Droit international général

On 3 and 4 December 2017, the 11th “Luxemburger Expertenforum” on the development of EU law took place at the Court of Justice of the European Union. This forum is a workshop that is organised regularly by the German members of the Court of Justice (including the members of the European Court [formerly of First Instance] and the Advocates General); it is presided by the President of the CJEU, Koen Lenaerts, and attended by non-German members of the Court as well (although the discussions at the meeting are held in German).

This year’s forum was divided into four parts. It started on Sunday evening with a dinner speech by the protestant Bishop of Berlin-Brandenburg, Markus Dröge, who looked back at the 500 year anniversary of the reformation and reflected upon the relationship between the church(es) and the state(s) under domestic and European laws. The latter topic was also the general subject of Monday’s first morning session, which was titled “Constitutional challenges at the workplace”. In this session, which was chaired by Advocate General Juliane Kokott, the tensions between an employee’s right to exercise his or her religious freedom and the employer’s desire for a neutral and harmonious working environment were discussed. Moreover, the speakers looked at the implications of a case pending before the CJEU for the impact of the Anti-Discimination Directives on employees working in hospitals or schools run by churches (C-68/17). The topics were approached from a constitutional perspective by Monika Hermanns, judge at the German Constitutional Court, and Rüdiger Stotz, General Director at the CJEU and a member of the working group on EU law set up by the Conference of European Churches. Inken Gallner, judge at the Federal Labour Court, and Felix Hartmann, professor of labour law at the Free University of Berlin, added both practical and academic views from the perspective of labour law. Matthias Bartke, a social-democratic member of the German parliament, commented both on matters of politics and policy.

The second session was chaired by chamber president Thomas von Danwitz and devoted to a subject dear to readers of our blog: “Mutual trust and mutual recognition – are the structural principles of EU law still valid?”. This question was approached from various angles: Dirk Behrendt, senator of justice of Berlin and a member of the German Green party, gave an overview over Berlin court practice concerning the recognition and enforcement of foreign judgments. Tim Eicke, a British judge at the European Court of Human Rights in Strasbourg, looked at the implications of the European Convention on Human Rights for mutual recognition between the EU member states. Harald Dörig. judge at the Federal Administrative Law Court, analysed the principle of mutual trust (or rather the lack thereof) in the field of migration and asylum law. Yvonne Ott, judge at the German Constitutional Court, and Alexandra Jour-Schröder, director for criminal justice at the European Commission, discussed tensions between European law on arrest warrants and domestic constitutional guarantees. After the short speeches, Jan von Hein, professor at the University of Freiburg, opened the discussion with a survey on the current state of play with regard to European civil procedure.

During lunch, Luxembourg’s Minister of Foreign Affairs, Jean Asselborn, gave a speech on current challenges facing the EU and its member states, in particular with regard to migration politics (you may read the text of his speech here).

The third and final session was chaired by Alfred Dittrich, judge at the European Court, and dealt with the issue of whether and under which conditions national tax exemptions may qualify as prohibited subsidies under the TFEU. The speakers of this panel were Rudolf Mellinghoff, the president of the Federal Tax Court, Johannes Laitenberger, the General Director of the DG Competition, Kirsten Scholl from the German Ministry of Economics, Johanna Hey, professor at the University of Cologne, and Ulrich Soltész, lawyer at Gleiss Lutz in Brussels. Different views on the relationship between EU law on subsidies and domestic laws on taxation gave rise to an open and fruitful discussion.

Thank you Dan Svantesson for sharing preparatory work for a February 2018 conference on access to digital evidence in the cloud. The document, written by a group which comprises academia, relevant companies (including Apple, Google, Facebook and Microsoft) as well as regulators (including the EC and the USDJ), at this stage does not offer solutions. Rather, it sets out principles along which a future framework could be set out, including the concept of data control (not to be confused with data controller) and actual provision of service.

One of the issues to look out for is how a future international approach to access and jurisdiction in criminal matters may differ from courts’ and regulators’ approach in civil jurisdiction (including data protection and privacy).

Geert.

For those able to read Portuguese, two new books have been recently released, as a result of theses defended earlier this year at the Universities of Coimbra and Lisbon.

English abstracts provided by the Authors read as follows (more info, respectively, here and here):

AFONSO PATRÃO, Freedom of Choice in Mortgage and a Reinforcement of International Cooperation

Abstract: This dissertation concerns the implementation of a European mortgage market, identifying obstacles to its accomplishment and offering solutions to overcome them.

Considering statistical data that indicate national compartmentalisation of mortgage markets (as land security rights are essential for internal credit but, internationally, less than 1% of all international credit involves mortgages), we start by justifying the inclusion of international mortgages within the scope of European Treaties, demonstrating that the European Union objectives include the free movement of land security rights.

Next, we identify obstacles to the acceptance, by lenders, of land security rights on immovable property in other Member States. These barriers, potentially contrary to European law, must be correctly understood in order to arrive at accurate solutions. As such, in Part I, we deal with the mandatory submission of land property rights and land registry to lex situs, analysing its purpose; we demonstrate substantial differences in European mortgage and land registry laws; we scrutinise the execution of a mortgage on a plot situated in another Member State; and we highlight the complexity of setting up a mortgage in a foreign country.

In Part II, we assess the proposals which have so far been offered as solutions. In particular, we discuss the feasibility of unifying or harmonising mortgage laws; the introduction of Eurohypothec as an additional optional legal regime; the securitisation of granted mortgage loans; and the establishment of the country of origin principle. The analysis concludes that standing proposals do not adequately solve the issue at hand.

Solutions are offered in Part III of the dissertation. The first suggestion is to recognise party autonomy in mortgages (conferring the right to choose the applicable law to land security rights), in harmony with the movement of dépeçage of private international law on property rights and with the purpose of European integration. We demonstrate that, provided that adequate precautions are taken, there is no reason for the obligatory application of lex situs.

In addition, we advocate strengthening of international cooperation in the field of mortgage constitution — especially between notaries of the country where the contract is concluded and registrars of the Member State where the plot is located.

These recommendations are designed to be introduced in a European Regulation, considering that they would be a factor in dismissing barriers on the free movement of capital.

JOÃO GOMES DE ALMEIDA, Divorce in Private International Law

Abstract: The cross-border movement of people is an increasingly widespread reality, due mainly to technological progress. Within the European Union this phenomenon is also enhanced by the freedom of movement of persons, goods, services and capital. Nowadays, it is no longer unusual to find couples of different nationalities, couples with one or more common nationalities that habitually reside in a State that is not one of the States of their nationalities and even couples, with or without a common nationality, that do not habitually reside in the same State. And it appears that this trend will only grow stronger in the future. In brief, transnational family relationships – family relationships that are connected to more than one sovereign State – are increasingly common.

