Droit international général

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

T. Maxian Rusche: Available actions in the German courts against the abuse of intra-EU investor-State arbitration proceedings

The Court of Justice of the European Union ruled in Achmea that intra-EU investment arbitration violates fundamental rules of EU law. However, arbitration tribunals have revolted against that judgment, and consider in constant manner that they remain competent to decide cases brought by EU investors against EU Member States. German law offers an interesting option for States to defend themselves against new intra-EU investment arbitration cases. Based on § 1032 paragraph 2 Civil Procedure Code, the German judge can decide on the validity of the arbitration agreement if a case is brought prior to the constitution of the arbitration tribunal. Recently, Croatia has successfully used that possibility in an UNCITRAL arbitration initiated by an Austrian investor on the basis of the Croatia-Austria BIT. The Netherlands have recently brought two cases in ICSID arbitrations based on the Energy Charter Treaty. If the investor refuses to comply with a finding that there is no valid arbitration agreement, Member States can seek an anti-arbitration injunction.

F.M. Wilke: German Conflict of Laws Rules for Electronic Securities

In June 2021, Germany introduced the option of electronic securities, doing away with the traditional principle that securities must be incorporated in a piece of paper. The blockchain-ready Electronic Securities Act (Gesetz über elektronische Wertpapiere: eWpG) comes with its own conflict of laws provision. This paper addresses the subject matter, connecting factors, and questions of the applicable law of said rule. One main challenge consists in reconciling the new rule with an existing (much-discussed, yet still quite opaque) conflict of laws provision in the Securities Account Act. While the connecting factor of state supervision of an electronic securities register may appear relatively straightforward, it is shown that it can actually lead to gaps or an accumulation of applicable laws. While the Electronic Securities Act contains a solution for the former issue, the latter proves more complicated. Finally, it is not obvious whether the new rule allows a renvoi. The author tentatively suggests a positive answer in this regard.

M. Pika: The Choice of Law for Arbitration Agreements

Ever since 2009, when the German choice-of-law provisions for contracts were removed and the Rome I Regulation with its carve-out for arbitration agreements entered into force, the choice of law for arbitration agreements has been debated in Germany. On 26 November 2020, the German Federal Court of Justice addressed this matter, albeit inconclusively. The court held that the enforcement provision Article V (1) lit. a New York Convention applies already before or during arbitral proceedings. Pursuant to this provision, the arbitration agreement is governed by the law chosen by the parties and, subsidiarily, the law of the seat. This leads to an internationally well-known follow-up problem: whether the parties, when choosing the law applicable to the main contract, have impliedly chosen the law applicable to the arbitration agreement. This matter was left open by the Federal Court of Justice.

F. Rieländer: Joinder of proceedings and international jurisdiction over consumer contracts: A complex interplay between the Brussels Regime and domestic law of civil procedure

Whether the “international nature” of a contractual relationship between two parties to a dispute established in the same Member State might possibly stem from a separate contract between the claimant and a foreign party, for the purposes of determining jurisdiction according to the Brussels Ibis Regulation, continues to be a contentious issue ever since the ECJ ruling on the Maletic case (C-478/12). Particularly illuminating are two recent decisions given by the Bayerisches Oberstes Landesgericht. Whilst the Court, understandably enough, did not wish to deviate from the case law of the ECJ, it probably unnecessarily extended the purview of the dubious Maletic judgment in Case 1 AR 31/20. With regard to division of labour on part of the defendants there is no need for an overly expansive interpretation of the term “other contracting party” within the meaning of Article 18(1) Brussels Ibis Regulation because the “international element” of a contractual relationship between a consumer and a trader established in the Member State of the consumer’s domicile simply derives from the subject-matter of the proceedings where the contractual obligation of the trader is to be performed in another State. Taken in conjunction with its decision in Case 1 AR 56/20, the Court seemingly favours a subject-matter-related test of “international character”, while the Court at the same time, in Case 1 AR 31/20, respectfully adopts the authoritative interpretation of the ECJ in Maletic. Simply for the sake of clarity, it should be mentioned that even if the legal relationship between a consumer and one of the defendants, considered alone, bears no international character, a subsequent joinder of proceedings at the legal venue of the consumer’s place of residence is nonetheless possible pursuant to § 36(1) No 3 ZPO (German Code of Civil Procedure) if jurisdiction is established in relation to at least one of the defendants according to Article 18(1) Brussels Ibis Regulation and the general place of jurisdiction of all other defendants is situated in the Federal Republic of Germany

M. Andrae: For the application of Art. 13 (3) No. 2 EGBGB, taking into account the spirit and purpose of the law against child marriage

Art. 13 (3) No. 2 EGBGB (Introductory Law to the Civil Code) stipulates that a marriage can be annulled under German law if the person engaged to be married was 16 but not 18 years of age at the time of the marriage. The legal norm relates to a marriage where foreign law governs the ability to marry and where the marriage has been effectively concluded under this law. The rule has rightly been heavily criticized in the scientific literature. As long as the legal norm is applicable law, it should be interpreted in a restrictive manner, as far as the wording and the purpose of the law against child marriage allow. The article focuses on the intertemporal problem. In addition, it is discussed whether the legal norm is to be applied universally or only if there is a sufficient domestic reference. The article follows the restrictive interpretation of the BGH of Section 1314 (1) No. 1 BGB, insofar as it concerns marriages that are covered by Art. 13 (3) No. 2 EGBGB. According to this, the court can reject the annulment of the marriage in individual cases, if all aspects of the protection of minors speak against it.

D. Looschelders: Cross-border enforcement of agreements on the Islamic dower (mahr) and recognition of family court rulings in German-Iranian legal relations

The cross-border enforcement of agreements on the Islamic dower (mahr) can present significant difficulties in German-Iranian legal relations. These difficulties are compounded by the fact that mutual recognition of family court rulings is not readily guaranteed. Against this background, the decision of the Higher Regional Court of Celle deals with the recognition of an Iranian family court ruling concerning a claim for recovery of the Islamic dower. The Higher Regional Court of Hamburg on the other hand discusses in its decision whether a husband can sue his wife for participation in a divorce under Iranian religious law as contained in their divorce settlement agreement on the occasion of a divorce by a German court. The recognition of a judicial divorce is not per se excluded in Iran; however, the husband required his wife’s participation due to Iranian religious laws in order for her waiver on the Islamic dower to gain legal effectiveness under Iranian law. The court rejected the claim as it drew upon the state divorce monopoly contained in Art. 17 (3) EGBGB (Introductory Act to the German Civil Code) and § 1564 BGB (German Civil Code). Consequently, despite the waiver declared in Germany, the respondent is free to assert her claim for recovery of the Islamic dower in Iran.

M. Andrae: HMP: Maintenance Obligations between ex-spouses if the parties lived together as an unmarried couple for a long time before the marriage

The main focus is on the relationship between Art. 3 (general rule on applicable law) and Art. 5. (special rule with respect to spouses and ex-spouses) of the 2007 Hague Maintenance Protocol. The following legal issues are discussed: Are maintenance obligations arising out of unmarried relationships included within scope of the HMP? Is Art. 5 HMP to be interpreted as an exception in relation to Art. 3 HMP? How is the phrase “closer connection with the marriage” in the Art. 5 HMP to be interpreted? Should a period of time in an unmarried relationship before a marriage be taken into account in relation to Art. 5 HUP? What is the significance of the last common habitual residence during the marriage with regard to the escape clause if the parties previously lived in different countries for professional reasons?

C. von Bary: Recognition of a Foreign Adoption of an Adult

In its decision on the recognition of a foreign adoption of an adult, the German Federal Court of Justice addresses questions concerning procedure and public policy. The special provisions for proceedings in adoption matters do not apply in recognition proceedings, which has consequences for the remedies available. Considering the effect on the ground for refusal of recognition due to a lack of participation (§ 109(1) No. 2 FamFG), courts only have to hear the other children of the adopting person rather than them being a party to the proceedings. The Court also sets strict criteria for a violation of public policy in the case of a foreign adoption of an adult. It only amounts to a violation of public policy when the parties deliberately seek to evade the prerequisites under German law by going abroad, which seems to imply that there are no fundamental principles specific to the adoption of an adult.

H. Roth: Enforcement issues due to a decision repealed in the State of origin

The decision of the German Federal Court of Justice was handed down pursuant to intertemporal civil procedure law and also to the Brussels I Regulation, which requires a declaration of enforceability for enforcement in another Member State. The court rightly upheld its settled case-law that a decision subsequently repealed in the State of origin cannot be authorized for enforcement. The ruling of the German Federal Court of Justice has significance for future cases examined on the basis of the new Brussels Ia Regulation, which states that enforcement can occur in another Member State without a declaration of enforceability. If the decision in the State of origin is subsequently repealed, a debtor in the executing State can choose for this fact to be taken into account either in the refusal of enforcement proceedings pursuant to Articles 46 et seq. Brussels Ia Regulation or in the execution itself by the competent executing body pursuant to Section 1116 of the German Code of Civil Procedure (ZPO).

O. Remien: Étroitement liée? – On jurisdiction for a damages action against an arbitrator after setting-aside of the award and artt. 1 (2) (d) and 7 (1) (b) Brussels Ibis-Regulation

In Saad Buzwair Automotive Co, Cour d’appel and Tribunal Judiciaire de Paris were of opposite opinions on the question which courts are competent to decide on a damages action against an arbitrator after setting-aside of the award. In an ICC arbitration with seat in Paris but hearings and domicile of the three arbitrators in Germany, the Qatari claimant had been unsuccessful against the Emirati respondent, but later the award had been set aside by the Cour d’appel de Paris and this setting-aside been confirmed by the Cour de cassation. The Qatari company sued one of the German arbitrators for damages before the Paris courts. The first instance Tribunal Judiciaire found that the arbitration exception of art. 1 (2) (d) Brussels Ibis did not apply to the action for damages based on an alleged breach of the arbitrator’s contract; further, it held that the place of performance under art. 7 (1) (b) Brussels Ibis was in Germany where the arbitrators lived and had acted. The Cour d’appel disagreed, the leitmotiv being that the damages action is closely connected (étroitement liée) to the arbitration. It found that the arbitration exception applied, so that the Brussels Ibis Regulation was inapplicable, and that under the autonomous French place of performance rule the place of performance was in Paris. After recalling the importance of the arbitrator’s contract this note distinguishes the damages action against the arbitrator from the arbitration between the original parties, points out that the courts of the seat of the arbitration are not necessarily competent for damages actions against an arbitrator and stresses the negative consequence of the ruling of the Cour d’appel – an eventual judgment awarding damages would not fall under the Brussels Ibis Regulation and thus not necessarily be enforceable in other Member States! Further, it is unclear whether the arbitration exception would also apply to an action for payment of the arbitrator’s fees. Finally, the situation where an arbitral award is not set-aside, perhaps even cannot be set aside, by the courts of the seat but where its enforcement is denied in another state is taken account of and can in case of a damages action lead to the competence of a court other than that of the seat of the arbitration. As to the place of performance, the two courts apply similar autonomous French respectively EU-rules, but with diverging results: the Cour d’appel stressing again the close connection, the Tribunal Judiciaire applying a more concrete fact-based approach. In sum, there are good arguments in favour of the decision of the Tribunal Judiciaire and a judgment of the ECJ on these questions would be welcome.

The third issue of 2021 of the Dutch journal on private international law (NIPR) is available. A number of papers are dedicated to Brexit and private international law.

Brexit en ipr/brexit and pilSumner, Eerst de echtscheiding, dan de afwikkeling! Brexit en het internationaal privaatrecht / p. 433-453

Abstract

Brexit has changed a lot in the legal landscape. There are few areas of the law that have been unaffected, and international family law is no exception. In this article, attention will be paid to the various areas of international family law that have been affected by the Brexit, drawing attention to the new legal regimes that are applicable with respect to these areas of the law (for example divorce, child protection and maintenance). Each section will further discuss how the new regime differs from the old regime, drawing attention to particular difficulties that may occur in the application of these new rules to the specific situation of the United Kingdom.

Berends, Internationaal insolventierecht tussen het Verenigd Koninkrijk en Nederland na de Brexit / p. 454-470

Abstract

What are the legal consequences in the Netherlands of a British insolvency proceeding since Brexit? In the Netherlands, there is no Act on this matter, and the answers must be found in case law. A foreign representative does not need to apply for recognition. He can exercise his rights unless an interested party prevents him from doing so in a legal procedure, for instance on the ground that the recognition of the insolvency proceeding would be contrary to public policy. A foreign proceeding has the applicable legal consequences according to the law of the State where the insolvency proceeding was opened, with some exceptions. Execution against the debtor’s assets in the Netherlands remains possible.

What are the legal consequences in the United Kingdom of a Dutch insolvency proceeding since Brexit? The United Kingdom has enacted the Model Law of the United Nations Commission on International Trade Law. A foreign representative must apply for recognition. Upon recognition, individual actions concerning the debtor’s assets and execution are stayed, unless such actions and execution are necessary to preserve a claim against the debtor. The consequences of recognition can be modified or terminated if the Court is not satisfied that the interests of interested parties are adequately protected. The so-called Gibbs Rule applies: a party to a contract made and to be performed in England is not discharged from liability under such contract by a discharge in bankruptcy or liquidation under the law of a foreign country in which he is domiciled.

Bens, Brussel na de Brexit: nieuwe regels in burgerlijke en handelszaken? / p. 471-492

Abstract

The UK formally left the EU on 31 January 2020, although the Brussels Ibis Regulation remained applicable in and for the UK until the end of the transition period on 31 December 2020. This article analyses the changes in the framework for international jurisdiction and the recognition and enforcement of decisions in cross-border civil and commercial matters between the Netherlands and the UK after 1 January 2021. After setting the historical context, the transitional provisions provided for the Brussels regime in the Withdrawal Agreement are scrutinised. It is argued that, considering these arrangements and the current EU framework for judicial co-operation in civil and commercial matters, the Brussels Convention and the NL-UK Enforcement Treaty of 1967 are not applicable to proceedings instituted after 1 January 2021. Consequently, the rules governing international jurisdiction and the cross-border recognition and enforcement of judgements applicable to ‘new’ cases and judgements are outlined and salient problems are highlighted. It is argued that most of these rules are not new, but are rather cast in a different perspective through Brexit, thereby raising some ‘old’ problems that require careful (re-)consideration of the post-Brexit legal framework.

