Droit international général

In response to the COVID-19 pandemic and following a video message of the Secretary General, the Permanent Bureau (PB) of the Hague Conference on Private International Law has developed a COVID-19 Toolkit.

The COVID-19 Toolkit spots situations covered by Hague instruments on which the pandemia may have a particular impact, and compiles references to specific HCCH resources and publications thereto relevant in light of the current global situation. It is designed to assist users of the HCCH Conventions and other instruments in these challenging times and beyond.

The HCCH COVID-19 Toolkit is divided into two main categories: International Child Protection and Family Matters, covering, inter alia, child abduction, family maintenance and intercountry adoption, and International Legal Cooperation, Litigation and Dispute Resolution, concerning, among other things, service of documents and the taking of evidence abroad.

Within each category, a short description is made on the presumable effect of the pandemia, followed by a quick access to the most pertinent instruments or guides connected, such as the Guide to good practice on the “grave risk exception” to prompt return under Article 13(1)(b) of the 1980 Child Abduction Convention.

The PB has expressed its hope that “the Toolkit will continue to encourage the effective operation of the HCCH instruments, ultimately ensuring better access to justice for individuals, families and companies across the globe, as well as facilitating cross-border trade, investment and dispute resolution, even in these uncertain times”.

It is indeed a worthy initiative with a helpful, user-friendly outcome (which, when it comes to putting legal rules into practice, is more than welcome).

Preliminary question and its context

In its Judgment of 7 May 2020, delivered in the joined cases C-267/19 and C-323/19 without Advocate General’s Opinion, the Court of Justice provides some further guidance on the implications of its previous case law and most notably of the Judgment in the case C-551/15, Pula Parking (‘Judgment in Pula Parking’).

Just as in the case that led to Judgment in Pula Parking, the requests for a preliminary ruling in the cases in question were lodged in the context of the proceedings on the oppositions to the writs of execution. Put succinctly: under the Croatian law, a notary issues a writ of execution based on an ‘authentic document’. The party against whom enforcement is sought may lodge an opposition to that writ. The court to which the opposition is transferred has jurisdiction to set aside the writ and to annul the measures taken so far. The procedure continues according to the rules applicable to cases of opposition to a payment order.

By way of background, in Judgment in Pula Parking, the Court held, inter alia, that ‘[the Brussels I bis Regulation] must be interpreted as meaning that, in Croatia, notaries, acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an “authentic document”, do not fall within the concept of “court” within the meaning of that [Regulation]’.

The referring court in the present cases indicates that Judgment in Pula Parking receives various interpretation on the national level. It seems that the reading of this Judgment according to which it relates exclusively to enforcement proceedings conducted against a party being a natural person and national of another EU Member State prevails in the Croatian case law.

However, for the referring court, that reading of Judgment in Pula Parking establishes a discriminatory difference in the way in which the Brussels I bis Regulation is applied in Croatia. The referring court seems to understand that Judgment as implying that, in its Member State, notaries are not entitled to issue writs of execution based on an ‘authentic document’ and therefore, the fact that they continue to do so, is at odds with the Regulation.

In view of those explanations, at paragraph 42 the Court clarifies that it understands the request for a preliminary ruling as concerning the question whether Article 18 of the Treaty on the Functioning of the European Union and Article 47 of the Charter preclude national legislation entitling the Croatian notaries to issue the writs of execution on the basis of the ‘authentic documents’, which, in light of Judgment in Pula Parking, will not be recognized and/or enforced in other Member States under the scheme of the Brussels I bis Regulation.

 

Consideration of the question referred and what can be learned from it

At paragraph 43 the Court reaffirms that the writs of execution issued by the Croatian notaries would not benefit from the scheme of the Regulation when it comes to their recognition and/or enforcement. At paragraph 44, the Court reminds that Judgment in Pula Parking does not imply, however, that the Brussels I bis Regulation prevents the notaries from issuing the writs of execution. The references to Judgment in Pula Parking pave the way for the conclusion that neither Article 18 of the TFUE (paragraph 45), nor Article 47 of the Charter (paragraph 53) preclude national legislation entitling the notaries to issue the writs of execution which do not benefit from the recognition/enforcement scheme of the Regulation.

Incidentally, given that according to Judgment in Pula Parking the notaries do not fall within the concept of ‘court’ within the meaning of the Brussels I bis Regulation, paragraph 43 seems to imply that a writ of execution based on a ‘authentic document’ would not be recognized and/or enforced as ‘judgment’ within the meaning of Article 2(a) of the Regulation.

Neither the joined cases in question, nor the case that led to Judgment in Pula Parking offered an opportunity to address the question whether a writ of execution issued by a notary could be enforced under the scheme of the Brussels I bis Regulation as an ‘authentic instrument’ in the sense of Article 2(c) of the Regulation. In any case, an ‘authentic document’ on which a writ of execution is based cannot, in my view, be automatically placed on the same footing as such ‘authentic instrument’. Therefore, a writ of execution would not necessarily have to be an ‘authentic instrument’ based on an ‘authentic instrument’.

For the sake of completeness, AG Bot touched upon a somehow similar question in the context of the Regulation No 805/2004 (Regulation on European Enforcement Order for uncontested claims) in his Opinion in the case C-484/15, Zulfikarpaši. At points 45 to 49, he considered that a writ of execution is not an ‘authentic instrument’ within the meaning of Article 3(1) of that Regulation because the writ does not concern an uncontested claim. That argumentation is in line with the interpretation that the Court presented in its Judgment in that case and in particular at its paragraph 55. However, such argumentation could most probably not be directly transposed to the Brussels I bis Regulation as this Regulation does not confine its scope solely to uncontested claims.

It is also worth noticing that the Judgment of 7 May 2020 makes a point that exceeds the scope of the inquiry on the implications of Judgment in Pula Parking for the Croatian legal system. At paragraphs 33 et seq., in the part of the Judgment of 7 May 2020 relating to the jurisdiction of the Court, the criteria set in Article 3(1) of the Regulation no 1896/2006 (Regulation on European Order for Payment) in order to define a ‘cross-border case’ within the meaning of that Regulation are referred to in order to establish the existence of an international element that is necessary for the Brussels I bis Regulation to become applicable to a specific case.

The requests for a preliminary ruling in the cases in question can be consulted here and here. For numerous linguistic versions of the Judgment see here (no English version yet).

by Jie (Jeanne) Huang, Sydney Law School

 

On 19 May 2020, the Supreme Court of New South Wales rendered the judgment in Bao v Qu; Tian (No 2) and decided to enforce a monetary judgment issued by the Qingdao Intermediate People’s Court of Shanghai Province, China. This is the first case at the state of NSW in Australia where a Chinese monetary judgment got enforced.

The Chinese judgment-rendering proceedings

Both plaintiff and the defendants are citizens of China. The two defendants were a couple. The defendants allegedly did not pay loans borrowed from the plaintiff. In 2014, the People’s Court of Laoshan District Qingdao handed down the first-instance judgment for the plaintiff. One defendant appealed. Both defendants were represented in the second-instance trial at the Qingdao Intermediate People’s Court of Shangdong Province (‘Qingdao Court’). The Qingdao Court rendered the final judgment (‘Chinese judgment’) ordering the defendants to pay RMB 2,050,000 plus interest to the plaintiff in 2015. The Chinese judgment was partly enforced in China but largely remained outstanding.

The NSW judgment-enforcement proceedings

The plaintiff applied to enforce the Chinese judgment at the Supreme Court of NSW in 2019 under the common law. The defendants are resident in NSW and were personally served with the court proceedings.

The defendants conceded that the Qingdao Court had jurisdiction, the Chinese judgment was final and conclusive, and they were judgment debtors. However, they alleged that a substantial amount of money had been returned to the plaintiff before the Chinese judgment was rendered. The plaintiff rejected this argument alleging that the defense went to the merits of the Chinese judgment that should not be reviewed by the NSW court at the judgment recognition and enforcement (‘JRE’) proceedings.

The NSW court holds that defendants submitted to the jurisdiction of Chinese court by their procedural conducts. There is no evidence of any step taken to challenge the Chinese judgment in China. The first issue at the NSW proceeding is whether the Chinese judgment is obtained by fraud. Namely, whether the Chinese court was intentionally or recklessly misled into determining the incorrect value of the debt by not being made aware of the alleged repayments. The NSW court held that one of the alleged repayments seemed to have been raised in the Chinese proceedings but ultimately rejected by the Chinese Court. No evidence showed that Chinese Court denied the defendants the opportunity to presenting their case before an impartial tribunal or that the defendants were otherwise not given due notice. There was also no evidence showing that the alleged repayments were not reasonably discoverable at the time of the Chinese proceedings. Further, nothing proved that the alleged repayments had ever occurred or were related to the loans decided in the Chinese judgment. In conclusion, NSW court rejected the alleged repayments and refused to review the merits of Chinese judgment.