Of the various kinds of transnational family relationships, the present dissertation focuses on the transnational divorce. Divorce is the dissolution of marriage. As such, it is a significant event in the lives of the spouses, as it extinguishes the marital bond, terminating the family relationship that arose from marriage. Transnational divorce raises specific questions: in which sovereign State must the applicant initiate the divorce proceedings? Which law applies to a transnational divorce? Is it possible for a foreign judgment on transnational divorce to be recognised and produce its effects in the same way as a domestic judgment? These specific questions are answered, respectively, by the rules on jurisdiction, applicable law and recognition of foreign judgments.

These questions, although different, cannot be considered as totally unrelated. They are interconnected. The specific connections between the rules on jurisdiction, on applicable law and on recognition of foreign judgments on divorce justify a joint analysis, so that one does not lose sight of these connections and is able to avoid incoherent solutions. The present dissertation is a study of the issues raised by the Private International Law aspects of divorce law, from the perspective of Portuguese law.

Over the course of the last decades the European legislature has adopted a total of 18 Regulations in the area of private international law (including civil procedure). The resulting substantial degree of legislative unification has been described as the first true Europeanisation of private international law and even as a kind of “European Choice of Law Revolution”. However, until today it is largely unclear whether the far-reaching unification of the “law on the books” has turned private international law into a truly European ”law in action”: To what extent is European private international law actually based on uniform European rules common to all Member States rather than on state treaties or instruments of enhanced cooperation? Is the way academics and practitioners analyse and interpret European private international law really different from previously existing domestic approaches to private international law? Or is the actual application and interpretation of European private international law rather still influenced or even dominated by national legal traditions, leading to a re-fragmentation of a supposedly uniform body of law?

To answer these and related questions Jürgen Basedow (MPI Hamburg), Jan von Hein (University of Freiburg), Eva-Maria Kieninger (University of Würzburg) and Giesela Rühl (University of Jena) kindly invite you to the conference “How European is European Private International Law?”. that will take place on 2 and 3 March 2018 in Berlin. Bringing together academics and practitioners from all over Europe the conference will provide a platform to shed light on the present lack of „Europeanness“of European private international law and to discuss how European private international law can become more truly European in the future.

More information is available on the conference website and on the conference flyer. Please register by 1 February 2018.

The programme reads as follows:

Friday, 2 March 2018

9.00 am    Registration

9.30 am    The Europeanisation of Private International Law

• Prof. Dr. Dr. h.c. Jürgen Basedow, MPI Hamburg (Germany)
• Prof. Dr. Giesela Rühl, University of Jena (Germany)
• Dr. Andreas Stein, Head of Unit, DG Justice and Consumers, European Commission

1st Part: Europeanness of Legal Sources

10.00 am   The relationship between EU and international Private International Law instruments

• Speaker: Prof. Pietro Franzina, Università degli Studi di Ferrara (Italy)
• Commentator: Prof. Dr. Dr. h.c. Jürgen Basedow, MPI Hamburg (Germany)

10.45 am    Discussion

11.15 am     Coffee break

11.45 am     The relationship between EU and Member State Private International Law

• Speaker: Prof. Johan Meeusen, Universiteit Antwerpen (Belgium)
• Commentator: Prof. Dr. Jan von Hein, University of Freiburg (Germany)

12.30 pm    Discussion

1.00 pm      Lunch break

2nd Part: Europeanness of Actual Court Practice

2.00 pm     The application of European Private International Law and the ascertainment of foreign law

• Speaker: Prof. Marta Requejo Isidro, MPI Luxembourg (Luxembourg)
• Commentator Prof. Paul Beaumont, University of Aberdeen (United Kingdom)

2.45 pm     Discussion

3.15 pm      Coffee break

3.45 pm      The application of European Private International Law and the role of national judges

• Speaker: Prof. Agnieszka Frackowiak-Adamska, University Wroclaw (Poland)
• Commentator: Prof. Michael Hellner, Stockholms Universitet (Sweden)

4.30 pm     Discussion

5.00 pm     The application of European Private International Law and the role of national court systems

• Speaker: Prof. Xandra Kramer, Universiteit Rotterdam (Netherlands)
• Commentator: Prof. Pedro de Miguel Asensio, Universidad Complutense de Madrid (Spain)

5.45 pm     Discussion

6.15 pm     End of day 1

7.30 pm     Reception and conference dinner

Saturday, 3 March 2018

3rd Part: Europeanness of Academic Discourse and Legal Education

8.30 am       National styles of academic discourse and their impact on European Private International Law

• Speaker: Prof. Sabine Corneloup, Université de Paris/Sorbonne (France)
• Commentator: Prof. Dário Moura Vicente, Universidade de Lisboa (Portugal)

9.15 am     Discussion

9.45 am     Coffee break

10.15 am    Overriding mandatory laws, public policy and European Private International Law

• Speaker: Prof. Marc-Philippe Weller, University of Heidelberg (Germany)
• Commentator: Prof. Stephanie Francq, Université Catholique de Louvain (Belgium)

11.00 am     Discussion

11.30 am     Legal education and European Private International Law

• Speaker: Prof. Thomas Kadner Graziano, Université de Genève (Switzerland)
• Commentator: Prof. Gilles Cuniberti, Université de Luxembourg (Luxembourg)

12.15 pm     Discussion

12.45 pm     Lunch break

2.00 pm      The future of European Private International Law in theory and practice

• Opening statement: Karen Vandekerckhove, Former Head of Unit, DG Justice and Consumers, European Commission
• Discussants: Prof. Paul Beaumont, Prof. Gilles Cuniberti, Prof. Dr. Eva-Maria Kieninger Prof. Johan Meeusen, Prof. Marta Requejo Isidro

4.00 pm     Concluding remarks

• Prof. Dr. Jan von Hein, University of Freiburg (Germany)

4.15 pm     End of conference

The Hague Academy has long offered three week summer courses in private international law. Beginning in 2019, it will also offer winter courses in January.

This is mainly because universities in the southern hemisphere are teaching during the months of July and August, when the Academy’s courses are taking place, which makes it difficult for their students to come to The Hague during that period. On the other hand, their vacation period during the southern summer will allow these students to come to the Academy in January without conflicting with their academic year. The winter courses were therefore created in the first instance with students from this part of the world in mind.

