Droit international général

On 12 October 2023, the Court of Justice of the EU, following an Opinion of the Advocate General Sánchez-Bordona, handed down its long-awaited judgment in OP (C-21/22). The case concerns the application of the Succession Regulation to third States’ nationals, where a bilateral agreement is in place between the Member State whose authorities are seised and the third State in question.

The preliminary question originates from Poland, and represents the second attempt to seise the Court of Justice of the issue. In the OKR case, C-387/20, a similar question was raised by a notary public but the Court held that the request for a preliminary ruling was inadmissible.

Facts of the Case and Proceedings in Poland

OP is a Ukrainian national who resides in Poland and co-owns an immovable property there. OP wanted to draw up a notarial will in Poland choosing Ukrainian law as applicable to her future succession. The notary refused to do so on the ground that Article 37 of the 1993 Poland-Ukraine Bilateral Agreement does not provide for such possibility. In fact this Article states that:

Legal relationships in matters relating to the succession of movable property shall be governed by the law of the Contracting Party of which the deceased was a national at the time of his or her death.

Legal relationships in matters relating to the succession of immovable property shall be governed by the law of the Contracting Party in the territory of which that property is situated. (…)

OP brought an action before a court in Poland against the notary’s refusal. She argued that the 1993 Poland-Ukrainian Bilateral Agreement does not govern the choice of applicable law, and that, accordingly, a choice is admissible under Article 22 of the Succession Regulation. Article 75(1) of the Succession Regulation, which provides that the regulation does “not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation” does not prevent such a choice, she added, given that the 1993 Poland-Ukraine Bilateral Agreement is silent as to party autonomy in succession matters.

Put shortly, the view submitted by OP was that Article 21(1) and (2) of the Succession Regulation correspond to Article 37 of the Agreement, whereas Article 22 of the Succession Regulation, which allows for the choice of national law of the deceased, does not have any counterpart in the Agreement. As a result, Article 22 of the Succession Regulation is applicable (and enables the person concerned to make a choice of law) no matter whether the Bilateral Agreement takes precedence over the Succession Regulation. The domestic court, having doubts on the above view, submitted to questions to the Court of Justice of the EU.

Preliminary Questions and Answers of the Court

The first preliminary question was a straightforward one to answer. The domestic court wanted to know whether Article 22 of the Succession Regulation means that a third-country national residing in a Member State of the EU may choose the law of that third State as the law governing future succession case.

The Court of Justice answered in positive stating that a third-country national residing in a Member State of the EU may choose the law of that third State as the law governing his or her succession as a whole (OP, para. 24)

The answer to the second question seems far more interesting and important for the understanding and applying of the Succession Regulation.

The referring court asked whether Article 75(1) of the Succession Regulation, read in conjunction with Article 22 means that, where a Member State of the EU has concluded, before the adoption of the regulation, a bilateral agreement with a third State which designates the law applicable to succession and does not expressly provide for the possibility of choosing another law, a national of that third State, residing in the Member State in question, may choose the law of that third State to govern his or her succession as a whole.

In other words, the Polish court wanted to know whether OP may choose Ukrainian law as applicable to her succession in accordance with Article 22 of the Succession Regulation, while drafting her will in front of a notary public in Poland, even though 1993 Poland-Ukrainian Bilateral Agreement does contain conflict of law rules relating to succession and does not provide for any party autonomy to that respect.

The Court of Justice answered that Article 75(1) of the Succession Regulation read in conjunction with Article 22, in circumstances such as those of the case examined, does not exclude that a national of a third State, residing in the EU Member State, may be barred from choosing the law of that third State to govern his or her succession as a whole. The above is true provided that the Member State of the EU in question has concluded (before the adoption of that regulation) a bilateral agreement with that third State which designates the law applicable to succession and does not expressly provide for the possibility of choosing another law (see: OP, para. 38). Hence, theoretically, the Succession Regulation does not preclude a situation in which a Ukrainian citizen might not be able to choose Ukrainian law as applicable while drafting a will in front of a notary public in Poland.

Comments on the Judgment

In order to know whether the Succession Regulation applies one must examine its scopes, namely: (1) material one – it  covers succession to the estates of deceased persons (Article 1(1)); (2) territorial one –  it covers EU Member States, with the exception of Ireland and Denmark (Recitals 40, 41, the UK also never applied it) and (3) temporal one – it applies as of 17 August 2015 to the succession cases of persons deceased starting from that day (Art. 83(1) and 84 Succession Regulation). The Succession Regulation applies to succession cases covered by its scopes irrespective nationality or habitual residence of the deceased and irrespective where the assets of the estate are located. Hence, as rightly underlined by the Court of Justice, any person may choose applicable law in accordance with Article 22 of the Succession Regulation (not only an EU citizen). This follows also from the wording of Article 21 which provides for universal application of the conflict of law rules of the Succession Regulation.

Hence, the clou here lies not in the Chapter III “Applicable Law” of the Succession Regulation, but the 1993 Poland-Ukraine Bilateral Agreement. The Court of Justice therefore explained the meaning of Article 75(1) of the Succession Regulation. It underlined that where a Member State is a party to a bilateral agreement concluded with a third State (before the entry into force of the Succession Regulation), which contains provisions laying down rules applicable to succession, it is those provisions which, in principle, are intended to apply, instead of these of the Succession Regulation (OP, para. 27). In view of the Court of Justice, the Succession Regulation does not override these provisions simply because they do not provide for party autonomy and possibility of choosing applicable law by the testator (OP, para. 33).

It should be noted, however, that the Court of Justice while explaining that the bilateral agreement takes precedence before the Succession Regulation uses the expression “in principle” (see: OP, para. 27). Hence, this conclusion is of general, abstract character. It applies to every bilateral agreement and not necessary to this particular one and this particular case. Further, the Court of Justice states that “the scheme” of Succession Regulation “does not preclude a situation where, under a bilateral agreement concluded between a Member State and a third State (…), a third-country national residing in the Member State bound by that bilateral agreement does not have the right to choose the law applicable (…)” (OP, para. 37).

Nowhere in the judgment does the Court of Justice discuss the exact content of the 1993 Poland-Ukraine Bilateral Agreement. It does not say that 1993 Poland-Ukraine Bilateral Agreement excludes the possibility of choosing applicable law. It is left for the domestic court to analyze 1993 Poland-Ukraine Bilateral Agreement and finally decide.

The third issue of 2023 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Pietro Franzina, Professor at the Università Cattolica del Sacro Cuore, Un nuovo diritto internazionale privato della protezione degli adulti: le proposte della Commissione europea e gli sviluppi attesi in Italia (A New Private International Law on the Protection of Adults: The European Commission’s Proposals and the Developments Anticipated in Italy; in Italian)

The European Commission has presented on 31 May 2023 two proposals aimed to enhance, in cross-border situations, the protection of adults who are not in a position to protect their interests due to an impairment or the insufficiency of their personal faculties. One proposal is for a Council decision that would authorise the Member States to ratify, in the interest of the Union, the Hague Convention of 13 January 2000 on the international protection of adults, if they have not done so yet. The decision, if adopted, would turn the Convention into the basic private international law regime in this area, common to all Member States. The other proposal is for a regulation the purpose of which is to improve, in the relationships between the Member States, the cooperation ensured by the Convention. The paper illustrates the objects of the two proposals and the steps that led to their presentation. The key provisions of the Hague Convention are examined, as well as the solutions envisaged in the proposed regulation to improve the functioning of the Convention. The paper also deals with the bill, drafted by the Italian Government and submitted to the Italian Parliament a few days before the Commission’s proposals were presented, to prepare for the ratification of the Convention by Italy and provide for its implementation in the domestic legal order. The bill, it is argued, requires extensive reconsideration as far as the domestic implementation of the Convention is concerned. Alternative proposals are discussed in the paper in this regard.

This issue also comprises the following comment:

Riccardo Rossi, Juris Doctor, Reflections on Choice-of-Court Agreements in Favour of Third States under Regulation (EU) No 1215/2012

This article tackles the absence of a provision addressing choice-of-court agreements in favour of third States under Regulation (EU) No 1215/2012 (“Brussels Ia Regulation”). The CJEU case law and the present structure of the Regulation leave no room for the long-debated argument of effet réflexe. In light of Arts 33 and 34 (and Recital No 24), enforcing such agreements is now limited to the strict respect of the priority rule in the trans-European dimension. The first part of the article deals with the consequences of such a scheme. Namely, forum running, possible interferences with the free circulation of judgments within the EU pursuant to Art 45(1)(d), and inconsistencies with the 2019 Hague Convention. In its second part, from a de lege ferenda perspective, the article examines the most delicate issues raised by the need for introducing a new provision enforcing jurisdiction agreements in favour of third States: from the jurisdiction over the validity of such agreements, to the applicable law, to the weight to be given to the overriding mandatory provisions of the forum. Finally, it proposes a draft of two new provisions to be implemented in the currently discussed review of the Brussels Ia Regulation.

