Droit international général

Vegesentials Ltd & Anor v Shanghai Commercial & Savings Bank Ltd [2024] EWHC 7 (Ch) is a judgment, as Matthew Hoyle also notes, without reference to authority, and it surprisingly succinctly deals with the applicable law issue for misrepresentation under the Rome II Regulation (readers will be aware that Rome II is what used to be called retained EU law and is now ‘assimilated’ law).

Claimants seek damages from the defendant bank for fraudulent misrepresentations set out in a letter signed and stamped by the bank’s former corporate banking relationship manager of the Chung-Li Branch in Taiwan, to the effect that potential investors had free funds to invest £20 million in a new product, ‘FibreWater’ (chicory inulin, with testified health effects; FibreWater does not need to be chilled, and has a longer shelf life, and higher margins, than fruit and vegetable drinks) which the first claimant was developing. The second claimant was incorporated for the purpose of this claim, and was assigned the first claimant’s rights in the product. Claimant also entered into a sponsorship agreement with the tennis player Sir Andy Murray for him to sponsor FibreWater.

It is now conceded by the defendants that those investors, companies incorporated in Hong Kong and Anguilla respectively, had no such funds and that the manager made the fraudulent misrepresentations knowing them to be false and intending that it should be relied upon by the claimant. No funds were forthcoming, and FibreWater did not proceed. The claimant says that had the misrepresentations not been made, it would have continued to engage with alternative investors, and there was a real chance that investment would have been secured so as to allow the product to be successfully produced, marketed and sold and to become profit making.

Fraudulent misrepresentations are conceded, liability is not. The bank raises issues as to the applicable law, whether the claimant in fact relied on the misrepresentation, whether the bank is vicariously liable, as to causation and as to quantum.

Article 4 Rome II reads

“1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.

3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”

Claimant submits that the damage it claims to have suffered occurred in E&W because the share purchase agreement was governed by the law of England and Wales and provided for the payment of monies into the claimant’s bank account with Barclays in E&W. Any monies paid by the investors would also have been paid into that account. The claimant is incorporated in E&W and conducted most of its business there. Most of the lost profits claimed arise from the supply to UK retailers. Finally the sponsorship agreement with Sir Andy Murray is governed by English law.

Claimant also submits that the default rule is not displaced by A4(3), because the fraud relied on is not “manifestly more closely connected” with Taiwan. The claimant had no pre-existing relationship with the bank.

The bank submits that the fraud was part of a larger scheme and was planned, orchestrated, and implemented in Taiwan, and there are indications of such a larger scheme in the subsequent criminal proceedings against the manager. Jarman J [32] dismisses the relevance of this, pointing out that “it is not clear precisely who was involved in planning the scheme or where they were located at the time. All that is clear is that [the manager’s] involvement was at a time when he was based in Taiwan.” The bank further submits that the core misrepresentative Letter was concerned with a bank account in Taiwan. The judge again dismisses this, saying [32] “However, the ultimate purpose of [the letter] was to confirm the ability of the investors, incorporated elsewhere, to transfer monies in Pounds and Euros for a shareholding in a company incorporated here to develop business in the UK and Europe.”

[33] the conclusion on applicable law is

In my judgment, the claimant’s submissions on this point are to be preferred. Under Article 4(1) the damage relied upon occurred in this jurisdiction. Although some of the facts relied upon arose in Taiwan, as indicated above, it is not the case that the fraud was manifestly more closely connected with Taiwan within the meaning of Article 4(3). Accordingly the applicable law is that of England and Wales.

Most cases concerning fraudulent misrepresentation concern subsequent acting upon the fraud: see eg Abu Dhabi Commercial Bank Pjsc v Shetty & Ors: In the case of a misrepresentation or fraud, the locus damni is held to be the place where that misrepresentation is acted upon; or Avonwick Holdings: not so much for the (poor) A4(1) analysis in that judgment but rather the A4(3) displacement, and to some degree the potential for the lex contractus (of the contract said to have been missed) to play a role.

I feel there is more to be said about both the A4(1) and 4(3) application than succinctly touched upon in the judgment, in cases where the misrepresentation leads to missed opportunities, rather than to regretted action.

Geert.

EU Private International Law, 4th ed, 2024, 2.443.

Ia applicable law in a claim of fraudulent misrepresentation
Article 4 Rome II

Vegesentials Ltd & Anor v Shanghai Commercial & Savings Bank Ltd [2024] EWHC 7 (Ch)https://t.co/VNEe3qGd95

— Geert Van Calster (@GAVClaw) January 8, 2024

Veerle Van Den Eeckhout (working at the CJEU) has published a short article on recent CJEU case law in Private International Law matters.

The paper is entitled “CJEU case law. A few observations on recent CJEU case law.” It has been published as a contribution to the fifth volume in the series of the Dialog Internationales Familienrecht. The article sets the scene and contextualizes the findings detailed in the presentation given by the author on April 29, 2023 at the Dialog Internationales Familienrecht 2023 at the University of Münster. See also previously here on the presentation.

In essence, while presenting case law of the CJEU in PIL matters, the Author explored selected methodological aspects of reasoning employed by the Court of Justice, including deductive arguments and those aiming to ensure “consistency” within the whole system.

The Author focuses on case law of the CJEU regarding international family law but, adopting sometimes also a wider perspective, attempts to draw some considerations of relevance for EU private international law in general. Thus, also PIL dynamics unfolding outside the field of international family law were taken into account. For example, case law of the CJEU regarding the notion “cross-border” following the joined cases Parking and Interplastics (C-267/19 and C-323/19) was pointed out.

Moreover, attention was not only paid to case law of the CJEU interpreting PIL-regulations. The Author proves that issues of (international) family law may come to the CJEU in many shapes and forms. In fact, one may say that various roads lead to Luxembourg. Looking from this perspective and attempting to position case law of the CJEU in a wide context, the Author did not only include case law of the CJEU interpreting a PIL-regulation such as the Brussels II bis regulation, but also pointed out case law of the CJEU such as the Coman case (C-673/16) and the Pancharevo case (C-490/20), as well as case law of the CJEU regarding the law on names. Adopting a broad view, also some aspects of the case Belgische Staat (Réfugiée mineure mariée), Case C-230/21, regarding a right to family reunification based on Directive 2003/86, were considered in the analysis  – this case itself giving rise to the formulation of some observations regarding the interaction of (international) family law and migration law (in the broad sense of the word).

The PowerPoint of the presentation in Münster is available here. A version of this PowerPoint including also an extended version thereof is available here.

On SSRN, working versions of the paper are available in Dutch and in English.

Any view expressed in this presentation or in the paper discussed above is the personal opinion of the Author.

 

On 20 December 2023, the English Court of Appeal gave private international lawyers interested in the relationship between private and public international law a small Christmas treat. It delivered a unanimous judgment (Vos MR, with Popplewell and Phillips LLJ agreeing) in UK P&I Club NV v Republica Bolivariana de Venezuela. This judgment addresses the question, within the context of a state immunity dispute, of whether an anti-suit injunction is part of the court’s adjudicatory or enforcement jurisdiction.

The court first found that:

there is no widespread, representative and consistent practice of states, accepted as a legal obligation, regarding injunctions, such as to constitute a rule of international law. Specifically, there is no rule of customary international law that classifies injunctions or anti-suit injunctions as part of a state’s adjudicative jurisdiction. That means that there is no rule of customary international law to the effect that states are not immune to injunctions. Different states have different approaches… The UK is not an outlier in adopting section 13(2)(a) [of the State Immunity Act 1978]. Moreover, an anti-suit injunction is not such a special a type of injunction that puts it into any special category such as to place it within the restrictive doctrine. ([48])

The court further concluded that:

an injunction granted by a court in England and Wales is indeed a coercive order. It threatens potential criminal and financial penalties for non-compliance. That is so whether or not the order is accompanied by a warning in the form of a penal notice. No sensible injunction could be granted if the order were to make clear that there would be no criminal or financial consequences for non-compliance. That demonstrates why an anti-suit injunction is indeed coercive unlike an order for damages. An order for damages has no coercive effect until an enforcement process is initiated. An injunction has a coercive effect immediately it is ordered, because it says to the defendant that it will incur penalties if it takes any step in contravention of it. ([50])

The conclusion that anti-suit injunctions were part of the courts’ enforcement jurisdiction meant that they did not fall within the restrictive doctrine of state immunity, applicable to adjudicatory jurisdiction as part of customary international law. Instead, section 13(2)(a) of the 1978 Act (“relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property”) fell “within the range of possible rules consistent with international practices”. As a result, it was not contrary to Article 6 of the European Convention on Human Rights.

This post is part of a series regarding Colonialism and the general structure of (German) Private International Law, based on a presentation I gave in spring 2023. See the introduction here.

As mentioned in the introduction, this series does not intent to automatically pass judgment on a norm or method influenced by colonialism as inherently negative. Instead, the aim is to reveal these influences and to initiate a first engagement with and awareness of this topic and to stimulate a discussion and reflection.

The first post (after the introduction) dealt with classic PIL and colonialism. This second considers structures and values inherent in German or European law, implicitly resonating within the PIL and, thus, expanding those values to people and cases from other parts of the world. This reflects a form of universalist legal understanding that should be foreign to the PIL, yet already echoes in Savigny’s approach. This is particularly evident in the lex fori approach of characterization and the specification of habitual residence.

1. Characterization and Influence of the lex fori

Characterization is the assignment of the connecting object (Anknüpfungsgegenstand) to a conflict of laws norm. The debate on characterization methods, particularly in the first half of the 20th century, has since been resolved with the predominance of “autonomous” or “functional” characterization, integrating elements of lex fori, lex causae, and comparative  methods. The conflict rules are generally interpreted from the perspective of lex fori but with an international private law viewpoint, extending the interpretation of terms in conflict rules beyond their substantive counterparts. Nonetheless, they remain systematically rooted in domestic law, centering on the values of lex fori. This can lead to friction when system concepts from foreign law stem from entirely different value systems. Additionally, methodologically, each connecting factor has only one conflict rule, thereby being excluding concerning other connecting factors.

This can be well illustrated with a family law example. The German Civil Code (BGB) and the PIL Act (EGBGB) are based on a family concept derived from Western Christian traditions, in recent years moving away from most patriarchal values. The core family typically comprises married or cohabiting parents and their child(ren), with special forms recognized but mostly aligned or approximated to this ideal. This understanding of the nuclear family is reflected in conflict rules. Articles 13 EGBGB onwards begin with marriage and its consequences as the traditional starting point of the family. Article 17b then encompasses modern non-traditional marital forms (registered partnerships, same-sex marriage, marriage with at least one non-binary spouse). Articles 19 onwards regulate questions about parentage, parent-child relationships, and adoption as a specialized form of establishing such relationships.

Frictions may arise with fundamentally different family concepts. A striking example is the Avunculat, expressing a unique kinship between the mother’s brother and a child, which can be socially and legally equated with or even surpass or replace the relationship with the biological father. German conflict rules do not account for such kinship as Article 19 EGBGB (parentage) only covers the “natural parentage,” i.e., descent from – usually – biological parents. Potentially, the uncle-child relationship could be subsumed under Article 24 EGBGB (guardianship), given an apparent caretaking relationship. However, this results in a different connecting factor than Article 19 EGBGB, which specifies an alternative connection that potentially leads to a parentage relationship. The Avunculat illustrates that a foreign family form, not aligning with the Christian-based nuclear family, is treated differently under conflict law, despite possibly holding the same status in its culture as the nuclear family does in German law. The characterization, starting with lex fori, endeavors to assimilate foreign family forms into our value framework.

2. Habitual Residence

Traditionally, the determination of the applicable law (personal statute) for an individual is based on nationality. However, in recent decades, the connection to nationality has been increasingly replaced by the concept of habitual residence, particularly influenced by EU regulations and recent international agreements, prompting a reconsideration even within German law. Habitual residence is autonomously defined depending on the legal source, but it is generally understood as the person’s center of life, which must be of a certain duration. In Germany, it is primarily determined factually, with subjective elements playing a subordinate role.

