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Stefan Arnold (Institute of International Business Law, Chair for Private Law, Philosophy of Law, and Private International Law, University of Münster, Münster, Germany) and Bettina Heiderhoff (Institute for German and International Family Law, Chair for Private International Law, International Civil Procedure Law and German Private Law, University of Münster, Münster, Germany) have recently published an edited book on Children in Migration and International Family Law (Springer, 2024).

The book is an open access title, so it is freely available to all. In the editors’ words, the book aims “to shed light on the often overlooked legal difficulties at the interface between international family law and migration law” (p. 3) with focus placed “on the principle of the best interests of the child and how this principle can be more effectively applied.” (p.4)

 

The book’s blurb reads as follows:

This open access book offers readers a better understanding of the legal situation of children and families migrating to the EU. Shedding light on the legal, practical, and political difficulties at the intersection of international family law and migration law, it demonstrates that enhanced coordination between these policy areas is crucial to improving the legal situation of families on the move. It not only raises awareness of these “interface” issues and the need for stakeholders in migration law and international family law to collaborate closely, but also identifies deficits in the statutory framework and suggests possible remedies in the form of interpretation and regulatory measures.
The book is part of the EU co-financed FAMIMOVE project and includes contributions from international experts, who cover topics such as guardianship, early marriage, age assessment, and kafala from a truly European perspective. The authors’ approach involves a rigorous analysis of the relevant statutory framework, case law, and academic literature, with particular attention given to the best interest of the child in all its facets. The book examines how this principle can be more effectively applied and suggests ways to foster a more fruitful understanding of its regulatory potential.

Given its scope and focus, the book will be of interest to researchers, scholars, and practitioners of Private International Law, Family Law, and Migration Law. It makes a valuable contribution to these fields, particularly at their often-overlooked intersections.

 

The content of the chapters is succinctly summarized in the introductory chapter of the book, authored by the editors (“Children in Migration and International Family Law: An Introduction,” pp. 11–16). This summary is referenced here as a sort of abstract for each chapter.

 

Part I Introduction

 

Children in Migration and International Family Law: An Introduction

Bettina Heiderhoff and Stefan Arnold

 

The chapter describes the “Aims of the book and the FAMIMOVE Project”, “The Protections of the Best Interests of the Child: ”

 

An Introduction to FAMIMOVE, Its Accomplishments and Its Challenges

Marta Pertegás Sender

 

The first part of this book (Part I) …  is dedicated to the FAMIMOVE-project and sets out the background, foundation and aims of FAMIMOVE.

 

Part II General Topics

 

The Child’s Best Interests in International Jurisdiction Under the Brussels IIter Regulation

María González Marimón

[The chapter] sheds light on the child’s best interests in the area of international jurisdiction under the Brussels IIter Regulation. María González Marimón focuses on parental responsi-bility which is of paramount importance for the child’s best interests in international settings and within migration contexts. She demonstrates how the Brussels IIter Regulation’s jurisdiction model aims to reflect an accurate balance between abstract and concrete notions of the child’s best interests. The article illustrates how this balance is achieved: The habitual residence of the child is generally the relevant factor for jurisdiction, but a range of exceptions to this general rule reflect experiences from practice and enables courts to achieve adequate solutions. María González Marimón also welcomes the jurisdiction regime as an enhancement of the child’s best interests principle in its triple dimension as a substantive right, an inspiring principle, and as a procedural rule.

 

The Principle of the Child’s Best Interests in EU Law on Third-Country Nationals

Iris Goldner Lang

[The chapter] demonstrates that the child’s best interests principle is a paramount and intrinsic value of EU law, serving as an underlying rationale for EU legislation and judgments. Iris Goldner Lang examines how this fundamental principle impacts the rights of third-country nationals in the EU, with a focus on decisions related to family reunification as well as EU migration and asylum law. She develops a multidimensional understanding of the child’s best interests principle, highlighting its threefold function as a substantive right, an interpretative tool, and a procedural rule. Based on this analysis, Iris Goldner Lang argues that the principle of the child’s best interests will continue to gain importance in EU law on third-country nationals, due to its multidimensional nature and its role as a counterbalance to the ongoing trend of restricting the rights of migrants and asylum seekers across the EU.

 

Binding Effect of an Age Assessment

Kai Hüning

[The chapter] examines a difficult problem that is well-known in legal practice, namely the problem of age assessment in the perspective of the child’s best interests principle. Kai Hüning illustrates the background of age assessment in the context of migration of minors and sheds light on the need for age assessment and its methods. The article’s focus lies on the question of whether or not age assessment procedures carried out in one member state of the EU must be recognised by other member states. Kai Hüning invokes the Charter of Fundamental Rights of the European Union, the UN 1989 Convention on the Rights of the Child (CRC) and the Human Rights Convention for his approach to that problem: Kai Hüning argues for a binding effect in principle — an effect that must be incorporated by way of interpretation of the national provisions.

 

Part III Guardianship for Unaccompanied Minor Refugees

 

Guardianship of Children in the Context of Migration in Hungary

Orsolya Szeibert

[The chapter] focuses on guardianship of unaccompanied minors in Hungary. Orsolya Szeibert gives an overview of the Hungarian asylum regime, its political background and complexity. She points out how the situation of children in Hungary was heavily affected by several legal acts in the mid-2010s that contained specific provisions for the “crisis situation caused by mass immigration”. Orsolya Szeibert shows the (negative) effects of these provisions for minors and points out that the “crisis situation” has been continously prolonged since 2016 until today. She refers to criticisms of the Hungarian status quo in which unaccompanied minors between the age of 14 and 18 are effectively considered as adult asylum applicants.

 

Guardianship and Other Protective Measures for Minor Refugees in Germany

Bettina Heiderhoff

[The chapter] emphasises the importance of protecting unaccompanied minor refugees and points out the connections of migration law, private international law and family law. Bettina Heiderhoff examines the central terms “minor” and “unaccompanied” in the perspective of German law, describes the procedures for the appointment of guardianship and other protective measures (in particular, the so-called provisional taking into care). She also analyses cases in which a minor refugee arrives in Germany after a guardian has been appointed in another member state. Bettina Heiderhoff shows that Germany combines several legal institutions to ensure the protection of unaccompanied minor refugees. Yet she also points to considerable problems, in particular a conflict of interest of the youth welfare office, the lack of special knowledge of the guardians as regards asylum law and certain difficulties as regards age assessment and responsibility.

 

A European Approach to Cross-Border Guardianship

Bettina Heiderhoff

[The chapter provides] an outlook on the European perspective regarding guardianship […]. [The author ] emphasises that EU law only regulates specific aspects of migration law and private international law, while substantive family law remains under the jurisdiction of member states. Bettina Heiderhoff argues that the opportunities for EU law to directly influence guardianship practices are limited. Nonetheless, she points out potential refinements, particularly in the application of the Brussels IIter Regulation.

 

Part IV Early Marriage

 

Early Marriages in Sweden

Ulf Maunsbach

[The Chapter] explains recent developments in Sweden, where early marriages validly concluded abroad are generally not recognised. Ulf Maunsbach shows that there is a very narrow exception to this non-recognition principle: recognition is possible only in exceptional cases when there are extraordinary reasons. He argues that the application of the non-recognition principle may vary across different institutional settings, such as asylum proceedings, family law, or inheritance proceedings. Ulf Maunsbach explains that for the purposes of registering status relationships in the Swedish population registration database, the exception to the non-recognition principle will rarely apply since the Tax Agency’s examination relies solely on written documentation and does not include specific investigations into the circumstances surrounding the marriage. He also highlights a general lack of case law, which makes it even more difficult to evaluate the situation. Ulf Maunsbach argues for allowing individual exceptions to enable authorities and courts to make carefully considered decisions.