The second issue focuses on the legal nature of the punitive interest awarded in the Chinese judgment. The Chinese judgment included two types of interests. The first is the general interest calculated at the ‘benchmark interest rate for the loans in the same type as issued by the People’s Bank of China for the same period’. The second is the punitive interest awarded according to Article 253 of Chinese Civil Procedural Law, being that ‘if the judgment debt was not satisfied by 20 September 2015, then “the interest on the debt during the period of delay in fulfillment shall be paid at the double amount”.’ The court held that no submissions were made that the imposition of Article 253 interest was penal in nature, so it should be awarded.

Comments

1. Reciprocity

China is not listed in the Foreign Judgments Act 1991 (cth), so Chinese judgments cannot benefit from the ex parte registration process. Nevertheless, Chinese judgments can be recognized and enforced under the common law in Australia. However, China requires de facto reciprocity. This is demonstrated by a reply issued by the Chinese Supreme People’s Court in 2006, which provides that judgments issued in Australia cannot be recognized and enforced in China because Australia has not offered reciprocity to Chinese judgments.[1] Liu v Ma & anor [2017] VSC 810 is the first Chinese monetary judgment recognized and enforced in the state of Victoria. By Bao, the NSW court also enforced a Chinese monetary judgment. Considering the recent JRE development in Australia, Chinese Supreme People’s Court should review the 2006 reply. De facto reciprocity should have been established between China and Australia (or at least the states of Victoria and NSW). Judgments issued in Australia should be recognized and enforced in China if they do not violate the basic principles of Chinese law and the sovereignty, security and public interest of China according to Article 282 of Chinese Civil Procedure Law.

2. The alleged repayment

According to the NSW court, the Chinese judgment indicates that the Chinese court ‘refuse[d] to consider this request [to reduce the judgment debt as a result of the alleged repayment of RMB 200,000]’ because this claim ‘exceeded the scope of the Appellant’s claim’. The Chinese court’s rejection does not violate natural justice. This is because according to Chinese Civil Procedure Law, an appeal should be brought within 15 days after the first-instance judgment is served. If a party fails to bring a claim within this time period, the party loses its right to appeal. In practice, some appellants may bring an appeal within the time limit without clearly listing the claims and later try to add new claims. This practice goes against the seriousness of appeal. It is also inconsistent with the fairness and efficiency of litigation because the respondent should be served with the new claim and given a reasonable time to prepare the defence. Therefore, as a general principle, Chinese courts do not consider a new claim if it is not raised in the appeal petition.[2]

3. Double interest

Australian courts do not enforce foreign punitive damages that aim to ‘penalise the [ ] defendant and to deter others from failing to comply with the Court’s orders’ (Schnabel v Lui [2002] NSWSC 15 at [176]). However, the courts can enforce punitive damages that were to compensate the plaintiff’s private right due to the defendant’s deliberate and callous conduct and involved no public connotation in the remedy (Benefit Strategies Group v Prider [2004] SASC 365 at [72]).

Article 253 of the Chinese Civil Procedure Law provides that ‘if the party against whom enforcement is sought fails to pay money within the period specified in the judgment, he or she shall pay double interest for the debt for the period of delayed performance.’

The double interest imposed by this provision intends to punish the defendant for the delay of executing the judgment and remedy the plaintiff’s private right. It is not for the public interest of Chinese state. Therefore, the court correctly decided that the double interest should be enforced at the NSW.

 

[1] Letter of Reply of the Supreme People’s Court on Request for Instructions Re Application of DNT France Power Engine Co., Ltd. for Recognition and Enforcement of Australian Court Judgment [2006] Min Si Ta Zi No 45.

[2] There are few exceptions to this general principle. For example, the respondent agrees to add the new claim to the trial, or the new claim involves a fact which must be investigated by the court rather than the parties and without the finding of this fact, the case cannot be correctly decided.

The most recent issue of the Revue Critique de Droit International Privé is out. It contains three articles and numerous case notes.

In the first article, Roxana Banu (Western Law, Canada) discusses the scholarship of J. Jitta  (L’idéalisme pragmatique de Josephus Jitta (1854-1925)).

 Jitta occupied a very specific intellectual space between universalism and particularism and between state-centric and individualistic theoretical perspectives. His scholarship formed a different, quite radical alternative to the dominant private international law theory and methodology of his time. He rejected the conventional understanding of Savigny’s method of localizing transnational legal matters, fundamentally contested the premise that one could choose a law in disregard of its content, and refused to center private international law’s theory on the concept of state sovereignty. Yet his initially radical ideas evolved in a more pragmatic direction on contact with the great socio-political transformations following the First World War. This progression of his thought provides us with much to learn, while calling at the same time for a critical approach.

In the second article, Vincent Heuzé (University of Paris I) challenges the soundness of the doctrine of overriding mandatory provisions and argues that it is illogical and useless (Un avatar du pragmatisme juridique : la théorie des lois de police).

Pragmatism, as a legal theory, revolves around the refusal “to let itself be enclosed” in any given “system”. Such theory refutes giving in to a model of logical thinking. The triumph of legal pragmatism is best illustrated in private international law by the theory of the overriding mandatory provisions. The latter concept –to the extent its outcome was held as a genuine method– in fact only served as to legitimate a pragmatic legal vision. Indeed, such legal pragmatism theory is necessarily false, not to say useless, to that extent that it is incapable of upholding the solutions she inspired.

Finally, in the third article, Ilaria Pretelli (Swiss Institute of Comparative Law) explores some of the consequences of the Feniks case of the CJEU (case C-337/17).

Four CJEU judgements have up to now clarified the applicability of the Uniform European jurisdiction rules – the Brussels I system – to the modern versions of actio pauliana: the two Reichert cases (cases C-115/88 and C-261/90) had said what the pauliana is not; the recent obiter dictum in Reitbauer (case C-722/17) and, more substantially, Feniks (case C-337/17) have said what it is. In essence, the CJEU confirms that actio pauliana is a claim related to a contract with the consequence that the defendant may be sued both at his domicile – under art. 4-1 Brussels I a – and, alternatively, at the forum of the “obligation in question” – – under art. 7-1 Brussels I a. These two decisions have been discussed and mainly criticized by legal scholars (see for instance these posts here and here). who have voiced the inherent dangers of accepting the risk for the defendant of being attracted in an unpredictable forum. The 2018 decision on Feniks has seemed to open the path to an even greater uncertainty since, of the two contractual relations giving the cause of action to the claimant, the CJEU seem to have given relevance to the one between the creditor and the debtor, thus a relation to which the defendant is formally excluded.

The need to scrutinise the substantial – instead of the purely formal – relation between the defendant and the claimant is at the core of an analysis of Feniks appeared in the first issue of this year’s Revue critique de droit international privé. The circumstances of the case show in an unequivocal manner how involved the defendant appeared to be in the tactical sale operated by the debtor. In this respect, the Spanish forum of the domicile of the defendant might have well created complications suitable for the fraud against the creditor to succeed. The particular structure of the pauliana, constructed to unmask apparently legitimate operations, justifies a departure from a strict and formal interpretation of “predictability”.

The first consequence drawn by the author of the comment concerns the potential comprehensiveness of the alternative fora described in art. 7 Brussels Ia.

The author sees no reasons to discriminate claimants because of the subject of their claim. If an alternative is given in most of civil and commercial matters, why shouldn’t it be given to one or two of these. What is essential, and what the CJEU constantly underlines, is the existence of a narrow connection between the claim and the forum. In Feniks, many elements testified of the narrowness of the connection (the identity of the parties, the language of their pacts etc.).

The second topic of the comment addresses the core problem of trilateral situations that arise from two distinct legal (bilateral) relations: the difficulty of choosing ex ante the “obligation in question” for the effects of art. 7-1 Brussels I a.

As the majority of scholars has rightly pointed out, whenever the defendant is in good faith, it is absolutely unfair to give to the claimant the possibility of suing him or her in front of an unpredictable judge, such as the judge of the unperformed contract to which the defendant has never been part.

