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This post was written by Prof. Dr. Bea Verschraegen, Verena Wodniansky-Wildenfeld and Laurenz Faber.

On 28 November 2023, the Interdisciplinary Association of Comparative and Private International Law (IACPIL) held a conference on the legal protection of vulnerable adults in Central and Eastern Europe.

Against the backdrop of demographic and scientific developments impacting this field of the law, the event was attended with great interest by internationally renowned academics and practitioners.

The conference, held in the historic premises of the University of Vienna, commenced with a welcome address by Professor Matthias Lehmann (University of Vienna, Raboud Universiteit Nijmegen). Professor Bea Verschraegen (University of Vienna) then led through the first half of the event, which focused on a comparative analysis of vulnerable adults’ protection in Central and Eastern Europe.

Professor Masha Antokolskaia (Vrije Universiteit Amsterdam) presented first results of a comparative examination by FL-EUR (Family Law in Europe: Academic Network), a research platform consisting of experts from 31 jurisdictions. Professor Antokolskaia explained that FL-EUR conducted a detailed assessment of the protection of vulnerable adults in European countries with the aim of promoting cooperation “in books and in action”. Pointing to the adoption of the UN Convention on the Rights of Persons with Disabilities (UN CRPD), she outlined the need for substantial reform in the overwhelming majority of European countries. Professor Antokolskaia explained that the status of these reforms was assessed based on extensive country reports received from 31 jurisdictions. Providing an insight into the work of FL-EUR, she highlighted the methodological difficulties that arise in the comparative examination of vulnerable adult protection, inter alia due to the lack of a historic ius commune in this area.
While the project is still in progress, FL-EUR was already able to identify trends among the European countries: while some have undergone major reforms either before or after the adoption of the UN CRPD, many have only passed “patchwork” reforms or no sufficient reforms at all. Professor Antokolskaia underlined these differences by examining specific examples of vulnerable adult protection, such as the transition towards “support before representation”. In the bigger picture, the presentation observes that many Eastern European countries have not yet undergone the necessary “paradigm shift” but a minority are already far along or have completed this process.

After a spirited discussion on the implications of the comparative analysis presented by Professor Antokolskaia, the second part of the conference, led through by Professor Matthias Lehmann, was dedicated to cross-border issues.

Professor Bea Verschraegen examined current conflict of laws issues relating to the protection of vulnerable adults. She drew attention to the Hague Convention on the Protection of Adults, which focuses on adults who, because of an impairment or insufficiency of their personal faculties, are unable to protect their interests in cross-border situations.

Professor Verschraegen highlighted the increasing number of adults in need of protection and the variety of protective measures prescribed by the national law of their place of residence. These measures range from court-ordered protection to the assistance of pre-arranged third parties.
She expressed concern about the limited regional scope of the Hague Convention, as only 11 EU Member States are parties, and its complexity, which poses challenges to its effective application. In practice, it is not entirely clear what kind of ex ante and ex post measures are covered by the Convention. The same may apply to private mandates.

She pointed out that there is no EU instrument governing judicial cooperation in the field of adult protection. The proposed regulation aims to change this. In this context, Professor Verschraegen argued for a broader perspective beyond the dominant narrative of an ageing society, advocating the inclusion of all adults from the age of eighteen. Citing alarming statistics predicting a significant increase in new cancer cases by 2040, she stressed the urgency of implementing comprehensive policies that address both age-related diseases such as dementia and the unforeseen challenges faced by young adults.

The ongoing debate about the possible reorientation of the Convention and the proposal in line with the UN Convention on Disability or its effectiveness in its own right was also the focus of the presentation. While acknowledging the complexities, Professor Verschraegen suggested that a robust articulation of private international law rules and human rights instruments might suffice, underlining the need for careful consideration.

The discussion went on to explore issues arising from the Convention on the Rights of Persons with Disabilities, including private autonomy, self-determination and dignity. Professor Verschraegen questioned the fact that both Conventions monitor fundamental rights from a bird’s eye view, without a feasibility test. In societies that define individuals as worthy members of society if they work and earn enough money, individuals tend to define themselves in this way. Employment is therefore the test of worth in society and for individuals. This may be one of the reasons why the ageing population and the vulnerable and disabled are seen as a burden. However, younger adults face enormous problems, they too may be unable to work, impaired and vulnerable.

She highlighted that private autonomy, self-determination, and dignity are driving principles used in many countries, more specifically in the context of living and dying wills. However, their qualification shows a wide variety. As the EU Proposal aims at guaranteeing EU-wide recognition, clarification of what exactly ought or ought not to be recognized would be most useful.

Professor Verschraegen’s presentation was followed by a lively discourse on the complexities of the protection of vulnerable adults in cross-border settings. The event was concluded with closing remarks by Professor Florian Heindler (Sigmund Freud University, Vienna).

Over the course of the conference, the consensus emerged that the legal protection of vulnerable adults, specifically in Central and Eastern Europe, remains a highly topical issue with meaningful developments to be expected both on a substantive and a conflict-of-laws level. In this context, new questions raised during the discussions may have already foreshadowed future publications and conferences.

The organisers of the 2024 edition of the INSOL Europe Academic Forum kindly shared with us the following call for papers. Please note the deadline for submission is 1 March 2024:

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 20th annual conference, taking place from Wednesday 2 – Thursday 3 October 2024 in Sorrento (Italy). Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference: ‘The Evolution or Revolution of European Insolvency Law’.

The conference is intended to focus on, inter alia, the following overall topics:

• Asset tracing (including crypto assets)
• Cross-border issues (recognition, coordination)
• Public and social policy and the impact on corporate rescue, and vice versa
• Sustainability and corporate restructuring
• Environmental claims in insolvency
• Transaction avoidance
• Pre-packs
• Modern issues surrounding directors’ duties to file for insolvency
• The impact and benefit (or not) of creditors’ committees
• EU Preventive Restructuring Directive implementation progress and challenges
• EU Harmonising Insolvency Directive
• Competition for cases as a driving force for legislative reform
• International organisations update

The IEAF board also invites submissions on other topics that fall with in the scope of the overall theme of the conference.

Conference methodology

In line with the practice established in our past academic conferences, the intention for the Autumn conference is to have research papers that challenge existing approaches, stimulate debate and ask, and attempt to answer, comparative and interdisciplinary questions within the above broadly defined theme. Accordingly, proposals are invited that do more than just outline a topic of interest in respect of any given jurisdiction, but seek to understand, analyse and critique the fundamentals of insolvency and restructuring systems in ways that are relevant across jurisdictions and across fields of academic inquiry. Contributions must be in English.

Presenting at the IEAF conference

Expressions of interest in delivering a paper should be sent by email on or before 1 March 2024 to the IEAF’s Deputy Chair, Dr. Jennifer Gant.

Authors of papers selected for presentation will benefit from a waiver of the participation fee (one per paper) for the academic conference, however, they will be responsible for their own travel and accommodation costs. A limited number of travel grants are available for junior scholars invited to present.

For further information, see: www.insol-europe.org/academic-forum-events

Justin Borg-Barthet, Katarina Trimmings, Burcu Yüksel Ripley and Patricia Živković, from the University of Aberdeen, have accepted the invitation of the editors of the blog to present their co-edited book, titled ‘From Theory to Practice in Private International Law: Gedächtnisschrift for Professor Jonathan Fitchen’, published by Bloomsbury Publishing. The text below is cross-posted on Conflictoflaws.net.

When our colleague and friend Prof Jonathan Fitchen passed away on 22 January 2021, we were comforted in our grief by an outpouring of messages of condolence from private international lawyers around the world. We had known, of course, of the impact and importance of Jonathan’s work to the world of private international law scholarship. His monograph on authentic instruments, for example, will remain an essential reference on that subject for many years to come. Jonathan’s impact on the world of private international law scholars was, to a degree, less obvious. He was an unassuming man. He did not seek to command the attention of every gathering he attended, and he might have been surprised to realise how often he did just that. He was tremendously well-liked and well-respected for his wit, his self-deprecating sense of humour, and his empathy.

This book seeks to capture in it some of the immense esteem in which Jonathan was held. That much will of course be of interest to the many scholars and practitioners who had the privilege of Jonathan’s acquaintance. The intellectual generosity of the contributing authors will ensure, however, that this volume will also be of great value to those who encounter Jonathan for the first time in these pages. Taken together, the chapters in this book address the major conceptual and practical challenges of our time: from stubborn definitional dilemmas, such as the deployment of key terms in international child abduction cases, to contemporary concerns about disruptive technologies like cryptocurrencies, to core conceptual challenges regarding the unintended consequences of our discipline’s professed neutrality.

The collection is divided into three main parts. Following a preface in which Prof Xandra Kramer paints a vivid picture of Jonathan’s humanity, humour and wit, and an introduction by ourselves as the editors, Part I includes four chapters which address conceptual matters relating to the nature and scope of private international law. Part II is made up of seven chapters concerning civil and commercial matters in private international law. Part III includes two chapters on family matters in private international law.

The first substantive chapter is a tour de force by Alex Mills in which he explores the unsettled relationship between private international law and legal pluralism. Mills observes that private international law is both a product and producer of pluralism, in addition to being internally pluralist in its self-conception. Mills’ analysis will be of great interest to readers seeking to discern private international law’s place in the taxonomy of the study of law, whether they are observing that taxonomy from the perspective of a comparatist, a conflicts scholar, or a public international lawyer.

The following chapter also engages with the problem of pluralism in private international law. Thalia Kruger focuses specifically on mediated settlements with a view to illuminating their meaning for the purposes of transnational law. Kruger does a wonderful job of building on Jonathan Fitchen’s work by providing technical and normative analysis of the public faith to be accorded to private agreements. Ultimately, she welcomes a movement towards the upholding of settlement agreements but cautions against potential abuse of vulnerable parties.

The problem of vulnerability is the central focus of the next chapter, by Lorna Gillies. Gillies provides robust, systematic analysis of the theory and practice of our discipline’s treatment of vulnerable parties. This is, of course, one of the central problems in a discipline whose professed neutrality is capable of furthering and entrenching inequalities. Gillies argues persuasively that the application of Fredman’s four pillars of asymmetrical substantive equality would equip private international law better to address inherent risks of vulnerability.

