Flux des sites DIP

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G McCormack, “Conflicts in insolvency jurisdiction”

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

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

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

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

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

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

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

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

Review Article

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

The Yukos saga is a gift that keeps on giving.

Following the nationalisation of Yukos in 2007, the former shareholders commenced a number of arbitral proceedings against Rosneft, which acquired Yukos’ assets, and Russia.

Many readers of the blog will know that the English courts have already dealt with an aspect of the Yukos saga. The arbitrations against Rosneft were seated in Russia. The arbitral tribunals decided in favour of the claimants. The awards were set aside in Russia. Nevertheless, the award creditors tried to enforce the awards in the Netherlands and England. The Dutch courts refused to recognise the Russian settings aside. In 2012, the Court of Appeal of England and Wales held that the foreign act of state doctrine did not apply to allegations of impropriety against foreign court decisions and that the Dutch judgments did not create an issue estoppel in England because the issues raised in the Dutch and the English proceedings were not the same (violations of Dutch and English public policy, respectively).

Cockerill J has now dealt with another aspect of the saga. The arbitration against Russia was commenced under the Energy Charter Treaty and was seated in the Netherlands. The arbitral tribunal (Yves Fortier as Chairman, Charles Poncet, and Stephen M Schwebel) ordered Russia to pay USD50bn to the claimants plus compound interest accruing at around USD2.5m a day. Russia tried to set aside the arbitral award, while the award creditors tried to enforce it in England. The Hague Court of Appeal rejected Russia’s challenges that the tribunal did not have jurisdiction and that there was fraud in the arbitration. The Dutch Supreme Court upheld the Court of Appeal’s ruling regarding the jurisdictional issue but held that the Court of Appeal had erred with respect to the fraud issue. The judgment was quashed and returned to the Court of Appeal for further consideration and decision. Did the Dutch judgments create an issue estoppel in England regarding the jurisdictional issue? Cockerill J answered the question positively in his judgment of 1 November 2023 in Hulley Enterprises Ltd v Russia.

There were four issues before the court: 1) can a foreign judgment against a state create an issue estoppel; 2) did the Dutch judgments satisfy the requirements for recognition from section 31 of the Civil Jurisdiction and Judgments Act 1982; 3) were the issues in the Dutch and English proceedings the same; and 4) were the Dutch judgments res judicata regarding the jurisdictional issue?

It may be surprising to hear that there was no clear authority on whether a foreign judgment against a state can create an issue estoppel. The court found that under common law there was ‘no reason why, if the relevant hurdles are cleared, there cannot be an issue estoppel arising out of a foreign judgment against a state, just as there can be against an ordinary company or individual’ ([48]).

Section 31(1)(b) of the Civil Jurisdiction and Judgments Act 1982 provides that a foreign judgment against a state can be recognised and enforced in England only if the court of origin would have had jurisdiction in the matter if it had applied rules corresponding to those applicable to such matters in the United Kingdom in accordance with the State Immunity Act 1978. ‘In other words: you can enforce/recognise a judgment here, but only if you could have got it here.’ ([42]) Section 2 of the 1978 Act provides that submission to jurisdiction is an exception to immunity. Russia submitted to the jurisdiction of the Dutch courts by challenging the award there.

The issues in the Dutch and English proceedings were the same, namely the validity of the arbitration agreement.

After hearing from experts on Dutch law, the court found that the Dutch judgments were res judicata regarding the jurisdictional issue, even if the Supreme Court had quashed the part of the Court of Appeal judgment dealing with the fraud issue and returned it to the Court of Appeal.

The outcome is that:

a particular legal battle has already been fought out fully between the parties. The RF chose to dispute jurisdiction, including the construction of Article 45 ECT, in the Netherlands. It has..had a determination, and cannot seek to have another one before a different court. ([55])

Consequently, the court dismissed the jurisdictional challenge to the enforcement of the arbitral award and, furthermore, stated that Russia was not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration pursuant to section 9 of the 1978 Act.

The Dutch and English courts are yet to deal with the fraud issue. The next chapter of the Yukos saga is eagerly awaited.

The fourth issue of the Journal du droit international for 2023 has been released.

It contains three articles and several case notes relating to private international law issues, including the 2022 annual case-law review of EU private international law coordinated by Louis d’Avout (University of Paris II) and Jean-Sébastien Quéguiner (University of Rennes).