However, these students are not the only ones for whom the courses are designed. Doctoral students, from whichever part of the world they may come, are not generally required to be present at their university at all times. Therefore, those from the northern hemisphere can also attend these courses every January. In such a case, they will have an additional opportunity to meet distinguished professors from various countries, as well as other doctoral students from other parts of the world, and to benefit from exchanges in the common interest of their doctoral research work. As it does during the summer, the Academy will facilitate these exchanges with the assistance of a teacher who will be put in charge of organising and channelling them.

As for the rest, the organisation of the courses and their publication, seminars, directed studies and diploma will be exactly the same as in the summer. The only difference is that the distinction between a public international law period and a private international law period has been abolished in favour of a single three-week period of “international law”, taking into account the general trends in the development of the subject.

Registrations will open from 3 January 2018.

Further information at
https://www.hagueacademy.nl/programmes/winter-courses/

The program for January 2019 is here.

by Antonella Nolten, Research Fellow at the EBS Law School, Wiesbaden, Germany.

On 22 November 2017 the Academy of European Law (ERA) hosted a conference on the recent developments on the Proposal for a Digital Content Directive in Brussels.

After welcoming remarks by Dr. Angelika Fuchs, Prof. Bénédicte Fauvarque-Cosson, University Paris II – Panthéon-Assas, chaired the first panel on the scope of the Directive. To begin with, Prof. Fauvarque-Cosson reminded the participants of the past developments in European contract law, mentioning the UPICC, the Principles of European Contract Law, and the CESL. The challenges these projects had to face clearly showed that for most member states contract law represented the heart of their legal traditions, and member states were therefore reluctant towards radical changes.

Evelyne Gebhardt, MEP, Co-rapporteur for the IMCO and JURI Committees, explained the position of the IMCO/JURI joined committee after the vote on 21 November 2017. In order to ensure updates for consumers and interoperability, a sensible inclusion of embedded digital content (EDC) was proposed. The scope of the Directive was extended to also include OTTs (Over-the-top content) in order to ensure remedies and conformity rights in this field. The overall objective were a high level of consumer protection and to anticipate rules for digital content on a European scale in order to prevent deviating national legislation.

Jeremy Rollson, Microsoft, praised the work of the Commission and the European Parliament. With regard to platforms, he proposed a modernization of the scope. Since the release of the proposal in 2015 by the commission, the technology had already gone through major changes. As various forms of OTTs existed, it proved hard to find a one size fits all model, however it were necessary to agree on certain principles. Rollson outlined the difficulties businesses were facing, because many different legal instruments had to be considered. He suggested a targeted scope in order to ensure the applicability of the rules.

The question, which rules should apply to embedded digital content, was addressed by Prof. Karin Sein, University of Tartu, Estonian EU Presidency Team. After having explained the advantages and disadvantages of the different approaches, she reported on the council’s opinion to exclude embedded digital content from the scope of the Digital Content Directive. This solution offered the upside that from a consumer’s perspective it was easily understandable, that the rules for goods also applied to smart goods. The overall goal was to achieve a future-proof solution, which was at the same time easily understandable for the average consumer.

In the following discussion Evelyne Gebhardt disagreed with Prof. Sein on the topic of embedded digital content and presented the European Parliament’s opinion to extent the scope of the directive to EDC. The European Parliament preferred the split approach. This approach offered the main advantage that it were not up to the consumer to define where the product’s defect lay, but the supplier had to determine whether the defect touched the digital content or the good itself. Prof. Sein replied that, overall, it was less relevant, where the rules were installed, since this was only a question of technique. Nevertheless, the installation of specific rules remained the main objective. Prof. Staudenmayer, Head of Unit – Contract Law, DG Justice, European Commission, agreed and added the main requirements of the rule were that it needed to be forward-looking and at the same time practical for consumers. Prof. Fauvarque-Cosson highlighted the different scope of the Digital Content Directive in contrast to the CESL, as the scope was limited to B2C-contracts and moreover the territorial scope covered domestic as well as cross-border contracts.

Prof. Karin Sein introduced the audience to the second panel’s focus on conformity criteria, remedies and time limits. Agustín Reyna, BEUC, compared the specifications of the conformity criteria in the Commission’s proposal to the Council’s proposal and the IMCO/JURI report. During the upcoming Trilogues he would expect an agreement on a balance between objective and subjective criteria. He pointed to the possible conflicts between contractual disclaimers (subjective) and consumer expectations (objective). He praised the amendment in Art. 6a (5), which introduced specific rules for updates for digital content or digital services. In his opinion the relation between third party rights and copyright issues needed further clarification.

Staudenmayer added to the discussion on the inclusion of updates that consumers needed to be informed about possible updates as well as a right to terminate. The topic, whether the consumer should be able to keep the old version, was discussed controversially. With regard to the remedies package, Staudenmayer justified the facilitation of the right of termination by stating that most suppliers also preferred a termination of the contract, caused by the fact that they did not want to invest in a bad product and rather develop a new one. On the other hand consumers also profited, as the easier termination gave an incentive to suppliers to develop good products. Regarding the reversal of burden of proof, he reported on the commission’s reason to not imply a time limit, since digital content was not subject to wear and tear. However, as the council and the European Parliament supported a time limit for the burden of proof, a discussion on how long this period will be and when it should start is expected. To conclude, Staudenmayer emphasized the transition our economy is undergoing as it is turning towards a digital economy and reminded the participants of the importance of promoting this change in order to stay competitive on a global scale.

Panel II ended with a Round Table on the topic “Balancing the interest of suppliers and consumers? Watering down full harmonization?”. Fauvarque-Cosson explained the historic development from a preference for minimum to a preference for maximum harmonization and indicated that recently some member states saw the subsidiarity principle endangered. Therefore she suggested more targeted rules as a substitute for full harmonization. Concerning updates, Anna Papenberg, stated that updates could often be very burdensome and consumers needed access to previous versions. Prof. Schulte-Nölke referred to the suggestion of the ELI regarding embedded digital content, which proposed that in this case hard- and software should be subject to remedies and the consumer should be allowed to cherry-pick a system. The Round Table ended with the conclusion that defining a targeted scope could lead to similar results as full harmonization.

After a short lunch break, Stephen Deadman, Facebook Global Deputy Chief Privacy Officer reported on “Data and its role in the digital economy”. He stated that in the future, as part of a new wave of innovation, people would be made aware of the value of their data with the aim of empowering people in their life by using their data. In his opinion data driven innovation and privacy should become mutually enforcing. He underlined that data were not to be classified as a currency, as it were neither finite nor exclusive. In fact, data were superabundant and, by using data, people did not give up data.