In addition to the foregoing, this issue includes a chronicle by Francesca C. Villata, Professor at the University of Milan, Il regolamento (UE) 2023/1114 relativo ai mercati delle cripto-attività: prime note nella prospettiva del diritto internazionale privato (Regulation (EU) 2023/1114 on Market in Crypto-Assets: First Remarks from a Private International Law Perspective; in Italian).

Finally, the following book review by Francesca C. Villata, Professor at the University of Milan, is featured: Gabriele CARAPEZZA FIGLIA, Ljubinka KOVA?EVI?, Eleonor KRISTOFFERSSON (eds), Gender Perspectives in Private Law, Springer Nature, Chan, 2023, pp. XV-242.

The latest issue of RabelsZ has just been released. It contans the following articles:

Horatia Muir Watt: Alterity in the Conflict of Laws. An Ontology of the In-Between
[18th Ernst Rabel Lecture, 2022] [OPEN ACCESS], 433–464, DOI: 10.1628/rabelsz-2023-0063

The conflict of laws can serve heuristically to underscore two established but radically opposing models of modernist legal ordering: multilateralism and statutism. Such a prism is helpful if we want to rethink (as we must!) our late-modern legality’s deep epistemological settings in the shadow of the »catastrophic times« to come, whether in terms of environmental devastation or political dislocation. Both phenomena are profoundly linked and indeed constitute two faces of alterity, natural and cultural, from which modernity has progressively taught us to distance ourselves. Importantly, law encodes the conditions that produce these dual somatic symptoms in our contemporary societies. This chasm between nature and culture has produced humanity’s »ontological privilege« over our natural surroundings and a similar claim of superiority of modern (Western) worldviews over »the rest«. In this respect, the main achievement of the moderns, as Bruno Latour wryly observed, has been to universalise the collective blindness and amnesia that allow our »anthropocentric machine« to hurtle on, devastating life in its path and devouring the very resources it needs to survive.

Anton S. Zimmermann: Kriegskollisionsrecht. Ein Beitrag zum international-privatrechtlichen Umgang mit Gebietseroberungen (War and the Conflict of Laws – Private International Law’s Treatment of Territorial Conquest), 665–496, DOI: 10.1628/rabelsz-2023-0058

 The Russian war of aggression against Ukraine constitutes a breach of a fundamental consensus in public international law: states have authority over their territory. One element of territorial sovereignty is the right to legislate in the field of private law. If a territory is conquered, this right is – in breach of public international law – usurped by the conquering state. This article examines how private international law deals with such changes in factual power. It demonstrates that private international law is more flexible than is commonly assumed and that it can provide a differentiated and adequate reaction to occupations and annexations.

Wenliang Zhang, Guangjian Tu: Recent Efforts in China’s Ambition to Become a Centre for International Commercial Litigation, 497–531, DOI: 10.1628/rabelsz-2023-0064

The last decade or so has witnessed intensifying efforts by China to reshape its legal framework for international commercial litigation. These efforts echo its advancement of the »One Belt and One Road Initiative« and a policy of strengthening the foreign-related rule of law. But the measures so far have been piecemeal and were adopted mainly by the Supreme People’s Court (SPC). Leading lower Chinese courts, the SPC has zealously advanced the reform of international commercial litigation by devices such as international commercial courts (ICCs), anti-suit injunctions, forum non conveniens and de jure reciprocity favouring recognition and enforcement of foreign judgments. Such efforts may help modernize China’s mechanism for international commercial litigation, and more are expected. Although what the SPC has been doing moves closer to the global mainstream and is on the right track, deep reforms are still needed before the Chinese international commercial litigation regime can »go global«.

Mathias Habersack, Peter Zickgraf: Sorgfaltspflichten und Haftung in der Lieferkette als Regelungsmodell: Rechtsentwicklung – Rechtsvergleichung – Rechtsökonomik – Rechtsdogmatik (Corporate Sustainability Due Diligence and Supply Chain Liability as a Regulatory Model: Legal Developments – Comparative Assessment – Economic Analysis – Legal Theory), 532–607, DOI: 10.1628/rabelsz-2023-0060

The proposal for a Corporate Sustainability Due Diligence Directive significantly exceeds the German Supply Chain Act (LkSG) not only in terms of its scope of application and the protected interests, but also regarding the enforcement mechanism in the event of a violation of a due diligence duty. While the LkSG has taken a stand against private enforcement in its § 3 para. 3 s. 1, Art. 22 of the proposed Corporate Sustainability Due Diligence Directive makes companies civilly liable for misconduct committed by their subsidiaries and business partners. The present article deals with the conceptual fundamentals of this regulatory model: From a comparative perspective, the proposed duties and accompanying civil liability mark a departure from the independent contractor rule which is deeply rooted in the tort laws of the German and Anglo-American legal families; the proposed regulatory model thus brings about a sector-specific paradigm shift in the law of non-contractual liability. From a law and economics perspective, however, the proposed regulatory model is justifiable given the special factors present in typical cases. The liability risks associated with the regulatory model appear to be manageable for companies if the pre-conditions of their potential civil liability are more clearly specified.

 

BOOK REVIEWS

As always, this issue also contains several reviews of literature in the fields of private international law, international civil procedure, transnational law, and comparative law (pp. 608–640).

The Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters is currently in force for more than 80 States.

All the Member States of the European Union are bound by the Convention. Most of them were parties to the Convention well before the Union was given the power to adopt measures concerning judicial cooperation in civil matters. Others joined afterwards.

Austria and Malta were the latest to do so. They respectively ratified and acceded to the Convention based on a Council Decision of 10 March 2016 whereby they were authorised (and in fact requested) to do so “in the interest of the Union”. The latter expression is used in cases where the Union considers it has the power to conclude an international agreement, but the agreement in question fails to include a REIO clause or is otherwise only open to States, meaning that the Union has no other option than to join the agreement through its Member States.

The Council Decision of 2016 was adopted on the assumption that the Union has external competence with regard to the Convention “in so far as its provisions affect the rules laid down in certain provisions of Union legislation or in so far as the accession of additional Member States to the Convention alters the scope of certain provisions of Union legislation”.

One such provision is Article 28 of the Brussels I bis Regulation. Article 28(2) stipulates that the court seised “shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end”. It is added in (3) that Article 19 of the 2007 Service Regulation (bow Article 22 of the Recast Service Regulation) applies instead of (2) where service occurred under the latter Regulation, and, in (4), that were the Union’s rules are not applicable, then Article 15 of the Hague Service Convention shall apply, “if the document instituting the proceedings or an equivalent document had to be transmitted abroad pursuant to that Convention”.

The stated existence of a Union’s external competence in this area has not prevented other uncertainties from arising. Specifically, the question arose of whether it is for the Union (and the Union alone) to take a stance on subsequent accessions to the Convention by third States.

Pursuant to Article 28 of the Convention, any State not represented at the Tenth Session of the Hague Conference on Private International Law (which took place in 1964) may accede to the Convention after the latter’s entry into force on the international plane. The Convention will then enter into force for such a State “in the absence of any objection from a State, which has ratified the Convention before such deposit, notified to the Ministry of Foreign Affairs of the Netherlands within a period of six months after the date on which the said Ministry has notified it of such accession”.

Put in another way, the Hague Service Convention offers the States that are already bound by it to veto the establishment of relations under the Convention between any acceding State and all of the Contracting States. So far, this “right of veto” has never been used in practice.

The Council of the European Union has recently discussed whether it is for the Union, or rather its Member States, individually, to decide about the line to take regarding the accession of Singapore to the Convention, which occurred on 16 May 2023.

Member States had apparently no difficulties in agreeing that there were no grounds, in substance, to issue such an objection. However, procedurally, while the majority took the view that the decision belonged to the Union, two States – France and the Czech Republic – expressed doubts in this regard, and abstained from the vote.

In a joint statement, France and Czechia noted that the other Member States agree that the Hague Service Convention falls under EU exclusive external competence, pursuant to Article 3(2) TFEU, but argued, for their part, that, “since the provisions of the Hague Convention on service do not apply in relations between Member States but only when a third State is involved, the possibility of affecting or modifying the common EU rules is doubtful”.

France and Czechia did not intend to prevent the Council from adopting an EU-wide approach to the accession of Singapore, but stressed they would not consider such a decision “as a precedent for any other accessions to the Hague Service Convention and other measures of the European Union that aim to regulate comparable subject matters, where exclusive external competence of the European Union could play a role but has not been agreed upon by the Member States”.