In the first article, Hugues Fulchiron (French Cour de Cassation & University of Lyon 3) analyses the recent EU PIL regulation proposal in matters of parenthood, assessing its chances to be actually adopted (La proposition de règlement européen sur la filiation: coup de maître ou coup d’épée dans l’eau?).

The English abstract reads:

The proposal for a European Regulation on filiation published on December 7, 2022, came as a surprise, given that matters of filiation are an area where national specificities and principles of public order prevail. This is evidenced by the strong opposition among EU Member States on issues related to same-sex parenthood or surrogacy. It aligns with EU policies aimed at recognizing children’s rights and promoting equal treatment for LGBTIQ individuals. It also aims to facilitate the movement of people by ensuring the portability of their status.

To achieve its objectives, the proposal broadens the scope of its jurisdiction and adopts a conflict of laws rule that is sufficiently general and neutral to encompass all situations, from traditional families to same-sex parent families or children born through surrogacy. Above all, everything is designed to facilitate the recognition of parent-child relationships established in a Member State. To this end, a European Certificate of Filiation is notably established. The role of public policy is also strictly limited. Nevertheless, this ambitious project may face opposition from Member States. To avoid roadblocks, it might be necessary to resort to enhanced cooperation and refer questions related to surrogacy to the ongoing work within the Hague Conference on Private International Law.

In the second article, Marylou Françoise (University of Lyon 3) examines the role of (French) courts in private international law disputes from the perspective of the French Draft Code of private international law (L’office du juge à la lumière du projet de Code de droit international privé).

The English abstract reads:

The French draft Code of private international law, submitted to the Minister of Justice on March 31, 2022, modifies a significant number of existing standards. The provisions relating to the powers of a court are particularly affected, renewing the debate on the authority of the conflict of laws and international jurisdiction rule over the judge and the parties. The solution adopted is particularly favorable to the effectiveness of the rule. It requires the judge to verify her or his international jurisdiction and to apply, if necessary ex officio, the conflict of laws rule. However, the proposed framework raises several questions about its implementation. For instance, the scope of the proposal, the status of foreign elements and the form of the procedural agreement, deserve to be discussed.

In the third article, Cécile Legros (University of Rouen Normandie) analyses a recent decision of the UK Supreme Court in matters of international carriage of goods by road (JTI POLSKA Sp. Z o.o. and others v Jakubowski and others [2023] UKSC 19) and addresses questions of interpretation of international conventions in this area (La force du précédent en droit britannique ou les limites de l’interprétation uniforme des conventions internationales de droit matériel).

The English abstract reads:

For once, the Supreme Court of the United Kingdom has just ruled on a request to reverse established case law. The application sought to put an end to a divergence in case law between the States parties to the Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956 (known as the CMR), which is a uniform law convention. Although the Court refuses to reverse this precedent, the judgment is remarkable in several respects, particularly as regards the method of interpreting uniform law conventions. However, it is disappointing in terms of improving uniform interpretation of the CMR, so that other solutions need to be considered. Soft law thus appears to be a possible remedy for the limitations of uniformization by international conventions.

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

Two years ago, the Uniform Law Conference of Canada (ULCC) released a revised version of the Court Jurisdiction and Proceedings Transfer Act (CJPTA), model legislation putting the taking of jurisdiction and staying of proceedings on a statutory footing. The statute is available here.

The ULCC has now released a revised version of another model statute, the Enforcement of Canadian Judgments Act (ECJA). The original version of this statute was prepared in 1998 and had been amended four times. It has now been consolidated and substantially revised. It is available here and background information is available here and here.

Disclosure: I was the lead researcher and a member of the Working Group for the revised ECJA.

The ECJA is based on the general rule that a party seeking to enforce a Canadian judgment in a province or territory that has enacted the ECJA should face no additional substantive or procedural barriers beyond those that govern the enforcement of judgments of the local courts.

The core features of the ECJA are unchanged. The statute allows for the registration of a Canadian judgment (a defined term: s 1). This is an alternative from the common law process of suing on the judgment. Registration is a simple administrative process (s 4) and makes the judgment enforceable as if it were a judgment of the province or territory in which it is registered (s 5). The aim is to make the enforcement of Canadian judgments easier.

