Droit international général

I have for the moment little to go on in a new claim, launched in the English courts, in the Corporate Social Responsibility /mass torts category. The claim was apparently filed against Barrick Tz Limited, formerly Acacia Mining, domiciled in the UK, alleging human rights abuses by security forces at the company’s North Mara mine.

Of jurisdictional note undoubtedly will be the application of Articles 33-34 Brussels Ia: forum non conveniens – light, and a likely application for summary judgment by defendant. There is as far as I know no mother holding issue involved, unlike in Vedanta or Bento Rodriguez /Samarco.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

Claim was issued against Barrick Tz Limited, formerly known as Acacia Mining.

For the kind of jurisdictional issues involved, use search string 'CSR' on the https://t.co/nqA3VE1lht blog. #bizhumanrights https://t.co/wIr8X6D0Le

— Geert Van Calster (@GAVClaw) February 10, 2020

It took quite some time but the news is finally here: North Macedonia has an entirely new Private International Law Act.

The Act was adopted by the Assembly on February 4th 2020 and it was just published in the Official Gazette of the Republic of North Macedonia No. 32, on 10 February 2020. The Act is not available online yet but we will make sure to share it here as soon as it or an English translation is available.

The first draft of the Act was completed in 2015 and was much welcomed by experts and scholars in the region as it ensured compatibility with all relevant EU Regulations, including Rome I, Rome II, Rome III, Brussels I bis, Brussels II bis, Succession Regulation etc. Since then, the Draft Law had been waiting for discussion and adoption by the Assembly until recently. The wait was worth it since the law has been passed without any amendments which is even more groundbreaking given that the new Act is quite a departure from the previous PIL Act in force.

Until now, the Republic of North Macedonia had been applying the PIL Act enacted in 2007 (Official Gazette of Republic of Macedonia No 87/2007). An amendment of this act was made in 2010 specifically to provisions on choice of law (Official Gazette of the Republic of Macedonia, No. 87/2007, 156/2010). While the rules on choice of law in contractual and non-contractual matters were updated to match the EU Conventions (and later Regulations), the Act of 2007 had stayed quite true to its predecessor – the Yugoslav PIL Act of 1982.

This new PIL Act of 2020 makes North Macedonia now the bearer of the most modern PIL Act in the Region of the Western Balkans. The last adopted PIL Act in this region was the Act of Montenegro, in force since 2014. Although other reforms of PIL Acts are underway in Serbia (since 2014) and Kosovo (since 2018) these countries and Bosnia and Herzegovina continue applying the Yugoslav PIL Act of 1982, while Albania’s PIL Act in force is that of 2011.

A more detailed report of the PIL developments in the region of the Western Balkans will be posted soon.

For queries about the Act, please contact Prof. Toni Deskoski at t.deskoski@pf.ukim.edu.mk, or Prof. Vangel Dokovski at v.dokovski@pf.ukim.edu.mk, or me at donike.qerimi@uni-pr.edu.

A spectre is haunting Europe – the spectre of human rights lawsuits. Striking human rights cases have always enjoyed high media attention. But lately, they appear in a new dimension in Europe. The headline-grabbing “KiK” trial before the Regional Court of Dortmund and the current discussion about the adoption of a German Supply Chain Law are proof of this: It has long ceased to be a mere thought that German companies could be held liable in Germany for damage that occurred somewhere in their global supply or value chain. But are civil courts and arbitral tribunals suited at all for enforcing international human rights obligations of business enterprises, which are already highly controversial under substantive law?

On 4 May 2020, the Munich Center of Dispute Resolution (MuCDR) will host a conference that will be dedicated to this phenomenon. It will shed light on fundamental theoretical and dogmatic questions of civil human rights lawsuits as well as their consequences for the legal system, the legal profession, the German economy as well as for potential plaintiffs.

The full conference programme is available  here (in German).

Date: Monday, 4 May 2020

Registration: Participation in the conference is free of charge. Registration is required. Please find the registration form online.

 Venue: Ludwig Maximilians University, Main Building, Senatssaal E 106, Geschwister-Scholl-Platz 1, 80539 Munich, Germany

Conference language: German

Luis de Lima Pinheiro (university of Lisbon) has posted Public Policy and Private International Law – Portugal on SSRN.

The abstract reads:

The present report is aimed at describing the concept, legal framework, and features of the public policy clause in the Portuguese legal order, and at giving an account of the main applications of this clause in modern Portuguese case law and literature (marriage, children, custodianship, succession, contract, non-contractual obligations, property, intellectual property, and corporate).

The report deals mainly with choice of law, but reference is also made to the recognition of foreign judgments, since the public policy features and applications are to a large extent common in both contexts.

Portuguese courts tend to respect the exceptionality of the public policy clause. In recent case law, only a few judgments have deviated from this guideline, namely concerning the right of some heirs to a legal portion of the estate. In the vast majority of situations, the arguments based upon international public policy considerations were not accepted by the courts.

The paper is forthcoming in Public Policy and Private International Law (Olaf Meyer ed., Edward Elgar). It can be downloaded here.

Written by Anna Wysocka-Bar, Senior Lecturer at Jagiellonian University (Poland)

On 2 December 2019 Supreme Administrative Court of Poland (Naczelny S?d Administracyjny) adopted a resolution of seven judges (signature: II OPS 1/19), in which it stated that it is not possible – due to public policy – to transcribe into the domestic register of civil status a foreign birth certificate indicating two persons of the same sex as parents. The Ombudsman joined arguing that the refusal of transcription infringes the child’s right to nationality and identity, and as a result may lead to infringement of the right to protection of health, the right to education, the right to personal security and the right to free movement and choice of place of residence. Interestingly, the Ombudsman for Children and public prosecutor suggested non-transcription. The background of the case concerns a child whose birth certificate indicated two women of Polish nationality as parents, a biological mother and her partner to a de facto union. Parents applied for such transcription in order to apply subsequently for the issuance of the passport for the child. 