Other articles

L.M. van Bochove, De voorzienbaarheid herzien? De fluctuerende invulling van het vereiste dat bevoegdheid ex artikel 7(2) Brussel Ibis redelijkerwijs voorzienbaar is / p. 493-506

Abstract

This article discusses the requirement that the jurisdiction over matters in tort, based on Article 7(2) Brussels Ibis Regulation, is reasonably foreseeable for the defendant. An analysis of CJEU case law shows that the interpretation of what is ‘reasonably foreseeable’ fluctuates. Often, the threshold is set rather low, but in two recent cases the CJEU seems to have adopted a stricter interpretation. In VEB/BP and Mittelbayerischer Verlag, the foreseeability requirement actually precludes the attribution of jurisdiction on the basis of established (sub-)criteria, including the place of damage and the centre of main interest. This article attempts to identify the rationale for the use of different yardsticks of reasonable foreseeability. It offers two possible explanations: the degree of the culpability of the defendant and the desired outcome in terms of jurisdiction, in particular the opportunity to use jurisdiction rules as a means to promote the enforcement of EU law. However, both explanations are problematic, in view of the Regulation’s scheme and objectives. This paper argues in favour of a uniform, rather strict interpretation, which ensures that the defendant can reasonably foresee the jurisdiction of the court and avoids a multitude of competent courts. Current law offers no legal basis to consider the enforcement of (EU) law as a factor to establish a reasonably foreseeable jurisdiction; this would require intervention by the European legislator.

Schmitz, Rechtskeuze in consumentenovereenkomsten: artikel 6 lid 2 Rome I-Verordening en de Nederlandse rechter / p. 507-331

Abstract

Party autonomy has been a widely accepted principle of private international law ever since the Rome Convention. Yet, the right to choose the applicable law is often restricted when weaker parties are involved. According to Article 6(2) Rome I Regulation, the parties to a consumer contract may choose the applicable law provided that this choice does not deprive ‘the consumer of the protection afforded to him’ by the objectively applicable law (the law of his habitual place of residence). In the Netherlands, academic opinion is still divided on the issue of how ‘deprived of protection’ should be interpreted. Some argue that the objectively applicable law trumps the chosen law, even if the latter is more beneficial for the consumer. Others want to apply the law that better protects the consumer – regardless of whether it is the chosen or the objectively applicable law. This question goes hand in hand with a (possibly complex) legal comparison between both systems of law. How this comparison needs to be exercised is unclear. Delving deeply into Dutch case law shows that Dutch judges do not have a ‘joined approach’. This paper uses a case study to illustrate that following a certain approach when applying Article 6(2) Rome I can alter the level of protection that the consumer enjoys. A lack of guidance from the European Court of Justice could be at fault here; and national courts should refer a question as to the ‘right way’ of applying Article 6(2) Rome I to the Court.

te Winkel, X.P.A. van Heesch, The Shell judgment – a bombShell in private international law? / p. 532-542

Abstract

This article discusses the recent judgment of the District Court of The Hague in Milieudefensie et al. v. RDS (May 26, 2021, ECLI:NL:RBDHA:2021:5337). It reviews the most important substantive rulings of the Court and then focusses on the private international law aspects of the case. Milieudefensie et al. argued that the adoption of the concern policy for the Shell Group by RDS qualifies as the Handlungsort and that Dutch law is therefore applicable to their claims based on Article 7 Rome II Regulation. RDS disagreed with this line of reasoning for multiple reasons. Since there is (as yet) no legal precedent regarding this discussion, both Milieudefensie and RDS relied on the analogous application of case law that concerned the interpretation of the Handlungsort under the Brussels Ibis Regulation. The legal debate between the parties regarding this aspect and the conclusion of the Court are set out in this article. The authors conclude with an analysis of the assessment of the Court and suggest that, given the impact of this ruling and the fact that there is no legal precedent, the Court ex officio should have requested a preliminary ruling from the Court of Justice.

Case note

Arons, HvJ EU 12 mei 2021, zaak C-709/19, ECLI:EU:C:2021:377, NIPR 2021, 267 (VEB/BP) / p. 543-550

Abstract

In this judgment the CJEU has ruled on localising purely financial losses in order to determine jurisdiction in tort claims. A claimant may sue a defendant on the basis of Article 7(2) of the Brussels Ibis Regulation in the court of another Member State at the place where the harmful event occurred or may occur. The CJEU has reiterated that the ‘place where the harmful event occurred’ may not be construed so extensively as to encompass any place where the adverse consequences of an event caused damage to the claimant.

For jurisdiction on this basis a close connection has to be established between the place where the damage occurred and the court addressed by the claimant. This ensures certainty for the defendant: the defendant has to be able to reasonably foresee the court(s) where he may be sued.

The mere location of an investment account is not sufficient to establish the required close connection; additional circumstances are required (paras. 34 and 35). In the Kolassa case (C-375/13) information was published and notified by the defendant in a prospectus aimed at investors in Austria. The CJEU ruled that foreseeability is not ensured if the claim is brought before the courts in the Member State where the investment account used for the purchase of securities listed on the stock exchange of another State is situated, and the issuer of those securities is not subject to statutory reporting obligations in the Member State where the investment account is held by the purchaser (para. 34). A claim can only be brought on the basis of Article 7(2) against a listed company for publishing misleading information to investors in the jurisdiction where that company had to comply, for the purposes of its listing, with statutory reporting obligations. It is only in that Member State that a listed company can reasonably foresee the existence of an investment market and incur liability (para. 35).

I have posted before on the Brownlie v Four Seasons litigation, please refer to the earlier post for context. The case revolves around whether courts should hear cases where the only damage sustained in their jurisdiction, is ‘indirect’ damage.

The litigation is not terribly good publicity for English civil procedure. The length of the proceedings resembles that of systems often referred to when in ordinary circumstances the English courts are much speedier. Moreover the outcome of the final Supreme Court judgment on 20 October on the jurisdictional gateway for torts inevitably will lead to a carrousel of future litigation and long-winded jurisdictional argument.

Even though the court was seized much before Brexit day, the jurisdictional issues are not subject to Brussels Ia. (The applicable law is, however, determined by Rome II and that this is Egyptian law is not disputed). The Court of Appeal as I discussed in my earlier post,  upheld ‘damage in the jurisdiction’ on the basis of a wider notion of ‘damage’ under residual English rules than under the EU rules. The UKSC has now agreed by a majority of four to one, confirming the obiter outcome of the earlier, ‘Brownlie I’ (in current judgment recalled at [45] ff) obiter views of the Court in a different composition.

Lord Lloyd-Jones reminds us [25] of the 3 requirements to meet the jurisdictional threshold. Claimant must show firstly ‘a good arguable case’ that the claims fall within one of the gateways in the civil procedure rules – CPR, introduced by Statute; further a serious issue to be tried on the merits (this is designed to keep out frivolous suits); and finally that England is the appropriate forum for trial and the court ought to exercise its discretion to permit service out of the jurisdiction that is the ‘forum non conveniens’ test.

The only issue under consideration before the SC was the first one, in particular, whether the case meets the conditions of CPR PD 6B paragraph 3.1(9):

“Service out of the jurisdiction where permission is required. 3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where -…

Claims in tort

(9)       A claim is made in tort where –

(a)        damage was sustained, or will be sustained, within the jurisdiction; or

(b)       damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.”

Candidates for Lady Brownlie’s claim satisfying the tort gateway in England, are [27] (a) a claim for damages for personal injury in her own right; (b) a claim for damages in her capacity as executrix of the estate of her late husband for wrongful death; and (c) a claim for damages for bereavement and loss of dependency in her capacity as her late husband’s widow.

Under EU jurisdictional rules, the only one of these three which in my view would have any chance of success under A7(2) BIa, is the latter. Despite CJEU Lazar (on the equivalent rule for applicable law under Rome II) I still do not see clear in the application of A7(2) to claims based on bereavement and loss of dependency. For these, I submit, Lloyd-Jones suggestion [73] fits even if the test, like in the EU, is based on direct effect only: ‘the event giving rise to the damage directly produced its harmful effects on Lady Brownlie in England and Wales.’

In essence the SC confirms the Court of Appeal’s insistence that the residual English rules must not ‘parrot’ the CJEU’s interpretation of ‘damage’ with its insistence on only direct damage satisfying the tort gateway – Pike in particular echoed the same feeling. Great emphasis is put on the perceived very different nature of the English private international law exercise as opposed to the EU, ‘Brussels’ regime. See for instance [55] ‘fundamental differences between the two systems would have made such an assimilation totally inappropriate’ – ditto, ex multi, [74].

This now Supreme Court confirmed ‘fundamental’ [74] difference between the regimes must and will, I submit, play a role in pending cases under Brussels Ia, such as those involving Articles 33-34 lis pendens provisions.

I do agree with Lloyd-Jones’ remark [50] that he is unconvinced of the suggested link between damage completing a cause of action (highly relevant at the applicable law stage] and the identification of an appropriate jurisdiction. Yet unlike him I would take that in a different direction. Not therefore in the direction of an in principle unlimited jurisdictional gateway for tort (Lord Leggatt, dissenting, at 171 remarks all English tourists travelling abroad will now have such gateway, without anyone suggesting ‘any principled basis for it’, and at [194] he suggests forum shopping will be encouraged eg by non-English tourists employing medical treatment in England as an anchor for jurisdiction), disciplined only by forum non conveniens (which was not under appeal here [79]; although Lord Lloyd-Jones does remark obiter at 80 that the judge had rejected forum non referring in particular referring to the fact that to a significant extent the claimant’s losses had been experienced in England ). Rather, I would revisit the original (for the EU at least) and contra legem (for A7(2) BIa like its predecessors does not mention damage) introduction of damage as a gateway in CJEU Bier.

The SC puts great trust in forum non conveniens as a gatekeeper: [79]

The discretionary test of forum non conveniens, well established in our law, is an appropriate and effective mechanism which can be trusted to prevent the acceptance of jurisdiction in situations where there is merely a casual or adventitious link between the claim and England. Where a claim passes through a qualifying gateway, there remains a burden on the claimant to persuade the court that England and Wales is the proper place in which to bring the claim. Unless that is established, permission to serve out of the jurisdiction will be refused (CPR rule 6.37(3)). In addition – and this is a point to which I attach particular importance – the forum non conveniens principle is not a mere general discretion, the application of which may vary according to the differing subjective views of different judges creating a danger of legal uncertainty. On the contrary, the principle applies a structured discretion, the details of which have been refined in the decided cases, in a readily predictable manner.

I have less trust in forum non as the predictable gatekeeper suggested by the majority. Consider Lord Leggatt’s dissenting view [200]:

In the absence of any prescribed decision procedure or ranking of factors, different judges assessing whether England and Wales is the appropriate forum will inevitably attach different degrees of weight to different factors and may reach differing conclusions on similar facts without either conclusion being susceptible to legal challenge. Not only is such inconsistency of outcome itself a source of injustice, but it also encourages satellite litigation and causes defendants who have no real connection with England to have to incur the difficulty and expense of instructing English lawyers to apply in England to contest the jurisdiction of the English courts. That gives a claimant a significant and unfair tactical advantage.

Moreover, as already highlighted by Joshua Folkard, cases of purely economic loss are likely to provoke much (and expensive) discussion. Lloyd-Jones L [43] himself notes: ‘Within the Brussels system, the distinction between direct and indirect damage is, however, sometimes elusive.’ He refers immediately to financial losses as the example with the least jurisdictional grip. He repeats this point ia [76], seeking to distinguish it from the more complex tort suffered by Lady Brownlie.

Cases of purely economic loss will continue to be litigated extensively at the jurisdictional level for current judgment does not offer any instruction on them. [76]: ‘the mere fact of any economic loss, however remote, felt by a claimant where he or she lives or, if a corporation, where it has its business seat would be an unsatisfactory basis for the exercise of jurisdiction. However, this is not such a case.’

An end to the jurisdictional tussle in current case therefore, nine years (8  years and 11 months) after the claim was issued. Yet continuing consequential uncertainty for many other pending and future claims.

Geert.

This post was written by Thomas Mastrullo, Associate Professor at University of Luxembourg.

The European Commission has for several years expressed its desire to increase the range of supranational structures. Thus, the creation of a European Association has been considered since the beginning of the 2000s (Communication from the Commission to the Council and the European Parliament, Modernising Company Law and Enhancing Corporate Governance in the European Union – A Plan to Move Forward, p. 26).

This project, which has made no progress in 20 years, has now been given new relevance.

Indeed, on 15 September 2021, the European Parliament has published a Draft Report with recommendations to the Commission on a statute for European cross-border associations and non-profit organisations. This Proposal of Regulation on a statute for a European Association is furthermore complemented by a Proposal for a directive on common minimum standards for non-profit organisations in the EU (so called “Minimum standards” Directive).

This initiative is part of a wider project of integration and development of democracy in the European Union.

According to the Proposal, cross-border projects and other forms of cooperation involving civil society in particular contribute in a decisive way to the achievement of the Union’s objectives. In these conditions, the Proposal of Regulation seeks to promote cooperation across borders between citizens and representative associations because such a cooperation is “essential for creating an overarching European civil society, which is an important element of European democracy and European integration” (Prop. Reg., Recital 1 and 2).

More widely, European Parliament wants to incitate citizens to “actively participate in the democratic life of the Union” thanks to Associations which “play a key role in helping and encouraging individuals” (Prop. Reg., Recital 5).

However, economic considerations are also present in the Proposal of Regulation: European Parliament points out that “many associations play a significant role in the economy and in the development of the internal market, by engaging on a regular basis in economic activity” (Prop. Reg., Recital 3).

The main objective of the Proposal of Regulation is therefore to provide a supranational instrument to facilitate the pursuit of transnational objectives and activities by associations within the internal market.

Several reasons explain why this proposal is now being made.