Since the pauliana consists in the reaction to a fraudulent, albeit apparently legitimate, contract, its transposition in private international law commands to avoid an aprioristical choice and suggests to give to the judge in question the power to decide which “obligation in question” needs to be taken into account in order to avoid, on the one hand, to manipulate the system in order to uphold the fraud and, on the other hand, that the defendant is sued in a forum for him truly unpredictable.

This solution promotes “good faith” to a connecting factor in line with the existing series of content-oriented and result-selective conflicts rules.

In sum, despite the laconicism of the decisions and the understandable reticence of scholars to accept them, Feniks and Reitbauer have eventually opened the right path for a uniform European jurisdictional rule for the national versions of actio pauliana.

The full table of contents is available here.

AB v EM [2020] EWHC 549 (Fam) concerns for a large part the application of Brussels IIa’s traditional jurisdictional rules (habitual residence etc.) and I shall not comment on those.

Of interest to the blog are, first, at 37 ff the application of the Regulation’s forum non conveniens rules: in that respect, compare with my posts on V v M and W v L. Further, the question whether the order made by the Sunnite Sharia Court of Beirut on 6 February 2019 in proceedings commenced by the mother in Lebanon in November 2018, incorporating and approving an agreement between the parties to these proceedings regarding custody and access with respect to M, capable of recognition in the UK and, if so, what impact should this have on the UK courts’ welfare determination?  The 2019 agreement established that the father would have custody of M and would reside with M in either the United Kingdom, Egypt or some other location of his choosing.

MacDonald J at 71-73, having referred to the spirit of comity, does not hold on what at 73 are briefly refered to as ‘wider criticisms’ of the February 2019 Order, or the allegations of durress in the coming to be of that order. He notes more as a matter of fact that circumstances in the child’s welfare have changed since the Order, and that the father did not at any rate honour elements of the agreement which the Order had confirmed.

No grand statement of principle, therefore. Rather, a measured practical approach.

Geert.

Brussels IIa.
Jurisdiction. Wrongful removal.
Recognition of order made by Sunnite #Sharia Court of Beirut on 6 February 2019 in proceedings commenced by the mother in Lebanon in November 2018, incorporating agreement between parties. https://t.co/72bfIuq3VH

— Geert Van Calster (@GAVClaw) March 16, 2020

Thank you Michael Douglas for alerting me to Bao v Qu; Tian (No 2) [2020] NSWSC 588 at the Supreme Court of New South Wales. The judgment does not require an extensive post. I report it because it is a solid application of the recognition and enforcement principles of foreign judgments under the common law of Australia. Hence good material for the comparative conflicts folder.

Geert.

 

The Court of Justice delivered last week (14 May 2020) its judgment in case C-17/19 (Bouygues travaux publics, Elco construct Bucarest, Welbond armatures), which is about the A 1 certificate (Article 19(2) of Regulation No 987/2009 – see below):

Question: “‘Must [Article] 11 of Regulation [No 574/72] and [Article] 19 of Regulation [No 987/2009] be interpreted as meaning that an E 101 Certificate issued by the institution designated by the competent authority of a Member State, under […] Regulation No 1408/71 … or an A 1 Certificate issued under Article 13(1) of Regulation No 883/2004 … is binding on the courts of the Member State in which the work is carried out when it comes to determining the legislation applicable, not only as regards the social security system but also as regards employment law, where such legislation defines the obligations of employers and the rights of employees, so that, having heard the arguments of the parties, those courts can disregard the abovementioned certificates only if, on the basis of an assessment of specific evidence, collected in the course of the judicial investigation, which supports the conclusion that the certificates were fraudulently obtained or relied on and which the issuing institution failed to take into account within a reasonable time, the said courts make a finding of fraud, comprised, as regards its objective element, by the failure to meet the conditions laid down in either of the aforementioned provisions of Regulations [No 574/72] and [No 987/2009] and, as regards its subjective element, by the intention of the accused person to evade or circumvent the conditions for the issue of that certificate, in order to obtain the advantages attaching thereto?’”

Reminder of some key provisions:

“Regulation No 883/2004
8 Regulation No 1408/71 was repealed and replaced with effect from 1 May 2010 by Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems
[…]
10 Article 13(2)(a) of Regulation No 1408/71 was replaced, in essence, by Article 11(3)(a) of Regulation No 883/2004, which provides that ‘subject to Articles 12 to 16 … a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State’.
11 Article 14(1)(a) of Regulation No 1408/71 was replaced, in essence, by Article 12(1) of Regulation No 883/2004, which provides that ‘a person who pursues an activity as an employed person in a Member State on behalf of an employer which normally carries out its activities there and who is posted by that employer to another Member State to perform work on that employer’s behalf shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of such work does not exceed [24] months and that that person is not sent to replace another posted person’.
12 Article 14(2)(b) of Regulation No 1408/71 was replaced, in essence, by Article 13(1) of Regulation No 883/2004, which provides:
‘A person who normally pursues an activity as an employed person in two or more Member States shall be subject to:
(a) the legislation of the Member State of residence if he/she pursues a substantial part of his/her activity in the Member State of residence; or
(b) if he/she does not pursue a substantial part of his/her activity in the Member State of residence…’
[…]

Regulation No 987/2009

15 Regulation No 574/72 was repealed and replaced, with effect from 1 May 2010, by Regulation No 987/2009.
16 Article 5(1) of Regulation No 987/2009 provides:
‘Documents issued by the institution of a Member State and showing the position of a person for the purposes of the application of the basic Regulation and of the implementing Regulation, and supporting evidence on the basis of which the documents have been issued, shall be accepted by the institutions of the other Member States for as long as they have not been withdrawn or declared to be invalid by the Member State in which they were issued.’
17 Article 19(2) of Regulation No 987/2009, which partly replaced Article 11(1)(a) and Article 12a(2)(a) and (4)(a) of Regulation No 574/72, provides that ‘at the request of the person concerned or of the employer, the competent institution of the Member State whose legislation is applicable pursuant to Title II of [Regulation No 883/2004] shall provide an attestation that such legislation is applicable and indicate, where appropriate, until what date and under what conditions’. That attestation is issued by means of a certificate (‘the A 1 Certificate’)”.

Response from the Court of Justice: “Article 11(1)(a), Article 12a(2)(a) and (4)(a) of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community […] and Article 19(2) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, must be interpreted as meaning that an E 101 Certificate, issued by the competent institution of a Member State, under [Regulation (EEC) No 1408/71] to workers employed in the territory of another Member State, and an A 1 Certificate, issued by that institution, under Article 12(1) or Article 13(1) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems […] to such workers, are binding on the courts or tribunals of the latter Member State solely in the area of social security”.

Source: here

As mentioned in my previous post, the Zeitschrift für Recht und Islam / Journal of Law & Islam issued a Call for Papers and kindly provided the following information:

The Zeitschrift für Recht und Islam / Journal of Law & Islam (ZR&I, previously: GAIR-Mitteilungen) is a scientific journal in co-operation with the Gesellschaft für Arabisches und Islamisches Recht e. V. (GAIR), a non-profit scientific association established in 1997. Its aim is the furthering of mutual understanding of law, legal systems and legal practice between European scholars and those of the Arabic and wider Islamic region.

The annual scientific journal contributes to this aim by publishing contributions on the legal developments in this field, covering theoretical legal debate as well as the practical application of both secular and Islamic laws. The journal gives space to a wide range of perspectives and takes regard of the historical development as well as the interaction of “secular” and Islamic laws in different contexts. Its analyses and debates go beyond the basic principles and outlines of those legal systems, but also address the actual developments, both in aspiration and reality. In addition, it covers key phenomena affecting – or even determining – scientific discourse, legislation and legal practice in the relevant states. This focus does however not confine itself to topics of specific or general regional interest, but also addresses the influence of global develop-ments and tendencies, as well as the legal relations among states.

Accordingly, we invite well-known and junior scholars as well as practitioners to help furthering this mutual understanding and dialogue by submitting publishable manuscripts. In view of imple-menting the aims of our association in a full and broad manner, the editors welcome contributions from specific disciplines, as well as interdisciplinary contributions that address the aspects above. We highly welcome the submission of articles, reports and reviews as well as case reports and comments on cases and legislation to the editorial double peer review process. Submissions must, however, not have been published or submitted for publication elsewhere.

