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The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. As always, it contains a number of insightful articles, this time also many in English language. Here are the authors, titles and abstracts:

Eva-Maria Kieninger, Ralf Michaels, Jürgen Basedow * 29.9.1949 † 6.4.2023

Felix Berner, Implizite Qualifikationsvorgaben im europäischen Kollisionsrecht (Implicit Characterization in European Conflict of Laws)

Most German scholars assume that problems of characterization in European choice of law are to be resolved by means of functional characterization. This essay challenges that assumption. Quite often, European choice-of-law rules themselves require a certain treatment of a characterization problem. This can follow from the rules or recitals of European regulations. In such cases, the required approach is more or less explicitly given. However, the required analysis can also be implicitly established, especially when it is derived from the purpose of certain choice-of-law rules. The approach towards characterization is of both practical and theoretical significance. In practice it determines the outcome of a characterization inquiry. On a theoretical level, the approach towards characterization embodies a conceptual change: The more rules on characterization there are, the more the classic problem of characterization is marginalized. Questions of characterization turn into questions of “simple statutory interpretation”.

Frederick Rieländer, Die Anknüpfung der Produkthaftung für autonome Systeme (The Private International Law of Product Liability and AI-related Harm)

As the EU moves ahead with extensive reform in all matters connected to artificial intelligence (AI), including measures to address liability issues regarding AI-related harm, it needs to be considered how European private international law (PIL) could contribute to the EU’s objective of becoming a global leader in the development of trust-worthy and ethical AI. To this end, the article examines the role which might be played in this context by the conflict-of-law rule concerning product liability in Article 5 of the Rome II Regulation. It shows that the complex cascade of connecting factors in matters relating to product liability, although providing legal certainty for market players, fails to consistently support the EU’s twin aim of promoting the up-take of AI, while ensuring that injured persons enjoy the same level of protection irrespective of the technology employed. Assessing several options for amending the Rome II Regulation, the article calls for the introduction of a new special rule concerning product liability which allows the claimant to elect the applicable law from among a clearly defined number of substantive laws. Arguably, this proposal offers a more balanced solution, favouring the victim as well as serving the EU’s policies.

Tim W. Dornis, Künstliche Intelligenz und internationaler Vertragsschluss (Artificial Intelligence and International Contracting)

Recently, the debate on the law applicable to a contract concluded by means of an AI system has begun to evolve. Until now it has been primarily suggested that the applicable law as regards the “legal capacity”, the “capacity to contract” and the “representative capacity” of AI systems should be determined separately and, thus, that these are not issues falling under the lex causae governing the contract. This approach builds upon the conception that AI systems are personally autonomous actors – akin to humans. Yet, as unveiled by a closer look at the techno-philosophical foundations of AI theory and practice, algorithmic systems are only technically autonomous. This means they can act only within the framework and the limitations set by their human users. Therefore, when it comes to concluding a contract, AI systems can fulfill only an instrumental function. They have legal capacity neither to contract nor to act as agents of their users. In terms of private international law, this implies that the utilization of an algorithmic system must be an issue of contract conclusion under art. 10 Rome I Regulation. Since AI utilization is fully subject to the lex causae, there can be no separate determination of the applicable law as regards the legal capacity, the capacity to contract or representative capacity of such systems.

Peter Kutner, Truth in the Law of Defamation

This article identifies and examines important aspects of truth as a defence to defamation liability in common law and “mixed” legal systems. These include the fundamental issue of what must be true to establish the defence, whether the defendant continues to have the burden of proving that a defamatory communication is true, the condition that publication must be for the public benefit or in the public interest, “contextual truth” (“incremental harm”), and the possibility of constitutional law rules on truth that are different than common law rules. The discussion includes the emergence of differences among national legal systems in the operation of the truth defence and evaluation of the positions that have been adopted.

The table of contents in German is available here.

In Popescu v Essers the Antwerp Court of Appeal has confirmed jurisdiction in a claim by a Romanian driver against a Belgian-incorporated freight company, and applied Belgian labour law to the their contract.

The case echoes social dumping issues, relevant earlier posts on the blog include CJEU Gruber Logistics, and Altun. Outside of Brussels Ia and Rome I, CJEU AFMB and others is of note.

I do not have access  to the first instance judgment and the Court of Appeal’s judgment is a touch cryptic on a first issue of note which is the impact of the earlier decision by the Romanian courts and the extent of res judicata: I cannot say much about that for want of the first instance judgment and /or further info in the court of appeal’s judgment, however that issue seems to have engaged factual findings in the Romanian courts.

What is clear is that on the basis of Article 21 BIa, jurisdiction in the domicile of the employer was easily established [p.6].

With respect to applicable law and Rome I, the Court of Appeal refers to the CJEU in Koelzsch [42] holding “in so far as the objective of Article 6 of the Rome Convention is to guarantee adequate protection for the employee, that provision must be understood as guaranteeing the applicability of the law of the State in which he carries out his working activities rather than that of the State in which the employer is established. It is in the former State that the employee performs his economic and social duties and, as was noted by the Advocate General in point 50 of her Opinion, it is there that the business and political environment affects employment activities. Therefore, compliance with the employment protection rules provided for by the law of that country must, so far as is possible, be guaranteed.” (emphasis added by me, GAVC). The Court of Appeal also recalls the criteria of the CJEU in C-64/12 Schlecker, notes that the contract does not have a lex voluntatis (although the contract does refer to Romanian law in a number of instances) and holds p.12 ff that Belgium, not Romania was the place of habitual employment:

on-board diagnostics and trip reports reveal that most of Mr Popescu’s routes started from the corporation’s headquarters in Belgium, most of them to and fro Belgium’s neighbouring countries, and even if they were further afield, return was always to Belgium; no routes led him to and /or fro Romania;

dispatch for the routes was organised from Belgium, with largely the Belgian corporations of the group as the contracting party for the freight concerned;

the work tools, i.e. the trucks, even if they carried a Romanian number plate, were put at the the disposal of the drivers, and serviced, in Belgium, and (off)loading largely took place in Belgium.

Other factors pointing to Romania, were held not to displace the finding of Belgium as the place of employment: this includes Mr Popescu’s Romanian nationality and domicile; and his contract being subject to Romanian national insurance and income tax: these two latter elements, the Court held, simply reflect Mr Popescu’s domicile, not his place of employment.

The Court of Appeal also held [p.17-18] that it need not apply the posted workers Directive, with reference to CJEU FNV v Vanden Bosch, and that instead of a temporary posting there is a clear place of habitual employment with all the consequences of Rome I.

The remainder of the judgment then deals with the consequences of the application of Belgian law.

A case of note!

Geert.

Judgment (Court of Appeal in fact) is here https://t.co/JpvhwEBlzI h/t @jurinfo_eric) and analysis forthcoming on my blog. https://t.co/LWyYwbZ73B

— Geert Van Calster (@GAVClaw) June 27, 2023

This post is by Maggie Gardner, a professor of law at Cornell Law School. It is cross-posted at Transnational Litigation Blog.

The U.S. Supreme Court yesterday upheld the constitutionality of Pennsylvania’s corporate registration statute, even though it requires out-of-state corporations registering to do business within the state to consent to all-purpose (general) personal jurisdiction. The result in Mallory v. Norfolk Southern Railway Co. re-opens the door to suing foreign companies in U.S. courts over disputes that arise in other countries. It may also have significant repercussions for personal jurisdiction doctrine more broadly.

The Case

Robert Mallory worked for Norfolk Southern for nearly twenty years in Ohio and Virginia. He has since been diagnosed with cancer, which he alleges was caused by the hazardous materials to which he was exposed while in Norfolk Southern’s employ. Although he currently lives in Virginia, he sued Norfolk Southern (a company then incorporated and based in Virginia) in state court in Pennsylvania, asserting claims under the Federal Employers’ Liability Act (FELA).

Norfolk Southern contested personal jurisdiction. But Mallory argued that by registering to do business in Pennsylvania, it had agreed to appear in Pennsylvania courts on any cause of action. While the Pennsylvania Supreme Court agreed with that interpretation of Pennsylvania’s corporate registration statute, it held that the statute violated the Due Process Clause of the Fourteenth Amendment in light of the Supreme Court’s caselaw since International Shoe Co. v. Washington (1945).

The Holding

A majority of the Supreme Court disagreed. Justice Alito joined Justice Gorsuch’s plurality (with Justices Thomas, Sotomayor, and Jackson) to hold that the question was controlled by a pre-International Shoe decision, Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co. (1917). Pennsylvania Fire approved a Missouri statute that required out-of-state insurance companies to appoint a state official as an agent for service of process for any suit. In Pennsylvania Fire, that Missouri statute was invoked to establish jurisdiction over a Pennsylvania insurance company regarding a contract formed in Colorado to insure a Colorado facility owned by an Arizona company. The five Justices agreed that the Supreme Court has never overruled Pennsylvania Fire and that it thus controls this case.

There is another, broader point on which the five Justices also seem to agree: Pennsylvania Fire does not conflict with International Shoe because International Shoe only addressed jurisdiction over non-consenting defendants. As Alito put it, “Consent is a separate basis for personal jurisdiction”—or as Gorsuch put it, “International Shoe simply provided a ‘novel’ way to secure personal jurisdiction that did nothing to displace other ‘traditional ones.’” An entirely separate avenue for establishing personal jurisdiction exists outside of International Shoe’s framework, which includes (according to the plurality) “[f]ailing to comply with certain pre-trial court orders, signing a contract with a forum selection clause, accepting an in-state benefit with jurisdictional strings attached,” or making a general appearance. And in this consent-based track, the five Justices also seem to agree that federalism concerns are no longer applicable.

Points of Disagreement

Alito wrote separately, however, to argue that Pennsylvania’s statute runs afoul of the dormant Commerce Clause. Even if the statute didn’t discriminate against out-of-state businesses, Alito explained, it significantly burdens interstate commerce, and it does so without any legitimate local interest. While a state “certainly has a legitimate interest in regulating activities conducted within its borders,” and while it “also may have an interest ‘in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors,’” a state “generally does not have a legitimate local interest in vindicating the rights of non-residents harmed by out-of-state actors through conduct outside the State.”

