Droit international général

February 2024 will be a busy month at the Court of Justice.

A hearing took already place on 1 February in case C-394/22, Oilchart International, a request for a preliminary ruling on the delimitation of Regulation Brussels I bis and Regulation 1346/2000, as well as on the compatibility with the latter of specific Dutch provisions. The Hof van beroep te Antwerpen (Belgium) is asking the Court:

(a) Must Article 1(2)(b) of the Brussels Ia Regulation in conjunction with Article 3(1) of the Insolvency Regulation be interpreted as meaning that the term ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ in Article 1(2)(b) of the Brussels Ia Regulation includes also proceedings in which the claim is described in the summons as a pure trade receivable, without any mention of the respondent’s previously declared bankruptcy, whereas the actual legal basis of that claim is the specific derogating provisions of Netherlands bankruptcy law (Article 25(2) of the Wet van 30 september 1893, op het faillissement en de surséance van betaling (Law of 30 September 1893 on bankruptcy and suspension of payment; ‘NFW’) and whereby:

– it must be determined whether such a claim must be considered a verifiable claim (Article 26 NFW in conjunction with Article 110 thereof) or an unverifiable claim (Article 25(2) NFW),

– it appears that the question whether both claims can be brought simultaneously and whether one claim does not appear to exclude the other, taking into account the specific legal consequences of each of those claims (inter alia, in terms of the possibilities of calling for a bank guarantee deferred after the bankruptcy), may be determined in accordance with the rules specific to Netherlands bankruptcy law?

And further

(b) Can the provisions of Article 25(2) [NFW] be regarded as compatible with Article 3(1) of the Insolvency Regulation, in so far as that legislative provision would allow such a claim (Article 25(2) NFW) to be brought before the court of another Member State instead of before the insolvency court of the Member State in which the bankruptcy was declared?

The national proceedings concern a claim for the payment of an invoice still pending when the debtor became insolvent. Due to the provisions contained in bank guarantees, the claim was brought before a Belgian court. The case has been assigned to a chamber of five judges (A. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen reporting). AG L. Medina will provide an opinion in due course.

On 8 February AG M. Szpunar will deliver his opinion in C-633/22, Real Madrid Club de Fútbol. I reported on this Grand Chamber case and on the hearing held in October 2023 here. At stake is the interpretation of the Brussels I Regulation in relation to the Charter of Fundamental Rights of the EU.

The opinion of AG M. Campos Sánchez-Bordona in case C-35/23, Greislzel, will be read as well on 8 February 2024. The request, from the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany), focuses on the interpretation of Articles 10 and 11 of the Brussels II bis Regulation:

To what extent is the regulatory mechanism provided for in Article 10 and Article 11 of the Brussels IIa Regulation limited to proceedings conducted in the context of relations between EU Member States?

More specifically:

1. Does Article 10 of the Brussels IIa Regulation apply, with the effect that the jurisdiction of the courts in the former State of residence is retained, if the child had his or her habitual residence in an EU Member State (Germany) before his or her removal and the return proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (‘the HCAC’) were conducted between an EU Member State (Poland) and a third State (Switzerland) and, in those proceedings, the return of the child was refused?

If question 1 is answered in the affirmative:

2. In the context of Article 10(b)(i) of the Brussels IIa Regulation, what requirements are to be imposed for the purposes of establishing continuing jurisdiction?

3. Does Article 11 (6) to (8) of the Brussels IIa Regulation also apply in the case of return proceedings implemented under the HCAC in the context of relations between a third State and an EU Member State, as a State of refuge, in so far as the child had his or her habitual residence in another EU member state before the removal?

Like in many child abduction settings, the facts of the case are convoluted and not easy to summarize. In a nutshell, the problem revolves around the (allegedly wrongful) removal of a child from Germany to Poland by her mother. The father has lodged a request for return under the 1980 Hague Convention on Child Abduction, first, and then in the framework of a claim for the transfer of the sole parental custody under the Brussels II bis Regulation . The peculiarity of the case lies with the fact that, because he lives in Switzerland, both attempts focus in an order that would send the child to that country, and not to the Member State where she was habitually resident immediately before the wrongful removal.

The case will be solved by judges C. Lycourgos, O. Spineanu-Matei, J.C. Bonichot, S. Rodin, and L.S. Rossi (reporting).

The opinion of AG N. Emiliou on C-425/22, MOL, will be published as well on 8 February. The referring court is the Kúria (Hungary). The questions are:

1.   Where a parent company brings an action for damages in respect of the anti-competitive conduct of another company in order to obtain compensation for the damage suffered as a result of that conduct solely by its subsidiaries, does the registered office of the parent company determine the forum of jurisdiction, as the place where the harmful event occurred for the purposes of Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels Ia Regulation’)?

2. Is the fact that, at the time of the purchases at issue in the proceedings, not all the subsidiaries belonged to the parent company’s group of companies relevant for the purposes of the application of Article 7(2) of the Brussels Ia Regulation?

The main proceedings are a follow-on action based on a final decision of the European Commission, where it is established that, by colluding on gross list pricing for medium and heavy trucks in the European Economic Area, the defendant, established in Germany, together with other companies, had participated in a cartel in continuous infringement of the prohibitions laid down in Article 101 TFUE and Article 53 of the Agreement on the European Economic Area. The claimant requests the reimbursement of the additional cost paid by its subsidiaries for the indirect purchase of 71 trucks from the defendant, in different Member States. The case raises the question of whether, in the context of Article 7 (2), of the Brussels I bis Regulation, a parent company can invoke the theory of economic unity for the purposes of determining the competent court for an action for the damage suffered by its subsidiaries.

M. Ilešič is the reporting judge in a chamber comprising as well E. Regan, K. Lenaerts, I. Jarukaitis and D. Gratsias.

Finally, the decision of the 1st Chamber (composed by judges A. Arabadjiev, T. von Danwitz, P.G. Xuereb, I. Ziemele and A. Kumin, with the latter reporting) in case C-566/22, Inkreal will be published on the same day. The requests addresses the interpretation of the Brussels Ibis Regulation and its scope of application. AG J. Richard de la Tour had delivered his opinion October last year: see here.

Two further opinions and a decision will be delivered on Thursday 22 February, thus after the ‘semaine blanche’.

AG N. Emiliou is the author of the opinion in case C-774/22, FTI Touristik, a request from the Amtsgericht Nürnberg (Germany) on Article 18 of the Brussels Ibis Regulation:

Is Article 18(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Article 18(1) of the Brussels I Regulation) to be interpreted as meaning that, in addition to providing for international jurisdiction, the rule also concerns a provision on the territorial jurisdiction of national courts in matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract, the tour operator[,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad (so-called ‘false internal cases’) with the consequence that the consumer can make contractual claims against the tour operator supplementing national provisions on jurisdiction at the court of his or her place of residence?

The applicant is a traveler, domiciled in Nuremberg at all relevant times, who had booked a package tour with the defendant, a tour operator established in Munich, through a travel agency. The travel agent acted as an intermediary in the conclusion of the contract and it is undisputed that it is not itself a contracting partner; it is also not a branch of the defendant. The applicant claims from the defendant payment of compensation amounting to EUR 1,499.86 on account of the fact that he was not adequately informed of the necessary entry and visa requirements.

The case will be solved by a chamber of five judges – A. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen reporting.

Another AG N. Emiliou’s opinion is expected on the same day, this time in case C-339/22, BSH Hausgeräte, on Article 24 (4) of the Brussels Ibis Regulation. It was originally scheduled for November 2023 and I already reported about the case then.

Finally, the 9th Chamber (J.C. Bonichot, L.S. Rossi, and  O. Spineanu-Matei reporting) will render its decision on C-81/23, FCA Italy et FPT Industrial also on 22 February. The referring court is requesting the interpretation of Article 7 of the Brussels I bis Regulation in a clear follow-up on case C‑343/19, VKI. In the Austrian proceedings the applicant, whose domicile is in Krems an der Donau (Austria) purchased a camper van from the dealer established in Germany. The written sale contract was signed at the seller’s seat in Germany. In accordance with the agreement concluded, the vehicle was transferred to the applicant and his wife by the Austrian seller’s distribution centre in Salzburg (Austria). The first respondent, established in Italy, is the manufacturer of the basic vehicle; the second respondent, also established in Italy, developed the engine, which, according to the applicant’s claims in the main proceedings, is equipped with a prohibited defeat device within the meaning of Article 5(2) of Regulation (EC) No 715/2007 on type approval.

