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Jacco Bomhoff, Associate Professor at LSE Law School, has published an important article on US conflicts revolution and history of private international law. The title of the article is ‘Rationalising Mid-Century Choice of Law: Legal Technique and its Limits in the “Dark Science” of Conflicts’ and it has been published by the Modern Law Review. […]

Marcel Zernikow (University of Pau and Pays de l’Adour) has kindly prepared this presentation of his recent book titled Les règles de conflit de lois confrontées au marché intérieur. Étude en droit international privé européen du travail (Conflict of Law Rules Confronted with the Internal Market. A Study of the European Private International Law of […]

Written by Shubh Jaiswal, student, Jindal Global Law School, Sonipat (India) and Professor Saloni Khanderia, JGLS. 

In the landmark case of TransAsia Private Capital vs Gaurav Dhawan, the Delhi High Court clarified that Indian Courts are not automatically required to determine and apply the governing law of a dispute unless the involved parties introduce expert evidence to that effect. This clarification came during the court’s examination of an execution petition stemming from a judgment by the High Court of Justice Business and Property Courts of England and Wales Commercial Court. The Division Bench of the Delhi High Court invoked the precedent set by the United Kingdom Supreme Court in Brownlie v. FS Cairo, shedding light on a contentious issue: the governing law of a dispute when parties do not sufficiently prove the applicability of foreign law.

The Delhi High Court has established that in the absence of evidence proving the applicability of a foreign law identified as the ‘proper law of the contract’, Indian law will be applied as the default jurisdiction. This decision empowers Indian courts to apply Indian law by ‘default’ in adjudicating international civil and commercial disputes, even in instances where an explicit governing law has been selected by the parties, unless there is a clear insistence on applying the law of a specified country. This approach aligns with the adversarial system common to most common law jurisdictions, where courts are not expected to determine the applicable law proactively. Instead, the legal representatives must argue and prove the content of foreign law.

This ruling has significant implications for the handling of foreign-related civil and commercial matters in India, highlighting a critical issue: the lack of private international law expertise among legal practitioners. Without adequate knowledge of the choice of law rules, there’s a risk that international disputes could always lead to the default application of Indian law, exacerbated by the absence of codified private international law norms in India. This situation underscores the need for specialized training in private international law to navigate the complexities of international litigation effectively.

Facts in brief

As such, the dispute in Transasia concerned an execution petition filed under Section 44A of the Indian Civil Procedure Code, 1908, for the enforcement of a foreign judgment passed by the High Court of Justice Business and Property Courts of England and Wales Commercial Court. The execution petitioner had brought a suit against the judgment debtor before the aforementioned court for default under two personal guarantees with respect to two revolving facility loan agreements. While these guarantee deeds contained choice of law clauses and required the disputes to be governed by the ‘Laws of the Dubai International Finance Centre’ and ‘Singapore Law’ respectively, the English Court had applied English law to the dispute and decided the dispute in favour of the execution petitioner. Accordingly, the judgment debtor opposed the execution of the petition before the Delhi HC for the application of incorrect law by the Court in England.

It is in this regard that the Delhi HC invoked the ‘default rule’ and negated the contention of the judgment debtor. The Bench relied on the decision rendered by the Supreme Court of the United Kingdom in Brownlie v. FS Cairo, which postulated that “if a party does not rely on a particular rule of law even though it would be entitled to do so, it is not generally for the court to apply the rule of its own motion.”

The HC confirmed that foreign law is conceived as a question of fact in India. Thus, it was for each party to choose whether to plead a case that a foreign system of law was applicable to the claim, but neither party was obliged to do so, and if neither party did, the court would apply its own law to the issues in dispute. To that effect, the HC also relied on Aluminium Industrie Vaassen BV, wherein the English Court had applied English law to a sales contract even when a provision expressly stipulated the application of Dutch law—only because neither party pleaded Dutch law.

Thus, in essence, the HC observed that courts would only be mandated to apply the chosen law if either party had pleaded its application and the case was ‘well-founded’. In the present dispute, the judgment debtor had failed to either plead or establish that English law would not be applicable before the Court in England and had merely challenged jurisdiction, and thus, the Delhi HC held that the judgment could not be challenged at the execution stage.

