 15.30-17.30 CET

PROGRAM

15.30-15.40  Xandra Kramer (Erasmus School of Law): Welcome, Introduction and book launch

15.40-16.10  Judith Resnik (Yale University): Constituting a Civil Legal System Called “Just”: Law, Money, Power, and Publicity (open access chapter)  – including Q&A

16.15-16.35  Ianika Tzankova (Tilburg University): Access to Justice in the Global Village? Follow the Money!

16.35-16.55  John Sorabji (University College London): Developments in Costs and Funding of Civil Justice

16.55-17.15  Louis Visscher (Erasmus School of Law): Funding Litigation – a Law & Economics perspective

17.15-17.30 Discussion

OTHER UPCOMOMING SEMINARS:

19 January 2022: Legal Mobilization:?A European Perspective

16 February 2022: The impact of public interest litigation on access to justice: an empirical perspective

March 2022: Delving into Third-Party Litigation Funding in Europe (registration not open yet, date and details will follow)

20 April 2022: ‘Emotions recollected in tranquillity’: Austerity policies and litigation costs reforms in Southern Europe

25 May 2022: Funding and Costs of ADR in the Civil Justice System

June 2022: Regulating Third-Party Litigation Funding (registration not open yet, date and details will follow; may be combined with a live event in Rotterdam)

Where the habitual residence of the deceased at the time of death is not located in any of the Member States, the court of a Member State which finds that the deceased had the nationality of that State and held assets within its territory must, of its own motion, examine whether it has jurisdiction under Article 10 of the Succession Regulation?

This question lies at the heart of the request for a preliminary ruling lodged by French Cour de Cassation before the Court of Justice in the case V A and Z A, C-645/20. This is also the question that AG Campos Sánchez-Bordona thoroughly analyses in his Opinion presented this Thursday.

As a reminder, under the general rule of jurisdiction set out in Article 4 of the Succession Regulation, the courts of the Member State in which the deceased had his habitual residence at the time of death have jurisdiction to rule on the succession as a whole.

In a subsidiary manner, under Article 10(1)(a) of the Regulation, where the habitual residence of the deceased at the time of death is not located in a Member State, the courts of a Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in so far as the deceased had the nationality of that Member State at the time of death.

These provisions are followed by Article 15. It states that where a court of a Member State is seised of a succession matter over which it has no jurisdiction under this Regulation, it shall declare of its own motion that it has no jurisdiction.

According to AG Campos Sánchez-Bordona, the outcome of the clash between these provisions leads to an affirmative answer to the preliminary question:

Where the habitual residence of the deceased at the time of death is not located in any of the Member States, a court of a Member State seised of a succession matter must, of its own motion, declare that it has jurisdiction to rule on the succession as a whole when, in the light of the uncontested facts alleged by the parties (“au vu des faits allégués par les parties et non contestés”), the deceased had the nationality of that State and held assets in it (point 94, please keep in mind that this is not an official translation though).

It seems noteworthy that the preliminary question refers to a situation where a court “finds” that the deceased had the nationality of its Member State and held assets in it. According to the Opinion, such findings must be made “in the light of the uncontested facts alleged by the parties” (see, however, the remark made above concerning the translation).

Why the nuance ?

It seems that Advocate General fine-tunes the scope of his analysis of the preliminary question to perfectly reflect the circumstances of the case pending before the French courts (points 37, 38 and 73). It might be a question of debate whether, simultaneously, his supplementary precision relating to “uncontested” and “alleged” facts may be used in order to delineate, in the abstract (what points 82-87 and 91 could maybe allow for), the (highly unclear and varied under national laws – see point 36) modalities of ex officio examination of jurisdiction under the Succession Regulation and as such be of relevance beyond the scope of the present case.

The Opinion can be consulted here (no English version yet).

By Zheng Sophia Tang, Wuhan University Institute of International Law and Academy of International Law and Global Governance

Chinese courts recognize and enforce foreign civil and commercial judgments under two circumstances: the existence of treaty obligations and the existence of reciprocity. In the past, Chinese courts relied solely on de facto reciprocity to enforce foreign judgments, which requires evidence to prove the courts in the foreign country enforced Chinese judgments in previous cases. Some courts have adopted an even tougher approach and rejected enforcing foreign judgments even though one positive precedent exists in the foreign country, arguing one case is not enough to prove reciprocity. The application of de facto reciprocity causes difficulty to enforce foreign judgments in Chinese courts. It makes enforcement impossible if no application was made to the foreign court to enforce Chinese judgment in the past, and if the other country also adopts the de facto reciprocity. It also makes proving reciprocity difficulty, especially if the foreign country has no comprehensive case report system.

After China commenced the One-Belt-One-Road initiative, efforts were made to relax the threshold to prove reciprocity. The Supreme Court has proposed, in two OBOR opinions, that China should adopt a presumed reciprocity approach, which presumes reciprocity exists if the other country demonstrates intention to establish judicial cooperation with China and no negative precedence exists.[1] However, since these opinions are not legally binding, they are not enough to reverse court practice. Although more Chinese courts enforce foreign judgments after 2013, they still need the proof of one positive case in the foreign country.