On 13 October 2023, Coreper issued a recommendation to approve the line to be taken regarding the accession of Singapore (the recommendation being that no objection should be raised), while acknowledging that the recommendation “is without prejudice to the procedure to be followed in the future to establish the European Union’s position concerning the accession of third States to such Hague Conventions which have the same accession mechanism as the 1965 Hague Convention”.

The issue, it is believed, may resurface, in particular, with respect to the Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters. The latter Convention, too, has special rules on the acceptance of accessions (Article 39), although their design and practical implications depart from the corresponding provisions of the Hague Service Convention.

Two books on international litigation and arbitration have recently been published that might be of interest to the CoL Community and PIL research.

The first book by Mihail Danov (University of Exeter) is the latest contribution to Hart’s renowned “Studies in Private International Law” series (Volume 37) and examines the challenging interaction of “Private International Law and Competition Litigation in a Global Context“. The blurb reads as follows:

This important book analyses the private international law issues regarding private antitrust damages claims which arise out of transnational competition law infringements. It identifies those problems that need to be considered by injured parties, defendants, judges and policy-makers when dealing with cross-border private antitrust damages claims in a global context. It considers the post Brexit landscape and the implications in cross border private proceedings before the English courts and suggests how the legal landscape should be developed. It also sets out how private international law techniques could play an increasingly important role in private antitrust enforcement.

For all interested conflict of laws.net readers, Hart Publishing is kindly offering a discount price of £76. If you order online at www.bloomsbury.com, just use the code GLR AQ7 to get 20% off!

In the second treatise, Mohamed F. Sweify (Hinshaw & Culbertson LLP) takes an in-depth look at the increasingly important issue of “Third Party Funding in International Arbitration“. Edward Elgar Publishing provides the following content description:

The author of Third Party Funding in International Arbitration challenges the structural inconsistencies of the current practices of arbitration funding by arguing that third party funding should be a forum of justice, rather than a forum of profit.

By looking at the premise, rather than the implication, the author presents the arcane areas of intersection between access to justice, as a foundational theory for third party funding, and the arbitration funding practice that lacks a unifying framework. The author introduces a new methodology with an alternative way of structuring third party funding to solve a set of practical problems generated by the risk of claim control by the funder.

This book will be of interest to third party funders, arbitrators, lawyers, arbitral institutions, academics, and law students.

The third issue of the Journal du Droit international-Clunet of 2023 was released in July. It contains three articles and many case notes.

The first article Regard québécois sur le projet de Code de droit international privé français (A view from Quebec on the project of a french private international law Code) is authored by Prof. Sylvette Guillemard (Université Laval). The abstract reads as follows:

A draft of a French private international law code project was presented to the Minister of Justice in March 2022. As soon as it was submitted, it was immediately commented on by various parties ; its qualities are admired as much as its shortcomings are pointed out. In 1994, the Quebec legislator adopted a book dedicated to private international law in its new Civil Code. After nearly 30 years, it was able to reveal its flaws and demonstrate its advantages. Therefore, neither too old nor too young, it appeared to us as an excellent object of comparison with the French project. At the end of the exercise, we may conclude that French law can only emerge as the winner of this “operation of shaping the rules [of private international law] into a whole”, to borrow the words of Rémy Cabrillac.

Dr Djoleen Moya (Université catholique de Lyon) is the author of the second article Vers une redéfinition de l’office du juge en matière de règles de conflit de lois ? (Towards a redefinition of the obligation for a judge to apply choice-of-law rules?). Dr Moya is continuing the reflection of her doctoral work L’autorité des règles de conflit de loi – Réflexion sur l’incidence des considérations substantielles, recently published. The abstract reads as follows:

The latest developments in matters of divorce, both in domestic law and in private international law, have largely renewed the question of the obligation for a judge to apply choice-of-law rules. Traditionally, the Cour de cassation considers that in matters of divorce, judges must apply, if necessary ex officio, the applicable conflict rule, because unwaivable rights are concerned. However, this solution is under discussion. First, the qualification of divorce as an unwaivable right is questionable, especially since the admission of a purely private divorce by mutual consent in French law. But above all, the Europeanisation of the applicable choice-of-law rules seems likely to call for a new definition the judges’ procedural obligations. If we add to this the recent reorientation of the Cour de cassation’s position and the solutions stated in the draft Code of Private of International Law, the question undoubtedly calls for a reassessment.

The third article is authored by Prof. Sara Tonolo (Università degli Studi di Padova) and deals with Les actes de naissance étrangers devant la Cour européenne des droits de l’homme – à propos de l’affaire Valdís Fjölnisdóttir et autres c/ Islande (Foreign birth certificates before the European Court of Human Rights – about the Valdís Fjölnisdóttir and others v/ Iceland case). The abstract reads as follows:

The European Court of Human Rights ruled on the recognition of the filiation status within surrogacy in the Valdís Fjölnisdóttir and others v. Iceland case. This perspective leaves many questions unanswered and prompts further reflection, particularly with regard to the role that private international law can play in the protection of human rights, in the context of the difficult balance between the protection of the right to private and family life and the margin of appreciation reserved to member states.

The full table of contents is available here.

In Limbu & Ors v Dyson Technology Ltd & Ors [2023] EWHC 2592 (KB) a jurisdictional challenge on forum non conveniens grounds in allegations of forced labour at Dyson’s Malaysian Supplier, was successful. The judgment shows the impact of neither Brussels Ia (with a forum non conveniens ultra light regime) or the Lugano Convention (no forum non conveniens at all) applying.

The case is said [18] to raise a number of novel questions: whether the unjust benefit in a claim for unjust enrichment has to flow directly from the claimant to the defendant; and whether a party can be liable in negligence for the treatment by a third party — a supplier — of that third party’s employees. I do not think nota bene that the latter is correct: IMHO undoubtedly it can (for similarish considerations, albeit at strike-out level, see the Court of Appeal in Begum v Maran). The question is under what conditions.

[16] the judgment lists the concessions made by the defendants:

(i) D1 and D2 will submit to the jurisdiction of the Malaysian courts if they are sued there;

(ii) The Dyson Defendants will not seek security for costs or an adverse costs order against the Claimants if and to the extent such costs would not be recoverable under the Qualified One Way Cost Shifting regime in England;

(iii) The Dyson Defendants will pay the reasonable costs necessary to enable the Claimants to give evidence in Malaysian proceedings including (if necessary) affidavit affirmation fees and other costs necessary for the Claimants to give remote evidence including travel and accommodation costs, costs associated with the provision/set-up of suitable videoconferencing technology and other costs associated with the logistics of giving evidence remotely;

(iv) The Dyson Defendants will not oppose an application by the Claimants for remote attendance at a hearing/the trial in Malaysian proceedings;

(v) The Dyson Defendants will pay for the Claimants’ share of the following disbursements to the extent reasonably incurred and necessary: (a) Court interpretation fees, (b) Transcription fees, and (c) Joint expert evidence; and

(vi) The Dyson Defendants will not seek to challenge the lawfulness of any success fee arrangement entered into between the Claimants and their Malaysian lawyers.

A further undertaking was given in the course of the hearing before me: that the Dyson Defendants would not oppose an application for a split trial.

Sheldon DJ, with reference to Spiliada, sets out the jurisdictional test as follows [28-29]

With respect to “service in” cases [defendants domiciled in England, served there ‘of right’, GAVC], the burden of proof rests on the defendant to show that England is not the natural or appropriate forum and that there is another available forum which is clearly and distinctly more appropriate: Stage 1. If so, then the burden shifts to the claimant to show that there are special circumstances such that justice requires the trial to take place in England: Stage 2.

With respect to “service out” cases [defendant in respect of whom permission to serve abroad has been obtained, GAVC], the burden of proof is on the claimant at Stage 1 to show that England is the appropriate forum for the trial of the action, and that it is “the proper place in which to bring the claim” (CPR rule 6.37(3)). According to Lord Goff in Spiliada … the claimant must show that this is “clearly so”. If the claimant fails to establish that England is the proper forum, then Stage 2 will apply.

[30] the judge refers to Briggs J in Vedanta emphasising a preference for  a single forum, so as not to run the risk of irreconcilable judgments, should there be bifurcation. [37] He refers to Lord Briggs’ reference [87] in Vedanta that when the E&W-domiciled anchor defendant)s) have agreed to submit to a foreign jurisdiction, but the claimant has made a deliberate choice to sue in this forum and has thereby engendered the risk of irreconcilable judgments, it “would offend the common sense of all reasonable observers to think that the proper place for this litigation to be conducted was England”.

That element of Lord Briggs’ speech was subject to a requirement that substantial justice can be obtained abroad, and I pointed out here that I found that a massive get out off jail free card.

The judge in current case [43ff] emphasises the caution that should be applied when considering whether “substantial justice” can be obtained in the foreign jurisdiction.

