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Banco San Juan Internacional Inc v Petroleos De Venezuela SA [2020] EWHC 2937 (Comm) is a lengthy judgment which I report here for its discussion of Rome I Article 9’s provisions on overriding mandatory laws /lois de police. The discussion is similar to the consideration of A9 in Lamesa Investments, to which reference is made.

The Claims comprise two substantial claims in debt by claimant BSJI, a bank incorporated in Puerto Rico, against defendant PDVSA, the Venezuelan state-owned oil and gas company.  PDVSA arue inter alia that payment obligations fall to be performed in the US and contends that US sanctions ought to be regarded as part of the order public (sic) of US law. It is said these are a central component of US foreign policy and its political and economic aims as regards Venezuela. It is argued that the terms of the Executive Orders themselves make clear that they are reactions to perceived political and human rights injustices in Venezuela and describe this as “an unusual and extraordinary threat to the national security and foreign policy of the United States“.

However Article 9(3) Rome I comes with a sizeable amount of discretion: ‘Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.’

At 118 Cockerill J decides not to use the discretion for the same reason she had earlier dismissed application of the Ralli Bros principle. That rule was recently discussed in Colt v SGG. (As summarised here by Mrs Justice Cockerill at 77) it ‘provides that an obligation under an English law contract is invalid and unenforceable, or suspended in the case of a payment obligation, insofar as the contract requires performance in a place where it is unlawful under the law of that required place of performance.’ And at 79: ‘The doctrine therefore offers a narrow gateway: the performance of the contract must necessarily involve the performance of an act illegal at the place of performance. Subject to the Foster v Driscoll principle [also discussed in Colt and of no relevance here, GAVC], it is no use if the contract could be performed some other way which is legal; and it is no use if the illegal act has to be performed somewhere else’ and at 84 ‘it is only illegality at the place of performance which is apt to provide an excuse under the Ralli Bros doctrine; it also makes clear that the party relying on the doctrine will in general not be excused if he could have done something to bring about valid performance and failed to do so.’ 

The lex contractus is English law which already has the Ralli Bros rule. At 120 Cockerill J suggest that if the court in question has no equivalent rule of law, Article 9(3) will have a significant impact. But not if the lex contractus is English law.

I have to give this some further thought and I am not sure it would make much difference in practice but could it not be said that A9(3) Rome I exhaustively regulates the use of overriding mandatory law to frustrate a contract? This would mean that where Rome I applies, Ralli Bros and even Foster v Driscoll must not apply and must not be entertained. That is a question of some relevance, even after Brexit albeit with a complication: for to the extent (see discussions elsewhere) the Rome Convention re-applies to the UK post Brexit, that Convention’s Article 7 rule on mandatory rules ordinarly applies – albeit the UK have entered a reservation viz A7(1) on which see also here. That article gives  a lot of freedom for the forum to apply mandatory laws of many more States than the lex loci solutionis [Article 7(1) Rome Convention: ‘ When applying under this Convention the law of a country, effect may be given to the mandatory rules of the law of another country with which the situation has a close connection, if and in so far as, under the law of the latter country, those rules must be applied whatever the law applicable to the contract. In considering whether to give effect to these mandatory rules, regard shall be had to their nature and purpose and to the consequences of their application or non-application’].

At the very least an exhaustive role for A9 Rome I (and again in future for UK courts, potentially A7 Rome Convention; but see the note on reservation) would require from the judge a different engagement of the issues than under Ralli Bros. Again, whether indeed, and per Cockerill J’s suggestion here (she applies both Ralli Bros and A9)  in the case of England that would make much difference in outcome is uncertain. Update 6 November 10:20 AM: see prof Dickinson’s impromptu contribution to the issue here.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8, Heading 3.2.8.3.

3rd ed. forthcoming February 2021.

Alfonso Luis Calvo Caravaca (University Carlos III, Madrid) and Javier Carrascosa González (University of Murcia) are the author of a treatise on private international law, in Spanish, titled Tratado de Derecho Internacional Privado.

The three-volume work, published by Tirant lo Blanch, aims to provide an updated, systematic and comprehensive account of the discipline.

Private international law is presented through the analysis of legal rules, case law and scholarly writings, with more than 7.500 references to judicial decisions. The book provides an in-depth insight into European and Spanish private international law in force both for practitioners and students. It illustrates private international law in an accessible way by showing its rules ‘in motion’, i.e., as they actually work.

On 26 October 2020, Saint Kitts and Nevis acceded to the HCCH Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, which will enter into force for Saint Kitts and Nevis on 1 February 2021.

Source: https://www.hcch.net/en/news-archive/details/?varevent=765

Professor Paul Beaumont (University of Stirling), Dr Mihail Danov (University of Exeter) and Dr Jayne Holliday (University of Stirling) are delighted to be able to host the final AHRC funded Research Network workshop in partnership with the Journal of Private International Law.

• Online Workshop via Microsoft teams
• The Link to the event will be provided shortly.
• The workshop is over two days, Thursday 26th November and Friday 27th November

Please note that you are welcome to attend as much or as little of the workshop as you are able.

Programme for Thursday 26 November 2020

Chair – Professor Paul Beaumont (University of Stirling and co-editor of the Journal of Private International Law)

10.00-10.30 The Opportunities of Brexit for the development of Private International Law in the Commonwealth

Speaker – Professor Reid Mortensen (University of South Queensland)

10.30-10.45 Questions and discussion

10.45-11.15 Some Reflections to be drawn from the Pilot Study and Future Research Project/s

Speaker – Dr Mihail Danov (University of Exeter)

11.15-11.30 Questions and Discussion

11.30-11.45 Coffee Break

Chair – Dr Jayne Holliday (University of Stirling)

11.45-12.15 Connecting Factors in Private International Law – a global perspective

Speakers – Professor Susanne Goessl (University of Kiel) and Dr Ruth Lamont (University of Manchester)

12.15-12.30 Questions and Discussion

12.30-14.00 Lunch break

Chair – Dr Mihail Danov

14.00-14.45 Pluses and minuses of the UK being a party to the Lugano Convention after Brexit

Speaker – Professor Fausto Pocar (University of Milan)

14.45-15.00 Questions and discussion

Programme for Friday 27 November 2020

Chair – Professor Jonathan Harris QC (King’s College London, co-editor of the Journal of Private International Law and Serle Court)

10.30-10.50 Keynote speech by Lord Mance former UK Supreme Court Judge

10.50-11.15 Questions and Discussion and Comments by the Chair

11.15-11.45 Resolving Conflicts of Jurisdiction after Brexit at a global level

Speaker – Dr Ardavan Arzandeh (University of Bristol and soon to be National University of Singapore)

11.45-12.00 Questions and Discussion

Chair – Dr Jayne Holliday

12.00-12.30 The Hague Adults Convention 2000 and the role of the UK and the EU in the Hague Conference after Brexit

Speaker – Professor Pietro Franzina (Catholic University, Milan)

12.30-12.45 Questions and Discussion

Lunch Break

Chair – Dr Mihail Danov

15.00-15.30 Private International Law of Arbitration – a global perspective and the impact of Brexit on arbitration in the UK

Speaker – Professor Giuditta Cordero-Moss (University of Oslo)

15.30-15.45 Questions and Discussion

15.45-16.15 The AHRC Research Network on Private International Law: Some reflections on the way ahead for global private international law.

