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The third issue of the Journal of Private International Law for 2020 features the following articles:

M Teo, “Public law adjudication, international uniformity and the foreign act of state doctrine”

Should courts, when applying foreign law, assess the validity or legality of foreign legislative or executive acts therein? The foreign act of state doctrine answers that question in the negative, but is often criticised as lacking a sound theoretical basis. This article argues, however, that the doctrine remains defensible if reconceptualised as a rule of private international law, which furthers the modest goal of international uniformity within the choice-of-law process. Assessing the validity or legality of foreign legislative and executive acts necessarily requires courts to address questions of foreign public law. Given the fact-specific and flexible nature of public law adjudication, courts cannot answer these questions, and thus cannot carry out such assessments, in a manner that loyally applies foreign law. The doctrine, then, makes the best of a bad situation, by sidestepping that problem with a clear rule of refusal which, if consistently applied, furthers international uniformity.

G Laganière, “Local polluters, foreign land and climate change: the myth of the local action rule in Canada”

This article addresses the jurisdiction of Canadian courts over transboundary pollution. It argues that a tort lawsuit brought by foreign victims of climate change against local greenhouse gas emitters could overcome jurisdictional obstacles, notably the local action rule, and proceed in Canada. The local action rule provides that Canadian courts have no jurisdiction to hear a claim involving foreign land, even when the claim lies solely in tort. It is thought to be a significant jurisdictional obstacle in transboundary environmental disputes involving foreign land. This assumption is misleading. A growing corpus of soft law instruments supports the notion of equal access to the courts of the state of origin for all victims of transboundary pollution. The courts of Canadian provinces have jurisdiction over pollution originating in the province, and the case law is more divided than generally assumed over the effect of the local action rule in tort litigation. The conclusions of this article have important implications for transboundary environmental disputes in Canada and other top greenhouse gas-producing countries. They also highlight a modest but potentially meaningful role for private international law in our global response to climate change.

S Khanderia, “Practice does not make perfect: Rethinking the doctrine of “the proper law of the contract” – A case for the Indian courts”

An international contract calls for the identification of the law that would govern the transaction in the event of a dispute on the matter between the parties. Indian private international law adopts the doctrine of “the proper law of contract” to identify the legal system that will regulate an international contract. In the absence of any codification, the interpretation of the doctrine has been left to the courts. The judiciary adopts the common law tripartite hierarchy, viz., the “express choice”, “implied choice” and “the closest and most real connection” test to determine the proper law. However, the existing case law demonstrates the diverse interpretations given to each of these factors in India in the post-colonial era. The paper examines the manner in which the blind adoption of the decisions of the English courts has considerably hindered the development of Indian private international law. In this regard, the author suggests some plausible solutions to render India more amenable to international trade and commerce – such as the adoption of mechanisms similar to those formulated by its continental counterpart.

KD Voulgarakis, “Reflections on the scope of “EU res judicata” in the context of Regulation 1215/2012”

It is now established in the case law of the Court of Justice of the European Union (CJEU) that the law pursuant to which the effects of a recognised judgment are determined is that of the Member State where the judgment was rendered. In Case C-456/11 (Gothaer), however, the CJEU deviated from this rule and developed an autonomous (EU) concept of res judicata. The potential for this concept to extend to other jurisdictional determinations by Member State courts has therefore created additional layers of complexity in the area of recognition of judgments. This article seeks to shed light on this topic by drawing conclusions from the Court’s rationale in Gothaer and considering whether a more broadly applicable autonomous concept of res judicata can be consistent with the general system of Regulation 1215/2012 and the CJEU’s previous case law.

K Tan, “All that glisters is not gold? Deconstructing Rubin v Eurofinance SA and its impact on the recognition and enforcement of foreign insolvency judgments at common law”

It was Lord Hoffmann who once spoke of a “golden thread” of modified universalism running throughout English Insolvency Law since the eighteenth century. However, after the UK Supreme Court’s decision in Rubin v Eurofinance SA, that golden thread seems to have lost its lustre. This paper critiques the main premise of the Rubin decision by questioning whether the Supreme Court was correct in holding that there can be no separate sui generis rule for recognising and enforcing foreign insolvency judgments. This article also explores the possible solutions, either through statute or the common law, that could be used to remedy the post-Rubin legal lacuna for recognising and enforcing foreign insolvency judgments.

B Alghanim, “The enforcement of foreign judgments in Kuwait”

This article provides an overview of the rules in Kuwait regarding the enforcement of foreign judgments. This issue is significant due to the fact that foreign litigants still experience significant challenges in successfully enforcing foreign judgments – particularly as such parties have a limited understanding of the manner in which the Kuwaiti courts will interpret the conditions required to enforce such judgments.

An analysis of case law in this area highlights that the reciprocity condition is usually the most significant hurdle for applicants when seeking the enforcement of foreign judgments. Such difficulties have catalysed the Kuwaiti Parliament to introduce an exception to the general rule regarding the reciprocity condition; reform which this article heavily criticises.

PN Okoli, “The fragmentation of (mutual) trust in Commonwealth Africa – a foreign judgments perspective”

Mutual trust plays an important role in facilitating the recognition and enforcement of foreign judgments. The 2019 Convention on the Recognition and Enforcement of Foreign Judgments also reflects some degree of mutual trust, although not explicitly. Commonwealth African countries seem to be influenced by mutual trust but have not yet adopted any coherent approach in the conflict of laws. This incoherence has impeded the recognition and enforcement of foreign judgments especially in Africa. This article seeks to understand the principle of mutual trust in its EU context and then compare it with the subtle application of mutual trust in the recognition and enforcement of foreign judgments in Commonwealth Africa. The article illustrates this subtle and rather unarticulated application of mutual trust primarily through decided cases and relevant statutory provisions in the Commonwealth African jurisdictions considered. The article then considers how the subtle application of mutual trust has sometimes resulted in parallel efforts to promote the recognition and enforcement of foreign judgments and how a proliferation of legal regimes can undermine legal clarity, certainty and predictability. A progressive application of mutual trust will help to ensure African countries maximise the benefits of a global framework on foreign judgments.

A Moran & A Kennedy, “When considering whether to recognise and enforce a foreign money judgment, why should the domestic court accord the foreign court international jurisdiction on the basis that the judgment debtor was domiciled there? An analysis of the approach taken by courts in the Republic of South Africa”

The Roman-Dutch common law of the Republic of South Africa states that a foreign judgment is not directly enforceable there. In order to have a foreign money judgment recognised and enforced, the judgment creditor must, inter alia, demonstrate that the foreign court had jurisdiction to adjudicate the matter (ie that it had “international jurisdiction”). South African courts have held that the judgment debtor’s being domiciled, at the time of commencement of the proceedings, within the territory of the foreign court confers the said international jurisdiction on that foreign court. This position has been criticised. This paper assesses the validity of that criticism.

RF Oppong, “The dawn of the free and fair movement of foreign judgments in Africa?”

A new book on foreign judgment enforcement in Nigeria and South Africa seeks to ground their foreign judgment enforcement regimes – and perhaps other African countries – on a new theoretical foundation and inform judicial decisions in new directions. In a quest to promote the free movement of judgments, judges are urged to presumptively enforce foreign judgments subject to narrowly defined exceptions. This review article examines the new theory of qualified obligation and some selected issues arising from the discussion, recommendations, and findings of the book.

On a personal note, it is a delight to see three articles on the subject of Private International law in Africa published in this issue!

Iacyr de Aguilar Vieira, Gustavo Cerqueira (Eds.), The Vienna Convention in America. 40th anniversary of the United Nation Convention on Contracts for the International Sale of Goods / La Convention de Vienne en Amérique. 40eanniversaire de la Convention des Nations Unies sur les contrats de vente internationale des marchandises, Paris : Société de législation comparée, 2020, 408 p. (available in hard copy and e-book)

To celebrate the 40th anniversary of the Vienna Convention on Contracts for the International Sale of Goods, the Latin American section of the Société de législation comparée has published this book to present the Convention’s current state of application in different American countries, as well as to evaluate its influence on domestic sales laws.

