Flux des sites DIP

The Channel is Really an Abyss When reading court judgments from the UK and the EU, one is often struck by the different attitudes on either side of the Channel. While courts on the continent try to get rid of cases as quickly as possible, their English counterparts seem to tell litigants ‘Bring them on!’. […]

Williams C Iheme, “The Overdependence of African Courts and Businesses on English Law and Forum:
The Negative Repercussions on the Development of African Legal and Economic Systems”  (2024) 15 Pravni Zapisi, pp. 151-190

The uncritical transplantation of English law by Anglophone-African legislators and judges, and their failure to sufficiently adapt English legal concepts to suit the idiosyncratic socioeconomic conditions in Africa, arguably contribute to the perpetuation of English law’s hegemony therein. It is argued that the overdependence on English law and courts by African businesses in resolving contractual disputes
is not necessarily due to any alleged stellar qualities of the former, but largely due to the over-marketing of the English legal system’s competence by its apologists. The analysis uses piquant examples to elicit some adverse effects of using/overreliance on the English law and forum by African businesses in resolving contractual disputes.

To reposition from the lengthened shadow of English law, Anglophone African legislators, judges and legal scholars, must craft autochthonous legal processes that suit Africa’s tastes and socioeconomic milieu.

 

Georgia Antonopoulou, “Forum Marketing in International Commercial Courts?” (2024) Oxford Journal of Legal Studies

Forum selling is a legal term used to describe the practices of courts and judges, geared towards attracting cases, such as increasing the predictability of judgments or speeding up trials. However, do courts also go beyond forum selling to attract cases? Taking international commercial courts as its focus, this article explores how these courts market themselves to attract cases and coins the term ‘forum marketing’. It demonstrates that the courts’ recent establishment, coupled with their voluntary jurisdiction, creates a compelling context, which encourages them to engage in forum marketing. The article argues that forum marketing is not merely a byproduct of the competition in commercial dispute resolution, but a powerful mechanism with deeply persuasive, normative and, effectively, structuring properties. Forum marketing is central to disseminating and reinforcing a pro-business approach in civil justice, consequently setting the stage for procedural inequality and a one per cent procedure.

Janeen M. Carruthers (University of Glasgow) and Bobby W.M. Lindsay (University of Glasgow) edited Research Handbook on International Family Law. Published by Edward Elgar in its Research Handbooks in Family Law series, the book addresses legal topics pertaining to family relationships in a cross-border context, and international family law disputes. It shows how this field […]

We are pleased to present the newest Commentaries on Private International Law (Vol. 7, Issue 1), the newsletter of the American Society of International Law (ASIL) Private International Law Interest Group (PILIG).

The primary purpose of our newsletter is to communicate global news on PIL. Accordingly, the newsletter attempts to transmit information on new developments on PIL rather than provide substantive analysis, in a non-exclusive manner, with a view of providing specific and concise information that our readers can use in their daily work. These updates on developments on PIL may include information on new laws, rules, and regulations; new judicial and arbitral decisions; new treaties and conventions; new scholarly work; new conferences; proposed new pieces of legislation; and the like.

This issue has two sections. Section one contains Highlights on the indirect jurisdiction in India, an amendment to the Chinese Civil Procedural Law, the James Finlay (Kenya) Ltd litigation in the United Kingdom, and a review of the development of PIL in the US and beyond in the year of 2023. Section two reports on the recent developments on PIL in Africa, Asia, Europe, North America, Oceania, and South America from June 2023 to June 2024.

We express our sincere appreciation to our 2024 editorial team, which consists of 20 editors from around the world. The chief editors are PILIG Co-Chairs Jie (Jeanne) Huang (University of Sydney Law School, Australia) and George Tian (University of Technology Sydney Law School, Australia).

The Commentaries and Newsletter can be found at the ASIL website here.

By Professor Jerca Kramberger-Škerl, University of Ljubljana. ‘Speaks 13 languages, can tell a joke in 7, can lecture in 8.’ This was the headline of a 2015 article in the Slovenian newspaper Dnevnik, marking the third appointment of Marko Ilešič as the Slovenian judge at the Court of Justice of the European Union. Indeed, being […]

Written by Aguada, Yasmín** [1]– Jeifetz, Laura Martina***[2]

This post will be divided into two Views. This is Part I.

Abstract: In a globalized world, International Judicial Cooperation (IJC) and advanced technologies are redefining Private International Law (PIL). The convergences between legal collaboration among countries and technological innovations have revolutionized how cross-border legal issues are approached and resolved. These tools streamline international legal processes, overcoming old obstacles and generating new challenges. This paper explores how this intersection reshapes the global legal landscape, analyzing its advantages, challenges, and future prospects.

Keywords: private international law, international judicial cooperation, new technologies, videoconferencing, Iber@, Apostille.

I. INTRODUCTION

In an increasingly interconnected context, international judicial cooperation (IJC) and the advancement of new technologies have been linked in a notable way, reshaping the landscape of private international law (PIL). The dynamic interaction between these two elements has triggered a profound change in how cross-border legal issues are treated and resolved.

Since ancient times, IJC has been essential to address disputes involving multiple jurisdictions. From the harmonization of laws to the enforcement of judgments in foreign countries, the interaction of legal systems has been a constant challenge. However, in recent times, the emergence of technologies has brought with it revolutionary tools and approaches that are transforming IJC.

As borders become more transparent in the digital world, the implications for PIL are immense. Direct judicial communications, videoconferencing, and other technological innovations are streamlining cross-border legal processes. These technological solutions are not only overcoming traditional obstacles in international judicial cooperation but are also giving way to new challenges that require careful evaluation.

This work explores the convergence between these two fields: assistance between jurisdictions and adopting technological innovations. In this way, we propose researching their intersections and how the transnational legal scenario is transformed, with some specific references to Argentine PIL. Collaboration between nations in the search for legal solutions and the potential of new technologies to accelerate these processes are intertwined in a dynamic symbiosis that redefines PIL’s scope and very nature. In this framework, it is essential to understand the joint evolution of IJC and new technologies to anticipate how this relationship will continue to shape this discipline in the future.

II. INFLUENCE OF TECHNOLOGY ON PIL

There is no doubt that the phenomenon of globalization has impacted all branches of the law without distinction. Historically, the primary purpose of PIL was to ensure the continuity of legal relations across different jurisdictions[3]. However, we must recognize that the impact of globalization, the emergence of telecommunications, and the widespread growth of the use of the means of transportation, have led to the movement of people beyond borders. Added to these phenomena is the rise of electronic commerce and online contracting platforms. All these conditioning factors generate a multiplication of private legal relations with foreign elements.

As indicated by Calvo Caravaca and Carrascosa González,[4] the emergence of the Internet produces a shock wave in all branches of law, but more specifically in PIL, a subject that is revealed as the main protagonist in the repercussions of cyberspace in the legal field. The use of online tools globalizes international private legal situations and, therefore, increases their number and variety.

It is a fact: internationalization is not foreign to the eyes of a jurist. However, from the perspective of our subject, the virtualization of borders through the Internet has managed to put classic concepts established since the Middle Ages in crisis. Undoubtedly, the environment has been transformed, and the law – although always behind – has accompanied the new demands of an increasingly digital society at its own pace.