20 July, 2021, Shanghai No 1 Intermediate Court decided to recognize and enforce the Singaporean monetary judgment.[2] Although de facto reciprocity already exists between China and Singapore and Chinese courts enforced Singaporean judgments based on de facto reciprocity in the past,[3] this case justifies the decision based on de jure reciprocity. The judgment states: “The reciprocal relationship exists between China and Singapore, because Chinese judgments can be recognized and enforced in Singapore under the same conditions. On the other hand, Singaporean High Court recognized and enforced Chinese judgments in the past, and precedents to recognize and enforce Singaporean judgments also exist in Chinese courts. It shows de facto reciprocal relationship also exists between China and Singapore.”

It is clear that this judgment discusses both de facto and de jure reciprocity. The court considers whether Chinese judgments may be recognized and enforced in Singapore as a matter of law. However, proving de jure reciprocity is not easy. Unless the foreign law completely prohibits enforcing foreign judgments in the absence of treaty obligations, most law will provide conditions for foreign judgments enforcement. The conditions would allow foreign judgments enforced in certain circumstances and not others. In other words, no law would say foreign judgments can be recognized in all circumstances. How to assess if these conditions are enough to make enforcement possible in law? What if the foreign law provides different conditions to enforce foreign judgments from Chinese law? What if the foreign law require de facto reciprocity and China has not yet enforced judgments from this country, rendering enforcement of Chinese judgments practically impossible in the foreign court?

The Shanghai court adopts the equivalent condition test. It takes the seat of Singaporean court and imagine what may happen if this application is a Chinese judgment seeking Singaporean enforcement. It concludes that as far as Singaporean court can enforce Chinese judgments under the same condition, de jure reciprocity exists. In other words, it applies the Singaporean standard to assess enforceability of this judgment. The problem is it may lead to the result that between two countries de jure reciprocity exits in some cases but not others. As reciprocity refers to the relationship between two countries, it should be a systematic status, and not variable according to the different fact of a case.

Another difficulty is that it is usually hard for Chinese courts to know exactly how judicial decision of a foreign court may be made, especially how judicial discretion is going to be exercised in a foreign country. The assessment of the potential enforceability of Chinese judgments in the foreign court in the same condition can only be based on black-letter law which may not be so precise to test de jure reciprocity. Of course, it is arguable that de jure reciprocity only needs a general possibility for a foreign court to enforce Chinese judgments, but not specific Chinese judgments are definitely enforceable in the foreign country. If so, the equivalent condition test is not appropriate to assess de jure reciprocity.

One may suggest the legal comparability test. It argues that de jure reciprocity depends on whether the foreign law provide legally comparable conditions for FJR as Chinese law. This suggestion is also problematic, because many countries’ law provide much lower threshold to enforce foreign law than Chinese law. For example, they do not require reciprocity as a pre-condition. These laws are not comparable to Chinese law, but it is hard to argue that Chinese judgments cannot be enforced in those countries as a matter of law.

The third suggestion is a lower threshold test. It suggests that if the foreign law does not make it more difficult to enforce Chinese judgments, de jure reciprocity exists. However, what if a foreign court also adopt de facto reciprocity, like the practice in most Chinese courts? If neither country was seized to enforce the other’s judgment, Chinese judgment cannot be enforced in the foreign country as a matter of law. Can we still argue de jure reciprocity exists?

Anyway, although the test for de jure reciprocity is not settled, the Shanghai judgment shows a laudable progress. This is the first case that de jure reciprocity has been applied in a Chinese court. Of course, since de facto reciprocity also exists between China and Singapore, this judgment does not bring significant difference in result. It is curious to see whether the Chinese court will apply de jure reciprocity alone to enforce foreign judgments in the future, and whether any new tests for de jure reciprocity may be proposed in the future judgments.

[1] Several Opinions of the Supreme People’s Court Concerning Judicial Services and Protection Provided by People’s Courts for the Belt and Road Initiative], [2015] Fa Fa No. 9, para 6; The Opinions of the SPC Regarding the People’s Court’s Further Provision of Judicial Services and Guarantees for the Construction of the Belt and Road, Fa Fa [2019] 29, para 24.

[2] (2019) Hu 01 Xie Wai Ren No 22.

[3] Singaporean case, Giant Light Metal Technology (Kunshan) Co Ltd v Aksa Far East Pte ltd [2014] 2 SLR 545; Chinese case, Kolmar Group AG v. Jiangsu Textile Industry Import and Export Corporation, (2016) Su 01 Xie Wai Ren No 3.

From November 15 to 17, the members of the Working Group on International Property Law held a first meeting in Würzburg. Everyone was warmly welcomed by the chair of the working group, Eva-Maria Kieninger. The group assembled in a hybrid way, so that members who could not join in person, had the opportunity to participate online. This very first meeting already led to fruitful discussions and successful results.

The three-day meeting was kicked off by all members presenting the rules on international property law of their own country, as well as other countries. Statutory provisions and case law were discussed. The national reports covered the jurisdictions of Belgium, France, England, Germany, Hungary, Luxembourg, the Netherlands, the Nordic countries (Denmark, Finland, Iceland, Norway, and Sweden), Poland, Portugal, and Scotland.

