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Written by Bill Dodge, the John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law at UC Davis School of Law.

China has been critical of U.S. extraterritorial jurisdiction. In February, China’s Ministry of Foreign Affairs issued a report entitled “The U.S. Willful Practice of Long-arm Jurisdiction and its Perils.” In the report, the Ministry complained about U.S. secondary sanctions, the discovery of evidence abroad, the Helms-Burton Act, the Foreign Corrupt Practices Act, the Global Magnitsky Human Rights Accountability Act, and the use of extraterritorial jurisdiction in criminal cases. The report claimed that U.S. extraterritorial jurisdiction has caused “severe harm … to the international political and economic order and the international rule of law.”

There are better and worse ways to criticize U.S. extraterritorial jurisdiction. The Ministry of Foreign Affairs report pursues some of the worse ways and neglects some better ones. In this post, I discuss a few of the report’s shortcoming. In a second post, I discuss stronger arguments that one could make against U.S. extraterritorial jurisdiction.

Confusing Extraterritorial Jurisdiction with Personal Jurisdiction

One problem with the report is terminology. The report repeatedly uses the phrase “long-arm jurisdiction” to refer to the extraterritorial application of U.S. law. The United States, the report says, has “expand[ed] the scope of its long-arm jurisdiction to exert disproportionate and unwarranted jurisdiction over extraterritorial persons or entities, enforcing U.S. domestic laws on extraterritorial non-US persons or entities, and wantonly penalizing or threatening foreign companies by exploiting their reliance on dollar-denominated businesses, the U.S. market or U.S. technologies.”

In the United States, however, “long-arm jurisdiction” refers to the exercise of personal jurisdiction over non-resident defendants based on contacts with the forum state. The report seems to recognize this, referring in its second paragraph to the U.S. Supreme Court’s decision in International Shoe Co. v. Washington (1945) and the requirement of “minimum contacts.” But the report goes on use “long-arm jurisdiction” to refer the extraterritorial application of U.S. law. This is more than an academic quibble. Jurisdiction to prescribe (the authority to make law) and jurisdiction to adjudicate (the authority to apply law) are very different things and are governed by different rules of domestic and international law.

The report’s confusion on this score runs deeper than terminology. The Ministry of Foreign Affairs seems to think that the United States uses the concept of “minimum contacts” to expand the extraterritorial application of U.S. law. The United States “exercises long-arm jurisdiction on the basis of the ‘minimum contacts’ rule, constantly lowering the threshold for application,” the report states. “Even the flimsiest connection with the United States, such as having a branch in the United States, using [the] U.S. dollar for clearing or other financial services, or using the U.S. mail system, constitutes ‘minimum contacts.’”

In fact, the requirement of “minimum contacts” for personal jurisdiction is quite stringent. Moreover, as I have recently noted, this requirement serves to limit the extraterritorial application of U.S. law rather than expand it. When foreign defendants lack minimum contacts with the United States, U.S. courts cannot exercise personal jurisdiction and thus cannot apply U.S. laws extraterritorially even when Congress wants them to. The Helms-Burton Act (one of the laws about which China’s Ministry of Foreign Affairs complains) is an example of this. Congress clearly intended its cause of action for trafficking in confiscated property to discourage non-U.S. companies from investing in Cuba. But U.S. courts have been unable to apply the law to foreign companies because they have concluded that those companies lack “minimum contacts” with the United States.

China’s complaint is not against U.S. rules of personal jurisdiction or the requirement of “minimum contacts.” It is rather with the extraterritorial application of U.S. law. Using the phrase “long-arm jurisdiction” confuses the two issues.

Criticizing Extraterritorial Jurisdiction that China Exercises Too

The report also criticizes the United States for applying its law extraterritorially based on effects: “the United States has further developed the ‘effects doctrine,’ meaning that jurisdiction may be exercised whenever an act occurring abroad produces ‘effects’ in the United States, regardless of whether the actor has U.S. citizenship or residency, and regardless of whether the act complies with the law of the place where it occurred.” This is true. For example, the U.S. Supreme Court has held that U.S. antitrust law “applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States.”

But China also applies its law extraterritorially based on effects. China’s Anti-Monopoly Law provides in Article 2 that it applies not only to monopolistic practices in the mainland territory of the People’s Republic of China but also “to monopolistic practices outside the mainland territory of the People’s Republic of China that eliminate or restrict competition in China’s domestic market.” In 2014, China blocked an alliance of three European shipping company because of possible effects on Chinese markets.

China regulates extraterritorially on other bases too. Although the Ministry of Foreign Affairs characterizes the extraterritorial application of U.S. criminal law as “an extreme abuse,” China applies its criminal law extraterritorially on all the bases that the United States employs. The Criminal Law of the People’s Republic of China asserts jurisdiction based not just on territory (Article 6), but also on effects (Article 6), nationality (Article 7), passive personality (Article 8), the protective principle (Article 8), and universal jurisdiction (Article 9). Each of these bases for jurisdiction to prescribe is consistent with customary international law, and China has the right to extend its criminal law extraterritorially like this. But so does the United States.

In their excellent article Extraterritoriality of Chinese Law: Myths, Realities and the Future, Zhengxin Huo and Man Yip provide a detailed discussion of the extraterritorial application of Chinese law. “China’s messaging to the international community is,” they note, “somewhat confusing: it opposes the US practice of ‘long-arm jurisdiction,’ yet it has decided to build its own legal system of extraterritoriality.” By criticizing the United States for exercising jurisdiction on the same bases that China itself uses, China opens itself to charges of hypocrisy.

Ignoring Constraints on U.S. Extraterritoriality

The Ministry of Foreign Affairs report also ignores important constraints on the extraterritorial application of U.S. law. It says the United States has “developed a massive, mutually reinforcing and interlocking legal system for long-arm jurisdiction” and has “put in place a whole-of-government system to practice long-arm jurisdiction.”

In fact, U.S. courts limit the extraterritorial application of U.S. law in significant ways. First, as noted above, U.S. rules on personal jurisdiction (including “minimum contacts”) limit the practical ability of the United States to apply its laws abroad. As I have written before, “Congress cannot effectively extend its laws extraterritorially if courts lack personal jurisdiction to apply those laws.”

Second, U.S. courts apply a presumption against extraterritoriality to limit the reach of federal statutes. Most recently, in Abitron Austria GmbH v. Hectronic International, Inc. (2023), the Supreme Court held that federal statutes should be presumed to apply only to conduct in the United States unless those statutes clearly indicate that they apply extraterritorially. At issue in Abitron was the federal trademark statute, which prohibits use of a U.S. trademark that is likely to cause confusion in the United States. The defendants put U.S. trademarks on products in Europe, some of which were ultimately sold to the United States. The dissent argued that the statute should apply to foreign conduct as long as the focus of Congress’s concern—consumer confusion—occurred in the United States. But the majority disagreed, holding that there must also be conduct in the United States. As I have noted previously, this version of the presumption has the potential to frustrate congressional intent when Congress focuses on something other than conduct.

Third, some lower courts in the United States impose additional limits on the extraterritorial application of U.S. law when foreign conduct is compelled by foreign law. In 2005, U.S. buyers sued Chinese sellers of vitamin C for fixing the prices of vitamins sold to the United States. The U.S. court found the Chinese sellers liable for violating U.S. antitrust law and awarded $147 million in damages. Although the anticompetitive conduct occurred in China, it had effects in the United States because vitamins were sold at higher than market prices in the United States.

The Chinese companies appealed, arguing that they were required by Chinese law to agree on export prices. The case went all the way to the U.S. Supreme Court on the question of how much deference to give the Chinese government’s interpretation of its own law. Ultimately, in 2021, the Second Circuit Court of Appeals held that Chinese law did indeed require the anticompetitive conduct and that the case should therefore be dismissed on grounds of international comity because China had a stronger interest in applying its law than the United States did. This is a remarkable decision. Although Congress clearly intended U.S. antitrust law to apply to foreign conduct that causes anticompetitive effects in the United States, and although applying U.S. law based on effects would not violate international law, the U.S. court held that the case should be dismissed in deference to Chinese law.

To be clear, I disagree with these constraints on the extraterritorial application of U.S. laws. I think Congress should have more authority to define rules of personal jurisdiction, particularly when it wants its laws to apply outside the United States. I disagree with Abitron’s conduct-based version of the presumption against extraterritoriality. And I filed two separate amicus briefs (with Paul Stephan) urging the Supreme Court to take up the international comity question and make clear that lower courts have no authority to dismiss claims like those in Vitamin C that fall within the scope of U.S. antitrust law. But whether these constraints are wise or not, ignoring them provides a distorted picture of U.S. extraterritorial jurisdiction.