Choosing the Proper Law

The mechanism employed to ascertain the applicable law under Indian private international law depends on whether the parties have opted to resolve their dispute before a court or an arbitral tribunal. In arbitration matters, the identification of the applicable law similarly depends on the express and implied choice of the parties. Similarly, in matters of litigation, courts rely on the common law doctrine of the ‘proper law of the contract’ to discern the applicable law while adjudicating such disputes on such obligations. Accordingly, the proper law depends on the express and implied choice of the parties. When it comes to the determination of the applicable law through the express choice of the parties, Indian law, despite being uncodified, is coherent and conforms to the practices of several major legal systems, such as the UK, the EU’s 27 Member States, and its BRICS partners, Russia and China – insofar as it similarly empowers the parties to choose the law of any country with which they desire their disputes to be settled. Thus, it is always advised that parties keen on being governed by the law of a particular country must ensure to include a clause to this effect in their agreement if they intend to adjudicate any disputes that might arise by litigation because it is unlikely for the court to regard any other factor, such as previous contractual relationships between them, to identify their implied choice.

Questioning the Assumed: Manoeuvring through the Intricate Terrain of Private International Law and Party Autonomy in the Indian Judicial System

By reiterating the ‘default rule’ in India and presenting Indian courts with another opportunity to apply Indian law, this judgment has demonstrated the general tendency on the part of the courts across India to invariably invoke Indian law – albeit in an implicit manner – without any (actual) examination as to the country with which the contract has its closest and most real connection. Further, the lack of expertise by the members of the Bar in private international law-related matters and choice of law rules implies that most, if not all, foreign-related civil and commercial matters would be governed by Indian law in its capacity as the lex fori. Therefore, legal representatives should actively advocate for disputes to be resolved according to the law specified in their dispute resolution clause rather than assuming that the court will automatically apply the law of the designated country in adjudicating the dispute.

Foreign parties may not want Indian law to apply to their commercial contracts, especially when they have an express provision against the same. Apart from being unclear and uncertain, the present state of India’s practice and policy debilitates justice and fails to meet the commercial expectations of the parties by compelling litigants to be governed by Indian law regardless of the circumstance and the nature of the dispute—merely because they failed to plead the application of their chosen law.

This would inevitably lead to foreign parties opting out of the jurisdiction of the Indian courts by concluding choice of court agreements in favour of other forums so as to avoid the application of the Republic’s ambiguous approach towards the law that would govern their commercial contracts. Consequently, Indian courts may rarely find themselves chosen as the preferred forum through a choice of court agreement for the adjudication of such disputes when they have no connection to the transaction. In circumstances where parties are unable to opt out of the jurisdiction of Indian courts – perhaps because of the lack of agreement to this effect, the inconsistencies would hamper international trade and commerce in India, with parties from other jurisdictions wanting to avoid concluding contracts with Indian businessmen and traders so as to avert plausible disputes being adjudicated before Indian courts (and consequently being governed by Indian law).

Therefore, Indian courts should certainly reconsider the application of the ‘default rule’, and limit the application of the lex fori in order to respect party autonomy.

Parallel proceedings in international commercial litigation between the courts of different countries have long been discussed and explored, for which the Brussels I Regulation in the EU provides a good model for solution although it is still a problem at the global level and an obstacle for the Hague Jurisdiction Project.

 

However, it seems that so far no enough attention has been paid to the problem of parallel proceedings between international commercial litigation and arbitration. Theoretically, parties’ consent to arbitration will exclude the jurisdiction of states’ courts by virtue of the rules set out in Article 2 of the New York Convention altogether. But the Convention fails to successfully eradicate parallel proceedings between arbitral tribunals and state courts, owing to its inherent defects. When a conflict arises between international commercial arbitration and litigation proceedings, a rational balance must be struck between the judiciary and the arbitral tribunal with a reasonable division of competence between the two bodies. Different from parallel proceedings between two courts of different countries where usually both have jurisdiction and the question is only who should decide first, the jurisdiction of a national court and that of an arbitral tribunal excludes each other; similar to them, the problems with the former will also happen to the latter. Shall one always give “priority” to the arbitral tribunal to decide i.e. the issue of validity of the arbitration agreement for the purpose of respecting the doctrine of competence/competence? Can a simple lis pendens rule like that under the Brussels I Regulation work i.e. a national court or arbitral tribunal whoever is seized earlier shall decide when the issue of the validity of arbitration agreement is raised as a preliminary question in the national court? This presentation will try to explore an ideal model for the solution to this problem.

The recording can be found here.