This book seeks to provide a better understanding of how the Convention is being applied in American countries and by doing so, supports the efforts towards its uniform application. Concerning the more specifics private international law issues, the numerous analyses relating to the applicability of the Convention and to the subsidiary application of national law offer very interesting insights into the conflict of laws systems of Contracting States in this part of the world. A comparative approach concludes the volume.

This book offers the perfect opportunity to compare the Vienna Convention’s implementation in American States and to benefit from the view of American scholars on this universal instrument for the uniformization of sales of goods.

Among the contributors are Maria Blanca Noodt Taquela, Alejandro Garro, Franco Ferrari, Lauro Gama Jr., Jose Antonio Moreno Rodríguez, Cecilia Fresnedo de Aguirre, Ana Elizabeth Villalta Vizcarra and Claudia Madrid Martínez.

This publication is meant for both scholars and lawyers in the field of international trade.

The author of this post is Simon Laimer, professor at the Linz University.

The claimant, an airline established in Austria, and the defendant, which operates a hotel in India, concluded a written contract for the accommodation of the airline’s crew members in the defendant’s hotel as well as their transfer from the airport to the hotel.

The agreement provided, among other things, that the defendant should indemnify the claimant in respect of any damage to property or injury or death of persons, encompassing the property of the claimant and the crew members, caused by negligent or wilful misconduct of the hotel or its staff.

Furthermore, the agreement included an exclusive jurisdiction clause on behalf of a competent court in Vienna (Austria) and provided that it shall be governed by Austrian law without reference to the choice of law principles thereof. During a transfer from the airport to the hotel commissioned by the defendant a traffic accident occurred and several crew members were injured.

The claimant brought a claim to the Vienna commercial court (Handelsgericht) for payment of damages, including damage claims assigned to it by its crew members. While the Handelsgericht determined its jurisdiction based on the jurisdiction clause, the Court of Appeal rejected the claim in so far as it concerned the crew members’ claims assigned to the claimant for lack of international jurisdiction of the Austrian courts.

By a ruling of 29 June 2020, the Austrian Supreme Court (2 Ob 104/19m) confirmed the international jurisdiction of Austrian courts also with regard to that part of the claim. The Court held that a jurisdiction clause under Article 25 Brussels I bis Regulation cannot be invoked against third parties benefitting from the contract (citing the ruling of the Court of Justice in Refcomp), but they could rely on it if the interpretation of the clause leads to the conclusion that it (also) aims at protecting them, hence only the effect of prorogation but not the effect of derogation applies.

The decision may be correct in its outcome, although it remains questionable whether the Austrian Supreme Court should have referred this case to the Court of Justice for a preliminary ruling.

The CJEU recently ruled (in his – debatable – decision in Ryanair v DelayFix; see also Matthias Lehmann) that the mere assignment of a claim is not sufficient for the assignee to be bound by a choice-of-court clause (unless the assignee is the successor to all the initial contracting party’s rights and obligations under the applicable law; para 47). In the present case, however, the roles of the parties were exactly reversed: the Austrian Supreme Court found that, in accordance with the definition of responsibilities covered by the contract, a place of jurisdiction in favor of the assignors had been agreed between the contracting parties. With regard to the interpretation of the jurisdiction clause, both the law applicable to the contractual relationship and the lex fori led to Austrian law, which is why the Austrian Supreme Court found that it did not have to decide the corresponding dispute in legal literature (cf. Caterina Benini on the subject).

Well, it may be sufficiently clear in Austrian national law and as well in the field of insurance contract law according to art. 15 No. 2 Brussels I bis (see CJEU in Gerling v Amministrazione del tesoro dello Stato) that choice-of-court agreements in favor of third parties are effective (at least with regard to the effect of prorogation), but a CJEU decision going beyond this could have contributed to legal clarity.

A detailed summary of the decision is available in the latest issue (4-2020) of The European Legal Forum.

On 27 January 2021 ERA (Academy of European Law) will host an online seminar to discuss practical implications of using digital technology in family law cases that often involve vulnerable parties and will therefore need special attention within the digitalisation of justice.

Among the key topics addressed in this event are:

• Legal Tech in family law – and how it affects the lawyer’s work
• Digitalisation of family courts, paperless systems and remote hearings
• Online divorce and ODR
• e-codex and the digitalisation of justice systems
• Artificial intelligence in family matters
• Experiences abroad

Additional information about this event is available here.

Cedric Ryngaert, Professor of Public International Law at the Utrecht University, has kindly accepted to provide a presentation of his latest monograph, ‘Selfless Intervention – The Exercise of Jurisdiction in the Common Interest’ (Oxford University Press 2020). This post draws on the monograph’s concluding observations.

This monograph inquires how a cosmopolitan agenda could be implemented in the law of jurisdiction. At first sight, such an inquiry might look like an attempt at marrying fire and ice. Cosmopolitans tend to focus on the individual as the ultimate unit of moral concern, and are interested in bringing about ‘global justice’ (whether of the human or environmental variant), regardless of geographical location. They are always concerned with the negotiation and overcoming of delineated political borders. In contrast, the law of jurisdiction, given its close connection to the seminal concept of state sovereignty in international relations, has ‘borders’ written all over it.

Nevertheless, political allegiance to territorially delineated states and allegiance to an international community project based on universal human solidarity need not be mutually exclusive. Kwame Appiah, one of the leading political philosophers of cosmopolitanism, has coined the term ‘constitutional patriotism’ in his respect: ‘We cosmopolitans can be patriots, loving our homelands (not only the states where we were born but the states where we grew up and the states where we live); our loyalty to humankind so vast, so abstract, a unity does not deprive us of the capacity to care for lives nearer by.’ Accordingly, the actual existence of borders need not prove fatal to the cosmopolitan project.

Some authors have even suggested that the ‘state’ could be considered as a cosmopolitan construct in its own right. A somewhat less extreme position, taken by this monograph, is that states may perhaps have primarily been set up or conceived to serve their own citizens, but that this does not bar them from serving a global citizenship and protecting humankind’s common concerns. This cosmopolitan, global citizenship-based authority and responsibility of states has gained increased attention from political theorists disenchanted with the disconnect between moral idealism and actual international political practice, which revolves very much around states indeed. Thus, in a praiseworthy and wide-ranging volume on the cosmopolitan responsibilities of the state (2019), Beardsworth et al investigate ‘the possibility that states can become bearers of cosmopolitan responsibilities while also remaining vehicles for popular self-determination’. Along the same lines, for an international lawyer interested in jurisdictional questions, the challenge is to investigate how the law of state jurisdiction – the initial aim of which was to prevent state sovereignties from clashing with each other – is, and can be reinterpreted to serve cosmopolitan or ‘selfless’ ends, alongside parochial, national interest-based ends.

Inevitably, the quest to conceive the notion of jurisdiction as a vehicle for selfless intervention by states is closely bound up with epistemic evolutions regarding jurisdiction’s twin concept of state sovereignty. After all, jurisdiction is the legal emanation of the political notion of state sovereignty. The state manifests its sovereign power by exercising jurisdiction, ie prescribing and enforcing its laws, and adjudicating disputes on the basis of these laws. In the monograph I argue that the concept of sovereignty is malleable and allows for novel, contemporary understandings of sovereignty being in the service of the international community. It is logical, then, that jurisdiction could fulfil the same function.

However, jurisdiction is not simply an emanation of sovereignty, ie originating or issuing from sovereignty. As Irani suggested, jurisdictional assertions

not only form, border, and construct “the state”: they are the state. The state is instantiated in its jurisdictional assertions … Changing jurisdictional assertions do not simply change what “the state” does: they further change what the state is, who and what it includes and excludes, and crucially, where it is located.