These trends expand with the increase in regional integration processes, by which States generate agreements to promote the circulation of goods, people, diplomatic relations, reduction of customs fees, etc. Without hesitation, these processes even check the basic foundations of the States. And with this, transnational relations achieve an ever greater increase, so their extension requires their inclusion in legislative agendas.[5]

To this complex panorama of challenges and questions, disruptive technologies are now added that are already seen as the protagonists of the new era. Artificial intelligence, smart contracts, the blockchain, the Internet of Things (IoT), and the analysis of large volumes of data (big data) are demanding an exhaustive examination of the basic paradigms of law in general and the PIL in particular.

These technologies are rapidly transforming procurement methods, the way business relationships are established, and governance systems, raising fundamental questions about applying PIL rules and protecting the rights and interests of the parties involved.

International organizations have also echoed these modern challenges. Organizations such as the World Trade Organization (WTO)[6], the Institute for the Unification of Private Law (UNIDROIT)[7] and the United Nations Commission on International Trade Law (UNCITRAL)[8] are taking a leading role in the development of practical guides intended to harmonize solutions to the possible legal consequences derived from the use of these tools.

III. IMPACT OF NEW TECHNOLOGIES ON INTERNATIONAL JUDICIAL COOPERATION

In recent years, a series of tools and mechanisms have been consolidated that, promoted by the benefits derived from the use of technology in the process, seek to generate a more direct connection between authorities to provide assistance. Clear examples of this are direct judicial communications, electronic requests, and the use of videoconferences. These innovations are accompanied by different cooperation networks: the central authorities, key actors in the operation of the agreements, which facilitate legal cooperation; judicial networks[9] and contact point networks.

Although the application of new technologies was not considered when most of the regulations and agreements that we have today were negotiated, there is no regulatory obstacle to their use since the operation of such instruments is substantially optimized through the application of these modern tools.

In the field of soft law, the Principles of the American Association of Private International Law (ASADIP), Chapter 4, “Interjurisdictional Cooperation”, article 4.7, provides in this regard: “provided that the security of communications is guaranteed, judges and other justice operators will seek and promote the use of new information and communication technologies, such as telephone and video conferencing, electronic messages, and any other means of communication suitable for ensuring the effectiveness of the requested cooperation”.

Most of the current regulations contain requirements incompatible with the communication technologies we have available today. In pursuit of a more favorable interpretation of the implementation of ICT, article 4.5 of the ASADIP Principles on Transnational Access to Justice (TRANSJUS Principles), approved by the Assembly of the American Association of Private International Law, in its meeting held in Buenos Aires, on November 12, 2016, points out that:

“…the requested State will apply and interpret the rules of interjurisdictional cooperation in a particularly flexible manner, minimizing the relevance of formalities. The courts of the requested State may act ex officio and undertake the regulatory adaptations that are necessary to achieve the completion of the corresponding procedural action. When the law does not indicate a specific form, method or manner to carry out any act of cooperation requested by the requesting State, the courts of the requested State have the power to take all appropriate measures to achieve the objective of the requested assistance, safeguarding always the fundamental procedural guarantees ”

It follows from this principle “the need to seek the delicate balance between the duty of cooperation, through available and suitable means, and respect for the guarantees of due process”.[10]

III.I. Electronic transmission of requests. Iber@.

Firstly, electronic requests are those that are transmitted within the framework of an international judicial procedure by which the court of one State requires a court of another State to provide judicial assistance or the execution of a procedural act (e.g., notification, evidence), and which is formalized through electronic means.

A vitally important tool in the context of international judicial cooperation is the Iber@ electronic communication platform. This system, characterized by its confidentiality, security, ease of use, and access, is used both by the contact points of the Ibero-American Network for International Legal Aid (IberRed) [11], and by other relevant networks, such as Eurojust, the General Secretariat of INTERPOL and the Ibero-American Network of Specialized Prosecutors Against Trafficking in Human Beings.

User access is required, as provided by the General Secretariat of IberRed, previously designated by the institutions that make up the Network. Then, each user generates a private password, which must be renewed every six months. It should be noted that Iber@ does not impose specific requirements beyond a computer and an internet connection, allowing one to log in from anywhere in the world.[12]

Once the user is authenticated in the system, he or she accesses the platform through the IberRed portal and select the institution to which to direct their query: a Contact Point, a Liaison, or a National Member of Eurojust. After submitting the query, the designated recipient receives an email notification. Subsequently, he or she is asked to enter the platform to view the request.

An important boost for this platform came with the ratification of the Treaty on the Electronic Transmission of Requests for International Legal Cooperation between Central Authorities, which took place in Medellín in July 2019, commonly known as the Medellín Treaty. This agreement has been signed by Andorra, Argentina, Brazil, Colombia, Chile, Spain, Paraguay, Portugal, and Uruguay, and it is also open to signature to other nations. It should be noted that this treaty entered into force in May 2022.

As Mercedes Albornoz and Sebastián Paredes point out[13], this instrument does not regulate the formal, procedural, or substantial requirements of the request but instead offers a renewing and perfected perspective of the existing treaties on international cooperation. The proposed innovation, in line with current times, involves eliminating the traditional transmission of requests for international assistance in paper format and instead favoring the Iber @ electronic platform as the main means (Article 1). However, its use is not mandatory (Article 4 ).

Unquestionably, cross-border cooperation demands the incorporation of new technologies to guarantee effective judicial protection, which requires collaborative efforts on the part of States. The ultimate objective is to achieve the digitalization of existing mechanisms in the field of international judicial cooperation. In this trajectory, the Iber@ platform presents a significant opportunity, considering its distinctive security characteristics, immediacy, and friendly accessibility.

III.II. e-Apostille. Digitization of evidence and documents.

Another fundamental tool in the framework of international judicial cooperation is the digitization of evidence and documents. At that level, and explicitly concerning public instruments, the electronic apostille is a simplification and streamlining mechanism for the circulation of such documents. Broadly speaking, it is a digital document that is transmitted electronically, allowing a country to expedite the authentication of public documents to produce their effects in other States[14]. This is the electronic implementation of the Hague Apostille, the single and simplified authentication process for public documents provided for by the 1961 Hague Convention[15]. It is carried out by electronic means and on an electronic public document.

Regarding the use of technological tools, the Special Commission, when evaluating the practical operation of the Apostille Convention, reiterated in several meetings that the spirit and letter of the Convention “do not constitute an obstacle to the use of modern technology”, even affirming that the use of said technology can significantly improve the application and operation of the Convention.

In 2006, the Hague Conference (HCCH), together with the National Notary Association of the United States of America (NNA), officially launched the electronic Apostille Pilot Program (e-APP), which was a pilot program until 2012, when it became a permanent program.

The e-APP allows for a much more effective performance of the Convention, considerably increasing security. It can be used with any type of technology and does not privilege the use of one technology over another, so the state parties can freely choose the one that best suits their needs and structures. The e-APP comprises two components: the issuance of e-Apostilles and the operation of e-registers.

