Droit international général

Perry Dane (Rutgers) law schools has posted Party Autonomy and the Challenge of Choice of Law on SSRN.

The abstract reads:

A perennial question in choice of law is whether parties to a contract can select the jurisdiction whose law will govern their contract. This so-called “party autonomy” problem is vexing and intriguing, in part because contemporary discussions often overlook in contemporary discussions.

The party autonomy problem is more consequential than most issues in choice of law. But it is also important as a singular window into the intellectual fabric of choice of law and as a leading edge for new and potentially subversive insights.

This essay is a chapter in an Oxford University Press volume on the “Philosophical Foundations of Conflict of Laws.” The essay argues that party autonomy does not have one comprehensive justification, but that it might be justified by a set of distinct if overlapping arguments that point to vital ideas often overlooked in the contemporary conversation. If choice of law doctrine embraces party autonomy, it might be in part because its shapers instinctively and inchoately recognize those considerations.

The most speculative and problematic argument is based on a version of natural law. Another argument relies on an important distinction between what I have called second-order and first-order choice of law. Yet another builds on an effort at a more sophisticated understanding of what it means for persons to be attached (or to attach themselves) to the legitimate governance of a legal system. The last argument is grounded in legal pluralism, though not of the usual sort.

These distinct bases for party autonomy are not only of theoretical interest. They also generate different answers to some of the material subsidiary questions that arise in any doctrinal consideration of party autonomy. That in turn suggests that the doctrine of party autonomy might require more nuance and fine-grained distinctions than most current treatments have given it.

The paper is forthcoming in Philosophical Foundations of Conflict of Laws (Oxford University Press, Roxana Banu, Michael Green, Ralf Michaels, eds., 2022).

The Institute for German and International Civil Procedure at the Rheinische Friedrich Wilhelms University of Bonn, Germany, is looking for a highly skilled and motivated PhD candidate and fellow (Wissenschaftliche/r Mitarbeiter/in) to work in the fields of Private International Law, International Civil Procedural Law and/or International Commercial Arbitration on a part-time basis (50%) as of 1 April 2023.

The successful candidate must hold the First or Second German State Examination in law with distinction (“Prädikat”) and is interested in the international dimensions of private law, in particular private international law, international civil procedural law, and/or international commercial arbitration.

The successful candidate will be given the opportunity to conduct her/his PhD project (according to the Faculty’s regulations) under the supervision of the Director of the Institute Prof Dr Matthias Weller, Mag.rer.publ. (https://www.jura.uni-bonn.de/professur-prof-dr-weller/professor-dr-weller-magrerpubl/). The position is paid according to the German public service salary scale E-13 TV-L, 50%. The initial contract period is one year at least and up to three years, with an option to be extended. Responsibilities include supporting research and teaching on Private International Law, International Civil Procedure and/or International Commercial Arbitration as well as a teaching obligation of two hours per week during term time.

If you are interested in this position, please send your application (cover letter in German; CV; and relevant documents and certificates, notably university transcripts and a copy of the German State Examination Law Degree) to Prof Dr Matthias Weller (weller@jura.uni-bonn.de). The University of Bonn is an equal opportunity employer.

The (first instance) court at Rotterdam has upheld anchor jurisdiction and refused an application for an Article 34 Brussels Ia stay. The case concerns victims of earthquakes in the Brasilian Maceió region, which they argue are caused by the mining activities of Braskem. The judgment is only available in Dutch.

The Dutch anchor defendants are intra-group suppliers of ia specialty chemicals, and finance. The main target of the claim of course is the Brasilian mother holding. Whether the latter can be brought into the proceedings is not subject to Brussels Ia but rather to Dutch residual rules. However just as in e.g. Shell, the Dutch rules are applied with CJEU authority on Article 8(1) Brussels Ia firmly in mind. In much more succinct terms than the English courts in similar proceedings, the Dutch courts [6.16] finds the cases so ‘closely related’ that it is expedient to hear the cases together. It emphasises that while the respective roles and liabilities of the various undertakings concerned is likely to be very different, there is a bundle of legal and factual questions that runs jointly throughout the various claims. [6.18] it emphasises that the decision to base the European headquarters of the group, and the finance activities at Rotterdam, implies that the concern reasonably could have foreseen it would be sued here.

Equally succinctly [6.19 ff] the Court rejects the argument that the use of the Dutch corporations as anchor defendants is an abuse of process. Such abuse must be narrowly construed and  it is far from obvious that the claim against the anchors is entirely without merit.

Seemingly defendants tried to argue forum non conveniens however [6.23] the court points out such construction does not exist in The Netherlands and obiter it adds (like the Court of Appeal in Municipio) that practical complications in either hearing of the case or enforcement of any judgment are not a reason to dismiss jurisdiction.

Request for a stay in the procedures viz the Brasilian corporations [6.26] is rejected on (Dutch CPR) lis pendens rules for the parties in the proceedings are not the same. Article 34 is dealt with in two paras (quite a contrast with the E&W courts). The pending procedures vis-a-vis Article 34 are not, it seems, Brasilian Civil Public Actions – CPAS (these were at issue in Municipio de Mariana (of some interest is that the law firm behind the claims is the same in both cases)). Rather, pending liquidation proceedings are considered as the relevant assessment points. [6.28] obiter the court finds that the cases are most probably not related. It grounds  its decision however on a stay not being in the interest of the sound administration of justice. The court holds that the Brasilian proceedings are not likely to be concluded within a reasonable time. Defendants’ commitment at hearing to speed up the process in Brasil, are met with disbelief by the court given the defendants’ attitude in the Brasilian procedures hitherto.

[6.32] permission to appeal the interim judgment on jurisdiction is denied. This means that, like in Airbus, discussion on the private international law issues is likely only to resurface at the stage of appealing the judgment on the merits, too.

An important judgment: other than Petrobas, there are to my knowledge no continental judgments discussing Article 34 in this intensity (there are E&W judgments, as readers of the blog will know).

Geert.

See also ‘Dude, where’s my EU court? On the application of Articles 33-34 Brussels Ia’s forum non conveniens- light rules’, Journal of Private International Law, forthcoming 2022.

 

Dutch court refuses Article 34 Brussels Ia lis pendens applicationhttps://t.co/F46tkOlcRe
Pollution case against #braskem will go ahead in home of Dutch mother corporation. More on the blog soonhttps://t.co/jfa1Sb5o3t @PogustGoodhead

— Geert Van Calster (@GAVClaw) September 26, 2022

The Aberdeen Centre for Private International Law is organising a seminar as part of their ‘Crossroads in Private International Law’ webinar series on : Private international law’s contribution to the regulation of Artificial Intelligence (AI): An EU perspective.

The seminar will take place on 5 October 2022, 16:00 – 17:30 UK time.

Speaker: Dr Michiel Poesen, Lecturer in Law, University of Aberdeen, School of Law

Moderator: Tim Dornis, Professor of Private Law and Intellectual Property Law, Leibniz University, Hannover, Germany

Here is further information provided by the Centre: In this webinar, we will bridge artificial intelligence (AI) and EU private international law, i.e. the body of rules that determine which country’s law applies to cross-border legal relationships involving private parties, such as businesses, consumers or employees.

  To that aim, we will start by scrutinising the current legal framework for its capacity to deal with cross-border private law claims arising out of the application of AI systems. Then, we will evaluate the recent proposal of the European Parliament for a bespoke EU Regulation concerning civil liability for harm caused by AI, which included a novel rule of private international law.   Here, we will also reflect on the role private international law could play in the EU’s emerging regulatory policy for AI systems. Attendance is free, but registration is mandatory.

HCCH 2019 Judgments Convention Repository

 

In preparation of the Conference on the HCCH 2019 Judgments Convention on 9/10 June 2023, taking place on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

Update of 28 September 2022: New entries are printed bold.

Please also check the “official” Bibliography of the HCCH for the instrument.

 

I. Explanatory Reports

Garcimartín Alférez, Francisco;
Saumier, Geneviève „Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128

 

II. Bibliography

Ahmed, Mukarrum “Brexit and the Future of Private International Law in English Courts”, Oxford 2022 Åkerfeldt, Xerxes ”Indirekta behörighetsregler och svensk domsrätt – Analys och utredning av svensk domstols behörighet i förhållande till 2019 års Haagkonvention om erkännande och verkställighet” (Examensarbete inom juristprogrammet, avancerad nivå, Örebro Universitet, 2021 ; available here)

 

“Indirect jurisdiction and Swedish law – Analysis and inquiry of the jurisdiction of Swedish courts in relation to the 2019 Hague Convention on Recognition and Enforcement” Al-Jubouri, Zina Hazem “Modern trends for the recognition and enforcement of foreign judgments in civil and commercial matters accordance the 2019 Hague Convention”, Tikrit University Journal for Rights (TUJR) 2022-03, pp. 79-109 (available here) Amurodov, Jahongir “Some issues of Ratification of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019) by the Republic of Uzbekistan”, Uzbek Law Review 2020-03, pp. 11-116 (available here) Arslan, Ilyas “The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Uluslararasi Ticaret ve Tahkim Hukuku Dergisi 10 (2021), pp. 329-402 Badr, Yehya Ibrahim “The Hague 2019 Convention for the Recognition and Enforcement of Foreign Judicial Decisions: A Comparative Study”, International Journal of Doctrine, Judiciary, and Legislation (IJDJL) 2 (2021), pp. 427-468 (available here) Balbi, Francesca “La circolazione delle decisioni a livello globale: il rogetto di convenzione della Conferenza dell’Aia per il riconoscimento e l’esecuzione delle sentenze straniere” (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2019; available: here) Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul R. “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Beaumont, Paul;
Holliday, Jane (eds.) “A Guide to Global Private International Law”, Oxford 2022, forthcoming. Biresaw, Samuel Maigreg “Appraisal of the Success of the Instruments of International Commercial Arbitration vis-a-vis International Commercial Litigation and Mediation in the Harmonization of the Rules of Transnational Commercial Dispute Resolution”, Journal of Dispute Resolution 2022-02, pp. 1-27 (preprint available here) Blanquet-Angulo, Alejandra “Les Zones d’ombre de la Convention de La Haye du 2 Juillet 2019”, Revue Internationale de Droit Comparé (RIDC), 73 (2021), pp. 53-71 Blom, Joost “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 Bonomi, Andrea “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 Bonomi, Andrea “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 Bonomi, Andrea;
Mariottini, Cristina M. “(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 Borges Moschen, Valesca Raizer;
Marcelino, Helder “Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319

(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) Borisov, Vitaly Nikolaevich “2019 Hague Judgments Convention: Global Recognition and Enforcement of Civil and Commercial Judgments (Review of the International Conference held in Hong Kong on September 9, 2019), Journal of Foreign Legislation and Comparative Law 2020-03, pp. 166-172 (available here) Brand, Ronald A. “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 Brand, Ronald A. “Jurisdictional Developments and the New Hague Judgments Project”, in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon, Cambridge 2013, pp 89-99 Brand, Ronald A. “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 Brand, Ronald A. “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 Brand, Ronald A. “The Hague Judgments Convention in the United States: A ‘Game Changer’ or a New Path to the Old Game?“, University of Pittsburgh Law Review 82 (2021), pp. 847-880 (available here) Brannigan, Neil “Resolving conflicts: establishing forum non conveniens in a new Hague jurisdiction convention”, Journal of Private International Law 18 (2022), pp. 83-112 Cai, Ya-qi “Feasibility Study on China’s Ratification of the HCCH Judgment Convention from the Perspective of Indirect Jurisdiction”, Journal of Taiyuan Normal University (Social Science Edition) 2021-04, pp. 74-80 Çaliskan, Yusuf;
Çaliskan, Zeynep “2 Temmuz 2019 Tarihli Yabanci Mahkeme Kararlarinin Taninmasi ve Tenfizine Iliskin Lahey Anlasmasinin Degerlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245 (available here)