Weak Examples

The Ministry of Foreign Affairs also weakens its case by relying on examples that do not support its arguments. The report singles out the indictment of French executive Frédéric Pierucci for violating the U.S. Foreign Corrupt Practices Act (FCPA), a story he recounts in his 2019 book The American Trap. Here is how the report describes what happened:

In 2013, in order to beat Alstom in their business competition, the United States applied the Foreign Corrupt Practices Act to arrest and detain Frédéric Pierucci on charges of bribing foreign officials. He was further induced to sign a plea deal and provide more evidence and information against his company, leaving Alstom no choice but to accept General Electric’s acquisition, vanishing ever since from the Fortune 500 list. The U.S. long-arm jurisdiction has become a tool for its public power to suppress competitors and meddle in normal international business activities, announcing the United States’ complete departure from its long-standing self-proclaimed champion of liberal market economy.

I have read Pierucci’s book, and his story is harrowing. But the book does not show what the report claims.

First, and perhaps most significantly, application of the FCPA in this case was not extraterritorial. Pierucci was indicted for approving bribes paid to Indonesian officials to secure a contract for Alstrom from his office in Windsor, Connecticut (p. 65). He seems to acknowledge that the bribes violated the FCPA but counters that the statute was “very poorly enforced” at the time (p. 67) and that he “received no personal gain whatsoever” (p. 71). These are not valid defenses under U.S. law.

Second, Pierucci was not arrested to facilitate GE’s acquisition of Alstom. The U.S. Department of Justice (DOJ) began investigating Alstom’s payment of bribes in late 2009 (p. 54), and Pierucci was arrested in April 2013 (p. 1). Alstom’s takeover discussions with GE began during the summer of 2013 (p. 162), and the deal was made public in April 2014 (p. 155). Pierucci plausibly claims that GE took advantage of Alstom’s weakened position, noting that “Alstom is the fifth company to be swallowed up by GE after being accused of corruption by the DOJ” (p. 164). But I saw no claim in the book that DOJ’s investigation of Alstom was intended to bring about its acquisition by a U.S. competitor.

Finally, it is hard to credit the report’s assertion that prosecuting bribery constitutes “meddl[ing] in normal international business activities.” China has joined the U.N. Convention Against Corruption. In 2014, China fined British company GlaxoSmithKline 3 billion yuan (U.S.$489 million) for bribing Chinese doctors. Earlier this year, China launched an unprecedented campaign against corruption in its health care industry. And, of course, fighting corruption remains a top priority of President Xi Jinping.

Conclusion

Perhaps it seems unfair to criticize a report from a foreign ministry for making mistakes about law. Perhaps the report should be seen merely as a political document. But the report itself discusses legal matters in detail and charges the United States with “violat[ing] international law.” Whether the report is a political document or not, the shortcomings that I have discussed here weaken its credibility and undermine its arguments.

There are better ways to criticize U.S. extraterritorial jurisdiction. In Part II of this post, I will offer some examples.

 

[This post also appears at Transnational Litigation Blog (TLB)]

 

 

The event organized to celebrate the launch of the book Blockchain & Private International Law, originally scheduled for 5 October, will now take place on 20 December 2023 at 18.15, both physically at the Université de Lausanne (AULA, IDHEAP Building) and online (Zoom link).

On 4 December 2023, at 6 p.m. CET, a free webinar will take place in preparation of the 2024 inaugural edition of the EAPIL Winter School on Personal Status and Family Relationships, which will be held on-site in Como between 12 and 16 February 2024 (a detailed brochure is available here).

The webinar will give a glimpse of what the Winter School will be about. Specifically, it will focus on selection of hot topics, such as the cross-border recognition of sex reassignment and the enjoyment of the right to name abroad.

The speakers are some of those who will be lecturing at the Winter School, namely Laura Carpaneto (University of Genova), Ester di Napoli (University of Ferrara), Cristina González Beilfuss (Unversity of Barcelona), Satu Heikkilä (LL.D., Administrative Law Judge), Silvia Marino (University of Isnubria), Nadia Rusinova (Hague University), Michael Wildespin (Legal Advisor to the European Commission), Anna Wysocka-Bar (Jagiellonian University), and Mirela Župan (University of Osijek).

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 may do so directly through this link. No prior registration is required.

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

In the summer of 2023 Tine Van Hof defended her PhD on this topic at the University of Antwerp.  The thesis will be published by Hart Publishing in the Studies in Private International Law series (expected in 2025). She has provided this short summary of her research.

When a child is abducted by one of their parents, the courts dealing with a return application must consider several legal instruments. First, they must take into account private international law instruments, specifically, the Hague Child Abduction Convention (1980) and the Brussels IIb Regulation (2019/1111). Second, they have to take into account children’s rights law instruments, including mainly the UN Convention on the Rights of the Child.

Because these instruments have different approaches regarding the concept of the best interests of the child, they can lead to conflicting outcomes. Strict adherence to private international law instruments by the return court could mean sending a child back to the country where they lived before the abduction. Indeed, the Hague Child Abduction Convention and Brussels IIb presume that it is generally best for children to return to the State of habitual residence and therefore require ¾ in principle ¾ a speedy return. The children’s rights law instruments, on the other hand, require that the best interests of the individual child be taken into account as a primary consideration. If the court follows these instruments strictly, it could for example rule in a particular case that it is better for a child with medical problems to stay in country of refuge because of better health care.

The question thus arises how to address these conflicts between private international law and children’s rights law in international child abduction cases. To answer this question, public international law can give some inspiration, as it offers a number of techniques for addressing conflicts between fields of law. In particular, the techniques of formal dialogue and systemic treaty interpretation can provide relief.

Formal dialogue, in which the actors of one field of law visibly engage with the instruments or case law of the other field of law, can be used by the Hague Conference, the EU and the Court of Justice of the European Union (CJEU) as private international law actors, and the Committee on the Rights of the Child and the European Court of Human Rights (ECtHR) as children’s rights law actors. By paying attention to the substantive, institutional and methodological characteristics of the other field of law, these actors can promote reconciliation between the two fields and prevent the emergence of actual conflict. However, a prerequisite for this is that the actors are aware of the relevance of the other field of law and are willing to engage in such a dialogue. This awareness and willingness can be generated through informal dialogue. The CJEU and the ECtHR, for example, conduct such informal dialogue in the form of their biennial bilateral meeting.

In addition, supranational, international and domestic courts can apply the technique of systemic treaty interpretation by interpreting a particular instrument (e.g., the Hague Child Abduction Convention) in light of other relevant rules applicable in the relationship between the parties (e.g., the UN Convention on the Rights of the Child). This allows actual conflicts between the two fields of law to be avoided. This technique was used, for example, by the ECtHR in X v. Latvia. To apply this technique, it is also important that courts are aware of the applicability of the other field of law and are willing to take into account its relevant rules. Again, courts have established initiatives that promote this awareness and willingness, such as the International Hague Network of Judges.

The expectation is that by applying these techniques, the potential conflict between private international law and children’s rights law in the context of international child abduction will no longer manifest itself as an actual conflict. Further, applying these techniques will make it possible for national courts to adequately apply all instruments and make a balanced decision on the return of children. In addition to these two techniques, other techniques, such as coordination ex ante, are considered appropriate to better align private international law and children’s rights law when dealing with other issues, such as for example international surrogacy.

A seminar series on the recast of Brussels I bis Regulation, organized by the Research Centre for Private International Law and International Trade (CRDI, University of Paris Panthéon Assas) and the Sorbonne Department Study of International Private Relationships (SERPI, University of Paris 1 Panthéon-Sorbonne), together with the Société de Législation Comparée (SLC), the French national school for the judiciary (ENM) and the French Supreme Court for civil and criminal matters (Cour de cassation), will take place during the 2023-2024 academic year, both in Paris and online (in French).

According to the scientific coordinators of the seminar series, Marie-Elodie Ancel (University of Paris-Panthéon-Assas) and Pascal de Vareilles-Sommières (University of Paris 1 Panthéon-Sorbonne), the seminar series aims to provide a forum for French legal experts – academics and practitioners – to discuss the future reform of Brussels I bis Regulation and to propose key improvements to the text.

The first seminar will take place on 30 November 2023 (9.00 – 12.30 am, UTC+1). The objective will be to present the prospect of a recast, from a political and technical perspective, and to discuss different issues relating to the scope of a future “Brussels I ter Regulation”.

The list of speakers includes Pascal de Vareilles-Sommières, Tania Jewczuk, Marie-Elodie Ancel, François Ancel, Malik Laazouzi and Etienne Pataut.

The programme, as well as registration and access details can be found here. The conference series will take place at the Cour de cassation (Paris, France) and will also be broadcast live (see here).

The other seminars will take place in 2024 from 16.00 to 18.00 (UTC+1) on 18 January, 26 February, 18 March, 22 April, 30 May and 24 June.

