Droit international général

I discuss the background to Barings (UK) Ltd & Ors v Galapagos SA [2022] EWHC 1633 (Ch) here. At the end of August 2019 an opening of insolvency proceedings was requested by various Barings companies and Goldman Sachs, in respect of the Respondent, Galapagos S.A. – GSA.

While this request was pending before the English courts, a group of high yield noteholders (including Signal, the main opponent in the English proceedings) procured the replacement of GSA’s English directors with a German director, and the new German director and two creditors brought separate ex parte applications before the Düsseldorf Amtsgericht (District Court) for the opening of insolvency proceedings there. Following the opening of insolvency proceedings by the Düsseldorf court, the English proceedings were stayed. The German proceedings then led to a preliminary reference to the CJEU which resulted in a judgment on 24 March 2022, the judgment I discuss in my previous post.

[12] ff Bacon J summarises the procedural tussle (including the, I believe unreported August 2019 Norris J stay: [2019] EWHC 2355 (Ch)). Justice Norris had stayed the English proceedings believing inter alia that the German courts might dismiss the German proceedings once they had been properly told of the English action.

The dictum in C-723/20 was

Article 3(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the court of a Member State with which a request to open main insolvency proceedings has been lodged retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is moved to another Member State after that request has been lodged, but before that court has delivered a decision on it. Consequently, in so far as that regulation is still applicable to that request, the court of another Member State with which another request is lodged subsequently for the same purpose cannot, in principle, declare that it has jurisdiction to open main insolvency proceedings until the first court has delivered its decision and declined jurisdiction.

 

The reference to ‘in so far as that regulation is still applicable’ refers to the Brexit element to the case which surprisingly perhaps was not included in the dictum: COMI presumptions ordinarily serve to protect the first court seized’ privilege to find, or reject, COMI in its jurisdiction however that privilege no longer applies vis-a-vis UK courts post Brexit.

As I note in my earlier review, the CJEU wrongly decided not to answer the German court’s question

Is Article 3(1) of [Regulation 2015/848] to be interpreted as meaning that:

(a)      the courts of the Member State within the territory of which the centre of the debtor’s main interests is situated at the time when the debtor lodges the request to have insolvency proceedings opened retain international jurisdiction to open those proceedings if the debtor moves the centre of its main interests to the territory of another Member State after lodging the request but before the decision opening insolvency proceedings is delivered, and

(b)      such continuing international jurisdiction of the courts of one Member State excludes the jurisdiction of the courts of another Member State in respect of further requests to have the main insolvency proceedings opened received by a court of that other Member State after the debtor has moved its centre of main interests to that other Member State?’

Neither, possibly because the question was not so asked by the referring court, does it entertain the issue of ‘permanency’ required to move COMI to another state (see my previous post for detail).

Applicants in the current case and Bidco say that the effect of the GalapagosCJEU judgment is that GSA’s winding up can and should now proceed in E&W. Signal, however, contends that the English insolvency proceedings should remain stayed or should be dismissed.

Of relevance in that assessment is Article 67(3) (c) withdrawal agreement, which reads

In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following provisions shall apply as follows:…

Regulation (EU) 2015/848 of the European Parliament and of the Council shall apply to insolvency proceedings, and actions referred to in Article 6(1) of that Regulation, provided that the main proceedings were opened before the end of the transition period;

The question in my view is not ‘are the German insolvency proceedings to be regarded as the “main proceedings” within the meaning of Article 3 of the Recast EIR?’ which is the course which the judge seems to follow. Rather, whether either the German or the English insolvency proceedings were to be regarded as main proceedings.

In either case, in my view, main proceedings have been opened and the EU EIR continues to apply as acquired EU law.

[21] Signal’s position is that unless and until the German courts have given effect to CJEU Galapagos by setting aside or otherwise the Düsseldorf insolvency proceedings, the German insolvency proceedings remain the “main proceedings” for the purposes of the Recast EIR. Accordingly, under A67(3) WA the Recast EIR remains applicable and the German proceedings have to be recognised by the English court, precluding the making of a winding up order. If that is wrong, and the Recast EIR does not apply, Signal argue that GSA’s COMI is not in England, such that the UK IR (the retained Insolvency Regulation) does not apply, leaving s. 221 of the relevant UK law as the only jurisdictional basis for a winding up order. In addition, whether under the UK IR or s. 221, Signal contends that the circumstances are such that the court should not exercise its discretion to make the order.

The rather important questions are therefore summarised by Bacon J [23] as

i) The first issue is whether the Recast EIR remains applicable to these proceedings, as Signal contends. That in turn depends on whether the German proceedings are to be characterised as “main proceedings” for the purposes of Article 67(3)(c) of the Withdrawal Agreement. – as I note above, that issue is wrongly formulated.

ii) If the German proceedings are not “main proceedings”, such that the Recast EIR no longer governs the question of jurisdiction of the UK courts in the present case, the next question is whether there is jurisdiction to make a winding up order under the UK IR on the basis that GSA’s COMI is in England. – again see my own caveat above.

iii) The final issue is whether the court should exercise its discretion to make a winding up order under either the UK IR if that is applicable, or alternatively under s. 221 of the Insolvency Act 1986.

[48] the judge has the interim conclusion that up to and until 31 December 2020, the combined effect of the pending application before the High Court and the Recast EIR was to prohibit the German courts from declaring jurisdiction to open main insolvency proceedings. After that date, however, they could quite validly do so, if GSA’s COMI was by then situated in German territory.

I am not convinced that a mere request for opening of proceedings equates opening of these proceedings, and I am not convinced that the fall-back finding of COMI in England [83] ff, applying the Swissport ([2020] EWHC 3556 (Ch), unreported) summary of criteria, is solid: it is exactly on this point that the CJEU’s silence on the issue of ‘permanency’ is frustrating.

The judge concludes that a winding up order in respect of GSA be made however I think her analysis is incorrect and I assume permission to appeal must have been sought.

Geert.

English court concludes, not uncontroversially, that it has jurisdiction to wind-up following unclear CJEU Galapagos, discussed here https://t.co/uCmHjGT0tb

Barings (UK) Ltd & Ors v Galapagos SA [2022] EWHC 1633 (Ch)https://t.co/DMIbLfgxMH

— Geert Van Calster (@GAVClaw) June 30, 2022

The Singapore-based Asian Business Law Institute (ABLI) is organising a second joint webinar with the Permanent Bureau of the Hague Conference on Private International Law (HCCH) on 27 July.

Titled Cross-border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions, the webinar will take place on Wednesday 27 July between 3 to 6pm (Singapore time), and will comprise two sessions to take a holistic look at the Choice of Court and Judgments Conventions. Attendees have the option of attending one or both sessions.

Invited speakers include Sara Chisholm-Batten (Partner, Michelmores LLP), the Honourable Justice David Goddard (Court of Appeal of New Zealand), Justice Anselmo Reyes (International Judge, Singapore International Commercial Court), Nish Shetty (Partner, Clifford Chance LLP) and Dr Ning Zhao (Senior Legal Officer, HCCH).

For more information or to register, see here. Queries about the webinar can be directed to Catherine of ABLI at info@abli.asia.

The region is a hotbed for international commercial litigation, as readers of the blog will know, and the event is very timely.

Geert.

Stefania Bariatti (University of Milan), Ilaria Viarengo (University of Milan) and Francesca C. Villata (University of Milan) edited a book titled EU Cross-Border Succession Law with Edward Elgar Publishing, part of the Elgar European Law and Practice series.

The book provides an overall assessment of EU cross-border succession law. It consists of seven parts dealing with: the scope of application of the EU Succession Regulation; the determination of the applicable law under the EU Succession Regulation; the determination of the jurisdiction under the EU Succession Regulation; the recognition and enforcement of judgments and other instruments under the EU Succession Regulation; the European certificate of succession; cross-border successions and taxation; the impact of the EU Succession Regulation on the national laws on cross-border succession.

Contributors include Stefania Bariatti, Paul Beaumont, Alegría Borrás, Isidoro Calvo Vidal, Zeno Crespi Reghizzi, Stefano Dominelli, Andrew Godfrey, Elise Goossens, Michael Graham, Jayne Holliday, Peter Kindler, Michael Kränzle, Richard Frimston, Luigi Fumagalli, Carlo Alberto Marcoz, Cristina M. Mariottini, Daniele Muritano, Cyril Nourissat, Raul-Angelo Papotti, David Paulus, Giulio Peroni, Francesco Pesce, Lorenzo Prats Albentosa, Ilaria Queirolo, Anna Reis, Gian Paolo Romano, Giulia Vallar, Sonia Velasco, Ilaria Viarengo, Francesca C. Villata.

For further information, see here.

Due to the summer holiday, July 2022 will be a brief month at the Court in terms of delivery of judgments and opinions and the holding of hearings. Nevertheless, until then we are invited to attend, on Thursday 7th, the hearing in C- 639/21 Geos et Geos International Consulting, a case referred by the Cour de cassation (France), with these questions on the Brussels I bis Regulation:

1. Are Article 4(1) and Article 20(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that, where it is claimed that a company domiciled in a Member State, and being sued by an employee before the courts of that State, is the joint employer of that employee, who was engaged by another company, that court is not required to assess at the outset whether the employee is jointly employed by those two companies in order to determine whether it has jurisdiction to rule on the claims made against them?
2. Are those articles to be interpreted as meaning that, in such a case, the autonomy of the special rules of jurisdiction over individual contracts of employment does not preclude the application of the general rule that jurisdiction lies with the courts of the Member State in which the defendant is domiciled, set out in Article 4(1) of Regulation No 1215/2012?

