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Issue 1 of the Journal of Private International Law is now available. It contains the following articles:

Rhona Schuz, Choice of law in relation to matrimonial property in the 21st century, pp. 1-49

Abstract: The traditional lack of consensus in relation to the choice of law rule/s governing matrimonial property has become topical and relevant over the last few years. The European Union, concerned about the impact of the disparities between the laws of Member States in this field, in the light of increasing divorce and migration, embarked on an initiative to harmonize private international law rules in relation to matrimonial property. However, the Regulation which it produced did not command universal support. Moreover, the recent demographic changes in Europe have added a new dimension to the problem. To date, relatively little attention has been paid to the choice of law implications of migration from non-Western States, in which religious or customary law governs the economic consequences of marriage and which typically have separate property systems which discriminate against women. The mass migration into Europe from such States over the past few years makes it imperative to consider the implications of the choice of law rules in relation to matrimonial property for migrants from non-Western States.

Accordingly, in the light of these developments, there is a need to revisit critically the issues involved and the different approaches to choice of law in relation to matrimonial property in the light of modern choice of law theory. This article meets this need by analysing the extent to which the various approaches best promote central choice of law objectives. In addition, insights are gleaned from the experience of the Israeli legal system in relation to couples migrating from Islamic States. The conclusions drawn from this analysis, which are significantly different from those which informed the EU Regulation, will be of value to law and policymakers throughout the world, when facing the challenge of making decisions pertaining to choice of law in relation to matrimonial property in the twenty-first century.

Liam W. Harris, Understanding public policy limits to the enforceability of forum selection clauses after Douez v Facebook, pp. 50-96

Abstract: This article explores the nature of public policy limits to the enforcement of forum selection clauses, recently considered by the Supreme Court of Canada in Douez v Facebook. The public policy factors relied on by the plurality of the Court, inequality of bargaining power and the quasi-constitutional nature of the right at issue, possess neither the doctrinal clarity nor the transnational focus necessary to guide the deployment of public policy in this context. Here, I argue for a public policy exception to the enforcement of forum selection clauses based on the doctrine of mandatory overriding rules. This approach would focus on whether a forum selection clause has the effect of avoiding the application of local norms intended to enjoy mandatory application in the transnational context. This conception of public policy would be a more coherent guide to the exercise of courts’ discretion to enforce forum selection clauses in cases like Douez.

Adeline Chong & Man Yip, Singapore as a centre for international commercial litigation: party autonomy to the fore, pp 97-129

Abstract: This article considers two recent developments in Singapore private international law: the establishment of the Singapore International Commercial Court and the enactment of the Hague Convention on Choice of Court Agreements 2005 into Singapore law. These two developments are part of Singapore’s strategy to promote itself as an international dispute resolution hub and are underscored by giving an enhanced role to party autonomy. This article examines the impact of these two developments on the traditional rules of private international law and whether they achieve the stated aim of positioning Singapore as a major player in the international litigation arena.

Muyiwa Adigun, Enforcing ECOWAS judgments in Nigeria through the common law rule on the enforcement of foreign judgments, pp. 130-161

Abstract: The ECOWAS Court was established by the Revised ECOWAS Treaty. By virtue of that treaty, the Court has assumed an existence at the international plane and has delivered a number of judgments. This study therefore examines the enforcement of the judgments of the ECOWAS Court in Nigeria as a Member State. The study finds that Nigeria has not been enforcing the judgments of the Court like other Member States. The study further finds that there are five sources of international law namely: treaties, custom, general principles of law recognised by civilised nations, judicial decisions and the writings of the most qualified publicists and that while Nigerian law has addressed domestic effect of treaties and custom, that of other sources most notably the decisions of international tribunals has not been seriously addressed. The study therefore argues that the common law on the enforcement of foreign judgments can be successfully adapted to give domestic effect to the judgments of the ECOWAS Court as an international tribunal in Nigeria. The study therefore recommends that the Nigerian judiciary should take the gauntlet to make the judgments of the ECOWAS Court effective in Nigeria.

Justin Monsenepwo, Contribution of the Hague Principles on Choice of Law in International Commercial Contracts to the codification of party autonomy under OHADA Law, pp. 162-185

Abstract: The Organization for the Harmonization of Business Law in Africa (hereinafter referred to as OHADA) was created on 17 October 1993 to foster economic development in Africa by creating a uniform and secure legal framework for the conduct of business in Africa. In an effort to reform the law of contracts in its Member States, OHADA has prepared the Preliminary Draft of the Uniform Act on the Law of Obligations (hereinafter referred to as the Preliminary Draft). Several provisions of the Preliminary Draft set forth general principles concerning choice of law in international commercial contracts. Indeed, the Preliminary Draft encompasses innovative provisions on party autonomy in international contracts, such as the explicit recognition of the right of parties to choose the law applicable to their contracts and the inclusion of limited exceptions to party autonomy (overriding mandatory rules and public policy). Yet, it still needs to be improved in respect of various issues, including for instance the ability of parties to choose different laws to apply to distinct parts of their contract and the possibility for the parties to expressly include in their choice of law the private international law rules of the chosen law. This paper analyses the provisions of the Preliminary Draft in the light of the Hague Principles on Choice of Law in International Commercial Contracts (hereinafter referred to as the Hague Principles). More particularly, it explores how the Hague Principles can help refine the rules on party autonomy contained in the Preliminary Draft to enhance legal certainty and predictability in the OHADA region.

Jeanne Huang, Chinese private international law and online data protection, pp. 186-209

Abstract: This paper explores how Chinese private international law responds to online data protection from two aspects: jurisdiction and applicable law. Compared with foreign laws, Chinese private international law related to online data protection has two distinct features. Chinese law for personal jurisdiction is still highly territorial-based. The “target” factor and the interactive level of a website have no play in Chinese jurisprudence. Regarding applicable law, Chinese legislators focus more on the domestic compliance with data regulations rather than their extra-territorial application. Moreover, like foreign countries, China also resorts to Internet intermediaries to enhance enforcement of domestic law. These features should be understood in the Chinese contexts of high-level data localization and Internet censorship.

Giorgio Risso, Product liability and protection of EU consumers: is it time for a serious reassessment? pp 210 – 233 

Abstract: The European Union (EU) has not enacted a coherent and fully-fledged product liability regime. At the substantive level, the Product Liability Directive – adopted in 1985 – is the only piece of legislation harmonising the laws of the Member States. At the private international law level, the special choice-of-laws provision in the Rome II Regulation coexists with the general rules in the Brussels I-bis Regulation. Cross-border product liability cases are therefore subject to different pieces of legislation containing either “general” or “specific” provisions. In turn, such general and specific provisions do have their own rationales which, simplistically, can be inspired by “pro-consumer”, “pro-producer”, or more “balanced” considerations, or can be completely “indifferent” to consumer protection. This article examines the interactions between the Directive, the Rome II and the Brussels I-bis Regulations in cross-border product liability cases. The aim of this article is to assess whether the piecemeal regime existing at the EU level risks undermining the protection of EU consumers. The analysis demonstrates that the regime is quite effective in guaranteeing an adequate level of consumer protection, but reforms are needed, especially to address liability claims involving non-EU manufacturers or claims otherwise connected to third States, without requiring a complete overhaul of the EU product liability regime.