Firstly, a legal policy element: the need to defend associations and associative freedom in the Union, at a time when these may appear to be under threat from the governments of some Member States. In this sense, the Proposal of Regulation expressly refers to the Judgment of the Court of Justice of 18 June 2020, C-78/18, European Commission v Hungary, from which it follows that Article 63 TFEU and Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union protect non-profit organisations against discriminatory, unnecessary and unjustified restrictions to access to resources and the free movement of capital within the Union.

Secondly, an element of legal technique is invoked: the existing supranational structures, i.e. the European Company (SE) based on Regulation (EC) No. 2157/2001, the European Cooperatives Society (SCE) based on Regulation (EC) n° 1435/2003, the European grouping of territorial cooperation (EGTC) based on Regulation (EC) No. 1082/2006 and European Economic Interest Grouping (EEIG) provided by Regulation (EEC) No. 2137/85 either do not address associations, or do not meet the specific needs of civil society associations.

Hence the need, for the European Parliament, to establish at Union level appropriate rules which will permit the creation of European Associations.

The Regulation would lay down the conditions and procedures governing the formation, governance, registration and regulation of legal entities in the form of a European Association (Prop. Reg., Article 1).

The European Association would be defined as “an independent and self-governed cross-border entity established on a permanent basis within the territory of the Union by voluntary agreement between natural or legal persons for a common non-profit purpose” (Prop. Reg., Article 1(2)).

Several key notions would be clarified (Prop. Reg., Article 2). For instance, “non-profit” purpose would mean that “it is not the primary aim of the association to generate a profit, while it may still exercise economic activities”. And when profit would be generated, it would not be distributed among members, founders or private parties but invested in the organisation for the pursuit of its objectives. Another example: the “independence” would mean that the European Association must be free from State interference and not part of government or administrative structure.

In a general way, The European Association would be governed by freedom in the frame of European requirements:  freedom to determine its objectives and activities, provided that respect and support the promotion of the objectives and values on which the Union is founded; freedom to determine its membership in respect of the principle of non-discrimination (Prop. Reg., Article 1(3) to (5)).

Concerning the applicable law, Proposal of Regulation is based on a classical combination between material rules laid down at the European level and conflict-of-law rules designating national applicable law. Thus, on the well-known model of European entities such as SE, European Association would be ruled in priority by Regulation’provisions. For matters not dealt with the Regulation, it would be governed by the law of the Member State in which the European Association would have its registered office (Reg., Article 3(1)). As a consequence, Member States would have to identify the legal entity or the category of legal entities to which a European Association would be deemed (Prop. Reg., Article 3(2)). Therefore, like the others European structures, European Association would be conceived as a hybrid entity.

The application of the Regulation, and thus the regime of European Association, would be monitored by two authorities.

First, at a national level, the Regulation would provide the creation of a national supervisory authority defined as “an independent public authority” designated by each Member States. The aim of the authority would be to protect the fundamental rights and freedoms of European Associations while acting across borders (Prop. Reg., Article 4). These supervisory authorities would cooperate within the framework of a European Association Authority.

Second, at a supranational level, the Regulation would create a European Association Authority (Prop. Reg., Article 5). Certainly, it is one of the most remarkable provision of the Proposal. European Association Authority would be thought as a body of the Union with legal personality. The role of the European Association Authority would be to ensure that the Regulation is applied “in a consistent manner”.

Several important tasks would be given to the European Association Authority, such as (Prop. Reg., Article 5(6)):

• develop a single e-registration procedure for European Associations and manage a digital e-Registry of European Associations at Union level;
• process notices of registration, dissolution and other relevant decisions concerning European Associations for the purpose of publication in the Official Journal of the European Union;
• process applications for the granting of “public benefit status” (cf. infra Reg., Article 19);
• assess the adequacy of the identification of the comparable legal entities by the Member States concerning the applicable law (cf. supra Reg., Article 3(2));
• receive, examine and follow-up on complaints concerning the application of the Regulation
• take binding decisions;
• examine any question relating to the application of this Regulation and issue guidelines, recommendations and best practices for national supervisory authorities and European Associations;
• advise the Commission on any issue related to European Associations;
• consult the Commission regarding structuring and operationalising funds aimed at financing civil society as well as protecting and promoting Union rights and values, sustaining and furthering the development of open, rights-based, democratic, equal and inclusive societies based on the rule of law;
• promote the cooperation and the effective bilateral and multilateral exchange of information and best practices between national supervisory authorities and with the European Associations Authority;
• promote common training programmes and facilitate personnel exchanges between national supervisory authorities.

The dialogue and exchanges between national supervisory authority and the European Association Authority would be one of the main features of the new status of European Associations.

A European Association would be formed by three means, either contractual or corporate. In all cases, the European Association should have a strong legal link with the EU (Prop. Reg., Article 6). That is said, the European Association would be created:

• by agreement of at least three founding members. The founding members would be natural persons, that are citizens or residents of at least two Member States, or legal persons that have their registered office in at least two Member States, or
• by a conversion into a European Association of an existing entity formed under the law of a Member State and which would have its registered office within the Union, or
• by a merger between at least two entities belonging to the categories identified pursuant to Article 3(2) of the Regulation proposed (cf. supra). These entities would have to be formed under the laws of Member States and would have to have their registered office within the Union, provided that at least two of them would be governed by the law of different Member States.

The formation of the European Association would need the signature of statutes whose mentions of the statutes would be listed by the Regulation (Prop. Reg., Article 8). The statutes would provide, inter alia, for the rights and obligations of members (Prop. Reg., Article 7)

Concerning the registered office of a European Association, two conditions would be required: on a formal aspect, the place of the registered office would be indicated in the statutes; on a material aspect, the registered office would be within the territory of Union. Moreover, following the material rule providing by model of the European company, the registered office would be located at the place where the European Association has its central administration (Prop. Reg., Article 9).

For registration of a European Association, the Regulation would rely on digital tools. Within 30 days of the date of its formation, a European Association would submit an application for registration in the digital e-Registry of European Associations (Prop. Reg., Article 10). Registration would occur via a standardised registration procedure to be developed and set up by the European Associations Authority. Besides, the registration procedure would be electronic and free of charge. The applicants would be allowed to use the official language or one of the official languages of the Member State where the European Association would have its registered office. A national “registering authority” would be designated by each Member States for processing applications for registration of European Associations that have their registered office in its territory.

European Association would be given two main prerogatives. First, on the model of others European entities, it would be able to transfer its registered office without creation of a new legal person to change its applicable law (Prop. Reg. Article 11). Second, it would have the legal personality acquired on the day of the publication of its registration as a European Association in the Official Journal of the European Union (Prop. Reg. Article 12). This legal personality would give European Associations “the capacity to exercise, in their own name, the powers, rights and obligations that are necessary for the pursuit of their objectives”, under the same conditions as a legal entity among those identified pursuant to Article 3(2) of the Regulation and formed in conformity with the law of the Member State in which the European Association would have its registered office. But some prerogatives would be expressly guaranteed at the European Level, no matter where the registered office is located, such as: conclude contracts, receive donations and legacies, employ staff, be a party to a legal proceedings and access financial services.

A European Association would be free to determine its internal management structures and governance in its statutes, provided that it would be rule by at least two bodies (Prop. Reg., Article 13): the Board of Directors, which would manage the European Association in the interests of the European Association and in pursuit of its objectives (Prop. Reg., Article 14), and the General Assembly which would gather all members (Prop. Reg., Article 15) and would be competent for amendments of the statutes (Prop. Reg., Article 17).

To pursue its objectives within Union, and give a real supranational dimension to its activities, a European would be able to have regional chapters which would not be considered as possessing a distinct legal personality but could organize and manage activities on behalf of the association (Prop. Reg., Article 16).

The treatment of European Associations in Member States is framed by several cardinal principles.

Firstly, the principle of non-discrimination from which it follows that any discrimination based on the place where the European Association would have its registered office would be prohibited and that (Prop. Reg., Article 18).

Secondly, a European Association could be granted public benefit status if four conditions would be met (Prop. Reg., Article 19):

• the organisation’s purpose and actual activities would pursue a public benefit objective which would serve the welfare of society or of part of it, and is thus beneficial for the public good (arts, culture, environmental protection, social justice, humanitarian assistance, protection of animals, science, research and innovation, education and training, protection of health, consumer protection, amateur sports, for instance);
• surplus from any economic or other income-earning activity generated by the non- profit organisation would be used solely to promote the organisation’s public benefit objectives;
• in the case of dissolution of the non-profit organisations, statutory safeguards would guarantee that all assets would continue to serve public benefit objectives;
• members of the organisation’s governing structures that are not employed as staff would be not eligible to remuneration beyond adequate expense allowance.

Thirdly, the principle of national treatment, from which it follows that European Association registered in a Member State would be subject to the provisions applicable to the legal entity or the category of legal entities to which a European Association would be deemed comparable by the Member State in application of Article 3-2 (Prop. Reg., Article 20). This principle seems very close to the principle of non-discrimination.

Fourthly, the principle of non-arbitrary treatment from which it follows that A European Association “would not be subjected to differential treatment by Member States based solely on the political desirability of its purpose, field of activities or sources of financing” (Prop. Reg., Article 21).

Two texts are dedicated to this issue.

The first text concerns the fundraising and free use of assets (Prop. Reg., Article 22). It is provided that European Associations would be able to solicit, receive, dispose of or donate any resources, and solicit and receive human resources, from or to any source (public bodies, private individuals or private bodies, in any Member State of the Union and in third countries). In return, European Associations would be subject to the provisions of Union and national law concerning customs, foreign exchange, money laundering and terrorist financing, as well as to the rules regulating the funding of elections and political parties. We can see here that Democratic considerations are at the heart of the Proposal of Regulation’s preoccupations.

The second text concerns accounting and auditing (Prop. Reg., Article 23). It provides that rules on accounting would be regulated by the statutes, subject to the provisions of the Regulation and to the provisions applicable to the legal entities identified pursuant to Article 3(2) in the Member State in which the European Association would have its registered office. Besides, the Regulation would demand that European Association draws up at least once a year: annual accounts, consolidated accounts, if any, and a budget estimate for the forthcoming financial year. This text underline the hybrid nature of the European Association which would be governed by the Regulation, its statutes and the law of the Member State where its registered office would be located. It confirms also that Proposal of Regulation is based on a combination between material rules and conflict-of-law rules.

The supervision of a European Association would be assumed by a national supervision authority within the framework of European Associations Authority (Prop. Reg., Article 24). The Proposal of Regulation draws up a complete scheme of supervision. The supervisory authority would consult the supervisory authorities of other Member States within the framework of the European Associations Authority on any substantial issues regarding the lawfulness and liability of European Associations registered in the Member State’s territory. The recommendations of supervisory authorities would be communicated and reviewed by the European Associations Authority. If the supervisory authority would fail to reconsider its recommendation in the light of the European Associations Authority’s recommendation, the European Associations Authority could adopt a binding decision. In case of the supervisory authority would fail to comply with a decision taken by the European Associations Authority, the latest would inform the European Commission, which would take action as appropriate. European Associations would have the possibility to obtain judicial review of any decisions taken by the supervisory authority.

Concerning liability, Proposal of Regulation provides once again a combination between of a conflict-of-law rule and a material rule. On a conflictual point of view, the liability of the European Association would be governed by the provisions applicable to the legal entities deemed comparable in application of Article 3(2) by Member State in which the European Association would have its registered office. On a material point of view, the Proposal of Regulation states that the members of the Board would be jointly and severally liable for loss or damage sustained by the European Association as a result of a breach of the obligations attaching to their functions. Proceedings against the members of the Board would be laid down by the statutes.

First of all, the Proposal of Regulation provides a voluntary dissolution (Prop. Reg., Article 26). More precisely, the European Association could be dissolved by decision of the Board pursuant to provisions in the European Association’s statutes, with the agreement of the General Assembly, or by decision of the General Assembly – with a possibility to annul such decision before any dissolution or liquidation of a European Association. The supervisory authority would inform the European Associations Authority of any dissolution and The European Associations Authority would, immediately after such notification, publish a notice of dissolution of the European Association in the Official Journal of the European Union and remove the European Association from the digital e-Registry of the Union.

The Regulation would also lay down an involuntary dissolution (Prop. Reg., Article 27). In that circumstance, the dissolution would result from a binding decision of the European Associations Authority, taken on its own initiative or at the request of the supervisory authority of the Member State in which the European Association would have its registered office. Three kind of circumstances could justify such a binding decision: the transfer of the registered office outside the territory of the Union; the conditions for the formation of the European Association, as set out in the Regulation, would be no longer fulfilled; the activities of the European Association would cease to be compatible with the objectives and values of the Union or would “pose a serious threat to public policy, public security or public order”. The binding decision would be taken after the national supervisory authority has communicated a reasoned opinion concerning the European Association’s dissolution. The European Association would be granted a “reasonable period of time” to regularize its position before the decision takes effect. The decision to dissolve the European Association would be reflected in the digital e-Registry of European Associations and publish it in the Official Journal of the European Union.

Finally, the Proposal of Regulation deals with liquidation and insolvency of European Associations (Prop. Reg., Article 28). The Proposal states that the winding up of a European Association would entail its liquidation. Such liquidation would be governed by the law applicable to the legal entities identified pursuant to Article 3(2) in the Member State in which the European Association would have its registered office.

Aldricus – Karena belum bisa berkomunikasi secara lancar, bayi biasanya akan mengeluarkan tangisan atau rewel apabila terasa ada yang mengganggu dirinya. Apabila Anda orangtua baru, biasanya kita bingung penyebab bayi rewel beserta langkah terbaik untuk menenangkannya.

Untuk itu, Anda harus pintar-pintar membaca pola tangisan mereka. Karena biasanya setiap pola tangisan arti yang berbeda. Misalnya saja ketika lapar atau ngantuk. Keduanya memiliki pola tangisan yang berbeda.

Mengapa pola tangisan bayi bisa berbeda tergantung situasi si bayi? Hal ini adalah cara komunikasi bayi untuk membedakan ia sedang lapar atau hanya kelelahan saja. Di bawah ini alasan bayi mulai rewel berdasarkan pola tangisannya.