Another core feature is also unchanged. The defendant cannot, at the registration stage, object to the jurisdiction of the court that rendered the judgment (s 7(4)(a)). Any challenge to the jurisdiction of that court must be made in the province or territory in which the plaintiff has chosen to sue.

What has changed? First, the commentaries to the statutory provisions have been extensively revised. In part this reflects the many developments that have occurred over the past thirty years. Second, a new provision (s 1(3)(f)) makes it clear that the scheme does not apply to a judgment that itself recognizes or enforces a judgment of another province, territory or foreign jurisdiction. This precludes registering so-called “ricochet” judgments. There had been some debate in the jurisprudence about whether the scheme applies to such judgments. Third, a clearer process has been established (s 7(1)) for setting aside a registration (for example, if the judgment does not in fact meet the requirements for registration). Fourth, there are some smaller changes to provisions dealing with the calculation of post-judgment interest (s 8) and costs of the registration process (s 9).

In addition, an optional defence to registration has been added (s 7(2)(a)(ii)). The defence protects individual defendants who are resident in the place of registration against certain judgments in consumer and employment litigation. Such a defence is not, in general, available under the current statutory schemes or at common law: these treat consumer and employment litigation similar to all other civil litigation rather than as a special case. The defence is optional in that it is left to an enacting province or territory to decide whether to implement it.

It will now fall to the provinces and territories that have enacted the ECJA to determine how to respond to these changes. A version of the statute is in force in several provinces and territories including British Columbia, Manitoba, Nova Scotia and Saskatchewan. It will also be interesting to see if the revised and updated version generates any interest in the provinces and territories that did not enact the earlier version (which include Alberta, Ontario and Quebec).

The expectation is that the ULCC will now turn its attention to revising its third model statute in this area, the Enforcement of Foreign Judgments Act (available here).

The Private International Law Department of the University of Alicante is organizing a conference entitled “Digital Justice for Cross-border Cases” (both onsite and online – in Spanish). The event will take place on 23 November 2023 at the Salón de Grados “Rector Ramón Martín Mateo” of the Faculty of Law at the University of Alicante.

This event is financed by the Spanish Ministry of Science and Innovation, the State Agency of Investigation and funds from the European Regional Development Fund. More information is available here.

Participation is free of charge.  To register click here. Last day to register is 20 November 2023.

Any questions may be directed to proyectodijta@gmail.com.

Please find the program below.

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 two in English language. Here are the authors, titles and abstracts:

Horatia Muir Watt, An Ontology of the In-Between [18th Ernst Rabel Lecture, 2022] (Open Access)

The conflict of laws can serve heuristically to underscore two established but radically opposing models of modernist legal ordering: multilateralism and statutism. Such a prism is helpful if we want to rethink (as we must!) our late-modern legality’s deep epistemological settings in the shadow of the »catastrophic times« to come, whether in terms of environmental devastation or political dislocation. Both phenomena are profoundly linked and indeed constitute two faces of alterity, natural and cultural, from which modernity has progressively taught us to distance ourselves. Importantly, law encodes the conditions that produce these dual somatic symptoms in our contemporary societies. This chasm between nature and culture has produced humanity’s »ontological privilege« over our natural surroundings and a similar claim of superiority of modern (Western) worldviews over »the rest«. In this respect, the main achievement of the moderns, as Bruno Latour wryly observed, has been to universalise the collective blindness and amnesia that allow our »anthropocentric machine« to hurtle on, devastating life in its path and devouring the very resources it needs to survive.

Anton S. Zimmermann, Kriegskollisionsrecht. Ein Beitrag zum international-privatrechtlichen Umgang mit Gebietseroberungen (War and the Conflict of Laws – Private International Law’s Treatment of Territorial Conquest.)

The Russian war of aggression against Ukraine constitutes a breach of a fundamental consensus in public international law: states have authority over their territory. One element of territorial sovereignty is the right to legislate in the field of private law. If a territory is conquered, this right is – in breach of public international law – usurped by the conquering state. This article examines how private international law deals with such changes in factual power. It demonstrates that private international law is more flexible than is commonly assumed and that it can provide a differentiated and adequate reaction to occupations and annexations.

