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Thank you Irene Pietropaoli for alerting me to the European Parliament’s draft proposal for a mandatory human rights due diligence Directive. The official title proposed is a Directive on Corporate Due Diligence and Corporate  Accountability). Parliament also proposes insertions in both Brussels Ia and Rome II. For the related issues see a study I co-authored on the Belgian context, with links to developments in many jurisdictions.

I do not in this post go into all issues and challenges relating to such legislation, focusing instead on a first, preliminary analysis of the conflicts elements of the proposal.

A first issue of note in the newly proposed Directive is the definitional one.  The proposal’s full title as noted uses ‘corporate due diligence and corporate accountability’. However in its substantive provisions it uses ‘duty to respect human rights, the environment and good governance’ and it defines each (but then with the denoter ‘risk’) in Article 3. For human rights risks and for governance risks these definitions link to a non-exhaustive list of international instruments while for the environment no such list is provided.

The proposed Directive points out the existence of sectoral EU due diligence legislation e.g. re timber products and precious metals, and suggests ‘(i)n case of insurmountable incompatibility, the sector-specific legislation shall apply.’ This is an odd way to formulate lex specialis, if alone for the use of the qualifier ‘insurmountable’. One assumes the judge seized will eventually be the arbitrator of insurmountability however from a compliance point of view this is far from ideal.

As for the proposed amendment to Brussels Ia, this would take the form of a forum necessitatis as follows:

Article 26a
Regarding business-related civil claims on human rights violations within the value chain of a company domiciled in the Union or operating in the Union within the scope of Directive xxx/xxxx on Corporate Due Diligence and Corporate Accountability, where no court of a Member State has jurisdiction under this Regulation, the  courts of a Member State may, on an exceptional basis, hear the case if the right to a fair trial or the right to access to justice so requires, in particular: (a) if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely related; or (b) if a judgment given on the claim in a third State would not be entitled to recognition and enforcement in the Member State of the court seised under the law of that State and such recognition and enforcement is necessary to ensure that the rights of the claimant are satisfied; and the dispute has a sufficient connection with the Member State of the court seised.

This proposal is a direct copy paste (with only the reference to the newly proposed Directive added) of the European Commission’s proposed forum necessitatis rule (proposed Article 26) at the time Brussels I was amended to Brussels Ia (COM (2010) 748). I discussed the difficulty of such a forum provision eg here (for other related posts use the search string ‘necessitatis’). The application of such a rule also provokes the kinds of difficulty one sees with A33-34 BIa (including the implications of an Anerkennungsprognose).

Coming to the proposed insertion into Rome II, this text reads

Article 6a
Business-related human rights claims
In the context of business-related civil claims for human rights violations within the value chain of an undertaking domiciled in a Member State of the Union or operating in the Union within the scope of Directive xxx/xxxx on Corporate Due Diligence and Corporate Accountability, the law applicable to a non-contractual obligation arising out of the damage sustained shall be the law determined pursuant to Article 4(1), unless the person seeking  compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the  damage occurred or on the law of the country in which the parent company has its domicile or, where it does not have a domicile in a Member State, the law of the country where it operates.

I called this a choice between lex locus damni; locus delicti commissi; locus incorporationis; locus activitatis. Many of the associated points of enquiry of such a proposal are currently discussed in Begum v Maran (I should add I have been instructed in that case).

A first obvious issue is that the proposed Article 6a only applies to the human rights violations covered by the newly envisaged Directive. It does not cover the environmental rights. These presumably will continue to be covered by Rome II’s Article 7 for  environmental damage. This will require a delineation between environmental damage that is not also a human rights issue, and those that are both. Neither does the proposed rule apply to the ‘good governance’ elements of the Directive. These presumably will continue to be covered by the general rule of A4 Rome II, with scope for exception per A4(3).

My earlier description of the choice as including ‘locus incorporationis’ is not entirely correct, at least not if the ‘domicile’ criterion is the one of Brussels Ia. A corporation’s domicile is not necessarily that of its state of incorporation and indeed Brussels Ia’s definition of corporate domicile may lead to more than one such domicile. Does the intended rule imply claimant can chose among any of those potential domiciles?

Locus delicti commissi in cases of corporate due diligence (with the alleged impact having taken place abroad) in my view rarely is the same as locus damni, instead referring here to the place where the proper diligence ought to have taken place, such as at the jurisdictional level in CJEU C-147/12 OFAB, and for Rome II Arica Victims. This therefore will often co-incide with the locus incorporationis.

Adding ‘locus activitis’ as I called it or as the proposal does, the law of the country where the parent company operates, clearly will need refining. One presumes the intention is for that law to be one of the Member States (much like the proposed Directive includes in its scope ‘limited liability undertakings governed by the law of a non-Member State and not established in the territory of the Union when they operate in the internal market selling goods or providing services’). Therefore it would be be best to replace ‘country where it operates’ with ‘Member State’ where it operates. However clearly a non-EU domiciled corporation may operate in many Member States, thereby presumably again expanding the list of potential leges causae to pick from. Moreover, the very concept of ‘parent’ company is not defined in the proposal.

In short, the European Parliament with this initiative clearly hopes to gain ground quickly on the debate. As is often the case in such instances, the tent pegs have not yet been quite properly staked.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

(3rd ed forthcoming February 2020).

 

 

 

On 14 August 2020, the Department of European and Comparative Procedural Law of the MPI Luxembourg met online with a special invitee, Steven Gee QC, joining actually from Hong Kong, where he was staying at the time.

Mr. Gee is the author of a treatise on, and entitled, Commercial Injunctions (Sweet & Maxwell, last edition 2016, a new updated one in the making). The book is mainly about UK law but at the end it addresses as well other jurisdictions. This is why Mr. Gee got in touch with the MPI (Prof. Burkhard Hess and Dr. Vincent Richard will contribute to the European part of the next edition of Commercial Injunctions), and how he ended up sharing with the researchers and MPI guests a two-hours talk on injunctions.

I thought his presentation and the following debate had been recorded but, unfortunately, it had not. Therefore, I cannot accurately report on the contents. What I can do, though, is to explain here an idea I had already in mind and was, to some extent, confirmed by Mr. Gee during the discussion.

It has to do with antisuit injunctions and the preliminary reference sent to the Court of Justice last December by the Court of Appeal (England & Wales), on the interpretation of Article 4(1) of the Brussels I bis Regulation (C-946/19). At the time I am writing these lines a settlement has been reached between the litigants in the main proceedings, and the request consequently withdrawn. A fact which strengthens my dismayed suspicion that the whole thing was a practical joke on the Court of Justice (but not only). Of course, I know I am exaggerating and, regarding the intentions of the referring court, wrong. This notwithstanding: a request relating to antisuit injunctions, i.e., to one of the most distinctive institutions of the common law tradition, already firmly rejected by the Court of Justice in ad intra situations; asking whether the injunction could (rather: had to) be mandatorily (no discretion!) granted on the basis of a crucial provision of a pivotal EU instrument [article 4(1) of the Brussels I bis Regulation], in ad extra situations (an invitation to indulge in “eurocentrism”?); sent to the Court of Justice barely one month before Brexit (and twelve months away from the end of the transitional period)? Some eyebrows have surely gone up.

The doubts of the national court regarding Article 4(1) of the Regulation read as follow:

whether the true effect of the Article is to give a right to every defendant who is domiciled in a Member State to be sued exclusively in the State of their domicile in all but the slender circumstances where that outcome is specifically excluded or some other outcome is permitted by the Judgments Regulation itself.

As a matter of fact, the Court of Appeal looked rather keen on answering in the affirmative [at 50]: ‘we acknowledge that [the antisuit injunction applicant’s] interpretation of the meaning and effect of Article 4(1) is a possible interpretation’.