The lawsuit at the national level was filed by PB, a former employee of the company Geos International Consulting, established in London, with the conseil de prud’hommes de Montpellier. The core of the matter is the payment of various sums in relation to PB’s dismissal. Alleging a situation of co-employment, PB is seeking to obtain joint and several judgments against the said company and its parent company, Geos, whose head office is located in Puteaux (France). While the conseil de prud’hommes concluded that the French courts had jurisdiction, the Montpellier Court of Appeal arrived at the opposite solution on the basis of Article 21(1) of Regulation No 1215/2012. On appeal, the Court of Cassation is asking about the interpretation of Article 4(1) and Article 20(1) of Regulation No 1215/2012.

The case has been assigned to the 2nd chamber (judges S. Prechal, J. Passer, F. Biltgen, N. Wahl, and L. Arastey Sahún as reporting judge). It will benefit from an opinion by AG N. Emiliou.

On the same day, the decision on C-7/21 LKW WALTER will be handed down. The preliminary reference comes from the Bezirksgericht Bleiburg (Austria). I reported on the questions here, also announcing the opinion by AG P. Pikämae to be published on March 10, 2022.  There is no English translation so far of his proposal to the Court. An interim one could be:

1. Article 8, sections 1 and 3, of Regulation (EC) No. 1393/2007 (…), in relation to article 47 of the Charter of Fundamental Rights of the Union European Union, must be interpreted in the sense that it does not oppose a national regulation of the sentencing State according to which the term to file an appeal against a resolution materialized in a judicial document notified or transferred in accordance with Regulation (CE) n º 1393/2007 begins to run from the notification or transfer of the document in question, and not only after the expiration of the period of one week, provided for in section 1 of said article, to refuse to accept said document.
2. Article 45, section 1, letter b), and article 46 of Regulation (EU) No. 1215/2012 (…), in relation to article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted in the sense that the recognition and enforcement of a decision that has not been issued in the context of an adversarial procedure must be denied, if the appeal against such decision must be drawn up in a language other than the official language of the Member State in which the defendant resides or, if there are several official languages ​​in that Member State, other than the official language or one of the official languages ​​of the place where he resides, and, according to the law of the Member State in which the decision was issued, the non-extendable period for lodging the appeal is only eight calendar days.
3.  Article 18 TFEU must be interpreted as not applying to a situation in which the addressee of a judicial document has waived his right to refuse to accept service of said document in accordance with Article 8, section 1, of Regulation (EC) No. 1393/2007.

The judgment will be delivered by the 4th chamber (judges C. Lycourgos, S. Rodin, J.C. Bonichot, L.S. Rossi, with O. Spineanu-Matei as reporting judge)

On Thursday 14th, the same chamber, this time with judge Rossi reporting, will deliver the judgment on C-572/21, CC. The request comes from the Högsta domstolen (Sweden). It addresses the interpretation of Articles 8 and 61 of the Brussels II bis Regulation:

Does the court of a Member State retain jurisdiction under Article 8(1) of the Brussels II Regulation if the child concerned by the case changes his or her habitual residence during the proceedings from a Member State to a third country which is a party to the 1996 Hague Convention (see Article 61 of the regulation)?

The dispute on the merits concerns a couple – CC and VO-, and its son M, who was born in 2011. CC has had sole custody of M since his birth. M lived in Sweden until October 2019, when he began to attend a boarding school in Russia. Two months later, VO brought an action against CC claiming that he should be awarded sole custody of M. In the alternative, VO requested that he and CC should have joint custody of M and that their son should be permanently resident with him. CC contested the claims. Principally, she claimed on her own behalf that she should continue to have sole custody of M and, in the alternative, that she and VO should have joint custody of the son. In addition, CC claimed that the tingsrätten (District Court, Sweden) should dismiss VO’s action as inadmissible in so far as it concerned custody and residence. In support of the claim that the action was inadmissible, she argued that M was habitually resident in Russia and that the Swedish courts consequently lacked jurisdiction to rule on questions relating to parental responsibility over M. According to CC, M had acquired habitual residence in Russia in October 2019. She claims that, even if he had not acquired habitual residence then, M had, subsequently acquired habitual residence there. VO contested the claim raised by CC that the action was inadmissible. He argued that M was still habitually resident in Sweden and that, in any event, he was habitually resident in Sweden when the action was brought.

Finally, on the same day the Court will publish AG M. Spuznar’s opinion on C-354/21, Registrų centras, on a request sent by the Lietuvos vyriausiasis administracinis teismas (Lithuania) relating to Regulation 650/2012. The facts of the case are summarized here. The question reads:

Must point (l) of Article 1(2) and Article 69(5) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession be interpreted as not precluding legal rules of the Member State in which the immovable property is situated under which the rights of ownership can be recorded in the Real Property Register on the basis of a European Certificate of Succession only in the case where all of the details necessary for registration are set out in that European Certificate of Succession?

The 5th chamber (judges E. Regan, I. Jarukaitis, D. Gratsias, Z. Csehi, and M. Ilešič reporting) will take care of the interpretation.

On 23 June 2022, the Lisbon Guidelines on Privacy, drawn up by the ILA Committee on the Protection of Privacy in Private International and Procedural Law, were formally endorsed by the International Law Association at the 80th ILA Biennial Conference, hosted in Lisbon (Portugal).

The Committee was established in 2013 further to the proposal of Prof. Dr. Dres. h.c. Burkhard Hess (Director at the Max Planck Institute Luxembourg) to create a forum on the protection of privacy in the context of private international and procedural law. Prof. Dr. Dres. h.c. Burkhard Hess chaired the Committee, and Prof. Dr. Jan von Hein (Albert-Ludwigs-Universität Freiburg) and Dr. Cristina M. Mariottini (Max Planck Institute Luxembourg) were the co-rapporteurs.

In accordance with the mandate conferred by the International Law Association, the Committee – which comprised experts from Australia, Austria, Belgium, Brazil, Croatia, France, Germany, Italy, Japan, the Republic of Korea, Luxembourg, Portugal, Spain, the United Kingdom, and the United States of America – focussed on the promotion of international co-operation and the contribution to predictability on issues of jurisdiction, applicable law, and circulation of judgments in privacy (including defamation) matters, taking into account, i.a., questions of fundamental rights. In this framework, the Committee expanded its analysis also to the questions arising from the interface of privacy with personal data protection.

The Guidelines are premised on two fundamental principles: notably, (i) foreseeability of jurisdiction, and (ii) parallelism between jurisdiction and applicable law. They are accompanied by a detailed Article-by-Article Commentary, which provides a comprehensive analysis of the Guidelines, complemented by examples, including illustrations taken from copious national, regional and supranational jurisprudence.

Overall, the Committee took note of the fact that, in spite of the differences between legal systems, constitutional values play a major role in the legal treatment of privacy. In particular, substantial layers of public law enter into the equation of private enforcement of privacy. This notion and the limits that stem from the impact that such layers of public law forcibly have on claims must be taken into due consideration with respect to the jurisdiction as well as to the law applicable to these claims and bear a remarkable impact on the subsequent eligibility of privacy judgments for circulation.

Against this background, the Committee proceeded to design a system based, in essence and subject to substantiated exceptions, on the foreseeability of jurisdiction and a principled parallelism between jurisdiction and applicable law. The latter approach has the advantage of saving time and costs, but must be balanced against the danger of forum shopping.  In so far, the approach of the Guidelines (Article 7) distinguishes between jurisdiction based on the defendant’s conduct (Article 3) and jurisdiction localized at the defendant’s habitual residence (Article 4). While a defendant’s conduct that is significant for establishing jurisdiction will usually also indicate a sufficiently close connection for choice-of-law purposes, the general jurisdiction at the defendant’s habitual residence is rather neutral in this regard and thus complemented by a specific conflicts rule. Moreover, a necessary degree of flexibility is introduced by providing for party autonomy (Article 9) and an escape clause (Article 8). In order to take into account that personality rights and privacy protection are rooted in constitutional values, Article 11 contains a provision on public policy and overriding mandatory rules.

The Committee was cognizant that, to date, the recognition and enforcement of a foreign judgment on privacy rights is a matter primarily governed by national law.  In response to this status quo, the Guidelines design a system for the recognition and enforcement of foreign privacy judgments that pursues consistency and continuity (esp. Article 12) with the rules on jurisdiction while also taking into account the characteristic objections to and obstacles that in many instances preclude the circulation of judgments that fall in the scope of the Guidelines (Article 13).

The adoption of the Guidelines marks the completion of the Committee’s mandate.

 

Written by Alyssa S. King and Pamela K. Bookman

International commercial courts—domestic courts, chambers, and divisions dedicated to commercial or international commercial disputes such as the Netherlands Commercial Court and the never-implemented Brussels International Business Court—are the topic of much discussion these days. The NCC is a division of the Dutch courts with Dutch judges. The BIBC proposal, however, envisioned judges who were mostly “part-timers” who may include specialists from outside Belgium. While the BIBC experiment did not pass Parliament, other commercial courts around the world have proliferated, and some hire judges from outside their jurisdictions.