Asymmetries of private power remain the focus of discussion in the following chapter on the under-explored relationship between our discipline and feminist scholarship, authored by two of the editors. Justin Borg-Barthet and Katarina Trimmings set out to contribute to a nascent discussion about sex-based vulnerability and how this is (un)seen by much of the literature and law. It is argued, ultimately, that private international law requires more sustained engagement with feminist scholarship if it is to avoid acting as an instrument for the entrenchment of substantive inequalities.

Unsurprisingly, given the focus of much of Jonathan Fitchen’s written work, Part II on civil and commercial matters makes up around half of the volume. It begins with Andrew Dickinson’s meticulous analysis of the meaning of “damage” in EU private international law. Dickinson notes that, despite the central importance of the term to the operation of much of EU private international law, there is little clarity as to its meaning. His chapter sets out to remedy this shortcoming through the articulation of a hitherto undeveloped taxonomy of “damage” which promises to become an essential tool in the arsenal of students, teachers, practitioners, and adjudicators of private international law.

Another editor, Burcu Yüksel Ripley, authored the next chapter, which addresses cryptocurrencies. Our discipline’s continued preoccupation with definitional clarity remains very much in evidence in this discussion of challenges posed by disruptive technologies. Yüksel Ripley notes that attempts to characterise cryptocurrencies as a thing/property are unsatisfactory in principle, and that they therefore lead to conceptually unsound outcomes. She proposes instead that analogies with electronic fund transfers provide more promise for the determination of the applicable law.

In the next chapter, by Laura Carballo Piñeiro, the volume returns to another major theme of Jonathan Fitchen’s scholarly output, namely the effectiveness of collective redress mechanisms. Carballo Piñeiro observes that access to justice remains restricted in most jurisdictions, and that a common EU approach remains lacking. Although the courts have provided some routes to collective redress, Carballo Piñeiro argues that a robust legislative response is paramount if corporate accountability for environmental harm is to be realised in Europe.

Private international law’s ability to engage with concerns regarding environmental sustainability remains a key focus of analysis in Carmen Otero García-Castrillón’s chapter concerning the discipline’s place in international trade agreements. The chapter advocates the bridging of an artificial systemic separation between the private and the public in the international system. It is argued that the extent of private power in the international system merits attention in trade agreements if sustainable development goals are to be attained.

Giesela Rühl also addresses concerns regarding private international law’s ability to be deployed in matters which are traditionally reserved to public and public international law. Her chapter considers innovations introduced through the German Supply Chain Due Diligence Act (Lieferkettensorg-faltspflichtengesetz – LkSG) which establishes mandatory human rights due diligence obligations in German companies’ international supply chains. Rühl laments the lack of attention paid to private international law in German law. She makes an especially compelling case for any future EU interventions to recognise the need to engage with private international law if legislation is to be effective.

The uneasy public-private divide in transnational law remains in evidence in Patricia Živković’s chapter concerning what she describes as “creeping substantive review” in international arbitration. Živković decries a lack of conceptual clarity in courts’ treatment of arbitral determinations, particularly insofar as public policy is deployed as an instrument of substantive review of private adjudication. She argues that international legislative intervention is needed if prevailing inconsistencies of treatment are to be resolved.

Fittingly, Part II is rounded off with a discussion of that part of private international law to which Jonathan Fitchen made his most enduring scholarly contribution, namely authentic instruments. Zheng Tang and Xu Huang discuss authentic instruments in Chinese private international law. Like Jonathan’s work, this chapter provides readers of English language scholarship with a rare example of in-depth analysis of concepts which are unfamiliar in the Anglo-American tradition. The chapter’s compelling arguments for legal refinements will also be of use, however, to readers who wish to identify possible improvements to Chinese law.

The final part of the book turns to family law, an area in which Jonathan provided ample instruction to students, but which was not especially in evidence in his written work. In keeping with the previous parts of the book, our discipline’s need for definitional clarity and consistency are very much apparent in the chapters in this part, as is the somewhat existential concern regarding the proper delineation of the public and the private. As the authors in this part observe, each of these matters has far-reaching effects on the apportioning of rights and obligations in circumstances which are deeply meaningful to the lives of litigants.

Aude Fiorini’s chapter considers flawed reasoning in the US Court of Appeals judgment in Pope v Lunday. Fiorini illustrates the substantive flaws in the Court’s treatment of the habitual residence of neonates, but also highlights a broader concern regarding the potential for unconscious bias in judicial decision-making. Through the judgment in Pope, Fiorini raises alarms regarding inconsistent judicial treatment of similar situations which turn on appreciation of circumstances establishing the habitual residence of a child. She argues, particularly compellingly in our view, that the interests of justice require greater conceptual clarity and consistency.

In the final chapter, by Anatol Dutta, the interactions of the public and the private return to the fore. Taking his cue from Jonathan Fitchen’s work on authentic instruments, Dutta explores the concept of private divorce under the Brussels IIter Regulation. Concerns regarding decisional autonomy are very much in evidence in this chapter, which considers the meaning of private divorces and the extent to which they enjoy recognition in the EU private international law system. Ultimately, Dutta welcomes measures which restrict private divorce tourism in the EU.

This book was born of a collective wish to remember and honour a much-loved scholar of private international law. In that, we trust that it has already fulfilled its purpose. However, each chapter individually and the book taken as a whole also capture the state of the art of private international law. Ours remains a discipline in search of systemic normative clarity and in episodic need of technical refinement. This collection provides tantalising glimpses of possible answers to both the essential question of the treatment of the private in the attainment of public goods, and in relation to longstanding vexing technical questions.

To preserve and further Jonathan Fitchen’s legacy as an educator of private international lawyers, editorial royalties from the sale of the book will be donated to the Jonathan Fitchen Fund of the Development Trust at the University of Aberdeen. Direct individual donations to the fund are also welcome and appreciated.

Written by Justin Borg-Barthet, Katarina Trimmings, Burcu Yüksel Ripley and Patricia Živkovic

Note: This post is also available via the blog of the European Association of Private International Law.

When our colleague and friend Prof Jonathan Fitchen passed away on 22nd January 2021, we were comforted in our grief by an outpouring of messages of condolence from private international lawyers around the world. We had known, of course, of the impact and importance of Jonathan’s work to the world of private international law scholarship. His monograph on authentic instruments, for example, will remain an essential reference on that subject for many years to come. Jonathan’s impact on the world of private international law scholars was, to a degree, less obvious. He was an unassuming man. He did not seek to command the attention of every gathering he attended, and he might have been surprised to realise how often he did just that. He was tremendously well-liked and well-respected for his wit, his self-deprecating sense of humour, and his empathy.

This book seeks to capture in it some of the immense esteem in which Jonathan was held. That much will of course be of interest to the many scholars and practitioners who had the privilege of Jonathan’s acquaintance. The intellectual generosity of the contributing authors will ensure, however, that this volume will also be of great value to those who encounter Jonathan for the first time in these pages. Taken together, the chapters in this book address the major conceptual and practical challenges of our time: from stubborn definitional dilemmas, such as the deployment of key terms in international child abduction cases, to contemporary concerns about disruptive technologies like cryptocurrencies, to core conceptual challenges regarding the unintended consequences of our discipline’s professed neutrality.

The collection is divided into three main parts. Following a preface in which Prof Xandra Kramer paints a vivid picture of Jonathan’s humanity, humour and wit, and an introduction by ourselves as the editors, Part I includes four chapters which address conceptual matters relating to the nature and scope of private international law. Part II is made up of seven chapters concerning civil and commercial matters in private international law. Part III includes two chapters on family matters in private international law.

Part I: The Evolving Nature and Scope of Private International Law

The first substantive chapter is a tour de force by Alex Mills in which he explores the unsettled relationship between private international law and legal pluralism. Mills observes that private international law is both a product and producer of pluralism, in addition to being internally pluralist in its self-conception. Mills’ analysis will be of great interest to readers seeking to discern private international law’s place in the taxonomy of the study of law, whether they are observing that taxonomy from the perspective of a comparatist, a conflicts scholar, or a public international lawyer.

The following chapter also engages with the problem of pluralism in private international law. Thalia Kruger focuses specifically on mediated settlements with a view to illuminating their meaning for the purposes of transnational law. Kruger does a wonderful job of building on Jonathan Fitchen’s work by providing technical and normative analysis of the public faith to be accorded to private agreements. Ultimately, she welcomes a movement towards the upholding of settlement agreements but cautions against potential abuse of vulnerable parties.

The problem of vulnerability is the central focus of the next chapter, by Lorna Gillies. Gillies provides robust, systematic analysis of the theory and practice of our discipline’s treatment of vulnerable parties. This is, of course, one of the central problems in a discipline whose professed neutrality is capable of furthering and entrenching inequalities. Gillies argues persuasively that the application of Fredman’s four pillars of asymmetrical substantive equality would equip private international law better to address inherent risks of vulnerability.

Asymmetries of private power remain the focus of discussion in the following chapter on the under-explored relationship between our discipline and feminist scholarship, authored by two of the editors. Justin Borg-Barthet and Katarina Trimmings set out to contribute to a nascent discussion about sex-based vulnerability and how this is (un)seen by much of the literature and law. It is argued, ultimately, that private international law requires more sustained engagement with feminist scholarship if it is to avoid acting as an instrument for the entrenchment of substantive inequalities.

Part II: Civil and Commercial Matters in Private International Law

Unsurprisingly, given the focus of much of Jonathan Fitchen’s written work, Part II on civil and commercial matters makes up around half of the volume. It begins with Andrew Dickinson’s meticulous analysis of the meaning of “damage” in EU private international law. Dickinson notes that, despite the central importance of the term to the operation of much of EU private international law, there is little clarity as to its meaning. His chapter sets out to remedy this shortcoming through the articulation of a hitherto undeveloped taxonomy of “damage” which promises to become an essential tool in the arsenal of students, teachers, practitioners, and adjudicators of private international law.

Another editor, Burcu Yüksel Ripley, authored the next chapter, which addresses cryptocurrencies. Our discipline’s continued preoccupation with definitional clarity remains very much in evidence in this discussion of challenges posed by disruptive technologies. Yüksel Ripley notes that attempts to characterise cryptocurrencies as a thing/property are unsatisfactory in principle, and that they therefore lead to conceptually unsound outcomes. She proposes instead that analogies with electronic fund transfers provide more promise for the determination of the applicable law.

In the next chapter, by Laura Carballo Piñeiro, the volume returns to another major theme of Jonathan Fitchen’s scholarly output, namely the effectiveness of collective redress mechanisms. Carballo Piñeiro observes that access to justice remains restricted in most jurisdictions, and that a common EU approach remains lacking. Although the courts have provided some routes to collective redress, Carballo Piñeiro argues that a robust legislative response is paramount if corporate accountability for environmental harm is to be realised in Europe.