 

Early Marriage in Germany: Law and Politics of Cultural Demarcation

Stefan Arnold

[The Chapter] examines the German law on early marriage with a focus on the recent statute effective from 1 July 2024. Stefan Arnold argues that the recent German law on early marriage is emblematic of symbolic politics and cultural demarcation, highlighting the detrimental power of symbolic lawmaking. He shows that the law’s turbulent recent history has been written by an unfortunate interplay between courts, politicians, and interest groups. He argues that before the recent legislative interventions, just and differentiated solutions were achieved by the courts through the application of the ordre public clause. Stefan Arnold shows that such solutions are no longer attainable, as German law now adheres to a strict policy of non-recognition of early marriages when a spouse was under the age of 16 at the time of marriage. He argues that the political debate and the law’s resort to a symbolic outlawing of early marriages abroad have significantly worsened the position of those deserving protection, particularly the young women concerned and the children born from such marriage.

 

Early Marriages in Austria: Private International Law and Ordre Public Assessment

Martina Melcher

[The Chapter] explains the Austrian legal framework regarding early marriages. Martina Melcher shows that the issue of a valid marriage arises not only in family law matters, but most often in family reunification and asylum proceedings. This part reveals that, unlike in Germany, early marriage has not yet been the subject of intense political and academic debates in Austria. Martina Melcher points out that Austrian Law enables courts to carefully consider the individual circumstances of each case. She notes that there is no violation of the Austrian ordre public if both spouses are adults at the time of the assessment, want to uphold their marriage, and there was neither coercion nor lack of will at the time of the marriage’s conclusion. She emphasizes that explicit legislation may not be necessary and argues for a careful, individual, and conscious analysis of all relevant aspects of the situation. At the same time, Martina Melcher calls for legislative action regarding certain aspects, particularly the consequences of early marriages in cases where they are not recognised.

 

Early Marriage: A European Perspective

Stefan Arnold

[The Chapter] particularly compares Sweden’s and Germany’s strict non-recognition approach with Austria’s flexible ordre public approach regarding early marriages validly concluded abroad. He argues that the Austrian approach is preferable, as it enables courts to achieve just solutions based on an individual case-by-case analysis. Based on the chapter’s comparative evaluation, Stefan Arnold develops proposals for potential legislative measures with an emphasis on institutional solutions that promote justice and prioritise the needs of those worthy of protection.

 

Part V Kafala

 

Beyond Kafala: How Parentless Children Are Placed in New Homes in Muslim Jurisdictions

Nadjma Yassari

[The Chapter] explores the various legal options available in Muslim jurisdictions for placing parentless children into new homes. She identifies four categories of these options: complete incorporation of a child into a new family, wide-ranging incorporation, structures for the temporary care of abandoned or orphaned children, and jurisdictions where caretaking occurs informally, with minimal state supervision or intervention. Nadjma Yassari reviews several Muslim jurisdictions and demonstrates how they have developed alternative caretaking arrangements for parentless children based on these categories. She discusses how these jurisdictions navigate the prohibition of tabanni (adoption) in Islamic law while still finding ways to provide children with stable homes. Nadjma Yassari highlights Tunisia as the only country to formally regulate and accept tabanni, allowing for complete incorporation of a child into a new family. She also notes the absence of a formalised legal framework for placing parentless children in new homes in some Muslim jurisdictions, such as Lebanon.

 

Kafala in France

Fabienne Jault-Seseke

[The Chapter] provides a French perspective on kafala. Fabienne Jault-Seseke highlights the practical importance of kafala in France: Many individuals of Moroccan or Algerian nationality living in France assume responsibility for a child born in their country of origin through kafala. Fabienne Jault Seseke explains how such arrangements intend to compensate for the absence of parents or to offer the child better living conditions and education. Additionally, as the chapter shows, kafala serves as an alternative to adoption, which is prohibited in Morocco and Algeria. Jault-Seseke argues that despite kafala not constituting adoption, it should be regulated similarly to ensure the protection of fundamental rights for all parties involved. She emphasises that Article 33 of the 1996 Hague Convention on parental responsibility and protection of children provides the necessary framework for this regulation.

 

Kafala in the Netherlands

María Mayela Celis Aguilar

[The Chapter] explains the legal framework and case law on kafala in the Netherlands where most cases originate from Morocco. Mayela Celis Aguilar points out a change of policy in 2013 following which kafala is no longer treated as adoptions but, with some caution, similar to foster care measures. She expounds the Dutch legislation and Article 33 of the 1996 Hague Convention that are applied in the Netherlands. Mayela Celis Aguilar evaluates the Dutch policy with regard to the recognition of kafalas as generally coherent and in line with the applicable international instruments. Yet she also points to concerns about the use of kafala to circumvent adoption and immigration policies and regulations.

 

Kafala in Belgium: Private International Law as an Essential Tool to Establish Migration Law Consequences?

Leontine Bruijnen

[The Chapter] discusses how a kafala can be characterised and recognised in Belgium, whether or not it should be converted into an adoption or whether kafala is equal to foster care. She points out that a kafala should be characterised as a child protection measure according to the 1996 Child Protection Convention yet that the Convention did not solve all kafala-related issues — particularly as regards migration law consequences. Leontine Bruijnen explains the relevant legal framework as well as the Belgian family and migration case law. She offers a solution based on the general recognition rules for kafalas falling outside the scope of the 1996 Child Protection Convention. Leontine Bruijnen further argues that the private international law framework should be taken into account to determine whether a makf?l (ward) can be considered an unaccompanied minor.

 

Principles to Ensure a Cross-Border Kafala Placement Is in the Best Interests of the Child

Giovanna Ricciardi and Jeannette Wöllenstein-Tripathi

[The Chapter] highlights the principles and recommended practices drawn from the International Social Services (ISS) Kafalah study 2020. These principles are aimed at guiding states in ensuring that cross-border kafala placements prioritise the best interests of the child. The authors emphasise that protecting children’s rights has always been central to the ISS mission. They caution that European debates on kafala often reflect Western perspectives that equate kafala with institutions like adoption, guardianship, or foster care. The authors underscore the importance of maintaining continuity in the child’s situation across borders, ensuring legal security, and respecting the child’s fundamental human rights.

 

Recognition of Kafala in European Member States: Need for a Uniform Approach?

Fabienne Jault-Seseke

[The Chapter] addresses whether and under what conditions a kafala issued in an Islamic state may be recognised in European member states. Jault-Seseke highlights the diverse approaches taken by member states and the lack of a uniform EU legislative approach. She argues that any European solution must uphold the EU Charter, the CRC, and the 1996 Child Protection Convention, and respect the cultural context of the child. She concludes that kafala should not not be equated with adoption and that the best interests of the child must be taken into account at both the pronouncement of kafala and recognition stages.

 

Part VI Additional Topics

 

The Role of the Court of Justice in Shaping the Right to Maintain Family Unity for Beneficiaries of International Protection

Alessia Voinich

[The Chapter] examines how the CJEU addresses member states’ flexibility in establishing more favorable national regimes. It explores the connection between the rights of family members and the asylum rights of their relatives who are beneficiaries of international protection, as well as situations where different member states bear responsibility for international protection and ensuring family unity. The chapter also assesses the impact of recent reforms within the Common European Asylum System (CEAS). Alessia Voinich underscores the high standards of protection for the right to family unity provided by EU secondary law and highlights the CJEU’s efforts to prioritise the best interests of the child as a guiding principle. She argues that the CJEU’s future decisions will be pivotal in achieving a balanced approach between uniformity and necessary flexibility in individual cases.

 

Polygamous Marriages and Reunification of Families on the Move Under EU Law: An Overview

Giovanni Zaccaroni

[The Chapter] is dedicated to polygamous marriages that are usually associated with countries outside the EU. Giovanni Zaccaroni shows how questions of the recognition of polygamous marriages and possible rights attached to the status of the spouses have led to intense discussions in the EU. He argues that the prohibition of family reunification under EU law represents an obstacle to free movement and family reunification of migrant families, and, potentially, also to the best interests of the child. But, as Giovanni Zaccaroni argues, at the same time it is rooted in the necessity to protect and promote equal treatment between men and women, enshrined in the EU Charter of Fundamental Rights as well as in the national constitutions. The contribution highlights the need to protect the rights of the weaker parts of the relationship and to avoid the creation of partners of first and second class, thus discriminating among persons in a similar situation and violating their fundamental rights.