(An Evaluation of 2 July 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) Cardoso, Connor J. “Implementing the Hague Judgments Convention”, New York University Law Review 97 (2022), forthcoming (Draft available here) Celis Aguilar, María Mayela “El convenio de la haya de 30 de junio de 2005 sobre acuerdos de elección de foro y su vinculación con el ‘proyecto sobre Sentencias’ (y viceversa)”, Revista mexicana de Derecho internacional privado y comprado N°40 (octubre de 2018), pp. 29-51 (available here) Chai, Yuhong ; Qu, Zichao “The Development and Future of the Hague Jurisdiction Project”, Wuhan University International Law Review 2021-05, pp. 27-52 (online first) Chen, Shun-Hsiang “Signed, Sealed, & Undelivered: Unsuccessful Attempts of Judgment Recognition Between the U.S. and China”, Brooklyn Journal of Corporate, Financial & Commercial Law 16 (2022), pp. 167-189 (available here) Chen, Wendy “Indirect Jurisdiction over the Recognition and Enforcement of Judgments of Foreign Courts in Compulsory Counterclaims”, Journal of Xingtai University 2019-04, pp. 106-110 Cheng, Xian-ping; Liu, Xian-chao “On the Application of the Severable Clause in The Hague Judgments Convention”, Harbin Normal University Social Science Journal 2021-05, pp. 30-34 Choi, Sung-Soo “Review of the several issues of the Convention on the Recognition and Enforcement of Foreign Judgments”, Gachon Law Review 14 (2021), pp. 37-68 (available here) Clavel, Sandrine ; Jault-Seseke, Fabienne “La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale : Que peut-on en attendre ?”, Travaux du comité français de Droit international privé, Vol. 2018-2020, Paris 2021 (Version provisoire de la communication présentée le 4 octobre 2019, available here) Clover Alcolea, Lucas “The 2005 Hague Choice of Court and the 2019 Hague Judgments Conventions versus the New York Convention – Rivals, Alternatives or Something Else?”, Mc Gill Journal of Dispute Resolution 6 (2019-2020), pp. 187-214 Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 Cong, Junqi “Reinventing China’s Indirect Jurisdiction over Civil and Commercial Matters concerning Foreign Affairs – Starting from the Hague Judgment Convention” (Master’s Thesis, National 211/985 Project Jilin University; DOI: 10.27162/d.cnki.gjlin.2020.001343) Contreras Vaca, Francisco José “Comentarios al Convenio de la Haya del 2 de julio de 2019 sobre Reconcimiento y Ejecución de Sentencias Extranjeras en materia civil y comercial”, Revista mexicana de Derecho internacional privado y comprado N°45 (abril de 2021), pp. 110-127 (available here) Cui, Zhenghao “On the Coordination between the Draft Convention on Judicial Sale of Ships and the related Conventions of the Hague Conference on Private International Law”, China Ship Survey 2021-04, pp. 65-68 Cuniberti, Gilles “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 DAV (German Bar Association) “Position Paper on the EU’s possible accession to the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of the Hague Conference on Private International Law”, Berlin 2020 (available here) de Araujo, Nadia ; de Nardi, Marcelo ;
Spitz, Lidia “A nova era dos litígios internacionais”, Valor Economico 2019 de Araujo, Nadia ;
de Nardi, Marcelo ;
Lopes Inez ;
Polido, Fabricio „Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34 de Araujo, Nadia ;
de Nardi, Marcelo „Consumer Protection Under the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 67-79 de Araujo, Nadia ;
de Nardi, Marcelo „22ª Sessão Diplomática da Conferência da Haia e a Convenção sobre sentenças estrangeiras : Primeiras reflexões sobre as vantagens para o Brasil da sua adoção“, Revista de la Secretaría del Tribunal Permanente de Revisión 7 No. 14 (2019), páginas 198-221

(22nd Diplomatic Session of The Hague Conference and the Convention on Foreign Judgments: First Reflections on the Advantages for Brazil of their Adoption) de Araujo, Nadia ;
De Nardi, Marcelo “International Jurisdiction in Civil or Commercial Matters: HCCH’s New Challenge”, in Magdalena Pfeiffer, Jan Brodec, Petr Bríza, Marta Zavadilová (eds.), Liber Amicorum Monika Pauknerová, Prague 2021, pp. 1-11 Dlmoska, Fani “Would the Judgments Convention lead to unification of the ratification and enforcement of foreign judgments in the SEE Countries: The possible impact of the Judgments Convention”, SEELJ Special Edition No. 8 (2021), pp. 81-103 Dordevic, Slavko “Country Report Serbia”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 180-202 Dotta Salgueiro, Marcos “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”, Netherlands International Law Review (NILR) 67 (2020), pp 113-120 Douglas, Michael;
Keyes, Mary;
McKibbin, Sarah;
Mortensen, Reid “The HCCH Judgments Convention in Australian Law”, Federal Law Review 47 (2019), pp 420-443 Du, Tao “Frontiers of Private International Law Around the World: An Annual Review (2019-2020)”, Chinese Review of International Law 2021-04, pp. 103-128 (available here) Dyrda, Lukasz “Judicial Cooperation in Civil and Commercial Matters in the Context of the European Union’s Planned Accession to the 2019 Hague Judgments Convention after Brexit”, Europejski Przeglad Sadowy 2022-5, pp. 22-29 Echegaray de Maussion, Carlos Eduardo “El Derecho Internacional Privado en el contexto internacional actual : Las reglas de competencia judicial indirecta en el Convenio de la Haya de 2 de Julio de 2019 y el accesso a la justicia” Revista mexicana de Derecho internacional privado y comprado N°45 (abril de 2021), pp. 128-139 (available here) Efeçinar Süral “Possible Ratification of the Hague Convention by Turkey and Its Effects to the Recognition and Enforcement of Foreign Judgments”, Public and Private International Law Bulletin 40 (2020), pp. 775-798 (available here) EGPIL/GEDIP Observations on the possible accession of the European Union to the Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments, Text adopted on 9 December 2020 following the virtual meeting of 18-19 September 2020 (available here) | Zeitschrift für Europäisches Privatrecht (ZEuP) 2021, pp. 474-476 Ermakova, Elena ; Frovola, Evgenia ; Sitkareva, Elena “International Economic Integration and the Evolution of the Principles of Civil Procedure”, in Elena G. Popkova, Bruno S. Sergi, Modern Global Economic System, Basel 2021, pp. 1589-1597 European Union (EU)/ European Commission “Proposal for a Council Decision on the accession by the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, COM(2021) 388 final (available here) Fan, Jing “On the Jurisdiction over Intellectual Property in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Chinese Yearbook of Private International Law and Comparative Law 2018-02, pp. 313-337 Fan, Jing “Reconfiguration on Territoriality in Transnational Recognition and Enforcement of Intellectual Property Judgments”, Chinese Review of International Law 2021-01, pp. 90-112 (available here) Farnoux, Étienne “Reconnaissance et exécution des jugements étrangers en matière civil ou commerciale : À propos de la Convention de La Haye du 2 juillet 2019”, La Semaine Juridique 2019, pp. 1613-1617 Forner Delaygua, Joaquim-Joan “El Convenio de La Haya de 2 julio 2019 como nuevo marco normativo de las sentencias en materia de contractual comercial”, in Pérez Vera et al. (eds.), El Derecho internacional privado entre la tradición y la innovación – Obra homenaje al Profesor doctor José María Espinar Vicente, Madrid 2020, pp. 307-325 Franzina, Pietro; Leandro, Antonio

  “La Convenzione dell’Aja del 2 luglio 2019 sul riconoscimento delle sentenze straniere : una prima lettura”, Quaderni di SIDIblog 6 (2019), pp 215-231 (available here)

(The Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments: A First Appraisal) Fuchs, Felix “Das Haager Übereinkommen vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Urteile in Zivil- oder Handelssachen“, Gesellschafts- und Wirtschaftsrecht (GWR) 2019, pp 395-399 Garcimartín, Francisco “The Judgments Convention: Some Open Questions”, Netherlands International Law Review (NILR) 67 (2020), pp 19-31 Garnett, Richard “The Judgments Project: fulfilling Assers dream of free-flowing judgments”, in Thomas John, Rishi Gulati, Ben Koehler (eds.), The Elgar Companion to the Hague Conference on Private International Law, Cheltenham/Northampton 2020, pp. 309-321 Goddard, David „The Judgments Convention – The Current State of Play”, Duke Journal of Comparative & International Law 29 (2019), pp 473-490 Grodl, Lukas “Forum Non Conveniens Doctrine – post Brexit Applicability in Transnational Litigation”, Casopis pro právní vedu a praxis 30 (2022), pp. 285-303 (available here) Gu, Weixia “A Conflict of Laws Study in Hong Kong-China Judgment Regionalism: Legal Challenges and renewed Momentum”, Cornell International Law Journal 52 (2020), pp. 591-642 Guez, Philippe ;
de Berard, François ; Malet-Deraedt, Fleur ; Roccati, Marjolaine ; Sinopoli, Laurence ; Slim, Hadi ; Sotomayor, Marcelo ; Train, François-Xavier “Chronique de droit international privé appliqué aux affaires, Revue de droit des affaires internationales – 1 décembre 2018 au 31 décembre 2019”, Revue de Droit des Affaires Internationales 2020, pp. 237-274 Gugu Bushati, Aida “Country Report Albania”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 16-41 (available here) Guide, Jia
[Foreign Ministry of the People’s Republic of China] “Address by the Director of the Department of Treaty and Law of the Ministry of Foreign Affairs Jia Guide at the Opening Ceremony of the International Symposium on the Hague Judgment Convention (9 September 2019)”, Chinese Yearbook of International Law 2019, pp. 503-505 Gusson Said, Enza ; Quiroga Obregón, Marcelo Fernando “Homologação de sentenças estrangeiras e o Judgements

Project”, Derecho y Cambio Social N.º 60 (2020) en línea,
pp. 1-13 (available here) Häggblom, Annie ”2019 ars Haagkonvention om erkannande och verkstallighet av utlandska domar pa privatrattens omrade: Ett framgangsrikt internationellt instrument pa den internationella privatrattens omrade?” (Examensarbete i internationell privat- och processrätt, Uppsala Universitet, 2021; available here)