Guangjian Tu, The flowing tide of parties’ freedom in private international law: party autonomy in contractual choice of law in China, pp. 234-240 (Review Article)

 

Building on the successful conferences held in Aberdeen (2005), Birmingham (2007), New York (2009), Milan (2011), Madrid (2013), Cambridge (2015) and Rio (2017) the Journal of Private International Law will be holding its 8th Conference at the University of Munich from 12 – 14 September 2019.

Following the call for papers the Editors of the Journal (Professor Jonathan Harris QC of King’s College, Londonand Professor Paul Beaumont FRSE of the University of Aberdeen) and the organizer of the conference (Professor Anatol Dutta, University of Munich) have selected from a great number of applications from all over the world a variety of papers covering all areas of private international law which will be presented in a mixture of plenary (Friday) and parallel panel sessions (Thursday afternoon and Saturday morning).

We ask all speakers and guests to register via this website.

We thank the publisher Routledge and the German Federal Chamber of Notaries  for their generous support.

Case C-18/18 Eva Glawischnig-Piesczek v Facebook as I noted in my short first review of the case, revolves around Article 15 of the E-Commerce Directive. Does Article 15 prohibit the imposition on a hosting provider (Facebook, in this case) of an obligation to remove not only notified illegal content, but also identical and similar content, at a national or worldwide level?

Szpunar AG kicks off with a memorable Erica Albright quote from The Social Network:  The internet’s not written in pencil, [Mark], it’s written in ink’. 

His Opinion to a large degree concerns statutory interpretation on filtering content, which Daphne Keller has already reviewed succinctly here and which is not the focus of this blog. The jurisdictional issues are what interest me more: the territorial scope of any removal obligation.

Firstly, Szpunar AG matter of factly confirms my reading, against that of most others’, of his Opinion in C-505/17 Google: at 79:

‘in my Opinion in that case I did not exclude the possibility that there might be situations in which the interest of the Union requires the application of the provisions of that directive beyond the territory of the European Union.’

Injunctions (ordering removal) are necessarily based on substantive considerations of national law (in the absence of EU harmonisation of defamation law); which law applies is subject to national, residual conflicts rules (in the absence of EU harmonisation at the applicable law, level, too): at 78. Consequently, a Court’s finding of illegality (because of its defamatory nature) of information posted may well have been different had the case been heard by a court in another Member State. What is however harmonised at the EU level, is the jurisdiction for the civil and commercial damage following from defamation: see e-Date, in particular its centre of interests rule which leads to an all-encompassing, universal’ jurisdiction for the damages resulting from the defamation.

Separate from that is the consideration of the territorial extent of the removal obligation. Here, the AG kicks off his analysis at 88 ff by clearly laying out the limits of existing EU harmonisation: the GDPR and data protection Directive harmonise issues of personal data /privacy: not what claimant relies on. Directive 2000/31 does not regulate the territorial effects of injunctions addressed to information society service providers. Next, it is difficult, in the absence of regulation by the Union with respect to harm to private life and personality rights, to justify the territorial effects of an injunction by relying on the protection of fundamental rights guaranteed in Articles 1, 7 and 8 of the Charter: the scope of the Charter follows the scope of EU law and not vice versa. In the present case, as regards its substance, the applicant’s action is not based on EU law. Finally, Brussels Ia does not regulate the extra-EU effects of injunctions.

For the sake of completeness, the AG does offer at 94 ff ‘a few additional observations’ as regards the removal of information disseminated worldwide via a social network platform. At 96 he refers to the CJEU’s judgment in Bolagsupplysningen which might implicitly have acknowledged universal jurisdiction, to conclude at 100 (references omitted)

the court of a Member State may, in theory, adjudicate on the removal worldwide of information disseminated via the internet. However, owing to the differences between, on the one hand, national laws and, on the other, the protection of the private life and personality rights provided for in those laws, and in order to respect the widely recognised fundamental rights, such a court must, rather, adopt an approach of self-limitation. Therefore, in the interest of international comity…, that court should, as far as possible, limit the extraterritorial effects of its junctions concerning harm to private life and personality rights. The implementation of a removal obligation should not go beyond what is necessary to achieve the protection of the injured person. Thus, instead of removing the content, that court might, in an appropriate case, order that access to that information be disabled with the help of geo-blocking.

There are very sound and extensive references to scholarship in the footnotes to the Opinion, including papers on the public /private international law divide and the shifting nature of same (the Brussels Court of Appeal recently in the Facebook case justifiably found jurisdictional grounds in neither public nor private international law, to discipline Facebook Ireland and Facebook Inc for its datr-cookies placed on Belgian users of FB).

I find the AG’s Opinion convincing and complete even in its conciseness. One can analyse the jurisdictional issues until the comes come home. However, in reality reasons of personal indemnification may argue in specific circumstances for universal jurisdiction and ditto reach of injunctive relief. However these bump both into the substantial trade-off which needs to be made between different fundamental rights (interest in having freedom removed v freedom of information), and good old principles of comitas gentium aka comity. That is not unlike the US judicial approach in similar issues.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5.

On 10–11 October 2019, the Albert-Ludwig-University of Freiburg (Germany) will host the final conference of the German branch in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE). Funded by the Justice Program (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims and the Account Preservation Order Regulations. As a result, a database of CJEU and national case law has been created which is available here. The project is carried out by a European consortium (the MPI Luxembourg and the universities of Antwerp, Complutense (Madrid), Milan, Rotterdam, and Wroclaw) and is coordinated by Prof. Jan von Hein, Freiburg. Confirmed speakers include Professors Eva Lein (Lausanne), Caroline Meller-Hannich (Halle), Christoph Althammer (Regensburg), Florian Eichel (Bern), Christian Heinze (Hanover), Haimo Schack (Kiel), and Michael Stürner (Konstanz). In addition, the conference will feature a panel discussion by distinguished practitioners, Prof. Dr. Andreas Baumert (Achern), Dr. David Einhaus (Freiburg), and Dr. Carl Friedrich Nordmeier (Frankfurt). The language of the conference will be German. Participation is free of charge (except for the dinner), but requires a registration. For further information about the program and the process of registration, please click here.

The CJEU this morning held (without AG Opinion) in C-361/18 Ágnes Weil v Géza Gulácsi.

Overall context is that Brussels Ia does not apply to ‘the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession’.

Ms Weil and Mr Gulácsi were unregistered partners. Mr Gulácsi was ordered by Hungarian court order to pay Ms Weil approximately EUR 2 060, together with interest for late payment, by virtue of the settlement of rights in property arising out of their de facto (unregistered) non-martial partnership. Ms Weil later applied to the same court to have it issue the Article 53 certificate which would facilitate her enforcement in the UK (where Mr Gulácsi lives and has a regular income). Questions raised, were

‘(1)      Is Article 53 of Regulation … No 1215/2012 to be interpreted as meaning that, if requested by one of the parties, the court of the Member State that delivered the decision must issue the certificate relating to the decision automatically, without examining if [the case] falls within the scope of Regulation … No 1215/2012?