The Supreme Administrative Court stated that in accordance with the law on civil status register, the transcription must be refused if contrary to ordre public in Poland. The public policy clause protects the domestic legal order against its violation. Such violation would result from the “recognition” of a birth certificate irreconcilable with fundamental principles of public policy. It was underlined that in accordance with Article 18 of the Constitution of Poland marriage is understood as a union between a man and a woman; family, motherhood and parenthood are under protection and guardianship of the State. In accordance with those principles and the whole system of family law, only one mother and one father might be treated as parents of a child. Any other category of “parent” is unknown. The Court underlined, at the same time, that transcription of the birth certificate into the domestic register should not be indispensable for a child to obtain a passport, as the child has, by operation of law, already acquired Polish nationality as inherited from the mother. However, in practical terms this would require challenging administrative authorities’ approach (requesting domestic birth certificate) in another court procedure. 

It should be explained here that the resolution was taken on the request of the panel of judges of the Supreme Administrative Court reviewing the cassation appeal brought by the parents, and therefore, in this particular case is binding. In other, similar cases panels of judges should, in general, follow the standpoint presented in such resolution. If the panel of judges is of a different view, it should request another resolution, instead of presenting a view contrary to the previous one. As a result, it might happen that there are two resolutions of seven judges presenting different views. Given the above, it can be said that the question of transcription is not as definitively answered as might seem at first glance. 

A similar justification based on the public policy clause in conjunction with Article 18 of the Constitution has already been presented before in other cases, for example one concerning children born in the US out of surrogacy arrangements with a married woman, whose birth certificates indicated two men as parents, a (biological) father and his partner (identical judgments of 6 May 2015, signature: II OSK 2372/13 and II OSK 2419/13). The implications of these judgments were quite different as the Court refused to confirm that children acquired Polish nationality by birth from their father. In the eyes of the Court and according to fundamental principles of Polish family law, children born out of surrogacy (which is not regulated in Poland) by operation of law have filiation links only with the (biological, surrogate) mother and her husband. The paternity of the biological father (only) might be (at least theoretically) established, once the paternity of the surrogate mother’s husband is successfully disavowed in a court proceeding. 

Here it should be added that opposite views were presented by the Supreme Administrative Court in other judgments. One of the cases concerned transcription of the birth certificate of a child born in India out of surrogacy arrangement. Such birth certificate indicates only the father (in this case a biological father) and do not contain any information about the (surrogate) mother. This was perceived as contrary to public policy by the administrative authorities, which underlined that in the Polish legal order establishing paternity is always dependent on the establishment of maternity. As a result, the lack of information about the mother raises doubts as to paternity of the man indicated on the birth certificate as father. Interestingly, based on the same birth certificate the acquisition of Polish nationality of the child was earlier confirmed by administrative authorities. In its judgment of 29 August 2018 (signature: II OSK 2129/16), Supreme Administrative Court criticized the way the public policy clause was so far understood. The Court (which hears the case after the refusal of administrative authorities of two instances and administrative court of the first instance – just as in all of the mentioned cases) underlined that this clause must be interpreted having regard to a broader context of the legal issue at hand, in particular it should take into account constitutional values (always prevailing best interest of a child) and international standards on protection of children’s rights and human rights. This allows for the transcription of the birth certificate into civil status records in Poland. 

Another interesting case concerned again the question of confirmation that the children acquired Polish nationality by birth after their father (four identical judgments of 30 October 2018, signatures: II OSK 1868/16, II OSK 1869/16, II OSK 1870/16, II OSK 1871/16). Four girls were born in US through surrogacy. The US birth certificates indicated two men as parents, one of them being a Polish national. The Supreme Administrative Court underlined that for the legal status of a child, including the possibility of confirming acquisition of Polish nationality, it should not matter that the child was born to a surrogate mother. What should matter is that a human being with inherent and inalienable dignity was born and this human being has a right to Polish nationality, as long as one of the parents is a Polish national.  

The above mentioned cases, where the Supreme Administrative Court presented a conservative approach and approved the refusal of the confirmation that children born out of surrogacy acquired Polish nationality by birth is now pending before European Court of Human Rights (Schlittner-Hay v. Poland). The applications raise violation by Poland of Article 8 (respect for private and family life) and Article 14 (discrimination on grounds of parents’ sexual orientation) of the European Convention on Human Rights. 

This shows that practical implications for children to same-sex parents and from surrogacy arrangements are of growing interest and importance also in Poland. The approaches of domestic authorities and courts seems to be evolving, but are still quite divergent. The view on the issue from the European Court of Human Rights is awaited.  

Following an earlier post, here’s a reminder of the First Edition of the Milan Investment Arbitration Pre-Moot.

Albert Henke prepared for this reason the following announcement:

On February, 14 and 15, 2020 will take place in Milan the First Edition of the Milan Investment Arbitration Pre-Moot, an event jointly organized by the Law Firm DLA Piper, Milan, Università degli Studi of Milan and the European Court of Arbitration (Italian section). The Pre-Moot will be a chance for ten University teams from all around the world to test their advocacy skills in moot arbitration hearings, in preparation for the Frankfurt International Arbitration Moot Competition, the oldest and most prestigious student competition in the area of investment protection law, scheduled for the beginning of March 2020 in Frankfurt (https://www.investmentmoot.org/news-2-2/). The Pre-Moot will be introduced by a Conference hosted by Università degli Studi on the topic: “Outstanding issues and recent developments in international investment arbitration”. All the information in the attached flyer. 

In 2006 a German patient received, in Germany, defective breast implants manufactured by Poly Implant Prothèse SA (‘PIP’), a French undertaking that is now insolvent. The patient seeks compensation before the German courts from Allianz IARD SA, the French insurer of PIP.

In France, manufacturers of medical devices are under a statutory obligation to be insured against civil liability for harm suffered by third parties arising from their activities (see Article L.1142‑2 of the Public Health Code). That obligation led PIP to conclude an insurance contract with Allianz, which contained a territorial clause limiting the cover to damage caused on French territory only. Thus, PIP medical devices that were exported to another Member State and used there were not covered by the insurance contract.