Bayi biasanya akan menyusu setiap beberapa jam sekali terutama yang baru lahir. Jika ia mulai merasa lapar biasanya mengemut tangan atau jari yang kemudian mengarahkan muka ke Anda. Dia akan lebih sering mengarah ke pipi yang sering Anda usap ketika memberi ASI. Suara tangisnya berima dan mengulang.

Daripada menangis, bayi akan mengeluarkan suara seperti sedang menggerutu. Dia akan gelisah dan baru akan menangis apabila Anda terlalu lama meresponsnya. Hal ini juga menjadi salah satu faktor bayi rewel tidak mau tidur karena tidak nyaman.

Bayi yang lelah akan lebih sering menguap, sayu, dan mengucek mata. Tangisannya akan lebih intens dan kencang di awal, tapi selanjutnya akan lebih tenang.

Bayi yang sakit tangisannya akan lebih kencang dan meninggi. Berhenti hanya sebentar-sebentar saja. Wajahnya pun akan lebih sering mengernyit seperti menahan sakit.

Bayi akan menangis sambil membuka mata bahkan menarik kepala ke belakang. Bahkan semakin lama, intensitas tangisananya akan menjadi semakin kencang.

Setelah tahu penyebab bayi rewel, Anda bisa mengatasinya dengan beberapa cara berikut ini.

1. Selimutilah bayi dengan kain
2. Mengayun-ayun atau menggendong bayi
3. Menggendong bayi dengan posisi telungkup
4. Putarkan suara yang menenangkan
5. Pijat atau usap lembut tubuh bayi Anda
6. Memandikan bayi Anda dengan air hangat
7. Nyanyikanlah lagu atau solawat

Nah, itu dia penyebab bayi rewel dan cara mengatasinya. Meski terkesan sulit, Anda bisa terus belajar untuk terus mengamati bentuk tangisan bayi agar lebih paham cara apa yang harus dilakukan untuk menenangkan mereka. Semangat dan selamat mencoba!

The post Inilah Penyebab Bayi Rewel dan Yang Harus Dilakukan appeared first on Aldri Blog.

This post is written by Joshua Folkard, Barrister at Twenty Essex.

In FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45 (“Brownlie II”), the Supreme Court held as a matter of ratio by a 4:1 majority that consequential loss satisfies the ‘tort gateway’ in Practice Direction (“PD”) 6B, para. 3.1(9)(a).

Background

PD 6B, para. 3.1(9)(a) provides that tort claims can be served out of the jurisdiction of England & Wales where “damage was sustained, or will be sustained, within the jurisdiction”. Brownlie concerned a car accident during a family holiday to Egypt, which tragically claimed the lives of Sir Ian Brownlie (Chichele Professor of Public International Law at the University of Oxford) and his daughter Rebecca: at [1], [10] & [91]. On her return to England, however, Lady Brownlie suffered consequential losses including bereavement and loss of dependency in this jurisdiction: at [83].

The question whether mere consequential loss satisfies the tort gateway had been considered before by the Supreme Court in the very same case: Brownlie v Four Seasons [2017] UKSC 80; [2018] 2 All ER 91 (“Brownlie I”). By a 3:2 majority expressed “entirely obiter” (Brownlie II, at [45]) the Court had answered affirmatively: [48]-[55] (Baroness Hale), [56] (Lord Wilson) & [68]-[69] (Lord Clarke). However, the obiter nature of that holding combined with a forceful dissent from Lord Sumption (see [23]-[31]) had served to prolong uncertainty on this point.

Majority’s reasoning

When asked the same question again, however, a differently-constituted majority of the same Court gave the same answer. Lord Lloyd-Jones (with whom Lords Reed, Briggs, and Burrows agreed: see [5] & [7])) concluded that there was “no justification in principle or in practice, for limiting ‘damage’ in paragraph 3.1(9)(a) to damage which is necessary to complete a cause of action in tort or, indeed, for according any special significance to a place simply because it was where the cause of action was completed”: at [49]. The ‘consequential’ losses suffered in England were accordingly sufficient to ground English jurisdiction for the tort claims.

Three main reasons were given. First, Lord Lloyd-Jones held that there had been no “assimilation” of the tests at common law and under the Brussels Convention/Regulation, which would have been “totally inappropriate” given the “fundamental differences between the two systems”: at [54]-[55]. Second, his Lordship pointed to what he described as an “impressive and coherent line” of (mostly first-instance) authority to the same effect: at [64]. Third, it was said that the “safety valve” of forum conveniens meant that there was “no need to adopt an unnaturally restrictive reading of the domestic gateways”: at [77].

Economic torts?

What is now the position as regards pure economic loss cases? Although Lord Lloyd-Jones concluded that the term “damage” in PD 6B, para. 3.1(9)(a) “simply refers to actionable harm, direct or indirect, caused by the wrongful act alleged” (at [81]), his Lordship expressly stated that:

• “I would certainly not disagree with the proposition, supported by the economic loss cases, that to hold that the mere fact of any economic loss, however remote, felt by a claimant where he or she lives or, if a corporation, where it has its business seat would be an unsatisfactory basis for the exercise of jurisdiction”: at [76].

• “The nature of pure economic loss creates a need for constraints on the legal consequences of remote effects and can give rise to complex and difficult issues as to where the damage was suffered, calling for a careful analysis of transactions. As a result, the more remote economic repercussions of the causative event will not found jurisdiction”: at [75].

The status of previous decisions on the meaning of PD 6B, para. 3.1(9)(a) in economic tort cases appears to have been called into doubt by Brownlie II because (as noted by Lord Leggatt, dissenting: at [189]) those decisions had relied upon an “inference” that PD 6B, para. 3.1(9)(a) should be interpreted consistently with the Brussels Convention/Regulation. That approach was, however, rejected by both the majority and minority of the Supreme Court: at [74] & [189]. It therefore appears likely that the application of Brownlie II to economic torts will be the subject of significant future litigation.

On 5 October 2021, Indonesia deposited its instrument of accession to the HCCH 1961 Apostille Convention, in a ceremony held during the meeting of the Special Commission on the practical operation of the Apostille Convention. With the accession of Indonesia, the Apostille Convention now has 121 Contracting Parties. It will enter into force for Indonesia on 4 June 2022. With this accession, Indonesia becomes the 156th HCCH Connected Party. More information is available here.

On 4 October 2021, the HCCH hosted the 12th International Forum on the electronic Apostille programme (e-APP). Throughout the day, experts from around the globe shared their experiences with the development and implementation of the e-APP, its role in the context of e-Government initiatives, and the future of document authentication. More information is available here.

From 5 to 8 October 2021, the Fifth Meeting of the Special Commission on the practical operation of the Apostille Convention was held via videoconference. The meeting coincided with the 60th anniversary of the Apostille Convention. The Special Commission considered the scope and operation of the Convention, including the electronic Apostille Programme (e-APP). Delegates discussed matters relating to the COVID?19 pandemic, plans for the second edition of the Apostille Handbook, and the outcomes of the Experts Group on the e-APP and New Technologies. More information is available here.

On 7 October 2021, the HCCH hosted a virtual seminar on the HCCH 1965 Service Convention and the HCCH 1970 Evidence Convention for the Supreme Court of Ukraine. This will be the first 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 October 2021, the HCCH hosted a virtual seminar on the negotiation and adoption of the HCCH 2019 Judgments Convention. More information on the 2019 Judgments Convention is available here.

From 11 to 15 October 2021, the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation met for the first time, via videoconference. The Group commenced work on the development of draft provisions on parallel proceedings, to further inform policy considerations and decisions in relation to the scope and type of any new instrument. More information is available here.

On 19 October 2021, the HCCH hosted the HCCH|Approach Global Event. Held online in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention, the event featured a series of lectures and a live panel discussion by global experts. The winners of the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition were announced during the event. More information is available here.

On 28 October 2021, the HCCH Regional Office for Latin America and the Caribbean hosted an online event for Central Authorities of the HCCH 1996 Child Protection Convention from the region, as part of the HCCH|Approach Initiative.

Save the Date: 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. Registration will open on Monday, 1 November. More information is available here.

Vacancy: Applications are now open for the position of Library Assistant (8 to 16 hours per week). The deadline for the submission of applications is this Sunday, 31 October 2021 (12:00 a.m. CET). 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.

Aldricus – Meski keluarga merupakan orang paling dekat dengan kita, tetap saja harus ada sopan santun agar tidak terjadi perpecahan antara satu sama lain. Mengajarkan anak berperilaku sopan di mana saja dan kapan saja sangat penting. Ada beberapa contoh perilaku santun di keluarga yang sebaiknya tidak diabaikan.

Hal ini karena dengan sopan santun, maka kita akan lebih mudah dihargai oleh orang-orang di sekitar kita. Berperilaku sopan adalah hal yang terpuji, dan membuat anak bisa dengan mudah mendapatkan teman. Adapun di keluarga, ada beberapa contoh perilaku sopan yang harus diperhatikan.

Ini bisa dilakukan baik saat momen-momen tertentu atau saat akan pergi ke sekolah. Mencium tangan orang tua sebagai tanda hormat akan membuat mereka bangga. Bisa jadi, ada doa juga yang terselip di dalamnya agar apapun yang kamu lakukan bisa lancar.

Di dalam keluarga, akan ada momen di mana kamu berjalan melewati orang yang lebih tua. Seperti misalnya kakek, nenek, om, tante, ayah, ibu dan sebagainya. Dalam momen ini, sebaiknya kamu sedikit membungkukkan badan sebagai tanda permisi, agar kesannya lebih sopan.

Dalam keluarga, meminjam adalah suatu hal yang biasa. Untuk hal ini, usahakan mengajarkan anak-anak untuk minta izin dulu sebelum memakai barang orang lain. Karena bisa jadi si pemilik tidak ingin barang tersebut dipakai siapapun karena merupakan kesayangannya. Sehingga takkan timbul perpecahan satu sama lain lagi.

Ketika bertengkar dengan anggota keluarga, menggunakan suara yang keras bisa membuat siapapun tersinggung. Hal ini juga tak memecahkan masalah, malah semakin membuat emosi saja. Oleh karena itu penting untuk berpikir secara dingin dan berdiskusi. Daripada saling membentak satu sama lain.

Ada hanya contoh perilaku santun di keluarga yang sebaiknya Anda ajarkan kepada anak-anak. Supaya mereka paham bahwa di dunia ini mereka hidup berdampingan dengan orang lain, sehingga harus saling menghargai.

The post 4 Contoh Perilaku Santun di Keluarga, Wajib Diajarkan appeared first on Aldri Blog.

Guest post by Dr Sagi Peari, Senior Lecturer/Associate Professor at the University of Western Australia

When it comes to the question of the applicable law that governs disputes involving corporations: one must make a sharp distinction between two principal matters: (1) matters relating to external interactions of corporation (such as disputes between a corporation and other external actors, such as other business entities or individuals); and (2) matters relating to the internal interactions of a corporation (such as disputes within the corporate structure or  litigation between a corporation and its directors). A claim of a corporation against another in relation to a breach of contract between the two is an example of a dispute related to external affairs of a corporation. A claim of a corporate shareholder against a director in the firm is an example of a dispute concerning corporate internal affairs.

The division between external and internal affairs of corporation is an important one for the question of applicable law. A review of the case law suggests a strong tendency of the courts to apply the same choice-of-law rules applicable to private individuals. Thus, the general rule of the place of tort applies equally to corporations and private individuals.[1] In similar, the advancing principle of party autonomy[2] does not distinguish between corporations and other litigants on its operational level. The very fact that litigation involves a corporation does not seem prima facie to affect the identity of the applicable law rules.

The situation becomes dramatically different in cases concerning the internal affairs of a corporation. These are the situations involving claims between the corporate actors (i.e. executives, shareholders and directors) and claims between those actors and the corporation itself. Here, different considerations seem to apply. First, internal affairs of corporations tend to be excluded by the various international statutes aiming to harmonise the applicable law rules.[3] Second, there is a clear tendency of the rules to adhere to a single connecting factor (such as the place of incorporation or corporate headquarters with some further constitutional implications[4]) to determine the question of the applicable law. Thirdly, there is a clear tendency of rejecting the party autonomy principle in this sphere according to which  corporate actors are not free to determine the applicable law to govern their dispute.[5]

One of the neglected frameworks for addressing the external/internal affairs distinction relates to the classical corporate law theory on the nature of corporations and the relationships within the corporate structure. Thus, the classical vision of corporations perceives a corporation as an artificial entity that places the state at the very centre of the corporate creation, existence and activity.[6] Another, perhaps contradictory vision, challenges the artificial nature of corporation. It views corporation as an independent moral actor what dissects its existence from the originating act of incorporation.[7] Lastly, the third vision of corporation evaluates the corporate existence from the internal point of view by focusing on the bundle/nexus of contracts within the corporate structure.[8]

One could argue that an exercise of tackling the various theories of corporations could provide an invaluable tool for a better understanding of the internal/external division and subsequently shed light on the question of applicable law rules. Thus, for example, the traditional insistence of choice-of-law to equalise between corporations and private individuals seems to correlate with the ‘personality’ vision of corporation. On a related note, the insistence of the choice-of-law doctrine on a single connecting factor that denies party autonomy seems to be at odds with the nexus-contract theory and aligns with the traditional artificial entity theory of the corporation.

From this perspective, placing this question within the conceptual framework of corporate law could enable us to grasp the paradigmatic nature of the division and contemplate on whether the various suggestions for reform in the area of choice-of-law rules applicable to corporations do not just correlate with the underlying concerns and rationales of private international law/conflict of laws, but also those of corporate law.

I have tackled these (and other) matters in my recent article published in the 45 (3) Delaware Journal of Corporate Law 469-530 (2021) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3905751.

[1] See eg Regulation 864/2007, on the Law Applicable to Non-Contractual Obligations (Rome II), 2007 O.J. (L 199) 40 (EC), art 4 (1).

[2] See eg Hague Principles on Choice of Law in International Commercial Contracts, 2015.

[3] See eg Regulation 864/2007, on the Law Applicable to Non-Contractual Obligations (Rome II), 2007 O.J. (L 199) 40 (EC), art 1 (2) (f).

[4] See eg Case C-212/97, Centros Ltd. v. Erhvervs-og Selskabsstyrelsen, 1999 E.C.R. I-1459, 2 C.M.L.R. 551 (1999).