Speaker – Professor Paul Beaumont

16.15-16.30 Questions and Discussion

Professor Paul Beaumont (University of Stirling), Dr Mihail Danov (University of Exeter) and Dr Jayne Holliday (University of Stirling) are delighted to be able to host the third of four public AHRC workshops on Private International Law after Brexit from global, European, Commonwealth and intra-UK perspective.

• Online Workshop via Microsoft teams
• The Link to the event will be provided shortly.
• The workshop is over two days, Thursday 19th November and Friday 20th November

Please note that you are welcome to attend as much or as little of the workshop as you are able.

Programme for 19 November 2020

14:00 – 14:10 – The Workshop and its Context

Professor Paul Beaumont (University of Stirling), AHRC Network on UK Private International Law post Brexit: Project Objectives and Workshop Aims

14:10 – 16:00 – Cross-Border Litigation: Specific Issues in some specific sectors

Chair: Alex Layton QC (King’s College London and Twenty Essex)

Dr Jenny Papettas (University of Birmingham), Cross-Border Motor Claims After Brexit

Professor Yvonne Baatz (Centre for Commercial Law Studies, Queen Mary University of London), Brexit and Cross-Border Maritime Disputes

Professor Rob Merkin QC (University of Exeter), Cross-Border Dispute Resolution – Insurance Sector: Brexit Implications

Tom Sprange QC (King & Spalding), High-Value Disputes: A US Law Firm’s Perspective on Brexit

Dr Mihail Danov (University of Exeter), Cross-Border Litigation: New Data, Initial Brexit Implications in England and Wales and Long-Term Policy Choices

Questions and discussion

 

Programme for 20 November 2020

10:00 – 12:00 Global and Commonwealth Perspectives on Private International Law in the UK after Brexit (not restricted to commercial law)

Chair: Professor Paul Beaumont

Professor Mary Keyes (Griffith University, Australia), How Brexit may affect Commonwealth PIL: A View from Australia

Dr Christophe Bernasconi (Secretary General of the Hague Conference), A Global Perspective from the HCCH – the global international institution on private international law

Iain Mackie (Macfarlanes), A London Law Firm Perspective on international and commonwealth litigation after Brexit

Questions and discussion

Break

13:30 – 15:00 – EU/EEA and Intra-UK Commercial PIL: Brexit Challenges and Opportunities

Chair: Professor Eva Lein (University of Lausanne, Switzerland)

Alex Layton QC, Interim Remedies

Professor Barry Rodger (University of Strathclyde), Re-designing (or not) the UK landscape in relation to PIL: An Intra-UK perspective on Brexit

Lindsey Clegg (Freeths), Re-designing (or not) the UK landscape in relation to PIL: A Regional Law Firm Perspective on Brexit

Questions and discussion

20-minute break

15:20 – 16:50 – Brexit and Cross-Border Competition Litigation

Chair: Professor Barry Rodger

Omar Shah (Morgan, Lewis & Bockius LLP), Brexit and Cross-Border Collective Redress

Nick Frey (Freshfields Bruckhaus Deringer LLP), Brexit – A Defendant’s Perspective on Competition Litigation

Dr Mihail Danov, Cross-Border Competition Litigation: Brexit Opportunities?

Questions and discussion

16.50 – 17.15 Prof Paul Beaumont and Dr Mihail Danov, Concluding Remarks and Next Steps

Online public AHRC workshops on Private International Law after Brexit from global, European, Commonwealth and intra-UK perspectives

Professor Paul Beaumont (University of Stirling), Dr Mihail Danov (University of Exeter) and Dr Jayne Holliday (University of Stirling) are delighted to be able to host the following AHRC funded Research Network workshop.

How to join the online workshop:

• The event will be held using Microsoft Teams.
• The link for the event is – http://stir.ac.uk/44h
• Or click here on Friday 6th November to join the online workshop.

Any queries please contact Dr Jayne Holliday at j.holliday@stir.ac.uk

The Development of Private International Law in the UK post Brexit

AHRC Research Network Workshop II – Family Law – Programme

Friday 6 November 2020

10.00-10.15 – Welcome and introduction by Dr Jayne Holliday (University of Stirling)

10.15-10.45 – Hague Intercountry Adoption Convention – how it should be interpreted and applied by Laura Martínez-Mora (Secretary, Hague Conference on Private International Law)

10.45-11.00 – Discussion

11.00-11.15 – Break

11.15-11.45 – Private International Law of Family Agreements after Brexit by Alexandre Boiché (French advocate, member of the Experts’ Group on Family Agreements at the Hague Conference on Private International Law)

11.45-12.15 – International Surrogacy and International Parentage – hopes for a global solution by Professor Giacomo Biagioni (University of Cagliari)

12.15-12.30 – Discussion

12.30-13.30 – Break for lunch

13.30-14.00 – Private International Law of Parental Responsibility (Custody and Access) after Brexit by Professor Thalia Kruger (University of Antwerp)

14.00-14.30 – Private International Law of Divorce after Brexit by Dr Máire Ní Shúilleabháin (University College Dublin)

14.30-14.45 Discussion

14.45-15.00 Break

15.00-16.00 – Keynote speech by Lord Justice Moylan ‘International Family Justice – Where are we Going?’

16.00-16.30 – Concluding remarks incorporating some comments on maintenance after by Brexit by Professor Paul Beaumont (University of Stirling)

Carsten Gerner-Beuerle (University College London & European Corporate Governance Institute – ECGI), Federico M. Mucciarelli (Università degli studi di Modena e Reggio Emilia – UNIMORE), Edmund Schuster (London School of Economics) and Mathias Siems (European University Institute – EUI, Durham University and European Corporate Governance Institute – ECGI) have posted Making the Case for a Rome V Regulation on the Law Applicable to Companies on SSRN.