It is not particularly surprising that Alito was alone in elaborating this dormant Commerce Clause concern, given the split opinions earlier this Term in National Pork Producers Council v. Ross. As I discussed in a preview of the Mallory decision, Gorsuch and Thomas in that case found the balancing approach required by the dormant Commerce Clause jurisprudence to simply be infeasible. (Perhaps Alito hoped he might win them over if he could establish a complete lack of legitimate local interest, which would obviate the need for balancing). And if Sotomayor was unconvinced by the plaintiffs’ showing of a substantial burden on interstate commerce in National Pork Producers, she was unlikely to sign onto Alito’s rather vague paragraph about how statutes like Pennsylvania’s could burden small companies.

But why did Alito not join more of the plurality opinion? The plurality embraced a framing of the case that emphasized Norfolk Southern’s significant and permanent presence in Pennsylvania, including its 5,000 employees, 2,400 miles of track, and three locomotive shops (including the largest in North America). That framing is reminiscent of Sotomayor’s emphasis on fairness in her prior personal jurisdiction writings, as well as her questions at oral argument last fall. The plurality opinion also begins by contrasting this case with Mallory’s ability to “tag” an individual employee of Norfolk Southern in Pennsylvania, asking why Mallory shouldn’t be able to assert personal jurisdiction as easily over Norfolk Southern itself. That framing recapitulates a key point in Gorsuch’s concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court (2021).

But neither of those framings resonates with Alito’s prior writings, to say the least. He tends to be more skeptical of litigation and court access policies, and he notably did not join Gorsuch’s concurrence in Ford. Further, both framings would have undermined Alito’s argument that Pennsylvania lacked any legitimate local interest in this case.

Jackson also wrote a brief concurrence that emphasized that personal jurisdiction is a waivable right, focusing on the Court’s opinion in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee (1982). Her invocation of “waiver” rather than “consent” was clearly purposeful (and a distinction that Robin Effron and John Coyle have recently explored).

The Dissent

Justice Barrett’s dissent (joined by Chief Justice Roberts and Justices Kagan and Kavanaugh) staunchly defended the International Shoe paradigm. “For 75 years,” it begins, “we have held that the Due Process Clause does not allow state courts to assert general jurisdiction over [out-of-state] defendants merely because they do business in the State.” The Court’s decision in Mallory, Barrett explains, invites states to evade International Shoe’s limits on personal jurisdiction by simply rewording their long-arm statutes to include implied consent. Indeed (she notes), this case is remarkably like BNSF Railway Co. v. Tyrrell (2017), another FELA suit involving out-of-state parties and a cause of action that arose out of state as well. In Tyrell, the Court rejected the state’s assertion of personal jurisdiction in light of the Court’s recent decisions in Daimler AG v. Bauman (2014) and Goodyear Dunlop Tires Operations, S.A. v. Brown (2011). Approving Pennsylvania’s statute effectively robs all three of those precedents of meaning.

Foreign Defendants in U.S. Courts

The dissent is at least right about the practical implications of the Court’s holding: states that are inclined to do so now have a roadmap for evading the limits on general personal jurisdiction that the Court staked out in Goodyear, Daimler, and BNSF. While the mere fact of doing business is still not enough to subject a “non-consenting” business to jurisdiction in a forum, the mere fact of doing business plus a broadly worded statute might be. Indeed, it’s possible that Sotomayor joined the majority precisely because of her consistent concern that the Roberts Court has gone too far in paring back both general and specific jurisdiction under International Shoe. As the lone justice who refused to join the Court’s opinion in Daimler, she has now helped reclaim some of that state power.

Daimler, itself a case involving a foreign defendant, made it much harder for plaintiffs to hale non-U.S. companies into U.S. courts. After Daimler, plaintiffs have had to establish specific jurisdiction over foreign defendants, which can be hard to do even when the plaintiff resides in the U.S. forum and was injured there, as in J. McIntyre Machinery, Ltd. v. Nicastro (2011). Mallory gives states a different avenue for protecting their citizens’ ability to sue foreign defendants. As the plurality asserts, “all International Shoe did was stake out an additional road to jurisdiction over out-of-state corporations,” separate from the consent-based road upon which states can now rely.

It will be interesting to see how many states take up this invitation. My prediction is that we will see few open-ended statutes like Pennsylvania’s, but that we will see some more tailored statutes, for example asserting all-purpose jurisdiction over any claims brought by in-state residents against companies doing business in the state.

Broader Implications for Personal Jurisdiction Doctrine

It will also be interesting to see how much of a sea change Mallory makes in personal jurisdiction doctrine more broadly. While the holding may appear narrow, five Justices have agreed to limit the ambit of International Shoe’s paradigm to non-consenting defendants—a rather significant restriction. And given how broadly the Court construes “consent” in the age of forum selection clauses and compelled arbitration (and now corporate registration statutes), that could render International Shoe largely obsolete.

The approach of the plurality may also signal that there is more to come. Gorsuch’s opinion focuses on history and tradition and encourages reliance on pre-International Shoe cases. He has found a way to wind back the clock without having to directly overrule International Shoe—but would a future case encourage these Justices to wind back the clock even further?

I do worry that Gorsuch and his like-minded colleagues are too sanguine about the challenges that a return to broad general jurisdiction would entail. As I have written with others, there are real systemic costs to a paradigm of general jurisdiction—precisely the costs that International Shoe was written to address. A fundamental flaw in the plurality’s approach is its syllogism that because the Court approved tag jurisdiction over individuals in Burnham v. Superior Court (1990), it should also continue to recognize broad general jurisdiction over corporations. First, Burnham was a splintered decision, and a majority of the Justices did not agree that tag jurisdiction was completely unmoored from International Shoe’s framework. But second, why isn’t Burnham itself the mistake? Why not level up the protections for individual defendants, requiring some connection between the forum, the dispute, and the defendant greater than the defendant’s fleeting physical presence?

Conclusion

I have started wondering if the binary distinction between general and specific jurisdiction might have outlived its usefulness as a legal construct. Perhaps registration statutes and tag jurisdiction (and some modified forum of doing business jurisdiction?) belong in an intermediate category—but one that must still satisfy International Shoe’s overarching command that the defendant have minimum contacts with the forum such that notions of fair play and substantial justice will not be offended.

It has already been reported on this blog that EU Commission has launched infringement procedure against Poland for failure to fulfil its obligations under the Brussels II bis Regulation.

As stated by the Commission, this “infringement case concerns the non-conformity of the Polish law with the Brussels IIa Regulation, specifically the provisions relating to the enforcement of judgments or orders that require the return of abducted children to their place of habitual residence”.

Apart from the very general statement that “there is a systematic and persistent failure of Polish authorities to speedily and effectively enforce judgments ordering the return of abducted children to other EU Member States” no further information is unfortunately made publicly available.

The expression “enforcement of judgments or orders that require the return of abducted children” might relate to two kinds of situations: when a court of the country to which the child was abducted (Poland) decides that the child should be returned to the country of the child’s habitual residence (another EU Member State), or at a later stage of the procedure when a court of the country of the child’s habitual residence (another EU Member State) orders a return after the non-return decision was given in the country to which the child was abducted (Poland).

Enforcement of a Return Decision Handed Down in Poland

Article 11(3) Brussels II bis Regulation requires the court to which an application for return of a child is made to act expeditiously, using the most expeditious procedures available in national law. For this purpose, the general six weeks period was established.

The Practice Guide to Brussels IIa Regulation explains in more details how to understand the six-week period:

With regard to decisions ordering the return of the child, Article 11(3) does not specify that such decisions, which are to be given within six weeks, shall be enforceable within the same period. However, this is the only interpretation which would effectively guarantee the objective of ensuring the prompt return of the child within the strict time limit. (…) Member States should seek to ensure that a return order issued within the prescribed six-week time limit is “enforceable”.

Hence, it follows from the above that, in general, the procedure itself should be expeditious, and if the court hands down a return order, it should be enforceable within the six-week period… and successfully enforced.

Without going into details of the civil procedure in Poland concerning child abduction cases (which was meticulously described by J. Pawliczak, Reformed Polish court proceedings for the return of a child under the 1980 Hague Convention in the light of the Brussels IIb Regulation, JPIL 2021/3, available in open access), it might be indicated, as an example, that child abduction decisions might be subject to appeal and then, since 2018, to cassation appeal to the Supreme Court. The cassation appeal may be filed by designated authorities only, namely General Prosecutor, Commissioner for Children (Rzecznik Praw Dziecka) and Ombudsman (Rzecznik Praw Obywatelskich) within 4 months period since the order became final (Article 5191 § 21 and § 22 Code of Civil Procedure). This period seems quite long as for the requirement of “expeditiousness”, especially when compared to the general one, applicable to all other cassation appeals, which is two months.

Additionally, in 2022 the Civil Procedure Code was amended to provide for the suspension for two months of the enforceability of the return order on the application of one of the above mentioned designated authorities filed within two weeks since the order become final (Article 388(1) § 1 and § 2 Code of Civil Procedure), and its automatic prolongation if the designated authority indeed filed later a cassation appeal (Article 388(1) § 3 Code of Civil Procedure). This suspension of enforceability was found incompatible with Brussels II bis Regulation in a recent judgement given by the Court of Justice of the EU in February 2022 in Rzecznik Praw Dziecka case (C‑638/22 PPU).

Enforcement in Poland of a Decision Given in the Country of the Child’s Habitual Residence

Pursuant to Article 11(8) Brussels II bis Regulation, even if a judgement of non-return was handed down in the country to which the child was abducted, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under the regulation becomes enforceable in accordance with Section 4 of Chapter III. Article 42(1) Brussels II bis Regulation requires that such an enforceable judgment must be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with the regulation.