According to prevailing doctrine in Germany and recent EU Court of Justice rulings on EU law, a person can only have one habitual residence. It is assumed that a person can have only one “actual” center of life, necessitating the determination of the “real” habitual residence in case of doubt. This approach is grounded in the societal and familial notion that a person settles with their family in one place, occasionally leaving for another place—a representation of a sedentary lifestyle. However, this contradicts lifestyles such as those of nomadic tribes, particularly outside the “Global North,” and the emerging phenomenon of “digital nomads” in the whole world. This understanding of habitual residence underscores the phenomenon, as hinted at in the Avunkulat context, that the prevalent lifestyle in Germany and Europe/the Global North is considered the standard, requiring other lifestyles to somehow fit into it.

3. Assessment

a) Characterization

Western or German world views are also imposed on foreign legal phenomena if the characterization, as is often the case, regards the lex fori not only as the starting point but at the same time as an implicit limit. Nevertheless, the key to integrating foreign legal phenomena more autonomously lies precisely in the characterization and the dispute over its method. Characterization has the starting point that the conflict rules under which the connecting factor is to be subsumed originate from the German legislator  and are therefore interpreted methodically in the same way as the (German) lex fori. However, teleological interpretation offers the possibility of moving further away from the lex fori: It involves the interpretation of the function conflict-of-law rules. Function and objective is to cover foreign legal phenomena in the same way as domestic ones. Thus, a lex fori limit is by no means as mandatory as it appears to be. Instead, a broad understanding of the system concepts of the conflict rules is possible and intended.

With regard to legal phenomena that are still little researched and little known in jurisprudence, such as the avunculat, it is advisable for courts to proceed with particular caution. If the status of the maternal uncle actually replaces that of the father, consideration should be given to understand the avunculate as part of “parentage” in Article 19 EGBGB. If his legal status complements that of the father, Art. 24 EGBGB could be more useful. Other categories, such as adoption, might also to be considered. It would be desirable if more anthropological and comparative law work and research were carried out in order to support the courts in making such determinations.

b) Habitual Residence

As far as the understanding of habitual residence in PIL is concerned, in extreme cases such as those of (digital or traditional) nomads, but also cross-border commuters, which are becoming increasingly common, it would be possible to deviate from the principle that there is only one centre of life and thus one habitual residence. If two habitual residences were affirmed as the starting point in these cases, the next step would be to ask whether the specific rule requires only one habitual residence. Such a need can be affirmed, for example, in the case of jurisdiction rules in Article 3 Brussels IIter Regulation. In this case, preference should be given to the habitual residence that is even more “closely” linked to the connecting factor. This corresponds to the judgement to find only “the” habitual residence of the majority.

However, if the rule does not have a particular need for there to be only one habitual residence, both residences should count equally. If, for example, a rule is intended to express a common connection between two spouses to a legal system, as is often the case in international family law (e.g. Art. 5, 8 Rome III Regulation; Art. 22, 26 Brussels I Regulation; Art. 14 I and II EGBGB), the habitual residence of both spouses at one of the relevant connecting factors can easily be used as a basis, be it in a case of party autonomy, be it in a case of objective connecting factors.

by Patrick Ostendorf (HTW Berlin)

The principle of party autonomy gives the parties to a contract the opportunity to determine the applicable substantive (contract) law themselves by means of a choice-of-law clause – and thus to avoid (simple) mandatory rules that would otherwise bite. According to EU Private International law, however, the choice of the applicable contract law requires a genuine international element: in purely domestic situations, i.e. where “all other elements relevant to the situation at the time of the choice” are located in a single country, all the mandatory rules of this country remain applicable even if the parties have chosen a foreign law (Art. 3 (3) Rome I Regulation).

In the absence (for the time being) of relevant case law from the European Court of Justice, the precise requirements of this threshold are not yet settled. However, in a recent judgment, the German Federal Court of Justice (Bundesgerichtshof) has – seemingly for the first time – considered the requirements for a sufficient international element in this respect.

The decision concerned a lease agreement for an apartment in Berlin which was rented out by the embassy of a foreign state (the embassy acting on behalf of the foreign ministry of that state, which was the owner of the apartment). The lease contained a choice-of-law clause in favor of the law of that state and was drafted in the language of that state.

As the lease was entered into for a fixed term, the landlord informed the tenant shortly before the expiry of the lease that it would not be renewed and asked them to vacate the premises accordingly. The tenant in turn invoked section 575(1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB), according to which a fixed-term lease agreement is deemed to have been concluded for an indefinite period of time if the landlord has failed to inform the tenant in writing of the reasons for the fixed term at the time the lease was concluded.

The Bundesgerichtshof concludes that these facts constitute a purely domestic situation within the meaning of Art. 3 (3) of the Rome I Regulation; therefore section 575 BGB (a mandatory provision of the German Civil Code) applies notwithstanding the governing law clause in the contract providing otherwise. Accordingly, the request by the claimant to grant eviction has to be rejected.

As a starting point for its analysis, the Court emphasised that the genuine international element required for a choice of law must be of some significance and weight for the specific transaction in question (based on the principles of the applicable conflict-of-laws rules, in particular the connections with a foreign state referred to in Art. 4 Rome I Regulation), whereas subjective references to a foreign law based solely on the agreement of the parties will generally not suffice.

Even the fact that a foreign state was a party to the lease agreement does not, in the view of the Court, change this, since the embassy, acting both as the agent of the foreign state and as the institution responsible for the further implementation of the lease agreement, constitutes a branch within the meaning of Art. 19(2) of the Rome I Regulation (“If the contract is concluded in the course of the business of a branch, agency or other establishment, or if, under the contract, performance is the responsibility of such a branch, agency or establishment, the place where the branch, agency or establishment is situated shall be treated as the place of habitual residence”). It follows that not only the tenant’s but also the landlord’s habitual residence is deemed to be in Germany. Finally, according to the Court, the fact that the apartment in question was primarily used for the accommodation of embassy staff (although not in the present case), that the contract was concluded in a foreign language and that the tenant was (also) a foreign national is not sufficient to establish a genuine international element as well.

Although the decision of the Bundesgerichtshof is undoubtedly well reasoned, it reaches the opposite conclusion to recent English case law: in particular, the English Court of Appeal has (even before Brexit) taken the contrary view that the use of a foreign contractual language or a standard form contract tailored to international transactions would even on a standalone basis be sufficient to constitute a relevant international element – and accordingly allow the parties to escape the restrictions stipulated by Art. 3(3) Rome I Regulation (Dexia Crediop SpA v Comune di Prato [2017] EWCA Civ 428, discussed here).

Further guidance from the European Court of Justice on the interpretation of Art. 3(3) Rome I Regulation would therefore be desirable.

The external activity of the Court of Justice resumes on 8 January 2024. On 11 January, Advocate General M. Szpunar will publish his opinion on C-632/22 (Assignation au siège d’une filiale de la défenderesse). I reported on the case on the occasion of the hearing, which took place last October. The Spanish Supreme Court has sent to Luxembourg these two questions in relation to service of process and the right to a due process in a competition case involving companies with seat in different Member States.

1. In the circumstances surrounding the litigation relating to the trucks cartel, described in this order, is it possible to interpret Article 47 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 101 of the Treaty on the Functioning of the European Union, in such a way that service of process on a parent company against which an action for damages for the harm caused by a restrictive trade practice has been brought is considered to have been properly effected when such service was effected (or attempted) at the place of business of the subsidiary company established in the State in which the legal proceedings were brought, while the parent company, which is established in another Member State, has not entered an appearance in the proceedings and has remained in default?
2. If the previous question is answered in the affirmative, is that interpretation of Article 47 of the Charter compatible with Article 53 of the Charter, in the light of the case-law of the Spanish Tribunal Constitucional (Constitutional Court) on the service of process on parent companies established in another Member State in disputes relating to the trucks cartel?

A hearing on case C-187/23 Albausy, will take place at the very end of the month, on Wednesday 31. Faced with an application to grant a European certificate of succession by a (presumptive) heir, with other (equally presumptive) beneficiaries to the estate contesting the will, the Amstgericht Lörrach (Germany) asks several questions on Article 67 of the Succession Regulation (Regulation 650/2012):

(a)     Must point (a) of the second subparagraph of Article 67(1) of the Succession Regulation be interpreted as meaning that it also refers to challenges raised in the procedure for issuing the European Certificate of Succession itself, which the court is not permitted to examine, and that it does not refer only to challenges raised in other proceedings?

(b)     If the answer to Question (a) is in the affirmative: Must point (a) of the second subparagraph of Article 67(1) of the Succession Regulation be interpreted as meaning that a European Certificate of Succession may not be issued even if challenges have been raised in the procedure for issuing the European Certificate of Succession, but they have already been examined in the proceedings for the issuance of a certificate of inheritance under German law?

(c)     If the answer to Question (a) is in the affirmative: Must point (a) of the second subparagraph of Article 67(1) of the Succession Regulation be interpreted as covering any challenges, even if they have not been substantiated and no formal evidence is to be taken of that fact?

(d)         If the answer to Question (a) is in the negative: In what form must the court state the reasons that led it to reject the challenges and to issue the European Certificate of Succession?

At the time of registration, the second question seemed hypothetical as no other proceedings for the issuance of a national certificate were pending, nor is it for sure that the objections raised against the European certificate would be examined there. Further doubts on admissibility will certainly be discussed at the hearing. Should the Court of Justice answer on the merits, other provisions of the Succession regulation (i.e., not only its Article 67) will likely be interpreted as well for the Court to provide useful guidance to the national jurisdiction.

C-187/23 has been allocated to a chamber of five judges (E. Regan, Z. Csehi, M. Ilesic, I. Jarukauti, D. Gratsias). M. Campos Sánchez-Bordona will provide an opinion in due time.

No other requests directly concerning private international law are scheduled to be dealt with in January.

On a wider perspective, I would like to mention case C-4/23, Mirin. This Grand Chamber case, with judge M. Ilesic reporting and an opinion by J. Richard de la Tour, has been prompted by a change of gender (from female to male), followed by the change of the name and a number of documents, of a British national who had actually been born in Romania. The applicant identified as male, on 21 February 2017, by means of the Deed Poll procedure; on 29 June 2020, he obtained in the United Kingdom a Gender Recognition Certificate confirming the male gender identity. In May 2021, he contacted the competent Romanina authorities requesting, directly on the basis of the Deed Poll and the Gender Identity Certificate, that the change of gender and first name be entered in the birth certificate, that the appropriate change be made to the personal numeric code to reflect the male gender, and that a matching birth certificate be issued. He contested the negative to the application before the Judecătoria Sectorului 6 București (Court of First Instance, Sector 6, Bucharest), which is asking now the Court of Justice the following questions:

(1)     Does the fact that Article 43(i) and Article 57 of Legea nr. 119/1996 privind actele de stare civilă (Law No 119/1996 on civil status documents) do not recognise changes in civil status made in another Member State by means of the procedure for legal recognition of gender to entries concerning gender and first name by a transgender man who has dual nationality (Romanian and of another Member State) and require a Romanian citizen to bring, from the outset, separate judicial proceedings in Romania against the local Public Service for Personal Records and Civil Status – proceedings which have been held to lack clarity and foreseeability by the European Court of Human Rights (X and Y v. Romania, nos. 2145/16 and 20607/16, 19 January 2021) and which may lead to a decision contrary to that taken by the other Member State – constitute an obstacle to the exercise of the right to European citizenship (Article 20 of the Treaty on the Functioning of the European Union) and/or the right of citizens of the Union to move and reside freely (Article 21 of the Treaty on the Functioning of the European Union and Article 45 of the Charter of Fundamental Rights of the European Union) in conditions of dignity, equality before the law and non-discrimination (Article 2 of the Treaty on European Union; Article 18 of the Treaty on the Functioning of the European Union, and Articles 1, 20 and 21 of the Charter of Fundamental Rights of the European Union), respecting the right to private and family life (Article 7 of the Charter of Fundamental Rights of the European Union)?

(2)     Does the departure of the United Kingdom of Great Britain and Northern Ireland from the European Union affect the answer to the above question, in particular where (i) the procedure for changing civil status was commenced before Brexit and was completed during the transition period, and (ii) the impact of Brexit means that the person cannot benefit from rights attached to European citizenship, including the right to free movement and residence, except on the basis of Romanian identity or travel documents in which that person appears with a female gender and first name, contrary to the gender identity that has already been legally recognised?

A hearing is scheduled on 23 January 2024.