The abstract reads:

There is significant legal variation and uncertainty in the conflict of laws rules applicable to companies in the EU. While the case law of the Court of Justice on the freedom of establishment has clarified some questions, it is evident that case law cannot provide for an adequate level of legal certainty. The main recommendation of this paper is that private international company law in the EU should be harmonised. The paper discusses the main challenges that a future regulation to this effect – called here ‘Rome V Regulation on the Law Applicable to Companies’ – would have to overcome. Some of those are of a political nature: for instance, countries may fear that it may become easier for companies to evade domestic company law (eg, rules of employee co-determination), and there are specific considerations that concern companies established in third countries. Another challenge is that a future regulation on the law applicable to companies has to be consistent with existing EU conflict of laws rules as regards, for example, insolvency and tort law, while also complying with the freedom of establishment of the Treaty. It is the aim of this paper to discuss these questions in detail, notably the general considerations for harmonisation in this field, a potential harmonisation based on the ‘incorporation theory’, how it may be possible to overcome some contentious issues such as the definition of the lex societatis or the relationship between the lex societatis and other areas of law, and the prospects of future international harmonisation.

A revised version of the paper will be published in the Yearbook of European Law.

“The collective defence of consumers’ rights has come a step closer. Following the agreement reached with the European Parliament in June 2020, the Council today adopted its position at first reading on a draft directive on representative actions for the protection of the collective interests of consumers within the EU.

The directive requires member states to put in place a system of representative actions for the protection of consumers’ collective interests against infringements of Union law. It covers actions for both injunctions and redress measures.

It empowers qualified entities designated as such by member states to seek injunctions and/or redress, including compensation or replacement, on behalf of a group of consumers that has been harmed by a trader who has allegedly infringed one of the EU legal acts set out in the annex to the directive. These legal acts cover areas such as financial services, travel and tourism, energy, health, telecommunications and data protection.

The directive distinguishes between qualified entities entitled to bring actions in the member state where they have been designated (domestic representative actions) and those entitled to bring actions in any other member state (cross-border representative actions). For domestic actions a qualified entity will have to fulfil the criteria set out in the law of its member state of designation, whereas for cross-border actions it will have to fulfil the harmonised criteria set out in the directive.

As a safeguard against abusive litigation, the directive provides clear rules on the allocation of judicial costs in a representative action for redress based on the ‘loser pays’ principle. Furthermore, with a view to avoiding conflicts of interest, it imposes on qualified entities a number of transparency requirements, in particular as regards their funding by third parties.

The directive will apply to representative actions brought on or after the date of its application”.

The text of the directive as of 21 October 2020 is attached to this post.

Source: https://www.consilium.europa.eu/en/press/press-releases/2020/11/04/collective-redress-for-consumers-council-adopts-position-at-first-reading/

collective-redress-21-october-2020Download

“The Council today adopted two recast regulations, one on the taking of evidence and a second on the service of documents, to modernise cross-border exchanges between authorities through digitalisation. After reaching a political agreement with the European Parliament in June 2020, the text will now be submitted to the Parliament for its final adoption.

[…] Changes in both regulations include the mandatory use of a decentralised IT system, composed of interconnected national IT systems, for the transmission of documents and requests between member states.

Regarding the service of documents, under the new rules documents can be served electronically and directly to an addressee with a known address in another member state, when their express consent is given in advance. The service can be performed through qualified electronic registered delivery services or, under additional conditions, by e-mail.

The new rules also promote the use of videoconferencing or other distance communication technology in the taking of evidence which implies hearing a witness, party or expert located in another member state”.

The text of the adopted Evidence and Service Regulations are attached to this post.

evidence-regulation-22-october-2020Download service-regulation-22-october-2020Download

Source: https://www.consilium.europa.eu/en/press/press-releases/2020/11/04/digital-europe-council-adopts-new-rules-to-modernise-judicial-cooperation-in-taking-of-evidence-and-service-of-documents/?utm_source=dsms-auto&utm_medium=email&utm_campaign=Digital+Europe%3a+Council+adopts+new+rules+to+modernise+judicial+cooperation+in+taking+of+evidence+and+service+of+documents

In preparation of the Conference on the HCCH 2019 Judgments Convention on 13/14 September 2021, planned to be taking place on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

We all benefited from your contributions at the Video Pre-Conference Roundtable on 29 October 2020. Our sincere thanks go to all the speakers and participants who pushed further the frontiers of our knowledge and understanding.

Update of 4 November 2020: New entries are printed bold.

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

 

1. Explanatory Reports

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

 

1. Bibliography

Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul R. “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Blom, Joost “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 Bonomi, Andrea “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 Bonomi, Andrea “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 Bonomi, Andrea;
Mariottini, Cristina M. “(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 Borges Moschen, Valesca Raizer;
Marcelino, Helder “Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319

(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) Brand, Ronald A. “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 Brand, Ronald A. “Jurisdictional Developments and the New Hague Judgments Project”, “in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon”, Cambridge 2013, pp 89-99 Brand, Ronald A. “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 Brand, Ronald A. “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 Çali?kan, Yusuf;
Çali?kan, Zeynep “2 Temmuz 2019 Tarihli Yabanci Mahkeme Kararlarinin Taninmasi ve Tenfizine Iliskin Lahey Anlasmasinin Degerlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245

(An Evaluation of 2 July 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) Clavel, Sandrine; Jault-Seseke, Fabienne “La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale: Que peut-on en attendre?”, Travaux du comité français de Droit international privé, Vol. 2018-2020, forthcoming (Version roviso ire de la communication présentée le 4 octobre 2019 available here) Clover Alcolea, Lucas “The 2005 Hague Choice of Court and the 2019 Hague Judgments Conventions versus the New York Convention – Rivals, Alternatives or Something Else?”, Mc Gill Journal of Dispute Resolution 6 (2019-2020), pp. 187-214 Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 Cuniberti, Gilles “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 de Araujo, Nadia; de Nardi, Marcelo;
Spitz, Lidia “A nova era dos litígios internacionais”, Valor Economico 2019 de Araujo, Nadia;
de Nardi, Marcelo;
Lopes Inez;
Polido, Fabricio „Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34

  de Araujo, Nadia;
de Nardi, Marcelo „Consumer Protection Under the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 67-79 de Araujo, Nadia;
de Nardi, Marcelo „22ª Sessão Diplomática da Conferência da Haia e a Convenção sobre sentenças estrangeiras: Primeiras reflexões sobre as vantagens para o Brasil da sua adoção“, Revista de la Secretaría del Tribunal Permanente de Revisión 7 No. 14 (2019), páginas 198-221