In Rinau case (C-195/08), the Court of Justice of the EU, underlined that:

an application for non‑recognition of a judicial decision is not permitted if a certificate has been issued pursuant to Article 42 of the Regulation. In such a situation, the decision which has been certified is enforceable and no opposition to its recognition is permitted.

In accordance with Article 598(14) § 1 Code of Civil Procedure, general rules on enforcement of foreign judgements are applicable to recognition and enforcement of a return order given in another EU Member State. These general rules provide, among others, that a decision on enforcement may be subject to appeal and then cassation appeal (this “particularity” of the procedure was already signaled on this blog in a previous post). It seems that the non-return order should be subject to special provisions allowing for the full effectiveness of Article 42(1) Brussels II bis Regulation.

The above shows that there are provisions in the Code of Civil Procedure which give rise to doubts as to their compatibility with Brussels II bis Regulation (and the new Brussels II ter Regulation equally). The question remains open whether and when Poland will be willing to address them.

The author of this post is Michele Grassi, who is a post-doc at the University of Milan.

In 2010, Bechetti Energy Group (‘BEG’) commenced proceedings against Italy before the European Court of Human Rights (ECtHR). The applicant complained that Italy had breached its obligations under Article 6(1) of the European Convention on Human Rights (ECHR) by failing to set aside an arbitral award rendered in a dispute between BEG and Enelpower, despite the apparent lack of impartiality of the arbitrator appointed by the opposing party. In particular, the concerned arbitrator had served as Vice-Chairman and member of the Board of Directors of Enel, Enelpower mother company, and had several professional links with the latter.

In May 2021, the ECtHR rendered its ruling and found that Italy had in fact violated Article 6(1) ECHR. Nonetheless, the Strasbourg Court dismissed the applicant’s request to order the reopening of the domestic proceedings in which Italian courts rejected the appeal for nullity of the arbitral award. They did so on the assumption that

it is in principle for the Contracting States to decide how best to implement the Court’s judgments without unduly upsetting the principles of res judicata or legal certainty in civil litigation.

However, the Court stressed the

importance, for the effectiveness of the Convention system, of ensuring that domestic procedures are in place to allow a case to be revisited in the light of a finding that the safeguards of a fair hearing afforded by Article 6 have been violated.

The Revocation of Final Civil Judgments under Italian Law

Under Italian procedural law, revocation of final civil judgments (and the reopening of the respective proceedings) is only available in a limited number of cases, listed at Article 395 of the Italian code of civil procedure (CPC). This same provision also applies (in part) to arbitral awards pursuant to Article 831 CPC.

Before 2022, revocation was not available in case of breach of the ECHR rights (see the judgments of the Italian Constitutional Court of 26 May 2017 no. 123, and of 27 April 2018 no. 93). The situation has now changed, following a recent reform of the Italian code of civil procedure that introduced, among other things, a new reason for revocation of civil judgments that have been found in breach of the Convention by the ECtHR (Article 391-quater CPC).

Still, the new provision requires that three cumulative – and quite restrictive – conditions be met: (1) The violation must concern a right of status of a natural person; (2) The just satisfaction awarded by the Court pursuant to Article 41 ECHR must not be sufficient to remedy the consequences of the violation; (3) The revocation of the judgment must not affect the rights of third parties (i.e. parties that did not participate in the proceedings before the ECtHR).

Those conditions resemble the requirements for the reopening of domestic proceedings provided by the laws of other States parties to the ECHR (e.g., Article L 452-1 of the French code de l’organisation judiciaire or Article 510 of the Spanish code of civil procedure. See also the recommendation issued by the Committee of Ministers to member States, R(2000)2 of 19 January 2000). Still, the combined application of the above conditions significantly narrows the scope and effectiveness of the Italian remedy. In particular, it is apparent that Article 391-quater CPC cannot be applied in the BEG case, since the violation of the ECHR addressed in the case does not concern a right of status of a natural person.

The Position of the Italian Government

In light of the above, on 3 August 2022, the Italian government submitted an Action Report to the Secretariat of the Committee of Ministers. According to the Report: the Italian State had promptly paid to BEG the “just satisfaction” awarded by the ECtHR judgment (€ 51,400); the domestic civil proceedings that led to the violation of the ECHR had not been reopened, in compliance with the decision of the Court that dismissed the applicant’s request to that end; the Italian State considered to have fully discharged its obligations under Article 46 ECHR; BEG had commenced proceedings in Italy against the Italian government, the opposing party in the arbitral proceedings and the arbitrator concerned, seeking compensation of further damages.

The Position of the Applicant

On 27 January 2023, BEG submitted a Communication pursuant to Rule 9(1) of the Rules of the Committee of Ministers for the supervision of the execution of judgments, whereby it: confirmed that it had commenced proceedings against, inter alia, the concerned arbitrator for compensation of the relevant damages; contested the Italian government’s contention that the judgment only entailed the payment of the amount of just satisfaction awarded by the Court pursuant to Article 41 ECHR; contested the Italian government’s argument that it had no obligation to ensure the reopening of the domestic proceedings, because the Court had dismissed the applicant’s request to that effect; contended that, from a theoretical standpoint, the re-examination or reopening of the domestic proceedings would constitute an appropriate measure of restitutio in integrum to re-establish the situation which would have existed if the violation had not been committed. At the same time, it acknowledged that, under Italian procedural law, it was not possible to reopen the domestic proceedings; requested, as a result, full financial compensation of the damages suffered.

The Effects of the BEG judgment in Italy

The Committee of Ministers of the Council of Europe has not yet issued a final resolution and the supervision process is still pending. Accordingly, for the time being, the decision of Italian courts on the validity of the contested arbitral award still stands as res judicata. The applicant has not sought a revocation of the domestic judgment, as this remedy is not available under Italian procedural law, but it has rather commenced new proceedings, claiming full compensation of the relevant damages. Conversely, the Italian government contends to have fully discharged its international obligation to abide by the final judgment of the ECtHR by paying the just satisfaction awarded by the ECtHR.

One might then question the effectiveness of the ECtHR decision in this case. Following several years of litigation, the applicant is still bound by a decision that has been found in violation of its Convention rights. This is not the place to elaborate on the possible existence of an international obligation of the Italian State to ensure that the domestic proceedings are reopened, despite the ECtHR’s dismissal of the applicant’s claim to that end. I personally think that this is the case, based on the State’s customary law obligation to ensure the cessation of international wrongful acts and to make full reparation for the injury caused. Moreover, in a recent decision against Greece, the same Strasbourg Court held that “the taking of measures by the respondent State to ensure that the proceedings before the Court of Cassation are reopened, if requested, would constitute appropriate redress for the violation of the applicant’s rights” (see Georgiou v Greece, 14 March 2023, app. no. 57378/18).

What is worth mentioning – especially in light of the recent decision of the French Cour de Cassation, reported in the post by Gilles Cuniberti on this blog – are the possible side effects of the BEG judgment, concerning the recognizability of the arbitral award at stake outside Italy. Indeed, according to well established case-law of the ECtHR, requested States shall refuse the recognition and enforcement of foreign judgments if the parties’ procedural rights were infringed in the State of origin (see Pellegrini v. Italy, 20 June 2000, app. no. 30882/96; Avotiņš v Latvia, 23 May 2016, app. no. 17502/07; Dolenc v Slovenia, 20 October 2022, app. no. 20256/20). This might explain why the Cour de Cassation did not focus on the possible irreconcilability between the Albanian judgment, whose recognition was sought in France, and the arbitral award between BEG and Enelpower. Nonetheless, it might still be quite contradictory to hold that a foreign decision cannot be enforced due to the party’s attempt to “evade” an award that has been found in violation of the Convention right to fair proceedings.

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

Francesco Salerno, (formerly) Professor at the University of Ferrara, L’impatto della procedura di interpretazione pregiudiziale sul diritto internazionale privato nazionale (The Impact of the Preliminary Rulings of the Court of Justice on National Private International Law; in Italian)

The European Court of Justice’s uniform interpretation of private international law concerns mainly – albeit not only – the EU Regulations adopted pursuant to Article 81 TFEU: in the context of this activity, the Court also takes into account the distinctive features of EU Member States. The increasing number of autonomous notions developed by the Court greatly enhanced the consistency and the effectiveness of the European rules. Against this background, the Italian judicial authorities implemented such a case-law even when it ran counter well-established domestic legal principles. Moreover, the European institutions rarely questioned the case-law of the Court of Justice, but when they did so, they adopted new rules of private international law in order to “correct” a well-settled jurisprudential trend of the Court.

Cristina Campiglio, Professor at the University of Pavia, La condizione femminile tra presente e futuro: prospettive internazionalprivatistiche (The Status of Women between Present and Future: Private International Law Perspectives; in Italian)

One of the Goals of the U.N. 2030 Agenda for Sustainable Development is gender equality (Goal 5), which can also be achieved through the elimination of “all harmful practices, such as child, early and forced marriage” (Target No 3) and the protection of women reproductive rights (Target No 6). This article addresses these two issues in a conflict-of-laws perspective, identifying the legal mechanisms through which legal systems counter the phenomenon of early marriages celebrated abroad and tackle the latest challenges related to the so-called reproductive tourism. After analyzing the role played by public policy exceptions and by the principle of the best interest of the child, it summarizes the Court of Justice’s case-law on the recognition of family situations across borders. In fact, the recognition of the possession of an EU status – meeting the social need to have a personal status which accompanies individuals anywhere within the EU area – is gaining ground. Such status is a personal identity merely functional to the exercise of EU citizens’ freedom of movement (Article 3(2) TEU, Article 21 TFEU and Article 45 EU Charter of Fundamental Rights). The result is the possession, by EU citizens, of a split personal identity – one functional to circulation, while the other one to its full extent – whose compatibility with the EU Charter of Fundamental Rights principles and with the ECHR may be called into question.