[5] See eg Hague Principles, Commentaries, 1.27-1.29.

[6] See eg Dartmauth College v Woodward 17 U.S. 518, 636 (1819)

[7] See eg Peter A French, ‘Responsibility and the Moral Role of Corporate Entities’, in Business as Humanity (Thomas J Donaldson and RE Freeman eds, 1994) 90.

[8] Of course, the distinction between the above-mentioned three theories is not sharp and variations and overlaps have been suggested over the years in the corporate law literature.

The Research Center on Private International Law of the University Jean Moulin Lyon III (EDIEC – EA 4185) is organizing a 3-day conference (dir. sc. Ludovic Pailler et Cyril Nourissat). The ambitious program proposed by the organizers does not only aim to take stock of a vicennial construction of the law of judicial cooperation in civil matters. It should also allow the speakers to assess whether this field of Union law is merely a pile of autonomous texts (at most likely to constitute a few large blocks – family, obligations, etc.) or whether, beyond that, a comprehensive work is taking shape, a true “system” of private international law, in particular thanks to the many judgments handed down by the Court of Justice of the European Union. This event will also be an opportunity to question the necessity of a system of private international law in order to constitute the area of civil justice called for by the European Commission.

In order to take up this major scientific challenge, the colloquium brings together eminent European authors, specialists in Private international law and Union law. Their analysis will be usefully completed by a comparative approach from points of view from outside the Union (China, Maghreb, USA) and by the intervention of practitioners (lawyers, bailiffs, notaries), better able to evaluate the usefulness of a system for their daily work.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published.

It contains a number of insightful articles and case comments, whose abstracts are provided below.

T. Maxian Rusche, Available actions in the German courts against the abuse of intra-EU investor-State arbitration proceedings

The Court of Justice of the European Union ruled in Achmea that intra-EU investment arbitration violates fundamental rules of EU law. However, arbitration tribunals have revolted against that judgment, and consider in constant manner that they remain competent to decide cases brought by EU investors against EU Member States. German law offers an interesting option for States to defend themselves against new intra-EU investment arbitration cases. Based on § 1032 paragraph 2 Civil Procedure Code, the German judge can decide on the validity of the arbitration agreement if a case is brought prior to the constitution of the arbitration tribunal. Recently, Croatia has successfully used that possibility in an UNCITRAL arbitration initiated by an Austrian investor on the basis of the Croatia-Austria BIT. The Netherlands have recently brought two cases in ICSID arbitrations based on the Energy Charter Treaty. If the investor refuses to comply with a finding that there is no valid arbitration agreement, Member States can seek an anti-arbitration injunction.

F.M. Wilke, German Conflict of Laws Rules for Electronic Securities

In June 2021, Germany introduced the option of electronic securities, doing away with the traditional principle that securities must be incorporated in a piece of paper. The blockchain-ready Electronic Securities Act (Gesetz über elektronische Wertpapiere: eWpG) comes with its own conflict of laws provision. This paper addresses the subject matter, connecting factors, and questions of the applicable law of said rule. One main challenge consists in reconciling the new rule with an existing (much-discussed, yet still quite opaque) conflict of laws provision in the Securities Account Act. While the connecting factor of state supervision of an electronic securities register may appear relatively straightforward, it is shown that it can actually lead to gaps or an accumulation of applicable laws. While the Electronic Securities Act contains a solution for the former issue, the latter proves more complicated. Finally, it is not obvious whether the new rule allows a renvoi. The author tentatively suggests a positive answer in this regard.

M. Pika, The Choice of Law for Arbitration Agreements

Ever since 2009, when the German choice-of-law provisions for contracts were removed and the Rome I Regulation with its carve-out for arbitration agreements entered into force, the choice of law for arbitration agreements has been debated in Germany. On 26 November 2020, the German Federal Court of Justice addressed this matter, albeit inconclusively. The court held that the enforcement provision Article V (1) lit. a New York Convention applies already before or during arbitral proceedings. Pursuant to this provision, the arbitration agreement is governed by the law chosen by the parties and, subsidiarily, the law of the seat. This leads to an internationally well-known follow-up problem: whether the parties, when choosing the law applicable to the main contract, have impliedly chosen the law applicable to the arbitration agreement. This matter was left open by the Federal Court of Justice.

F. Rieländer, Joinder of proceedings and international jurisdiction over consumer contracts: A complex interplay between the Brussels Regime and domestic law of civil procedure

Whether the “international nature” of a contractual relationship between two parties to a dispute established in the same Member State might possibly stem from a separate contract between the claimant and a foreign party, for the purposes of determining jurisdiction according to the Brussels Ibis Regulation, continues to be a contentious issue ever since the ECJ ruling on the Maletic case (C-478/12). Particularly illuminating are two recent decisions given by the Bayerisches Oberstes Landesgericht. Whilst the Court, understandably enough, did not wish to deviate from the case law of the ECJ, it probably unnecessarily extended the purview of the dubious Maletic judgment in Case 1 AR 31/20. With regard to division of labour on part of the defendants there is no need for an overly expansive interpretation of the term “other contracting party” within the meaning of Article 18(1) Brussels Ibis Regulation because the “international element” of a contractual relationship between a consumer and a trader established in the Member State of the consumer’s domicile simply derives from the subject-matter of the proceedings where the contractual obligation of the trader is to be performed in another State. Taken in conjunction with its decision in Case 1 AR 56/20, the Court seemingly favours a subject-matter-related test of “international character”, while the Court at the same time, in Case 1 AR 31/20, respectfully adopts the authoritative interpretation of the ECJ in Maletic. Simply for the sake of clarity, it should be mentioned that even if the legal relationship between a consumer and one of the defendants, considered alone, bears no international character, a subsequent joinder of proceedings at the legal venue of the consumer’s place of residence is nonetheless possible pursuant to § 36(1) No 3 ZPO (German Code of Civil Procedure) if jurisdiction is established in relation to at least one of the defendants according to Article 18(1) Brussels Ibis Regulation and the general place of jurisdiction of all other defendants is situated in the Federal Republic of Germany.

M. Andrae, For the application of Art. 13 (3) No. 2 EGBGB, taking into account the spirit and purpose of the law against child marriage

Art. 13 (3) No. 2 EGBGB (Introductory Law to the Civil Code) stipulates that a marriage can be annulled under German law if the person engaged to be married was 16 but not 18 years of age at the time of the marriage. The legal norm relates to a marriage where foreign law governs the ability to marry and where the marriage has been effectively concluded under this law. The rule has rightly been heavily criticized in the scientific literature. As long as the legal norm is applicable law, it should be interpreted in a restrictive manner, as far as the wording and the purpose of the law against child marriage allow. The article focuses on the intertemporal problem. In addition, it is discussed whether the legal norm is to be applied universally or only if there is a sufficient domestic reference. The article follows the restrictive interpretation of the BGH of Section 1314 (1) No. 1 BGB, insofar as it concerns marriages that are covered by Art. 13 (3) No. 2 EGBGB. According to this, the court can reject the annulment of the marriage in individual cases, if all aspects of the protection of minors speak against it.

D. Looschelders, Cross-border enforcement of agreements on the Islamic dower (mahr) and recognition of family court rulings in German-Iranian legal relations

The cross-border enforcement of agreements on the Islamic dower (mahr) can present significant difficulties in German-Iranian legal relations. These difficulties are compounded by the fact that mutual recognition of family court rulings is not readily guaranteed. Against this background, the decision of the Higher Regional Court of Celle deals with the recognition of an Iranian family court ruling concerning a claim for recovery of the Islamic dower. The Higher Regional Court of Hamburg on the other hand discusses in its decision whether a husband can sue his wife for participation in a divorce under Iranian religious law as contained in their divorce settlement agreement on the occasion of a divorce by a German court. The recognition of a judicial divorce is not per se excluded in Iran; however, the husband required his wife’s participation due to Iranian religious laws in order for her waiver on the Islamic dower to gain legal effectiveness under Iranian law. The court rejected the claim as it drew upon the state divorce monopoly contained in Art. 17 (3) EGBGB (Introductory Act to the German Civil Code) and § 1564 BGB (German Civil Code). Consequently, despite the waiver declared in Germany, the respondent is free to assert her claim for recovery of the Islamic dower in Iran.

M. Andrae, HMP: Maintenance Obligations between ex-spouses if the parties lived together as an unmarried couple for a long time before the marriage

The main focus is on the relationship between Art. 3 (general rule on applicable law) and Art. 5. (special rule with respect to spouses and ex-spouses) of the 2007 Hague Maintenance Protocol. The following legal issues are discussed: Are maintenance obligations arising out of unmarried relationships included within scope of the HMP? Is Art. 5 HMP to be interpreted as an exception in relation to Art. 3 HMP? How is the phrase “closer connection with the marriage” in the Art. 5 HMP to be interpreted? Should a period of time in an unmarried relationship before a marriage be taken into account in relation to Art. 5 HUP? What is the significance of the last common habitual residence during the marriage with regard to the escape clause if the parties previously lived in different countries for professional reasons?

C. von Bary, Recognition of a Foreign Adoption of an Adult

In its decision on the recognition of a foreign adoption of an adult, the German Federal Court of Justice addresses questions concerning procedure and public policy. The special provisions for proceedings in adoption matters do not apply in recognition proceedings, which has consequences for the remedies available. Considering the effect on the ground for refusal of recognition due to a lack of participation (§ 109(1) No. 2 FamFG), courts only have to hear the other children of the adopting person rather than them being a party to the proceedings. The Court also sets strict criteria for a violation of public policy in the case of a foreign adoption of an adult. It only amounts to a violation of public policy when the parties deliberately seek to evade the prerequisites under German law by going abroad, which seems to imply that there are no fundamental principles specific to the adoption of an adult.

H. Roth, Enforcement issues due to a decision repealed in the State of origin

The decision of the German Federal Court of Justice was handed down pursuant to intertemporal civil procedure law and also to the Brussels I Regulation, which requires a declaration of enforceability for enforcement in another Member State. The court rightly upheld its settled case-law that a decision subsequently repealed in the State of origin cannot be authorized for enforcement. The ruling of the German Federal Court of Justice has significance for future cases examined on the basis of the new Brussels Ia Regulation, which states that enforcement can occur in another Member State without a declaration of enforceability. If the decision in the State of origin is subsequently repealed, a debtor in the executing State can choose for this fact to be taken into account either in the refusal of enforcement proceedings pursuant to Articles 46 et seq. Brussels Ia Regulation or in the execution itself by the competent executing body pursuant to Section 1116 of the German Code of Civil Procedure (ZPO).

O. Remien, Étroitement liée? – On jurisdiction for a damages action against an arbitrator after setting-aside of the award and artt. 1 (2) (d) and 7 (1) (b) Brussels Ibis-Regulation

In Saad Buzwair Automotive Co, Cour d’appel and Tribunal Judiciaire de Paris were of opposite opinions on the question which courts are competent to decide on a damages action against an arbitrator after setting-aside of the award. In an ICC arbitration with seat in Paris but hearings and domicile of the three arbitrators in Germany, the Qatari claimant had been unsuccessful against the Emirati respondent, but later the award had been set aside by the Cour d’appel de Paris and this setting-aside been confirmed by the Cour de cassation. The Qatari company sued one of the German arbitrators for damages before the Paris courts. The first instance Tribunal Judiciaire found that the arbitration exception of art. 1 (2) (d) Brussels Ibis did not apply to the action for damages based on an alleged breach of the arbitrator’s contract; further, it held that the place of performance under art. 7 (1) (b) Brussels Ibis was in Germany where the arbitrators lived and had acted. The Cour d’appel disagreed, the leitmotiv being that the damages action is closely connected (étroitement liée) to the arbitration. It found that the arbitration exception applied, so that the Brussels Ibis Regulation was inapplicable, and that under the autonomous French place of performance rule the place of performance was in Paris. After recalling the importance of the arbitrator’s contract this note distinguishes the damages action against the arbitrator from the arbitration between the original parties, points out that the courts of the seat of the arbitration are not necessarily competent for damages actions against an arbitrator and stresses the negative consequence of the ruling of the Cour d’appel – an eventual judgment awarding damages would not fall under the Brussels Ibis Regulation and thus not necessarily be enforceable in other Member States! Further, it is unclear whether the arbitration exception would also apply to an action for payment of the arbitrator’s fees. Finally, the situation where an arbitral award is not set-aside, perhaps even cannot be set aside, by the courts of the seat but where its enforcement is denied in another state is taken account of and can in case of a damages action lead to the competence of a court other than that of the seat of the arbitration. As to the place of performance, the two courts apply similar autonomous French respectively EU-rules, but with diverging results: the Cour d’appel stressing again the close connection, the Tribunal Judiciaire applying a more concrete fact-based approach. In sum, there are good arguments in favour of the decision of the Tribunal Judiciaire and a judgment of the ECJ on these questions would be welcome.

The table of contents of the issue is available here.

by Paul Patreider

The European Project “DXB – Identities on the move – Documents cross borders” aims at facilitating the dissemination and implementation of Regulation (EU) 2016/1191 in the everyday practice of several EU Member States, improve the knowledge of the links between circulation of public documents, fundamental rights and freedom of movement, ensure a sound implementation of the Regulation for “hard cases” and raise awareness among registrars and legal practitioners. The partnership is supported by a consortium of academic institutions and associations of registrars. More information on the Project and its partners on the official website.

DxB’s Final Conference takes place on 23–24 June 2022 at the premises of A.N.U.S.C.A.’s Academy in Castel San Pietro Terme, Bologna (Italy). The conference will offer a unique opportunity to take stock of the implementation status of Regulation (EU) 2016/1191. The event will also launch the Commentary and the EU-wide comparative survey placing the Regulation in the context of daily national practice.

The Conference will be a truly international event, gathering scholars, registrars, public administrators, political scientists, judges, PhD students and practitioners from all over Europe. Translation services are offered in English, Italian and German. To ensure wide participation as well as the variety of topics and viewpoints, we are pleased to announce a Call for Papers & Panels.