This post was prepared by Nadia Rusinova (The Hague University of Applied Sciences). In a world where marriages often transcend borders and cultural lines, the challenges of international family law become ever more evident. Two recent Dutch court decisions provide compelling insights into how the courts navigate complex cases involving divorce and marital property regimes […]

This Friday (12 April) at 3 pm (NZST), Jack Wass and Maria Hook will be giving a seminar at the University of Otago (New Zealand) on their project “Hague Conventions on International Civil Procedure – Pathway to Adoption”. This project, which is funded by the Borrin Foundation, explores a pathway for New Zealand to adopt four key treaties on international civil procedure developed by the Hague Conference on Private International Law – the Service Convention 1965, the Evidence Convention 1970, the Choice of Court Convention 2005, and the Judgments Convention 2019. The purpose of the project is to try and dislodge the inertia within the executive that has resulted in consideration of these Conventions stalling, by producing a briefing paper and draft legislation for the implementation of the treaties. The seminar will focus on the proposed pathway for adoption of the Conventions and discuss its potential effectiveness in encouraging New Zealand’s participation in international treaties.

There is a Zoom link available for anyone who would like to attend the seminar but is unable to do so in person. Please contact me if you would like to attend.

Many thanks to the members of the European Association of Private International Law who have accessed “MyEAPIL”, the area reserved to EAPIL members within the redesigned website of the Association. We are truly happy to see that several members find this innovation useful! If you’re a member, and haven’t done so yet, please retrieve the […]

There are big news for RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht). Firstly, they have introduced a new layout, the merits of which are a matter of personal taste. Secondly, they have a new co-editor, Anne Röthel, who has recently joined the Max Planck Institute in Hamburg as a director. However, the most significant […]

In this post, Yehya Badr (Associate Professor, College of Law, Al-Yamamah University, KSA) presents his recent publication entitled “Religion, Colonialism, and Legal Pluralism: The Story and Legacy of the Egyptian Choice of Law Rules for Personal Status International and Interpersonal Conflicts of Law“, published in the Indiana Journal of Global Legal Studies, Issue 1 of Volume 31, 2024. The paper addresses the important issue of Egyptian choice of law rules for international and interpersonal conflicts of law.

The detailed summary, kindly provided by the author, reads as follows:

Personal status in Egypt is an example of legal pluralism, where different laws govern the personal affairs of Egyptian citizens based on their religion and foreigners based on their nationality. This system derives from the rules of Islamic Shariah and the Ottoman millet system, which was modified under pressure from Western powers after the Crimean War. Under this system, Non-Muslim Egyptians historically had the option of resolving personal status disputes through their respective religious courts (known as “Milli Courts”) in application of their religious laws, unless they opted for Sharia courts. In this case, Islamic Sharia would apply. Similarly, foreigners were exempt from Egyptian courts’ jurisdiction by virtue of privileges granted under foreign capitulations during Ottoman rule. This resulted in their personal status disputes being adjudicated by courts established by their consulates, known as “consular courts”. Furthermore, in response to financial difficulties and pressure from colonial powers during the foreign debt crisis of the 1860s, Egypt entered into a multilateral agreement to establish the so-called “Mixed Courts”. These courts had jurisdiction over disputes between foreigners and Egyptians or between foreigners themselves. The Mixed Courts applied the so-called “Mixed Civil Code” which were enacted with the approval of the then colonial powers. Notably, the Mixed Courts were specifically excluded from hearing personal status disputes and operated independently of the Egyptian government under their own charter.

Thus, the Egyptian legal system was an example of true legal pluralism, designed to accommodate the interests of foreigners residing in Egypt and different religious communities through the establishment of five different courts. However, this form of legal pluralism gave rise to various problems, including conflicting decisions and confusion over the applicable law in disputes, particularly in matters of personal status. In particular, there were no established rules of choice of law for personal status disputes, except for the application of non-Muslim law in cases where both parties shared the same sect and rite.

This prompted Egypt to embark on a process of legislative and judicial consolidation. This consolidation used choice-of-law rules to govern personal status conflicts for both Egyptians and foreigners, with lasting consequences. The article examines Egypt’s efforts to reduce legal pluralism by abolishing foreign capitulations through the Montreux Convention of 1937. In addition, it examines the adoption of choice-of-law rules for international personal status disputes included in the Convention, thus rendering Egypt’s choice of law rules for international conflict of laws a product of an international treaty designed to accommodate the demands of Western colonial powers.

Moreover, the article examines the challenges posed by these rules, including the use of nationality as a connecting factor, as well as the unresolved issues related to the application of foreign law resulting from the aforementioned choice-of-law rules. These issues include the characterization and protection of Egyptian public policy.

Finally, the article explains the processes within Egyptian law aimed at limiting legal pluralism within Egyptian personal status law through legislative consolidation. This entailed the enactment of laws applicable to all Egyptians regardless of their faith. Judicial consolidation followed with the abolition of the Shariah courts and the Milli courts. However, religion continues to have a significant influence in determining the laws governing personal status disputes, as not all aspects of personal status have been consolidated. The latter focal point includes a special examination of the challenges associated with the application of Islamic Shariah law to non-Muslims and the reluctance of the Coptic Orthodox Church to recognize divorce decrees issued by Egyptian courts.