In this context, the Oberlandesgericht Frankfurt am Main enquires whether the fact that PIP was insured by Allianz for damage caused by its medical devices on French territory only, to the exclusion of that potentially caused in other Member States, is compatible with Article 18 TFEU and the principle of non-discrimination on grounds of nationality contained therein.

The referring court asked first whether Article 18 has a direct third-party effect; subsidiarily, it asked about an indirect discrimination on the basis of nationality on the side of the competent French authority – as an emanation of the State -, who did not object to the territorial clause mentioned above (two further questions followed, for the case of an affirmative reply to the first one).

AG’s Bobek opinion on the case (case C-581/18) was published on 6 February 2020. It contains principally reflections on the autonomous application of Article 18 TFUE. Additionally, in response to a first point of disagreement among the parties presenting observations, it explores the criteria determining whether a subject matter falls under the scope of application of EU.

Mr. Bobek rejects an interpretation of Article 18 TFEU as an autonomous provision creating enforceable obligations not already laid down by one of the four fundamental freedoms, or specifically provided for in any other instrument of EU law: and this, for structural reasons (as he says, in order to respect the regulatory logic of the internal market). According to Mr. Bobek (at 110), otherwise Article 18 TFEU would be turned

into a limitless provision, by virtue of which any issue, however remotely connected to a provision of EU law, could be harmonised by judicial means. It would furthermore turn regulatory competence within the internal market on its head, generating irreconcilable future conflicts of competence between the Member States.

He goes on to say (at 112) that

it is also clear from the discussion of the present case that if Article 18 TFEU were allowed to operate as a free-standing, substantive obligation in the way implied by the referring court in its questions, its reach would go beyond anything that the free movement case-law ever contemplated, including the case-law on goods pre-Keck. Interpreted in that way, there would be no limit to the scope of Article 18 TFEU: that provision would be turned into a Dassonville formula on steroids. In today’s interconnected world, sooner or later, there is inevitably some sort of interaction with goods, services or persons from other Member States. If that were enough to trigger the independent applicability of Article 18 TFEU, every single rule in a Member State would be caught by that provision.”

And adds later (at 114, 115)

the rules on free movement, as well as Article 18 TFEU, logically only cover the free flow of goods or services across borders, including exit and entry. Unless expressly harmonised by the EU legislature, the rules on their subsequent use are a matter for the Member States where they are used (…). In other words, the fact that goods once came from another Member State is not a sufficient reason to suggest that any matter later concerning those goods is covered by EU law.

From a legal point of view, the opinion is most probably correct (the practical outcome, “vous auriez dû aller vous faire soigner en France”, may be morally regrettable; but an expansive interpretation of Article 18 is not the appropriate way to avoid it). However, I have to admit I do not follow him when he seeks support on PIL arguments. This happens at 113, where he puts forward a possible consequence of an independent applicability of Article 18 TFEU:

To take just one example: imagine that, while drafting this Opinion, I am injured — hopefully not too seriously — because the computer I am typing on explodes. The various parts of the computer are likely to have been produced in a Member State other than Luxembourg, more likely even, in the age of integrated supply chains, in several Member States, if not also third countries. Absent any specific contractual terms concerning applicable law and jurisdiction between the producer of that computer and myself, therefore assuming normal rules on tort (delict) were to apply, the applicable law governing any damages claim is likely to be Luxembourg law, as the law of the State in which the accident occurred. Should I then, if I were to find Luxembourg law unsatisfactory for my damages case, have the possibility of relying on Article 18 TFEU in order to invoke the law of the place of production of the computer, or perhaps even the place of production of any of the components of the computer, and have my claim enforced before a Luxembourg court?

Nor do I understand either, at 115, why his recollection of the statutory doctrine:

If that logic were to be embraced, by a questionable interpretation of Article 18 TFEU, the movement of goods in Europe would become (once again) reminiscent of medieval legal particularism, whereby each product would, like a person, carry its own laws with it. Goods would be like snails, carrying their homes with them in the form of the legislation of their country of origin, to be applicable to them from their production to their destruction.

I was looking for conflict-of-law echoes in the Opinion, thus I was happy to find them; but (surely my fault) I fail to see the link of this line of argument with the case at hand. Anyway, one does not need to agree with each single point of an Opinion to approve of it. And it is always fun to read Mr. Bobek.

Jonathan Hutchinson v MAPFRE and Ice Mountain (OBeach) Ibiza [2020] EWHC 178 (QB) like all cases involving serious accidents, cannot be written about without the greatest sympathy for claimants having suffered serious physical damage. The case concerns the horror scenario of either a fall or a dive in a pool leading to head and spinal injury. Mr Hutchinson (represented by Sarah Crowter QC) is a former Birmingham City football player who visited an Ibiza club owned by a fellow Brit – those interested in the background see here.

Defendants are the club (ICE Mountain, Spain registered) and their insurers, MAPFRE (ditto). Clearly to sue in England the case needs to involve either a protected category (consumers; insureds) or a special jurisdictional rule (contract; tort).

Andrews J is right in calling jurisdiction on the consumer title against ICE Mountain straightforward. The Pammer /Alpenhof criteria are fulfilled; that claimant’s purchase of a ticket was not the result of the directed activities is irrelevant per CJEU Emrek; (at 21 she dismisses an argument to try and distinguish Emrek on the facts, which argued that claimant had entered the pool via the VIP area to which his ‘standard’ ticket did not actually give access).

The further discussion involves the insurance title of Brussels Ia, which reads in relevant part (Article 13):

(1).   In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured. (2).   Articles 10, 11 and 12 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted. (3).   If the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.

The claims against Ice Mountain in tort or for breach of statutory duty are halted by Andrews J. The question here is whether the ‘parasitic’ claim under A13(3) requires the issue to ‘relate to insurance’ (recently also discussed obiter in Griffin v Varouxakis), an issue already discussed in Keefe, Hoteles Pinero Canarias SL v Keefe [2015] EWCA Civ 598 (referred to in Bonnie Lackey), sent to the CJEU but settled before either Opinion of judgment. The same issue is now before the CJEU as Cole and Others v IVI Madrid SL and Zurich Insurance Plc, pending in anonymised fashion before the CJEU it would seem as C-814/19, AC et al v ABC Sl (a wrongful birth case).