The actual ground for referring the question to the Court of Justice had rather to do with the consequences of spousing such view [id. loc.]: ‘[…] but it is not one [interpretation] that we would wish to adopt in the present case unless required to do so’. Should Article 4(1) create a directly enforceable right, the Court of Appeal feared its breach would automatically lead to an antisuit injunction [id. loc.]: ‘[an]  extreme result[s] that would not be contemplated by an application of domestic law’.

In the case at hand, the Court of Appeal had already confirmed the first instance determinations in the sense that previous national case law on employment contracts, according to which Article 20(1) of the Brussels I Regulation and Article 22(1) of the Brussel I bis Regulation create a right protecting the employee against being sued in a third State by his employer, was not binding on it.

My experience with English practitioners and academics is that they do have a good knowledge and understanding of EU law. That Article 4(1) of the Brussels I bis Regulation is not meant to confer an individual right is something the referring court could have easily concluded itself, without asking Luxembourg.

We – scholars- tend to be thorough and go to the bottom of the arguments: legislative intention based on history (not just the very illustrative Jenard and Schlosser Reports, but, here, also the rich publication of GAL Droz on the Brussels Convention, and all those he quotes); text; system; object and purpose of the provision; legal comparison. But for the sitting judges to decide on the dispute at stake, a look at Article 4(1) in a language other than English, coupled with a comparison between the rationale of the provisions on employment contracts and of Article 4(1), should have been enough if they wanted to move forward keeping the reasoning sober.

On the occasion of the MPI’s meeting mentioned above, Mr. Gee’s stressed a factor of the proceedings before the Court of Appeal that may help understanding the situation; he highlighted the asymmetry between the parties to the dispute. Throughout the proceedings before the Judge, both parties had been represented by solicitors and by leading and junior counsel. Before the Court of Appeal it remained so regarding the antisuit injunction’s applicant, but not the defendant, who did neither attend nor was represented, due to, allegedly, financial inability. The Court had only the written submissions previously made by his legal team to resist the antisuit injunction. They may have been enough to convince the first instance Judge not to grant the injunction; but before the Court of Appeal, and against the (slightly) more sophisticated (and, by all means, radical) submissions of Mr Cohen QC on behalf of the applicant at the hearing, he probably needed to do better.

As indicated, the case will no longer keep the Court of Justice busy. My (strictly) personal view remains that the preliminary reference was a practical joke: on the Court of Justice, and on second thought also on the Court of Appeal. Both seem to have been strategically used by one of the litigants.

In any event, I expect academics to study further the questions referred in C-946/19. For sure, I do not see any individual right “hidden” in Article 4(1) of the Brussels I bis Regulation. But, contrary to some scholars’ views (A. Dickinson, C.M. Clarkson and J. Hill, following A. Briggs) I believe other provisions in the Regulation may be interpreted in that way: not because they were conceived with the purpose of conferring directly enforceable rights upon persons domiciled in a Member State, but because such understanding of the jurisdictional grounds would help ensuring that specific substantive EU law is effective also extraterritorially, where needed.

(NoA: MPI Department I “Referentenrunde” have been resumed on the usual weekly basis every Wednesday via Zoom. A series of lectures is foreseen for the fall; specific dates will be announced in due time through the MPI website. Events are open to all having an interest. Contact person: michalis.spyropoulos@mpi.lu)

Yesterday (30 September 2020), Belgium ratified the Hague Convention of 13 January 2000 on the International Protection of Adults, which will enter into force for Belgium on 1 January 2021.

Source:

here

I flagged [2020] EWHC 2191 (Ch) Virgin Atlantic (the plan in the meantime has been sanctioned in [2020] EWHC 2376 (Ch)) in an update of my earlier post on the Colouroz Investment Scheme of Arrangement.

Restructuring practitioners have been justifiably excited by this new addition to England’s regulatory competition in restructuring tourism.

In my many posts on Schemes of Arrangements (see in particular Apcoa with the many references to later cases in that post; and Lecta Paper), I have summarised the modus operandi: no firm decision on jurisdiction under Brussels Ia is made (it is by no means certain but scheme creditors have so far not taken much of a swipe seeing as they tend to accept the attraction of the debtor company continuing as  a going concern following the use of an English scheme). If at least one of the creditors is domiciled in England, it is considered sued and a defendant per Article 4 Brussels Ia. Other, non-England domiciled creditors are then pulled into English jurisdiction using the one anchor defendant per Article 8(1). Trower J extends that assumption to Restructuring Plans at 58 ff:

1. 1. 1. It is now well-established that an application for sanction of a Part 26 scheme is a civil or commercial matter and the reasoning seems to me to apply with equal force to a Part 26A restructuring plan. However, it has never been completely determined whether the rule laid down in Article 4(1) of the Regulation, that any person domiciled in an EU member state must (subject to any applicable exception) be sued in the courts of that member state, also applies to a Part 26 scheme, although the matter has been referred to and debated in a number of cases.

1. 1. 1. In the present case, I shall adopt the usual practice of assuming without deciding that Chapter II and, therefore, Article 4 of the Recast Judgments Regulation applies to these proceedings on the basis that Plan Creditors are being sued by the company and that they are defendants, or to be treated as defendants, to the application to sanction the scheme. If, on the basis of that assumption, the court has jurisdiction because one of the exceptions to Article 4 applies, then there is no need to determine whether the assumption is correct and I will not do so.

1. 1. 1. In the present case, the Company relies on the exception provided for by Article 8 of the Recast Judgments Regulation. By Article 8, a defendant who is domiciled outside a member state may be sued in that member state provided that another defendant in the same action is domiciled there and provided that it is expedient to hear the claims against both together to avoid risk of irreconcilable judgments resulting in separate proceedings. The consequence of this is that if sufficient scheme creditors are domiciled in England then Article 8(1) confers jurisdiction on the English court to sanction a scheme affecting the rights of creditors domiciled elsewhere in the EU, so long as it is expedient to do so, which it normally will be (see, for example, Re DTEK Finance Plc [2017] BCC 165 and [2016] EWHC 3563 (Ch) at the convening and sanctioning stages).

1. 1. and concluding at 61
      1. In the present case, the evidence is that at least one Plan Creditor from each class is domiciled in the jurisdiction. Perhaps most importantly, so far as in terms of Trade Plan Creditors, it is 90 out of 168. In my view, this is amply sufficient to ensure that the requirements of Article 8 are satisfied.’

Article 25 BIa jurisdiction is obiter dismissed at 62 for not all creditors have credit arrangements subject to English choice of court.

Restructuring Plans do have features which differ from Schemes of Arrangement and some of those do trigger different considerations at the recognition and enforcement level than have hitherto been the case for Schemes.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5. Note: 3rd of the Handbook is forthcoming (February 2021).

What is ‘habitual residence’ for the purposes of the EU regulations on family matters (succession included)? The questions, coupled with the one on how many habitual residences a person may have for the same purposes, is a known source of headaches for the national courts. In the last months, several requests for a preliminary ruling on the issue have been filed with the CJEU originating from different Member States, as if the judges had got into an agreement to ‘corner’ the Court in Luxembourg to try and
get once and for all (?) a helpful answer.

In the E.E. case (C-80/19, judgment of 16 July 2020), the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) asked the CJEU whether, for the purposes of Regulation No 650/2012 (the Succession Regulation), the habitual residence of the deceased can only be one or, on the contrary, a number of places of habitual residence in different States would be admissible. The referring court acknowledged the former to be the likely correct answer, but added ‘that position is not, however, expressly prescribed and there is [therefore] a need for greater clarity and explanation from the Court of Justice in that context’. It was indeed correct. Like the AG, the CJEU elaborated on how to the ‘one and only’ deceased’s habitual residence is to be determined, finding support in the recitals of the Regulation. The decision is reported and commented by Carlos Santaló in this blog.

Some days before the E.E. decision, on 30 June 2020, a request on the meaning of ‘habitual residence’ was lodged (C-289/20, IB), this time in relation to Regulation No 2201/2003 (Brussels II bis) . The question, from the Paris Court of Appeal, reads as follows: ‘Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of Regulation No 2201/2003, that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?’