As noted above, the Mixed Courts operated independently of the Egyptian government and on numerous occasions adjudicated personal status matters under the pretext of the Mixed Interest Theory. Under this theory, the Mixed Courts had jurisdiction over any dispute involving the interests of a foreigner. In addition, Egypt’s religious courts vied for jurisdiction over personal status disputes involving non-Muslims, further complicating the legal landscape.

On 20 and 21 June 2024, two events on private international law will be taking place in Vienna, both co-hosted by Florian Heindler (Sigmund Freud University, Vienna).

Ehrenzweig Lectures on 20 June 2024

June 2024 marks the fiftieth anniversary since Ehrenzweig passed away. On this occasion, a conference on the Austrian Ministry of Justice will host a conference  to honour Albert Armin Ehrenzweig and his extraordinary jurisprudential legacy. The conference is jointly organised by the Interdisciplinary Association of Comparative and Private International Law (IACPIL), the University of Vienna, and the University of California, Berkeley.

Confirmed speakers are Richard Buxbaum (University of Berkeley), Eric Jayme (University of Heidelberg), Andrew Bradt (University of Berkeley), and Jeremy Heymann (University Lyon III).

More details can be found here. Participation is free of charge. Please register via office@igkk.org.

Third Private International Law Workshop in Austria

On 21 June 2024, Brigitta Lurger, Martina Melcher, Florian Heindler, and Simon Laimer organize the third edition of the Austrian Private International Law Workshop. This year, it is hosted by the Sigmund Freud University Vienna, Austria. The organizers aim to facilitate an open and lively discussion on questions of private international law.

The program can be found here and here. Participation is free of charge. Please register via ipr@sfu.ac.at.

On 20 and 21 June, a conference dedicated to Stratetic Litigation, organized by Christiane von Bary (LMU Munich) and Tobias Lutzi (University of Augsburg), will take place at the Bavarian Academy of Sciences and Humanities in Munich, Germany.

The event, which will be held in German and is free of charge for all attendants, aims to tackle a variety of questions raised by a seemingly growing number of lawsuits that pursue aims beyond the dispute between the litigating parties – only some of which appear societally desireable.
The discussants, many of whom have first-hand experience, will address a number of overarching aspects such as the the role of courts in policy-making or the potential of collective-redress mechanisms and legal tech before diving more deeply into two particularly prominent examples: climate-change litigation and SLAPPs.

More information can be found on this flyer.

Please this link to register for the event.

The latest issue of RabelsZ has just been released. In addition to the following articles it contains fantastic news (mentioned in an earlier post today): Starting with this issue RabelsZ will be available open access! Enjoy reading:

 

Symeon C. Symeonides, The Torts Chapter of the Third Conflicts Restatement: An Introduction, pp. 7–59, DOI: https://doi.org/10.1628/rabelsz-2024-0001

This article presents the torts chapter of the Restatement (Third) of Conflict of Laws, as approved by the American Law Institute in May 2023. That chapter steers a middle ground between the broad, inflexible rules of the First Restatement of 1934 and the exceedingly equivocal directives of the Second Restatement of 1971. It accurately captures the judicial decisional patterns emerging in the more than forty US jurisdictions that have abandoned the old lex loci delicti rule and joined the choice-of-law revolution of the 1960s. It recasts them into new, narrow, and “smart” rules that incorporate the revolution’s methodological advances but without reproducing its excesses. The most noteworthy features of these rules are: (1) the distinction between conduct-regulating and loss-allocating tort rules; (2) the application of the law of the parties’ common domicile in loss-allocation conflicts; (3) a rule giving victims of cross-border torts the option of requesting the application of the law of the state of injury, if the occurrence of the injury there was objectively foreseeable; and (4) the general notion that the choice of the applicable law should depend not only on a state’s territorial contacts, but also on the content of its law.