“The Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters : A successful international instrument in the field of private international law?” He, Qisheng “The HCCH Judgments Convention and the Recognition and Enforcement of Judgments pertaining to a State”, Global Law Review 3 (2020), pp 147-161 (available here) He, Qisheng “Unification and Division: Immovable Property Issues under the HCCH Judgement Convention”, Journal of International Law 1 (2020), pp 33-55 He, Qisheng “The HCCH Judgments Convention and International Judicial Cooperation of Intellectual Property”, Chinese Journal of Law 2021-01, pp. 139-155 He, Qisheng “Latest Development of the Hague Jurisdiction Project”, Wuhan University International Law Review 2020-04, pp. 1-16 He, Qisheng “ ’Civil or Commercial Matters’ in International Instruments Scope and Interpretation”, Peking University Law Review 2018-02, pp. 1-25 (available here) He, Qisheng “A Study on the Intellectual Property Provisions in the ’Hague Convention on Judgment’ – On the Improvement of Transnational Recognition and Enforcement of Intellectual Property Judgments in China”, Journal of Taiyuan University (Social Science Edition) 2020-05, pp. 40-47 He, Qisheng “Negotiations of the HCCH 2019 Judgments Convention on State Immunity and Its Inspirations”, Chinese Review of International Law 2022-02, pp. 40-52 He, Qisheng “Dilemma and Transformation of the Hague Jurisdiction Project”, Wuhan University International Law Review 2022-02, pp. 36-58 Herrup, Paul;
Brand, Ronald A. “A Hague Convention on Parallel Proceedings”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2021-23, pp. 1-10 (available here) Herrup, Paul;
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2019-01, pp. 59-74 (available here) Qian, Zhenqiu;
Yang, Yu “On the Interpretation and Application of the Cost of Proceedings Provision under the Hague Judgment Convention”, China Journal of Applied Jurisprudence 2020-04, pp. 96-108 Reisman, Diana A. A. “Breaking Bad: Fail –Safes to the Hague Judgments Convention”, Georgetown Law Journal 109 (2021), pp. 880-906 Revolidis, Ioannis « From the ashes we will rise – recognition and enforcement of international judgments after the revival of the Hague Convention », Lex & Forum 4/2021 Reyes, Anselmo „Implications of the 2019 Hague Convention on the Enforcement of Judgments of the Singapore International Commercial Court”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 695-709 Ribeiro-Bidaoui, João “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 Rumenov, Ilija “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-404 Rumenov, Ilija “Country Report North Macedonia”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 138-179 (available here) Rumenov, Ilija “The indirect jurisdiction of the 2019 Hague Convention on recognition and enforcement of foreign judgments in civil or commercial matters – Is the “heart” of the Convention”, SEELJ Special Edition No. 8 (2021), pp. 9-45 Sachs, Klaus;
Weiler, Marcus “A comparison of the recognition and enforcement of foreign decisions under the 1958 New York Convention and the 2019 Hague Judgments Convention”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 763-781 Saito, Akira “Advancing Recognition and Enforcement of Foreign Judgments: Developments of Inter-Court Diplomacy and New Hague Judgments Convention”, Kobe Law Journal 2019-03, pp. 59-110 (available here) Salim, Rhonson “Quo Vadis Consumer Dispute Resolution? – UK & EU Cross Border Consumer Dispute Resolution in the Post Brexit Landscape”, Revista Ítalo-Española De Derecho Procesal 2022-01, forthcoming (E-pub ahead available here) Sánchez Fernández, Sara “El Convenio de la Haya de Reconocimiento y Ejecución de Sentencias”, Revista Española de Derecho Internacional 73 (2021), pp. 233-252 Saumier, Geneviève “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 49-65 Schack, Haimo “Wiedergänger der Haager Konferenz für IPR: Neue Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens?“, Zeitschrift für Europäisches Privatrecht (ZeuP) 2014, pp 824-842 Schack, Haimo „Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 1-96 Senicheva, Marina “The Relevance and Problems of the Hague Convention of July 2, 2019 on the Recognition and Enforcement of Foreign Judgments Ratification by the Russian Federation”, Advances in Law Studies 8 (2020), online (available: here) Shan, Juan “A study on the Anti-trust Provisions in the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 318-335 Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 1)”, Journal of Russian Law No. 2020-07, pp. 170-186 (available here) Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 2)”, Journal of Russian Law No. 2020-11, pp. 140-54 (available here) Shen, Juan “Further Discussion on the Drafts of the Hague Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and Considerations from Chinese Perspective”, Chinese Review of International Law 2016-06, pp. 83-103 (available here) Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 Silberman, Linda “The 2019 Judgments Convention: The Need for Comprehensive Federal Implementing Legislation and a Look Back at the ALI Proposed Federal Statute”, NYU School of Law, Public Law Research Paper No. 21-19 (available here) Skvortsova, Tatyana Aleksandrovna;
Denyak, Victoria Yurievna “On the issue of Recognition and Enforcement of Court Decisions of a Foreign State in the Russian Federation”, Collection of selected Articles of the International Scientific Conference, Saint Petersburg (2021), pp. 258-261 Solomon, Dennis “Das Haager Anerkennungs- und Vollstreckungsübereinkommen von 2019 und die internationale Anerkennungszuständigkeit“, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 873-893 Song, Jianli “ ‘Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments’ and its influence on my country”, People’s Judicature (Application) 2020-01, pp. 88-92 (available here) Song, Lianbin; Chen, Xi “The Judicial Difference and International Coordination of the Recognition and Enforcement of Foreign Punitive Damages Judgements: Also on China’s Corresponding Measures Under the Frame of HCCH Convention”, Jiang-Huai Tribune 2021-03, pp. 111-113 Spitz, Lidia „Homologação De Decisões Estrangeiras No Brasil –  A Convenção de Sentenças da Conferência da Haia de 2019 e o contrôle indireto da jurisdição estrangeira”, Belo Horizonte 2021 Spitz, Lidia „Refusal of Recognition and Enforcement of Foreign Judgments on Public Policy Grounds in the Hague Judgments Convention – A Comparison with The 1958 New York Convention“, YbPIL 21 (2019/2020), pp 333-364 Stein, Andreas „Das Haager Anerkennungs- und Vollstreckungsübereinkommen 2019 – Was lange währt, wird endlich gut?“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 197-202 Stewart, David P. „Current Developments: The Hague Conference adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, American Journal of International Law (AJIL) 113 (2019), pp 772-783 Stitz, Olivia “Comity, Tipping Points, and Commercial Significance: What to expect of the Hague Judgments Convention”, Corporate and Business Law Journal (Corp. & Bus. L.J.) 2 (2021), pp. 203-236 (available here) Storskrubb, Eva “The EU Commission’s Proposal for the EU to Accede to the Hague Judgments Convention”, EU Law Live Weekend Edition No. 75 (2021), pp. 10-16 (available here) Suk, Kwang-Hyun “Principal Content and Indirect Jurisdiction Rules of the Hague Judgments Convention of 2019”, Korea Private International Law Journal 2020-02, pp. 3-83 Sun, Jin;
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Part 1: JCA 2020-04, pp. 40-45 (available here)

Part 2: JCA 2020-05, pp. 40-45 (available here)

Part 3: JCA 2020-06, pp. 42-49 (available here)

Part 4: JCA 2020-10, pp. 40-46 (available here)

Part 5: JCA 2020-11, pp. 35-41 (available here)

Part 6: JCA 2020-12, pp. 43-48 (available here)

Part 7: JCA 2021-02, pp. 50-56 (available here)

Part 8: JCA 2021-04, pp. 45-51 (available here)

Part 9: JCA 2021-07, pp. 46-53 (available here)

Part 10: JCA 2021-09, pp. 40-46

Part 11: JCA 2021-10, pp. 48-54

Part 12: JCA 2022-01, pp. 45-52

Part 13: JCA 2022-03, pp. 44-51

Part 14: JCA 2022-05, pp. 58-55

Part 15 JCA 2022-07, pp. 49-55 Taquela, María Blanca Noodt ; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 Tian, Hongjun “The Present and Future of the Recognition and Enforcement of Civil and Commercial Judgments in Northeast Asia: From the Perspective of the 2019 Hague Judgments Convention”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 300-317 Tian, Xinyue;
Qian, Zhenqiu;
Wang, Shengzhe “The Hague Convention on the Recognition and Enforcement of Foreign Judgments (Draft) and China’s Countermeasure – A Summary on the Fourth Judicial Forum of Great Powers”, Chinese Yearbook of Private International Law and Comparative Law 2018-01, pp. 377-388 Trooboff, Peter D.;
North, Cara; Nishitani, Yuko;
Sastry, Shubha; Chanda, Riccarda “The Promise and Prospects of the 2019 Hague Convention: Introductory Remarks”, Proceedings of the ASIL Annual Meeting 114 (2020), pp. 345-357 Tsang, King Fung;
Wong, Tsz Wai “Enforcement of Non-Monetary Judgments in Common Law Jurisdictions: Is the Time Ripe?”, Fordham International Law Journal 45 (2021), pp. 379-428 (available here) van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue critique de droit international privé (Rev. Crit. DIP) 2019, pp. 353-365 Viegas Liquidato, Vera Lúcia “Reconhecimento E Homologação De Sentenças Estrangeiras : O Projeto De Convenção Da Conferência da Haia”, Revista de Direito Brasileira 2019-09, pp. 242-256 Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Wang, Quian “On Intellectual Property Right Provisions in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, China Legal Science 2018-01, pp. 118-142 (available here) Wang, Yahan “No Review of the Merits in Recognizing and Enforcing Foreign Judgments”, China Journal of Applied Jurisprudence 2020-04, pp. 78-95 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 (available here) Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279-308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed. 2022 Weller, Matthias „Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019“, in Christoph Althammer/Christoph Schärtl (eds.), Festschrift für Herbert Roth, Tübingen 2021, pp. 835-855 Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Wu, Qiong “The Overview of the 22nd Diplomatic Session of the Hague Conference on Private International Law”, Chinese Yearbook of International Law 2019, pp. 337-338 Xie, Yili “Research on the Intellectual Property Infringment System of the Hague Judgments Convention”, China-Arab States Science and Technology Forum 2021-09, pp. 190-194 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 2017-05, pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Xu, Guojian “On the Scope and Limitation of the Global Circulation of Court Judgments: An Analysis on the Application Scope of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 269-299 Yang, Liu “The Applicable Conditions of the Lis Pendens Rule under the Hague Judgments Convention”, Journal of Ocean University of China (Social Sciences) 2022-05, pp. 99-111 Yang, Yujie “On the Rules of indirect Jurisdiction responding to Litigation – Based on Article 5, Paragraph 1, Item 6 of the Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters” (Master Thesis China Foreign Affairs University Beijing 2021) Yekini, Abubakri

  “The Hague Judgments Convention and Commonwealth Model Law – A Pragmatic Perspective”, Oxford 2021. Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Yuzhakov, D.A. “Legal Regulation of the Procedures for Enforcement of Decisions of Foreign Courts in Economic Disputes”, Urgent Issues of the Entrepreneurship Law, Civil Litigation and Arbitration (Perm State University) No. 4 (2021), pp. 119-123 (available here) Zasemkova, Olesya Fedorovna “ ‘Judicial Convention’ as a New Stage in the Recognition and Enforcement of Foreign Judgments”, Lex Russica 2019-10, pp. 84-103 (available here) Zasemkova, Olesya Fedorovna “Recognition and Enforcement of Foreign Judgments in the Context of the Adoption of the « Judicial Convention » 2019”, in Zhuikov V.M., Shchukin A.I. (eds.), Liber Amicorum Natalia Ivanovna Marysheva, pp. 196-211 Zernikow, Marcel “Recognition and Enforcement of Foreign Decisions in MERCOSUR Letters Rogatory (Carta Rogatória) and National Civil Procedure” Yearbook of Private International Law 22 (2020/2021), pp. 353-380 Zhang, Chunliang;
Huang, Shan “On the Common Courts Rules in Hague Judgments Convention – China’s way for the Judicial Assistance under Belt and Road Initiative”, Journal of Henan University of Economics and Law 2020-05, pp. 103-113 Zhang, Lizhen “On the Defamation Problem in the Hague Judgments Project: Ever In and Now out of the Scope”, Wuhan University International Law Review 2019-01, pp. 41-58 (available here) Zhang, Wenliang “The Finality Requirement of Recognition and Enforcement of Foreign Judgments”, Wuhan University Law Review 2020-02, pp. 19-38 Zhang, Wenliang; Tu, Guangjian “The Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement: Comparison and Prospects for Implementation”, Chinese Journal of International Law 20 (2021), pp. 101-135 Zhang, Wenliang;
Tu, Guangjian “The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 Zhang, Zhengyi;
Zhang, Zhen “Development of the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and Its Implication to China”, International and Comparative Law Review 2020, pp. 112-131 Zhao, Ning “The HCCH 2019 Judgments Convention, adding essential components for an effective international legal framework on recognition and enforcement”, in UIHJ (ed.), David Walker (dir.), Cyberjustice, de nouvelles opportunités pour l’huissier de justice / Cyberjustice, New Opportunities for the Judicial Officer – XXIVe Congrès de l’Union Internationale des Huissiers de Justice – Dubai – 22 au 25 Novembre 2021, Bruxelles 2021, pp. 120-133 Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368 Zirat, Gennadii “Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: A new Contribution of the Hague Conference on Private International Law to the Unification of International Civil Procedure”, Ukrainian Journal of International Law 2020-03, pp. 105-112 (available here)