First, it has been observed that there have been “judicial warnings of undoubted authority that the English court should not in this context conclude, other than in exceptional cases, that the absence of a means of funding litigation in the foreign jurisdiction, where such means are available in England, will lead to a real risk of the non-availability of substantial justice”: see Lord Briggs JSC in Vedanta at §93 referring to Connelly v RTZ Corpn plc (No 2) [1998] AC 854 (“Connelly“), 873 per Lord Goff, and Lubbe and Others v Cape Plc [2000] 1 WLR 1545 (“Lubbe“), 1555 per Lord Bingham.

Second, as Lord Goff noted in Connelly at p874D, “seeking to take advantage of financial assistance available here to obtain a Rolls Royce presentation of his case, as opposed to a more rudimentary presentation in the appropriate forum” would not be sufficient to justify such a refusal.

Third, and more generally, Lord Briggs warned in Vedanta at §11 that the “conclusion that a foreign jurisdiction would not provide substantial justice risks offending international comity. Such a finding requires cogent evidence, which may properly be subjected to anxious scrutiny”.

Authorities discussed were then Connelly, Lubbe, Pike, Unilever, and of course Vedanta. [52] Claimants argue that from an access to justice perspective, where the English Court was seized of jurisdiction, and knows that a fair trial is possible here, it should not lightly relinquish that jurisdiction – I think they are right. Parties’ respective arguments are summarised [54] ff and the judge held as follows [83] ff.

On “Spiliada Stage 1. The key factors are said to be

(i) Neither England nor Malaysia are practically convenient for all of the parties and witnesses. This factor in essence is said to be neutral. 

(ii) There is no completely common language for each of the witnesses, and so this factor is neutral.

(iii) Lex causae will be Malaysian, and this it is [97] said “is a factor which clearly favours hearing the case in Malaysia.” This section I find does not properly represent the way in which English courts can and do apply foreign law even when that law may not be clear to the foreign country itself. (And by the way was it common ground that the unjust enrichment claim would be subject to Malaysian law?)

(iv) The issues in this case took place in both England and Malaysia, [102] “however, the place where the harm occurred was in Malaysia (even if there are ongoing injuries for the Claimants who live outside of Malaysia), and the underlying alleged mistreatment took place in Malaysia. In my judgment, the centre of gravity of this case is plainly Malaysia, and this is a strong factor pointing towards Malaysia as being the proper forum.”

I disagree. As the judge said himself, this claim raises new issues on unjust enrichment in the supply chain and the English outsourcing corporation’s liability for mistreatment in the supply chain. The main focus of the trial will in reality be concerned with the E&W defendants and the Dyson Defendants’ policies, activities and arguments about their liability, as claimant’s counsel argues [104].

(v) The documents relevant to the case are held in both England and Malaysia. Wherever a trial is held, it seems most likely that the relevant documents will be obtainable. This factor is said slightly to favour Malaysia.

(vi) There is a real risk of a multiplicity of proceedings, and of irreconcilable judgments, wherever this claim is heard. However [121] particularly in light of related defamation proceedings, this element is said to favour E&W.

In conclusion on Spiliada Stage 1, [122]:

England is not the natural or appropriate forum and that Malaysia is another available forum which is clearly and distinctly more appropriate. The centre of gravity in this case is Malaysia: that is where the primary underlying treatment about which the Claimants complain took place, and is therefore the forum with “the most real and substantial connection” per Lord Goff in Spiliada at 478A. Malaysian law is also the governing law, and there are good policy reasons for letting Malaysian judges consider the novel points of law that are being raised in this claim within the context of their jurisprudence, rather than letting an English Court second guess what they might decide. In my judgment, these factors are not “dwarfed” by countervailing factors (per Lord Mance in VTB). The risk of irreconcilable judgments resulting from the defamation proceedings is an important factor, but it does not tilt the balance in favour of the English Court being the proper forum to determine the Claimants’ claim.

On to Stage 2: are there special circumstances such that justice requires the trial to take place in England? Neither the

difficulties in obtaining justice for migrant workers,

that the claims were complicated and needed suitably qualified advocates, the lawyers who argued labour and migrant cases did not have the expertise necessary to deal with this kind of case, and teaming up was unlikely

that it was not possible to case manage out complexity, and although personal injury cases could easily be divided into liability and quantum this was not possible for a claim of unjust enrichment, where establishing the extent of enrichment was part of the question of liability. A very substantial part of the case would involve unjust enrichment, and an estimate of 6 months for the trial had been given

that there would be very significant disbursements, not least on expert fees; and there would be a need for forensic accounting for the unjust enrichment claim;

that the claims would involve considerable financial risk for the Claimants’ legal representatives. They would have to commit thousands of hours of work, and be at risk that they would not recover them. Among other things, there would also be translation costs, hundreds of hours for reviewing documents, setting up hearings in Bangladesh. The fact that there was one witness who had said he would do the case was not sufficient.

that the prospect of a small band of practitioners being willing to take the risk was reduced when considering that they would be opposed by Defendants without any effective limitation on resources, represented by one of the largest law firms in the world, and where aggressive and heavy-handed approach is likely to be taken in the defence of the proceedings

that it was inappropriate to rely on the undertakings given by the Dyson Defendants. Paying for the disbursements does not touch the size of the financial risk. There was also a conflict of interest here, as the Claimants’ legal representatives would be negotiating with the Defendants’ legal representatives over the reasonableness of the costs incurred;

that there was no cogent evidence that the gaps could be filled by NGOs; and

that the Claimants contended that partial CFAs were unlawful; and even if they were lawful, the basic fee to be paid cannot be nominal, and the fee that would have to be paid by the Claimants would be set at a level which was unrealistic.

was held [171] to be one of the “exceptional cases” in which “the absence of a means of funding litigation in the foreign jurisdiction, where such means are available in England, will lead to a real risk of the non-availability of substantial justice”, per Lord Briggs JSC in Vedanta at §93.

I do find the evident reliance in many of these factors, on defendants’ commitments troubling, including from an Article 6 ECHR point of view; I do not think the judge is right on the applicable law being Malaysian law issue-   and that element was really the only one favouring Malaysia; and the main focus of the trial on the claim argued will in reality be concerned with the E&W defendants and the Dyson Defendants’ policies, activities and arguments about their liability.

Geert.

EU private international law, 4th ed. 2024, Chapter 7.

A case which unfortunately illustrates the impact of Brexit on #bizhumanrights claims
Successful jurisdictional challenge on forum non conveniens grounds in allegations of forced labour at @Dyson Malaysian Supplier
Limbu ea v [Dyson] [2023] EWHC 2592 (KB)https://t.co/JWVryJDEzc pic.twitter.com/a3nYD478nw

— Geert Van Calster (@GAVClaw) October 20, 2023

Where England is not the natural forum for the trial of the substantive dispute, the English court should not, as a matter of policy or law, restrain proceedings in one foreign jurisdiction where the purpose of the injunction is to favour proceedings in another jurisdiction. In other words…it is no part of the function of the English courts to act as an international policeman in matters of this kind.

This well-known principle, set out by the House of Lords in Airbus Industrie GIE v Patel, does not apply to arbitration. This is the gist of the judgment of the Court of Appeal (Nugee LJ, Snowden LJ and Falk LJ) of 11 October 2023 in Deutsche Bank AG v RusChemAlliance LLC [2023] EWCA Civ 1144.

The facts are simple. A German bank issued a guarantee in favour of a Russian company, which was governed by English law and provided for arbitration in Paris. The Russian company commenced court proceedings in Russia. The German bank sought an anti-suit injunction (ASI) in England to restrain the Russian proceedings. English courts have the power to issue injunctions under section 37(1) of the Senior Courts Act 1981 ‘in all cases in which it appears to the court to be just and convenient to do so’. No such injunction could be obtained in France. Should the English court grant an ASI under these circumstances?

Allowing the appeal, the Court of Appeal gave a positive answer to this question. The court reasoned as follows. There is a serious issue to be tried on the merits. The claim falls within the gateway in Practice Direction 6B para 3.1(6)(c), namely a claim in respect of a contract governed by English law. ‘It is the policy of English law that parties to contracts should adhere to them, and in particular that parties to an arbitration agreement, who have thereby impliedly agreed not to litigate elsewhere, should not do so.’ ([38]) ‘Hence the Court will usually grant an ASI to enforce an arbitration agreement unless there is good reason not to’. ([39]) Since French courts cannot grant an ASI and French law ‘has no objection in principle to (and will recognise) the grant of an ASI’ in a case like this ([40]), England is the proper forum in which to bring the claim ‘for the interests of all the parties and the ends of justice’ (Spiliada). Consequently, all the conditions for service out were met. From this point, it was plain sailing. The court regarded ‘the application for an interim ASI as quite straightforward’ because the evidence showed that French law had no objection to this course of action ([42]). Just in case the Russian proceedings were not discontinued, the court also granted an anti-enforcement injunction.