Private international law’s ability to engage with concerns regarding environmental sustainability remains a key focus of analysis in Carmen Otero García-Castrillón’s chapter concerning the discipline’s place in international trade agreements. The chapter advocates the bridging of an artificial systemic separation between the private and the public in the international system. It is argued that the extent of private power in the international system merits attention in trade agreements if sustainable development goals are to be attained.

Giesela Rühl also addresses concerns regarding private international law’s ability to be deployed in matters which are traditionally reserved to public and public international law. Her chapter considers innovations introduced through the German Supply Chain Due Diligence Act (Lieferkettensorg-faltspflichtengesetz – LkSG) which establishes mandatory human rights due diligence obligations in German companies’ international supply chains. Rühl laments the lack of attention paid to private international law in German law. She makes an especially compelling case for any future EU interventions to recognise the need to engage with private international law if legislation is to be effective.

The uneasy public-private divide in transnational law remains in evidence in Patricia Živkovi?’s chapter concerning what she describes as “creeping substantive review” in international arbitration. Živkovi? decries a lack of conceptual clarity in courts’ treatment of arbitral determinations, particularly insofar as public policy is deployed as an instrument of substantive review of private adjudication. She argues that international legislative intervention is needed if prevailing inconsistencies of treatment are to be resolved.

Fittingly, Part II is rounded off with a discussion of that part of private international law to which Jonathan Fitchen made his most enduring scholarly contribution, namely authentic instruments. Zheng Tang and Xu Huang discuss authentic instruments in Chinese private international law. Like Jonathan’s work, this chapter provides readers of English language scholarship with a rare example of in-depth analysis of concepts which are unfamiliar in the Anglo-American tradition. The chapter’s compelling arguments for legal refinements will also be of use, however, to readers who wish to identify possible improvements to Chinese law.

Part III: Family Matters in Private International Law

The final part of the book turns to family law, an area in which Jonathan provided ample instruction to students, but which was not especially in evidence in his written work. In keeping with the previous parts of the book, our discipline’s need for definitional clarity and consistency are very much apparent in the chapters in this part, as is the somewhat existential concern regarding the proper delineation of the public and the private. As the authors in this part observe, each of these matters has far-reaching effects on the apportioning of rights and obligations in circumstances which are deeply meaningful to the lives of litigants.

Aude Fiorini’s chapter considers flawed reasoning in the US Court of Appeals judgment in Pope v Lunday. Fiorini illustrates the substantive flaws in the Court’s treatment of the habitual residence of neonates, but also highlights a broader concern regarding the potential for unconscious bias in judicial decision-making. Through the judgment in Pope, Fiorini raises alarms regarding inconsistent judicial treatment of similar situations which turn on appreciation of circumstances establishing the habitual residence of a child. She argues, particularly compellingly in our view, that the interests of justice require greater conceptual clarity and consistency.

In the final chapter, by Anatol Dutta, the interactions of the public and the private return to the fore. Taking his cue from Jonathan Fitchen’s work on authentic instruments, Dutta explores the concept of private divorce under the Brussels IIter Regulation. Concerns regarding decisional autonomy are very much in evidence in this chapter, which considers the meaning of private divorces and the extent to which they enjoy recognition in the EU private international law system. Ultimately, Dutta welcomes measures which restrict private divorce tourism in the EU.

Conclusions

This book was born of a collective wish to remember and honour a much-loved scholar of private international law. In that, we trust that it has already fulfilled its purpose. However, each chapter individually and the book taken as a whole also capture the state of the art of private international law. Ours remains a discipline in search of systemic normative clarity and in episodic need of technical refinement. This collection provides tantalising glimpses of possible answers to both the essential question of the treatment of the private in the attainment of public goods, and in relation to longstanding vexing technical questions.

To preserve and further Jonathan Fitchen’s legacy as an educator of private international lawyers, editorial royalties from the sale of the book will be donated to the Jonathan Fitchen Fund of the Development Trust at the University of Aberdeen. Direct individual donations to the fund are also welcome and appreciated.

On Tuesday, March 5, 2024, the Hamburg Max Planck Institute will host its 42nd monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Marta Pertegás Sender (Maastricht University and University of Antwerp) will speak, in English, about the topic

Current Developments in Cross-Border Enforcement of Patent Rights: Revisiting Territoriality and Reflexive Effect?

The CJEU preliminary ruling in BSH Hausgeräte Case C-339/22 is eagerly awaited by those involved or interested in cross-border enforcement of patent rights. The forthcoming judgment may have broader repercussions for the position of territoriality in international litigation on intellectual property rights or for the private international law of property more generally.

On the basis of AG Emiliou’s Opinion expected on 22 February 2023, this paper revisits some of the positions defended in my doctoral research almost 25 years ago (on still controversial issues such as the articulation of exclusive jurisdiction rules when validity is contested in infringement cases, or the ‘reflexive effect’ (effet réflexe) of such exclusive jurisdiction rules in favour of courts in non-EU States).

The presentation will be followed by an 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.

We are please to announce that registration for the  next bi-annual conference of the European Association of Private International Law (EAPIL) is now open!

The conference will take place in Wroclaw (Poland) from 6 to 8 June 2024 and will be devoted to “Private International Law and Global Crises”. Topics to be discussed will include the interplay of private international law and 1) war and armed conflicts, 2)  the rule of law, 3) climate change and 4) global supply chains. Speakers will be:

• Raffaele Sabato (European Court of Human Rights)
• Vincent Kronenberger (Court of Justice of the European Union)
• Andreas Stein (European Commission)
• Patrick Kinsch (University of Luxembourg)
• Veronica Ruiz Abou-Nigm (University of Edinburgh)
• Iryna Dikovska (Taras Shevchenko National University Kyiv)
• Tamasz Szabados (ELTE Eötvös Loránd University)
• Alex Mills (University College London), Matthias Weller (University of Bonn)
• Eduardo Alvarez Armas (Universidad Pontificia Comillas)
• Olivera Boskovic (Université Paris Cité)
• Rui Dias (University of Coimbra)
• Klaas Eller (University of Amsterdam)
• Laura Carpaneto (University of Genova)

To register for the conference please click here.

For questions, please get in touch with the local organizer, Agnieszka-Frackowiak-Adamska, at 2024.EAPIL.Wroclaw@uwr.edu.pl.

This post was written by Silvia Marino, Professor of EU law at the University of Insubria in Como, and Director of the EAPIL Winter School.

The first edition of the EAPIL Winter School in European Private International Law took place at the Department of Law, Economics and Cultures of the University of Insubria in Como from 12 to 16 February 2024.

The five-day course was organized by the University of Insubria in partnership with the University of Murcia, the Jagiellonian University in Kraków and the J.J. Strossmayer University of Osijek. Financial support was provided by the International Insubria Summer/Winter Schools programme and through a Jean Monnet Module named “European Private International Law: Recent Trends and Challenges” (EuPILART).

The School’s programme, set out by a dedicated EAPIL Working Group consisting of Javier Carrascosa González, Silvia Marino and Anna Wysocka-Bar, addressed a broad range of concerning Personal Status and Family Relationships.

Thirty people, coming from Belgium, Germany, Italy, Panama, Poland, Portugal, Romania, Spain, Turkey, the United Kingdom and Ukraine, attended the School. Most were either PhD students with an interest in European Private International Law or young practicing lawyers.

Camelia Toader, former Judge at the Court of Justice of the European Union, and Ioan-Luca Vlad, attorney at law, kicked off the Winter School with an introductory lecture on cross-borders families and the free movement of persons within the EU. They discussed the historical development of the law in this area, the relevance of judicial cooperation to the enjoyment of fundamental rights and the freedom of movement enshrined in EU law. They stressed the need for a uniform and coherent set of rules of private international law governing the broad range of issues that cross-border families experience in practice.

Pietro Franzina, Professor of International Law at the Catholic University of Sacred Hearth in Milan, provided an overview of the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, delving into their mutual relationships and their impact on private international law. He noted that human rights concern may require, depending on the circumstances, that private international law rules.

In the afternoon, Satu Heikkilä, lawyer and non-judicial Rapporteur at the European Court of Human Rights, went through the case law of the Strasbourg Court relating to Article 8 of the European Convention on Human Rights, which enshrines the right for respect of private and family life.

Special attention was devoted in her lecture to the concern for continuity of personal and family status across national borders and the rulings of the Court that address that concern.

Day two started with a discussion with participants aimed to identify the main problems faced by cross-borders families in Europe, moderated by Silvia Marino. The attendees exchanged views on what they perceived to be the most relevant challenges. The discussion put the bases for the closing workshop scheduled for day five, aimed to assess whether the current rules of private international law in force in the EU properly address such challenges.

Michael Wilderspin, former Legal Advisor of the European Commission, discussed the concept of mutual recognition, as understood in EU law for the purposes of free movement and in the context of private international law. The lecture presented the relevant case law of the Court of Justice of the European Union.

In the afternoon, Anna Wysocka-Bar, Senior Lecturer at the Jagiellonian University, offered a comparative overview of some European Countries legislations on sex reassignment and went through the pertinent case law of the European Court of Human Rights and the Court of Justice of the European Union.

Katja Karjalainen, Senior Lecturer at the University of Eastern Finland, examined the issues that surround the protection of vulnerable adults in cross-border situations, stressing the importance of cooperation among States in this area, notably in light of the 2000 Hague Convention on the Protection of Adults.

On day three, Laura Carpaneto, Associate Professor at the University of Genova, provided an overview of the provisions on parental responsibility in the Brussels II ter Regulation. She also introduced the issue of surrogacy, especially in light of the ongoing Parentage Project at the Hague Conference of Private International Law.

Ester di Napoli, Research Fellow at the University of Ferrara,  discussed a number of issues relating to adoption, covering both inter-country adoption and the recognition of foreign adoption decrees. Starting from a human rights perspective, she focused, in particular, on the 1993 Hague Convention and the issues raised by its practical operation.

Cristina González Beilfuss, Full Professor at the University of Barcelona, addressed the sensitive issue of surrogacy. She shared some inspiring views on parenthood grounded on non-genetic ties, and outlined the policies that are likely to shape any harmonisation effort in this area through EU  legislation.