Thus, the nature of the state and of state sovereignty may change as a result of actual jurisdictional practices. This also means that jurisdictional assertions may yield the formation of new political communities that do not necessarily track the physical borders of the state. For our research object, it means that a state becomes cosmopolitan to the extent that it engages in cosmopolitan jurisdictional practices. Accordingly, to fully grasp the contemporary epistemic transformation of state sovereignty, a fine-grained analysis of actual instances of the exercise of  jurisdiction by states is imperative.

In the monograph I demonstrate that, regardless of the dynamics of globalization, interconnectedness, deterritorialization or international solidarity characterizing the current era, when addressing transnational or global challenges, states continue to give pride of place to the core principle of the law of jurisdiction: the principle of territoriality. While use of territoriality to capture the extraterritorial may seem somewhat incongruous, as Rajkovic has pointed out, that ‘territorial boundaries have been always, to varying degrees, in temporal flux.’ Hence, the newly minted concept of ‘territorial extension’, which has played a prominent role in this monograph, may not be a conceptual revolution in the law of jurisdiction. Still,  it does point to an expanding state praxis of states formally relying on territoriality to – in fact – reach beyond state borders.

Also to roll out a cosmopolitan agenda, the principle of territoriality has been the primary jurisdictional gateway. To be true, universality – which is triggered by the gravity of an offence rather than a (territorial) connection to the regulating state – is well-known in the law of jurisdiction, but it only has purchase in respect of a limited number of offences, and arguably only in the field of criminal law. This renders universality, as it is currently understood, ill-suited to address the range of global governance challenges confronting humanity, eg climate change, unsustainable fishing practices, or corporate human rights abuses. Territoriality then emerges as an unlikely savior for the cosmopolitan project, as its capaciousness allows states to ‘territorialize the extraterritorial’ and contribute to the realization of global justice.

There are many instances of states using a territorial hook to address essentially extraterritorial activities, both historic and more recent ones. Some of these jurisdictional assertions have a cosmopolitan dimension, in that they have the realization of global justice as their goal (deontological cosmopolitanism), or as their effect (consequentialist cosmopolitanism). In the field of criminal law, where the origins of the international law of jurisdiction lie, the long-standing ubiquity principle has enabled states to exercise territorial jurisdiction over the whole of an offence as soon as a constituent element could be located on the territory. The seminal idea that it suffices for an element of a particular offense or event to be linked to the territory for territorial jurisdiction to be validly exercised, has cast a long shadow. It has paved the way for a host of jurisdictional assertions that rely on tenuous, artificial or even fictitious territorial connections, assertions which may also serve the common interest. In the monograph I explain how territoriality has been creatively used in such diverse areas as the environment, fisheries, business and human rights litigation, and data protection, to further (sometimes only nascent) global values and common interests.

This area analysis is by no means exhaustive. Also, in other areas, which are not addressed in detail in the monograph, has territoriality been similarly instrumentalized, such as competition law, foreign corrupt practices, and secondary sanctions legislation.  In the field of competition law, US and European courts have exercised jurisdiction over foreign-origin restrictive practices that are implemented or have direct, substantial, and reasonably foreseeable anti-competitive effects on the territory. While this effects jurisdiction has traditionally been relied upon to protect the national economy, wider goals such as boosting global deterrence of anti-competitive conduct and increasing global welfare for both domestic and foreign consumers have been propounded and arguably pursued. Also as regards enforcement of foreign corrupt practices and economic sanctions legislation, which could be considered cosmopolitan insofar as this contributes to the stamping out of global corrupt practices blighting the developmental prospects of foreign populations, or to clamping down on commercial transactions with regimes violating human rights or threatening international security, have courts, especially US courts, given wide interpretations to territoriality. All this speaks to the enduring attractiveness of territoriality to address transnational and global challenges.

In themselves, some territorial connections may be too tenuous to support successful reliance on the territoriality principle. After all, the permissive principles of jurisdiction should be interpreted in light of the substantial connection requirement undergirding the law of jurisdiction. However, one of the main arguments in this monograph is that the legality of jurisdictional assertions resting on weak territorial links may be boosted by these assertions’ very contribution to the common interest, and preferably by their embeddedness in, or relationship with international regulatory instruments. Thus, trade restrictions aimed at tackling climate change may derive their jurisdictional legality from their contribution to the goals of the Paris Climate Agreement, regardless of the diffuse character of the effects which emissions tend to have on the territory of the regulating state. By the same token, the insertion of an unqualified territorial principle in the UN Convention against Corruption and the OECD Convention against Bribery may give international backing for wide interpretations of the principle by Contracting Parties; the nature of corruption as a global scourge may compensate for the weak territorial link which certain foreign practices may have.

It could even be argued that, from a normative perspective, territoriality should more often, and more expansively be relied on when it comes to global values and common interests, in order to prevent that no state’s law applies. As it happens, some conventions require that states exercise territorial jurisdiction, not only in the field of core international crimes (eg torture), but also as regards transnational offences such as corruption. The Port State Measures Agreement, for its part, requires that states deny entry or privileges to visiting foreign-flagged vessels which engaged in IUU fishing. Also human rights treaties or fundamental rights instruments may mandate that states exercise their jurisdiction more vigorously. The human right to a remedy may require state courts to give a liberal interpretation to principles of adjudicatory jurisdiction, such as the principles of domicile, connected claims, or forum of necessity (all of which can be considered as variations of territoriality), so that victims of (corporate) human rights abuses have their day in court, even if they sustained harm outside the territory. In the same vein, the nature of data protection as a fundamental right in the EU exerts pressure on EU regulators and courts to give wide interpretations to territorial jurisdiction with a view to safeguarding the rights of EU residents.

Conversely, expansive jurisdictional assertions which do not further widely recognized common interests may, in the absence of a strong nexus with the regulating state, be more difficult to justify. For instance, the US imposition of ‘secondary’ sanctions on non-US persons engaging in commercial transactions with non-US sanctioned entities may well violate the law of jurisdiction, as the territorial or personal nexus of sanctions with the US is typically very tenuous, and such sanctions may not give effect to an international consensus on the harmful activities of the sanctioned entity. Also, expansive assertions of effects-based jurisdiction in the field of competition (antitrust) law may be problematic, insofar as such assertions are based on weak territorial connections, and insofar as an international agreement on the illegality of particular anti-competitive practices remains elusive. Jurisdictional assertions that are not based on a strong nexus to the state and do not build on international instruments recognizing particular values and common interests are likely to unjustifiably intrude on the policy space of other states and violate the principle of non-intervention.

This is not to say, however, that jurisdictional assertions of which the object is internationally recognized, pass muster with the law of jurisdiction as soon as some territorial link can be discerned, however tenuous. To prevent that territorial jurisdiction degenerates into connectionless universal jurisdiction, a quantum of (territorial) connection may still be required. This may prevent the eruption of international conflict, and the wasting of precious domestic resources. In light of loss of territoriality in an era of economic globalization and of revolutions in communication technology, the quest for this required quantum under customary international law in still on-going.

Efforts at restricting the reach of territoriality speak to a desire to safeguard the traditional role of the principle of territoriality as a principle of jurisdictional order rather than justice. In its original Westphalian incarnation, territoriality aims at delimiting spheres of competence and preventing undue intervention in other states’ affairs. As the limits of territoriality are pushed to almost breaking point in order to address global and transnational challenges, some pushback against overly loose interpretations which undermine the principle’s function as competence-delimitator is expected. At the same time, precisely because of the poor fit of the concept of territoriality and the reality of global challenges, more revolutionary jurisdictional thinking no longer focuses on territoriality as the main jurisdictional linchpin, but instead suggests reliance on other connections to the regulating state, or on the goals of regulatory intervention. As regards connections, scholars of global legal pluralism have urged increased attention to personal or community connections, whereas others have emphasized the substantiality of connections mitigated by the principle of reasonableness. Especially in the context of access to data in the ‘extraterritorial cloud’, multiple, technology-driven connecting criteria have been proposed. Yet others have advanced a broad construction of the national interest as the jurisdictional trigger, or suggested conceiving of cosmopolitan jurisdiction as a form of functional jurisdiction, the exercise of which is, in given circumstances, justified by its furthering of the common interest. At the far end of the spectrum, the link between jurisdiction and the state has been abandoned altogether, and jurisdictional empowerment of private actors in a transnational legal space has been mooted.

