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Guest post by Professor Yeo Tiong Min, SC (honoris causa), Yong Pung How Chair Professor of Law, Yong Pung How School of Law, Singapore Management University

Merck Sharp & Dohme Corp (formerly known as Merck & Co, Inc) v Merck KGaA (formerly known as E Merck) [2021] 1 SLR 1102, [2021] SGCA 14 (“Merck”), noted previously, is a landmark case in Singapore private international law, being a decision of a full bench of the Court of Appeal setting out for the first time in Singapore law the limits of transnational issue estoppel. It was also the beginning of the deconstruction of the common law on the legal effect to be given to foreign judgments. Without ruling on the issue, the court was not convinced by the obligation theory as the rationale for the recognition of foreign in personam judgments under the common law, preferring instead to rest the law on the rationales of transnational comity and reciprocal respect among courts of independent jurisdictions. There was no occasion to depart from the traditional rules of recognition of in personam judgments in that case, and the court did not do so. However, the shift in the rationale suggested that changes could be forthcoming. While this sort of underlying movements have generally led to more expansive recognition of foreign judgments (eg, in Canada’s recognition of foreign judgments from courts with real and substantial connection to the underlying dispute), the indications in the case appeared to signal a restrictive direction, with the contemplation of a possible reciprocity requirement as a necessary condition for recognition of a foreign judgment, and a possible defence where the foreign court had made an error of Singapore domestic law.

The Republic of India v Deutsche Telekom AG [2023] SGCA(I) 10, another decision of a full bench of the Court of Appeal, provides strong hints of possible future reconstruction of the common law in this important area. While in some respects it signals a possibly slightly more restrictive common law approach towards the recognition of foreign judgments, in another respect, it portends a potentially radical expansion to the common law on foreign judgments.

Shorn of the details, the key issue in the case was a simple one. The appellant had lost the challenge in a Swiss court to the validity of an award against it made by an arbitral tribunal seated in Switzerland. The respondent then sought to enforce the award in Singapore. The question before the Singapore Court of Appeal was whether the appellant could raise substantially the same arguments that had been made before, and dismissed by, the Swiss court. The Court of Appeal formulated the key issue in two parts: (1) whether the appellant was precluded by transnational issue estoppel from raising the arguments; and (2) if not, then whether, apart from law of transnational issue estoppel, legal effect should be given to the judgment from the court of the seat of the arbitration. The second question, in the words of the majority, was:

“whether the decision of a seat court enjoys a special status within the framework for the judicial supervision and support of international arbitration, that is established by the body of law including the Convention on the Recognition and Enforcement of Foreign Arbitral Awards …, legislation based on the UNCITRAL Model Law on International Commercial Arbitration …, and case law.”

On the first issue, the court considered that the principles of transnational issue estoppel were applicable in the case. The majority (Sundaresh Menon CJ, Judith Prakash JCA, Steven Chong JCA, and Robert French IJ) summarised the principles in Merck as follow:

“(a) the foreign judgment must be capable of being recognised in this jurisdiction, where issue estoppel is being invoked. Under the common law, this means that the foreign judgment must:

(i) be a final and conclusive decision on the merits;

(ii) originate from a court of competent jurisdiction that has transnational jurisdiction over the party sought to be bound; and

(iii) not be subject to any defences to recognition;

(b) there must be commonality of the parties to the prior proceedings and to the proceedings in which the estoppel is raised; and

(c) the subject matter of the estoppel must be the same as what has been decided in the prior judgment.”

The court found on the facts that all the elements were satisfied in the case, and thus the appellant was precluded by the Swiss judgment from raising the challenges to the validity of the award in the enforcement proceedings in Singapore.

Mance IJ in a concurring judgment agreed that transnational issue estoppel applied to preclude the appellant from raising the challenges in this case. The application of issue estoppel principles to the international arbitration context is relatively uncontroversial from the perspective of private international law. There was one important distinction, however, between the majority and the concurring judgment on this point. The majority confined its ruling on transnational issue estoppel to a foreign judgment from the seat court, whereas Mance IJ considered transnational issue estoppel to be generally applicable to all foreign judgments in the international commercial arbitration context. Thus, in the view of the majority, the seat court may also enjoy special status for the purpose of transnational issue estoppel. It is not clear what this special status is in this context. At the highest level, it may be that transnational issue estoppel does NOT apply to foreign judgments that are not from the seat court, so that the only foreign judicial opinions that matter are those from the seat court. This will be a serious limitation to the existing common law. At another level, it may be that the rule that the prior foreign judgment prevails in the case of conflicting foreign judgments must give way when the later decision is from the seat court. This would modify the rule dealing with conflicting foreign judgments by giving a special status to judgments from the seat court.

Another notable observation of the majority judgment on the first issue lies in its formulation of the grounds of transnational jurisdiction, or international jurisdiction, ie, the connection between the party sought to be bound and the foreign court that justifies the recognition of the foreign judgment under Singapore private international law. Traditionally, it has been assumed that the common law of Singapore recognises four bases of international jurisdiction: the presence, or residence of the party in the foreign territory at the commencement of the foreign proceedings; or where the party had voluntarily submitted, or had agreed, to the jurisdiction of the foreign court. The majority in this case recognised four possible grounds: (a) presence in the foreign territory; (b) filing of a claim or counterclaim; (c) voluntary submission; and (d) agreement to submit to the foreign jurisdiction. Filing of claims and counterclaims amount to voluntary submission anyway. The restatement of the grounds omit residence as a ground of international jurisdiction. This is reminiscent of a similar omission in the restatement by the UK Supreme Court in Rubin v Eurofinance SA [2013] 1 AC 236, [2012] UKSC 46, which has since been taken as authoritative for the proposition that residence is not a basis of international jurisdiction under English common law. Notwithstanding that the Court of Appeal did not consider the Singapore case law supporting residence as a common law ground, it may be a sign that common law grounds for recognising foreign judgments may be shrinking. This may not be a retrogression, as international instruments and legislation may provide more finely tuned tools to deal with the effect of foreign judgments.

The key point being resolved on the first issue, there was technically no need to rule on the second issue. Nevertheless, the court, having heard submissions on the second issue from counsel (as directed by the court), decided to state its views on the matter. The most controversial aspect of the judgment lies in the opinion of the majority that, beyond the law of recognition of foreign judgments and transnational issue estoppel, there should be a “Primacy Principle” under which judgments from the seat of the arbitration have a special status in the law, as a result of the common law of Singapore developing in a direction that advances Singapore’s international obligations under the transnational arbitration framework. The majority summarised its provisional view of the proposed Primacy Principle in this way:

“By way of summary the Primacy Principle may be understood as follows, subject to further elaboration as the law develops:

(a) An enforcement court will act upon a presumption that it should regard a prior decision of the seat court on matters pertaining to the validity of an arbitral award as determinative of those matters.

(b) The presumption may be displaced (subject to further development):

(i) by public policy considerations applicable in the jurisdiction of the enforcement court;

(ii) by demonstration:

(A) of procedural deficiencies in the decision making of the seat court; or

(B) that to uphold the seat court’s decision would be repugnant to fundamental notions of what the enforcement court considers to be just;

(iii) where it appears to the enforcement court that the decision of the seat court was plainly wrong. The latter criterion is not satisfied by mere disagreement with a decision on which reasonable minds may differ. (As to where in the range between those two extremes, an enforcement court may land on, is something we leave open for development.) “

The Primacy Principle may be invoked if the case falls outside transnational estoppel principles. It may also be invoked even if the case falls within the transnational estoppel principles, if the party relying on it prefers to avoid the technical arguments relating to the application of transnational issue estoppel. However, the principle is only applicable if there is a prior judgment from the court of the seat; parties are not expected proactively to seek declarations from that court.

The Primacy Principle is said to build on the international comity in the specific context of international arbitration, by requiring an enforcement court to treat a prior judgment of a seat court as presumptively determinative of matters decided therein relating to the validity of the award, thus ensuring finality and avoiding inconsistency in judicial decisions, and promoting the effectiveness of international commercial arbitration. The majority also pointed out that the principle is aligned with the principle of party autonomy because the seat is generally expressly or impliedly selected by the parties themselves.

Mance IJ pointed out that the exceptions to the proposed Primacy Principle are very similar to the defences to issue estoppel, except that the exception based on the foreign decision being plainly wrong appears to go beyond the law on issue estoppel. In the elaboration of the majority, this refers to perversity (in the sense of the foreign court disregarding a clearly applicable law, and not merely applying a different choice of law) or a sufficiently serious and material error. In Merck, the Court of Appeal had suggested that a material error of Singapore law may be a ground for refusing to apply issue estoppel, but in principle it is difficult to differentiate between errors of Singapore law and errors generally, insofar as the principle is based on the constitutional role of the Singapore court to administer justice and the rule of law. So, this limitation in the Singapore law of transnational issue estoppel may well be in a state of flux.