The editors accept submissions in German and English. Please send your contributions to zri@gair.de, enclosing a brief personal description (no detailed curriculum vitae required). We kindly ask you to provide your submissions in the following format:

• submissions should have the formats doc, docx, odt or rtf,
• concerning fonts, we recommend Times New/Beyrut Roman, Arial, Junicode please use Unicode-characters for diacritic purposes
• use footnotes instead of a separate bibliography;

Bibliographical references should include:

1) concerning monographs and miscellanies:

a) Christian Starck (ed.): Constitutionalism, Universalism and Democracy – a Compar-ative Analysis, Studien & Materialien zur Verfassungsgerichtsbarkeit 75, 1999.

b) Matthias Herdegen: Constitutional Rights and the Diminishing State, in: Constitu-tionalism, Universalism and Democracy – a Comparative Analysis, Studien & Materialien zur Verfassungsgerichtsbarkeit 75, ed. by Christian Starck, 1999, pp. 183–198.

2) concerning articles:

a) William M. Ballantyne: The New Civil Code of the UAE: A Further Reassertion of the Shari?a, in: Arab Law Quarterly 3 (1985), pp. 245–264.

3) concerning internet sources: www.aladalacenter.com (last access 15.10.2017).

Quotes from the Arabic language that go beyond technical terms or short phrases should, in addition to the Arabic original, be provided in transcribed form (using an accepted scientific transcription system such as DMG or Encyclopaedia of Islam) and in translation.

Each submission will be subject to a double peer review procedure by two anonymous colleagues in the relevant area. Once their reports on a submission have been received, the authors will be notified whether their submission is accepted, accepted subject to changes, or rejected. The editors will be overseeing this process and make the final decision on publication. All authors will receive their contribution with editorial changes for a final review prior to publication.

For any queries please contact Sina Nikolajew from the editorial team, as well as the editors Beate Anam, Dr Hatem Elliesie, Kai Kreutzberger and Prof Dr Dr Peter Scholz at zri@gair.de.

Information about the journal (in English) is availabe here.

Volume 11/2019 of the Journal of Law & Islam / Zeitschrift für Recht & Islam (ZR&I) has just been published. The full issue is available online here. It includes case notes and articles devoted to questions of Islamic law and its interaction with other legal systems. Some of the articles are in English or French.

The Journal editors were so kind to provide me with English translations of the German articles:

Zeitschrift für Recht & Islam / Journal of Law & Islam ZR&I Volume 11 (2019)

EDITORIAL ………. (pp. 5 f.)

RECHTSPRECHUNG & URTEILSBERICHTE [CASE LAW & JUDGMENT DISCUSSION] ………. (pp. 5–12)

• Nichtanerkennung einer katarischen Privatscheidung: Anmerkung zu OLG Stuttgart, Beschluss vom 3.5.2019, Az. 3465 E – 519/18 [Non-recognition of a Qatari Private Divorce: Commentary on OLG Stuttgart, Decision of 3.5.2019, Az. 3465 E – 519/18] ………. (pp. 7–9), Peter Scholz
• Nichtanerkennung einer pakistanischen Adoptionsentscheidung: Anmerkung zu OLG Stuttgart, Beschluss vom 21. 1. 2019, Az. 17 UF – 25/18 [Non-recognition of a Pakistani Adoption Decision: Commentary on OLG Stuttgart, Decision of 21. 1. 2019, Az. 17 UF – 25/18]………. (pp. 11 f.), Peter Scholz

ARTIKEL [ARTICLES] ………. (pp. 13–173)

• Targih und madhab: Zur Rolle des targih-Verfahrens bei der Entwicklung der traditionellen islamischen Rechtsschulen [Targih and madhab: Regarding the Status of the targih Procedure in the Development of the Traditional Islamic Law Schools] ………. (pp. 13–37), Ahmed Gad Makhlouf
• Die Hisbollah und die schiitische Frau – ihre religiösen Rechte und entsprechende politische sowie öffentliche Darstellung [Hisbollah and the Shi’i Woman – Her Religious Rights and Corresponding Political aas well as Public Representation] ………. (pp. 39–56), Batol Kobeissi
• Die Fatwa-Praxis des schiitischen Großayatollahs Sayyid Muhammad Husain Fadlallah am Beispiel Masturbation [The Fatwa Practice of the Shi’i Great Ayatollah Sayyid Muhammad Husain Fadlallah Exemplified on Masturbation] ………. (pp. 57–78), Doris Decker
• Zur Geschichte zweier hadite, die häufig in der Diskussion über FGM zitiert werden [On the Historical Derivation of two hadite Commonly Cited in the Discussion about FGM] ………. (pp. 79–104), Thomas Eich
• Die Talaq-Scheidung und das deutsche Recht [Talaq Divorce and German Law] ………. (pp. 105–112), Christian F. Majer
• Zum Straftatbestand der Kindesmisshandlung: Ein Blick auf die Rechtspraxis in Saudi-Arabien [The Criminal Offense of Child Abuse: Reflections on the Legal Practice in Saudi Arabia] ………. (pp. 113–144), Elisa Schweitzer
• The Recognition and Enforcement of German Money Judgments in Turkey………. (pp. 145–151), Hamit Alp Ünlü
• La finance islamique au service de l’économie sociale et solidaire de l’occident [Islamic Finance and its Service for the Social and Solidarity Economy of the Occident] ………. (pp. 153–173), M’hamed Hamidouche & Amina Berkane & Ahmed Berkane

TAGUNGSBERICHTE [CONFERENCE REPORTS] ………. (pp. 175–189)

The Hanafi School: History, Transformations, and Future, 3–5 December 2018, Amsterdam ………. (pp. 175–186), Samy Ayoub

TIF 2019 – Tunisia Investment Forum, 20. und 21. Juni 2019 in Tunis [TIF 2019 – Tunisia Investment Forum, 20 and 21 June 2019 in Tunis] ………. (pp. 187–189), Achim-Rüdiger Börner

REZENSIONEN [REVIEWS] ………. (pp. 191–199)

Rezension zu Adnan Trakic / John Benson / Pervaiz K Ahmed: Dispute Resolution in Islamic Finance. Alternatives to Litigation?, London / New York: Routledge 2019 [Review of Adnan Trakic / John Benson / Pervaiz K Ahmed: Dispute Resolution in Islamic Finance. Alternatives to Litigation?, London / New York: Routledge 2019] ………. (pp. 191–193), Kilian Bälz

Rezension zu Naseef Naeem: Der Staat und seine Fundamente in den arabischen Republiken, Berlin: Deutscher Levante-Verlag 2019 [Review of Naseef Naeem: Der Staat und seine Fundamente in den arabischen Republiken, (The State and its Foundations in Arab Republics), Berlin: Deutscher Levante-Verlag 2019] ………. (pp. 195–199), Achim-Rüdiger Börner

CALL FOR PAPERS ………. (pp. 201–204)

IMPRESSUM [IMPRINTS] ………. (pp. 205 f.)

For further information about the Journal see also its English page zri.gair.de/index.php/en.

The Journal also issued a Call for Papers which I will post seperately.

Jayne Holliday has written Clawback Law in the Context of Succession. The book is part of the Studies in Private International Law series published by Hart Publishing.

The blurb reads:

This book offers a global solution for determining the law applicable to a claim to clawback an inter vivos gift from a third party within the context of a succession. The book aims to identify an appropriate and applicable legal framework which supports legal certainty for cross-border estate planning and protects the legitimate expectations of the relevant parties. This is an area of private international law that has yet to be handled satisfactorily – as can be seen by the inadequate treatment of clawback from third parties in the 1989 Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons, and the 2012 EU Succession Regulation.

More information here.

Written by Silja Vöneky, University of Freiburg

Note: This blogpost is part of a series on „Corporate social responsibility and international law“ that presents the main findings of the contributions published in August Reinisch, Stephan Hobe, Eva-Maria Kieninger & Anne Peters (eds), Unternehmensverantwortung und Internationales Recht, C.F. Müller, 2020.

I. Introduction

1. The question of the status of transnational corporations in investment arbitration is of central importance for the division of spheres of responsibility, for the pursuit and enforcement of values, and thus for the bases of legitimation of the international legal order today.

2. The promotion of foreign direct investments and the deepening of economic cooperation between States to promote economic development with the common welfare objective of increasing the prosperity of the peoples of the contracting States parties has been the legitimating basis of the ICSID Convention, which is central to investment protection under international law, and of the bilateral investment protection agreements.

3. Investment protection law, as part of public international law – from its basis and purpose – should not be understood as a departure from a state-centered international order.