Romain Robert, Legal Officer, Policy & Consultation Unit, EDPS, presented the “Interaction of the GDPR, the e-Privacy legislation and the Digital Content Directive”. He stressed the EDPS’s opinion that data were significantly different from money as a counter performance. He referred to the EDPS opinion from April 2017 on the proposed Directive and explained the position, why the term “data as a counter performance” should be avoided. Differences between the Digital Content Directive and the GDPR arose with regard to the definition of personal data. In the EDPS opinion almost all data provided by the consumer would be considered as personal data.

Insight on the topic “Data as a price under contract law?” was provided by Prof. Hans Schulte-Nölke, University of Osnabrück and the Radboud University Nijmegen. In his opinion the Digital Content Directive was not properly coordinated with the GDPR. He pointed to a conflict between contract law and the GDPR, as under data protection law personal data were protected as a fundamental right, whereas in contract law personal data could be considered as a counter-performance for a service. Hence under contract law the contract was the reason for the right to exchange, thus for what had been exchanged under the contract. Therefore the supplier had a right to keep the counter performance after proper performance of the contract. Meanwhile the GDPR granted a right to withdraw consent at any time (Art. 7 (3) GDPR). How can a balance be achieved in a way that, on the one hand, contract law is interpreted in the light of the GDPR and, on the other hand, considering the principle that GDPR supersedes contract law, but contract law purposes are still met. He came to the conclusion the GDPR should not hinder contract law. Further, he raised the question, whether a counter performance could be assumed, in the case that a supplier gathered more information than the amount that were necessary for the performance of the service.

“Provision of data and data processing under the proposed regime” was the subject of the Round Table at the end of the conference day. Jeremy Rollson drew the attention to his opinion that data were neither comparable to oil nor to a currency, but without doubt very valuable. Robert Reyna agreed and further elaborated that the idea of “data as a counter performance” put suppliers in a very strong position, as they could determine, which data to label as a counter performance and which to label a necessity for the contract. A solution to balance this power of determination could be a presumption in consumer law. Anna Papenberg specified that a consumer could not give away personal data, but, more specifically, the exploitation rights of data. The fact that consumers did not give up data, but that their data was being used, were not the same as a counter performance, added Stephen Deadman. It was agreed on the necessity to limit the power of the supplier in order to define, which data counted as counter performance and which was necessary for the execution of the contract. The event ended with warm words of thanks to the organizers and speakers for a highly interesting conference day.

I have reported before on the relevance of lex curia /curial law and other lex causae decisions to be made in the arbitration context. I have also reported on the qualification of ‘international‘ for conflict of law /private international law purposes. And finally of course privity of choice of court and -law is no stranger in my postings either. All these considerations apply in the arbitration context, too.

Thank you Herbert Smith for flagging CS(COMM) 447/2017 GMR Energy, in which all these issues featured in the arbitration context. The judgment would not seem to add anything new (mostly applying precedent) however it is a usual reminder of the principles. As reported by HS (and with further factual background there), GMR Energy argued

• on the plain reading of the arbitration clauses, Singapore was not the seat of arbitration but only the chosen place or venue for hearings; Not so, the High Court found: reference to SIAC rules and to Singapore  points to Singapore as the curial seat;
• the parties being Indian, choice of a foreign seat for arbitration would be in contravention of Section 28 of the Indian Contract Act 1872 which provides that agreements which restrain parties’ rights to commence legal proceedings are void (save for those which do so by way of an arbitration agreement) – GMR Energy contended that an agreement between Indian parties to arbitrate offshore would fall foul of this provision. This, too, the High Court rejected: per precedent, offshore arbitration is compatible with the Act. (It is also particularly useful for Indian subsidiaries of foreign companies); and
• for two Indian parties to choose an overseas seat for their arbitration (thereby disapplying Part I of the Arbitration Act) would amount to a derogation from Indian substantive law, and therefore would not be permissible. This, the High Court ruled, is not a decision to make at the stage of jurisdictional disputes between the parties.

Further, on  the issue of privity, Doosan India ‘contended that GMR Energy should be party to the SIAC Arbitration proceedings by virtue of common family ownership and governance, lack of corporate formalities between the companies, common directorships, logos and letterheads, and GMR Energy’s past conduct in making payments towards GCEL’s debts’ (I am quoting HS’s briefing here). This is referred to as the alter ego doctrine and the High Court upheld it. Liability for affiliated undertakings’ actions is to be discussed on the merits (here: by the arbitral tribunal). But a the level of jurisdiction (including reference to arbitration), Doosan India’s arguments were upheld: the common ownership between the entities; the non-observance of separate corporate formalities and co-mingling of corporate funds; and GMR Energy’s undertaking to discharge liabilities of GCEL (and the fact that it had made part payments towards the same) all conspire to the conclusion that GMR Energy is bound by the arbitration agreement.

An interesting confirmation of precedent and ditto application of the alter ego doctrine.

Geert.

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

With International Insolvency Law Part II having been published, Bob Wessels’ 10 volume series ‘Insolventierecht’ (Insolvency Law) is now completed in its 4th edition. The publication comprehensively deals with the European Insolvency Regulation Recast as entered into force on 26 June 2017, while International Insolvency Law: Part I Global Perspectives on Cross-Border Insolvency Law, already published at the end of 2015, covers the core concepts of Cross-Border Insolvency Law, other regional frameworks than the EIR and relevant instruments of soft law. Thus, both books collectively provide a comprehensive overview of the current state on Cross-Border Insolvency Law. The book is ‘user supported’ as it was possible to send useful information or comments to the author on drafts of texts of the book which were available online in early 2017. International Insolvency Law Part II comes in form of a commentary, which makes its structure more or less self-explaining. Besides the commentary itself, it offers an introduction to the EIR, a bibliography, table of cases and legislation, as well as five appendices and a consolidated index for Part I and Part II.

The commentary itself is up to date, as it includes all recent case-law and literature so that you can find profound information on all questions relevant in the context of the EIR. Highly recommended is the part on Cross-Border Cooperation and Communication, which sheds some light into this area of cross-border insolvency law that is shaped by practitioners and courts more than by the legislator. Then again, one might have wished to see some more thoughts on the new instrument of the undertaking in Art. 36 EIR, e. g. on the question of applicable law, especially the interplay between the undertaking and the rules governing rights in rem and acts detrimental to creditors.

Not only the commentary itself, but also its exhaustive bibliography and table of cases covering presumably every source relevant in cross-border insolvency law today make International Insolvency Law Part II a standard reference for practitioners as well as academics.

International Insolvency Law: Part II European Insolvency Law, 4th edition 2017 is available here.