It is appropriate to observe, finally, that no scheme of jurisdictional (al-)location is ever politically neutral. All schemes have important distributive effects, in that it may further the interests of one actor (eg a multinational corporation) to the detriment of those of another (eg victims of human rights abuses).

However the exercise of state jurisdiction in the common interest is doctrinally conceived (as a form of territorial, community, functional, or universal jurisdiction), care should be taken to prevent jurisdictional overreach and imperial imposition. After all, such jurisdiction is enacted unilaterally by individual states or regional organizations, even if the common interest which is (supposedly) served is international in nature. Unilateral action carries the risk that the regulating state imposes its own value conceptions and furthers its own interests, thereby impinging on foreign persons’ right to self-government. To limit this risk, in the monograph I suggest a number of techniques of restraint, such as allowing foreign affected states, communities and persons a voice in the design and enforcement of regulation with extraterritorial effect, recognition of equivalent foreign regulation, and compensation of affected persons and entities. These techniques of jurisdictional reasonableness discipline unilateralism and increase its legitimacy as a tool to further the common interest in the absence of adequate multilateral or host state regulation and enforcement.

Techniques of restraint should however not be interpreted too strictly lest states prove unwilling to exercise their jurisdiction. Bearing in mind that global public goods tend to be underprovided because of free-riding, the risk of normative conflicts among states should not be inflated. Thus, states should be offered sufficient jurisdictional leeway to assume their responsibility in respect of the common interest. To give just one example, international comity-inspired principles of adjudicatory jurisdiction may be in need of an overhaul, or at least a more liberal interpretation, so that they can be more effectively relied on to deliver justice for individuals suffering extraterritorial human rights abuses.

In spite of the title of the monograph, ultimately, selfless intervention remains somewhat of a mirage. As I argue in the monograph, states are unlikely to exercise jurisdiction in the common interest if it is not also somehow in their own interests. In this respect, states may consider the existence of a jurisdictional connection as a proxy for the existence of an interest, so that framing extraterritorial as territorial conduct (‘territorializing the extraterritorial’) may have enforcement advantages. In practice, however, especially in the social, economic and environmental fields, a domestic rule integrity logic tends to inform common interest-oriented unilateralism. The danger of foreign regulatory leakage as a result of strict domestic regulation serving common interests (eg addressing climate change, combating foreign corrupt practices, protecting data) more or less compels first-moving states to extend their regulation extraterritorially. In so doing, states pursue prima facie parochial interests (safeguarding the competitive opportunities of their own businesses) alongside common interests.

In the field of human rights and international crimes, a less selfish justice logic may be expected, but also there, extra-legal incentives may be required before states exercise their jurisdiction. For instance, Germany’s vigorous prosecution of Syrian war criminals, mainly under the universality principle, may be informed by the presence of a large number of Syrian refugees, whose integration in Germany might be furthered in case their torturers (some of whom have posed as refugees themselves) are brought to justice. Alternatively, a state’s exercise of jurisdiction over gross human rights violations could be informed by a desire to brandish its liberal values and to set itself apart from an amoral world dominated by Realpolitik.

Faced with governance deficits at international and national levels, third states’ exercise of unilateral jurisdiction has its rightful place in the international legal order, as third state legal prescription and adjudication may well be the only means to safeguard common interests. Therefore, states’ extensions of national laws into the global sphere can promote world order and justice. However, safety valves should be provided to ensure that such jurisdiction, as a tool of global governance, is exercised responsibly and reasonably. Ideally, unilateral jurisdiction with extraterritorial effects is just a temporary means of providing protection and justice. It should not displace multilateral and foreign regulation and enforcement, but rather emphasize the latter’s urgency. Obviously, this regulation and enforcement are likely to mirror the preferences of powerful first-moving states, who may only be willing to forego their unilateralism provided that international and foreign norms and practices approximate their own. Such ‘contingent unilateralism’ should not be considered as holding the multilateral process hostage, but rather as a welcome tool to overcome the tyranny of consent and address its anti-commons streak.

The topic of Brexit has been in the hearts and minds of private international lawyers ever since the Brexit referendum.

However, for reasons that are unknown, it did not make it onto the agenda of the UK-EU negotiations about a free trade agreement. The agreement that was eventually adopted in late December 2020, therefore, does not contain any substantive provisions dealing with the future EU-UK relationship in the field of judicial cooperation in civil matters (despite a confusing reference in the press release of the European Commission).

Since 1 January 2021 we are, therefore, back to “square one”, i.e. a patchwork of national, (retained) European and international law which will make the resolution of cross-border disputes more complex.

The European Association of Private International Law (EAPIL) took this (foreseeable) finding as an occasion to devote its first Virtual Seminar to the future EU-UK relationship in private international law. It gave six renowned speakers from the EU and Continental Europe occasion to present their views on the state of affairs, including the question of whether the EU and the Uk should strive for conclusion of a bespoke bilateral agreement.

The Seminar lasted roughly two hours and was attended by almost 120 academics and practitioners from all over Europe (and beyond). It more than showed that there are no easy solutions for the problems that Brexit has created – and that Brexit will be a source for discussion for years to come.

If you were not able to join us for the Seminar (or if you want to refresh your memory) you may now (re-) read some of the speakers’ statement on the EAPIL website. Just follow this link. Happy reading!

Maria Campo Comba just published a book titled: “The Law Applicable to Cross-border Contracts involving Weaker Parties in EU Private International Law” with Springer.  The abstract reads as follows:

This book provides answers to the following questions: how do traditional principles of private international law relate to the requirements of the internal market for the realisation of the EU’s objectives regarding the protection of weaker parties such as consumers and employees? When and how should private international law ensure the applicability of EU directives concerning the protection of weaker parties? Are the EU’s current private international law, rules on conflict of laws, and private international law approach sufficient to ensure the realisation of its objectives regarding weaker contracting parties, or is a different approach to private international law called for? The book concludes with several proposed amendments, mainly regarding the Rome I Regulation on the law applicable to contractual obligations, as well as suggestions on the EU’s current approach to private international law. 

This book is primarily intended for an academic audience and to help achieve better regulation in the future. It also seeks to dispel certain lingering doubts regarding the current practice of EU private international law.

More information on the book can be found here

TRW Ltd v Panasonic Industry Europe GmbH & Anor [2021] EWHC 19 (TCC)  adds to the slowly developing case-law on Article 34 Brussels Ia’s forum non conveniens light, on which I have reported at each occasion the Article to my knowledge has been applied (most recently in Ness Global Services).

The defendant Panasonic companies are based in Germany. Panasonic’s Group headquarters are in Japan. TRW is the English subsidiary, based in Solihull, of a German group of companies, ZF Group. The defendants say the parties agreed to German law and exclusive jurisdiction of the Hamburg court over any claim by TRW arising from supply of the resistors. TRW says the parties agreed to English law and jurisdiction.

There are related proceedings in Michigan, with judgment expected in about April 2021.

Kerr J decides at 55 ff here was valid A25 choice of court and hence jurisdiction for the courts at Hamburg, following the usual discussion on whether and if so which choice of court has been agreed in to and fro messages, purchase orders, invoices, references to general terms and conditions and the like. The kind of housekeeping complications which I discuss ia here.