The request is not yet available at curia.eu in a language other than French. A short summary would be that the spouses have different views on whether France is the habitual residence of IB (the husband); much of the discussion revolves around his intention to reside there. In this regard, IB explains that he has been carrying out his professional activities in France since 2010 and in a stable and sustainable manner since 15 May 2017; that he moved to Paris, in an apartment belonging to his father; that he leads a social life there, and that it is his wife’s refusal to come and live in France, although she stays there regularly, in the Parisian apartment or in a vacation home acquired in 2017, which led them to lead a parallel daily life. The wife (FA) replies that it was never agreed or envisaged that the family would settle in France; the family’s habitual residence was in Ireland, where the children were brought up; the husband never changed his residence in Ireland but only the address of his place of work. FA argues that the fact that IB has worked and received his income in France for more than six months is insufficient to characterize his habitual residence within the meaning of Article 3 of Regulation No 2201/2003, whereas he has continued to come to Ireland, to the family home, until the end of 2018; he continued to lead the same life there; he previously lived there and he consulted a lawyer in Ireland when the spouses considered, from September 2018, to divorce.

On 15 September 15 2020, the Audiencia Provincial (Court of Appeal) of Barcelona sent a request for a preliminary reference to the CJEU, also on the notion of ‘habitual residence’ of adults in Regulation No 2201/2003; the request is nonetheless broader, encompassing as well the Maintenance Regulation, and further aspects of both EU instruments. The Spanish order was reported in Prof. José Carlos Fernández Rozas’s blog on 25 September 2020, with a link to the official document in Spanish. I found it of big interest and have summarized the factual situation and the questions in English for the EAPIL, while waiting for the case to be given a file number and properly translated.

The litigants were married on 25 August 2010 at the Spanish Embassy in Guinea Bissau (Africa); the wife is a Spanish national, while the husband has Portuguese nationality. Their children have both Spanish and Portuguese nationality. The family resided in Guinea-Bissau from August 2010 until February 2015; they moved then to the Republic of Togo. They separated de facto in July 2018. Mother and children continue to reside in the matrimonial home; the husband moved to a bungalow, in the same country.

Both spouses work for the European Commission at the Delegation in Togo, as contractual agents. According to the evidence submitted contractual agents are granted diplomatic status in the country of destination, whereas in the EU Member States they are considered as EU officials only (NoA: this point seems to be nonetheless contested).

On 6 March 2019, the legal representative of the wife lodged an application for divorce with the Spanish courts. She asked as well for the dissolution of the matrimonial property regime, for the adoption of measures regarding the custody of the children, for maintenance for the children, and for the exclusive use of the family home in Togo. The Spanish Court of First Instance dismissed the application for divorce on the basis of lack of jurisdiction.

The wife appealed against the order before the Audiencia Provincial in Barcelona. The following questions (freely translated by myself) are now before the CJEU:

1)          How should the concept of ‘habitual residence’ in Article 3 of Regulation No 2201/2003 and on Article 3 of Regulation 4/2009 (the Maintenance Regulation) be interpreted in relation to nationals of Member States who remain in a third State by reason of the functions they are entrusted with as contractual agents of the EU, and who, in that third State, are accorded the status of diplomatic agents of the EU due to the fact that their presence there is linked to the exercise of the functions they perform for the Union?

2)          Is the determination of the habitual residence of the minor children of the couple under Article 8 of Regulation No 2201/2003 affected in any way where, for the purposes of Article 3 of Regulation No 2001/2003 and Article 3 of Regulation No 4/2009, the determination of the spouses’ habitual residence is dependent on their status as contractual agents of the European Union in a third State?

3)          Should the minor children be deemed not to have their habitual residence in the third State, can account be taken of the link between the nationality of the mother, her residence in Spain prior to the celebration of the marriage, the Spanish nationality of the minor children and their birth in Spain for the purposes of determining habitual residence under Article 8 of Regulation No 2201/2003?

4)          If it is established that neither the habitual residence of the parents nor that of the children is in a Member State, and given that under Regulation No 2201/2003 no other Member State would be competent to settle the claims, does the fact that the defendant is a national of a Member State preclude the application of the residual rules of jurisdiction under Articles 7 and 14 of Regulation No 2201/2003?

5)          Should it be established that neither the habitual residence of the parents nor that of the minors is in a Member State, for the purposes of determining the maintenance of the children, how is the forum necessitatis rule of Article 7 of Regulation No 4/2009 to be interpreted and, in particular, which elements are needed to establish that proceedings cannot reasonably be filed or carried out in a third country with which the dispute has a close relationship (in this case, Togo)? Is it compulsory, on the other hand, to demonstrate that an attempt at bringing proceedings in that State has been made, with a negative outcome? Moreover, would the nationality of any of the litigants be considered a ‘sufficient connection’ to the Member State (for the purposes of Article 7 of the Maintenance Regulation)?

6)          In a situation like the one at stake, where the spouses have strong ties with Member States (nationality, former residence) would it be contrary to Article 47 of the European Charter of Fundamental Rights to conclude, in application of the rules of the Regulations, that no Member States has jurisdiction to adjudicate?

Clearly the CJEU has a chance to elaborate; good that the national authorities keep on asking.

report-on-the-establishment-of-an-eu-mechanism-on-democracy-the-rule-of-law-and-fundamental-rightsDownload

The Committee on Civil Liberties, Justice and Home Affairs of the European Parliament has released today its report on the establishment of an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights (A9-0170/2020). The rapporteur is Michal Šimečka.

It is attached to this post.

In Marriott v Fresson & Ors [2020] EWHC 2515 (Comm) at issue in the jurisdictional challenge is whether Articles 24(2) or (3) Brussels Ia are engaged in litigation essentially seeking to uphold commitments included in two contracts expressly governed by English law and with an exclusive jurisdiction clause in favour of the courts of England. The goal of the agreements being the transfer of shares in Spanish-domiciled corporation (PEV), the question is whether they ‘have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the validity of the decisions of their organs’ (A24(2)) alternatively ‘have as their object the validity of entries in public registers’ (A24(3)).

Toledano DJ referred ia to Koza, Zavarco, and C-144/10 BVG and held that the principal object of the proceedings is the enforcement of shareholder agreements.

Even the defendants, in their jurisdictional challenge, do not suggest that the proceedings directly call into question the validity of any specific decision of PEV organs. Rather, they contend that the proceedings are principally concerned with a claim to the legal ownership of shares in PEV which impacts upon the composition of the shareholders of PEV and prospectively therefore upon the validity of decisions of the shareholders as an organ of that company.

That was a bit optimistic for Brussels Ia’s exclusive jurisdictional rules quite clearly do not aim at claims whose eventual effect might engage the heads of jurisdiction listed in them. The distinction however is not always easy to make. Claimants may creatively formulate their claims so as they do not fall within A24 (a tactic used particularly in A24(4) intellectual property rights cases, hence requiring the judge to decide what the true object of the proceedings might be; see e.g. Chugai v UCB).

Marriott v Fresson clearly differs from Ferrexpo, which is discussed in the judgment, where validity of the resolutions of the company’s general meeting of shareholders was the direct and specifically formulated claim engaged Article 24 which was applied reflexively.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6, Heading 2.2.6.5.

Challenge to jurisdiction on the basis of Articles 24(2) and (3) Brussels Ia. Fails. Principal object of the proceedings held to be the enforcement of shareholder agreements. https://t.co/479ryb3lV5

— Geert Van Calster (@GAVClaw) September 25, 2020

Membership

On 7 September 2020, Nicaragua and Thailand were issued with certificates confirming an affirmative vote in favour of their respective admissions as Members of the HCCH, following a six-month voting period which ended on 4 September 2020. Both Nicaragua and Thailand are now each invited to deposit an instrument of acceptance of the HCCH Statute to become a Member of the HCCH.

Conventions & Instruments

On 12 September 2020, the HCCH 1965 Service Convention entered into force for Austria. It currently has 78 Contracting Parties. More information is available here.