ASADIP: A More Intelligent and Less Artificial Private International Law

By Juan Ignacio Stampalija

 

The XVII Conference of the American Association of Private International Law (ASADIP) was held on September 25-27. Under the title ‘A More Intelligent and Less Artificial Private International Law,’ the main regional experts, as well as international guests, met at Universidad Austral of Argentina to discuss the main challenges of current private international law.

On the first day, the Conference was opened by C. Ignacio de Casas, Secretary of Academic Affairs of the Universidad Austral School of Law and Paula María All, outgoing President of ASADIP. Moreno Rodríguez (Paraguay) gave the inaugural lecture entitled ‘Private International Law and Investment Arbitration.’

The first day of the Conference also included three panels. The first focused on the ‘Challenges of International Legal Cooperation in the Digital Era.’ It was moderated by María Blanca Noodt Taquela (Argentina) and Gonzalo Lorenzo Idiarte (Uruguay), with María Laura Capalbo (Uruguay), Juan José Cerdeira (Argentina), Marcos Dotta (Uruguay), Alejandro Menicocci (Argentina), Roberto Ruiz Diaz Labrano (Paraguay), and Valesca Raizer Borger Monschen (Brazil) as panellists. The second panel discussed ‘Contracts and Digital Assets,’ with Verónica Ruiz Abou-Nigm (Uruguay) as moderator and the participation of Jorge Oviedo Albán (Colombia), Gérardine Goh Escolar (The Hague, HCCH), Ana Mercedes López Rodríguez (Spain), Anna Veneziano (Italy, UNIDROIT, online) and Luca Castellani (Austria, UNCITRAL, online). The third panel, as is customary in all ASADIP conferences, was the Meeting of International Forums on Private International Law (MIFPIL). Paula María All (Argentina) acted as moderator and Florencia Castro (Argentina, HCCH), Anna-Joubin Bret (Vienna, UNCITRAL, video recording), Cecilia Fresnedo de Aguirre (Uruguay, CJI, OAS), Dante Negro (USA, OAS) and Anna Veneziano (Italy, UNIDROIT, online) were panellists.

The day ended with a lecture given by Andrés Rodríguez Benot (Spain) entitled ‘Party Autonomy in Household Economics: The European Experience on the Property Regime of Married Couples and Registered Partnerships.’

On the second day, the ASADIP Conference held joint activities with the Jornadas Nacionales de Derecho Civil from Argentina, with the participation of ASADIP members in Committee No. 9 on Private International Law. Under the theme ‘The New Frontiers of Party Autonomy,’ several papers were presented concerning party autonomy in different matters, such as non-parity contracts, consumer contracts, new technologies, family law, and dispute resolution, among others. Based on these papers, fifteen conclusions on this issue were drafted and unanimously passed, which can be read here (in Spanish).

To conclude the second day of the Conference, a panel entitled ‘Private International Family Law: Perspectives from Comparative Law’ was held. The panel was moderated by Carolina Harrington (Argentina) and Fabio Mastrángelo (Argentina), with presentations by María Mercedes Albornoz (Mexico), Andrés Rodríguez Benot (Spain), Nieve Rubaja (Argentina), María Laura Capalbo (Uruguay), Daniela Vargas Trejo (Brazil), and Elizabeth Villalta (El Salvador).

On the last day of the Conference, a joint HCCH-ASADIP meeting was held on ‘Private International Law and Tokens,’ with the participation of Gérardine Goh Escolar (The Hague, HCCH), Paula María All (Argentina), Fabricio Pasquot Polido (Brazil), Sebastián Paredes (Argentina), Juan Ignacio Stampalija (Argentina), and María Marta Herrera (Argentina). This was followed by the presentation of a book entitled ‘Influence and Application of the CIDIPs-OAS Conventions in Latin American Legal Systems’ (available here, in Spanish). The book was presented by Paula María All (Argentina), Dante Negro (USA, OAS), Eduardo Véscovi (Uruguay), Carolina Iud (Argentina), Daniela Trejo Vargas (Brazil), and Felicita Argaña Blendin (Paraguay). Finally, the closing speech of the ASADIP Conference was given by Didier Opertti Badán (Uruguay), Honorary President of ASADIP, who was introduced by Diego P. Fernández Arroyo (France).

In the context of the Conference, the ASADIP Assembly was held, in which the new authorities for the period 2024-2027 were elected. Verónica Ruiz Abou-Nigm, from Uruguay, Chair of Private International Law at the University of Edinburgh, was elected President of ASADIP. Marcos Dotta Salgueiro (Uruguay) Vice-President for International Relations; Jorge Oviedo Albán (Colombia) Vice-President for Academic Affairs; Juan Ignacio Stampalija (Argentina) Vice-President for Communications and Publications, and Felicita Argaña (Paraguay) Vice-President for Finance.

Likewise, Tatiana Cardoso Squeff (Brazil) is Deputy Vice-President for International Relations; María Alejandra Ruiz Gómez (Venezuela), Deputy Academic Vice-President; Daniel Rojas Tamayo (Colombia), Deputy Vice-President for Communications and Publications, while Candela Villegas (Argentina) is Deputy Vice-President for Finance.

Moreover, María Mercedes Albornoz (Mexico) was elected as ASADIP Secretary General and Inez Lopes (Brazil) as Deputy Secretary General.

In addition, ten members were appointed to the governing board: Bruno Rivero (Uruguay), Carlos Odriozola (Mexico), Claudia Lugo (Venezuela), Edgar Riffler (Paraguay), Fernando Meinero (Brazil), Jaime Gallegos Zúñiga (Chile), Jaime Vintimilla (Ecuador), Margie-Lys Jaime (Panama), Paloma Hernández (Argentina), and Taydit Peña Lorenzo (Cuba).

Finally, it should be recalled that Didier Opertti Badán (Uruguay) continues as Honorary President, while José Antonio Moreno Rodríguez (Paraguay) continues as President of the Advisory Council and Carolina Silvero (Paraguay) retains the role of Administrative Secretary of ASADIP.

This post was written by Luana Matoso, a PhD candidate and research associate at Max Planck Institute for Comparative and International Private Law in Hamburg, Germany.

Brazil has changed its law on international forum selection clauses. In June this year, a new statutory provision came into force, adding, unexpectedly, new requirements for their enforceability. In this attempt to redistribute domestic litigation, the Brazilian legislator may well have thrown out the baby, international forum selection clauses, with the bathwater.

The Recognition of International Forum Selection Clauses Under Brazilian Law

International forum selection clauses are among the most controverted topics in Brazilian Private International Law. Although the positive effect of such clauses has been generally accepted in Brazil since 1942, their negative effects have been in center of the legal debate ever since. Until very recently, Brazilian courts would not enforce a clause that selected a foreign forum, arguing that parties could not, by agreement, oust the jurisdiction of Brazilian courts established by law — an approach quite similar to that adopted by U.S. courts prior to the landmark U.S. Supreme Court decision in Bremen v Zapata Off-Shore Co. (1972).

Brazilian courts seemed to follow suit in 2015, when — as a result of serious efforts by legal scholars — a provision explicitly recognizing the derogatory effect of forum selection clauses was included in the latest reform of the Brazilian Code of Civil Procedure (CCP). According to Art. 25 CCP, Brazilian courts do not have jurisdiction over claims in which the parties have agreed to the exclusive jurisdiction of a foreign forum. The provision references Art. 63 §§1-4 CCP, which sets out the requirements for national forum selection clauses. Thus, national and international forum selection clauses are subject to similar requirements for validity, including that the agreement must be in writing and relate to a particular transaction.

The New Amendment of June 2024: A Setback for Party Autonomy

What seemed settled since 2015 is now back in the center of debate. On June 4, 2024, the Brazilian National Congress passed a law amending Art. 63 CCP and creating additional requirements for forum selection clauses. According to the new wording of Art. 63 §1 CCP, a forum selection clause is valid only if the chosen court is “connected with the domicile or residence of one of the parties or with the place of the obligation.”

Essentially, this new law significantly limits the autonomy of the parties in selecting a forum of their choice. Before the amendment there were no restrictions on the forum to be selected; now Brazilian courts will only enforce clauses in which the chosen forum is related to the dispute. In practice, the choice of a “neutral” forum in a third State will not be enforceable in Brazilian courts.

International Forum Selection Clauses: The Wrong Target?