Then follows obiter the Article 34 discussion. Parties agree that if jurisdiction under A25 BIa is established by neither party, TRW was at liberty to sue in England as the place of delivery of the goods, under A7(1) BIa; and that for A34 purposes there is a related lis alibi pendens in Michigan. The discussion turned on whether the word “expedient” in A34(1)(a) bears the meaning “desirable, even if not practicable” or “both practicable and desirable”, given the inconsistent case-law in JSC Commercial Privatbank v. Kolomoisky, SCOR v Barclays, Municipio de Mariana,  Federal Republic of Nigeria v. Royal Dutch Shell plc. and of course  EuroEco.

At 94 Kerr J seems to side with Kolomoisky and with not reading EuroEco as a rejection of same, however he does not take definitive sides or does not attempt to reconcile the judgments. At 95 he says he would have not exercised his discretion for a stay, for the reasons earlier listed by counsel for claimants: these were (at 92-93)

Mr Caplan strongly opposed any stay. He submitted that, assuming I have any discretion to grant a stay (contrary to his reserved position), I should not exercise it. The risk of irreconcilable judgments could not be eliminated, he argued. The Michigan case would shortly produce a judgment binding on neither party to the present claim and, probably, applying Michigan law.

There was no scope for issue estoppel or abuse of process because the parties were different and the law could be different. Neither party in this case had opted for Michigan as the chosen forum and Michigan law as the choice of law. If the outcome of the Michigan litigation helped to promote settlement of the present claim, that could happen anyway, without a stay, since this claim is still at an early stage; the first case management conference has yet to take place.

At 98 Kerr J summarises

I would refuse a stay. The first condition in article 34(1)(a) – the expediency condition – may well be met, subject to clarification of the test emerging from the case law. The second condition is met. The third is not. I am far from satisfied that a stay is necessary for the proper administration of justice.

Kerr J concludes at 99

defendants have undertaken to submit to the jurisdiction of the Hamburg court, subject to seeking a stay of proceedings in Hamburg to await the outcome of the Michigan proceedings.

The Hamburg court is likely to see A34 arguments return, lest of course the Michigan proceedings will be concluded, in which case res judicata, recognition, and irreconcilability of judgment might be a core concern.

We have fairly little, if growing (*makes a note to now really really finish that paper*) authority to work with on A34. All bits help.

Geert.

European Private International, 3rd ed. 2021, Heading 2.2.15.3.2, para 2.539 ff

Jurisdiction dismissed on the basis of A25 BIa choice of court. A7 and A34 forum non conveniens light considered obiter (A34 stay dismissed).
Hamburg court is likely to have to entertain the A34 arguments. https://t.co/dwAbpXLGun

— Geert Van Calster (@GAVClaw) January 8, 2021

Just before Christmas the Court of Appeal dismissed the appeal in Etihad Airways PJSC v Flother [2020] EWCA Civ 1707. I discussed the High Court judgment here – the only properly discussed issue under appeal (the A25 discussion on the court being ‘seized’ as I noted was not entirely acte clair, either, yet is dealt with in 3 short paras at 89-91 ) is whether Brussels Ia’s Article 31(2) anti-torpedo mechanism applies to so-called asymmetric choice of court.

The High Court focused on not treating such clauses as a whole but rather on the parties’ individual obligations, in terms of jurisdiction, vis-a-vis the specific claim brought. That effectively meant it sidestepped having to rule on whether A31(2) applies to asymmetric choice of court.

Henderson LJ first of all (at 52, following discussion of the Article’s genesis as an antidote to CJEU Gasser) holds that A31(2) (ia because of the use of ‘without prejudice’ to A31(2) in A29) is not to be construed narrowly as being an exception to A29 and (at 68, again following discussion of the authorities) that the guiding rule for the application  of A31(2) must be party autonomy. At 73 he points out that the fundamental difficulty with the opposite conclusion is that on a narrow construction of Article 31(2), the job of rendering the torpedo harmless, was left only half done.  That may be so – however I am still not convinced. It might not have reached the judgment however I think more analysis (including linguistically) could  have been of the wording of ‘exclusive’ and ‘the proceedings’, for instance. Given BIa’s DNA I do not think it is the Member States courts’ place to finish the job if clear statutory language has left it hanging. A31(2) most certainly is not the only place in BIa where intentions expressed in the travaux are not completely reflected in the final law’s provisions.

At 82 ff the discussion, equally obiter as at the High Court, turns to the Hague Convention, which has of course increased in relevance following the no-deal Brexit for judicial co-operation. Justifiably Henderson LJ suggests obiter that there is no instruction at all to apply BIa and the Hague in conformity with each other, and that the Hague neither applies to non-exclusive choice of court nor has any A29 BIa-type lis pendens rule.

The request for a CJEU reference is dismissed, with at 94 reference in support to other Member States’ courts not having done so, either.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.10.5, para 2.343 in particular.

Appeal (dismissed) judgment re [2019] EWHC 3107 (Comm) which I review here https://t.co/REAZQBHVYr
Held ia acte clair that A31(2) BIA applies to asymmetric choice of court (on which no #CJEU authority exists). Refers to judgments in other MSs in support. https://t.co/qAzQeVBeyh

— Geert Van Calster (@GAVClaw) December 18, 2020

The right of children to receive adequate information in civil proceedings involving them represents a cornerstone of child participation, as well as a fundamental right of the child. The contact of children with the judicial system represents one of the most delicate situations where the child’s best interests and wellbeing should be of special attention. In particular, the child should receive information before, during and after the judicial proceedings, in order to have a better understanding of the situation and to be prepared either for his or her audition by the judicial authority, or for the final decision that will be taken. This aspect – as an important component of the child’s fundamental rights – should acquire (and is acquiring) importance also within the European Union, more and more oriented towards the creation of a child-friendly justice. It is a current reality that the implementation of the fundamental rights of the child influences the correct application of the EU instruments in the field of judicial cooperation in civil matters.

However, the transposition of the principles and standards set at the international and regional level are not always easy to implement at the local level: despite the acknowledgement that the availability and accessibility of information is the crucial starting point for a child-friendly justice, more efforts are still to be done to effectively grant this right. International standards need to find their way into policies, legislation and daily practice.

The MiRI project (co-funded by the European Union Justice Programme 2014-2020, JUST-JCOO-AG-2018 JUST 83160) is undertaking a research on seven member States on children’s right to information in cross-border civil proceedings. The project consortium wishes to invite researchers in the field of private international family law to submit abstracts for an upcoming edited volume on the topic.

The abstract should focus on one or more of the following topics:

• The right of the child to receive adequate information in civil proceedings (such as parental responsibility, international child abduction, maintenance, etc.) as an autonomous and fundamental right: the reconstruction of rules, principles and standards of international law.
• The fundamental rights of the child in the European Union: the autonomous relevance of the right of the child to be informed in civil proceedings concerning him or her and its relevance for the creation of a EU child-friendly justice.
• The relevance of children’s right to information for the EU instruments in the field of judicial cooperation in civil matters (such as Regulation EC No. 2201/2003 and its recast Regulation EU No. 2019/1111, with reference to parental responsibility and international child abduction; Regulation EC No. 4/2009): how international human rights standards should influence the correct application of the aforementioned instruments? Are there common best practices in this regard among EU member States? What should be done in order to build those common best practices?
• Rules, case law and practices currently existing in EU member States as concerns the fundamental right of the child to be informed in civil proceedings.

Abstracts should be no longer than 500 words and should be submitted by 15th March 2021 to francesca.maoli@edu.unige.it

The selection criteria will be based 1) on the relevance of the analysis in the field of EU judicial cooperation in civil matters, 2) quality of the contribution and 3) its originality. Those whose abstract will be accepted, will be notified by 30th March 2021 and will be asked to submit the full draft of the chapter (approx. between 8000-12000 words) by 30th June 2021.

Contributions will be subject to blind peer-review prior publishing. Selected authors will also be invited to present their findings during the final conference of the MiRI project in June-July 2021. More information about this event will be distributed after acceptance of the abstract.