The Hague Conference periodically organizes International Fora on the e-APP to discuss and promote its implementation. In 2021, the twelfth Forum on the e-APP was held via videoconference for the first time, and during its celebration, the effects of the COVID-19 pandemic on the operation of the Apostille Convention were pointed out, and the e-APP. Specifically, the number of (e-)Apostilles requested and issued decreased, and public services were hampered by restrictions, prompting a transition towards online services. However, they also noted that Contracting Parties that had already implemented the e-APP, particularly the e-Apostille component, reported fewer issues.

Currently, 53 countries have implemented one or two components of the e-APP. Faced with technologies in constant innovation, the 1961 Hague Convention “remains in force and has even increased its number of ratifications by designing the electronic Apostille Program (e-APP) with the objective of guaranteeing that the Convention functions in a manner effective, safe and uninterrupted, we opted for the incorporation of technology, in this case, through the issuance of electronic apostilles (e-Apostilles) and the use of electronic records (e-Registries) [16].” The e-APP provides the Apostille Convention with renewed energy and relevance, ultimately seeking to extend the scope of the Convention to the electronic medium and strengthen its important benefits by making its operation more effective and secure. In this way, we see how the incorporation of new technologies is possible to optimize the operation of existing agreements and facilitate international judicial and administrative cooperation, and thus promote access to justice.

[1]** Lawyer and notary, Law School, National University of Córdoba, Argentina. Law School, Master in International Business Law, Complutense University of Madrid. Assistant professor in Private International Law and Public International Law at the Faculty of Law, National University of Córdoba. Email: yasmin.aguada@mi.unc.edu.ar

[2] *** Lawyer, Law School, National University of Córdoba, Argentina. PhD student, University of Cádiz. Master in International Business Law, Complutense University of Madrid. Assistant professor in Private International Law at Law School,  National University of Córdoba. Email: martina.jeifetz@unc.edu.ar

[3] DREYZIN DE KLOR, ADRIANA. El derecho internacional privado actual. Volume I. Zavalia, Ciudad Autónoma de Buenos Aires, 2015.

[4] CALVO CARAVACA, ALFONSO  L. and CARRASCOSA GONZÁLEZ, JAVIER. Conflictos de leyes y conflictos de jurisdicciones en Internet, Madrid, Colex, 2001.

[5] SCOTTI, LUCIANA. Los escenarios del derecho internacional privado actual: globalización, integración y multiculturalidad. Derecho Internacional Privado y Derecho de la Integración– Book tribute to Roberto Ruíz Díaz Labrano, coord. Fernández Arroyo, D. Moreno Rodríguez, José A. CEDEP, Asunción, 2001.

[6] The World Trade Organization prepared a work directed by Emmanuelle Ganne in which the impacts of blockchains on global trade are analyzed. GANNE, Emmanuelle. Can blockchains revolutionize international trade? 2018.

Available at: https://www.wto.org/spanish/res_s/booksp_s/blockchainrev18_s.pdf. Accessed: 7 July 2024.

[7] For its part, since 2020, UNIDROIT has commissioned a specialized group, at the initiative of some European countries, to prepare a regulatory instrument that contains principles and practical guides on Digital Assets and Private Law. For more details: https://www.unidroit.org/work-in-progress/digital-assets-and-private-law/#1456405893720-a55ec26a-b30a . Accessed: 7 July 2024.

[8] Since 2022, the UNCITRAL Working Group on Electronic Commerce has been analyzing legal issues related to the digital economy. They have especially dedicated themselves to making a legislative proposal for artificial intelligence and automated contracting. More information at: https://uncitral.un.org/es/working_groups/4/electronic_commerce. Accessed: 7 July 2024.

[9] As an example, we mention the International Hague Network of Judges, a group of judges who jointly cooperate on requests for international return of children. For more details: International Network of Judges of The Hague. Available at: https://www.hcch.net/es/instruments/conventions/specialized-sections/child-abduction/ihnj. Accessed: 7 July 2024.

[10]SCOTTI, LUCIANA . op. cit., 2020, p. 428.

[11]The Ibero-American Network of International Judicial Aid (IberRed) constitutes a valuable collaboration network in areas of civil and criminal law. The Network is made up of Central Authorities and members of the Ministries of Justice, and other judicial bodies from 22 Ibero-American countries. It is also made up of the Supreme Court of Puerto Rico. The basic objective is to optimize the operation of the current civil and criminal assistance agreements, and to strengthen cooperation between the member countries of the Ibero-American Community of Nations. Such a structure constitutes a fundamental advance in the construction of an Ibero-American Judicial Space. In order to safeguard effective judicial protection, it aims to strengthen international legal cooperation mechanisms and, in addition, simplify the instruments and tools currently in force. Its official languages are Spanish and Portuguese IBERO-AMERICAN NETWORK OF INTERNATIONAL JUDICIAL AID. https://iberred.notariado.org/, 2014. Accessed: 7 July 2024.

[12] AGUADA, YASMÍN and JEIFETZ, LAURA MARTINA. “Nuevas oportunidades de la cooperación judicial internacional: exhorto electrónico y blockchain”. Legal and Social Research Center, Anuario XIX, 2019.

[13] ALBORNOZ, MERCEDES and PAREDES, SEBASTIAN. “Nuevo Tratado de Medellín: la tecnología de la información al servicio de la cooperación internacional” in Derecho en Acción, 2019.

[14] Private documents, in order to be apostillised, require prior certification by a notary public.

[15] It is worth remembering that the 1961 Hague Convention eliminated the requirement for legalization of foreign public documents, replacing it with the apostille. This Convention is one of the most accepted and applied international treaties globally. It is currently in force in 126 States, making it one of the most successful international instruments in the field of international legal and administrative cooperation.

[16] ALL, PAULA. “Legalización de documentos en la fuente convencional y en la fuente interna. Un paso más en el avance hacia lo tecnológico y lo digital” in, LA LEY, 04/29/2019, 1. Online Citation: AR/DOC/961/2019

On 27 June 2024, the English Court of Appeal delivered a judgment on the Rome II Regulation (which is assimilated EU law in the UK) in Nicholls v AXA Assistance Group Group T/A AXA Travel Insurance [2024] EWCA Civ 718 (LLJ Dingemans, Stuart-Smith and Coulson). The case concerned personal injuries in Spain, Spanish law was […]

On 11 and 12 July 2024, the Comparative Procedural Law and Justice (CPLJ) Final Conference will take place at the University of Luxembourg. The organizers have kindly shared the following announcement with us:

The conference will be held in a hybrid format and participation is free of charge. A brief description of the background of the CPLJ project and the final conference is provided below, together with the registration details.

The Project

CPLJ is a global project on comparative civil justice, which was launched in September 2020 by the former Max Planck Institute Luxembourg for Procedural Law with the financial support of the Luxembourg Research Fund (FNR). The project was designed to provide a comprehensive analysis of comparative civil procedural law and contemporary civil dispute resolution mechanisms.

Against this backdrop, CPLJ seeks to understand procedural rules within their cultural contexts and to identify effective approaches for resolving civil disputes. Moreover, it examines current developments in comparative civil procedure on a global scale, including the impact of information technologies, the growth of alternative dispute resolution methods, recent trends in access to justice and litigation funding, the complexities of collective litigation, and the increasing demands for transparency and independence within justice systems. These and other topics are addressed in sixteen thematic segments drafted by multi-jurisdictional author teams.