Mance IJ disagreed with the majority on the need for, or desirability of, the proposed Primacy Principle. In his view, the case law supporting the principle are at best ambiguous, and there was no need to give any special status to the court of the seat of the arbitration under the law. In Mance IJ’s view, transnational issue estoppel, in the broader sense to include abuse of process (sometimes called Henderson estoppel (Henderson v Henderson (1843) 3 Hare 100; 67 ER 313), under which generally a party should not be allowed to raise a point that in all the circumstances it should have raised in prior litigation), is an adequate tool to deal with foreign judgments, even in the context of international arbitration. The rules of transnational issue estoppel are already designed to deal with the problem of injustice caused by repeated arguments and allegations in the context of international litigation. There is force in this view.  Barring defences, the transnational jurisdiction requirement for the recognition of judgments from the seat court under the common law does not usually raise practical issues because generally the seat would have been expressly or impliedly chosen by the parties and they are generally taken to have impliedly submitted to the jurisdiction of the court of the seat for matters relating to the supervision of the arbitration. Mance IJ also expressed concern about the uncertainty of a presumptive rule subject to defences where the contents of both the rule and defences are still unclear.

The contrasting views in the majority and the concurring judgments on the proposed Primacy Principle are likely to generate much debate and controversy. The Primacy Principle is said to be aligned with the territorialist view of international arbitration found in many common law countries and derived from the primary role that the court in the seat of the arbitration plays in the transnational arbitration framework. Thus, this view is highly unlikely to find sympathy with proponents of the delocalised theory. It will probably be controversial even in common law countries, where reactions similar to that of Mance IJ may not be unexpected.

Under the obligation theory, in personam judgments from a foreign court are recognised because the party sought to be bound has conducted himself in a certain manner in relation to the foreign proceedings leading to the judgment. On this basis, it is difficult to justify the special status of a judgment from the seat court within the principles of recognition or outside it. However, it would appear that, after Merck, while the obligation theory may not have been rejected in toto, it has not been accepted as the exclusive explanation for the recognition of in personam judgments under the common law. On the basis of transnational comity and reciprocal judicial respect, there is much that exists in the current common law that may be questioned, and much more unexplored terrain as far as the legal effect of foreign judgments not falling within the traditional common law rules of recognition is concerned. For example, the UK Supreme Court in Rubin v Eurofinance SA [2013] 1 AC 236, [2012] UKSC 46 had rejected that there were any special rules that apply to in personam judgments arising out of the insolvency context. This line of thinking has already been rejected in Singapore in the light of its adoption of the UNCITRAL Model Law on Cross-Border Insolvency (Re Tantleff, Alan [2022] SGHC 147; [2023] 3 SLR 250), but it remains to be seen what new rules or principles of recognition will be developed.

The idea that the judgment of the court of the seat (expressly or impliedly) chosen by the parties should have some special status in the law on foreign judgments has some intuitive allure. There is a superficial analogy with the position of the chosen court under the Hague Convention on Choice of Court Agreements. As a general rule (though not exclusively), the existence and validity of an exclusive choice of court agreement would be determined by the law applied by the chosen court, and a decision of the chosen court on the validity of the choice of court agreement cannot be questioned by the courts of other Contracting States. The Convention has no application to the arbitration context. However, at least under the common law, the seat of arbitration is invariably expressly or impliedly chosen by the parties, and it will usually carry the implication that the parties have submitted to the jurisdiction of the supervisory court for matters relating to the regulation of the arbitration process. It is also not far-fetched to infer that reasonable contracting parties would intend that court to have exclusive jurisdiction over such matters (C v D [2007] EWCA Civ 1282; [2008] 1 Lloyd’s Rep 239), Hilton International Manage (Maldives) Pvt Ltd v Sun Travels & Tours Pvt Ltd [2018] SGHC 56). But this agreement cannot extend to issues being litigated at the enforcement stage, because naturally, contracting parties would want the freedom to enforce putative awards wherever assets may be found, and the enforcement stage issues frequently involve issues relating to the validity of the arbitration agreement and the award. This duality is the system contemplated under the New York Convention. Whatever other justification there may be for the special status of judgments of the court of the seat, it is hard to find it within the principle of party autonomy.

The University of Luxembourg will host a conference on Enforcing Arbitral Awards against Sovereigns: Recent Trends and Practice on 10 January 2024. The conference is organised in partnership with Bonn, Steichen and Partners.

The conference will be divided in four parts. The first will discuss the influence of EU law on enforcement. The second will address new issues related to enforcement such as assignment of awards and the influence of the right to property. The third will be concerned with issues relating to attachment of assets, including sovereign immunities and asset tracing. The fourth will discuss States’ international obligations to comply with arbitral awards.

Speakers will include Gary Born (WilmerHale), Nicholas Lawn (Lalive), Ana Stanic (E&U Law Limited), Gilles Cuniberti (University of Luxembourg), Yael Ribco Borman (Gaillard Banifatemi Shelbaya Disputes), Javier Garcia Olmedo (University of Luxembourg), Fabio Trevisan (Bonn Steichen), Laura Rees-Evans (Fietta LLP), Thierry Hoscheit (Supreme Court, Luxemburg), Paschalis Paschalidis (Arendt & Medernach), Philippa Webb (Twenty Essex/ King’s College London), Michaël Schlesinge (Archipel), Luciana Ricart (Curtis, Mallet-Prevost, Colt & Mosle LLP), Crina Baltag, FCIArb (Stockholm University), Cameron Miles (3 Verulam Buildings), Manuel Casas (Twenty Essex), Loukas Mistelis (Queen Mary University of London/Clyde & Co), Matthew Happold (University of Luxembourg), Laure-Hélène Gaicio (Bonn Steichen).

The full programme can be found here. The event is free of charge, but registration is necessary (here).

The recently published Volume 433 of the Collected Courses of the Hague Academy of International Law includes a course by Salim Moollan (Brick Court Chambers) on Parallel Proceedings in International Arbitration.

The issue of parallel proceedings in international arbitration has been a long-standing and classic problem within the field. Despite this, there have been major developments in practice since the last major academic analysis of the issue in 2006 by the International Law Association and by the Geneva Colloquium on Consolidation of Proceedings in Investment Arbitration, led by Professor Kaufmann-Kohler. With this in mind, now is an opportune moment to re-examine the issue through a fresh theoretical lens and renewed focus on finding practical solutions.

The blog of the European Association of Private International Law has hosted some 300 posts in the course of 2023: 79 of them reported on (and analysed) recent case law, while 64 informed about (and discussed) recent normative developments, at the domestic, European and international level (in 2022, the blog published 75 posts on case law and 38 posts on legislative developments).

Several posts were published to inform the members of the Association, and more generally the blog readers, about the activities of the Association (such as the position papers adopted by the working groups created to discuss the 1980 Child Abduction and the 1996 Child Protection Conventions, and the UNIDROIT draft principles on digital assets) and the Association’s events, including those planned to take place in 2024, including the EAPIL Winter School in Como and the EAPIL Conference in Wroclaw.

More than 60 posts were written by guests, which marks a slight increase compared with 2022. The editors are eager to receive more. So, please, potential guests, don’t hesitate to share with us your submissions! Just write an e-mail to blog@eapil.org.

The number of visitors has increased (+7%), and so has the number of subscribers: there are now more than 700 users who are regularly notified by e-mail of new posts. Our LinkedIn page, where the blog posts are re-published, has also attracted an increased number of “impressions”.

The most read posts, among those published in 2023, include Martina Mantovani’s Private International Law and Climate Change: the “Four Islanders of Pari” Case, Pietro Franzina’s Italian Authorities Claim Jurisdiction to Protect Indi Gregory After English High Court Ruled Life Support Should Be Withdrawn, and Matthias Lehmann’s UNIDROIT Principles on Digital Assets and Private Law Adopted.

Blog readers come from all over the world, with Europe, unsurprisingly, being the continent from which the majority of readers are established. Specifically, Italy, Germany, Spain, the United Kingdom, the Netherlands, France and Belgium are at the top of the list. The United States is the non-European country where most of the blog readers are based.

Globally, the posts published in 2023 attracted 115 comments. The most commented posts include Erik Sinander’s Qatari State Immunity for Employment Court Procedure in Sweden, Gilles Cuniberti’s London Steamship: English Court Declines to Follow Ultra Vires CJEU Judgment, Matthias Lehmann’s Club La Costa (Part 1): Group-of-Companies Doctrine and Proof of Corporate Domicile under Brussels I bis, and Ugljesa Grusic’s Are English Courts Becoming the World’s Arbitral Policeman?

Many thanks, on behalf of the editorial team of the EAPIL blog, to all those who read our posts (and react to them with comments), those who draw our attention to recent developments and upcoming events, and those who contribute to our work as guests!

And all the best for the New Year!

Keynote: Justice and injustice in foreign judgments – does terminology matter?

Professor Andrew Dickinson, Oxford University Law School

Other confirmed speakers include:

Arbitration

Professor Luke Nottage, University of Sydney:”Compliance with Alternative Dispute Resolution commitments in international commercial and investment agreements”

Dr. Yang Liu, East China University of Political Science and Law: Unilateral Sanctions as Defenses in Investment Arbitration

Ganesh Sahathevan, Centre For Industrial Research, Melanesian Mambefor Corporation: Remote Sensing Evidence in The Resolution Of Disputes Concerning Non-Compliant Carbon Credit Products

Dr Dan Xie, East China University of Political Science and Law: “The Judicial Interpretation and Application of Due Process Defence under the New York Convention: The Experience of Chinese Courts”

Litigation

Professor Vivienne Bath, University of Sydney

Professor Tao Du, East China University of Political Science and Law: The HCCH Conventions in Chinese Courts

Dr Yan Li, Seoul National University Law Research Institute: “Declining Jurisdiction in China and South Korea: A Mixture of Civil and Common Law Culture in Private International Law?”