Finally, Nadia Rusinova, attorney at law in the Netherlands and in Bulgaria, presented the topic of child abduction. She discussed a practical case showing the interplay of the 1980 Hague Child Abduction Convention, the 1996 Hague Child Protection Conventions and the Brussels II ter Regulation.

Day four started with a lecture by Etienne Pataut, Full Professor at the Paris 1 – Sorbonne University, on Acceptance and recognition of personal status. He discussed the relationship between the European Union and the International Commission on Civil Status, stressing the important role played by the latter and the potential of continuing cooperation between the two.

Ian Summer, Judge and Full Professor at Tilburg University, addressed the cross-border recognition of marriages and registered partnerships. He provided a comparative overview before encouraging participants to discuss in groups about the issue of recognition in cases involving unknown legal institutions.

Máire Ní Shúilleabháin, Associate Professor at the University College of Dublin, focused on cross-border separations and divorce, in light of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations, the  Brussels II ter Regulation and Rome III Regulation, in light domestic and European case law.

The closing lecture of the day,  by Javier Carrascosa González, Full Professor at the University of Murcia, dealt with remedies against infringements to rights of personality. The focus was on the interaction of family law rules with tort law, and the potential of the latter for the protection of indivudals from the violation of rights related to private life.

Day five started with three parallel sessions. The first one, on The recognition of unknown family status: the pillar cases: Coman, Pancharevo and beyond, was chaired by Anna Wysocka-Bar; the second one, on The right to name according to ECtHR and CJEU case-law, was guided  by Silvia Marino; Javier Carrascosa González led the discussion on The notion of habitual residence: comparing HCCH and EU systems.

Participants were invited to choose among the three and take part in the discussion, based, among other things, on reading materials that had been shared before the start of the Winter School.

Raffaele Sabato, judge at European Court of Human Rights, held the final lecture. He illustrated the key principles arising from the case law of the European Court of Human Rights on the right to respect for private and family life, and discussed the need for private international law rules that reflect the evolving notion of family and the emerging challenges faced by people on the move.

— The topic of the next edition of the EAPIL Winter School will be announced in the coming weeks. Stay tuned!

The annual DynamInt Doctoral Conference will be held in Amsterdam on 28th and 29th August 2024 and is co-organised by the Graduate School DynamInt (Humboldt University of Berlin) and the Amsterdam Law School (University of Amsterdam). It takes place in the context of the European Law School’s Summer Academy. We invite early career researchers (doctoral and postdoctoral) working in European Union law to come together and to discuss responses to the most pressing crises currently facing the European Union, its Member states, and citizens. Within the framework of the three topics outlined below, participants may present their work and engage in discussion with fellow scholars. In addition, Faculty specialised in EU, international, and comparative law will give in-depth feedback on the contributions submitted prior to the conference.

In recent years, the resilience and adaptability of EU law and governance has been tested by a myriad of challenges that have effectively put the bloc in a constant state of crisis. The already strained balance between unity and diversity increases the necessity for a multifaceted legal framework able to endure challenges, adapt to changing circumstances, and continue to function effectively while upholding the EU’s core values and objectives.

With this conference, we aim to develop a better understanding of the diverse unfolding crises and the unique challenges they pose against the background of an ever-evolving EU legal order. We also seek to explore potential responses and mechanisms that can ensure the EU’s resilience to future crises. For this purpose, we are pleased to invite contributions from both public and private law perspectives on the following topics:

Topic 1: Climate crisis

The ecological crisis caused by climate change represents the defining challenge of our time, posing an existential threat to human societies and the planet. As a cross-sectoral problem, climate change implicates all aspects of social and economic life. Mirroring the scope of the problem, legal responses to climate change must encompass and activate the entire spectrum of the law, ranging from public to private law and beyond. Over the past years, the EU has developed an ambition to emerge as the major player in the fight against climate change. Within the framework of the ‘European Green Deal’, a broad range of legislation, both current and planned, is deployed to achieve the goal of net zero greenhouse gas emissions by 2050. Notably, some of these legislative projects devise mechanisms of both public and private enforcement, such as the proposed Corporate Sustainability Due Diligence Directive. Yet, the Intergovernmental Panel on Climate Change’s repeated warnings that global warming will likely exceed 1.5°C in the near term give cause for concern. At the same time, they provide a reason to scrutinise and indeed challenge the EU’s response to the ecological crisis. Do the legislative efforts currently underway adequately address the problem of climate change, which is inherently polycentric, scientifically uncertain, dynamic, and steeped in socio-political conflict? And how do the current legislative efforts fit into the growing landscape of national and international, public and private, as well as top-down and bottom-up responses to climate change?

Topic 2: Inequality crisis

Rising inequality is emerging as a recurrent and prominent theme amongst the crisis facing the European Union. Private law traditionally emphasises principles such as autonomy, efficiency, and justice in exchange, often sidelining concerns related to economic inequality. Conversely, public law, focused on vertical relationships, fails to engage with the underlying factors that give rise to inequality in the first place. The orthodox view holds that distributive objectives should be managed primarily through the fiscal system and welfare state infrastructure. However, this paradigm is increasingly contested by the realities of mounting inequality despite the existence of public governance mechanisms to alleviate it. A critical re-evaluation of these approaches and their historical underpinnings may unveil the root causes of inequality and its institutional dimension. In this vein, recent scholarship has pointed to the instrumental role of legal institutions in “coding” assets into capital thereby creating wealth and perpetuating inequality. Emerging asset classes like data and the environment are following the same pattern, potentially paving the way for future crises. Moreover, recent developments in economic organisation, such as the rise of digital platforms and the gig economy, have widened the gap between individuals and corporations in terms of bargaining power and access to justice.

Topic 3: Armed conflict crisis

The rise of armed conflicts and acts of aggression worldwide has led the EU to shift its internal and external policies in light of these crises, some of which have recently reached its borders. The EU has intensified its efforts to strengthen economic resilience, enhance energy security, and enforce a robust sanctions regime against those undermining peace and international law. This recalibration includes tightening financial regulations to prevent the flow of funds to sanctioned entities and enhancing the bloc’s capacity for economic diplomacy to mitigate the impact of geopolitical tensions. Furthermore, the EU’s adaptation of its policies underscores the necessity of a coordinated approach that not only addresses immediate threats but also anticipates future challenges, ensuring the stability and integrity of the Union. At the same time, these policies bring about inadvertent consequences for private legal relationships, such as insurance policies, energy sector contracts, and within the shipping industry. What are the legal and ethical implications of the EU’s use of economic measures, such as sanctions, from a public and private law perspective? How has the legal framework of the European Union adapted to address the security challenges posed by the geopolitical tensions near its borders? How are these regulatory shifts and the geopolitical strategy of the Union normatively legitimated?

Submission timeline

We welcome submissions in the form of an abstract (max. 500 words) by 15th April 2024. The issues and questions touched upon in the descriptions of the topics are intended to serve as thematic guidance, but are by no means meant to be exhaustive. Please send your submissions via the following form: https://bit.ly/DynamIntConference.

Successful participants will be contacted by 15th May 2024 at the latest and are expected to submit their full paper (max. 8,000 words including footnotes) by 15th July 2024. They will be sent to established scholars who will provide feedback during the conference. The abstract and the paper may be submitted in English, French, and German. However, the presentations and discussions during the panels will be held in English.

Logistics and funding

The conference will be held as an on-site event only. The accommodation costs for panellists will be covered. Further information will be offered at a later stage to the selected speakers. Participation in the entire workshop is free of charge. General registration for the entire workshop will open in early summer 2024.

Any question may be directed to gesche.ripken@hu-berlin.de.

By a decision of 21 December 2023, the Danish Supreme Court held that a Swedish default judgment concerning a loan agreement could not be enforced in Denmark on the ground that the service procedure that preceded the judgment was inadequate in an international situation.

In 2014, a Swedish bank filed a plaint in a Swedish court to sue a debtor for not fulfilling a loan agreement. As the defendant did not appear after the court had fulfilled the Swedish standards for service of documents, a default judgment was rendered. In 2022, the bank asked the Swedish court for a certificate under Article 53 of the Brussels I bis Regulation. With that certificate, the bank sought enforcement of the Swedish default judgment in a Danish court. Both the Danish court of first instance and the Danish court of appeal held that the Swedish judgment was enforceable in Denmark under the Brussels I bis Regulation. However, the Danish Supreme Court came to a different conclusion.

First, the Danish Supreme Court found that the lower instances’ application of the Brussels I bis Regulation was wrong as the Swedish proceedings had been initiated before 15 January 2015. Under Article 66 para. 1 of the Brussels I bis Regulation, it is the older Brussels I Regulation that applies for matters initiated before that date. Here, it can be noted that both regulations are applicable in Denmark despite Denmark’s special status in EU’s civil law cooperation due to a parallel agreement between the EU and Denmark.

The exceptions to the rule on presumption for enforcement of judgments from other member states in Article 45 follow from Articles 4 and 35 in the Brussels I Regulation. Article 34 para. states that it is a ground for refusal that a default judgment has been rendered without the defendant having been duly served. With reference to the CJEU’s judgments C-327/10, Hypoteční banka, EU:C:2011:745, and C-292/10, Cornelius de Visser, EU:C:2012:142, the Danish Supreme Court held that the Brussels I Regulation requires a court to investigate the domicile of the defendant to fulfil its service obligations. Though the domicile of the defendant was unknown to the Swedish court, it was clear to that court that the defendant was a Danish citizen. Nonetheless, the Swedish court made no investigations into whether the defendant was domiciled there. Consequently, the Danish Supreme Court held that the Swedish default judgment may not be enforced in Denmark.

The Danish Supreme Court decision is a good example of the practical application of the “principles of diligence and good faith” that the CJEU set as a standard for the investigations that a court must perform to trace a defendant. To investigate whether a defendant has regained domicile in a country where he or she is a citizen or to which he or she has a strong connection is probably an absolute minimum requirement.

Even if the presumption for recognition and enforcement has been changed between the old Brussels I Regulation and the Brussels I bis Regulation, it is noteworthy that the same ground for recognition exists also in Article 45 (1)(b) of the Brussels I bis Regulation.

A on online conference on the international recovery of maintenance by public bodies is set to take place on 15 May 2024, between 2 and 5 pm CEST, hosted by the German Institute for Youth Services and Family Law (DIJuF).

The event concept is as follows.

The Child Support forum is pleased to invite every interested stakeholder to an open conference deepening the topic of cross-border maintenance recovery by public bodies.