(22nd Diplomatic Session of The Hague Conference and the Convention on Foreign Judgments: First Reflections on the Advantages for Brazil of their Adoption) Dotta Salgueiro, Marcos “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”, Netherlands International Law Review (NILR) 67 (2020), pp 113-120 Douglas, Michael;
Keyes, Mary;
McKibbin, Sarah;
Mortensen, Reid “The HCCH Judgments Convention in Australian Law”, Federal Law Review 47 (2019), pp 420-443 Efeç?nar Süral Possible Ratification of the Hague Convention by Turkey and Its Effects to the Recognition and Enforcement of Foreign Judgments, Public and Private International Law Bulletin 40/2 (2020), pp. 785 et seq. Franzina, Pietro; Leandro, Antonio

  “La Convenzione dell’Aja del 2 luglio 2019 sul riconoscimento delle sentenze straniere: una prima lettura”, Quaderni di SIDIblog 6 (2019), pp 215-231, available at http://www.sidi-isil.org/wp-content/uploads/2020/09/Quaderni-di-SIDIBlog-6-2019.pdf

(The Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments: A First Appraisal) Fuchs, Felix “Das Haager Übereinkommen vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Urteile in Zivil- oder Handelssachen“, Gesellschafts- und Wirtschaftsrecht (GWR) 2019, pp 395-399 Garcimartín, Francisco “The Judgments Convention: Some Open Questions”, Netherlands International Law Review (NILR) 67 (2020), pp 19-31 Goddard, David „The Judgments Convention – The Current State of Play”, Duke Journal of Comparative & International Law 29 (2019), pp 473-490 He, Qisheng “The HCCH Judgments Convention and the Recognition and Enforcement of Judgments pertaining to a State”, Global Law Review 3 (2020), pp 147-161 He, Qisheng “Unification and Division: Immovable Property Issues under the HCCH Judgement Convention”, Journal of International Law 1 (2020), pp 33-55 Jacobs, Holger “Der Zwischenstand zum geplanten Haager Anerkennungs- und Vollstreckungsübereinkommen – Der vorläufige Konventionsentwurf 2016“, Zeitschrift für Internationales Privatrecht & Rechtsvergleichung (ZfRV) 2017, pp 24-30 Jang, Junhyok “The Public Policy Exception Under the New 2019 HCCH Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 97-111 Jovanovic, Marko Thou Shall (Not) Pass – Grounds for Refusal of Recognition and

Enforcement under the 2019 Hague Judgments Convention, YbPIL 21 (2019/2020), pp. 309 – 332 Jueptner, Eva “The Hague Jurisdiction Project – what options for the Hague Conference?”, Journal of Private International Law 16 (2020), pp 247-274 Kessedjian, Catherine “Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?“, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 19-33 Khanderia, Saloni „The Hague judgments project: assessing its plausible benefits for the development of the Indian private international law”, Commonwealth Law Bulletin 44 (2018), pp 452-475 Khanderia, Saloni “The Hague Conference on Private International Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?”, Journal of African Law 63 (2019), pp 413-433 Mariottini, Cristina „Establishment of Treaty Relations under The 2019 Hague Judgments

Convention“, YbPIL 21 (2019/2020), pp. 365-380 Mariottini, Cristina “The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, YbPIL 19 (2017/2018), pp 475-486. Meier, Niklaus “Notification as a Ground for Refusal”, Netherlands International Law Review (NILR) 67 (2020), pp 81-95 Nielsen, Peter Arnt “The Hague 2019 Judgments Convention – from failure to success”, Journal of Private International Law 16 (2020), pp 205-246 North, Cara “The 2019 HCCH Judgments Convention: A Common Law Perspective”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 202-210 North, Cara “The Exclusion of Privacy Matters from the Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 33-48 Oestreicher, Yoav “ ’We’re on a Road to Nowhere’ – Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments”, The International Lawyer 42 (2008), pp 59-86 Pasquot Polido, Fabrício B. “The Judgments Project of the Hague Conference on Private International Law: a way forward for a long-awaited solution”, in Verónica Ruiz Abou-Nigm, Maria Blanca Noodt Taquela (eds.), Diversity and integration in Private International Law, Edinburgh 2019, pp. 176-199 Pertegás Sender, Marta “The 2019 Hague Judgments Convention: Its Conclusion and the road ahead”, in Asian Academy of International Law (publ.), Sinergy and Security: the Keys to Sustainable Global Investment: Proceedings of the 2019 Colloquium on International Law, 2019 Hong Kong, pp 181-190 Pertegás, Marta “Brussels I Recast and the Hague Judgments Project”, in Geert Van Calster (ed.), European Private International Law at 50: Celebrating and Contemplating the 1968 Brussels Convention and its Successors, Cambridge 2018, pp 67-82 Reyes, Anselmo „Implications of the 2019 Hague Convention on the Enforcement of Judgments of the Singapore International Commercial Court”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 695-709 Ribeiro-Bidaoui, João “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 Rumenov, Ilija “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-4040 Sachs, Klaus;
Weiler, Marcus “A comparison of the recognition and enforcement of foreign decisions under the 1958 New York Convention and the 2019 Hague Judgments Convention”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 763-781 Saumier, Geneviève “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 49-65 Schack, Haimo “Wiedergänger der Haager Konferenz für IPR: Neue Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens?“, Zeitschrift für Europäisches Privatrecht (ZEUP) 2014, pp 824-842 Schack, Haimo „Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 1-96 Shchukin, Andrey Igorevich “Indirect International Jurisdiciton in the Hague Convention on the Recognition and Enforcement of Foreign Judments of 2019 (Part 1)”, Journal of Russian Law No. 2020-7, pp. 170-186 Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 Solomon, Dennis “Das Haager Anerkennungs- und Vollstreckungsübereinkommen von 2019 und die internationale Anerkennungszuständigkeit“, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 873-893 Spitz, Lidia „Refusal of Recognition and Enforcement of Foreign Judgments on Public Policy Grounds in the Hague Judgments Convention – A Comparison with The 1958 New York Convention“, YbPIL 21 (2019/2020), pp 333-364 Stein, Andreas „Das Haager Anerkennungs- und Vollstreckungsübereinkommen 2019 – Was lange währt, wird endlich gut?“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 197-202 Stewart, David P. „Current Developments: The Hague Conference adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, American Journal of International Law (AJIL) 113 (2019), pp 772-783 Taquela, María Blanca Noodt; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue Critique de Droit International Privé 2019, pp 353-366 Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279 – 308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in: Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed., forthcoming Weller, Matthias Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019, in Christoph Althammer/Christoph Schärtl, Festschrift für Herbert Roth, in Vorbereitung. Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 5 (2017), pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Zhang, Wenliang;
Tu, Guangjian “The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368

 

In a resolution of 8 November 2019 (III CZP 24/19, available here, in Polish), the Supreme Court of Poland addressed the issue of jurisdiction to rule on the authorisation that a guardian of an adult may need to obtain prior to selling property belonging to the latter.

Background

DD is a German national, with habitual residence in Germany. He owned an immovable in Poland. Due to an impairment of his personal faculties, DD was put under guardianship by a German court. EH, a lawyer, was appointed his guardian and charged with taking care of DD’s property and represent him in court proceedings.

In 2018 the competent German court gave its approval for the disposal of DD’s immovable property in Poland. The property was sold to a married couple – SK and AK – and entered their community of property. Additionally, the sale contact instituted a mortgage on the property to secure a loan concluded by SK and AK with a Polish bank.

The buyers applied to the regional court in Poland to have the change of ownership and mortgage entered into the land register. This application was rejected as the court found that the sale contract was invalid, on the ground that EH had not been authorised to sell the property by a Polish family court. The higher instance court, to which SK and AK filed an appeal, decided to ask the Supreme Court for guidance.

Considered Sources of Law

The Supreme Court observed, to begin with, that the matters falls outside the material scope of the Brussels I bis Regulation in accordance withArticle 1(2)(a), on the legal capacity of natural persons. In Schneider (C-386/12) the CJEU confirmed that the above exclusion covers non-contentious proceedings by which a national of a Member State who has been declared to be lacking full legal capacity and placed under guardianship in accordance with the law of that State seeks in another Member State an authorisation to sell a property situated in that other Member State. The Court also reminded that Poland is not a party to the Hague Convention on the International Protection of Adults, and that the matter is not covered by the Brussels II bis Regulation.

It is thus for the domestic rules of private international law to determine whether, and subject to which conditions, a foreign judgement whereby a guardian is authorised to sell property belonging to a protected adult qualifies for recognition in Poland. The relevant rules are found in the Polish Code of Civil Procedure (“CCP”), specifically in the Code’s Part IV (available here, in Polish). The above conclusion is correct, given that no bilateral agreement is in force between Poland and Germany to cover the kind of judgments in question.

The Applicable Domestic Rules in Detail

The Supreme Court stated in its resolution that a judgement like the one at issue enjoys automatic recognition in Poland under Article 1145 CCP. Recognition may however be denied on any of the grounds listed in Article 1146 CCP. In particular, recognition ought to be denied if the matter is one for which Polish courts have, under Polish rules, ‘exclusive’ jurisdiction.

Pursuant to Article 1107(1) CCP, proceedings over rights in rem in (and the possession of) immovable property located in Poland fall under the exclusive jurisdiction of Polish courts. Additionally, Article 1110(2) CCP provides that exclusive jurisdiction extends to proceedings the decision of which ‘affects’ the rights in rem in (or the possession of) immovable property located in Poland.

While it was clear that the case under discussion did not fall within the scope of Article 1107(1) CC, the question arose of whether it may be classified as affecting the rights in rem in immovable property within the meaning of Article 1110(2) CCP.

A Case Affecting the Rights in rem in Immovable Property?

The Court explained that the characteristic feature of matters covered by Article 1110(2) CCP is that they concern not only rights in rem. An example of such a case is a division of marital property. Before the Succession Regulation became applicable, the above provision would also apply to succession cases. However, the analogy between the above cases and the case at hand is far from obvious. For example, a division of an estate including property located in Poland entails a determination as to who should eventually own the property in question. By contrast, the authorisation required to sell the property of a person lacking capacity is just one of the conditions which need to be fulfilled in order for the change in the ownership to occur, but has no influence on whether the disposal will in fact take place.

The subsequent step of the reasoning is the most interesting. The Supreme Court, when analysing Article 1110(2) CCP, relied on the case law of the CJEU, in particular in the Schneider and Schmidt (C-417/15) cases. In the said judgments, the CJEU distinguished the approval of a sale of property from the sale itself, stating that the main concern of the former proceedings is the protection of the interests of the seller.

Having in mind CJEU’s standpoint, the Supreme Court underlined that the proceedings at issue:

are aimed at analysing whether the premises for the approval for the sale … are met, having in view the interest of the person under guardianship. The nature of the asset concerned does not affect the scope and outcome of the analysis. No matter whether the contemplated transaction is the sale of immovable property or another juridical act requiring prior authorisation, the assessment revolves around the purpose of the transaction and the benefits that it may bring to the person lacking full legal capacity.

The above remarks indicate that the proceedings considered should not be characterised as a matter affecting the rights in rem in an immovable property.

The Court underlined also the practical aspect of this interpretation:

It is obvious that the family court of the place of residence of the person lacking full legal capacity, which appointed the guardian, placed the ward in the care home and supervises the protection, is the best informed about the adults concerned’s circumstances, conditions, views and needs, i.e. the factors that play a crucial role in deciding whether the transaction ought to be authorised.

Conclusion

Based on the above, the Court decided that the case should be classified as a matter relating to guardianship, an area for which Polish courts are not vested with exclusive jurisdiction. The recognition of foreign judgments cannot accordingly be refused in accordance with Article 1146 CCP.

On 11 December 2020, from 11 am to 1 pm (MET), the European Association of Private International Law will host the first EAPIL (Virtual) Seminar. Devoted to the impact of Brexit on Private International Law speakers from the United Kingdom and the European Continent will analyze the legal framework that will apply to cross-border cases in the short-term, i.e. as of 1 January 2021 when the transition period provided for in the Withdrawal Agreement has expired. In addition, they will discuss what the future relationship between the EU and the UK could and should look like. Special emphasis will be placed on the question of whether the EU and the UK should strive to adopt a new – bespoke – bilateral agreement (or whether it should simply join existing international conventions).

The speakers of the first session, on civil and commercial matters, will be:

• Alexander Layton (Twenty Essex Street Chambers, London)
• Eva Lein (University of Lausanne)
• Michiel Poesen (KU Leuven)

The second session, on family matters, will feature presentations by:

• Sir Andrew Moylan (Court of Appeal of England and Wales)
• Pietro Franzina (Catholic University of the Sacred Heart, Milan)
• Anatol Dutta (Ludwig Maximilian University Munich).

The Seminar will take place via Zoom. Information about how to register will be announced in due course.

If you have questions concerning the first EAPIL Seminar or the EAPIL Seminar Series as such please get in touch with the Secretary General of EAPIL, Giesela Rühl, at secretary.general@eapil.org.

 

Background:

The EAPIL (Virtual) Seminar Series was established in October 2020 to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

 

Many international commercial parties usually provide for a choice of court agreement as a term of their contract. This is done to enhance predictability, certainty and reduction of costs in the event a dispute arises between the parties. Since a choice of court agreement is a term of the contract, does the principle of contract law apply to determine a choice of court agreement? Though this is a matter of controversy in Nigerian law,[1] some recent appellate (Court of Appeal and Supreme Court) cases have  given a foreign choice of court agreement a contractual function.[2]

Kashamu v UBN Plc[3] is a most recent Court of Appeal decision that analyses a foreign choice of court agreement exclusively from the principles of contract law. In this case, The Banque International Du Benin (“BIDB”), a limited financial institution in Benin Republic, granted medium term loan facilities, in different sums, to the Societe d’ Egrenage Industrial De Cotonu du Benin (“SEIC-B”), a private limited company registered in Benin Republic, for construction of its Cotton Ginning factory. The facilities were secured by, inter alia, SEIC-B’s goodwill, factory and land. In addition, the defendant/appellant, the alter ego of SEIC-B, personally guaranteed the facilities in a personal guarantee agreement. The loan agreement between BIDB and SEICB provided that the law and courts of Benin Republic should determine their dispute. However, the guarantee agreement between BIDB and the defendant/appellant did not explicitly provide for a choice of court agreement.

SEIC-B defaulted in the repayment of the loans despite repeated demands. As a result, BIDB appointed the plaintiff/respondent, a public limited financial institution in Nigeria, as its attorney to recover the outstanding facility. Further to the donated power of attorney, the plaintiff/respondent claimed recovery of the debt from the defendant/appellant in the Lagos High Court, Nigeria. The defendant counter-claimed and also challenged the jurisdiction of the Lagos High Court as being the wrong forum to institute the action. The Lagos High Court held that it had jurisdiction.

The defendant/appellant was dissatisfied with this decision and appealed to the Court of Appeal. The defendant/appellant argued that the proper forum for the action was the Courts in Benin Republic, given that the loan agreement between BIDB and SEICB provided that the law and courts of Benin Republic should determine their dispute, He argued that the choice of court agreement in the loan contract should also be incorporated into the guarantee agreement, so that it was the intention of the parties that the courts  of Benin Republic should determine their dispute. He also argued that the execution and performance of the contract were to be in Benin Republic hence the agreement was in French Language.

The plaintiff/respondent argued that the loan agreement and guarantee agreement were distinct. It observed that the parties were bound by the terms in the guarantee agreement. It added that the parties in the guarantee agreement did not agree that the court in Benin Republic would have exclusive jurisdiction over disputes arising from it. It asserted that the guarantee agreement was not expressly incorporated in the loan agreement. It opined that the appellant was not privy to the loan agreement and would not take a benefit from or enforce it for want of privity of contract. It claimed that the content of the guarantee agreement was clear and must be given its literal meaning.

The Court of Appeal unanimously dismissed the appeal. In construing the loan and guarantee agreement to determine if the parties chose the courts of Benin Republic, it applied the principles of Nigerian contract law to the effect that courts are allowed to read a document holistically so as to reach and garner harmonious results of its content. In construing a document, the court is enjoined or mandated by law to apply the literal rule as a canon of interpretation, that is, to accord the words employed there in their ordinary grammatical meaning without any embellishment.[4] It then held that for the document of parties to a private contract to confer jurisdiction on a court, the words used must be clear and explicit and devoid of woolliness and ambiguity. In the instant case, the guarantee contract did not precisely confer jurisdiction on the Benin Republic court.[5] It further held that loan contract did not in any way allude to the guarantee to benefit from the doctrine of incorporation by reference. The doctrine of incorporation could not be invoked because of the want of connection between the two documents.[6]

Kashamu’s case demonstrates the recent attitude of some Nigerian appellate courts to treat choice of court agreements as a term of the contract which should be construed strictly according to the literal and ordinary words used in the contract. In effect in the absence of vitiating circumstances, the parties are bound by the terms of a choice of court agreement, and a Nigerian court will not add or subtract from the way the parties drafted the contract. The Court of Appeal’s approach in Kashamu reflected Nigeria’s law that interprets contractual documents strictly. Kashamu is a modern approach that applies the principles of contract law to choice of court agreements.

[1]For an extended analysis see generally CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, 2020) 107 – 125.

[2]Nika Fishing Company Ltd v Lavina Corporation (2008 ) 16 NWLR 509, 542 (Tobi JSC); Captain Tony Nso v Seacor Marine ( Bahamas) Inc ( 2008 ) LPELR-8320 (CA); Beaumont Resources Ltd v DWC Drilling Ltd ( 2017 ) LPELR-42814 (CA); Kashamu v UBN Plc (2020) 15 NWLR (Pt. 1746) 90.

[3]Kashamu (Ibid)

[4] Kashamu (Ibid) 114-5 (Ogbuinya JCA).

[5] Kashamu (Ibid) 115 (Ogbuinya JCA).

[6] Kashamu (Ibid) 116 (Ogbuinya JCA).

The HCCH and the German Presidency of the Council of the European Union have the pleasure of announcing that registration is now open for HCCH a|Bridged – Edition 2020, which will mark the golden anniversary of the HCCH Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (HCCH Evidence Convention). This year’s edition builds upon the success of HCCH a|Bridged – Edition 2019, which revolved around the theme ‘The HCCH Service Convention in the Era of Electronic and Information Technology’. 

The event will be hosted entirely online on Wednesday 2 December from 2:15 p.m. CET. It will feature a keynote speech by Professor Dr Michael Stürner entitled “50 years of the HCCH Evidence Convention – Facilitating cross-border proceedings” as well as two panels that will discuss the very latest in the cross-border taking of evidence under Chapter I and II of the HCCH Evidence Convention.

Participants will be able to follow the event via a livestream on a dedicated website. While participation is free of charge, the number of registered participants will be limited, and registrations will therefore be handled on a first come, first served basis.

After registration, participants will receive a password which will also enable them to interact with other participants via a chat function and ask questions during the panel discussions. This password will be distributed to registered participants a few days before the conference. We also encourage participants to submit their questions before the meeting, preferably at the time of registration. Please note that the working language of HCCH a|Bridged – Edition 2020 will be English, and there will be no French interpretation. 

The deadline for registrations is Friday 27 November 2020 at 5:00 p.m. CET. A Concept Note, the Programme, and registration information is available on the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

Issue 4 of RabelsZ is now available online and in print. It contains the following articles:

MAX-PLANCK-INSTITUT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT, Die Frühehe im Rechtsvergleich: Praxis, Sachrecht, Kollisionsrecht (Early Marriage in Comparative Law: Practice, Substantive Law, Choice of Law), pp. 705–785

Early marriage is a global and ancient phenomenon; its frequency worldwide, but especially in Europe, has declined only in recent decades. Often, early marriage results from precarious situations of poverty, a lack of opportunities and education, and external threats, for example in refugee situations. However the concepts and perceptions of marriage, family, identities, and values in different societies are diverse, as the comparison of regulations and the practice of early marriage in over 40 jurisdictions shows. Even if early marriage appears generally undesirable, for some minors the alternatives are even worse. Some countries set fixed ages for marriage; others use flexible criteria such as physical or mental maturity to determine a threshold for marriage. All, however, until very recently provided for the possibility of dispensation. In Western countries, such dispensations have rarely been sought in the last decades and have consequently been abolished in some jurisdictions; elsewhere they still matter. Also, most countries bestow some legal effects to marriages entered into in violation of age requirements in the name of a favor matrimonii.