The Oberster Gerichtshof (Austria) asks the Court in Luxembourg:

Must point 2 of Article 7 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Regulation (EU) No 1215/2012’) be interpreted as meaning that, in an action for tortious liability against the developer of a diesel engine with a prohibited defeat device within the meaning of Article 5(2) of Regulation (EC) No 715/2007 on type approval, the place where the harmful event occurred in a case where the vehicle was bought by the applicant domiciled in Member State B (in this case: Austria) from a third party established in Member State C (in this case: Germany) is

a) the place where the contract was concluded;

b) the place where the vehicle was delivered, or

c) the place where the physical defect constituting the damage occurred and, therefore, the place where the vehicle is normally used?

Introduction:

I have been reporting on this blog some recent cases from the Dubai Supreme Court (DSC) regarding the recognition and enforcement of foreign judgments (see here, here and here). Reading these posts may have given the legitimate impression that the enforcement of foreign judgments in the UAE, and especially in Dubai, is particularly challenging. This post aims to mitigate that perception by shedding light on a very recent case in which the Dubai courts, with the approval of the DSC, ruled in favor of the enforcement of an English judgment. As the comments below indicate, this is probably the very first case in which the DSC has positively ruled  in favor of the enforcement of an English judgment by declaring that the judgment in question met all the requirements set out in UAE law, and in particular, the reciprocity requirement.

The facts:

As mentioned above, this case concerns the enforcement of an English judgment. In that judgment, the English court ordered the division and transfer of property as part of the distribution of matrimonial property on divorce. However, some of the disputed properties concerned two immovables located in Dubai. The underlying dispute before the English court appears to involve a British national (the wife and petitioner in the Dubai proceedings, hereinafter “X”) and a Pakistani national (the respondent husband, hereinafter “Y”). The parties entered into their marriage in Pakistan in accordance with Pakistani law. The marriage was later registered in the UK “after a long period of time” since its conclusion.

According to the DSC’s decision, the English judgment recorded Y’s “consent” to transfer the two aforementioned disputed properties to X under the Matrimonial Causes Act 1973 (but erroneously referred to it as “Matrimonial Causes Act 1937”). Subsequently, X sought to enforce the English judgment in the UAE by filing a petition to that effect with the Dubai Execution Court. The Execution Court granted the petition and ordered the enforcement of the English judgment. The decision was confirmed on appeal.

Y appealed to the DSC.

Before the DSC, Y contested the appealed decision mainly on the following grounds:

1) The case falls within the jurisdiction of the Dubai courts as the court of the place where the property is located, because the case concerns in rem rights relating to the transfer of ownership of immovable property located in Dubai, notwithstanding the fact that the foreign judgment was rendered in a personal status dispute concerning the financial effects of a divorce under English law.

2) The foreign judgment is contrary to public policy because it violates Islamic Sharia law, individual property rights and the distribution of property under UAE law.

3) The parties have not (yet) been divorced under Pakistani law or Islamic Sharia.

4) As the marriage was contracted in Pakistan and later registered in the UK, the marriage and its financial effects should be governed by Pakistani law.

Ruling:

In its ruling dated 25 January 2024 (Appeal No. 592/2023), the DSC dismissed the appeal by reasoning as follows:

First, the DSC recalled the legal framework for the enforcement of foreign judgments, citing almost verbatim Article 222 of the new Federal Civil Procedure Act of 2022 (the English translation can be found here). The DSC also recalled that the law applicable to the personal and financial effects of marriage and its dissolution, as well as the impact that public policy and Islamic Sharia may entail on the application of the governing law (articles 13 and 27 the Federal Act on Civil Transactions, as subsequently amended.*)

(* It should be noted, however, that the DSC erroneously cited the provisions in force prior to the 2020 amendment to the Federal Civil Transactions Act. This amendment is important because it replaced the nationality of the husband as a connecting factor with the place where the marriage was concluded in matters relating to the effects and dissolution of the marriage. For a brief commentary on this amendment, see Lena-Maria Möller’s post here on this blog. See also idem, “One Year of Civil Family Law in the United Arab Emirates: A Preliminary Assessement”, Arab Law Quarterly, Vol. 37 (2023), pp. 5-6. The English translation of the Federal Civil Transactions Law with its latest amendments can be found here).

The DSC then approved the appealed decision in considering that:

– The foreign judgment did not contain a violation of public policy and good morals because it did not violate any undisputed Sharia rule;

– Y, who was a foreign national, had agreed in the English court to transfer the ownership and beneficial interest in the two Dubai properties to X, and therefore the enforcement of the foreign judgment consisted only in carrying out what Y had agreed before the foreign court,

– The dispute did not fall within the exclusive jurisdiction of the Dubai courts,

– Reciprocity was established with the UK.

Finally, the DSC held that the following arguments made by Y were meritless:

– that the dispute fell within the jurisdiction of the Dubai courts. However, the DSC considered that  the case did not concern a dispute over the property located in Dubai, but the transfer of shares in Y’s property to X on the basis of Y’s consent;

– that the law applicable to the marriage and its financial effects should be Pakistani law and not English law because the marriage was contracted in Pakistan and then registered in the UK after a long period of time. However, the DSC considered that the marriage and divorce between X and Y took place in the UK and Y did not contest the application of English law.

Comments:

The case is in many regards…. exceptional. In particular, given the usual challenges associated with the enforcement of foreign judgments in the UAE, it is somewhat interesting to observe how the main obstacles to the enforcement of foreign judgments – notably, reciprocity, indirect jurisdiction and public policy – were easily overcome in the case at hand. (For an overview of past practice with some relevant case law, see the author’s earlier comment here). While these aspects of the case (as well as some others, such as the reference to choice-of-law rules and the surprisingly erroneous reference by the DSC to the nationality of the husband as a connecting factor in matters of effects and dissolution of marriage) deserve detailed analysis, space constraints require that we focus on one notable aspect: reciprocity with the UK.

As mentioned in a previous post, Dubai courts traditionally find reciprocity where the party seeking enforcement demonstrates that the enforcement rules of the rendering state are identical to or less restrictive than those of the UAE. This typically requires the party seeking enforcement to prove the content of the rendering state’s foreign judgment enforcement law for comparison with the UAE’s requirements (see some relevant cases here). In order to alleviate the rigor of this rule and facilitate the enforcement of UK judgments in Dubai, the UAE Ministry of Justice (MOJ) issued a letter on September 13, 2022, stating that reciprocity with the UK could be established as English courts had accepted the enforcement of UAE judgments.

In a previous post, I expressed doubts about the impact of this letter on Dubai court practice, citing instances where the DSC had rejected to enforcement an English judgment. These doubts were somewhat justified. Indeed, in a case that later came to my attention and also involved the enforcement of an English judgment, the DSC reversed and remanded a decision of the Dubai Court of Appeal on the ground, inter alia, that the court failed to consider the existence of reciprocity with the UK. (The Court of Appeal simply held that reciprocity was not a requirement for the enforcement of foreign judgments in the UAE) (DSC, Appeal No. 356/2022 of 7 December 2022). The DSC also criticized the Court of Appeal for failing to address the need for the party seeking enforcement to prove the content of English law on the enforcement of UAE judgments in the UK in order to demonstrate that there is reciprocity with the UK. (The Court of Appeal simply considered that English courts wold not oppose the enforcement of UAE judgments as long as they meet the conditions for their enforcement). Subsequent developments in the case show that the whole issue was somehow avoided, as the Court of Appeal – as the court of remand – dismissed the case on the ground that the appeal was filed out of time. This decision was later upheld by the DSC (Appeal No. 847/2023 of 7 November 2023), which ultimately resulted in the upholding of the initial first instance court’s decision to enforce the English judgment in question. (For details of this case, see the comments posted by one of the lawyers representing the party seeking enforcement of the English judgment, Hesham El Samra, “Enforcing the First Judgment From the English Courts in Dubai Courts (November 17, 2023). One can read with interest how the representatives of the party seeking enforcement relied on the aforementioned MOJ letter to establish reciprocity with the UK).

In the case commented here, it is unclear on what basis the Dubai courts recognized reciprocity with the United Kingdom. Indeed, the DSC merely upheld the Court of Appeal’s conclusion that “reciprocity with the UK was established”. It is likely, however, that the courts relied on the MOJ letter to reach this conclusion. In any event, as noted in the introduction, this case represents the first Supreme Court decision explicitly recognizing reciprocity with the UK. This development is likely to have a significant impact on the enforcement of English judgments in Dubai and the UAE. One can also expect that this decision may influence the assessment of reciprocity requirements where enforcement of foreign judgments in general is sought in Dubai/UAE.