III. Recordings of Events Related to the HCCH 2019 Judgments Convention

ASADIP; HCCH “Conferencia Internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras”, 3 December 2020 (full recording available here and here) ASIL “The Promise and Prospects of the 2019 Hague Convention”, 25-26 June 2020 (full recording available here and here) Department of Justice Hong Kong; HCCH “Inaugural Global Conference – 2019 HCCH Judgments Convention: Global Enforcement of Civil and Commercial Judgments”, 9 September 2019 (recording available here) HCCH “HCCH a|Bridged: Innovation in Transnational Litigation – Edition 2021: Enabling Party Autonomy with the HCCH 2005 Choice of Court Convention”, 1 December 2021 (full recording available here) HCCH “22nd Diplomatic Session of the HCCH: The Adoption of the 2019 Judgments Convention”, 2 July 2020 (short documentary video available here) JPRI; HCCH; UNIDROIT; UNCITRAL “2020 Judicial Policy Research Institute International Conference – International Commercial Litigation: Recent Developments and Future Challenges, Session 3: Recognition and Enforcement of Foreign Judgments”, 12 November 2020 (recording available here) UIHJ; HCCH “3rd training webinar on the Hague Conventions on service of documents (1965) and recognition and enforcement of judgements (2019)”, 15/18 March 2021 (full recording available here in French and here in English) University of Bonn; HCCH “Pre-Conference Video Roundtable on the HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil and Commercial Matters between the EU and Third Countries”, 29 October 2020 (full recording available here) Lex & Forum Journal; Sakkoula Publications SA « The Hague Conference on Private International Law and the European Union – Latest developments », 3 December 2021 (full recording available here)

 

In a judgment of 12 January 2022, the French Supreme Court for civil and criminal matters (Cour de cassation) ruled again that foreign judgments ordering the payment of disproportionate financial awards violate French public policy and will be denied enforcement on this ground.

Background

The case was concerned with a loan made by a Russian bank to two Russian spouses who were both domiciled in Russia. The purpose of the loan, it seems, was to purchase immovables in Russia. The lender sought repayment of the loan in Russian courts, and a court of St Petersburg eventually the borrowers to repay. The contract provided for the payment of various interests, including an interest ranging from 30 to 50% in case of default.

The bank sought to enforce the Russian judgment in France, aiming at a home of the borrowers on the French Riviera

The spouses resisted enforcement of the judgment on the ground that the interest rate was contrary to French public policy.

First Judgment

The Paris Court of Appeal has initially declared enforceable the Russian judgment on the ground that the French rules prohibiting that interest rates go beyond a certain level (usury) were not internationally mandatory.

In a judgment of 17 October 2018, the Cour de cassation allowed an appeal against this decision by ruling that the court of appeal should have concretely assessed whether the interest rate applied by the foreign court might violate French public policy.

Second Judgment

The case was remanded to another chamber of the Paris court of appeal which denied enforcement to the Russian judgments. The court relied on the caselaw of the Cour de cassation which has ruled since 2010 that, while punitive damages are not, per se, contrary to French public policy, they can be if they are disproportionate.

The appeal of the bank to the Cour de cassation was dismissed. The French supreme court held that the court of appeal had rightly ruled that, while punitive damages are not, per se, a violation of French public policy, financial awards are contrary to public policy when the financial award was disproportionate considering 1) the harm suffered and 2) the contractual breach.

The court concluded that the application of the interest rate violated French public policy, as informed by the fundamental right to property.

Assessment

The judgment is merely a confirmation of a clear trend in the case law of the Cour de cassation to assess the proportionality of financial awards granted by foreign courts. Although the first judgment of the court was concerned with punitive damages, the scope of the rule is much broader, as confirmed by this judgment. The Paris court of appeal has also suggested that it would apply it in the context of enforcement of arbitral awards.

The appeal had made an interesting, and to my knowledge, novel argument. It insisted that proportionality should also be assessed with respect to the wealth of the debtors. It is unknown whether the debtors were oligarchs with other properties throughout western Europe, but should it matter for the analysis? The argument is rejected, but only on the basis that it had not been made before the court of appeal.

Finally, an interesting aspect of the case is that it had so few connections with France. Decades ago, this would have been perceived as critical, under the doctrine of effet attenué de l’ordre public: situations created abroad should not be scrutinised as closely (read: not scrutinised at all) as situations to be created in France. But the Cour de cassation has not applied or referred to this doctrine in decades. The judgment does not even care to respond to the argument, which confirms that the doctrine has become obsolete under French law.

The International Journal of Procedural Law is a new  multilingual journal that provides an international research platform for scholars and practitioners in the field of procedural law, especially in civil matters.

The following papers were published in this issue:

Editorial

E Oteiza

DOCTRINE/STUDIES

A Nylund, “Introduction: Perspectives on Orality in Civil Proceedings”

FG Inchausti, “Challenges for Orality in Times of Remote Hearings: Efficiency, Immediacy and Public Proceedings”

MA Hjort, “Orality and Digital Hearings”

V Benabou and E Jeuland, “From the Principle of Immediacy to the Principle of Presence: A French Example and a Comparative Law Perspective”

A Nylund, “Oral Proceedings during the Preparatory Stage”

M Strandberg, “Immediacy, Orality and Appellate Proceedings”

 

PRATIQUE/PRACTICE

Analyse Comparative/ Comparative Perspectives

C Wendelstein, “Online Trading of Cryptocurrencies: A European Civil Procedure Law Perspective”

TA Alvim et al, “Class Actions in Brazil”

MA Lupoi, “Grandes Décisions/Leading Cases”

 

 

A collection of essays in honour of Haimo Schack (Ius Vivum: Kunst – Internationales – Persönlichkeit: Festschrift für Haimo Schack zum 70. Geburtstag) has just been published by Mohr Siebeck, edited by Sebastian Kubis, Karl-Nikolaus Peifer, Benjamin Raue and Malte Stieper.

The book brings together more than ninety contributions, mostly in German, grouped under six headings: art law and the law of culture; intellectual property law; private international law; international civil procedure; the law of personality; civil law, civil procedure and comparative law.

The section devoted to private international law features essays by Christine Budzikiewicz, Morten M. Fogt, Susanne Gössl, Jan von Hein, Christian Heinze, Peter Huber, Claudia Mayer, Joachim Münch, Dennis Solomon and Astrid Stadler.

The international civil procedure section comes with essays by Jürgen Basedow, Dagmar Coester-Waltjen, Gilles Cuniberti, Masahisa Deguchi, Tanja Domej, Anatol Dutta, Martin Gebauer, Reinhold Geimer, Wolfgang Hau, Peter Hay, Burkhard Hess, Jan Felix Hoffmann, Abbo Junker, Eva-Maria Kieninger, Christian Kohler, Herbert Kronke, Sebastian Kubis, Stefan Leible, Felix M. Wilke, Dieter Leipold, Luís de Lima Pinheiro, Volker Lipp, Mark Makowsky, the late Peter Mankowski, Peter G. Mayr, Pedro A. De Miguel Asensio, Thomas Pfeiffer, Oliver Remien, Herbert Roth, Rolf A. Schütze, Michael Stürner, Rolf Stürner, Christoph Thole, Dimitrios Tsikrikas, Rolf Wagner and Markus Würdinger.

Issues related to private international law and international litigation are also dealt with in contributions found in other sections.

The full table of contents is available here.

The ILA Reporter, the official blog of the International Law Association (Australian Branch), is currently calling for submissions on private international law to be published on the website.

The Reporter provides leading analysis, commentary and discussion on public and private international law issues, which have a bearing on Australia and the wider region. The length of contributions is flexible – anywhere between 500 and 1,500 words is ideal, and we frequently publish multi-part article series.

Would you or any of the postgraduate students in the law school be interested in publishing in the ILA Reporter?

Terms and conditions for the submissions are available here, and submissions should conform to the ILA Reporter’s Style Guide here.

 

On Tuesday, October 4, 2022, the Hamburg Max Planck Institute will host its 26th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. -12:30 p.m. (CEST). Prof. Sabine Corneloup (Paris-Panthéon-Assas University) will speak, in English, about the topic

Migrants in Transit or Under Temporary Protection: How Can Private International Law Deal With Provisional (But Not Necessarily Short-Term) Presence?

An increasing number of migrants are provisionally present in the territory of a State other than their State of origin, be it because they are granted temporary protection until they can return to their country of origin (4 million refugees from Ukraine registered for Temporary Protection in Europe), or because migration policies – notably externalization measures – prevent them from accessing the territory of their State of destination. As a result, many migrants are blocked for months if not years in transit countries at the external borders of Europe, before being able to resume their migratory route. Their provisional presence, which initially was meant to remain transitional and short-term, often becomes indefinite. In the meantime, life goes on: children are born, couples marry and divorce, parental child abductions take place etc.
How can Private International Law deal with these situations? The presentation aims to explore PIL connecting factors, such as nationality, habitual residence and mere presence, and assess their appropriateness for migrants on the move or under temporary protection. The 1951 Geneva Refugee Convention, which requires that the personal status of refugees be governed by the law of domicile or residence, does not provide an answer to all difficulties.

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

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

This post was written by Robert Vogelauer, Vienna.

In a decision of 27 January 2022 the Austrian Supreme Court ruled on how Brexit affects a British Private Limited Company (Ltd.) that was incorporated in England but conducted all of its business operations in Austria (OGH 9 Ob 74/21d). It did so only a couple of months after a German court denied a Berlin-based Ltd. legal capacity in a similar case (OLG München, 29 U 2411/21 Kart), though the Austrian court came to a different conclusion.

Facts, Procedure and Holding

In 2016, a UK Ltd. based in Styria (Austria) sued one of its clients for payment of outstanding debt before an Austrian court. The legal proceedings dragged on for several years. In February 2021, the defendant filed to have the lawsuit dismissed, arguing that the Ltd. had lost its legal capacity due to Brexit and could therefore no longer be party to the proceedings. In response, the claimant petitioned the court to change its party designation to that of an Austrian civil law partnership (GesbR) – a strange choice, since a GesbR also lacks legal capacity. The courts of first and second instance agreed with the defendant and dismissed the lawsuit. The Austrian Supreme Court, however, decided that the proceedings could continue, though the claimant’s party designation would have to be changed to the name of the Ltd.’s sole shareholder.

Application of Austrian International Company Law

The court stated that since the claimant was no longer incorporated in an EU Member State, Austrian international company law would determine the company’s legal capacity. The court then applied the real seat theory according to § 10 of the Austrian Private International Law Act, which states that a company’s legal capacity is to be assessed under the law of the country where its headquarters are located. Since the headquarters were undoubtedly located in Styria, the court applied Austrian company law.

The court ruled that the Ltd. had lost its legal capacity because Austrian company law only grants legal personhood to an exhaustive list of corporate forms (numerus clausus), with the Ltd. not being one of them.