The following comment is also featured:

Marco Farina, Adjunct Professor at the University ‘La Sapienza’ in Rome, I procedimenti per il riconoscimento e l’esecuzione delle decisioni straniere nella recente riforma del processo civile in Italia (Proceedings for the Recognition and Enforcement of Foreign Judgments in the Recent Italian Reform of Civil Procedure; in Italian)

In this article, the Author comments on the new Article 30-bis of Legislative Decree No 150/2011, introduced by Legislative Decree No 149/2022 reforming Italian civil procedure and aimed at regulating “proceedings for the recognition and enforcement of foreign judgments provided for by European Union law and international conventions”. The Author analyses the new provision, focusing on the different procedural rules applicable, depending on the relevant EU Regulation or international convention concerned, to the proceedings that the EU Regulations listed in Article 30-bis of Legislative Decree No 150/2011 provide for obtaining the recognition and enforcement of the judgments rendered in a Member State other than the one in which they were rendered. In commenting on this new provision, the Author offers a reasoned overview of the problems generated by it with the relative possible solutions.

Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Pascal DE VAREILLES-SOMMIÈRES, Sarah LAVAL, Droit international privé, Dalloz, Paris (11th ed., 2023) pp. XVI-1359.

The European Parliament passed on 15 June 2023 a resolution expressing support for the accession of Ukraine to the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters.

As reported on this blog, the Council of the European Union had already decided on 24 April 2023 that the Union would establish treaty relations with Ukraine under the Convention following the accession of Ukraine.

According to Article 29 of the Convention, accession to the Convention by one State creates treaty relations between that State and the States that have already joined the Convention only if neither of them has notified the depositary that the accession should not have the effect of establishing treaty relations with the other. If a State intends to issue a declaration to that effect, it must do so within 12 months of the ratification or accession of the State concerned. Absent a declaration, the Convention comes into effect between the States in question on “the first day of the month following the expiration of the period during which notifications may be made”. 

The Council of the Union assessed, in its decision of 24 April 2023, that there were no reasons to prevent the accession by Ukraine from creating treaty relations between the Union and Ukraine under the Convention, and accordingly decided that an Article 29 declaration should not be issued.

By its recent resolution, the European Parliament basically expressed the same view.

The resolution does not entail, in itself, any effect on the international plane. Rather, it addresses a concern that relates to the role that the Parliament is entitled to play in the process leading to decisions regarding the establishment of the Union’s treaty relations with third countries.

Pursuant to Article 218(6) TFEU, the conclusion of an international agreement by the European Union requires a Council decision. When it comes to agreements covering fields to which the ordinary legislative procedure applies, including judicial cooperation in civil matters, the Council may only act “after obtaining the consent of the European Parliament”. The decision of 12 July 2022 whereby the Council decided that the Union would accede to the Hague Judgments followed precisely that pattern.

Now, under the current practice of the institutions, no formal procedure in accordance with Article 218(6) TFEU is initiated for the conventions that contain a non-objection mechanism, such as the Judgments Conventions. With respect to these conventions, the Commission only informs the Council and Parliament of any third country’s request to accede to a the convention in question. This means that if the Council decides to take no action regarding the third State’s accession (thus paving the way to the establishment of treaty relations with the latter), the Parliament risks being prevented from expressing its views on the desirability of the establishment of such relations.

In its recent resolution, the Parliament, having recalled that “an international agreement cannot affect the allocation of powers fixed by the Treaties”, stated that “the fact that at international level a silence procedure has been adopted to facilitate accession by third states should be of no consequence for the EU’s internal decision-making process”.

It is thus for the purposes of the internal decision-making process of the EU that the Parliament made use, by this resolution, of its prerogative under Article 218(6) TFEU to make a stance on the establishment of treaty relations between the Union and Ukraine under the Hague Judgments.

That said, the resolution also provided the Parliament with an opportunity to issue a political statement concerning the Union’s relations with Ukraine, in general. In the operative part, the Parliament reiterated its “unwavering solidarity with the people and leadership of Ukraine and its support for the independence, sovereignty and territorial integrity of Ukraine, within its internationally recognised borders”.

The Kingdom of Saudi Arabia (KSA) has recently enacted a new Civil Transactions Law (Royal Decree No. M/199, dated June 16, 2023). The law will enter into force on December 16, 2023, 180 days after its enactment (hereinafter referred to as “the new law”). This law has been rightly described as “groundbreaking” because, prior to the enactment of the new law, there has been no codification of civil law in the Kingdom, and civil law issues have traditionally been governed by the classical rules of Islamic Sharia according to the teachings of the prevailing school of fiqh (religio-legal jurisprudence) in the Kingdom (Hanbali School). Like most of the civil law codifications in the region, the new law focuses mainly on the so-called “patrimonial law,” i.e., property rights and obligations (contractual and non-contractual). Family relations and successions are dealt with in a separate law, which was previously enacted in 2022 and entered into force the same year (Personal Status Act, Royal Decree No. M/73 of 9 March 2022, entered into force on June 18, 2022).

From a private international law perspective, one particular aspect of the new law compared to other civil law codifications in the region is that, unlike most of the Arab civil law codifications, the new law does not contain rules on the choice of the applicable law. In other neighboring countries (namely Egypt, Jordan, Syria, Iraq, Qatar, Oman, and Yemen) as well as in other Arab jurisdictions (including Libya and Algeria), the civil law codifications include at the beginning of their respective Civil Code/Civil Transactions Act a chapter dealing with the “application of the law in space”. These choice-of-law codifications generally contain provisions on characterization, choice of law in family law and succession, property, contractual and non-contractual obligations, and some general rules such as renvoi (or its prohibition) and public policy, etc. Only a few Arab states have chosen to codify choice-of-law rules outside of their Civil Code (Kuwait and Bahrain) or Code of Obligations and Contracts (Morocco and Tunisia). Lebanon is the only country where choice-of-law principles have been developed mainly through case law. Thus, Saudi Arabia remains the only Arab jurisdiction where conflict of laws rules are almost non-existent and where the courts have not been able to develop a body of principles dealing with choice-of-law issues. This is because, in general, Saudi courts apply Saudi law when they assume jurisdiction, regardless of whether or not the dispute has a connection with another legal system or not. Whether there will be a codification of choice-of-law rules in the same way that rules on international jurisdiction and enforcement of foreign judgments have been codified remains to be seen.

 

Interestingly, however, the new law may affect the assessment of public policy in the context of the enforcement of foreign judgments. Indeed, based on the traditional Sharia rules and principles recognized in the Kingdom, Saudi courts have often relied on public policy and inconsistency with Sharia to refuse enforcement of foreign judgments. For example, in a case decided in 1996, the Saudi court refused to enforce a Dubai judgment on the ground that the said judgment allowed for compensation for lost profits and payment of moral damages (Board of Grievances, Case No. 1783/1/Q of 30/12/1417 Hegira [November 12, 1996]). The court cited Sharia rules and principles on compensation, according to which only real and quantifiable losses can be compensated. The new law departed from this traditional principle by clearly allowing compensation for both lost profits (article 137) and moral damages (article 138). Therefore, the traditional position of the Saudi court is no longer tenable under the new rules, as compensation for lost profits and moral damages are now available under the newly adopted rules.

 

Another important issue concerns interest. It is well known that the payment of interest is prohibited under Sharia rules and principles. Saudi courts have been particularly eager to refuse enforcement of those parts of the foreign judgments that order the payment of interest, including legal interest available under the laws of other Arab and Islamic states (see, for example, Board of Grievances, Case No. 2114/Q of 21/8/1436 Hegira [June 9, 2015] refusing enforcement of legal interests ordered by Bahraini courts but allowed partial enforcement of the main award). However, unlike lost of profits and moral damages, the new law’s position on interest is less clear. Several indicators in the new law suggest that the legislature did not wish to depart from the traditionally prevailing position. For example, the prohibition on agreeing to repay amounts that “exceed” the capital in loan agreements, either at the time of the conclusion of the agreement or at the time of the deferment of payment, is clearly stated in article 385 of the new law. Moreover, article 1 of the new law clearly refers to the “rules [al-ahkam] derived from the Islamic Sharia which are most consistent with the present law” as the source of law in the absence of an applicable provision of the new law or a rule of general principles contained in its last chapter. Accordingly, it can be expected that Saudi courts will continue to refuse to enforce the portion of the foreign judgments awarding interests on the ground of public policy and the inconsistency of interests with the principles of the Sharia as understood in the Kingdom.

 

The Institute of International Shipping and Trade Law is organising its 18th annual colloquium on 6 and 7 September 2023 in Swansea. The topic of the event this year is on Commercial Disputes- Resolution and Jurisdiction.

Delegates can attend both in person and online. Early bird registration is available by the end of June.

The list of speakers and chairpersons confirmed includes Masood Ahmed, Simon Baughen, Michael Biltoo, William Blair, Ruth Hosking, John A. Kimbell KC, Monica Kohli, George Leloudas, Aygun Mammadzada, Karen Maxwell, Francesco Munari, Brian Perrott, Marta Pertegas Sender, Richard Sarll, David Steward, Andrew Tettenborn and Patricia Živković.

For registration and further info, see here.

Readers of this blog will certainly enjoy trying

eu-adapt.com

It is the result of a project coordinated by Afonso Patrão (University of Coimbra, in Portugal), joining efforts with the Universities of Heidelberg (Germany), Turku (Finland), Genoa (Italy) and Valencia (Spain), which will be useful when a right in rem is invoked under the law applicable to succession, but the lex rei sitae does not know such right in rem. As Afonso Patrão explains “the app will then suggest an equivalent under the law of the latter Member State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it”.