Wenliang Zhang and Guangjian Tu, Recent Efforts in China’s Ambition to Become a Centre for International Commercial Litigation

The last decade or so has witnessed intensifying efforts by China to reshape its legal framework for international commercial litigation. These efforts echo its advancement of the »One Belt and One Road Initiative« and a policy of strengthening the foreign-related rule of law. But the measures so far have been piecemeal and were adopted mainly by the Supreme People’s Court (SPC). Leading lower Chinese courts, the SPC has zealously advanced the reform of international commercial litigation by devices such as international commercial courts (ICCs), anti-suit injunctions, forum non conveniens and de jure reciprocity favouring recognition and enforcement of foreign judgments. Such efforts may help modernize China’s mechanism for international commercial litigation, and more are expected. Although what the SPC has been doing moves closer to the global mainstream and is on the right track, deep reforms are still needed before the Chinese international commercial litigation regime can »go global«.

Mathias Habersack and Peter Zickgraf, Sorgfaltspflichten und Haftung in der Lieferkette als Regelungsmodell: Rechtsentwicklung – Rechtsvergleichung – Rechtsökonomik – Rechtsdogmatik (Corporate Sustainability Due Diligence and Supply Chain Liability as a Regulatory Model: Legal Developments – Comparative Assessment – Economic Analysis – Legal Theory)

The proposal for a Corporate Sustainability Due Diligence Directive significantly exceeds the German Supply Chain Act (LkSG) not only in terms of its scope of application and the protected interests, but also regarding the enforcement mechanism in the event of a violation of a due diligence duty. While the LkSG has taken a stand against private enforcement in its § 3 para. 3 s. 1, Art. 22 of the proposed Corporate Sustainability Due Diligence Directive makes companies civilly liable for misconduct committed by their subsidiaries and business partners. The present article deals with the conceptual fundamentals of this regulatory model: From a comparative perspective, the proposed duties and accompanying civil liability mark a departure from the independent contractor rule which is deeply rooted in the tort laws of the German and Anglo-American legal families; the proposed regulatory model thus brings about a sector-specific paradigm shift in the law of non-contractual liability. From a law and economics perspective, however, the proposed regulatory model is justifiable given the special factors present in typical cases. The liability risks associated with the regulatory model appear to be manageable for companies if the pre-conditions of their potential civil liability are more clearly specified.

The table of contents in German is available here.

Last Thursday, on November 9, 2023, Draft No. 02.23 proposing the adoption of a new Code of Civil Procedure (al-musattara al-madaniyya) was submitted to the House of Representatives in Morocco. One of the most significant innovations in this draft is the introduction, for the first time in Morocco’s history, of a catalog of rules on international jurisdiction. Additionally, it modifies the existing rules on the enforcement of foreign judgments.

Despite the importance of this legislative initiative for the development of private international law in Morocco, the proposed provisions are, unfortunately, disappointing in many respects.

Firstly, concerning the rules of international jurisdiction, it is surprising that the drafters of 2023 heavily relied on the rules found in the Egyptian Code of Civil Procedure, which date back to the fifties of the last century. These rules are, in many respects, completely parochial and outdated. Other codifications from the MENA region (e.g., the Tunisian codification of PIL) or elsewhere (e.g., recent codifications of PIL in Europe and Asia) could have served as better models. Furthermore, the proposed rules seem to have overlooked developments at the regional or international level, particularly those in the European Union and the Hague Conference on Private International Law over the last two decades. The fact that the new proposed rules do not consider even the solutions of the 1991 Ras Lanouf Convention, a double convention concluded between the Maghreb countries (though not yet ratified by Morocco), is hard to explain.

Examples of questionable aspects of the new proposed rules include, among others:

• Adopting the defendant’s nationality as the basis for jurisdiction in all matters, including civil and commercial matters, even if the dispute has no connection with Morocco.
• Failing to distinguish between concurrent and exclusive jurisdiction. This is problematic because the new proposed provision on the requirements for the enforcement of foreign judgments allows Moroccan courts to refuse enforcement if the judgments are rendered in matters falling within the exclusive jurisdiction of Moroccan courts, without providing a list of such matters.
• Adopting questionnable and outdated grounds of jurisdiction, such as location of property without limits and the place of conclusion of the contract.
• Failing to introduce new rules that consider the protection of weaker parties, especially employees and consumers.
• Failing to include a clear and coherent rule on choice of court agreements.
• Failing to include a rule on lis pendens.