On 16 September 2020, Serbia signed the HCCH 2007 Child Support Convention. The next step for it to enter into force is for Serbia to deposit its instrument of ratification. More information is available here.

On 28 September 2020, the United Kingdom deposited its instrument of accession to the HCCH 2005 Choice of Court Convention and its instrument of ratification to the HCCH 2007 Child Support Convention. The United Kingdom is currently bound by both Conventions by virtue of the approval of the EU, and they will continue to be applicable until 31 December 2020. Both Conventions will then enter into force on 1 January 2021, ensuring a seamless continuity in operation. More information is available here.

Publications & Documentation

On 2 September 2020, the Proceedings of the Twenty-First Session were published online. The series contains all the minutes and working documents of the Twenty-First Session of the HCCH, during which the HCCH 2007 Child Support Convention was concluded. It also includes relevant documents from the preparatory Special Commissions and the preliminary studies carried out by the Permanent Bureau. It is published in bilingual form, with English and French texts appearing side by side. It is available for download here.

On 22 September 2020, the Explanatory Report on the HCCH 2019 Judgments Convention was approved following a two-month silent approval procedure during which no Member of the HCCH raised an objection. This report, prepared in both English and French, reflects the discussions and consensus-based negotiations leading to the adoption of the Convention, and, although non-binding in nature, will serve as an important and authoritative resource in the implementation, operation and interpretation of the HCCH Judgments Convention. More information is available here.

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

On 28 September 2020, the United Kingdom of Great Britain and Northern Ireland deposited its instrument of accession to the HCCH Convention of 30 June 2005 on Choice of Court Agreements (2005 Choice of Court Convention) and its instrument of ratification to the HCCH Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (2007 Child Support Convention). The full text of the HCCH’s announcement is here.

Guillaume Payan (University of Toulon, France) edited a Compendium of the Hague Conventions and Protocols enriched by case law from Belgian, French, Luxembourg and Swiss jurisdictions, as well as European jurisdictions (CJUE and ECtHR), published by Bruylant (Conventions et Protocoles de La Haye annotés : Recueil annoté avec les jurisprudences des juridictions belges, françaises, luxembourgeoises et suisses ainsi que des juridictions européennes).

The author has provided the following abstract in English:

Established 125 years ago, the main goal of the Hague Conference on Private International Law (HCCH) is to work for the progressive unification of the private international law rules. Against that background, international conventions are negotiated and, by now, 40 conventions have already been adopted. The most recent is the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

This book brings together all of these Conventions and Protocols, enriched by numerous doctrinal references and more than 600 case law references from Belgian, French, Luxembourg and Swiss jurisdictions.

Are also included judgments of the Court of Justice of the European Union and the European Court of Human Rights. The European Courts also have to integrate the Hague Conventions into their reasoning.

Finally, the book contains practical information on the Contracting Parties to the various conventions and on any declarations formulated by the Contracting Parties, as well as on the Central Authorities designated for the proper application of the conventions.

This work is prefaced by Christophe Bernasconi (Secretary General of the Hague Conference).

Contributors to the book include : Lora Arnould (Lawyer in Brussels, Belgium), Aude Berthe (Judge in Liège, Belgium), Prof. François Bohnet (University of Neuchâtel, Switzerland), Catalina Constantina (University of Neuchâtel, Switzerland), Carmela -Milena Liccardo (Lawyer in Brussels, Belgium) and Prof. Séverine Menetrey (University of Luxembourg, Luxembourg)

The book’s table of contents can be found here. For further information see here.

Yesterday (28 September 2020), the United Kingdom “deposited its instrument of accession to the HCCH Convention of 30 June 2005 on Choice of Court Agreements […] and its instrument of ratification to the HCCH Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance”. The United Kingdom is currently bound by these conventions “by virtue of the approval of the European Union. These new instruments of accession and ratification ensure continuity in the application of these Conventions after the conclusion of the transition period following the withdrawal of the United Kingdom from the EU. Both Conventions will continue to be applicable to and in the United Kingdom until 31 December 2020, in accordance with the Withdrawal Agreement. The 2005 Choice of Court Convention and 2007 Child Support Convention will then enter into force for the United Kingdom on 1 January 2021”.

Source: here

Celebrating the 40th birthday of the Austrian Private International Law Act, scholars from numerous European countries have contributed to a festschrift of more than 400 pages edited by Florian Heindler (Sigmund Freud University Vienna). The essays focus on the possible reform of the Austrian PIL Act, its value, and its role as a national PIL Codification influenced and partly derogated by EU legislation. The contributions from Andrea Bonomi (in English), Axel Flessner, Fabienne Jault-Seseke, Thomas John, Caroline Sophie Rupp, Thomas Bachner, Ena-Marlis Bajons Wolfgang Faber, Edwin Gitschthaler, Florian Heindler, Helmut Heiss, Brigitta Lurger, Martina Melcher, Andreas Schwartze, and Bea Verschraegen deal with the general part of the PIL act and specific issues such as conflict of laws in family, property, succession, and company law matters.

The table of contents can be accessed here.

Haris Meidanis’ new article on international mediation has just appeared at the current issue (2020/2) of the Journal of Private International Law under the title Enforcement of mediation settlement agreements in the EU and the need for reform.

In this article he discusses the current status of EU law on cross-border enforcement of Mediated Settlement Agreements (MSAs) focusing mainly on non-family law matters. Directive 2008/52 states the form an MSA may take under the national legislation, as the basis of cross-border enforcement. Given (a) the polyphony of national legislation as to the form an MSA may take for enforcement purposes and (b) the meaning of “judgment” under EU private international law and the Solo Kleinmotoren case, it is suggested that a level playing field as to cross-border enforcement of MSAs in the EU is not guaranteed. Further, it is suggested that MSAs constitute the outcome of a third distinct dispute resolution category, next to judgments and awards, and are also distinct to contracts. It is concluded that a reform of EU law seems necessary in order to mitigate the above lack of an equal level playing field and to take into account the special character of MSAs.

This is the third recent article on international mediation by the same writer, following the one published with Arbitration (the law review of CIArb) on Vol 85-Feb 2019, pp. 49-64, under the title International Enforcement of Mediated Settlement Agreements – Two and a half models, and the one published with ICC’s Dispute Resolution Bulletin (Issue 1, 2020, pp. 41-52) under the title International Mediation and Private International Law.

The CIArb article presents the various models regarding international enforcement of Mediated Settlement Agreements (namely the ones of the Singapore Convention of 2019 of the EU and of the New York Convention of 1958 (the “half model”) and makes the related comparison, while the ICC article presents the basic issues that may appear in an international mediation, from a PIL perspective.

The Organisation for the Harmonisation of Business Law in Africa (OHADA) has selected a team to prepare a draft Uniform Act of Private International Law. After a 10 month selection process, it has chosen a team led by the Paris office of Shearman & Sterling (see the announcement of the firm here).

The  mandate consists of drafting a Uniform Act on conflict of laws, conflicts of jurisdictions and the circulation of judicial and extrajudicial documents. The Act should contain an exhaustive set of PIL rules, which will be directly applicable in the 17 OHADA States and replace any local PIL rules currently applicable in those States. This would be the tenth Uniform Act adopted by OHADA.

OHADA was established in 1993 with the goal of harmonizing the business laws of its member States in order to foster economic development in the region. It comprises States mostly from francophone Central and Western Africa.

The team is composed of attorneys from the Paris office of the firm, but also several academics and practitioners from France and OHADA states (Cameroon and Ivory Coast, in particular).

One is hopeful that the team will want to identify the best solutions for Africa not only by considering the recent codifications of PIL drafted in French (Belgium Code of PIL, Swiss PIL Act, Quebec legislations, in particular), but also the PIL of other legal traditions, including those of neighbouring states such as Nigeria and Ghana.

The author of this post is Lorenzo Acconciamessa, a PhD candidate at the University of Palermo and a teaching assistant at the Catholic University of the Sacred Heart in Milan.