Over one hundred scholars from around the world actively participated in the genesis of CPLJ. They were guided by a Board of General Editors, consisting of Prof. Burkhard Hess, Prof. Margaret Woo, Prof. Loïc Cadiet, Prof. Séverine Menetry and Prof. Enrique Vallines. An Advisory Board of twelve esteemed scholars provided additional scientific support. Each of the sixteen author teams was led by a coordinator, who is a distinguished professor affiliated with a prestigious university or research institution. The multi-jurisdictional background of the individual members of the author teams ensures a global perspective.

The Final Conference

The final conference presents the results of the four-year CPLJ project. The rich two-day program encompasses numerous presentations by distinguished speakers who are contributors to the project, always followed by a discussion. The speakers will present highlights of their teams’ comparative procedural law research in their respective thematic segments.

The final conference additionally marks the launch of the CPLJ website that will host the thematic segments and the various contributions to those segments after their completion. The website will be open-access and is expected to become one of the major reference works for comparative civil procedural law for many years to come.

Make sure to register in time and please indicate whether you expect to attend in-person or online. The full program and registration details can be found here. We look forward to welcoming many attendants in Luxembourg to celebrate the conclusion of this exciting project with us.

On 5 July 2024, Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859 (Text with EEA relevance) was published in the Official Journal of the European Union. Pursuant to Article 38 of the Directive, it […]

The last seminar in the series organised by Marie-Elodie Ancel (University of Paris-Panthéon-Assas) and Pascal de Vareilles-Sommières (University of Paris 1 Panthéon-Sorbonne) and hosted by the Cour de cassation on the recast of the Brussels I bis Regulation was held on 24 June 2024. The general topic of the seminar was recognition and enforcement of […]

This post was written by François Mailhé, who is Professor of Private Law at the University of Picardie Jules Verne. The author thanks Justice Fulchiron for changing the Cour de cassation‘s practice and making his preliminary report available to the public on the Court’s website, thus providing a new source of information on the Court’s […]

Written by Mayela Celis, Maastricht University

The Special Commission on the practical operation of the 1965 Service, 1970 Evidence and 1980 Access to Justice Conventions will take place in The Hague from 2 to 5 July 2024. For more information (incl. all relevant documents), click here. Particularly worthy of note is that this is the first meeting in the history of the Hague Conference on Private International Law (HCCH) in which Spanish is an official language  – the new language policy entered into force on 1 July 2024.

A wide range of documents has been drafted for this Special Commission, such as the usual questionnaires on the practical operation and the summary of responses of Contracting States. These documents are referred to as Preliminary Documents (Prel. Doc.). Particularly interesting is the document relating to Contractual Waiver and the Service Convention (i.e. when the parties opt out of the Convention), the conclusions of which I fully endorse (Prel. Doc. No. 12, click here, p. 10).

Country profiles have also been submitted for approval (Prel. Docs 9 and 10), a practice which is in line with what has been done with other HCCH Conventions. A document on civil and commercial matters has also been issued and while it basically restates previous Conclusions and Recommendations, it includes the suggestion made by some States to develop “a list-based approach to identify the scope of “civil or commercial matters”” and recommends not following that route but rather take a case-by-case approach (Prel. Doc. 11, click here) – a very wise approach.

Moreover, it is worth noting that revised versions of the Service and Evidence Handbooks have been submitted for approval. A track changes version of each has been made available on the website of the Hague Conference. The Handbooks are usually only available for purchase on the HCCH website so this is a unique opportunity to view them (although not in final form).

For ease of reference, I include the links below:

Service Handbook (track version, clean version)

Evidence Handbook (track version, clean version)

With regard to the Service Handbook, a few changes are worth underscoring. I will refer to changes in comparison to the 4th version of the Handbook. While I will refer to the track changes version, please note that not all changes have been marked as changes as this version refers to changes made to an intermediate version circulated internally:

1. P. 61 of the track changes version – Service on an agent – The clarification of the two lines of cases that have emerged regarding service on an agent (e.g. the US Secretary of State) and whether the document should be sent abroad is particularly interesting.
2. P. 66 of the track changes version – Service by postal channels on Chinese defendants – The emphasis on China’s opposition to postal channels is particularly significant, given the litigation regarding service on Chinese defendants through postal channels.
3. P. 69 et seq. of the track changes version – Substituted service – a welcome addition to underscore that this type of service is also used when the Convention does not apply.
4. P. 87 et seq. of the track changes version – a practical example from Brazil on how to locate a person to be served – this is an interesting example and it enriches the Handbook by including an example from Latin America.
5. P. 101 et seq of the track changes version and glossary – EU digitalisation – a fleeting reference is made to the modernization initiative of the European Union.
6. P. 145 et seq of the track changes version – Water Splash, Inc. v Menon decision by the US Supreme Court – The position of the US regarding article 10(a) has been updated and all the previous case law of lower and appeal courts has been deleted.

The above-mentioned changes are very welcome and will be very useful to practitioners.

On a more critical note, it should be noted that it is unfortunate that the Annex on the use of information technology featured in a previous edition of the Service Handbook has been deleted (previously Annex 8). In this Annex, there were references to the latest case law on electronic service by electronic means (approx. 26 pages), including email (incl. references to the first case and the evolution in this regard), Facebook, X previously known as Twitter, message board, etc. and an analysis whether the Service Convention applied and why (not).

Unfortunately, very few excerpts of this Annex have been included throughout the Handbook. The concept of address under Article 1(2) of the Service Convention vs email address is of great importance and it has remained in its place (p. 88 of the track version version).

As a result, the Service Handbook contains now very few references to “service by e-mail” (1 hit), “electronic service” (3 hits), “e-service” (2 hits) or “service by electronic means” (10 hits, see in particular, p. 100) and no hits for “service by Facebook” or “service by Twitter”. It also seems to focus on e-service executed by Central Authorities of the requested State according to domestic laws (as opposed to direct service by email across States). And in this regard, see for example the comment from China (Prel. Doc. 15, click here, p. 41).

Having said that, an additional document on IT was drafted (Prel. Doc. No 13, click here), which summarises the way in which information technology can be used to enhance the above-mentioned Hague Conventions and focuses specifically on electronic transmission, electronic service and video-link.

With regard to e-service, Preliminary Document No 13 notes among other things that Contracting Parties remain divided as to whether or not service – of process or otherwise – via e-mail or other forms of e-service is within the scope of Article 10(a) postal channels (p. 9). See in this regard the comment from the European Union (Prel. Doc. 15, click here, p. 38). This casts a shadow on the ‘functional equivalence’ approach of this Convention. Moreover, this document only discusses e-service very briefly and the literature referred to in the Prel. Doc. is outdated pertaining to one or two decades ago. On the other hand, however, reference is made to the 2022 responses to the Questionnaire and two recent cases.

Another perhaps unfortunate deletion is the relationship between the Service Convention and the applicable EU regulation (No. 2020/1784). The Handbook merely dedicates a half page to this important relationship (p. 169 of the track changes version) and does not analyse the similarities and the differences between them, as was the case in previous versions. A missed opportunity.