Following the UKSC judgment in Enka, the arbitration agreement in Deutsche Bank AG v RusChemAlliance LLC was governed by English law. The authorities on which the Court of Appeal relied to support its argument about the policy of English law (UKSC/UKHL judgments in Ust-Kamenogorsk, West Tankers, Enka; EWCA judgment in The Angelic Grace [1995] 1 Lloyd’s Rep 87) all concerned arbitration agreements governed by English law. The court also relied on the English law of equity concerning the enforcement of contracts governed by English law ([38]-[39], [42]). This indicates that Deutsche Bank AG v RusChemAlliance LLC is most likely confined to arbitration agreements governed by English law (compare the outcomes in two similar cases, which provides support for this statement: Commerzbank AG v RusChemAlliance LLC [2023] EWHC 2510 (Comm) (arbitration agreement governed by English law; ASI granted) and G v R [2023] EWHC 2365 (Comm) (arbitration agreement governed by French law; England not the forum conveniens; ASI not granted)).

But the Court of Appeal’s broad statements of principles leave the door open for the argument that upholding all arbitration agreements is a general principle of English law and that, consequently, English courts should restrain foreign court proceedings commenced in breach of arbitration agreements, regardless of their governing law and arbitral seat, as long as the breaching party is present in England or the claim falls within a jurisdictional gateway, ASIs are not available in the courts of the seat, and the country of the seat has no objection in principle to ASIs. This would be a considerable extension of the powers of English courts and an unwelcome development.

 Written by Seung Chan Rhee and Alan Zheng

Suppose a company sells tickets for cruises to/from Australia. The passengers hail from Australia, and other countries. The contracts contain an exclusive foreign jurisdiction clause nominating a non-Australian jurisdiction. The company is incorporated in Bermuda. Cruises are only temporarily in Australian territorial waters.

A cruise goes wrong. Passengers, Australian and non-Australian, want relief under the Australian Consumer Law (ACL). They commence representative proceedings alleging breaches of consumer law, and negligence in the Federal Court of Australia. The Australian court must first resolve the conflict of laws problems posed – problems as sustained as they have been complex in the history of private international law.

These are the facts at the heart of the Ruby Princess cruise, and her 2,600 passengers. The story was reported widely. A COVID-19 outbreak prematurely terminated the cruise. Many passengers contracted COVID-19; some died. Unsurprisingly, the cruise then spawned an inquiry and a class action against Carnival plc (Carnival) as charterer and operator of the Ruby Princess, and Princess Cruise Lines Ltd, the Bermuda-registered subsidiary and vessel owner.

Statute has left little of the common law untouched. This short note analyses the interaction between a mandatory law and an exclusive jurisdiction clause in the context of the case. The note observes the tension between the selection of the statutist approach or conventional choice of law rules as an analytical starting point, in difficult consumer protection cases.

Background

The Ruby Princess’ passengers contracted on different sets of terms and conditions (US, UK and AU). The US and UK terms and conditions contained exclusive foreign jurisdiction clauses favouring the US and English courts respectively (PJ, [26], [29]). US customers also waived their rights to litigate in representative proceedings against Carnival (the ‘class action waiver’) (PJ, [27]). In aid of these clauses, Carnival sought a stay of the proceedings vis-à-vis the UK and US passenger subgroups.

Whether a stay is granted under Australian law turns on whether the Australian court is ‘a clearly inappropriate forum’ (See Oceanic Sun Line Special Shipping Co Inc v Fay at 247–8) (Oceanic Sun Line). In Regie Nationale des Usines Renault SA v Zhang (Renault v Zhang), the High Court (at [78]) described the test as requiring the applicant to show the Australian proceeding:

would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious …

In Voth v Manildra Flour Mills Pty Ltd (Voth), a majority observed (at 566):

the extent to which the law of the forum is applicable in resolving the rights and liabilities of the parties is a material consideration … the selected forum should not be seen as an inappropriate forum if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties.

Through these cases the High Court elected not to follow the English approach (see Spiliada Maritime Corporation v Cansulex Ltd) which requires that another forum is clearly or distinctly more appropriate. The Australian test, after Voth poses a negative test and a more difficult bar.

First Instance

Stewart J found the Federal Court was not a clearly inappropriate forum and declined to stay the proceedings. A critical plank of this conclusion was the finding that the exclusive foreign jurisdiction and class action waiver clauses were not incorporated into the contracts (PJ, [74]). Even if the clauses were incorporated, Stewart J reasoned in obiter that the class action waiver was void as an unfair contract term under s 23 of the ACL (PJ, [145]) and the Federal Court was not a clearly inappropriate forum.

As noted in Voth and Oceanic Sun Line, simply because the contract selected the US or UK as the particular lex causae did not end the analysis (PJ, [207]) — the US and UK subgroups were not guaranteed to take the benefit of the ACL in the US and English courts, notwithstanding Carnival’s undertaking that it would not oppose the passengers’ application to rely on the ACL in overseas forums (PJ, [297], [363]). Ultimately, there remained a real juridical advantage for the passengers to pursue representative proceedings together in Australia.

Carnival appealed.

Full Court

The majority (Derrington J, Allsop CJ agreeing) allowed Carnival’s appeal, staying the US subgroup’s proceedings. Unlike the primary judge, the majority reasoned the clauses were incorporated into the US subgroup contracts. Further, a stay should be refused because the US and English courts had similar legislative analogues to the ACL (FCAFC, [383]-[387]). Although he US passengers would lose the benefit of the class action, that was a mere procedural advantage and the question of forum is informed by questions of substantive rights (FCAFC, [388]).

Rares J dissented, upholding the primary judge’s refusal of a stay (FCAFC, [96]).

The passengers appealed to the High Court.

The Interaction between a Mandatory Law and an Exclusive Jurisdiction Clause

Statutes generally fall into one of three categories (see Maria Hook, ‘The “Statutist Trap” and Subject-Matter Jurisdiction’ (2017) 13(2) Journal of Private International Law 435). The categories move in degrees of deference towards choice of law rules. First, a statute may impose a choice of law rule directing the application of the lex fori where a connecting factor is established. Second, a statute may contain, on its proper construction, a ‘self-limiting’ provision triggered if the applicable law is the lex fori. Third, a statute may override a specified lex causae as a mandatory law of the forum. An oft-repeated refrain is that all local Australian statutes are mandatory in nature ([2023] HCATrans 99).

In the High Court, Carnival contended that if contracting parties select a lex causae other than the forum law, the forum statute will not apply unless Parliament has expressly overridden the lex causae.

The passengers (supported by the Commonwealth Attorney-General and ACCC, as interveners) took a different starting point — the threshold question is whether the forum law, as a matter of interpretation, applies to the contract irrespective of the parties’ usage of an exclusive jurisdiction clause. In this case, several factors supported the ACL’s application including s 5(1)(g) of the CCA, and the need to preserve the ACL’s consumer protection purpose by preventing evasion through the insertion of choice of law clauses.

The parties adopted unsurprising positions. The passengers’ case was conventionally fortified by the statutist approach, prioritising interpretation in determining the forum statute’s scope of application. Carnival relied on the orthodox approach, prioritising choice of law rules in controlling when and to what extent forum statutes will apply, and more aligned with comity norms and party autonomy the selection of the governing law of private agreements. The orthodox approach was exemplified in Carnival’s submission that ‘[i]t was not the legislature’s purpose to appoint Australian courts as the global arbiter … of class actions concerning consumer contracts across the world’ (See Respondent’s Outline of Oral Argument, p. 3).

Against that view, it was said that party autonomy should be de-emphasised where contracts are not fully negotiated, involve unequal bargaining power and standard terms (contracts of ‘adhesion’ as here provide a good example): see [2023] HCATrans 99 and the exchange between Gordon J and J Gleeson SC.

As scholars have noted, differences between the two approaches can be almost imperceptible. Characterisation is a ‘species of interpretation’ (Michael Douglas, ‘Does Choice of Law Matter?’ (2021) 28 Australian International Law Journal 1). However, the approach taken can lead to different outcomes in hard cases.

The key obstacle to the statutist approach is uncertainty. If interpretation of a statute’s extraterritorial scope controls the choice of law, then how do contracting parties ensure their selection of law prevails and that they are complying?

Interpretation (both in the choice of law sense and statutory interpretation) invites reasonable arguments that cut in both directions requiring judicial adjudication. Take, for example, Carnival’s response to the passengers’ argument that the ACL’s consumer protection policy weighs against the use of choice of law clauses to evade liability. Carnival contended any evasion can be controlled by a two-step approach: firstly, applying the ACL’s unfair contract provisions to the choice of law clause itself and, if it the clause is void, only then secondly applying the provisions to the contract as a whole. However, this only shifts the application of statutory interpretation to an anterior stage, namely how and when a given choice of law clause, on its face, might be considered unfair. To the extent any determination of unfairness could be made, this turns on the consequences of the clause per se than any particular manner of wording. Such an outcome equally produces unpredictability as to the anticipated effect and application of the forum law.