By an order of 29 April 2020 the First Chamber of the Italian Supreme Court asked the Italian Constitutional Court to review the constitutional legitimacy of the combined operation of the various Italian rules of private international law governing the (non-)recognition of a foreign birth certificate attesting the existence of a parent-child relationship between a child born abroad by resorting to gestational surrogacy and his intended parent. In 2019, the Joint Chambers of the Supreme Court ruled that, on a proper interpretation of the Italian provisions of private international, such recognition ought to be denied on the ground that it would offend public policy. Put shortly, by its order of April 2020, the First Chamber of the Supreme Court asked the Constitutional Court to assess whether the above provisions, as interpreted by the Joint Chambers in the ruling of 2019, are consistent with the Italian Constitution.

One of the key issues that the Constitutional Court will need to address is whether, and to what extent, international human rights law – notably as expressed in the European Convention on Human Rights (ECHR) and the UN 1989 Convention on the Rights of the Child (CRC) – affects the ability of State’s authorities to refuse the recognition of personal statuses and family relationships on grounds of public policy, thereby precluding the cross-border continuity of the concerned persons’ family status validly and effectively created abroad. Indeed, pursuant to Article 117, paragraph 1, of the Italian Constitution, legislation cannot infringe the international obligations of Italy. In this regard, the Constitutional Court made clear that in the event of a conflict between a piece of domestic legislation and the obligations arising from an international treaty in force for Italy, the former must be considered to be unconstitutional and accordingly declared void.

The Facts

The case concerned a same-sex couple of Italian men who got married in Canada. Their marriage was recognised in Italy as a registered partnership, pursuant to Article 32-bis of the Italian Statute on Private International Law. They subsequently had a child in Canada by resorting to surrogate motherhood. Surrogacy is permitted in Canada, provided that the surrogate mother acts freely and altruistically. The child’s birth certificate had been recognised and recorded in Italy following a decision of the Registrar of the Municipality of Verona. However, the certificate merely mentioned the spouse having a biological bond with the child. The couple seised the Supreme Court of British Columbia to have the birth certificate rectified: they wished that both – the biological and the intended fathers – be referred to as the parents of the child. Their application was successful. The couple then requested that such rectification be recognised in Italy. The Registrar, however, dismissed the request, arguing that recognition would be at variance with the Italian public policy.

Determining the Extent of Public Policy: The Joint Chambers’ Approach

On several occasions, in the past, the Italian Supreme Court restricted public policy to such fundamental values as are shared by the international community. On those grounds, the First Chamber ruled in 2016 that the public policy defence could not be raised to prevent the recognition of a foreign birth certificate attesting the family relationship between a child and his two mothers (the biological one, who carried on the pregnancy, and the genetical one, who had donated the ovum). Public policy, the Court argued, encompasses fundamental principles enshrined in the Italian Constitution as well as in supranational and international human rights instruments by which Italy is bound. The best interests of the child, and his right to personal and social identity, are then to be considered as public policy principles.

According to this view, the mere incompatibility between foreign judgments or public acts and domestic mandatory provisions is not enough to trigger the public policy defence. The same approach was followed by the Court of Appeal of Venice in the case that the Italian Constitutional Court is now called upon to consider. In particular, the Court of Appeal submitted that the fact that Italian law fails to make provision for same-sex marriage and for the attribution, to both the parties of a same-sex couple, of the parental status over a child born through medically assisted procreation, is not, in itself, evidence of the existence of a corresponding public policy principle. The statutes providing for such rules, indeed, are mere expression of the legislature’s political discretion.

However, the State Attorney was not satisfied by the judgment of the Court of Appeal and moved to have the ruling reviewed by the Supreme Court. He argued that the recognition of the Canadian judgment would be in clear breach of the Italian legislation on filiation and medically assisted procreation and, as a consequence, at odds with the public order of Italy. The State Attorney, in particular, invoked a different conception of the public policy, as adopted by the Joint Chambers of the Supreme Court.

And indeed, in 2019 the Joint Chambers remarked that other principles of the forum must be taken into account when determining the scope of public policy, in addition to the principles arising from the Constitution and international instruments. Domestic ordinary legislation may be seen as providing evidence of the fundamental policies of the Italian legal order as well, namely where it implements the principles enshrined in the Constitution.

According to that approach, while the recognition of the family relationship between the child born under a surrogacy arrangement and the intended biological father – through the recording of the birth certificate – is justified by the existence of a biological relationship, the recording of the part of the certificate mentioning as parent the merely intended (non-biological nor genetic) father would be at odds with the Italian (criminal) prohibition of gestational surrogacy arrangements, provided for in Article 12, paragraph 6, of the Italian Statute on Medically Assisted Procreation. Such regulation is deemed by the Joint Chambers to implement constitutional principles concerning the protection of the dignity of the woman and, consequently, to express a public policy principle. In the Joint Sections’ view, such a statement is imposed by an incontestable appreciation of the legislator and by the Constitutional Court’s case-law. As a consequence, judges would be precluded from substituting their own assessment on this matter.

The Joint Chambers added that the protection of the (best) interests of the child, in any case, would be guaranteed by the possibility, for the intended, non biological parent, to resort to the “adoption in particular cases”, pursuant to Article 44, paragraph 1, of the Italian Statute on Adoption. It is a sort of last resort clause allowing for recognition of the emotional bond between the child and the intended parent, when he/she is also the biological parent’s spouse, or, in any case, provided that the relationship has been established as a social reality. The Joint Chambers tried to frame their approach within the European Court of Human Rights’ (ECtHR) doctrine of the margin of appreciation. In particular, they considered that Italy had already complied with ECHR standards by providing full recognition of the child’s relationship with the biological parent. By contrast, in the absence of a biological link with the intended parent, State’s authorities would retain a wide margin of appreciation in choosing the appropriate mechanism for assuring the establishment of a legal relationship comparable (not identical) to natural filiation.

The ECtHR Approach and the Issue of the States’ Margin of Appreciation

The Joint Chambers’ approach is not in itself at odds with the ECHR standards, at least as they were standing at the moment of the 2019 ruling. In the Strasbourg judges’ opinion, the right to personal identity, enshrined in Article 8 ECHR, may imply a right to the cross-border continuity of personal statuses and family relationships created abroad (see Marongiu Buonaiuti and Baratta). And indeed, non-recognition of family statuses validly and effectively created abroad interferes with the right to private and family life. The case at hand fulfils the conditions required under Article 8 ECHR to be entitled to that right: (1) from a formal point of view, the family tie has been validly and legally created before seeking its recognition; (2) from a substantial point of view, the family relationship has been established a social reality, having the child lived with the biological and the intended father since he was born. Moreover, the case involves essential interests of a child, which should be a primary consideration of the State (Neuliger and Shuruck, para. 135).

According to the Court’s well-established case-law, however, if the interference is prescribed in accordance with the law, pursues a legitimate aim and is “necessary in a democratic society” for achieving it, it can be defined as legitimate. Such right might be limited by applying the public policy clause, which is a rule of law aimed at protecting the essential interests (and values) of the State. States enjoy a margin of appreciation in striking such a fair balance between States’ interests and individuals’ rights, that, nevertheless, has been progressively restricted by the ECtHR.

In Negrepontis-Giannisis the Court ruled that the refusal on public policy grounds to recognize an adoption pronounced (in 1984) by a Court in the U.S. between an adult and his uncle, a bishop of the Orthodox Church, violated Article 8. A few years later, the Court asserted in Paradiso and Campanelli that the public policy defence cannot be resorted to as a sort of “charte blanche for any measure, since the State ha[s] an obligation to take the child’s best interests into account irrespective of the nature of the parental link, genetic or otherwise” (para. 80). The Grand Chamber reversed the judgment because it considered that no family relationship existed in the considered case. Therefore, it was unnecessary to determine whether the interference produced by the public policy defence was legitimate, given that there was no right to interfere with.