On a positive note, the graphs and tables have been improved and made more reader-friendly and a new Annex has been included “Joining the Convention” (new States can only accede to the Convention).

With regard to Evidence Handbook, it could be noted that this Handbook has been subject to a more recent update in 2020, as well as the publication of a Guide to Good Practice on Video-Link in the same year. Therefore, in a way there are less new developments to include. In particular, it has been noted that sections of the Guide to Good Practice on Video-Link have been included into the Evidence Handbook. A question may then arise as to whether the Guide will remain a stand-alone document (but apparently, it will not – for now the free version of the GGP can be downloaded. Hopefully, the Handbook will also be translated into as many languages as the Guide was).

As with the Service Handbook, the graphs and tables have been improved and made more reader-friendly.

Of great significance is the delicate split of views with regard to the possibility of obtaining direct taking of evidence by video-link under Chapter I of the Evidence Convention. In my view, this is the Achilles’ heel of the Evidence Convention since without direct taking of evidence under Chapter I, there is a real danger that this instrument has become obsolete. Let alone the fact that the Evidence Convention has no specific safeguards for the direct taking of evidence.

In sum, the Service and Evidence Conventions work well in a paper environment. However, these Conventions are struggling to keep up with technological developments as some States are reluctant to accept the ‘functional equivalence’ approach of some of their provisions, in particular art. 10(a) of the Service Convention and art. 9(2) of the Evidence Convention (direct service by postal channels and direct taking of evidence by the requesting State). An easier implementation of IT is the electronic transmission of requests, something that is left as a long-term goal (see below), the effecting of e-service by the Central Authority of the requested State or the use of video-link in the indirect taking of evidence. A question then arises as to how fit are these Conventions for the future and that is something that only time will tell.

This aside – the updating of the Handbooks and the drafting of the preliminary documents is a huge enterprise. The drafters should be congratulated, as these documents will certainly be of great benefit to the users of both Conventions.

At the end of a meeting of the Special Commission, Conclusions and Recommendations are adopted.  In this regard, Prel. Doc. No. 13 submits a few proposals regarding information technology (see pages 15-17). In particular, it stands out [for the long-term] “the proposal for the development of an international system to facilitate the e-transmission of requests or alternatively, to propose how a decentralised system of platforms for the transmission of requests may function effectively.” In that respect, a question arises as to how to combine synergies and avoid overlapping efforts at the international and the EU level.

A link to the Conclusions & Recommendations will be added to this post once they have been made available.

Michael S. Green (William and Mary Law School), Ralf Michaels (Max Planck Institute for Comparative and International Private Law, Hamburg) and Roxana Banu (Oxford University) are the editors of Philosophical Foundations of Private International Law published by Oxford University Press. The book is divided into four sections focusing on normative structure, authority, plurality, and the […]

(drafted by Liu Zuozhen and revised by Tu Guangjian)

In recent years, China has put much emphasis on foreign-related rule of law. It is believed that enhancing the construction of foreign-related rule of law is vital for promoting the nation’s comprehensive development and rejuvenation through Chinese-style modernization, high-level opening up, and responding to external risks. China’s top legislature has prioritized and made significant progress in foreign-related legislations across various legal domains, including civil, commercial, economic, administrative, and procedural laws. Two salient examples are the Law on Foreign Relations of the People’s Republic of China and the Foreign State Immunity Law of the People’s Republic of China, both of which were adopted in 2023 and have now entered into force.

Against this background, many official and academic activities have been launched and conducted for foreign-related rue of law. Across the country, in quite a few of universities, research institutes for foreign-related rule of law are established at various levels, some of which are even higher than the faculties.

With China’s increasing foreign trade, the influx of foreign-invested enterprises, and the expansion of Chinese enterprises abroad, there is, of course, a growing demand for foreign-related legal services as well. In Guangzhou, the Capital city of Guangdong Province, which has always been the forefront of the opening-up policy and international business center, with approval from the Guangzhou Municipal Justice Bureau, a local law firm, namely Guangdong Everwin Law Office even established its own foreign-related legal service research institute. It is not common for a law firm to have an internal research institute in China and many more might be on the way to come.

It seems that the Chinese story of foreign-related rule of law has just started and not reached its climax yet.

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

 

Erik  Jayme †

 

T. Lutzi: Unilateralism as a structural principle of the Digital Single Market?

While the body of instruments through which the European legislator aims to create a Digital Single Market keeps growing, it remains strangely devoid of multilateral conflicts rules. Instead, directives in this area usually contain no conflict-of-laws provisions at all, while regulations limit themselves to a unilateral definition of their territorial scope of application. As the instruments do not regulate the matters falling into their material scope of application conclusively, though, they continue to rely on, and interact with, national systems of private law. The existing, general conflict-of-laws rules do not coordinate between these systems satisfactorily. In order to realise a genuine Digital Single Market with uniform standards of liability, specific universal conflicts rules thus seem indispensable

 

L. Theimer: The last arrow in the English courts’ quiver? ‘Quasi-anti-suit injunctions’ and damages for breach of exclusive choice of court agreements

This article analyses the last instance of failed integration of English common law instruments into the jurisdictional system of the Brussels regime. In its decision in Charles Taylor Adjusting, the ECJ held that decisions granting provisional damages for bringing proceedings in another Member State, where the subject matter of those proceedings is covered by a settlement agreement and the court before which proceedings were brought does not have jurisdiction on the basis of an exclusive choice of court agreement, are contrary to public policy under Art 34 (no 1) and Art 45(1) Brussels I Regulation. More specifically, they violate the principle of mutual trust by reviewing the jurisdiction of a court of another Member State and interfering with its jurisdiction. Such decisions also undermine access to justice for persons against whom they are issued. By and large, the decision merits approval as it unmasks the English decisions as “quasi-anti-suit injunctions” which are incompatible with the Brussels Regulation, just like their “real” siblings, anti-suit injunctions. The ECJ’s analysis is, however, not in all respects compelling, particularly with regard to the point of reviewing another court’s jurisdiction. Moreover, the Court’s and the Advocate General’s reluctance to engage with the English view on the issue is regrettable. In conclusion, the ECJ’s decision may well – in terms of EU law – have broken the last arrow in the English courts’ quiver. It is unlikely, however, that English courts will be overly perturbed by this, considering that, following Brexit, their arsenal is no longer constrained by EU law.

 

W. Hau: The required cross-border implication in Article 25 Brussels I Regulation: prerequisite for application or measure against abuse?

It has long been debated whether two parties domiciled in the same Member State can agree on the jurisdiction of the courts of another Member State pursuant to Art. 25 Brussels Ibis Regulation if, apart from this agreement, the facts of the case have no other cross-border implications. The ECJ has now convincingly answered this question in the affirmative. This ruling provides an opportunity to take a closer look at the function of the requirement of an international element in the context of Art. 25 Brussels Ibis Regulation and some questionable arguments that are derived from other legal instruments.