Dr Thu Thuy Nguyen, Hanoi Law University: The Barriers for Recognition and Enforcement of Foreign Judgments in Vietnam

International commercial transactions

Professor Bing Ling, University of Sydney

Dapo Wang, Shanghai Jiaotong University: Economic Sanctions and the Trade-Compliance Dilemmas for Chinese Companies

Dr Lemuel Didulo Lopez, RMIT University: “Choice of Forum Clause and the Protection of Weaker Parties: Lessons from Asia”

Stefano Dominelli, University of Genoa, Italy: “Once a Trader, Always a Trader” – Or Maybe not: The EU Law Shaping of the Law of State Immunities

Conference registration information can be found here.

If you are a speaker or a member of the University of Sydney’s staff, student body, or alumni, please reach out to law.events@sydney.edu.au to obtain a promotion code.

by Du Tao*/Xie Keshi

On September 1, 2023, the fifth session of the Standing Committee of the 14th National People’s Congress deliberated and adopted the Decision of the Standing Committee of the National People’s Congress on Amending the Civil Procedure Law of the People’s Republic of China, which will come into force on January 1, 2024. This amendment to the Civil Litigation Law implements the Party Central Committee’s decision and deployment on coordinating domestic rule of law and foreign-related rule of law, strengthening foreign-related rule of law construction, and among the 26 amendments involved, the fourth part of the Special Provisions on Foreign-related civil Procedure is exclusive to 19, which is the first substantive amendment to the foreign-related civil procedure since 1991.

Expand the jurisdiction of Chinese courts over foreign-related civil cases

The type of cases the court has jurisdiction over has been revised from “disputes due to contract or other property rights” to “foreign-related civil disputes other than personal status.” Besides, other appropriate connections have been added as the basis of jurisdiction, from the original enumeration to the combination of enumeration and generalization. In addition to providing jurisdiction based on choice-of-court agreements, this revision also adds two categories of exclusive jurisdiction which are the establishment, dissolution, and liquidation of legal persons or other organizations established in the territory of the People’s Republic of China and proceedings brought in connection with disputes relating to the examination of the validity of intellectual property rights granted in the territory of the People’s Republic of China.

The above amendments have further expanded the jurisdiction of Chinese courts over foreign-related civil litigation cases, which makes it more convenient for Chinese citizens to sue and respond to lawsuits in Chinese courts and better safeguard the legitimate rights and interests of Chinese citizens and enterprises.

Add provisions on parallel litigation

First, this revision adds a general provision for parallel litigation and a mechanism for coordinating jurisdictional conflicts. Where the parties are involved in the same dispute, one party institutes an action in a foreign court, while the other party institutes an action in a people’s court, or one party institutes an action in both a foreign court and a people’s court, the people’s court which has jurisdiction in accordance with this law may accept the action. If the parties enter into an exclusive jurisdiction agreement and choose a foreign court to exercise jurisdiction, which does not violate the provisions of this law on exclusive jurisdiction and does not involve the sovereignty, security, or public interest of the People’s Republic of China, the people’s court may rule not to accept.

Second, this revision adds a new suspension and restoration mechanism for civil and commercial cases accepted by foreign courts after being accepted by Chinese courts. After a people’s court accepts a case in accordance with the provisions of the preceding article, if a party applies to the people’s court in writing for suspending the proceedings on the ground that the foreign court has accepted the case before the people’s court, the people’s court may render a ruling to suspend the proceedings, except under any of the following circumstances: (1) The parties, by an agreement, choose a people’s court to exercise jurisdiction, or the dispute is subject to the exclusive jurisdiction of a people’s court. (2) It is evidently more convenient for a people’s court to try the case. If a foreign court fails to take necessary measures to try the case or fails to conclude the case within a reasonable time limit, the people’s court shall resume proceedings upon the written application of the party. If an effective judgment or ruling rendered by a foreign court has been recognized, in whole or in part, by a people’s court, and the party institutes an action against the recognized part in the people’s court, the people’s court shall rule not to accept the action, or render a ruling to dismiss the action if the action has been accepted.

Third, this revision adds a new jurisdiction objection mechanism in the principle of inconvenient court. Where the defendant raises any objection to jurisdiction concerning a foreign-related civil case accepted by a people’s court under all the following circumstances, the people’s court may rule to dismiss the action and inform the plaintiff to institute an action in a more convenient foreign court: (1) It is evidently inconvenient for a people’s court to try the case and for a party to participate in legal proceedings since basic facts of disputes in the case do not occur within the territory of the People’s Republic of China. (2) The parties do not have an agreement choosing a people’s court to exercise jurisdiction. (3) The case does not fall under the exclusive jurisdiction of a people’s court. (4) The case does not involve the sovereignty, security, or public interest of the People’s Republic of China. (5) It is more convenient for a foreign court to try the case. If a party institutes a new action in a people’s court since the foreign court refuses to exercise jurisdiction over the dispute, fails to take necessary measures to try the case, or fails to conclude the case within a reasonable period after a people’s court renders a ruling to dismiss the action, the people’s court shall accept the action.

The amendments above conform to the international trend, integrate and optimize and further improve the mechanism for handling jurisdictional conflicts, and provide a clearer and more authoritative normative guidance for the people’s courts to coordinate handling jurisdictional conflicts in foreign-related civil and commercial cases in the future.

Revise relevant regulations on service of foreign-related documents

First, the limitation that an agent ad litem must have the right to accept service on his behalf in the original Civil Procedure Law is deleted, and it is clear that as long as the agent ad litem entrusted by the person served in this case, they should accept service, so as to curb the phenomenon of parties evading service.

Second, this revision adds the provision of “Documents are served on a wholly-owned enterprise, a representative office, or a branch office formed by the recipient within the territory of the People’s Republic of China or a business agent authorized to receive the service of documents”.

Third, this revision adds the provision of “[i]f the recipient who is a foreign natural person or a stateless person serves as the legal representative or principal person in charge of a legal person or any other organization formed within the territory of the People’s Republic of China and is a co-defendant with such a legal person or other organization, documents are served on the legal person or other organization”.

Fourthly, this revision adds the provision of “[i]f the recipient is a foreign legal person or any other organization, and its legal representative or principal person in charge is within the territory of the People’s Republic of China, documents are served on its legal representative or principal person in charge”.

Fifthly, this revision adds the provision of “documents are served in any other manner agreed upon by the recipient unless it is prohibited by the law of the country where the recipient is located”.

Last but not least, the time for the completion of service of a foreign-related announcement is shortened from three months after the date of announcement in the original Civil Procedure Law to 60 days after the date of issuance of the announcement, so that the starting point of service of a foreign-related announcement is more clear and the period of the announcement is shorter.

The above amendments moderately penetrate the veil of a legal person or an unincorporated organization and provide for alternative service between the relevant natural person and the legal person or unincorporated organization, helping enhance the possibility of successful service and the coping of difficult service in foreign-related cases.

Add provisions on extraterritorial investigation and evidence collection

On one hand, amended China’s Civil Procedure Law continues the requirement that Chinese courts conduct extraterritorial investigation and evidence collection in accordance with international treaties or diplomatic channels. On the other hand, it adds other alternative ways for Chinese courts to conduct extraterritorial investigation and evidence collection, that is, if the laws of the host country do not prohibit it, Chinese courts can adopt the following methods for investigation and evidence collection: (1) If a party or witness has the nationality of the People’s Republic of China, the diplomatic or consular missions of the People’s Republic of China in the country where the party or witness is located may be entrusted to take evidence on his behalf; (2) Obtaining evidence through instant messaging tools with the consent of both parties; (3) Obtaining evidence in other ways agreed by both parties.

This revision enriches the methods of extraterritorial investigation and evidence collection of Chinese courts and brings more convenience to the judicial practice of extraterritorial evidence collection in foreign-related civil litigation, thus raising the enthusiasm of judicial personnel for extraterritorial evidence collection and improving the trial efficiency and quality of foreign-related civil cases.

Improve the basic rules on the recognition and enforcement of extraterritorial judgments, rulings, and arbitral awards

Amended Chinese Civil Procedure Law provides the circumstances under which a judgment or order with extraterritorial effect is not recognized or enforced and the suspension and restoration mechanism of litigation involving disputes of foreign effective judgments and rulings applied for recognition and enforcement that have been accepted by Chinese courts. Furthermore, it revises the expression of extraterritorial arbitration award determination and expands the scope of Chinese courts to apply for recognition and enforcement of extraterritorial effective arbitration award.

Conclusion

This revision of China’s Civil Procedure Law focuses on improving the foreign-related civil procedure system. On one hand, the mature provisions in previous judicial interpretations, court meeting minutes, and other documents have been elevated to law, providing a more solid legal basis for the court’s jurisdiction and service of foreign-related cases. On the other hand, it gives a positive response to conflicts in judicial practice and differences in interpretation of existing rules, introduces consensus in practice into legislation, reduces various obstacles for courts to exercise jurisdiction over foreign-related cases, conforms to the trend of international treaties and practices, and clarifies the specific scope of application of various rules. It will better protect the litigation rights and legitimate rights and interests of Chinese parties, better safeguard China’s national sovereignty, security and development interests, and better create a market-oriented, law-based, and internationalized first-class business environment.

*Dr. Du Tao, Professor at the East China University of Political Science and Law, Shanghai, China

On 14 December 2023, AG Emiliou delivered his opinion in case C‑90/22 (‘Gjensidige’ ADB), which is about Brussels I bis, more precisely Articles 71 and 45, and the Convention on the Contract for the International Carriage of Goods by Road (CMR).