At any rate, the non-contractual claims against Ice Mountain were stayed until the CJEU has answered the questions referred to it by Judge Rawlings in Cole.

A late [but that in itself does not matter: lis alibi pendens needs to be assessed ex officio (at 36)] challenge on the basis of A29-30 lis alibi pendens rules was raised and dismissed. The other proceedings are criminal proceedings in Ibiza. The argument goes (at 37) that there are ongoing criminal proceedings in Spain arising out of the accident which led to Mr Hutchinson’s injuries, and because Mr Hutchinson has failed to expressly reserve his right to bring separate civil proceedings, the Public Prosecutor is obliged to bring civil proceedings on his behalf within the ambit of those criminal proceedings. For that reason, Ice Mountain contend that the Spanish court is seised of any civil claim arising from the same facts as are under investigation in the Spanish criminal proceedings, and has been since 2016, long before these proceedings were commenced.

This line of argument fails to convince Andrews J: ‘Through no fault of his own, Mr Hutchinson has never been in a position knowingly to take any formal steps to reserve his position in Spain to commence separate civil proceedings against anyone he alleges to be legally liable for his injuries. Yet, if Ice Mountain is right, he will have been deprived of any choice in the matter of where to bring his civil claim merely because, without his knowledge or consent, a doctor in the hospital filed a report which triggered a criminal investigation into the accident, of which he was never told.’ Quite apart from this unacceptable suggestion, the criminal proceedings in Ibiza have been closed, and (at 59) ‘there is no ongoing criminal action leading to trial, to which any civil action would attach.’

For the claims against Mapfre, Mrs Justice Andrews held that the court has jurisdiction on two alternative basis:

Firstly, the provision in the contract of insurance upon which Mapfre seeks to rely as demonstrating that there is no good arguable case against it on the merits cannot be relied on, as that would substantially undermine the protection to the weaker party specifically provided for in the insurance provisions of Recast Brussels 1.

In essence, Mapfre accepts that under Spanish law, there would be a direct right of action against it as Ice Mountain’s liability insurer if it were liable to indemnify Ice Mountain under the policy, but it contends that Mr Hutchinson does not have a good arguable case that Mapfre’s policy of insurance covers Ice Mountain’s liability to him under a judgment given by an English court. The policy would, however, cover Ice Mountain’s liability to him for the same accident, based on the identical cause (or causes) of action, under a judgment given by a Spanish court. (ICE Mountain agree, therefore also acknowledging it is uninsured in respect of any claims which the English consumers who are its targeted customers might bring in the courts of their own domicile pursuant to A17-18 BIa). If this were right, this would mean a massive disincentive for the consumer to sue in his jurisdiction: at 66 (a devilish suggestion): If he wins and the uninsured defendant is not good for the money, he would be left without a remedy, whereas if he sued in Spain, the same defendant would be insured in respect of the same liability, and he would recover from the insurer up to the policy limits.

At 67: if a party who owes contractual duties to consumers ‘does insure, and a direct of action exists against the insurer under the law which governs the insurance contract, then ‘Recast Brussels I does not contemplate that he should be permitted to contract with the insurer on a basis that acts as a disincentive to consumers to exercise their rights to sue him (and his insurer) in the courts of their own domicile or which renders any rights of suit against the insurer in that jurisdiction completely worthless by using the exercise of those rights as grounds for avoiding the insurer’s obligation to indemnify him.‘

The Spanish law experts called upon to interpret the provisions of the territorial scope title in the insurance policy, differed as to exact meaning. However the issue was settled on the basis of EU law, with most interesting arguments (and reference ia to Assens Havn): summarising the discussion: a substantial policy clause limiting liability to awards issued by Spanish judgments, in practice would have the same third party effect as a choice of court clause which B1A does not allow (see A15: The provisions of this Section may be departed from only by an agreement… (3) Which is concluded between a policyholder and an insurer, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same member state, and which has the effect of conferring jurisdiction on the courts of that state even if the harmful event were to occur abroad, provided that such agreement is not contrary to the law of that Member State….”

At 84:

‘If a clause which has that effect can be relied on against a person such as Mr Hutchinson it would drive a coach and horses through the special rules on insurance laid down under Section 3 of Chapter II. It would provide every liability insurer (not just Spanish insurers) with the simplest means of depriving the injured party of the choice of additional jurisdictions conferred upon him by Articles 11 to 13 of Recast Brussels 1. It would be the easiest thing in the world for an insurer, as the economically strongest party, to include a standard term in the policy that he is only liable for claims that have been brought against the policyholder in the courts of the policyholder’s and/or the insurer’s own domicile.’

This part of the judgment is most interesting and shows the impact jurisdictional rules and their effet utile may have on substantive law (at the least, third party effect of same).

Alternatively, even if the analysis above is wrong, ‘on the basis of the expert evidence on Spanish law that is currently before the Court, at this stage of the proceedings the Claimant has established at the very least a plausible evidential basis for finding that the clause in question (the one which effectively limits pay-outs to judgments issued in Spain) is not binding upon him as a third party to the contract, and therefore is ineffective to prevent MAPFRE from being directly liable if his claim is otherwise well-founded on the merits. He has therefore established a good arguable case that the jurisdictional gateway under Article 13(2) of Recast Brussels 1 applies.’

Most relevant and interesting.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2 Heading 2.2.11.2

For the fourth consecutive year, the Annual Conference of the Society of Legal Scholars (SLS) will feature a section dedicated to Conflict of Laws. This year’s iteration of the conference will take place from 1 to 4 September 2020 at the University of Exeter (more information here). The conveners of the Conflict of Laws section, Andrew Dickinson and Máire Ní Shúilleabháin, have kindly provided the following Call for Papers.

SLS Conflict of Laws Section: Call for Papers and Panels for 2020 SLS Annual Conference at the University of Exeter

This is a call for papers and panels for the Conflict of Laws section of the 2020 SLS Annual Conference to be held at the University of Exeter from Tuesday 1st  September – Friday 4th September. 