The application of the new requirements also to international clauses may have resulted from an oversight on the part of the legislator. The explanatory memorandum accompanying the draft bill indicates that the main objective of the reform was to address a problem of domestic, not international, forum shopping. The document specifically cites the current congestion of the courts of the Federal District, the federal unit in which Brazil’s capital, Brasília, is located. It is known for its efficient courts, which have increasingly received disputes that have no connection to the court other than a forum selection clause. Unlike common law jurisdictions, Brazilian courts may not decline jurisdiction based on forum non conveniens. Rather, forum selection clauses, if valid, will bind the jurisdiction of the chosen court. Describing this practice as “abusive” and “contrary to the public interest,” the legislator sought to address this (domestic) issue.

The memorandum makes no mention of international forum selection clauses. Nevertheless, it seems clear that the amendment also applies to international forum selection clauses. The explicit reference of Art. 25 CCP to Art. 63 §1 leaves little room for an argument to the contrary.

The circumstances of this apparent oversight have led to strong criticism. Scholars have argued that the legislative process lacked publicity and public participation, especially from legal experts. The process was indeed fast-paced. Less than 14 months elapsed between the introduction of the draft bill and its enactment. After less than 10 months in the Chamber of Deputies, the bill was approved in the Senate under an emergency procedure and entered into force immediately after its publication on June 4, 2024.

And Now? First Clues in Recent Case Law

The implications of the new amendment for courts and parties remain unclear. First, is the new amendment applicable only to forum selection agreements concluded after its entry into force, on June 4, 2024, or for court proceedings commenced after that date? Second, what is a sufficient connection of the chosen court to “the domicile or residence of one of the parties or with the place of the obligation” under Art 63 §1 CCP?

Three recent decisions provide a few clues. A district court in the county of Santos, São Paulo, addressed the temporal application of the rule in a decision of November 7, 2024, holding that the new amendment applies only to contracts concluded after June 4, 2024, since the selected forum and the enforceability of the clause have a significant impact on the parties’ risk calculation when entering into the contract. Applying the law as of before the amendment, the court enforced a forum selection clause in a bill of lading that selected New York courts to hear the dispute, even though both parties to the contract were seated in Brazil.

On June 24, 2024, another decision, this time by a district court in the state of Ceará, enforced a jurisdiction clause in which the chosen forum had no direct connection with the dispute or the domicile of the parties. The dispute arose between a Brazilian seafood retailer and the Brazilian subsidiary of the global shipping company Maersk. Without even mentioning the new amendment, the court stayed proceedings on the basis of the forum selection clause contained in the bill of lading, which selected the courts of Hamburg, the German headquarters of Maersk’s parent company, Hamburg Süd, as having jurisdiction over the dispute. This leaves open the question of whether, in the future, the choice of the seat of the parent company of one of the parties as the place of jurisdiction will constitute a sufficient connection as required by the new amendment.

Another interesting decision was rendered on September 4, 2024, in the county of Guarulhos, also in the state of São Paulo, concerning a forum selection clause in a publishing contract between an author and a publisher, both domiciled in Brazil. The clause selected Lisbon, Portugal, as the forum for hearing the dispute. In enforcing the clause, the court stayed proceedings brought by the author in Brazil. Although the new amendment was not explicitly mentioned in the decision, the court’s reasoning included the justification that the clause was enforceable since the contract provided that the title, which was the subject of the publishing contract, was also to be marketed in Portugal. This could be an indication that the place of performance of the contract establishes a sufficient connection with the “place of the obligation” pursuant to Art. 63 §1 CCP. Referring to Article 9 of the Law of Introduction to the Brazilian Civil Code, scholars argue that the place of conclusion of the contract may also satisfy this requirement.

Conclusion

Ultimately, the broader or narrower approach taken by the courts in interpreting the new requirements will determine the extent to which the amendment will restrict the parties’ ability to choose where to litigate their disputes. Equally important for parties, as a factor of predictability, is the question of how consistent this interpretation will be among the various courts in Brazil. To date, I am not aware of any decision in which a Brazilian court has expressly refused to enforce a forum selection clause on the basis of the new wording of the law. How this will play out in practice remains to be seen.

This post is cross-posted at Transnational Litigation Blog.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. Since the beginning of 2024, RabelsZ has been an open access publication, with all articles freely available to readers online. This issue deals with diverse topics such as sovereign immunities in front of Chinese courts, Puerto Rico’s newly-codified private […]

Humboldt University Berlin is launching an English-language LL.M. program!

While Humboldt University has been offering a variety of Master-programs in German for many years, this will be the first general LL.M. program in English. The program will provide students with an in-depth understanding of German and European law, enriched with and very much in the context of global perspectives.

The program will start in October 2025 and aims to attract graduates from all over the world with strong foundational knowledge in their respective legal system and at least one year of professional experience. Applications for the program will be possible from 1 to 31 March 2025.

More information is available on this flyer and online.

For any questions, please contact int.rewi@hu-berlin.de.

This post was written by Mathilde Codazzi, who is a doctoral student at Paris II Pantheon-Assas. On 14 November 2024, the French Cour de cassation issued a decision regarding the compliance of a foreign judgment establishing parentage with regard to the intended mother of a child born to a surrogate with French international public policy […]

The Court of Justice will be quite active before the Christmas break. Not so much, though, regarding PIL, with only one judgement scheduled for publication, in addition to one hearing. On Thursday 5, the Court will deliver its decision on C-389/23 Bulgarfrukt, a preliminary reference from the Amtsgericht Wedding (the German Court for European orders for […]

Following the conference held previously this year (reported here), the book on Private International Law and Global Trends (Medunarodno privatno pravo i globalni trendovi) has been published by the Croatian Academy of Sciences and Arts (Hrvatska akademija znanosti i umjetnosti, HAZU) within the series Modernisation of Law edited by the academic and professor Jaksa Barbic.

The book includes the following contributions (all in Croatian, while the titles are translated for the convenience of the readers of this blog):

Jaksa Barbic
Editorial

Ines Medic, University of Split, Faculty of Law
Challenges of globalization of private international law for national judiciary

Ivana Kunda, University of Rijeka, Faculty of Law
Have frontier digital technologies surpassed the boundaries of private international law?

Mirela Zupan, Assoc. Prof. Dr. Paula Poretti, Jura Golub, University of J. J. Strossmayer in Osijek, Faculty of Law
Foreign public documents in the digital age

Danijela Vrbljanac, University of Rijeka, Faculty of Law
Breach of personal data in private international law

Tena Hosko, University of Zagreb, Faculty of Law
Protection of workers in private international law

Dora Zgrabljic Rotar, University of Zagreb, Faculty of Law
The effect of the Hague Judgments Convention of 2019 on the recognition and enforcement of foreign court decisions in the Republic of Croatia

The book is presented at the HAZU official webisite, while it can be bought for a symbolic price at stores such as here.

Conventions & Instruments

On 1 November 2024, the 2007 Child Support Convention entered into force for Kyrgyzstan. At present, 52 States and the European Union are bound by the 2007 Child Support Convention. More information is available here.

On 21 November 2024, North Macedonia deposited its instrument of ratification of the 2005 Choice of Court Convention. With the ratification of North Macedonia, 36 States and the European Union are bound by the 2005 Choice of Court Convention. It will enter into force for North Macedonia on 1 March 2025. More information is available here.

 

Meetings & Events

From 28 October to 1 November 2024, the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation met for the seventh time. Pursuant to its mandate, the Working Group made further progress on the development of draft provisions on parallel proceedings and related actions or claims. More information is available here.

From 4 to 8 November 2024, the Working Group on Parentage / Surrogacy met for the third time. Pursuant to its mandate, the Working Group continued its consideration of draft provisions for one new instrument on legal parentage generally, including legal parentage resulting from an international surrogacy agreement. More information is available here.

From 12 to 14 November 2024, the Experts’ Group on Central Bank Digital Currencies (CBDCs) held its second working meeting. Pursuant to its mandate, the Experts’ Group made further progress on the study of the applicable law and jurisdiction issues raised by the cross-border use and transfers of CBDCs. More information is available here.