 

Yves-Junior Manzanza Lumingu, Jules Masuku Ayikaba, Accessibilité des sociétés commerciales de droit étranger à l’espace OHADA – Sur la reconnaissance de leur personnalité juridique selon la jurisprudence de la CCJA, pp. 60–86, DOI: https://doi.org/10.1628/rabelsz-2024-0008

The Access of Foreign Commercial Companies to the OHADA Area – Recognition of Legal Personality under CCJA Case Law. – The Organization for the Harmonization of Business Law in Africa (OHADA) is striving to make its geographical area more attractive, particularly to foreign investors and foreign commercial companies. This should be achieved by adopting, at a supranational level, uniform and modern legal standards which can be readily embraced by the business community and by ensuring legal certainty through the establishment of the Common Court of Justice and Arbitration (CCJA). To date, however, OHADA has not yet adopted any provision recognizing the legal personality of companies operating throughout its region. However, the recognition of such entities is essential with regard to their participation – particularly as shareholders or partners – in a commercial company incorporated under OHADA law or in relation to the establishment of branches or subsidiaries within OHADA member states. The CCJA has, however, issued a number of rulings on this issue. This study examines these decisions and recommends the adoption of an OHADA-wide procedure for recognizing the legal personality of foreign commercial companies.

 

Eckart Bueren, Jennifer Crowder. Mehrstimmrechte im Spiegel von Rechtsvergleichung und Ökonomie, pp. 87–150, DOI: https://doi.org/10.1628/rabelsz-2024-0015

Multiple Voting Rights Through the Lenses of Comparative Law and Economics. – Multiple voting rights have been gaining ground internationally with several jurisdictions authorizing them in little more than a decade, including for listed companies. Germany recently followed suit with its “Zukunftsfinanzierungsgesetz”, and the EU Commission intends to do the same as part of the Listing Act. This article explains these developments with a view to contemporary conditions and law and economics conceptions. It then contrasts them with developments in the United States, Asia, and Europe and sheds light on their relationship to other trends in corporate law. Particular attention is paid to findings that may help to properly calibrate mechanisms against abuse, e. g. a possible segment specificity, limitations on resolution items, variations in terms of sunsets or time-phased voting (loyalty shares). The article concludes with considerations on how multiple voting rights and other key legislative objectives of recent years, namely stewardship, sustainability, and corporate purpose, can be coherently developed.

The fourth issue of the Revue critique de droit international privé for 2023 will be released shortly. It contains two articles, several briefing notes as well as numerous case notes on private international law. In the first article, El Hadji Samba Ndiaye (Cheikh Anta Diop University, Dakar) examines the growing situations of conflicts of nationality […]

 

Since the beginning of this year, Rabels Zeitschrift is available in open access. For a long time, the journal has published articles in other languages than German in particular English. The new open access model should make even more attractive for authors wishing to reach an international audience. What follows  is a translation of the Editorial in Rabels Zeitschrift, Volume 88 (2024) / Issue 1, pp. 1-4: Open Access – was sich mit diesem Heft ändert by Holger Fleischer, Ralf Michaels, Anne Röthel, Christian Eckl, licensed under CC BY 4.0. Translation by Michael Friedman.

 

Editorial

Open Access – Changes Brought with this Issue

Abstract: Upon perusing this issue, several new features will likely stand out: a new, multi-colour cover, a new layout, which continues inside, and, lastly, the appearance of the logo of the Max Planck Institute for Comparative and International Private Law on the cover, alongside the publisher’s emblem. Additionally, the imprint reflects the new Institute management constellation: Anne Röthel joined the Directorate at the beginning of 2024 and is now an editor of the journal. And above all, the presence of the Creative Commons logo makes clear that the Rabel Journal is now open access. With this and other measures, the publisher and the editors are taking important steps towards “open science”.

“The findings of scientific research should be published open access.” In 2022 the German Science and Humanities Council (Wissenschaftsrat) made this demand –having reference to guidelines of the German Research Foundation (Deutsche Forschungsgemeinschaft, DFG) – and identified open access publication as a component of good academic practice. Since that time, research funding has increasingly been linked to open access publication. As part of the Max Planck Society and as the publisher of the Rabel Journal, the Institute considers itself especially committed to the notion of open access given that, consistent with its founding purpose, the Institute is focused on performing basic research. But the task is not limited to meeting the needs of the German-language publication market with its high degree of specialization and its unique, commercially influenced reputation mechanisms. Rather, the Institute, and thus the Rabel Journal, has to stay abreast of the entire world – both in terms of the topics of inquiry as well as the basic research being conducted and funded. This results in concrete expectations in terms of inclusivity: high-quality research should not be absent from global scholarly discourse due to financial limitations. The reception of ideas and findings should not be hemmed in by declining library budgets or continually higher prices on the book and journal market. Similarly, authors should not have to pay prohibitive article processing charges for the publication of articles, as can be the case with so-called hybrid open access. The concern about inequalities or mechanisms which may serve to restrict publication or reception opportunities is also expressed in the May 2023 DFG statement on the EU Council Conclusions on “High-quality, transparent, open, trustworthy and equitable scholarly publishing”. We share the view that open access should serve readers and authors alike.