On Tuesday, July 4, 2023, the Hamburg Max Planck Institute will host its 35th monthly virtual workshop Current Research in Private International Law at 14:00-15:30 CEST. Robert Freitag (FAU Erlangen-Nürnberg) will speak, in German, about the topic

The Overdue Reform of the International Law on Names in Germany

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

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

This book review was written by Begüm Kilimcioglu, PhD researcher, Research Groups Law & Development and Personal Rights & Property Rights, University of Antwerp

Barnali Choudbury, The UN Guiding Principles on Business & Human Rights- A Commentary, Edward Elgar Publishing, 2023

The endorsement of the United Nations Guiding Principles (UNGPs) in 2011 represents a milestone for business and human rights as the principles successfully achieved to put the duties of different actors involved in (possible) human rights abuses on the international agenda. The UNGPs provide a non-binding yet authoritative framework for a three-pillared scheme to identify and contextualize the responsibilities with regard to business and human rights: the State’s responsibility to protect, businesses’ responsibility to respect, and facilitating access to remedy. However, although the impact of the principles can be described as ground-breaking, they have also been criticized for their vague and generic language which provides for a leeway for certain actors to circumvent their responsibilities (see Andreas Rasche & Sandra Waddock, Surya Deva, Florian Wettstein).Therefore, it is important to determine and clarify the content of the principles to increase their efficiency and effectiveness. In this light, this commentary on the UNGPs which examines all the principles one-by-one through the inputs of various prominent scholars, academics, experts and practitioners is indeed a reference guide to when working on corporate social responsibility.

The UNGPs and private international law are inherently linked. UNGPs aim to address issues regarding human rights abuses and environmental degradation which are ultimately transnational. Therefore, every time we talk about the extraterritorial obligations of the States, or the private remedies attached to cross-border human rights violations, we have to talk within the framework of private international law. For instance, in a case where a multinational company headquartered in the Global North causes damage through its subsidiaries or suppliers located in the Global North, the contractual clauses regarding their respective obligations or the private remedies in their contracts brings the questions of which law is applicable or how to enforce such mechanisms. Furthermore, in cases where the violations are brought before a court, it is inevitable that the court will have to decide on which law to be applied to the conflict at hand. In this regard, although the commentary does not go into detail about conflict of laws/ private international law issues, we know that the implementation of the UNGPs requires the consideration of private international law rules.

The commentary consists of two parts; the first part is dedicated to the UNGPs, and the second part focuses on the Principles for Responsible Contracts (PRCs) which is an integral addition to the UNGPs.

The first part starts with the UNGPs’ first pillar, the State’s duty to protect in context. The authors Larry Cata Backer and Humberto Cantu Rivera (UNGPs 4&5) emphasize the centrality of the State as an actor in many interactions when it engages in various commercial transactions and the privatization of essential services. Such instances pose a unique opportunity for the State to exercise its influence over businesses, service providers, or investors to facilitate respect for human rights and to fulfill its duty to protect human rights. Furthermore, as Olga Martin-Ortega and Fatimazahra Dehbi highlights (UNGP 7) when a company is operating in a conflict zone, the States that are involved must engage effectively with the situation to protect human rights considering the heightened vulnerability. Overall, actions of privatization or other commercial transactions do not exempt the State from its own duties. On the contrary, the State has heightened duties to ensure and support respect for human rights through various means such as its legislation, policies, agencies or through (effective) membership of multilateral institutions or its contracts.

Moving onto the second pillar, the business’ responsibility to respect, Sara L. Seck emphasizes                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               that this responsibility is not framed as a duty—like the State duty to protect but rather is a more flexible term—and is independent of the State. However, more regard could have been given to common situations such as where the lines between the States and the businesses are blurred. I do not mean here the situations where the business enterprises are fully or partially owned by the State but rather – de facto—the businesses have more power (both in economic and political terms) on the ground. More examples could have been given such as how the revenues of Shell exceed the GDP’s of Malaysia, Nigeria, South Africa and Mexico. In the increasingly globalized and competitive world of today, the (possible) role of businesses changes rapidly. Conversely, the disconnect between the policies, statements, and pledges businesses make with respect to human rights and their actual performance has been identified and highlighted quite accurately. The analysis of the lack of incentives for businesses to respect and engage with human rights by Kishanthi Parella (UNGP 13) provides an excellent mirror to the situation on the ground. It is rightfully identified that although the pressure from the consumers, investors, and/or other stakeholders can incentivize companies to do better, it may be insufficient. For instance, although Shell has been criticized by civil society, affected stakeholders, and the public for over a decade, and has faced several high-profile cases, the change beyond its corporate policies and documents remains highly contested.

Naturally, this brings to the fore the importance of having legally binding, national, regional, and international, rules putting concrete obligations with strong enforcement mechanisms to force companies to do better and create a level playing field for the ones who already are genuinely engaged in human rights issues. Maddelena Neglia discusses the different mandatory legislations initiatives from different countries regarding the implementation of the UNGPs, and Claire Bright and Celine Graca da Pires examine the same initiatives through the lens of Human Rights Due Diligence processes.

However, as the analysis of the current transparency frameworks within the framework of UNGP 13, considering that there are already legally binding rules on non-financial information disclosure, foreshadows the possible outcomes of future legally binding rules, such as the Corporate Sustainability Due Diligence Directive (See also the last documents, the Council position and the Parliament position.) The commentary does not discuss the positions adopted by the Council and the Parliament as they were not yet adopted at the time the commentary was written). The current transparency laws show that unless such rules have teeth, they are bound to be ineffective.

Of course, the efforts of the States and businesses must be accompanied by strong and effective both State-based and non-State based and judicial and non-judicial remedies for the victims of corporate harm. On this matter, the commentary highlights the mechanisms that we are more prone to forgetting, such as the national human rights institutions (NHRIs) or multistakeholder initiatives (MSIs). It is usually the case that when thinking about remedies, the first thing that comes to mind are State-based judicial remedies. However, as Jennifer A. Zerk and Martijn Scheltema remind us there are several different types of remedies which can even be more effective depending on the context. Furthermore, on an academic level, we tend to focus more on Platon’s ‘theory on forms/ideas’ rather than how things work in practice. As a result of this disconnection between the academics and the victims, we also tend to forget to discuss whether the ‘form/idea’ complies with the reality on the ground. Therefore, the emphasis in the commentary on the (obvious) link between the remedies and the persons for whom these remedies are intended reminds us that remedies must be stakeholder centric.

Overall, the commentary points out several important issues about the UNGPs:

• The uncertainty surrounding the UNGPs is real—although this was an intentional choice by Professor Ruggie, considering the current frameworks and how far we have come in the business & human rights world, we should not religiously hold onto the UNGPs but rather search for ways to improve and build upon them. UNGPs indeed were a marvelous achievement at the time, in 2011, when it was even unthinkable for most people that businesses could have any kind of responsibility regarding human rights; yet a worldwide consensus was reached. However, now, there is an enormous momentum to genuinely address corporate disasters through better regulation and enforcement.
• Another important prong in this process still is the international treaty. The commentary does not go into much detail about the Legally Binding Instrument on Business and Human Rights (Penelope Simmons discusses the international treaty within the framework of UNGP 26 as a way to strengthen access to remedy and Barnali Choudhury proposes the international treaty as a way to tackle the remaining problems with the implementation of the UNGPS and the PRCs), however I do believe that the international treaty must also be discussed as an option to better implement the UNGPs. The drafting process of the treaty is evidence of one of many problems with the implementation of the UNGPs. As Daniel Augenstein (UNGP 1), Gamze Erdem Turkelli (UNGP 10) and Dalia Palombo (UNGP 25) point out, international cooperation is very important to effectively address the multi-faceted and transnational problem of respecting and protecting human rights and facilitating remedy when human rights abuses occur within the context of corporate harm. They show that no sole State can fix such a problem, and cooperation between States is essential. This cooperation can be done through could be done by engaging with other States in cases of corporate harm and exchanging information (or making it easy to exchange information) between authorities and courts, or information, as we increasingly see in private international law instruments. However, when we look at the process of drafting such a treaty which would provide common frameworks and rules to do so, it is clear that there is reluctance of the Global North countries whereas the recipient countries of damage are naturally much more enthusiastic.
• The second part of the commentary concerns the Principles for Responsible Contracts which provide guidance for the preparation, management and monitoring of Investor-State (investment) contracts, together with options for access to remedy for the (possible) victims. The PRCs reflect the same principles as the UNGPs and they are supposed to be read in conjunction.

The focus on the PRCs is valuable because historically international investment law and international human rights law were seen as two separate fields of law with no intersection. However, today, as the understanding of human rights is significantly evolving, the link between investments and human rights is becoming all the more evident. Investments – in all sectors but especially the extractive sector- can adversely impact to a significant extend, environmental degradation and human rights, lives of local and indigenous communities and marginalized and vulnerable groups. Rightly so, as the first part of the commentary on UNGPs, the second part, especially within the scope of PRC 7, Tehtena Mebratu-Tsegaye and Solina Kennedy highlight the importance of meaningful stakeholder engagement with the (potentially) affected stakeholders and the ways to design more inclusive community involvement strategies.

Secondly, PRCs is a great opportunity to provide guidance to increase the effectiveness and efficiency of the contractual clauses used in investment contracts. Contractual clauses are the most widely used tools among businesses to pledge and ensure human rights compliance in their activities (see p 63). However, the effectiveness of these clauses is rather limited. Therefore, this wide use must be seen as an advantage and be built upon. In other words, the clauses must be structured in such a way that they do not leave unnecessary wiggle room for the companies and successfully cover the governance gaps.

Lastly, the importance of human rights impact assessments by investors before, during and after a project is a common narrative through the part on the PRCs. This emphasis is important as we are on the verge of adopting hard laws on human rights due diligence that may successfully enforce companies to be more engaging, robust and effective when they address human rights concerns. It has to be borne in mind that investors are also businesses enterprises, and they also must conduct their own Human Rights Due Diligence regarding their projects. In this regard, it is sometimes even the case that investors have more adverse impacts than other types of business actors because of their indirect impact via the projects they finance. Thus, the engagement of the investors with human rights is crucial for effective human rights protection.

Overall, the commentary is a must-have for everyone who is working on business and human rights. The UNGPs constitute the base of all the work that has been done over the years in the field. Thus, to be able to comprehend what business and human rights mean and to build on them, it is essential to examine the UNGPs in detail, which is what the commentary provides.