(2)      If the answer to the first question is in the negative, is Article 1(2)(a) of Regulation … No 1215/2012 to be interpreted as meaning that a repayment action between members of an unregistered non-marital [de facto] partnership falls within the scope of the rights in property arising out of a relationship deemed … to have comparable (legal) effects to marriage?’

The  Court answers the first question in the negative: at the recognition and enforcement stage, things must go very swift indeed. The mutual trust required of courts must be backed up by proper consideration of the Regulation by the courts of the Member State of initial adjudication: at 33:

‘the need to ensure the swift enforcement of judgments, while preserving the legal certainty on which the mutual trust in the administration of justice in the European Union is based, justifies, in particular in a situation such as that of the main proceedings — where the court which gave the judgment to be enforced did not adjudicate, when giving that judgment, on whether [Brussels I and Ia] was applicable — that the court hearing the application for the certificate ascertains, at that stage, whether the dispute falls within that regulation.’

It adds at 35 that

the enforcement procedure, under Regulation No 44/2001, precludes, like enforcement under Regulation No 1215/2012, any subsequent review on the part of a court of the Member State addressed of whether the action giving rise to the judgment for which enforcement is sought falls within the scope of Regulation No 44/2001, the grounds for challenging the declaration that a judgment is enforceable being exhaustively laid down by that regulation.

This I find interesting for unless I missed it, there has not yet been a CJEU decision holding this much and as I discuss on pp 191-192 of the Handbook, there is scholarly discussion on same.

With respect to the matrimonial property exception, the CJEU after of course emphasising the need for a restrictive interpretation of the exceptions, acknowledges that Brussels Ia has extended this but only to relationships deemed comparable to marriage (at 44). Unregistered partnerships do not qualify.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.1.2, Heading 2.2.16.1.2 .

The Käte Hamburger Center for Advanced Study “Law as Culture” invites academics of excellent standing to apply for a fellowship or junior fellowship for a maximum of 12 months (for the research period from April 1, 2020, to March 31, 2022) on the subject:

Law and Community

Subsequent to developing the “Law as Culture” paradigm in the first funding phase (2010-2016), the Center will now direct its attention to the interaction between law and other cultural spheres in the second funding phase (2016-2022). During the stated research period, the Center is dedicated to examining the relationship between Law and Community. Within this research area, the diversity of cultures of family law and societal forms globally will be examined. Research projects shall also be oriented towards one of the Center’s three traversal dimensions, namely “Cultures of Differentiation and Comparing Legal Cultures,” “Human Rights and Autonomy,” or “The Binding Force and the Emotive Foundations of the Law.”

The tensions described and analyzed as contradictions of normative orders in theories of legal pluralism can only be understood with view to the social communities hiding behind these with their respective religious, indigenous, local, and regional claims. In this context, the question of how these social communities are held together requires closer examination, as does their relationship to secondary, superordinate, and subordinate legal ties. Concretely speaking, ideas of superior or even universalist legal communities, such as the European Legal Community or a Human Rights Community, should be explored while bearing in mind the normative and emotionally affective boundaries of community building.

Shaped by social proximity and emotional entanglement, the family continues to be regarded as a central place where societal values are reproduced, goods are distributed, and mutual responsibility is assumed. The longstanding principle of family solidarity is reflected in numerous legal orders. At the same time, however, family law also mirrors changing family forms and family ideals. A wideranging transformation of society and its normative foundations manifests in the pluralization of family forms. It is precisely on the basis of that which constitutes the normative character of the family that constructions of “us” and “them” become clear. In cases involving foreign elements, for example, the law of the “other” is applied using private international family law; exceptions based on public policy nevertheless call for a “we.”

In addition to the comparison of family law cultures, the research area Law and Community seeks the comparison of (legal) cultures at the level of other forms of community and their connection to applicable law: Which social norm systems form traditional local neighborhoods, modern clan structures, or “post-traditional communities” in contemporary subcultures, and what is their relationship to state law? How are these particular claims to universal validity conveyed? To what extent is valid law accepted by them or pragmatically integrated, and do they attempt to enforce the ideas of norms beyond their own group boundaries?

The Käte Hamburger Center for Advanced Study “Law as Culture” offers a creative research atmosphere for various disciplines in the cultural and legal sciences. Academics of excellent standing are invited to apply by July 15, 2019. Applications should include a résumé, project description (5-10 pages), and selected publications, as well as list the applicant’s availability during the research period. They should be submitted preferably by email (kaesling@uni-bonn.de) or, alternatively, by mail:

Directorate of the Käte Hamburger Center for Advanced Study “Law as Culture”
c/o Dr. Katharina Kaesling
Research Coordinator
Konrad-Zuse-Platz 1-3
53227 Bonn
Germany

Further information can be found here.

Bobek AG opined end of May in C-198/18 CeDe Group v KAN. I am posting a touch late for well, readers will know I have not been fiddling my thumbs. The Opinion concerns the lex causae for set-off in accordance with the (2000) Insolvency Regulation – provisions for which have not materially changed in the current version of the EIR (Regulation 2015/848). At stake are Articles 4 cq 6 and 7 cq 9 in the two versions of the Insolvency Regulation.

The liquidator of PPUB Janson sp.j. (‘PPUB’), a Polish company the subject of insolvency proceedings in Poland, lodged before the Swedish courts an application against CeDe Group AB (‘CeDe’), a Swedish company, claiming payment for goods delivered under a pre-existing contract between PPUB and CeDe, which is governed by Swedish law. In the course of those proceedings, CeDe claimed a set-off in respect of a larger debt owed to it by PPUB. The liquidator had previously refused that set-off within the framework of the Polish insolvency proceedings. During the course of the procedure before the Swedish courts, PPUB’s liquidator assigned the claim against CeDe to another company, KAN sp. z o.o. (‘KAN’), which subsequently became insolvent. However, KAN’s liquidator refused to take over the claim at issue, with the result that KAN (in insolvency) is now party to the litigation

The Supreme Court, Sweden) doubts the law applicable to such a set-off claim. Before the referring court, KAN claimed that the set-off claim should be heard under Polish law, whereas CeDe submitted that that issue should be examined under Swedish law. Both of course reverse-engineered their arguments to support opposing views.

The Advocate General in trademark lucid style navigates the facts and issues (not helped by the little detail seemingly given by the referring court). Complication is of course that the general Gleichlauf rule of the EIR is repeatedly tempered by ad hoc regimes for specific claims or claimants. Like the Commission, Bobek AK focuses on the Regulation’s stated aim (recital 26 of the 2000 EIR; recital 70  in the 2015 EIR) of having the set-off regime fulfill its role as a guarantee for international commercial transactions: at 74: ‘adopting an approach focused on the concrete outcomes produced by the respective applicable laws in conflict in a given case, the test to be applied must zero in on the specific solution that would be arrived at by the law applicable to the main claim’.

An Opinion very much soaked in commercial reality.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.7.

At the Institute for Comparative and Private International Law of the Albert-Ludwig-University Freiburg (Germany), a vacancy has to be filled at the chair for private law, private international law and comparative law (chairholder: Prof. Dr. Jan von Hein), from 1 October, 2019 with

a legal research assistant (salary scale E 13 TV-L, personnel quota 50%)

The assistant is supposed to support the organizational and educational work of the chairholder, to participate in research projects of the chair as well as to teach his or her own courses (students’ exercise). Applicants are offered the opportunity to obtain a doctorate.

Applicants are expected to be interested in the chair’s main areas of research. They should be fluent in German and possess an above-average German First State Examination (at least “vollbefriedigend”) or a foreign equivalent degree. In addition, a thorough knowledge of German civil law as well as conflict of laws, comparative law and/or international procedural law is a necessity. Severely handicapped persons will be preferred provided that their qualification is equal.

Please send your application (CV, certificates and, if available, further proofs of talent) as a single pdf file via e-mail to ipr3@jura.uni-freiburg.de no later than 15 July, 2019. Alternatively, the documents may be sent to Prof. Dr. Jan von Hein, Institut für ausländisches und internationales Privatrecht, Abt. III, Peterhof, Niemensstr. 10, D-79098 Freiburg (Germany). As the application documents will not be returned, applicants are kindly requested to submit only unauthenticated copies.

I shall be spending a few weeks as a distinguished (yes, me!) visiting scholar at University of Macau in September. As part of my commitments there I shall be joining

• Professor Paulo Canelas de Castro (University of Macau)
• Professor Qin Tianbao (Wuhan University)
• Professor Ben Boer (Wuhan University)
• Professor Alexander Zahar (Wuhan University)
• Professor Benoit Mayer (The Chinese University of Hong Kong)

in the committee for a workshop on the writing of academic articles in the environmental law area. That’s quite a committee if you ask me.

We shall be assisting around twelve early-career environmental law scholars to publish an original research article on environmental law in English in an international top-tier journal.

At this moment we are looking in particular for a number of scholars based outside PRC to join the excellent Chinese candidates. All info is here. Deadline is tight: initial short abstract and CV are due Friday next, 7 June.

Geert.

 

The European Conference on Mediation in Cross-Border Succession Conflicts invites mediators, legal practitioners, researchers, policymakers and citizens who are interested in succession mediation and cross-border mediation. The EU-funded project FOMENTO (Fostering mediation in cross-border civil and succession matters) aims to contribute to foster a widespread use of mediation as a cost-effective solution to prevent and solve international disputes in civil and succession matters. The conference will take place in Leipzig (Germany) on 26 June 2019. It is a possibility for mediators and jurists to get in contact and exchange experience in the field of succession conflicts. It also provides a venue for giving and receiving constructive feedback on research in progress, networking and discussions for the advancement of mediation across Europe. The main topics of the conference include

• mediation in cross-border succession cases,
• cross-border mediation
• co-mediation in a cross-border context
• online mediation

For the full programme and registration, please click here.

The successful conclusion of the 7th edition PAX Moot Competition marked the 50th anniversary of EU Private International Law and was named after one of its “founding fathers”, Paul Jenard, who served as the Rapporteur of the 1968 Brussels Convention.

The PAX Competition is a specialized moot court competition focused on private international law issues. The PAX Competition was set up originally by Sciences Po (Paris) in 2012. Since 2018, the organising team includes private international law experts from different Universities and research institutions. This year, the University of Antwerp and the T.M.C. Asser Institute collaborated with Sciences Po in organising this moot court competition.

We are grateful for the support and the funding received from the European Commission, through the  JUDGTRUST project coordinated by the T.M.C. Asser Institute, and in particular thank our colleagues of the T.M.C Asser Institute for the excellent facilities provided for the moot.

On May 24 and 25, 2019, eleven teams from six States, including the Russian Federation and India, met in The Hague for the oral rounds of this competition. We would like to thank all participating teams for their commitment and excellent work on the moot! We congratulate the University of Antwerp as the winner of the 2019 Jenard Round of the Pax Competition and the University of Sorbonne for writing the winning memorials!

Registration for the 2020 is set to be open from November 2019 . We invite teams from all corners of the European Union and beyond to participate in the next edition of this Private International Law endeavour!

On Wednesday 12 June 2019, at 13.30, the Department of International, Legal, Historical and Political Studies of the University of Milan will host the conference “New Rules on Property Regimes for International Couples”.

Speakers include Ilaria Viarengo (University of Milan), Maria Vilar Badia (European Commission), Andrea Bonomi (Swiss Institute of Comparative Law), Cristina González Beilfuss (University of Barcelona), Janeen Carruthers (University of Glasgow), Paolo Pasqualis (Notary), Monica Velletti (Judge), Cinzia Calabrese (President of AIAF) and Pietro Franzina (University of Ferrara).

See here for registration, programme and further information.

[2019] EWCA Civ 768 BNP Paribas v Trattamento Rifiuti Metropolitani Spa engages the issue of apparently competing jurisdiction clauses under Article 25 Brussels Ia. The appeal against Knowles J’s findings at the High Court was dismissed.

The issue raised on the appeal is whether the judge was correct to conclude that the claims for declaratory relief sought in the Claim fall within an English jurisdiction clause  (EJC) contained in a swap transaction between the parties and not within an Italian jurisdiction clause (IJC) contained in a financing agreement (an ISDA Master Agreement) between them – further facts are best read in the judgment.

At 44 ff Hamblen LJ first considers two preliminary issues: (i) the relevance of Italian law and (ii) the relevant “dispute” or “disputes”. On (i), expert Italian opinion was considered however rejected essentially as being overkill: Where the applicable law of the contract is foreign law, questions of interpretation are governed by the applicable law. In such a case the role of the expert is not to give evidence as to what the contract means. The role is “to prove the rules of construction of the foreign law, and it is then for the court to interpret the contract in accordance with those rules” (authority cited: Lord Collins in Vizcaya Partners Ltd v Picord [2016] UKPC 5) and ‘The task of the English court is merely to inform itself of any relevant different principles of construction there might be in the foreign law and, armed with such information, look at both jurisdiction clauses and decide whether the English claim falls within the English clause. That should be a comparatively straightforward exercise.” (Longmore LJ in Savona). At 54: ‘The primary rule is Article 1362 of the Italian Civil Code, under which the literal meaning of the words must be considered. It is only if that meaning is not clear that one goes on to consider later Articles, although they may be used as a cross check.’ ‘[A]lthough the Italian jurisdiction clause was governed by Italian law, the judge was entitled to approach the task of interpreting the EJC and the IJC by reference to English law relating to the interpretation of such provisions, concentrating on the meaning of the words used in their relevant context’: at 55.

On the ‘relevant dispute’, at 56: ‘The interpretation of the scope of a jurisdiction clause falls to be considered at the time that jurisdiction agreement is made, at which time there will be no “dispute” unless, which is not this case, it is an ad hoc agreement relating to existing disputes.’ At 59: ‘Where proceedings are commenced in this country in reliance on an English jurisdiction clause and a jurisdictional challenge is raised, the issue of whether the clause may be so relied upon is to be answered by reference to the claim in relation to which those proceedings have been issued.’ At 61: ‘The answer to this question cannot change by reason of subsequent events, such as a defence raised or a subsequent set of proceedings, like the Italian Claim.’ (Follows reference to CJEU C-214/89 Powell Duffryn Plc v M Petereit).

Applied to the case at issue and having established that English law (of contractual interpretation and the ordinary meaning of the words) applies, Hamblen LJ summarises authority as follows (at 68; authority omitted)):

(1) Where the parties’ overall contractual arrangements contain two competing jurisdiction clauses, the starting point is that a jurisdiction clause in one contract was probably not intended to capture disputes more naturally seen as arising under a related contract.

(2) A broad, purposive and commercially-minded approach is to be followed.

(3) Where the jurisdiction clauses are part of a series of agreements they should be interpreted in the light of the transaction as a whole, taking into account the overall scheme of the agreements and reading sentences and phrases in the context of that overall scheme.

(4) It is recognised that sensible business people are unlikely to intend that similar claims should be the subject of inconsistent jurisdiction clauses.

(5) The starting presumption will therefore be that competing jurisdiction clauses are to be interpreted on the basis that each deals exclusively with its own subject matter and they are not overlapping, provided the language and surrounding circumstances so allow.

(6) The language and surrounding circumstances may, however, make it clear that a dispute falls within the ambit of both clauses. In that event the result may be that either clause can apply rather than one clause to the exclusion of the other.

At 69 ff this leads in casu to a finding of fairly clear distinct application in light of the clear contractual set-up between parties. At 77 this is supplemented by a straightforward finding of which relationship is relevant for which choice of court clause. Like the High Court, the Court of Appeal concluded that the two jurisdiction clauses governed different relationships and did not materially overlap.

At 112 Longmore LJ adds that the Court’s interpretation ‘accords with the objects of the Regulation of: (i) allowing the claimant easily to identify the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued; and (ii) enabling the court seised to be able readily to decide whether it has jurisdiction, without having to consider the substance of the case.’

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.9.

Written by Sophie Hunter

Since 2017, the Supreme People’s Court of China (SPC) has established three internet courts in Hangzhou, Beijing and Guangzhou which are major hubs for e-commerce, the internet industry and the headquarters of giant internet companies like Alibaba and Baidu. With an internet penetration of 54% and approximately 800 million internet users, the introduction of such courts helps to reduce the rising number of online disputes between citizens in a time and cost efficient way thanks to the admissibility of blockchain backed online data as evidence. China’s leading role in internet litigation comes at no surprise since regular courts favor documentary evidence over live testimony and already so much is done online.

This post sheds light on this new model and how it has potential to influence other jurisdictions.

China’s political strategy towards innovation and internet

Like many other countries, China views the Internet as key to its future growth and development opportunities. The Chinese government maintains the world’s most sophisticated internet censorship apparatus called the Great Firewall. After the 2017 cybersecurity law, the level of internet freedom in the country declined as a result of strengthened repressive restrictions on online activities and onerous financial burdens on technology companies, independent media, and bloggers. President Xi Jinping announced plans at the 19th Communist Party Congress in October 2017 to transform China into a “cyber superpower”. China’s Internet Plus strategy, which is part of this initiative, encompasses innovations such as internet courts, in order to actively promote the healthy development of e-commerce, industrial networks, and Internet banking, as well as facilitate the growth of new industries and the expansion of its companies’ international Internet footprint. Although China has recently clamped down on cryptocurrencies, it hailed blockchain development in its five-year plan to 2021.

The new model of specialized courts for internet-related disputes or Internet Courts

According to the Provisions published by the SPC (Provisions on Several Issues Concerning the Trial of Cases by the International Courts) the Internet Courts focus on disputes involving: the online sale of goods and services, lending, copyright and neighboring rights ownership and infringement, domains, infringement on personal rights or property rights via the Internet, product liability claims, and Internet public interest litigation brought by prosecutors. The litigation process is conducted solely online, including the service of legal documents, the presentation of evidence, and the actual trial itself which, to comply with principles of trial in person and direct speech principle, rely on the online video system.

A major advantage of such courts is that it addresses the increasing workload and burden on the judiciary. The average duration of these online trials in Hangzhou in 2017/18 was 28 minutes, and the average processing period from filing to trial and conclusion was 38 days. However, the Hangzhou Internet Court has also been criticized for its lack of impartiality, since it is technically supported by Alibaba and its subsidiaries which are related to most disputes in the region. Other courts have not faced such criticism.

Blockchain mechanisms as a new method to authenticate evidence

Blockchain-related innovations are increasingly becoming relevant to legally authenticate evidence. Since a blockchain generates immutable, time-stamped data which can then be used as an auditable trail, it seems likely that the legal sphere will get heavily influenced in the near future by the security of the blockchain (which is set before any transactions or documentation takes place). China is ahead of the game in this respect. At the 2019 Forum on China Intellectual Property Protection, the president of the Beijing Internet Court (established in September 2018, and has since processed 14,904 cases) reportedly said that the court employs technologies such as artificial intelligence (AI) and blockchain to render judgement.

Since most of the evidence in the cases heard by Internet Courts is electronic data and is stored on the Internet, the SPC outlined in its Provisions that the Internet court can rely on evidence provided by the parties that can be authenticated by electronic signatures, time stamps, hash value verification, blockchain and other tamper-proof verification methods. Before the implementation of the Provisions, the Internet Court in Hangzhou for the first time in China admitted evidence that was authenticated by blockchain technology in an online copyright infringement case, which confirmed that data uploaded to a blockchain platform reflected its source, generation and path of delivery, and were therefore reliable evidence. Since, China’s Supreme Court ruled that evidence authenticated with blockchain technology is binding in legal disputes.

Internet courts rely on blockchain to deal with a range of cases such as disputes over liability for Internet tort and other types of Internet-related disputes in the areas of intellectual property rights and administrative litigation. An Internet judge in China’s Hangzhou province relied on blockchain to defend Intellectual Property rights because such technology is paramount to safeguard authors’ ownership over their work. In August 2018, the same court handed down a judgment on China’s first case of unfair competitionin big data products. As Wang Jiangqiao, a judge at the Internet Court, sums up “since blockchain guarantees that data can not be tampered, all digital footprints stored in the judicial blockchain system have legal effect.”

Can this model be exported to Western jurisdictions?

With the increasing reliance on internet for both private and business matters, the number of disputes is likely to increase in the near future. Internet Courts like the ones in China could provide a model to improve efficiency, significantly reduce costs and address infringements that may have been too cost-effective to pursue otherwise, while removing at the same time human interference as much as possible, which will make the information stored on blockchain more credible as noted by Qin Pengfei, a paralegal with Shanghai Dabang Law firm. Already the US State of Vermont has passed legislation to allow courts to use data on blockchain as evidence. In 2018, the U.K. Law Commission has announced its plans to review legal frameworks involving smart contracts so that it doesn’t lag behind as blockchain legal applications develop. However, no other country has yet actively followed suit with China’s model of Internet Courts. One reason copyright lawyer Liu Hongze argues is the fact that the acceptance of evidence stored on the blockchain may have little impact now on non-internet-related civil or criminal lawsuits. Indeed, blockchain data being legal evidence is relatively new and courts’ acceptance of it will depend on individual courts and situations. Nevertheless, what is certain is that China’s Internet Courts have a strong potential to launch the reliance of blockchain in the legal sphere, and western countries should watch such developments carefully not to fall behind. The recent backlash on Facebook with the judgment of the Bundeskartellamt demonstrates the need to respond to an ever increasing backlog of internet related disputes which interwind privacy, competition, data, cybersecurity and technology. Specialized courts such as Internet Courts might well be the answer.