A post published a few days ago on this blog presented, and briefly discussed, the private international law issues raised by the case of Indi Gregory, the critically ill eight-month-old child that parents wanted to transfer to Italy, to avoid the withdrawal of the life-sustaining treatment she was receiving at a hospital in England.

In fact, the child’s doctors at Queen’s Medical Centre in Nottingham had assessed that withdrawing the life-sustaining treatment would be in Indi’s best interests, having regard to the pain she was enduring because of the treatment itself and the lack of prospects of improvement. The parents disagreed, and sought to have the treatment extended for as long as possible.

As explained in more detail in the post mentioned above, the English High Court ruled in favour of the hospital trust in October 2023, and authorized the withdrawal of the treatment. A request for permission to appeal against the ruling was dismissed, and so was a subsequent application to the High Court whereby Indi’s parents sought to have the initial ruling reconsidered in light of new circumstances, including the fact that a hospital in Rome had expressed its availability to provide Indi with the extended treatment that parents were seeking.

Several readers will likely be aware by now of the dramatic developments of the case, as these were largely reported in the media throughout Europe and elsewhere. Indi was eventually transferred to a hospice in England, where she died on 13 November 2023, soon after the first steps for the court-approved withdrawal plan were put in place.

Before this tragic epilogue occurred, Indi’s parents had sought permission to appeal against an additional order given by Peel J for the High Court. Specifically, the parents had challenged the decision whereby the removal of invasive mechanical ventilation, i.e., extubation, that Peel J had previously authorised, should take place at a hospice. Their case was that Indi should be rather extubated at home.

On 10 November 2023, the Court of Appeal of England and Wales dismissed the application, assessing that no grounds appeared to exist to reconsider the order. The Court held, in particular that, contrary to the parents’ submission, they had not suffered from any unfairness in the proceedings before the High Court (Indi’s father claimed, inter alia, that he did not know that he had the opportunity to get his own evidence about the issue of the location of extubation at the hearing held before Peel J), and that the conditions for reopening a court’s earlier determination of a child’s best interests were not met in the circumstances.

The Court of Appeal had not been asked to deal with issues of private international law for the purposes of fiving the ruling of 10 November. In a significant obiter, however, the Court did address such issues.

It is worth recalling that on 6 November 2023 the Italian Government decided to grant Italian citizenship to Indi Gregory, and that, shortly afterwards, the Italian Consul in Manchester, acting as a “guardianship judge” pursuant to Italian legislation, took two measures. First, as reported by the Court of Appeal, the Consul issued a decree – arguably, one taken as a matter of urgency – whereby he appointed a guardian for Indi and authorised her removal to Italy for treatment. Secondly, the Consul wrote to the High Court requesting that that he be authorised to exercise jurisdiction over the case in accordance with Article 9(1) of the Hague Convention of 19 October 1996 on the Protection of Children, which permits such a request where the requesting authority considers that they are better able to assess the child’s best interests. compared with the authorities in the State where the child is habitually resident.

The Court of Appeal, in the words of Peter Jackson, criticised the latter moves in unusually strong terms. Having noted that the “only basis upon which such a request could even theoretically be made in Indi’s case is that she was granted Italian citizenship”, the Court observed that in hearings before the High Court and before the Court of Appeal itself, Indi’s father had “accepted that decisions about Indi’s welfare are to be made by [English] courts”, adding that

in any case, the argument that the Italian authorities are better able than the English court to determine Indi’s best interests is in our view wholly misconceived and a request of this nature is clearly contrary to the spirit of this important international convention.

The Court did not elaborate on the denounced misconception nor on the spirit of the Convention.

Arguably, the obiter reflects an understanding of the Hague Convention on the Protection of Children that could be summarised as follows.

1. The Convention, as stated in the preamble, aims to “improve the protection of children in international situations”. It does so by avoiding (or managing) conflicts between their Contracting States’ legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children.

2. Contracting States share the view that, as stated in the United Nations Convention on the Rights of the Child and recalled in the Hague Convention’s own preamble, “the best interests of the child are to be a primary consideration”. The Convention, based as it is on the assumption that the protection of children is best ensured in a cross-border cases through international cooperation, builds on mutual trust among Contracting States. It is in fact mutual trust, combined with the primary consideration owed to the best interests of the child, that suggests that the authorities of a State other than the State of habitual residence of the child should refrain, in principle, from exercising their jurisdiction over the child, let alone disregarding the measures taken by the authorities of the State of habitual residence.

3. The substantive and procedural rules applied in one Contracting State may differ from those in force in another, but such differences do not mean that Contracting States may, as a matter of principle, step out from the framework of cooperation established by the Convention, and depart from its rules (engaging with differences is precisely the purpose of private international law, generally). Put in another way, it may be that the (political) institutions of a Contracting State disagree with the way in which a particular case is handled by the (judicial) authorities of another (including because of the rules and standards applied by such authorities to decide the case differ from the rules and standard that the former institutions would follow in the circumstances), but the Convention does not permit the former State to interfere, on this ground, with the work carried out by the authorities of the latter State, notably by issuing competing orders.

4. Habitual residence is the key connecting factor under the Convention for the purposes of allocating jurisdiction. It was chosen on the assumption that, generally, the authorities of the State where the centre of the child’s interests are located, regardless of the child’s nationality, are best placed to assess his or her interests. Nationality, too, may play a role, but only insofar as the circumstances indicate that the authorities of the State of nationality would be better place to assess the child’s interests in the particular case concerned, provided, in any case, that the authorities of the State of habitual residence agree with this finding. The mere fact that a child possesses the nationality of a Contracting State does not confer as such on the authorities of the State of nationality the power to rule on the child.

A loose-leaf publication tends to stay as current as the most recent set of insert pages, and so identifying it either by its initial year of publication or its edition number can be misleading. For many years the leading Canadian work on private international law has been the 6th edition of Castel & Walker Canadian Conflict of Laws, with that edition first appearing in 2005. For nearly two decades, then, it has had the same year of publication and edition number, but as a loose-leaf (and as available through an electronic subscription) it has been kept quite up-to-date on a frequent basis. Now comes a new edition, the 7th, published in 2023 and with a revised title. The text is now called simply Canadian Conflict of Laws and its sole author, as was the case for the 6th edition, is Professor Janet Walker of Osgoode Hall Law School. The change in the title reflects the completion of a long process of transition from the original edition (1975) as written by Professor Jean-Gabriel Castel through some editions that were co-written by Professors Castel and Walker.  Detailed information about the new edition is available here. It remains an indispensable resource in the Canadian context and beyond.

Dear readers, dear EAPIL Members,

You might have received the email below, from gilles.cuniberti@gmx.de.

This is a fraud, please do not answer.

GC

 

 

Dear xx,

How are you doing today?.

Please, I need your assistance for the EAPL.

Get back to me by email so I can explain further.

 

Best regards

Gilles Cuniberti

—
Gilles Cuniberti
President of European Association of Private International Law (EAPL)
Professor of Comparative and Private International Law
Université du Luxembourg
4, rue Alphonse Weicker
L-2721 Luxembourg

Posted by Marlene Wethmar-Lemmer

This booklet contains the first draft of the envisaged African Principles on the Law Applicable to International Commercial Contracts. The proposal could be used by national legislators on the continent and African economic integration organisations, particularly the African Union, in, respectively, domestic legislation and regional or supranational laws of a soft or binding nature. The existence of a reliable transnational legal infrastructure in respect of international commercial law, including commercial private international law, is a prerequisite for investor confidence, inclusive economic growth, sustainable development, and the ultimate alleviation of poverty on the African continent. The instrument may contribute to sustainable growth on a long-term basis. The regulation of private international law of contract is essential to the further development of the African Continental Free Trade Area.

Jan L Neels is professor of private international law and director of the Research Centre for Private International Law in Emerging Countries at the University of Johannesburg.

ISBNs
978-1-7764474-0-4 (Paperback)
978-1-7764474-1-1 (PDF)
978-1-7764474-2-8 (EPUB)
978-1-7764474-3-5 (XML)
DOI:  https://doi.org/10.36615/9781776447411
PRICE:  R125 (print), OA (ebook)

This is the second of a series of posts which will present how the issue of the applicable law to the time limit to enforce or recognise foreign judgments is addressed in comparative private international law. The first post presented the view of the Swiss federal tribunal.

In a judgment of 11 January 2023, the French supreme court for private and criminal matters (Cour de cassation) confirmed its traditional position by ruling that the French 10 year time limit applies to the enforcement of foreign judgments in France and that foreign time limits may indirectly be taken into consideration by denying standing to the party seeking a declaration of enforceability.