This post was written by Felix M. Wilke.

Many papers and posts have already appeared on the EU rule of law crisis, in particular on serious doubts regarding the independence and impartiality of the judiciary in certain Member States. In light of the recent judgment against Poland (C-204/21), more are likely to follow. For the most part, the discussion concerns potential reactions under primary law and the effects the crisis already has had on the European Arrest Warrant. There have been some predictions that the crisis also would affect judicial cooperation in civil and commercial matters (e.g. by Frąckowiak-Adamska). Indeed, how could it not? In this post I want to flag some issues and ideas to be fleshed out in a later publication, based on a presentation I gave at the IAPL Summer School 2023. As always, comments are very much welcome.

Mutual Trust and its Limits

It all goes back to mutual trust. According to the CJEU, mutual trust in particular means the presumption that other Member States comply with EU law and with the Charter of Fundamental Rights (Opinion 2/13). If we know or have very good evidence that another Member State’s judiciary is not independent or impartial, and the Member State thus cannot guarantee the right to a fair trial, this assumption seems to have been rebutted. One can hardly do business as usual, i.e. continue to apply instruments like Brussels Ibis that are based on mutual trust as if nothing had changed.

We actually have famous precedent for that from the field of judicial cooperation in criminal matters. In LM, the Court of Justice held that the “real risk” of a breach of the fundamental right to an independent tribunal “is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to a [European Arrest Warrant]”. Granted, Article 1(3) of the Framework Decision on the European Arrest Warrant contains the express admonition that the Decision does not modify the Member States’ obligation to respect fundamental rights – even though the immediately prior provision of paragraph 2 requires them to execute any European Arrest Warrant based on mutual recognition.

In one area based on mutual trust, then, courts in one Member State can under certain circumstances review whether trust is actually warranted. This has been dubbed “horizontal Solange” (Canor), as opposed to “reverse Solange” (von Bogdandy et al.) and the good old regular “Solange” (Germany’s Constitutional Court). As long as – solange – there are no systemic violations of the rule of law, each Member State should cooperate with the others. So, should we pull a “horizontal Solange” in civil and commercial matters? Should it perhaps be a “modified horizontal Solange”, adjusted to the specifics of civil proceedings?

Horizontal Solange as Part of Public Policy Reservations

One obvious answer is that we have been doing so in civil and commercial matters, anyway. For the Brussels Regime has always contained a public policy reservation (now Art. 45(1)(a) Brussels Ibis). Public policy is the classic tool of trust management (M. Weller). It is accepted that violations of procedural fundamental rights in another Member State can trigger this reservation. While Brussels Ibis lacks a clear statement on fundamental rights like Article 1(3) Framework Decision on the European Arrest Warrant, the obligation to respect the fundamental rights of the Charter exists as a matter of course when Member States are “implementing” EU law (Article 51(1) of the Charter). Thus, even if the vague Recital 38 Brussels Ibis did not exist, public policy must be interpreted against the backdrop of the Charter. More importantly, even instruments of judicial cooperation in civil and commercial matters without a written public policy reservation must be interpreted as allowing a review of potential fundamental rights violations in another Member State.

But to rely on public policy does not come without obstacles. Should the burden of proof rest with the applicant even where there are systemic deficiencies in another Member State? Should an application even be necessary? The seriousness of the rule of law problems and their relation to the public interest might suggest a negative answer, but this would likely ask too much of those tasked with enforcing foreign judgments, in particular non-judicial bodies. And what about the unwritten condition of exhaustion of all remedies in the Member State of origin (Diageo Brands)? Some would say that it does not make sense, period. At least it does not make sense if the foreign judiciary as such does not meet the standards of independence and impartiality. Systemic deficiencies obviate the exhaustion requirement as it itself is based on mutual trust.

Doubts about the Existence of “Courts” and “Judgments”

Speaking of independence and impartiality: Has not the CJEU held in Pula Parking – even though the actual problem was that Croatian notaries did not conduct inter partes proceedings – that these two features characterize “courts” for the purposes of Brussels Ibis? Without them, a national body is no “court”. Without being a “court”, it cannot give “judgments” within the meaning of Article 2(a) Brussels I bis. This calls into question already the scope of application of Chapter III of Brussels I bis (and, thinking it through to the end, also the application of the lis pendens rules). If this is not met, there would be no recognition and enforcement. The result thus would seem to be the same as after a successful application relying on public policy.

The scope of application, however, must be checked ex officio, and a failure to exhaust national remedies in the Member State of origin clearly could not change the nature of body that gave the decision. Hence, the requirements could be quite different from the public policy reservation. On the other hand, again, to require an assessment of the independence and impartiality of other Member States’ bodies in every single case would put the institutions in the Member State addressed in over their heads.

Exploiting Private Parties?

Moreover, one could characterize this approach with some merit as exploiting civil and commercial matters, ultimately: the parties of such matters to address a crisis not of their making. I feel a certain unease about this, and I do not think I am the only one who feels that way. Granted, to make a Member State a less attractive forum could be an effective tool of bringing about change in that State. And it does seem paradoxical to continue to apply an instrument of mutual trust where serious doubt has been cast on this trust.

Yet we can hardly blame a claimant for having pursued her claim in a certain Member State, even less so when jurisdiction in that State was based on entirely uncontroversial grounds, perhaps even on Brussels Ibis itself. To put a stop to EU judicial cooperation in civil matters without an individual violation of the defendant’s/debtor’s fundamental rights also would be questionable from the perspective of the claimant’s/judgment creditor’s fundamental rights. The ECtHR has recognized that the enforcement (even) of foreign judgments is an integral part of the guarantee of Article 6(1) ECHR (Hornsby v. Greece, McDonald v. France, Avotiņš v. Latvia). Then again, if one negated the scope of application of Brussels Ibis, at least national rules of recognition and enforcement could still apply.

Tentative Conclusions

I am inclined to let national bodies operate on the prima facie basis of a foreign “judgment” for now. There is less risk of legitimizing such bodies this way than accepting preliminary references from them (as the CJEU does, C-132/20). A potential gamechanger would be a decision under Article 7(2) TEU. Yes, such a decision seems unlikely. But the inadequacy of solutions under primary law do not imply the necessity of sweeping modifications of the rules for cross-border proceedings.

I would relegate the rule of law issues to the public policy clauses (whether express or implied). This implies court proceedings upon application (typically) of the debtor. The interpretation and application of the public policy reservation must sufficiently accommodate the applicant’s right to a fair trial. For example, if the applicant can establish systemic rule of law violations, she must not have exhausted all remedies in the State of origin. One could also be more liberal with the requirement of “manifest” violations. Additionally, I would advocate for a similar unwritten exception to the lis pendens rules, in line with LM. If there is the “real risk” that a later judgment from another Member State could not be recognized and enforced due to public policy, there is no point in staying one’s own proceedings. It will be hard to establish this real risk, to be sure. But that is not necessarily bad – civil and commercial matters are not the right place to try to solve systemic problems.

Apostolos Anthimos and Marta Requejo Isidro are the editors of The European Service Regulation – A Commentary, on Regulation (EU) No 2020/1784. The book has just been published by Edward Elgar in its Commentaries in Private International Law series.

Presenting a systematic article-by-article commentary on the European Service Regulation (recast), and written by renowned experts from several EU Member States, this book gives balanced and informed guidance for the proper operation of judicial cooperation in civil and commercial matters within the EU in the field of cross-border service of documents.

First setting out the origins and evolution of the Regulation, the Commentary proceeds to analyse in forensic detail the relevant case law of both the European Court of Justice and national courts on cross-border service. It moreover points the reader to the pertinent legal scholarship from various EU jurisdictions, and provides a pathway for solving practical problems surrounding the service of documents between Member States of the European Union in civil and commercial proceedings.

Key Features: systematic article-by-article analysis facilitates navigation and reference; integration of the relevant case law ensures a rounded interpretation of the Regulation; practical approach provides tangible guidance for complex cross-border proceedings; renowned team of contributors offer clarity and insight.

Thanks to its in-depth but also practical analysis of each provision of the Regulation, the Commentary will be a valuable resource for judges, scholars and students of European procedural law, as well as for practitioners involved in cross-border civil and commercial litigation.

Contributors include Apostolos Anthimos, Gilles Cuniberti, Stefano Dominelli, Pietro Franzina, Burkhard Hess, Alexandros Ioannis Kargopoulos, Christian Koller, Kevin Labner, Elena Alina Onţanu, Marta Requejo Isidro, Vincent Richard, Andreas Stein, Michael Stürner.

Further information are available here.

XVI CONFERENCE OF THE AMERICAN ASSOCIATION OF PRIVATE INTERNATIONAL LAW – ASADIP IV Workshop on Research Strategies for Private International Law – PIL 9th August 2023 -Wednesday 15:00-18.30- PUC Rio-Gavea, Rio de de Janeiro – Call for Papers –

The Brazilian Research Network on Private International Law (“Brazilian PIL-RN”), an initiative of the Inter-institutional Research Group “Private International Law in Brazil and International Fora” (CNPq/DGP), the Latin American Network of International Civil Procedural Law, the Open Latin American Chair of Private International Law and the American Association of Private International Law – ASADIP – will jointly host the IV Workshop on Research Strategies for Private International Law on August 9, 2023, on the occasion of the awaited XVI ASADIP Conference 2023 (“PIL between the Innovation and the Disruption”) in Rio de Janeiro.

PUC Rio will be our host institution for the IV Workshop on Research Strategies in PIL, in this edition structured in two main clusters:

1. Joint Meeting of PIL Research Groups and Networks in Brazil, ASADIP Region and global partners
2. Thematic panels on IPR research with presentation of scientific papers in Working Groups on PIL and Emerging Issues:

• WG I: Sustainable Development Goals-SDGs and Private International Law

• WG II: Dialogues between PIL, International Law and International Trade
• WG III – Migrations, human rights and private international law
• WG IV – PIL between data flow, artificial intelligence and new technologies
• WG V – Current developments on International legal cooperation

This Call for Papers invites participants and specialists to submit proposals – articles/papers, expanded abstracts (for Master and Doctoral candidates) and posters (Undergraduate students) for the presentation of scientific pieces at the IV Workshop on PIL Research Strategies. It is open to submissions of unpublished/ongoing works by faculty professors, investigators, as well postgraduate and undergraduate students, on topics of interest for the research agenda of Private International Law, its strategies and potential impacts on society, local/regional spaces, and international organizations. Proposals may be submitted in any of the three official languages for ASADIP: Spanish, English and Portuguese.