 

A. Hemler: The “consumer jurisdiction of the joinder of parties” in the Brussels Ia Regulation and the comparison between the law applicable to consumer contracts and other contracts in the Rome I Regulation

In the cases Club La Costa and Diamond Resorts, Spanish courts referred various questions to the ECJ on timeshare contracts between consumers and businesses residing in the UK concerning the right to use holiday accommodations in Spain. In Club La Costa, the ECJ primarily discussed whether the consumer jurisdiction of Art 18(1) Brussels Ia Regulation permits an action in front of Spanish courts against the consumer’s contractual partner if the latter is not established in Spain and if the co-defendant, who is only connected to the consumer via an ancillary contractual relationship, has a registered office in Spain. In both proceedings, the question also arose as to whether the law applicable under the general rules of Art 3, 4 Rome I Regulation can be applied instead of the law applicable under Art 6 Rome I Regulation if the former is more favourable to the consumer in the specific case. The ECJ answered both questions in the negative and with somewhat generalised reasoning. Both decisions can be endorsed above all because both International Civil Procedural Law and the Conflicts of Laws realise consumer protection through abstract rules on the access to domestic courts or the applicable law, which means that, in principle, choosing the most favourable forum or legal result in each individual case is not a valid option.

 

C. Uhlmann: The contract to enter into a future contract in Private International Law and International Civil Litigation

In EXTÉRIA, the ECJ decided upon the question of whether a contract to enter into a future contract relating to the future conclusion of a franchise agreement, which provides for an obligation to pay a contractual penalty based on non-performance of that contract to enter into a future contract, is a service contract in accordance with Art. 7(1)(b) Brussels Ia-Regulation. The ECJ answered this question in the negative on the grounds that the contract to enter into a future contract does not stipulate the performance of any positive act or the payment of any remuneration; in the absence of any actual activity carried out by the co-contractor, the payment of the contractual penalty could also not be characterized as remuneration. Instead, international jurisdiction should be determined in accordance with Art. 7(1)(a) Brussels Ia-Regulation. The author criticizes that the ECJ characterizes the contract to enter into a future contract detached from the future contract and generally argues in favor of an ancillary characterization and a broad understanding of the provision of services for the purpose of Art. 7(1)(b) Brussels Ia-Regulation.

 

C. Rüsing: Transfer of jurisdiction under Article 15 Brussels IIbis Regulation and Articles 12, 13 Brussels IIter Regulation in cases of child abduction

According to Art. 15 Brussels IIbis Regulation, a court of a Member State may, under certain prerequisites, transfer its jurisdiction in custody proceedings to the court of another Member State. In TT ./. AK (C-87/22), the CJEU held that in cases of child abduction, a court with jurisdiction under Art. 10 Brussels IIbis Regulation may also transfer jurisdiction to a court of the state to which the child has been abducted. The article welcomes this, but highlights problems that both courts must take into account in doing so. It also discusses changes under the Brussels IIter Regulation now in force.

 

D. Looschelders: Time-preserving effect of a waiver of the succession before the courts of the heir’s habitual residence

Whether a waiver of the succession before a court at the habitual residence of the heir competent under Article 13 of the EU Succession Regulation has time-preserving effect, even if the declaration of the heir is not forwarded to the court responsible for settling the estate within the period stipulated by the law applicable to the succession, has been controversial to date. In the present decision, the ECJ has affirmed a deadline-preserving effect. The operative part and the grounds of the judgement suggest that the ECJ regards the question of before which court the waiver of the succession is to be declared as a matter of form. The prevailing opinion in Germany, on the other hand, still categorises this question as a matter of substantive law; the jurisdiction of the courts at the habitual residence of the heirs is therefore understood as a case of substitution ordered by law. Within the scope of application of Article 13 EU Succession Regulation the divergent characterisation has no practical significance. However, different results may arise if an heir according to the law of his habitual residence does not waive the succession before a court or if he declares the waiver of the succession before a court of a third country. In these cases, only Article 28 EU Succession Regulation is applicable, but not Article 13 EU Succession Regulation. As the ECJ has argued with the interaction between both provisions, a new referral to the ECJ may be necessary in this respect.

 

C. A. Kern/K. Bönold: Blocking effect of filing an insolvency petition with courts in Member States and third countries under the EU Insolvency Regulation and InsO

In its preliminary ruling of 24 March 2022 (Case C-723/20 – Galapagos BidCo. Sàrl ./. DE, Hauck Aufhäuser Fund Services SA, Prime Capital SA), the ECJ confirmed that the filing of an insolvency petition with a court of a Member State triggers a bar to the jurisdiction of courts of other Member States. Due to Brexit, the BGH, in its final decision of 8 December 2022 (IX ZB 72/19), had to apply German international insolvency law, which it interpreted differently from the EU Insolvency Regulation.

 

H.-P. Mansel: In memory of Erik Jayme

 

C. Kohler: Guidelines on the recognition of a foreign legal relationship in private international law – Conference of the European Group for Private International Law 2023, Milan, September 2023

This July, the activity of the Court of Justice in PIL matters comprises the publication of two decisions and one opinion. All them relate to the interpretation of the Brussels I bis Regulation: On Thursday 4, the fifth Chamber (sitting judges K. Lenaerts, E. Regan, I. Jarukaitis and D. Gratsias) will deliver its judgment in […]

It has been a hot topic to explore recognition and enforcement of judgments between China and other countries. The core issue of the topic is the role of reciprocity under Chinese law and practice concerning recognition and enforcement of foreign judgments in China. Reciprocity was narrowly interpreted by Chinese courts in the past, blocking circulation of lots of foreign judgments in China. Encouragingly, China’s Suprem People’s Court (SPC) is adopting new rules to interpret reciprocity, which is now far more favorable to establish the reciprocal relationship between China and foreign countries. Then it is up to lower Chinese courts to follow up and the new reciprocity rules established by the SPC are tested in practice.

 

This piece of comment is written by Dr. Meng Yu, lecturer at China University of Political Science and Law, and co-founder of China Justice Observer.

 

In 2019, in the Zhou et al. v. Vusal case, China’s request to Azerbaijan for judgment recognition and enforcement was accompanied by its reciprocal commitment through a diplomatic note, marking the first time China made a reciprocal commitment to a foreign country regarding recognition and enforcement of foreign judgments.

Key takeaways:

• In the field of recognition and enforcement of foreign judgments (REFJ), the new reciprocity criteria in China include three tests, namely, de jure reciprocity, reciprocal understanding or consensus, and reciprocal commitment.
• In 2019, in the Zhou et al. v. Vusal case, China’s request to Azerbaijan for judgment recognition and enforcement was accompanied by its reciprocal commitment through a diplomatic note, marking the first time China made a reciprocal commitment to a foreign country regarding REFJ.
• A reciprocal commitment is essentially a unilateral promise that takes effect upon being made.
• Before making such a commitment, China’s Supreme People’s Court (SPC) examines and decides on the matter. This is logically consistent with the requirement from the Conference Summary that Chinese courts need to examine, on a case-by-case basis, the existence of reciprocity, on which the SPC has the final say.

 

Reciprocity is not new but reciprocal commitment is.

Readers familiar with the topic of recognition and enforcement of foreign judgments (REFJ) will undoubtedly be familiar with the concept of “reciprocity”. Although its manifestations and extent vary, the principle of reciprocity serves as the basis or precondition for REFJ in many countries, including China.