The fourth edition of Geert van Calster’s (KU Leuven) European Private International Law has just been published by Hart/Bloomsbury. It focuses on those instruments and developments that are most significant in commercial litigation. I had the privilege to review the first edition of the book in the Law Quarterly Review and I am certain that the latest edition will live up to the expectations.

The blurb reads as follows:

This classic textbook provides a thorough overview of European private international law. It is essential reading for both practitioners and students of private international law and transnational litigation, wherever they may be located: the European rules extend beyond European shores.

Opening with foundational questions, the book clearly explains the subject’s central tenets: the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort). Additional chapters explore private international law and insolvency, freedom of establishment, and the impact of private international law on corporate social responsibility. The relevant Hague instruments, and the impact of Brexit, are fully integrated in the various chapters.

Drawing on the author’s rich experience, the new edition retains the book’s hallmarks of insight and clarity of expression ensuring it maintains its position as the leading textbook in the field.

Written by Mayela Celis

Undoubtedly, Abortion is a hot topic. It is discussed in the news media and is the subject of heated political debate. Indeed, just when one thinks the matter is settled, it comes up again. In 2023, Elgar published the book entitled “Research Handbook on International Abortion Law”, ed. Mary Ziegler (Cheltenham: Edward Elgar Publishing Limited, 2023). For more information, click here. Although under a somewhat misleading name as it refers to international abortion law, this book provides a wonderful comparative overview of national abortion laws as regulated by States from all the four corners of the world and internal practices, as well as an analysis of human rights law.

This book does not deal with the conflict of laws that may arise under this topic. For a more detailed discussion, please refer to the post Singer on Conflict of Abortion Laws (in the U.S.) published on the blog of the European Association of Private International Law.

In this book review, I will briefly summarise 6 parts of this book (excluding the introduction) and will provide my views at the end.

This book is divided into 7 parts:

Part I – Introduction

Part II – Histories of liberalization

Part III – The promise and limits of decriminalization

Part IV – Abortion in popular politics

Part V – Movements against abortion

Part VI – Race, sex and religion

Part VII – The role of international human rights

Part II – Histories of Liberalization

Part II begins with a historical journey of the abortion reform in Sweden in the 1930s and 1940s. It highlights the limited legalization of abortion in Sweden in 1938 and the revised abortion law in 1946 introducing a “socialmedical” indication. In particular, it underscores how the voices of women were absent from the process.

It then moves on to a comparative study of the history of abortion in the USA and Canada from 1800 to 1970, that is before Roe (USA) and Morgentaler (Canada). It analyses the distinct approaches of Canada and the USA when dealing with abortion (legislative vs. court-based). Furthermore, it provides a very interesting historical account on how the right of abortion came about in both countries – it sets the stage for Roe v. Wade (pp. 50-52).

Finally, Part II examines the situation in South Africa by calling it “unfinished business”. In South Africa, Abortion is a right codified in law: The Choice on Termination of Pregnancy Act 92 of 1996. However, this article argues that the legislative response is not enough. Factors such as lack of enough health facilities that perform abortions, gender inequality etc. are an obstacle to making safe abortion a reality.

Part III – The promise and limits of decriminalization

This Part analyses several laws regarding abortion. First, it explores Malawi’s 160-year-old law that criminalises abortion based on a UK law, as well as the failed tentative attempt to adopt a new law in 2020. Interestingly, this article analyses CEDAW resolutions against the UK, which promptly complied with the resolution (pp. 92-93).

Secondly, it studies the recently adopted law in Thailand on 7 February 2021 that makes  abortion available up to 12 weeks’ gestation period. However, this article criticises that the law creates a loophole as the abortion must be performed by a physician or a registered medical facility and in compliance with the law, greatly medicalizing abortion.

Finally, this Part examines Australian laws and policy over the past 20 years and while acknowledging the significant advances in reproductive rights, it notes that a number of barriers to abortion still remain. This chapter is better read in conjunction with Chapter 10, also about Australia.

Part IV – Abortion in popular politics

This Part begins with an excellent comparative public policy study between France and the United States. In particular, it discusses the weaknesses of Roe v. Wade, underlining the role and analysis of the late justice Ruth Bader Ginsburg. It also puts into context the superiority of the French approach regarding abortion, which is proven with the reversal of Roe.

It then analyses abortion law in China, a State that has the most lenient abortion policies in the world. It discusses the Chinese one-child policy, which then changed to two and even three children-policy, as well as sex-selective abortions.

Subsequently, it recounts how South Australia became the last Australian jurisdiction to modernise its abortion laws and underlines the fact that laws in Australian jurisdictions on this topic are uneven and no two laws are the same.

Finally, it examines abortion history in Israel noting that apart from health reasons, abortions on no specific grounds are mainly intended for out-of-wedlock pregnancies. As a result, abortion is restricted to married women unless they claim adultery, a ground that must be reviewed by a Committee. Apparently, this leads married women to lie to get an abortion and go through the shameful process of getting approval by a Committee.

Part V – Movements against abortion

This Part begins with abortion politics in Brazil and the backlash that occurred with the government of former president Bolsonaro who, as is well known, is against abortion. It recounts a case where a priest filed an habeas corpus in favour of a foetus who had a severe birth defect. Although the case arrived at the Federal Supreme Court, it was not decided as the child died 7 minutes after being born (p. 232).

Secondly, a history scholar recounts the pro-life movement across continents and analyses what drives them (i.e. gender and religion).

Finally, it deals with abortion law in Poland and Hungary and the impact of illiberal courts. In particular, it discusses the trends against abortion and goes on to explain an interesting concept of “illiberal constitutionalism”. The authors argue that they do not see Poland and Hungary as authoritarian systems but as illiberal States, an undoubtedly interesting concept.

Part VI – Race, sex and religion

This Part begins examining the sex-selective abortions in India. In particular, the authors recommend an equality-based approach instead of anti-discriminatory approach in order to avoid recognising personhood to the foetus.

It then continues with an analysis of abortion law in the Arab world. The authors note that there is scant but emerging literature and that abortion laws in this region are – unsurprisingly – punitive or very restrictive. Interestingly, the position of Tunisia differs from other Arab States.

Finally, it discusses the struggles in Ecuador where a decision of the constitutional court of 2021 decriminalising abortion in cases of rape. It declared unconstitutional an article of the Ecuadorian Criminal Code, and in 2022 the legislature approved a bill based on this ruling. It also refers to teenage pregnancy and violence.

Part VII – The role of international human rights

For those interested in international human rights, this will be the most fascinating Part of the book. Part VII calls for the decriminalization of abortion in all circumstances and it supports this argument by making reference to several human rights documents such as those issued by the Human Rights Committee (in particular, General Comment No 36 –  Article 6: Right to life) and the Committee on the Elimination of Discrimination against Women (referring to a myriad of general comments and concluding observations).

Subsequently, this Part challenges the classification of European abortion law as fairly liberal and provides some convincing arguments (including the setbacks in Poland in this regard and other procedural or legal barriers to access abortion in more liberal States) and some surprising facts such as the practice in the Netherlands (see footnote 60). The authors -fortunately- dared to say that this chapter is drafted from a feminist perspective as opposed to the current “male norm” in legal doctrinal scholarship.

Finally, this Part explains the history of abortion laws including the fascinating recent developments in Argentina and Ireland (referred to as “small island”!) and the influence (or the lack thereof) of international human rights law. In particular, it makes reference to the Argentinian Law 27,610 of 2020 (now unfortunately in peril with the new government) and the repealing by referendum of the 8th Amendment in Ireland in 2018.

Below are a few personal thoughts and conclusions that particularly struck me from the book:

Starting from the beginning: the title of the book and the definitions.

In my view, and as I previously mentioned, the title of the book is somewhat misleading. Strictly speaking, there is no such thing as “international” abortion law but rather abortion prompts a discussion of international human rights, such as women’s rights and the right to life, and whether or not national laws are compliant with these rights or are coherent within their own national legal framework. This is in contrast to international child abduction / adoption laws where international treaties regulate those very topics.

While perhaps counterintuitive, the definition of a “woman” has been controversial; see for example the Australian versus the Thai approaches. The Australian approach deals with gender identification and the fact that persons who do not identify as a woman can become pregnant (p. 124, footnote 1). While the Thai approach defines a woman as those capable of bearing children (p. 112). Needless to say, the definition of a woman is essential when legislating on abortion and unavoidably reflects the cultural and political complexities of a particular society. A brief reference is made to men and gender non-conforming people and their access to abortion (p. 374, footnote 2).