Secondly, regarding the enforcement of foreign judgments, the main surprise is the introduction of the reciprocity rule, which has not been part of the law on foreign judgments in Morocco. Moreover, Moroccan courts have never invoked reciprocity when dealing with the enforcement of foreign judgments, neither as a possible requirement nor to reject giving effect to foreign judgments. It is not clear why the drafters felt the need to introduce reciprocity when there does not seem to be any particular problem with the enforcement of Moroccan judgments abroad.

The following is a loose translation of the relevant provisions. The text in brackets has been added by the author.

Part II – The Jurisdiction of the Courts

Chapter IV – International Judicial Jurisdiction

Article 72 [(General) Jurisdiction over Moroccans]
The courts of the Kingdom shall have jurisdiction to hear actions brought against Moroccans even if they are not domiciled or resident in Morocco, except when the action concerns immovables located abroad.

Article 73 [(General) Jurisdiction over Foreigners Domiciled or Residence in Morocco]
The courts of the Kingdom shall have jurisdiction to hear actions brought against foreigners who are domiciled or resident in Morocco, except where the dispute concerns immovables located abroad.

Article 74 [(Special) Jurisdiction over Foreigners not domiciled or resident in Morocco]
[1] The courts of the Kingdom shall have jurisdiction to hear actions brought against foreigners who are not domiciled or resident in Morocco [in the following cases]:

1. [Property and Obligations] [if the action] concerns property located in Morocco, or an obligation formed, performed, or should have been performed in Morocco;

2. [Tortious Liability] [if the action] concerns tortious liability when the act giving rise to liability or the damage takes place in Morocco;

3. [Intellectual Property] [if the action] concerns the protection of intellectual property rights in Morocco;

4. [Judicial Restructuring] [if the action] concerns procedures for businesses in difficulty instituted in Morocco;

5. [Joint Defendants] [if the action] is brought against joint defendants, and one of them is domiciled in Morocco;

6. [Maintenance] [if the action] concerns a maintenance obligation and the maintenance creditor is resident in Morocco;

7. [Filiation and Guardianship] [if the action] concerns the filiation of a minor resident in Morocco or a matter of guardianship over a person or property;

8. [Personal status] [if the action] concerns other matters of personal status:

a) if the plaintiff is Moroccan;
b) if the plaintiff is a foreigner who has resident in Morocco and the defendant does not have a known domicile abroad,

9. [Dissolution of marriage] [if the action] concerns the dissolution of the marital bond:
a) if the marriage contract was concluded in Morocco;
b) if the action is brought by a husband or a wife of Moroccan citizenship;
c) if one of the spouses abandons the other spouse and fixes his/her domicile abroad or has been deported from Morocco

[2] [Counterclaims and related claims] The courts of the Kingdom that have jurisdiction over an original action shall also have jurisdiction to hear counterclaims and any related claims.

[3] [Conservative and Provisional measures] The courts of the Kingdom shall also have jurisdiction to take conservative and provisional measures to be executed in the Kingdom even if they do not have jurisdiction over the original action.

Article 75
[1. Consent and Submission] The courts of the Kingdom shall also have jurisdiction to hear actions even if they do not fall within the jurisdiction of the defendant explicitly or implicitly accepting their jurisdiction unless the action concerns an immovable located abroad.

[2. Declining jurisdiction] If the defendant in question does not appear, the court shall [in its motion] rule that it has no jurisdiction.

Part IX – Methods of Execution
Chapter III – General Provisions relating to Compulsory Execution of Judicial Judgments

Article 451 [Necessity of an Exequatur Declaration]
Foreign judgments rendered by foreign courts shall not be enforced unless they are declared enforceable following the conditions laid down in the present Act.

Article 452 [Procedure]
[1] The request for exequatur shall be submitted to the First President of the court of the second instance with subject-matter jurisdiction.
[2] Jurisdiction shall lie with the court of the place of execution, and the executor shall have the authority to pursue the execution wherever the property of the person against whom the execution was issued is found.
[3] The first president or the person replacing him/her shall summon the defendant when necessary.

Article 453 [Requirements]
The foreign judgment shall not be declared enforceable except after verifying that the following requirements are satisfied:
[a] The foreign court did not render a judgment that falls within the exclusive jurisdiction of Moroccan courts;
[b] There exists a substantial connection between the dispute and the court of the state where the judgment was rendered;
[c] There was no fraud in choosing the rendering court;
[d] The parties to the dispute were duly summoned and properly represented;
[e] The judgment became final and conclusive following the law of the rendering court;
[f] The judgment does not contradict with a judgment already rendered by Moroccan courts;
[g] The judgment does not violate Moroccan public policy.