In a new paper forthcoming in the American Journal of International Law, we set out to determine how many members of the Standing International Forum of Commercial Courts hire such “traveling judges,” who they are, why they are hired, and why they serve.

Based on new empirical data and interviews with over 25 judges and court personnel, we find that traveling judges are found on commercially focused courts around the world. We identified nine jurisdictions with such courts, in Hong Kong, Singapore, Dubai, Abu Dhabi, Qatar, Kazakhstan, and the Caribbean (the Cayman Islands and the BVI), and The Gambia. These courts are designed to accommodate foreign litigants and transnational litigation—and inevitably, conflicts of laws.

One may assume that these judges largely resemble arbitrators (as was likely intended for the BIBC). But whereas studies  show arbitrators are mostly white, male lawyers from “developed” countries that may be based in the common law or civil law tradition, traveling judges are even more likely to be white and male, vastly more likely to have prior judicial experience and common-law legal training, and are overwhelmingly from the UK and its former dominion colonies. In the subset of commercially focused courts in our study, just over half of the traveling judges were from England and Wales specifically. Nearly two-thirds had at least one law degree from a UK university.

Below is a chart showing the home jurisdiction of the judges in our study.  This includes traveling judges sitting on the BVI commercial division, Hong Kong Court of Final Appeal, Dubai International Financial Centre (DIFC) Courts, Qatar International Court, Cayman Islands Financial Services Division, Singapore International Commercial Court, Abu Dhabi Global Market (ADGM) Courts, and Astana International Financial Centre (AIFC) Courts as of June 2021.

A look at traveling judges’ backgrounds suggests that traveling judges might be a phenomenon limited to common-law countries, but only half of hiring jurisdictions are in common law states. Almost all hiring jurisdictions, however, are common law jurisdictions. Moreover, almost all are or aspire to be market-dominant small jurisdictions (MDSJ). For example, the DIFC Courts are located in a common law jurisdiction within a non-common-law state that has been identified as a MDSJ.

Traveling judges are a phenomenon rooted not only in the rise of international commercial arbitration, but also in the history of the British colonial judicial service. Today, traveling judges may be said to bring their expertise and knowledge of best practices in international commercial dispute resolution. But traveling judges also offer hiring jurisdictions a method of transplanting well-respected courts, like London’s commercial court, on their shores. In doing so, judges reveal these jurisdictions’ efforts to harness business preferences for English common law into their domestic court systems.  They also provide further opportunities for convergence on global civil procedure norms, or at least common law ones. Many courts have adopted some version of the English Civil Procedure Rules, looking for something international lawyers find familiar and reliable. Judges also report learning from each other’s approaches.

Our article suggests that traveling judges are a nearly entirely common law phenomenon—only a handful of judges were from mixed jurisdictions and only one was a civil law judge. Common law courts may be especially amenable to traveling judges. In contrast to judges in continental civil law systems, common law judges are not career bureaucrats. They come to the judiciary late, usually after having built successful litigation practices. Moreover, the sociologist, and judge, Antoine Garapon observes that common law style-judging can be more personalized, with more room for individual authority rather than that of the office. All these differences are a matter of degree, with exceptions that come readily to mind. Still, as a result, common law judges are more likely have reputations independent of the office they serve. That reputation, in turn, is valuable to hiring governments eager to demonstrate their commercial law bona fides.

These efforts to harness English common law contrast with the efforts to build international commercial courts in the Netherlands or Belgium. The NCC advertises itself as an English-language court built on the foundation of the Dutch judiciary’s strong reputation. As such, it has no need for foreign judges or common law experience. The BIBC likely also would not have relied as heavily on retired English judges, both because its designers envisioned more lay adjudicators (not retired judges) and likely a greater civil law influence. In that sense, its roster of judges might have more closely resembled that of the new international commercial court in Bahrain.

The Dutch, Belgian, and Bahraini examples do share something else in common with the network of courts profiled in Traveling Judges, however. Despite their apparent similarities to arbitration, these courts are domestic courts, and they exist in significantly different political environments. The differences between Dutch and Belgian national politics influenced the NCC’s success in being established and the BIBC’s failure. In Belgium, for instance, the BIBC was maligned as a “caviar court” for foreign companies and the Belgian Parliament ultimately decided against the proposal. As one of us recounts in a related article on arbitration-court hybrids, similar arguments were raised in the Dutch Parliament, but they did not win the day. Several courts in our study, such as those established in the special economic zones in the UAE, did not face such constraints. But they may face others, such as how local courts will recognize and cooperate with a new court operating according to a different legal system and in a different language. The new court in Bahrain overcame local obstacles to its establishment, but it may face yet another set of political constraints and pressures as it proceeds to hear its first cases. Wherever traveling judges travel, local politics will affect both hiring jurisdictions’ ability to achieve their goals and traveling judges’ ability to judge in the way they are accustomed.

 

This post was written by Paul Lorenz Eichmüller, University of Vienna.

Austrian civil procedure law contains a provision that requires foreign nationals bringing a claim in Austrian courts to provide security for the legal costs incurred by the defendant in case the claim should not be successful. However, as this would clearly violate the non-discrimination principle of what is today Article 18 of the TFEU, the CJEU considered a similar provision under German Law inapplicable as early as 1997 (C-323/95, Hayes/Kronenberger GmbH). Now that the UK is not a Member State of the EU anymore, Article 18 TFEU can no longer be applied in that respect. After this issue has already arisen in Germany (which has also been discussed on this blog), there has also been another case in Austria – yet, with a different outcome.

The Duty to Provide Security for Costs

Pursuant to § 57 of the Austrian Civil Procedure Code (ACPC), any foreign claimant is required to provide security for the costs in civil proceedings brought before Austrian courts if the defendant asks for the payment of such a security. While these rules have become irrelevant within Europe due to EU law, they hit with full force when defendants from third countries are concerned – at least as long as there is no international treaty prohibiting security deposits for costs.

However, in accordance with the ratio behind this rule – which is to prevent that the defendant wins the case in Austria but, due to a lack of enforceability, cannot even recover their own legal costs – there are further exceptions in which a foreign claimant is not obliged to provide security for costs contained in para 2 of the provision. These are: the claimant’s habitual residence is in Austria, the Austrian (cost) decision is enforceable in the state of the claimant’s habitual residence, or the claimant has (sufficient) immovable property in Austria to cover the costs.

International Treaties Prohibiting Security Deposits

There is no international treaty prescribing that a security deposit may not be required that was applicable in the present case. One might in this regard think e.g., of the Hague Convention on Civil Procedure, which, however, the UK has never signed. For those remembering the previous German decision, the European Convention on Establishment might come to mind. After all, the application of its Article 9 – prohibiting cost deposits from member state nationals – only failed because the rules of the convention only apply to natural and not to legal persons. As the Austrian case concerned a natural person as a claimant, this could have seemed like a solution – however, Austria has only signed, but not ratified said convention and therefore, its application also fails.

Finally, there is also a bilateral Austro-British Convention regarding proceedings in Civil and Commercial Matters from 1931, Article 11 of which prescribes that British citizens resident in Austria “shall not be compelled to give security for costs in any case where a subject of [Austria] would not be so compelled”. As the claimant did not reside in Austria, this convention was inapplicable in the present case as well.

Recognition of the Austrian (Cost) Decision as a Way Out

As there is no prohibition on security deposits in international treaties, the issue was whether any of the exceptions of § 57 para 2 ACPC apply. As the other exceptions were clearly not applicable, the only question that remained was whether there is an international treaty providing for the recognition of a possible Austrian cost decision in the UK (the claimant’s habitual residence).

With the UK having left the EU, the core legal acts on the recognition and enforcement of Austrian judgments in the UK, namely the Brussels Ibis Regulation and the Lugano Convention, are no longer applicable. Similarly, the UK government does not consider itself bound by the Brussels Convention anymore (there has been considerable discussion about this matter on this blog). It might therefore seem that there is no legal basis that would guarantee the enforcement of an Austrian cost award in the UK.

However, as rightly identified by the Austrian Supreme Court, the parties had concluded an exclusive choice-of-court agreement in favour of the Austrian courts, which would make a judgment (including its cost award) enforceable by the means of the Hague Choice of Court Convention. While the UK is no longer bound by the Convention by virtue of being an EU Member State, it acceded to the Convention on 28 September 2020 in its own right, providing that the convention would apply without interruption (see here).

As a judgment with a cost award would be enforceable in the UK due to the applicability of the Hague Choice of Court Convention, there was thus no need to demand a security deposit for the costs from the British claimant. While the defendant submitted that there was no precedent in the UK on the application of the convention and that it was therefore unsure whether a cost award would be enforced, the Supreme Court considered that there was no indication that UK courts would breach their obligation under public international law. Thus, no security deposit for costs was required.

Conclusion

After many cases seen so far, the case decided by the Austrian Supreme Court shows once more how Brexit has made international litigation in relation to the UK so much more difficult. While the Hague Choice of Court Convention provided for a solution in the case at hand, this will only apply if there is an exclusive choice of court agreement. In all other cases, British claimants not resident in Austria will have to provide a security deposit if they want to bring a claim in Austrian courts – making cross-border litigation again somewhat more tedious. It remains to be seen whether the Hague Judgments Convention will at a later point in time alleviate this problem, but as neither the UK nor the EU have even signed the convention yet, it is still a long way until we will experience any of its effects.