The context: A “dispute arose following a theft of cargo during its transportation from the Netherlands to Lithuania. The insurer concerned claimed compensation from the carrier and it did so in Lithuania, relying on a choice-of-court agreement contained in the contract of carriage.

5. However, at that point in time, the carrier had already initiated judicial proceedings in the Netherlands, with the aim of establishing that its liability in this particular context was limited. Before granting that claim, the Netherlands court affirmed its jurisdiction by applying one of the jurisdictional rules contained in the Convention on the Contract for the International Carriage of Goods by Road (‘the CMR’), despite the choice-of-court agreement referred to above, which, from the point of view of that court, could not exclude the other (alternative) grounds of jurisdiction set out in the CMR.

6. Following recognition by the Lithuanian courts of that judgment, [Gjensidige, an insurance company that had insured the consignment and made an insurance payment] filed an appeal in cassation before the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania, Lithuania), the referring court. It argues that recognition of the judgment of the Netherlands court is at odds with Regulation No 1215/2012, as that regulation establishes, in principle, the exclusivity of the jurisdiction resulting from a choice-of-court agreement.

7. In those circumstances, the referring court wonders, first, which rules of jurisdiction apply. It notes that Regulation No 1215/2012 confers primacy of application to rules laid down in a specialised international convention, such as the CMR. Nevertheless, it doubts whether such precedence may permit a choice-of-court agreement to be disregarded, in view of the enhanced protection accorded to those agreements by Regulation No 1215/2012. Second, it seeks clarification on whether this increased protection must result in the recognition of the judgment of the Netherlands court being refused. Although Regulation No 1215/2012 does not expressly allow for such an approach, the referring court enquires whether broader interpretation thereof is called for so as to safeguard, in essence, the intentions of the parties, as documented in the choice-of-court agreement at issue”.

The opinion: “Article 45(1)(a) and (e)(ii) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that the grounds for the refusal of recognition set out therein do not apply to a situation in which the court of origin established its jurisdiction on the basis of one of several rules contained in a specialised convention, within the meaning of Article 71 of Regulation No 1215/2012, which include – but do not classify as exclusive – a choice-of-court agreement, and when the court of origin was not the court designated by the choice-of-court agreement concluded by the parties concerned.

Moreover, Article 45(1)(a) of Regulation No 1215/2012 must be interpreted as meaning that an error, when established, as to the determination of the applicable law cannot, per se, lead to the recognition of a judgment being refused on the ground that it is contrary to the public policy of the State addressed”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=280634&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

The Court of Justice delivered on 23 November 2023 its judgment in case C‑321/22 (ZL, KU, KM v Provident Polska S.A.), which is about Article 7 Directive 93/13 (notably):

“Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding a national law which, as interpreted in the case-law, requires, in order for a consumer’s action for a declaration that an unfair term in a contract concluded with a seller or supplier is unenforceable to be upheld, proof of an interest in bringing proceedings, where that interest is regarded as being absent where the consumer may bring an action for the recovery of sums unduly paid, or where the consumer may raise that unenforceability as part of his or her defence to a counter-claim brought against him or her by that seller or supplier on the basis of that term.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=280068&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

AG Campos Sánchez-Bordona delivered on 23 November 2023 his opinion in case C‑634/22, which is about Article 19 TEU and the abolition of a specialised Court (in that case a criminal one but the opinion seems equally applicable to a civil and commercial Court, hence its inclusion on this blog).

The opinion: “The second subparagraph of Article 19(1) TEU must be interpreted as meaning that it does not preclude a reform of the judicial system of a Member State according to which a specialised criminal court is abolished and its jurisdiction transferred to a different, ordinary, court, and which provides at the same time that the criminal cases being dealt with in the abolished court and in which a hearing has been held will continue to be heard by the formation that had jurisdiction until that time.

Nor does it preclude, in the context of that reform of the judicial system, the reassignment of the judges of the abolished court to other courts with the same rank, on the basis of objective criteria free of any suspicion of arbitrariness”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=juridiction%2Bp%25C3%25A9nale%2Bsuppression%2B&docid=280082&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10883304#ctx1

The Court of Justice delivered on 16 November 2023 its judgment in case C‑497/22 (EM v Roompot Service BV), which is about Article 24 Brussels I bis.

The context: “On 23 June 2020, EM, made a booking, via the internet on the website of Roompot Service, for a bungalow at the Waterpark Zwartkruis holiday park, situated at Noardburgum (Netherlands), for the period from 31 December 2020 to 4 January 2021 for a group of nine people who were members of more than two different households.

7 The booking was for a total rental price of EUR 1 902.80, which EM paid in full, and included the provision of bed linen and cleaning at the end of the stay

8 The water park has bungalows located directly on a lake, each with a separate jetty. Boats and canoes can be hired for an additional charge.

9 Roompot Service informed EM by email, prior to arrival and at her request, that the waterpark was open during the period of her booking despite the COVID-19 pandemic, but that, due to the rules in force in the Netherlands, it was only possible for her to stay in the accommodation with her family and a maximum of two people from another household in one bungalow. Roompot Service also offered EM the opportunity to rebook her stay for a later date.

10 Since EM did not stay at the accommodation and did not rebook her stay, she was repaid the amount of EUR 300 by Roompot Service.

11 EM brought an action against Roompot Service before the Amtsgericht Neuss (Local Court, Neuss, Germany) seeking repayment of the remainder of the rental price, in the amount of EUR 1 602.80, plus interest and costs. Roompot Service contested the international jurisdiction of the German courts to hear such an action.

12 By judgment of 1 October 2021, the Amtsgericht Neuss (Local Court, Neuss) dismissed the action as unfounded.

13 EM lodged an appeal before the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany), the referring court.

14 That court is uncertain whether Netherlands courts have exclusive international jurisdiction to hear the case in the main proceedings on the basis of the first subparagraph of Article 24(1) of Regulation No 1215/2012”.

The decision: “The first subparagraph of Article 24(1) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that a contract concluded between an individual and a tourism professional by which the latter lets for short-term personal use holiday accommodation situated in a holiday park operated by that professional and including, in addition to the letting of that accommodation, the performance of a range of services in return for a lump sum, does not come within the concept of ‘tenancies of immovable property’ within the meaning of that provision”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=279761&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

AG Collins delivered on 16 November 2023 his opinion in joined cases C‑345/22 to C‑347/22 (Maersk A/S), which are about Article 25 Brussels I bis.

The context: “Each of these actions is a claim for damages on foot of the partial loss of goods transported by sea. They raise the issue as to the conditions under which a jurisdiction clause in a contract for the carriage of goods by sea evidenced by a bill of lading may be enforced against a third party that subsequently acquired those goods, thereby becoming a third-party holder of that bill of lading”.

The opinion: “(1) Article 25(1) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that a jurisdiction clause agreed between a carrier and a shipper which is incorporated in a bill of lading is enforceable against a third-party holder of the bill of lading if, on acquiring that bill, it succeeded to the shipper’s rights and obligations. It is for the court seised of the matter to answer that question in accordance with national substantive law as established by applying its rules of private international law. The rule in that provision that the substantive validity of a jurisdiction clause is to be assessed in accordance with the law of the Member State of the court or courts designated in that clause does not govern the enforceability of a jurisdiction clause incorporated in a bill of lading against a third-party holder of that bill.

(2) Article 25(1) of Regulation No 1215/2012 must be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods by sea concluded between a carrier and a shipper that acquires the bill of lading evidencing that contract is subrogated to all the shipper’s rights and obligations, with the exception of the jurisdiction clause incorporated therein, which is enforceable against it only where it negotiated that clause individually and separately”.

The source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=279783&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

The Court of Justice delivered on 9 November 2023 its judgment in case C‑598/21 (SP, CI v Všeobecná úverová banka a.s.), which is about Article 7 Directive 93/13 (notably):

“Article 3(1), Article 4(1), Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of Articles 7 and 38 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation under which the judicial review of the unfairness of an acceleration clause contained in a consumer credit agreement does not take account of the proportionality of the option given to the seller or supplier to exercise his or her right under that clause, in the light of criteria relating, in particular, to the extent of the consumer’s failure to fulfil his contractual obligations, such as the amount of the instalments which have not been paid in relation to the total amount of the credit and the duration of the contract, and to the possibility that the implementation of that clause may result in the seller or supplier being able to recover the sums due under that clause by selling, without any legal process, the consumer’s family home”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=279485&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

AG Pikamäe delivered on 26 October 2023 his opinion in joined cases C‑554/21, C‑622/21 and C‑727/21 (Hann-Invest), which are about Article 19 TEU:

“The second subparagraph of Article 19(1) of the Treaty on European Union must be interpreted as not precluding national rules and practices which, at the deliberation stage of court proceedings at second instance concerning a dispute that has been the subject of a decision by the judicial panel seised, provide for:

–      the referral to an enlarged formation by the president of the court or the president of a specialised section, in the light of that decision and where the consistency of the court’s case-law may be or is being undermined, for the purpose of the adoption, by majority vote, of a common position as to the general and abstract interpretation of the applicable legal rule, previously a matter of debate between the parties, which the formation initially seised must take into account for the purpose of resolving the dispute as to the substance;

–      the informing of the president of the court or the president of a specialised division, by a judge responsible for monitoring the case-law of the court, in a situation where the consistency of that case-law may be or is being undermined because the formation seised has maintained its original decision and, pending the adoption of the abovementioned legal position, the suspension of that formation’s decision ruling on the dispute and its notification to the parties”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=279141&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

Maxence Rivoire (PhD Candidate at the University of Cambridge and an incoming Lecturer in French Law at King’s College London) made available on SSRN his paper on ‘The Law Applicable to the Arbitrability of Registered Intellectual Property Rights’. In 2022 the paper won the Nappert Prize in International Arbitration awarded by McGill University.