Due to the increase in international mobility of families, the need for immediate child support in case of default of maintenance payment is growing. This support often consists of advance maintenance payments granted by public authorities, which then must be reimbursed by the debtor. The enormous sums of money that states spend on these benefits make the cross-border enforcement of maintenance by public bodies an important political issue. 

The first three meetings of the Child Support Forum showed that there is a great need for exchange between the public bodies. On the one hand, they face different hurdles in enforcing their claims due to the diversity of the maintenance support systems. On the other hand, common problems were also identified. The results of this work will be presented.

In a future perspective, it is clear that the tension between the need for more support for children, for an effective recovery of maintenance against debtors, and debtor protection is growing. It will be interesting to discuss to what extent the States make the grant of benefits dependent on the legal possibilities for reimbursement. For example, in the light of the text of the 2007 Convention and of the EU-Maintenance Regulation, public bodies currently have less support from Central Authorities when they seek reimbursement of maintenance support than children do when they claim child maintenance. Thus, the question arises as to whether debtor protection still justifies this legal situation and how maintenance debtors can be protected from double claims when it is no longer the child alone but a public body that seeks the recovery of maintenance payments.

The conference will mark the end of a series of three seminars on the topic of maintenance recovery by public bodies and is intended to provide insight into its socio-political and legal aspects as well as a unique opportunity for exchange with experts from different fields (academics, Central Authorities, public bodies from different countries). 

The conference program can be found here. Attendance is free, but prior registration (here) is required.

The fourth issue of 2023 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Cristina Campiglio, Professor at the University of Pavia, Giurisdizione e legge applicabile in materia di responsabilità medica (ovvero a proposito di conflitti di qualificazioni) [Jurisdiction and Applicable Law in Matters of Medical Liability (Namely, on the Issue of Conflicts of Characterisation); in Italian]

An attempt has been made to give an account of the conflicts of qualification that characterise the healthcare sector, starting with the contractual or non-contractual nature of civil liability for malpractice. We then looked at the nature of the healthcare contract to assess whether patients can fall into the category of consumers and consequently enjoy the protection reserved to them. Finally, reference was made to the qualification of the patient’s self-determination as an expression of the right to privacy rather than the right to physical integrity. Research on the nature of civil liability in a field – the health sector, as said – where many activities are potentially harmful to the physical integrity of the patient so that the health-care operator might be held accountable of culpable personal injury or even of manslaughter, provided an opportunity to analyse the practice of the Court of Justice relating to the qualification of “contractual matters” and indirectly of the non-contractual matter of culpable “tort”; and to note how the Court, in recent years, on the one hand has openly espoused an extensive interpretation of “contractual matters”, and on the other hand has missed the chance to speak out on hypotheses of non-contractual liability in contractual contexts, or of concurrence of contractual and non-contractual liability. It is to be hoped that the European Union will become aware of the need to provide ad hoc rules on the liability of healthcare personnel who engage in activities that are intrinsically hazardous to patients’ health: if not substantive rules or guidelines, at least rules on jurisdictional competence and applicable law.

Olivia Lopes Pegna, Professor at the University of Florence, Continuità interpretativa e novità funzionali alla tutela dell’interesse del minore nel regolamento Bruxelles II-ter (Continuity in Interpretation and Novelties Functional to the Protection of the Interest of the Child in the Brussels IIb Regulation; in Italian)

This article aims at illustrating the main innovations introduced in the Brussels regime on parental responsibility and protection of children with the Recast: i.e., Regulation (EU) No 2019/1111 (“Brussels II-ter”). While, on the one side, interpretation and application of the Recast Regulation mandate continuity with the jurisprudence of the Court of Justice of the European Union, on the other side the novelties introduced with the Recast show an increased penchant towards flexibility in order to achieve the protection of the actual and concrete best interests of the child.

Edoardo Benvenuti, Research Fellow at the University of Milan, Climate change litigation e diritto internazionale privato dell’Unione europea: quale spazio per la tutela collettiva? (Climate Change Litigation and EU Private International Law: Is There Room for Collective Redress?; in Italian)

With the worsening of the climate crisis, the EU is adopting a number of measures – both in the public and private sector – in order to counter such phenomenon. The layering of substantive norms and standards goes hand in hand with the growing interest towards procedural tools suitable to make the application of such rules effective through private enforcement. Against this background, and given the collective and the ubiquitous dimension of the consequences of climate change, the present article explores the phenomenon of collective redress in the field of climate change litigation. After introducing the definitions and the characteristic features of climate change litigation and collective redress, the article examines the role of Regulations (EU) No 1215/2012 and (CE) No 864/2007, in order to evaluate their ability to address the private international law issues arising from collective and climate change litigation. In doing so, the article focuses on the relevant case-law (both national and of the CJEU), as well as on Directive (EU) 2020/1828 on consumers’ representative actions, which provides a number of propositions that can be applied also in the context of climate change litigation. Once the main critical aspects have been identified, the article puts forth some reform suggestions to strengthen EU private international law mechanisms in the context of environmental mass torts.

This issue also comprises the following comment:

Ginevra Greco, Researcher at the University of Milan, Il c.d. uso alternativo del rinvio pregiudiziale di interpretazione (The So-Called Alternative Use of the Referral for a Preliminary Ruling on Interpretation; in Italian)

This article endeavours to show that, contrary to popular opinion, the interpretative judgments of the Court of Justice of the European Union, which use the terms “precludes” or “does not preclude”, are genuine judgments on the conformity of a national act or measure with EU law. This article also aims to illustrate the compatibility of those judgments with the model of Article 267 TFEU. This conclusion is supported not by the fact that such judgments are devoid of application profiles, but because they remain within the scope of the interpretative function of the Court of Justice, understood not as abstract interpretation, but as an interpretation which contributes to the resolution of the concrete case pending before the referring court.

Furthermore, in the Chronicles section, this issue includes:

Anna Facchinetti, Researcher at the University of Milan, Immunità degli Stati ed exequatur di sentenze straniere in materia di terrorismo: una recente pronuncia della Corte di Cassazione francese (State Immunity and Exequatur of Foreign Judgments on Terrorism: A Recent Ruling by the French Court of Cassation; in Italian).

Finally, the following book review by Fausto Pocar, Emeritus Professor at the University of Milan, is featured: Albert Venn DICEY, John Humphrey Carlile MORRIS, Lawrence COLLINS, Dicey, Morris & Collins on The Conflict of Laws, 16th ed., Sweet & Maxwell, London, 2022, 2 voll., pp. cdxli-2476-LXXI; Companion vol., EU Withdrawal Transition Issues, pp. li-162.

The first issue of the Journal du droit international for 2024 has been released. It contains two articles and several case notes relating to private international law issues.

In the first article, Héloïse Meur (Paris VIII University) analyses new French provisions on PIL aspects of unfair commercial practices (Entre la lettre et l’esprit de la loi EGALIM 3, quel avenir pour le droit international privé du « petit » droit de la concurrence ?).

The English abstract reads:

For the first time, the French Lawmaker enacted provisions related to private international law aspects of unfair commercial practices law. Article 1 of the law of 30 March 2023 to strengthen the balance in commercial relations between suppliers and distributors, known as the “EGALIM 3” or “Descrozaille” law, states that the rules related to restrictive practices and price transparency apply “to any agreement between a supplier and a buyer relating to products or services marketed on French territory. These provisions are a matter of public policy. Any dispute relating to their application falls within the exclusive jurisdiction of the French courts, subject to compliance with European Union law and international treaties ratified or approved by France, and without prejudice to recourse to arbitration”. This provision would make it possible to fight the circumvention strategies of large retailers, which consist in setting up purchasing entities abroad and concluding choice of law and choice of forum clauses to avoid the application of the provisions of the French Commercial Code. However, by refusing to refer to traditional concepts of private international law such as the overriding method of mandatory provisions (“lois de police”), the French lawmaker leaves open the question of the impact of the amendments on positive private international law and further adds to the important legal uncertainty in this field of law. This paper proposes to analyse the causes of these omissions to hope to guarantee more legal certainty for international contracts in general and distribution contracts in particular, contracts initially targeted by unfair trading practices law.

In the second article, Alejandra Blanquet (Paris-Est Créteil University) examines the difficult coordination between kafalaand adoption in cross-border context following a Franco-Spanish comparative perspective (L’articulation entre kafala et adoption : le cas espagnol et ses enseignements pour le droit international privé français).

The English abstract reads:

The adoption of children with ‘personal prohibitive status’ is forbidden by way of law in Spain and France. It results in any gateway between kafala, and adoption being closed. However, the firmness of this statement must be qualified. Indeed, by retaining a soften approach of it some Spanish Audiencias provinciales have recently allowed certain kafalas to become adoptions. This new approach is based on a selective gateway opened to judicial kafalasconstituted in respect of makfouls abandonned in their home country. This kind of kafalas may therefore, in some cases, become adoptions. This mechanism does not mean that the statutory prohibition is repealed but confirms the extent to which its force may be subject to modulations in order to avoid the excessiveness in which its strict implementation may result in some cases. The selective gateway requires the best interest of the child to be assessed in concreto and invites the judge to analyse, and if necessary to relativise the effects of an international “flawed” adoption. Thus, the Spanish example shows that the discussion on the link between kafala and adoption is far from being over and offers new perspectives for analysing the question in both Spanish and French Law.

The table of contents of the issue can be accessed here.

Authors: Abubakri Yekini (Lecturer in Conflict of Laws at the University of Manchester) and Chukwuma Okoli (Assistant Professor in Commercial Conflict of Laws at the University of Birmingham, Senior Research Associate at the University of Johannesburg).

A  Introduction

In an increasingly globalised economy, commercial transactions often involve business entities from different countries. These cross-border transactions present complex legal questions, such as the place where potential disputes will be adjudicated. To provide certainty, commercial parties often conclude ex ante agreements on the venue for dispute resolution by selecting the court(s) of a particular state. However, what happens if no such agreement over venue is reached for resolving a contractual dispute? Could consent to the venue be implicitly inferred from the parties’ conduct or other factors?

Explicit jurisdiction clauses offer cross-border litigants the benefit of predictability by allowing them to anticipate where disputes arising from their commercial transactions will be resolved. However, business entities sometimes neglect to include express provisions for the venue, whether inadvertently or due to their inexperience. In such cases, firms may have implicitly agreed on a venue through their actions or based on their tacit understanding. This type of ‘unwritten’ jurisdiction agreement remains largely unexplored in the legal scholarship.