A such warm-up academic initiative is a part of the main proceedings of the XVI ASADIP Conference2023 “PIL between Innovation and the Disruption”,which will take place between 10-11 August 2023 in Rio de Janeiro (PUC Rio and University of Estado do Rio de Janeiro – UERJ).

Highlight on relevant deadlines: 06/28/2023 – 1st deadline for submission of proposals 05/07/2023 – 2nd deadline for submission of proposals 10/07/2023 – Deadline for the evaluation feedback on the proposals 07/17/2023 – Deadline for issuing invitation letters and acceptance of selected proposals 24/07/2023 – Confirmation of participation and registration of participating authors 09/08/2023 – IV Workshop – PUC Rio – preparation for the XVI ASADIP Conference (2023) Executive/Organizing Committee: Nadia de Araujo (PUC-Rio) Fabricio B Pasquot Polido (University of Minas Gerais – UFMG) Valesca Borges (University of Espirito Santo – UFES) Inez Lopes (University of Brasilia – UnB).

Scientific Committee:

The Scientific Committee for the IV Workshop on PIL Research Strategies will rely on the valuable participation of several scholars from ASADIP member countries and partnering institutions:

Alfonso Ortega Gimenez (Univ. Miguel Hernandez de Elche, Espanha)

Anabela Goncalves (Univ. de Minho, Portugal)
Augusto Jaeger (Fed. Univ. Rio Grande do Sul – UFRGS) Caitlin Mulholland (PUC Rio)
Carmen Tiburcio (University of State of Rio de Janeiro – UERJ)

Clarissa Brandao (Fed University Fluminense-UFF) Daniel Rojas-Tamayo (Univ. Externado, Colombia) Daniela T. Vargas (PUC Rio) Diego P. Fernandez Arroyo (Science Po, Paris) Eduardo Vescovi (Univ. de la Republica, Uruguay) Elizabeth Villalta (Univ. de El Salvador) Eugenia C. Barza (Fed Univ. Pernambuco – UFPE) Fernando P. Meinero (UniPampa) Gustavo F. Monaco (Univ. Sao Paulo) Lidia Spitz (PUC-Rio)

Luis Ernesto Rodriguez (Univ. Central de Venezuela)

Maria Laura Capalbo (Univ. de la Republica, Uruguay)

Maria Mercedes Albornoz (CIDE, Ciudad de Mexico)

Marilda Ribeiro (University of State of Rio de Janeiro – UERJ)

Nieve Rubaja (Univ. de Buenos Aires, Argentina)

Nuria Gonzalez (Univ. Nac. Autonoma de Mexico)
Paula M. All (Univ. Nac. del Litoral, Argentina) Raphael Vasconcelos (University of State of Rio de Janeiro – UERJ) Renata A. Gaspar (ESPM, Sao Paulo)
Tatyana Scheila Friedrich (Fed. University of Parana – UFPR) Valesca Borges (University of Espirito Santo – UFES) General information and submission rules:

• The proposals of papers – articles, expanded abstracts and posters – in the official languages for ASADIP – Spanish, English and Portuguese – should be submitted and sent within the deadlines to the e-mail: 4workshop.dipr.pucrio2023@gmail.com.
• There will be no registration fees and the organising committee will issue acceptance letters according to the flow of requests from selected participants.Participants will be solely responsible for arranging financial support in their respective institutions for transportation, accommodation, travel logistics and per diems for the presentation of selected papers at the IV Workshop.
• The papers selected by peer review and approved should be adjusted according to the guidelines for authors and will be published in books/collections and proceedings of the event, with support from Brazilian and international funding agencies.

More information can be found on the ASADIP website, social media of the organizing institutions and updates on Sympla.

In a judgment of 17 May 2023 (Albaniabeg Ambient sh.p.k v. v. Enel Spa), the French supreme court for private and criminal matters (Cour de cassation) denied enforcement in France to an Albanian judgment on the ground that it had been sought for the purpose of evading an arbitral award made beforehand in Italy.

Background

In 2000, Italian company Bechetti Energy Group S.p.a. (‘BEG Italy’) concluded a co-operation agreement with another Italian company, Enelpower SpA, to develop and operate an Albanian hydroelectric power plant. Enelpower was a wholly owned subsidiary — previously an internal division — of ENEL, Italy’s well known power operator

As Enelpower decided not to pursue the project, BEG Italy initiated arbitral proceedings against Enelpower in Italy. The claims of BEG Italy were denied in an award rendered in 2002, which was subsequently declared enforceable in Italy. An action to set aside the award was lodged with Italian courts, in particular on the ground that one arbitrator had a conflict of interest. It was eventually rejected by the Italian supreme court (Cassazione) in 2009.

In the meantime, the Albanian subsidiary of BEG Italy, Albaniabeg Ambient sh.p.k, which had been created for the purpose of the project, initiated proceedings in Albanian courts in 2004 against Enelpower and its mother company, ENEL, Italy’s power operator, of which Enelpower was a wholly owned subsidiary.  It also claimed compensation for the loss sustained as a consequence of the fact that the project would not be pursued. Albaniabeg prevailed and obtained in 2009 a judgment ordering Enelpower and ENEL to compensate Albaniabeg.

Albaniabeg then started to seek enforcement of the Albanian judgment in various jurisdictions, including in France.

French Common Law of Judgments

Albania being outside of the EU, the enforcement of the Albanian judgment in France was governed by the French common law of foreign judgments. It lays down four condition for that purpose. The first is that the foreign court should have jurisdiction. The second is that the foreign judgment comports with French public policy.

The third and most interesting condition for present purposes is that the judgment should not have been obtained for the purpose of evading the application of French law or the making/enforcement of a French judgment (fraude). The condition is rarely applied. This is because the requirement that the foreign has jurisdiction implies that there is a sufficient connection between the dispute and the foreign court, will typically also give a justification to the plaintiff to bring proceedings and the foreign court, and make it very difficult to demonstrate that the sole purpose of the foreign proceedings were to avoid the application of French law or the making/enforcement of a French judgment.

The fourth condition is that there should be no irreconcilable decision in France. More on this later.

Evasion of an Arbitral Award (fraude à la sentence arbitrale)

The judgment of the Cour de cassation is remarkable for two reasons. First, it applies, for the first time to my knowledge, the concept of evasion (fraude) to an arbitral award. Secondly, it actually finds that the foreign judgment was obtained for the purpose of evading the arbitral award, and denies enforcement to the judgment on this ground.

The court agrees with the findings of the court of appeal that the following facts revealed BEG Italy’s willingness to evade the arbitral award: three months before Albaniabeg initiated the proceedings, its shareholdeds changed in order to create the misleading impression that it was autonomous from BEG Italy, which was in any case the only contracting party in the project at that time;  Albaniabeg had initiated the Albanian proceedings right after BEG had lost the arbitration; Albaniabeg was, in essence, alleging the same breaches (though on a delictual ground) and seeking compensation for the same loss.

The judgment of the Cour de cassation is also interesting as, for the first time, it applies the concept of evasion for a purpose other than protecting the application of French law or the integrity of French judicial proceedings.

Irreconcilable Decisions

Another argument which had been raised against the enforcement of the Albanian judgment was that it was irreconcilable with the arbitral award which was made earlier, and thus recognised in France before the Albanian judgment was made.

One important issue raised by this argument was that the parties were not the same in the arbitral and the Albanian proceedings. But there is a long line of authorities in France which have ruled that third parties cannot interfere with arbitral awards.

I have not seen the judgment of the court of appeal, but I understand that the court of appeal had also denied enforcement on this ground. The Cour de cassation, however, does not address the issue in its judgment. One reason is that it sufficed that it would only confirm that one ground for denying enforcement existed. Whether the judgment rendered by the  European Court of Human Rights in this case was another reason is unclear.

European Court of Human Rights

In January 2010, BEG Italy had lodged a complain against Italy before the European Court of Human Right. In a judgment of 20 May 2021, the ECtHR found that Italy had indeed violated Article 6, § 1, of the European Convention on the ground that it had not sanctioned an arbitration where one of arbitrators’ impartiality could be doubted.

The judgment of the Cour  de cassation does not mention this judgment of the ECtHR, and it is unclear whether it influenced its decision in any way.

One reason why it might not have is that, I understand, at the present time, Italy has not revoked its decision not to set aside the arbitral award. BEG had asked the ECtHR to rule on this, but the Strasbourg court refrained from doing so, leaving it to Italy to decide how to best implement its decision (a report on the situation from an Italian perspective, by Michele Grassi, will appear on this blog in the coming days).

Another reason might be that, whether the arbitral award was rendered by an arbitral tribunal which did not meet the standard of impartiality did not change the fact that the Albanian proceedings were initiated for the purpose of evading the arbitral award.

Sarah McKibbin (University of Southern Queensland) and Anthony Kennedy (Serle Court Chambers, London; St Edmund Hall and Somerville College, Oxford) edited a book titled The Common Law Jurisprudence of the Conflict of Laws, with Bloomsbury.

This book presents a collection of leading common law cases in private international law ranging from the 18th to the 21st century. The cases traverse issues of jurisdiction, choice of law and the recognition and enforcement of foreign judgments. Questions of marital validity, domicile, foreign immovable property and choice of law in contract are just some of the topics that this collection examines. The ‘unusual factual situations’ of some 18th- and 19th-century English cases also reveal compelling human interest stories and political controversies worthy of further exploration.
Drawing on a diverse team of contributors, this edited collection showcases the research of eminent conflicts scholars together with emerging scholars from the United Kingdom, Australia, Canada, Ireland and South Africa.