This marks the fourth year of the Conflict of Laws section, and we are hoping to build on the successful meetings in past years, most recently at the 2019 Conference in Preston. We would like to thank all those who have supported the section since its inception.

The Conflict of Laws section will meet in the second half of the conference on Thursday 3rd and Friday 4th September.

We intend that the section will comprise four sessions of 90 minutes, with 3 or more papers being presented in each session, followed by discussion. At least three of the sessions will be organised by theme. We hope, if submissions allow, to be able to set aside the fourth session for papers by early career researchers (within 5-years of PhD or equivalent). We also hope to organise a Conflict of Laws social event on the Thursday evening.

We welcome proposals from scholars in the field for papers or panels on any aspect of the Conflict of Laws (private international law). We welcome proposals representing a full range of intellectual perspectives in the subject section, and from those at all stages of their careers.

If you are interested in delivering a paper, we ask you to submit a proposed title and abstract of around 300 words. If you wish to propose a panel, please submit an outline of the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate), together with their proposed titles and abstracts.

Please submit your paper abstract or panel details by 11:59pm UK time on Tuesday 24th March 2020.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/1763/submitter – and following the instructions (select ‘Track’ for the relevant Subject Section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.

As the SLS is keen to ensure that as many speakers with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference.  With this in mind, when you submit an abstract via Oxford Abstracts, you will be asked to note if you are also responding to calls for papers or panels from other sections. 

The SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £250 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, be published in Legal Studies.  To be eligible:

• speakers must be fully paid-up members of the SLS;
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank (via Oxford Abstracts) by 11.59pm UK time on Monday 24th August; and
• papers must not have been published previously or have been accepted or be under consideration for publication.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Tuesday 16th June in order to secure their place within the programme. Please do let me/us know if this is likely to pose any problems for you. For further information, please see the conference website (https://www.slsconference.com/).

We note also that prospective speakers do not need to be members of the SLS or already signed up as members of a section to propose a paper.

We look forward to seeing you, as a speaker or delegate, at the Conflict of Laws session in Exeter.

With best wishes,

Professor Andrew Dickinson, St Catherine’s College, University of Oxford Dr Máire Ní Shúilleabháin, University College Dublin (Conveners)

As reported earlier in this blog, the Queen Mary University of London will host a series of workshops on Private International Law after Brexit.

The first workshop of the series, scheduled for 28 February 2020, is sold out. The second and third workshop will be held on 1 and 2 April 2020, and will focus on the future development of private international law in the UK in relation to commercial law and family law, respectively.

More on the events can be found here.

News broke a few weeks back on the class action suit introduced in the USDC for the District of Columbia, against Apple, Dell, Microsoft and Tesla. Swiss-based Glencore (of Mark Rich fame) and Belgium’s Umicore are mentioned in the suit but not added to the defendants. Historical references are inevitably made to the plundering of Congo first by King Leopold personally and in a later stage by the Kingdom of Belgium.

The suit is a strategic one, attempting to highlight the human rights (including child labour) issues involved in the mining of cobalt, used as a raw material in particular for modern batteries, and to propel the corporate social responsibility (CSR) debate on due diligence and supply-chain liability. It is also however a suit seeking damages for the victims of child labour in very dangerous circumstances.

Of note for the blog is the jurisdictional angle: discussed at 18 ff and featuring arguments against the use of forum non conveniens. Claimants put forward they have no practical ability to litigate in DRC: damages under DRC law (therefore assumed to be the lex causae which a Congolese judge would apply were the case litigated in DRC) sought from end-users of cobalt; DRC courts are corrupt; anyone standing in the way of the mining industry is threatened; the 2000 Victims of Trafficking and Violence Protection Act TVPRA as amended in 2013 allows for extraterritorial jurisdiction; finally and of relevance to a classic locus delicti commissi argument: ‘the policymaking that facilitated the harms Plaintiffs suffered was the product of decisions made in the United States by Defendants’.

Personal jurisdiction is suggested to exist for (at 22) are all U.S. resident companies and they do substantial and continuous business within the District of Columbia – minimum contacts are established, and defendants should reasonably anticipate being hailed into court there.

No doubt there will be intense discussion on the jurisdictional basis, prior to debate on the merits of liability of end-users.

Geert.

Maria Caterina Baruffi (University of Verona) and Matteo Ortino (University of Verona) have edited the book «Trending topics in international and EU law: legal and economic perspectives». It collects the proceedings of the conference «#TILT Young Academic Colloquium», held in Verona on 23-24 May 2019 and organized by the Law Department of the University of Verona in collaboration with the Ph.D. School of Legal and Economic Studies and the European Documentation Centre.

The event fell within the activities of the research project «Trending International Law Topics – #TILT» supervised by Maria Caterina Baruffi and funded by the programme «Ricerca di base 2015» promoted by the University of Verona. It was specifically targeted to Ph.D. students and early career scholars, selected through a Call for Papers. The book publishes the results of their research with the aim of fostering the scientific debate on trending topics in international and EU law and their impact on domestic legal systems. 

The volume is divided into four parts, respectively devoted to public international law, including papers on human rights, international criminal law and investment law; private international law; EU law, addressing both general aspects and policies; and law and economics.

With specific regard to private international law (Part II of the volume), contributions deal with family, civil and commercial matters. For the former aspect, the volume collects papers on topics such as the EU Regulations on property relationships of international couples, recognition of adoptions, free movement of same-sex registered partners and cross-border surrogacy; for the latter, the volume includes contributions on topics such as choice-of-court agreements in the EU in the light of Brexit, insolvency, service of process and counter-claims in the Brussels regime.

More information about the book and the complete table of contents are available here.

Qisheng He, Professor of International Law at the Peking University Law School, and Director of the Peking University International Economical Law Institute, has published a survey on the Chinese practice in Private International Law in 2018. The full title of the article is the following: The Chronology of Practice: Chinese Practice in Private International Law in 2018.

The article has been published by the Chinese Journal of International Law, a journal published by Oxford University Press.  This is the 6th survey published by Prof. He on the topic.