Article 454 [Documents and Appeal]
[1] Except otherwise stipulated in the international conventions ratified by Morocco and published in the Official Gazette, the request [for declarations of enforceability] shall be submitted by way of application accompanied by the following:
[a] an official copy of the judicial judgment
[b] a certificate of non-opposition, appeal, or cassation
[c] a full translation into Arabic of the documents referred to above and certified as authentic by a sworn translator.
[2] The judgment of granting exequatur can be subject to appeal before the Supreme Court.
[3] The Supreme Court shall decide on the appeal within one month.
[4] Judgments granting exequatur in cases relating to the dissolution of marriage shall not be subject to any appeal except by the public prosecutor.

Article 455 [Titles and Authentic Instruments]
Titles and authentic instruments established abroad before competent public officers and public servants can be enforced in Morocco after being declared enforceable, and that after showing that the title or the authentic instrument has the quality of an enforceable title and that it is enforceable following the law of the State where it was drawn up and does not violate the Moroccan public policy.

Article 456 [International Conventions and Reciprocity]
The rules laid down in the previous articles shall be applied, without prejudice to the provisions of the international conventions and treaties ratified by the Kingdom of Morocco and published in the Official Gazette. The rule of reciprocity shall also be considered.

CHINESE JOURNAL OF TRANSNATIONAL LAW

Call for Papers

Special Issue: Private International Law and Sustainable Development in Asia

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

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

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

Topics could include, but are not limited to:

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

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

An abstract of 500-800 words should be submitted by 20 Feburary 2024 to PIL.sustainability.CJTL@ed.ac.uk and CJTL.Editor@whu.edu.cn (please send the abstract to both email addresses). Please include the contributor’s last name in the email title. Selected contributors will be invited to submit a draft paper by 1 October 2024 in advance of a hybrid conference at Wuhan University in November 2024 . The submission of the full article through the journal’s homepage: https://journals.sagepub.com/home/ctl is required by 1 March 2025. Accepted articles will be published online first as advanced articles. Contributors may choose between: Research articles (up to 11,000 words inclusive of footnotes) or short articles (up to 6,000 words inclusive of footnotes). The special issue will be published in September 2025.

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

Chinese Journal of Transnational Law

SAGE

Aims and Scope

The Chinese Journal of Transnational Law is a double-blind peer review journal that aims to address internationally emerging transnational challenges that transcend intellectual and geographic boundaries and require academics from different countries to establish dialogue and communication, and to form understanding and trust. The journal takes a thematic approach to address global challenges from the perspective of transnational law, which is also broadly defined to cover international law (public and private), international economic law, comparative law, the interaction between domestic and international law, and any other legal field possessing a cross-border element. Although published solely in English, the journal embraces relevant submissions from different cultures and regions thus refraining from accentuating the Anglo-Saxon monopoly in the constituency of international legal studies. Its aims and scope are designed in a way that reflects and respects the diversity of views and opinions born out of the particular experiences of different legal regions and attracts readers from the global, regional and Chinese markets. However, it will do so all while providing a forum to enable the analysis, and better understanding, of China, Asia and developing countries’ related matters and perspectives on international and transnational legal issues and their influence in shaping related global legal developments and debates. The journal shall be open to not only traditional doctrinal and theoretical legal research on transnational law, but also policy-oriented, contextual and inter-disciplinary research. Although focused on contemporary matters in its aspiration to be a forum for the latest debates on transnational legal studies, it also considers submissions inspired by in-depth historical perspectives that cast new light on present developments.

This journal includes three sections:

• Research articles (up to 11,000 words inclusive of footnotes)
• Short articles and recent development (up to 6,000s inclusive of footnotes)
• Book reviews on transnational law related issues (up to 1,500 words)

Managing board:

Editors-in-Chief: Prof. Sophia Tang & Prof. Ignacio de la Rasilla (Wuhan University)
Heads of Research Articles: Prof. Prof. Qi Tong and Prof. Su Jinyuan (Wuhan University)
Head of Short Articles and Recent Development: Associate Prof. Zhu Lei (Wuhan University)
Book reviews Editor: Assist. Prof. Hao Yayezi (Wuhan University)