The members spent the rest of their time in Würzburg discussing several specific topics, relevant for the project. They debated inter alia on the specific nature of cultural goods, the ambit of party autonomy in the context of immovable security rights, the influence of the free movement rules on international property law, several possibilities to solve the conflit mobile problem for movables, and whether Article 345 TFEU can form an obstacle for a future Regulation on international property law.

More details on the Working Group can be found here.

Written by Greta Siegert, doctoral candidate at the University of Freiburg.

In a recent decision of 29 September 2021 – case XII ZB 309/21, the German Federal Court of Justice (BGH) once again confirmed the validity of proxy marriages concluded abroad under the condition that they met the formal requirements of the applicable foreign law.

The parties, a German woman and a male citizen of Syria, had concluded a proxy marriage in Baja California Sur (Mexico). At the time of the marriage, neither of them was present in Mexico nor had ever met their respective representatives. The declarations of proxy had been prepared by a German notary both in English and Spanish. When the couple applied for a marriage name declaration in Germany, the responsible registry office denied such an entry, invoking the marriage’s formal invalidity.

Reviewing this case, the German Federal Court ruled that there were no doubts regarding the marriage’s formal validity, hence holding it valid in absence of other issues of concern.

The judges followed the line of argument brought forward by the higher regional court of Jena (Oberlandesgericht Jena), stating that the formal aspects of the marriage in question were ruled by Art. 11(1) of the Introductory Act to the Civil Code (EGBGB). Art. 11(1) EGBGB provides that a legal transaction is formally valid if it either complies with the formal requirements of the law governing the legal relationship forming the subject matter of the legal act (so-called lex actus) or with the legal formalities of the state where the transaction takes place (so-called lex loci).

The German Federal Court confirmed that, in this case, the proxy was merely a question of the marriage’s formal validity: since the parties had already – prior to the creation of their declaration of proxy – made their decision about the marriage and their respective spouse, the proxy solely served as a matter of representation in making the declarations of intention.

However, the judges acknowledged that, in other cases, proxies may also affect the substantive aspects of a marriage. This would be the case if the representation affected the substance of the partners’ decision, i.e. if the future spouses had not decided about the marriage or their spouse themselves but had instead transferred the decision to their respective agent.

Since Mexican law – as the relevant lex loci – allows proxy marriages, the German Federal Court concluded that the marriage in question was formally valid. The court added that this result was compatible with German public policy (Art. 6 EGBGB). When drafting Art. 11(1) EGBGB more than 30 years ago, the German legislature recognized and accepted the possibility of marriages concluded abroad according to the rules of the respective lex loci. Though there were repeated calls for a revision of this legislation afterwards, especially regarding proxies in the context of forced marriages, the legislature held on to the lex loci principle. Against this backdrop, the German Federal Court found no evidence that the marriage in dispute violated fundamental principles of the German legal system.

As far as PIL is concerned, December 2021  at the CJEU starts with AG M. Campos Sánchez-Bordona’s opinion on C-645/20, VA and ZA, scheduled Thursday the 2nd. The request for a preliminary reference, from the French Cour de Cassation, focuses on the ex officio application of Article 10 of Regulation 650/2012:

“Must Article 10(1)(a) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession be interpreted as meaning that, where the habitual residence of the deceased at the time of death is not located in a Member State, the court of a Member State in which the deceased had not established his habitual residence but which finds that the deceased had the nationality of that State and held assets in it must, of its own motion, examine whether it has subsidiary jurisdiction under that article?”

The appointed judges are  E. Regan, I. Jarukaitis, M. Ilešič, D. Gratsias, and Z. Csehi, with M. Ilešič acting as reporting judge.

An opinion on Regulation (CE) n° 261/2004 is expected one week later, this time by AG A. Rantos. The question in C-561/20, United Airlines, was referred by the Nederlandstalige Ondernemingsrechtbank Brussel (Belgium). In the case at hand, the applicant (on the merits) disputes the applicability of Regulation No 261/2004 in the event of a long delay to a flight departing from, and arriving in the territory of the United States of America, even where that flight is the last flight of two directly connecting flights, the first of which departs from an airport in the territory of a Member State. The questions read as follows:

“Should Article 3(1)(a) and Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, as interpreted by the Court of Justice, be interpreted as meaning that passengers are entitled to financial compensation from a non-Community air carrier when they arrive at their final destination with a delay of more than three hours as a result of a delay of the last flight, the place of departure and the place of arrival of which are both situated in the territory of a third country, without a stopover in the territory of a Member State, in a series of connecting flights commencing at an airport situated in the territory of a Member State, all of which have been physically operated by that non-Community air carrier and all of which have been reserved in a single booking by the passengers with a Community air carrier which has not physically operated any of those flights?

If the first question is answered in the affirmative, does Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, as interpreted in the first question, infringe international law and, in particular, the principle of the exclusive and complete sovereignty of a State over its territory and airspace, in making EU law applicable to a situation taking place within the territory of a third country?”