However, few countries have developed the concept of reciprocity as creatively as China, which has had at least five different standards for its determination—de facto reciprocity, presumptive reciprocity, de jure reciprocity, reciprocal understanding or consensus, and reciprocal commitment.

Among these, Reciprocal Commitment, as the most recently developed reciprocity criterion, often leaves people puzzled. What exactly is this unicorn-like criterion?

In 2019, in the case of Zhou et al. v. Vusal (hereinafter the “Vusal Case”), China requested Azerbaijan to recognize and enforce a judgment, making a commitment through diplomatic note. This was the first reported case in which China made a reciprocal commitment to a foreign country regarding REFJ. This case will unveil to us the nature of Reciprocal Commitment.

I. What is “Reciprocal Commitment”?

Since the 2000s, reciprocity criteria have evolved significantly, reflecting China’s efforts to liberalize its REFJ rules.

Over a decade, the early, high-threshold reciprocity criterion—de facto reciprocity, was abandoned. One after another, more pragmatic and flexible criteria such as presumptive reciprocity and de jure reciprocity have emerged in the form of judicial policies, declarations, and memoranda. Following the release of the “Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide” (hereinafter the “Conference Summary”) of the Supreme People’s Court (SPC), a new generation of more open reciprocity criteria[1] has been established.

The new reciprocity criteria include three tests, namely, de jure reciprocity, reciprocal understanding or consensus, and reciprocal commitment, which also coincide with possible outreaches of legislative, judicial, and administrative branches.

Related Posts:

• How Chinese Courts Determine Reciprocity in Foreign Judgment Enforcement – Breakthrough for Collecting Judgments in China Series (III)[2]
• China’s 2022 Landmark Judicial Policy Clears Final Hurdle for Enforcement of Foreign Judgments[3]

It then begs the question, what exactly is reciprocal commitment?

According to the Conference Summary, the test of reciprocal commitment means that when trying a case applying for recognition and enforcement of a foreign judgment or ruling, the people’s court may recognize the existence of reciprocity, if “the country where the judgment-making court is located has made reciprocal commitments to China through diplomatic channels or China has made reciprocal commitments to the country where the judgment-making court is located through diplomatic channels, and there is no evidence that the country where the judgment-making court is located has refused to recognize and enforce a Chinese judgment or ruling on the ground of lack of reciprocity”.

For a while, reciprocal commitment was like a mysterious unicorn—because there were almost no cases or reports mentioning it. In contrast, the other two reciprocity tests have well-known instances, including the SPAR case, which involved the de jure reciprocity, where an English judgment was recognized and enforced in China for the first time[4]; the China-Singapore MOG, which demonstrated reciprocal understanding[5]; and the Nanning Statement, which involved reciprocal consensus[6].

One year after the Conference Summary, the first public document on reciprocal commitment finally appeared. This is the Vusal case, which was introduced as a typical case of reciprocal commitment in “Understanding and Application of the Conference Summary” authored by the SPC’s Fourth Civil Division, published in June 2023.

II. The Case of Vusal: First Case of Reciprocal Commitment

In July 2018, Yiwu Primary People’s Court, Zhejiang (the “Yiwu Court”), issued a first-instance civil judgment (2018) Zhe 0782 Min Chu No. 8836, in the case of a sales contract dispute between Zhou et al. and the defendant Vusal (a national of Azerbaijan). The judgment ordered the defendant Vusal to pay the plaintiffs Zhou et al. for the goods. The defendant Vusal failed to appear in the court after being duly summoned, and did not appeal during the appeal period. The judgment became effective in August of the same year.

After the judgment took effect, Vusal refused to satisfy the judgment, and the plaintiff applied to the court for enforcement of the judgment. The Yiwu Court filed the case for enforcement but did not find any of Vusal’s enforceable asset in China.

In October 2019, the Yiwu Court reported to the SPC to request the competent court of the Republic of Azerbaijan to recognize and enforce the judgment.

Upon review, SPC decided to submit the judicial assistance request to Azerbaijan, and to make a reciprocal commitment.

Finally, when making a judicial assistance request, the Chinese Embassy in Azerbaijan made a commitment to Azerbaijan in a diplomatic note that “it will provide equal assistance to Azerbaijan under similar circumstances in accordance with the law”.

III. Comments

This case marks the first time that China has proactively made a reciprocal commitment to a foreign country regarding REFJ. It is still unclear whether Azerbaijan has acted on China’s judicial assistance request for REFJ. There is also no available report or discussion on how Azerbaijan views the reciprocal commitment made by China through diplomatic notes.

One thing is certain: combined with the Vusal case, the meaning and application of reciprocal commitment have become clearer.

First, a reciprocal commitment is essentially a unilateral promise that takes effect upon being made. This “unilateral” commitment can be made by a foreign country (the future country where the judgment-making court is located) to China (the future requested country), or by China to the foreign country, as exemplified by China’s commitment to Azerbaijan in the Vusal case.

Second, a reciprocal commitment can be regarded as a presumption of the existence of reciprocity. Since the commitment is unilateral and differs from the bilateral reciprocity understanding or consensus, the making of such a commitment does not automatically prove the existence of reciprocity. Instead, reciprocity is presumed unless there is evidence to the contrary (i.e., the other country has previously refused to recognize and enforce a Chinese judgment on the grounds that a reciprocal relationship does not exist).

Third, reciprocal commitments are made through diplomatic channels, as in the Vusal case where the Chinese Embassy in Azerbaijan made the commitment through a diplomatic note. Before making such a commitment, the SPC examines and decides on the matter. This is logically consistent with the requirement from the Conference Summary that Chinese courts need to examine, on a case-by-case basis, the existence of reciprocity, on which the SPC has the final say.

[1] https://conflictoflaws.net/2022/chinas-2022-landmark-judicial-policy-clears-final-hurdle-for-enforcement-of-foreign-judgments/

[2] https://www.chinajusticeobserver.com/a/breakthrough-for-collecting-judgments-in-china-series-3

[3] https://conflictoflaws.net/2022/chinas-2022-landmark-judicial-policy-clears-final-hurdle-for-enforcement-of-foreign-judgments/

[4] https://www.chinajusticeobserver.com/a/chinese-court-recognizes-english-commercial-judgment-for-the-first-time

[5] https://www.chinajusticeobserver.com/p/memorandum-of-guidance-between-china-supremecourt-and-singapore-supremecourt-on-recognition-and-enforcement-of-money-judgments

[6]  https://www.chinajusticeobserver.com/p/nanning-statement-of-the-2nd-china-asean-justice-forum

 

As we go through summer I am trying to catch up with posts I did not find the time for sooner. Readers will know that they may want to keep an eye on my Twitter feed to keep up with recent developments.

A failed forum non conveniens challenge in Lunn v Antarctic Logistics Centre International (Pty) Ltd [2024] EWHC 1662 (KB) led to an interesting discussion on applicable law under the Rome II Regulation.

The claim concerns injuries sustained by claimant whilst he was working as a self-employed aircraft engineer for a Malta-based company, Jet Magic Limited. At the time of the accident he was in the process of carrying out checks on a Boeing 757 operated by Jet Magic, which was stationary on the blue ice airstrip of the Novolazarevskaya Air Base, also known as the Novo Air Base, Schirmacher Oasis, Queen Maud Land, Antarctica. Claimant is a British citizen and was resident in the UK at the material time.