Prof. He has prepared an abstract of his article, which goes as follows:

This survey contains materials reflecting the practice of Chinese private international law in 2018. First, the statistics of the foreign-related civil or commercial cases accepted and decided by Chinese courts is extracted from theReport on the Work of the Supreme People’s Court (SPC) in 2018. Second, some relevant SPC judicial interpretations including the SPC Provisions on Several Issues Regarding the Establishment of the International Commercial Court are introduced. The SPC Provisions on Several Issues concerning the Handling of Cases on the Enforcement of Arbitral Awards by the People’s Courts are translated, and the Provisions reflect a pro-arbitration tendency in Chinese courts. Third, regarding jurisdiction, a case involving the binding force of a choice of court clause under the transfer of contract is selected. Fourth, three typical cases, relating to the conflict of laws rules, are examined and deal with the matters such as personal injury on the high seas, visitation rights, as well as uncontested divorces. The case regarding personal injury on the high seas discusses the “extension of territory” theory, but its choice of law approach deviate from Chinese law. Fifth, two cases involving foreign judgments are cited: one analyses the probative force of a Japanese judgment as evidence used by the SPC, and the other recognises the judgment of a French commercial court. Sixth, the creation of a “one-stop” international commercial dispute resolution mechanism is discussed. This new dispute resolution mode efficiently coordinates mediation, arbitration and litigation. One mediation agreement approved by Chinese courts is selected to reflect this development. Finally, the paper also covers six representative decisions regarding the parties’ status, the presumption of the parties’ intention as to choice of law, and the validity of arbitration agreements.

I have earlier reviewed the decision of Chief Master Marsh in [2018] EWHC 550 (Ch) Wheat v Alphabet /Google Inc and Monaco Telecom. In Wheat v Google LLC [2020] EWHC 27 (Ch), this decision was confirmed upon appeal (on the copyright issues see here).

Google is involved in the litigation because claimant alleges that Google’s search engine algorithm has done little to address hotlinking practice, which, it is said, facilitates copyright infringement.

Both cases are a good example of the standards for serving out of jurisdiction, essentially, to what degree courts of the UK should accept jurisdiction against non-UK defendants (here: with claimants resident in the UK). The Brussels I Recast Regulation is not engaged in either cases for neither Monaco nor Alphabet are EU based. Mr Wheat is resident in England and his business is based in England. Any damage as a result of hotlinkers’ infringement of his copyright is very likely to be and to have been suffered in England; there is in fact evidence that damage has been suffered. It is also clear to Keyser J that England is clearly the appropriate forum and a forum non conveniens argument therefore going nowhere. However the case to answer by Google, like Marsh CM concluded, is simply too weak nay non-existant: following extensive review of secondary EU law and CJEU copyright law, Keyser J holds that the acts complained of against Google cannot be unlicensed communications, because they are not communications to a new public (all potential users of the unrestricted Website constituting one public, so far as concerns a case involving communication via hotlinking) and are not communications by a new technical means (the internet constituting a single technical means).

No case to answer by Google. No service out of jurisdiction.

Geert.

On 29 January 2020, the District Court of The Hague dismissed the claim of a Palestinian-Dutch Citizen against the Chief of General Staff and Air Force Chief of the Israeli Army. The popular press has reported that one of the two Israeli generals was Benny Gantz, a recent contender to Benyamin Netanyahou in Israel politics.

The plaintiff was claiming compensation for the consequences of an air strike occurred on 20 July 2014 in the context of the Israeli military operation in the Gaza Strip, Operation Protective Edge. He claimed that the air strike targeted family homes, including one where six of his family members died.

Unsurprisingly, the State of Israel asserted immunity from jurisdiction for the defendants with regards to acts performed in their official capacity. The existence of the functional immunity of foreign officials was not disputed. The only issue was whether an exception existed for international crimes. After noting that the concept of international crime was not well defined, the court explained that it would only assume their existence for the sake of the argument and for assessing whether this would limit the immunity of the defendants.

The Hague Court first noted that both the International Court of Justice and the European Court of Human Rights (ECtHR) had ruled that States could not be deprived from immunity for serious violations of international human rights law. It further noted that none of the parties had been able to produce either an international or a national case ruling otherwise since then.

The court then rejected the argument of the plaintiff according to which an exception could exist for claims directed against individuals, as opposed to States. The reason was that such developments are limited to prosecutions before international tribunals and do not apply to proceedings before national courts. The court held:

In short, individual responsibility and dual attribution only apply to international courts, which take a fundamentally different position than national courts. Unlike international courts, national courts function in the horizontal relationship between States when prosecuting subjects of foreign States, to which the customary international-law principle of equality of States applies. Unlike for international courts, functional immunity from jurisdiction is the starting point for national courts.

Finally, the court explored whether there might be a limitation of functional immunity from jurisdiction in criminal proceedings before national courts under customary international law.

For that purpose, it assessed whether there was a general State practice and general acceptance that such practice was law. It found that this was not the case. Contrary to courts in other European states (and indeed the ECtHR) which relied on international conventions which are not in force and on explanatory reports which had not even made it into actual provisions of such conventions, the court noted the progressive work on the International Law Commission which introduced such limitations, but found that they were not adopted by consensus, and that it could thus not be said that this work had codified, or was representative of, customary international law.

The court then turned to Dutch opinion and cited a number of declarations of the Dutch government stating that it considered the limitation to exist. The court concluded, however:

The court will not delve deeper into the opinion of the Dutch court and the discussion on the Dutch criminal law practice as alleged by [claimant], as these do not reflect the current status of customary international law. As has been stated above, a limitation to functional immunity from jurisdiction is not accepted under customary international law in the prosecution of international crimes by national courts. The court must apply customary international law and is not bound by the opinion of the Dutch government. 

The court then moved to confront this outcome with the guarantees under Art 6 ECHR and the right of access to court. The Strasbourg court has ruled that the right of access to court is not absolute, and can be restricted for a legitimate purpose and with measures proportionate to that purpose.

The ECtHR has held repeatedly that sovereign immunities have a legitimate purpose. With respect to proportionality, the Strasbourg court has refused to check on states following customary international law and ruled that the proportionality test is met where the rule comports with customary international law.