On 1 July 2022, the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance and the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations entered into force for the Republic of Ecuador.

Source: https://www.hcch.net/en/news-archive/details/?varevent=864

On 22 June 2022, the Republic of the Philippines ratified the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, which will enter into force for the Philippines on 1 October 2022.

Source: https://www.hcch.net/en/news-archive/details/?varevent=862

Just a few days have passed since the team of the EAPIL blog welcomed Erik Sinander as a new editor. The time has come, already, for a new welcome post, this time for Martina Mantovani: we are glad to have you onboard, Martina!

Martina, who has authored some guest posts for the blog in the past (see here and here), currently works as a Legal Assistant at the Court of Justice of the European Union and is a PhD Candidate in Private International Law at the University of Paris Panthéon-Assas.

Her first post was out a few minutes ago. It can be found here.

On 19 May 2022, the CJEU rendered an inadmissibility order in case C-722/21, Frontera Capital. The request for a preliminary ruling originated from a Spanish notary, who delivered a European order for payment (EOP) under Regulation 1896/2006. She relied, for that purpose, on the parallel competence vested on Spanish notaries for the delivery of domestic orders for payment (Articles 70-71 of the Spanish law on notaries). The notary in question was subsequently sanctioned by the Dirección General de los Registros y del Notariado for having issued the EOP ultra vires. In her opinion, however, all the conditions set out by Regulation 1896/2006 were satisfied (§ 5 of the inadmissibility order), hence the referral to the CJEU.

While being inadmissible on a number of grounds (i.e., the lack of an actual dispute in the main proceedings and the doubtful characterisation of the referring authority as a ‘court or tribunal’ of a Member State under Article 267 TFUE: cf § 14 and § 16 of the order), this case confirms that the interaction between notaries, theirs competences under domestic law and the EU private international law (EU PIL) remains, to the present days, problematic.

This finding is further evidenced by the number of preliminary questions raised on this issue (nine in total) since 2015, ie the year when Pula Parking and Zulfikarpašić brought the relationship between notaries and EU PIL on the table of the Luxembourg judge for the first time.

Read in conjunction with this past case law, Frontera Capital provides the opportunity for a broader discussion on some recurrent obstacles that hinder the smooth interplay between EU PIL Regulations – particularly the statutory definitions they set out – and national laws, especially in the subject matters where the intervention of legal professionals other than judges is more common at the comparative law level.

Five Years of CJEU Case Law

Cross-border cases are nothing new to European notaries, who are generally well versed in PIL and eager supporters of its further harmonisation by the EU (see, for example, points 3, 4 and 5 of the Proposal of the Notaries of Europe for the Conference on the Future of Europe). The requests for preliminary rulings thus far decided by the CJEU and involving, more or less directly, these professionals can be broken down into three main categories.

In the field of civil and commercial matters, the referring courts in Pula Parking and Zulfikarpašić – concerning, respectively, the Brussels I bis and the EEO Regulation – asked for clarifications regarding the status of Croatian notaries as ‘courts’ for the purposes of those Regulations, in cases where these professionals were acting in the exercise of the powers conferred to them under domestic law with respect to the delivery of executive titles based on ‘trustworthy documents’. A similar question was raised – directly by the seized notary – in the more recent case Frontera Capital. As I argued elsewhere, the choice of the Spanish legislator as concerns the creation of a monitorio notarial was liable to create Pula Parking-alike scenarios. And, in fact, while the Spanish notary just asked if the EOP Regulation was correctly applied in the specific case, her question could be rephrased as concerning its own status as ‘court’ under Article 5 n 3 of the EOP Regulation, given that such characterization would enable a Spanish notary to issue EOPs in compliance with this instrument (as it is the case for Hungarian notaries).

A second group of cases concern the Succession Regulation, but raise similar questions. Cases WB and EE requested, inter alia,  an interpretation of its Article 3(2), thus prompting the ECJ to address both the ‘procedural preconditions’ and the substance of the definition of court set out by that provision, having specific regards to the tasks entrusted to Polish and Lithuanian notaries. More recently, case OKR also raised several questions concerning the interpretation of Regulation 650/2012. Just like Frontera Capital, the case was nonetheless deemed inadmissible because the referral came directly from a (Polish) notary, lacking the requirements set by Article 267 TFEU (as summarized by Dorsch Consult) to qualify as ‘national court or tribunal’ for the purposes of that provision.

A final group of issues, which is beyond the scope of this blogpost, originates from the joined cases C-267/19 and C-323/19, requiring the CJEU to assess again the Croatian legislation on the notarial competence in debt collection based on trustworthy documents. Here, the CJEU rejected the argument whereby the finding in Pula Parking and Zulfikarpašić, that is inapplicability of the EU uniform regimes on recognition and enforcement of judgments to Croatian notarial deeds, coupled by the non inter partes character of the Croatian procedure, could amount to an infringement of the principle of non-discrimination (Article 18 TFEU) and the right to a fair trial (Article 47 of the Charter). Similar arguments were advanced (and rejected) in case C-234/19.

Apart from this last group of cases – that are illustrative of the limited scrutiny the CJEU can exercise on domestic justice reforms – all the above mentioned preliminary rulings call into question the possibility of characterizing notaries as ‘courts’, for the purposes of either Art. 267 TFEU or specific EU PIL instruments (or both).

Notaries as Courts: Recurrent Difficulties

The difficulties thus far encountered in classifying notaries as ‘courts’ stem from the friction between the uniform statutory definitions (if any) of ‘court’ adopted by EU law and the ever-changing legal environment of 27 Member States, who lack a common understanding of the notarial profession (cf, on this point, the Specific Study of the CEPEJ on the Legal Professions: Notaries prepared by the CNUE)

On the one side, in the attempt of unburdening an ailing court system, the procedural laws of Member States tend to be inspired by ‘local’ policy choices, based on a culturally-embedded understanding of the role of each legal profession within the broader justice machinery. On the other side, however, EU law remains largely anchored to a more traditional (and uniform) concept of ‘court’, grounded in the exercise of ‘judicial functions’. For this reason, although notaries are, at present, often called to perform their duties in matters that fall into the scope of application of EU PIL Regulations, they are not, in most cases, entitled to initiate a direct dialogue with the CJEU thorough Art. 267 TFEU, when they harbour doubts as concerns the correct interpretation of their provisions or their own status as ‘courts’ under one of said instruments. Regarding this last issue, the problem seems exacerbated by the regulatory approach adopted by the EU legislator with respect to the statutory definitions of court or tribunal under the different EU PIL Regulations.

The (In)Direct Dialogue with Luxembourg

Cases such as OKR and Frontera Capital prove that notaries may feel the need to establish a direct communication channel with Luxembourg under Art. 267 TFEU when they harbour doubts as to the correct interpretation of a provision of EU PIL. And this not just for the sake of the proper application of EU law, but also to ensure the correct performance of their duties and avoid incurring in professional liability or sanctions. In this respect, however, the stance taken by the CJEU is quite clear and well-established: to be regarded as a ‘court or tribunal’ within the meaning of Article 267 TFEU, ‘it must be determined … whether [the referring body] is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature’ (OKR, § 23).

In OKR, the CJEU deemed that, in the proceedings at stake in that case, the notary was not required to decide a legal dispute (§ 24), insofar as (s)he did not take decision of a judicial nature ‘either when he or she confirms his or her refusal decision or when he or she considers the complaint to be well founded’ (OKR, § 28). Nonetheless, the Court placed a special emphasis put on ‘the specific capacity’ and ‘the particular legal context’ in which the referring authority operates (OKR, § 23), which suggests that the question as to whether a notary could be considered a ‘court or tribunal’ of a Member State for the purposes of Art. 267 TFEU should be answered on a case-by-case basis, having due regard of the specific features of the notarial proceedings at issue.

In any case, it should not be too hastily concluded that the eventual exclusion of notaries from the procedure set out by Art. 267 TFEU is liable to hamper the uniform interpretation of EU law. According to the CJEU, the existence of complaints before courts against notarial decisions ensures, on any view, the effectiveness of the mechanism of the reference for a preliminary ruling and the achievement of its objective (cf. § 33 OKR). And, in fact, this is what happened after the OKR order, where one of the parties appealed the notarial order before a court, who then referred a new request for preliminary ruling to the Luxembourg Court (case C-21/22, pending).

The Plethora of Statutory Definitions of ‘Court’ in EU PIL

The second recurrent issue emerging from the CJEU case law concerns the characterisation of notaries as ‘courts’ under specific instruments of EU PIL. In this regard, the CJEU has explicitly acknowledged that the definitions retained by EU PIL Regulations may be broader than that developed under Art. 267 TFEU (§ 31 OKR). This means, in practice, that a notary could qualify as ‘a court’ for the purposes of EU PIL, without nonetheless be entitled to refer a request for preliminary ruling to the CJEU.

While a comprehensive analysis of the definitions of court set out by EU PIL Regulations would be beyond the scope of this blogpost, this table may be a useful starting point for identifying some very general trends in the drafting techniques used for this purpose.