For these reasons, we welcome the willingness of Mohr Siebeck to publish the Rabel Journal in the subscribe to openmodel (S2O) from now forward. This procedure is not without risk to the publisher. But it allows for a complete open access transformation of academic journals with relatively little additional effort. At the same time, the subscribe to open model enables fair and inclusive open access, as all authors can in principle publish in journals of their choice. However, the success of the model depends on existing subscribers remaining loyal to the journal, thereby not only securing their own access through their subscriptions – as has been the case to date – but also contributing to making the journal available open access to scientists and academics worldwide. We hope that many people will commit to this idea and this effort and make their own contribution to an inclusive academic culture. If our joint idea does not find enough support and over the long term the number of subscriptions falls, we will, however, have to return to closed access and the pertinent volumes would then only be accessible to paying subscribers, as was previously the case.

Since the start of 2024, volumes from 2001 onwards have been freely accessible in the publisher’s e-library, while the volumes from 1927 to 1960 (published under the title “Zeitschrift für ausländisches und internationales Privatrecht”) and the volumes from 1961 to 2000 (published under the same title but affixed with the name of the founder, Ernst Rabel) can be freely accessed at JSTOR. At all these locations, the content of these volumes will remain open access  and can be reproduced and redistributed in accord with the Creative Commons BY 4.0 licence. The same applies to all new articles published under the S2O model from 2024 forward.

We are convinced in our editorial capacity that the transition to open access is not only a timely and appropriate step that is consistent with the Institute’s ongoing academic mission, but also a measure that will strengthen the journal’s visibility by making its articles readily accessible to readers and researchers at any location, rather than only via libraries in Germany or abroad. We are convinced that this is wholly in the spirit of Ernst Rabel, who created the journal as a forum for international intellectual exchange with the aim of acquiring contributions from all over the world. As he once wrote: “domestic co-operation [cannot] suffice […]; help from foreign countries themselves is indispensable and will always be received with appreciation […] To examine legal material and ascertain the extent to which national legal barriers have become too constricted for it, and to transport scholarship beyond these barriers, this is indeed what commands academic inquiry of Germany’s own initiative, […] but its fulfilment becomes more comprehensive through international cooperation” (Ernst Rabel, Zur Einführung, Zeitschrift für ausländisches und internationales Privatrecht 1 (1927) 1-4, 4).

But the transition to open access will not affect our quality standards. This also means that we have to keep assessing whether our quality measures remain up to date. Open access is an aspect of open science, and it is therefore committed to the guiding principle of disclosing all elements of the scientific process and making them verifiable, as stated in the UNESCO Recommendation on Open Science from 2022. “Open science” does not solely mean free access to publications; rather, it relates also to the responsible handling of research data, to an appropriate and inclusive procedure for the receipt and evaluation of submissions, and to proper efforts in terms of the editorial oversight, preparation and presentation of accepted contributions.

For quality assurance, the journal continues to rely on peer review by academics who are familiar with the subject matter of the submitted articles and who can judge their merit and originality. This procedure has for many years been in the hands of the editorial board, which, together with other reviewers, works on a voluntary basis and with great commitment and a sense of responsibility. We are deeply grateful for the efforts of all the individuals involved. With regard to the thematic and geographical scope of the journal and its aim to follow and participate in worldwide developments, it has become increasingly important to be able to draw on an international network of experts. As an institutional publication, we are mindful of the potential need to adjust the journal’s governance structure, and we wish to consider, for instance, whether and how the establishment of an additional committee could be beneficial. In terms of advisory input, the journal has traditionally been able to rely on the feedback of its co-editors, operating both in- and outside the Institute. They, as well, deserve our explicit gratitude for their co-operation, and we hope that they will continue to support the journal, contributing both valuable suggestions as well as constructive criticism.

Finally, the journal’s layout and design have also been updated. After remaining unchanged for decades, the appearance is now being adapted to match evolving reading habits. Nowadays, articles are increasingly being read on computer screens or mobile reading devices, and the subsequent use and reproduction of texts is now largely carried out by means of electronic devices. Certain formats, fonts, and typographic designs are better suited to these practices than others. Much may still be in flux here and will need to be monitored further, for example in terms of searchability and machine readability or the availability of alternative download formats. These are all important issues that the Institute and the publisher will have to keep in mind in the coming years.

Quality assurance can easily be at odds with speedy publication. We are therefore pleased that an online-first process was agreed with the publisher already in 2023, thereby allowing individual articles to be published promptly – in advance of the entire issue – after peer review and after completion of editorial processing. Through the use of digital object identifiers (DOI), these articles can be cited without ambiguity from the outset.