The deciding chamber is integrated by judges C. Lycourgos, S. Rodin, J.C. Bonichot, L.S. Rossi, and O. Spineanu-Matei. S. Rodin will act as reporting judge.

On the same day, a chamber of three judges, namely Jääskinen, Safjan (reporting), and Gavalec, will deliver its judgement on C-708/20, BT, a set of questions from the County Court at Birkenhead on Article 13 (3), of the Brussels Ibis Regulation. The referral was made on December 30, 2020.

1. Is it a requirement of Article 13(3) of the Regulation (EC) No. 1215/2012 that the cause of action on which the injured party relies in asserting a claim against the policy holder/insured involves a matter relating to insurance?
2. If the answer to (a) is “yes”, is the fact that the claim which the injured party seeks to bring against the policy holder/insured arises out of the same facts as, and is being brought in the same action as the direct claim brought against the insurer sufficient to justify a conclusion that the injured party’s claim  is a matter relating to insurance even though  the cause of action between the injured party and the policy holder/insured is unrelated to insurance?
3. Further and alternatively, if the answer to (a) is “yes”, is the fact that there is a dispute between the insurer and injured party concerning the validity or effect  of the insurance policy sufficient to justify a conclusion that the injured party’s claim is a matter relating to insurance?
4. If the answer to (a) is “no”, is it sufficient that the joining of the policy holder/insured to the direct action against the insurer is permitted by the law governing the direct action against the insurer?

No opinion precedes this judgement in spite of the novelty of the questions.

The decision on C-242/20, HRVATSKE ŠUME will be delivered as well on December 9, 2021. The request was referred by the Visoki trgovački sud Republike Hrvatske (cour d’appel de commerce, Croatie). The questions, still on the Brussels I Regulation, were asked in the context of a dispute between a company incorporated under Croatian law, and a company established in Hamburg (Germany), over a sum of money seized on the bank account of the first company and transferred to the assets of the second as part of an enforcement procedure. As this procedure was subsequently invalidated, the applicant in the main proceedings seeks restitution of the sum in question on the basis of unjust enrichment:

1. Do actions for recovery of sums unduly paid by way of unjust enrichment fall within the basic jurisdiction established in Council Regulation (EC) No 44/2001 … in respect of ‘quasi-delicts’, since Article 5(3) thereof provides inter alia:: ‘A person domiciled in a Member State may, in another Member State, be sued … in matters relating to … quasi-delict, in the courts for the place where the harmful event occurred or may occur’?
2. Since there is a time limit on seeking recovery of sums unduly paid in the same judicial enforcement proceedings, do civil proceedings which have been initiated fall within exclusive jurisdiction under Article 22(5) of Council Regulation (EC) No 44/2001 … which provides that in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced is to have exclusive jurisdiction, regardless of domicile?

On September 8, 2021 Advocate general Saugmandsgaard Øe proposed to answer that Article 5 (1) and Article 5 (3) of the Regulation No 44/2001 must be interpreted as meaning that a claim for restitution based on unjust enrichment:

– does not fall within the “contractual matter”, within the meaning of the first provision, except when it is closely linked to a previous contractual relationship existing, or supposed to exist, between the parties to the dispute, and

– does not fall within the “tort or quasi-tort”, within the meaning of the second provision.

(NoA: the English translation of the opinion is not yet available).

The judges in charge are K. Jürimäe (reporting), S. Rodin and N. Piçarra

Next relevant date for the purposes of this blog will be Thursday 16th, with the publication of AG P. Pikamäe’s opinion on C-568/20, H Limited. The question was sent to the Court by the Oberster Gerichtshof (Austria), on a dispute related to the enforcement of an order based on a decision of the High Court of Justice, Business and Property Courts of England & Wales, Commercial Court (QBD):

1. Are the provisions of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Regulation No 1215/2012’), in particular Article 2(a) and Article 39, to be interpreted as meaning that a judgment that is to be enforced exists even if, in a Member State, the judgment debtor is obliged, after summary examination in adversarial proceedings, albeit relating only to the binding nature of the force of res judicata of a judgment given against him in a third State, to pay to the party who was successful in the third State proceedings the debt that was judicially recognised in the third State, when the subject matter of the proceedings in the Member State was limited to examination of the existence of a claim derived from the judicially recognised debt against the judgment debtor?
2. If question 1 is answered in the negative: Are the provisions of Regulation No 1215/2012, in particular Articles 1, 2(a), 39, 45, 46 and 52, to be interpreted as meaning that, irrespective of the existence of one of the grounds set out in Article 45 of Regulation No 1215/2012, enforcement must be refused if the judgment under review is not a judgment within the meaning of Article 2(a) or Article 39 of Regulation No 1215/2012 or the application in the Member State of origin on which the judgment is based does not fall within the scope of Regulation No 1215/2012?

3. If the first question is answered in the negative and the second question in the affirmative: Are the provisions of Regulation No 1215/2012, in particular Articles 1, 2(a), 39, 42(1)(b), 46 and 53, to be interpreted as meaning that, in proceedings concerning an application for refusal of enforcement, the court of the Member State addressed is compelled to assume, on the basis solely of the information provided by the court of origin in the certificate issued pursuant to Article 53 of Regulation No 1215/2012, that a judgment that falls within the scope of the regulation and is to be enforced exists?