Time Limit to Enforce Foreign Judgments

For more than 30 years, the Cour de cassation has ruled that the enforcement of foreign judgments in France is governed by the applicable French time limit. For years, there was no specific time limit applicable to the enforcement of judgments, and French courts would thus apply the general time limit of 30 years. Since 2008, a specific rule was included in article L 111-4 of the Code of Civil Enforcement Proceedings providing for a time limit of 10 years.

In order to justify the application of French law to the issue, the Cour de cassation has consistently held that the subject matter of the time limit was the enforcement of a judgment. In other words, the issue was identified as concerned with a particular effect of the judgment, namely enforcement.

In a judgment of 4 November 2015, the court clarified that the starting point of the time limit was the date of the French order declaring the foreign judgment enforceable in France. This has been convincingly interpreted by French scholars as meaning that the subject matter of the time limit was, in an international context, the enforcement of a French judgment rather than a foreign one, i.e. the exequatur order. A possible rationale for such a proposition is that, under the French common law of judgments, a foreign judgement cannot, strictly speaking, be enforced. Only a French exequatur order can. In other words, the enforcement of foreign judgments in France is not, strictly speaking, a problem of private international law. It is a matter a domestic enforcement (of a French exequatur judgment).

This approach works fine under the French common law of judgments. But it is unclear whether it works as under the European law of judgments. In the 2023 judgment, the Cour de cassation repeated the traditional rule in the context of the Lugano Convention. Under the Lugano Convention, foreign judgments can only be enforced on the basis of a declaration of enforceability. Is it exactly the same as an exequatur order under the common law of judgments of the Member States? It seems that the Cour de cassation thought so.

All this begs the question of the time limit applicable to the enforcement of a judgment under the Brussels I bis Regulation. In the absence of any declaration of enforceability, it is hard to consider that the foreign judgment is not enforced as such.

Standing

The judgment of 11 January 2023 also confirms that the Cour de cassation would still take into account the time limit of the country of origin of the judgment to assess whether the judgment creditor would have standing to seek enforcement of the judgment in France.

The reasoning of the Cour de cassation starts from the premice that the foreign judgment may only be declared enforceable in France if it is enforceable in its country of origin. As a result, a judgment creditor of a foreign judgment time barred in its country of origin would lack standing to seek a declaration of enforceability in France, as the foreign judgment would not be enforceable in its country of origin.

The consequence of this rule is that, at least until the foreign judgment has been declared enforceable in France, it is, in effect, also subject to the time limit of its country of origin, to the extent to such time limit would affect its enforceability.

The case leading to the judgment of 11 January 2023 was concerned with the enforcement in France of a Swiss judgment. The Lugano Convention applied. The Cour de cassation does not underscore that peculiarity, which does not seem to be relevant for the court. The issue arises, however, whether the proposition that an action seeking a declaration of enforceability under the Lugano Convention might be found inadmissible comports with the rule that the only grounds for denying such declaration are the limited grounds found in Art 34 of the Convention (Case C-139/10, Prism Investments). True, the Cour de cassation does not rule that it would dismiss the application on the merits, but rather that it would find it inadmissible. Is the issue of admissibility governed by the law of the Member States?

Or should the issue of lack of enforceability of the foreign judgment be addressed at the stage of enforcement of the declaration of enforceability (and the foreign judgment)? This is what the Swiss federal Tribunal ruled in its judgment of 2 August 2022.

Co-edited by Rishi Gulati, Thomas John and Ben Koehler, the Elgar Companion to UNCITRAL is now out. This is the second in the trilogy of books on the three key international institutions mandated to work on private international and international private law. The Elgar Companion to the HCCH has already been published in 2020, with the Elgar Companion to UNIDROIT out in 2024.

The Elgar Companion to UNCITRAL brings together a diverse selection of contributors from a variety of legal backgrounds to present the past, present and future prospects of UNCITRAL instruments. Split into four key thematic sections, this book starts by providing an institutional background to UNCITRAL, before moving on to discuss the topic of dispute resolution, including contributions on international arbitration, mediation, and online dispute resolution. Further chapters then explore key topics in international contract law, especially relating to the United Nations Convention on Contracts for the International Sale of Goods. The final section of the Companion consists of chapters on a variety of matters considered at UNCITRAL, namely, micro, small and medium-sized businesses; insolvency; secured transactions; negotiable instruments; public procurement; electronic commerce and transport law.

The book will be virtually launched by the Secretary of UNCITRAL, Ms Anna Joubin-Bret, on 14 December 2024 at 13:00 CET. The launch event will also include a highly informative panel discussion. To register, please click at the link below:

https://events.mpipriv.de/book_launch_elgar_companion_to_uncitral

The recently published study titled ‘European Commercial Contract Law’, authored by Andrea Bertolini, addresses the theme of regulatory competition. It offers new policy recommendations to improve EU legal systems’ chances of being chosen as the law governing commercial contracts.

 

The Study’s main question

The European Parliament’s Committee on Legal Affairs has published a new study authored by Andrea Bertolini, titled ‘European Commercial Contract Law’ (the ‘Study’). The Study formulates the main question as follows: ‘why the law chosen in commercial contracts is largely non-European and non-member state law’. The expression ‘non-European and non-member state’ law is specified as denoting the legal systems of England and Wales, the United States, and Singapore, and more generally, common law legal systems. The Study states:

It is easily observed how most often international contracts are governed by non-European law. The reasons why this occurs are up to debate and could be quite varied both in nature and relevance. Indeed, a recent study by Singapore Academy of Law (SAL) found that 43 per cent of commercial practitioners and in-house counsel preferred English law as the governing law of the contracts.

Although the SAL’s findings are immediately relativised, the Study is underpinned by the assumption (derived from the SAL’s findings) that commercial parties frequently opt for common law. The trend of choosing non-European and non-member state law, the Study submits, is the main reason for enquiring into measures that can be taken to improve the chances of EU Member States’ legal systems being chosen as the law governing commercial contracts:

While the validity of such a study may be questioned, the prevalence of common law in international business transactions, emerging also from other reports and studies (see for a detailed discussion §§2.2 ff.), is one of the very reasons that led to need of performing the current analysis, and should be taken into account, so as to identify those elements that may be improved in the European and MS’s regulatory framework for commercial contracts entered into by sophisticated parties.

The endeavour to identify the points of improvement in the EU and Member States’ regulatory frameworks for international contracts merits appreciation and is relevant to businesses and policymakers. Meanwhile, this endeavour implies a complex task. This task can be approached from different perspectives.

The parties’ perspective

The question of what drives private parties to choose one legal system over another as the law governing their contract is an empirical question. It implies the need to conduct an empirical study, including surveys, interviews, or to use another quantitative or qualitative social science methods. This method has been used in several empirical studies, which have provided various insights into the parties’ attitudes to the choice of law in commercial contracts. To name a few important studies, these include the research by Stefan Vogenauer on regulatory competition through the choice of contract law in Europe, the research by Gilles Cuniberti on international market for contracts and the most attractive contract laws, and an empirical study of parties’ preferences in international sales contracts conducted by Luiz Gustavo Meira Moser. Vogenauer’s research focused on Europe (which included the United Kingdom at that time), while the studies by Cuniberti and Meira Moser had a broader ambit.

Despite the possibly empirical nature of the Study’s main question, the Study neither uses empirical methods nor focuses on the parties’ perspectives. Instead, it takes the policymakers’ perspective.

The policymakers’ perspective

The Study aims to ‘identify possible policies to be implemented to overcome’ the trend that ‘the law chosen in commercial contracts is largely non-European and non-member state’. The findings are formulated as recommendations for policymakers who attempt to make their own legal systems attractive to parties involved in international transactions. The recommendations address both substantive contract law and civil procedure (see inter alia point 2.1 on page 42). Within civil procedure, the Study leaves outside the scope conflict-of-law questions of the extent to which the courts upheld choice-of-law agreements or how various legal systems applicable to contract interpretation deal with the application of foreign law. By contrast, specific attention is paid to the efficiency of the national judiciaries.

Along with the discussion of substantive law, civil procedure and national judiciaries’ efficiency, the Study looks for the reasons for (what it assumes to be) the low success rate of EU Member States’ contract law in the pitfalls of the projects to harmonise contract law that have been undertaken over the last decades. The Study states from the outset:

Indeed, absent an autonomous European contract law, business parties often elect other, non-European jurisdictions (often common law ones), to govern their contractual agreements.