The table of contents can be accessed here.

Those ordering the book online at www.bloomsbury.com are offered a 20% discount (the codes are GLR BE1UK for UK orders, and GLR BE1US for US orders).

Professor Dr. Giesela Rühl, LL.M. (Berkeley) is currently seeking to fill three PhD positions at her Chair at Humboldt University of Berlin ( https://www.rewi.hu-berlin.de/en/lf/ls/rhl/index.html).

The successful candidate should have a keen interest in issue of private international law, international civil procedure and/or civil procedure (including access to justice and digital justice). Since the positions come with teaching obligations, knowledge of the German language (and German law) is required.

The official call for applications will be out soon. In the meanwhile if you are interested (or have any questions) please do not hesitate to get in touch: sekretariat.ruehl.rewi@hu-berlin.de.

On 31 May 2023, the Commission adopted an implementing decision whereby the European citizens’ initiative (ECI) entitled Effective implementation of the concept of judicial precedent in EU countries shall be registered. The English version can be downloaded here.

The decision has been taken pursuant to Regulation (EU) 2019/788 on the European citizens’ initiative. The Regulation establishes the procedures and conditions required for an initiative inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens of the Union consider that a legal act of the Union is required for the purpose of implementing the Treaties.

The initiative comes from a small group of persons (according to Article 5 of the Regulation, an initiative must be prepared by at least seven natural persons), whose affiliation is not disclosed on the webpage. The e-mail address of the substitute to the representative of the organisers points to the University of Bucarest.

The objectives of the initiative as expressed by the organisers are the introduction of ‘a mechanism at national level which guarantees mutual recognition of final judicial decisions adopted by courts’ in other Member States and ‘the option of invoking national judicial precedents decided by the courts of the country in question’, with a view to ‘consolidat[ing] a uniform judicial practice among the Member States’.

The mechanism would apply provided that: ‘(a) the Court of Justice of the European Union (CJEU) has had occasion to interpret the applicable provisions of EU law’ and that ‘(b) the case in question concerns similar or identical legal questions’. The organisers ask for the mechanism to be ‘actually available to litigants, allowing them to request the recognition of another decision relevant to their case at any stage of the proceedings.’ Furthermore, they consider that ‘a certain degree of flexibility should be ensured in light of the ‘rebus sic stantibus’ clause, making it possible to change the case-law if certain fundamental circumstances have changed.’ In addition, Member States should be ‘obliged to impose  effective, dissuasive and proportionate penalties in cases where the mechanism is not complied with’.

The text of the initiative is available here. Judging from its last paragraph, it has wide ambitions in terms of material scope: ‘Firstly, the initiative is based on Articles 81 and 82(1) TFEU as regards the recognition of judgments with cross-border implications. Secondly, the proposal is based on Article 352 TFEU and potentially Article 114 TFEU, so as to cover all situations which lead to inconsistent application and interpretation of EU [law] that could impede the attainment of EU’s objectives and the proper functioning of its internal market.’

In the absence of further explanations, I am not sure (but curious) about how the future mechanism would relate to already existing EU legal texts on the recognition and enforcement of foreign judgments in civil and commercial matters.

I fail to see third parties to a decision being granted, as per EU law, a right to requests its recognition in the usual sense of the word; but perhaps there is a new notion of recognition in the making – one providing for ‘precedential’ effect. Or, maybe, what makes the difference between the initiative’s desired mechanism in comparison to the status quo is the prong on ensuring litigants an option to rely ‘on national judicial precedents decided by the courts of the State concerned’, if ‘the State concerned’ is means a Member State other than the one where the court seized sits.

Again, I am not sure this is the correct understanding of the initiative, which at some point states that The mechanism ‘should apply not only to recognising final judicial decisions adopted in other Member States, but also to recognising final judicial decisions adopted in the country in question’ (italics added).

In any event, the future mechanism would only apply subject to three cumulative criteria being met: (i) the final judicial decision at stake applied provisions of Union law; (ii) the CJEU has already interpreted the same relevant provisions of Union law and (iii) the case concerned is governed by similar or identical points of law. First and second conditions do not look like too difficult to identify in a given case; the same can definitely not be claimed for the third one.

As a rule, all statements of support of a citizen’s initiative* shall be collected within a period not exceeding 12 months from a date chosen by the group of organisers (the ‘collection period’). According to Article 8 (1) of Regulation 2019/788, that date must be not later than six months from the registration of the initiative in accordance with Article 6. So far, I have found no indication on how to express support to this particular initiative. Pursuant to Article 11(7) of Regulation 2019/788, the recourse to individual online collection systems will no longer be possible for initiatives registered after the end of 2022; organisers will thus have to use the central online collection system, for which the Commission is responsible. It maybe that further clarification as regards the exact scope of the initiative’s proposed mechanism is to be found there (not to be taken for granted, though: assuming it is technically possible, there is a thin line between simply explaining an initiative and actually amending it).

*In order to ensure that a European citizen’s initiative is representative, a minimum number of signatories coming from each of those Member States is required. This translate into conditions set under Article 3 of the Regulation. Statistics on European Citizen Initiatives presented, registered, and valid, can be found in a recent report of the European Parliament.

The Visible College of International Lawyers and the HCCH 2019 Judgments Convention –Conference in Bonn

The HCCH 2019 Judgments Convention has been the subject of an ever-growing body of academic research and discussion ever since it was signed; but due to the pandemic, almost all of it had to happen in writing. Just in time for its entry into force, though, and thus perfectly timed, the first international conference on the HCCH 2019 Judgments Convention Cornerstones – Prospects – Outlook took place a week ago at the University of Bonn, hosted by Matthias Weller together with Moritz Brinkmann and Nina Dethloff, in cooperation with the Permanent Bureau of the HCCH, and with the support of the German Federal Ministry of Justice.

The conference brought together much of the aforementioned discussion between a range of academics, practitioners and policymakers, including the contributors to the book of the same title, edited by Matthias Weller, João Ribeiro-Bidaoui, Moritz Brinkmann, and Nina Dethloff, for which the conference doubled as a launch event. It accordingly followed the same structure, organized into seven panels overall that were split into three larger blocks.

 

The first of those (“Cornerstones”) focused on some of the core concepts underpinning the Convention. Wolfgang Hau (LMU Munich) discussed the meaning of ‘judgments’, ‘recognition’, and ‘enforcement’; Pietro Franzina (Catholic University of Milan) focused on the jurisdictional filters (with an emphasis on contractual obligations, i.e. Art. 5(1)(g)); and Marcos Dotta Salgueiro (University of the Republic of Montevideo) discussed the grounds for refusal. After some lively discussion, the block continued with papers on the Convention’s much-discussed Art. 29 (Cristina Mariottini (Luxembourg)) and on its interplay with the 2005 Choice of Court Convention (Paul Beaumont (University of Stirling)).

Also in light of some less nuanced recent interventions, Cristina Mariottini’s paper was particularly welcome to dispel some myths surrounding Art. 29. The speaker rightly pointed out that the mechanism is not only very different from the much-criticized bilaterilasation requirement of the 1971 Convention but can also be found, in one form or another, in a range of other instruments, including the rather successful 1970 Evidence and 1980 Child Abduction Conventions.

A much wider angle was then taken in the second block (“Prospects for the World”), which brought together perspectives from the European Union (Andreas Stein (European Commission)), the US (Linda Silverman (NYU)), Canada (Geneviève Saumier (McGill University)), the Balkan Peninsula (Ilja Rumenov (Skopje University)), Arab countries (Béligh Elbalti (University of Osaka)), Africa (Abubakri Yekini (University of Manchester) and Chukwuma Okoli (University of Birmingham)), the MERCOSUR Region (Verónica Ruiz Abou-Nigm (University of Edinburgh)), the ASEAN countries (Adeline Chong (SMU)), and China (Zheng (Sophia) Tang (Wuhan University)) in four consecutive panels. While the first block had already highlighted some of the compromises that had to be made during the drafting of the Convention and at the diplomatic conference, it became even clearer that the Convention (or, more precisely, the prospect of its ratification) may be subject to vastly different obstacles and objections in different parts of the globe. While some countries may not consider the Convention to be ambitious enough, others may consider it too much of an intrusion into their right to refuse the recognition and enforcement of foreign judgments – or raise even more fundamental concerns regarding the implementation of the Convention, its interplay with existing bilateral treaties (seemingly a particularly pertinent problem for Arab countries), or with multilateralism in recognition and enforcement more generally. The conference gave room to all of those concerns and provided important context through some truly impressive comparative research, e.g. on the complex landscape of bilateral agreements in and between most Arab states.

The different threads of discussion that had been started throughout the event were finally put together in a closing panel (“Outlook”). Ning Zhao (HCCH) recounted the complicated genesis of the Convention and reflected on the lessons that could be learned from them, emphasizing the need for bridging differences through narrowing down the scope of projects and offering opt-out mechanisms, and for enhancing mutual trust, including through post-convention work. She also provided an update on the ongoing jurisdiction project; José Angelo Estrella Faria (UNIDROIT) advocated a holistic approach to judicial cooperation and international commercial arbitration; and Hans van Loon (HCCH) finally summarized the conference as a whole, putting the emphasis both on the significant achievement that the convention constitutes and the need to put further work into its promotion.

The conference had set out to identify the cornerstones of the 2019 Convention, to discuss its prospects, and to provide an outlook into the future of the Convention. It has clearly achieved all three of these goals. It included a wide range of perspectives on the Convention, highlighted its achievements without shying away from discussing its present and future obstacles, and thus provided ample food for thought and discussion for both the proponents and the critics of the Convention.

At the end of the first day, Burkhard Hess (MPI Luxembourg) gave a dinner speech and reflected on the current shape of the notorious ‘invisible college of international lawyers’ in private international law. As evidenced by the picture above, the college certainly was rather visible in Bonn.