CONFERENCE TOPICS

Regulation (EU) 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents has so far gone largely unnoticed in scholarly debates and practitioners’ discussions. As issues related to the circulation and mutual recognition of authentic instruments in civil status and criminal matters are becoming more and more pressing, the Regulation represents a great opportunity to strengthen the principles and values of the European Union.

Given the strict connection between the scientific and practical dimension of Regulation 2016/1191, authors are invited to examine how this act is currently implemented in the context of national civil status systems and fundamental rights. They should explore the potential positive impact on the freedom of movement of European citizens and on the enjoyment of their fundamental rights as well as focus on critical aspects and deficiencies of the current legal framework.

We encourage applicants to submit proposals for papers and panels related to the Regulation and its context. Possible topics include:

• The creation of a common European civil status framework;
• The notion of “public document” under the Regulation and similar instruments (e.g. formal and substantial requirements) and under domestic law;
• The circulation of criminal records;
• Problems arising from the lack of standardized definitions shared by all Member States (e.g. “crime”, “sex”, “intended parent”, “intersex” );
• The impact of the Regulation on the effective exercise of the freedom of movement;
• Connections between EU citizenship, national citizenship status, and circulation of public documents;
• Case-law of the Court of Justice influencing the interpretation and implementation of the Regulation, with special regard to the Charter of Fundamental Rights and the ECHR;
• Exercise of electoral rights and the circulation of public documents under Article 2.2. of the Regulation;
• Analysis of “hard cases” when applying the Regulation (e.g. marriages celebrated by religious authorities as third-country public documents etc.);
• The Regulation in comparison to the ICCS Conventions and other relevant international conventions (e.g. the Hague Apostille Convention (1961));
• E-Justice Portal tools (e.g. the multilingual form-filling system) and the efficiency of the Internal Market Information System (IMI) in the event of doubts as to the veracity of the documents, or the authenticity of the authority that signed them;
• The digitalization of documents and their circulation; how to ensure the authenticity of digital documents (both native digital size or digital copies of a paper original); forms of electronic signature or seals, with special regard to electronic signatures governed by the eIDAS Regulation and country-specific standards;
• Extension of the scope of the Regulation to public documents relating to, among others, the legal status and representation of a company or other undertakings, diplomas, certificates and other evidence of formal qualifications, officially recognised disabilities, etc. (see article 23 of the Regulation);
• Critical issues related to multilingual standard forms (regional/local linguistic minorities; public documents for which multilingual standard forms are not yet established by the Regulation etc.).

WHO SHOULD PARTICIPATE

Participation is not restricted to lawyers or to established scholars. We welcome registrars, public administrators, professionals, practitioners, doctoral students. We welcome proposals that offer multi-disciplinary perspectives from various areas of law (including European, civil, administrative, comparative, international, criminal, and labour law), as well as from scholars in the humanities and the social sciences (e.g. history, economics, political science, sociology) with an interest in the Conference’s themes. We also welcome submissions from both senior and junior scholars (including doctoral students) as well as interested practitioners.

PAPER AND PANEL SUBMISSIONS

• Submit your PAPER proposal with an abstract of a maximum of 500 words and 5 keywords. The abstract must also contain Title, Name, Affiliation (e.g. university, institution, professional association), Country and E-mail address.
• Submit your PANEL proposal with an abstract of a maximum of 800 words and 5 keywords. We welcome a state-of-the art symposium or a round-table providing on key issues. Fully formed panel proposals should include at least three and no more than five presentations by scholars or practitioners who have agreed in advance to participate. Panel proposals should also identify one panel chair/moderator. Include: title of the panel, names of speakers and of the chair/moderator and their affiliation (e.g. university, institution, professional association), title of each presentation (if applicable), e-mail address of panel participants, language(s) to be used.

We encourage submissions in English. However, as part of the vision of a truly European conference, paper and panel proposals will also be accepted in Italian and German.

Selected paper authors will receive further information on the publication of the proceedings.

Submission templates for paper & panel proposal are available on the DXB website.

HOW AND WHEN TO SUBMIT

Send proposals to: info@identitiesonthemove.eu. Indicate in the e-mail subject line: “Conference call – name of the (lead) author (or moderator) – Title of the paper or panel proposal”.

The deadline for submitting the paper or panel abstract proposal is 22 December 2021.

Applicants will be informed about the outcome of the abstract selection process no later than 15 January 2022. If successfully selected, full papers must be submitted by 15 April 2022.

PROGRAMME AND REGISTRATION

The draft of the Conference Programme will be published on 1st March 2022. The final Conference Programme with all panel sessions will become available on 25 April 2022.

Registration for the Conference opens on the DXB website on 15 January and closes on 20 May 2022.

The event will be held in person, in compliance with the current health safety regulations, and will also be broadcast online via live streaming with free access.

Onsite participants will need a Covid-19 digital certificate (Green Pass), or equivalent certificate recognized under Italian law, if still so required by the Authorities at the time of the conference.

N.B. All speakers and moderators, including those invited under the call, are required to attend the event in person.

Registration fee: it includes conference materials, shuttle service (see website for details), tea/coffee and lunch refreshments as well as the certificate of attendance.

Ordinary fee: 80 Euros

Reduced student fee (including Ph.D. students): 40 Euros

Check the Project website for updates.

This project was funded by the European Union’s Justice Programme (2014–2020). Project number: 101007502. The content of this Call represents the views of the partners only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

Mag. Paul Patreider, Institut für Italienisches Recht, Fachbereich Privatrecht, Universität Innsbruck

On October 18, 2021 Professor Monika Pauknerová, professor for private international law and international trade law at Charles University in Prague, Czech Republic, celebrated a significant jubilee. Colleagues and friends from many countries contributed to a liber amicorum to her honour:

Magdalena Pfeiffer, Jan Brodec, Petr Bríza and Marta Zavadilová (eds.). Liber Amicorum Monika Pauknerová. Praha: Wolters Kluwer ?R, 2021, 552 p. ISBN 978-80-7676-186-5.  The publication contains 47 contributions in English, Czech and Slovak, most of them on private international law.

TABLE OF CONTENT

Nadia de Araujo and Marcelo De Nardi
International Jurisdiction in Civil or Commercial Matters: HCCH´s New Challenge

Jürgen Basedow
International Transport Conventions and the European Union

Paul Beaumont and Jayne Holliday
Habitual Residence in Child Abduction Cases: The Hybrid Approach Is Now the Norm bur How Much Weight Should Be Given to Parental Intention?

Alexander J. Belohlávek
Conflicting Interpretations of International Treaties

Karel Beran
Cím se liší „právní entita“ od právnické osoby (úvaha nad „jinou než fyzickou
osobou“ podle § 30 odst. 1 z. m. p. s.)

Michael Bogdan
Article 36 of the EU Insolvency Regulation and the Treatment of General
Priority Rights

Jan Brodec
Vliv lex loci arbitri na prubeh mezinárodní obchodní arbitráže

Petr Bríza
Determination of the Law Applicable to a Share Transfer Agreement: Are All
Doubts Dispelled after the TVP Case?

Giuditta Cordero-Moss
Private International Law in Arbitration

Elizabeth B Crawford and Janeen M Carruthers
The Incurious Curia

Stanislava Cerná
Stát jako ovládající osoba

Lucie Dolanská Bányaiová
Jak moc musí být cizí rozsudek vykonatelný?

Katerina Eichlerová
EMCA – inspirace (nejen) pri vymezení požadavk? na oznacení pobocky

Richard Fentiman
Foreign Law as Local Law: a Case of Mistaken Identity?

Zuzana Fišerová
Zamyšlení nad kolizní úpravou pro rozvod manželství s mezinárodním prvkem
aneb nastal cas, aby CR pristoupila k narízení ?ím III?

Cristina González Beilfuss
Prorogation of Jurisdiction in Parental Responsibility Matters under Regulation
(EU) No. 2019/1111

Trevor Hartley
The Concept of a Consumer under Brussels I: the Petruchová Case

Elena Júdová
Špeciálne režimy v európskom medzinárodnom práve súkromnom

Zdenek Kapitán
Mezinárodní pravomoc ceských soudu ve vecech péce o deti založená na
státním obcanství

Catherine Kessedjian
Mediation for Disputes in Investment Matters

Zdenek Kühn
Vztah ceské Ústavy k mezinárodnímu právu

Ivana Kunda
Overriding Mandatory Provisions before the CJEU: Takaways or Getaways?

Tuula Linna
Sustainability and Insolvency Proceedings

Alena Macková a Filip Crncevic
Systém mimosoudního rešení sporu spotrebitel? v CR perspektivou ADR

Peter Mankowski
Presumptions, Escape Clauses and Protective Regimes under the Rome
I Regulation

Milan Müller
Mezinárodní postoupení pohledávek a jeho úcinky na tretí strany ve svetle
pripravované nové evropské právní úpravy

Hans Ulrich Jessurun d’Oliveira
“Latent” Citizens. What Do They Tell Us about the Concept of Citizenship?

Jan Ondrej
Smlouvy o mezinárodní preprave se zamerením na Úmluvu o prepravní
smlouve v mezinárodní silnicní nákladní doprav? a její provádení v právu CR

Daniel Patek
Úcinky (nekalé) souteže

Marta Pertegás Sender
Cross-Border Liability Cases in the European Union: No Good Match with the
Special Jurisdiction Rules of the Brussels I Regulation?

Magdalena Pfeiffer
The Cinderella Treatment of Foreign Arbitral Awards in the Czech
Enforcement Procedure

Fausto Pocar
Brief Remarks on the Relationship between the Hague Judgments and Choice
of Court Conventions

Helena Prášková
Konsenzuální a smírná rešení rozporu ve verejné správe

Ilaria Pretelli
Three Patterns, One Law: Plea for a Reinterpretation of The Hague Child
Abduction Convention To Protect Children from Exposure to Sexism,
Misogyny and Violence Against Women

Elena Rodríguez Pineau
Parallel Litigation in Proceedings Relating to Data Protection

Nadežda Rozehnalová
Cesta k soucasnému uchopení imperativních predpis?

Kvetoslav Ružicka
Náklady stran v rozhodcím rízení

Pavel Simon
Potíže spojené s ur?ením místn? p?íslušného soudu ve sporech s mezinárodním
prvkem aneb o zbyte?nosti § 11 odst. 3 o. s. ?.

Michal Skrejpek
Commercium inter gentes

Josef Staša
Cel?eprávní procesní mix po cesku

Pavel Svoboda
Trnitá cesta ke kodexu unijního správního práva procesního

Pavel Šturma
Pojem due diligence v mezinárodním investicním právu

Zbynek Švarc
Odpovednost dopravce za škodu v mezinárodní silnicní preprave zboží

Michal Tomášek
Nejpríznivejší sudište japonských šógunu

Aukje A.H. van Hoek
The Declaratory Judgment—between Remedy and Procedural Technique

Spyridon Vrellis
Family Reunification in Greek Immigration Law

Marta Zavadilová
Kulhající manželství osob stejného pohlaví

For further information see here.

One Afghanistan-based company sues another in commercial court in Afghanistan. The plaintiff wins at trial. The Afghanistan Supreme Court reverses. It orders the parties to resolve their dispute in the United States. The plaintiff files suit in the United States. Chaos ensues.

This may sound like an unlikely scenario. It is, however, a concise description of the facts presented in Nawai Wardak Transportation Co. v. RMA Grp. Afghanistan Ltd, No. 350393 (Mich. Ct. App. 2021). This case is noteworthy for a number of reasons. It offers insights into best drafting practices for choice-of-court clauses. It illustrates how U.S. courts decide whether these clauses should be enforced. And it suggests that the Afghanistan Supreme Court takes the principle of party autonomy pretty seriously.

In July 2012, the United States Agency for International Development (“USAID”) contracted with Aircraft Charter Solutions (“ACS”) to perform aircraft flight operations out of Kabul International Airport in Afghanistan. ACS entered into a contract with RMA Afghanistan (“RMA”), an Afghanistan-based company, to supply fuel to locations throughout Afghanistan. RMA, in turn, entered into a contract with Nawai Wardak Transportation Company (“NWTC”), another Afghanistan-based company, to supply fuel in support of the contract between USAID and ACS. The contract between RMA and NWTC contained the following provision:

The parties irrevocably agree that the courts of the United States of America shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Roughly a year after the RMA-NWTC contract was signed, a dispute arose. NWTC demanded payment. RMA refused. NWTC brought a suit against RMA in commercial court in Afghanistan and won a judgment. The Supreme Court of Afghanistan reversed the judgment of the lower court. It concluded that the case should have been dismissed because the parties had previously agreed in their choice-of-court clause to litigate all disputes in the United States.

Undeterred, NWTC filed suit against RMA in state court in Michigan. RMA immediately moved to dismiss the Michigan lawsuit on the grounds that the state court lacked personal jurisdiction over it. It argued that it had only consented to suit in federal court via the choice-of-court clause. It pointed out that that clause referred to the courts “of” the United States of America. It then argued that this language necessarily excluded state courts because these courts were only “of” the State of Michigan. They were not courts of the United States as a whole.

NWTC responded to this argument by pointing out that the case could not be heard in federal court because those courts lacked subject-matter jurisdiction on the facts presented. If the clause were interpreted the manner suggested by RMA, the plaintiff contended, then the choice-of-court clause would be rendered a nullity because no court in the United States could hear the claim and it would be deprived of a remedy altogether.

The state trial court in Michigan ruled in favor of RMA and dismissed the case. This decision was then appealed to the Court of Appeals of Michigan. That court acknowledged that “the dictionary definition of ‘of’ supports that, while Michigan courts may be in the United States, they are not of the United States.” The court then went on to conclude, however, that dictionary definitions are not conclusive:

We are not constrained to follow dictionary definitions when interpreting a contract, and the effect of interpreting the forum-selection clause to refer exclusively to federal courts is to deprive both parties of a forum in which to resolve their contract disputes. In other words, for either party to have had a legal remedy for the other party’s failure to perform under the subcontract, the parties must have intended “courts of the United States of America” as a geographical designation encompassing both federal and state courts. Any other reading of the forum-selection clause would render it nugatory, which is to be avoided when interpreting contracts.