4. From the point of view of international law, the following questions have to be answered: What are the implications for the investment protection regime and investment arbitration as its core

a) if the triad justifying economic globalization (foreign private investment – promotion of economic development – promotion of prosperity) loses its persuasiveness as a paradigm for its justification in a normative sense, and

b) if a discourse of delegitimization prevails that accuses profit-oriented transnational corporations in their role as investors of irresponsible conduct, which is incompatible with the public welfare, and States of enabling this conduct to the detriment of their own population by means of international treaties establishing investment arbitration?

5. The aim to align investment treaties with the principle of sustainable development can be seen by the reforms initiated by States, groups of States, and the United Nations Conference on Trade and Development; besides, this aim should have an impact on already existing investment treaties and investment arbitration as far as it is coherent with international law.

II. Transnational corporations as equal parties under international law within the framework of investment arbitration

6. A necessary condition for the equality of the host State and an investing foreign corporation as parties is that both by consent agree to arbitration in respect of a legal dispute directly related to an investment, i.e. that the State, which is a contracting party to the ICSID Convention and a subject of international law, besides ratifying the convention additionally gives its written consent (Art. 25 (1), Art. 36 (2) ICSID Convention), which has a threefold function (legitimating element, transformative element and constitutive element).

7. For various reasons, the procedural equality of the host State and the transnational corporations within the framework of a concrete arbitration procedure is justified and thus legitimate with regard to the international legal order as a whole. In particular, it complies with the principle of fair trial and the rule of law as enshrined in international law.

8. The principle of the equality of the parties does not preclude that transnational corporations are given preferential access to arbitration on the basis of international treaties and that arbitration is open only to transnational corporations.

9. The principle of the equality of the parties is inter alia observed during the composition of an arbitral tribunal if the judges are appointed by both parties in the same manner and each judge fulfils criteria which plausibly ensure impartiality. However, the appointment by the parties is not a necessary condition for the equality of the parties.

10. Questions about how to implement the principle of the equality of the parties arise in the arbitral proceedings themselves, in particular with regard to the possibility that several investors seek to bring their claims against the same host State, with regard to the admissibility of a counterclaim by the host State, with regard to the admissibility of “amicus curiae briefs” (third person submissions), with regard to the so-called equality of arms, and with regard to the problem of safeguarding confidentiality interests (in particular State secrecy).

11. Questions of the applicable law within the scope of the merits, such as the possibility of the host State to invoke justifications under international law (e.g. necessity) and the principles of interpretation of the investment protection agreements, are not considered to be questions of the principle of the equality of the parties.

III. (Un)justified unequal treatment to the detriment of transnational corporations as parties with regard to corruption problems

12. The decisions of arbitral tribunals, which deny their jurisdiction or the admissibility of the investor claim if the defendant host State asserts corruption, are convincing (only) with regard to limited types of cases.

13. The lack of jurisdiction of the tribunal or the inadmissibility of the investor’s claim does not seem to be justified even if the transnational corporation’s act of corruption made the investment possible in the first place: The contrary reasoning in investment arbitration decisions, based inter alia on the wording of bilateral investment treaties, the scope of the host State’s consent and/or a violation of fundamental general principles (such as, inter alia, the so-called “clean hands” principle, the “international public policy” or “transnational public policy”, or the principle that no one shall profit from his/her own wrong) is not convincing for various reasons .

14. The same is true even more – in accordance with recent investment arbitration decisions – if the foreign investor acted corruptly after the investment had already been initiated in the host State.

15. Instead, corruption should be taken into account in the decision on the merits of a case in accordance with the objectives and principles of the international legal order in such a way that central values of investment protection are not disproportionately undermined, but nevertheless relevant disadvantages arise for transnational corporations if they engage in acts of corruption abroad for or during investments. This can be achieved if the amount of investors compensation is reduced for example by a multiple of the sum of the corruption.

16. When considering acts of corruption in the merits of a case, the arbitral tribunal should therefore consider the distribution of responsibility, the pursuit and enforcement of global values, and the bases of legitimacy of the current international legal order, also taking into account the state’s anti-corruption obligations, in particular as enshrined in anti-corruption conventions and human rights treaties.

IV. Concluding remarks

17. The procedural equality of host States and transnational corporations within the framework of an investment arbitration procedure has no implications on the status of transnational corporations in the international legal order as a whole; other views, which argue that transnational corporations are (full or partial) subjects of international law in a normative sense, exceed the – de lege lata – narrowly limited equality.

18. The risks associated with a normative enhancement of transnational corporations in the international legal order present another argument against the view that corporations are (full or partial) subjects of international law. These risks are hinted at in the delegitimization discourse, which grants profit-oriented companies less influence in the international legal order of the 21st century.

19. Even without the status as subjects of international law, transnational corporations can be bound by norms of international law (international law in the narrow sense and so-called soft law). The UN Guiding Principles for the Business and Human Rights are, inter alia, of particular relevance.

20. If – with good reasons – foreign direct investments by transnational corporations continue to be promoted via international law as a means of increasing prosperity in the participating States for the benefit of the respective population, the public-good orientation of international investment arbitration tribunals should be further developed, on the one hand, by reforming the constitutional aspects of the arbitral procedure, and, on the other hand, by further focusing their jurisprudence on public-good aspects including the proportionate protection of responsible investments.

 

Full (German) version: Silja Vöneky, Die Stellung von Unternehmen in der Investitionsschiedsgerichtsbarkeit unter besonderer Berücksichtigung von Korruptionsproblemen – Unternehmen als völkerrechtlich gleichberechtigte Verfahrensparteien?, in: August Reinisch, Stephan Hobe, Eva-Maria Kieninger & Anne Peters (eds), Unternehmensverantwortung und Internationales Recht, C.F. Müller, 2020, pp. 339 et seq.

 

Many thanks Russell Hopkins for alerting me to Stichting Human Rights for Eritreans v the European Union, demanding a halt to EU aid worth 80 million EUR being sent to Eritrea. The Foundation Human Rights for Eritreans argues the aid project financed by the EU aid relies on forced labour. Claimants have a portal with both the Dutch and English versions of the suit.

Of note to the blog is the jurisdictional section of the suit, p.32 ff. Claimants first of all put forward that the CJEU’s Plaumann criteria (which I discussed ia here in the context of environmental law) effectively are a denial of justice and that Article 6 ECHR requires the Dutch courts to grant such access in the CJEU’s stead. An interesting argument.

Note subsequently at 13.9 ff where Brussels Ia is discussed, the suggestion that given the large diaspora of Eritreans in The Netherlands, locus damni (actual or potential) lies there. This is in my view not an argument easily made under Article 7(2) Brussels Ia given CJEU authority.

Geert.

 

Class action based on NL WAMCA act
Jurisdiction discussed S13 p32 ff which suggests A7(2) BIA tort jurisdiction (with the Stichting suggested as suffering damages in NL); alternatively A6 #ECHR jurisdiction, with reference to the hardship in suing at the CJEU following Plaumann. https://t.co/9YMAjPS0wo

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

I earlier reviewed Szpunar AG’s Opinion in C‑641/18 Rina, on which the Court held on 7 May, confirming the AG’s view. Yannick Morath has extensive analysis here and I am happy to refer. Yannick expresses concern about the extent of legal discretion which agencies in various instances might possess and the impact this would have on the issue being civil and commercial or not. This is an issue of general interest to privatisation and I suspect the CJEU might have to leave it to national courts to ascertain when the room for manoeuvre for such agencies becomes soo wide, that one has to argue that the binding impact of their decisions emanates from the agencies’ decisions, rather than the foundation of the binding effect of their decisions in public law.

I was struck by the reference the CJEU made at 50 ff to the exception for the exercise of official authority, within the meaning of Article 51 TFEU.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.1.

 

In accordance with its goal to be a pan-European forum for reflection on issues of private international law, the European Association of Private International Law is seeking to establish working groups which will reflect on selected topics of private international law and submit their conclusions for endorsement by the Association.

EAPIL Working Groups might be constituted to reflect on any topic of private international law, whether broad or specific, theoretical or practical. The goal of Working Groups is to publish their conclusions in a document which could take various forms (reports, draft legislation, principles, recommendations, position papers, etc.).

All EAPIL members are entitled either to join any established Working Group, or to follow the work of the Working Group by joining its Members Consultative Committee.

Finally, the Association invites all members to propose the constitution of Working Groups on any topic of interest. More information on the procedure for establishing Working Groups can be found here.