There is another example on point. Section 5(1)(g) extends the ACL to the ‘engaging in conduct outside Australia’ by bodies corporate carrying on business in Australia. Carnival’s expressio unius-style argument that s 5(1)(g) does not support the passengers’ case because the unfair contracts prohibition is not predicated on ‘engaging in’ any conduct, whereas ACL prohibitions apply to ‘conduct’. Accordingly, taking up a point made by the Full Court majority (FCAFC, [301]), Carnival contended a limitation should be read into s 5(1)(g) else it capriciously apply to companies like Carnival whose business were entirely engaged outside of Australia’s territorial limits.

Nevertheless, as the appellants pointed out (relying on drafting history), ‘when the unfair contract terms legislation was first introduced … s 5(1) was specifically amended to apply to those provisions’ (See Appellant’s Written Submissions, p. 6).  It is therefore apparent how the statutist approach invites a certain level of textual skirmishing.

Choices are available to judges under both the statutist approach and in the application of choice of law rules (see Michael Douglas, ‘Choice of Law in the Age of Statutes’ in Michael Douglas, Vivienne Bath, Mary Keyes and Andrew Dickinson, Commercial Issues in Private International Law: A Common Law Perspective (Hart Publishing, 2019) ch 9). However, it does not follow that there are comparable levels of certainty in the two approaches. Characterisation of a case as contract or tort (to take a very general example) invites a narrower range of choices than the entire arsenal of statutory interpretation techniques deployable analysing words in a statutory provision. That is so because characterisation is controlled by matters external to submissions, namely pleadings and the facts as objectively found (e.g. where was the defective product manufactured, or where was the injury sustained). Interpretation, particularly through the modern focus on text, context and purpose, is not disciplined by facts or pleadings. Instead, it is shaped by submissions and argumentation actuated by the connotative ambiguity found in statute.

That has led the High Court to observe that choice of law rules uphold certainty. In Renault v Zhang, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated ([66]-[67]):

The selection of the lex loci delicti as the source of substantive law meets one of the objectives of any choice of law rule, the promotion of certainty in the law.  Uncertainty as to the choice of the lex causae engenders doubt as to liability and impedes settlement.

Against the aim of certainty (and deference to choice of law clauses) are the countervailing considerations arising from legislative policy and the higher-order status of statute over choice of law rules sourced from the common law (see Douglas, ‘Choice of law in the Age of Statutes’). The interveners put it as an ‘unattractive prospect’ if the ‘beneficial’ aspects of the ACL regime could be defeated by expedient foreign jurisdiction clauses.

Insofar as the legislature evinces an intent to confer the benefit of legislation beyond Australia’s territorial bounds, courts bound by an interpretive obligation to give effect to that legislative intention will not be able to defer to choice of law rules. In the case of the CCA and the ACL, s 15AA of the Acts Interpretation Act 1901 (Cth) enjoins courts to prefer the interpretation ‘that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act)’. Douglas and Loadsman (see ‘The Impact of the Hague Principles on Choice of Law in International Commercial Contracts’ (2018) 19(1) Melbourne Journal of International Law 1) observe that:

It is consistent with this purposive approach to statutory interpretation that Australian courts take a broad approach to the geographical scope of Australian statutes. In an environment where Australian lives and businesses increasingly cross borders on a regular basis, it would defeat the purposes of many pieces of Australian legislation if courts were to take a territorially-limited approach to statutes’ scope of operation.

No doubt there is some truth to Carnival’s submission that Parliament did not intend to render Australian courts the global arbiters of consumer contracts. However, subject to a pronouncement to the contrary from the High Court, the judgments to date in Karpik v Carnival plc suggest a statutist analysis, however uncertain, difficult or comity-ablating, will be a necessary precondition to determining the weight given to the wording of a choice of law clause. This is ultimately a consequence of the premium placed on a purposive construction to mandatory laws arising out of the home forum. For better or worse (and a strong case has been made for worse – see Maria Hook, ‘The “Statutist Trap” and Subject-Matter Jurisdiction’ (2017) 13(2) Journal of Private International Law 435), ‘[i]f the purposive approach to statutory interpretation gives rise to forum shopping in favour of Australian courts, so be it’ (see Douglas and Loadsman, 20).

Notwithstanding this, another difficulty with Carnival’s submissions in favour of the choice of law approach is that it functionally revives the common law presumption of non-extraterritorial application of laws and elevates the rebuttability threshold of that presumption to something made ‘manifest’ by parliament (which has been keenly disputed in the High Court: see Respondent’s Submissions, [10]).

It is important to recall that the presumption was always couched in the language of construction. In Wanganui-Rangitiei Electric Power Board v Australian Mutual Provident Society, Dixon J stated (at 601):

The rule is one of construction only, and it may have little or no place where some other restriction is supplied by context or subject matter.

Rebuttability does not arise at all if the context or subject matter of the forum statute, as a matter of interpretation, supplies a relevant territorial connection. If it so supplies, that territorial connection operates as a restriction.

Dixon J also went on to state (at 601):

But, in the absence of any countervailing consideration, the principle is that general words should not be understood as extending to cases which, according to the rules of private international law administered in our courts, are governed by foreign law.

Most recently in BHP Group Ltd v Impiombato, Kiefel CJ and Gageler J (at [23]) considered the common law presumption resembled a ‘presumption in favour of international comity’ rather than one against extraterritorial operation – although it is worth noting that three other judges recognised (at [71]) the common law presumption was ultimately a statutory construction rule which did not always require reference to comity. Nevertheless, an important factor for Kiefel CJ and Gageler J in finding the class action provisions of Part IVA of the Federal Court of Australia Act 1976 (Cth) were not restricted to Australian residents by the presumption was the fact no principle of international law or comity would be infringed by a non-consenting and non-resident group member being bound by a judgment of the Federal Court in relation to a matter over which that court had jurisdiction.

Conversely, as Derrington J noted on appeal (FCAFC, [300]), the extension of s 23 to the transactions of companies operating in overseas markets as a result of their ancillary dealings in Australia would have been an ‘anomalous result’. Such a result would not have promoted comity between Australia and other national bodies politic, where the ACL would have had the result of potentially subjecting foreign companies to obligations additional to those imposed by the laws of their home country. As Carnival put it in the High Court:

if a company happens to carry on business in Australia, all of its contracts with consumers (as defined) all over the world are then subject to Part 2-3 of the ACL. It would mean, for example, that contractual terms between a foreign corporation and consumers in Romania under standard form contracts can be deemed void under s 23 (Respondent’s Submissions, [36]).

Without an expressed intention to the contrary, it was unlikely that Parliament had intended to ‘legislate beyond the bounds of international comity’ – into an area that would ordinarily be expected to be governed by foreign law.

To some extent, the judgments to date, despite their differing conclusions, suggest in common that an entirely non-statutist outcome (insofar as the CCA and ACL is concerned) is something of a will-o’-the-wisp. If it is accepted that matters of high forum public policy can supervene the contractual arrangements of the parties, expressed in no uncertain terms, then a court must always evaluate legislation in a statutist manner to determine how contractual arrangements interact with that policy. This is so even if, as in Derrington J’s view in Carnival plc v Karpik, the conclusion would be that the policy would not be advanced by applying the mandatory law.

The High Court’s decision will not only clarify the ambit of the CCA regime; it will materially bear upon the desirability of Australian courts as a forum for future transnational consumer law class actions. Coxtensively, companies with Australian operations liable to be on the respondent end of such class actions will be watching the developments closely before drafting further exclusive foreign jurisdiction clauses.

Judgment is reserved in the High Court.

Seung Chan Rhee is a solicitor at Herbert Smith Freehills. Alan Zheng is an Australian-qualified lawyer at Linklaters LLP. The views in this note are the views of the authors alone. The usual disclaimers apply.

 

 

 

 

 

 

 

In its Communication Ensuring justice in the EU – a European judicial training strategy for 2021-2024, the European Commission underlined the importance of European judicial training opportunities that enable legal practitioners to understand the role of EU law in their daily practice and to ensure that the rights and obligations stemming from EU law are respected in national judicial proceedings.

The European Institute for Public Administration (EIPA) and ICF are working to create and develop a series of e-learning courses (e-Capsules) for European practitioners on EU Civil Justice, Criminal Justice and Fundamental Rights for the European Commission Directorate-General for Justice and Consumers (DG JUST).