A surprising fact is the pervasive sex-selective abortion in some countries (sadly against female foetuses), such as India and China, and which arguments are invoked by scholars to avoid them, without falling into the “trap” of recognising personhood to the foetus.

More importantly, this book shows that the abortion discussion is much more than the polarised “pro-life” and “pro-choice” movements. The history of abortion is complicated, full of intricacies. And what is frustrating to some, this area is rapidly evolving sometimes at the whim of political parties.

Most authors seem to agree that a legislative approach to abortion is more recommended than a court-based approach. Indeed, there is a preference for democratically elected lawmakers when it comes to dealing with abortion. This is evident from the recent setbacks that occurred in the USA.

Having said that, those expecting an in-depth analysis of the landmark US decision Dobbs v. Jackson Women’s Health Organization 597 U.S. 215 (2022), which overturned Roe v. Wade, will be disappointed (only referred to very briefly in the introduction and Chapters 8, 11 and 13 ). Instead, however, you will be able to immerse yourself into a multidisciplinary study of abortion law, including topics such as politics, sociology, constitutional law, health law and policy, history, etc. In addition, you will read unexpected facts such as the role of Pierre Trudeau (former Prime Minister (PM) of Canada and father of current Canadian PM, Justin Trudeau – p. 56 et seq.) in abortion law in Canada or the delivering of abortion pills via drones (p. 393).

Because of all the foregoing, and whatever one’s standpoint on abortion is, I fully recommend this book. But perhaps a cautionary note: people in favour of reproductive rights will be able to enjoy the book more fully.

I would like to end this book review with the words of the French writer and philosopher Simone de Beauvoir, which appear in her book entitled the Second Sex and which are also included in chapter 8 (p. 159) of this book:

“Never forget that a political, economic or religious crisis would suffice to call women’s rights into question”

Full citation:

“Rien n’est jamais définitivement acquis. Il suffira d’une crise politique, économique ou religieuse pour que les droits des femmes soient remis en question. Votre vie durant, vous devrez rester vigilantes.”

The Law Faculty of Humboldt University is inviting applications for a four-year PostDoc position in European law. The position is fully paid  and funded by the graduate research programme DynamInt (Dynamic Integration Order) which itself is funded by the German Research Foundation (Deutsche Forschungsgemeinschaft).

The selected researcher is supposed to pursue her/his research project in the field of European Law (including European Private International Law and  International Civil Procedure). She/he is also expected to interact with  the group of young researchers, who all work on their dissertation  projects within the thematic framework of harmonization and plurality  tendencies in the EU.

The position is targeting German-speaking researchers. More information available here.

Conventions & Instruments

On 1 December 2023, the 1965 Service Convention entered into force for Singapore. The Convention currently has 82 Contracting Parties. More information is available here.

On 1 January 2024, the 1965 Service Convention entered into force for Paraguay. The Convention currently has 82 Contracting Parties. More information is available here.

On 9 January 2024, Cabo Verde deposited its instrument of accession to the 2007 Child Support Convention. With the accession of Cabo Verde, 49 States and the European Union are bound by the Convention. More information is available here.

On 11 January 2024, the 1961 Apostille Convention entered into force for Canada. The Convention currently has 126 Contracting Parties. More information is available here.

On 12 January 2024, the United Kingdom signed the 2019 Judgments Convention. The Convention will enter into force for the United Kingdom only after the deposit of an instrument of ratification (pursuant to Art. 28(2) of the Convention). Currently, 29 HCCH Members are either bound by the 2019 Judgments Convention or a Contracting Party for which the Convention has not yet entered into force (Uruguay). More information is available here.

Meetings & Events

From 24 to 26 January 2024, the Working Group on the Financial Aspects of Intercountry Adoption met for the second time. Its mandate is to take stock of current practices, identify possible coordinated, targeted, practical approaches, and to prioritise them with the understanding that the objective would be to raise standards using the HCCH Guides to Good Practice and the Note on the Financial Aspects of Intercountry Adoption as the starting point. More information is available here.

From 29 to 31 January 2024, the International Transfer of Maintenance Funds Experts’ Group met for the fifth time. Pursuant to its mandate, the Experts’ Group continued its work discussing good practices in relation to the cross-border transfer of maintenance payments.

Publications

On 22 January 2024, the Permanent Bureau announced the publication of the Spanish translation of the Toolkit for Preventing and Addressing Illicit Practices in Intercountry Adoption. This publication aims to assist Contracting Parties to the 1993 Adoption Convention, as well as all actors and persons involved in adoption, to properly implement and operate the Convention. More information is available here.

Other

On 9 January 2024, messages were transmitted digitally from State to State via iSupport for the first time. Several official messages under the EU 2009 Maintenance Regulation were exchanged between Germany and Sweden using iSupport’s e-CODEX system. More information is available here.

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

René Jansen (former PhD Candidate at Tilburg University) has accepted the invitation of the editors of the blog to present his book, titled ‘Legal Privilege and Transnational Evidence-Taking – A Comparative Study on Cross-Border Disclosure, Evidence-Shopping and Legal Privilege’, published by Intersentia. The study is available in open access here. For the (revised) commercial edition, see here.

Nowadays, lawyers also represent foreign clients. They can, for instance, do so by telephone or e-mail, or during a short visit abroad. Furthermore, a lawyer can choose to work in a foreign country for a longer period of time, for instance as a legal adviser or an in-house counsel. Finally, a lawyer – who has been already admitted to the bar of his home state – could obtain the required qualifications for representing his clients in a foreign court.

In this study, the following research question is centralised: “To what extent may courts order the disclosure of information that is privileged according to a foreign state’s rules on legal privilege, and should they apply a different conflict rule for determining the applicable privilege law when making this assessment?”.

This study touches upon a problem that has also been witnessed in case law. At the same time, literature nor case law clarifies how courts should respond in reaction to a litigant’s request for disclosing information that has been shared between an opponent and her foreign lawyer during civil proceedings. This may cause legal uncertainty. For example, may the court grant the request? If so, which state’s rules on legal privilege should it apply, that of the forum state or a foreign state? And does it make a difference whether the disclosure-request is made during commenced proceedings, or in light of a contemplated procedure?

In this study, I argue in the second chapter that the Hague Evidence Convention and the EU Evidence Regulation do not prevent a court from compelling a litigant to disclose a document in violation of a foreign state’s laws. In  the third chapter, I describe how in each of the examined legal systems (Dutch, English, French, German and U.S. federal) the court in principle has the authority to grant such a disclosure order. In the fourth chapter, I discuss the extent to which the courts of the examined legal systems may grant a disclosure order in the context of a foreign civil procedure, whilst also addressing Article 35 of the Brussels I bis Regulation. In the fifth chapter the differences that exist between the rules on legal privilege of the examined legal systems are presented, whereas the sixth chapter explores the possibility of constructing a new conflict rule for the type of cases that this study examines.

The most important findings are the following. There are various methods for taking evidence during transnational civil proceedings. Litigants could make use of differences that exist between these methods for circumventing restrictions on disclosing information under foreign law. For instance, a litigant could initiate proceedings in a state which laws offers the lowest level of legal privilege protection. If a court in that state subsequently applies the forum state’s rules on legal privilege, information could be obtained that is protected against disclosure according to foreign law.

I therefore plead that courts should apply a newly-constructed conflict rule for determining the applicable law on legal privilege during transnational civil litigation, in case a litigant attempts to obtain information that has been shared between an opponent and the latter’s foreign lawyer. In principle, the conflict rule aligns with the state’s laws where the lawyer habitually works. The conflict rule also contains a number of alternative rules for certain situations, such as when the lawyer has operated within an international team of lawyers.

The University of Antwerp has opened a vacancy for PhD research, which inter alia relates to EU private international law, under the supervision of Johan Meeusen and Mathieu Leloup.

It concerns a four year doctoral scholarship, sponsored by the Research Foundation – Flanders (FWO), to write a PhD on mutual trust and rule of law requirements in the field of judicial cooperation in civil and criminal matters. The researcher will have to examine, inter alia, the enforcement of the European Union’s rule of law requirements by courts applying EU private international law instruments.

All information on this position, and how to apply for it, can be found at Doctoral scholarship holder the law of the European Union, with particular attention for the rule of law, mutual trust and the area of freedom, security and justice | University of Antwerp (uantwerpen.be).