Riga Graduate School of Law (RGSL) calls for applications for the following academic vacancy:

Docent in Private Law with additional specialization in Private International Law or International Commercial Law or Comparative Contract Law, for election term of 6 years.

Requirements for applicants:

• Compliance with the requirements of the Regulations on Academic and Administrative Personnel Positions of Riga Graduate School of Law;
• At least 3 years of academic work experience in English language;
• Documented experience in research and scientific publications during the last 6 years;
• Participation in scientific conferences and international projects during the last 6 years.

Main tasks:

• Provision of study work in Bachelor and Master level programmes;
• Involvement in research and at least five publications in recognized peer-reviewed academic outlets during the election term;
• Participation in RGSL governance bodies;
• Engagement in RGSL community service.

Monthly salary up to EUR 2.200,00 for full-time work-load.

Applicants should submit the following documents:

• Application letter;
• Professional curriculum vitae (in Europass format) in Latvian and English;
• Copies of documents certifying the relevant education;
• List of publications and/or significant achievements in the relevant field, from the last 6 years.

The Regulations on Academic and Administrative Personnel Positions of Riga Graduate School of Law can be found here.

Deadline for application is 17  June 2019. Applications should be sent by postal mail to Riga Graduate School of Law, Str?lnieku 4k-2, R?ga, LV 1010, Latvia or by email to vacancies@rgsl.edu.lv (Subject heading: “Academic personnel vacancies”).

For additional inquiries please contact Ms. Ieva Racenaja, Director of Riga Graduate School of Law, at ieva.racenaja@rgsl.edu.lv.

Riga Graduate School of Law informs that personal data included in the application shall be processed in order to conduct the selection of candidates (on the grounds of legitimate interests). The controller of such personal data processing is Riga Graduate School of Law.

The Paris Court of Appeal will host a symposium on “L’attractivité de la place de Paris: Les chambres commerciales internationales: fonctionnement et trajectoire” (The attractiveness of Paris’s jurisdiction. The international Commercial Chambers: functioning and future trends) on June 14, 2019 (2pm-6pm).  

Readers of this blog will remember that on February 7, 2018, the International Commercial Chamberof the Paris Court of Appeal was inaugurated.

The establishment of this specialized appellate international Commercial Chamberfollows the creation of the first International Chamber of the Paris Commercial Court of First Instance (“Chambre de Droit International du Tribunal de Commerce”) and fits well in the current developments of the international business courts all over Europe (and out of Europe too).

The international chambers of the Paris Commercial Court and Court of Appeal (hereafter referred to as the “International Commercial Courts of Paris” or the “ICCP”) are the latest examples of the modernization of French Legal System with respect to dispute resolution in commercial matters.

In the context of Brexit, the creation of the ICCP aims at enhancing the attractiveness and international competitiveness of French courts, combining flexibility, high quality and low costs.

The Paris Court of Appeal and the Faculty of Law of the Université de Paris Est Créteil (UPEC) will organize a symposium on June 14, 2019 at the Paris Court of Appeal.  The conference will discuss the attractiveness of the Paris courts taking into account its latest evolution: the creation of the International Commercial Courts of Paris, with a focus on how these courts work in practice.

After the opening by Chantal Arens, first president of the Paris Court of Appeal and Gilles Cuniberti, professor of law at the University of Luxembourg, the event will be divided into three parts:

1. Origins and creation of the ICCP, with a comparative approach to other commercial courts in Europe.
2. Analysis of the mechanisms allowing access to the ICCP, with practical insight into the drafting and interpretation of choice of court clauses, the types of disputes that may fall within the scope of the Chambers and the relationships with arbitration.
3. Analysis of the procedural rules before the Chambers, with a specific focus on how the Chambers work in practice, the use of the English language, the available tools for the parties, and the current rules of practice established or being discussed in the Chambers.

The conference, led by the judges sitting in the Paris international chambers, will provide a valuable feedback of 18 months of existence of the International Commercial Chamber of the Paris Court of Appeal. The future trends of the French ICCP, and their interaction with other courts in Europe will also be debated.

Emmanuel Gaillard, Visiting Professor at Yale Law School and Harvard Law School, will give the closing speech.

A detailed description of the afternoon’s program can be found on the Paris Court of Appeal’s website (in French only/English version to be published soon).

You can register by writing an email to: colloque.ca-paris@justice.fr

 

Links to previous relevant posts:

http://conflictoflaws.net/2011/paris-commercial-court-creates-international-division/

http://conflictoflaws.net/2018/doors-open-for-first-hearing-of-international-chamber-at-paris-court-of-appeal/

http://conflictoflaws.net/2018/the-domino-effect-of-international-commercial-courts-in-europe-whos-next/

 

On the occasion of the XVIII National Meeting of Private International Law Professors, the Private International and Comparative Law Master’s Degree Program of the Central University of Venezuela will launch its new website and the first issue of its yearbook in Caracas. The event, organized jointly with the “Tatiana de Maekelt” Institute of Law, will gather professors of Private International Law from different Venezuelan law schools to discuss current topics of interest, including new methods of teaching and evaluation in this subject.

The Yearbook will allow professors, graduates, current students and visiting professors to share their views on the classic and current topics of Private International and Comparative Law. Its launching represents the desire to have a specialized publication on these matters within the Venezuelan forum.

The first issue of the Yearbook contains the first thesis submitted for a Master’s Degree on the institution of renvoi, four papers spanning International Procedural Law, electronic means of payment, cross-border know-how contracts and International Family Law, sixteen of the papers presented during the Commemoration of the Twentieth Anniversary of the Venezuelan Private International Law Act’s entry into force, held on February 6, 2019 and a collaboration by Professor Esplugues Mota, Professor of Private International Law at the University of Valencia (Spain), where he recalls his time as a visiting professor in 2000, 2003 and 2008.

The Yearbook’s full table of contents is as follows:

Eugenio Hernández-Bretón
Presentación (Presentation)

I. Trabajos de Tesis (Thesis)

Caroline Bergeron

El reenvío en el Derecho Internacional Privado contemporáneo (The renvoi in Contemporary Private International Law)

II. Trabajos monográficos (Papers)

José Antonio Briceño Laborí

El principio de favor recognitionis como criterio de interpretación de los requisitos de eficacia de las sentencias extranjeras. Perspectivas desde el Derecho internacional privado venezolano (The Principle of favor recognitionis as an interpretation criterion of the effectiveness requirements of foreign judgements. Perspectives from Venezuelan Private International Law)

Andrea Cruz Suárez y Pedro Ramírez Braiz

El Dash como medio electrónico de pago. Aspectos contractuales internos e internacionales (Dash as an electronic means of payment. Internal and international contractual aspects)

Luis Carlos Mota Arocha

Derecho aplicable a contratos internacionales de know how de acuerdo a la Ley de Derecho internacional privado (Law applicable to international know-how contracts according to the Private International Law Act)

Eugenio Hernández-Bretón

La fractura de la familia venezolana ante el Derecho internacional privado (The fracture of the Venezuelan family before Private International Law)

III. Events. Commemoration of the twentieth anniversary of the Private International Law Act’s entry into force

Eugenio Hernández-Bretón

La Ley de Derecho Internacional Privado y la universidad venezolana. Palabras de apertura (The Private International Law Act and the Venezuelan university. Opening words).