Thank you Bob Wessels for again alerting us timely to two recent decisions by the Dutch courts, applying the Insolvency Regulation 2015, on the determination of COMI – Centre of Main Interests. Bob’s review is excellent per usual hence I am happy to refer for complete background. In short, the decisions are

• in Powerstorm: textbook applications on the public expression (hence ascertainability by third parties, to use the CJEU’s phrase of words) of COMI, which third parties have to rely on. Here: to displace the presumption of COMI in the United States (place of incorporation; in re Powerstorm) in favour of Amsterdam.
• in Bezuijen BV against X, a natural person: with extensive reference to the recitals of the EIR 2015, that the Dutch courts have to consider jurisdiction proprio motu, evidently, and that they need serious evidence to uphold jurisdiction against a natural person who, both parties agree, no longer has his residence in The Netherlands (where it is, is in dispute but it is probably somewhere in the vicinity of Paris).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 5, Heading 5.6.1.

By Ana Koprivica, Research Fellow MPI Luxembourg.

On 20th and 21st November 2017 in Brussels, the Academy of European Law (ERA) hosted the seminar: “Access to Documents in the EU and Beyond: Regulation 1049/2001 in Practice”, bringing together national and EU civil servants, lawyers, active members of the NGOs and civil society, and academics. The seminar aimed at providing participants with answers to practical questions on access to information and documents in the European Union. The focus in particular was on the practical implementation of Regulation 1049/2001 on access to documents by the EU institutions, on one hand, and by the relevant institutions in Member States, on the other. The seminar further provided for an overview of recent relevant case law of the Court of Justice of the European Union and the opportunity to deliberate about how best to implement those judgments in practice. Lastly, it offered a platform for a discussion of the future development of access to information. This post provides a brief overview of the presentations. For a full report on the presentations and of the discussions on the issues raised, see Full Report.

Following the introductory remarks by the organisers, Prof. Päivi Leino-Sandberg (University of Eastern Finland) provided the audience with a comprehensive overview of the diverse European Union legal landscape in which the right to information operates: namely, the EU Treaties, the Charter of Fundamental Rights and the European Convention of Human Rights.

This set the scene for the discussion about the challenges of practical implementation of the Regulation by the representatives of the European Commission (Martine Fouwels), the European Parliament (Chiara Malasomma) and the Council of the EU (Emanuele Rebasti). The audience was next given a valuable insight into the best practices of several Member States, namely Sweden (Sara Johanesson), Finland (Anna Pohjalainen), and Poland (Ewa Gromnicka), in the application of Regulation 1049/2001 as well as the insight into the common challenges they are confronted with in this context.

Katarzyna Szychowska (General Court of the European Union) provided the audience with a comprehensive overview of the recent case law of the CJEU in matters relating to access to documents under Regulation 1049/2001. In this respect, a distinction was made between the different types of documents to which access has been requested and on which the Court has built its case law.

Day One closed with a stimulating workshop, which was prepared and conducted by Emanuele Rebasti. The participants were presented with a hypothetical problem of handling a request for access to documents and asked to apply the information gained during the seminar.

The next morning Vitor Teixeira from Transparency International Brussels presented the activities of his organisation, oriented towards creating a new system of EU lobby transparency. The focus in particular was on the idea of a mandatory EU lobby register.

The conference closed with a round table discussion on new ideas with regard to access to documents. Nick Aiossa (Transparency International Brussels), Helen Darbishire (Access Info Europe), Graham Smith (European Ombudsman Cabinet), exchanged their views on the ways in which to improve the dialogue between the citizens and the authorities in the area of access to information. This prompted a lively discussion amongst the participants.

The overall conclusion of the conference was that the debate on transparency and access to documents has become much more sophisticated since the adoption of the Regulation 1049/2001 and that a lot has been done in order to improve its implementation. The importance was stressed of the dialogue among all the stakeholders in order to better the situation.

At the end of October the Rechtbank Amsterdam held that ‘booze bikes’ can be kept from parts of Amsterdam. The municipality had resorted to the ban both to address congestion (the bikes are slow and chunky; the roads in the part of Amsterdam concerned, narrow) and rowdiness (the bikes are often used for stag parties and let’s just say that the ‘bike’ part of the trip is not the one that attracts its users). In my experience (from a resident’s point of view) these bikes are a bit like Brexit: attractive for five minutes to some; a right nuisance for the remainder of the journey.

In 2009 I wrote a short piece reflecting on use restrictions from an EU point of view. In it I refer ia to C-142/05 Mickelsson and to C-110/05 Commission v Italy (motorcyle trailers) – my analysis and that of Peter Oliver may be applied here mutatis mutandis. The degree to which lawfully marketed products may be restricted in their use has so far not entertained the Court of Justice in great numbers. Yet the use of such restrictions is bound to increase, with local authorities in particular imposing restrictions for environmental, public health and other ‘sustainable development’ purposes. Witness e.g. Venice banning wheeled suitcases, historic city centres banning diesel cars etc.

In the booze bike case the Court at Amsterdam (at 2.9) simply said that applicants should have provided detail of their argument as to why the ban might contravene EU law. Expect a second round on similar cases at some point.

Geert.

The vacancy for the position of Diplomat Lawyer at the Permanent Bureau of the Hague Conference on Private International Law (HCCH) has been reopened. The deadline for applications is 22 January 2018. For more information, click here.

As announced, the responsibilities of the selected candidate will be as follows:

“The selected candidate will oversee the completion of the “Judgments Project” and subsequent efforts to promote the Convention. His or her portfolio will also include work relating to the 2005 Choice of Court Convention and the Hague Principles, and any other legal work of the Permanent Bureau as required. He or she will be part of the senior management team and assure a good, co-operative working atmosphere, conducive to team work and efficient communications, both within the Permanent Bureau and in relations with representatives of States and Organisations (respect of the Permanent Bureau’s core values is essential). The selected candidate will represent the HCCH in dealings with Members as well as other stakeholders and interested parties. He or she will also be expected to assist with the administration of the Permanent Bureau.”

Others have studied the EU’s legal basis for energy policy much better than I have. Chiefly among them prof Leonie Reins. e.g.  for RECIEL here and in her Phd here. The impact of this discussion is high: since the introduction of an energy Title in the EU Treaties (following Lisbon) whether so designed or not, the prospect of that Title’s requirement on unanimity for measures which ‘have a significant effect on a Member State’s choice between different energy sources’ looms heavily over the EU’s environment policy. The EU’s emissions trading system – ETS is the prime candidate for falling victim to an extensive interpretation of Article 192(2)c TFEU, which harbours the unanimity requirement.