Relatively recently, the validity or enforceability implied jurisdiction agreements arose in the Privy Council case of in the Privy Council Case of Vizcaya Partners Ltd v Picard & Anor [2016] UKPC 5. In this Case, following a comprehensive survey of the existing academic and judicial authorities, Lord Collins held that since it is commonplace for a contractual agreement or consent to be implied or inferred, ‘there is no reason in principle why the position should be any different in the case of a contractual agreement or consent to the jurisdiction of a foreign court’. However, in the wake of the above Case, the notion of an implied jurisdiction agreement drew limited scholarly research attention (for instance, see Kennedy, (2023);  Kupelyants, 2016). Moreover, there has been no systematic analysis of how it aligns with the needs of the international business community.

In our latest article, published in the 2023 edition of the Journal of Private International Law, vol. 19(3), we examine the enforceability of implied jurisdiction agreements from a global comparative perspective. Therefore, our paper provides the first comparative global perspective of the enforcement of implied jurisdiction in international contracts. Our analysis reveals uncertain and subjective standards for implied jurisdiction agreements, which undermine the needs of international commerce. While limited scenarios may justify enforcing implied jurisdiction agreements, our paper advocates restraint, given that the criteria for inferring consent are complex, unpredictable, and variable across legal systems.

B  Implied Jurisdiction Agreements Create Uncertainty for Business

The main thesis of our article is that implied jurisdiction undermines the core needs of business entities engaging in cross-border commercial transactions. These entities value legal certainty and predictability, in order to make informed choices and plan business activities. However, by their very nature, implied terms offer less clarity concerning the governing law and jurisdiction agreements.

Our article likewise surveys primary legal sources across common law, civil law and mixed legal systems (as well as insights from academics and practising lawyers), assessing whether implied jurisdiction agreements are widely recognised. We find limited consensus on the conduct that demonstrates implied consent or agreement to litigate in a particular forum. Factors such as previous interactions between contracting parties and trade usage in an industry are highly subjective. Even common law tests for inferring implied terms, like the ‘officious bystander’ and ‘business efficacy’ rule, fail to clarify how these terms apply specifically to international jurisdiction.

This uncertainty requires the courts to undertake a complex, case-by-case analysis of parties’ unspoken intent. However, companies benefit from consistency in interpreting cross-border transactions, whereas a lack of clarity risks complicating commercial disputes, rather than resolving them efficiently. Overall, the unclear standards surrounding implied jurisdiction agreements are incapable of delivering the stability required by global businesses when operating across legal systems.

C Treatment under International Conventions 

International treaties are aimed at harmonising divergent national laws and policies on jurisdiction, applicable law, and the recognition and enforcement of foreign judgments.  The 2005 Hague Convention on Choice of Court Agreements (HCCA) governs exclusive choice of court agreements from a global perspective. Articles 3(c) and 5(1) address formal and substantive validity. Our paper suggests that the requirement for the written form under Article 3(c) may present challenges in implying jurisdiction agreements. Consequently, it is difficult to envision situations where implicit jurisdiction agreements could arise under the Hague Choice of Court Convention, given that the initial hurdle is the requirement for the agreement to be in writing.

The spirit of the HCCA is further reflected in the 2019 Hague Judgments Convention, which seeks to promote express – as opposed to implicit – jurisdiction agreements between parties. For instance, Article 5 of the Convention exhaustively lists permitted grounds for establishing international jurisdiction. This provides clarity for commercial parties who are litigating abroad. Consequently, implied jurisdictions agreements are conspicuously absent and so the policy favours explicit consent. Accordingly, we argue that the emerging global consensus dictates caution around enforcing implied jurisdiction agreements that could disrupt settled jurisdictional principles in the international context.

Brussels Ia and the Lugano Convention share provisions for the validity of a jurisdiction agreement. Namely, consent must be in writing, or evidenced in writing. This aligns with the Hague frameworks: the HCCA and the Judgments Convention. While some scholars argue for the validity of implied jurisdiction agreements in specific contexts (especially trade usage and previous dealings between parties), the prevailing view requires clear and precise consent. By way of illustration, CJEU’s stance in Cases like Galeries Segoura  SPRL, ProfitInvestment SIM SpA and Colzani,  implies a stringent approach to consent.

D  Should Implied Jurisdiction Agreements be Enforced?

In section IV of our paper, we examine the justification and rationale for the recognition or otherwise of implied jurisdiction agreements, having, inter alia, considered the diverse approaches adopted by the many courts across the globe.

1. Business Efficacy and Commercial Expectations

Party autonomy, a cornerstone of private international law, emphasises the importance of upholding the presumed intentions of the contracting parties. The recognition of implied jurisdiction agreements potentially aligns with the principle of party autonomy, since it seeks to fill gaps in contracts and thereby reflect the parties’ unexpressed intentions, as noted by Lord Neuberger. In the context of English law, Lord Collins relied on the business efficacy and officious bystander analogy to imply jurisdiction agreements in Vizcaya.

Additionally, the application of business efficacy logic can mitigate challenges such as parallel proceedings or the fragmentation of disputes. Extending a jurisdiction agreement to closely related contracts, even in the absence of explicit terms, will reduce uncertainty and meet commercial expectations. Certainty, convenience, and the efficient administration of justice are paramount considerations for rational businessmen who would rather not litigate in separate courts. Nonetheless, Cases like Terre Neuve Sarl v Yewdale Ltd [2020] and Etihad Airways PJSC v Flother [2020] reveal complexities in ascertaining commercial expectations and business efficacy. Divergent approaches to interpreting and implying terms, coupled with the challenge of defining what constitutes a reasonable businessperson, further contribute to the uncertainty and unpredictable outcomes.

    2. The Choice of Law Analogy

Implied choice of law is well-established in private international law. Moreover, it is recognised in various international instruments and across common law, mixed, and civil law jurisdictions. While jurisdiction and choice of law are distinct, the underlying principle of implied choice of law may apply to implied jurisdiction agreements.

Globally, the interrelationship between jurisdiction and choice of law is acknowledged. For instance, the CJEU emphasises a consistent approach to determining both. The applicable law of a contract, while not determinative of jurisdiction, remains significant. However, challenges arise when parties fail to expressly state the applicable law, leading to a strict standard for implying the choice of law based on a number of factors.

Despite the recognition of implied choice of law, we argue against transposing this principle directly to the question of jurisdiction. Jurisdiction involves the exercise of state powers over litigants, and while implied choice of law may indicate a governing law, it does not necessarily imply submission to the jurisdiction of a specific court. Instead, the distinct nature of jurisdiction agreements calls for a nuanced approach.

     3. International Jurisdiction and the Recognition of Foreign Judgments

Implied jurisdiction agreements play a dual role, serving as a basis for establishing both direct and indirect jurisdiction. Courts often decide on the enforceability of judgments based on the existence of a jurisdiction agreement, whether express or implied.

Different thresholds apply to direct and indirect jurisdiction. This differentiation reflects the complexities involved in establishing jurisdiction in cross-border disputes. While policy considerations may influence the exercise of direct jurisdiction, recognising and enforcing foreign judgments necessitates adherence to some very specific, often stricter, criteria set by the court addressed.

The inherent connection between jurisdiction and judgments underscores the need for certainty in cross-border litigation. Implied jurisdiction agreements lack globally established criteria. This introduces ambiguity and can lead to prolonged legal proceedings, given that litigants will often draw attention to implicit jurisdiction agreements at the enforcement stage. In short, it undermines the efficiency sought in international business transactions.

On the strength of the inefficiency that can arise from an exercise of jurisdiction based on implicit agreements, we argue that the concept of implied jurisdiction agreements adds little (if any) value to the recognition and enforcement of foreign judgments. Conversely, the HCCH 2019 Judgments Convention provides clear jurisdictional grounds, consequently averting the need for implied agreements. The Convention’s carefully drafted criteria support the global pursuit of certainty and predictability in cross-border commercial legal frameworks.

E  Conclusion

In closing, we argue that implied jurisdiction agreements do not align with the needs of international commerce or the emerging global consensus on international jurisdiction. Aside from the very limited recognition of implied jurisdiction agreements under certain international instruments such as Brussels Ia, our study further reveals divergent national approaches to implied jurisdiction agreements. For several reasons, we advocate caution regarding the validity of implicit agreements:

1. Consent is not genuinely mutual if one party disputes the existence of an implied agreement: genuine consent must be clear.
2. Implied agreements provide minimal value: even without them, jurisdiction can be founded on close connections between the contract and forum.
3. The emerging global consensus on jurisdiction, as seen in the HCCH Conventions, emphasises predictability through the requirement for well-defined but restricted grounds. Implied agreements therefore fail to align with the policy behind these instruments and the emerging consensus.

Our overall conclusion is that express jurisdiction agreements should remain the priority for cross-border contracts.

The United Nations Agenda 2030 with its 17 Sustainable Development Goals (SDGs) seems to have a blind spot for the role of private and private international law. That blind spot is beginning to be closed. A collective volume with global outlook published in 2021 addressed “the private side of transforming our world”: each of the 17 SDGs was discussed in one chapter of the book devoted to the specific relevance of private law and private international law. In 2022, the IACL-ASADIP conference in Asunción, Paraguay discussed sustainable private international law with regard to Latin America; the contributions published in 2023 in a special issue of the University of Brasilia Law Journal – Direito.UnB., V.7., N.3 (2023).

In this occasion the focus is on Asia. The Chinese Journal of Transnational Law invites submissions for its Vol. 2 Issue 2, to be published in 2025, engaging critically with the functions, methodologies and techniques of private international law in relation to sustainability from an Asian perspective, as well as in relation to the actual and potential contributions of private international law to the SDGs in Asia.

Contributions should focus on Asian perspectives, either addressing a specific global challenge through the lens of the relevant normative framework of a particular country, sub-region, or community/ies in Asia; or ‘glocalising’ the challenge, analysing specific issues affecting concrete contexts in the region in relation to the global objectives included in the UN 2030 Agenda.