On 13 November 2024, the Working Groups on the Practical Handbook and Country Profile for, respectively, the 1965 Service Convention and 1970 Evidence Conventions met online to discuss the draft Service and Evidence Country Profiles. The Working Group on the 1970 Evidence Convention met again on 26 November 2024 to review and refine updates to the Practical Handbook.

From 13 to 15 November 2024, the Regional Workshop on Intercountry Adoption: Sharing Experiences on the Effective Implementation of the 1993 Adoption Convention in Africa was held in Lomé (Togo). The workshop provided a forum for francophone and lusophone States in Africa to discuss good practices in the implementation and operation of the 1993 Adoption Convention and, more broadly, in the international protection of children. More information is available here.

On 13 and 27 November 2024, the Administrative Cooperation Working Group met to discuss and finalise updates to the Country Profile on the 2007 Child Support Convention in the light of comments received following its circulation among Members and Contracting Parties. More information is available here and here.

From 18 to 21 November 2024, an informal brainstorming session on future meetings of the Special Commission on the 1980 Child Abduction and 1996 Child Protection Conventions was held online. More information is available here.

On 19 November 2024, the HCCH and the Ministry of Foreign Affairs of Japan co-hosted the 2024 Webinar on the HCCH 1980 Child Abduction Convention in Asia and the Pacific. More information is available here.

On 21 November 2024, the HCCH hosted a workshop on Recognition of Non-EU Judgments in the EU Member States, organised by the European Association of Private International Law’s Young Research Network in cooperation with the Center for International Legal Cooperation’s Balkan Enforcement Strengthening Project. 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 21 November 2024, the concluding workshop of the fourth project of the EAPIL Young Research Network on Recognition of Non-EU Judgments in the EU Member States within took place. The workshop was hosted by the Permanent Bureau of the Hague Conference on Private International Law (HCCH) in collaboration with the Center for International Legal […]

The book titled Private International Law on Rights in rem in the European Union. Derecho internacional privado sobre derechos reales en la Unión Europea and edited by Maria Font-Mas of the Universitat Rovira i Virgili in Spain, has just been released with Marcial Pons.

The book is the result of the several years of collaborative work (referred to here and here) of the researchers from different countries convened by Maria Font Mas under the project PID2020-112609GB-I0 “Property Rights System over Tangible Goods in the Field of European Private International Law: Aspects of International Jurisdiction and Applicable Law”, funded by the Spanish Government.

The great achievement of the editor is in her ability not only to gather and coordinate many authors of various provenance around under-researched topic of rights in rem in PIL but also to have this book published in open access so that it is available to all under no limitations except to have the internet access. The book may be viewed and downloaded at https://marcialpons-openaccess.es/index.php/juridicas/catalog/book/5 as a single volume or chapter-by-chapter. In case you prefer the paper version, it is available for purchase here.

The contributors (in the order of appearance) are: Maria Font-Mas, Georgina Garriga Suau, Josep M. Fontanellas Morell, Héctor Simón Moreno, Christopher A. Whytock, Rocío Caro Gándara, Josep M. Fontanellas Morell, Iván Heredia Cervantes, Nerea Magallón Elósegui, Ángel Serrano de Nicolás, Albert Font i Segura, Pau Oriol Cosialls Perpinyà, Ilaria Pretelli, Carmen Parra Rodríguez, Cristina González Beilfuss, Diana Marín Consarnau, Eva-Maria Kieninger, Francisco J. Garcimartín Alférez, Afonso Patrão, Pietro Franzina, Gilles Cuniberti, Jonathan Schenk, Birgit van Houtert, Alfonso Ortega Giménez, Ivana Kunda, Janeen M. Carruthers, Sabrina Ferrazzi, Guillermo Palao Moreno, Rosa Miquel Sala, Silvana Canales Gutiérrez and Vésela Andreeva Andreeva.

In Case C-70/23 Mesto Rimavská Sobota the CJEU held on 21 November on an important trigger for many an EU product- and import /export related environmental regulation. In the case at issue the context is the EU Timber Regulation 995/2010 also known as ‘EUTR’. The EUTR in essence aims to prevent illegally harvested timber from being lawfully marketed. [Of note is that the EUTR has been replaced by the EU Deforestation Regulation – EUDR 2023/1115. Entry into force of the EUDR was to be postponed by a year at the time of writing].

The core issue in the case was the concept of ‘operator’. It is the operator who needs to ensure there is an adequate due diligence system in place in the supply chain. Article 2(c) EUTR states that an ‘operator’ means

any natural or legal person that places timber or timber products on the market.

Article 2(b) of the Timber Regulation further explains that ‘placing on the market’ means

the supply by any means, irrespective of the selling technique used, of timber or timber products for the first time on the internal market for distribution or use in the course of a commercial activity, whether in return for payment or free of charge.

In the case at issue a Slovak municipality had tendered access to its wood, including the right to harvest a specified amount of trees. Harvesting was to be carried out under the supervision of employees of the municipality, however they were not actually felling the trees. Was the municipality the ‘operator’? Or  was it the contractor?

The CJEU’s judgment is in essence one of statutory construction. It is settled case-law that to interpret a provision of EU law, one needs to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part.

At para 26 the Court points out that Article 2(c) of the EUTR defines, the concept of ‘operator’ as any natural or legal person that places timber or timber products on the market. Article 2(b) in turn as noted defines the notion of ‘placing on the market’ as covering ‘the supply by any means, irrespective of the selling technique used, of timber or timber products for the first time on the internal market for distribution or use in the course of a commercial activity, whether in return for payment or free of charge’.

At para 28 the Court holds that the term ‘supply’ in Article 2(b) “must, according to its usual meaning, be understood as referring to the transfer of ownership of a quantity of timber or timber products.” That in my opinion is a bit of an interpretative shortcut. Even in its ordinary meaning, ‘supply’ arguably is a broader category than ‘transfer of ownership’. The Court’s take is impacted by the fact that ‘standing trees’ are not included as ‘timber and timber‘ products’ in relevant Annex.

The Court continues some of that focus on ownership and its transfer, this time with emphasis on the first time such ownership is transferred, holding ‘ a natural or legal person must be regarded as being an ‘operator’, ‘placing on the market’ ‘timber and timber products’, within the meaning of Article 2(a) to (c) of Regulation No 995/2010, where, irrespective of the selling technique used, it transfers for the first time and for the purposes of distribution or use in the course of a commercial activity, the right of ownership in wood in the rough or fuel wood to a person who carries out transactions in the internal market.’ (para 31). When that transfer occurs is dependent upon the applicable law: if it already occurs viz the trees still standing, there is no transfer of ownership of timber or timber products and the due diligence requirements are imposed upon a party further down the chain.

The judgment illustrates the continuing need for the legislator to define core regulatory requirements with the specific intentions of the regulation in mind.

Geert.

 

This post was written by Prof. Dr. Giesela Rühl, LL.M. (Berkeley), Humboldt University of Berlin, and is also available via conflictoflaws.net.  As reported earlier on this blog, Germany has been discussing for years how the framework conditions for the settlement of (international) commercial disputes can be improved. Triggered by increasing competition from international commercial arbitration […]

This post was written by Prof. Dr. Giesela Rühl, LL.M. (Berkeley), Humboldt University of Berlin, and is also available via the EAPIL blog.

As reported earlier on this blog, Germany has been discussing for years how the framework conditions for the settlement of (international) commercial disputes can be improved. Triggered by increasing competition from international commercial arbitration as well as the creation of international commercial courts in other countries (as well as Brexit) these discussions have recently yielded a first success: Shortly before the German government coalition collapsed on November 6, the federal legislature adopted the Law on the Strengthening of Germany as a Place to Settle (Commercial) Disputes (Justizstandort-Stärkungsgesetz of 7 October 2024)[1]. The Law will enter into force on 1 April 2025 and amend both the Courts Constitution Act (Gerichtsverfassungsgesetz – GVG) and the Code of Civil Procedure (Zivilprozessodnung – ZPO)[2] with the aim of improving the position of Germany’s courts vis-à-vis recognized litigation and arbitration venues – notably London, Amsterdam, Paris and Singapore. Specifically, the new Law brings three innovations.