In C-5/16 Poland v EP and Council Mengozzi AG Opined last week. At issue is Poland’s opposition to a MSR – a market stability reserve for the Union greenhouse gas emission trading scheme, essentially a long-term parking for surplus allowances to enable the ETS to safeguard collapse of prices in the event of excess supply. The resulting increase in the price of allowances was inter alia intended to encourage fuel switching and to discourage investments in coal-fired power stations (hence of course Poland’s interest).

Relevant to future reference is especially the AG’s view at 25, which I include in full: ‘as a derogation, Article 192(2)(c) TFEU is to be interpreted strictly, especially since an efficient modern environment policy cannot ignore energy questions. I share the fears expressed by the defendants and the interveners that the applicant’s proposed interpretation of Article 192(2)(c) TFEU and the conclusions which it draws from that interpretation for the examination of the legal basis of the contested decision would effectively block any legislative initiative by recognising a right of veto for Member States, as the Union would adopt measures inviting them only to rationalise their CO2-consuming activities. Furthermore, such an interpretation would doom the ETS to failure as it would prevent the EU legislature from correcting its structural deficiencies. In addition, although I would point out that the goal of introducing the MSR is not to form the price of allowances but simply to ensure the efficiency of the ETS, in any event, an operator’s choice of a certain energy source or production technology cannot depend on that price alone, which does not in itself define the production costs, which are determined by a variety of factors. Even with the introduction of the MSR, the choice of technology still remains in the hands of operators and is not dictated by the European Union.’

I am not sure to what degree the Court’s judgment will enable us to draw criteria with wider impact than just the current case – but it would certainly be helpful. Mengozzi AG firstly emphasises strict interpretation of the ‘energy mix’ exception. Further, in the paras preceeding the aforecited one, links amendments to existing laws largely to the latter’s legal basis. Supports the Institutions and Spain, France and Sweden (intervening; the position of Germany, also intervening, was not made clear) in their warning against veto power in the energy /climate change context; and finally further dilutes the exception by looking at policies as they work in practice, not just in theory. On this point, the AG looks at the ETS specifically however his view has broader appeal: it would essentially mean that when Member States’ and individuals’ /undertakings’ behaviour is determined by regulatory intervention, some of which clearly based on a legal basis other than Article 192(2)c TFEU, the latter is not determinant in deciding proper legal basis.

This is an important case for the future of EU environment and energy policy.

Geert.

A meeting of the Working Group on the Authentication of Documents Generated by Supranational and Intergovernmental Organisations took place on 1 December 2017 and its Report has just been made available on the Hague Conference (HCCH) website (click here). This is both the first and the last meeting of the Working Group.

A couple of Information Documents were drawn up for the meeting, in particular a summary of proposals for consideration and a comparative summary of documents generated by supranational and intergovernmental organisations and their authentication practices. As is evident from the findings of the latter, it would appear that some documents generated by intellectual property organisations (such as patents, trademarks and designs) may experience difficulties when it comes to authentication. However, this does not mean that these are the only documents generated by supranational and intergovernmental organisations that may need to be authenticated and the Report is thus drafted in general terms.

The Report indicates:

“Having reviewed the different practices across Contracting Parties with respect to authenticating documents generated by supranational and intergovernmental organisations in their territory, the Group recommended the following options, if and when a need to authenticate such documents for use in another Contracting Party arises:

1. the relevant Competent Authority of the host State, in possession of the required sample signatures and seals of the officials that issue such documents for the organisation in question, may directly apostillise the documents;

2. a notary of the host State may first authenticate the document or a copy of the document and this notarial authentication is subsequently apostillised by the relevant Competent Authority;

3. a government office or authority may be designated by the host State, and which holds the required sample signatures and seals of the officials that execute such documents for the organisation in question, to act as an intermediary for the purposes of authenticating such documents and this authentication is subsequently apostillised by the relevant Competent Authority.”

In [2017] EWHC 2932 (Fam) Radseresht v Radsheresht-Spain Cohen J is asked to recognise a divorce (and ensuing financial arrangements) granted under Dubai law.

I will not discuss the merits of the case (Justice Cohen does so proficiently, not just to my lay eye but I am assuming also the expert eye; he decides there was an intention to continue to stay married). Rather, the case is an interesting example to show those having to get used to conflict of laws. The High Court has no hesitation to apply Dubai law with all its in and outs (part of the judgment queries whether there were continued sexual relationships between the (ex?) spouses), in a court in London.

Of note is also that the High Court suggests that but for the very late raising of the issue, it could have queried whether the courts at Dubai had jurisdiction in the first place, habitual residence of the parties not having been at the UAE (the suggestion seems to have been made by counsel of the husband that the relevant criterion would have been nationality anyway).

Geert.

On the initiative of Tobias Asser, the First Diplomatic Session of the Hague Conference on Private International Law (HCCH) was convoked on 12 September 1893. In 2018, the HCCH is celebrating this joyous occasion with several events throughout the year.

On the anniversary date, 12 September 2018, the official ceremony will take place in The Hague. The event will feature selected speeches as well as an official photo opportunity and will be followed by a reception.

On 18-20 April 2018, the global conference “The HCCH 125 – Ways Forward: Challenges and Opportunities in an Increasingly Connected World” will be held in Hong Kong SAR. This event will gather leading experts to discuss the opportunities for, and challenges to, private international law.
On 10 September 2018, the Embassy of Hungary in The Hague will host a half-day colloquium to discuss the determinant role and impact of the HCCH’s work, and its instruments, on national private international law legislation.

In October/November 2018, the Embassy of Austria in The Hague plans to organise a discussion event relating to the work of the HCCH and its relationship with the EU, as part of Austria’s Presidency of the Council of the European Union.

Please follow the Facebook page HCCH 125 to receive updates on the events to be held in relation to the anniversary.

The Max Planck Institute Luxembourg is currently recruiting new members for its team. Two  positions are open, one for a Research Fellow (PhD candidate) for the Department of European and Comparative Procedural Law, and one for a Senior Research Fellow for the same Department. In both cases the offer is for a fixed-term contract for at least 18 month – contract extension is possible.

Applications are to be made on line until 15th December 2017. Details of the offer and documents required are indicated there as well.

Task

For a period of at least 18 months, the Research Fellow/Senior Research Fellow will conduct legal research and cooperate at the Max Planck Institute Luxembourg within the project ‘Informed Choices in Cross-Border Enforcement’ which aims at analyzing the application of the 2nd generation Regulations (the EEO, the EPO, the ESCP and the EAPO) by European Courts, in order to determine why these instruments have so far failed to realize their full potential, and how to improve such situation.