Firstly, it is worth remarking that there is no ‘one-size-fits-all’ definition of ‘court’. Rather, definitions tend to be context-dependent (as evidenced by the Recitals of the Regulations dealing with family law, successions and insolvency) or even implied (as it was the case under the 1968 Brussels Convention and the Brussels I Regulation). Such definitions tend to be more sophisticated in matters where the intervention of authorities other than courts is more established (eg family and succession law).

Secondly, and relatedly, there is no single approach to the drafting and structuring of the definitions of court. Rather, current definitions make use of at least 5 different drafting techniques, including:

(a) the ad hoc assimilation, by the EU legislator, of specific non-judicial bodies to ‘courts’ in the main body of the Regulation, without nonetheless providing a ‘general’ definition thereof (e.g. Article 3 Reg. Brussels I bis and Article 4(7) of the EEO Regulation);

(b) the ‘open renvoi’ to domestic legal systems, based on sheer functional equivalence (i.e., not accompanied either by a uniform general definition of ‘court’ or by an obligation of notification to the Commission: e.g. Article 62 of the 2007 Lugano Convention and Article 2(2)(1) of the Brussels II ter , which follows in the footsteps of its predecessors: cf § 34 of the Opinion of AG Collins in C-646/20).

(c) the ‘conditional renvoi’ to the designation by Member States, where the domestic appointment of an entity as ‘court’ must be coupled by the notification to the Commission (e.g. Articles 5 n. 3 and 79 of the EPO Regulation);

(d) the establishment of a core-definition, setting out minimum requirements (e.g. the power to ‘take decisions’) but otherwise relying entirely on national laws (e.g. Insolvency Regulations).

(e) the establishment of well-rounded general definitions, complemented by detailed Recitals and accompanied by an obligation of notification to the Commission (most of the instruments dealing with family law and successions).

Thirdly, owing to the variety of drafting techniques used by the EU legislator, these definitions present variable degrees of flexibility and, therefore, a varying aptitude for prompt adaptability to domestic judicial reforms. In fact, under the approach sub a), any change to the scope of the definition of ‘court’, aimed at the inclusion of domestic notaries therein, cannot by attained based on analogical reasoning (see again here) and would probably require a legislative amendment of the main body of the concerned EU Regulation(s). This approach is indisputably more cumbersome than a sheer change to the Annexes (e.g. Art. 2(2) of Regulation 4/2009) or to the lists established by the Commission and made public through the European Judicial Network.

Finally, while the definitions set out in the field of family and succession law appear strikingly homogeneous as regards both their substantive contents and their increasing sophistication, including the explicit acknowledgment of the role played by notaries in those domains, the field of civil and commercial matters stands out of its sectoral inhomogeneity and remarkable methodological fragmentation. Of the 8 EU PIL instruments covering this domain, 3 (Brussels Convention, Brussels I Regulation; EAPO Regulation) are completely silent on the matter of knowing what constitutes ‘a court or tribunal’; 2 (Brussels I bis and the EEO Regulations) follow the approach sub a); 1 (Lugano Convention) adopts the approach sub b); 2 opt for the approach sub c) (the EPO and possibly the Small Claims Regulation). This lack of uniformity may unnecessarily complicate the application of those Regulations in practice.  

Lingering Doubts

In the light of the above, it is not surprising that the characterization of notaries as courts has posed important challenges in many concrete cases.  Nonetheless, the identification of what constitutes ‘a court’ for the purposes of EU PIL should be easy (or, at list easier) in the instruments that set out an obligation of notification to the Commission, called to draw up a list of such authorities that complements the statutory definition eventually established the legislator.

In this respect, the case WB has shed light on the normative value of such lists. Therein, the CJEU held that the notifications to the Commission, and the lists established on that basis, ‘creat[e] a presumption that the national authorities declared [therein] constitute ‘courts’’. Nonetheless, ‘the fact that a national authority has not been mentioned in such a notification cannot, per se, be sufficient for it to be concluded that that authority does not satisfy the conditions set out in Article 3(2) [of the Succession Regulation]’(emphasis added).

It is worth stressing that, in WB, the CJEU’s ruling finds a solid ground in the letter of a Regulation providing for one of the most sophisticate provisions on the meaning of ‘court’ to be found in EU PIL. Art. 3(2) of the Succession Regulation sets out a well-defined general definition, which is not only accompanied by specific and uniform minimum requirements, but also explicitly assimilates notaries to courts when they exercise ‘judicial functions’. These should be understood, in essence, as referring to the ‘exercise of decision making power’, irrespective of the (contentious or non-contentious) nature of the proceedings within which it takes place. Therefore, ‘an authority must be regarded as exercising judicial functions where it may have jurisdiction to hear and determine disputes’, that is to ‘rule on its own motion on possible points of contention between the parties’ (judgment in WB, § 55-56). In turn, this ‘exercise of decision-making power’ is what justifies the requirement of compliance with fundamental procedural principles (Opinion in WB, § 78).

In the post-WB era, the real question remains as to whether, and to what extent, the CJEU’s finding on the normative value of the lists established by the Commission is transposable to other EU PIL instruments, such as the EPO Regulation, where the obligation of notification is not coupled by an explicit statutory definition of ‘court’. Therein, there are no minimum requirementsagainst which the status of a non-judicial authority can be assessed in case it does not feature in the lists established by the Commission or by the concerned Member State. This was indeed the most interesting question raised by Frontera Capital: Article 5 n. 3 of the EPO Regulation extends the status of court to ‘any authority in a Member State with competence regarding’ not only ‘European orders for payment’, but also ‘any other related matters’. Therein, the real issue would have been as to whether a parallel competence regarding domestic orders for payment can be considered a ‘matter related to EOPs’, thus bringing Spanish notaries under the umbrella of the definition under Article 5 n. 3, despite the lack of formal communication to the Commission.

Future Outlooks

What happens if a notary does not fulfil the requirements for a characterisation as ‘court’? Extant CJEU case law, especially the rulings under the Succession Regulation, clarify that, in that case, the notary is not bound by the uniform rules of jurisdiction, and the resulting notarial deed won’t circulate in other Member States as a ‘judgment’. It could, however, circulate in other Member States under the regime for authentic instruments, if such deed corresponds to the uniform definition thereof.

As opposed to the definitions of ‘courts’, the notion of ‘authentic instrument’ profits from a remarkable uniformity across the several EU PIL Regulations, the baseline of these definitions being always the Unibank judgment, rendered by the CJEU under the 1968 Brussels Convention. Civil law notaries are, in most cases, among the authorities empowered to confer the character of ‘authenticity’ (see Recitals 31 of Regulations 2016/1103 and 2016/1104).

The CJEU has therefore readily vested the status of ‘authentic document’ upon a ‘deed of certification of succession, drawn up by a notary at the unanimous request of all the parties to the procedure conducted by the notary’ (WB, § 66, emphasis added) and upon a ‘national certificate of succession’, by which the notary ‘establish[es] the undisputed subjective rights of, and the legally relevant facts relating to, natural and legal persons, [thereby] protect[ing] the legal interests of those persons and of the State’ (EE § 52, emphasis added).

Consent, expressed through the unanimous request of all parties or through the idea of undisputed rights, lies at the core of the notarial competence regarding authentic instruments, just as the notion of dispute is the benchmark against which the ‘exercise of judicial function’ by the notary shall be assessed. While being apparently clear-cut, the distinction between consent and dispute could become remarkably blurred with respect to certain legal assessments entrusted to the notaries, where this professional is called to adjudicate on rights that are only ‘presumptively undisputed’, at the unilateral request of one of the parties. Reference is made, primarily but nor exclusively, to the delivery of orders for payment by the notary based on documentary evidence unilaterally supplied by the creditor, and without the prior hearing of the defendant. In such cases, the distinction between dispute and consent does not provide a definite answer to the question as to whether such order for payments, lacking a prompt challenge by the debtor, could eventually circulate intra-EU as authentic instruments.

The negative answer finds support in another element of the European definition thereof, that is the requirement whereby an authentic instrument shall be ‘formally drawn up’ as such in the Member State of origin. This open renvoi to domestic formalities renders the EU definition of authentic instrument only ‘semi-uniform’, insofar as EU law nowhere explains what it takes for an authentic instrument to be ‘formally drawn up’ as such in the issuing Member State. In one of the few academic works that approach this topic from a PIL perspective, late Professor Fitchen described the ‘basic steps required for the drawing-up of a notarial authentic instrument’ as follows (pp. 28-29):

The notary will first ensure that each party is fully aware of the nature and meaning of the proposed transaction; he will also impartially advise each party upon the available options by which the desired transaction could be accomplished. After this, the notary will draft an appropriate legal document. … Having prepared the document in draft, the notary will then read it aloud to the parties. Assuming each party then indicates that he understands the transaction and that he still wishes to proceed with it, the notary will then invite [the parties] to sign the document. At this stage the document is still a private document. The private document only becomes an authentic instrument/public document once the notary, having declared upon it that he has read it to the parties, that they have expressly approved all their declarations within it, and that they have then signed it ‘before’ him, finally draws it up as an authentic instrument by signing it himself then formally applying his notarial seal to the document as a notary of his civil law legal system.