Project on the Feasibility of a European Private International Law Act

The first Working Group established by EAPIL will refect on the feasibility of a European PIL Act and is chaired by Professor T. Kadner Gaziano. A full description of the project is available on the Group’s page.

Other Contemplated Working Groups

The establishment of several other working groups is currently contemplated. Proposals will be submitted for approval to the Scientific Committee once an appropriate number of members has expressed interest to join them. Any interested member is invited to contact the responsible person for the relevant group.

Project on a future European Regulation on International Property Law

So far, International Property Law has not been a subject matter in the ongoing process of Europeanisation of Private International Law through Regulations. This does not mean that the European legislator has not yet touched property law. The Regulations on matrimonial property and on succession have certain overlaps with international property law which the CJEU is in the process of clarifying (see e.g. the famous Kubicka case). Rights in rem also play a role for the rules on exclusive jurisdiction (Article 24 nr. 1 Brussels I bis Regulation). Furthermore, numerous directives, especially in the realm of finance law, use the lex rei sitae as a connecting factor.

This fragmented picture and the fact that Member States’ autonomous rules on international property law are by far not uniform although most, if not all, still use the lex rei sitae principle as a starting point, call for a European Regulation on the law applicable to proprietary rights. The project is meant to be limited to tangible movable and immovable property, leaving out rights in intangibles (claims, intellectual property rights) and securities whether incorporated or unincorporated.

The group is still under formation. EAPIL Members who like to join it are invited to signal their interest to Prof. Dr. Eva-Maria Kieninger (Kieninger@jura.uni-wuerzburg.de).

Project on Interests in European Private International Law

The issue of interests is a topic of the highest practical importance, which is raised by the award of any sums of money. In cross-border relations, it is necessary to assess which law applies to them, whether at the adjudicatory stage when a court rules on a financial claim, or at the enforcement stage, when an enforcement authority is requested to enforce a foreign judgment. Yet, European Regulations of PIL are largely silent on the topic. The working group will aim at proposing either amendments to existing legislation or interpretations addressing these issues.

Members interested to join the working group or follow its work in the Members Consultative Committee are invited to contact Prof. Dr. Caroline Kleiner (caroline.kleiner@parisdescartres.fr).

Project on the Evidence Regulation

The Evidence Regulation is currently being recast. Unfortunately, the contemplated reform neglects the most important of its flaws, the need for liberalization of the cross-border taking of evidence in the European Union. The CJEU has underscored the backwardness of the Evidence Regulation by allowing courts of the Member States to ignore it and use directly their national procedures. The working group will aim at proposing a new ambitious framework liberalizing cross-border taking of evidence in the European Union.

Members interested to join the working group or follow its work in the Members Consultative Committee are invited to contact Prof. Dr. Gilles Cuniberti (gilles.cuniberti@uni.lu).

Written by Stefan Huber, University of Tübingen

Note: This blogpost is part of a series on „Corporate social responsibility and international law“ that presents the main findings of the contributions published in August Reinisch, Stephan Hobe, Eva-Maria Kieninger & Anne Peters (eds), Unternehmensverantwortung und Internationales Recht, C.F. Müller, 2020.

1. In investor-state arbitration, one has to distinguish between arbitral proceedings which are initiated on the basis of a contract concluded between the investor and the host state, on the one hand, and arbitral proceedings which are initiated on the basis of a bilateral investment treaty, on the other hand. In the latter case, there is no arbitration agreement in the traditional sense. This entails a unilateral right of the investor to initiate arbitral proceedings. Granting the host state the right to bring a counterclaim might compensate this asymmetry up to a certain degree.

2. Whether the host state has the right to bring a counterclaim, depends on the dispute settlement mechanism provided for in the bilateral investment treaty. For future investment treaties, it is recommended to grant the host state such a right. When the investor introduces arbitral proceedings on the basis of such a treaty, the investor usually declares his consent with the entire dispute settlement clause. If, at this moment, the investor expressly excludes the right of the host state to bring a counterclaim which is provided for in the bilateral investment treaty, there is no correspondence between the declaration of the host state and the declaration of the investor to submit the dispute to arbitration. Consequently, if the host state refuses to participate in the arbitral proceedings on such a basis, the arbitral tribunal does not have jurisdiction to decide the case.

3. The subject matter of treaty-based investor-state arbitration generally concerns regulatory measures of the host state. This makes a considerable difference in comparison to commercial arbitration, which focuses on the interests of private actors. This difference entails different procedural principles, primarily as far as questions of confidentiality and transparency are concerned.

4. There are, however, procedural principles of particular importance, which reflect the cornerstones in a system based on the rule of law in its substantive sense and require, as such, observance in all types of proceedings independently of the subject matter. The principle of equality of arms is one of these principles. Tribunals shall ensure that both parties are in an equal position to present their case. If there is a systemic superiority of one group of parties, tribunals have to be particularly vigilant and, if necessary, to intervene proactively in order to compensate factual inequality.

5. The principle of equal treatment of the parties is not only to be respected within one and the same proceeding. Treating two types of party – states on the one hand and investors on the other – differently in general, i.e. not just in a specific proceeding, would likewise amount to a violation of this principle. If certain questions concerning the burden and standard of proof arise in one procedural situation typically in the interest of the host state and in another procedural situation typically in the interest of the investor, the tribunals should deal with those questions in the same manner.

6. Investments which are in conformity with the law as far as their object is concerned, but which are corruption-tainted due to corruption that took place when the investment was made lead to discussions about the content of international public policy. Against this background, there would appear to be a practice for tribunals to deny jurisdiction or admissibility of the arbitral proceedings in cases concerning corruption-tainted investments. Actually, this leads to a denial of justice. International public policy, however, does not require such an approach. A comparison with the treatment of corruption cases in commercial arbitration shows this very clearly. The circumstances of the individual cases are too manifold; a one-fits-all solution construed at the level of jurisdiction or admissibility is not convincing. The arbitral tribunals should rather undertake a comprehensive analysis on the basis of the applicable substantive rules of law in order to take into account the particular circumstances of each individual case. State interests can be properly respected via mandatory rules and international public policy.

 

Full (German) version: Stefan Huber, Die Stellung von Unternehmen in der Investitionsschiedsgerichtsbarkeit (unter besonderer Berücksichtigung von Korruptionsproblemen) – Unternehmen als gleichberechtigte Verfahrensparteien?, in: August Reinisch, Stephan Hobe, Eva-Maria Kieninger & Anne Peters (eds), Unternehmensverantwortung und Internationales Recht, C.F. Müller, 2020, pp. 303 et seq.

Gisela Rühl (Friedrich-Schiller-University Jena and Humboldt-University of Berlin) has posted Settlement of International Commercial Disputes Post-Brexit, or: United We Stand Taller on SSRN.

The abstract reads:

The European market for the settlement of international commercial disputes is currently dominated by London. According to official statistics, about 80% of the cases brought before the London Commercial Court involve at least one foreign party. And in about 50% of the cases both parties are foreign. Obviously, the London Commercial Court is a popular forum for the settlement of international commercial disputes. And, obviously, it has an international appeal that is – at least in Europe and at least thus far – second to none.The remaining EU Member States, however, are not sleeping. In fact, over the course of the last years the prospect of Brexit has induced some of them to take measures designed to make their civil justice systems more attractive for international commercial parties: Germany, for example, established two first instance, international commercial chambers at the Regional Courts in Frankfurt and Hamburg in 2018 which offer to conduct proceedings in English. France created an English language chambre internationale at the Paris Court of Appeal in March 2018 which complements and adds a second instance to the English language chamber at the Paris Commercial Court that has been operating since November 2010. The Netherlands inaugurated the English language Netherlands Commercial Court and the Netherlands Commercial Court of Appeal in January 2019. And other countries, notably Belgium and Switzerland are contemplating the establishment of one or more specialized courts to deal with international disputes. Quite clearly: the European market for international commercial litigation is on the move. And while some of the above mentioned chambers and courts were in the making before the UK decided to leave the EU in 2016, there can be little doubt that the prospect of Brexit has fuelled the development. The interesting question, however, is whether the recent trend to establish international commercial chambers and courts will actually yield any success? Will companies decide to come to the continent – rather than to London – to settle their disputes after Brexit? As a matter of principle, the odds are not too bad: After all the UK will lose its access to the European Judicial Area once Brexit becomes fully effective, namely when the transition period provided for in the Withdrawal Agreement expires. English court proceedings will then no longer benefit from the many European Regulations that ease the settlement of international disputes and judicial cooperation in cross-border civil matters. At least for companies which seek access to the European Judicial Area, Brexit will, therefore, make it less attractive to settle a dispute in London.The following chapter takes this observation as an occasion to explore the consequences of Brexit for the settlement of international commercial disputes in more detail. It argues that no court in the remaining Member State seems in a position to present itself as a serious alternative to the London Commercial Court. It is, therefore, suggested that the EU should step in and create a European Commercial Court. This Court would provide European companies with an international forum in the European Judicial Area after Brexit and would also attract disputes that would otherwise be settled before other international commercial courts or international arbitration tribunals.