The successful candidate will be in charge of compiling data in terms of the case law of the European Court of Justice but also the French and Luxemburgish courts regarding the application of the following EU regulations:

– EEO, Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (European Enforcement Order)
– EPO, Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure
– ESCP, Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure
– EAPO, Regulation 655/2014 establishing a European Account Preservation Order procedure (“EAPO”) establishes a new uniform European procedure for the preserving of bank accounts,
– Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December 2015 amending Regulation (EC) No 861/2007 establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 creating a European order for payment procedure

Additionally, the Research Fellow is expected to assist in the achievement of the objectives of the Project, namely by interviewing relevant stakeholders (judges, lawyers etc.) on the same instruments. Furthermore he/she will assist in all project related activities such as uploading data to the pertinent data base, drafting minutes of meetings, contributing to interim and final reports as well as to the final book, helping in the organization of conferences and the communication with the partners.

Profile- Research Fellow

Regarding the Research fellow, the Institute is looking for a highly motivated candidate who would be interested in writing a PhD thesis under the supervision of Prof. Dr. dres Hess leading the Department of European and Comparative Procedural Law (or in a co-tutelle) in a topic connected to the project. For the purposes of the project she /he would work under the instructions of senior research fellow Prof. Dr. Marta Requejo Isidro.

Applicants must have earned a degree in law and be PhD candidates working or intending to work on a thesis related to the project’s topic or, alternatively, on a topic falling within the scope of European Procedural Law in civil and commercial matters . According to the academic grades already received, candidates must rank within the top 10 %.

The successful candidate shall demonstrate a strong interest and aptitude for legal research and have a high potential to develop excellence in academic research. Prior publications in this field of the law shall be highly regarded in the selection process.

Full proficiency in English and French is compulsory (written and oral).

Profile- Senior Research Fellow

The Institute is looking for a highly motivated candidate who would join the Department of European and Comparative Procedural Law led by Prof. Dr. dres Hess and composed by a team of five senior research fellows and 15 research fellows. For the purposes of the project she /he would work under the instructions of senior research fellow Prof. Dr. Marta Requejo Isidro.

Applicants must have earned a degree in law and hold a PhD degree by the time the join the MPI, preferably in a subject matter related to the project’s topic or, alternatively, in a topic falling within the scope of European Procedural Law in civil and commercial matters.

The successful candidate shall posses a strong interest and aptitude for legal research and have a high potential to develop excellence in academic research.

Her/his CV must portray a consolidated background in EU private international and procedural law in civil and commercial matters: prior publications in this field of the law shall be highly regarded in the selection process.

Full proficiency in English and French is compulsory (written and oral).

(I am grateful to Prof. Francesca Villata – University of Milan – for the following presentation of the latest issue of the RDIPP)

The third issue of 2017 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released.

It features two articles and three comments.

Manlio Frigo, Professor at the University of Milan, ‘Methods and Techniques of Dispute Settlement in the International Practice of the Restitution and Return of Cultural Property’ (in English)

This article focuses on the international practice in the field of cultural property disputes and examines the most effective and reliable dispute resolution methods in restitution and return of cultural property. Particularly in cases of disputes between Governmental authorities and foreign museums concerning the return or restitution of cultural property, one of the privileged solutions may consist in negotiating contractual agreements. The recent international and Italian practice have proved that these agreements may either prevent any judicial steps, or lead to a conclusion of pending administrative or judicial proceedings and have been successfully tested in recent years, more frequently within a wider frame of agreements of cultural cooperation. These agreements provide new forms of cooperation between the parties involved in such disputes and represent a mutually beneficial way out with a view to a future of collaboration.

Paolo Bertoli, Associate Professor at the University of Insubria, ‘La «Brexit» e il diritto internazionale privato e processuale’ (‘“Brexit” and Private International and Procedural Law’; in Italian)

This article discusses the implications of the forthcoming withdrawal of the United Kingdom from the European Union on the private international law rules applicable in the relationships between the EU Member States and the UK. Traditionally, the UK has been skeptic vis-à-vis the EU policy in the area of judicial cooperation in civil matters, as demonstrated, inter alia, by the opt-in regime provided for by the EU Treaties in respect of the UK’s participation to such policy and by the hostile reactions against the ECJ case law holding certain procedural norms eradicated in the UK tradition as conflicting with EU law. In the absence of any agreement between the EU and the UK, “Brexit” will imply that virtually all of the EU acquis in the field of private international law will cease to apply in the relationships between the EU Member States and the UK. Notwithstanding its historical skepticism vis-à-vis the EU policy in the field of private international law, the UK seems to be the party more interested in maintaining such rules to the greatest possible extent, in order not to jeopardize the attractiveness of its Courts and to protect its businesses.

In addition to the foregoing, the following comments are featured:

Zeno Crespi Reghizzi, Associate Professor at the University of Milan, ‘Succession and Property Rights in EU Regulation No 650/2012’ (in English)

In modern systems of private international law, “succession” and “property rights” form the subject matter of distinct conflict-of-laws provisions, with different connecting factors. Drawing the line between these two categories implies a delicate characterisation problem, which now has to be solved in a uniform manner in all the Member States, by interpreting the scope of Regulation No 650/2012. Compared to the solutions traditionally adopted by the national systems of private international law, Regulation No 650/ 2012 has increased the role of the lex successionis, which now governs not only the determination of the heirs and their shares in the estate, but also the transfer of the assets forming part of the succession estate. This solution gives rise to several coordination issues which are examined in the present paper.

Federica Falconi, Researcher at the University of Pavia, ‘Il trasferimento di competenza nell’interesse del minore alla luce dell’interpretazione della Corte di giustizia (‘Transfer of Jurisdiction in the Child’s Best Interests in Light of the Interpretation by the Court of Justice’; in Italian)

By way of exception, Article 15 of Regulation (EC) No 2201/2003 allows the court having jurisdiction to transfer the case, or a specific part thereof, to a court of another Member State, with which the child has a particular connection, provided that this latter is better placed to hear the case in the light of the best interests of the child. Based on the forum non conveniens doctrine, such a provision confers judges with significant discretion, with a view to ensure the best interests of the child in line with Article 24 of the EU Charter of Fundamental Rights. The aim of this paper is to illustrate the main features of this original mechanism, by looking firstly to its effects on the general grounds of jurisdiction established by the Regulation and then focusing on the strict conditions set out for its application. Particular attention is paid to the assessment of the child’s best interests, which appears most problematic as the relevant factors will in fact vary depending on the circumstances of the case. In this regard, some guidance has been recently provided by the Court of Justice, that has pointed out that the court having jurisdiction may take into account, among other factors, the rules of procedure in the other Member State, such as those applicable to the taking of evidence required for dealing with the case, while the court should not take into consideration the substantive law of that other Member State, which might be applicable if the case were transferred to it. The Court of Justice has further clarified that the court must be satisfied, having regard to the specific circumstances of the case, that the envisaged transfer of the case is not liable to be detrimental to the situation of the child concerned.