English as the language of proceedings

The first innovation relates to the language of court proceedings: To attract international disputes to German courts, the new Law allows the German federal states (Bundesländer)[3] to establish “commercial chambers” at the level of the regional courts (Landgerichte) that will offer to conduct proceedings in English from beginning to end if the parties so wish (cf. § 184a GVG). Before these chambers parties will, therefore, be allowed to file their briefs and all their statements in English, the oral hearings will be held in English and witnesses will be examined in English. In addition, commercial chambers will communicate with the parties in English and write all orders, decisions and the final judgment in English. Compared to the status quo, which limits the use of English to the oral hearing (cf. § 185(2) GVG) and the presentation of English-language documents (cf. § 142(3) ZPO) this will be a huge step forward.

The new Law, however, does not stop here. In addition to allowing the establishment of (full) English language commercial chambers at the regional court level it requires that federal states ensure that appeals against English-language decisions coming from commercial chambers will also be heard (completely) in English in second instance at the Higher Regional Courts (Oberlandesgerichte) (cf. § 184a(1) No. 1 GVG). The new Law also allows the Federal Supreme Court (Bundesgerichtshof) to conduct proceedings entirely in English (cf. § 184b(1) GVG). Unfortunately, however, the Federal Supreme Court is not mandated to hear cases in English (even if they started in English). Rather, it will be in the discretion of the Federal Supreme Court to decide on a case-by-case basis (and at the request of the parties) whether it will hold the proceedings in English – or switch to German (cf. § 184b GVG). The latter is, of course, unfortunate, as parties cannot be sure that a case that is filed in English (and heard in English at first and second instance) will also be heard in English by the Federal Supreme Court thus reducing incentives to commence proceedings in English in the first place. But be this as it may: it is to be welcomed that the German federal legislature, after long and heated debates, finally decided to open up the German civil justice system to English as the language of the proceedings.

Specialized “commercial courts” for high-volume commercial disputes

The second innovation that the new Law brings relates to the settlement of high-volume commercial cases (whether international or not). To prevent these cases from going to arbitration (or to get them back into the state court system) the new Law allows the German federal states to establish specialized senates at the Higher Regional Courts. Referred to as “commercial courts” these senates will be distinct from other senates in that they will be allowed to hear (certain) commercial cases in first instance if the parties so wish (cf. § 119b(1) GVG) thus deviating from the general rule that cases have to start either in the local courts (if the value in dispute is below € 5.000,00) or in the regional courts (if the value in dispute is € 5.000,00 or higher). In addition, commercial courts will conduct their proceedings in English (upon application of the parties) and in a more arbitration-style fashion. More specifically, they will hold a case management conference at the beginning of proceedings and prepare a verbatim record of the hearing upon application of the parties (cf. §§ 612, 613 ZPO). Commercial courts will, hence, be able to offer more specialized legal services as well as services that correspond to the needs and expectations of (international) commercial parties.

It is unfortunate, however, that the German legislature was afraid that the commercial courts would be flooded with (less complex) cases – and, therefore, decided to limit their jurisdiction to disputes with a value of more than € 500.000,00 (cf. § 119b(1) GVG). As a consequence, only parties with a high-volume case will have access to the commercial courts. This is problematic for several reasons: First, it is unclear whether a reference to the value of the dispute is actually able to distinguish complex from less complex cases. Second, any fixed threshold will create unfairness at the margin, as disputes with a value of slightly less than € 500.00,00 will not be allowed to go to the commercial courts. Third, requiring a minimum value can lead to uncertainty because the value of a dispute may not always be clear ex ante when the contract is concluded. Fourth, a fixed threshold may create the impression of a two-tier justice system, in which there are “luxury” courts for the rich and “ordinary” courts for the poor. And, finally, there is a risk that the commercial courts will not receive enough cases to build up expertise and thus reputation. Against this background, it would have been better to follow the example of France, Singapore, and London and to open commercial courts for all commercial cases regardless of the amount in dispute. At the very least, the legislature should have set the limit much lower. The Netherlands Commercial Court, for example, can be used for any disputes with a value higher than € 25,000.00.

Better protection of trade secrets

The third innovation, finally, concerns the protection of trade secrets. However, unlike the other innovations the relevant provisions are not limited to certain chambers or senates (to be established by the federal states on the basis of the new Law), but apply to all civil courts and all civil proceedings (cf. § 273a ZPO). They allow the parties to apply for protection of information that qualifies as a trade secret within the meaning of the German Act on the Protection of Trade Secrets (Gesetz zum Schutz von Geschäftsgeheimnissen – GeschGehG). If the court grants the application, all information classified as a trade secret must be kept confidential during and after the proceedings (cf. §§ 16 Abs. 2, 18 GeschGehG). In addition, the court may restrict access to confidential information at the request of a party and exclude the public from the oral hearing (§ 19 GeschGehG). The third innovation, thus, account for the parties’ legitimate interests in protecting their business secrets without unduly restricting the public nature of civil proceedings, which is one of the fundamental pillars of German civil justice. At the same time, it borrows an important feature from arbitration. However, since the new rules are concerned with the protection of trade secrets only, they do not guarantee the confidentiality of the proceedings as such. As a result, the parties cannot request that the fact that there is a court case at all be kept secret.

Success depends on the federal states

Overall, there is no doubt that the new Law is to be welcomed. Despite the criticism that can and must be levelled against some provisions, it will improve the framework for the resolution of high-volume (international) commercial disputes in German courts. However, there are two caveats:

The first caveat has its root in the Law itself. As it places the burden to establish commercial chambers and commercial courts on the federal states, the extent to which it will be possible for civil court proceedings to be conducted entirely in English and the extent to which there will be specialized senates for high-volume commercial disputes will depend on whether the federal states will exercise their powers. In addition, the practical success of the Law will also depend on whether the federal states will make the necessary investments that will allow commercial chambers and commercial courts to strive. For example, they will need to make sure that commercial chambers and commercial courts are staffed with qualified judges who have the necessary professional and linguistic qualifications and ideally also practical experience to settle high-volume (international) commercial disputes. In addition, they will have to ensure that judges have sufficient time to deal with complex (national and international) cases. And, finally, federal states will have to ensure that sufficiently large and technically well-equipped hearing rooms are available for the kind of high-volume disputes that they seek to attract. Should federal states not be willing to make these kinds of investments commercial chambers and commercial courts will most likely be of limited use.

The second caveat concerns the likely success of the new Law with regards to international disputes. In fact, even if the federal states implement the new Law in a perfect manner, i.e. even if they establish a sufficient number of commercial chambers and commercial courts and even if they make the investments described above, it seems unlikely that German courts will become sought-after venues for the settlement of international commercial disputes. This is because the German civil justice system has numerous disadvantages when compared with international commercial arbitration. In addition, the attractiveness of German courts suffers from the moderate reputation and poor accessibility of German substantive law. Both problems will not disappear with the implementation of the new Law.

Against this background, the new Law holds the greatest potential for national high-volume commercial disputes. However, it should not be forgotten that these kinds of disputes represent only a small fraction of the disputes that end up before German courts each year. In order to really strengthen Germany as a place to settle dispute, it would, therefore, be necessary to address the problems that these cases are facing. However, while the (now former) Federal Minister of Justice made promising proposals to this effect in recent months, the collapse of the German government coalition in early November makes is unlikely, that these proposals will be adopted any time soon. In the interest of the German civil justice system as a whole, it is, therefore, to be hoped that the proposals will be reintroduced after the general election in early 2025.

 

[1]     Gesetz zur Stärkung des Justizstandortes Deutschland durch Einführung von Commercial Courts und der Gerichtssprache Englisch in die Zivilgerichtsbarkeit (Justizstandort-Stärkungsgesetz) vom 7. Oktober 2024, Bundesgesetzblatt (Federal Law Gazette) 2024 I Nr. 302.

[2]        Note that both the translations of the GVG and the ZPO do not yet include the amendments introduced through the new Law discussed in this post.

[3]        The German civil justice system divides responsibilities between the federal state (Bund) and the 16 federal states (Bundesländer). While the federal state is responsible for adopting unified rules relating to the organization of courts as well as the law of civil procedure (Art. 74 No. 1 of the Basic Law), the federal states are responsible for administering (most) civil courts on a daily basis (Art. 30 of the Basic Law). It is, therefore, the federal states that organize and fund most civil courts, appoint judges, and manage the court infrastructure.