Yesterday, a new private international law open access article was published online in the Journal of the History of International Law. It is titled: León Castellanos-Jankiewicz, “A New History for Human Rights: Conflict of Laws as Adjacent Possibility.” The abstract reads as follows:

The pivotal contributions of private international law to the conceptual emergence of international human rights law have been largely ignored. Using the idea of adjacent possibility as a theoretical metaphor, this article shows that conflict of laws analysis and technique enabled the articulation of human rights universalism. The nineteenth-century epistemic practice of private international law was a key arena where the claims of individuals were incrementally cast as being spatially independent from their state of nationality before rights universalism became mainstream. Conflict of laws was thus a vital combinatorial ingredient contributing to the dislocation of rights from territory that underwrites international human rights today.

It is worth noting that the author states that in the acknowledgement that: “An earlier version of this article was awarded the inaugural David D. Caron Prize by the American Society of International Law during its 2019 Annual Meeting held in Washington D.C.”

The Paris-Saclay University and the law firm Linklaters LLP, in collaboration with Saint-Joseph University in Beirut, are organizing a competition on private international law  – Concours de Droit international privé (CDIP).

CDIP is designed for students of the first year of the master degree. The language of the competition is French.

The timetable of the 2024 edition is as follows:

• Beginning of February 2024 – publication of the case;
• Early May 2024 – deadline for responses from French students and selection of teams to take part in the oral part of the competition;
• July 2024 – deadline for the response from Lebanese students;
• Early September 2024 – deadline for the reply from French students;
• end of September 2024 – finals in the international chamber of the Paris Court of Appeal (to be confirmed).

Apart from enriching experiences, the prizes include a three-month internship at Linklaters LLP.

For the history of the competition and its previous editions please consult CDIP website. The webpage will be updated soon to provide further information about 2024 edition.

The Japanese Yearbook of Private International Law (kokusai shiho nenpo) (hereinafter “JYPIL”) is an annual publication of the Private International Law Association of Japan (kokusai shiho Gakkai) (hereinafter “PILAJ”). The PILAJ was founded in 1949 as an academic organization. Its main objective is to promote the study of private international law and encourage cooperation with similar academic institutions abroad, as well as coordination among private international law scholars. Since its inception, the PILAJ has organized conferences on a semi-annual basis and, since 2012, on an annual basis (see records of recent past conferences here).

Since 1999, PILAJ has been publishing its JYPIL (The contents of all volumes are available here.  The contents of volumes 1 (1999) to 19 (2017) are freely available. English abstracts of the papers published in Japanese are also available from volume 18 (2016)). JYPIL is a peer-reviewed journal that presents trends in academic research in the field of private international law in Japan, with high-quality discussion of the most important issues in the field from both Japanese and comparative law perspectives.

Recently, the 25th Volume (2023) of JYPIL has been published. It contains the following papers (abstracts are condensed summaries of the English summary provided by the authors):

1. Eiji ADACHI, Current Status and Problems of the System of the Recognition and Enforcement of foreign Judgments in Property Matters in Japan

Abstract: This paper provides an overview of the current status and upcoming challenges in Japan regarding the recognition and enforcement of foreign judgments. It outlines trends, legislative changes, and Supreme Court precedents since 1996, with a focus on judgments involving the United States and China. Despite a trend toward increased recognition, challenges remain, particularly highlighted by the 2019 Hondaya Judgment I, which raised questions about the service of foreign judgments on defendants consistent with Japanese public policy. The paper critiques the Supreme Court’s understanding of procedural ordre public, suggesting that it needs to be reformulated based on insights from European debates to address unnecessary and excessive scrutiny.

2. Masaaki HAGA, The Significance of the Hague Convention on Choice of Court Agreement and the Hague Convention on Recognition and Enforcement of Foreign judgments in Civil and Commercial Matters and the Possibility of Japanese Ratification

Abstract: The paper examines the potential benefits for Japan in ratifying the Convention on the Recognition and Enforcement of Foreign Judgments (2019) and the Convention on Choice of Court Agreement (2005). It discusses various aspects of these conventions, such as mutual applicability, jurisdictional issues, recognition of foreign judgments, and reciprocity. The paper suggests positive consideration for ratification, highlighting the importance of enhancing Japan’s role in international civil dispute resolution and ensuring predictability in such cases. It also explores potential solutions to reconcile differences between the conventions and Japanese law through declarations limiting recognition and enforcement.

3. Hiroyuki TEZUKA, Practical Issues Concerning Recognition and Enforcement of Foreign Judgments

Abstract: The paper addresses the practical challenges of recognizing and enforcing foreign judgments in Japan, examining issues such as indirect jurisdiction, exclusive choice of court agreements, and conflicts between arbitral tribunals and domestic courts. Part 2 provides practitioner insights into Japan’s potential accession to the Hague Conventions. Part 3 discusses possible legislative reforms to improve the recognition and enforcement process, drawing comparisons with the revised system for arbitral awards in Japan.

4. Naohiro KITASAKA, Recognition of Foreign Judgments Regarding Family-Related Cases – Recognition of Judgments Ancillary to the Divorce Case and the Effects of Foreign Adoption Decree

Abstract: This paper discusses amendments to Japan’s Personal Status Litigation Act, distinguishing between the recognition of foreign judgments in personal status litigation and domestic relations cases. In particular, it examines the recognition of ancillary judgments in divorce cases, concluding that they fall under article 118 of the Code of Civil Procedure. The paper also examines the effects of foreign adoption decrees, suggesting that recognition should cover the legal parent-child relationship and the termination of the pre-existing relationship, but not parental responsibility.

5. Manabu IWAMOTO, International Surrogacy and Recognition of Legal Parentage

Abstract: The paper discusses the legal complexities of surrogacy, particularly the challenges posed by varying legal recognition in different countries. While Japan does not recognize surrogacy locally, recent developments in Austria and Germany show recognition of children born through surrogacy abroad. The study examines European court decisions, domestic legislation, and international projects aimed at stabilizing the legal status of such children. It suggests that Japan might consider recognizing parentage through foreign decisions. The study emphasizes the importance of international cooperation to protect children and acknowledges differing views on banning surrogacy itself.

6. Akira SAITO, Globalised Business and Anti-Corruption Legal Strategies: Challenges for Private International Law in Promoting Public Policy

Abstract: The paper calls for a shift in private international law to address global challenges like the SDGs and ‘Business and Human Rights.’ Proposing a name change to conflicts law studies, the author emphasizes the need for a broader approach. Using the prevention of bribery as an example, the paper underscores challenges in coordinating legal systems and the urgency for interdisciplinary collaboration in private international law studies to meet current demands.

7. Midori NARAZAKI, Climate Change Litigation and Private International Law: Review of the Hague District Court’s Judgment against Royal Dutch Shell

Abstract: This paper analyzes a landmark decision by the District Court of The Hague on May 26, 2021, ordering Royal Dutch Shell to reduce its greenhouse gas emissions by 45% by 2030. The decision is the first to recognize a corporate duty to mitigate climate change under tort law. The analysis outlines four key issues: the nature of climate change damages, the attribution of responsibility for policy decisions to the parent company, the application of an unwritten standard of care based on human rights principles, and the consideration of the impact of emission permits on civil law obligations. The paper examines the decision’s significance in private international law and its consistency with climate attribution science.

8. Mitsuki KATOH, Right to Claim Special Contribution Fee (a Statutory Care Legacy) in Austrian Private International Law

Abstract: The paper explores Japan’s unique special contribution claims system introduced in 2018 under article 1050 of the Japanese Civil Code. It compares this system to the legal frameworks of other countries, particularly the German Civil Code and Austria’s Pflegevermächtnis introduced in 2015. Both Japan and Austria aim to address challenges associated with an aging population and compensating those providing long-term care for the elderly. The legal nature of Pflegevermächtnis is debated, with scholars questioning whether it falls under inheritance law or unjust enrichment. Understanding these distinctions is essential for interpreting the right to claim special contribution under Japanese private international law.

9. Koji TAKAHASHI, Conflict-of-Law Issues Pertaining to Tokenization on Distributed Ledgers

Abstract: This paper discusses the legal aspects of tokenization, focusing on determining the governing law for tokenized rights. It distinguishes between a token-centered and a right-centered approach and argues in favor of the latter. The right-centered approach suggests that issues related to tokenized rights should be determined by the law applicable to the represented right, making consideration of token ownership unnecessary except in specific contexts where the ownership theory is adopted. The paper highlights the importance of this approach in the evolving landscape of crypto-assets and tokenization. 

10. Yuko NISHIMURA, The Scope of Exclusivity in Article 6 of the 2019 Hague Judgments Convention: Analysis of the “Right in rem” in Immovable Property in ECJ Judgments

Abstract: This paper examines the scope of article 6 of the 2019 Hague Judgments Convention, which will enter into force in September 2023. The Convention, which focuses on indirect jurisdiction for recognition and enforcement, prohibits the circulation of judgments outside the location of the property. The paper analyzes the potential impact in Japan, comparing article 6 with provisions in the Japanese Code of Civil Procedure. It predicts limited impact due to existing CCP provisions, but highlights potential challenges for the circulation of Japanese judgments abroad. Drawing parallels with ECJ rulings on the Brussels Regime, the analysis narrows the interpretation of article 6 and influences Japan’s ratification considerations.

11. Satoshi WATANABE, A Study on the Petition for Revocation of the Child Return Order on Article 117 of the Japanese Implementation Act of the Hague Child Abduction Convention – The Legal Nature of the Petition and Practical Guidance for its Application

Abstract: The paper explores article 117 of the Japanese Implementation Act of the Hague Child Abduction Convention, allowing the revocation of child return orders under changed circumstances. Examining two Supreme Court decisions from 2017 and 2020, the analysis covers grounds for revocation, the child’s refusal to return, and discrepancies with EU and Anglo-American Law decisions. It criticizes the domestic focus in Japanese implementation, urging better coordination and information sharing for aligning decisions with international norms.

12. Masanori TAKEDA, Current Status and Issues of Attorney Activities regarding Applications for Assistance in Child’s Return from the United States to Japan

Abstract: The paper addresses the challenges faced by attorneys handling child abduction cases from the United States to Japan under the Child Abduction Convention. It emphasizes the importance of utilizing State Department financial assistance and highlights the difficulties of selecting U.S. attorneys with limited budgets. Despite potentially disappointing outcomes, the continued commitment of attorneys and support for petitioners is critical. The paper calls for continued financial support from the Ministry of Foreign Affairs and recognition of such legal efforts as pro bono by Japanese bar associations.

The current and past volumes of JYPIL can be ordered from the publisher’s website. (Shinzansha).

On 19 January 2024, the High Court of England and Wales (Dias J) gave a judgment in Border Timbers Ltd v Zimbabwe, which concerned an application to set aside an order granting registration of an ICSID award. The court dismissed the application while holding that the execution of the award was precluded by state immunity.

To reach this conclusion, the court dealt with interesting questions of private international law and international arbitration, namely the distinction between recognition, enforcement and execution of awards and the application of state immunity to the execution of ICSID awards.

Zimbabwe lost an ICSID arbitration (Border Timbers Limited, Timber Products International (Private) Limited, and Hangani Development Co (Private) Limited v Republic of Zimbabwe (ICSID Case No. ARB/10/25)). The award was not satisfied. The award-creditor successfully applied for registration and entry of judgment on the award in England pursuant to the Arbitration (International Investment Disputes) Act 1966 (“1966 Act”) and section 62.21 of the Civil Procedure Rules. The award-debtor applied to set aside the registration of the award on the basis that it was immune from the jurisdiction of the UK courts under the State Immunity Act 1978 (“1978 Act”).

Articles 53-55 of the ICSID Convention deal with the recognition and enforcement of ICSID awards in the Contracting States. The first sentence of Article 54(1) states that “Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.” Article 54(3) specifies that the execution of ICSID awards is governed by the laws concerning the execution of judgments of the requested state. Article 55 preserves the application of the requested state’s law of state immunity from execution.

The 1966 Act implements the ICSID Convention in UK law. Section 1 of the Act provides for the registration of ICSID awards. Section 2(1) of the Act specifies that the effects of registration are that a registered award “shall, as respects the pecuniary obligations which it imposes, be of the same force and effect for the purposes of execution as if it had been a judgment of the High Court”. The Act does not address foreign states’ immunity from execution.

The 1978 Act provides for general immunity from jurisdiction except insofar as one of the stipulated exceptions can be established. The award-creditor argued that the exceptions in sections 2 (“submission to jurisdiction”) and 9 (“arbitrations”) of the Act applied. Section 2 specifies that a state is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the UK courts. Section 9 states that where a state has entered into a written arbitration agreement, it is not immune as respects proceedings in the UK courts which relate to the arbitration, subject to any contrary provision in the arbitration agreement.

The court held that Articles 53-55 of the ICSID Convention stipulated that every Contracting State undertook to recognise an ICSID award as binding for the purposes of res judicata and to enforce any pecuniary obligations it imposed by giving it the same status as a final judgment of its own courts. The requested court cannot re-examine the award on its merits or refuse recognition or enforcement on grounds of public policy. Questions of execution were left to national courts and laws. In particular, Article 54(1) amounted to a waiver of state immunity in respect of recognition and enforcement, but not in relation to processes of execution against assets.

The exception to state immunity in section 2 of the 1978 Act was drafted with reference to specific proceedings before a specific court, thus requiring any submission to be in respect of the jurisdiction actually being exercised in those proceedings. A waiver of immunity unrelated to any identifiable proceedings was therefore not synonymous with a submission to the jurisdiction under section 2. Article 54 of the ICSID Convention was not a sufficiently clear and unequivocal submission to the jurisdiction of the English courts for the purposes of recognising and enforcing the award against the award-debtor. The award-debtor, therefore, had not submitted to the jurisdiction of the English courts within the meaning of section 2 for the purposes of obtaining recognition and enforcement of the award.

Unfortunately, the court’s discussion of the exception to state immunity in section 9 of the 1978 Act is somewhat unclear. After finding that section 9 required or permitted the English courts to re-examine the jurisdiction of the tribunal (whether an ICSID or non-ICSID tribunal) and that ICSID awards did not fall to be treated differently from other awards in this respect, the court concluded, at [89], that:

The position under section 9 is therefore different from that which pertains under section 2 in relation to Article 54. The enquiry which the court has to conduct under section 2 is whether there was a submission to the jurisdiction. On my analysis, the existence of a valid award is a given in that context, and the only question is whether it was rendered pursuant to Convention procedures. Questions of jurisdiction simply do not arise.

Therefore, according to the court, the award-creditor did not establish the applicability of the section 9 exception.

The remaining question was whether state immunity was engaged at all in relation to an application for registration of an ICSID award. The court held that the procedure for registration of ICSID awards set out in section 62.21 of the Civil Procedure Rules did not require service of any originating process or involved any exercise of discretion or adjudication. This was because the award-creditor had a statutory entitlement to have the award registered, subject only to proof of authenticity and other evidential requirements. The foreign state was not impleaded unless and until the order granting registration was served on it. The doctrine of state immunity had no application at the anterior stage of registration. It was the service of process on a state that involved an exercise of sovereignty. This contrasted with the mere notification of the application for registration. The opportunity of a state to assert immunity before any attempt was made to execute against its assets was adequately secured by requiring service of the order for registration. Consequently, the award-debtor could not apply to set aside the registration of the award on the basis that it was immune from the jurisdiction of the UK courts. However, it could claim immunity in relation to any further steps towards execution.

Interestingly, the court further stated that this approach enabled a principled distinction to be drawn between applications to enforce ICSID awards, which were not served and where the award could not be reviewed, and applications to enforce awards under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. The NYC potentially required service and expressly required the court to exercise its adjudicative jurisdiction in determining that no defences applied.

The judgment is of interest for private international law for three reasons. First, it illustrates, in very clear terms, the difference between recognition, enforcement and execution of an award. Second, it confirms the conceptual distinction between a general waiver of immunity and a submission to jurisdiction. Third, it clarifies the ministerial (and not adjudicative) nature of the act that the court is asked to perform on an application for registration of an ICSID award.

However, the reasoning of the court is not entirely satisfactory. After repeatedly reading paragraph 89 of the judgment, I still do not understand why the court concluded that the award-creditor did not establish the applicability of the section 9 exception. A more persuasive line of reasoning would have been to point out that the award-debtor’s offer of ICSID arbitration, as contained in Article 10(2) of the Switzerland-Zimbabwe BIT, incorporated the ICSID Convention, including Article 55, which provides that questions of execution are left to national courts and laws – this could have amounted to a “contrary provision in the arbitration agreement” within the meaning of section 9(2) of the 1978 Act.