The court of appeals then considered the defendant’s argument that if the clause was interpreted to refer to any state court in the United States, it would become so “overbroad and so lacking in specificity” that “enforcing it would be unreasonable and unjust.” The court held that this argument had not been fully developed in the proceedings below. Accordingly, it remanded the case for further consideration by the lower court.

This case presents a number of interesting issues relating to choice-of-court clauses. The first has to do with contract drafting. As a matter of best practice, it is better to name a specific U.S. state in which a suit must be brought rather than the United States as a whole. If the clause selects the nation as a whole, however, it is better to select the courts “in” in the United States rather than courts “of” the United States to make clear that the suit may be brought in either state or federal court.

The second issue relates to clause enforcement. U.S. courts routinely decline to give effect to choice-of-court clauses selecting courts that lack subject-matter jurisdiction to hear the dispute. If the chosen forum lacks the power to resolve the case, these courts reason, the parties may sue wherever they want. The Court of Appeals of Michigan recognized this fact and rightly rejected the defendant’s arguments that would have produced a contrary result.

The third issue relates to the need for specificity in identifying the chosen forum. Under ordinary circumstances, a clause selecting the courts of “any” U.S. state would not be enforceable because it does not clearly identify where the suit may proceed. In the unique facts presented in the case described above, however, the lack-of-specificity argument is unlikely to carry the day because, if accepted, it would result in no court being able to hear the dispute.

Finally, it is important to note that the State of Michigan has adopted a statute that clearly spells out when its courts should and should not give effect to choice-of-court clauses. This is unusual. Only three other U.S. states—Nebraska, New Hampshire, and North Dakota—have adopted similar statutes based on the Model Choice of Forum Act. Judges in the remaining U.S. states apply judge-made common law to decide the issue of enforceability. The Michigan approach has a lot of recommend to it because it provides a clear, concise, and unchanging set of factors for the courts to consider when analyzing this issue.

The American Association of Private International Law (ASADIP) will be holding its annual XIV conference entitled “Private International Law and Modern Technologies” on 4-5 November 2021 for the first time online.

There is a full website dedicated to this conference, click here.

The Conference will be mostly in Spanish (with a few exceptions) but simultaneous English-Spanish interpretation will be provided on the first day of the conference, which has been made possible thanks to the Organization of American States (OAS).

The programme is available here. Many international organisations will take part of this conference, notably the OAS, UNCITRAL, HCCH, and UNIDROIT.

The Conference has many interesting panels but perhaps it is worth noting the one taking place on Thursday 4 November at 14:15 – 16:00 h (Argentinean time, 18:15 – 20:00 CET time) – PANEL II – “Blockchain, contratos inteligentes y Derecho internacional privado” (Blockchain, intelligent contracts and Private International Law), where Giesela Rühl, a conflictoflaws.net editor and former general editor, will be participating along with Matthias Lehmann, Luis Ernesto Rodríguez Carrera and Alfonso Ortega Giménez. As previously indicated, simultaneous English-Spanish interpretation will be provided on that day.

The Conference is free of charge and no previous registration is required. The platform that will be used is KUDO and there are four links that have been provided to join the conference, one for each session. Participants will be allowed as “spectators” and their cameras and microphones will be deactivated but it will nonetheless be possible to use the chat function with the moderator to ask questions.

To join each session, participants must click on the provided link (for the specific session) and enter their full name and their professional affiliation. For more information on how to join, click here and see below.

First session (morning) / Thursday 4 November
Hora: 9:45 am a 1:00 pm (Horario Argentina)
https://live.kudoway.com/br/110112440372
Meeting ID: 110112440372

Second session (afternoon) / Thursday 4 November
Hora: 2:15 pm a 5:30 pm (Horario Argentina)
https://live.kudoway.com/br/110111239295
Meeting ID: 110111239295

Third session (morning) / Friday 5 November
Hora: 9:45 am a 2:00 pm (Horario Argentina)
https://live.kudoway.com/br/110115267689
Meeting ID: 110115267689

Fourth Session (afternoon) / Friday 5 November
Hora: 3:00 pm a 5:30 pm (Horario Argentina)
https://live.kudoway.com/br/110115948325
Meeting ID: 110115948325

On 27 October 2021, the Supreme Court of the United Kingdom delivered its ruling in Kabab-Ji SAL (Lebanon) (Appellant) v Kout Food Group (Kuwait) (Respondent) ([2021] UKSC 48).

At issue was again the law applicable to arbitration agreements. In Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb“, the court had addressed the issue of the law governing the validity and scope of an arbitration agreement before any arbitration had taken place. This case is concerned with the question of which law governs the validity of the arbitration agreement in the different context where the arbitration has already taken place and enforcement proceedings are brought in England.

The appellant (“Kabab-Ji”), a Lebanese company, entered into a Franchise Development Agreement (“FDA”) with Al Homaizi Foodstuff Company (“Al Homaizi”), a Kuwaiti company, granting Al Homaizi a licence to operate its restaurant franchise in Kuwait for ten years. In 2005, Al Homaizi became a subsidiary of the respondent, Kout Food Group (“KFG”), following a corporate reorganisation. A dispute arose under the FDA and linked Franchise Agreements, which Kabab-Ji referred to arbitration under the rules of the International Chamber of Commerce in Paris. The arbitration was commenced against KFG only, not Al Homaizi.

KFG argued that it was not a party to the FDA, the arbitration agreements contained in the FDA, or the Franchise Agreements, and that they took part in the arbitration under protest. The majority arbitrators found that, applying French law, KFG was a party to the arbitration agreements. They also found that, applying English law, KFG was an additional party to the FDA by “novation by addition” and was in breach of the FDA and linked agreements. They made an award against KFG for unpaid licence fees and damages in the principal sum of US$6.7 million. KFG applied to the Paris Court of Appeal to set aside the award. Soon afterwards, Kabab-Ji issued proceedings in the Commercial Court in London to enforce the award. KFG made a cross application for an order that recognition and enforcement be refused.

On a trial of preliminary issues relating to the FDA (which would be determinative of the like issues arising under the linked agreements), the Commercial Court held that the validity of the arbitration agreement in the FDA was governed by English law and that, subject to a point left open, as a matter of English law KFG was not a party to the FDA or the arbitration agreement. The court postponed making a final decision on enforcement pending the decision of the Paris Court of Appeal. Both parties appealed to the Court of Appeal which upheld the judge’s decision, save that it held that the judge should have made a final determination. It held that that there was no real prospect of it being shown that KFG became a party to the arbitration agreement and that summary judgment should be given refusing recognition and enforcement of the award.

Kabab-Ji appeals to the Supreme Court.

The Supreme Court unanimously dismisses the appeal on all issues. It holds: (i) that the arbitration agreement is governed by English law (the “choice of law issue”); (ii) that in English law there is no real prospect of a court finding that KFG became a party to the arbitration agreement (the “party issue”); and (iii) that, procedurally, the Court of Appeal was right to give summary judgment refusing recognition and enforcement of the award (the “procedural issue”). Lord Hamblen and Lord Leggatt give the sole joint judgment, with which the other Justices agree.

On the choice of law issue, the Court rules that the recognition and enforcement of foreign arbitral awards is governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the Convention”), which contains provisions that have been transposed into English law by Part II of the Arbitration Act 1996 (the “1996 Act”). This provides a limited and exclusive list of grounds on which the recognition and enforcement of an award may be refused. The grounds relevant to this case are (i) that the award is based on an invalid arbitration agreement and (ii) that the award has been set aside or suspended by the competent authority of the country in which, or under the law of which, it was made. Because the Paris Court of Appeal, the competent authority in this case, has not annulled the award, KFG’s only ground for resisting enforcement is the alleged invalidity of the arbitration agreement [10]-[16].

As discussed in the Supreme Court’s recent judgment in Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb“ [2020] USKC 38 at para 128, Article V(1)(a) of the Convention establishes two uniform international conflict of laws rules. First, that the validity of the arbitration agreement is governed by “the law to which the parties subjected it” – i.e. the law chosen by the parties. Second, where no law is chosen, the applicable law is that of “the country where the award was made” – generally the place of the arbitration seat. When assessing whether an agreement exists or is valid the Court uses the law that would apply if it exists or is valid [26]-[27]. As stated in Enka at para 129, a general choice of law to govern a contract containing an arbitration clause will normally be a sufficient “indication” of the law to which the parties subjected the arbitration agreement for the purposes of Article V(1)(a) [35]-[36]. The principles for identifying the applicable law should be the same whether the question is raised before or after an award has been made.

Applying these principles to the present case, the effect of the relevant clauses in the FDA is plain. The FDA’s governing law clause provides that “this Agreement” shall be governed by English law and this clearly extends to the arbitration agreement [39].

Kabab-Ji advanced two arguments against this conclusion. First, that a reference in the FDA to the arbitrator applying “principles of law generally recognised in international transactions” (i.e. UNIDROIT Principles of International Commercial Contracts) meant that the arbitration clause was governed by a composite of national law and international principles, which did not qualify as “law” for the purposes of the Convention and the 1996 Act. The present case, however, is concerned with what law governs the validity of the arbitration agreement, not the rules of law to be applied by the arbitrators to the merits of the dispute [40-48]. Second, that because the parties should be presumed to intend that the arbitration agreement will be valid and effective, where applying English law would invalidate that agreement, one should infer that the choice of English law does not extend to it. The validation principle, however, is a principle of contractual interpretation which presupposes that an agreement has been made. It does not apply to questions of validity in the expanded sense in which that concept is used in article V(1)(a) of the Convention and section 103(2)(b) of the 1996 Act to include an issue about whether any contract was ever made between the parties to the dispute [49-52].

Magdalena Pfeiffer, Jan Brodec, Petr Bříza and Marta Zavadilová have edited a collection of essays in honour of professor Monika Pauknerová, recently published by Wolters Kluwer.

The 47 contributions in this liber amicorum cover a broad range of issues in the field of private international law and international trade law. Some are written in English, others in Czech and in Slovak.

Contributos include Nadia de Araujo and Marcelo De Nardi, Jürgen Basedow, Paul Beaumont and Jayne Holliday, Alexander J. Bělohlávek, Karel Beran, Michael Bogdan, Jan Brodec, Petr Bříza, Giuditta Cordero-Moss, Elizabeth B. Crawford and Janeen M. Carruthers, Stanislava Černá, Lucie Dolanská Bányaiová, Kateřina Eichlerová, Richard Fentiman, Zuzana Fišerová, Cristina González Beilfuss, Trevor Hartley, Elena Júdová, Zdeněk Kapitán, Catherine Kessedjian, Zdeněk Kühn, Ivana Kunda, Tuula Linna, Alena Macková and Filip Crnčević, Peter Mankowski, Milan Müller, Hans Ulrich Jessurun d’Oliveira, Jan Ondřej, Daniel Patěk, Marta Pertegás Sender, Magdalena Pfeiffer, Fausto Pocar, Helena Prášková, Ilaria Pretelli, Elena Rodríguez Pineau, Naděžda Rozehnalová, Květoslav Růžička, Pavel Simon, Michal Skřejpek, Josef Staša, Pavel Svoboda, Pavel Šturma, Zbyněk Švarc, Michal Tomášek, Aukje A.H. van Hoek, Spyridon Vrellis, and Marta Zavadilová.

The full table of contents can be found here.

See here for more information.

Written by Huiyin Zhang, PhD Candidate at the Wuhan University Institute of International Law

China enacted the Personal Information Protection Law (PIPL) at the 30th Session of the Standing Committee of the 13th National People’s Congress on August 20, 2021. This is the first comprehensive national law in China concerning personal information protection and regulating the data processing activities of entities and individuals. PIPL, the Cyber Security Law (came into force on June 1, 2017) and Data Security Law (promulgated on September 1, 2021) constitute the three legal pillars of the digital economy era in China.

PIPL includes eight chapters and 74 articles, covering General Provisions, Rules for Processing Personal Information, Rules for Cross-border Provisions of Personal Information, Rights of Individuals in Activities of Processing Personal Information, Obligations of Personal Information Processors, Departments Performing Duties of Personal Information Protection, Legal Liability and Supplementary Provisions. This note focuses on its extraterritorial effect.

1.Territorial Scope

Article 3 of the PIPL provides:

“This Law shall apply to activities conducted by organizations and individuals to control the personal information of natural persons within the territory of the People’s Republic of China.

This Law shall also apply to activities outside territory of the People”s Republic of China to handle the personal information of natural persons within the territory of the People’s Republic of China under any of the following circumstances:

a . personal information handling is to serve the purpose of providing products or services for natural persons within the territory of the People’s Republic of China;

1. personal information handling is to serve the purpose of analyzing and evaluating the behaviors of natural persons within the territory of the People’ s Republic of China; or
2. having other circumstances as stipulated by laws and administrative regulations.”

According to paragraph 1 of Art 3, PIPL applies to all data processing activities of personal information carried out in China. If foreign businesses processes or handles the personal information within the territory of China, in principle, they shall comply with the PIPL. It indicates that this clause focuses on the activities of processing or handling personal information in the territorial of China, especially the physical link between the data processing or handling activities and Chinese territory.

According to paragraph 2 of Art 3, the PIPL shall be applicable to activities outside the territory of China in processing or handling the personal information within China under some circumstances. As provided in Art 53, “personal information handlers outside the borders of the People’ s Republic of China shall establish a dedicated entity or appoint a representative within the borders of the People’ s Republic of China to be responsible for matters related to the personal information they handle”. Notably, this clause focuses on the physical location of the data processors or handlers rather than their nationality or habitual residence.

PIPL has extraterritorial jurisdiction to data processing or handling activities outside the territorial of China under 3 circumstances as provided in paragraph 2 of Art 3 of the PIPL. This is the embodiment of the effect principle, which derives from the objective territory jurisdiction and emphasizes the influence or effect of the behavior in the domain. If the purpose is to provide products or services to individuals located in China, or to analyze the behaviors of natural person in China, the PIPL shall be applicable. Crucially, the actual “effect” or “influence” of data processing or handling is emphasized here, i.e. when it is necessary to determine what extent or what requirements are met of the damage caused by the above-mentioned data processing or handling activities outside the territorial of China, Chinese courts may reasonably exercise the jurisdiction over the case. Obviously, it reflects the consideration of the element of “brunt of harm”. However, if the “effect” or “influence” is not specifically defined and limited, there will be a lot of problems. It is important to figure out exactly whether data processors or handlers outside the territorial of China are aware of the implications of their actions on natural person within China and whether the “effect” or “influence” of the data-processing behaviors are direct, intentional and predictable.