In two well-known cases concerning the recognition of the family relationship between the child born under a surrogacy arrangement and the biological parent, the ECtHR considered that, even when a State is invoking the international public policy exception, the Court “must, however, verify whether in applying that mechanism … the domestic courts duly took account of the need to strike a fair balance between the interest of the community in ensuring that its members conform to the choice made democratically within that community [prohibiting gestational surrogacy arrangements] and the interest of the applicants – the children’s best interests being paramount – in fully enjoying their rights to respect for their private and family rights” (Labassee, para. 63 and Mennesson, para. 84). It then concluded that the children’s right to personal identity– which involves the right to have their family relationship with the (intended) biological or genetic parent recognized – trumped the State’s interests in protecting those it considers as fundamental values of the fore. According to the Court, the State had to grant the recording of the birth certificate for, at that time, no valid alternatives existed, according to the case-law of the French Court of Cassation, for establishing such a family relationship.

As for the family relationship between the child born under a gestational arrangement and the (merely) intended (non biological nor genetic) parent, the ECtHR expressed its views in the first advisory opinion, delivered, pursuant to Protocol No. 16 to the ECHR, on 10th April 2019. Indeed, following the 2014 judgment in the Mennesson case, the French Cour de Cassation asked the Grand Chamber whether the State had, under the ECHR, an obligation to recognize the family relationship also with respect to the intended parent and whether, in this case, allowing the adoption of the child sufficed. As for the first question, the Court considered that «the general and absolute impossibility of obtaining recognition of the relationship … is incompatible with the child’s best interests» (para. 42). The Court did not distinguish between the fact of the intended mother being or not also the genetic or biological mother As for the second question, the Court stipulated that the case required a fair and appropriate balancing of interests. The invocation of the public policy clause – with the aim of denying direct recognition of the foreign birth certificate or judgment – would be legitimate, in the light of the State’s margin of appreciation, provided that, in any case, adoption or other available proceedings constitute “an effective [alternative] mechanism […], enabling the relationship to be recognized” (para. 54). Such a mechanism, in the Court’s opinion, should be appropriate (guaranteeing an effective recognition of parent-child relationship), rapid, and should allow for “an assessment by the courts of the child’s best interests in the light of the circumstances of the case” (ibidem). Moreover, recognition, whatever the legal instrument resorted to, must intervene not after its effective instauration as a social reality.

The Approach of the Supreme Court’s First Chamber

Although the ECtHR’s advisory opinion is not legally binding, the First Chamber of the Supreme Court in the 2020 Order considered it had to uphold its findings. It then questioned the Joint Chambers arguments concerning the public policy defence by highlighting, inter alia, that it is at odds with the developments in the ECtHR’s case law, at least for two reasons. On the one hand, the Court considered it is illegitimate to qualify the prohibition of surrogacy as public policy, and to make it automatically prevail over the best interests of the child, without an appropriate case-by-case evaluation. For this end, it should be assessed whether effective alternatives exist for upholding the best interests of the child. On the other hand (and consequently), the Italian legal system is currently at odds with the ECHR for the “adoption in particular cases” do not qualify as an effective alternative mechanism, in the abovementioned meaning.

The First Chamber relied on a combination of domestic and international human rights sources to shape the extent of public policy and concluded that the principle of the best interests of the child is part of the Italian international public policy. The application of the public policy exception then requires a balancing of interests between, on one hand, the child’s interest in having his/her relationship with the intended parent recognized and, on the other hand, the State’s interests in avoiding recognition of acts which are perceived as incompatible with domestic fundamental values. According to the First Chamber, such a balancing assessment might lead to the application of a foreign law or the recognition of foreign judgments (or public document) even in violation of domestic (ordinary) rules, provided that the supreme principles of the legal order – in particular, those concerning the fundamental rights and human dignity – are not violated.

The “adoption in particular cases” would not entail such a fair balance, for it does not create a full parent-child relationship, it requires a time-consuming and complex proceeding, exposing the child’s to a period of incertitude, and is conditioned upon the parties’ will. As for the content of the established relationship, it is not comparable to natural filiation, given that it does not involve family bonds between the child and the adopter’s relatives nor succession rights. And while the State’s margin of appreciation under the ECHR, the Supreme Court argued, is wide as regards the means by which family relationships are recognised, it is not as wide as regards the “intensity” and content of such relationships.

For all the above reasons, the First Chamber of the Italian Supreme Court asked the Constitutional Court whether the Joint Sections’ approach is constitutionally legitimate, also, and in particular, in the light of the State’s obligations arising from the ECHR and the CRC.

One should also consider that the “downgrading” of the family relationship through the “adoption in particular cases”, beyond being illegitimate in light of the constitutional principle of the unity of the status filiationis irrespective of the modality and circumstances of the child’s conception and birth, would also infringe the standards that have been recently clarified by the ECtHR.

Indeed, two months after the order of the First Chamber the ECtHR delivered its judgment in D. v. France. The Court implicitly confirmed the necessity of a full legal recognition of the intended parent-child relationship, although it admitted that the methods for achieving that aim can be determined by the State in the exercise of its margin of appreciation. It means that such recognition must not necessarily be achieved through the recording of the birth certificate, provided that the State guarantees and effective and rapid recognition. The ECtHR indeed concluded that the refusal to record the birth certificate of a child born in Ukraine through a gestational arrangement as long as it mentioned the intended mother – who was also the genetic mother – as the legal mother, did not violate Article 8 ECHR. In the Court’s reasoning, the French Cour de Cassation had already confirmed possibility for the (intended) mother to adopt her spouse’s child – for the birth certificate had been recorded in respect of the intended biological father – by way of full adoption. In the Court’s view, that possibility sufficed in order to establish an effective legal parent-child relationship. And indeed, full adoption is pronounced through a rapid proceeding (para. 67) and produces « des effets de même nature que la transcription de l’acte de naissance étranger s’agissant de la reconnaissance du lien de filiation entre l’enfant et la mère d’intention » (para. 66). The case seems then to confirm, a contrario, the Italian First Chamber’s argument: the denial to record the birth certificate is legitimate as long as an alternative mechanism enabling the establishment of a full parent-child relationship exist. Therefore, in Italy, where full adoption is not allowed in the same circumstances, the recording of the birth certificate seems the last valid alternative.

Thoughts and Perspectives

The approach of the First Chamber is commendable from an inter-systemic point of view, for it gives due relevance to the ECtHR approach. In this regard, one should also consider that France already complied with the ECtHR recommendation, given that the intended parent can resort to full adoption. Moreover, in the Mennesson case the Court de Cassation finally allowed the recognition of the parent-child relationship through the recording the foreign birth certificate which mentioned the intended mother as the legal mother (see Arrêt n. 648 P+B+R+I). Given the circumstances of the case, in fact, the Court considered that, following 15 years of judicial proceedings, the best interests of the child required an immediate recognition of the relationship, without imposing to the intended mother the institution of an adoption proceeding.

However, it is unlikely that the Italian Constitutional Court will conclude that non-recognition amounts to a violation of the Constitution. In fact, the Court itself ruled in the past that gestational arrangements violate the woman’s dignity and that, in any case, the adoption in particular cases is an adequate alternative to the (full) recognition of the parent-child relationship (Judgment No. 272 of 2017). It has also ruled against same-sex filiation through medically assisted procreation (Judgment No. 221 of 2019).

The relevant issue will thus concern the parameter of constitutionality arising from Article 117 of the Italian Constitution. Pursuant to that provision, as interpreted by the Constitutional Court since the twin Judgments Nos 348 and 349 of 2007, the legitimacy of ordinary legislation is also assessed against such international treaties as are in force for Italy. The Constitutional Court is then, first of all, called to assess whether the developments in the ECtHR’s case-law have already restricted the State’s margin of appreciation in respect of the recognition of the family relationship between the child born abroad under a surrogacy arrangement and the intended parent.