It was then easy for the Dutch court to rule that, after finding that the alleged limitation to the functional immunity of jurisdiction is not accepted by customary international law, the result was necessarily compliant with the right of access to court.

The only assessment a court must carry out in examining the proportionality requirement is whether or not the functional immunity from jurisdiction for [defendant I] and [defendant II] is in agreement with customary international law. The court has established previously that this is the case. The proportionality requirement has therefore been met.

Finally, the plaintiff had argued that it was impossible for him to bring proceedings in Israel, as “Israeli law, as applied by the Israeli courts, raises all sorts of legal and practical obstacles to Palestians from the Gaza Strip”. He claimed, therefore, that he had no alternative forum to bring his claim, and that the existence of a forum necessitatis was mandated by European human rights law.

The Hague court dismissed the argument by distinguishing the judgment of the ECtHR in Naït-Liman and by ruling that the existence of an alternative forum was only relevant in the context of the immunity of international organisations, and not in the context of State immunity. The cases where the ECtHR insisted on the existence of an alternative forum were indeed all concerned with the immunity of international organisations (the UN, in particular, in Stichting).

An English version of the judgment can be found here.

This note addresses the question whether there is a common law basis for the recognition of foreign declarations of parentage. It appears that this issue has not received much attention in common law jurisdictions, but it was the subject of a relatively recent Privy Council decision (C v C [2019] UKPC 40).

The issue arises where a foreign court or judicial authority has previously determined that a person is, or is not, a child’s parent, and the question of parentage then resurfaces in the forum (for example, in the context of parentage proceedings or maintenance proceedings). If there is no basis for recognition of the foreign declaration, the forum court will have to consider the issue de novo (usually by applying the law of the forum: see, eg, Status of Children Act 1969 (NZ)). This would increase the risk of “limping” parent-child relationships (that is, relationships that are recognised in some countries but not in others) – a risk that is especially problematic in the context of children born by way of surrogacy or assisted human reproduction technology.

The following example illustrates the problem. A baby is born in a surrogacy-friendly country to a surrogate mother domiciled and resident in that country, as the result of a surrogacy arrangement entered into with intending parents who are habitually resident in New Zealand. The courts of the foreign country declare that the intending parents are the legal parents of the child. Under New Zealand law, however, the surrogacy arrangement would have no legal effect, and the surrogate mother and her partner would be treated as the child’s legal parents upon the child’s birth. Unless the foreign judgment is capable of recognition in New Zealand, the only way for the intending parents to become the child’s legal parents in New Zealand is to apply for adoption (see, eg, Re Cobain [2015] NZFC 4072, Re Clifford [2016] NZFC 1666, Re Henwood [2015] NZFC 1541, Re Reynard [2014] NZFC 7652, Re Kennedy [2014] NZFLR 367, Re W [2019] NZFC 2482, Re C [2019] NZFC 1629).

So what is the relevance of a foreign declaration on parentage in common law courts? In C v C [2019] UKPC 40, [2019] WLR(D) 622, the Privy Council decided that there was a basis in the common law for recognising such declarations, pursuant to the so-called Travers v Holley principle. This principle, which has traditionally been applied in the context of divorce and adoption, calls for recognition of foreign judgments on the basis of “jurisdictional reciprocity” (at [44]). The Privy Council applied the principle to recognise a declaration of parentage made in Latvia, in relation to a child domiciled and habitually resident in Latvia, for the purposes of maintenance proceedings in the forum court of Jersey. Lord Wilson emphasised that, although foreign judgments may, in some cases, be refused on grounds of public policy, recognition will not be refused lightly: “a court’s recognition of a foreign order under private international law does not depend on any arrogant attempt on that court’s part to mark the foreign court’s homework” (at [58]).

As a matter of policy, my first impression is that the Privy Council’s decision is to be welcomed. Common law jurisdictions have traditionally taken a conservative, relatively “closed” approach to the recognition of foreign laws and judgments on parentage (see Hague Conference on Private International Law A Study of Legal Parentage and the Issues Arising from International Surrogacy Arrangements (Prelim Doc No 3C, 2014)). Such an approach has become increasingly indefensible in a world that is witnessing unprecedented levels of cross-border mobility and migration. The conflict of laws should, as a matter of priority, avoid limping parent-child relationships: for example, a child who was declared by the courts of their place of birth to be the child of the intending parents, but who is nevertheless treated as the surrogate mother’s child under New Zealand law. The ability to recognise foreign judgments on parentage may not amount to much progress, given that it can apply only where the foreign court has, in fact, made a declaration of parentage: it would have no application where the relevant parent-child relationship simply arises by operation of law or through an administrative act (such as entry of the intending parents in the birth register). There is no doubt that an international solution must be found to the problem as a whole. But it is surely better than nothing.

Another question is what to make of the Privy Council’s reliance on the Travers v Holley principle. Based on the decision in Travers v Holley [1953] P 246 (CA), the principle enables recognition of foreign judgments by virtue of reciprocity: the forum court will recognise a foreign judgment if the forum court itself would have had jurisdiction to grant the judgment had the facts been reversed (ie had the forum court been faced with the equivalent situation as the foreign court). In the context of divorce, the principle has since been subsumed within a wider principle of “real and substantial connection” (Indyka v Indyka [1969] 1 AC 33 (HL)). In the context of adoption, the principle has been applied to recognise “the status of adoption duly constituted … in another country in similar circumstances as we claim for ourselves” (Re Valentine’s Settlement [1965] Ch 831 (CA) at 842).

Perhaps it is not a big step from adoption to parentage more generally. The Privy Council recognised that the latter primarily represents “a conclusion of biological fact”, while adoption “stamps a person with a changed legal effect” (at [39]). But the Privy Council did not seem to consider that this distinction should warrant a different approach in principle. In C v C, the issue of parentage involved a relatively straightforward question of paternity. Had the case involved a question of surrogacy or human assisted reproduction, the answer might well have been different. There is an argument that a parent-child relationship created under foreign law can only be recognised in the forum if the foreign law is substantially similar to forum law. Thus, in the context of adoption, it has been asked whether the concept of adoption in the foreign country “substantially conform[s] to the English concept” (Re T & M (Adoption) [2010] EWHC 964, [2011] 1 FLR 1487 at [13]). This requirement might not be made out where, for example, the law of the forum does not recognise parentage by way of surrogacy (as is the case in New Zealand).