The PIPL explicitly states its purported extraterritorial jurisdiction for the first time and insists on the specific personal jurisdiction and the effect principle. It is mainly because the PIPL is formulated “in order to protect personal information rights and interests, standardize personal information handling activities, and promote the rational use of personal information”, but in the process of legal protection of personal information of natural person, there are a lot of challenges, such as the contradiction between the application of traditional jurisdiction, the virtual nature of personal information and so on. In this sense, all jurisdiction of the PIPL, whether territorial jurisdiction or personal jurisdiction or effect principle, are all further supplements for the existing personal information protection regime previously provided.

2.PIPL and GDPR: a Comparative Study

The provisions on jurisdiction of GDPR are mainly concentrated in Art 3 and Art 23, 24, 25, 26, 27 of preambular 2. In Art 3, paragraph 1 and 2 identified “establishment principle” and “targeting principle” and paragraph 3 provides “This regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law”.

A. Establishment Principle

Under paragraph 1 of Art 3, GDPR applies to “the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.” It set the “establishment criterion”, which has the dual characteristics of territorial jurisdiction and extraterritorial jurisdiction.

Compared with establishment criterion in GDPR, the PIPL indicates that personal information handlers outside the territorial of China shall establish a dedicated entity or appoint a representative within China as previously mentioned. It highlights the significance and necessity of establishing an entity when foreign data handlers process the personal information of national persons outside China under circumstance in paragraph 2 of Art3 of PIPL.

B. Targeting Principle

Compared with targeting criterion in GDPR, PIPL has many differences. Paragraph 2 of Art 3 of the GDPR clearly states that for data processors and controllers that do not have an establishment in the EU, GDPR will apply in two circumstances. Firstly, as stated in Art 3 of GDPR, the processing activities relate to “the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union” (Art 2 GDPR). It seems too abstract to give the definition and processing method of data processor and controller’ s behavior intention. Art 23 of the GDPR provides the clarification that “it should be ascertained whether it is apparent that the controller or processor envisages offering services to data subjects in one or more Member States in the Union.” The key factor to assess whether the processor or controller “targets” the EU is whether the behaviour of the offshore data processors or controllers indicates their apparent intention to provide goods or services to data subjects in the EU. This is an objective subjective test.

In contrast, Art 3 of the PIPL states that the law shall apply when the data processor processes personal information “to serve the purpose of providing products or services for natural persons within the territory of the People’ s Republic of China”. It indicates that the purpose of data processor or controller outside China is to provide a product or service to a domestic natural person in China. The key to the application is not only about whether it has purpose, but also about whether they have processed personal information of a natural person in China.

Secondly, the procession activities are in related to “the monitoring of their behaviour as far as their behaviour takes place within the Union”. It requires both the data subject and the monitored activity be located within the EU. “Monitoring” shall be defined in accordance with Article 24 of the GDPR preamble. This provision does not require the data processors or controllers to have a corresponding subjective intent in the monitoring activity, but the European Data Protection Board ( Hereinafter referred to as EDPB) pointed out that the use of the term “monitoring” implied that the data controllers or processors had a specific purpose, namely to collect and process the data. Similarly, Art 3 of the PIPL also applies to activities outside China dealing with personal information of natural persons within China, if the activities are to analyse and evaluate the acts of natural persons within China. The meaning of “analysis and evaluation” here is very broad and seems to cover “monitoring” activities under the GDPR.

Furthermore, paragraph 3 of Art 3 of the GDPR provides: “This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law.” It suggests that the data processor or controller does not have an establishment in the territory of the EU and there is no circumstances under paragraph 2 of Art 3 of the GDPR. Due to that the international law applies EU member state law in the area where the numerical controller is located, this law shall apply. This condition is primarily aimed at resolving the issue of extraterritorial jurisdiction over data processing or controlling that takes place in EU without an establishment. This condition is similar to Directive 95/46 of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. The similar condition is not included in the PIPL, which instead shall apply to other circumstances “as stipulated by laws and administrative regulations”.

C. Passive personality principle

Under the passive personality principle, a state has prescriptive jurisdiction over anyone anywhere who injures its nationals or residents. As previously mentioned, paragraph 2 of Art 3 of the GDPR states that although the personal data processors or controllers are not established in the EU, EU still applies the laws of member states in accordance with public international law. Art 25 of the preamble of GDPR provides examples of such situations which may include a Member State’s diplomatic mission or consular post.

To some extent, GDPR includes all the personal data processing activities involving natural persons situated in the EU area into its jurisdiction, which is a variation of the passive nationality principle. It is because EU treats the individual data right as a fundamental human right and aims to establish a digital market of the unified level of protection. PIPL adopts the similar practice by adopting the passive nationality principle to protect Chinese citizens and residents.

3.Conclusion

The promulgation of PIPL shows that China recognizes the extraterritorial effect of data protection law. The exploration of legislation not only has the meaning of localization, but also contributes to the formulation of data rules for the international community. It marks an important step towards China’ s long-term goal of balancing the preservation of national sovereignty, the protection of individual rights and the free flow of data across borders.

This is a case note on the very recent Nigerian Court of Appeal’s decision that recognised the immunity of the President of the Commission of ECOWAS (Economic Community of West African States) from being impleaded in Nigerian courts.[1]

In Nigeria, the applicable law in respect of diplomatic immunities and privileges is the Diplomatic Immunities and Privileges Act, which implements aspects of the Vienna Convention on Diplomatic Relations 1961 (the “Vienna Convention”). Under the Diplomatic Immunities and Privileges Act, foreign envoys, consular officers, members of their families, and members of their official and domestic staff are generally entitled to immunity from suit and legal process.[2] Such immunities may also apply to organisations declared by the Minister of External Affairs to be organisations, the members of which are sovereign powers (whether foreign powers or Commonwealth countries or the Governments thereof).[3]

Where a dispute arises as to whether any organisation or any person is entitled to immunity from suit and legal process, a certificate issued by the Minister stating any fact relevant to that question shall be conclusive evidence of that fact.[4]

In a very recent case the claimant/respondent who was a staff of the Commission of ECOWAS sued the defendant/appellant in the National Industrial Court in Nigeria for orders declaring his suspension from office by the Commission unlawful and a violation of ECOWAS Regulations, and damages from the defendant/appellant for publishing what the claimant/respondent considered a “libelous” suspension letter. The defendant/appellant responded to the suit with a statement of defence and equally filed a motion of notice objecting to the jurisdiction of the National Industrial Court on grounds of diplomatic immunity he enjoys from proceedings in municipal courts of Nigeria by virtue of the Revised Treaty of ECOWAS, General Convention on Privileges and Immunities of ECOWAS and the Headquarters Agreement between ECOWAS and the Government of the Republic of Nigeria. He also placed reliance on Principles of Staff Employment and ECOWAS staff Regulations. In addition he attached a certificate from Nigeria’s Minister of Foreign Affairs which acknowledged his diplomatic immunity.

The trial court (Haastrup J) held that it had jurisdiction and dismissed the preliminary objection of the defendant/appellant. It relied on Section 254C (2)[5] of the 1999 Constitution (as amended in 2011)  and Order 14A Rule 1 (1)[6] of the National Industrial Court of Nigeria(Civil Procedure) Rules, 2017 to hold that the National Industrial Court had jurisdiction to resolve all employment matters in Nigeria, including cases that have an international element.

The Nigerian Court of Appeal unanimously allowed the appeal. Ugo JCA in his leading judgment held as follows:

“So this Certificate of the Minister of Foreign Affairs of Nigeria attached to the affidavit of Chika Onyewuchi in support of appellant’s application/objection before the trial National Industrial Court for the striking out of the suit is sufficient and in fact conclusive evidence of the immunity claimed by appellant. That also includes the statement of the Minister in paragraph 2 of the same certificate that the ECOWAS Revised Treaty of 1993 was “ratified by the Federal Republic of Nigeria on 1st July, 1994,” thus, putting paid to the trial Judge’s contention that appellant needed to prove that the said treaty was ratified by Nigeria for him to properly claim immunity.
Even Section 254C(2) of the 1999 Constitution of the Federal Republic of Nigeria which states that ‘Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith,’ does not by any means have the effect of conferring jurisdiction on the National Industrial Court over diplomats. In fact Section 254C(2) of the 1999 Constitution, as was correctly argued by Mr. Obi, only confers on the National Industrial Court power to apply international conventions, protocols and treaties ratified by Nigeria relating to labour, employment, workplace, industrial relations and matters connected therewith while exercising its jurisdiction over persons subject to its jurisdiction. Diplomats who enjoy immunity from Court processes from municipal Courts in Nigeria like the Respondent are not such persons. Incidentally, the apex Court in African Reinsurance Corporation v. Abate Fantaye (1986) 3 NWLR (PT 32) 811 in very similar circumstances conclusively put to rest this issue of immunity from proceedings in municipal Courts enjoyed by persons like appellant. That case was cited to the trial Judge so it is surprising that she did not make even the slightest reference to it in expanding her jurisdiction to appellant who has always insisted, correctly, on his immunity. In truth, the lower Court did not simply expound its jurisdiction but attempted to expand it too. A Court is competent when, among others, the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction…
Appellant’s diplomatic status and his consequent immunity from proceedings in the Courts of this country was such a feature that prevented the National Industrial Court from exercising jurisdiction over him and Suit No. NICN/ABJ/230/2019 of respondent; it was therefore wrong in holding otherwise and dismissing his preliminary objection…”[7]

Adah JCA in his concurring judgment held as follows:

“The Appellant, being an international organization enjoys immunity from suit and legal process, both by virtue of Section 11 and 18 of the 1962 Act, and Certificate issued by the Minister of External Affairs. Where a sovereign or International Organization enjoys immunity from suit and legal process, waiver of such immunity is not to be presumed against it. Indeed, the presumption is that there is no waiver until the contrary is established. Thus, waiver of immunity by a Sovereign or International Organization must be expressly and positively done by that Sovereign or International Organization.

In the instant case, the appellant from the record before the Court is an international organization. The Foreign Affairs Minister of Nigeria had given a certificate to indicate the immunity of the appellant. Exhibit CA issued by the Ministry of Foreign Affairs on 16th January, 2020 in paragraphs 2 and 3 thereof state as follows:

“2. The ministry of Foreign Affairs wishes to reaffirm the status of the ECOWAS Commission as an international organization and the immunity and privileges of the Commission and its staff members with exception of Nigerians and holders of Nigeria permanent residency from Criminal, Civil and Administrative proceedings by virtue of ECOWAS Revised Treaty by of 1993, which was ratified by the Federal Republic of Nigeria on 1st July, 1994.
3. The Headquarters Agreement between the ECOWAS Commission and the Federal Republic of Nigeria also confers immunity on officials and other employees of ECOWAS by virtue of Article VII (3) (C) of the Agreement.”

It is very clear therefore, that the appellant is covered by the Diplomatic Immunities and Privileges Act and is not amenable to the jurisdiction of the Municipal Courts. The fact that their base is in Nigeria or that Nigeria is the Host Country of the appellant does not make the appellant subserviate to the jurisdiction of Nigerian Courts. It is therefore, the law as stated lucidly in the leading judgment of my learned brother that the lower Court has no jurisdiction to entertain the claim against the appellant…”[8]

This is not the first time Nigerian courts have dealt with the issue of impleading a diplomat or foreign sovereign before the Nigerian court.[9] The decision of the trial judge was surprising in view of the weight of authorities from the Nigerian Supreme Court and Court of Appeal on the concept of diplomatic immunities in Nigeria. The claimant/respondent may have argued that matters of employment qualify as waiver of diplomatic immunity, but this position has never been explicitly endorsed by Nigerian courts. The Supreme Court of Nigeria has only accepted the concept of waiver in situations where the person claiming immunity entered into commercial transactions with the claimant.[10]

Looking at the bigger picture how does an employee who has been unfairly dismissed by a diplomatic organisation gain access to justice in Nigerian and African courts? Should the law be reformed in Nigeria and African countries to take into account the interest of employees as weaker parties?

[1] President of the Commission of ECOWAS v Ndiaye (2021) LPELR-53523(CA).

[2]Diplomatic Immunities and Privileges Act, Cap D9 LFN 2004 ss 1, 3-6.

[3]ibid, ss 11 and 12.

[4]ibid, s 18.

[5] ‘Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.’

[6] It provides that:

1.—(1) Where an action involves a breach of or non-compliance with an international protocol, a convention or treaty on labour, employment and industrial relations, the Claimant shall in the complaint and witness statement on oath, include,

(a) the name, date and nomenclature of the protocol, convention or treaty ; and

(b) proof of ratification of such protocol, convention or treaty by Nigeria.

(2) In any claim relating to or connected with any matter, the party relying on the International Best Practice, shall plead and prove the existence of the same in line with the provisions relating to proof of custom in the extant Evidence Act.”

[7] President of the Commission of ECOWAS v Ndiaye (2021) LPELR-53523(CA) 19-20.

[8] Ibid 24-26.

[9] See generally RF Oppong and CSA Okoli, Private International Law in Commonwealth Africa (2nd edition) (chapter 7).

[10]African Reinsurance Corporation v JDP Construction (Nig) Ltd (2007) 11 NWLR 224, 234-5 (Akintan JSC)..

The University of Turin and ILO International Training Centre’s Master in International Trade Law are pleased to announce the 2021/2022 Programme’s inaugural keynote. The event will take place on 5 November 2021, from 3.00 to 5.00 P.M. CET, on Zoom (at the following link: https://itcilo-org.zoom.us/j/85085505961?pwd=U2dLRitJTzUzYzlJUHAyM0NzclNydz09#success). The keynote will deal with ‘Gender and Trade Law’ and it will be delivered by Amrita Bahri, Assistant Professor, ITAM; Co-Chair, WTO Chair Program; Trade and Gender Consultant, International Trade Centre.

Please see the event’s flyer below: