Droit international général

More (not much more) information is here. Guangjian Tu provided a Chinese perspective on the Convention ten years ago. Two other recent publications are in this context: Zheng Sophia Tang and Alison Lu Xu on Choice of Court Agreements in Electronic Consumer Contracts in China, and King Fung Tsang, Chinese Bilateral Judgment Enforcement Treaties, 40 Loy. L.A. Int’l. & Comp. L. Rev. 1 (2017) (only on heinonline).

For your second conflicts reading of the day I thought I should serve something more substantial. In A (an Austrian company) v M (a company located in Luxembourg) the Austrian Supreme Court (Oberster Gerichtshof) had to decide on the determination of the locus delicti commissi in the event of infringement of copyright. M had effectively siphoned off to its website, some of A’s satellite broadcasts. Plenty of CJEU precedent is referred to (Hejduk; Austro Mechana; to name a few).

Thank you very much indeed Klaus Oblin for providing me with copy of the judgment – back in early June. Effectively, at issue was  the infringement of a duty to pay.  Klaus has excellent overview of the issues, of which the following are definitely worth highlighting. The Supreme Court justifiably of course emphasises autonomous interpretation of Article 7(2) Brussels I Recast. Yet autonomous interpretation does not provide all the answers. There are plenty of instances where locus delicti commissi is not easily identified, such as here.

The Oberster Gerichtshof seeks support in the Satellite Directive 93/83, but notes that the Directive includes no procedural clauses, let alone any regarding international jurisdiction (at 2.4.2. It refers to the German Bundesgerichtshof’s decision in Oscar). It then completes the analysis by reference to national law:

Section 42b(1) of the Act on Copyrights and Related Rights to classify breach of copyright as a tort (CJEU Kalfelis would have been a more correct reference) ; and

Section 907a(1) of the Civil Code) to identify the locus of the delicti commissi: because monetary debts in acordance with that section must be discharged at the seat of the creditor, the domestic courts at the Austrian seat of the collecting society have jurisdiction. In coming to its conclusion, the court (at 3.2) refers pro inspiratio to Austro Mechana, not just the CJEU’s judgment but also the ensuing national judgment.

Now, lest I am mistaken, in Austro Mechana the CJEU did not identify the locus delicti commissi: it simply qualified the harm arising from non-payment by Amazon of the remuneration provided for in Austrian law, as one in tort: at 52 of its judgment: it follows that, if the harmful event at issue in the main proceedings occurred or may occur in Austria, which is for the national court to ascertain, the courts of that Member state have jurisdiction to entertain Austro-Mechana’s claim. (emphasis added)

Given its heavy reliance on national law, I would suggest the judgment skates on thin ice. Reference to the CJEU seemingly was not contemplated but surely would have been warranted. Kainz is a case in point where locus delicti commissi was helpfully clarified by Luxembourg, Melzer one for locus damni.

Geert.

(Handbook of) European Private international Law, 2nd ed. 2016, Chapter 2, heading 2.2.11.2.

As I turn my attention to clearing the blog queue, a light posting to begin with. Kind of light, that is, because for the plaintiffs at issue of course the issue is not at all a laughing matter. I am assuming readers will be somewhat aware of the Duke and Duchess of Cambridge having taken action against ‘Closer’ (more precisely, the publishers, SAS Mondadori), for invasion of privacy after photos appeared of the couple relaxing poolside in a French private residence. The photos were taken with sniper lenses some distance away. Like everyone else, I have not seen the photos.

Following an earlier injunction the couple have now been awarded damages. I have not managed to locateactual text of either injunction (going back to 2012) or last week’s judgment on the substance of the matter. If any reader can assist, I would be most obliged.

I often use the case in my very introductory class of private international law for it illustrates a wide plethora of conflicts issues: why did the couple decide to sue in France rather than England where it easily would have standing; how do the injunction proceedings in particular illustrate enforcement issues; where do Gleichlauf, forum shopping etc. come in. I will not reveal all the ifs and buts here for it would spoil the fun for future classes. Conflicts buffs will see the attraction of the case for teaching purposes.

Geert.

 

On the occasion of the 80th birthday of Jürgen Samtleben, a Symposium will be held on 6 and 7 October 2017 at the Max-Planck-Institute in Hamburg, under the title: Focus Latin America — International Conflicts and Legal Order.

There will be presentations in German, Spanish, and Portuguese.

Registration is free, and due until 15 September 2017, through e-mail: veranstaltungen@mpipriv.de.

The program is available here.

The Center of Legal Studies on Efficiency of the Contemporary Law Systems (Cejesco – University of Reims) organizes a conference at the Faculty of Law on 13 September 2017 on the evolution of Law in China.

In this occasion, the book “International Sale of Goods – A Private International Law Comparative and Prospective Analysis of Sino-European Relations” (N. Nord and G. Cerqueira, Springer, 2017) will be presented to the academic community.

Topics and speakers:

The Evolution of the Law in China – Nicolas Nord, Associate Professor, University of Strasbourg

Book Comments – Cyril Nourissat, Professor, University Jean Moulin – Lyon 3.

The conference will be chaired by Gustavo Cerqueira, Associate professor, University of Reims.

For further information on the conference:  https://univ-droit.fr/actualites-de-la-recherche/manifestations/24173-l-evolution-du-droit-en-chine

For further information on the book: http://www.springer.com/us/book/9783319540351

    Le LL.M. Contentieux international des affaires approfondi entame sa deuxième année en se dotant d'un co-directeur, en la personne du Professeur Arnaud de Nanteuil.     Spécialiste de droit international public, et notamment de droit d...

Can we teach private international law through film? Yes we can, and not only through Green Card. Three sources in Spanish provide ample material, including some for non-Spanish speakers.

The first, most comprehensive and academic one, comes from the Proyecto DeCine, a network of Spanish law professors interested in teaching law through film. The result is a fabulous  book full with detailed didactic materials on different films, which is also available for free online. Several of the films discussed are in English or exist in translation.

The second source, a series of blog posts by Angel Espiniella Menéndez, professor for private international law at the University Oviedo, provides valuable recommendations, organized by subject matter, in monthly instalments. So far, he has provided five: person and capacity,   protection of minors, parentage, marriage, and breakdown of marriage. Hopefully, more are coming

Finally,  MillenniumDiPR.com provides a rather eccentric list of ten private international law related movies with some unexpected themes: Titanic for international family law, The Martian for conflicts with Martian law, etc. Only for the daring.

But all of this is in Spanish. Who has recommendations in other languages? Or who writes the guide in English?

 

 

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has just issued a Note on the concept of “purposeful and substantial connection” in Article 5(1)(g) and 5(1)(n)(ii) of the February 2017 draft Convention of the Judgments Project for the attention of the Special Commission meeting of November 2017 on the Recognition and Enforcement of Foreign Judgments. The February 2017 draft Convention is available here.

This Note was prepared by Professor Ronald A. Brand and Dr Cristina M. Mariottini. Professor Geneviève Saumier provided comments.

Article 5(1)(g) and 5(1)(n)(ii) reads as follows:

Article 5(1)

“A judgment is eligible for recognition and enforcement if one of the following requirements is met” – […]

(g)

“[T]he judgment ruled on a contractual obligation and it was given in the State in which performance of that obligation took place, or should have taken place, in accordance with

(i) the parties’ agreement, or

(ii) the law applicable to the contract, in the absence of an agreed place of performance

unless the defendant’s activities in relation to the transaction clearly did not constitute a purposeful and substantial connection to that State;” (our emphasis)

(n)(ii)

“[T]he judgment concerns the validity, construction, effects, administration or variation of a trust created voluntarily and evidenced in writing, and – […]

(ii) the law of the State of origin is expressly or impliedly designated in the trust instrument as the law governing the aspect of the trust that is the subject of the litigation that gave rise to the judgment[, unless the defendant’s activities in relation to the trust clearly did not constitute a purposeful and substantial connection to that State];” […] (our emphasis)

Other information relating to the meeting is available at https://www.hcch.net/en/projects/legislative-projects/judgments/special-commission.

Please note that the meeting above-mentioned is open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.

The good tradition of the biannual Petar Sarcevic conferences is being continued this year with the 5th conference titled Information and Data: The Road Ahead. It will take place in a beautiful Croatian coastal tourist and conference resort Opatija, on 6 and 7 October.

This two-day event will provide ample oportunities for the professionals and scholars to discuss current issues of protection of confidential information, business secrets and personal data in the context of technological advancement and resulting economic and social developments. The conference is divided into three sessions:
– Protection of confidential information v access/disclosure
– Managing data protection: A tall order for controllers and subjects
– Litigation in the midst of economic and technological changes.
The wast range of speakers includes members of the judiciary (EU and national), representatives of the executive branch, leading lawyers and prominent academics.

For additional information about the conference, programme, speakers, venue and special early-bird rates expirying on 10 September please consult the conference webpage.

Leuphana Law School is looking for a highly skilled and motivated Ph.D. candidate and fellow (wissenschaftliche/r Mitarbeiter/in) on a part-time basis (50%) as of 1 December 2017.

The successful candidate holds a first law degree (ideally the First State Exam (Germany) or LL.M. (UK)/J.D. (USA)/similar degree) and is interested in private international law, international economic law, and intellectual property law—all from a comparative and interdisciplinary perspective. A very good command of German and English is expected; good IT skills are required.

The fellow will be given the opportunity to conduct his/her own Ph.D. project (under the faculty’s regulations). The position is paid according to the salary scale E-13 TV-L, 50%. The initial contract period is three years, with an option to be extended. The research fellow will conduct research as part of the unit led by Professor Dr. Tim W. Dornis (Chair in Private Law, International Private and Economic Law, and Comparative Law) and will have an independent teaching obligation (2 hours/week).

If you are interested in this position, please send your application (cover letter, CV, and relevant documents) by 4 October 2017 to

Leuphana Universität Lüneburg

Personalservice, Corinna Schmidt

Kennwort: WiMi Rechtswissenschaften

Universitätsallee 1

21335 Lüneburg

bewerbung@leuphana.de

Leuphana University is an equal opportunity employer.

The job advert in full detail is accessible here

http://www.leuphana.de/news/jobs-und-karriere/forschung-lehre/ansicht-forschung-lehre/datum/2017/08/24/wissenschaftlichen-mitarbeiterin-zur-juristischen-promotion.html

Today (6 September 2017) Bolivia joined the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention). With the accession of Bolivia, the Apostille Convention now has 115 Contracting Parties. The Apostille Convention will enter into force for Bolivia on 7 May 2018.

Four out of the last five States that have joined the Apostille Convention since December 2015 have been from the Americas (Brazil, Chile, Guatemala and Bolivia). The Apostille Convention has already entered into force for Brazil and Chile and will enter into force for Guatemala on 18 September 2017.

There are 5 States that are yet to join the Apostille Convention from the Americas: Canada, Cuba, Guyana, Haiti and Jamaica.

For more information visit https://www.hcch.net/en/news-archive/details/?varevent=568. The full list of Contracting Parties is available here.

For the first time, a Chinese court has recognized and declared enforceable a commercial monetary judgment from the United States. Jie Huang from the University of New South Wales provides more information and commentary. Some further information and background from Don Clarke is here.

From August 3-5 this year, the Pontifical Catholic University of Rio de Janeiro hosted the 7th biennial conference of the Journal of Private International Law. Ably organized by Nadia de Araujo and Daniela Vargas from the host institution, together with Paul Beaumont from Aberdeen, the conference was a great success, as concerns both the quality and quantity of the presentations. Instead of a conference report, I want to provide some, undoubtedly subjective, impressions as concerns the emerging global community of private international law.

First, no less than 168 participants attended, from all over the world. The Journal conference has, by now, become something like a World Congress of Private International Law. This is no small achievement. The Journal of Private International Law started out in 2005 as a very doctrinal publication focusing primarily on common law systems and European private international law. Fittingly, the first two conferences took place in the UK. It was a very wise decision to move, after that, to cities in other countries—New York (2009), Milan (2011), Madrid (2013) and now, after a return to the UK (Cambridge) for the ten-year anniversary in 2015, Rio de Janeiro (2017). By now, it can be said that Journal and conference both really represent the world. And what is emerging is a global community that comes together at these and other events.

Second, this first Journal conference in Latin America was an excellent opportunity to showcase the tremendous developments of the discipline on this Continent. Latin America, the region that created the Código Bustamante, has long produced excellent scholars in private international law. However, for some time the discipline appeared, at least to the outside observer, marginalized, caught between a very doctrinal approach on the one side and a very philosophical one on the other, both often without connection to actual practice. In recent years, this has changed, for a number of reasons: the Hague Conference established a bureau, led by Ignacio Goicoechea; a young generation of scholars connects theory and practice, doctrine and interdisciplinarity; legislators are, at long last, replacing antiquated legislation. Many Latin American scholars and practitioners at the conference proved that interest and quality. But the best sign for the vitality of the field were the many excellent Brazilian students who followed the conference with enthusiasm and expertise.

Third, and finally, this emerging globalization captures all regions, but not to the same degree. The great importance of Latin America in Rio was no surprise. Nor was the great role that European private international law, a testament not only both to the European background of the journal and the more generous travel budgets in European universities, but also to the legislative and scholarly developments in Europe. Asia was somewhat less well represented, as far as I could see, despite exciting developments there (including current work on Asian Principles of Private International Law), but several presentations dealt with Asian development. The most palpable absence concerned the United States. There were only two participants from the US, fewer than there were Nigerians. In a not so distant past, US private international law was the avant-garde of the discipline worldwide. When the Second Restatement was being discussed, the whole world was watching what the conflicts revolution would yield. Now, a third Restatement is underway. But I heard no word about that from participants in Rio, and the Restatement’s reporters did not use the occasion to advertise their project. The United States is no longer leading the globalization of the field. Will it at least follow?

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

D. Coester-Waltjen: Fighting Child Marriages – even in Private International Law

The article describes the newly enacted German law against “child marriages” and analyses the critical points. This law raises the minimum marriage age to 18 years without any option for younger persons to conclude a valid marriage. The former possibility of a dispensation by the family court has been abolished. Even more important and critical at the same time are the new provisions with regard to cases where foreign law governs the ability to marry. Despite the principal application of the spouses’ national law, German law will always govern the question of the minimum marital age. This applies to marriages formed in Germany as well as to those already validly concluded elsewhere. Thus, irrespective of the applicable national law of the spouses a marriage cannot be concluded in Germany by persons who are younger than 18. If such a marriage has been formed nevertheless, it will be null and void from the beginning if one spouse was younger than 16 at the time of the marriage. If the spouses had attained the age of 16, but at least one of them was younger than 18, the marriage will be voidable (and must be declared void) in Germany. This is true also for heterosexual marriages of minors concluded elsewhere and valid under the otherwise applicable law. German law invalidates these marriages either directly (one spouse under 16) or through annulment proceedings (one spouse over 16 but under 18). The law provides only few exceptions and applies to all persons under 18 at the time the new law entered into force.

C. F. Nordmeier: The German Law on the Modification of Rules in the Area of Private International Law and Private International Procedural Law – New Provisions for Cross-Border Civil Proceedings

By the recently enacted law on the modification of rules in the area of Private International Law and Private International Procedural Law the German legislator created several alterations for civil procedures involving crossborder elements. The present contribution critically analyses the new rules. As far as service is concerned, the prohibition to demand the designation of an authorized recipient within the scope of application of the EU Service Regulation, the competence of judicial officers to handle incoming requests for service and new one-month periods for certain procedural measures are discussed. Also, the annulment of a European order for payment in the event that the applicant fails to indicate the competent court for the adversary proceedings is examined – as well as the possibility for the States of the Federal Republic of Germany to concentrate proceedings under the European Small Claims Regulation before certain courts. Finally, the consequences of the continued non-admission of judicial assistance for pre-trial discoveries in Germany are subject to discussion.

F. Maultzsch: International Jurisdiction and Jointly Committed Investment Torts (Art. 5 No. 3 Lugano Convention 2007/Brussels I Regulation, Art. 7 No. 2 Brussels Ibis Regulation)

The German Federal Supreme Court (BGH) has denied an attribution of acts among joint participants of cross-border investment torts for the purposes of Art. 5 No. 3 of the Lugano Convention 2007/Brussels I Regulation, Art. 7 No. 2 of the Brussels Ibis Regulation. The judgment is based on a broad reading of the Melzer-decision of the CJEU. This article gives a critical assessment of the BGH’s judgment. First of all, the Melzer-decision with its restrictive position as to attribution of tortious acts seems to be problematic in itself. Furthermore, the BGH does not consider that the case law of the CJEU has been developed for situations different from those to be judged by the BGH. The issue of attribution of tortious acts under Art. 5 No. 3 of the Lugano Convention 2007/Brussels I Regulation, Art. 7 No. 2 of the Brussels Ibis Regulation should be approached in a nuanced way that accounts for the nature of the tort in question. This may also include a resort to the lex causae for specific protective laws (Schutzgesetze). In the case at hand where a foreign financial service provider had relied purposefully on acts of procurement carried out by a third party in Germany, jurisdiction of the German courts should have been approved under Art. 5 No. 3 of the Lugano Convention 2007/Brussels I Regulation, Art. 7 No. 2 of the Brussels Ibis Regulation.

W.-H. Roth: Private international law and consumer contracts: data protection, injunctive relief against unfair terms, and unfairness of choice-of-law provisions

In its Amazon judgment, C-191/15, the European Court of Justice deals with three conflict-of-laws issues. Firstly, it determines the international applicability of data protection laws of the Member States in the light of Directive 95/46/EEC: A Member State may apply its law to business activities of an out-of-state undertaking directed at its territory if it can be shown that the undertaking carries out its data processing in the context of the activities of an establishment situated in that Member State. Secondly, it holds that an action for an injunction directed against the use of unfair terms in general terms and conditions, pursued by a consumer protection association, has to be classified as non-contractual. The law applicable to the action and the remedy has to be determined on the basis of Article 6 (1) of the Rome II Regulation, being related to an act of unfair competition, whereas the (incidental) question of unfairness of a specific term in general terms and conditions shall be classified as a contractual issue and has to be judged on the basis of the law applicable to contracts according to the Rome I Regulation. Thirdly, the Court holds that the material scope of Directive 93/13/EEC extends to choice-of-law clauses in pre-formulated consumer contracts. Such a choice-of-law clause may be considered as unfair if it leads the consumer into error as far as the laws applicable to the contract is concerned.