By Du Tao* and Jingwei Qiu**

With the increasingly close personnel exchanges and deepening economic cooperation between Mainland China and Hong Kong, the number and types of legal disputes between the two regions have also increased. Against the backdrop of adhering to the “One Country, Two Systems” principle and the Basic Law of Hong Kong, the judicial and legal professions of the two regions have worked closely together and finally signed “the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region (hereinafter referred to as “REJ Arrangement”) in January 2019, which will come into effect in January 2024. REJ Arrangement aims to establish an institutional arrangement for the courts of the Mainland and the Hong Kong Special Administrative Region to recognize and enforce judgments in civil and commercial cases, achieve the “circulation” of judgments in civil and commercial cases, reduce the burden of repeated litigation, and save judicial resources in the two regions.

There are 31 articles in REJ Arrangement, which comprehensively and meticulously stipulate the scope and contents of mutual recognition and enforcement of judgments in civil and commercial cases, the procedures and methods for applying for recognition and enforcement, the circumstances under which recognition and enforcement may not be recognized, and the remedies available. Articles 1, 2, and 4 are provisions that positively state the scope of recognition and enforcement of civil and commercial judgments in the two regions; Articles 3, 5, 12, and 13 are provisions that clearly recognize and enforce the scope of civil and commercial judgments of the courts of the two regions. Articles 7 to 11 and 20 to 27 are procedural provisions. The remaining provisions deal with the entry into force, interpretation, and modification of REJ Arrangement.

Compared with “the recognition and enforcement of judgments in civil and commercial matters pursuant to choice of court agreements made between the parties concerned” (the first agreement reached between the two places on mutual recognition and enforcement of judgments in civil and commercial matters, hereinafter referred to as ‘Mainland-Hong Kong Mainland-Hong Kong Choice of Court Arrangement’)”, REJ Arrangement has significantly increased the types of cases to which it can be applied. Mainland-Hong Kong Choice of Court Arrangement is very limited in terms of the types of cases to be applied and only applies to civil and commercial cases where the parties have a written jurisdiction agreement, and there is a final monetary judgment. For example, in 2018, Zhongji Company filed an application with the Hangzhou Intermediate People’s Court of Zhejiang Province for recognition and enforcement of a civil judgment of a Hong Kong court[[1]], because a winding-up order made by a Hong Kong court is not a civil and commercial case according to parties’ agreement, and it cannot directly apply to the mainland court for recognition in accordance with the provisions of Mainland-Hong Kong Choice of Court Arrangement. In the 2010 case in which Chengxin Real Estate Company applied to the Xiamen Intermediate Court for confirmation of an effective judgment issued by the Hong Kong High Court[[2]], although the parties had signed a contract with a jurisdiction clause in writing since Mainland-Hong Kong Choice of Court Arrangement was only limited to the recognition of monetary judgments, the judgment of conveying the ownership of immovable property in the judgment could not be recognized and enforced because it was a non-monetary judgment. These two cases clearly illustrate the narrow scope of the Mainland-Hong Kong Choice of Court Arrangement. REJ Arrangement not only applies to monetary judgments but also includes non-monetary judgments. It also lists the types of cases that are not subject to REJ Arrangement for the time being. This method clarifies the types of cases to be applied, which is conducive to unifying judges’ understanding of the scope of application of REJ Arrangement in judicial practice and protecting the legitimate rights and interests of the people in the two places to the greatest extent.

REJ Arrangement removes the restriction on the level of the court of first instance. Mainland-Hong Kong Choice of Court Arrangement restricts the level of judgment rendered by the Mainland courts, which is limited to judgments rendered by courts at the level of the Mainland Intermediate Court and above, as well as some basic courts with foreign-related jurisdiction. However, REJ Arrangement does not restrict the level of courts in the Mainland where judgments are rendered, i.e. effective judgments issued by courts at all levels in various regions of the Mainland can be applied. For Hong Kong, the REJ Arrangement extends the scope to the effective judgments of the Labour Tribunal, the Small Claims Tribunal, and the Lands Tribunal. After REJ Arrangement comes into effect, together with the matrimonial and family arrangements that have been signed before, about 90% of civil and commercial judgments in the two places will be reciprocal recognition and the scope of application of enforcement will be expanded, [[3]]so that the cases involving each other can be recognized and enforced to the greatest extent, and to ensure that creditors in the two places can obtain the greatest judicial relief.

With regard to the revision of jurisdiction, on the one hand, new jurisdictional connection points have been added to the REJ Arrangement, filling the gap in the provisions of the Mainland-Hong Kong Choice of Court Arrangement in this regard. The new jurisdictional connection point of “the applicant’s domicile” is connected with the expansion of the scope of the application of REJ Arrangement. Since REJ Arrangement also includes the confirmation of legal relationships or legal facts in the scope of application, there is no enforceable content in such judgments themselves. The applicant only needs to apply to the Mainland court for recognition of this part of the legal relationship or facts. If REJ Arrangement does not add a new jurisdictional connection point of “the applicant’s domicile”, when the respondent has neither property nor domicile in the Mainland, a jurisdictional connection point cannot be established, resulting in no Mainland court accepting the application. Therefore, the addition of “the applicant’s domicile” as a jurisdictional connection point in this arrangement is of great practical significance, which greatly enhances the feasibility of the recognition of judgments.

On the other hand,  REJ Arrangement clarifies the criteria for the review of the jurisdiction of the court of first instance. Mainland-Hong Kong Choice of Court Arrangement stipulates that, according to the law of the requested party, if the requested court has exclusive jurisdiction over the case, it shall not recognize and enforce it, that is, adopt the “exclusive jurisdiction exclusion” model. For the first time, REJ Arrangement clearly stipulates the criteria for the review of the jurisdiction of the court in which the judgment is rendered. Article 11 sets out the jurisdictional criteria for different types of cases by way of enumeration. The provisions on jurisdiction in REJ Arrangement are in fact based on the HCCH 2019 Judgments Convention, and adopt the review model of “exclusive jurisdiction exclusion” plus “enumeration”. Under REJ Arrangement, if a Mainland judgment applies to the Hong Kong court for recognition and enforcement, the Hong Kong court can not only greatly reduce the workload of reviewing jurisdiction, but also reduce the number of defenses to jurisdictional issues, thereby increasing the success rate of recognition and enforcement of the judgment. Moreover, REJ Arrangement clearly unifies the criteria for determining the jurisdiction of the court of first instance, which can effectively reduce the occurrence of parallel litigation and enhance the predictability and stability of litigation. In addition, the wording of the provisions on jurisdiction in different circumstances in Article 11 of REJ Arrangement indicates that when examining whether the court of first instance has jurisdiction, it is only necessary to examine the jurisdiction of the jurisdiction of the jurisdiction in which the judgment was rendered.

In terms of content, REJ Arrangement takes a more open stance than the HCCH 2019 Judgments Convention, strengthens the judicial protection of intellectual property rights, and clearly stipulates the jurisdictional standards for intellectual property cases. With the in-depth interaction of professional services related to intellectual property rights in the mainland and Hong Kong, the two regions have gradually reached a consensus on issues such as the determination of the validity of certain intellectual property rights and the protection system, which provides the possibility of adding new protection clauses related to intellectual property rights in the REJ Arrangement. The scope of intellectual property rights protected by REJ Arrangement mainly refers to the Agreement on Trade-Related Aspects of Intellectual Property Rights, the General Provisions of the Civil Law of the People’s Republic of China, and the Regulations on the Protection of Plant Varieties. For the first time, REJ Arrangement adds provisions on punitive damages for infringement of intellectual property rights and clarifies the punitive damages part of the monetary judgments in the four types of cases recognized and enforced by the requested court. In addition, based on the particularity of trade secret infringement disputes, non-monetary liability for infringement of trade secrets is stipulated.

In terms of the finality of the recognition and enforcement of judgments, REJ Arrangement has made a major breakthrough. Hong Kong is a common law country and has a habit of following precedent when it comes to finality. In 1996, in the case of Chiyu Banking Corporation Limited’s application for recognition and enforcement of a Mainland judgment (hereinafter referred to as the Chiyu case)[[4]], Judge Cheung Chak Yau of the Hong Kong Court made the following judgment on the issue of the finality of the judgment: The judgment of a foreign court must be final and irrevocable, and because of the existence of a retrial system in Chinese mainland, the original trial court has the right to change the original judgment in the retrial, because the judgment made by the original trial court can be changed, and this system makes the mainland judgment not final. As a result, the Mainland judgment was ruled by the Hong Kong court not to be recognized and enforced. The criterion of finality established by this case had a profound and long-lasting impact on the recognition and enforcement of mainland judgments by Hong Kong courts, and the Chiyu case has been repeatedly cited as a precedent by the Hong Kong side. Even later, in the 2001 TayCuanv. NgChi case[[5]], the issue of finality was raised again, and the Hong Kong side rejected the application on the same grounds, resulting in a further strengthening of the criterion of finality of judgment. However, Mainland-Hong Kong Choice of Court Arrangement only avoids the use of the word “finality” and does not explicitly stipulate “enforceable judgments”, which cannot really solve the problem. Subsequently, the Mainland Judgments (Reciprocal Enforcement) Ordinance enacted by Hong Kong under Mainland-Hong Kong Choice of Court Arrangement deviated from the original intention of Mainland-Hong Kong Choice of Court Arrangement and still adopted the expression “final and conclusive” on the issue of finality. As such, the Mainland-Hong Kong Choice of Court Arrangement has a very limited role in coordinating the finality of judgments between the two places.

Under REJ Arrangement, “the judgment is final and inconclusive” no longer needs to be “final and conclusive” for mainland civil and commercial judgments to be recognized and enforced in Hong Kong. The phrase “final judgment with enforceable effect” has been changed to “effective judgment”, and the meaning of “effective judgment” has been clarified, referring to “first-instance judgments and second-instance judgments that are not allowed to be appealed in accordance with the law or have not been appealed within the statutory time limit, as well as the above-mentioned judgments made through retrial procedures”. REJ Arrangement has undergone substantial changes in the legislative provisions on the issue of finality of judgments, and Hong Kong has abandoned its long-standing insistence on the criteria of “certainty” and “inconclusiveness”. Moreover, the clear elaboration of the “effective judgment” enables the subsequent judicial practice to apply the law more accurately. When hearing a case of recognition and enforcement of a Mainland judgment, the Hong Kong court only needs to conduct a formal review to determine whether the type of judgment is in accordance with REJ Arrangement.

However, the breakthrough of REJ Arrangement on the issue of finality of judgments does not represent a fundamental change in Hong Kong’s attitude towards the recognition and enforcement of extraterritorial judgments, which can only be confirmed after the transformation of Hong Kong’s local legislation and subsequent judicial practice. At least on the surface, this provision resolves the historic obstacle that has been preventing the recognition and enforcement of Mainland judgments in Hong Kong courts. From a more in-depth perspective, Hong Kong will treat mainland judgments differently from foreign judgments, so that judgments from the two places can truly be circulated.

At present, the development of the Guangdong-Hong Kong-Macao Greater Bay Area is in the ascendant, and the signing of REJ Arrangement has provided new opportunities for the future development of the two places. This is not only the endpoint of the basic and comprehensive coverage of the judicial assistance arrangements for civil and commercial matters between the two places, but also the starting point for colleagues in the legal circles of the two places to move towards a higher and farther goal[[6]]. This means that Mainland China and Hong Kong will have a broader space for development and better prospects in the field of mutual recognition and enforcement of civil and commercial judgments. In the new era and new context of continuing to adhere to the principle of “one country, two systems” in the future, the legal culture and legal system of Mainland China and Hong Kong will be gradually integrated, and an integrated system of civil and commercial judicial assistance will be successfully established.