Despite this, it did not dismiss the lawsuit. According to the court, a Ltd. with headquarters in Austria was not legally inexistent, but would rather need to be viewed “through the lense of Austrian company law”. The court ruled that the sole shareholder of the Ltd. had become its universal successor by analogously applying § 142 of the Austrian Business Code (usually referred to for dissolving partnerships) and was now to be considered a merchant under Austrian law. As the universal successor of the Ltd., the sole shareholder could continue the proceedings in place of the Ltd., though the party designation would have to be changed.

Comparison to the OLG Munich’s Decision

The decision from the Austrian Supreme Court came only months after the Higher Regional Court of Munich (OLG Munich) dismissed the lawsuit of a UK Ltd. based in Berlin for lack of legal capacity. Though the courts reach different conclusions, their reasoning is quite similar for the most part. Both courts agree that the UK-EU Trade and Cooperation Agreement cannot be invoked to avoid the application of the real seat theory and that the Ltd. as such cannot remain party to the proceedings. They also agree it would go against creditors’ and public interest to treat the Ltd. as legally inexistent. The OLG Munich then applies what it calls the “mild” real seat theory and states a Ltd. will have to be categorized as a merchant or a partnership under German law. The Austrian Supreme Court reaches the same result by looking at the Ltd. “through the lense of Austrian company law”.

The OLG Munich’s decision leaves something to be desired from a procedural standpoint. It dismissed the lawsuit without answering whether or not it considered the Ltd. and its shareholder(s) to be the same procedural party. This is of crucial importance because by dismissing the lawsuit for lack of legal capacity, the Ltd – or rather, its shareholders – retroactively lost lis pendens status for their claim, meaning even if they filed the lawsuit again under their own names, statutory limitation periods would apply as if the previous lawsuit had ended the day after Brexit. If the court had ruled that the Ltd. and its shareholders were the same party from a procedural standpoint, then the proceedings could have continued with a changed party designation. Furthermore, the court would technically be required to order a change of party designation ex officio if it believed the Ltd.’s shareholder(s) to be the same party. The Austrian Supreme Court avoided this issue by declaring the sole shareholder to be the Ltd.’s universal successor, which meant they also succeeded the Ltd. in the proceedings.

Assessment

Shareholders of UK Ltds. based in Austria have effectively lost the protection of their corporate entity and can now personally be held liable for their company’s debts. It would have been desirable if the court had at least shielded shareholders from liability for debts incurred before Brexit – though this would have required a bit of a methodological stretch.

Austria-based Ltds. face further legal uncertainty because the UK – like many other countries – assesses legal capacity for companies based on the place of incorporation. This means UK Ltds. only operating in Austria are still recognized as legal entities by the UK and other countries that also follow the incorporation theory. This may result in situations where a contract with the Ltd. is considered valid before a foreign court, but in Austria it would be considered void or – even if it was not – it would be unclear who the parties to that contract were. Austrian courts will have to deal with these issues in future rulings.

In a decision (“views”) adopted on 1 June 2022 (CRC/C/90/D/121/2020), the UN Child Rights Committee (CRC) held that the best interest of a child must be taken into consideration before a child is returned after an unlawful retention.

The CRC primarily monitors compliance with the Convention on the Rights of the Child (Child Convention). In a decision regarding a Chilean child abduction case pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (1980 Hague Convention), the committee made a statement on the interplay of the Child Convention and the 1980 Hague Convention. It is the first time ever that the CRC makes a statement regarding the 1980 Hague Convention.

The background to the case was that a mother and her child had not returned to the father in Spain from a stay in Chile. The father initiated a restitution request in Chile for unlawful retention according to the 1980 Hague Convention. A family court of first instance rejected the father’s request with reference to, among other things, the best interest of the child and the fact that the father had consented to the child being in Chile. The case was overturned by the Chilean Supreme Court, that held that the child should return to the father in Spain.

In the CRC decision, the Chilean Supreme Court judgment is criticized for not considering the best interest of the child. The critique in the CRC decision does not question the conclusion that the child should be returned to Spain. Instead, the essence of the critique was that the Supreme Court did not take the best interest of the child into consideration in the right way.

First, the CRC held that the Supreme Court decision did not indicate how the return of the child should be made. Second, the CRC criticized the Supreme Court procedure. Before the Supreme Court, there was an interlocutory hearing which was limited to the enforcement of the return of order. According to the CRC, this limitation did not give enough remedy for the possible exceptions to immediate return set out in the 1980 Hague Convention.

Sydney Law School is pleased to announce the inaugural Kim Santow Law and Social Justice Essay Prize. For more information, see here.

The Essay Prize is open to students enrolled in an LLB or JD program at an Australian University.  In 2022, essays must be submitted by  by 5.00 pm (AEDT) on Monday 31 October 2022. The Essay Prize will be awarded in association with the annual Kim Santow Expert Panel on Law and Social Justice which will take place on Thursday 1 December 2022.

Rules for the competition are below:

Kim Santow Law and Social Justice Essay Prize 2022: Rules

1. The Kim Santow Law and Social Justice Essay Prize is open to any student enrolled in an LLB or JD degree program at an Australian tertiary institution at the time of submission or within the previous six months.
2. Essays must have been written in the 12 months before the submission deadline. A person may not submit more than one essay to the Competition in any given year.
3.  Essays must respond to the following proposition:
   The NDIS is described as a shift from a welfare system to a market-based system, but there may be limitations in relying on competition and choice in the provision of disability support. Discuss.
4. Essays must be no more than 3,000 words. Essays exceeding this word limit will not be accepted. Footnotes if used, and bibliographies (required), are not included in the final word count.
5. Essays must be submitted as a .pdf document by email to <law.reform@sydney.edu.au>.
6. The deadline for submission of essays is 5.00 pm (AEDT) on Monday 31 October, 2022. No extensions will be allowed.
7. Essays must meet the highest standards of academic integrity, and be fully and accurately referenced according to a recognised referencing standard (eg, AGLC, Harvard, MLA).
8. Each person submitting an essay must declare that the essay is the person’s own original work. By submitting an essay, a person agrees that Sydney Law School may conduct an integrity check for copyright infringement or plagiarism.
9. An essay that is submitted to the Competition must be accompanied by a separate cover page stating:
   a.     the author’s name, contact email and telephone number
   b.     a declaration of enrolment (see rule 1)
   c.     a declaration of time (see rule 2)
   d.     a declaration of integrity (see rule 7)
10. A submitted essay must not include any information – for example in a header or footer – that identifies the author, so that it can be marked anonymously.
11. Eligible essays will be reviewed by a panel of experts against the following criteria:
    1. Novelty: does the essay address a cutting-edge issue and/or contribute a novel perspective or analysis to the question
    2. Argument: is the argument clear, compelling, well-developed and supported by evidence?
    3. Clarity and structure: is the essay written clearly and concisely, and organised in a logical and effective way?
    4. Accuracy: is the essay presented neatly and legibly, with few or no content, typographical, grammatical and referencing errors?
12. The best essay will be announced on 1 December, 2022 at the Kim Santow Experts Panel on Social Justice to be hosted at the Sydney Law School. The decision of the judging panel is final.
13. The judging panel may in its discretion decline to award prizes.
14. Subject to rule 13, the author of the Winning Essay will each receive a prize of AU$1000.
15. The author of the Winning Essay will be offered academic support and advice to revise their work for submission for publication.
16. The author of the Winning Essay agrees that if their essay is published (by any means, in any forum), that its publication will be accompanied by an acknowledgment that the essay won the Prize in the relevant year.

Please direct any inquiries to Mr Josh Pallas at <law.reform@sydney.edu.au>.

 

The new issue of the Revue Critique de Droit International Privé (3/2022) is out.

It contains three articles relating to the French project of PIL codification (of which readers of the blog are well informed, see here and here), as well as numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po Law School), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (De codice ferendo ?)

In the first article, Dominique Foussard (Avocat au Conseil d’Etat et à la Cour de cassation, Paris Bar), Marie-Laure Niboyet (University of Paris-Nanterre) and Cyril Nourissat (University of Lyon 3), all members of the working group on the (French) PIL codification, present the main results of the draft code under a methodological perspective (Réflexions méthodologiques sur le projet de code de droit international privé). 

On March 31, a draft code of private international law (of 207 articles) was submitted to the French Minister of Justice. It was drawn up by a working group, headed by President Jean-Pierre Ancel. The French Ministry of Justice has now decided to submit the draft code for public consultation. The editorial staff of the Revue critique has opened its columns to three members of this group, to supplement with methodological reflections the analysis of the main provisions of the draft which can already be found in the accompanying explanatory report. These reflections are based on four observations : large parts of the discipline are still governed by national law ; conversely, when it is attested, the growth of international conventions and European Union law reveals the need for national norms of reference or adaptation to facilitate their application ; many rules of positive law should be reformed or completed in an overall vision of the discipline, and not on a piecemeal basis, on the occasion of a special law ; the increase in the international movement of persons accentuates the need for practitioners to have a complete corpus for the exercise of their activities, both as litigators and as advisors. Based on these findings, the draft has endeavored to respond to three essential challenges, namely the synergy of the sources of the subject-matter, the predictability of the rules enacted and the satisfaction of the objectives of private international law.

In the second article, Stefan Leible (University of Bayreuth) and Felix M. Wilke (University of Bayreuth) analyse the French draft PIL code from a German perspective (Le Projet de code de Droit International Privé. Une vue d’Allemagne, soon available in English on Dalloz website). Some elements of this analysis have already been shared with the readers of this blog here.

From a German perspective, there is much in the French Draft Code of Private International Law (“Draft Code”) to be appreciated ; in part, one can even be envious. Not only is there still room for a national PIL codification, but it can also enhance legal clarity, even where it only refers to applicable EU regulations. It is user-friendly to combine rules on procedure with conflict-of-laws provisions in one instrument and sensible to devote one part of the Draft Code to general provisions. The rules of the Draft Code on the PIL of contractual and non-contractual obligations as well as on companies in particular by and large could serve as models for German legislation. Conversely, here and there, German PIL rules might provide some inspiration for (minor) adjustments of and additions to the Draft Code. Some of the proposed rules, however, seem less than ideal. To allow renvoi only where at least one of the parties so demands neither serves legal clarity nor always makes life easier for the judge. The rule on lois de police could cause or perpetuate misunderstandings about their legal nature. It is doubtful whether a provision on fraude à la loi is truly necessary. To keep nationality as a connecting factor for jurisdiction can be considered particularly exorbitant. Yet all of this should not detract from the impressive and thought-provoking achievement that is the Draft Code.

In the third article, Paul Lagarde brings his extensive transnational experience and expertise to develop a challenging analysis of the draft PIL code (Quelques remarques sur le projet de codification du droit international privé français).

At a time when private international law in force in France comprises, for the most part, European law, whether it be European Union Regulations or the case law of the European Court of justice and sometimes indeed the European Court of Human Rights, the notion that French private international law should be codified independently of these other sources is both a source of astonishment and the cause for regret for the lost opportunity of a systemization of European conflicts of laws.This criticism is of particular relevance, moreover, in respect of what is known in continental legal terms as the general part of our discipline, such as the provisions on the duties of the court with regard to foreign law or the sanction applicable to various abusive strategies (playing the system or “fraude à la loi”). Furthermore, independently of any value judgment on the proposed texts, they are likely to be difficult to handle for the very non-specialists for whose benefit the project was intended.

More information is available here.

The author of this post is Francesca Maoli, who is a Researcher at the University of Genova.