Massimo Benedettelli (University of Bari) is the author of International Arbitration in Italy, which has just been published by Wolters Kluwer.

International Arbitration in Italy is the first commentary on international arbitration in Italy ever written in English. Since centuries, arbitrating cross-border business disputes has been common practice in Italy, which makes the Italian arbitration law and jurisprudence expansive and sophisticated. Italian courts have already rendered thousands of judgments addressing complex problems hidden in the regulation of arbitration. Italian jurists have been among the outstanding members of the international arbitration community, starting from when, back in 1958, Professor Eugenio Minoli was among the promoters of the New York Convention. Italy being the third-largest economy in the European Union and the eighth-largest economy by nominal GDP in the world, it also comes as no surprise that Italian companies, and foreign companies with respect to the business they do in the Italian market, are among the leading ‘users’ of international arbitration, nor that Italy is part to a network of more than 80 treaties aimed to protect inbound and outbound foreign direct investments and being the ground for investment arbitration cases. Moreover, in recent years, Italy has risen to prominence as a neutral arbitral seat, in particular for the settlement of ‘intra-Mediterranean’ disputes, also thanks to the reputation acquired by the Milan Chamber of Arbitration which has become one of the main European arbitral institutions.  

More information available here.

On 11 January 2021, the Tax and Law Department of HEC Paris will host an online workshop titled What future for Cross-Border Small Claims?

The event will involve a keynote speech by Elena Alina Ontanu (Erasmus University Rotterdam) and a presentation of the guidelines on the European Small Claims Procedure Regulation (ESCP) that have been produced in the context of the SCAN Project, co-funded by the European Union. The objective of the workshop is to disseminate information about the ESCP in order to help consumers and other stakeholders to use this procedure.

The workshop is organized in the framework of the EU-financed project SCAN – ‘Small Claims Analysis Net’, aimed at studying the flaws and implementation issues regarding the ESCP.

The programme of the event and the registration form are available here.

The new issue of the Revue Critique de Droit International Privé (4/2020) is out.

It contains four articles and numerous case notes. The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on the Dalloz website (Éclectique, résolument…).

In the first article, Delphine Porcheron (University of Strasbourg/CNRS) addresses the peculiar challenges raised by transnational civil litigation for the reparation of “crimes of the past”, in the light of private international law (Les actions civiles transnationales en réparation des “crimes du passé”).

Transnational civil litigation for the reparation of “crimes of the past” has been growing for the past 30 years. Several features underline its singularity: the extraordinary seriousness of the facts at the origin of the legal actions, their impact on collective memory, the political and temporal dimensions of the disputes. The study of judicial proceedings brought by individuals before European, American and Asian tribunals reveal a distinct approach depending on the court referred to. In this context, one can come to consider how private international law deals with these complex litigations. On the one hand, both public and private international laws are to be mutually considered. On the other hand, private international law rules should be applied in order to take into account the specific environment of these cases.

In the second article, Mathias Audit (University of Paris 1, Sorbonne Law School) discusses the complex issue of blockchain in the light of private international law (Le droit international privé confronté à la blockchain).

The blockchain is one of the major technological developments of the last ten years in respect of securing exchanges. Its applications are very varied, ranging from cryptocurrency, through smart contracts or initial coin offerings (ICOs), to the creation of decentralized autonomous organizations (DAOs). All of these applications, as well as those that are still to come, have the particular feature of evolving in an environment that is detached from any territorial basis. This specific situation obviously renders the confrontation of the blockchain with the techniques of private international law complex. However, avoiding these confrontations appears to be difficult, because through them, it is the opportunity for domestic laws to regulate legal relations based on this new technology that is at stake.

In the third article, Tristan Azzi (University of Paris 1, Sorbonne Law School) proposes to rethink in depth the interpretation of the jurisdictional rules applicable to cybercrime, in the context of the decline of the “accessibility criterion” (Compétence juridictionnelle en matière de cyber-délits : l’incontestable déclin du critère de l’accessibilité – A propos de plusieurs arrêts récents).

In the fourth article, David Sindres (University of Angers) addresses the difficult issue of civil liability action brought by a third party against a contracting party, in the light of recent case law (L’appréhension par le droit international privé de l’action en responsabilité d’un tiers fondée sur un manquement contractuel du défendeur).

 Lying on the borders of contractual and tort matters, the civil liability action brought by a third party against a contracting party whom it accuses of having, through its contractual breaches, caused its damage, is difficult to address from a private international law perspective. This is evidenced by several recent decisions handed down by the French Court of Cassation in cases where the claimants, third parties to certification contracts, had complained that a German certifier had committed various contractual breaches which contributed to the occurrence of their damages. Reflecting on these decisions, the present article aims at finding the adequate regime for this action under private international law.

 The full table of contents is available here.

The course Party Autonomy in International Family Law given by Cristina González Beilfuss at the Hague Academy of International Law in Summer 2018 has recently been published in volume 408 of the Academy’s Collected Courses (Recueil des cours).

As explained in the summary:

Party autonomy, i.e. the power of parties to select the applicable law, is increasingly used in international family law. This course follows this development and questions whether rules that have been developed in relation to commercial contracts work also for personal relationships. This involves an in- depth analysis of the functions of party autonomy in Private international law and the needs of families in contemporary society. The latter has often been neglected in Private international law theory that has uncritically assumed a normative idea of family life and failed to consider the care work families do in society and the different roles assumed by family members in accordance to gender.

The course is divided into an introduction and five chapters, followed by an extensive bibliography. In the introduction, the Author defines party autonomy “as the principle according to which parties to an international relationship are free to choose the applicable law” or to “deselect the law that would apply on objective grounds, including its mandatory rules, and to stipulate the application of another law”. The course also deals with dispute resolution, but only to the extent it opens possibilities for indirectly choosing the applicable law. The family is understood broadly. Geographically, the research encompasses, in general, Europe.

The structure of the course is as follows:

In Chapter I, I will describe the role of party autonomy in private international law. After a short overview of developments in other subject areas, namely in contract, tort, property and succession, I will map family law more exhaustively, and explore both horizontal and vertical family relationships in order to show the opportunities for direct and indirect party autonomy.

In Chapter II, I will investigate the theoretical foundation of party autonomy in relation to, in particular, family law. I will try to find out which is the function of the party autonomy rule and why families might benefit from selecting the applicable law, if allowed to do so. In this chapter, I will also try to determine whether there should be any limits to party autonomy, in particular, in view of the special character of family law.

Chapter III will deal with the choice of law contract and examine party autonomy from a contractual perspective. I will try to determine the requirements parties need to comply with to materialize their intention of selecting the governing law. The approach in this chapter is principled. I do not only examine the law as it stands but try to critically determine whether present rules provide satisfactory solutions in a family law context.

Chapter IV then examines restrictions to party autonomy. In accordance with the findings of Chapter II, it is claimed that party autonomy needs to be regulated and restricted in order to ensure that it works in favor of family and not against it.

Chapter V finally examines indirect party autonomy, a number of strategies that parties can resort to, when party autonomy is not openly accepted, that, in the end, allow them to select the law applying to their legal relationship.

For more details (including table of contents and bibliographical note on the Author) please consult Brill’s website. The course is already available online (for example, for holders of Peace Palace Library card).

The EU has developed a common judicial area where judgments given in one EU Member State are recognised and can be enforced in all others. To this end, the EU has adopted a number of legal instruments that regulate and ease cross-border enforcement, ensuring legal certainty for all parties and making these processes easier. One of them is Regulation (EC) 805/2004 creating a European Enforcement Order for uncontested claims (the EEO Regulation).

When it was adopted, the Regulation was a ground-breaking instrument that was the first to abolish the need for obtaining a declaration of enforceability in the requested state (the so-called ‘exequatur’). The EEO certificate has replaced it.