It goes on to identify ‘the fate’ of various attempts to harmonise contract law, such as soft law instruments (including the Principles of European Contract Law (PECL), the UNIDROIT Principles of International Commercial Contracts (UPICC), the Acquis Principles, the Draft Common Frame of Reference (DCFR), and the Common European Sales Law project). These are addressed in the first part of the Study, after which the contract laws of various legal systems are compared and coupled with a comparison of the functioning of the court systems. The method on which the Study bases its conclusions and recommendations is outlined as follows:

To do so, it first provides an overview of the relevant academic and policy efforts underwent to formulate a European contract law (Chapter 1). Then it moves on to touch upon a broad spectrum of matters emerging both from international reports on the adjudication and the functioning of the courts systems, as well as from academic literature on matters that span from contract qualification, interpretation, integration, and some fundamental aspects of remedies (Chapter 2). It then provides a series of policy options (Chapter 3), European institutions could consider when attempting to alter this trend and ensure EU regulation a global role in commercial contracts too.

Regulatory competition, soft law, or de facto harmonisation?

Placing harmonisation of contract law at the core of the discussion of regulatory competition is a fresh look at the (soft law) instruments harmonising contract law. However, it is a somewhat unexpected take on these instruments, because participation in regulatory competition, whereby a EU instrument would compete with third states’ laws, does not appear to be the goal of any contract law harmonisation project. For instance, the UNIDROIT principles have harmonised commercial contract law worldwide. The instrument contains a number of rules rooted in the legal system of the United States (Uniform Commercial Code and States’ case law) and has been endorsed by the UNCITRAL. The PECL and DCFR limit their scope to the EU, but at the time of these instruments’ drafting, the United Kingdom was an EU Member State. Furthermore, PECL and DCFR are not confined to commercial contract law; they address contract law more broadly.

In contrast to these harmonisation projects, the Study appears to promote (without explicitly stating this) the de facto harmonisation by contract clauses and the need to foster party autonomy in the interpretation of contracts. If this is correct, this would be a very welcome recommendation, albeit not entirely new. The Study states:

Overall, the analysis is then used to lay out some policy recommendations that may only be broad in scope and point at one direction more than providing detailed solutions.

All efforts should aim at pursuing the efficiency of the judiciary on the one hand, and the creation of a set of minimalist and – possibly – self-sufficient norms dedicated to the regulation of business contracts that prioritize legal certainty, foreseeability of the outcome, preservation of the parties will.

This and other recommendations are summarised on page 9 and provided on pages 76 ff, and are certainly worth reading.

This post has been written by Jacco Bomhoff (LSE), Uglješa Grušić (UCL), and Manuel Penades (KCL).

As previously announced, the LSE Law School hosted a symposium to celebrate the scholarly work of Emeritus Professor Trevor C. Hartley on 17 October 2023.

The Symposium brought together around 70 participants, colleagues, and friends from the UK and abroad, who celebrated and discussed Trevor’s many contributions.

The first contribution to the Symposium was a keynote by Professor David Kershaw, Dean of the LSE Law School. He reminded us that Trevor came to LSE from the University of Western Ontario in 1969 and taught at LSE for a record-breaking 54 years. In that time, Trevor firmly established himself as a leading scholar in private international law and EU law, and inspired many generations of law students.

Subsequently, Lord Collins gave another keynote in which he commented on Trevor’s contributions to private international law. Trevor has pursued many topics in the field, but is perhaps best known for his work on mandatory rules, choice-of-court agreements, and comparative international civil and commercial litigation. He joined the team of editors of Dicey and Morris on Conflict of Laws (as it then was) in 1985 and was one of the specialist editors responsible for 10 chapters in the 11th edition (1987) and 12 chapters in the 12th edition (1993). He sat on the Lord Chancellor’s Committee for Private International Law, gave a Hague Academy special course on the common law approach to mandatory rules in international contracts in 1997 and a general course on the modern approach to private international law in 2006, and was a rapporteur on the 2005 Hague Choice-of-Court Convention. Trevor has authored many books in the field, including a student textbook on International Commercial Litigation (CUP, now in its 3rd edition from 2020), and monographs on Civil Jurisdiction and Judgments in Europe (OUP, now in its 3rd edition from 2023) and Choice-of-Court Agreements under the European and International Instruments (OUP, 2013).

These keynotes were followed by the first panel of the day, which focused on global and comparative private international law, one of the main themes of Trevor’s scholarship. This panel was chaired by Dr Roxana Banu (Oxford), who noted that the aim of the Symposium was to celebrate Trevor and, through Trevor, the field of private international law.

The first speaker in this panel, Professor Paul Beaumont (Stirling), outlined the 2019 Hague Foreign Judgments Convention and explained its relationship with the 2005 Hague Choice-of-Court Convention. He commented on key features of the 2019 Convention, such as the broad range of judgments that come within its scope, the broad set of indirect jurisdictional rules, and exclusion of arbitration. Furthermore, he noted that the 2019 Convention supplements the 2005 Convention in different ways, for example by covering non-exclusive choice-of-court agreements, providing for a defence of breach of a jurisdiction agreement, and covering asymmetric choice-of-court agreements (as confirmed in Etihad Airways PJSC v Flother, where the Court of Appeal referred to the Hartley and Dogauchi Explanatory Report at [85]). Finally, Professor Beaumont confirmed that the two conventions should be interpreted in a systematic way. The 2005 and 2019 Conventions represent two key pieces of the Hague global justice system, which is a fitting legacy for Trevor’s excellent work on the 2005 Convention.

Professor Alex Mills (UCL) commented on the importance of the 2005 Convention. He remarked that the fact that the 2005 Convention exists and is in force is important for the Hague Conference and global private international law. However, a relatively modest number of ratifications demonstrates challenges of international harmonisation. Nevertheless, the success of a treaty is not measured only in terms of number of ratifications – the 2005 Convention crystalised the importance and acceptance of party autonomy in the field of jurisdiction and foreign judgments, and is an important sign of consensus in this respect. The 2005 Convention is important for the London litigation market because it provided a degree of continuity after Brexit. Finally, Professor Mills noted the value of the Hartley and Dogauchi Explanatory Report for interpreting and applying the treaty, and its contribution to the success of the treaty.

Professor Koji Takahashi (Doshisha) commented on comparative private international law by pointing out that the relationship between the common law and civil law systems in private international law is often analysed in terms of well-known dichotomies. One of those dichotomies is pragmatism v dogmatism (idealism). Nevertheless, Professor Takahashi noted that all private international law systems combine elements of both pragmatism and dogmatism. He demonstrated this point by showing the pragmatic aspects of pleading and proof of foreign law, renvoi, and the choice-of-law rules for divorce in Japanese law. The application of these doctrines often allows Japanese courts to apply Japanese law.

Professor Veronica Ruiz Abou-Nigm (Edinburgh) closed the first panel by discussing the protection of global commons in private international law, a subject that Trevor touched on in his 2009 Revue Hellenique de droit international article on ‘Multinational Corporations and the Third World’. Prof Ruiz Abou-Nigm did this by drawing out attention to three points: (1) power imbalances and access to justice, particularly in the context of business and human rights litigation; (2) accessibility of the private international law logic to ordinary people and lawyers; and (3) impact of differentials in capacity and expertise. Professor Ruiz Abou-Nigm concluded by remarking on the importance of local solutions to global problems such as sustainable development, and by recognising the importance of academic activism.

This panel was followed by a third keynote given by Professor Hans van Loon, who, as former Secretary General of the Hague Conference, is particularly well placed to comment on Trevor’s contribution to the work of the Conference. Professor van Loon expressed a view that the Hartley and Dogauchi Explanatory Report is a “masterpiece”. Professor Van Loon also reminded us that Trevor is a key member of the European Group of Private International Law (GEDIP).

A fourth keynote was given by Professor Carol Harlow (LSE, emerita). Since Professor Harlow and Trevor joined LSE at around the same time, she was able to comment on Trevor’s contributions to the LSE Law School, as well as on Trevor’s contributions to public law and EU law scholarship. Some readers of the blog may not know that Trevor was a pioneer in EU law in the UK and that his book on the Foundations of European Community Law (Clarendon Press, 1981) had a significant impact in the English-speaking world.

The day’s second panel was chaired by Professor Pippa Rogerson (Cambridge). Its remit was Trevor ’s well-known ICLQ article on the CJEU’s “systematic dismantling of the common law” in its decisions in Gasser v Misat, Owusu v Jackson, and Turner v Grovit. The panel’s task was to revisit the article, almost 20 years after its publication, and in light of all that has happened in the law of civil jurisdiction since.

Professor Andrew Dickinson (Oxford) spoke first, on anti-suit injunctions. Professor Dickinson sketched a contrast between Trevor’s view of anti-suit injunctions, which he characterized as one of “wary receptiveness”, and his own, which was “warier and less receptive”. Zooming out from the discussion of Turner v Grovit, Dickinson also looked further back – to the Privy Council’s seminal decision in Aérospatiale v Lee Kui Jak, on which Trevor recently published a case comment – and to more recent developments, notably the CJEU’s decision in Charles Taylor Adjusting Ltd v Starlight Shipping Co. Professor Dickinson’s conclusion was that “[The] anti-suit injunction is as controversial as it ever was, and the issues that it throws up have become more complex as the world and the ways in which legal systems interact with one another have evolved over time. It is a good thing that Trevor has been willing to serve as one of our principal guides, highlighting the trade-offs involved in choosing between unilateralism and multilateralism.”