The abstract reads as follows:

Although the power of an arbitral tribunal is subject to the will of the parties, some legal systems exclude certain types of intellectual property (IP) disputes from arbitration. This problem is commonly known as ‘arbitrability’. But what law, if any, should international arbitrators apply to arbitrability? This article addresses this question with a special focus on registered IP rights. Part I rejects the conflict rules that have traditionally been suggested to govern arbitrability, including the application of the law governing the arbitration agreement and that of the arbitral seat (lex loci arbitri). Part II argues that arbitrators should instead recognize the existence of a transnational principle whereby contractual, infringement, and ownership disputes are arbitrable. However, due to persisting uncertainty and differences among jurisdictions on the arbitrability of issues relating to the validity of registered IP rights, arbitrators should still give effect to domestic rules in this area. Acknowledging that non-arbitrability rules aim to safeguard the policy objectives of substantive IP laws and to protect the exclusive jurisdiction of national courts. Part III argues that the law applicable to the arbitrability of validity issues should be the law of the country for which IP protection is sought (lex loci protectionis), which corresponds to the law of the country where the IP right is registered. After examining the justification of this principle, Part III also discusses its practical implementation, notably where the dispute concerns IP rights registered in different countries, and where the lex loci protectionis clashes with the lex loci arbitri.

The author proposes a useful framework for international arbitrators who have to deal with conflict of laws relating to the arbitrability of registered IP rights such as patents and trademarks.

Guest post by Janaína Albuquerque, International Lawyer and Mediator

The Inter-American Court of Human Rights (IACtHR) has just published their first ever judgment on an international child abduction case in Córdoba v. Paraguay, which concerns the illicit removal of a child who was habitually resident in Argentina. The applicant and left-behind parent, Mr. Arnaldo Javier Córdoba, claimed that Paraguay violated his human rights by failing to enforce the return order and ensuring the maintenance of contact with his son. At the time of the abduction, the child was about to reach 2 years of age and the taking parent relocated, without the father’s consent, to Paraguay.

Both Argentina and Paraguay are Contracting States to the American Convention on Human Rights (or Pact of San José) and the American Declaration of the Rights and Duties of Man, which are the main instruments assessed by the Inter-American Court and Commission. Paraguay has also accepted the Court’s jurisdiction in 1993. Differently from the European Court of Human Rights (ECtHR), applicants cannot present a request directly to the Inter-American Court. The petition must be firstly examined by the Inter-American Commission on Human Rights (IACHR), which will, then, issue recommendations or refer the case to the Court.

Apart from the abovementioned human rights instruments, the Inter-American framework also comprises the 1989 Convention on the International Return of Children. In accordance with Article 34, the referred treaty prevails over the 1980 Hague Convention on the Civil Aspects of International Child Abduction where the States involved are both Members of the Organisation of American States (OAS), unless otherwise stipulated by a bilateral agreement.

Although similar in content, the Inter-American Convention differs substantially from the Hague mechanism, particularly regarding jurisdiction. For instance, Article 6 states that it is the Contracting State in which the child was habitually resident before the removal or retention that has jurisdiction to consider a petition for the child’s return, indicating that the Contracting State in whose territory the abducted child is or is thought to be only has jurisdiction if the left-behind parent choses so and in urgent cases. Another core change is found in Article 10, which prescribes that, if a voluntary return does not take place, the judicial or administrative authorities shall forthwith meet with the child and take measures to provide for his or her temporary custody or care. The exceptions to the return are in a different order than the Hague Convention, but remain relatively the same in practice, with minor changes to the wording of the provisions.

In Córdoba v. Paraguay, the applicant filed the petition on 30 January 2009. During the time that the merits were being assessed by the Commission, the applicant presented two requests for precautionary measures and only the second one was adopted by the Resolución nº 29/19 on 10 May 2019. The case was finally referred to the Court 13 years after it was initiated, on 7 January 2022. Public hearings were held on 28 April 2023 and Reunite (United Kingdom), as well as the legal clinics of the Catholic University Andrés Bello (Venezuela) and the University of La Sabana (Colombia) participated in the proceedings as Amicus Curiae.

Restitution efforts in Paraguay

As regards the restitution efforts, the left-behind parent seized the Argentinian Central Authority on 25 January 2006, 4 days after the abduction took place. The dossier was received by the Paraguayan counterpart on 8 February 2006. Thereafter, judicial cases were brought both to the Juvenile Courts of Buenos Aires, in Argentina, and of Caacupé, in Paraguay. The return proceedings were carried out in the latter.

The taking parent argued the grave risk exception due to a history of physical and psychological domestic violence. Nevertheless, the Caacupé court ordered the return of the child. The taking parent appealed, claiming, furthermore, that the child suffered from a permanent mental condition. The Court of Appeal and the Supreme Court of Paraguay confirmed the first judgment. A ‘restitution hearing’ was scheduled to take place on 28 September 2006, but the taking parent did not attend.

Paraguayan authorities conducted searches for the taking parent and the child between the remainder of 2006 and 2009, which were unsuccessful. The child was eventually located by INTERPOL on 22 May 2015, still in Paraguay, at the city of Atyrá. The taking parent was preventively detained and custody was granted to the maternal aunt. The Juvenile court also ordered a protective measure in order to establish a supervised and progressive contact arrangement with the father and the paternal family. The child refused to go near the left-behind parent, and the psychological team of the court concluded that it would be impossible to enforce the return order.

On 7 March 2017, the Public Defender’s Office filed a request to establish the child’s residence in Paraguay, which was accepted by the Juvenile court under the argument that 11 years had passed since the return order was issued and that other rights had originated in the meantime. Additionally, it was decided that, given the outcomes of the previous attempts, no contact would be established between the left-behind parent and the child. The Paraguayan Central Authority appealed and reverted the decision in regard to visitation, where it was stipulated that the left-behind parent should come to Paraguay to meet with the child. This arrangement was, then, confirmed by the Court of Appeal and, subsequently, by the Supreme Court.

In 2019, the Ministry of Childhood and Adolescence of Paraguay asked for an evaluation of the situation of the child. It was informed that the child had been receiving monthly psychological treatment; that he was living with his aunt and her husband; and that the mother visited him daily. Contrastingly, between 2015 and 2018, 4 visits had been organised with the father, in which 3 were accompanied by the paternal grandmother. A hearing was finally held on 23 May 2019, where the child expressed to the court that he did not want to be ‘molested’ by his father nor did he desire to maintain a bond with him.

Merits

On the merits, the IACtHR (hereinafter, ‘the Court’) noted that it would assess potential violations to Articles 5 (Right to Humane Treatment), 8 (Right to a Fair Trial), 11 (Right to Privacy), 17 (Rights of the Family), 19 (Rights of the Child) and 25 (Right to Judicial Protection) of the Pact of San José (‘the Pact’) in light of the application of the 1989 Inter-American Convention. References were also made to the complementary incidence of the United Nations Convention on the Rights of the Child, the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention, as well as the General Comments nº 12 and 14 of the Committee on the Rights of the Child.

Initially, the Court remarked that, at the time of the case’s referral by the Commission, the child was about to turn 18 and that both the Inter-American and Hague Conventions were only applicable until the child reached the age of 16. It was noted, with concern, that the child had not been heard during most of the proceedings and that Article 12 of the UNCRC had been disregarded. As the child manifested that he did not feel like a victim and had no interest in pursuing his father’s claim, the Court decided to only assess the human rights violations suffered by Mr. Córdoba.

Regarding the violations of judicial guarantees and protection, the Court analysed the right to a reasonable timeframe and the State’s obligation to enforce judgments issued by competent authorities, accentuated by the particular condition of urgency required in proceedings involving children. An explicit reference was made to Maumousseau and Washington v. France inasmuch as the ECtHR concluded that, in international child abduction cases, the status quo ante must be re-established as quickly as possible to prevent the consolidation of illegal situations.

As the judicial proceedings for the return were concluded within 8 months, the Court did not find that there had been a violation of Article 8.1 of the Pact. However, Article 25.2.c prescribed that the State’s responsibility did not end when a judgment had been reached and that public authorities may not obstruct the meaning nor the scope of judicial decisions or unduly delay their enforcement (Mejía Idrovo v. Ecuador and Federación Nacional de Trabajadores Marítimos y Portuarios v. Perú). References to Maire v. Portugal and Ignaccolo-Zenive v. Romania from the ECtHR were also made to reinforce that such delays brought irreparable consequences to parent-child relationships. It had not been reasonable that the State of Paraguay, for 9 years, was not able to locate a child that regularly attended school and received care from the public health services. After the child was found, custody was immediately granted to the maternal aunt and contact with the father was hindered throughout the subsequent proceedings. Furthermore, the precautionary measures awarded by the Commission to instate a detailed visitation plan had not been enforced as a result of the COVID-19 pandemic, which contributed to the permanent deterioration of paternal bonds. Hence, the lack of diligence and morosity of the Paraguayan authorities resulted in a violation of Article 25.2.c of the Pact of San José.

In relation to the personal integrity, private and family life, and family protection, the Court focused on the assessment of Articles 11.2 and 17.1. It was firstly stated that arbitrary or abusive interferences to family life from third parties or the State are strictly forbidden, and that the latter must take positive and negative actions to protect all persons from this kind of conduct, especially if they affect families (Ramírez Escobar y otros v. Guatemala and Tabares Toro y otros v. Colombia). Secondly, it was asserted that the separation of children from their families should be exceptional and, preferably, temporary (Opinión Consultiva OC-17/02, Opinión Consultiva OC-21/14, Fornerón e hija v. Argentina and López y otros v. Argentina), emphasizing that the child must remain in their family nucleus as parental contact constitutes a fundamental element of family life (Dial et al. v. Trinidad y Tobago and Personas dominicanas y haitianas expulsadas v. República Dominicana). The Court clarified that effective family protection measures favour the development and strengthening of the family nucleus and that, in contexts of parental separation, the State must guarantee family reunification to prevent unduly estrangement (K. and T. v. Finland, Jansen v. Norway and Strand Lobben and Others v. Norway).

The Court concluded that the lack of diligence and exceptional promptness required by the circumstances resulted in a rupture of paternal bonds. Moreover, the reconnection efforts were excessively delayed without providing significant advances or conditions to enable the improvement of the family relationship on the paternal side. Therefore, Paraguay had not only breached Articles 11.2 and 17, but also Article 5 for putting the applicant in a permanent state of anguish that resulted in a violation of his personal integrity.

Lastly, the Court stated that States are encouraged to adopt all necessary provisions in their legal systems to ensure the adequate implementation of international treaties and improve their operation. Even though it was observed that Paraguay had enacted internal regulations, they had not yet entered into force when the facts of the case unravelled. Consequently, Articles 1.1 and 2 of the Pact of San José had also been violated.

Reparations

One of the keys aspects of the Inter-American Court’s judgments is that they thoroughly establish resolution points that must be individually satisfied. The State will send periodic reports to the Court specifying what measures have been taken to fulfil the decision, for as long as it takes, until the case is considered to be fully resolved.

In Córdoba v. Paraguay, the Court determined:

1. The payment of psychological and/or psychiatric treatment to Mr Córdoba;
2. The publication of the summary of the judgment in the officialgazette and in a media outlet with wide national circulation;
3. The adaptation of the domestic framework through the adoption of legislation that incorporates the standards set out in the judgment;
4. The establishment of a database to cross-reference information on internationally abducted children, which comprises all public systems that record data on people, such as social security, education, health and reception centres;
5. The creation of a communication network to process entries of internationally abducted children whose whereabouts are unknown and send search alerts for institutions involved in their care;
6. The accreditation of a training aimed at public servants of the judicial system and officials of the Ministry of Childhood and Adolescence on the issues appertaining to internationally abducted children and the need to safeguard their right to family life. The State must also indicate to which officials such training was addressed, the number of persons who effectively participated, and whether it was instituted as a permanent programme; and
7. The payment of the amounts set out in the judgement in terms of material and moral damages, costs and expenses, and reinstatement of the costs to the Court’s victims’ legal aid fund.

Final observations

International child abduction has been a long-awaited addition to the Inter-American portfolio in its intersection between international human rights law and international family law. The fact that Córdoba is the first decision to reach the Court does not mean that human rights violations seldom happen within American States in such cases, but it undoubtedly reveals that the pathway to reach an international judgment is long. Because the Commission must refer the cases to the Court, it will take time before extensive case-law is developed on the topic. Nonetheless, the decision represents an advance in many aspects, especially for establishing a set of standards amongst Caribbean and Latin American countries, which are the ones who majorly ratified the Pact of San José and accepted the Court’s jurisdiction.

It must also be noted that, despite there being allegations by the taking parent against the left-behind parent of domestic violence, little was mentioned in regard to the evaluation of grave risk of harm to the physical and psychological well-being of the child by the Paraguayan authorities and if this interfered in any way with the applicant’s rights. Many references were made to the Guide of Good Practice of the 1980 Hague Conventions and the ECtHR case-law, yet this assessment seems to have been ignored by the IACtHR. As remarked in X. v. Latvia, “the [ECtHR] reiterates that while Article 11 of the [1980] Hague Convention does indeed provide that the judicial authorities must act expeditiously, this does not exonerate them from the duty to undertake an effective examination of allegations made by a party on the basis of one of the exceptions expressly provided for, namely Article 13 (b) in this case”. Additionally, the HCCH Guide to Good Practice on Article 13 (1) (b) states in paragraph 37 that “(…) past incidents of domestic or family violence may, depending on the particular circumstances, be probative on the issue of whether such a grave risk exists”. The exceptions displayed on Article 13 (1) (b) and (2) of the 1980 Hague Convention are both reflected on Article 11 of the 1989 Inter-American Convention, which arguably means that more attention could have been granted to the analysis of potential situations of danger and the vehement refusal of the child to maintain any sort of contact with the father.

Even though the Court decided to respect the child’s wishes and refrained from examining the human rights violations that affected him, it must not be disregarded that the Córdoba judgment lacks a best interests assessment and that it might take some time before another international child abduction case gets a Commission referral. Apart from the grave risk analysis, it would have been enlightening to better understand how the Court perceived a potential violation of the child’s right to be heard, including an assessment of howthe child was heard, as well as the other children related rights safeguarded by the Inter-American normative instruments, including the protection of private and family life, that were afflicted.

Biset Sena Güneş, senior research fellow at the Max Planck Institute for Comparative and International Private Law, has accepted the invitation of the editors of the blog to present her recent book, titled ‘Succession Upon Death: A Comparison of European and Turkish Private International Law’, written in English, and published by Mohr Siebeck.

This book offers a comparative analysis of the European Succession Regulation, the Turkish PILA of 2007, and the Turkish–German Succession Treaty of 1929, with a particular focus on conflict-of-laws and procedural issues which may arise in Turkish–EU Successions. The aim of the analysis is to discuss to what extent decisional harmony can be achieved in Turkish–EU successions. While the European Succession Regulation has been extensively covered in the literature, non-EU or “third-state” perspectives on the regulation have not received the same degree of attention. In adopting such a perspective on the EU Succession Regulation, the book allows for in-depth analysis of possible cases between the EU Member States and Turkey, which from the perspective of succession is an important “third” state due to the significant number of Turkish nationals residing in the EU.

The first chapter of the book elaborates on the practical relevance of Turkish–EU successions and provides the historical background as well as a general overview of the European Succession Regulation, the Turkish PILA of 2007, and the Turkish–German Succession Treaty of 1929. The second chapter addresses conflicts of laws in Turkish–EU successions both in terms of intestate and testamentary succession. Chapter 2 also undertakes a comparative analysis, in particular on the following issues: the principle of unity or scission; the connecting factors (nationality, habitual residence, and thesitus); the option to enter a professio iuris; matters within the scope of the law applicable to succession; the application of renvoi; and possible examples of overriding mandatory rules and ordre public in Turkish–EU successions. Finally, the third chapter analyses procedural issues in Turkish–EU succession conflicts. First, Chapter 3 compares the respective rules on jurisdiction and discusses possible conflicts of jurisdiction in the Turkish–EU context as well as the tools for avoiding such conflicts (especially choice of court agreements, lis pendens, and limitation of proceedings). It then deals with two questions as regards the European Certificate of Succession, namely whether one can be issued for Turkish nationals in Germany within the scope of the Turkish–German Succession Treaty, and whether a European Certificate of Succession issued in a Member State can be recognised in Turkey.

The comparative analysis demonstrates that the provisions of the German–Turkish Succession Treaty (Art. 20(14) and (15)), now-outdated reflections of the time at which the treaty was drafted, in practice create certain problems for persons who fall under them. But the differences between the rules of this treaty and the Turkish PILA are not as significant a factor for those affected as the differences between it and the EU Succession Regulation. Like the German–Turkish treaty regime (Art. 20(14) and (15)), the Turkish PILA adopts nationality as a connecting factor and has retained its traditional understanding regarding the law applicable to and jurisdiction over succession matters involving real property, at least when situated in its territory (Art. 20 and 43). The treaty regime thus still guarantees a level of coordination for succession cases which may arise between Turkey and Germany even though its rules are inconsistent with the Succession Regulation’s unitary approach towards succession and its main connecting factor of habitual residence (especially Art. 4 and Art. 21(1)).

In Turkish–EU successions not covered by the German–Turkish treaty, on the other hand, the decisional harmony which once could have been ensured through the adoption of the connecting factors of nationality and the situs now seems distorted, because the Succession Regulation (especially Art. 21(1)) revolves around the connecting factor of habitual residence. Some level of harmony in such cases can now be provided only through renvoi (under Art. 34(1) of the Regulation) and a professio iuris made by the deceased (under Art. 22 of the Regulation), although such a choice will not be valid in Turkey.

Harmony does not seem to exist in such cases at the procedural level, either. Potential jurisdictional conflicts between Turkey and Member State courts may arise especially where the deceased was habitually resident or domiciled in Turkey at the time of death and left assets both in Turkey and in a Member State. This is because Turkish courts in such a case will be competent to hear the case pursuant to Art. 43 of the Turkish PILA because the last domicile of the deceased was in Turkey. At the same time, the courts of the Member State in which the assets of the estate are located will also be competent to rule on the succession as a whole (even on assets located in Turkey) in accordance with Art. 10(1) of the Succession Regulation. Notwithstanding this, neither jurisdiction seems to have tools for coordinating jurisdiction (e.g., a mechanism for choice of court agreements or to stay proceedings based on a lis pendens) to eliminate such conflicts in the Turkish–EU context. The only provision which may be helpful in this regard is Art. 12 of the Succession Regulation, on the limitation of proceedings. But Art. 12 only applies on motion of the parties and even then on a discretionary basis.