Claudia Madrid Martínez

Reflexiones en torno al sistema de fuentes del Derecho internacional privado venezolano (Reflections on the system of sources of the Venezuelan Private International Law Act).

Victor Gregorio Garrido Ramos

Cuestiones terminológicas en el artículo 1 de la Ley de Derecho Internacional Privado venezolana (Terminological issues in Article 1 of the Venezuelan Private International Law Act).

Anna María Tambasco B.

Situaciones jurídicas válidamente creadas (Vested Rights)

Rubén Valdivieso

Orden Público (Ordre Public)

Mirian Rodríguez Reyes de Mezoa

Los derechos reales en la Ley de Derecho Internacional Privado venezolana. 20 años después (In rem rights under the Venezuelan Private International Law Act. 20 years later)

Guillermo Palao Moreno

Criterios de conexión para la determinación de la ley aplicable en materia de familia y sucesiones en los sistemas de Derecho internacional privado venezolano y europeo (Connection criteria for the determination of the applicable law to family and successions matters under the Venezuelan and European Private International Law systems)

Froila Eugenia Pimentel C.

La indemnización de los daños punitivos en Venezuela en aplicación del artículo 9 de la Ley de Derecho Internacional Privado (The compensation of punitive damages in application of the Article 9 of the Private International Law Act)

Rosalvi Villegas

El principio de proximidad en la Ley de Derecho de Internacional Privado venezolana (The principle of proximity in the Venezuelan Private International Law Act)

Gerardo Feliche Lione Pedra

La cláusula de sumisión a la jurisdicción en los contratos de adhesión y las soluciones prácticas aportadas por la Ley de Derecho Internacional Privado (The choice of forum clause in adhesion contracts and the practical solutions provided by the Private International Law Act).

Andrea Carolina Olivares Hernández

La sumisión contemplada en el artículo 46 de la Ley de Derecho Internacional Privado (Submission to Venezuelan courts under Article 46 of the Private International Law Act).

Andrés Carrasquero Stolk

Derogatoria de la jurisdicción de los tribunales venezolanos en contratos de trabajo internacionales (Derogation of the Venezuelan jurisdiction in international labour contracts).

Luis David Briceño Pérez

Las acciones por intereses o derechos colectivos o difusos no son class actions (Actions for collective or diffuse interests or rights are not class actions)

María Alejandra Ruíz

Ejecución de las medidas cautelares de conformidad con la Ley de Derecho Internacional Privado venezolana (Enforcement of precautionary measures under the Venezuelan Private International Law Act)

José Antonio Briceño Laborí

Efectos de las sentencias extranjeras y procedimiento de exequátur (Effects of foreign judgments and exequatur procedure).

Eugenio Hernández-Bretón

La “historia secreta” de la Ley de Derecho internacional privado. Palabras de clausura (The “secret history” of the Private International Law Act. Closing remarks).

IV. Visiting Professors

Carlos Esplugues Mota

La Maestría de Derecho internacional privado de la Universidad Central de Venezuela: tres participaciones y un agradecimiento infinito (The Private International Law Master’s at the Central University of Venezuela: three visits and infinite gratitude)

The event will take place on June 10th.

Upon release the Yearbook will be available at: http://www.mdipc-ucv.com

(Apologies for the odd formatting in this post: I tried to debug this but failed. I am not wasting too much time trying, for I assume most of you do not visit the blog to enjoy its design qualities). In [2019] EWCA Civ 805 Airbus v Generali et al CJEU authority in West Tankers clearly echoes. I had hoped to review the case much sooner after my Tweet reporting it a few days after the judgment came out. That delay does have the advantage that Clyde & Co in the meantime have analysis to which I am happy to refer.

The claimant in this action and the respondent to the appeal, Airbus, claims declarations (1) that it is not liable to the defendant insurers for losses incurred in relation to an incident which occurred on 29 September 2013 in which an aircraft which it had manufactured sustained damage when landing in Rome and (2) that proceedings commenced against it by the defendants in Italy have been commenced contrary to the terms of an English exclusive jurisdiction clause. The clause in question is contained in an Airframe Warranties Agreement dated 8 July 2010 (“the Warranties Agreement”) concluded between (among others) Airbus and the defendants’ insured, the Italian airline company Alitalia. The issue on this appeal is whether the English court has jurisdiction over these claims by virtue of the jurisdiction clause. Moulder J held that it does and the defendant insurers (henceforth “the appellants”) now appeal.

Appellants contend, in outline, that the jurisdiction clause is of limited scope and does not extend to Airbus’s claims in this action, that the claim for a negative declaration falls within an arbitration clause in a different agreement, a Purchase Agreement dated 31 October 2005 which provides for ICC arbitration in Geneva, and that their own proceedings in Italy under articles of the Italian Civil Code are not within the scope of either clause. They say in addition that they cannot be in breach of an exclusive jurisdiction clause to which, as insurers, they were never parties and that, regardless of the true construction of the clause, there is no basis on which the English court can make a declaration against them (essentially, per Turner v Grovit and West Tankers).

Males LJ at 49: The standard of proof to be applied in determining whether the English court has jurisdiction under Article 25 of the Brussels Recast Regulation is that of a good arguable case. Kaifer Aislimentos was discussed as relevant authority. However, at 52: ‘sometimes it will be sensible, when a question of law arises on an application to challenge jurisdiction, for the court to decide it rather than merely deciding whether it is sufficiently arguable.’  Discussion of the contractual construction of the choice of court clause then follows at 62 ff and concludes in favour of a wide application in casu.

At 77 ff: The question whether the appellants’ claim in Italy falls within the scope of the English jurisdiction clause. Males LJ notes correctly that this depends on the nature of the claim brought in Italy, not on the defences which may be or have in fact been raised by Alitalia. At 82 he fairly swiftly concludes that even though the Italian claim is for breach of non-contractual obligations under articles of the Italian Civil Code, it is sufficiently connected to the Warranties Agreement to be within the scope of the exclusive jurisdiction clause. At 83 therefore: the commencement and pursuit of the Italian proceedings was contrary to the terms of that clause and that the English court has jurisdiction to determine that claim.

That then brings us to the discussion of what the English courts might potentially do to assist the party relying on the choice of court clause – given the unavailability of anti-suit per West Tankers. Noteworthy is that the new lis alibi pendens rule protecting choice of court following Brussels Ia, seemingly was not deployed or discussed in the Italian proceedings – at any rate there is no reference to any such discussion in the Court of Appeal judgment (other than perhaps at 84 which seems to suggest that amendment of claims brought the issue to the surface and this may not yet have been the case at the time of the discussion of the Italian proceedings).