Professor Jonathan Harris (KCL) discussed forum non conveniens, taking up not just the ICLQ article just mentioned, but also Trevor’s book on Civil Jurisdiction and Judgments (Sweet & Maxwell, 1984), and his 1992 comment in the European Law Review on the Court of Appeal’s decision in Re Harrods (Buenos Aires) Ltd [1992] Ch 72. Professor Harris noted how Trevor thought the Court of Appeal had reached the right decision in that case, and how he “did not hold back” in his later criticism of Owusu, in both the ICLQ article and in his lectures for the Hague Academy. Again taking a broader perspective, Professor Harris noted that the answer to the question “forum non conveniens – where are we now?” seems to be, roughly, “where we were 35 years ago”, at the time of Spiliada. Professor Harris concluded by giving his views on why, in the way English law is currently structured, so much still turns on the ability of claimants to serve defendants within the jurisdiction, as compared to having to obtain permission to serve out.

Professor Eva Lein (BIICL and Lausanne) was slated to speak on “torpedo” actions – another topic of concern in the “systematic dismantling” article – but unfortunately had to cancel at short notice.

The last speaker for this panel, therefore, was Professor Adrian Briggs (Oxford), who addressed the topic “What is left of the Brussels I Regulation in English law and in the English courts?”. Professor Briggs identified four different layers to the lingering effects of the Brussels regime. First, the direct legacy of the rules of section 15 of the Civil Jurisdiction and Judgments Act 1982, as amended, on jurisdiction in certain cases involving consumers and employees. Second, and a little more indirect, is the baggage of CJEU interpretations of key terms in the Rome I and Rome II Regulations that built on their approach to the Brussels regime, and that now threaten to affect the English courts’ approach to the retained rules on choice of law. For both these instruments, in Professor Briggs’ view, the conclusion is that there is nothing much wrong with the “European” rules themselves, but rather a lot wrong with the CJEU’s interpretation of them. The third and fourth layers to the legacy of the Brussels regime in English law, in Professor Briggs’ view, sound in cultural terms. First, certain basic ideas and outlooks familiar from practice under the Brussels rules may still influence English law. The main example for this is perhaps the basic proposition, patterned on Article 4 of Brussels I bis, that it is right that claimants should always be able to sue English companies in England. For the fourth and last lingering effect of the Brussels regime, Professor Briggs returned to the main theme of Trevor’s “systematic dismantling” article. This is the lasting memory, stated bluntly, of a Court of Justice preaching mutual respect but acting with disrespect; to Member States courts and legal systems in general, and to the common law in particular.

The last keynote speaker for the day was Professor Damian Chalmers (National University of Singapore). His speech combined an appraisal of Trevor’s early and seminal contributions to the study of the law of the European Communities, with a more personal reflection on Trevor’s role as mentor.

The final panel dealt with the relationship between dispute resolution clauses and EU law, another of Trevor’s significant themes of scholarship. The panel was chaired by Professor Yvonne Baatz (QMUL, retired). She opened the session by highlighting the breadth of Trevor’s work and his characteristic ability to explain complex ideas in accessible and clear ways.

The first talk in the panel was given by Alexander Layton KC (Twenty Essex and KCL), focusing on the reflexive effect of EU private international law. While the topic is now primarily of historical interest in England, Layton explained that it still serves as a good example of the tension between the common law and civil law traditions. He criticised the CJEU for failing to consider the role of comity in the context of the potential reflexive effect of the Brussels regime toward third States in three relevant areas: foreign lis pendens, exclusive jurisdiction, and dispute resolution clauses in favour of the courts of third States. While lis pendens is now resolved by Articles 33 and 34 of Brussels I bis, the other two issues remain contentious. National courts have three options: interpreting the Brussels/Lugano regime as incorporating an implied yet mandatory reflexive effect (“strict reflexivity”); prohibiting such reflexive effect based on the mandatory application of the rules on jurisdiction of the Brussels/Lugano regime in favour of EU courts, regardless of the interests of the third State (“prohibited reflexivity”); permitting EU courts to decide the matter based on national law given the absence of express solution in the Brussels/Lugano regime (“flexible reflexivity”). While all three options present challenges, English courts appear to have adopted the flexible reflexivity approach (Ferrexpo v AG v Gilson Investments Ltd). Layton opined that brief passages in previous European case law suggest that the CJEU could support the “strict reflexivity” model. This uncertainty might be resolved by the forthcoming decision in BSH Hausgeräte v Aktiebolaget Electrolux concerning the validity of a Turkish validation of a European patent.

This talk was followed by Professor Richard Fentiman (Cambridge), who spoke about the relationship between international arbitration and the Brussels/Lugano regime. He identified two reasons why the English legal community was profoundly unpersuaded by the case law of the CJEU that curtailed contractual remedies to enforce arbitration agreements in the form of antisuit injunctions and damages awards. The first was that those EU decisions were not about the hierarchy between arbitration and EU law but about a more profound clash between the integrity of the Brussels rules and the remedies available under national law to enforce arbitration agreements. The second reason concerned the Court’s frustrating technique, which refused to recognise the conceptual distinction between the allocation of jurisdiction, on the one hand, and the enforcement of contractual rights and controlling personal conduct, on the other. The use of open-textured concepts such as mutual trust and effet utile did not inspire confidence and, in fact, was used by the Court to make policy decisions in the guise of legal reasoning. In the second part of his presentation, Professor Fentiman argued that these contractual remedies should become available and effective again after Brexit even vis-à-vis EU Member States (as evidenced by French case law). Also he pointed out that the doctrine laid by the CJEU in Case Charles Taylor Adjusting no longer applies to English decisions and, therefore, their European effectiveness will depend on the national law of each EU Member State and their notions of public policy. The relief brought by Brexit, he concluded, is that the decision whether to request those remedies from English courts in each case will depend on the parties’ litigation strategies, and not on a general prohibition imposed by EU law. Equally, he celebrated the fact that English courts will be free to address outstanding questions such as the compatibility of these contractual remedies with Article 6 of the European Convention of Human Rights squarely and without the restrictions imposed by the often tendentious unpersuasive reasoning of the CJEU.

The third presentation in this panel was delivered by Jan Kleinheisterkamp (LSE), who spoke about arbitration and EU mandatory rules. He explained that at the root of the problem lies the fact that, unlike national courts with article 9 of the Rome I Regulation, arbitrators do not have a clear choice of law regime for mandatory rules. As a result of Eco Swiss and Ingmar, some European courts have refused the enforcement of arbitration agreements when the use of international arbitration, coupled with the choice of law made by the parties, would lead to the disapplication of EU mandatory law. An option to avoid this radical effect would be to allow court proceedings seeking an undertaking by both parties to apply the relevant mandatory rule as a condition to enforce the arbitration agreement, linked to the possibility of court review at the post-arbitration stage (just like in the SCOTUS decision in Mitsubishi v. Soler Chrysler-Plymouth). Dr Kleinheisterkamp argued that the growing tendency of English courts to issue antisuit injunctions should not impede the operation of this proposal post-Brexit, when a party commenced court proceedings before EU courts to obtain such undertaking from its counterparty to the arbitration agreement. To do this, English courts should reconsider the possible application of Ralli Bros v Compania Naviera Sota y Aznar (1921) 8 Ll L Rep 139 to arbitration agreements and avoid turning England into a safe haven for arbitrations of any colour and shape. A more measured approach was preferable to avoid backlashes against arbitration, and recent decisions by English courts preventing illegality in arbitration (The Federal Republic of Nigeria v Process & Industrial Developments Limited) offered hope that some judges were receptive to that restrained approach.