The deciding chamber will be one of five judges: K. Jürimäe, N. Jääskinen, N. Piçarra, M: Gavalec, and M. Safjan in the role of reporting judge.

Just for the record: the decision on C-490/20, Stolichna obshtina, rayon „Pancharevo“, is expected on December 14th. AG J. Kokott’s opinion was published last April (for a summary click here).

Conventions & Instruments

On 17 November 2021, the Russian Federation signed the HCCH 2019 Judgments Convention. Although the 2019 Judgments Convention is not yet in force, the Russian Federation is its fifth signatory. The Russian Federation has been a Member of the HCCH since 2001 and is a Contracting Party to six HCCH Conventions. More information is available here.

Meetings & Events

On 5 November 2021, the HCCH hosted a virtual seminar on the HCCH 1980 Child Abduction Convention and the HCCH 1996 Child Protection Convention for the Supreme Court of Ukraine. This was the second of a series of seminars, organised through the generous support of the EU Project Pravo-Justice, aimed at facilitating the proper and effective implementation of the HCCH Conventions and instruments in Ukraine. More information is available here.

On 8 November 2021, the HCCH Working Group on Preventing and Addressing Illicit Practices in Intercountry Adoption met via videoconference. The Group continued to work on the development of a Toolkit aimed at preventing and addressing illicit practices in intercountry adoptions made under the HCCH 1993 Adoption Convention. More information is available here.

From 15 to 19 November 2021, the HCCH Experts’ Group on Parentage / Surrogacy met via videoconference. The Group discussed the form, structure and focus of the final report that is to be presented to the Council on General Affairs and Policy of the HCCH at its 2023 meeting. More information is available here.

From 22 to 25 November 2021, the HCCH participated in the 24th International Congress of the International Union of Judicial Officers. Dr Christophe Bernasconi, Secretary General, participated in the panel discussion “Cyber Justice: New Opportunities for the Judicial Officer” and in the roundtable discussion “Cyber Justice – The future of our profession – Evolution or Revolution?”, while Dr Ning Zhao delivered a presentation on the HCCH 2019 Judgments Convention. Dr Zhao’s accompanying article “The HCCH 2019 Judgments Convention – adding essential components for an effective international legal framework on recognition and enforcement” will be published in the proceedings of the Congress. More information is available here.

Upcoming Events

HCCH a|Bridged Edition 2021 will be held online on Wednesday, 1 December 2021. This year’s edition will discuss contemporary issues relating to the application of the?HCCH 2005 Choice of Court Convention,?including the establishment of?international commercial courts around the globe and how it enables party autonomy. 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.

London Steam-Ship Owners’ Mutual Insurance Association Limited v Kingdom of Spain & Anor (M/T ‘Prestige’ Nos. 3 and 4) [2021] EWCA Civ 1589 is yet another judgment in the Prestige series on which I have reported before (use of the search tag ‘Prestige’ brings you to 4 earlier posts). I often refer to the comparative advantage of civil procedure in England and Wales, inter alia relating to the speed of procedures. Current litigation most certainly does not fit that bill: it is slow, opaque and dense with issues, arguments have been allowed to run in a convoluted way, and a certain amount of consolidation would have been in order, I submit.

The judgment in this post is the appeal against the judgment of Henshaw J on arbitration and State immunity, and the judgment of Butcher J on service, state immunity and the insurance title of Brussels Ia.

In summary, Henshaw J’s judgment stands (he had held Spain does not have immunity in respect of these proceedings; that the permission to serve the arbitration obligation our of jurisdiction, granted earlier to the Club should stand; and that the court should appoint an arbitrator);  Butcher J’s judgment also largely stands, but for his decision on the ‘Award Claims’ (the Club seeking liability and damages for breach of the State’s obligation to honour the arbitration award which had declared the State bound to pursue its claims in London arbitration). The Court of Appeal held, as did Butcher J, that the arbitration exception applies to the Award Claims (an unlikely analogy featured with CJEU Assens Havn) and that jurisdiction for them must be determined in accordance with domestic law principles [84], however unlike the first instance judge it found [126] there is no serious issue to be tried on the award claims.

Geert.

EU Private international law, 3rd ed. 2021, 2.84 ff.

London Steam-Ship Owners' MIA v Spain [2021] EWCA Civ 1589 (4/11/2021)
Various appeals, partially allowed, re the Prestige oilspill. State immunity, #arbitration etc. Background here https://t.co/LgOFOXsRmo
Six complex findings, see below. More next weekhttps://t.co/ItT0tFTO3U pic.twitter.com/LrxhXIRPLy

— Geert Van Calster (@GAVClaw) November 5, 2021

The author of this post is Burcu Yüksel Ripley, who is a Senior Lecturer in law and the Director of the Centre for Commercial Law at the University of Aberdeen.

On 25 November 2021, the Law Commission of England and Wales announced, as part of an update on its work on smart contracts, that it has agreed with the Government to undertake a project on conflict of laws and emerging technology. This project will look at conflict of laws rules as they apply to emerging technology (including smart legal contracts and digital assets) and consider whether law reform is required. The Commission hopes to be able to begin work in the first half of 2022.