The Defendant, Antarctic Logistics Centre International (Pty) Limited, is a company incorporated under the law of South Africa. At the material time it was the occupier and operator of the Novo Airstrip pursuant to an agreement with the Russian Federation. The Defendant chartered the aircraft to transport scientists and workers to and from research stations in Antarctica.

Defendant concedes that the Claimant’s evidence of continuing symptoms from his injuries whilst in England is sufficient to establish an arguable case that the tort gateway for jurisdiction per Brownlie, is met.

Issues between the parties are first the merits test: has the Claimant has established that his pleaded case has a reasonable prospect of success / that there is a serious issue to be tried on the merits (CPR 6.37(1)(b))? Secondly, forum conveniens and discretion: has the Claimant established that England and Wales is the proper place to try the claim and, if so, in all the circumstances, ought the court to exercise its jurisdiction to permit service out of the jurisdiction (CPR 6.37(3))?

The dispute between the parties as to the applicable law is relevant both to the determination of whether the Claimant’s case has real prospects of success and to the determination of the forum issue.

The particulars of claim contend that English law applies by virtue of A4(3) of Rome II, the “manifestly closer connection” correction to the general rule. In the pleadings however focus became different: namely that English law should be applied at this stage of the proceedings pursuant to the “default rule” or, alternatively, on the basis of the “presumption of similarity”, namely that English law is substantially similar to any relevant foreign applicable law in relation to the core tortious principles arising in this case. Claimant’s counsel submits that English law should be applied unless and until the Defendant pleads a Defence in due course which alleges the application of foreign law and establishes its case in that regard.

Defendant contends that Russian law is the applicable law pursuant to A4(1) Rome II on the basis that the Novo Airstrip is said to be located in an area which is subject to Russian jurisdiction and law. There is a disagreement between the parties as to whether the Novo Airstrip is in an area of Antarctica claimed by Norway or by Russia or both and, accordingly, as to what the “law of the country” should be deemed to be pursuant to A4(1) Rome II in respect of damage occurring on the Novo Airstrip. [37] The difficulty of Antarctica as a ‘country’, and the challenge of applying Rome I and II to vessels is also flagged in Dicey.

Defendant also advances two further contentions in relation to the applicable law:

a. First, South African law is said to be the applicable law pursuant to A4(2) Rome II on the basis that, pursuant to A23(2) of Rome II, the principal place of the Claimant’s business should be deemed to be South Africa. It is said that as a self-employed engineer working on the aircraft, Claimant’s principal place of business was wherever the aircraft was located from time to time. It is contended that the aircraft was based in Cape Town, South Africa at the material time. It is submitted that this is relevant to the merits test as the Claimant has adduced no evidence of South African law, as well as to issues of forum.

b. Second, it is said that it is clear that English law does not apply to this case and that South African or Russian (or, potentially Norwegian) law applies and that “as there is no pleaded case of Russian, South African or Norwegian law, the case does not disclose any arguable case” and so the Claimant cannot succeed on the merits test.

As things turned out, the A4(1) discussion was not pursued by parties at this stage. Per Tulip Trading Ltd (a Seychelles company) v Bitcoin association for BSV and others [2023] EWCA Civ 83 applicable law discussions a the jurisdictional stage must be conducted summarily.  [38] Both parties have been attempting to liaise with the Foreign Office and are still attempting to collate evidence as to the potential application of A4(1) to cases concerning damage which occurs in Antarctica. [39] The possibility of either Russian or Norwegian law applying is in any event irrelevant to the issue of forum (as opposed to the merits test) because no party is asserting that the claim should be heard in either Russia or Norway.

In the circumstances, the primary dispute between the parties on applicable law therefore is whether English law should be deemed to apply at this stage of the proceedings pursuant to the default rule or the presumption of similarity (claimant’s take) or whether South African law is the applicable law pursuant to A4(2) Rome II (defendant).

Webb DJ [40] ff rejects the submission that A4(2) implies application of South African law to the case.  [48] he holds there is something artificial to place too much “weight for jurisdiction purposes on the location of a place of business which is itinerant or peripatetic in nature.” (Compare nb somewhat CJEU Ryanair). “If and insofar as [claimant] can be said to have had a principal place of business at the material time, I consider that the weight of the evidence currently before me points, albeit somewhat weakly given the artificiality of applying the test to an itinerant business, to his principal place of business being England.”

The judge then applies [57] the default rule:

In the present case, for the reasons set out at [38] to [39] above, it has not been established that either Russian or Norwegian law is applicable under Article 4(1); nor can I be satisfied, on the present evidence, that there is a well-founded case (to adopt the words used by Lord Leggatt in Brownlie II at [116]) that Russian law applies, nor that Norwegian law applies, pursuant to Article 4(1). For the reasons set out at [47] above it has not been established (and nor do I believe there to be a well-founded case for arguing) that South African law is applicable under Article 4(2) of Rome II. It has also not been established that any foreign law is applicable under Article 4(3). In such circumstances it is appropriate, in my judgment, for the court to apply English law on the default basis at this jurisdictional stage.

(and note [58]: “If the matter proceeds in this jurisdiction, then the Defendant will have the option of pleading, and attempting to establish, that foreign law applies, whether Norwegian, Russian or South African. It is, of course, possible that neither party elects to establish that any foreign law is applicable in such circumstances or that, if applicable, there are any material differences between that alleged applicable law and English law for the purposes of this claim.”)

The obiter fallback [59] is reliance on the presumption of similarity.

The remainder of the discussion then runs through the various forum non and merits issues, and concludes [116]

Claimant has, in my judgment, satisfied the burdens upon him to show (a) that the claim has a reasonable prospect of success, (b) that there is a good arguable case that the claim falls within the relevant jurisdictional gateway (a point rightly conceded by the Defendant), and (c) that England and Wales is the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice and is clearly and distinctly the proper place to bring the claim. In all the circumstances, I am satisfied that this is a case in which it is appropriate for the court to exercise its discretion to permit service of these proceedings out of the jurisdiction on the Defendant.

Of note, and an A4 Rome II discussion to be continued.

Geert.

EU Private International Law, 4th ed. 2024, 4.37 ff.

 

https://x.com/GAVClaw/status/1808153657340244375

Norway is not bound by the EU choice of law regulations. Still, Article 7 of the Rome I Regulation applies fully in Norway and the Rome II Regulation governs what law that applies in any non-contractual matter between an insurance company and a person claiming compensation after a traffic accident. This was the view expressed […]

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its annual XLVII Seminar entitled “The teaching, research and promotion of private international law in Mexico” (La enseñanza, investigación y difusión del Derecho Internacional Privado en México) from 23 to 25 October 2024. The venue of the seminar will be the Universidad Panamericana (campus Guadalajara, Mexico) – and online.

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 29 July 2024. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request for presentations in English and Portuguese. For more information on the requirements, click here

Contributions will be published in the Revista Perspectiva Jurídica of the Universidad Panamericana.

There is a fee for participation both in person and online. For in-person participation, click here. For online participation, please contact seminario@amedip.org.