Evidently, these formal or procedural requirements are strictly linked to, and reinforce, the idea of unanimous consent that underpins authentic instruments and should be seen as an integral part of the uniform definitions established by EU Regulations. It is highly doubtful that such requirements could be deemed satisfied with respect to notarial documents that are, at once, issued at the unilateral request of one of the parties and based on the sheer acquiescence of the party who would suffer the detrimental consequences stemming therefrom. 

Conventions & Instruments

On 4 June 2022, the HCCH 1961 Apostille Convention entered into force for Indonesia. The Convention currently has 122 Contracting Parties. More information is available here.

On 22 June 2022,  the Philippines deposited its instrument of ratification of the HCCH 2007 Child Support Convention. With this ratification, 44 States and the European Union are now bound by the Child Support Convention. It will enter into force for the Philippines on 1 October 2022. More information is available here.

 

Meetings & Events

On 1 and 2 June, the HCCH Regional Office for Latin America and the Caribbean organised a judicial training on the HCCH 1980 Child Abduction Convention in partnership with the Judicial School of Bolivia.

On 23 and 24 June, the HCCH participated in the Conference on Conflicts of Jurisdiction organised by the Journal of Private International Law and the Singapore Management University. More information is available here.

On 30 June and 1 July, the HCCH participated in the Regional Forum “HCCH 2019 Judgments Convention: Prospects for the Western Balkans”, organised by the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) and the Center for International Legal Cooperation. More information is available here.

 

Upcoming Events

The webinar “Cross-border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions”, organised in partnership with the Asian Business Law Institute (ABLI), will be held on 27 July 2022. More information is available here.

The inaugural CODIFI Conference will be held online from 12 to 16 September 2022. CODIFI will examine issues of private international law in the Commercial, Digital, and Financial (CODIFI) sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

On July 14, 2022 an online seminar jointly organized by the Universities of Bologna, Milan and Verona (Italy) will provide a comparative perspective on the recent development of the setting up of specialized courts dealing with international commercial disputes.

All the information in the official poster.

This post was contributed by Fabienne Jault-Seseke, who is Professor at University Paris Saclay (UVSQ), and a member of GEDIP. It is the third of a series of posts on the proposed codification of French PIL (previous posts discussed the issues of renvoi and foreign law).

The French draft code of private international law innovates in several areas. The recognition of marriages celebrated abroad is one of them. The draft code breaks with the choice of law method and relies instead on the recognition method. This is the purpose of Article 45.

It is worded as follows:

Unless the present sub-section provides otherwise, a marriage celebrated in a foreign State in accordance with the law of that State shall be recognised in France, subject to its conformity with international public policy and if it does not result in an evasion of [French] law (fraude).

Where, at the time of the celebration of the marriage, one of the spouses was already in a marriage that has not yet been dissolved, the marriage is not recognised:

– if one of the spouses is of French nationality, even if he or she also has the nationality of another State; or

– if the first marriage was celebrated with a spouse whose national law prohibits it.

However, a spouse who has legitimately believed in the validity of his or her marriage may avail himself or herself in France of the effects attached to the status of spouse, insofar as the effects invoked are compatible with the requirements of international public policy. (my translation)

In the French original:

Si la présente sous-section n’en dispose autrement le mariage célébré dans un État étranger en conformité avec le droit de cet État est reconnu en France, sous réserve de sa conformité à l’ordre public international et de l’absence de fraude.

Lorsqu’au moment de la célébration du mariage l’un des époux était déjà engagé dans les liens d’un mariage non encore dissous, ce mariage n’est pas reconnu :

– si l’un des époux est de nationalité française, même s’il a également la nationalité d’un autre État ; ou

– si le premier mariage a été célébré avec un époux dont la loi nationale le prohibe.

Toutefois, l’époux qui a légitimement cru en la validité de son mariage peut se prévaloir en France des effets attachés à la qualité de conjoint, dans la mesure où les effets invoqués sont compatibles avec les exigences de l’ordre public international.

Assessment of the Recognition Methodology

The authors of the draft code have thus decided not to use the choice of law method to assess the validity of a marriage celebrated abroad.

This solution must be approved. It was expected. While it is logical to use a choice of law  rule to determine the conditions to be met by a marriage to be celebrated in France (Article 171-1 of the Civil Code and Article 44 of the draft), it is surprising that this same choice of law rule should be used to assess the validity of a marriage celebrated abroad, perhaps many years ago, as Article 171-1 of the Civil Code does today. The situation gives rise rather to a conflict of authorities than a conflict of laws. One could also envisage treating the marriage certificate, which is a foreign public document, as a foreign judicial decision. More concretely, it would be a question of assessing the effectiveness of a marriage like that of a registered partnership (Article 515-7-1 of the Civil Code provides at the present time for the application of the lex auctoris) or like that of a divorce decision (which, as a decision rendered in matters of personal status, is recognised de plano (automatically).

Thinking for marriages celebrated abroad in terms of recognition is not new. The solution is already that of Article 9 of the Hague Convention of 14 March 1978 on the Celebration and Recognition of the Validity of Marriages or that of Article 45 of the Swiss Private International Law Act.

The advantages of the proposed solution are numerous. It is compatible with the plurality of family models but also with the diversity of nationalities of those concerned. It ensures the continuity of personal status and thus the respect of the parties’ expectations. It is consistent with the solution adopted for registered partnerships. Moreover, the draft Code models the rule for the recognition of registered partnerships (Article 56 paragraph 1 of the draft) on that for marriage.

Its disadvantages are rare. Civil status shopping is not to be feared as recognition is not automatic and there are grounds for non-recognition. Under Article 11 of 1978 Hague Convention on marriages, polygamy, endogamy, age and lack of consent may justify a refusal of recognition. Likewise, Article 45 of the draft reserves the right to refuse recognition on the grounds of breach of public policy and evasion of law. It is not known in which cases courts may find that the marriage was an attempt to evade the application of the law, but one could imagine that the absence of any link between the spouses and the place of celebration could trigger the exception, even if this does not correspond to current positive law, which admits the validity of marriages celebrated in Las Vegas. More certainly, evasion of law will prevent the recognition of a marriage celebrated without matrimonial intention (but this is directly provided for by Article 46, see below). The content of public policy is, in part, clarified. Indeed, Article 45 contains provisions specific to polygamy. In this case, the application of the national law of the spouses in matters of personal status resurfaces. Polygamous marriage is not recognised if one of the spouses is a French national (regardless of whether he or she possesses another nationality) or if the marriage was concluded with a spouse whose national law prohibits this type of marriage.  In the latter case, the hypothesis of dual nationality is not envisaged, which will inevitably raise difficulties. Is it justified to protect the French dual-national spouse against a subsequent polygamous marriage by giving precedence to the nationality of the forum and not a Belgian dual-national spouse? This is questionable.

Limited Scope of the Recognition Methodology

The scope of the method of recognition is partially limited by Articles 46, 48 and 50 of the draft Code, which largely reiterate the current solutions.

The method of recognition is first of all limited by the method of substantive rules. Article 46 specifies that, whatever the State of celebration and whatever the applicable law, marriage requires the free consent and matrimonial intention of each spouse. Here we find the trace of the statutory intervention in the private international law of marriage in 2014 according to which, whatever the applicable personal law, marriage requires the consent of the spouses, within the meaning of Articles 146 and 180 para. 1 of the Civil Code. This requirement of free consent and matrimonial intention can also be seen as specifying the content of international public policy on marriage. In order not to render Article 45 meaningless, it is important that the requirement be assessed in a factual manner (which is logical, see B. Audit et L. d’Avout, Droit international privé, LGDJ 2019, n° 770).

The recognition method is also limited by Article 48, which is the only provision in a section dedicated to ‘Rules of form and competent authority’.

Article 48, which is intended to apply to all marriages, whether celebrated in France or abroad, states that a marriage is validly celebrated if it has been celebrated in accordance with the formalities laid down by the law of the State on the territory of which the celebration took place. It is difficult to understand the usefulness of this provision. In the same way that, in matters of recognition of judgments, it is not verified that the foreign court has complied with its own rules of procedure, it seems inappropriate to verify that the foreign authority that celebrated the marriage complied with its own rules of form. The possibility of denying recognition to a marriage on the grounds of evasion of law or contravention of public policy should make it possible to avoid giving effect to a marriage that has been celebrated in shocking conditions.  Article 48 seems then superfluous.

Finally, Article 50 takes up the current solutions for marriages celebrated abroad involving a French person. By requiring compliance with Articles 146-1, 171-1 to 171-9 of the Civil Code (mainly these provisions set an obligation for the French spouse to be present at the marriage, an interview intended to fight against marriages of convenience with the possibility of the public prosecutor’s office to oppose the celebration of the marriage and then the transcription of the record), it also limits the possibilities for recognition of marriages celebrated abroad when a French national is involved. In methodological terms, Article 50 does not call into question the principle of recognition, but it does provide a stricter framework.

The articulation of Articles 46, 48 and 50 with the principle of recognition of marriages celebrated abroad raises questions. Should it be ensured that the conditions they set out are met before the marriage is given effect? An affirmative answer would render the principle of recognition meaningless. It would be more coherent if, as in the case of recognition of judgments, verification is only carried out if the validity of a foreign marriage is challenged.