The Privy Council cautioned that the Board did not receive full argument on the issue and that the reader “must bear the lack of it in mind” (at [34]). It seems especially important, then, for conflict of laws scholars to give the issue further consideration. This note may serve as a careful first step – I would be interested to hear other views. Perhaps the most encouraging aspect of the Board’s reasoning, in my mind, is its openness to recognition. The Board’s starting point was that the declaration could be recognised. Arguably, this was because counsel seemed to have largely conceded the point. But to the extent that it cuts through an assumption that questions of parentage are generally left to the law of the forum, it nevertheless strikes me as significant – even more so since the UK Supreme Court’s previous refusal to extend the Travers v Holley principle beyond the sphere of family law (Rubin v Eurofinance SA [2012] UKSC 46, [2012] 3 WLR 1019 at [110], [127]).

Can a foreign marriage be recognised in the UK if the State where it was celebrated is not recognised as a State? This was the question which the High Court of Justice (Family Division) had to answer in MM v NA: [2020] EWHC 93 (Fam).

The Court distilled two questions: was the marriage validly celebrated and if so, can it be recognised in the UK? If the answers to both questions were affirmative, the court could give a declaratory order; if one of them were negative, the parties could celebrate a new marriage in the UK.

In assessing the first question, the court considered issues of formal and essential validity. It took account of the various systems of law in Somaliland: formal law (including the Somali civil code, which is still in force in Somaliland on the basis of its continuation under the Somaliland constitution), customary law and Islamic law. In matters of marriage, divorce and inheritance, the latter applies. On the basis of the facts, the Court came to the conclusion that the parties were validly married according to the law of Somaliland.

Although this would normaly be the end of the matter, the Court had to consider what to do with a valid marriage emanating from a State not recognised by the UK (the second question). The Court referred to the one-voice principle, implying that the judiciary cannot recognise acts by a State while the executive branch of the UK refuses to recognise the State. It then considered exceptions and referred to cases concerning the post-civil war US, post-World War II Eastern Germany, the Turkish Republic of Northern Cyprus, Ciskei (one of the ‘States’ created by Apartheid-era South Africa), and Southern Rhodesia.

It also referred to the ICJ Advisory Opinion of 21 June 1971 on the continued presence of South Africa in Namiba, particularly its §125, which states:

“while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.”

The Court found that an exception to the one-voice doctrine is acceptable in matters of private rights. The Court also explained that it had conferred with the Foreign and Commonwealth Office of the UK Government, who would not object to the recognition of a Somaliland marriage even though that State is not recognised.

It thus gave the declaration of recognition of the marriage.

(Thanks to Prakash Shah for the tip.)

After Chukwuma Okoli’s, recent post, on this blog, on African Private International Law, Lise Theunissen, who is currently a legal intern at the Hague Conference, now has a blogpost at afronomicslaw on the harmonization of Private International Law in the African Union. Add to that Justin Monsepwo’s recent articles on legal unification at OHADA  and on the impact of the Hague Principles of Choice of Law on OHADA, and you start gaining the impression that interest in African private international law is growing – a good thing, undoubtedly.

The annual governance meeting of the Hague Conference on Private International Law (HCCH) will take place from 3 to 6 March 2020. The list of documents that have been submitted to the HCCH governance body (i.e. the Council on General Affairs and Policy) is available here.

Recent documents that have not yet been mentioned in this blog that are worthy of note are the following:

• Recommended Form under the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Prel. Doc. 4 of December 2019 –for approval) –  drafted by the Permanent Bureau (PB) of the HCCH which “was in constant consultation with the Chair of the Drafting Committee, the Chair of the Commission on Judgments, and Members interested in this particular issue.” The PB took forms contained in international and regional instruments into account, including Brussels Ia Regulation.
• Development of the Legal Guide to Uniform Legal Instruments in the area of international commercial contracts (with a focus on sales) (Prel. Doc. 16 of January 2020 – for info only)
• Overview of the findings of the Experts’ Group on cross-border recognition and enforcement of agreements in family matters involving children in relation to the development of a normative instrument (Info. Doc. 2 of January 2020 – for info only)
• The HCCH and the United Nations Sustainable Development Goals (Info. Doc. 3 of January 2020 – for info only)

A few meetings of the Special Commission (i.e. global meetings of experts) to review the practical operation of HCCH Conventions are in the pipeline and have been submitted for approval to Council concerning the following Conventions: the HCCH Apostille Convention, the HCCH Adults Convention, the HCCH Child Support Convention and the HCCH Maintenance Obligations Protocol. For the last three, if approved, it will be the first global meeting ever on their practical operation. See Prel. Docs 9, 10 and 12.

Participation in these meetings is restricted, as they are open only to delegates or experts designated by the Members of the HCCH, invited non-Member States and International Organisations that have been granted observer status.

Intersentia has recently published a monograph by Ayse Nihan Karadayi Yalim (University of Antwerp) on Interpretation and Gap Filling in International Commercial Contracts.

The blurb reads:

With the growth of cross-border business, the rather important but complex and controversial topic of interpretation and gap filling in international commercial contracts receives more and more attention. International legal instruments such as CISG, UNIDROIT Principles, PECL and DCFR provide rules in order to interpret international commercial contracts in a uniform way. However, while these instruments may bring together already existing national concepts, they must of course be understood beyond the domestic concepts and approaches as such. This book is an autonomous comparison across the above-mentioned international legal instruments, with a focus on the rules on interpretation and gap filling that provides the necessary theoretical background and case law to understand the rules in practice. Interpretation and Gap Filling in International Commercial Contracts examines the uniform and harmonised set of rules in their own right; without comparison to national laws, but in their own unique setting of international commercial contracts. It is a practical user guide for both scholars and practitioners.

For more information see here.