Sondra Faccio, Doctor of Law, ‘Trattati internazionali in materia di investimenti e condizione di reciprocità’ (‘International Investment Treaties and the Reciprocity Requirement’; in Italian)

This paper discusses the interaction between international investment agreements and the condition of reciprocity set forth by Article 16 of the Preliminary provisions to the Italian civil code. It aims to assess whether investment agreements in force for the Italian State prevail over the application of the condition of reciprocity, in relation to the governance of the investment established in Italy by a foreign investor coming from a country outside the European Union. The analysis highlights that the fair and equitable treatment, the most favored nation treatment and the national treatment standards, included in most of the Italian investment agreements, protect foreign investors against unreasonable or discriminatory measures which could affect the management of their investments and therefore their application should prevail over the application of the condition of reciprocity in relation to the governance of the investment. This interpretation reflects the object and purpose of investment agreements, which is to promote and protect foreign direct investments and to develop international economic relations between States.

Indexes and archives of RDIPP since its establishment (1965) are available on the website of the Rivista di diritto internazionale privato e processuale.

In [2017] EWHC 2928 (Comm) Dana Gas v Deutsche Bank et al., Leggatt J treats his readers to a concise insight into islamic finance (particularly in para 10) which he needs to inform readers of the essence of the case. The operation essentially involves raising investment (with a view to restructuring), organised by the main agreement (of the ‘Mudarabah’ type), subject to UAE law, and supported by a purchase undertaking of the same date, subject to English law. The set-up therefore evidently is not one of dépeçage per se (this would require one and the same agreement being subject to different laws) however it comes close.

Inevitably following unfavourable market conditions, an anti-suit injunction was sought and obtained in the UAE, followed however by English proceedings which required the aint-suit to be lifted – something which Dana Gas did not succeed in as a result of shareholder opposition. The English proceedings were effectively saved from collapse by the involvement of a third party, BlackRock, who as a non-party to the UAE sharia proceedings, were not bound by the anti-suit injunction. The somewhat complicated result is that the English proceedings really can only limp along.

Dana Gas seek confirmation that the transaction is unlawful and all the relevant contractual obligations are unenforceable as a matter of UAE law. Leggatt J with neither emotion nor hesitation refers essentially to Rome I’s universal application: the Mudarabah agreement is subject to UAE law and he is happy to assume it is invalid under UAE law – hence not enforceable by an English court. See in this respect Article 10(1) Rome I.

That however leaves the viability of the purchase undertaking. (at 46) The fact that the contract or its performance would be regarded as invalid or unlawful under the law of some other country than England (for example, a country where one of the parties is domiciled or carries on business) is generally speaking irrelevant (reference is made to Kleinwort, Sons & Co v Ungarische Baumwolle Industrie AG [1939] 2 KB 678.

At 48, Dana Gas sets out its case for unenforceability of the purchase agreement under English law. This includes reference to ordre public but also inevitably an attempt to ‘contaminate’ the purchase agreement with the Mudarabah agreement. Leggatt J justifiably turns this around: at 54: it is apparent from the purchase agreement’s terms that the risks against which the Purchase Undertaking is intended to protect the Certificateholders include the risk that the mudarabah and the transaction documents governed by UAE law will turn out to be invalid. That is why they needed to be separated. (In that respect merging the two agreements into one and applying dépeçage might give even stronger force to this argument: however I do not know whether under UAE law such constriction would be acceptable).

Further arguments swept aside, the Court turns to ordre public: Dana Gas nb employs both ordre public and, earlier Article 9(3) Rome I: overriding mandatory law: a rare treat indeed. Relevant English precedent is Ralli Brothers: Ralli Brothers v Cia Naviera Sota y Aznar [1920] 1 KB 614: an English court will not enforce an obligation which requires a party to do something which is unlawful by the law of the country in which the act has to be done. However Dana Gas later abandoned that claim for (at 80) those rules of law are only applicable if and in so far as the obligations in question have to be performed in the UAE – quod non. A switch was then made to ordre public, now with Foster v Driscoll [1929] 1 KB 470 as leading precedent. However, here too, it is only if a contract has as its object and intention the performance in a friendly foreign country of an act which is illegal under the law of that country that the contract will be considered (at 82 in fine) contrary to English public policy.

Conclusion:  the Purchase Undertaking is valid and enforceable.

Without claiming anything near proper competence in Islamic finance law, it would seem that Dana Gas does not introduce new principles. However in diligently applying conflicts analysis, Leggatt J in my view does practice a great service: he re-emphasises the need for parties clearly to identify locus implementi: the place of performance of an obligation.

Geert.

(Handbook) of Private International Law, 2nd ed. 2016: essentially, almost every section of Chapters 2 and 3.

Alongside the intensifying global efforts (the Judgments Project, HCCH) devoted to inter-country recognition and enforcement of judgments in civil and commercial matters, a new stage has been witnessed of China’s positive treatment of foreign judgments ie China starts to reciprocate, following foreign courts’ initiative of recognizing and enforcing Chinese judgments. Dr. Wenliang Zhang, from the Law School of Renmin U, reflects on this new encouraging development and has just published a timely article in the latest issue of Chinese Journal of International Law (OUP) titled “Sino–Foreign Recognition and Enforcement of Judgments: A Promising “Follow-Suit” Model?”.

“Abstract: Due to the upsurge in cross-border transaction, the movement of judgments between jurisdictions has become a hot topic. Unfortunately, China’s legislation and practice in this area has long lagged behind that of other countries, though China is not the only party to blame for the lack of a favourable Sino–foreign recognition mechanism. Encouragingly, in recent years some foreign courts have taken the initiative to recognize Chinese judgments, which Chinese courts have then responded to positively, forming a “follow-suit” circle in practice. A new opportunity has thus arrived for promoting Sino–foreign judgment recognition, and both Chinese and foreign courts should seize it, as it appears to be the most efficient and practical among possible solutions, including future domestic legislation or international treaties”.

The article is accessible at: Chinese Journal of International Law, Volume 16, Issue 3, 1 September 2017, Pages 515–545, https://doi.org/10.1093/chinesejil/jmx024 or it can be downloaded at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3077702.