Conflict of laws and emerging technology was among the ideas for potential areas of law reform within the scope the Law Commission’s 14th programme of law reform. In the area of commercial and common law with a focus on emerging technology, the Commission has been working on three projects on smart contracts, digital assets and electronic trade documents which are, to some extent, interconnected. Its work on these projects has identified certain difficulties with the application of conflict of laws rules (covering both jurisdiction and applicable law rules in this context) in relation to emerging technology, including distributed ledger technology (DLT):

• In the context of its work on smart contacts, which the Commission concluded with a confirmation that the existing law of England and Wales is able to accommodate and support smart legal contacts, it devoted Chapter 7 of its advice to Government on smart legal contacts (published on 25 November 2021) to ‘Jurisdiction and smart legal contracts’. The Commission considered various issues concerning jurisdiction and applicable law in relation to smart contacts and assessed that “the problem of digital location – that is, the difficulty of ascribing real-world locations to digital actions and digital objects – is amongst the most significant challenges that private international law will have to overcome in relation to emerging technology, including smart legal contracts.” (see paragraph 7.145 of the advice).
• In the context of its work on digital assets, which seeks to support and facilitate the development of digital assets and ensure that the law recognises and protects them in a digitised world, conflict of laws is mentioned in the call for evidence (published on 30 April 2021) as an area which is likely to be affected by the issues covered by the call for evidence. The Commission therefore sought to hear more details from respondents on conflict of laws issues relating to digital assets (see para 2.80 of the call for evidence on digital assets). The digital assets project is currently at the pre-consultation stage, with the expectation that the consultation paper will be published in mid-2022. An interim update paper on this project is available here.
• In the context of its work on electronic trade documents, which seeks to make recommendations for law reform to allow for legal recognition of electronic trade documents (eg bills of lading and bills of exchange), some conflict of laws issues relating to electronic trade documents were highlighted in the consultation paper (published on 30 April 2021, see in particular pp.124-127 of the consultation paper on digital assets: electronic trade documents). There were two main questions specifically mentioned in the consultation paper: 1) “Where is an electronic trade document located at any given time (and related questions such as where does a transfer take place)?” and 2) “How will an electronic trade document issued in England and Wales be treated in a country that does not recognise the validity of electronic trade documents?”. The Commission, in this consultation paper, provisionally proposed to consider the private international law aspects of digital assets, including electronic trade documents, as part of a separate project that could be taken as part of its 14th programme of law reform. The electronic trade documents project is currently at the policy development stage.

The Commission’s new project on conflict of laws and emerging technology is a very timely project. The Law Commission of England and Wales can only make recommendations for the law of England and Wales. However, some of its recommendations might have a UK-wide impact. This project should also be seen as an opportunity to help facilitate the development of internationally widely accepted private international law rules in relation to emerging technology given the current work of the Hague Conference on Private International Law concerning private international implications of the digital economy, including DLT and its applications (including digital assets).

This post is by Alberto Pomari, LLM Student at the University of Pittsburgh School of Law and JD Student at the University of Verona School of Law.

On November 25, 2021, the Italian Parliament passed the long-awaited Enabling Act for “the efficiency of the civil trial” as one of the conditions attached to the Next Generation EU funding. Among its provisions, this law amends part of the Italian arbitration law with a view toward making arbitration in the country more appealing to individuals and foreign investors. Worthy of particular attention are the amendments regarding (1) the independence and impartiality of arbitrators, and (2) the arbitral tribunal’s power to grant interim relief.

Up until now, the Italian Code of Civil Procedure (CPC) has not compelled arbitrators to disclose any fact or circumstance that would reasonably call into question their impartiality and independence. This is not to say, though, that Italian law neglects impartiality and independence on the part of arbitrators. To the contrary, Article 815 CPC enumerates several situations where arbitrators can be challenged for specific circumstances that are likely to give rise to justifiable doubts about their unbiased judgment. However, the Enabling Act aims at shoring up this reactive guarantee by introducing a proactive duty of disclosure, which directly burdens the arbitrators appointed. Specifically, Article 15(a) of the Act calls for an express mandate for arbitrators to disclose, upon acceptance of their appointment, any situation that may give grounds for a challenge under Article 815 CPC. Along those lines, Article 15(a) also introduces broad grounds to challenge an arbitrator for any “severe reason of suitability.” Through these amendments, the Government commits to enhance the guarantee of fairness of the parties’ fact- and law-finder at the very outset of proceedings, thus avoiding the costs associated with a challenge.