A statement by the English courts finding infringement of the clause, would not just have an impact on cost rulings but would also ground a delictual claim. At 97 Males LJ settles the discussion whether such a declaration might be possible: ‘I can see no valid basis on which West Tankers can be distinguished. If it is held that commencement of the Italian proceedings by Alitalia would have been a breach of the jurisdiction clause in the Warranties Agreement, it follows that their commencement by the appellant insurers is a breach of an equivalent obligation in equity which Airbus is entitled to enforce and that the English court has jurisdiction to grant a declaration to say so.’

Interesting and highly relevant authority.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2.2.2.10.2.,  Heading 2.2.9, Heading 2.2.9.4.`

 

Hans van Loon, former Secretary General of the Hague Conference on Private International Law (HCCH), has just published an article entitled “Towards a global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters” in the Collection of Papers of the Faculty of Law, Niš, No 82, Year LVIII, 2019 (see pp. 15-36). The paper develops a lecture held at the Law Faculty.

The author has provided the following summary of his article (emphasis has been added):

The article traces the history of the “Judgments Project”, and provides background on the current negotiations at the Hague Conference on Private International Law, which have resulted in the May 2018 draft Convention, and, it is hoped, will very soon culminate in the adoption of a Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. To that end, a Diplomatic Session has been convoked at the Peace Palace in The Hague (the Netherlands) from 18 June to 2 July 2019.

The article starts by recalling the interaction between, on the one hand, the 1971 Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters and its Supplementary Protocol, and, on the other, the 1968 Brussels Jurisdiction and Enforcement Convention (now: Brussels I recast). The 1968 Brussels Convention drew inspiration both from the 1971 Hague Convention and its Protocol (excluding exorbitant grounds of jurisdiction) and the 1965 Hague Choice of Court Convention. Yet, it went beyond those instruments by (1) providing uniform rules on original jurisdiction; (2) enabling recognition and enforcement generally without review of the original grounds of jurisdiction; and (3) benefitting from a mechanism of uniform interpretation by the Court of Justice of the European Union (CJEU). The success of the Brussels Convention, however, contributed to a lack of interest in the 1971 Convention, which never came off the ground. Other reasons were the 1971 Convention’s alleged discriminatory effect vis-à-vis companies and persons not domiciled in Europe and the issue of bilateralisation – the 1971 Convention required for its operation a supplementary agreement between any two Contracting States, an issue that has come up again in the current negotiations.

In 1992, having considered the possibility of bilateral negotiations with EEC Member States, the USA made a proposal to the Hague Conference for a “mixed” Convention. The idea was that this instrument would provide a list of permitted grounds of jurisdiction and a list of prohibited grounds of jurisdiction, while leaving a “grey area” that would allow Contracting States to establish additional grounds of original jurisdiction and provisions on recognition and enforcement under national law. With the “mixed” Convention idea as a start, negotiations took place between 1996-2001.They ultimately led, via a preliminary draft Convention, to an “Interim text” adopted at a diplomatic conference in 2001. The dynamics of those negotiations were very much determined by the transatlantic dimension, with different, and as it turned out, incompatible strategic objectives (the US being interested in securing recognition and enforcement of its judgments in Europe, and non-discrimination regarding direct grounds of jurisdiction for US-based companies and persons, and Europe, in urging the US to reduce the reach of jurisdiction of its courts regarding Europe-based companies and persons). The resulting text left many issues unresolved, including: (1) (commercial) activity as a ground of jurisdiction (2) the use of the internet, including e-commerce, (3) the protection of weaker parties, in particular consumers and employees, (4) intellectual property (IP), (5) the issue of bilateralisation and (6) the relationship with the Brussels/Lugano texts. It was therefore decided to take a step back, and focus first, separately as with the 1965 Convention, on choice of court agreements.

The article then discusses how the 2005 Choice of Court Convention was able to avoid some of these six major issues, and how it dealt with the remaining ones. Importantly, the Choice of Court Convention found a solution for its relationship to the Brussels/Lugano texts (it also had a substantial impact on the Brussels I recast). In fact, the 2005 Convention provides an important source of inspiration for the 2018 draft, which can be seen, for example, in the definition of its substantive scope, and its provisions on recognition and enforcement, including of judgments awarding punitive damages. However, the coming negotiations are still faced with several of the aforementioned major issues, and some new ones.

Meanwhile, however, the dynamics of the negotiations have changed. Whereas in the past the transatlantic dimension was predominant, the current negotiations have taken on a much more global character, China and other (formerly) “emerging” States having become more actively involved. In some respects, this adds to the difficulty of reaching agreement (for instance regarding IP). On the other hand, the current negotiations are limited to recognition and enforcement only. Yet, indirectly, the difference in approach to judicial jurisdiction between the US – where this is a constitutional matter, with a focus on the relationship between the defendant and the forum (the article discusses recent developments in the case law of the US Supreme Court on international jurisdiction) – and most other States – where the focus is on the relationship between the subject matter of the litigation and the forum – has reappeared in the current negotiations.

The article discusses how this is reflected in the draft, in particular in art. 5, in its provisions on contracts, torts, the internet, intellectual property and consumers and employees.

It is noted, with some regret, that as a result, the torts jurisdiction provision is very limited, indeed even narrower than its predecessor in the 2001 Interim text. It is hoped that the final text will make room for recognition and enforcement of judgments emanating from the court of the place where the injury arose, at least if the defendant could reasonably foresee that its conduct would give rise to the harm in that State. This would be important, for example, concerning civil judgments resulting from cross-border environmental litigation. Regarding IP, the May 2018 draft does not take a firm position, and it even leaves open the possibility of a complete exclusion. That would be a step back in comparison with the Choice of Court Convention, so hopefully it will be possible to avoid such a far-reaching result.  

Finally, a number of other, including novel, features of the draft are highlighted. Some concern is expressed about the addition of “situations involving infringements of security or sovereignty of [the requested] State” as a ground of refusal of recognition and enforcement (art. 7 (1) (c)), because that may invite a review of the merits of the judgment, which is in principle, rightly, prohibited (art. 4(2)). Interesting novelties include a provision which gives the requested court a certain flexibility in dealing with judgments that are subject to review in the State of origin (art. 4 (4)); the exclusion of forum non conveniens at the stage of recognition and enforcement (art. 14 (2)), and a tentative provision dealing with “common courts”, such as the future Unified Patent Court art. 4 (5).

The article concludes by expressing the hope that the Convention will avoid the complexity of its 1971 predecessor, notably by avoiding its bilateralisation system, or at least by drafting it in such a manner that it does not make the ratification unattractive or its application unduly difficult. In any event, the Convention will fulfill a long-felt need for a global multilateral framework for the recognition and enforcement of civil and commercial judgments, and thereby contribute to the global transnational legal order.   

The American Association of Private International Law (ASADIP) is holding its XIII Annual Conference on 21 and 22 November 2019 in Punta del Este, Uruguay. The Conference is entitled Eficacia Transnacional del Derecho (Transnational Effectiveness of the Law). More information will be made available here.