C. Thomale: Refusing international recognition and enforcement of civil damages adjunct to foreign criminal proceedings due to irreconcilability with a domestic civil judgment

The German Supreme Court refused to enforce a civil claim resulting from criminal proceedings seated in Italy for reasons of irreconcilability with a German judgment given between the same parties. The case illustrates the considerable legal uncertainty that persists with the application of this ground for refusal of recognition and enforcement. The paper argues for a narrow interpretation in order to strengthen free movement of judgments within the European judicial area.

U. P. Gruber: Recognition of provisional measures under Brussels lla

In Purrucker, the ECJ established criteria for the recognition of provisional measures in matters of parental responsibility. Pursuant to the ECJ, if the court bases its jurisdiction on Art. 8 to 14 of the Brussels IIa Reg., the judgement containing provisional measures will be recognized and enforced in other Member States by way of Art. 21 et seqq. of the Regulation. If, however, the judgement does not contain an unambiguous statement of the grounds in support of the substantive jurisdiction of that court pursuant to Art. 8 to 14 Brussels IIa, the judgement does not qualify for recognition and enforcement under Art. 21 et seqq. Nevertheless, recognition and enforcement of the judgement are not per se excluded in this case. Rather, it has to be examined whether the judgement meets the prerequisites of Art. 20 Brussels IIa. If this is the case, the judgement can be recognized by use of other international instruments or national legislation. In a new decision, the Bundesgerichtshof applied this two-step-approach established by the ECJ to a Polish judgement, consequently denying any possibility to recognize the Polish judgement in Germany.

W. Hau: Enforcement of penalty orders protecting parental rights of access within the European Union

A dispute over the enforcement in Finland of a Belgian penalty order protecting parental rights of access has uncovered a loophole in the European law of international civil procedure: The Brussels I resp. Brussels Ibis Regulation deals with the preconditions of the enforcement of foreign penalty orders (especially as regards the final determination of the payable amount), but only in the context of civil and commercial matters, excluding family matters. The Brussels IIbis Regulation, on the other hand, covers disputes over parental rights of access but remains silent about penalty orders. The CJEU proposes an appropriate solution, bridging the gap in the regulations.

R. Geimer: Ordre public attenué de la reconnaissance in adoption law

The relevance of timing by reason of recognizing child adoptions of foreign states despite violation of public order in the original proceedings.

C. A. Kern: The enforceability of foreign enforcement orders arising from family relationships

In Germany, various regimes govern the enforceability of foreign enforcement orders arising from family relationships. The traditional way is to have the foreign enforcement order declared enforceable on the basis of adversarial proceedings. Various supranational texts and international treaties provide for a more advanced solution under which the foreign enforcement order is declared enforceable ex parte. The most progressive solution is automatic enforceability. Moreover, depending on the applicable regime, the remedies and the requirements governing their admissibility differ. Two recent decisions of the German Federal Supreme Court (Bundesgerichtshof) illustrate how complex the situation is. It is advisable to unify the applicable procedural rules at least insofar as the complexity is the consequence of diverging national rules.

R. Schaub: Traffic Accidents with an International Element: The Complex Interaction of European and National Rules in two Cases from the Austrian Supreme Court

Traffic accidents with an international element are common occurrences but still raise a lot of questions as to the applicable law. In Europe, different sets of rules have been created to facilitate the compensation of victims in such cases. The complex interaction of EU and national rules on substantive law as well as private international law can be seen in two cases from the Austrian Supreme Court.

M. Andrae: Again on the term „obligations arising out of matrimonial property regimes“

The article deals with the characterization of claims between spouses living apart, which concern the joint property marital home and its financing through a credit. It involves: (1) compensation between spouses, in case they are jointly and severally liable for their obligations from the contract; (2) reimbursement of expenses for the matrimonial home, in case of the sole use of the matrimonial home by one of the spouses and (3) cases in which one spouse may demand from the other compensation for use of the matrimonial home. The main problem is whether this claim can be subsumed as “obligations arising out of matrimonial property regimes” with the consequence that it would be excluded from the scope of the Rome I and Rome II Regulation. For this the article presents a number of arguments. Finally, a solution will be discussed, insofar as the Brussels Ibis Regulation for the jurisdiction and the Rome I and Rome II Regulations referring to conflict-of-laws rules are not applicable.