Arguably, the Enabling Act’s most important innovation is contained in Article 15(c) and relates to the arbitrators’ power to grant interim relief. To date, with the only exception of corporate law disputes, no arbitral tribunal whose seat is in Italy is vested with the power to provide provisional relief. Article 818 CPC leaves no room for doubt by proscribing any provisional remedies rendered by an arbitral tribunal. The magnitude of this provision is reflected, for instance, by Article 26 of the Milan Chamber of Arbitration’s (CAM) Rules, which point out that the arbitral tribunal may issue interim measures unless “barred by mandatory provisions applicable to the proceedings.” Article 15(c) enables the Government to empower arbitrators to grant interim relief as long as parties manifest the intent of achieving this end. Therefore, arbitrators will have the power to issue conservatory measures, subject to the Italian lex arbitri, if the arbitration agreement expressly provides so as well as references institutional rules that contemplate such a power (like the above-mentioned CAM’s Rules). Understandably, Article 15(c) specifies that a national court issues the interim measures if a party seeks them before the arbitral tribunal has been fully appointed. Of course, the enforceability of said interim relief remains a prerogative of national courts. Lastly, Article 15(c) directs the Government to create a new appeal as of right whereby a party may challenge the arbitral tribunal’s decision regarding the requested interim relief before a national judge. However, said appeal can be brought exclusively for errors of law enumerated in Article 829(1) CPC, which currently warrants an appeal designed to void the final award. It follows that a national judge will not be allowed to hear the appeal if the party avers errors of fact.

While awaiting the implementing regulations issued by the Government, these changes represent a desirable modernization of the Italian arbitration law and should therefore be hailed. However, while they bring Italy up to the speed of countries that are legally more appealing to foreign investors, it remains to be seen whether they will be sufficient to effectively attract foreign investors or prove to be too late or too timid.

“Japanese Private International Law” certainly contains the currently leading reference to Japanese private international law in English.

The blurb reads: “The chapters systematically cover the whole of Japanese private international law, not just questions likely to arise in commercial matters, but also in family, succession, cross-border insolvency, intellectual property, competition (antitrust), and environmental disputes. The chapters do not merely cover the traditional conflict of law areas of jurisdiction, applicable law (choice of law), and enforcement. The chapters also look into conflict of law questions arising in arbitration and assess Japanese involvement in the global harmonisation of private international law. In addition to summarising relevant principles and scholarly views, the authors discuss case law whenever possible and identify deficiencies and anticipate difficulties in the existing law. The book thus presents the Japanese conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of the subject.”

For those who are particularly interested in unified or harmonized global PIL Chapter 6, still rather short (pp. 258 – 262), is recommended, dealing with Japan’s role in the works of the HCCH, UNICTRAL and UNIDROIT. For all others who are interested in comparative private international law, this book is an indispensable tool  and combines most valuable information with most thorough analysis. The text is precisely structured which helps a lot to find one’s way directly to the issue in question. It also covers international alternative dispute resolution, in particular arbitration and mediation. The book is an admirable cooperative effort between Dr Kazuaki Nishioka (full text draft) and Professor Yuko Nishitani (comments and revision), as is explained in the foreword.

Likewise, “Indian Private International Law” certainly contains the currently leading reference to Indian private international law in English.

The blurb reads: “This book provides an authoritative account of the evolution and application of private international law principles in India in civil commercial and family matters. Through a structured evaluation of the legislative and judicial decisions, the authors examine the private international law in the Republic and whether it conforms to international standards and best practices as adopted in major jurisdictions such as the European Union, the United Kingdom, the United States, India’s BRICS partners – Brazil, Russia, China and South Africa and other common law systems such as Australia, Canada, New Zealand, and Nepal.

Divided into 13 chapters, the book provides a contextualised understanding of legal transformation on key aspects of the Indian conflict-of-law rules on jurisdiction, applicable law and the recognition and enforcement of foreign judgments or arbitral awards. Particularly fascinating in this regard is the discussion and focus on both traditional and contemporary areas of private international law, including marriage, divorce, contractual concerns, the fourth industrial revolution, product liability, e-commerce, intellectual property, child custody, surrogacy and the complicated interface of ‘Sharia’ in the conflict-of-law framework.

The book deliberates the nuanced perspective of endorsing the Hague Conference on Private International Law instruments favouring enhanced uniformity and predictability in matters of choice of court, applicable law and the recognition and enforcement of foreign judgments.

The book’s international and comparative focus makes it eminently resourceful for legislators, the judges of Indian courts and other interested parties such as lawyers and litigants when they are confronted with cross-border disputes that involve an examination of India’s private international law. The book also provides a comprehensive understanding of Indian private international law, which will be useful for academics and researchers looking for an in-depth discussion on the subject.” Saloni Khanderia is of course known to CoL readers as one of the blog’s editors.

“Japanese Private International Law” (Volume 5) and “Indian Private International Law” (Volume 6) continue Hart’s Series on Studies in Private International Law – Asia, run by Anselmo Reyes (editor) and Paul Beaumont (advisory editor), after equally eminent publications (Volumes 1 to 4) on the recognition and enforcement of judgments in Civil and Commercial Matters, edited by Anselmo Reyes, Indonesian Private International Law by Afifah Kusumadara, Chinese Private International Law, edited by Xiaohong Liu and Zhengyi Zhang, and, last not least, Direct Jurisdiction: Asian Perspectives, edited by Anselmo Reyes and Wilson Lui.

All highly recommended!

Written by Marie-Luisa Loheide, doctoral candidate at the University of Freiburg.