The long-awaited Regulation (EU) 2023/2844 of the European Parliament and of the Council of 13 December 2023 on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation (Digitalisation Regulation or e-justice Regulation) has been published today in the Official Journal of the European Union. For more information on the EU internal procedure, click here.

The Digitalisation Regulation lays down the rules for the use of electronic communication between competent authorities in judicial cooperation procedures in civil, commercial and criminal matters, and for the use of electronic communication between natural or legal persons and competent authorities in judicial procedures in civil and commercial matters (Art. 1). This is to be accomplished, in particular, through the decentralised IT system (Art. 3) and the European electronic access point (Art. 4).

It also foresees the use of videoconferencing or other distance communication technology in civil and commercial matters, without prejudice to specific provisions regulating this topic under the Regulation No 2020/1783 (Evidence Regulation), Regulation No 861/2007 and Regulation No 655/2014 (Art. 5). In addition, it contemplates provisions on electronic signatures and electronic seals (Art. 7) and legal effects of electronic documents (Art. 8).

The Digitalisation Regulation does not apply to the Evidence Regulation and the Regulation No 2020/1784 (Service Regulation) as those regulations “already provide for specific rules on digitalisation of judicial cooperation” (recital 17). However, it does introduce some changes to the Service Regulation, some of which are the following (see Article 24):

• Article 12, paragraph 7 is amended by the following:

1. in Article 12, paragraph 7 is replaced by the following:

‘7.   For the purposes of paragraphs 1 and 2, the diplomatic agents or consular officers, in cases where service is effected in accordance with Article 17, and the authority or person, in cases where service is effected in accordance with Article 18, 19, 19a or 20, shall inform the addressee that the addressee may refuse to accept the document and that either form L in Annex I or a written declaration of refusal must be sent to those agents or officers or to that authority or person respectively.’

• A new Article 19a on Electronic service through the European electronic access point: 

Article 19a

Electronic service through the European electronic access point

1.   The service of judicial documents may be effected directly on a person who has a known address for service in another Member State through the European electronic access point established under Article 4(1) of Regulation (EU) 2023/2844 of the European Parliament and of the Council […], provided that the addressee has given prior express consent to the use of that electronic means for serving documents in the course of the legal proceedings concerned.

2.   The addressee shall confirm the receipt of the documents with an acknowledgment of receipt, including the date of the receipt. The date of service of documents shall be the date specified in the acknowledgment of receipt. The same rule shall apply in the case of service of refused documents which is remedied in accordance with Article 12(5).

(4) in Article 37, the following paragraph is added:

‘3.   Article 19a shall apply from the first day of the month following the period of two years from the date of entry into force of the implementing acts referred to in Article 10(3)(a) of Regulation (EU) 2023/2844.’

For more information about the digitalisation of the Service and Evidence Regulations, including the decentralised IT system for those Regulations, see our previous posts here and here. 

Interestingly, Recital 21 allows for the use of software in maintenance obligations – other than national IT systems – , which has not been developed by the European Commission: “For matters relating to maintenance obligations, Member States could also use software developed by the Hague Conference on Private International Law (iSupport).”

Article 10 of the Digitalisation Regulation sets out when the Implementing Acts must be  adopted by the Commission. For ease of reference, the numbers of the relevant instruments in civil and commercial matters are indicated. 

“(a) 17 January 2026 for the legal acts listed in points 3 and 4 of Annex I Legal acts in the area of judicial cooperation in civil and commercial matters] [and the legal acts listed in points 1, 10 and 11 of Annex II [Legal acts in the area of judicial cooperation in criminal matters];

• Regulation (EC) No 1896/2006
• Regulation (EC) No 861/2007

(b) 17 January 2027 for the legal acts listed in points 1, 8, 9 and 10 of Annex I and the legal acts listed in points 5 and 9 of Annex II;

• Council Directive 2003/8/EC
• Regulation (EU) No 606/2013
• Regulation (EU) No 655/2014
• Regulation (EU) 2015/848

(c) 17 January 2028 for the legal acts listed in points 6, 11 and 12 of Annex I and the legal acts listed in points 2, 3, 4 and 8 of Annex II; and

• Regulation (EU) No 650/2012
• Council Regulation (EU) 2016/1103
• Council Regulation (EU) 2016/1104

(d) 17 January 2029 for the legal acts listed in points 2, 5, 7 and 13 of Annex I and the legal acts listed in points 6 and 7 of Annex II.” 

• Regulation (EC) No 805/2004
• Council Regulation (EC) No 4/2009
• Regulation (EU) No 1215/2012
• Council Regulation (EU) 2019/1111

As per Article 26, this Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 1 May 2025.

Of great importance is that Article 26(3) of this Regulation specifies the applicability of Articles 3 and 4. In particular, it provides that Articles 3 and 4 “shall apply from the first day of the month following the period of two years from the date of entry into force of the corresponding implementing acts, referred to in Article 10(3), establishing the decentralised IT system for each of the legal acts listed in Annexes I and II.” As a result, this will vary depending on the legal instrument (see above).

Very exciting times ahead!

In a post published on 8 June 2023, I introduced Zubaydah v Foreign, Development and Commonwealth Office, a case heard by the UK Supreme Court on 14 and 15 June.

Abu Zubaydah, the claimant (respondent in the appeal), has brought a tort claim against the UK government (appellants in the appeal), alleging that MI5 and MI6 officers made requests, from their London offices, to their CIA counterparts to interrogate him in circumstances where they knew or ought to have known of his rendition, unlawful imprisonment and torture by the CIA. The central issue was the law applicable to the claim, specifically focusing on the disputed application of the escape clause from section 12 of the Private International Law (Miscellaneous Provisions) Act 1995. The facts of the case, the claim, the central issue and the parties’ arguments are presented in my post of 8 June.

On 20 December 2023, the court delivered its judgment, dismissing the appeal in a four to one decision (Lord Lloyd-Jones, Lord Kitchin, Lord Burrows and Lord Stephens; Lord Sales dissenting). The court held that English law governed the claim, and not the laws of Afghanistan, Lithuania, Morrocco, Poland and Thailand and the law in force in Guantanamo Bay (“Six Countries”).

Interestingly, the court found that both the High Court and the Court of Appeal had erred in their approaches to section 12. The Court of Appeal, in particular, erred by focusing solely on the defendants’ conduct said to have occurred in England. It should have also taken into account the CIA’s conduct ([80], [81]). Hence, the Supreme Court conducted its own choice-of-law analysis.

The connections between the torts and the Six Countries were held to be weak for five reasons. First, Zubaydah was involuntarily present in the Six Countries ([75], [93]). Second, the defendants were entirely indifferent to Zubaydah’s location ([76], [94]). Third, Zubaydah was rendered to and detained in de facto black legal holes ([77], [95]). Fourth, he was held in six such facilities in six countries ([96]). Fifth, his gaolers and torturers were not agents of the Six Countries, but of a third country, ie the US ([97]).

Conversely, the connections between the torts and England were deemed strong for three reasons. First, the defendant is the UK government ([99]). Second, the relevant events occurred partly in England and for the perceived benefit of the UK ([78], [100]). Third, the defendants acted “in their official capacity in the purported exercise of powers conferred under the law of England and Wales… The defendants are all emanations of the UK Government and were at all material times subject to the criminal and public law of England and Wales.” ([101]; similarly [78])

Considering all these factors, the court held that it was substantially more appropriate for the applicable law to be English law.

In my post of 8 June, I noted that this case holds importance for private international law for two reasons.

Firstly, it highlights the role of private international law in holding the executive accountable and vindicating fundamental rights, particularly in cases involving alleged wrongs arising out of the external exercise of British executive authority. In my book on the topic, Torts in UK Foreign Relations, I argue that there are no compelling theoretical justifications for the application of foreign law in general to tort claims arising out of the external exercise of British executive authority. I further argue that the English courts should apply English law to tort claims arising out of the external exercise of British executive authority and reserve the application of foreign law only for certain issues, such as the lawfulness of the relevant conduct. The main reason for advocating the application of English tort law is that, together with English criminal and public law, it is fine-tuned for assuring the accountability of British public authorities. Foreign tort law is unlikely to be able to substitute for English tort law.

The Supreme Court essentially adopts this argument by placing decisive weight on the connections between the torts and England. It reinforces this point in relation to the misfeasance claim by noting, at ([62]), that “there is scope for suggesting, for example, that on the presumed facts of this case, it is a constitutional imperative that the applicable law in relation to the tort of misfeasance in public office in relation to the acts and omissions of the UK Services should be the law of England and Wales”.

Secondly, the parties and the court relied on reasonable/legitimate expectations as important factors in the choice-of-law process. Zubaydah’s involuntary presence in the Six Countries meant that he did not have a reasonable expectation that his situation or activities might be governed by the local laws ([75], [93]). Furthermore, the defendants’ indifference to Zubaydah’s location meant that the defendants never expected or intended their conduct to be judged by reference to the local laws ([94]). It is by partial reliance on this fundamental principle underlying the application of foreign law that the court held that foreign laws did not apply.