L. M. Kahl: Differences in dealing with foreign law in German and Italian jurisprudence

The article compares two cases in which the German Federal Court of Justice (BGH) and the Italian Supreme Court had to decide on the requirements for dealing with foreign law. The BGH only reviews whether the court of lower instance correctly determined the foreign law under Section 293 German Code of Civil Procedure (ZPO), whereas the Corte di Cassazione reviews if the court correctly applied foreign law under Art. 15 Italian law on Private International Law (legge numero 218/1995). In practice, the criteria set out by the BGH provide for a more in-depth review of judgments on foreign law than the criteria of the Corte di Cassazione. The BGH’s approach on review of judgments on foreign law promotes international harmony of judgments.

Mr Michael Douglas and Prof Vivienne Bath, of Sydney Law School, have published an article on recent amendments to the Uniform Civil Procedure Rules regarding service outside the Australian state of New South Wales. Under the Rules, effective service of the court’s originating process on a defendant outside New South Wales will establish the court’s personal jurisdiction over the defendant. The article clearly sets out and analyses changes to the bases on which a defendant can be served outside Australia under the Rules. Numerous bases have been significantly expanded. It also considers the effect of a new rule allowing for a defendant to be served outside Australia, with the court’s leave, where the claim does not fall within one of those bases. Among the particularly helpful aspects of the article are several comparative tables displaying the original rule, the revision and the authors’ projected impact of the revision.

The authors’ abstract is as follows:

‘In December 2016, the Uniform Civil Procedure Rules 2005 (NSW) were amended in respect of service outside of the jurisdiction and outside Australia. Previously, service outside Australia was authorised if the claim had a specified connection to the forum. The claim was required to fall within one or more of the heads of Schedule 6. If the defendant failed to appear, the plaintiff would require leave to proceed. That position remains the default under the amended Rules, although the heads of Schedule 6 have been revised. However, there has also been a significant change. Under the new Rules, if the claim does not fall within Schedule 6, service may be authorised with the prior leave of the court. This article outlines and comments on the changes to the Rules, identifying areas which may require judicial clarification.’

The paper is available on SSRN at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3025146

Its suggested citation is: Michael Douglas and Vivienne Bath, ‘A New Approach to Service Outside the Jurisdiction and Outside Australia under the Uniform Civil Procedure Rules’ (2017) 44(2) Australian Bar Review 160.

A new book on the Brussels I-bis Regulation, opening a brand new collection of Treaties on European Private International Law, has just seen the light. Entitled “Litigación internacional en la Unión Europea I: el Reglamento Bruselas I-bis” (“International litigation in the European Union I: the Brussels I-bis Regulation”), it is authored by Alfonso-Luis Calvo Caravaca, Javier Carrascosa González and Celia Caamiña Domínguez.

The book is divided into two major parts. The first is devoted to the European system of private international law. It examines the impact of European freedoms of movement on the European rules of private international law and the legal techniques used by the European legislator and the European court of Justice to implement these freedoms: the principle of mutual recognition (Anerkennungsprinzip), the doctrine of the “Law of origin” as a general rule of Private International Law and the creation of all-European new conflict rules. The process of europeanisation of Private International Law and its direct relationship with the European judicial area is also set out. To conclude this first part, the legal scenario of European private international law is analyzed, with a particular focus on the “Brussels Regulations” and the “Rome Regulations”, as the fundamental pillars of EU private international law.

The second part is devoted to an in-depth study of the Brussels I-bis Regulation. It covers the general aspects of this important bastion of European private international law, as well as the rules of international jurisdiction those regarding extraterritorial validity of judgments and other decisions.

ISBN: 978-84-9177-215-6. Publishing house: Aranzadi. Date of edition: 28/08/2017. Number of pages: 850.

For more information, click here

Alfonso-Luis Calvo Caravaca is Professor of Private International Law at the University Carlos III de Madrid, Spain.

Javier Carrascosa González is Professor of Private International Law at the University of Murcia, Spain.

Celia Caamiña Domínguez is Lecturer of Private International Law at the University Carlos III de Madrid, Spain

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has just issued a discussion paper on the operation of Article 15 of the 1980 Hague Child Abduction Convention for the attention of the Special Commission meeting of October 2017 on the practical operation of the 1980 Child Abduction Convention and of the 1996 Child Protection Convention.