American Society of International Law Private International Law Interest Group is pleased to publish the newest Newsletter and Commentaries on Private International Law (Vol. 5, Issue 1) on PILIG webpage. The primary purpose of our Newsletter is to communicate global news on PIL. It attempts to transmit information on new developments on PIL rather than provide substantive analysis, in a non-exclusive manner, with a view of providing specific and concise information that our readers can use in their daily work. These updates on developments on PIL may include information on new laws, rules, and regulations; new judicial and arbitral decisions; new treaties and conventions; new scholarly work; new conferences; proposed new pieces of legislation; and the like.

 

This issue has three sections. Section one contains Highlights on cultural heritage protection and applicable law in the US and recognition and enforcement of foreign judgments in China. Section two reports on the recent developments on PIL in Africa, Asia, Europe, North America, Oceania, and South America. Section Three overviews global development.

Aldricus – Rambut memerlukan perawatan agar bisa tumbuh sehat dan tentunya memberikan rasa percaya diri. Selain menggunakan sampo terbaik, perlu untuk melakukan perawatan dengan menggunakan conditioner. Ada kandungan urang-aring yang bagus untuk rambut. Berikut manfaat urang aring untuk rambut yang jarang diketahui untuk perawatan rambut.

1. Mengatasi Ketombe

Buat yang memiliki ketombe bisa mengatasinya dengan urang-aring yang ada kandungan antimikroba dan antijamur. Manfaat antiradang ini akan mencegah terjadinya iritasi pada bagian kulit kepala dan membantu meningkatkan sirkulasi darah sehingga mencegah ketombe.

2. Mencegah Munculnya Uban

Urang-aring juga bermanfaat untuk mencegah munculnya uban. Kandungan urang-aring bekerja memperlambat tumbuhnya uban karena adanya kemampuan menghitamkan minyak, sehingga menjadi lebih gelap. Tidak akan tumbuh uban di usia dini dan warna rambut akan terjaga kehitamannya.

3. Mengatasi Peradangan Kulit

Buat Anda yang mudah mengalami radang pada kulit kepala bisa menggunakan urang-aring. Biasanya ada di dalam sampo dan conditioner. Jadi, masalah kulit seperti adanya jerawat bisa diatasi dengan mudah. Peradangan pada kulit kepala bisa membuat masalah rambut semakin rusak jika tidak segera diatasi.

4. Meningkatkan Kesuburan Rambut

Rambut yang tipis sering menjadi masalah dan berupaya untuk melebatkan rambut. Manfaat urang aring untuk rambut ini akan membuat Anda mendapatkan rambut yang lebat dan sehat. Di mana folikel rambut akan dirangsang dan memicu pertumbuhan rambut menjadi lebih subur. Masalah kepala botak di usia muda juga akan tercegah dengan optimal.

5.     Mencegah Kerontokan

Rambut rontok membuat Anda kesal karena rambut menjadi tipis. Kerontokkan rambut ini menandakan adanya kerusakan. Di mana kerusakan ini akan teratasi dengan meningkat pertumbuhan folikel rambut. Urang-aring yang kaya vitamin E akan bekerja untuk melawan bahaya radikal bebas yang bisa membuat pertumbuhan rambut terhambat.

Manfaat urang aring untuk rambut bisa didapatkan dari berbagai produk terbaik dengan menggunakan sampo atau pun conditioner. Lakukan perawatan secara rutin setiap harinya. Anda bisa berbelanja produk perawatan sesuai dengan kondisi rambut agar bisa mendapatkan rambut sehat dan tumbuh subur. Produk terbaik tentunya sudah memiliki kualitas terjamin.

The post 5 Manfaat Urang Aring untuk Rambut yang Jarang Diketahui appeared first on Aldri Blog.

Tomorrow (3 July 2022) is your last chance to register for the online summer course 2022 of the Hague Academy of International Law (both public and private international law). Click here.

More information is available here. The poster is available here.

The summer course 2022 will be offered this year both on-site in The Hague and online, which is great news given the disruptions caused by the covid-19 pandemic the previous years.

When prof Bookman asked my input on Celsius’ choice of court and governing law’s clause in its GTCs, I was otherwise engaged. Subsequently I waited with an answer for I used the issue for an exam question. – so here is my primer.

Celsius are one of the leading crypto currencies exchanges (future readers may not be familiar: crypto currencies were an early 21st century Ponzi scheme).

The question I put to the students, was:  A fellow academic and practitioner from the US asks you how clause 33 of the standard Celsius contract, copied below, would be received in the EU. Celsius are one of the world’s leading crypto currencies exchanges.

How do you respond to this question? Argue with reference inter alia to relevant CJEU case-law.

Students had two pages to answer. I did not specify Celsius’ domicile. This is what I expect to be included in the reply. Both for jurisdiction and for there is a clear distinction between the B2B and B2C scenario.

Re: B2C: For the contract to be a true ‘consumer’ contract within the meaning of Brussels Ia, Celsius would have had to target their activities at the consumer’s Member State etc.: CJEU Peil and Reliantco are good pointers, as are Ramona Ang and Khalifeh v Blom Bank. Whether Celsius are domiciled in the EU is of no consequence for the consumer section to be engaged. At the jurisdictional level, the choice of court clause would have no consequence (A19 BIa), and the consumer would be able to sue Celsius either in the consumer’s EU domicile, or in Celsius’ EU domicile if it has one. Celsius would only be able to sue in the consumer’s domicile. Articles 33-34 BIa lis pendens rules would not be engaged.

At the applicable law level, the choice for New York law would stand, however mandatory law of the consumer’s habitual residence (which would include transposition of EU consumer law) would trump any conflicting provisions (A6(1) and (2) Rome I).

Re: B2B or indeed a B2C contract which does not trigger the consumer section, the picture would be quite different. Here, whether Celsius as contracting partner has a domicile in the EU, does matter.

If there is such domicile, then at the level of jurisdiction, the EU based party is likely to seize the A4 domicile court, potentially also seeking out a forum contractus if the currency services were to be provided elsewhere than in the place of Celsius’ domicile. That is where Celsius, had it seized an ex-EU court first, then might seek application of A33-34. For this it may come to regret having included hybrid choice of court: recital 24(2)’s reference to the ex-EU court having exclusive jurisdiction arguably does not apply to hybrid choice of court.

Were Celsius to sue the other party in an EU court first (taking ‘any applicable jurisdiction’ at its face value and understanding it as including EU courts), the other party is likely to raise the invalidity of the hybrid choice of court. This is where BIa knickers will get into their proverbial twist: for recital 20’s lex fori prorogati’s instruction as lex casae for the validity of the clause, only refers to ‘a court or courts of a Member State’. Celsius could of course chose to ignore choice of court (implicitly accepting its invalidity) and seize the A4 court of the EU counterparty.

At the level of applicable law, choice for New York law will in any case stand in this scenario, with however A3(4) Rome I’s rule for ‘purely EU’ contracts kicking in, and potentially Article 9 Rome I’s lois de police.

If there is no EU Celsius domicile, Celsius is unlikely to sue in the EU (for it risks having an EU court apply EU banking, finance etc law as mandatory law) however if it does, it would either do so on the basis of A4 domicile jurisdiction, or invoking, as above, the ‘any applicable jurisdiction’ instruction in the hybrid choice of court. Only A9 Rome I could then marginally upset choice of NY law.

Finally, assuming Celsius were to sue the consumer outside the EU, and were to seek enforcement of the judgment in an EU Member State, this would engage the Member States’ residual rules on recognition and enforcement.

Quite a set of variables in the end, and I would be much happy to hear others’ thoughts.

Marking me will look out for core B2B /B2C and domicile considerations.

Geert.

 

I was going to ask why the dispute has to be in the US, and point out that the class action and class arb ban might not be enforceable elsewhere, but then I saw the NY choice of law and choice of forum clauses, which presumably are enforceable, rt?@Tarheel_Lawprof @GAVClaw pic.twitter.com/vq6Rx3L6Np

— Pamela Bookman (@PamelaBookman) June 15, 2022

 

Elena D’Alessandro and Fernando Gascón Inchausti are the editors of The European Account Preservation Order – A Commentary on Regulation (EU) No 655/2014. The book has just been published by Edward Elgar in its Commentaries in Private International Law series.

This comprehensive Commentary provides article-by-article exploration of EU Regulation 655/2014, analysing and outlining in a straightforward manner the steps that lawyers, businesses and banks can take when involved in debt recovery. It offers a detailed discussion of national practice and legislation in order to provide context and a deeper understanding of the complex difficulties surrounding the procedural system created by the European Account Preservation Order (EAPO) Regulation.

The list of authors include Caterina Benini, Silvana Dalla Bontà, Katharina Lugani, Martina Mantovani, Elena Alina Ontanu, Guillaume Payan, Pilar Peiteado Mariscal, Carlos Santaló Goris, Guillermo Schumann Barragán, Elisabetta Silvestri, Enrique Vallines García, María Luisa Villamarín López and Marcin Walasik.

See here for further information.

Following the release of a draft code of private international law (announced here), the French Ministry of Justice has launched on 8 June 2022 a public consultation to gather feedback from all stakeholders, including academics, “in order to determine the possible next steps”.

The blog has started to contribute to the discussion (see here on renvoi and here on foreign law) and other comments will follow.