Other similar legal instruments were adopted in quick succession, leading to the ‘exequatur’ being abolished by Regulation (EU) 1215/2012 (the Brussels I bis Regulation), although with different conditions than those in the EEO Regulation.

In 2020, the Commission decided to evaluate the EEO Regulation, and to carry out a consultation as a part of the evaluation process. The Commission sought opinions on how the Regulation is working, also with regard to the Brussels Ibis Regulation. It also aimed to collect practical experiences with the EEO Regulation and views on its use in the future.

Upon an invitation by the Commission, the EAPIL formed a Working Group chaired by Jan von Hein (University of Freiburg/Germany). This Working Group presented a position paper in November 2020 that is now available here.

Members of the Working Group will also participate in the upcoming Commission’s online workshop on the revision of the EEO Regulation in January 2021.

Written by Catherine Shen, Project Manager, Asian Business Law Institute

1. The ConflictofLaws.net previously published a short update on the Asian Principles for the Recognition and Enforcement of Foreign Judgments (Adeline Chong ed, Asian Business Law Institute, 2020) which was released in September 2020.
2. Starting in November 2020, ABLI has been following up that publication with a series of concise handbooks written in no-frills languages called “Where in Asia” to address practical questions such as where in Asia judgments from a particular jurisdiction are entitled to be, have been and cannot be, recognised and enforced in other jurisdictions. The jurisdictions considered are Australia, Brunei, Cambodia, China, India, Japan, Lao, Malaysia, Myanmar, the Philippines, Singapore, South Korea, Thailand and Vietnam, which corresponds to those discussed in the two flagship ABLI publications on judgments recognition and enforcement: Recognition and Enforcement of Foreign Judgments in Asia (Adeline Chong ed, Asian Business Law Institute, 2017) and the Asian Principles.
3. For example, included in this “Where in Asia” series is a Quantitative Analysis of the Enforcement of Foreign Judgments in China (as of December 2020) which is based on a list on China’s cases on recognition of foreign judgments (List) being maintained by China Justice Observer (CJO).
4. While CJO’s List looks at both applications to recognise and enforce foreign judgments in China as well as those to recognise and enforce Chinese judgments in foreign jurisdictions, ABLI’s analysis focuses specifically on the former category of applications.
5. Based on the List, ABLI identified an uptick in the number of such applications from 2015 to 2020, compared to the previous two decades, with Europe being the region that has exported the most judgments to China.
6. Further, there are two routes for the recognition and enforcement of foreign judgments in China: either pursuant to a bilateral agreement (or “treaty”) between China and the country of the foreign court for the reciprocal enforcement of each other’s judgments, or under China’s domestic Civil Procedure Law (CPL) in the absence of such an agreement or treaty. Through its analysis, ABLI found that almost three in every five applications to enforce foreign judgments in China were unsuccessful, which is hardly surprising considering that more than half of all applications were made under the CPL route where applicants are required to demonstrate reciprocity. Under Chinese law currently, de facto reciprocity is required ie it has to be established that the foreign court whose judgment is before the Chinese court had previously enforced a Chinese judgment.
7. Other key insights revealed by the analysis include the percentage of applications that failed due to lack of reciprocity, the percentage of applications that were unsuccessful on procedural grounds, the percentage of applications that came from Belt and Road countries, etc.
8. The other handbooks available in the “Where in Asia” series include where in Asia can judgments from Australia, China, India, Indonesia, Malaysia, Singapore, Thailand and Vietnam be enforced in the Asia Pacific. Of particular interest may be the position in relation to Indonesian and Thai judgments. Since these two countries generally do not allow the recognition and enforcement of any foreign judgment, how is this stance affecting the exportation of their own judgments abroad? For example, the Indonesia handbook specifically discusses the case of Paulus Tannos v Heince Tombak Simanjuntak ([2020] SGCA 85, [2020] 2 SLR 1061) where the Singapore Court of Appeal overturned the High Court’s decision last year and refused to recognise Indonesian bankruptcy orders on the ground of breach of natural justice.
9. The “Where in Asia” series is available here. ABLI is delighted to offer readers of ConflictofLaws.net an exclusive discount off its entire judgments book collection. Please write to catherine_shen@abli.asia for more information and your unique coupon code.

Since the summer, the Hamburg Max Planck Institute has hosted monthly virtual workshops on current research in private international law. That series, so far held in German, has proven very successful, with sometimes more than 1oo participants.

Starting in January, the format will be expanded. In order to broaden the scope of potential participants, the series will alternate between English and German presentations. The first English language speaker promises to be a highlight: Attorney-General Maciej Szpunar, author of the opinions in the landmark cases Google v CNIL (C-507/17) and Glawischnig-Pieschzek v Facebook Ireland Limited (C-18/18), as well as numerous other conflict-of-laws cases, most recently X v Kuoni (C-578/19). Szpunar will speak about questions of (extra-)territoriality, a topic of much interest for private international lawyers and EU lawyers since long ago, and of special interest for UK lawyers post-Brexit.

AG Maciej Szpunar
“New challenges to the Territoriality of EU Law”
Wednesday (!), 13 January 2021, 11:00-12:30 (Zoom)

As usual, the presentation will be followed by open discussion. All are welcome.

More information and sign-up here.

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

In December 2020, the Standing International Forum of Commercial Courts (SIFoCC), which brings together the commercial courts of several countries across the world, launched the second edition of its Multilateral Memorandum on Enforcement of Commercial Judgments for Money.

The memorandum is the result of a collaborative effort from judges sitting in the courts involved, and outlines the way in which the judgment of one jurisdiction can be enforced in another. Over 30 jurisdictions have contributed, including Australia, Brazil, Canada, France, Germany, Hong Kong, Japan, Kenya, Malaysia, New York, Singapore, South Korea and the United kingdom.

More information available here.

JM Scherpe and E Bargelli have just published an edited book titled: “The Interaction between Family Law, Succession Law and Private International Law” with Intersentia.

The publisher’s blurb reads as follows:

There can be no doubt that both substantive family and succession law engage in significant interaction with private international law, and, in particular, the European Union instruments in the field. While it is to be expected that substantive law heavily influences private international law instruments, it is increasingly evident that this influence can also be exerted in the reverse direction. Given that the European Union has no legislative competence in the fields of family and succession law beyond cross-border issues, this influence is indirect and, as a consequence of this indirect nature, difficult to trace.

This book brings together a range of views on the reciprocal influences of substantive and private international law in the fields of family and succession law. It outlines some key elements of this interplay in selected jurisdictions and provides a basis for discussion and future work on the reciprocal influences of domestic and European law. It is essential that the choices for and within certain European instruments are made consciously and knowingly. This book therefore aims to raise awareness that these reciprocal influences exist, to stimulate academic debate and to facilitate a more open debate between European Institutions and national stakeholders.

More information can be found here

Written by Andrew Dickinson (Fellow, St Catherine’s College and Professor of Law, University of Oxford)

The belated conclusion of the UK-EU Trade and Cooperation Agreement did not dampen the impact of the UK’s departure from the European Union on judicial co-operation in civil matters between the UK’s three legal systems and those of the 27 remaining Members of the Union. At the turn of the year, the doors to the UK’s participation in the Recast Brussels I Regulation and the 2007 Lugano Convention closed. With no signal that the EU-27 will support the UK’s swift readmission to the latter, a new era for private international law in England and Wales, Scotland and Northern Ireland beckons.

The path that the United Kingdom has chosen to take allows it, and its constituent legal systems, to shape conflict of laws rules to serve the interests that they consider important and to form new international relationships, unfettered by the EU’s legislative and treaty making competences. This liberty will need to be exercised wisely if the UK’s legal systems are to maintain their positions in the global market for international dispute resolution, or at least mitigate any adverse impacts of the EU exit and the odour of uncertainty in the years following the 2016 referendum vote.