However, the late approach of the Constitutional Court has mitigated to idea of the prevalence of international principles over national ones (Judgment No. 269 of 2017) and has considerably impacted the extent of the binding nature of ECtHR’s judgments for national judges (Judgment No. 49 of 2015). It is then possible that the Constitutional Court will stipulate that the Constitution prevails over those international obligations. In fact, should the Constitutional Court conclude that the absence of suitable alternatives actually precludes Italian authorities, in the light of the ECHR, from invoking the public policy clause, it is also possible that the constitutional judges will invoke the doctrine of the “counter-limits”, although that doctrine, as for now, has been invoked only in relation to customary international law and European Union law. In particular, it has been invoked by the Constitutional Court (Judgment No. 238 of 2014), with respect to the dispute between Italy and Germany which arose when the Italian Supreme Court ruled that Germany was not entitled to immunity from Italian jurisdiction in civil proceedings where the claimants pleaded redress for serious human rights violations perpetrated by the Third Reich in Italy during World War II. The Constitutional Court concluded that respect for international obligations of the State – namely, the customary rule on State immunity as well as the judgment of the International Court of Justice which had condemned Italy to uphold such rule – could not extent to the point of infringing the “supreme” principles enshrined in the Constitution.

In the present case, there is the possibility that the Constitutional Court will conclude that the prohibition of surrogacy arrangements actually implements fundamental constitutional principles that cannot be trumped by ECHR obligations. And given that treaty provision, by definition, must respect constitutional provisions, the Court could also come to the same conclusion without invoking the counter-limits doctrine.

Should the Constitutional Court reject, for that or other reasons, the referral, the First Chamber would be obliged to apply the current interpretation of the public order defence, as stipulated by the Joint Chambers. In this case, the couple might then apply to the ECtHR, seeking a declaration that Italy violated Article 8 ECHR.

In conclusion, while the First Chamber is trying to engage in a dialogue with the ECtHR and to uphold its findings in the Italian legal order, the case also prospects the possibility of a direct clash between the European Court of Human Rights and the Italian Constitutional Court, concerning a very sensitive and ethical issue. Given that it is quite unlikely that the Parliament would opt for a reform of the legislation to comply with the ECHR standards, the Constitutional judgement will decide whether Italy will be in a systemic and persistent situation of breaching the ECHR.

By Zheng (Sophia) Tang

1 Anti-suit Injunctions issued in Huawei v Conversant and Xiaomi v Intel Digital

Chinese courts have issued two anti-suit injunctions recently in cross-border patent cases. The first is the Supreme Court’s ruling in Huawei v Conversant, (2019) Zui Gao Fa Zhi Min Zhong 732, 733 and 734 No 1. (here) Huawei, a Chinese telecom giant brought an action on 25 Jan 2018 in Jiangsu Nanjing Intermediate Court requiring determination of FRAND royalty for all Chinese patents held by Conversant that is essential to 2G, 3G and 4G standard (standard essential patent or ‘SEP’). Conversant brought another action in Düsseldorf, Germany on 20 April 2018 claiming Huawei infringed its German patents of the same patent family. On 16 Sept 2019, the Chinese court ordered a relatively low rate pursuant to Chinese standard and Conversant appealed to the Supreme Court on 18 Nov 2019. On 27 Aug 2020, the German Court held Huawei liable and approved the FRAND fee proposed by Conversant, which is 18.3 times of the rate determined by the Chinese court. Pursuant to Huawei’s application, the Chinese Supreme Court restrained Conversant from applying the German court to enforce the German judgment. The reasons include: the enforcement of the Düsseldorf judgment would have a negative impact on the case pending in Chinese court; an injunction is necessary to prevent irreparable harm to Huawei; the damage to Conversant by granting the injunction is significantly smaller than the damage to Huawei if not granting injunction; injunction will not harm public interest or international comity.

On 9 June 2020, Chinese company Xiaomi brought the proceedings in the Wuhan Intermediate Court requesting the determination of the global FRAND rate for SEPs held by the US company, Inter Digital. On 29 July, Intel Digital sued Xiaomi in Delhi High Court in India for infringement of Indian patents of the same patent family and asking for injunction. The Wuhan Intermediate Court ordered Inter Digital to stop the injunction application in India and prohibited Intel Digital from applying injunctions, applying for the determination of FRAND rate or enforcing junctions already received in any countries. (Xiaomi v Intel Digital (2020) E 01 Zhi Min Chu 169 No 1) The court provides reasons as follows: Inter Digital intentionally brought a conflicting action in India to hamper the Chinese proceedings; the Indian proceedings may lead to judgments irreconcilable to the Chinese one; an anti-suit injunction is necessary to prevent irreparable harm to Xiaomi’s interests; an anti-suit injunction will not harm Intel Digital’s legitimate interests or public interests.

2 Innovative Judicial ‘Law Making’ to Transplant Foreign Law

These two cases are interesting in that they open the door for the courts to ‘make law’ by providing Chinese legislation innovative interpretation. Chinese law does not explicitly permit the courts to issue anti-suit or anti-arbitration injunctions. Article 100 of the Civil Procedure Law of China permits Chinese courts to order or prohibit the respondent to do, or from doing, certain actions, if the respondent’s behaviour may lead to the difficulty to enforce the judgment or cause other damages to the other party. But this act preservation provision was generally used only in the preservation of property, injunction of infringing actions, or other circumstances where the respondent’s action may directly cause substantive harm to the applicant’s personal or proprietary rights. It has never been applied as the equivalent to anti-suit injunctions. The ‘Provisions of the Supreme People’s Court on Several Issues concerning the Application of Law in Cases Involving the Review of Act Preservation in Intellectual Property Disputes’ (No. 21 [2018] of the Supreme People’s Court) enforced from 1 Jan 2019 did not mention the court’s competence to issue anti-suit injunction. These two judgments provide innovative interpretation to Art 100 by extending act preservation measures to cover anti-suit injunction.

It is important to note that anti-suit injunction is a controversial instrument used to combat the conflict of jurisdiction and forum shopping. It is not issued frequently or lightly. Instead, there is a high threshold to cross. In England, for example, an anti-suit injunction can be ordered only if the foreign proceedings are vexatious or oppressive and England is the natural forum, (Airbus Industrie GIE v Patel [1999] AC 119) or the foreign proceedings would breach a valid exclusive jurisdiction or arbitration clause between the parties. (The “Angelic Grace”, [1995] 1 Lloyd’s Rep. 87) In both cases, neither courts justify China is a natural forum. Such justification may be more difficult in disputes concerning foreign patent due to the territoriality of patent.  Furthermore, foreign proceedings are not oppressive just because they award higher rate to the parent holder, which is not properly handled either by the Chinese judgments. In the US, anti-suit injunction requires the parties and issues in foreign proceedings are ‘the same’ as the local ones. (E. & J. Gallo Winery v. Andina Licores SA, 446 F. 3d 984 (Court of Appeals, 9th Circuit 2006)) This barrier is difficult to lift in disputes concerning infringement of national patents in the same family. In FRAND cases, the court usually relies on the ‘contractual umbrella over the patent’ to avoid the difficulty brought by the territoriality of patent. (Huawei v Samsung, Case No. 3:16-cv-02787-WHO) Even if a contractual approach is adopted, the court still needs to ascertain the foreign litigation may frustrate a local policy, would be vexatious or oppressive, would threaten the U.S. court’s in rem jurisdiction, or would prejudice other equitable considerations. (Zapata Off-Shore Company v. Unterweser Reederei GMBH, 428 F.2d 888 (United States Court of Appeals, Fifth Circuit, 1970))

The Chinese judgments show clear sign of borrowing the common law tests. In particular, the Huawei v Conversant judgment has high similarity with Huawei v Samsung judgment rendered by the California Northern District Court. The problem is the enjoined Düsseldorf judgment awarded FRAND rate instead of an unconditional injunction like the Shenzhen judgment. While enforcing a permanent injunction in the biggest market of Samsung may lead to a forced settlement which would make the US proceedings unnecessary or redundant, enforcing the court determined FRAND rate covering only one state may not have the same effect on the Chinese proceedings. In particular, due to different standards to calculate the FRAND rate, a higher rate covering the German market is not oppressive and would not result in a forced settlement for Chinese FRAND rate. The Wuhan judgment focuses on the vexatious foreign proceedings brought in bad faith and abuse of process. The Wuhan court considers the Indian proceedings was brought to frustrate the pending proceedings before the Wuhan court. The judgment seems to follow the English trait. However, the court did not fully explain how an action purely covering Indian patents and concerning Indian market would affect the Chinese proceedings based on contract. It is also unclear whether Chinese court could award a global FRAND rate as the English court will do. Although in contrast to many other judgments, these two judgments show reasonable quality and laudable efforts of reasoning, reading in details may suggest the courts have learnt more in form instead of substance. The judicial transplant of very unfamiliar common law instruments into Chinese practice seems a little awkward and immature.