Editorial Board

Bjorn Ahl, University of Cologne, Germany
Joaquin Alcaide, Seville University, Spain
Freya Baetens, Oxford University, UK
Ilias Bantekas, Hamad Bin Khalifa University, Qatar
Congyan Cai, Fudan University, China
Adeline Chong, Singapore Management University, Singapore
Ming Du, University of Durham, UK
George Galindo, University of Brasilia – ILC, Brazil
Qisheng He, Peking University, China
Yenkong N. Hodu, Manchester University, UK
Jie Huang, Sydney University, Australia
Zhengxin Huo, China University of Politics and Law, China
Mary Keyes, Griffith University, Australia
Nico Krisch, The Graduate Institute, Geneva, Switzerland
Frédéric Mégret, McGill University, Canada
Jianqiang Nie, Wuhan University, China
Michaels Ralf, Max Planck Institute, Hamburg, Germany
Giesela Ruhl, Humboldt University, Germany
Guangjian Tu, Macau University, Macau, China
Jiangyu Wang, Hong Kong City University, China
Shen Wei, Shanghai Jiao Tong University, China

International Scientific Advisory Board

Karen Alter, Northwestern University, USA
Paul Beaumont, University of Stirling, UK
Jose Beneyto, University San Pablo CEU, Madrid, Spain
Simon Chesterman, National University of Singapore, Singapore
Huikang Huang, Wuhan University – ILC, China
Jin Huang, China University of Politics and Law, Beijing, China
Marcelo Kohen, The Graduate Institute, Geneva, Switzerland
Christian Mestre, Wuhan University, China
Roger O’Keefe, Bocconi University, Italy
Anne Peters, Max Planck Institute, Heidelberg, Germany
Hélène Ruiz-Fabri, Max Planck Institute, Luxembourg, Germany
Symeon C. Symeonides, Willamette University, USA
Jorge Viñuales, Cambridge University, UK
Yongping Xiao, Wuhan University, China
Jinsong Yu, Renmin University, China
Peer Zumbansen, McGill University, Canada

Starting 30 November 2023, the French Cour de cassation is going to host a lecture series on the ongoing discussion of Brussels Ia reform under the direction of Marie-Elodie Ancel (Université Paris-Panthéon Assas) and Pascal de Vareilles-Sommières (Université Paris 1 Panthéon-Sorbonne).

The programme of the first session – and the video stream! – can be found here.

Written by Dr Ekaterina Aristova, Leverhulme Early Career Fellow, Bonavero Institute of Human Rights, University of Oxford

On 19 October 2023, the English High Court declined to exercise jurisdiction in Limbu v Dyson Technology Ltd, a case concerning allegations of forced labour and dangerous conditions at Malaysian factories which manufactured Dyson-branded products. The lawsuit commenced by the migrant workers from Nepal and Bangladesh is an example of business and human rights litigation against British multinationals for the damage caused in their overseas operations. Individuals and local communities from foreign jurisdictions secured favourable outcomes and won jurisdictional battles in the English courts over the last years in several notable cases, including Lungowe v Vedanta, Okpabi v Shell and Begum v Maran.

The Dyson case is particularly interesting for at least two reasons. First, it advances a novel argument about negligence and unjust enrichment of the lead purchasing company in a supply chain relationship by analogy to the parent company liability for the acts of a subsidiary in a corporate group. Second, it is one of the few business and human rights cases filed after Brexit and the first to be dismissed on forum non conveniens grounds. Since the UK’s EU referendum in 2016, the return of forum non conveniens in the jurisdictional inquiry has been seen as a real concern for victims of business-related human rights and environmental abuses seeking justice in the English courts. With the first case falling on jurisdictional grounds in the first instance, the corporate defendants started to collect a ‘Brexit dividend’, as cleverly put by Uglješa Grušic in his case comment.

Facts

The proceedings were commenced in May 2022. The claimants were subjected to forced labour and highly exploitative and abusive conditions while working at a factory in Malaysia run by a local company. The defendants are three companies in the Dyson corporate group, two domiciled in England and one in Malaysia. The factory where alleged abuses took place manufactured products and components for Dyson products. Claimants argued that Dyson defendants were liable for (i) negligence; (ii) joint liability with the primary tortfeasors (the Malaysian suppliers running the factory and local police) for the commission of the torts of false imprisonment, intimidation, assault and battery; and (iii) unjust enrichment. They further alleged that the Dyson group exercised a high degree of control over the manufacturing operations and working conditions at the factory facilities and promulgated mandatory ethical and employment policies and standards in Dyson’s supply chain, including in Malaysian factories.