Topics could include, but are not limited to:

• Relationships between the international and the domestic, or/and the public and the private in the pursue of the UN Agenda 2030 in Asia
• Sustainability in global supply/value chains and private international law in Asia
• Intra-regional (South-South) migration in Asia and private international law (focus on specific kinds of migration, such as labour migration, climate change migration, forced displacement, refugees, etc)
• Clean energy in Asia and private international law
• Decent work (and economic growth) in Asia, and of Asian workers beyond Asia, and private international law
• Sustainable consumption and production in Asia and private international law (focus on a specific sector, such as apparel, food, agricultural products, etc)
• Gender equality in Asia and private international law
• Sustainable Asian cities and communities and private international law
• Establishment and proof of personal identity in Asia; portability across borders of identity documents in Asia and beyond
• (Non-) recognition of foreign child marriages and forced marriages in and from Asia
• Availability and sustainable management of water (and sanitation) in Asia and the role of private international law
• Private international law and cross-border environmental damage/ adverse effects of climate change/ loss of biodiversity from an Asian perspective.

Note: The issue of transnational access to justice in relation to sustainable development has been considered extensively, including from an Asian perspective, so we suggest interested contributors to refrain from submitting contributions based exclusively on SDG 16.

An abstract of 500-800 words should be submitted by 15  March 2024 to PIL.sustainability.CJTL@ed.ac.uk and CJTL.Editor@whu.edu.cn (please send the abstract to both email addresses). Please include the contributor’s last name in the email title. Selected contributors will be invited to submit a draft paper by 1 October 2024 in advance of a hybrid conference at Wuhan University in November 2024. The submission of the full article through the journal’s homepage: https://journals.sagepub.com/home/ctl is required by 1 March 2025. Accepted articles will be published online first as advanced articles. Contributors may choose between: Research articles (up to 11,000 words inclusive of footnotes) or short articles (up to 6,000 words inclusive of footnotes). The special issue will be published in September 2025.

Those interested may contact the guest editors Verónica Ruiz Abou-Nigm, Ralf Michaels and Hans van Loon at PIL.sustainability.CJTL@ed.ac.uk.

In its judgment of 8 February 2024, the CJEU had to decide whether “the application of the Brussels Ibis Regulation be based solely on the fact that two parties with their seat in the same Member State agree on the jurisdiction of courts of another EU Member State.”

The case concerned two loans granted to Dúha reality, a Slovak company, by a third party also domiciled in Slovakia, in 2016 and 2017 respectively. Both loan contracts contained an identical choice of forum clause stating that any ‘dispute shall be settled by a court of the Czech Republic having substantive and territorial jurisdiction’. In 2021, the receivables arising from those loan agreements were assigned to Inkreal, another purely Slovak business corporation, who upon non-payment by the debtor brought action in the Czech Republic. Seeking, inter alia, to determine the specific Czech court having territorial jurisdiction, the Czech Supreme Court (Nejvyšší soud) referred the question to the CJEU.

The CJEU engaged in an almost textbook-like analysis of not only the clear wording of Art. 25 Brussels Ibis, which does not contain any restrictictions whatsoever with regard to an additional connection to the chosen or another Member State (para. 17), but also of the purpose of the Regulation to provide legal certainty requiring that the designated court can easily assess its jurisdiction without recourse to the merits of the case (para. 27). Furthermore, the CJEU concluded by an argumentum e contrario to Art. 1(2) HCCH 2005 Choice of Court Convention that the EU legislator, who drew inspiration from the Hague instrument when drafting the recast, was well aware of the issue but deliberately decided against the adoption of a similar provision excluding choice of court agreements in otherwise purely domestic cases from the scope of application (para. 38). As a result, the CJEU answered the question in the affirmative, thereby strengthening party autonomy and predictability in the context of international civil procedure. This is to be welcomed.

The Opinion of 12 October 2023 provided by AG Richard de la Tour had gone to the contrary, namely that an international element must be established “according to objective criteria” whereas the mere subjective choice of a foreign Member State’s court may not suffice to trigger the application of the Brussels Ibis Regulation (para. 32). While elements of the underlying argumentation appear questionable, as discussed elsewhere, the Opinon, interestingly, also put forward that the Brussels systems should be harmonised with the Hague Convention (“the Hague system”?), which might be taken as a reminiscent of a light form of the principle of systemic integration, Art. 31 (3) (c) VCLT. In this respect, the Opinion could also be seen as evidence of a heightened awareness of the increasing role that the CJEU’s decisions could play in the greater picture of international judicial cooperation in civil and commercial matters.

The first issue for Lloyd’s Maritime and Commercial Law Quarterly in 2024 was published recently. It contains the following articles and case notes.

Articles:

Andrew Dickinson, “Electronic trade documents and the conflict of laws in the United Kingdom”

The Electronic Trade Documents Act 2023, which entered into force on 20 September 2023, seeks to facilitate the use of trade documents (including bills of exchange, promissory notes and bills of lading) in electronic form by assimilating these instruments, and their legal effects, to the equivalent paper trade documents, provided that the systems used to process the relevant information meet certain technological requirements. However, the Act contains no provision that expressly addresses the legislation’s cross-border dimension or its relationship to the United Kingdom’s conflict of laws rules. This article considers how these matters should best be addressed in order to secure the Act’s promised economic benefits.

Shane Herbst and Simon Allison, “Breaking the Hague-Visby Rule’s Silence on choice of law and forum clauses: Article 3 revisited”

It is generally assumed that the Hague-Visby Rules are silent on choice of law and forum clauses. However, Art.3(8) can potentially operate to invalidate such clauses; and the general assumption is challenged by reference to Australia’s cargo liability regime. This reality could incentivise jurisdictions wanting to uphold such clauses to construe the Hague-Visby Rules uniformly. Despite this, the limits of Art.3(8) should be clarified. In Australia, reform efforts should address this and other issues with arbitration agreements. As Art.3(8) currently stands, parties must consider its potential effects on dispute resolution provisions in sea-carriage documents.

Case Notes:

Adrian Briggs, “The empire strikes back”

Andreas Giannakopoulos and Adnan Khaliq, “Damages for breach of dispute resolution agreements and EU public policy”

Adrian Briggs, “When arbitration matters”

The Supreme Court of Greece (Areios Pagos) ruled on 22 March 2023 on the validity of a choice of forum agreement concluded between a bank and its clients (Areios Pagos, ruling No. 441/2023).

The key issue in the dispute was whether the bank’s clients ought to be characterised as ‘consumers’ for the purposes of the Brussels I bis Regulation.

Four natural persons, all domiciled in Thessaloniki, brought proceedings in Thessaloniki against a Cypriot bank, seeking compensation for damages suffered as a result of an investment made through the bank. According to the bank, it was a rather secure investment proposal.  The claimant’s expression of interest had been filed with the Thessaloniki branch of the Cypriot bank.

The bank challenged the jurisdiction of the seised court. It relied for this on a clause conferring jurisdiction on Cypriot courts, featured in documents which the bank and its clients had exchanged in preparation of the investment.

Strangely enough, the claimants did not submit a reply to the challenge, and simply failed to produce any supplementary pleadings. As a result, the court of first instance of Thessaloniki upheld the challenge and declined jurisdiction.

The four clients lodged an appeal against the judgement with the Court of Appeal of Thessaloniki. They claimed that they concluded the contracts as consumers, and that the terms and conditions relied upon by the bank, including the choice-of-court clause, were abusive.

The appeal was dismissed on the ground that, at first instance, the clients had failed to take a stance on the bank’s plea of lack of jurisdiction, and had failed to challenge the validity of the bank’s terms and conditions based either on the Greek legislation on consumer protection, or on Article 15 of the Brussels I bis Regulation. The Court of Appeal stressed that, according to Greek procedural law, a failure to raise the above issues at first instance entails that a later challenge is foreclosed.

The Supreme Court reversed the judgement. It began by observing that the clients ought in fact to be characterized as consumers. It then held that the failure to examine ex officio the abusive nature of the choice of forum clause was not a sufficient ground to quash the judgment. In fact, the Supreme Court agreed with the Court of Appeal that the alleged unfairness of a bank’s terms and conditions is not an issue that a first instance court is required, or permitted, to raise by its own motion. The clients only raised the point in the proceedings before the Court of Appeal, which they are barred to do pursuant to Article 527 of the Code of Civil Procedure.

That said, the Areios Pagos held that the Court of Appeal had erred in relying on the (uncontested) plea made by the bank that Greek courts lacked jurisdiction, instead of assessing whether an agreement conferring jurisdiction on Cypriot courts had in fact been entered int between the parties. The Supreme Court observed that the lower courts contented themselves to infer the existence of such an agreement from the fact that the clients failed to reply to the bank’s assertion (an implicit confession within the meaning of Article 261(2) of the Greek Code of Civil Procedure, even though no express reference to that provision had been made by the bank).

Incidentally, the Supreme Court denied the four clients’ request to submit a reference to the Court of Justice of the European Union for a preliminary ruling. It did so on the grounds that the unfairness of a contractual term cab only be assessed against the circumstances existing at the time of the conclusion of the contract and in light of the other clauses of the contract. It  is for the consumer to provide evidence of such circumstances, and he must do so in the manner prescribed by the applicable procedural rules.

The Supreme Court’s assertion whereby the unfairness of a term is not something a court may assess of its own motion, where the consumer failed to raise the issue of unfairness and to provide evidence of the circumstance in which the contract was concluded, demonstrates the need for enhanced dissemination of the case law of the Court of Justice among domestic judicial authorities.

In fact, the Areios Pagos did not mention, let alone discuss, a single ruling of the Court of Justice relating to the seised court’s power to intervene by its own motion for the sake of protecting the rights of consumers. The Court of Justice has already addressed issues in this connection and is witnessing a number of new preliminary references concerning the topic. Especially in regards to ex officio control on second instance, one could refer to the the cases Eva Martín Martín v EDP Editores SL , Erika Jőrös v Aegon Magyarország Hitel Zrt., and Dirk Frederik Asbeek Brusse and Katarina de Man Garabito v Jahani BV.

Finally, some thoughts on the claimants’ alleged tacit approval of the choice of forum clause relied upon by the bank. How could someone assert that a claimant who chose to file an action before a certain court, and has already pleaded on the merits of the case, is later tacitly accepting the lack of that same court’s jurisdiction? One might speculate that the lawyers for the claimants simply forgot to file their brief to contest the plea of the bank: a failure that eventually decided the fate of the claim. This is one reason why courts should be permitted some activism, overcoming the inflexible procedural autonomy that Member States enjoy.

Still, it takes two to tango. By dismissing the request of the claimants for a preliminary reference to the Court of Justice, the Greek Supreme Court shows its reluctance to cooperate and contribute to the consolidation of European Procedural Law.