The Supreme Court judgment is important for two more reasons. It clarifies that an appellate court can interfere with an evaluative judgment under sections 11 and 12 of the 1995 Act if there is shown to be a clear error of law or the judge has reached a conclusion not reasonably open to them ([57]). Furthermore, it sheds light on the handling of accessory liability claims in choice of law. Such claims involve a secondary wrongdoer defendant and a primary wrongdoer third party. The court held that the “factors which connect a tort or delict” with a country, which the courts should consider when applying the escape clause from section 12, cover not only the allegedly wrongful conduct of the secondary wrongdoer (UK Services) but also that of the primary wrongdoer (the CIA) ([80], [81]). Although this judgment was made in the context of the 1995 Act, these aspects of its reasoning can easily be extrapolated to other choice of law contexts.

Among all Arab and Muslim-majority countries, Morocco stands out as the only State to have ratified seven (7) HCCH Conventions. This number of ratifications, comparable to that of other prominent countries such as United States or Japan, speaks volumes about Morocco’s commitment to being an integral part of the global network of jurisdictions benefiting from the work of the HCCH on the harmonisation of private international and fostering mutual legal cooperation. The decisions of the Moroccan Supreme Court also reflect these efforts as the Court has shown its willingness to oversight the proper application of the HCCH Conventions (on the application of the 1980 HCCH Convention, see here). The Supreme Court Ruling No. 71 of 7 February 2023 briefly commented on here is another notable example related to the application of the 1996 HCCH Child Protection Convention. The case is also particularly interesting because it concerns the establishment of a kafala under Moroccan law for the purpose of relocating the child in another Contracting State (France in casu).

The case  

The petitioner, a single woman living and working in France (seemingly Moroccan but it is not it is not clear whether she has dual citizenship status), submitted a petition on 31 January 2020 to the Family Division of the First Instance Court (hereafter ‘FIC’) of Taroudant, in which she expressed her intention to undertake guardianship of an abandoned child (A) – born on 13 May 2019 – by means of kafala. The FIC approved the petition by a decree issued on 12 March 2020. Subsequently, the Public Prosecutor filed an appeal against the FIC’s decree with the Court of Appeal of Agadir. On 20 January 2021, the Court of Appeal decided to overturn the FIC’s decree with remand on the ground that the FIC had failed to comply with the rules laid down in article 33 of the 1996 HCCH Child Protection Convention, in particular the obligatory consultation in case of cross-border placement of the child.

The petitioner appealed to the Supreme Court arguing that:

1) The petitioner satisfied all the stipulated requirements under Moroccan law for the kafala of an abandoned child (notably the Law No. 15.01 of 13 June 2002 on the kafala of abandoned children, in particular article 9);

2) The Public Prosecutor failed to invoke the 1996 HCCH Convention during the proceedings before the FIC;

3) While article 33 might be applicable to countries such as Belgium and Germany, where kafala is not recognized, the situation differs in France, making the application of article 33 irrelevant in this context;

4) the Moroccan legislature, through the Law of 2002, has established the procedure for monitoring the well-being of children placed under kafala abroad, along with the ensuring the fulfilment of the caregiver’s o obligations. Additionally, the 2002 Law on kafala was adopted within an international context dedicated to the protection of children, as reflected in the ratification by Morocco in 1993 of UN Child Convention of 1989.

The Ruling

The Supreme Court dismissed the appeal by ruling as follows:

“Pursuant to article 33 of the HCCH 1996 Child Protection Convention – ratified by Morocco on 22 January 2003 […]:

(1)  If an authority having jurisdiction under Articles 5 to 10 contemplates the placement of the child in a foster family or institutional care, or the provision of care by kafala or an analogous institution, and if such placement or such provision of care is to take place in another Contracting State, it shall first consult with the Central Authority or other competent authority of the latter State. To that effect it shall transmit a report on the child together with the reasons for the proposed placement or provision of care.

(2)  The decision on the placement or provision of care may be made in the requesting State only if the Central Authority or other competent authority of the requested State has consented to the placement or provision of care, taking into account the child’s best interests.

Therefore, since, according to the Constitution, the provisions of the [HCCH] Convention take precedence over the provisions of domestic law, including Law No. 15. 01 […], the Court of Appeal provided a sound justification for its decision when it relied on [Article 33] [which] mandates prior consultation with the central authority or other competent authority in France where the appellant resides and works, and considered that the failure of the FIC’s decree to comply with the requirements of [Article 33] constituted a violation of the law leading to its decision to overturn the kafala decree”.

Comment

The case is particularly important because, to the author’s knowledge, it is the first Supreme Court’s decision to apply the 1996 HCCH Child Protection Convention since its ratification by Morocco in 2002 (Royal Decree [Dhahir] of 22 January 2003 published in the Official Gazette of 15 May 2003). The Convention is often given as an example of successful accommodation of religious law in cross-border situations, since it not only specifically mentions kafala as a measure of protection of children, but also it “makes it possible for children from countries within the Islamic tradition to be placed in family care in Europe, for example, under controlled circumstances. (H van Loon, “The Accommodation of Religious Laws in Cross-Border Situations: The Contribution of the Hague Conference on Private International Law”, Cuadernos de Derecho Transnacional (2010) Vol. 2(1) p. 264).

In this regard, article 33 of the Convention plays a central role as it establishes a specific procedure for an obligatory prior consultation between the authorities of the State of origin and the authorities of the receiving State, the failure of which is sanctioned by refusal to recognise the kafala decree (Explanatory Report, para. 143, p. 593).  The Practical Handbook on the Operation of the HCCH 1996 Child Protection Convention qualifies the rules under article 33 as “strict rules which must be complied with before th[e] placement [of the child in a foster family or institutional care, or the provision of care by kafala or an analogous institution] can be put into effect” (para. 13.33, p. 151. Emphasis added).

In the case commented here, the Supreme Court meticulously adhered to the aforementioned guidelines. Firstly, the Court stood by its case law underscoring the primacy of international conventions, and in particular the HCCH Conventions, over domestic law (see e.g., Ruling No. 283 of 2 June 2015 (Case No. 443/2/1/2014), Ruling No. 303 of 28 July 2020 (Case No. 629/2/2/2018), both dealing with the HCCH 1980 Child Abduction Convention. On these cases, see here). Secondly, the Supreme Court upheld the Court of Appeal’s decision, asserting that the failure to use the procedure under article 33 of the 1996 HCCH Child Protection Convention warranted the overturning of the FIC’s kafala decree.

This aspect of the ruling holds particular significance as lower courts have not always consistently demonstrated sufficient awareness of Morocco’s obligations under the1996 HCCH Conventions. Indeed, some lower court decisions show that, sometimes, kafala decrees involving cross-border relocation of the child have been issued without mentioning or referring to the 1996 HCCH Convention (see e.g. Meknes Court of Appeal, Ruling No. 87 of 14 January 2013 granting kafala of a child to a Franco-Moroccan couple and allowing the couple to take the child out of Morocco. See also, the decision of Antwerp Court of Appeal of 16 May 2016 recognizing and declaring enforceable under Belgian domestic law a Moroccan kafala decree despite the fact that the procedure mandated by article 33 was not used in the State of origin). Moreover, Moroccan lower court decisions further indicate that the courts’ main concern has often centred around whether the child’s Islamic education and belief would be affected by the relocation of the child abroad (e.g. Meknes Court of Appeal, Ruling No. 87 of 14 January 2013 (ibid); idem, Ruling No. 19 of 7 January 2013 granting kafala of a Moroccan child to an American couple of Pakistani origins. On this issue in general, see Katherine E. Hoffman, “Morocco” in N. Yassari et al. (eds.), Filiation and Protection of Parentless Children (T.M.C. Asser, 2019) pp. 245ff).

Therefore, in deciding as it did, the Supreme Court emphasises the importance of respecting the procedure prescribed by article 33 before issuing a kafala decree involving cross-border placement. Compliance with this procedure ensures the recognition and enforcement of kafala decrees in all other Contracting States, thereby safeguarding the best interests of the child (The Practical Handbook, para. 13.33, p. 151).

The Spanish Association of Professors of International Law and International Relations  (AEPDIRI) is organising its VII Seminar on current issues in Private International Law on the topic “A Private International Law centred on the rights of individuals”. The seminar will take place at the Faculty of Law of the Universidad Pontificia Comillas (ICADE) in Madrid on 14 March 2024. The working language of the Seminar will be Spanish, but papers may also be presented in English or French.

The Seminar is intended to discuss topics related to the challenges posed by the rights of individuals from a broad perspective and from a Private International Law dimension, related to the following thematic lines: Current issues raised by the regulation of the capacity of persons in Private International Law; Current issues raised by the regulation of parentage in international situations; The rights of vulnerable persons from a Private International Law dimension; Challenges posed by digitisation to the rights of the individual in private cross-border situations; Due diligence obligations in value chains and Private International Law; Civil liability of multinationals for human rights violations; New challenges in Immigration Law; Migrants’ rights from a Private International Law perspective.

Researchers are welcome to submit presentations, which should cover one of the above-mentioned issues. Proposals should fit into the objectives of the Seminar and will be selected –for their oral presentation and/or publication- according to their relevance, quality and originality in respect to their contribution to the development of Private International Law studies.

Proposals should be submitted following the requirements of the Call (for more information, click here), no later than 15 January 2024, by email to: seminarioactualidad.dipr2024@aepdiri.org.

The submission of paper abstracts and participation in the Seminar is free of charge.