The Brussels II ter Regulation on matrimonial matters, matters of parental responsibility and child abduction has become fully applicable on 1 August 2022, meaning that legal proceedings instituted on or after that date, as well as authentic instruments and agreements registered on that date or afterwards, must, in all EU Member States (excluding Denmark), be dealt with in accordance with the Recast Regulation, rather than its predecessor, the Brussels II bis Regulation

Amending Brussels II bis: Improve the Tradition or Face Innovation?

The process that eventually resulted in the adoption of the Recast Brussels II Regulation was launched on the assumption that, overall, the old Brussels II bis Regulation had functioned reasonably well. The 2014 European Commission’s Report on the operation of the latter Regulation stressed that the system was in need of improvement, rather than radical change.

The existing rules have undergone several changes. Some amount to simple refinements and fixings. Others are more meaningful.

The most prominent innovation brought about by the Brussels II ter Regulation is, arguably, the abolition of exequatur for all decisions on parental responsibility. The two-track system envisaged in Brussels II bis, however, remains in place. While the general discipline is now contained in Article 30 and following of the Brussels II ter regulation, ‘override’ return orders and access orders (which the old regime already regarded as ‘privileged’ decisions) keep on benefiting from a special regime. Recognition and enforcement of the latter orders can be refused if they are irreconcilable with a later decision relating to parental responsibility concerning the same child, provided that such a later decision was given (i) in the Member State where recognition is invoked, or (ii) in another Member State or in the non-Member State of the habitual residence of the child, provided that the conditions necessary for its recognition in the Member State are met.

This post does not purport to analyse the new rules in details (a wealth of literature has been produced on the topic: see here for some references). It merely intends to ‘zoom in’ a selection of issues of special practical importance.

Private Divorces

The European Commission set itself the object of retaining the status quo as concerns matrimonial matters (this was, actually, the preferred policy according to the 2016 Recast Proposal). The Recast Regulation has nevertheless introduced, also in this area, some significant innovations.

One such innovation is about ‘private divorces’, i.e., divorces that fundamentally occur out of court, based on an agreement between the spouses.

The Brussels II ter Regulation comes with a definition of authentic instruments and agreements, respectively in Article 2(2) and (3). Authentic instruments and agreements in matrimonial matters, if they are given binding legal effects in the Member State of origin, benefit from recognition ‘without any special procedure being required’ (Article 65(1)), unless one of the grounds for refusal of recognition provided by Article 68(1) apply. The same is true of authentic instruments and agreements in matters of parental responsibility (Article 65(2)).

In practice, as clarified in Recital 70, authentic instruments and agreements are to be treated as equivalent to decisions. For this, they must have been formally drawn up or concluded in a Member State that would have had jurisdiction according to the regulation (Article 64). Where this is not the case, they may still circulate across Member States under domestic PIL provisions, or otherwise.

The EU decided to adopt rules on private divorces in light of developments that have arisen, recently, in domestic legislations. When the Brussels II bis Regulation was adopted, the laws of the Member States did not contemplate out-of-court divorces. This is why the Regulation itself failed to include provisions in this regard. This state of affairs has proved problematic. A case is currently pending before the ECJ (C‑646/20, Senatsverwaltung für Inneres und Sport), concerning a dissolution of marriage by joint declaration of the spouses before an Italian civil registrar, whose duty is to assess whether the conditions for an out-of-court divorce are met (Article 12 of the Italian Decree Law No 132/2014 requires, inter alia, that the spouses do not have minor children). While noting that ‘Regulation No 2019/1111 is inapplicable to the present case ratione temporis’, being therefore ‘not possible to draw any conclusions from it for the purposes of interpreting Regulation No 2201/2003’, AG Collins suggested in its Opinion that Articles 2 and 21(1) of the Brussels II bis Regulation be given a broad interpretation, thereby concluding that Italian private divorces should be treated as ‘divorce judgments’ for the purpose of the Brussels II bis Regulation (just like they will do under the Recast Regulation).

The Best Interests of the Child and the Child’s Participation in Parental Responsibility Proceedings

The most significant changes brought about by the Brussels II ter Regulation concern children. One key goal of the Regulation is to enhance the protection of their fundamental rights, as enshrined in the UN Convention on the Rights of the Child (UNCRC), the European Convention on Human Rights (ECHR) and the Charter oof Fundamental Rights of the European Union. Specifically, Article 24 of the Charter creates a link between children’s rights – as protected by universal and regional systems – and the EU legal order.

The Regulation fosters the principle of the best interests of the child, which underlies both the general ground of jurisdiction of the habitual residence of the child (Recital 20) and the rules on the recognition and enforcement of judgments (Recital 55).

While the overall regime of jurisdiction in parental responsibility matters is left substantially unaltered, some significant revision occurred concerning choice of court. Article 10 of the Brussels II ter Regulation provides the formal and substantial condition that an agreement of the parties must fulfil to be effective: those conditions reflect, in general, a concern for the best interests of the child. Among the other requisites, a ‘substantial connection’ must exist between the child and the State of the chosen forum. The new provision expands the cases in which the aforementioned connection is deemed to exists, thus creating more possibilities to exercise party autonomy. In addition, the choice of court results now disconnected from the existence of a proceeding concerning the dissolution of marriage (even if Recital 23 still mentions this circumstance). Finally, ‘persons who become parties to the proceedings after the court was seised may express their agreement after the court was seised’, with the specification that such acceptance of jurisdiction during the proceedings may also be implicit (Article 10(2)).

Child participation is another key issue. Recital 2 states that the Regulation ‘clarifies the child’s right to be provided with an opportunity to express his or her views in proceedings to which he or she is subject’, thus recognizing the already existing obligations stemming from international and EU law. The hearing of the child finds a comprehensive discipline in Article 21, which sets out a general obligation to hear the child in all proceedings on parental responsibility, in line with Article 12 UNCRC. The same obligation is stated in Article 26 in the context of child abduction proceedings.

All in all, a decision relating to a child may not be enforced if the child concerned was not given the opportunity to express their views in accordance with Article 21 (unless specific circumstances occur, as specified by Article 39(2)). As to ‘privileged decisions’, namely, overriding orders and orders concerning the rights of access, the violation of Article 21 prevents the issuance of the certificate aimed at facilitating recognition and enforcement (Article 47(3)(b)).

In spite of the foregoing, the opportunity for the child to be heard is still subject to ‘the national law and procedure’. Therefore, it remains unclear to what extent national practices of the Member States will be affected by the new provisions. The importance of the described innovations should, however, not be underestimated. The Regulation has built a solid link between EU proceedings on parental responsibility, on the one hand, and the obligations arising from international texts in this area. Against this background, in order for the child to be given a ‘genuine and effective opportunity to be heard’ (Articles 21 and 26), other aspects should be considered, such as the right of the child to receive adequate information, as suggested, inter alia, by the Guidelines of the Council of Europe on Child-Friendly Justice and the recent work of the Committee of experts on the rights and the best interests of the child in parental separation and in care proceedings (CJ/ENF-ISE).

The focus on the child’s best interests is further witnessed by Article 56 of the Recast Regulation. This provides that the enforcement of a decision may be suspended if it ‘would expose the child to a grave risk of physical or psychological harm due to temporary impediments which have arisen after the decision was given, or by virtue of any other significant change of circumstances’. According to Recital 69, this may take the form of a manifest and strong objection of the child voiced after the adoption of the decision (Recital 69).

International Child Abduction

Chapter III of Brussels II ter is about international child abduction. The new instrument confirms the intention to enhance the operation of the 1980 Hague Convention with respect to intra-EU abductions. The overriding mechanism or trumping order, which consents the court of the Member State of habitual residence of the child before the abduction to the return of the child despite a contrary decision issued in the State of refuge, is still operating. However, the recourse to the overriding mechanism is permitted only when the decision of non-return has been issued pursuant Article 13(1)(b) (grave risk of harm) and 13(2) (objection of the child) of the 1980 Hague Convention. Moreover, the court of the child’s habitual residence can issue such a decision only in the context of a proceedings on the merits of parental responsibility, thus reaching a stable assessment on the future of the child. Therefore, the risk of multiple transfers is mitigated.

On other aspects, the discipline is more detailed. Some innovations, inspired to the will to give substantial content to the child’s best interests, are to be welcomed.

The whole Article 24 of the Regulation is dedicated to the celerity of return proceedings: a term of six week after the lodgment of the application is prescribed at each instance, unless ‘exceptional circumstances’ make it impossible to respect this time limit. As concerns appeal proceedings, the term starts to run at the moment in which ‘the required procedural steps have been taken and the court is in a position to examine the appeal’. Similar obligations are placed upon Central Authorities, which shall act expeditiously in processing return applications. The same purpose inspires the possibility to declare return orders provisionally enforceable, notwithstanding any appeal (Article 27(5)). The enforcement proceedings themselves must be fast (Article 28).

The Regulation also provides that the requested court may invite the parties to consider mediation or other ADRs, unless it would result contrary to the best interests of the child, not appropriate in the particular case or would unduly delay the proceedings (Article 25). The explicit mention of this possibility follows the specific attention that the family law scholars and practitioners are devoting to mediation, the potentialities of which are undoubtful. For this reason, the recast could have devoted even more structured discipline to mediation, currently mentioned only in the Chapter dedicated to international child abduction.

The best interests of the child also play a crucial role when it comes to provisional measures aimed at ensuring a contact between the child and the person seeking the return of the child (Article 27(2)). The requested court, while deciding on the return, may also adopt provisional, including protective, measures that are  recognized and enforced in all other Member States until the court with jurisdiction as to the substance intervenes (as results from Articles 27(5), 35(2) and 36(1)(c), as well as Recitals 30, 44-46 and 59).

Autonomy, Flexibility and Protection of the Rights of the Child: The Role of Cooperation

Overall, the approach of the EU lawmaker with the Brussels II ter Regulation has resulted in the will to balance the enhancement of party autonomy, the need to grant judicial and non-judicial authority a certain degree of flexibility and the protection of the fundamental rights of the child.

As already mentioned, the latter has inspired some detailed obligations concerning, inter alia, the hearing of the child and a specific attention towards the discipline of international child abduction proceedings. While party autonomy has been empowered also in the context of parental responsibility, through the new discipline on choice of court agreements and implicit acceptance of jurisdiction, those rules have been surrounded by safeguards aimed at protecting the child’s best interests. The same reasoning applies to authentic instruments and agreements circulating according to Article 65(2) of the regulation, which are subject to the grounds for refusal of recognition or enforcement provided by Article 68(2) and (3). Specific reference is made to the possibility for the child to express his or her own views, which may result compressed in the context of out-of-court proceedings or private arrangements.

At the same time, the objective of protect children and their best interests has sustained the introduction of a certain degree of flexibility to national authorities: for instance, the possibility to issue cross-border protective orders pending an international child abduction proceedings, or to suspend the enforcement of a decision when the physical or the psychological wellbeing of the child is at risk.

In this context – and with a view to those objectives – the new provisions of the regulation dedicated to cooperation are of particular interests. Direct cooperation and communication between courts and between Central Authorities are now subject to a more detailed discipline and, therefore, encouraged. Chapter V is entirely dedicated to the role and obligations of Central Authorities, when cooperating between themselves and with courts. Other provisions are to be found in other parts of the regulation. Article 86 concerns direct judicial communication and provides that courts from different Member States should cooperate and communicate directly in all cases that are appropriate (for instance, when a court takes provisional or protective measures, it shall inform the court of another Member State having jurisdiction). The dialogue between judicial authorities can effectively contribute to the good administration of cross-border situations, as well as support swifter procedures, with positive repercussions on children. Of course, it could provide specialized training for judges, who need to be acquainted with this possibility and perhaps acquire new skills.