This book brings together the contributions made at the 6th AEPDIRI Seminar on current issues in Private International Law, held at the Faculty of Law of the University of Seville, which was entitled “De los retos a las oportunidades en el derecho de familia y sucesiones internacional” (From challenges to opportunities in international family and succession law), Campuzano Díaz, B., Diago Diago, P., Rodríguez Vázquez, Mª.A. (dirs.). An English translation of the blurb is provided by the directors:

The book is structured in four thematic sections. The first one is dedicated to Regulation 2019/1111 and its application in Spain, analysing important issues related to international child abduction and divorce before non-judicial authorities and its recognition. The second thematic section is dedicated to the economic regime of marriage and the couple, inheritance and the organisation of family assets, with reflections on the impact of the principle of equality between spouses and the protection of assets through international estate planning institutions, among other issues. The third section deals with questions of civil status and the solutions provided by the Spanish Civil Registry Law, with special attention to filiation in Private International Law from the perspective of the protection of fundamental rights and the respect for family life. The fourth section includes studies about current realities, such as situations of domestic violence in cases of international child abduction, negotiable institutions and their place in the succession Regulations and the interpretation of private international family law in different High Courts (CJEU and ECtHR).

It is a book of great interest, not only because of the importance and diversity of the subjects dealt with, but also because of the important group of specialists in international family and succession law who have participated in its drafting.

The book is published in digital and open access format:

https://open.tirant.com/cloudLibrary/ebook/info/9788411978248

https://www.aepdiri.org/index.php/las-publicaciones/otras-publicaciones/2170-campuzano-diaz-b-diago-diago-p-rodriguez-vazquez-m-a-dirs-de-los-retos-a-las-oportunidades-en-el-derecho-de-familia-y-sucesiones-internacional

The seventh edition of the French leading treatise on the European law of jurisdiction and foreign judgments in civil and commercial matters (Compétence et exécution des jugements en Europe – Règlements 44/2001 et 1215/2012 – Conventions de Bruxelles (1968) et de Lugano (1988 et 2007)) has just been published.

It is authored by Emeritus Prof. Hélène Gaudemet-Tallon and Prof. Marie-Elodie Ancel (both Paris II University).

The blurb reads:

Les textes étudiés dans cet ouvrage – Convention de Bruxelles du 27 septembre 1968, règlements 44/2001 et 1215/2012 – portent sur la compétence directe ainsi que sur la reconnaissance et l’exécution des décisions ; ils doivent assurer la réalisation d’un véritable « espace judiciaire européen » en matière civile et commerciale. Le règlement 1215/2012 (dit Bruxelles I bis) a apporté des modifications substantielles au règlement 44/2001. L’application de ces textes est guidée par une riche jurisprudence de la Cour de justice de l’Union européenne.

Dans le cadre de l’AELE, les Conventions de Lugano de 1988, puis de 2007, ont adopté des systèmes « parallèles », d’abord à la Convention de Bruxelles de 1968 puis au règlement 44/2001. La Convention de 2007 est en vigueur entre tous les États de l’Union européenne, la Norvège, l’Islande et la Suisse.

Cette septième édition, tenant compte de l’évolution des textes et de la jurisprudence ainsi que de la sortie du Royaume-Uni de l’Union européenne, a pour ambition d’être utile non seulement aux universitaires (étudiants et enseignants) s’intéressant au droit international privé européen, mais aussi aux praticiens (magistrats, avocats, notaires) qui appliquent ces textes.

More details are available here.

By Poomintr Sooksripaisarnkit

Lecturer in Maritime Law, Australian Maritime College, University of Tasmania

Introduction

On 14th February 2024, the High Court of Australia handed down its judgment in Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4. The case has ramifications on whether a foreign arbitration clause (in this case, the London arbitration clause) would be null and void under the scheme of the Carriage of Goods by Sea Act 1991 (Cth) which makes effective an amended version of the International Convention on the Unification of Certain Rules of Law relating to Bills of Lading, Brussels, 25 August 1924 (the “Hague Rules”). The argument focused on the potential effect of Article 3(8) of the Amended Hague Rules, which, like the original version, provides:

“Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to, or in connection with, goods arising from negligent, fault, or failure in the duties and obligations provided in this article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect. A benefit of insurance in favour of the carrier or similar clause shall be deemed to be a clause relieving the carrier from liability”.

BRIEF FACTS OF THE CASE

The case involved a carriage of head-hardened steel rails from Port of Whyalla in South Australia to the Port of Mackay in Queensland. When the goods arrived at the Port of Mackay, it was discovered that goods were in damaged conditions to the extent that they could not be used, and they had to be sold for scrap. A bill of lading issued by the carrier, BBC, containing the following clauses:

“3. Liability under the Contract

• Unless otherwise provided herein, the Hague Rules contained in the International Convention for the Unification of Certain Rules Relating to Bills of Lading, dated Brussels the 25th August 1924 as enacted in the country of shipment shall apply to this Contract. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply. In respect of shipments to which there are no such enactments compulsorily applicable, the terms of Articles I-VIII inclusive of said Convention shall apply….”

4. Law and Jurisdiction

Except as provided elsewhere herein, any dispute arising under or in connection with this Bill of Lading shall be referred to arbitration in London. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) terms. The arbitration Tribunal is to consist of three arbitrators, one arbitrator to be appointed by each party and the two so appointed to appoint a third arbitrator. English law is to apply”.

The carrier, BBC, commenced arbitration in London according to Clause 4 of the bill of lading. Carmichael, on the other hand, commenced proceeding before the Federal Court of Australia to claim damages. Carmichael sought an anti-suit injunction to restrain the arbitration proceeding. BBC, on the other hand, sought a stay of the Australian proceeding.

ARGUMENTS IN THE HIGH COURT OF AUSTRALIA

Carmichael contended that Clause 4 should be null and void because of Article 3(8) of the Amended Hague Rules. First, there is a risk that London arbitrators will follow the position of the English law in Jindal Iron and Steel Co Ltd and Others v Islamic Solidarity Shipping Co. Jordan Inc (The “Jordan II”) [2004] UKHL 49 and found the carrier’s duty to properly stow and care for the cargo under Article 3(2) of the Hague Rules to be a delegable duty, as opposed to an inclination of the court in Australia, as shown in the New South Wales Court of Appeal decision in Nikolay Malakhov Shipping Co Ltd v SEAS Sapfor Ltd (1998) 44 NSWLR 371. Secondly, there is a risk that the London arbitrators would construe Clause 3 as incorporating Article I-III of the Hague Rules, instead of the Amended Hague Rules of Australia. This would result in reducing the package limitation defence. Thirdly, there would be more expenses and burdens on the part of Carmichael to have to pursue its claim against BBC in London.

REASONING OF THE HIGH COURT OF AUSTRALIA

Whether Article 3(8) is applicable, the High Court of Australia found as a matter of principle that the court must consider all circumstances (being past, present, or future) whether a contractual clause relieves or lessen the carrier’s liability. The standard of proof to be applied in considering such circumstances is the civil standard of the balance of probability. The court drew support from section 7(2) and section 7(5) of the International Arbitration Act 1974 (Cth), as the parties relied on this piece of legislation in seeking an anti-suit injunction or a stay of the proceeding. In section 7(2), the language is that the court “shall” stay the proceedings if a matter is capable of settlement by arbitration. In section 7(5), again, there is a word “shall” in that the court shall not stay the proceedings under subsection (2) if the court finds the arbitration agreement to be null and void. As the High Court of Australia emphasised in paragraph 25 of its judgment: “For an Australian court to ‘find’ an arbitration agreement null and void … it must be able to do so as a matter of law based on agreed, admitted, or proved fact”. Such proof is on the balance of probabilities pursuant to the Evidence Act 1995 (Cth). Moreover, the Amended Hague Rules in Australia ultimately has the nature of an international convention. The interpretation of which must be done within the framework of the Vienna Convention on the Law of Treaties 1969 which requires that relevant rules of international law must be considered. The burden of proof which international tribunals usually adopt is that of “preponderance of evidence”, which is no less stringent than that of the balance of probabilities. This supports what the High Court of Australia found in paragraph 32 of its judgment that “references to a clause ‘relieving’ a carrier from liability or ‘lessening such liability’ are to be understood as referring to facts able to be found in accordance with the requisite degree of confidence…” Also, the High Court of Australia found the overall purpose of the Hague Rules is to provide a set of rules which are certain and predictable. Any attempt to apply Article 3(8) to the circumstances or facts which are not agreed or admitted or proved would run against the overall objective of the Hague Rules.

A reference was also made to an undertaking made by BBC before the Full Court of the Federal Court of Australia that it would admit in the arbitration in London that the Amended Hague Rules would be applicable to the dispute and BBC did consent to the Full Court of the Federal Court of Australia to make declaration to the same effect. It was argued by Carmichael that the undertaking and the subsequent declaration should not be considered because they came after BBC had commenced the arbitration pursuant to Clause 4. However, the High Court of Australia, emphasised in paragraph 59 that the agreed or admitted or proved facts at the time the court is deciding whether to engage Article 3(8) are what the courts consider. The effect of the undertaking and the declaration are that it should be amounted to the choice of law chosen by the parties within the meaning of section 46(1)(a) of the Arbitration Act 1996 and should effectively supersede the choice of the English law in Clause 4 of the bills of lading.

All the risks pointed out by Carmichael are unreal. First, the indication of the New South Wales Court of Appeal in the Nikolay Malakhov case in respect of Article 3(2) of the Hague Rules was not conclusive as it was obiter only. There is no clear legal position on this in Australia. Secondly, the language of Clause 3 is that Article I-VIII are to be applied if there are “no such enactments”. But the country of shipment in this case (namely Australia) enacts the Hague-Rules. Moreover, there is no ground for any concern in light of the undertaking and the declaration. Lastly, Article 3(8) of the Amended Hague Rules concerns with the carrier’s liability. It is not about the costs or burdens in the enforcement process. Hence, the Australian proceeding is to be stayed.

COMMENT

As the High Court of Australia emphasised, whether Article 3(8) of the Amended Hague Rules is to be engaged depending upon facts or circumstances at the time the court is deciding the question. This case was pretty much confined to its facts, as could be seen from the earlier undertaking and the declaration which the High Court of Australia heavily relied upon. Nevertheless, the door is not fully closed. There is a possibility that the foreign arbitration and the choice of law clause can be found to be null and void pursuant to Article 3(8) if the facts or circumstances are established on the balance of probabilities that the tribunals will apply the foreign law which has the effect of relieving or lessening the carrier’s liabilities.