Scope of the Consultation

The consultation template is divided into three main parts. The first part concerns the very principle of adopting written codified rules in the field of private international law, as well as the scope of the code (i.e. purely national or including EU and international rules applicable within the French jurisdiction). The second part allows for general comments on the draft Code (eg. its structure, its material scope). Finally, the third part proposes article-by-article comments (among 207 articles).

Conditions for Participation in the Consultation

The French Ministry of Justice invites interested parties to send comments on the draft code of private international law to consultation-codedip.dacs@justice.gouv.fr using the Word document provided for. Comments that do not respect this format will not be taken into account.

The consultation is open until 30 September 2022.

Written by Dr Meng Yu and Dr Guodong Du, co-founders of China Justice Observer

Key takeaways:

• Despite the fact that the elaboration of a judicial interpretation appears to have been put on hold, China’s Supreme People’s Court has now resorted to conference summaries, which are not legally binding but have a practical impact, to express its views in recognition and enforcement of foreign judgments.
• As a landmark judicial policy issued by China’s Supreme People’s Court, the 2021 Conference Summary provides a detailed guideline for Chinese courts to review foreign judgment-related applications, including examination criteria, refusal grounds, and an ex ante internal approval mechanism.
• The 2021 Conference Summary enables an ever greater number of foreign judgments to be enforced in China, by making substantial improvements on both the issues of “threshold” and “criteria”. The threshold addresses whether foreign judgments from certain jurisdictions are enforceable, whereas the criteria deal with whether the specific judgment in an application before Chinese courts can be enforced.
• The 2021 Conference Summary significantly lowers the threshold by liberalizing the reciprocity test, while providing a much clearer standard for Chinese judges to examine applications for recognition and enforcement of foreign judgments.
• The existence of a “treaty or reciprocity” remains to be the threshold (precondition) for Chinese courts to review applications.
• In terms of reciprocity, new reciprocity tests are introduced to replace the previous de facto reciprocity test and presumptive reciprocity. The new reciprocity criteria include three tests, namely, de jure reciprocity, reciprocal understanding or consensus, and reciprocal commitment without exception, which also coincide with possible outreaches of legislative, judicial, and administrative branches. Chinese courts need to examine, on a case-by-case basis, the existence of reciprocity, on which the Supreme People’s Court has the final say.

China has published a landmark judicial policy on the enforcement of foreign judgments in 2022, embarking on a new era for judgment collection in China.

The judicial policy is the “Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide” (hereinafter the “2021 Conference Summary”) issued by the China’s Supreme People’s Court (SPC) on 31 Dec. 2021. The 2021 Conference Summary makes it clear for the first time that applications for enforcing foreign judgments will be examined subject to a much more lenient standard.

Since 2015, the SPC has consistently disclosed in its policy that it wishes to be more open to applications for the recognition and enforcement of foreign judgments, and encourages local courts to take a more amicable approach to foreign judgments within the scope of established judicial practice.

Admittedly, the threshold for enforcing foreign judgments was set too high in judicial practice, and Chinese courts have never elaborated on how to enforce foreign judgments in a systematic manner. As a result, despite the SPC’s enthusiasm, it is still not appealing enough for more judgment creditors to apply for recognition and enforcement of foreign judgments with Chinese courts. However, this situation is now changed.

In January 2022, the SPC published the 2021 Conference Summary with regard to cross-border civil and commercial litigation, which addresses a number of core issues concerning the recognition and enforcement of foreign judgments in China. Just to be clear, in the Chinese legal system, the conference summary is not a legally binding normative document as the judicial interpretation, but only represents the consensus reached by Chinese judges nationwide, similar to the “prevailing opinion” (herrschende Meinung) in Germany, which will be followed by all judges in future trials. In other words, conference summaries serve as guidance for adjudication. On one hand, as a conference summary is not legally binding, the courts cannot invoke it as the legal basis in judgments, but on the other hand, the courts can make the reasoning on the application of law according to the conference summary in the “Court Opinion” part.

The 2021 Conference Summary makes substantial improvements in two aspects, i.e. the “threshold” and “criteria”.

The threshold aspect refers to the first obstacle applicants will face when applying for recognition and enforcement of a foreign judgment in China, that is, whether foreign judgments from certain countries are enforceable. Countries reaching the threshold now include most of China’s major trading partners, which is huge progress compared with the prior 40 countries or so. If the country where the judgment is rendered reaches the threshold, criteria will then be used by the Chinese courts in reviewing whether the specific judgment in the application can be enforced in China. Now a clearer threshold and criteria enable applicants to have more reasonable expectations about the likelihood of a foreign judgment being enforced in China.

1. Threshold: the threshold for enforcing judgments of most foreign countries in China has been significantly lowered.

The 2021 Conference Summary significantly lowers the threshold for the recognition and enforcement of foreign judgments in China, making a breakthrough in existing practice. According to the 2021 Conference Summary, the judgments of most of China’s major trading partners, including almost all common law countries as well as most civil law countries, can be enforceable in China.

Specifically, the 2021 Conference Summary states that the judgment can be enforced in China if the country where the judgment is rendered satisfies the one of the following circumstances:

(a) The country has concluded an international or bilateral treaty with China in respect of recognition and enforcement of foreign judgments.

Currently, 35 countries meet this requirement, including France, Italy, Spain, Belgium, Brazil, and Russia.

The List of China’s Bilateral Treaties on Judicial Assistance in Civil and Commercial Matters (Enforcement of Foreign Judgments Included) is available here.  Authoritative texts in Chinese and other languages are now available.

(b) The foreign country has a de jure reciprocal relationship with China.

This means that where a civil or commercial judgment rendered by a Chinese court can be recognized and enforced by the court of the foreign country according to the law of the said country, a judgment of the said country may, under the same circumstances, be recognized and enforced by the Chinese court.

In accordance with the criteria of de jure reciprocity, the judgments of many countries can be included in the scope of enforceable foreign judgments in China.  For common law countries, such as the United States, the United Kingdom, Canada, Australia, and New Zealand, their attitude towards applications for recognition and enforcement of foreign judgments is open, and in general, such applications meet this criterion. For civil law countries, such as Germany, Japan, and South Korea, many of them also adopt a similar attitude to the above-mentioned de jure reciprocity, so such applications also meet this criterion to a great extent.

It is noteworthy that in March 2022, Shanghai Maritime Court ruled to recognize and enforce an English judgment in Spar Shipping v Grand China Logistics (2018) Hu 72 Xie Wai Ren No.1, marking the first time that an English monetary judgment has been enforced in China based on reciprocity. This decision has previously been highlighted here. One key to ensuring the enforcement of English judgments is the reciprocal relationship between China and England (or the UK, if in a wider context), which, under the de jure reciprocity test (one of the new three tests), was confirmed in this case.

(c) The foreign country and China have promised each other reciprocity in diplomatic efforts or reached a consensus at the judicial level.

The SPC has been exploring  cooperation in mutual recognition and enforcement of judgments with other countries in a lower-cost way in addition to signing treaties, such as a diplomatic commitment or a consensus reached by the judiciaries. This can achieve functions similar to that of treaties without being involved in the lengthy process of treaty negotiation, signing, and ratification.

China has started similar cooperation with Singapore. A good example of judicial outreach is the Memorandum of Guidance Between the Supreme People’s Court of the People’s Republic of China and the Supreme Court of Singapore on Recognition and Enforcement of Money Judgments In Commercial Cases (available here). It is thus fair to say that the 2021 Conference Summary has substantially lowered the threshold by liberalizing the reciprocity test.

2. Criteria: Clearer standard for Chinese judges to examine each application for recognition and enforcement of foreign judgments

The 2021 Conference Summary makes it clear under what circumstances Chinese courts may refuse to recognize and enforce a foreign judgment and how the applicants may submit the applications, which undoubtedly enhances  feasibility and predictability.

Pursuant to the 2021 Conference Summary, a foreign judgment can be recognized and enforced in China if there are no following circumstances where:

(a) the foreign judgment violates China’s public policy;

(b) the court rendering the judgment has no jurisdiction under Chinese law;

(c) the procedural rights of the Respondent are not fully guaranteed;

(d) the judgment is obtained by fraud;

(e) parallel proceedings exist, and

(f) punitive damages are involved (specifically, where the amount of damages award significantly exceeds the actual loss, a Chinese court may refuse to recognize and enforce the excess).

Compared with most countries with liberal rules in recognition and enforcement of foreign judgments, the above requirements of Chinese courts are not unusual. For example:

• The above items (1) (2) (3) and (5), are also requirements under the German Code of Civil Procedure (Zivilprozessordnung).
• Item (4) is consistent with the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.
• Item (6) reflects the legal cultural tradition on the issue of compensation in China.

In addition, the 2021 Conference Summary also specifies what kind of application documents should be submitted to the court, what the application should contain, and how parties can apply to the Chinese court for interim measures when applying for enforcing foreign judgments.

In short, a gradual relaxation of Chinese courts’ attitude can be seen towards applications for recognition and enforcement of foreign judgments since 2018. Recently the 2021 Conference Summary has finally made a substantial leap forward.

We hope to see such breakthroughs in rules be witnessed and developed by one case after another in the near future.

For a more detailed interpretation, together with the original Chinese version of the 2021 Conference Summary and its English translation, please read ‘Breakthrough for Collecting Judgments in China Series’ (available here).

For the PDF version of ‘Breakthrough for Collecting Judgments in China Series’, please click here.