Those and other provisions contribute to a more fragmented discipline compared to the Brussels II bis regulation. On the other hand, if well applied, they may contribute to a better enhancement of the child’s best interests in the EU judicial space. As always, the application of the tool in practice will show its fruits.

The Nigeria Group on Private International Law “(NGPIL”) invites submissions for the annual NGPIL Conflict of Laws’ Competition. The winner will be awarded for the best essay on any aspect of Nigerian conflict of laws. Entries will be accepted from the following: an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practising and residing in Nigeria. The essay should be unpublished at the time of submission. Submitted essays should be in the English language. Submitted essays should also be within five to eight thousand words. Competitors may be citizens of any nation, age or gender but must be an undergraduate and/or postgraduate scholar studying in Nigeria, or any lawyer below five years post-call experience practising and residing in Nigeria.

The first prize is ?120,000 Naira (NGN), and the winner of the competition will be encouraged to publish the paper in any high-quality peer reviewed journal on private international law (conflict of laws). The second prize is ?80,000 Naira (NGN), and third prize is ?50,000 Naira (NGN). The prize is sponsored by and will be awarded by NGPIL.

Submissions to the Prize Committee must be received no later than January 9, 2023. Entries should be submitted by email in Word or pdf format. The winner will be announced no later than 2 months after the deadline. Decisions of the NGPIL on the winning essay and on any conditions relating to this prize are final. Submissions and any queries should be addressed by email to ngpilaw@gmail.com. All submissions will be acknowledged by e-mail.

A monograph titled Cross-Border Recognition of Formalized Same-Sex Relationships. The role of ordre public, written by Laima Vaige, a senior lecturer in law at Örebro University (Sweden),  was published recently by Intersentia. It is included, as volume 53, within the renowned European Family Law series.

The abstract of the monograph reads as follows:

Same-sex relationships have successively qualified for formalization through marriage or registered partnership in many European countries. However, some EU Member States still refuse to give them any form of recognition or only allow very limited legal effects. The irregular speed of development in domestic family laws in EU Member States results in “limping family” relations, that is, family relations that are recognised as creating a formal civil status in many EU Member States, but not in all of them. The ordre public safeguard of private international law has widely been used to justify why a same-sex marriage or registered partnership cannot be recognised. The pretext tends to be that national identity, allegedly, becomes threatened. Nevertheless, the case-law of the European Court of Human Rights and the Court of Justice of European Union provides new standards for recognition, which create legal obligations for EU Member States.

The author focuses on the interaction between human rights standards and private international law, carrying out a deft investigation of the impact of “Europeanization” on this interaction, analysing legal effects of same-sex marriages and registered partnerships in the Baltic States and Poland in a cross-border context. The central theme in this book is the elusive and ever-changing concept of ordre public, and the interplay between its understanding(s) at the national and European levels.

The aim of this book is to evaluate the impact of culture in this area of study, within the context of the analysed States’ recent histories, societal developments, and religions. This book is published at a time of clashes between traditional family values and gender equality in Europe. In States like Lithuania and Poland, the heterosexual nature of marriage is considered to be a fundamental component of the State’s national identity and public policy. Nevertheless, the book reveals how different legal understandings of national identity, ordre public, and the family can co-exist in parallel.

Table of contents is available here, and the book, also as an e-book, may be purchased here.

The second issue of Journal of Private International Law  for 2022 was released today. It features the following interesting articles:

T Kruger et. al., Current-day international child abduction: does Brussels IIb live up to the challenges?

Regulation 2019/1111 tries to tackle the new challenges arising from societal changes and legal developments in international child abduction. The result is a sophisticated set of rules centred on the child and aimed at enhancing their protection. The Regulation provides for the hearing of the child and for speedy and efficient proceedings. In it the EU acknowledges its role in the protection of human and children’s rights and sets goals towards de-escalating family conflicts. The new EU child abduction regime is at the same time more flexible than its predecessor allowing consideration of the circumstances characterising each single case in the different stages of the child abduction procedure

O Vanin, Assisted suicide from the standpoint of EU private international law

The article discusses the conflict-of-laws issues raised by such compensatory claims as may be brought against health professionals and medical facilities involved in end-of-life procedures. The issues are addressed from the standpoint of EU private international law. The paper highlights the lack of international legal instruments on assisted-suicide procedures. It is argued that the European Convention on Human Rights requires that States provide a clear legal framework concerning those procedures. The author contends that the said obligation has an impact on the interpretation of the relevant conflict-of-laws provisions of the EU.

 

S Avraham-Giller, The court’s discretionary power to enforce valid jurisdiction clauses: time for a change?

The paper challenges the well-rooted principle in the Anglo-American legal tradition that courts have discretion whether they should enforce a valid jurisdiction clause. The paper highlights the ambiguity and uncertainty that accompany this discretionary power, which raises a serious analytical problem. The paper then analyses two factors that shaped this discretionary power – jurisdictional theories and the general principle of party autonomy in contracts. Based on the analysis, the paper argues that the time has come to end the courts’ discretionary power with respect to the limited context of the enforcement of valid jurisdiction clauses. The proposal relies on a number of foundations: contractual considerations that relate to autonomy and efficiency; jurisdictional and procedural considerations, including the consent of a party to the jurisdiction of the court by general appearance; the increasing power of parties to re-order procedure; the more appropriate expression of the forum’s public interests and institutional considerations through overriding mandatory provisions; and finally the legal position regarding arbitration agreements and the willingness of a common law legal system such as the United Kingdom to accede to the Hague Convention on Choice of Court Agreements.

 

TT Nguyen, Transnational corporations and environmental pollution in Vietnam – realising the potential of private international law in environmental protection

Many transnational corporations have been operating in Vietnam, contributing to economic and social development in this country. However, these actors have caused a number of high-profile environmental incidents in Vietnam through the activities of their local subsidiaries, injuring the local community and destroying the natural ecosystem. This paper discloses the causes of corporate environmental irresponsibility in Vietnam. Additionally, this paper argues that Vietnam’s private international law fails to combat pollution in this country. To promote environmental sustainability, Vietnam should improve ex-ante regulations to prevent and tackle ecological degradation effectively. Additionally, this paper suggests that Vietnam should remedy its national private international law rules to facilitate transnational liability litigation as an ex-post measure to address the harmful conducts against the natural ecosystem of international business.

 

D Levina, Jurisdiction at the place of performance of a contract revisited: a case for the theory of characteristic performance in EU civil procedure

The article revisits jurisdiction in the courts for the place of performance of a contract under Article 7(1) of the Brussels Ia Regulation. It proposes a new framework for understanding jurisdiction in contractual matters by offering a comparative and historical analysis of both the place of performance as a ground for jurisdiction and its conceptual counterpart, the place of performance as a connecting factor in conflict of laws. The analysis reveals that jurisdiction in the courts for the place of performance is largely a repetition of the same problematic patterns previously associated with the place of performance as a connecting factor. The article asserts that the persisting problems with Article 7(1) of the Brussels Ia Regulation are due to the inadequacy of the place of performance as a ground for jurisdiction and advocates for the transition to the theory of characteristic performance in EU civil procedure.

T Bachmeier and M Freytag,  Discretional elements in the Brussels Ia Regulation Following continental European traditions, the Brussels Ia Regulation forms a rigid regime of mandatory heads of jurisdiction, generally not providing jurisdictional discretion. Nonetheless, to some limited extent, the Brussels regime includes discretional elements, in particular when it comes to lis pendens (see Articles 30, 33 and 34 of Brussels Ia). Reconsidering the strong scepticism towards forum non conveniens stipulated by the CJEU in its Owusu case, the fundamental question arises whether a substantial form of discretion concerning jurisdictional competence might be (in)compatible with the core principles of the Brussels regime.

 

P Mostowik and E Figura-Góralczyk, Ordre public and non-enforcement of judgments in intra-EU civil matters: remarks on some recent Polish-German cases

The article discusses the enforcement of foreign judgments within the European Union and the public policy (ordre public) exception. It is mainly focused on some recent judgments of Polish and German courts. On 22nd December 2016 and 23rd of March 2021 rulings in cases of infringement of personality rights were issued by the Court of Appeal in Cracow (ordering an apology and correction). The enforcement of the former ruling was dismissed by the German Supreme Court (Bundesgerichtshof, BGH) (IX ZB 10/18) on 19th July 2018. The non-enforcement was justified by invoking German ordre public and “freedom of opinion” as a constitutional right stipulated in Article 5 of the German Constitution (Grundgesetz). A reference to the CJEU ruling of 17 June 2021 is also presented.

After presenting the issue of ordre public in the context of enforcement of foreign judgments within the EU, the authors evaluate as questionable the argumentation of the BGH in its 2018 judgment. The Polish ruling ordering the defendant to correct and apologise for the false statement was included by the BGH in the category of “opinion” (Meinung) protected by the German Constitution. Enforcement of the judgment of the Polish court in Germany was held to be contrary to this German constitutional right and the enforceability of the Polish judgment was denied as being manifestly contrary to German public policy.

The authors support the functioning of the ordre public clause in intra-EU relations. It is justified inter alia by the large differences in EU legal systems and future possible changes. However, the common standards of the ECHR should be particularly taken into consideration when applying the public policy clause, because they co-shape the EU legal systems.

 

Private international lawyers and the ECJ are bound by a love-hate relationship: one single judgment delivered by the latter may sometimes give rise to a fully-fledged conference where, at the end of a lively discussions, the former express harsh criticisms, tepid approval or high praise towards the solution shaped by the Luxembourg Court. But while PIL scholars usually tend to dissect every substantive aspect of the Court’s ruling, little attention is usually paid to the ‘procedural’ context in which such decision has been reached. I admit that, before coming to Luxembourg, I myself took little notice of details such as the existence (or lack of) an AG’s Opinion, the reporting judge assigned to the case or the judicial formation having rendered the decision. However, these arguably are important indicators of the way in which a question concerning EUPIL is treated – both procedurally and substantively – by the Luxembourg Court.

Against this backdrop, it could be interesting, if not useful, to take a broader look at the relationship between the ECJ and EUPIL, going beyond the individual judgment and aimed at assessing preliminary rulings on this subject as a systemic phenomenon. The purpose of this analysis is twofold.

Firstly, it serves to disprove the belief – still held dear by some scholars – that PIL issues are ‘merely technical’ in nature. In fact, these are seldom treated as such in Luxembourg, as evidenced by the overwhelming majority of cases assigned to Chambers of five rather than to a Chamber of three. Moreover, since an Opinion of the AG is delivered in more than half of PIL cases, these often raise ‘new questions of law’, in the sense of Article 20 of the ECJ’s Statute. This finding holds true also with respect to instruments – such as the Brussels Regulations – that are of long-standing application in national courts and frequently interpreted in Luxembourg, thus confirming that, in PIL cases, facts and legal rules tend to combine in ever-changing constellations of interactions.

Secondly, the discussion may be useful in view of eventual future reforms of the ECJ’s internal structure and/or working methods. This Institution is presently coming under growing pressure owing to the ever-increasing number of cases introduced before it on a yearly basis. In 2021, this rise was deemed ‘significant’ and affected mostly the Court of Justice (see the Report ‘Year in Review’, p. 28). The reasons behind this surge of cases are, on the one hand, an increase in the appeals brought against rulings of the General Court (ibid, p. 28) and, on the other hand, the ever-growing number of preliminary references filed by national courts (in 2021, they accounted for the largest share (68%) of new cases brought before the Court: Management Report 2021, p. 6). According to President Lenaerts, the Court is currently engaged in ‘a reflection on how to achieve a rebalancing of the workload between the Court of Justice, composed of one judge per Member State, and the General Court, which, since September, has two judges per Member State’ (Report ‘Year in Review’, p. 5). Since the Court has already tackled – at least partially – the ‘appeals problem’ by introducing a filtering mechanism, this further ‘rebalancing’ might include, in theory, the transfer to the latter of some of the functions currently performed by the former, such has the delivery of preliminary rulings, following a sectoral approach limited to certain subject-matters. The question (purely hypothetical at present) as to whether – and to what extent – the field of civil cooperation in civil matters should be touched by this eventual ‘rebalancing’ should be addressed based on said systemic analysis of the relationship between the ECJ and EUPIL. Its aim is to identify trends – if any – in the adjudication of these cases and to decipher their meaning.