On 29 November 2024 in Dijon, from 9 AM to 5 PM, the Centre de Recherche sur le Droit International des Marchés et des Investissements Internationaux (CREDIMI) of the University of Burgundy, in partnership with the Centre Droit Éthique et Procédures (CDEP) of the University of Artois, is organizing a colloquium titled La spécialisation du […]

Introduction

The New Zealand Court of Appeal has allowed an appeal against a permanent anti-suit and anti-enforcement injunction in relation to a default judgment from Kentucky, which the plaintiff alleged had been obtained by fraud: Wikeley v Kea Investments Ltd [2024] NZCA 609. The Court upheld the findings of fraud. It also did not rule out the possibility of an injunction being an appropriate remedy in the future. However, the Court concluded that an injunction could only be granted as a step of last resort, which required the plaintiff to pursue its right of appeal against the Kentucky judgment.

The background to the case is set out in a previous post on this blog (see also here). In summary, the case involved allegations of “a massive worldwide fraud” perpetrated by the defendants — a New Zealand company (Wikeley Family Trustee Ltd), an Australian resident with a long business history in New Zealand (Mr Kenneth Wikeley), and a New Zealand citizen (Mr Eric Watson) — against the plaintiff, Kea Investments Ltd (Kea), a British Virgin Islands company owned by a New Zealand businessman. Kea alleged that the US default judgment obtained by WFTL was based on fabricated claims intended to defraud Kea. Kea claimed tortious conspiracy and sought a world-wide anti-enforcement injunction, which was granted by the High Court, first on an interim and then on a permanent basis. Wikeley, the sole director and shareholder of WFTL, appealed to the Court of Appeal.

The Court of Appeal allowed the appeal against the grant of the injunction. At the same time, it upheld the High Court’s declarations that the Kentucky default judgment was obtained by fraud and that it was not entitled to recognition or enforcement in New Zealand. It also upheld the High Court’s damages award (for legal costs incurred in overseas proceedings in defence of the tortious conspiracy).

 

The judgment

There are two points from the judgment that I want to focus on here: the Court’s emphasis on comity, and the relevance of fraud as a basis for an anti-enforcement injunction.

Comity

An entire section of the judgment is dedicated to the concept of comity, which the Court relied on as a guiding principle. The Court said that it was necessary “to confront, head on, the appropriateness, in comity terms, of an order which … in substance, is addressed to United States courts and which could, at least in theory, provoke countermeasures, with the result that no legal system will be able to administer justice” (at [167]). Drawing on work by Professor Andrew Dickinson, the Court confirmed that comity was not simply “a matter of judicial collegiality” (at [164]). In the international system, comity was like “the mortar which cements together a brick house” (citing Judge Wilkey in Laker Airways Ltd v Sabena Belgian World Airlines 731 F 2d 909 (DC Cir 1984) at 937).

Anti-suit and anti-enforcement injunctions had the effect of interfering with comity, because they interfered with “the interests of a foreign legal system in administering justice within its own territory” (at [164]). Drawing again on Dickinson’s work, the Court said that anti-suit/enforcement injunctions “push[ed] at the boundaries of … the global system of justice” (at [166]). The Court disagreed (at [189]) with the High Court’s observation that the injunction “may even be seen as consistent with the requirements of comity”, insofar as the injunction had the effect of restraining a New Zealand company from abusing the process of the Kentucky court to perpetuate a fraud. The United States courts were “unlikely to look for or need the protection of New Zealand courts” and were “well capable of identifying fraud and ensuring no reward flows from it” (at [189]).

Extreme caution was necessary, therefore, before exercising the power to grant an anti-suit/enforcement injunction (at [176]). Comity required “the court to recognise that, in deciding questions of weight to be attached to different factors, different judges operating under different legal systems with different legal policies may legitimately arrive at different answers” (at [177]). Anti-enforcement injunctions were especially rare and were “characterised by particularly careful assessments of whether the relief sought is truly necessary and consistent with comity” (at [180]).

Because of these concerns, an anti-enforcement injunction should be “a measure of last resort” (referring again to Dickinson, at [185]). This meant that the Court in this case had to “at least await the outcome of the appeal process [in Kentucky] before considering whether to issue an anti-suit or anti-enforcement judgment” (at [186]).

 Fraud as a distinct category?

In the anti-enforcement context, some scholars have treated fraud as a distinct category of case that may justify the grant of an injunction: see, most recently, Hannah L Buxbaum and Ralf Michaels “Anti-enforcement injunctions” [2024] 56 NYU Journal of International Law and Politics 101 at 110-111, citing Ellerman Lines Ltd v Read [1928] 2 KB 144 (CA) in support. The Queensland Supreme Court also relied on Ellerman Lines when granting relief in aid of the New Zealand interim orders (Kea Investments Ltd v Wikeley (No 2) [2023] QSC 215 at [178]–[188], with the Queensland Court of Appeal upholding the reasoning in Wikeley v Kea Investments Ltd [2024] QSC 201).

The Court of Appeal’s reasoning casts doubt on the existence of fraud as a distinct category. In [176], the Court adopted Dickinson’s “convenient collection” of the following four categories that may justify anti-suit relief (see fn 157): that “the foreign court has acted or is likely to act in excess of its jurisdiction under international law, in violation of the requirements of natural justice, otherwise in a manner manifestly incompatible with New Zealand’s fundamental policies, or that its proceedings are likely significantly and irreversibly to interfere with the administration of justice in New Zealand”.

On the facts of the present  case, the Court thought that the category of natural justice was most relevant. The Court considered it “almost inevitable” that, had the New Zealand court been in the Kentucky court’s position, it would have set aside the default judgment, on the basis that the proceeding had not been drawn to Kea’s attention and sufficiently substantial grounds of defence had been made out (at [182]). The Court said that, in these circumstances, “[a]t least if the judgment were final, with all appeal rights exhausted and against a New Zealand entity … a New Zealand court might well consider that, despite its respect for the United States courts, a sufficiently fundamental policy issue was engaged – one ultimately based in principles of natural justice and fair hearing rights – that an anti-suit or anti-enforcement order should issue” (at [183], emphasis added).

What is more, the Court distinguished the case from Ellerman Lines Ltd v Read [1928] 2 KB 144 (CA) on the basis “there was no contractual jurisdiction clause that the New Zealand Court was seeking to enforce” (at [187]). It expressed “caution” about the proposition that the pursuit of the Kentucky proceedings should be injuncted because the proceeding was fraudulent and therefore “inherently unconscionable”, referring to criticism by Dickinson that the language of unconscionability is “a vestige of an earlier monotheistic society [which] no longer performs any useful role and obscures the real reasons for granting injunctions” (at [190]). A conclusion by the New Zealand court that the Kentucky proceeding was vexatious or oppressive had “the capacity to look patronising from the perspective of the United States – something which in comity terms should be avoided” (at [191]). The issue of fraud could be addressed by the United States court, “with all of the advanced legislative and common law apparatus available to it to do justice between the parties” (at [191]).

On the other hand, the Court clarified that it was not suggesting that “it would never be appropriate for a New Zealand court to issue a worldwide anti-enforcement order” (at [188], emphasis in original).

 

Comments

The Court’s detailed engagement with comity is heartening for anyone who is concerned about the destabilising effects of anti-suit/enforcement injunctions on the international system. Yet the reasoning is also underpinned by tension.

First, the Court seemed to eschew fraud as a distinct basis for the award of an anti-enforcement injunction, while accepting the appropriateness of determining whether the foreign proceeding was fraudulent (and granting declaratory relief to that effect). If the Court is willing to entertain a claim that the pursuit of a foreign proceeding forms part of a tortious conspiracy, why should this not provide a potential basis for an injunction (as opposed to, say, natural justice)?