Article 15 of the Child Abduction Convention reads as follows: “The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.” (our emphasis)

The paper proposes the following summary of possible measures to improve the application of Article 15:

• “Encouraging the availability of Article 15 decisions or determinations in all Contracting States;
• Encouraging clarification and improvement of internal Article 15 implementation with a view to making the procedures expeditious and effective;
• Enhancing the Country Profile under the 1980 Convention in relation to Article 15;
• Drafting of an Information Document on Article 15, which would also encourage:
  1. discretion in the use of the Article 15 mechanism and the use of alternatives;
  2. the systematic use of Article 8(3)(f) and Article 14, and the use of direct judicial communications and the IHNJ, where appropriate;

• Drafting of an Article 15 Model Request Form;
• Improving Central Authority practice in:
  1. facilitating the obtaining of decisions or determinations from competent authorities;
  2. encouraging more systematic inclusion of Article 8(3)(f) certificates / affidavits in applications, where deemed necessary;

• Encouraging improved quality of the decisions or determinations (under Art. 15) and certificates or affidavits (under Art. 8(3)(f)) (e.g., through an Information Document and / or Model Request Form);
• Encouraging greater international consistency in a number of identified areas, if feasible (e.g., certain trends / approaches could be described in an Information Document drafted with the assistance of a Working Group; use of a questionnaire to Contracting States to collect additional information).”

Preliminary and Information Documents of the meeting are available at https://www.hcch.net/en/publications-and-studies/details4/?pid=6545&dtid=57. A draft agenda, as well as other Preliminary Documents including statistical information, will be uploaded in due course.

Please note that the meeting above-mentioned is open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.

This Report is prepared by Prof. Guangjian Tu/Zeyu Huang (a PhD Candidate in University of Macau)

On 26 August 2017, one of the Special Commissions of the Chinese Society of Private International Law, the Special Commission on Inter-Regional Conflict of Laws (chaired by Professor Guangjian Tu) organized its third annual symposium titled “Inter-Regional Taking of Evidence Within China: Problems, Reflections and Improvements” under the support of the Chinese Society of Private International Law and the Institute for Advanced Legal Studies of Faculty of Law of University of Macau. Legal scholars and practitioners from the Mainland China, Hong Kong and Macau participated in this event on the beautiful newly-built campus of University of Macau, located in the Hengqin Island (Zhuhai City, PRC).

With the Mainland China –Macau Taking of Evidence Arrangement being made in 2001 and the Mainland China-Hong Kong Taking of Evidence Arrangement being promulgated in March 2017, this symposium was devoted to discussing and examining the potential problems, practical implementation and possible improvements of the two Arrangements. Given that at a global level the Hague Evidence Convention is regularly revisited every five years, useful information arising out of the Convention could be very good reference for Chinese Arrangements; the enhanced version of the Hague Evidence Convention, the EU Evidence Regulation could provide valuable experience to Chinese practice. While emphasis was put on the special features of the two Arrangements, international and foreign ideas and approaches were paid enough attention. It is suggested that within the Chinese Context, for the cross-border taking of evidence, shorter route between court to court could be explored, direct taking of evidence on voluntary witnesses is potentially possible and modern technologies could be made more use of.

by Zoltán Fabók, Fellow of INSOL International, Counsel at DLA Piper (Hungary) and PhD Candidate at Nottingham Trent University

Insolvency-related (annex) actions and judgements fall within the scope of the Recast European Insolvency Regulation (‘Recast EIR’). That instrument both determines international jurisdiction regarding annex actions and sets up a simplified recognition system for annex judgements. However, tension between the Recast EIR’s provisions on jurisdiction and recognition arises when a court of a state different from the state of insolvency erroneously assumes jurisdiction for annex actions. Such ‘quasi-annex’ judgements rendered by foreign courts erroneously assuming jurisdiction threaten the integrity of the insolvency proceedings. Besides, the quasi-annex judgements may violate the effectiveness and efficiency of the insolvency proceedings as well as the principle of legal certainty.

In my paper, it is argued that even the current legal framework may offer some ways to avoid the recognition of such quasi-annex judgements. First, the scope of the public policy exception may be extended in order to protect the integrity of the insolvency proceedings from the quasi-annex judgements rendered by foreign courts erroneously assuming jurisdiction. Second, it may be argued that quasi-annex judgements do not equal real annex judgements and therefore do not enjoy the automatic recognition system provided by the Recast EIR. At the same time, their close connection to the insolvency proceedings – disregarded by the forum erroneously assuming jurisdiction – may exclude quasi-annex judgements from the scope of the Brussels Ibis Regulation, as well. As a consequence, those quasi-annex judgements may fall within the gap between the two regulations, meaning that no European instrument instructs the courts of the member state addressed to recognise quasi-annex judgements.