Methodology

The two objectives stated above can be best served with the assistance of empirical legal research. To my knowledge, there is no existing data (institutional or otherwise) that specifically concerns PIL cases brought before the ECJ. The Charts appearing in the following sections are therefore drawn from a repository of cases I compiled myself based on the information which is publicly available on EUR-LEX and Curia, or was made public at the hearing. This repository puts together the requests for preliminary rulings filed and/or decided with respect to EUPIL instruments from January 2015 to August 2022.

For the purposes of this research, ‘EUPIL’ is understood as encompassing the Brussels-Lugano Regime (Regulations 44/2001 and 1215/2012 as well as the Lugano II Convention), the Brussels II Regime (limited to Regulation 2201/2003, since there are presently no cases on Brussels II-ter), the Rome Regulations (593/2008, 864/2007 and 1259/2010); the Succession Regulation and the ‘smaller’ Regulations (EAPO, EPO, EEO, ESC, Service and Evidence I Regulations). The Regulations on matrimonial and registered partnership property issues have been taken into account, but there is currently no request for interpretation concerning them.

The selected time-frame (2015-2022) has been identified based on the (debatable) assumption that the last 7 years could provide for ‘meaningful’ empirical evidence concerning the application of all the above mentioned instruments, including the eldest, the Brussels I Regulation (which still applies to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded until 9 January 2015).

The numerical labels appearing in the Charts refer not to the number of cases filed with the ECJ, but to the number of preliminary references raised with respect to each instrument (e.g. if one case raised questions concerning two different EUPIL instruments, it was counted twice).

General Overview

Overall, there are 245 preliminary references concerning EUPIL instruments in the selected timeframe. Unsurprisingly, the Brussels-Lugano regime accounts, alone, for more than 50% of the total references submitted to the ECJ, followed by Reg. 2201/2003 as a far second (12 %). The Rome Regulations, taken together, make up for another 12 % of the total cases.

A closer look at the geographical origin of the preliminary references confirms that EUPIL preliminary references are not equally distributed across the Member States.

National courts in Germany and Austria have indisputably acquired a leading role as triggers of EUPIL case law and of its evolution over the past 7 years. Rather surprising is the data concerning Luxembourg, where the ‘cross-border dimension’ of cases is almost a daily occurrence. This suggests that there is no necessary correlation between the application rate of EUPIL instruments and the number of preliminary references submitted to the ECJ.

Opinions of the AG and Judicial Formations.

Data from the last seven years shows that a generous majority of EUPIL cases commands an Opinion of the AG. The percentages shown in Chart 5, below, are based on aggregated data concerning all EUPIL instruments, as defined above sub A.

In actual truth, there are perceivable sectoral variations, across the several instruments, with this percentage hovering between a maximum rate of 80 % in the Succession Regulation to a minimum of 33% under the EEO Regulation (except, of course, for the 0% rate that characterizes the Evidence and the ESC Regulations). The Charts below give a good idea of such sectoral variations.

Another good indicator of the relative ‘weight’ of EUPIL cases (and of the importance of the legal questions raised therein) is the number of preliminary references that, owing to their difficulty, their importance for Union Law or the particular circumstances surrounding them, are assigned to the Grand Chamber (cf Article 60 of the Rules of Procedure of the Court).

In this respect, it is apparent from the Charts below that the field of EUPIL is characterized by a relatively low number of Grand Chamber cases (6 cases in total over the last 7 years, ie 3 %). As a reminder, these Grand Chamber cases are:

• Concerning Reg. 1215/2012, C-194/16, Bolagsupplysningen, C-59/19, Wikingerhof (the object of an online symposium on this blog, with comments by Matthias Lehmann, Adrian Briggs, Gilles Cuniberti and Peter Mankowski); C-251/20 Gtflix Tv (commented on this blog by Marco Buzzoni);
• Concerning Reg. 44/2001, C-700/20, London Steam-Ship Owners’ Mutual Insurance Association (the object of another symposium on this blog, with comments by Adrian Briggs, Gilles Cuniberti, Antonio Leandro and François Mailhé).
• Concerning Reg. 593/2008, C-135/15, Nikiforidis
• Concerning Reg. 2201/2003, C-646/20, Senatsverwaltung für Inneres und Sport, pending.

The vast majority of cases remains assigned to Chambers of five, which is the ordinary formation of the Court. Chambers of three, which are reserved to cases that are either highly technical in nature or of straightforward solution, are less frequent in EUPIL, accounting for around one quarter of the total cases. These are relatively more common under the Brussels I and Ibis Regulation, possibly because of the existence of a long-standing and well-developed body of case law that may better contribute to the straightforward solution of the case.

Interestingly, there is a certain number of cases assigned to a Chamber of three but decided with the support of an AG Opinion. This may, at first (and only at first), seem like a contradiction in terms. As mentioned above, the Opinion of the AG should, in principle, be delivered solely in cases that raise ‘new questions of law’. In practice, however, it is apparent that Opinions have been asked under other circumstances, presumably to help the drafting of the future judgment, or because different approaches to the solution of a case could easily be envisioned. Hence, it is not inconceivable that a case may be, at once, highly technical in nature – thus justifying the deferral to a Chamber of three – and open to different alternative solutions, calling therefore for the advisory assistance of the AG (as it was the case in C-214/17, where AG Szpunar explicitly evokes the doubts expressed by the referring court concerning two alternative approaches to the solution of the question raised, §21-23). Similarly, a case can present a question which is at the same time highly technical in nature, but ‘novel’ in the sense of Article 20 of the Statute, as it might have been the case in C-555/18, concerning the weight to be attached to the requirement of enforceability for the purposes of the uniform definition of ‘authentic instrument’ under the EAPO Regulation (there was, in that case, a target Opinion by AG Szpunar).

The Form of the Decision

Another and more significant pointer to the ‘novelty’ of the legal questions raised by EUPIL cases is the form taken by the decision finally delivered by the ECJ.

It should be reminded that the ECJ usually rules through judgments (arrêts, in French), but it can exceptionally adopt a ‘reasoned order’ where (a) a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled ; or (b) where the reply to such a question may be clearly deduced from existing case-law ; or (c) where the answer to the question referred for a preliminary ruling admits of no reasonable doubt (Article 99 of the Rules of Procedure). Moreover, where it is clear that the Court has no jurisdiction to hear and determine a case or where a request or an application is manifestly inadmissible, the Court can decide to give a decision by reasoned order without taking further steps in the proceedings (Article 53 (2) Rules of Procedure).

Against this backdrop, the more surprising result is not so much the high number of judgments delivered in EUPIL matters, but rather the extremely low number of Article 99 Orders, even more so with respect to the Brussels I Regulation, which has by now undergone almost two decades of application and interpretations by the Luxembourg Court, and could itself profit from the interpretive rulings previously rendered under the 1968 Brussels Convention according to the 1971 Protocol.

Considering the high recurrence rate of questions concerning the interpretation of certain specific provisions of the Brussels Regulations, such as those dealing with the heads of jurisdiction in contractual matters and torts, consumer contracts and exclusive or prorogated jurisdiction, the low number of Article 99 Orders means, in practice, that the application of such provisions to concrete facts continues to give rise to new scenarios, with respect to which existing case law provides for an answer that is either partial, incomplete or open to further interpretation.

Informal Specialization

The final aspect considered by this empirical research relates to the (only apparent) lack of internal specialization within the ECJ, in the sense that this Institution is not formally divided into Chambers dedicated to specific subject-matters. Each of the Chambers of the Court, whatever the judicial formation, can in fact hear cases relating to any matter that falls within the jurisdiction thereof. Considering the wide scope of EU law and in the light of the current challenges brought by the inflating number of new cases, this lack of specialization of the Court’s Chambers could be seen as a hindrance to the Institution’s efficiency. Again, this conclusion must be nuanced, if not completely set aside, based on the analysis of the Court’s case law. Despite the lack of institutional specialized Chambers, the Court has developed an internal system for the allocation of cases among reporting judges and AGs which favours, at once, informal specialization and flexibility. Concerning the latter, the internal allocation of cases must be flexible enough to accommodate the contingent organizational needs of an Institution of such size, such as, for example, the need of ensuring an equal distribution of cases and expedited treatment of PPU cases or of avoiding national or other kinds of bias. Concerning specialization, existing case law clearly shows that certain judges and AGs that have been consistently entrusted, over the time, with EUPIL cases.

(***Note of the Author: data about Reporting Judges are incomplete, as this information is not disclosed with respect to cases that have been withdrawn and removed from the register. The Order of the President only mentions the designated AG***)

Obviously, this is not to say that the final decision on the case will reflect exclusively or even predominantly the individual views of these judges. Rather, this decision will always be the result of the collective will emerged from the discussion within the Chamber (of five or of three judges). This informal specialization of the Reporting Judge and of the AGs ensures nonetheless the efficient working of the Institution at the initial stage of the proceedings, concerned with the preliminary analysis of the case geared towards the identification of the appropriate judicial formation and of other procedural needs (eg. the need for further written clarifications or for an oral hearing). It could also favour, over time, a certain consistency in the (procedural and substantive) approach adopted with respect to recurrent issues, thus enhancing the overall coherence of the Court’s case law in EUPIL.

Building on the very successful conferences held in Aberdeen (2005), Birmingham (2007), New York (2009), Milan (2011), Madrid (2013), Cambridge (2015), Rio (2017) and Munich (2019), we are pleased to announce that the Journal of Private International Law will be holding its 9th Conference at the Singapore Management University from 3 to 5 August 2023.

We now invite abstracts for the conference. Please submit an abstract if you would like to make a presentation at the conference and you are willing to produce a final paper that you will submit for publication in the Journal. Abstracts should be up to 500 words in length and should clearly state the name(s) and affiliation(s) of the author(s).

They can be on any subject matter that falls within the scope of the Journal and can be offered by people at any stage of their career, including postgraduate students. Presentation at the conference will depend on whether your abstract is selected by the Editors of the Journal (Professor Jonathan Harris KC of King’s College, London and Professor Paul Beaumont FRSE of the University of Stirling) and the conference organiser (Associate Professor Adeline Chong, Singapore Management University). The subsequent article should be submitted to either of the editors of the Journal before the end of 2023. Publication in the Journal will be subject to the usual system of refereeing by two experts in the field.

There will be a mixture of plenary (Friday) and parallel panel sessions (Thursday afternoon and Saturday morning). Please indicate on the abstract whether you are willing to present in either or are only willing to do so in one or the other. A willingness to be flexible maximises our ability to select your paper.

The Conference will be held in the Yong Pung How School of Law, Singapore Management University. Please see here for up-to-date information on travel requirements to enter Singapore.

Speakers will not be expected to pay a conference fee but will be expected to pay their expenses in relation to their attendance at the conference in Singapore. Details about options for accommodation and the conference dinner on the Friday evening will be made available on the conference webpage . Please send your abstract to the following email address by Friday 16 December 2022: jpil2023@smu.edu.sg.