Earlier this month (9 January 2024), the Republic of Cabo Verde acceded to the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, which will enter into force for it on 12 January 2025 [Note: this is not our reading of Article 60 of the Convention]. With the accession of Cabo Verde, 49 States and the European Union will be bound by the 2007 Child Support Convention.

Source: https://www.hcch.net/en/news-archive/details/?varevent=955

The fourth edition of European Private International Law – Commercial Litigation in the EU, authored by Geert van Calster (KU Leuven), is out. The book is published by Bloomsbury.

This classic textbook provides a thorough overview of European private international law. It is essential reading for both practitioners and students of private international law and transnational litigation, wherever they may be located: the European rules extend beyond European shores.

Opening with foundational questions, the book clearly explains the subject’s central tenets: the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort). Additional chapters explore private international law and insolvency, freedom of establishment, and the impact of private international law on corporate social responsibility. The relevant Hague instruments, and the impact of Brexit, are fully integrated in the various chapters.

Drawing on the author’s rich experience, the new edition retains the book’s hallmarks of insight and clarity of expression ensuring it maintains its position as the leading textbook in the field.

Written by Sandrine Brachotte who obtained a PhD. in Law at Sciences Po, Paris and is a Guest Lecturer at UCLouvain (Saint-Louis, Brussels).

1. PIL and (De)coloniality in Europe

This post follows Susanne Gössl’s blog post series on ‘Colonialism and German PIL’ (especially s. 3 of post (1)) and offers a French perspective of the issue of PIL and (de)coloniality – not especially focused on French PIL but based on a francophone article to be published soon in the law and anthropology journal Droit et Culture. This article, called ‘For a decolonisation of law in the global era: analysis of the application of postcolonial law in European states’, is addressed to non-PIL-specialist scholars but builds on a European debate about PIL and (de)coloniality that has been nourished by scholars like Ralf Michaels, Horatia Muir Watt, Veronica Ruiz Abou-Nigm, as well as by Maria Ochoa, Roxana Banu, and Nicole Štýbnarová, notably at the occasion of the 2022 Edinburgh conference (reported about on this blog, where I had the chance the share a panel with them in relation to my PhD dissertation (see a short presentation on the EAPIL blog)).

The PIL and (de)coloniality analysis proposed in this post is based on decolonial theory and postcolonial studies, which I will here call ‘decoloniality’. Given this framework (notably nicely presented here), I shall preliminarily stress that it requires acknowledging the limit of the contribution I can make to the debate on PIL and (de)coloniality as a Western jurist. Therefore, this post aims at encouraging non-Western and/or non-legal scholars to contribute to the discussion. It also urges the reader to consider that the non-West and non-legal scholarship about law and (de)coloniality is extremely rich and should not be missed by the Western PIL world.

2. For a Case-by-Case Approach

Against this background, the argument made here is that the decolonisation of Western PIL, if it is to happen (which decoloniality demands, based on the concept of global coloniality), should be based on a certain methodology (see eg the decolonial legal method elaborated by Tchepo Mosaka). Such methodology may require a case-by-case approach, to complement the study of the applicable legal framework. This seems at least necessary in the context, studied in the aforementioned article, where a postcolonial law is to be applied as foreign law by the Western forum (typically but not only in the context of migration), given that ‘postcolonial law’ hides a form of legal pluralism. It thus potentially covers not only state law, but also customary law and/or religious law.

To study this kind of situation, I argue, a case-by-case approach is needed because the legal pluralism of each postcolonial state is idiosyncratic. Notably, the postcolonial state law may refer to some religious or customary norms (which is a form of official legal pluralism); or these non-state norms may be followed by the population because the state institution is deficient or because a large part of the population simply does not follow the state legal standards (which is a form of de facto legal pluralism); or yet, certain state legal concepts or standards may reflect some custom or religious norms or practices.

More generally, the case-by-case approach allows a more nuanced (although also more complex) analysis of the (de)colonial character of current Western PIL standards. For PIL rules and judicial practices may appear colonial (ie, as imposing a Western ‘worldview’) or decolonial (ie, as granting space to ‘colonised’ worldviews) depending on the case, rule and/or judicial practice concerned. In addition, the case-by-case approach enables the consideration of the personal experience and possible vulnerable position of the parties – something that is also demanded by decoloniality. Therefore, the case-by-case approach seems appropriate to also study other questions than the application of postcolonial law discussed here, such as the limits of the Western definition of some important PIL concepts (like family and habitual residence, discussed in Susanne Gössl’s post (2), or party autonomy, of which I have shown a colonial aspect via a case study in my PhD dissertation (see here) and that is also discussed in Susanne Gössl’s post (4)).

3. The Example of X v Secretary of State for the Home Department ([2021] EWHC 355 (Fam))

To illustrate the argument, I choose a UK case that enters into a direct dialogue with Susanne Gössl’s reflection about the notion of habitual residence (see post (2)). In this case, X v Secretary of State for the Home Department ([2021] EWHC 355 (Fam)), the claimant demanded the recognition by the UK authorities of her child’s adoption in Nigeria. Under the applicable UK PIL rules, this adoption had to be recognised in the UK if it complied with the Nigerian law, ie Article 134(b) of the 2004 Child Rights Law. This article provides that the adopter and the adopted must have their residence in the same state. In the absence of any Nigerian caselaw interpreting the notion of residence under Article 134(b), the question came as to whether it had to be interpreted based on UK law or on local customary norms.

Pursuant to the relevant customary law, two circumstances should be considered that could lead to locate the claimant’s residence in Nigeria. On the one hand, the claimant had an ‘ancestral history and linkage’ with Nigeria. One the one hand, as she lived most of the time in the UK to work, she entrusted her adopted child to her mother but took full financial responsibility for the child and made all decisions relating to the child’s upbringing. Pursuant to UK law, more specifically Grace ([2009] EWCA Civ 1082), in case where someone lives in between several countries, the notion of residence had to be interpreted following a ‘flexible nuanced approach’ (para. 84(5)).

In February 2021, the UK judge recognised the adoption established in Nigeria, based on the interpretation of residence in UK law. To this end, the judge used the presumption, which is part of UK PIL, of similarity between foreign law and domestic law. Following Brownlie ([2021] UKSC 45), the judge applied the presumption because, like the UK, Nigeria is a common law system. Then, referring to Grace, the judge located the claimant’s residence in Nigeria. In this regard, she considered the claimant’s ‘close cultural and family ties’ with Nigeria, the fact that she maintained a home there for her mother and children, and the circumstance that ‘[h]er periods of time in [Nigeria] were not by chance, but regular, family focused and with a clear purpose to spent time with her children’ (para. 84(6)).

4. A PIL and Decoloniality Analysis: Opening the Floor

From a PIL and decoloniality perspective, several points can be made. Notably, from a strict legal point of view (lacking anthropological insights), the judge’s interpretation of the UK law notion of residence in this case seems flexible enough to include various, Western and non-Western, worldviews. Yet, one may question the application of the UK legal presumption. Because Nigerian state law is common law indeed, but it shares legality with customary laws and Sharia. Therefore, from a decolonial point of view, the judge could have usefully investigated the question as to whether, to interpret similar laws as the Child Rights Law, Nigerian courts consider customary law (and potentially, the judge did so (see para. 84(5)), but then it would have been welcome to mention it in the judgment). If so, she could have interpreted the notion of residence, not based on UK law, but based on the relevant local customary norms.

These case comments are made just to start a wider discussion – not only about this case but also about other cases. For, in my view, the PIL and (de)coloniality debate is a great occasion to have another, alternative, look at some rules and caselaw, and to open the floor to non-Western and/or non-PIL scholars.

Can an enforcement judgment issued by a foreign court be recognized and enforced in another jurisdiction? This is a fundamental question concerning the recognition and enforcement of foreign judgments. The answer appears to be relatively straightforward: “No”. Foreign enforcement judgments are not eligible to be recognized and enforced as they are not decisions on the merits (see in relation with the HCCH 2019 Convention, F Garcimartín and G Saumier, Explanatory Report (HCCH 2020) para. 95, p. 73;  W Hau “Judgments, Recognition, Enforcement” in M Weller et al. (eds.), The HCCH 2019 Judgments Convention: Cornerstones, Prospects, Outlooks (Hart 2023) 25). This is usually referred to as the “prohibition of double exequatur” or, following the French adage: “exequatur sur exequatur ne vaut”. This question was recently presented to the Dubai Supreme Court (DSC), and its decision in the Appeal No. 1556 of 16 January 2024 offers some useful insights into the status foreign enforcement (exequatur) decisions in the UAE.