The paper is forthcoming in Jörn Axel Kämmerer, Hans-Bernd Schäfer (eds), Brexit and the Law. An Interdisciplinary Study, Edward Elgar.

Amazingly, despite the severe crisis in Venezuela, the Master’s Program in Private International Law and Comparative Private Law at the Universidad Central de Venezuela has managed to publish its second Yearbook, with two theses and several impressive shorter pieces by students as well as two new pieces and two “classics” by professors.  (Report on the first yearbook last year is here.)

A comprehensive Commentary, edited by Professor Sabine Corneloup and published by Edward Elgar Publishing, was recently released providing an in-depth analysis of the Rome III Regulation implementing enhanced cooperation in the area of the law governing cross-border divorce and legal separation. The Commentary is a welcome addition to Elgar’s already thriving ‘Commentaries in Private International Law’ series.

Written by a team of internationally renowned experts of private international law in family matters, the Commentary analyses, on an article-by-article basis, and contextualises the provisions of the Rome III Regulation, providing clear insight into the rationale behind the text. Substantive values and political choices underlying the adoption of the Regulation are factored in the analysis, offering the reader a thorough and comprehensive illustration of the objectives pursued with each article and with the Regulation, overall. In this context, each provision is pondered in connection with, inter alia, the relevant fundamental rights such as non-discrimination between spouses, self-determination of the individual, the protection of the right to marry, and the right to respect for family life.

Overall, the contributors critically engage with each article, shedding the light on the Regulation’s effectiveness and offering a balanced critique by approaching the topics from a variety of viewpoints. In this context, they do not shy away from underscoring gaps currently existing in the text of the Regulation (such as, for instance, that arising from the absence of an autonomous definition of ‘marriage’) and address the open questions that arise therefrom. Furthermore, the Commentary casts the light on the Regulation’s interactions and coordination with complementary instruments adopted in the area of EU family law, and in particular (but not only) the Brussels II-bis Regulation, promoting a thorough understanding of the EU private international law system on divorce and legal separation. Finally, the Commentary delves into the interface of the Regulation with national substantive provisions and the differences arising therefrom, hence providing the reader with a clear and valuable understanding of the issues surrounding the practical application of the Regulation at the national level.

The Commentary benefits from the contributions of:

Alexandre Boiché, Attorney in Paris (France)

Laura Carpaneto, Professor at the University of Genova (Italy)

Christelle Chalas, Senior Lecturer at the University of Lille (France)

Sabine Corneloup, Professor at the University of Paris II Panthéon-Assas (France)

Stefano Dominelli, Post-Doc Researcher at the University of Genova (Italy)

Pietro Franzina, Professor at the Catholic University of Milan (Italy)

Cristina González Beilfuss, Professor at the University of Barcelona (Spain)

Susanne L. Gössl, Professor at the University of Kiel (Germany)

Petra Hammje, Professor at the University of Nantes (France)

Bettina Heiderhoff, Professor at the University of Münster (Germany)

Fabienne Jault-Seseke, Professor at the University of Versailles Saint-Quentin – Paris Saclay (France)

Natalie Joubert, Professor at the University of Burgundy (France)

Thalia Kruger, Professor at the University of Antwerp (Belgium) and Honorary Research Associate at the University of Cape Town (South Africa)

Caroline S. Rupp, Junior Professor at the University of Würzburg (Germany)

Jinske Verhellen, Professor at the University of Ghent (Belgium)

The in-depth discussion offered by this Commentary will prove to be an essential guide for private international law scholars and practitioners alike to navigate the complex field of family litigation. It will be of particular interest to those working in family law, including judges, lawyers, public notaries and family mediators, as well as graduate students looking for in-depth knowledge of the subject.

Sabine CORNELOUP (ed), The Rome III Regulation. A Commentary on the Law Applicable to Divorce and Legal Separation, pp v-242 (Elgar, 2020). The eBook version of the Commentary is available on Google Play, ebooks.com and other eBook vendors, while in print the book can be ordered from the Edward Elgar Publishing website.

 

 

 

 

 

A new volume in the series of Ius Comparatum – Global Studies in Comparative Law has been recently published by Springer. The volume was edited by Prof. Catherine Kessedjian, Université Panthéon-Assas Paris II Paris, France, and Prof. Humberto Cantú Rivera, School of Law University of Monterrey, Mexico.

The book addresses one of the core challenges in the corporate social responsibility (or business and human rights) debate: how to ensure adequate access to remedy for victims of corporate abuses that infringe upon their human rights. However, ensuring access to remedy depends on a series of normative and judicial elements that become highly complex when disputes are transnational. In such cases, courts need to consider and apply different laws that relate to company governance, to determine the competent forum, to define which bodies of law to apply, and to ensure the adequate execution of judgments. The book also discusses how alternative methods of dispute settlement can relate to this topic, and the important role that private international law plays in access to remedy for corporate-related human rights abuses.

This collection comprises 20 national reports from jurisdictions in Europe, North America, Latin America and Asia, addressing the private international law aspects of corporate social responsibility, most of which were prepared for the Fukuoka Conference of the
International Academy of Comparative Law in the summer of 2018. They were last
updated in February 2019 for this publication. The model questionnaires, in French
and English, are included after the national reports.

The book draws two preliminary conclusions: that there is a need for a better understanding of the role that private international law plays in cases involving transnational elements, in order to better design transnational solutions to the issues posed by economic globalisation; and that the treaty negotiations on business and human rights in the United Nations could offer a forum to clarify and unify several of the elements that underpin transnational disputes involving corporate human rights abuses, which could also help to identify and bridge the existing gaps that limit effective access to remedy. Adopting a comparative approach, this book appeals to academics, lawyers, judges and legislators concerned with the issue of access to remedy and reparation for corporate abuses under the prism of private international law.

The list of contributors is the following:

Joost Blom Peter A. Allard School of Law, University of British Columbia, Vancouver, BC, Canada
Angelica Bonfanti Dipartimento di Diritto pubblico italiano e sovranazionale, Università degli Studi di Milano, Milano, Italy
Andrea Bonomi University of Lausanne, Lausanne, Switzerland
Nicolas Bueno University of Zurich, Zürich, Switzerland
Humberto Cantú Rivera School of Law, University of Monterrey, Monterrey, Mexico
Nicolás Carrillo Santarelli Universidad de La Sabana, Bogotá, Colombia
Si Chen Faculty of Law, McGill University, Montreal, QC, Canada
Steven Comerford U.S. State Department, Washington, DC, USA
Juan Ignacio Contardo Universidad Diego Portales, Santiago, Chile
Anne Danis-Fatôme Université de Brest, Brest, France
Mafalda de Sá Faculty of Law, University of Coimbra, Coimbra, Portugal
Marilda Rosado de Sá Ribeiro Universidad do Estado do Rio de Janeiro, Rio de Janeiro, Brazil
Katrin Deckert Université Paris-Nanterre, Paris, France
Siel Demeyere KU Leuven, Leuven, Belgium
Liesbeth F. H. Enneking Erasmus School of Law, Erasmus University Rotterdam, The Netherlands
Monika Feigerlová Institute of State and Law, Czech Academy of Sciences, Prague, Czech Republic
Leonhard Hübner Institut für ausländisches und internationales Privat- und Wirtschaftsrecht, Universität Heidelberg, Heidelberg, Germany
Luca Kaller Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg, Germany
Milana Karayanidi Orrick, Herrington & Sutcliffe LLP, Washington, DC, USA
Catherine Kessedjian Université Panthéon-Assas Paris II, Paris, France
William Fernando Martínez Luna Universidad Jorge Tadeo Lozano, Bogotá, Colombia
Kasey McCall-Smith Public International Law, Edinburgh Law School, University of Edinburgh, UK
María Susana Najurieta Universidad de Buenos Aires, Viamonte, Argentina
Chien Quoc Ngo Foreign Trade University, Hanoi, Vietnam
Marie Laure Niboyet Université Paris-Nanterre, Paris, France
Monika Pauknerová Institute of State and Law, Czech Academy of Sciences, Prague, Czech Republic
Rui Pereira Dias Faculty of Law, University of Coimbra, Coimbra, Portugal
Verónica Ruiz Abou-Nigm Edinburgh Law School, University of Edinburgh, UK
Martijn W. Scheltema Erasmus School of Law, Erasmus University Rotterdam, The Netherlands
Judith Schönsteiner Universidad Diego Portales, Santiago, Chile
Inês Serrano de Matos Faculty of Law, University of Coimbra, Coimbra, Portugal
Laurence Sinopoli Université Paris-Nanterre, Paris, France
Zeynep Derya Tarman Department of Private International Law, Koc University Law School, Istanbul, Turkey
Hien Thi Tran CSR Research Group, Foreign Trade University, Hanoi, Vietnam
Guangjian Tu Faculty of Law (FLL), University of Macau, Taipa, Macau, China
Geert Van Calster Department of International and European Law, KU Leuven, Leuven, Belgium
Florencia S. Wegher Osci Escuela de Ciencias Jurídicas y Sociales, Universidad Nacional del Litoral, Santa Fe, Argentina
Marc-Philippe Weller Institut für ausländisches und internationales Privat- und Wirtschaftsrecht, Universität Heidelberg, Heidelberg, Germany
Dai Yokomizo Nagoya University, Nagoya, Japan