 

Authors

*Dr. Du Tao, Professor at the East China University of Political Science and Law, Shanghai, China, waiguofa@126.com

**Jingwei Qiu, Graduate student of East China University of Political Science and Law, 2194621508@qq.com.

[1] See (2018) Zhe 01 Zhigang No. 2. On 12 November 2018, the applicant, Zhongji Company, filed an application with the Hangzhou Intermediate People’s Court for recognition of the High Court’s winding-up order No. 132 of 2018 in the High Court of the Hong Kong Special Administrative Region. https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=JseWE2JCpafgJrx5lyT46GkmFgQc7VGra0V1/ugltMMOZ2S3LUQMq7fWnudOoarTTYdhHuJEwBempXeLhxTPMm90fL3cvEPOqfJQ2Xb051xu6I6RfcuEPyM36peDZ1lY

[2] See (2009) Xiamin Zhizi No. 124. In 2009, Chengxin Real Estate sued Hong Kong Guoyuan Investment Co., Ltd. in Hong Kong, demanding that it deliver the housing involved in the lawsuit and repay the money.

legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=67107&QS=%24%28HCA2231%2F2007%2C?%29&TP=JU

[3] The Mainland and Hong Kong signed an arrangement on mutual recognition of judgments in civil and commercial matters, and continuously improved the inter-regional judicial assistance system with Chinese characteristics: An interview with the person in charge of the Research Office of the Supreme People’s Court[EB/OL].?2019-01-18?.https://www.chinacourt.org/article/detail/2017/06/id/2903940.shtml.

[4] Chiyu Banking Corp Ltd v. Chan Tin Kwun?1996?HKCFI 418; (1996)2 HKLRD 395;HCA 11186/1995.legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=30726&QS=%2B%7C%28HCA%2C11186%2F1995%29&TP=JU

[5] Tan Tay Cuan v.Ng Chi Hung,HCA 5477/2000.5/2/2001.legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=21647&QS=%2B%7C%28HCA%2C5477%2F2000%29&TP=JU

[6] The Mainland and Hong Kong signed an arrangement on mutual recognition of judgments in civil and commercial matters, and continuously improved the inter-regional judicial assistance system with Chinese characteristics: An interview with the person in charge of the Research Office of the Supreme People’s Court[EB/OL].?2019-01-18?.https://www.chinacourt.org/article/detail/2017/06/id/2903940.shtml.

Technology is challenging private international law as many other areas of law. Difficulties raised by cryptocurrency transfers on blockchain are particularly significant because private international law techniques are relying on localisation, as well as on concepts such as internationality and characterisation that are not easy to identify in this case. Cryptocurrency transfers through blockchain are not relying on intermediation services as applicable in traditional forms of financial transactions. This makes it difficult to idetermine the service provider or the characteristic performer and pinpoint them to a real-world location or to concentrate the connections related to a transaction to a particular place. Further, pseudonymity on the blockchain makes it difficult to identify the participants to the system and their locations.

Burcu Yüksel Ripley (Senior Lecturer at the University of Aberdeen) is addressing these aspects and the ways in which the law applicable to transfers of cryptocurrencies can be determined in a paper she made available on SSRN. The paper is entitled The Law Applicable to (Digital) Transfer of Digital Assets: The Transfer of Cryptocurrencies via Blockchains and is forthcoming in Fogt, M. M. (ed.) Private International Law in an Era of Change with Edward Elgar.

The abstract reads as follows:

Transfer of digital assets including cryptocurrencies gives raise to various important legal questions. One of them is the law applicable to their transfers via blockchains. Traditional concepts and techniques of private international law are challenged by blockchain in the determination of the applicable law. Disintermediation makes it difficult to identify a service provider or characteristic performer in the systems underpinned by blockchain. The distributed nature of the ledger raises issues with ascribing the ledger or blockchain and an asset digitally recorded on it to a real-world location and also gives rise to the lack of concentration of connections with a particular place. Pseudonymity in the systems underpinned by blockchain poses problems with the identification of the system participants as well as their locations. The purpose of this chapter is to examine some of the key issues concerning the law applicable to (digital) transfer of digital assets by focusing on cryptocurrency transfers via blockchain. These issues include internationality, characterisation and determination of the applicable law under the unitary approach (leading to the application of a single law) and the segmented approach (resulting in splitting the applicable law). In its analysis, this chapter utilises an analogy to electronic funds transfers (EFTs) and funds transfer systems in order to offer an alternative way of thinking to find solutions to the problems concerning cryptocurrency transfers via blockchains. It also aims to contribute to the current academic discourse as well as ongoing law reform projects in the area with a new perspective.

The authors of this post are Chukwuma Okoli, Assistant Professor in Commercial Conflict of Laws at the University of Birmingham, and Senior Research Associate at the University of Johannesburg; and Abubakri Yekini, Lecturer in Conflict of Laws at the University of Manchester.

 

On December 21, 2023, the Nigerian Senate in line with Section 231(2) of the 1999 Constitution, confirmed the appointment of Honourable Justice Habeeb A.O. Abiru (“Justice Abiru”), alongside ten other justices, to the Nigerian Supreme Court, following the recommendation of the National Judicial Council and the Nigerian President. This appointment fills the vacancy created by recent retirements or deaths of some justices.

Justice Abiru’s appointment is particularly significant for conflict of laws enthusiasts. Our research suggests that he is the first Nigerian Supreme Court Justice in recent times who is a specialist on conflict of laws. Initially appointed as a judge at the Lagos State High Court in 2001, Justice Abiru was later elevated to the Court of Appeal in 2012.

Justice Abiru briefly served as a law academic at the Lagos State University before his judicial appointment. He equally studied conflict of laws during his LLM at the University of Ife from 1986 to 1987. Nevertheless, this is not to suggest that Justice Abiru’s expertise is limited to conflict of laws, nor that other Nigerian judges do not possess expertise in conflict of laws. The point being made is that his Lordship’s prominence as a judicial expert in conflict of laws in Nigeria is noteworthy.

Given recent criticisms of judgments from Nigerian appellate courts concerning conflict of laws, Justice Abiru’s background is pivotal. Various scholars (Okoli and Oppong, Yekini, and Bamodu) have raised concerns about the quality of judgments from appellate courts regarding conflict of laws. These concerns arise, especially due to the position taken by the Nigerian Supreme Court (and the Court of Appeal) in several cases, stating that, by the provisions of the Nigerian Constitution, the jurisdiction of each State High Court and the High Court of the Federal Capital Territory, Abuja, is restricted to matters that occur within their respective territory. (see for example, Capital Bancorp Ltd v Shelter Savings and Loans Ltd (2007) 3 NWLR (Pt. 1020) 148; Dairo v Union Bank of Nigeria Plc (2007) 16 NWLR (Pt. 640) 99). Okoli and Oppong argue that: “This approach is wrong; there is no provision of the Nigerian Constitution that circumscribes the jurisdiction of the State High Court and the High Court of the Federal Capital Territory to matters that occur within its territory, provided the defendant is present or resident in the jurisdiction or is willing to submit to it. In essence, these appellate decisions ignore the principle of conflict of laws which is part of Nigeria’s common law legal system.” (See also Yekini, and Bamodu).

During his tenure at the Nigerian Court of Appeal, Justice Abiru consistently drew attention to the importance of addressing conflict of laws issues, often overlooked by legal practitioners and judges.. While dealing with the issue of territorial jurisdiction in Muhammed v Ajingi ((2013) LPELR-20372(CA), his Lordship notes that: “the concept of territorial jurisdiction is one of the most misunderstood concepts. This has always been due to lack of appreciation of the approach to dealing with the concept. The first step in the approach to dealing with a question of territorial jurisdiction of a Court is to always understand that where there is a dispute as to the proper venue of hearing a matter that has inter-State elements, it is an issue of conflict of laws or what is called private international law.” Needless to say, Ajingi’s case is one of the recent instances where the courts got the question of territorial jurisdiction right. In addition, his dissenting opinion in Niger Aluminium Manufacturing Co. Ltd v Union Bank (2015) LPELR-26010(CA) 32-36 highlights his commitment to addressing conflict of laws situations even when the majority view falls short.

Justice Abiru has contributed extra-judicially to critiques of the state of conflict of laws in Nigeria. (see here and here). In his foreword to Okoli and Oppong’s “Private International Law in Nigeria” (2020), he submitted that: “The legal practitioners and the Courts in Nigeria have over time struggled with the resolution of legal actions which have such foreign elements. The law reports are replete with decisions showing clear evidence of the struggle. The reason for the struggle has been the failure of the lawyers and Courts to appreciate that it is the rules of private international law that are applicable to these situations.”

The addition of Justice Abiru to Nigeria’s Supreme Court is a positive development that strengthens Nigeria’s bench. While acknowledging that a strong bench is not the sole criterion for a developed conflict of laws system, it undoubtedly contributes to building trust in Nigeria’s judicial system, both locally and internationally. As stressed elsewhere, if Nigerian and African courts and arbitral panels want to compete favourably with other countries, especially in attracting litigation and arbitration business, Nigeria’s judiciary needs ongoing institutional reforms, addressing issues like infrastructure, legal system quality, funding, delays, regular training, and corruption.

In conclusion, Justice Abiru’s appointment to the Nigerian Supreme Court is a step in the right direction for the development of Nigerian conflict of laws.

The second issue of 2023 of the Journal of Private International Law is out. It contains the following articles:

Dan Jerker B. Svantesson, Symeon C. Symeonides, Cross-border internet defamation conflicts and what to do about them: Two proposals

Conflicts of laws in cross-border defamation cases are politically and culturally sensitive and their resolution has always been difficult. But the ubiquity of the internet has increased their frequency, complexity, and intensity. Faced with the realities of the online environment—including the virtual disappearance of national borders—several countries have acted unilaterally to preserve their values and protect their interests. Some countries enacted laws favouring consumers or other potential plaintiffs, while other countries took steps to protect potential defendants, including publishers and internet service providers. As a result, these conflicts are now more contentious than ever before. We believe there is a better way—even-handed multilateral action rather than self-serving unilateral action. In this article, we advance two proposals for multilateral action. The first is a set of soft law principles in the form of a resolution adopted by the Institut de Droit International in 2019. The second is a proposed Model Defamation Convention. After presenting and comparing these two instruments, we apply them to two scenarios derived from two leading cases (the first and one of the latest of the internet era) decided by courts of last resort. The first scenario is based on Dow Jones & Company Inc v Gutnick, which was decided by the High Court of Australia in 2002. The second is based on Gtflix Tv v. DR, which was decided by the Court of Justice of the European Union at the end of 2021. We believe that these two instruments would produce more rational solutions to these and other cross-border defamation conflicts. But if we fail to persuade readers on the specifics, we hope to demonstrate that other multilateral solutions are feasible and desirable, and that they are vastly superior to a continuing unilateral “arms race.” In any event, we hope that this article will spur the development of other proposals for multilateral action.

Gerard McCormack, Conflicts in insolvency jurisdiction

The Hague Judgments Convention 2019 contains an insolvency exception. The paper suggests that the proposed Hague Jurisdiction Convention should contain an insolvency exception that mirrors that contained in the existing Hague Judgments Convention. It is also submitted that international instruments in the field of insolvency, and related matters, are best dealt with by the United Nations Commission on International Trade Law (UNCITRAL).

Leon Theimer, Protection against the breach of choice of court agreements: A comparative analysis of remedies in English and German courts.

In fixing the place and provider for the resolution of disputes in advance, choice of court agreements increase procedural legal certainty and the predictability of litigation risks. Hence, their protection is crucial. This article undertakes a functional comparison of the remedies for breach of exclusive choice of court agreements in English and German courts, painting a picture of different approaches to a common problem. English courts, now no longer constrained by EU law, employ an entire arsenal of remedies, most strikingly the anti-suit injunction and damages effectively reversing a foreign judgment. In contrast, German courts exercise greater judicial restraint, even though damages for the breach of a choice of court agreement have recently been awarded for the first time. Against this backdrop, two distinct but interrelated reasons for the diverging approaches are identified and analysed, the different conceptions of choice of court agreements and the different roles of comity and mutual trust.

Vera Shikhelman, Enforcement of foreign judgments – Israel as a case study

This article shows how enforcement of foreign judgments in Israel works in practice. Using an original hand-coded dataset, the article seeks to determine empirically which factors increase the likelihood of a foreign judgment being enforced by Israeli courts. To do so the article makes use of two major theories about enforcement of foreign judgments – international comity and vested rights. Also, the article hypothesises that enforcement can be influenced by specific characteristics of the Israeli court and the foreign judgment.
The article finds that the best predictor of foreign judgment enforcement in Israel is the specific characteristics of the foreign judgment and of the Israeli court – cases with a contractual-commercial nature, and cases brought before one of the central districts of Israel are more likely to be enforced. Additionally, the volume of trade between the issuing country and Israel might also be a certain predictor of enforcement. Finally, the article finds that the due process in individual cases might have some influence on the enforcement decision.