With these measures, the journal’s publisher and editors are taking significant steps in the direction of open science. We hope that many others will join us on this path and continue to breathe life into the journal, both as readers and as authors contributing from around the world.

Holger Fleischer / Ralf Michaels / Anne Röthel
and from the editorial desk Christian Eckl

The author of this post is Costanza Honorati, professor of EU Law at the University of Milan Bicocca. The JURI Committee of the European Parliament has commissioned and recently published an interesting Study on Parental Child Abductions to Third Countries. The Study is delivered by long-term expert Marilyn Freeman (University of Westminster), and builds on […]

So-called ‘defeat devices’, which mimic low carbon dioxide emissions of Diesel cars during tests, have been a problem not just for car purchasers but also for the CJEU. In the case VKI v VW, the Court had to decide on the place at which the purchaser may file a claim against the car manufacturer. As […]

Conventions & Instruments

On 14 March 2024, Angola deposited its instrument of accession to the 1993 Adoption Convention. With the accession of Angola, the 1993 Adoption Convention now has 106 Contracting Parties. More information is available here.

On 14 March 2024, Moldova deposited its instrument of accession to the 2005 Choice of Court Convention. With the accession of Moldova, 33 States and the European Union are bound by the 2005 Choice of Court Convention. More information is available here.

On 21 March 2024, El Salvador deposited its instrument of accession to the 1965 Service Convention and the Dominican Republic deposited its instruments of accession to the 1965 Service Convention and the 2007 Child Support Convention. More information is available here.

 

Meetings & Events

From 5 to 8 March 2024, the Council on General Affairs and Policy (CGAP) of the HCCH met in The Hague, with over 429 participants joining both in person and online. HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead in terms of normative, non-normative and governance work. More information is available here.

On 22 March 2024, the Permanent Bureau hosted the webinar “HCCH 2005 Choice of Court Convention: Fostering Access to Justice for Cross-Border Commerce in the Asia Pacific Region”.

 

Publications

On 8 March 2023, the Permanent Bureau announced the publication of the HCCH 2023 Annual Report. More information is available here.

 

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

After the Easter pause the Court of Justice will resume its core activities. As of today, two decisions and two opinions are expected in private international law matters in April 2024. On Thursday 11 April , a chamber composed by judges O. Spineanu-Matei (reporting), J.C. Bonichot and L.S. Rossi will hand down its ruling in […]

Written by Tarasha Gupta, student, Jindal Global Law School, Sonipat (India) and Saloni Khanderia, Professor, Jindal Global Law School

 

In its recent judgment in Shiju Jacob Varghese v. Tower Vision Limited,[1] the Delhi High Court (“HC”) held that an appeal before an Indian civil court was infructuous due to a consent order passed by the Tel Aviv District Court in a matter arising out of the same cause of action. The Court deemed the suit before Indian courts an attempt to re-litigate the same cause of action, thus an abuse of process violative of the principle of comity of courts.

In doing so, the Court appears to have clarified confusions arising in light of the explanation to Section 10 of the Civil Procedure Code, 1908 (“CPC”), on one side, and parties’ right to choice of court agreements and forum non conveniens on the other. The result is that, as per the Delhi HC, Indian courts now ought to stay proceedings before them if the same cause of action has already been litigated before foreign courts.

 

The Indian Position on Concurrent Proceedings in Foreign and Domestic Courts

In the European Union, Article 33 of the Brussels Recast gives European courts the power to stay proceedings if concurrent proceedings based on the same cause of action are pending before a foreign court. The European court may exercise this right if the foreign court will give a judgment capable of recognition, and such a stay is necessary for the proper administration of justice. By contrast, in India, the Explanation to Section 10 of the CPC provides that the pendency of a suit in a foreign Court does not preclude Indian courts from trying a suit founded on the same cause of action.

The Indian Supreme Court in Modi Entertainment v. WSG Cricket[2] upheld parties’ right to oust the jurisdiction of Indian courts in favour of a foreign forum through choice of court agreements. Where parties have agreed to approach a foreign forum by a non-exclusive jurisdiction clause, they would have considered convenience and other relevant factors. Therefore an anti-suit injunction cannot be granted.

Notwithstanding this judgment, however, when it came to situations where parties did not confer jurisdiction upon a foreign court through a choice of court agreement, the explanation to Section 10 of the CPC would still apply. Therefore, a party could initiate proceedings before both foreign and domestic courts on the same cause of action, resulting in the possibility of conflicting judgements and creating a nightmare for their enforcement. It would also increase the costs of resolving any dispute, as multiple litigation proceedings may occur simultaneously.