In order to identify the training needs and knowledge gaps all legal professionals within the 27 EU Member States are struggling with in the area of EU fundamental rights, civil justice, and criminal justice, EIPA and ICF have designed an online survey.

Those with an interest in these areas are invited to participate in the online survey that is available here in English, French, and German. The survey is meant to take approximately 10 minutes and can be completed over more than one session, if needed.

The survey is open until 31 October 2023.

Written by Ugljesa Grusic, Associate Professor at University College London, Faculty of Laws

Dr Ugljesa Grusic and Prof Alex Mills are pleased to announce that, alongside the UCL Faculty of Laws Research Scholarships which are open to all research areas, this year we have an additional scholarship specifically for doctoral research in private international law. The scholarship covers the cost of tuition fees (home status fees) and provides a maintenance stipend per annum for full time study at the standard UKRI rate. The annual stipend for 2023/24 (as a guide) was £20,622. The recipient of the scholarship will be expected to contribute to teaching private international law in the Faculty for up to 6 hours per week on average, and this work is remunerated in addition to the stipend received for the scholarship.

We particularly welcome applications with research proposals in fields that fall within our areas of interest, which are broad and include the following sub-topics within private international law: protection of weaker parties; environmental protection; business and human rights; sustainable development; digital technology; party autonomy; the relationship between public and private international law; private international law theory and/or methodology; colonialism; and private international law issues in arbitration and foreign relations law.

More information about UCL Faculty of Laws, our PhD programme, the process of applying and the scholarship is available here, here and here. Applicants should apply through the normal UCL Faculty of Laws PhD application process. All applicants within the relevant subject areas will be considered, but we recommend that applicants also specify in their application that they wish to be considered for these scholarships. The deadline date for applications for the 2024/25 academic year is 16 November 2023.

Prospective students are welcome to get in touch with either Dr Grusic at u.grusic@ucl.ac.uk or Prof Mills at a.mills@ucl.ac.uk.

 

Alex Mills and I are pleased to announce that, alongside the UCL Faculty of Laws Research Scholarships which are open to all research areas, this year we have an additional scholarship specifically for doctoral research in private international law. The scholarship covers the cost of tuition fees (home status fees) and provides a maintenance stipend per annum for full time study at the standard UKRI rate. The annual stipend for 2023/24 (as a guide) was £20,622. The recipient of the scholarship will be expected to contribute to teaching private international law in the Faculty for up to 6 hours per week on average, and this work is remunerated in addition to the stipend received for the scholarship.

We particularly welcome applications with research proposals that fall within our areas of interest, which are broad and include the following sub-topics within private international law: protection of weaker parties; environmental protection; business and human rights; sustainable development; digital technology; party autonomy; the relationship between public and private international law; private international law theory and/or methodology; colonialism; and private international law issues in arbitration and foreign relations law.

More information about UCL Faculty of Laws, our PhD programme, the process of applying and the scholarship is available here, here and here. Applicants should apply through the normal UCL Faculty of Laws PhD application process. All applicants within the relevant subject areas will be considered, but we recommend that applicants also specify in their application that they wish to be considered for these scholarships. The deadline date for applications for the 2024/25 academic year is 16 November 2023.

Prospective students are welcome to get in touch with either myself at u.grusic@ucl.ac.uk or Professor Mills at a.mills@ucl.ac.uk.

Recently, the Hague Academy of International Law published the 2024 programme of its renowned Summer Courses in Public International Law (8-26 July) and Private International Law (29 July – 16 August).

Following the Inauguaral Lecture by Lord Lawrence (former Justice of the UK Supreme Court), this year’s General Course in Private International Law will focus on “The Metamorphoses of Private International Law” and will be delivered by Charalambos Pamboukis (University of Athens).

Furthermore, Special Courses will be offered in English by Jack Coe (Pepperdine Law School), Andrew Dickinson (University of Oxford), Carlos Esplugues (University of Valencia) and Natalie Y. Morris-Sharma (Attorney General’s Chambers Singapore), while Eva Lein (University of Lausanne) and Alessandra Zanobetti (University of Bologna) will deliver their presentations in French. As always, all lectures will be simultaneously interpreted into English or French and vice versa.

Advanced Students, especially those who are ambitious to sit for the prestigious Diploma Exam, are highly encouraged to apply for the Academy’s Directed Studies as well. The French edition of these interactive afternoon seminars will be directed by Fabien Marchadier (University of Potiers), while English-speaking candidates are taught by Jacco Bomhoff (London School of Economics).

Registration is open from 1 November 2023 to 31 January 2024 via the institution’s own Online Registration Form . For further information on the HAIL 2024 Summer Courses and the Academy in general, please consult the HAIL Homepage or refer to the attached PDF Programme.

The Asian Private International Law Academy (APILA) will be holding its second conference at Doshisha University, Kyoto, on 9 and 10 December 2023. The keynote addresses will be delivered by Professor Emerita Linda Silberman on 9 December and Professor Gerald Goldstein on 10 December. The first day of the conference will comprise presentation and discussion of works-in-progress. The conference will devote most of 10 December to discussion and finalisation of the Asian Principles on Private International Law (APPIL) on three topics: (1) recognition and enforcement of foreign judgments, (2) direct jurisdiction, and (3) general choice of law rules. Persons interested in attending or wishing further information should email reyes.anselmo@gmail.com to that effect.  Please note that, while APILA can assist attendees by issuing letters of invitations in support of Japanese visa applications, APILA’s available funding is limited.  In the normal course of events, APILA regrets that it will not be able to provide funding for travel and accommodation expenses.

The Hague Academy of International Law has made known the programme of the summer course of Private International Law of 2024.

The course will be opened by Lord Lawrence Collins of Mapesbury (Former Justice at the United Kingdom Supreme Court) with a lecture on Use and Abuse of Comity in International Litigation.

The general course, titled The Metamorphoses of Private International Law, will be given by Charalambos Pamboukis (National and Kapodistrian University of Athens).

The special courses will be as follows: Jack Coe (Pepperdine Law School), Non-ICSID Convention Investor-State Awards in Domestic Courts; Andrew Dickinson (University of Oxford), Natural Justice in Recognition and Enforcement of Foreign Judgments; Carlos Esplugues (University of Valencia), New Dimensions in the Application of Foreign Law by Courts (and Arbitrators) and non-Judicial Authorities; Eva Lein (University of Lausanne), Breathing Space in International Contractual Disputes; Natalie Y. Morris-Sharma (Director at the Attorney-General’s Chambers Singapore), The Singapore Convention and the International Law of Mediation; Alessandra Zanobetti (University of Bologna), The Effects of Economic Sanctions and Counter-Measures on Private Legal Relationships.

The directors of studies will be Kubo Macák (University of Exeter) and Jacco Bomhoff (London School of Economics and Political Science) for the English-speaking section, Alain-Guy Tachou Sipowo (Université de Montréal) and Fabien Marchadier (University of Poitiers) for the French-speaking session.

All applicants are required to register online. A limited amount of scholarships is available. Registration period for full fee, scholarship, doctoral scholarship and Directed Studies applicants is between 1 November 2023 and 31 January 2024.

More information on the Academy’s programmes, including the upcoming Winter Course, may be found here.

This post was written by Mathilde Codazzi, who is a doctoral student at the University Paris II Panthéon-Assas.

In a judgment of 11 May 2023, the French Supreme Court For private and criminal matters (Cour de cassation) ruled that the requirement in the French civil code that the legal representatives of a child give their consent to his/her adoption, and which applies irrespective of the law governing otherwise adoption, is no ground for denying exequatur to a foreign adoption judgment.

Background

Two decisions rendered by the Nottingham Family Court on 17 March 2009 and two other decisions rendered by the London Family Court on 22 November  2012 granted the adoption of four children to an English national and a French and English national who entered into a civil partnership in 2003 and married in 2017. By a judgment of 17 December 2020, the French first instance court (Tribunal judiciaire de Nantes) granted exequatur to the four English decisions.

Court of Appeal

By a judgment of 25 October 2021, the Rennes Court of Appeal overturned the first instance decision on the ground that the legal representatives of the children, namely their biological parents, had not given their consent to the adoption.

Article 370-3 of the French Civil Code reads

The requirements for an adoption are governed by the national law of the adoptive parent or, in case of adoption by two spouses, by the law which governs the effects of their union. An adoption however may not be declared when it is prohibited by the national laws of both spouses.
Adoption of a foreign minor may not be declared when his personal law prohibits such an institution, unless the minor was born and resides usually in France.
Whatever the applicable law may be, adoption requires the consent of the legal representative of the child. The consent must be free, obtained without any compensation, subsequent to the birth of the child and informed as to the consequences of adoption, especially when it is given for the purpose of a plenary adoption, as to the full and irrevocable character of the breaking off of the pre-existing kinship bond.