3 Comity, Pragmatism and Rule of Law

Anti-suit injunction is a controversial instrument in that it may infringe foreign judicial sovereignty and comity. Even if it is technically directed to the respondent not a foreign court, it makes judgment on the appropriateness of foreign proceedings, which, in normal circumstances, should be judged by the foreign court. No matter how indirect the interference is, an interference is there. Such an approach is fundamentally incompatible with Chinese jurisprudence and diplomatic policy, which emphasise on the principle of sovereign equality and non-interference. China usually considers parallel proceedings tolerable which concern the judicial sovereignty of two countries and each could continue jurisdiction pursuant to their domestic law. (Art 533 of Civil Procedural Law Judicial Interpretation by SPC) Adopting anti-suit injunction to tackle foreign parallel proceedings or related proceedings directly contradicts this provision.

Since Chinese courts would not deviate from the central government’s policy, the two judgments may be a sign to show China is gradually adjusting its international policy from self-restraint to zealous competition, at least in the high-tech area. This is consistent with China’s strategic plan to develop its high-tech industry and a series of reform is adopted to improve IP adjudication. It may imply consideration of diffused reciprocity, i.e. since some foreign courts may issue anti-suit injunction to obstruct Chinese proceedings, Chinese courts should have the same power. It may also reflects China’s increased confidence on its institutions led by its economic power. The transplant of anti-suit injunction cannot be deemed as admiring foreign law, but a pragmatic approach to use any tools available to achieve their aims. Since anti-suit injunctions may interfere a state’s sovereignty, a foreign state may issue ‘anti-anti-suit injunction’ to block it. While injunction wars occur in high-tech cases, the final trump card should be a country’s economic power. Since China is the biggest market for many telecom products, it would be the last market that most companies would give up, which would provide Chinese courts a privilege.

Finally, since anti-suit injunction is not included explicitly in Chinese law, there is no consistent test applying to it. The two judgments have applied different tests following the practice from different common law countries. It is also noted that the lack of relevant training in exercise discretion in issuing anti-suit injunctions or applying precedents leads to uncertainty and some discrepancy. Issuing anti-suit injunction is serious in that it may affect comity and international relation. It is thus cannot be adopted randomly or flexibly by mirroring one or two foreign judgments. If China indeed wants to adopt anti-suit injunction, a test guidance should be provided. Anti-suit injunction needs to be issued under the rule of law.

 

 

 

 

In preparation of the Video Roundtable by the University of Bonn and the HCCH on 29 October 2020, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

Update of 27 June 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, Pre-Publication 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

2. 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 “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 Çaliskan, Yusuf;
Çaliskan, Zeynep “2 Temmuz 2019 Tarihli Yabanci Mahkeme Kararlarinin Taninmasi ve Tenfizine Iliskin Lahey Anlasmasinin Degerlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245

(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 provisoire de la communication présentée le 4 octobre 2019 available here) 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 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 Juepter, 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 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 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 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 Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 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) 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

 

The new issue of the Revue Critique de Droit International Privé (3/2020) is out. It contains three articles and numerous case notes.

In the first article, Horatia Muir Watt (Sciences Po) addresses the challenges raised by the new Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, under a geopolitical perspective (Le droit international privé au service de la géopolitique : les enjeux de la nouvelle Convention de la Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale)

The political stakes of the apparently innocuous legal regime governing the cross-border movement of judgments may be more complex and less rational than it might appear on reading the text of the new international convention, which has succeeded unexpectedly in coming into being twenty years after the failure of the previous great millennium project. The key to understanding these stakes lies in four different directions : the new place of the European Union at the negotiating table, exclusive of its Member States ; the awakening of China to the potential of private international law in terms of soft power to be wielded in support of the rebirth of the imperial Silk Route ; the post Brexit reintroduction of the markets of the Commonwealth into the wider game ; the weakening of the position of the United States in the era of “post-shame”. However, a further factor may be that the rules for the recognition and enforcement of foreign judgements are caught up in an additional race between competing models of international commercial dispute resolution.

In the second article, Dominique Foussard (Avocat au Conseil d’Etat et à la Cour de Cassation, French Bar) offers the opportunity to (re)discover the great figure of Jean-Jacques Gaspard Foelix (1791-1853) and its contribution to Private international Law (Le droit international privé de Foelix ou l’art périlleux de la transition, 1840-1847).

In the third article, Christiane Lenz (Rechtsanwältin, Qivive Avocats & Rechtsanwälte, German Bar) discusses the issue of provisional measures, pursuant article 35 of the Brussels I Regulation, in a Franco-German perspective (L’exploitation du rapport d’expertise français par le juge allemand : la toute-puissance de l’article 35 du règlement Bruxelles I bis).

Pursuant to Article 35 of Regulation 1215/2012, French Courts can order provisional measures according to Article 145 of the French Code of Civil Procedure despite a jurisdiction clause in favor of German courts if it is necessary to preserve evidence and if the means of evidence are located in France. French expert reports can be used in front of German Courts on the basis of the principle of substitution. In light of Article 35 of Regulation 1215/2012, Article 145 of the French Code of Civil Procedure must be interpreted in a way which does not require the application of the condition « before any legal process ». In addition, Article 35 of Regulation 1215/2012 may prevent the effects of Articles 29 and 31 (2) of Regulation 1215/2012 and the res iudicata effect.

It is worth noting that 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 Dalloz website (Slow savoir et transition périlleuse).

The full table of contents is available here.

As announced earlier on this blog, the Conference Frontiers in Civil Justice organized by the ERC team of Erasmus School of Law in Rotterdam, will take place on 16 and 17 November 2020.

The conference addresses four key issues in civil justice, which require a deeper and renewed reflection in light of their contribution of facilitating access to justice. Those concern the shaping of the interaction between formal and informal justice, the digitalization of consumer dispute resolution, the collectivizing and monetizing of civil litigation and justice innovation.

Renowned speakers and selected speakers following a call for papers will give their views. Keynotes will be given by Professor Dame Hazel Genn (UCL) and Hrvje Grubisic (European Commission).

View the programme and register for free online participation  here.

The conference is set up as a blended event, with speakers at the site and some presenting online. We will only be able to host a limited number of guests. If necessary, in the light of the COVID-19 situation, the conference will take place online entirely.
For more information, do not hesitate to contact us at kas@law.eur.nl (Betül).

This conference is organised by Erasmus School of Law of Rotterdam University and funded by an ERC consolidator grant from for the project ‘Building EU Civil Justice’.

In preparation of the Video Roundtable by the University of Bonn and the HCCH on 29 October 2020, 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…

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, Pre-Publication available here Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available at: www.hcch.net/) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available at: www.hcch.net/), pp 19-128

2. 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 “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 Çaliskan, Yusuf;
Çaliskan, Zeynep “2 Temmuz 2019 Tarihli Yabanc? Mahkeme Kararlar?n?n Tan?nmas? ve Tenfizine Ili?kin Lahey Anla?mas?n?n De?erlendirilmesi”, 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) Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 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 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 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 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 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 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 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 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 Sender, 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 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 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 Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 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 Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. 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