Courts in India tried to mitigate the impacts that could arise from these conflicting judgements through the doctrine of ‘forum non conveniens’. The doctrine permits courts to stay proceedings on the ground that another forum would be more appropriate or convenient to adjudicate the matter. There are no fixed criteria in considering whether to invoke the doctrine. However, courts may consider, inter alia, the existence of a more appropriate forum, the expenses involved, the law governing the transaction, the plausibility of multiple proceedings and conflicting judgements.

The doctrine of forum non conveniens, however, is only a discretionary power and can only be invoked if the defendant is able to prove that the current proceedings would be vexatious or oppressive to them and the foreign forum is “clearly or distinctly more appropriate than the Indian courts” (clarified by the Indian Supreme Court in Mayar (HK) Ltd. v. Owners and Parties, Vessels MV Fortune Ltd.[3]). Thus, it would not be mandatory in every situation for an Indian court to stay a suit pending before it, even if proceedings on the same cause of action are pending or completed in a foreign court.

 

Dismissal of the Appeal before Indian courts in Shiju Jacob

The dispute concerned a Share Entitlement executed in favour of the present Appellant, based on which the Appellant had filed a civil suit before the Tel Aviv District Court. More than two years later, they filed a suit for interim relief that was partially allowed by the Tel Aviv District Court but set aside by the Supreme Court of Israel. After that, the Appellant filed a suit before the Indian court, which was dismissed as a re-litigation and violative of the principle of comity. Consent terms were then filed in the Tel Aviv suit, and the suit was disposed of as settled. Shortly after that, the appellant moved an application to rescind the order to dispose of the suit, which the Tel Aviv District Court dismissed.

The Respondents now claimed, before the Indian court, that the appeal against the previous order by the Indian court was infructuous in view of the consent order passed by the Tel Aviv District Court. The Appellants, on the other hand, argued that the explanation to Section 10 of the CPC allowed them to file a suit in India, even if it was on the same cause of action as the suit before the Israeli courts.

The Delhi High Court held that allowing the appeal to continue would violate the principle of comity of courts, as it could result in conflicting decisions between the Israeli and Indian courts. It would also constitute re-litigation, which, although may not in every case be barred as res judicata, depending on the facts and circumstances, could be an ‘abuse of process’. The concept of ‘abuse of process’ is thus more comprehensive than the concept of res judicata or issue estoppel. The Court therefore held that a suit or appeal must be struck down as an abuse of process even if the party is not bound by res judicata if it is shown that the new proceeding is manifestly unfair or would bring the administration of justice into disrepute.

 

Implications of the Judgment  

The judgment thus provides that Indian courts must dismiss suits which have already been litigated before foreign courts. This is a welcome change, considering that the explanation to Section 10 of the CPC allows such proceedings to occur at the same time.

However, given that this is a High Court judgement, it will not be binding on Courts outside of Delhi and would simply have persuasive value. This difficulty is compounded by the fact that as per the facts of Shiju Jacob, the suit had been dismissed by the Tel Aviv District Court by the time the appeal was heard. Thus, it is unclear whether Indian courts will be able to follow the same approach where proceedings in the foreign court haven’t been completed yet. In fact, the HC had observed that the effect of the explanation to Section 10 of the CPC did not even arise for consideration in the present case, as the settlement in question was not being executed or enforced in the proceedings before the Indian Court.

That said, the judgment of the Single Judge (which was being challenged in the present appeal) dismissed the suit even before the consent terms were passed because it was violative of the principle of comity of courts and amounted to re-litigation. The judgment signals that the Delhi HC intended for courts to apply the same principle where proceedings on the same cause of action are ongoing in a foreign court.

Ultimately, however, it is unfortunate that this intervention had to come from the judiciary and not the legislature. India still does not have comprehensive legislation governing transnational disputes, and its position on private international law has been gauged by extending domestic rules by analogy. In the absence of legislation, uncertainty continues to reign as parties must piece together the position of law from hundreds of judgements. Regardless, the judgment in Shiju Jacob is an encouraging precedent for improving the finality of transnational litigation in India and ending the difficulties created by the explanation to Section 10 of the CPC.

 

[1] 2023 SCC OnLine Del 6630.

[2] (2003) 4 SCC 341.

[3] AIR [2006] SC 1828.

The call for papers is open for the X International Conference on Private International Law of the Carlos III University of Madrid, which will take place on 16 and 17 May 2024. This year’s conference will focus on recognition and enforcement of decisions in private international family law and other procedural matters. All those interested […]