More information about this series may be found here.

 

by Ralf Michaels and Jakob Olbing

Note: This repository will stay permanent at www.conflictoflaws.net/corona.
Please send additions to olbing@mpipriv.de

The coronavirus has created a global crisis that affects all aspects of life everywhere. Not surprisingly, that means that the law is affected as well. And indeed, we have seen a high volume of legislation and legal regulations, of court decisions, and of scholarly debates. In some US schools there are courses on the legal aspects of corona. Some disciplines are organizing symposia or special journal issues to discuss the impact of the pandemic on the respective discipline.

Private international law has not (yet?) consolidated discussions of the relevance of the crisis for the field, and of the field for the crisis (though the new EAPIL blog is running a very valuable series). But of course, private international law matters are crucial to countless issues related to the epidemic – from production chains through IP over possible vaccines to mundane questions like the territorial application of lockdown regulations.

Knowledge of these issues is important. It is important for private international lawyers to realize the importance of our discipline. But it is perhaps even more important for decision makers to be aware of both the pitfalls and the potentials of conflicts of law.

This site, which we hope to update continually, is meant to be a place to collect, as comprehensively as possible, sources on the interaction of the new coronavirus and the discipline. The aim is not to provide general introductions into private international law, or to lay out sources that could be relevant. Nor is this meant to be an independent scholarly paper. What we try to provide is a one-stop place at which to find private international law discussions worldwide regarding to coronavirus.

For this purpose, we limit ourselves to the discipline as traditionally understood—jurisdiction, choice of law, recognition and enforcement, international procedure. Coronavirus has other impacts on transnational private law and those deserve attention too, but we want to keep this one manageable.

Please help make this a good informative site. Please share any reference that you have – from any jurisdiction, in any legislation – and we will, if possible, share them on this site. Please contact olbing@mpipriv.de

 

General

Early in the pandemic, Mathias Lehmann discusses the role of private international law on a number of issues – the impact of travel restrictions on transportation contracts, contract law issues for canceled events, canceled or delayed deliveries, but also liability for infections.

A group of Brazilian scholars organized an online symposium on Private International Law & Covid-19. Mobility of People, Commerce and Challenges to the Global Order. The videos are here. (Note: the last session is still forthcoming on May 22).

The Secretary General of the Hague Convention provided an online message from his home.

 

State Liability

In the United States, several suits have been brought in Florida (March 12), Nevada (March 23) and Missouri (April 21) against China, which plaintiffs deem responsible for the uncontrolled spread of the virus, which later caused massive financial damage and human loss in the United States. Not surprisingly officials and scholars in China were extremely critical (see here and here). But

legal scholars, including Chimène Keitner and Stephen L. Carter, also think such suits are bound to fail due to China’s sovereign immunity, as do Sophia Tang and Zhengxin Huo. Hiroyuki Banzai doubts that the actions can succeed since it will be difficult to prove a causal link between the damages and the (in-) actions by the Chinese Gorvernment. Lea Brilmayer suspects that such a claim will fail since it would be unlikely, that a court will assume jurisdiction. Tom Ginsburg lays out the legal issues in an interview in German.

A Republican Representative is introducing two House Resolutions urging the US Congress to waive China’s sovereign immunity in this regard; such a waiver has also been proposed by a Washington Post author. The claim has also found support by Fox News.

Interestingly, there is also a reverse suit by state-backed Chinese lawyers against the United States for covering up the pandemic. Guodong Du expects this will likewise be barred by sovereign immunity.

In the UK, the conservative Henry Jackson Society published a report suggesting that China is liable for violating its obligations under the International Health Regulations. The report discusses ten (!) legal avenues towards this goal, most of them in public international law, but also including suits in Chines, UK and US courts (pp 28-30). Sovereign immunity is discussed as a severe but not impenetrable barrier.

 

Contract Law

Both the pandemic itself and the ensuing national regulations impede the fulfilment of contracts. Legal issues ensue. One of these is force majeure and its application to international contracts. Most contributions suggest to apply for force majeure certificates which are as to now offered by China, Russia. How such a certificate can influence contractual obligations under English and New York Law is shown by Yeseung Jang. The German perspective is given by Philip Reusch and Laura Kleiner, further the South Korean and the Common Law perspective on force majeure have been published. Victoria Lee, Mark Lehberg, Vinny Sanchez and James Vickery go beyond force majeure implications on contracts in their expert analysis. William Shaughnessy presents issues which might occur in international construction contracts.

Ennio Piovesani discusses whether Italian decree-laws enacted in view of the pandemic can operate as overriding mandatory rules and whether that would be compatible with EU law. Aposotolos Anthimos adds the Greek perspective to the discussion. Matthias Lehmann considers more broadly possible private international law issues and responses under European law.

The crisis hits in particular global value and production chains. Impacts are discussed by Tomaso Ferando, by Markus Uitz and Hemma Parsché and by Anna Beckers, though neither focuses specifically on private international law.

Caterina Benini explains a new Italian mandatory rule providing a minimum standard of protection for employees.

 

Tort

In Austria, a consumer protection association is considering mass litigation against the Federal State of Tyrolia and local tourist businesses based on their inaction in view of the spreading virus in tourist places like Ischgl. A questionnaire is opened for European citizens. Jos Hoevenars and Xandra Kramer discuss the potential of similar actions in the Netherlands under the 2005 Collective Settlement Act, WCAM.

An extensive overview about damages and Corona under Indian international tort law is given by Saloni Khanderia.

General implications of the coronavirus on product liability and a possible duty to warn costumers, without specific reverence to conflict of laws.

 

Family Law

Implications also exist in family law, for example regarding the Hague Abduction Convention. In an Ontario case (Onuoha v Onuoha 2020 ONSC 1815), concerning children taken from Nigeria to Ontario, the father sought to have the matter dealt with on an urgent basis, although regular court operations were suspended due to Covid-19. The court declined, suggesting this was “not the time” to hear such a motion, and in any way international travel was not in the best interest of the child. For discussion see here.

A recent webinar also discussed the impact on the Hague Abductions Convention.

A general overview of abduction in times of corona was published by Nadia Rusinova.

 

Economic Law

The crisis puts stress on global trade and therefore also economic law. Giesela Ruehl discusses developments in the competition laws of various countries (though with no explicit focus on conflict of laws issues).

 

Dispute Resolution

Regulations against social contact and lockdowns make physical presence in court rooms impossible and thereby put pressure on courts. Some courts suspend their activities except for urgent matters (one international abduction case in which this becomes prevalent is discussed in the family law section.) Developments in Italy are discussed here, developments in English law here.

Another possibility is the move to greater digitalization, as discussed comparatively by Emma van Gelder, Xandra Kramer and Erlis Themeli. The Hague Conference on Private International Law (HCCH) published a Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention, discussed also with reference to Corona by Mayela Celis.

The EU gives information about the “impact of the COVID-19 virus on the justice field” concerning various means of dispute resolution.

A US project guided by Richard Suskind collects cases of so-called “remote courts” worldwide.