Diego Zannoni, How to balance respect for diversity and the rights of the vulnerable? (Non-)recognition of forced and underage marriage under the lens of the European Convention on Human Rights

Partly in view of the migratory phenomenon to which Europe is exposed, forced and underage marriages nowadays deserve careful consideration both as social phenomena and as legal institutions. This paper aims to verify whether and to what extent forced and underage marriages should be recognised in Europe. On the one hand, recognising the validity of these acts could arguably clash with fundamental values and rights protected by the European Convention on Human Rights and the Convention on Preventing and Combating Violence against Women and Domestic Violence. On the other hand, it is not possible to a priori exclude that a flat refusal to recognise a marriage validly established abroad might entail a violation of further rights of the spouses and ultimately have detrimental consequences for the parties that the refusal aims to protect. The aim is to assess whether private international law tools and techniques can offer a proper balance between respect for the fundamental values of reception societies and protection of the rights and interests of the parties involved.

This post is the first of a series regarding Colonialism and the general structure of (German) Private International Law, based on a presentation I gave in spring 2023. See the introduction here.

As mentioned in the introduction, this series does not intent to automatically pass judgment on a norm or method influenced by colonialism as inherently negative (I emphasise this because my experience shows that the impression quickly arises). Instead, the aim is to reveal these influences and to initiate a first engagement with and awareness of this topic and to stimulate a discussion and reflection.

The first category, to be discussed today, relates to the (sometimes unconscious) implementation and later continuation of the colonial structure in PIL – now and then.

1. The Origins

a) Savigny’s approach

One  if not the core value of Private International Law is its neutrality and equality among legal systems. The main goal of German conflict of laws rules is to achieve “international justice” by associating legal matters with the most fitting law, independent of substantive legal values. These foundational principles are commonly attributed to Savigny, who shaped the basic structure of German conflict of laws rules by associating legal matters with their “seat”. Savigny supposedly treated all legal systems as equal and of the same value. The supposed neutrality of PIL might suggest that it is devoid of, or at least shows minimal traces of, colonialism due to its fundamental structures and values.

However, examining Savigny’s “neutrality” towards potential applicable laws reveals that it is only respected from the perspective of “law” as defined by Savigny. This definition includes only legal systems that share the same “Christian” values. This, in essence, results in a devaluation of other legal systems deemed less valuable. Typically, these legal systems today would be those classified as “Western,” sharing the same value system as German law.

b) Conflict of laws and internal conflicts in relation to colonial states

In determining the applicable law between colonial states and colonies, usually the rules on conflict of laws did not apply but a conflict was regarded as an internal one. German colonies, for instance, were not considered part of the German Reich, yet not treated as a separate state, but as “protectorates.” Similar ambiguity existed for other colonies. This unclear legal status allowed different treatment of the colonies under conflict of laws rules, separating local laws in the colonies from the “mother system” and placing them in a hierarchical inferiority. The indigenous population was “allowed” to handle internal, especially family-related disputes through their pre-colonial customs. However, they were not allowed to  determine on their own what constituted part of this legal framework or in which cases which rule applied. Colonial authorities decided which cultural elements of various groups seemed fitting as applicable. Furthermore, inter-local conflict of laws rules often only applied local laws when they did not conflict with the colonial legal system or its core values and did not involve members of the “mother system”. Thus, the legal system of the colonizers took precedence in cases of doubt, and the affected individuals from these local legal orders were not involved in the decisions. Consequently, the colonial authorities decided what was classified as “local law,” its scope and application, favoring their own legal system in cases of uncertainty. The decision regarding which law should prevail was unilaterally made by the colonial authorities.

c) The concept of “state“

Furthemore, an indirect colonial influence on the concept of state within conflict laws is notable. Non-state law, particularly religious or tribal law, was not considered law, neglecting the various communities or identities of individuals in the colonies. Norms within the framework of Savigny’s conflict laws referred exclusively to state law, assuming a state based on Western understanding. This reference indirectly affirmed the concept of the state attributed to Jellinek and the often arbitrarily drawn colonial state boundaries through these conflict norms. Simultaneously, by referring exclusively to state law, it marginalized or ignored other forms of legal orders since they did not represent “law” according to the references. Again, this particularly affected religious or indigenous law.

d) Citizenship as connecting factor

Citizenship serves as a core connecting point, especially for personal matters in Continental European PIL, including Germany (even though it is not based in Savigny’s PIL thinking but is usually attributed to Mancini or the reception of his doctrines). This connection to citizenship has roots in colonial thinking: Granting citizenship has historically expressed and continues to express exclusive affiliations that consciously exclude others. In cross-border private law relations, PIL perpetuates this citizenship policy, reserving certain rules of German law for German citizens.

This method of connecting legal matters to citizenship had implications in the determination of applicable law in colonial contexts. For instance, in the German Reich colonies, distinctions were made between Reichsdeutsche (Germans from the Reich), European foreigners (foreigners but non-natives), and natives. The latter had no citizenship, thus could not fall under a conflict of laws rule referring to citizenship. Similar categorizations and unequal treatment between French citizens, indigenous colony residents, and European foreigners living in colonies were present in French colonial law concerning inter-local private law and naturalization law. The differentiation’s backdrop was the idea that natives were not entitled to French citizen rights. The (non-)granting of citizenship was generally associated with the notion of preventing equal treatment with supposedly inferior cultures or denying the legal guarantees of the colonial state to natives. Comparable exclusionary thoughts existed in “white” British colonies (Canada, New Zealand, etc.) that introduced their own citizenship, consciously isolating themselves from other (non-white) British colonies (e.g., India). The connecting factor citizenship was therefore also intented to exclude.

Additionally, in common law, domicile serves as a connection point with similar intent: The establishment of a domicile was intentionally tied to the requirement of the intent to remain and not to want to return to the original domicile (animus manendi et non revertendi). This was to prevent individuals of English descent, residing in colonial territories for long periods, from solely accessing English law while also enabling others to access this law.

2. Current German PIL Rules

Wondering whether the outlined principles under traditional PIL persist until today, it’s now generally accepted that there’s fundamental neutrality towards all legal systems without formal differentiation based on Christian or “Western” values. Therefore, Savigny’s approach of solely recognizing Christian or “Western” legal systems is outdated. Although, in court rhetoric, some expressions hint that certain legal systems are considered unequal or “alien” to German law, particularly in cases involving non-Christian religious law, like Islamic legal institutes. Moreover, in migration law cases where PIL relates to preliminary issues, a stricter standard seems to be applied to individuals from “Global South” countries compared to those from the “Global North“. These are trends and nuances that luckily occasionally, not systematically, appear.

In modern German PIL, traces of colonialism persist methodologically in the insistence on referring to a state legal order while deciding when such an order exists. This presents challenges concerning the law of states not recognized under international law. While the prevailing opinion emphasizes that recognition by international law is not decisive, certain parts of legal practice and literature still assume this recognition as a prerequisite. Moreover, the status of non-state law, especially religious or tribal law, remains weak. Whether such laws qualify as “law” according to conflict of laws rules generally relies on territorially bounded jurisdictions and the corresponding state according to a European-Western understanding of state law. Non-state law becomes relevant within German PIL only when referred to by the state legal order, e.g. by interlocal or interpersonal conflict laws. Similarly, the acknowledgment of foreign decisions and the recognition of foreign institutions as “courts” under German International Procedural Law depend on their incorporation within the (foreign) state’s legal framework.

Additionally, the use of citizenship as a basis in PIL has shifted away from the exclusion of individuals from German rights. Nevertheless, the question of who can obtain citizenship remains politically contentious. Citizenship continues to serve as a core basis for many classical conflict of laws rules (such as capacity, names, celebration of a marriage) and is gradually being replaced by habitual residence.

3. Room for Improvement or Decolonialisation – the Treatment of Local Law

The reference to state law, which excludes other non-state law unless there is interlocal or interpersonal referral, unconsciously continues colonial thinking. It can be seen in the tradition of colonial rulers and post-colonialism, overriding indigenous law in favor of one’s own legal order. However, abandoning the basic structure of conflict law that refers to a state legal system seems impractical. One could consider introducing a separate (German) conflict norm for tribal or religious law, thus bypassing the reference to the state legal order. However, if interlocal or interpersonal referral is abandoned within a state legal system, and local law is applied based on domestic principles, German PIL ignores the foreign state’s decision to which legal order reference is made, applying local law only under specific circumstances or not at all. This approach would also be colonialist, as German conflict law would then presume to know better than the state how to apply its internal law.

An exception may apply if the state deciding against a referral to local law is domestically or internationally obligated to apply this law and fails to fulfill this obligation adequately.

Some national constitutions recognize and protect indiginous rights, e.g. Canada, as a North American country, South Africa and Kenya, as African countries, just to name a few. In Nigeria, the inheritance rights of the firstborn son of the Igiogbe tradition are qualified as internationally mandatory norms and are therefore always applied (critically assessed here).

An international legal basis could be the ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries from 1989. The convention includes provisions to consider and respect the customary rights of indigenous peoples (Article 8). E.g. the Inter-American Court of Human Rights, in her evolutionary interpretation of the Inter-American Human Rights Convention, elevated tribal and customary law partly to human rights within the scope of the Inter-American Human Rights Convention (e.g. Yakye Axa vs. Paraguay, 17.6.2005; Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 31.8.2001; Sawhoyamaxa Indigenous Community v. Paraguay, 29.3.2006; Xucuru Indigenous People and its members v. Brasil, 5.2.2018; Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina, 24.11.2020; Moiwana Community v. Suriname, 15.6.2005). See also this article by Ochoa.

Also, the African Commission on Human and Peoples’ Rights, interpreting the African Charter on Human and Peoples’ Rights, has protected indigenous law through the charter (Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (Endorois), 4.2.2014 – 276 / 2003). However, it is disputed whether the commission’s interpretation results are binding (see a discussion here).

Thus, although there may be a state obligation to respect local rights, there may have been a failure on the national side to refer to this right. For example, in judgments of the Inter-American Court of Human Rights, it can be observed that implementation into national law is only partially carried out. Also, regarding the interpretation results by the African Commission on Human and Peoples’ Rights, it has been shown that states are not always willing to implement recommendations despite official commitment to it. In these cases, while the state has the obligation to apply non-state law, the referral needed by conflict law is missing. In this case, indigenous law should not be ignored by a German court.

As a result, the basic technique of PIL, referring to state law, should remain untouched. Nevertheless, courts might include foreign local law at least when the state in whose territory the affected community lives is internationally or constitutionally obligated to respect indigenous or religious law, or has obligated itself  to do so. Methodologically, recourse can be made to giving “effect” or “consideration” to foreign law in substantive legal application, known particularly in institutes such as foreign mandatory law (Art. 9 para 3 Rome I or Art. 17 Rome II) but also in substitution, transposition, or adaptation. German courts usually give foreign non-applicable law effect within the application of substantive law, such as the interpretation of norms, especially general clauses (good faithc, bonos mores etc.).

A court typically has discretion on whether to “consider” non applicable foreign law, as it is not a classic application of law. Therefore, the discretion to give effect to non-state foreign law should only be used exceptionally when the state law to which it belongs does not apply it, although there is a state obligation to apply it.

Guiding the discretion should be (in my opinion):

• whether the application of non-state law is in the party’s interest (1),
• whether there is a foreign state obligation to give effect to this non-state law (2),
• the role of non-state law in the home state (3),
• and whether there is an international obligation on the German side to integrate or not integrate the law, perhaps because it may violate fundamental values of German law (4).

Particularly in the third point, it would be desirable for more anthropological-legal comparative work to be done so that integration into legal practice can work without leading to ruptures with the state from whose territory the law originally comes.

 

This has been a long post, the next three will be shorter. As writen in the introduction, these are some initial thoughts and I welcome (constructive) feedback from the whole international community!

The European Court of Human Rights delivered on 10 October 2023 a judgment on a matter of paternity involving an international element.

The Facts

I.V., the applicant before the European Court of Human Rights, is a Latvian national living in Riga. In spring 2006 he had a son, born in Latvia, from a relationship. The mother no longer permitted contact between I.V. and his son from January 2007 onwards. Shortly afterwards, I.V. found out that another man had acknowledged paternity and been registered as the boy’s father. I.V. then challenged paternity in the Latvian courts.

While those proceedings in the Latvian courts were ongoing, the mother and child moved to Estonia and the child was adopted in April 2018 by the mother’s new husband. I.V. only learnt of the adoption afterwards and lodged an application in the Estonian courts to have the decision annulled.