My research article has been accepted for publication by International Insolvency Review. The paper can be accessed in the Early View section at http://onlinelibrary.wiley.com/doi/10.1002/iir.1284/full.

[The author wishes to thank Justice Hossam Hesham Sadek, Vice President of the Civil and Commercial Chamber of the Court of Cassation, and reporting judge in the case at hand, for granting access to the Supreme Court’s ruling].

1.  Introduction

In a recent ruling (22/05/2017), the Egyptian Court of Cassation tackled with the issue of service of process abroad. The facts of the case were the following: The claimant (and appellant) was an Egyptian Medical Equipment company, situated in Cairo. The respondents and appellees were a Chinese company, with its seat in Nanshan district, Shenzen, the Egyptian General Organization for Import and Export Control, and an Egyptian company, with its seat in Heliopolis, Cairo.

2. Facts and instance ruling

The Appellant filed a lawsuit against the Chinese Company and the Second Appellee at Cairo Court of Appeal, requesting a judgment obliging the First Appellee to pay the amount of ten million Egyptian pounds as monetary and moral compensation resulting from the contract’s termination. The Appellant asserted that it had been assigned as the sole agent of the First Appellee in Egypt, for selling ultrasonic wave devices, and that it was unexpectedly notified by the First Appellee that the contract was terminated.

The first instance court ordered that the lawsuit be dismissed for lack of proper service to the Chinese company. The Appellant claimed that service had been effected through the Public Prosecution Office, following all necessary procedures through diplomatic channels in China, pursuant to article 13 (9) of the Egyptian Civil and Commercial Code of Procedure (CCCP), and by notification of the claim to the first Appellee’s legal representative (Commercial Agent) pursuant to article 13 (5) CCCP.

Article 13 (9) CCCP states that, if no international treaty or a specific provision of law is applicable, service shall be made by delivering the documents to the public prosecutor, who then forwards them to the Minister of Foreign Affairs, to be delivered through diplomatic channels to the country of destination. Art. 13 (5) CCCP stipulates that, if service is addressed to a foreign company that has a branch or agent in Egypt, domestic service shall be effected (i.e. to the branch or agent located in Egypt).

3. The Supreme Court ruling

The Court of Cassation referred initially to Art. 13 (5) & (9) CCCP. It then mentioned Articles 3 & 14 of the Judicial Cooperation Treaty on Civil, Commercial and Criminal Matters between the Arab Republic of Egypt and The People’s Republic of China, signed on 21/4/1994, which stipulates that: “For the purposes of requesting and providing judicial assistance, parties shall communicate through their central authorities unless otherwise provided for in this Treaty. Central authorities of both parties are represented by the Ministries of Justice. Both parties shall serve judicial documents in civil and commercial matters pursuant to Hague Convention on the service Abroad of Judicial and Extrajudicial Documents in civil or Commercial Matters concluded on 15/11/1965’’.

Based on the above, the Court of Cassation decided as follows: The Hague Convention exclusively stipulates methods, means and conditions for serving judicial documents unless agreed between the Parties on other methods pursuant to Article 11 of the same Convention, and obliges the judge to stay proceedings, save when a document was served by a method prescribed by the internal law of the State addressed, or when the document was actually served to the defendant in its residence under one of the methods prescribed in the Convention in sufficient time to enable him to arrange for his defence.

Since the legislator has permitted in Article 13(5) CCCP that foreign companies may be served by delivering a copy to its branch or agent in Egypt, their existence is considered a question of fact under the exclusive competence of the court. Accordingly, the Court of Cassation confirmed the instance decision, which ruled that service made to the first Appellee through the third appellee (Trade And Importing Company in Heliopolis), ostensibly being its commercial agent and representative, was improper, since the representative of the latter denied its relation with the first Appellee.

Finally, delivering the document to the Public Prosecution in order to take necessary actions towards service by diplomatic channels is not sufficient, because notice was not delivered / served to the first Appellee.

4. Conclusion

The judgment offers a valuable insight into the practice of Egyptian courts in regards to notification of documents abroad. It is noteworthy that the Court of Cassation examined carefully all legal regimes related to the subject matter: It referred to domestic law (CCCP), the Egyptian – Chinese bilateral treaty, and the multilateral convention, to which the bilateral convention refers. The question whether service of process abroad was necessary or not was decided on a substantive level: Given that the appellant failed to demonstrate that the third appellee was the representative of the Chinese company, the court rightfully considered that service solely to the local Transmission Authority through the Prosecutor’s Office does not suffice. Hence, whenever the Hague Service Convention applies, the Court of Cassation dismisses fictitious service (remise au parquet).