I – Facts

In 2012, X (appellee) obtained a judgment of rehabilitation from the United States District Court for the Eastern District of New York ordering Y (appellant, residing and working in Dubai) to pay a certain amount of money. X later sought to enforce the American judgment in Canada (Ontario) via summary judgment procedures. In 2020, the Ontario court ordered enforcement of the American judgment, in addition to the payment of other fees and interests. The judgment was later amended by a judgment entered in 2021. X then sought enforcement of the Canadian judgment in Dubai by filing an application with the Execution Court of the Dubai Court of First Instance. The Enforcement Court issued an order declaring the Canadian judgment enforceable in Dubai. The enforcement order was later upheld on appeal. Y appealed to the DSC.

Before the DSC, Y argued that (1) the American judgment was criminal in nature, not civil; (2) the Canadian judgment was merely a summary order declaring the American judgment enforceable in Ontario; and (3) the Ontario judgment did not resolve any dispute between the parties, as it was a declaration that the American judgment was enforceable in Ontario.

II – Ruling

The DSC found merit in Y’s arguments. In particular, the DSC held that the Court of Appeal erred in allowing the enforcement of the Canadian judgment in Dubai despite Y’s arguments that the Canadian judgment was a summary judgment enforcing an American judgment. The Supreme Court reversed and remanded the appealed decision.

III – Comments

The case commented here is particularly interesting because, to the best of the author’s knowledge, it is the first case in which a UAE Supreme Court (it should be remembered that, there are four independent Supreme Courts in the UAE. For an overview, see here) has been called to rule on the issue of double exequatur. In this regard, it is remarkable that the issue of double exequatur is rarely discussed in the literature, both in the UAE and in the other Arab Middle Eastern jurisdictions. Nevertheless, it is widely accepted that a judgment a foreign court declaring enforceable a foreign judgment cannot be eligible to recognition and enforcement in other jurisdictions. (For some recent applications of this principle by some European courts, see eg. the Luxembourg Court of Appeal decision of 13 January 2021; the Court of Milan in a case rendered in February 2023. Comp. with the CJEU judgment of 7 April 2022, C?568/20, J v. H Limited. For a brief discussion on this issue in this blog, see here). This is because a judgment declaring enforceable a foreign judgment “is, by its own terms, self-limited to the issuing state’s territory, or: as a sovereign act it could not even purport to create effects in another sovereign’s territory” (Peter Hay, “Recognition of a Recognition Judgment within the European Union: “Double Exequatur” and the Public Policy Barrier” in Peter Hay et al. (eds.), Resolving International Conflicts – Liber Amicorum Tibor Várady (CEU Press, 2009) 144).

The present case highlights a possible lack of familiarity with this principle within the Dubai courts. Specifically, the lower courts overlooked the nature of the Canadian judgment and declare it enforceable in Dubai. In its appeal, the judgment debtor did not explicitly avail itself with the prohibition of double exequatur although it argued that that the Canadian judgment was “not a judgment on the merits”. The judgment debtor merely stated the Ontarion court’s judgment was a summary judgment declaring a foreign judgment of criminal rather than civil nature enforceable in Canada and not abroad .

While the Supreme Court acknowledged the merits of the judgment debtor’s arguments, its language also might suggest some hesitation or unfamiliarity with the legal issue involved. Indeed, although the Court did not dispute the judgment debtor’s assertions that the “Canadian judgment was a summary judgment declaring enforceability and an American reorganization judgment,” it reversed the appealed decision and remanded the case, stating that the judgment debtor’s arguments were likely – “if they appeared to be true” – to lead to different results.

In the author’s view, such a remand may have been unnecessary. The court could have simply declared the Ontario enforcement order unenforceable in Dubai on the basis of the “exequatur sur exequatur ne vaut” principle.

One might question the rationale behind the judgment creditor’s choice to seek the enforcement of the Canadian judgment rather than the original American judgment in this case. One might speculate that the judgment creditor sought to avoid enforcement of an order to pay a specific sum arising out of a criminal proceeding. However, it is recognized in the UAE that civil damages awarded in criminal proceedings are likely to be considered enforceable (see, eg., the Federal Supreme Court’s decision, Appeal No. 247 of November 6, 2012, regarding the enforcement of civil damages awarded by an Uzbek criminal court).

Another possible consideration is that the judgment creditor sought to increase the likelihood that its application would be granted, as Dubai courts have shown reluctance to enforce American judgments in the past (see eg., Dubai Court of Appeal, Appeal No. 717 of December 11, 2013, concerning a Nevada Court judgment; DSC, Appeal No. 517 of August 28, 2016, concerning a California court judgment). In both cases, enforcement of the American judgments was refused due to the lack of reciprocity with the United States (however, in the first case, on a later stage of the proceeding, the DSC treated the Nevada judgment as sufficient proof of the existence of the judgment creditor’s debt in a new action on the foreign judgment (DSC, Appeal No. 125/2017 of 27 April 2017). The first case is briefly introduced here).

The positive outcomes at both the first and second instance levels may lend credence to this hypothesis. In general, however, there is no inherent reason why a Canadian judgment would be treated differently in the absence of a relevant treaty between the UAE and Canada (on the challenges of enforcing foreign judgments in the UAE, particularly in Dubai, in the absence of a treaty, please see our previous posts here and here).

Willamette University College of Law and the Conflict of Laws Section of the Association of American Law Schools are hosting a SYMposium to celebrate Professor and Dean Emeritus Symeon Symeonides on May 8-9, 2024.

Professor Symeonides will retire from the Willamette University College of Law faculty in 2025. The SYMposium will celebrate both him as a person, as well as a scholar who has made major contributions in the fields of conflict of laws, comparative law, and transnational litigation, among others.

Please register at this link to join us at the Willamette University campus or virtually for this event to celebrate Professor Symeonides.

Conflict of Laws Workshop and Call for Papers

We are excited to announce that the inaugural, biennial Conflict of Laws Workshop (CLW) will be hosted by Willamette University College of Law in beautiful Salem, Oregon, on May 10, 2024.
The CLW aims to provide a forum to discuss new work in conflict of laws. The CLW welcomes work on all aspects of conflict of laws, including civil, criminal, domestic and transnational conflict of laws. We welcome all those writing and working in the field of conflict of laws to attend.

Please note that on May 8th and 9th, Willamette University College of Law will host a symposium in honor of Professor and Dean Emeritus Symeon Symeonides. CLW participants are invited to attend the symposium as well.

Those wishing to present a paper for discussion should submit a two-page abstract by March 1, 2024. Please email abstracts in Word of PDF format to roger.michalski@ou.edu and asimowitz@willamette.edu.

Logistics

The CLW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches

The Law Faculty of Humboldt University is inviting applications for a four-year PostDoc position in European law. The position is fully paid and funded by the graduate research programme DynamInt (Dynamic Integration Order) which itself is funded by the German Research Foundation (Deutsche Forschungsgemeinschaft).

The PostDoc is supposed to pursue her/his research project in the field of European Law (including European Private International Law and International Civil Procedure). She/he is also expected to interact with the group of young researchers, who all work on their dissertation projects within the thematic framework of harmonization and plurality tendencies in the EU.

The position is targeting German-speaking researchers (in contrast to the international PostDoc positions advertised last week). More information is available here.

The graduate resesarch programme DynamInt (Dynamic Integration Order) of Humboldt University is inviting international PostDocs to apply for a short-term (3 to 6 months), fully paid research stay in Berlin.

The PostDoc is supposed to pursue her/his research project in the field of European Law. She/he is also expected to interact with the group of young researchers, who all work on their dissertation projects within
the  thematic framework of harmonization and plurality tendencies in the
EU.

More information are available here.

The University of Antwerp has opened two vacancies for PhD research related to private international law.

The first covers inter alia EU private international law, and will be supervised by prof. dr. Johan Meeusen and prof. dr. Mathieu Leloup. The four-year scholarship is sponsored by the Research Foundation – Flanders (FWO). The candidate will write a PhD on mutual trust and rule of law requirements in the field of judicial cooperation in civil and criminal matters. The researcher will have to examine, inter alia, the enforcement of the European Union’s rule of law requirements by courts applying EU private international law instruments. All information on this position, and how to apply, can be found on the University of Antwerp’s website.

The second is on the cusp of private and public international law and will be supervised by Thalia Kruger. This position, also for four years, is funded by the Law Faculty. The research will be about international contracts in the context of international treaties on water. The highland water project (Lesotho and South Africa) is a possible approach. More information and requirements are also available on the website of the University of Antwerp.