The Estonian Supreme Court concluded in 2021 that I.V. did not have standing as the (legally recognised) “father” under Estonian law since his paternity had not yet been confirmed in Latvia. It also explained that, even if I.V.’s paternity were later recognised, that would not retroactively invalidate the consent to adoption of the legal father – that is to say the person registered as the child’s father at the time of the adoption.

Ultimately the Latvian courts recognised Mr I.V.’s paternity and registered him as the father, from the boy’s date of birth to the date of his adoption.

Complaint and Court’s Ruling

Relying in particular on Article 8 (right to respect for private and family life) of the European Convention on Human Rights, I.V. complained that his rights had been ignored in the proceedings allowing his son’s adoption and concerning the request to annul the adoption. He argued in particular that his son’s adoption should never have proceeded without his consent as the biological father.

In its judgment, the Court stressed that what was at stake in the present case was not the responsibility of the Latvian authorities, even though the paternity proceedings had lasted for an exceptionally long time in that country, but that of the Estonian State.

It pointed out that the case at hand had to be assessed as a whole, and that its task was to assess whether the Estonian authorities had struck a fair balance between the competing interests at stake, including both the interests of the applicant as well as those of his son.

However, the Court found that the Estonian authorities had shown a significant lack of diligence in relation to the proceedings concerning the adoption, even though they had to or ought to have been aware of the ongoing paternity proceedings in Latvia, given the Latvian authorities’ request, in January 2018, for judicial cooperation.

Subsequently, the Estonian Supreme Court had rejected the application to annul the adoption solely on formal grounds, without taking into account the particular circumstances of the case. The Supreme Court had found that the applicant did not have standing since his legal paternity had not yet been recognised by a final court judgment in Latvia.

The outcome of the proceedings in Estonia had actually led to the applicant’s legal paternity being recognised by the Latvian courts for a limited period only, that is to say until the date that the child had been adopted in Estonia.

The Court concluded overall that the Estonian authorities had failed to identify and examine the particular circumstances of the case and to assess the various rights and interests of the individuals involved, including those of the applicant, in either set of proceedings (allowing the adoption or concerning the request to annul the adoption). There had therefore been a violation of Article 8.

A symposium titled “Personal Status on the Move” (La circulation du statut personnel), organised by the Société de Législation Comparée (SLC), the International Commission on Civil Status (ICCS), the Law Faculty of University of Côte d’Azur and the Associazione Civilisti Italiani, will take place on 19 January 2024 in Rome at the Corte Suprema di Cassazione.

The main topics covered will be civil status, persons’ identification, the union of persons, parenthood and nationality in a context of international mobility of persons and families.

Speakers (and chairs) include Claudio Scognamiglio (Chairman, Associazione Civilisti Italiani), Gustavo Cerqueira (Chairman, Section Méthodologie comparée du droit civil de la SLC), Nicolas Nord (Secretary General of the International Commission on Civil Status), Francesco Salerno (Università degli Studi di Ferrara), Marion Ho-Dac, Professeur (Université d’Artois), Camille Reitzer (Deputy Secretary General of the International Commission on Civil Status), Giovanni Di Rosa (Università di Catania), Fernand Munschy (Lawyer at the Strasbourg Bar & Université Haute-Alsace), Francesca Bartolini (Università degli Studi Link di Roma), Michele Sesta (Università di Bologna), Lukas Heckendorn Urscheler (Institut suisse de droit comparé), Alessandra Spangaro (Università di Bologna), Enrico Al Mureden (Università di Bologna), Ilaria Pretelli (Institut suisse de droit comparé), Renzo Calvigioni (Associazione Nazionale Ufficiali di Stato Civile e d’Anagrafe, ANUSCA), Gordon Choisel (Université Paris Panthéon-Assas), Mirzia Bianca (Università di Roma La Sapienza), Sylvain Bollée, (Université Paris 1 Panthéon-Sorbonne), Roberto Senigaglia (Università Ca’ Foscari Venezia), Hugues Fulchiron (Conseiller extraordinaire à la Cour de cassation, France), Sabine Corneloup (Université Paris Panthéon-Assas), Liliana Rossi Carleo (Università di Roma Tre).

Presentations will be held in French and Italian.

Those interested in attending can do so either in-person or on-line.

Attendance is free, but prior registration is required by 12 January 2024, through segreteria.civilistiitaliani@gmail.com.

Additional information, including the full programme of the conference, can be found here.

A link to follow the conference remotely will be provided shortly.

From 11 to 16 December 2023, the first edition of The Hague Academy of International Law’s Advanced Course in Hong Kong was held, co-organised by the Asian Academy of International Law and the Department of Justice of the Government of the Hong Kong Special Administration Region. For this programme, the Hague Academy of International Law convened distinguished speakers to deliver lectures on “Current Trends on International Commercial and Investment Dispute Settlement”.

After welcome notes (Adrian Lai, Deputy Secretary General and Co-Convenor of the Advisory Board of the Asian Academy of International Law; Teresa Cheng, Founding Member and Co-Chairman of the Asian Academy of International Law, also on behalf of Christophe Bernasconi, Secretary General of the HCCH; Jean-Marc Thouvenin, Secretary-General of The Hague Academy of International Law; and Lam Ting-kwok Paul, Secretary for Justice of the Government of the Hong Kong SAR) a welcome lunch was offered where a “beggar‘s chicken” was offered, to be hammered out of the bread casing…

In the afternoon the first class, delivered by Natalie Morris-Sharma, Singapore, focused on the UN 2018 Convention on Settlement Agreements Resulting from Mediation (Singapore Convention). Structuring her lecture around the drafting procedure of the new instrument, the former Chairperson provided valuable insights into the deliberations within the Working Group. For instance, the question what form (international treaty, model law, or mere guidelines) the future instrument should take was literally up for debate until the very last session, as some delegations felt that national approaches to enforcing settlement agreements were far too different to justify the adoption of a uniform “hard law” solution. This uncertainty during the discussions is the main reason why the Working Group has taken the unusual course of action to produce not only the Convention but also the amended UNCITRAL 2018 Model Law on International Commercial Mediation. Further in the lecture, it was emphasised that the Singapore Convention has taken a stance on at least one of these differences, the legal nature of the mediated settlement agreement. By providing for the “enforcement” (“relief”) in Articles 3 and 4 which can only be refused on the limited, discretionary grounds contained in Art. 5, the Singapore Convention rejects the traditional view that mediation results in nothing more than a contractual obligation. Finally, the future of the instrument has been discussed, in particular the reasons why the major economic powers (China, EU, USA) have not yet ratified the Convention.

The next morning, Diego Fernández Arroyo started his lecture on investor-state dispute resolution. Using the Euro Disneyland negotiations as an example, in which corporate counsel Joe Shapiro, envisaging the possibility of legal disputes with the French government, pushed relentlessly for the inclusion of an arbitration clause, he first illustrated the practical importance of ISDS. Subsequently, the historical development of this area of law from diplomatic protection to international arbitration was summarised, with particular reference to the highly specialised International Centre for Settlement of Investment Disputes (ICSID) established under the auspices of the World Bank Group. He stressed that the submission of investment disputes, that involve a public law (global) governance dimension, to essentially the same resolution mechanism as private law commercial disputes is by no means self-evident. On this foundation, Fernández Arroyo finally turned to the contemporary criticism towards the current ISDS practice. He stated, inter alia, that the concerns regarding transparency have been adequately addressed through the adoption of new standards (e.g. Mauritius Convention, UNCITRAL 2014 Rules) and elaborated on the prospects of the Multilateral Investment Court project advocated by the EU.

Then, Franco Ferrari made use of his part of the course on international commercial arbitration to powerfully challenge an overly idealistic understanding of international arbitration. Appealing in particular to the Hong Kong barristers in the room, he initially demonstrated how the loopholes between arbitration and litigation may be strategically utilised in legal practice. While the existence of an arbitration agreement obliges the court to dismiss a claim, it does not prevent filing a lawsuit in the first place. Hence, the resulting fear of publicity or discovery can be used effectively as leverage in settlement negotiations. Thereafter, quite in contrast to the idea of global governance underlying the ISDS frameworks, he reminded the audience of F. A. Mann’s statement: “every arbitration is a national arbitration, that is to say, subject to a specific system of national law”. Along the lines of this famous bon mot, Ferrari highlighted the persistent relevance of the lex loci arbitri by examining, among others, whether the provisions of the UN 1958 Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) require an “international” or rather a “domestic” reading. In this context, he discussed with the audience the doctrine of delocalisation as promoted in French jurisprudence (e.g. Cass. Civ., 23 mars 1994, Hilmarton, Bull. 1994 I N° 104 p. 79). From the perspective of legal positivism, those approaches, even if striving for a truly transnational understanding, are nevertheless dependent on the applicable domestic legal framework, which is determined by the seat of the respective arbitration.

In the following, the author of these lines focused on the settlement of international disputes before domestic courts. After laying out a foundational theory for designing judicial cooperation in civil matters within a field of “trust” and “control” (“trust management”) in regard to foreign sovereign judicial acts, in particular foreign judgments, to be integrated (or not) into a state’s s own administration of justice, this theory was then applied to the “Hague Package” (Christophe Bernasconi) of instruments on judicial cooperation in civil matters, starting with the HCCH 2019 Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (e.g. when and why and to what extent foreign courts are “courts” in the sense of, inter alia, Art. 4 of the Convention?), touching further upon the ongoing HCCH Jurisdiction Project (currently mainly focusing on parallel proceedings), the HCCH 2005 Choice of Court Agreement Convention, as well as the HCCH Conventions on Service, Taking of Evidence, and the Apostille. This emerging “Hague System” – that is evidently emerging under fundamentally different conditions than the well-established “Brussels System” within the EU’s supranational Area of Freedom, Security and Justice – was contrasted with current escalations of “distrust”, such as e.g. the current trend of antisuit injunctions (ASIs), anti-antisuit injunctions (AASIs) and even anti-anti-antisuit injunctions (AAASIs) in international Standard Essential Patent (SEP) ligitation in respect to setting global FRAND licences, involving domestic courts from all over the world (e.g. China, Germany, India, UK, USA etc.) – an area of law which is – unfortunately – excluded to a large extent from the material scopes of the younger HCCH Conventions.

Jean-Marc Thouvenin added with a fascinating lecture on dispute settlements before the International Court of Justice, and Judge Gao Xiaoli explained the latest developments of dispute resolution in (Mainland) China, in particular the setting and functions of China’s Supreme People’s Court’s International Commercial Court (CICC).

In the afternoon of the last day, the participants, coming from more than 20 nations, received their certificates, and the week concluded with a closing reception in celebration of the Centenary of the Hague Academy against the background of Hong Kong’s skyline.

The Course took place in the chapel of the historic Former French Mission Building, later the seat of Hong Kong’s Court of Final Appeal. Lectures and participants convened in the former hearing hall of the building which added further inspiration to the vivid and intense discussions about the settlement of international commercial disputes on all avenues and levels, a holistic perspective that some liked to call an “integrated approach” (M. Weller, Festschrift für Herbert Kronke 2020), others a “pluralistic dispute resolution” (“PDR”, see e.g. Wang/Chen, Dispute Res. in the PRC, 2019).

From 15 February 2024 to 17 February 2024, an early career research workshop will be held at Freie Universität Berlin to discuss works in progress on dispute resolution mechanisms and competence-competence in multi-level systems. The workshop invites young researchers working on related topics from all fields of legal research and is open to different methodological approaches to analyse the research questions. The workshop aims to generate a constructive and friendly atmosphere to test working hypotheses and discuss findings.

Further information in the call for abstracts here.

Applications and questions can be addressed to Maren Vogel at maren.vogel@fu-berlin.de.

In March 2023 I gave a talk at the conference of the German Society of International Law. The conference had the title “Colonial Continuities in International Law“ and my presentation focused on  “Continuation of colonialism in contemporary international law? – Foundations, structures, methods from the perspective of PIL“. Thus, I was exploring those foundations, basic structures, and fundamental methods of mainly German Private International Law (PIL) and whether and how they have been influenced by colonialism.

Even though the perspective is mainly one of German PIL one, some of my thoughts might be of interest for a more global community. Therefore, in some upcoming posts I will share some of my findings that will also be published  in the book to the conference (in German).