Professor Linda Silberman (NYU, emerita) closed the panel. She discussed the potential adoption of the 2005 Hague Choice-of-Court Convention by the USA and the controversy raised by the reactions of some arbitration practitioners against the Convention compared to the 1958 New York Convention (see here, here, and here). While the prospects for the adoption of the 2005 Convention are positive, Professor Silberman signalled that one of the main areas of concern was that, unlike in Article V(1)(a) of the NYC, Article 9(a) of the 2005 Convention provides that that the determination by the chosen court in favour of the validity of the forum selection agreement is conclusive. A recent discussion on the subject in the NY Bar Committee concluded that Articles 6(c) and 9(e) of the 2005 Convention offered sufficient safeguards to alleviate the concern. Article 6(c) would allow a party to demonstrate that it never consented to a putative choice of court agreement and that holding a party to such a clause would create manifest injustice or would manifestly violate the public policy of the non-selected court. Article 9(e) would also prevent the recognition or enforcement of a judgment when it would be manifestly incompatible with the public policy of the requested State. Despite Article 9(a) of the 2005 Convention, the NY Bar Committee NY Bar was satisfied that Article 9(e) would allow the court to stop the effect of the finding by the allegedly selected court in favour of the validity of a bogus choice of court agreement. To strengthen this position, the NY Bar Committee recommended the introduction of federal legislation to reiterate the principles that voluntary consent to jurisdiction is an aspect of fundamental US public policy and an element of US constitutional due process, and also that US public policy requires a court to refuse to recognise or enforce a judgment obtained in a judicial system that does not afford impartial tribunal and judicial fairness. The Hartley and Dogauchi Explanatory Report was instrumental to reach this positive conclusion.

In May, the Hamburg Max Planck Institute organized an online panel to discuss implications from the German Federal Constitutional Court Decision on the Act to Combat Child Marriages rendered just prior. The panelist were Henning Radtke (Judge at the Constitutional Court),  Dagmar Coester-Waltjen (Professor emeritus for PIL at University of Göttingen), Susanne Gössl (Professor for PIL at University of Bonn) and Lars Viellechner (Professor for Constitutional Law at University of Bremen). Their contributions are now available, together with a short introduction, in open access via the “online first” section of Rabels Zeitschrift.

 

Ralf Michaels, Einleitung zum Symposium

Henning Radtke, Zu den Maßstäben der verfassungsrechtlichen Beurteilung von Regelungen des deutschen Internationalen Privatrechts

Susanne Lilian Gössl, Grundrechte und IPR: Vom beidseitigem Desinteresse zu höflicher Aufmerksamkeit – und zu angeregtem Austausch?

Lars Viellechner, Die Anwendbarkeit der Grundrechte im Internationalen Privatrecht: Zur Methodik der Entscheidung des Bundesverfassungsgerichts über die Kinderehe

Dagmar Coester-Waltjen, Die “Kinderehen”-Entscheidung des Bundesverfassungsgerichts: Welche Schlussfolgerungen ergeben sich für das internationale Eheschließungsrecht?

The Interdisciplinary Association of Comparative and Private International Law (IACPIL) is hosting a conference titled “Legal Protection of Vulnerable Adults in Central and Eastern Europe” on the 28 November 2023 at the University of Vienna.

The aging population and the rise of age-related diseases result in the urgent need to address the legal issues surrounding vulnerable adults. Beyond the challenges posed by the aging demographic, other vulnerable groups also warrant legal protection. Conducting a comparative analysis of the prevailing legal frameworks for protecting vulnerable adults becomes imperative to gain insights into effective solutions and identify areas requiring further attention.

This conference will therefore explore the protection of vulnerable adults in Central and Eastern Europe including cross-border issues. Masha Antokolskaia and Bea Verschraegen, renowned experts in the fields of comparative and private international law, will shed light on the complexities surrounding the protection of vulnerable adults.

The full programme of the conference and further information can be found here.

Participation is free of charge. Those wishing to attend the Conference online are invited to register by 27 November 2023 (office@igkk.org).

On 16 November 2023, on the “International Day of Tolerance”, Prof. Rosario Espinosa Calabuig, is organising a new International Seminar, this time under the title: SUSTAINABILITY, SOLIDARITY AND TOLERANCE FROM PRIVATE INTERNATIONAL LAW. Program:  Verónica Ruiz Abu-Ngim CARTEL Seminario Sostenibilidad, solidaridad y tolerancia. 16 nov. 2023 (Edinburgh): “Solidarity and sustainability: a look at Private International Law from the 2030 Agenda” Stéphanie Franq (Louvain): “From Sorority to Solidarity in Private International Law: a methodological approach” Laura Carballo Piñeiro (Vigo): “Tolerance or Solidarity? A look at maritime migrations from the perspective of cinema”. More info here.

The U.S. Supreme Court has long held that a forum selection clause should not be enforced when “trial in the contractual forum will be so gravely difficult and inconvenient” that the plaintiff “will for all practical purposes be deprived of his day in court.” The financial status of the plaintiff is obviously a factor that should be considered as part of this inquiry. Large corporations can usually afford to litigate cases in distant courts. Individual plaintiffs frequently lack the resources to do so. Nevertheless, the lower federal courts in the United States have repeatedly held that financial hardship on the part of the plaintiff is not enough to make an otherwise valid forum selection clause unenforceable.

In a new article, Financial Hardship and Forum Selection Clauses, I argue that this practice is both doctrinally incorrect and deeply unfair. U.S. courts can and should consider the plaintiff’s financial circumstances when deciding whether to enforce foreign forum selection clauses. To illustrate the perversity of current practice, one need look no further than Sharani v. Salviati & Santori, Inc.

Jay Sharani, his wife Catherine, and their two young children were moving from the United Arab Emirates to San Franciso, California. They paid $3600 to IAL Logistics Emirates, LLC (IAL), a shipping company, to transport seventy pieces of household goods to the Bay Area. Although the goods were successfully delivered to a warehouse in Oakland, IAL never communicated this fact to the Sharanis. The Sharanis repeatedly sought to contact IAL over the course of two months. They received no response. When the company finally responded, the Sharanis discovered that many of their goods were in the process of being sold at auction. When the remaining goods were finally delivered, most of them were damaged and unusable.

The Sharanis filed a lawsuit, pro se, against IAL’s delivery agent in federal district court in California alleging breach of contract and negligence under the Carriage of Goods by Sea Act. The defendant moved to dismiss the case based on a forum selection clause in the shipping agreement. That clause required all lawsuits to be brought in London, England. The Sharanis argued that the clause should not be enforced because it would deprive them of their day in court. Specifically, they alleged that (1) they could not afford to hire counsel in the United Kingdom, and (2) they could not afford to take extended time away from their jobs and family responsibilities to represent themselves abroad.  The court rejected these arguments. It held that the Sharanis had failed to show that litigating in England would be so expensive as to deprive them of their day in court. It also held that that the Sharanis had not explained “why one parent could not stay with the children while the other parent pursues the claim, or why their income is insufficient to pay for childcare.” The case was dismissed.

In my article, I demonstrate that the outcome in Sharani is no outlier. In case after case, decided decade after decade, U.S. courts have enforced foreign forum selection clauses knowing full well that the practical effect of enforcement would almost certainly deprive plaintiffs of their day in court because they lack the financial resources to bring their cases abroad. The end result is a long trail of abandoned lawsuits where plaintiffs holding legal claims were denied access to a forum in which to assert those claims through no fault of their own.

[This post is cross posted at Transnational Litigation Blog.]

On Tuesday, December 7, 2023, the Hamburg Max Planck Institute will host its 39th monthly virtual workshop Current Research in Private International Law at 10:00-11:30 (CET). Mary Keyes (Griffith University Brisbane) will speak, in English, about the topic

Trends in Australian Private International Law

This presentation will describe and analyse five important trends in Australian private international law, some but not all of which are not uniquely Australian. These are increasing independence from the English law on which Australian private international law is based; an astonishing increase in the volume of cross-border litigation; the rise and rise of jurisdiction; a broad attitude to the Australian courts’ jurisdiction; and the lack of systemic development of this area of the law.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

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

While EU harmonization in matters of parenthood is approaching, following the Commission’s proposal of last year [COM (2022) 695 final], national courts are still examining applications for recognition of foreign court decisions in accordance with domestic legislation. Earlier this year, the Areios Pagos, i.e., the Hellenic Supreme Court, was asked to decide whether an Austrian judicial declaration of paternity should be denied recognition on grounds of public policy, or not (Areios Pagos, Judgment No. 170/2023, available in Greek here).

Facts First stage: Austria

In 2012, an Austrian national (A), domiciled in Austria, started non-contentious proceedings before the District Court of Eastern Graz, in Austria, against a Greek national (B), whose residence was in Thessaloniki, Greece. Born in 1968, A sought a declaration that B was her father. The court ruled in 2015 that B, who had died shortly before the publication of the decision, was in fact the father of A.

The Graz Civil Court of First Instance, seised by the heirs of B, dismissed the appeal in 2016. The appellants further filed an (extraordinary) appeal against the latter decision, but this appeal, too, was dismissed.

The judicial declaration of paternity was declared​ final in Austria in June 2016.