Early marriage has an international dimension when married couples cross borders. Generally, private international law around the world treats marriages celebrated by foreigners in their country of origin as valid if they comply with the respective foreign law. Such application is subject to a case-specific public policy exception with regard to age requirements, provided the marriage has some relation to the forum. Recent reforms in some countries, Germany included, have replaced this flexible public policy exception with a strict extension of the lex fori to foreign marriages, holding them to the same requirements as domestic marriages and thereby disabling both a case-by-case analysis of interests and the subsequent remediation of a violation of the forum’s age requirements. As a consequence, parties to a marriage celebrated abroad can be treated as unmarried, meaning they derive no rights and protection from their marriage, and their marriage may be limping – valid in one country, invalid in another.

The extension of domestic age requirements to foreign marriage without exception, as done in German private international law, is problematic in view of both European and German constitutional law. The refusal to recognize early marriages celebrated abroad can violate the European freedom of movement. It can violate the right to marriage and family (Art. 6 Grundgesetz) and the child’s best interests. It can violate acquired rights. It can also violate the right to equality (Art. 3 Grundgesetz) if no distinction is made between the protection of marriages validly entered into abroad and the prevention of marriages in Germany. Such violations may not be justifiable: The German rules are not always able to achieve their aims, not always necessary compared with milder measures existing in foreign laws, and not always proportional.

Edwin Cameron and Leo Boonzaier, Venturing beyond Formalism: The Constitutional Court of South Africa’s Equality Jurisprudence, pp. 786–840

[Excerpt taken from the introduction]: After long years of rightful ostracism under apartheid, great enthusiasm, worldwide, embraced South Africa’s reintegration into the international community in 1994. The political elite preponderantly responsible for the Constitution, the legal profession, and the first democratic government under President Nelson Mandela were committed to recognisablyliberal principles, founded on democratic constitutionalism and human rights.

This contribution is an expanded version of a keynote lecture given by Justice Edwin Cameron at the 37th Congress of the Gesellschaft für Rechtsvergleichung at the University of Greifswald on 19 September 2019.

Chris Thomale, Gerichtsstands– und Rechtswahl im Kapitalmarktdeliktsrecht (Choice-of-court and Choice-of-law Agreements in International Capital Market Tort Law), pp. 841–863

The treatment of antifraud provisions in international securities litigation is a salient topic of both European capital markets law and European private international law. The article sets the stage by identifying the applicable sources of international jurisdiction in this area as well as the situations in which a conflict of laws may arise. It then moves on to give a rough and ready interpretation of these rules, notably construing the “place where the damage occurred”, according to both Art. 7 Nr. 2 Brussel Ibis Regulation and Art. 4(1) Rome II Regulation, as being equivalent to the market where a financial instrument is listed or is intended to be listed. However, as the article sets out in due course, this still leaves plenty of reasonable opportunity for a contractual choice of court or choice of law. This is why the article’s main focus is on creating a possibility to utilize choice-of-court and choice-of-law agreements. This is feasible either in the issuer’s charter or, notably in the case of bonds, in the prospectus accompanying the issuance of a given financial instrument. The article shows that both arrangements satisfy the elements of Art. 25 Brussel Ibis Regulation on choice-of-court agreements and Art. 14(1) lit. b Rome II Regulation on ex ante choice-of-law agreements. 

Moritz Hennemann, Wettbewerb der Datenschutzrechtsordnungen – Zur Rezeption der Datenschutz-Grundverordnung (The Competition Between Data Protection Laws –  The Reception of theGeneral Data Protection Regulation), pp. 864–895

The General Data Protection Regulation (GDPR) has granted the European Union an excellent position in the “competition” between data protection laws. This competition goes along with a gradual convergence of data protection laws worldwide, initiated and promoted by the European Union. In this competition, the European Union benefits not only from the so-called Brussels Effect (Bradford), but also from distinct legal instruments: The GDPR rules on the scope of application and on data transfer to non-EU countries are of legal importance in this competition, and the adequacy decision under Art. 45 GDPR creates further de facto leverage for negotiations on free trade agreements with non-EU countries. The European Union has already been able to use this tool as a catalyst for European data protection law approaches. The European Union should, however, refrain from “abusing” its strong position and not press for extensive “copies” of the GDPR worldwide – and thereby create legislative lock-in-effects. Alternative regulatory approaches – potentially even more innovative and appropriate – are to be evaluated carefully by means of a functional and/or contextual comparative approach.

On Youtube you can find the videos of the Annual Conference of the German-Colombian Lawyers Association (DKJV/ACAJ). The conference took place digitally from 29 to 30 October 2020. It dealt with current legal developments in Germany and Colombia with a special focus on Covid-19.

The presentations are in Spanish. They are not only interesting from a comparative point of view. They also they deal with private international law and international procedural law matters.

The program was the following:

• Saludos y bienvenida a los participantes

del Embajador de Colombia en Alemania Hans-Peter Knudsen Quevedo

• Ponencia 1:

Prof. Dr. Dr. h. c. Martin Ibler, Universität Konstanz (Alemania): Últimos límites constitucionales que protegen los Derechos Fundamentales en la lucha contra Covid19

• Ponencia 2:

Prof. Dr. Christian Wolffhügel, Ministerio de Justicia (Colombia): Valoración de las medidas de la Administración Colombiana durante la pandemia Covid19

• Ponencia 3:

Prof. Dr. Bernd Marquardt, Universidad Nacional (Bogotá, Colombia): Corona y el derecho constitucional: Colombia en el contexto latinoamericano

• Ponencia 4:

Prof. Dr. María Julia Ochoa Jiménez, LL.M., Universidad de Antioquia (Medellín, Colombia): El Derecho Internacional Privado en el proyecto de reforma del Código Civil de Colombia

• Ponencia 5:

Prof. Gabriel Barreto Ferro, LL.M., Universidad Santo Tomás; Barreto, Torres & Puig (Bogotá, Colombia): La digitalización de la justicia bajo la influencia de la crisis del Covid19

• Ponencia 6:

Prof. Mauricio Torres Guarnizo, LL.M., Universidad Santo Tomás, Barreto, Torres & Puig (Bogotá, Colombia): Los efectos de la crisis del Covid19 en el Derecho Económico en Colombia

• Ponencia 7:

Prof. Dr. John Zuluaga Taborda, LL.M., Universidad Sergio Arboleda (Bogotá, Colombia): La cooptación del sistema sanitario por parte del poder punitivo. Un análisis del caso colombiano

• Ponencia 8:

Prof. John Jairo Morales Alzate, LL.M., Arbitro Lista A Cámara de Comercio; Conjuez Sección 2 Consejo de Estado y Sala Disciplinaria (Bogotá, Colombia): El arbitraje en Colombia en tiempos de Covid19

• Ponencia 9:

Prof. Dr. Susanne Gössl, LL.M., Universität zu Kiel (Alemania): La legislación de Covid19 en materia civil en Alemania

• Ponencia 10:

Dr. Katharina König, Editorial Nomos (Alemania/Colombia): La admisión de juristas extranjeros como abogados en Colombia de la perspectiva alemana

• Ponencia 10:

Magistrado Prof. Milton Chaves García, Consejo de Estado (Colombia): La Fiscalidad ante la Crisis del Covid19

• Ponencia 11:

Prof. Dr. Michael Stöber, Universität zu Kiel (Alemania): Evolución reciente del Derecho Tributario Alemán con especial atención a las medidas Covid19

• Ponencia 12:

Elisabeth Hincapié Hincapié, LL.M., Harsco Rail Europe GmbH (Alemania): Actuales preguntas sobre el Cumplimiento

The first EAPIL Seminar will take place on 11 December 2020, from 11 am to 1 pm (MET). It will be devoted to the impact of Brexit on Private International Law.

In short introductory statements speakers from the United Kingdom and the European Continent will analyse the legal framework that will apply to cross-border cases in the short-term, i.e. as of 1 January 2021 when the transition period provided for in the Withdrawal Agreement has expired.

In addition, they will discuss what the future relationship between the EU and the UK could and should look like. Special emphasis will be placed on the question of whether the EU and the UK should strive to adopt a new – bespoke – bilateral agreement (or whether it should simply join existing international conventions).

The speakers of the first session, on civil and commercial matters, are Alexander Layton (Twenty Essex Street Chambers, London), Eva Lein (University of Lausanne) and Michiel Poesen (KU Leuven).

The second session, on family matters, will feature presentations by Sir Andrew Moylan (Court of Appeal of England and Wales), Pietro Franzina (Catholic University of the Sacred Heart, Milan) and Anatol Dutta (Ludwig Maximilian University Munich).

The Seminar will take place via Zoom. Information about how to register will be announced in due course through this blog.

The EAPIL (Virtual) Seminar Series wishes to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

The University of Zurich, Switzerland, has asked CoL to publish the following:

The University of Zurich is seeking applications for a Professorship in civil procedure and private law to take effect from the beginning of the Fall Semester 2021 (1 August 2021), or by arrangement.

We are seeking a candidate with an excellent legal track record who is committed to carrying out teaching and research across the whole spectrum of civil procedure law, including from an international and comparative law perspective. Experience in arbitration as well as restructuring and insolvency law is an advantage. This should be reflected in an outstanding dissertation, a habilitation thesis (or equivalent academic achievement) that is complete or at an advanced stage, and additional publications. Depending on the successful candidate’s qualifications, the professorship will take the form of a full or associate professorship. A temporary position as assistant professor with tenure track is possible provided that the candidate’s habilitation thesis is at an advanced stage. In all cases, the professorship will be a full-time position. If an excellent application is submitted, particularly from countries or regions (such as French-speaking Switzerland) that do not require a habilitation thesis to be completed, the requirement for habilitation can be waived if comparable achievements are demonstrated. Applicants must be able to teach in English and, ideally, in French. Applicants without a Swiss background must be willing to familiarise themselves with Swiss civil procedure and private law within a reasonable amount of time and, if necessary, attain the level of German required for teaching and examination. The University of Zurich strives to increase the proportion of under-represented groups – in particular women – in its teaching and research staff, and therefore explicitly encourages applications from these candidates. Further information relating to this job profile can be found below. Please submit your application documents as specified in the following job profile by 9 December 2020 via www.recruiting.ius.uzh.ch. You may be requested to submit hard-copy documents separately at a later point. The relevant member of the appointment committee, Professor Tanja Domej (tanja.domej@rwi.uzh.ch), is available to answer any questions and provide further information.

Further information is here.

John Coyle (University of North Carolina) has posted Cruise Contracts, Public Policy, and Foreign Forum Selection Clauses on SSRN.

The abstract reads:

This Essay critiques the analytical framework used by the U.S. Court of Appeals for the Eleventh Circuit to determine when to enforce foreign forum selection clauses in cruise ship passenger contracts. In Estate of Myhra v. Royal Caribbean Cruises, Ltd., the Eleventh Circuit held that such clauses should be enforced even when the foreign court is likely to give effect to provisions in the Athens Convention that limit the liability of the cruise company. This approach is flawed, the Essay argues, because it fails to account for the fact that 46 U.S.C. § 30509 expressly prohibits cruise companies from utilizing contract provisions to limit their liability in passenger contracts. The Essay then looks to analogous cases from other areas of the law to propose a new analytical framework for evaluating when the courts should enforce foreign forum selection clauses in the cruise ship context.

The paper is forthcoming in the University of Miami Law Review.

Kareem Olatoye and Abubakri Yekini, both lecturers at Lagos State University, Nigeria, recently published an article titled: “Islamic Law in Southern Nigerian Courts: Constitutional Law and Conflicts of Laws Perspectives” (2019/2020) 6 Benin Journal of Public Law 120. The abstract reads as follows:

This article challenges the prevailing views that Islamic law is not applicable in southern part of Nigeria and that the civil courts do not have jurisdiction over matters bordering on Islamic personal law. It argues that these views are wrong as litigants are denied access to justice since no state in the southern part of Nigeria has established Islamic courts. The article further argues that the existing legal frameworks – the Constitution, High Court Laws and Evidence Act – support the recognition and application of Islamic law either as a lex fori or lex causae. Thus, there ought to be no distinction between north and south because Islamic law is not a territorial law. The article suggests a paradigm shift in the Nigerian courts’ approach to Islamic law in Southern Nigeria, particularly, the Southwest which has a near-majority Muslim population. It further suggests the establishment of Islamic law courts or the creation of divisions in the existing civil courts for Islamic law matters to ensure that litigants have access to justice, and Islamic law questions are determined by those learned in that law.