This potential contradiction had flow-on effects for the scope of the Court’s orders, because the Court refused to discharge the appointment of interim liquidators of WFTL. Interim liquidators had been appointed after attempts by the defendant to assign the benefit of the Kentucky default judgment from WFTL to a United States entity, to “insulate” WFTL from “any New Zealand judgment” (at [43]). The Court considered that the appointment of interim liquidators was “for valid domestic reasons by ensuring assets available to satisfy any New Zealand judgment remained under the control of New Zealand parties” and that it was “unaffected by discharge of the anti-suit and anti-enforcement injunctions” (at [196], [211](e)). The Court acknowledged that the interim liquidators could face pressure to enforce the Kentucky default judgment “in order to meet the New Zealand judgment debt and costs awards against WFTL – this despite the judgments of the High Court and this Court finding claims under the Coal Agreement to be fraudulent and made pursuant to conspiracy” (at [201]). The Court did not “at this stage express any view about how the principles of international comity might respond to that particular scenario” (at [201]). Why is it a “valid domestic reason” to protect the satisfaction of a New Zealand judgment for damages that were incurred in defending the foreign fraudulent proceeding, but it is not a “valid domestic reason” to prevent enforcement of a judgment that is the result of such a fraudulent proceeding?

Second, while the injunction had the potential to interfere with comity, it was also, arguably, a tool for dialogue. The Court of Appeal was clear that the injunction could not be understood as “an act of comity”; and it thought it was unlikely that the Kentucky court would want or would need the help of the New Zealand Court. At the same time, it would be strange if the Kentucky court did not take account of the finding of fraud, or the concerns about natural justice. In this way, the Court of Appeal’s decision to treat the injunction as a last resort, and to require the plaintiff to pursue an appeal in Kentucky, may be seen as part of an unfolding dialogue between the courts that would not have happened – and would not have been possible – without the potential of anti-enforcement relief. At the very least, the decision will serve as a pointer to the Kentucky court that the default judgment has cross-border implications and gives rise to a risk of conflicting orders.

Third, the Court seemed to characterise the plaintiff’s decision to bring proceedings in New Zealand as a strategic move, noting that “WFTL’s New Zealand registration and its status as a trustee of a New Zealand trust provided a jurisdictional leg up with which to challenge enforcement [of the Kentucky default judgment]” (at [194]). This characterisation sits uncomfortably with the Court’s acceptance that the Kentucky proceeding – including the defendants’ choice of Kentucky as a forum – was itself based on fraudulent fabrications. It is one thing to conclude that the plaintiffs should have persevered in Kentucky by pursuing their appeal there, on the basis that a foreign court must be left to control its own proceedings. It is another to say that the plaintiff, by turning to the New Zealand court for help, was using WFTL’s registration in New Zealand as a “jurisdictional leg up” (cf also the Court’s discussion in [183] that there would be a potential case for an anti-enforcement injunction if the default judgment was in breach of a New Zealand entity’s rights to natural justice – that is, if the plaintiff was a New Zealand entity). Where a New Zealand entity is used as a vehicle for fraud, the New Zealand court may have a legitimate interest – or even a responsibility – to stop the fraud, albeit that an injunction is a measure of last resort.

Fourth, the Court of Appeal distinguished Ellerman Lines on the basis that the latter case involved an English jurisdiction clause. This reasoning suggests that anti-suit/enforcement relief may be an appropriate response to foreign proceedings brought in breach of a New Zealand jurisdiction clause, but that it may not be an appropriate response to foreign fraudulent proceedings between strangers. Why is it worse to suffer a breach of a jurisdiction clause, than to be dragged into a random foreign court on the basis of a fraudulent claim (including a forged jurisdiction clause in favour of the foreign court)? The Court did not address this question. The Court also did not address – but noted, in a different part of the judgment – the question whether a breach of a jurisdiction clause should justify injunctive relief as a matter of course (see footnote 158). Clearly, the Court did not think that this question was relevant to its decision to distinguish Ellerman Lines, but a more detailed discussion would have been helpful, to ensure the coherent development of the court’s power to grant anti-suit/enforcement injunctions.

On 2 December 2024, at 6 pm CET, a free webinar will take place in preparation of the 2025 edition of the EAPIL Winter School on Multistate Torts, which will be held on-site in Como between 10 and 15 February 2025 (see here for the full program and further details).

The webinar will give a glimpse of what the Winter School will be about and will briefly present some of its hot topics, such as online defamation, climate change litigation, artificial intelligence and crypto values.

The speakers are some of those who will be lecturing at the Winter School, namely Javier Carrascosa González (University of Murcia), Anatol Dutta (Ludwig Maximilian University of Munich), Thomas Kadner Graziano (University of Geneva), Tobias Lutzi (University of Augsburg), Satu Heikkilä (Administrative Law Judge), Silvia Marino (University of Insubria), Nadia Rusinova (The Hague University, attorney at law), Geert van Calster (KU Leuven) and Anna Wysocka-Bar (Jagiellonian University).

The webinar will also offer an opportunity to provide information about the EAPIL Winter School.

Join the free seminar to discover what awaits you during the Winter School week, and…if you want to know more, enrol and come to Como in February!

Those interested in attending the webinar shall write at eapilws@gmail.com in order to receive the Teams link.

More information on the Winter School is found here. To enrol in the Winter School, please fill in this form.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. The following abstracts have been kindly provided to us by the editor of the journal. Holger Fleischer and Heike Schweitzer, Ernst-Joachim Mestmäcker † 22 April 2024 (Open Access) Klaus Ulrich Schmolke, Das Prinzip der beschränkten Gesellschafterhaftung – Ein Streifzug […]

The University of Luxembourg will host an event to present a newly released book, European Account Preservation Order – A Multi-jurisdictional Guide with Commentary, published by Bruylant/Larcier. Co-edited by Nicolas Kyriakides (University of Nicosia), Heikki A. Huhtamäki (Huhtamäki Brothers Attorneys Ltd), and Nicholas Mouttotos (University of Bremen), the book offers a detailed analysis of Regulation […]

As foreign law assumes an increasingly significant role in judicial practice, the Swiss Institute of Comparative Law is pleased to announce a Workshop on Providing Information on Foreign Law to Courts, which will take place in Lausanne on November 26.

Renowned experts, both individuals and institutions, will delve into practical challenges and share insights, comparing practices from various countries, including England, France, Germany, Poland, Switzerland and USA.

Presentations will be conducted in English, in German or in French.

For further information, please contact: marie-laure.lauria@isdc-dfjp.unil.ch

The program for the workshop is available below or can be accessed here.

 

INDIVIDUAL EXPERTS

9.30-11.00

Chair: Dr. Lukas Heckendorn, Deputy Director, Swiss Institute of Comparative Law

• Experiences in Poland and Germany compared

Prof. Arkadiusz Wudarski, European University Viadrina Frankfurt

• A Common Law Experience

Prof. Franz Werro, University of Fribourg and Georgetown University

• French Experiences

Prof. Gustavo Cerqueira, Université Côte d’Azur

Discussion

11.00-11.30: Coffee break

 

INSTITUTIONAL EXPERTS

11.30-12.30

Chair: Dr. Ilaria Pretelli, Legal Adviser, Swiss Institute of Comparative Law

• The German Approach: The Max Planck Guidelines

Jan Peter Schmidt, Priv.-Doz., Max Planck Institute for Comparative and International Private Law, Hamburg

• The Swiss Approach: experience of SICL

Lukas Heckendorn Urscheler, Deputy Director, Swiss Institute of Comparative Law

Discussion

12.30-13-30 : Lunch

BARCAMP

13.30-16.00

Moderator: Prof. Nadjma Yassari, Director, Swiss Institute of Comparative Law

A Barcamp session is an open and interactive format that encourages collaboration and idea-sharing. Since all participants join every session, the process is highly collaborative, ensuring focused, inclusive, and enriching discussions for everyone involved.

• Proposing Topics: Any participant can suggest a topic, which will be guided by a moderator.
• Moderated Discussions: A designated moderator ensures the session stays focused and that everyone has the chance to contribute.
• Flexible Structure: Sessions can take the form of a short presentation, group discussion, or collaborative brainstorming.
• Open Exchange: Everyone is encouraged to actively contribute their ideas, perspectives, and questions.
• Shared Learning: The goal is to exchange knowledge, explore new approaches, and learn from each other.

16.00: closure of event