Second Stage: Greece

On an application filed before the Thessaloniki Court of first Instance, the Austrian judicial declaration was recognized in Greece pursuant to the pertinent provisions of the Greek Code of Civil Procedure (mainly Article 780, on the recognition of foreign judgments issued in non-contentious proceedings). The heirs of B challenged the recognition, to no avail. They seised, then, the Greek Supreme Court, arguing, among other things, that the Austrian decision should not be recognized in Greece on the ground that its recognition would offend Greek public policy. They noted that the Austrian rules governing proceedings aimed at a declaration of paternity differ profoundly from the corresponding Greek rules, notably as regards the time limits on applying for such a declaration. 

The Supreme Court’s Judgment

In its ruling, the Supreme Court focused on Paragraph 148 of the Austrian Civil Code, on judicial determination of paternity, which reads as follows:

(1) The court must establish the paternity of the man from whom the child is descended. The application may be made by the child against the man or by the man against the child.

(2) On application by the child, the man who was present with the mother for not more than 300 and not less than 180 days before the birth or with whose semen medically assisted procreation was performed on the mother during this period may be established as the father, unless he proves that the child is not his offspring. Such recognition is no longer possible two years after the man’s death, unless the child proves that he or she is unable to provide evidence in accordance with para. 1 for reasons on the man’s side.

The Supreme Court then turned to corresponding Greek rule on the matter, namely Article 1483 of the Civil Code, which states:

A mother’s right to request recognition of her child’s paternity is extinguished when five years have passed since birth. The child’s right shall be extinguished one year after the child has reached the age of majority, and the right of the father or his parents two years after the mother has refused consent.

The Supreme Court dismissed the appeal. It acknowledged that Austrian law sets a two-year limitation period starting from the death of the father, whereas Greek law stipulates that an application for a declaration of paternity may be lodged no later than one year after the child has reached the age of majority, but observed that such a difference in regulation does not amount to a violation of public policy.

The Supreme Court concluded that recognition of the Austrian declaration ought to be granted in Greece, given that nothing in the judgment in question offends the basic principles of the Greek legal order.

Some Remarks

Two years ago, the Athens Court of Appeal was called upon to examine the recognition of a German decision. The issues raised by the case are similar to those surrounding the Supreme Court’s ruling examined above. A German citizen, 31 years old at the date of filing, had seised a German court (the Schöneberg Justice of the Peace) seeking a declaration that the respondent, a Spaniard living in Athens, was his father. The German court upheld the application, and issued a declaration of paternity, which eventually became final in Germany.

At first instance, the German decision was granted recognition in Greece. The Athens Court of Appeal, however, later decided otherwise (Judgment No. 2736/2021, published in Private Law Chronicles 2021, p. 438 ff.).

In brief, it ruled as follows: the fact that the appellee applied for recognition of paternity before the German courts for the first time 13 years after he came of full age and subsequently, after 17 years, for the recognition of the German court decision in Greece, constitutes a breach of the time limits laid down by Greek law concerning applications for a declaration of paternity, and accordingly contravenes the public policy of Greece, since it constitutes an expression of abusive conduct

The Athens Court relied for this on the Greek Constitution and on the European Convention on Human Rights, in conjunction with Article 33 of the Greek Civil Code (on the public policy exception) and, more generally, the Greek legal order, which is concerned with the protection of third parties and the protection of public interest, as regards legal relationships that have been established and settled to date, i.e., 17 years after the appellant came of full age.

The Court of Appeal concluded that the Court of First Instance wrongly failed to examine whether the legal effects of the abovementioned German judgment, based on German law, correspond in substance to Greek law. Were Greek law applied, the legal consequences would have been diametrically opposed, and the application would have been dismissed, since the appellee had lost the right to bring the action long ago. Therefore, the court which delivered the judgment under appeal was not entitled to recognize the res judicata effect of that German judgment in Greece.

Article 31 para 1(a) of the Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, states

The recognition of a court decision shall be refused: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked, taking into account the child’s interests.

The addition of the last part of the wording (taking into account the child’s interests), which is also featured in the Brussels II ter Regulation (Article 39(1)(a): taking into account the best interests of the child), is a clear message towards a stronger protection of the children. The question here is whether the protective shield refers to children of any age, i.e., even those children who have already passed the age of majority since many years.

The second issue of the Journal of Private International Law for 2023 has just been published. It contains the following articles:

DJB Svantesson & SC Symeonides, “Cross-border internet defamation conflicts and what to do about them: Two proposals”

Conflicts of laws in cross-border defamation cases are politically and culturally sensitive and their resolution has always been difficult. But the ubiquity of the internet has increased their frequency, complexity, and intensity. Faced with the realities of the online environment—including the virtual disappearance of national borders—several countries have acted unilaterally to preserve their values and protect their interests. Some countries enacted laws favouring consumers or other potential plaintiffs, while other countries took steps to protect potential defendants, including publishers and internet service providers. As a result, these conflicts are now more contentious than ever before. We believe there is a better way—even-handed multilateral action rather than self-serving unilateral action. In this article, we advance two proposals for multilateral action. The first is a set of soft law principles in the form of a resolution adopted by the Institut de Droit International in 2019. The second is a proposed Model Defamation Convention. After presenting and comparing these two instruments, we apply them to two scenarios derived from two leading cases (the first and one of the latest of the internet era) decided by courts of last resort. The first scenario is based on Dow Jones & Company Inc v Gutnick, which was decided by the High Court of Australia in 2002. The second is based on Gtflix Tv v. DR, which was decided by the Court of Justice of the European Union at the end of 2021. We believe that these two instruments would produce more rational solutions to these and other cross-border defamation conflicts. But if we fail to persuade readers on the specifics, we hope to demonstrate that other multilateral solutions are feasible and desirable, and that they are vastly superior to a continuing unilateral “arms race.” In any event, we hope that this article will spur the development of other proposals for multilateral action.

 

G McCormack, “Conflicts in insolvency jurisdiction”

The Hague Judgments Convention 2019 contains an insolvency exception. The paper suggests that the proposed Hague Jurisdiction Convention should contain an insolvency exception that mirrors that contained in the existing Hague Judgments Convention. It is also submitted that international instruments in the field of insolvency, and related matters, are best dealt with by the United Nations Commission on International Trade Law (UNCITRAL).

 

L Theimer, “Protection against the breach of choice of court agreements: A comparative analysis of remedies in English and German courts”

In fixing the place and provider for the resolution of disputes in advance, choice of court agreements increase procedural legal certainty and the predictability of litigation risks. Hence, their protection is crucial. This article undertakes a functional comparison of the remedies for breach of exclusive choice of court agreements in English and German courts, painting a picture of different approaches to a common problem. English courts, now no longer constrained by EU law, employ an entire arsenal of remedies, most strikingly the anti-suit injunction and damages effectively reversing a foreign judgment. In contrast, German courts exercise greater judicial restraint, even though damages for the breach of a choice of court agreement have recently been awarded for the first time. Against this backdrop, two distinct but interrelated reasons for the diverging approaches are identified and analysed, the different conceptions of choice of court agreements and the different roles of comity and mutual trust.

 

V Shikhelman, “Enforcement of foreign judgments – Israel as a case study”

This article shows how enforcement of foreign judgments in Israel works in practice. Using an original hand-coded dataset, the article seeks to determine empirically which factors increase the likelihood of a foreign judgment being enforced by Israeli courts. To do so the article makes use of two major theories about enforcement of foreign judgments – international comity and vested rights. Also, the article hypothesises that enforcement can be influenced by specific characteristics of the Israeli court and the foreign judgment.

The article finds that the best predictor of foreign judgment enforcement in Israel is the specific characteristics of the foreign judgment and of the Israeli court – cases with a contractual-commercial nature, and cases brought before one of the central districts of Israel are more likely to be enforced. Additionally, the volume of trade between the issuing country and Israel might also be a certain predictor of enforcement. Finally, the article finds that the due process in individual cases might have some influence on the enforcement decision.

 

D Zannoni, “How to balance respect for diversity and the rights of the vulnerable? (Non-)recognition of forced and underage marriage under the lens of the European Convention on Human Rights”

Partly in view of the migratory phenomenon to which Europe is exposed, forced and underage marriages nowadays deserve careful consideration both as social phenomena and as legal institutions. This paper aims to verify whether and to what extent forced and underage marriages should be recognised in Europe. On the one hand, recognising the validity of these acts could arguably clash with fundamental values and rights protected by the European Convention on Human Rights and the Convention on Preventing and Combating Violence against Women and Domestic Violence. On the other hand, it is not possible to a priori exclude that a flat refusal to recognise a marriage validly established abroad might entail a violation of further rights of the spouses and ultimately have detrimental consequences for the parties that the refusal aims to protect. The aim is to assess whether private international law tools and techniques can offer a proper balance between respect for the fundamental values of reception societies and protection of the rights and interests of the parties involved.

Review Article

B Hayward, Putting the recognition and enforcement of foreign judgments in context: Comparative Recognition and Enforcement, by Dr Drossos Stamboulakis