According to the Court of Appeal, the requirement contained in Article 370-3 of the French Civil Code that they give their free and informed consent, notably regarding the irrevocability of adoption since the pre-existing bond of filiation is dissolved by a full adoption (“adoption plénière”), is a substantive provision of private international law which must be applied whatever the law applicable to the adoption may be and an essential principle of the French law of adoption. Hence the court concluded that the English decisions were not in conformity with French international public policy and should not be enforced, as their enforcement would deprive the French international public policy of its substance.

Supreme Court

The issue was thus to determine whether Article 370-3 of the French Civil Code, which requires that the legal representative of the child give their free and informed consent to the adoption of the child, can be opposed to the enforcement of a foreign adoption judgment if such consent was not obtained.

By a judgment of 11 May 2023, the French Supreme Court overruled the decision of the Court of Appeal on the ground that Article 370-3 of the French Civil Code may not be invoked against a foreign adoption judgment to prevent its exequatur.

In other words, the fact that the children’s legal representatives did not give their consent to the adoption ordered by a foreign judgment cannot be invoked against the enforcement of this judgment. This judgment confirms the already established solution according to which the violation of the requirement that the free and informed consent of the child’s legal representative is necessary for the adoption to be ordered pursuant to Article 370-3 of the French Civil Code cannot amount to a ground of refusal of enforcement of the foreign adoption judgment. The French Supreme Court had indeed ruled so in a judgment of 7 December 2016 about an Ivorian judgment. Article 370-3 only applies in French adoption proceedings.

The Japanese Institute for International Arbitration Research and Training (JIIART) will be holding an online seminar investigating use of alternative dispute resolution mechanisms in insolvency this Saturday 21 October 2023 at 14:00-16:00 Japan Standard Time. The event is free to attend but registration is required. You may register here. Details of the programme and speakers can be found in the event poster.

US Supreme Court Fellowship applications open Fellows conduct independent research and work with one of four offices – the Office of the Counselor to the Chief Justice, the Administrative Office, the Sentencing Commission, and the Federal Judicial Center (the education and research arm of the US federal judiciary).

Applications are due 17 November 2023.  More information is found below. https://www.supremecourt.gov/fellows/apply.aspx

ACICA Announces First Scholarship Program from Education Fund Established following ICCA Congress

The Australian Centre for International Commercial Arbitration (ACICA) has just announced a new scholarship program supported by the Education Fund Established following the ICCA Congress in Sydney in 2018.  The program includes two biennial scholarships to legal practitioners who are admitted in South Pacific Island jurisdictions. Applications will open in 2024, and recipients will be: “- awarded the opportunity to attend AAW including the ACICA & Ciarb Australia International Arbitration Conference, the lead event of AAW; – supported by the ACICA Secretariat to obtain an understanding of ACICA’s work; – offered the opportunity to be a part of an ADR practitioner network that ACICA seeks to encourage in the South Pacific; and – offered the opportunity to learn more about and participate in ICCA activities directed at aspiring arbitration practitioners, such as the Young ICCA mentoring program, the ICCA Inclusion Fund and the Johnny Veeder Fellowship Program. provided with information or inclusion in relevant ICCA programs.” For more, see  https://protect-au.mimecast.com/s/_yjWCBNqjlCDXpGQoFkYzxS?domain=acica.org.au or https://protect-au.mimecast.com/s/2MiXCANpgjCZKLQyYupsjoq?domain=acica.org.au

 

On Tuesday, November 7, 2023, the Hamburg Max Planck Institute will host its 38th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Christine Budzikiewicz (Phillips-Universität Marburg) will speak, in German, about

The Proposal for the Creation of a European Certificate of Parenthood

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Richard de la tour AG opined last Thursday in C‑566/22 Inkreal aka Inkreal s. r.  v Dúha reality s. r. o..

At issue is whether the sole use of international choice of court suffices to escalate a purely internal case to the ‘international’ level, hence within the reach of the Brussels Ia Regulation. The AG opined it does not. I don’t think he is right and I suspect the CJEU will not follow him.

FD, resident in Slovakia, as the assignor, and Dúha reality s. r. o., a company domiciled in Slovakia, as the assignee, concluded two loan agreements on 29 June 2016 and 11 March 2017 respectively. By means of a voluntary assignment agreement dated 8 December 2021, FD assigned the claims arising from those loan agreements to Inkreal, a company domiciled in Slovakia. In each of those agreements, the parties agreed that ‘any ambiguities or disputes arising from the agreement and in connection therewith shall be first resolved by negotiation aimed at reaching a solution acceptable for both parties. If the parties are unable to settle such a dispute, the dispute shall be settled by a court of the Czech Republic having substantive and territorial jurisdiction, in line with the [Code of Civil Procedure], as amended’. Following non-payment, Inkreal brought an action before the Czech courts, in application of the choice of court agreement.

(31) onwards the AG sides with that part of scholarship (most of the authors he refers to wrote in French or German, just a few in English and he seems to only cite Mankowski as holding opposite views; I am not saying that French or German scholarship ought not to be cited, far from it, it ought to much more frequently in all possible EU languages; yet there is more scholarship on the issue both by English scholars and by others writing in English) and national case-law which argues against Article 25 BIa catching such choice of court, alleging lack of ‘international’ element.

He develops five main reasons (see the Opinion for more detail) with often only one source for each.

1. (32).  The mere will of the parties in a purely internal situation must not suffice: existence of an international element has to be established according to “objective criteria”. I for one do not understand how party autonomy is not an “objective criterion”.
2. (33) ff Brussels Ia cannot have the effect of eliminating any distinction between the national and international rules of jurisdiction governed by EU law.  Four arguments to the contrary of a textual or teleological nature based on A25 BIa must in the AG’s view be dismissed. First, that non-EU domiciled parties can make valid choice of law for an EU court in his view is of no value; Second, the independence of the will of the parties cannot enables parties to “call into question the scope of that regulation, which is limited to international and not purely internal situations.” ( a clear circular argument);  Third, A25’s new lex causae rule for substantive validity of choice of court cannot rescue choice of court which does not initially engage with a ‘international’ situation (again circular); Fourth, the clear movement from Brussels I onwards towards supporting choice of court does not justify authorising the parties to derogate from national rules on jurisdiction without any limit or connecting factor. 
3. (38) The AG cites CJEU Owusu, Lindner and IRnova as confirming his view that “objective criteria” are required to support an international element (Owusu and IRnova) or the foreign nationality of the defendant (Lindner).
4. (40 ff) Rome I cannot be used as a benchmark, both because purely internal situations in Rome I remain subject to mandatory national provisions (see of course VinylsItalia) and because Rome I’s DNA is party autonomy which Brussels Ia’s Article 25 it is suggested is not. (Had he not lost me already, the AG would certainly have lost me here). The AG also refers in support to the 2005 Hague Choice of Court Convention and recitals in Council Decision 2014/887 (making the EU accede to that Convention and referring to links between both and one or two Hague anchors in Brussels Ia; but nowhere near the symmetry the AG suggests), opining that A1(2) Hague Convention somehow needs to be extended to Brussels Ia: that Article reads “a case is international unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State.” Extending A1(2) Hague 2005 to Brussels Ia in my view is a massive stretch of statutory construction.
5. Finally (43) the AG somewhat backtracks and suggests factors testifying to an international element “should be assessed by the court seised on a case-by-case basis in a flexible manner or according to a broad conception.”

Finally the AG suggests (45 ff) that the CJEU should advice the referring court and ‘practice’ in general on the A25 conflit (viz the ‘international element’) mobile issue. When must the international nature of the situation be assessed: when the jurisdiction agreement is concluded or when the designated court is seised by the parties? Here he emphasises the contractual nature of the determination of jurisdiction (in direct contrast with his views above) and legal certainty rather than foreseeability, and suggests the international nature be assessed at the stage when the choice of court clause is agreed, not when the court is seised. That in my view undermines the core forum shopping intention of both Article 25 and Article 26 (voluntary appearance).

(49) the AG oddly backtracks again on this issue by suggesting that “it might be accepted that, in an internal situation with a prospect of becoming international, the parties [may] agree, when concluding their agreement, to designate a court of a Member State in sufficiently precise terms which express their intention  and provide for the exclusive jurisdiction of national courts where there is doubt as to the existence of a criterion requiring an international element.”  Rather than increasing legal certainty, that is bound to upend it IMHO.

The CJEU of course is not likely to entertain this last part of the Opinion.

In general, I believe it will have a more generous view of party autonomy and an eye on the interests of the European Judicial Area (per prof Dickinson), perhaps also as suggested by Matthew Hoyle, referring to Brussels Ia’s corrective mechanisms both for protected categories and ordre public (Article 45 BIa).

Geert. EU Private International Law. 4th ed. 2024, para 2.22 ff. https://twitter.com/GAVClaw/status/1713835285119648124