As the guidance recently issued by the Ministry of Justice makes clear, the UK’s detachment from the Brussels-Lugano regime will magnify the significance of the rules of jurisdiction formerly applied in cases falling under Art 4 of the Regulation (Art 2 of the Convention), as well as the common law rules that apply to the recognition and enforcement of judgments in the absence of a treaty relationship. This is a cause for concern, as those rules are untidy and ill-suited for the 21st century.

If the UK’s legal systems are to prosper, it is vital that they should not erase the institutional memory of the three decades spent within the EU’s area of justice. They should seek to capture and bottle that experience: to see the advantages of close international co-operation in promoting the effective resolution of disputes, and to identify and, where possible, replicate successful features of the EU’s private international law framework, in particular under the Brussels-Lugano regime.

With these considerations in mind, I began the New Year by suggesting on my Twitter account (@Ruritanian) ten desirable steps towards establishing a more effective set of conflict of laws rules in England and Wales for civil and commercial matters. Ralf Michaels (@MichaelsRalf) invited me to write this up for ConflictofLaws.Net. What follows is an edited version of the original thread, with some further explanation and clarification of a kind not possible within the limits of the Twitter platform. This post does not specifically address the law of Scotland or of Northern Ireland, although many of the points made here take a broader, UK-wide view.

First, a stand-alone, freshly formulated set of rules of jurisdiction replacing the antiquated service based model. That model (Civil Procedure Rules 1998, rr 6.36-6.37 (CPR) to be read with Practice Direction 6B) dates back to the mid-19th century and has only been lightly patched up, albeit with significant ad hoc extensions, since then. The new rules should demand a significant connection between the parties or the subject matter of the claim and the forum of a kind that warrants the exercise of adjudicatory jurisdiction. In this regard, the Brussels-Lugano regime and the rules applied by the Scots courts (Civil Jurisdiction and Judgments Act 1982, Sch 8) provide more suitable starting points than the grounds currently set out in the Practice Direction.

Taking this step would allow the rules on service to focus on the procedural function of ensuring that the recipient of a claim form or other document is adequately informed of the matters raised against it. It would enable the cumbersome requirement to obtain permission to serve a claim form outside England and Wales to be abolished, and with it the complex and costly requirement that the claimant show that England and Wales is the ‘proper place’ (ie clearly the appropriate forum) for the trial of the action. Instead, the claimant would need to certify that the court has jurisdiction under the new set of rules (as has been the practice when the rules of the Brussels-Lugano apply) and the defendant would need to make an application under CPR, Part 11 if it considers that the English court does not have or should not exercise jurisdiction. The claimant would bear the burden of establishing jurisdiction, but the defendant would bear the burden of persuading the court that it should not be exercised. This brings us to the second point.

Secondly, stronger judicial (or legislative) control of the expensive and resource eating Goffian forum conveniens model. Senior judges have repeatedly noted the excesses of the Spiliada regime, in terms of the time, expense and judicial resource spent in litigating questions about the appropriate forum (see, most recently, Lord Briggs in Vedanta Resources Plc v Lungowe [2019] UKSC 20, [6]-[14]), yet they and the rule makers have done little or nothing about it. In many ways, the model is itself to blame with its wide ranging evaluative enquiry and micro-focus on the shape of the trial. Shifting the onus to the defendant in all cases (see above) and an emphasis on the requirement that another forum be ‘clearly [ie manifestly] more appropriate’ than England would be useful first steps to address the excesses, alongside more pro-active case management through (eg) strict costs capping, a limit in the number of pages of evidence and submissions for each side and a greater willingness to require the losing party to pay costs on an indemnity basis.

Thirdly, a clipping of the overly active and invasive wings of the anti-suit injunction. English judges have become too willing to see the anti-suit injunction, once a rare beast, as a routine part of the judicial arsenal. They have succumbed to what I have termed the ‘interference paradox’ ((2020) 136 Law Quarterly Review 569): a willingness to grant anti-suit injunctions to counter interferences with their own exercise of jurisdiction coupled with an overly relaxed attitude to the interferences that their own orders wreak upon foreign legal systems and the exercise of constitutional rights within those systems. Moreover, the grounds for granting anti-suit injunctions are ill defined and confusing – in this regard, the law has travelled backwards rather than forwards in the past century (another Goffian project). Much to be done here.

Fourthly, steps to accede to the Hague Judgments Convention and to persuade others to accede to the Hague Choice of Court Convention. Although the gains from acceding to the Judgments Convention may be small, at least in the short term, it would send a strong signal as to the UK’s wish to return to centre stage at the Hague Conference, and in the international community more generally, and may strengthen its hand in discussions for a future Judgments Convention. By contrast, the success of the Hague Choice of Court Convention is of fundamental importance for the UK, given that it wishes to encourage parties to choose its courts as the venue for dispute resolution and to have judgments given by those courts recognised and enforced elsewhere.

Fifthly, a review of the common law rules for the recognition and enforcement of judgments, which are in places both too broad and too narrow. These rules have been little changed since the end of the 19th century. They allow the enforcement of foreign default judgments based only on the defendant’s temporary presence in the foreign jurisdiction at the time of service, while treating as irrelevant much more substantial factors such as the place of performance of a contractual obligation or place of commission of a tort (even in personal injury cases). Parliamentary intervention is likely to be needed here if a satisfactory set of rules is to emerge.

Sixthly, engagement with the EU’s reviews of the Rome I and II Regulations to test if our choice of law rules require adjustment. The UK has wisely carried forward the rules of applicable law contained in the Rome Regulations. Although not perfect, those rules are a significant improvement on the local rules that they replaced. The EU’s own reviews of the Regulations (Rome II currently underway) will provide a useful trigger for the UK to re-assess its own rules with a view to making appropriate changes, whether keeping in step with or departing from the EU model.

Seventhly, statutory rules governing the law applicable to assignments (outside Rome I) and interests in securities. The UK had already chosen not to participate in the upcoming Regulation on the third party effects of assignments, but will need to keep a close eye on the outcome of discussions and on any future EU initiatives with respect to the law applicable to securities and should consider legislation to introduce a clear and workable set of choice of law rules with respect to these species of intangible property. These matters are too important to be left to the piecemeal solutions of the common law.

Eighthly, a measured response to the challenges presented by new technology, recognising that the existing (choice of law) toolkit is fit for purpose. In December 2020, the UK Law Commission launched a consultation on Smart Contracts with a specific section (ch 7) on conflict of laws issues. This is a welcome development. It is hoped that the Law Commission will seek to build upon existing solutions for offline and online contracts, rather than seeking to draw a sharp distinction between ‘smart’ and ‘backward’ contracts.

Ninthly, changes to the CPR to reduce the cost and inconvenience of introducing and ascertaining foreign law. The English civil procedure model treats foreign law with suspicion, and places a number of obstacles in the way of its effective deployment in legal proceedings. The parties and their legal teams are left in control of the presentation of the case, with little or no judicial oversight. This approach can lead to uncertainty at the time of trial, and to the taking of opportunistic points of pleading or evidence. A shift in approach towards more active judicial case management is needed, with a move away from (expensive and often unreliable) expert evidence towards allowing points of foreign law to be dealt with by submissions in the same way as points of English law, especially in less complex cases.

Tenthly, measures to enhance judicial co-operation between the UK’s (separate) legal systems, creating a common judicial area. It is a notable feature of the Acts of Union that the UK’s constituent legal systems stand apart. In some areas (notably, the recognition and enforcement of judgments – Civil Jurisdiction and Judgments Act 1982, Sch 6 and 7), the rules operate in a way that allows the recognition of a single judicial area in which barriers to cross-border litigation have been removed. In other respects, however (for example, the service of documents, the taking of evidence and the ascertainment of foreign law), the UK’s legal systems lack the tools that would facilitate closer co-operation and the more effective resolution of disputes. The UK’s legal systems should consider what has worked for the EU, with its diverse range of legal systems, and for Commonwealth federal States such as Australia and work together to adopt comprehensive legislation on a Single UK Judicial Area.