My general – not surprising – finding ist that the existing PIL, much like the broader German legal system, has been impacted by colonialism. The aim is to reveal these influences without automatically pass judgment on a norm or method influenced by colonialism as inherently negative. The primary goal is to initiate an first engagement with and awareness of this topic and to stimulate a discussion and reflection.

1. State of the Discussion

“Colonialism“ I will understand broadly, referring not only to colonialism in a strict sense, but also including postcolonialism and forms of neocolonialism. Until now, the discussion regarding colonialism, coloniality, or decolonialism within German PIL remains limited. Initial discussions tend to arise within specific areas of PIL, such as migration law, cultural heritage protection law, investment protection law, occasional considerations of supply chain responsibility/human rights protection, and climate change litigation. The broader discussion around fundamental questions and structures within German PIL remains relatively sparse. Initiatives such as the project by the Max Planck Institute for Comparative and International Private Law in Hamburg drive the discourse on “decolonial comparative law” which is not the same but in practise overlapping with the PIL discourse.

2. Categories of Colonialism in the Upcoming Posts

The attempts to systematize the colonial imprints lead to different categories.

• The first relates to the (sometimes unconscious) implementation and later continuation of the colonial structure in PIL – now and then.
• Another second category deals with structures and values inherent in German or European law, implicitly resonating within the PIL and, thus, expanding those values to people and cases from other parts of the world.
• The third category reveals an imagined hierarchy between the laws of the Global North and Global South.
• Finally, fourth, conflict of laws rules may lead to or at least contribute to exploiting actual North-South power asymmetries. 

3. Intention of the Series

In the next four posts, I would like to present some thoughts on colonial imprints I found in German PIL and sometimes EU PIL. I will not focus on other country’s PIL rules, but I am happy to learn about other systems and similar or very different approaches. 

As aforementioned, I only want to start a discussion and reveal some forms of colonialism in German PIL. I do not want to abolish all norms that are influenced by colonialism or judge them as inherently “bad”. Colonialism might only be one of many influences that shape the rule. Furthermore, I believe we are still at the very very beginning of the debate. Therefore, I welcome any (objective and substantive) discussion about the topic. I especially welcome comments, experiences and ideas from other countries and particularly from countries that are former colonies. 

Written by Hadrien Pauchard (assistant researcher at Sciences Po Law School) In the Airmeex case (Civ. 1re 27 septembre 2023, n°22-15.146, available here), the French Cour de cassation (première chambre civile) had the opportunity to rule on the duty of domestic courts to apply European rules of conflict on their own motion. The decision is a great opportunity to discuss the French approach to the authority of conflict-of-laws rules.

The case concerns allegations of anticompetitive behaviour following a transfer of corporate control. The dispute broke out after two shareholders of the French corporation Airmeex transferred the sole control of the company to the Claimant. The latter, joined by Airmeex, alleged several anti-competitive behaviors on the part of his ex-business partners and seized French courts against the two former shareholders and their related corporations in Turkey. The claim was based on general tort law and on French rules regarding “unfair competition”. The claim covered the Defendants’ acts in Turkey as well as possible infractions in Algeria.

As it happened, none of the parties ever put the question of the applicable law in the debates and neither the trial nor the appeal judges did raise the potential conflict of laws. Indeed, both were content with the straightforward application of the lex fori, i.e. French law on “unfair competition”. The lower court hence dismissed the claim by application of French law. The Claimants then petitioned to the Cour de cassation arguing a violation of the applicable rule of conflict, namely article 6 of the Rome II regulation.

By its decision of September 27, 2023, the French Cour de cassation (première chambre civile) ruled in favour of the petitioners. Upholding its previous Mienta decision (available here in English), it decided that Article 6 of the Rome II regulation was of mandatory application and was applicable to the alleged anticompetitive behaviours. Under these circumstances, the Cour de cassation held that the lower court should have enforced the mandatory rule of conflict of Article 6 Rome II on its own motion. As a consequence it censored the appeal decision insofar as it had applied the lex fori without going through the relevant conflictual reasoning.

Following the Mienta precedent, the Airmeex decision illustrates the renewal of the issue of the authority of conflict-of-laws rules.

The authority of the rule of conflict in French law

The key question in Airmeex concerned the obligation of domestic judges to apply, if necessary on their own motion, European conflict-of-laws rules.

The ex officio powers of national judges belong to the sphere of Member States’ procedural autonomy. However, uncertainty remains as to the scope of this autonomy in relation to European rules of conflict, particularly when the said rules leave no room to parties’ autonomy.

Tackling this issue in Airmeex, the French Court of Cassation upheld in extenso its previous Mienta ruling and stated that “if the Court is not obliged, except in the case of specific rules, to change the legal basis of the claims, it is obliged, when the facts before it so justify, to apply the rules of public order resulting from European Union law, such as a rule of conflict of laws when it is forbidden to derogate from it, even if the parties have not invoked them”.

The Airmeex ruling confirms the existence of French judge’s double hat in relation to conflict-of-laws rules, depending on the source of it.

On the one hand, for European rules of conflict, judges’ obligation is subject to the criterion of imperativeness laid out in Mienta and Airmeex. If the European rule is not mandatory, an a contrario reading of the decision leads to conclude that the French judge does not have an obligation to apply it on its own motion. In the present case, the Cour de cassation deduced the imperative character of the rule of conflict of Article 6 Rome II from the prohibition of derogatory agreements set out in the 4th paragraph of the text (according to which “[t]he law applicable under this Article may not be derogated from by an agreement pursuant to Article 14”). Then, noticing the existence of a conflict in that the disputed facts were notably committed in Algeria and Turkey, the Cour de cassation sanctioned the cour d’appel for not having applied the relevant mandatory provisions of Article 6 of the Rome II regulation.

On the other hand, for French rules of conflict, the classical Belaid–Mutuelle du Mans system (established by case law) remains positive law, distinguishing between the rights which the parties can freely dispose of (droits disponibles, in which case judges are not obliged to apply French conflict-of-laws rules) and the rights which the parties cannot freely dispose of (droits indisponibles, in which case judges are obliged to apply French conflict-of-laws rules, on their own motion if necessary). In any case, courts retain the power to raise the conflict ex officio where the foreign element is flagrant, but their obligation to do so varies according to the nature of the rights disputed – a criterion often criticized for its imprecision.

In both Mienta and Airmeex cases, the derogatory regime of European rules of conflict is justified by a direct reference to the principles of primacy and effectiveness of EU law. Thus, for the Cour de cassation, the European conflict-of-laws rule does not enjoy a special status because it is a conflict-of-laws rule but rather because it is a (mandatory) European rule. Moreover, the criterion of the free disposability of rights was enforced on several occasions after Mienta, confirming that, in the eyes of the Cour de cassation, French judges have two quite distinct “offices”.

While the Airmeex ruling does not innovate in relation to the authority of the European rules of conflict, compared to Mienta, the Cour de cassation has nevertheless slightly modified its motivation. By adding a reference to Article 3 of the French Code civil to those to Article 12 of French Code de procédure civile and the principles of primacy and effectiveness of EU law, the court connects its solution with the general theory of French private international law. It also allows convergence of regimes between the authority of the rule of conflict and the status of foreign law, contemporary case law in the latter domain developing on the ground of the same Article 3.

Despite being two distinct issues, strengthening the status of foreign law is the corollary of reinforcing the authority of conflict-of-laws rules. In France, foreign law is formally considered as a “rule of law” and the establishment of its content is still regulated by the Aubin–Itraco system (also established on case law). This case law imposes a “duty of investigation” according to which the judge who recognizes the applicability of foreign law must “investigate its content, either on its own motion or at the request of the party who invokes it, with the assistance of the parties and personally if necessary, and give the disputed question a solution consistent with positive foreign law”. However, this apparent automaticity in applying foreign law shall not obscure the fundamental difficulties raised by the encounter with “otherness” in its legal form. Critical approaches to comparative law teach that there is an irreducible space separating foreign-law-as-it-is-lived-in-its-country-of-origin and foreign-law-as-it-is-apprehended-by-the-national-judge. This literature could fortunately inspire private international law in developing a procedural framework of hospitality for applying foreign law in its own terms.

Conclusion

The Airmeex and Mienta decisions will only partially content those who advocate for the general obligation of domestic judges to systematically enforce every single European rule of conflict. It will satisfy even less French’ majority scholarship, which considers that any rule of conflict should be obligatory for the judge. Nevertheless, it is in line with the traditional approach of the Cour de cassation that elaborates the authority of conflict-of-laws rules on the basis of substantive considerations.

The draft French Code de droit international privé runs counter to this current trend of the case law. Its Article 9 would impose the mandatory application of every rule of conflict, whatever their source or the nature of the rights in dispute. This question of the “office du juge” in the draft Code renders the pitfalls inherent in the codification process all the more apparent. Despite the generic principle enshrined in Article 9, the project multiplies special norms and exceptions in a quite scattered manner. We can express some reservations as to the interest of rigidifying a matter in which case law has, in spite of repeated resistance from the scholarship, chosen a pragmatic position grounded on substantial considerations, especially when such ossification is based on the hypertrophy of special regimes. Similar flaws appear to jeopardize the draft Code’s provisions on the proof of foreign law (namely Articles 13 and 14).

Although the attempt at codification is commendable and the actual result much honourable, the complex status of conflict-of-laws rules and foreign law seem intrinsically irreconcilable with the simplification and systematization approach inherent in the exercise. It might be fortunate to recognize that, when it comes to foreign law, “l’essentiel est là entre les mains du juge”.

Guest post by Professor Yeo Tiong Min, SC (honoris causa), Yong Pung How Chair Professor of Law, Yong Pung How School of Law, Singapore Management University

Merck Sharp & Dohme Corp (formerly known as Merck & Co, Inc) v Merck KGaA (formerly known as E Merck) [2021] 1 SLR 1102, [2021] SGCA 14 (“Merck”), noted previously, is a landmark case in Singapore private international law, being a decision of a full bench of the Court of Appeal setting out for the first time in Singapore law the limits of transnational issue estoppel. It was also the beginning of the deconstruction of the common law on the legal effect to be given to foreign judgments. Without ruling on the issue, the court was not convinced by the obligation theory as the rationale for the recognition of foreign in personam judgments under the common law, preferring instead to rest the law on the rationales of transnational comity and reciprocal respect among courts of independent jurisdictions. There was no occasion to depart from the traditional rules of recognition of in personam judgments in that case, and the court did not do so. However, the shift in the rationale suggested that changes could be forthcoming. While this sort of underlying movements have generally led to more expansive recognition of foreign judgments (eg, in Canada’s recognition of foreign judgments from courts with real and substantial connection to the underlying dispute), the indications in the case appeared to signal a restrictive direction, with the contemplation of a possible reciprocity requirement as a necessary condition for recognition of a foreign judgment, and a possible defence where the foreign court had made an error of Singapore domestic law.

The Republic of India v Deutsche Telekom AG [2023] SGCA(I) 10, another decision of a full bench of the Court of Appeal, provides strong hints of possible future reconstruction of the common law in this important area. While in some respects it signals a possibly slightly more restrictive common law approach towards the recognition of foreign judgments, in another respect, it portends a potentially radical expansion to the common law on foreign judgments.

Shorn of the details, the key issue in the case was a simple one. The appellant had lost the challenge in a Swiss court to the validity of an award against it made by an arbitral tribunal seated in Switzerland. The respondent then sought to enforce the award in Singapore. The question before the Singapore Court of Appeal was whether the appellant could raise substantially the same arguments that had been made before, and dismissed by, the Swiss court. The Court of Appeal formulated the key issue in two parts: (1) whether the appellant was precluded by transnational issue estoppel from raising the arguments; and (2) if not, then whether, apart from law of transnational issue estoppel, legal effect should be given to the judgment from the court of the seat of the arbitration. The second question, in the words of the majority, was:

“whether the decision of a seat court enjoys a special status within the framework for the judicial supervision and support of international arbitration, that is established by the body of law including the Convention on the Recognition and Enforcement of Foreign Arbitral Awards …, legislation based on the UNCITRAL Model Law on International Commercial Arbitration …, and case law.”