From a PIL-perspective, granting asylum to the family members of a recognised asylum-seeker or refugee is relevant regarding the determination of an individual’s personal status and, more specifically, concerning the question of the relation between the individual’s political status (status politicus) and his or her personal status (status privatus). Whereas the personal status of an individual is ususally determined according to her or his own protection status, it is disputed with regard to personae coniunctae – meaning relatives of a protected person who do not (yet) possess a protection status of their own –, whether their personal status may be derived from the status of the already protected family member or whether it has to be determined by the person’s individual status. This is decisive as to the applicability of Art. 12(1) of the Convention relating to the Status of Refugees signed in Geneva on 28th July 1951 (Geneva Convention), according to which all conflict rules leading to the law of the persecuting state are modified by substituting habitual residence for nationality.

In Germany, § 26 of the Asylum Act (Asylgesetz) – with only few exemptions made in its para. 4 – grants family asylum to people who themselves do not satisfy the conditions for receiving asylum (Art. 16a of the German Basic Law), but whose spouse or parent has been granted this status. According to § 26(5) Asylgesetz, this also comprises international protection within the meaning of the refugee status as defined by the Geneva Convention as well as the EU-specific subsidiary protection status (§ 4 Asylgesetz, implementing Art. 15 et seq of the EU-Directive No. 2004/83). The close relative’s protection is thus a derived right from the family member’s political status. However, by this – even though the opposite might be implied by the misleading terminology of “derived” – the spouse or child of the protected person acquire a protection status of their own. § 26 Asylgesetz is meant to support the unity of the family and aims to simplify the asylum process by liberating family members from the burdensome task of proving that they individually satisfy the conditions (e.g. individual religious or political persecution) for benefitting from international protection or asylum.

While the exemptions made in § 26(4), (5) and § 4(2) Asylgesetz correspond to Art. 1D of the Geneva Convention as well as to Art. 12(2) of the EU-Directive No. 2011/95 (Qualification Directive), the non-exemption of people with multiple nationalities, who could also be granted protection in one of the states of which they are nationals, goes further than the Geneva Convention and the Qualification Directive (see Art. 1A(no. 2) of the Geneva Convention and Art. 4(3)(e) of the Qualification Directive).

This discrepancy was the subject of a preliminary question asked by the German Federal Administrative Court (Bundesverwaltungsgericht) and was decided upon by the CJEU on 9th November 2021 (Case C-91/20). The underlying question was whether the more favourable rule of § 26 Asylgesetz is compatible with EU law.

The CJEU in general affirmed this question. For doctrinal justification, it referred to Art. 3 of the Qualification Directive, which allows more favourable rules for granting international protection as long as they do “not undermine the general scheme or objectives of that directive” (at [40]). According to the CJEU, Art. 23(2) of the Qualification Directive leads to the conclusion that the line is to be drawn where the family member is “through his or her nationality or any other element characterising his or her personal legal status, entitled to better treatment in […] [the host] Member State than that resulting from the grant of refugee status” (at [54]). For example, this could be the case if the close relative is a national of their spouse’s or parent’s host country or one of their nationalities entitles them to a better treatment there (like a Union citizenship). This interpretation also corresponds to the UNHCR’s guidelines in respect to the Geneva Convention (see [56] et seq.).

The CJEU’s judgment strengthens the right to family life guaranteed by human rights, namely Art. 8 ECHR as well as Art. 7 and Art. 24 of the Charter of Fundamental Rights of the EU (see [55]). Disrupting a family unit can have a negative impact on the individual integration process (see Corneloup et al., study PE 583.157, p. 11), which should be neither in the interest of the individual nor the host state. This right to family unity, according to the CJEU, exists irrespective of the fact that the concerned families could alternatively take residence in one of the family member’s home states, because otherwise the person who had already been granted a protection status in a different country could not make use of his or her own protection (see [59] et seq.). In so far, the judgment is to be welcomed. On the other hand, opening the doors to more favourable domestic laws on a derivative protection of family members will lead to more situations where the law applicable to a family relationship between a person applying for family asylum and the person who had already been granted international protection must be determined under prior consideration of domestic PIL rules. However, PIL rules in this regard are frequently inconsistent among the EU Member States.

In practice, the CJEU’s judgment discussed here is particularly relevant in the overall picture that is characterised by the CJEU’s recent judgment of 19th November 2020 (C-238/19), according to which – contrary to the previous German Federal Administrative Court’s practice – the refugee status according to the Geneva Convention may be granted to individuals who are eligible to be drafted for military service in Syria, which potentially means all Syrian men of a certain age. However, the precise implementation of this judgment in current German judicial and administrative practice remains controversial (see here). In cases where Syrian men actually are granted a protective status, their spouses and children are entitled to receive family asylum as well. In Germany, this is the case even if they possess multiple nationalities, but, according to the CJEU judgment discussed here, only as long as they are not entitled to a better treatment in the host Member State through a different legal status in this country, e.g. nationality or Union citizenship. As a matter of fact, there will be most probably very few people among those seeking protection in a Member State who have a Union citizenship, so that the CJEU’s restriction to the scope of § 26 Asylgesetz will only be practically relevant in very few cases.