On the first issue, the court considered that the principles of transnational issue estoppel were applicable in the case. The majority (Sundaresh Menon CJ, Judith Prakash JCA, Steven Chong JCA, and Robert French IJ) summarised the principles in Merck as follow:

“(a) the foreign judgment must be capable of being recognised in this jurisdiction, where issue estoppel is being invoked. Under the common law, this means that the foreign judgment must:

(i) be a final and conclusive decision on the merits;

(ii) originate from a court of competent jurisdiction that has transnational jurisdiction over the party sought to be bound; and

(iii) not be subject to any defences to recognition;

(b) there must be commonality of the parties to the prior proceedings and to the proceedings in which the estoppel is raised; and

(c) the subject matter of the estoppel must be the same as what has been decided in the prior judgment.”

The court found on the facts that all the elements were satisfied in the case, and thus the appellant was precluded by the Swiss judgment from raising the challenges to the validity of the award in the enforcement proceedings in Singapore.

Mance IJ in a concurring judgment agreed that transnational issue estoppel applied to preclude the appellant from raising the challenges in this case. The application of issue estoppel principles to the international arbitration context is relatively uncontroversial from the perspective of private international law. There was one important distinction, however, between the majority and the concurring judgment on this point. The majority confined its ruling on transnational issue estoppel to a foreign judgment from the seat court, whereas Mance IJ considered transnational issue estoppel to be generally applicable to all foreign judgments in the international commercial arbitration context. Thus, in the view of the majority, the seat court may also enjoy special status for the purpose of transnational issue estoppel. It is not clear what this special status is in this context. At the highest level, it may be that transnational issue estoppel does NOT apply to foreign judgments that are not from the seat court, so that the only foreign judicial opinions that matter are those from the seat court. This will be a serious limitation to the existing common law. At another level, it may be that the rule that the prior foreign judgment prevails in the case of conflicting foreign judgments must give way when the later decision is from the seat court. This would modify the rule dealing with conflicting foreign judgments by giving a special status to judgments from the seat court.

Another notable observation of the majority judgment on the first issue lies in its formulation of the grounds of transnational jurisdiction, or international jurisdiction, ie, the connection between the party sought to be bound and the foreign court that justifies the recognition of the foreign judgment under Singapore private international law. Traditionally, it has been assumed that the common law of Singapore recognises four bases of international jurisdiction: the presence, or residence of the party in the foreign territory at the commencement of the foreign proceedings; or where the party had voluntarily submitted, or had agreed, to the jurisdiction of the foreign court. The majority in this case recognised four possible grounds: (a) presence in the foreign territory; (b) filing of a claim or counterclaim; (c) voluntary submission; and (d) agreement to submit to the foreign jurisdiction. Filing of claims and counterclaims amount to voluntary submission anyway. The restatement of the grounds omit residence as a ground of international jurisdiction. This is reminiscent of a similar omission in the restatement by the UK Supreme Court in Rubin v Eurofinance SA [2013] 1 AC 236, [2012] UKSC 46, which has since been taken as authoritative for the proposition that residence is not a basis of international jurisdiction under English common law. Notwithstanding that the Court of Appeal did not consider the Singapore case law supporting residence as a common law ground, it may be a sign that common law grounds for recognising foreign judgments may be shrinking. This may not be a retrogression, as international instruments and legislation may provide more finely tuned tools to deal with the effect of foreign judgments.

The key point being resolved on the first issue, there was technically no need to rule on the second issue. Nevertheless, the court, having heard submissions on the second issue from counsel (as directed by the court), decided to state its views on the matter. The most controversial aspect of the judgment lies in the opinion of the majority that, beyond the law of recognition of foreign judgments and transnational issue estoppel, there should be a “Primacy Principle” under which judgments from the seat of the arbitration have a special status in the law, as a result of the common law of Singapore developing in a direction that advances Singapore’s international obligations under the transnational arbitration framework. The majority summarised its provisional view of the proposed Primacy Principle in this way:

“By way of summary the Primacy Principle may be understood as follows, subject to further elaboration as the law develops:

(a) An enforcement court will act upon a presumption that it should regard a prior decision of the seat court on matters pertaining to the validity of an arbitral award as determinative of those matters.

(b) The presumption may be displaced (subject to further development):

(i) by public policy considerations applicable in the jurisdiction of the enforcement court;

(ii) by demonstration:

(A) of procedural deficiencies in the decision making of the seat court; or

(B) that to uphold the seat court’s decision would be repugnant to fundamental notions of what the enforcement court considers to be just;

(iii) where it appears to the enforcement court that the decision of the seat court was plainly wrong. The latter criterion is not satisfied by mere disagreement with a decision on which reasonable minds may differ. (As to where in the range between those two extremes, an enforcement court may land on, is something we leave open for development.) “

The Primacy Principle may be invoked if the case falls outside transnational estoppel principles. It may also be invoked even if the case falls within the transnational estoppel principles, if the party relying on it prefers to avoid the technical arguments relating to the application of transnational issue estoppel. However, the principle is only applicable if there is a prior judgment from the court of the seat; parties are not expected proactively to seek declarations from that court.

The Primacy Principle is said to build on the international comity in the specific context of international arbitration, by requiring an enforcement court to treat a prior judgment of a seat court as presumptively determinative of matters decided therein relating to the validity of the award, thus ensuring finality and avoiding inconsistency in judicial decisions, and promoting the effectiveness of international commercial arbitration. The majority also pointed out that the principle is aligned with the principle of party autonomy because the seat is generally expressly or impliedly selected by the parties themselves.

Mance IJ pointed out that the exceptions to the proposed Primacy Principle are very similar to the defences to issue estoppel, except that the exception based on the foreign decision being plainly wrong appears to go beyond the law on issue estoppel. In the elaboration of the majority, this refers to perversity (in the sense of the foreign court disregarding a clearly applicable law, and not merely applying a different choice of law) or a sufficiently serious and material error. In Merck, the Court of Appeal had suggested that a material error of Singapore law may be a ground for refusing to apply issue estoppel, but in principle it is difficult to differentiate between errors of Singapore law and errors generally, insofar as the principle is based on the constitutional role of the Singapore court to administer justice and the rule of law. So, this limitation in the Singapore law of transnational issue estoppel may well be in a state of flux.

Mance IJ disagreed with the majority on the need for, or desirability of, the proposed Primacy Principle. In his view, the case law supporting the principle are at best ambiguous, and there was no need to give any special status to the court of the seat of the arbitration under the law. In Mance IJ’s view, transnational issue estoppel, in the broader sense to include abuse of process (sometimes called Henderson estoppel (Henderson v Henderson (1843) 3 Hare 100; 67 ER 313), under which generally a party should not be allowed to raise a point that in all the circumstances it should have raised in prior litigation), is an adequate tool to deal with foreign judgments, even in the context of international arbitration. The rules of transnational issue estoppel are already designed to deal with the problem of injustice caused by repeated arguments and allegations in the context of international litigation. There is force in this view.  Barring defences, the transnational jurisdiction requirement for the recognition of judgments from the seat court under the common law does not usually raise practical issues because generally the seat would have been expressly or impliedly chosen by the parties and they are generally taken to have impliedly submitted to the jurisdiction of the court of the seat for matters relating to the supervision of the arbitration. Mance IJ also expressed concern about the uncertainty of a presumptive rule subject to defences where the contents of both the rule and defences are still unclear.

The contrasting views in the majority and the concurring judgments on the proposed Primacy Principle are likely to generate much debate and controversy. The Primacy Principle is said to be aligned with the territorialist view of international arbitration found in many common law countries and derived from the primary role that the court in the seat of the arbitration plays in the transnational arbitration framework. Thus, this view is highly unlikely to find sympathy with proponents of the delocalised theory. It will probably be controversial even in common law countries, where reactions similar to that of Mance IJ may not be unexpected.

Under the obligation theory, in personam judgments from a foreign court are recognised because the party sought to be bound has conducted himself in a certain manner in relation to the foreign proceedings leading to the judgment. On this basis, it is difficult to justify the special status of a judgment from the seat court within the principles of recognition or outside it. However, it would appear that, after Merck, while the obligation theory may not have been rejected in toto, it has not been accepted as the exclusive explanation for the recognition of in personam judgments under the common law. On the basis of transnational comity and reciprocal judicial respect, there is much that exists in the current common law that may be questioned, and much more unexplored terrain as far as the legal effect of foreign judgments not falling within the traditional common law rules of recognition is concerned. For example, the UK Supreme Court in Rubin v Eurofinance SA [2013] 1 AC 236, [2012] UKSC 46 had rejected that there were any special rules that apply to in personam judgments arising out of the insolvency context. This line of thinking has already been rejected in Singapore in the light of its adoption of the UNCITRAL Model Law on Cross-Border Insolvency (Re Tantleff, Alan [2022] SGHC 147; [2023] 3 SLR 250), but it remains to be seen what new rules or principles of recognition will be developed.

The idea that the judgment of the court of the seat (expressly or impliedly) chosen by the parties should have some special status in the law on foreign judgments has some intuitive allure. There is a superficial analogy with the position of the chosen court under the Hague Convention on Choice of Court Agreements. As a general rule (though not exclusively), the existence and validity of an exclusive choice of court agreement would be determined by the law applied by the chosen court, and a decision of the chosen court on the validity of the choice of court agreement cannot be questioned by the courts of other Contracting States. The Convention has no application to the arbitration context. However, at least under the common law, the seat of arbitration is invariably expressly or impliedly chosen by the parties, and it will usually carry the implication that the parties have submitted to the jurisdiction of the supervisory court for matters relating to the regulation of the arbitration process. It is also not far-fetched to infer that reasonable contracting parties would intend that court to have exclusive jurisdiction over such matters (C v D [2007] EWCA Civ 1282; [2008] 1 Lloyd’s Rep 239), Hilton International Manage (Maldives) Pvt Ltd v Sun Travels & Tours Pvt Ltd [2018] SGHC 56). But this agreement cannot extend to issues being litigated at the enforcement stage, because naturally, contracting parties would want the freedom to enforce putative awards wherever assets may be found, and the enforcement stage issues frequently involve issues relating to the validity of the arbitration agreement and the award. This duality is the system contemplated under the New York Convention. Whatever other justification there may be for the special status of judgments of the court of the seat, it is hard to find it within the principle of party autonomy.

 

 

The University of Luxembourg will host a conference on Enforcing Arbitral Awards against Sovereigns: Recent Trends and Practice on 10 January 2024. The conference is organised in partnership with Bonn, Steichen and Partners.

The conference will be divided in four parts. The first will discuss the influence of EU law on enforcement. The second will address new issues related to enforcement such as assignment of awards and the influence of the right to property. The third will be concerned with issues relating to attachment of assets, including sovereign immunities and asset tracing. The fourth will discuss States’ international obligations to comply with arbitral awards.

Speakers will include Gary Born (WilmerHale), Nicholas Lawn (Lalive), Ana Stanic (E&U Law Limited), Gilles Cuniberti (University of Luxembourg), Yael Ribco Borman (Gaillard Banifatemi Shelbaya Disputes), Javier Garcia Olmedo (University of Luxembourg), Fabio Trevisan (Bonn Steichen), Laura Rees-Evans (Fietta LLP), Thierry Hoscheit (Supreme Court, Luxemburg), Paschalis Paschalidis (Arendt & Medernach), Philippa Webb (Twenty Essex/ King’s College London), Michaël Schlesinge (Archipel), Luciana Ricart (Curtis, Mallet-Prevost, Colt & Mosle LLP), Crina Baltag, FCIArb (Stockholm University), Cameron Miles (3 Verulam Buildings), Manuel Casas (Twenty Essex), Loukas Mistelis (Queen Mary University of London/Clyde & Co), Matthew Happold (University of Luxembourg), Laure-Hélène Gaicio (Bonn Steichen).

The full programme can be found here. The event is free of charge, but registration is necessary (here).

The recently published Volume 433 of the Collected Courses of the Hague Academy of International Law includes a course by Salim Moollan (Brick Court Chambers) on Parallel Proceedings in International Arbitration.

The issue of parallel proceedings in international arbitration has been a long-standing and classic problem within the field. Despite this, there have been major developments in practice since the last major academic analysis of the issue in 2006 by the International Law Association and by the Geneva Colloquium on Consolidation of Proceedings in Investment Arbitration, led by Professor Kaufmann-Kohler. With this in mind, now is an opportune moment to re-examine the issue through a fresh theoretical lens and renewed focus on finding practical solutions.