The English courts are already familiar with the attempts to establish direct liability of the English-based parent companies for the subsidiaries’ harms relying on negligence and the breach of duty of care owed to the claimants. In Vedanta and Okpabi, the UK Supreme Court made it clear that the parent company’s involvement and management of the subsidiary’s operations in different ways can give rise to a duty of care.

Broadening the scope of the parent company liability in a corporate group beyond strict control opened paths to supply chain liability. While lead purchasing companies, like Dyson, are not bound by shareholding with their suppliers, they often exercise a certain level of managerial control over independent contractors. Such involvement with particular aspects of a supplier’s activities leads to the argument that a lead company could also be liable in negligence for a breach of the duty of care. The unjust enrichment claim that Dyson group has been enriched at the claimant’s expense is a relatively novel legal basis, although it has already been raised in similar cases. To the best of my knowledge, in addition to the Dyson case, at least four legal actions focusing on supply chain liability are progressing in England: Malawian tobacco farmer claims against British American Tobacco and Imperial, Malawian tea farmer claims against PGI Group Ltd, Ghanaian children accusations against cocoa producer Olam and forced labour allegations by Burmese migrants against Tesco and Intertek.

Judgment

The court had to resolve the jurisdictional question of whether the case would proceed to trial in England or Malaysia. The English common law rules are founded on service of the claim form on the defendant and are based on the defendant’s presence in the jurisdiction. In general terms, jurisdiction over English-domiciled parent companies is effected within the jurisdiction as of right. Following Brexit, proceedings against an English parent company may be stayed on forum non conveniens grounds. Foreign subsidiaries are served outside the jurisdiction with the court’s permission, usually on the basis of the ‘necessary or proper party’ gateway. In the Dyson case, the English defendants asked the court to stay the proceedings based on forum non conveniens, and the Malaysian defendant challenged the service of the claim form, arguing that Malaysia is a proper place to bring the claim.

The court agreed with the corporate defendants, having applied the two-stage test set out by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd. The first stage requires consideration of the connecting factors between the case and available jurisdictions to determine a natural forum to try the dispute. The court concluded that Malaysia was ‘clearly and distinctly more appropriate’ [122]. Some factors taken into account were regarded as neutral between the different fora (convenience for all of the parties and the witnesses [84], lack of a common language for each of the witnesses [96], location of the documents [105]). At least one factor was regarded as a significant one favouring England as the proper place to hear the claim (risk of a multiplicity of proceedings and or irreconcilable judgments [109]). However, several factors weighed heavily in favour of Malaysia (applicable law [97], place where the harm occurred [102]). As a result, Malaysia was considered to be the ‘centre of gravity’ in the case [122].

Under the second limb of the Spiliada principle, the English courts consider whether they should exercise jurisdiction in cases where the claimant would be denied substantial justice in the foreign forum. The claimants advanced several arguments to demonstrate that there is a real risk of them not obtaining substantial justice in Malaysia [125–168], including difficulties in obtaining justice for migrant workers, lack of experienced lawyers to handle the case, the risk of a split trial, the cost of the trial and financial risks for the claimants and their representatives, limited role of local NGOs to support the claimants. The court did not find cogent evidence that the claimants would not obtain substantial justice in Malaysia [169]. A stay of proceedings against English defendants was granted, and the service upon the Malaysian company was set aside [172]. Reaching this conclusion involved consideration of extensive evidence, including contradictory statements from Malaysian lawyers and civil society organisations. The Dyson defendants have given a number of undertakings to submit to the jurisdiction of the Malaysian courts and cover certain claimants’ costs necessary to conduct the trial in Malaysia, which persuaded the court [16].

Comment

The Dyson case marks a shift from the recent trend of allowing human rights and environmental cases involving British multinationals to proceed to trial in the UK courts. Three principal takeaways are worth highlighting. First, the claimants in the business and human rights cases can no longer be certain about the outcome of the jurisdictional inquiry in the English courts. The EU blocked the UK’s accession to the Lugano Convention despite calls from NGOs and legal experts. The risk of dismissal on forum non conveniens grounds is no longer just a theoretical concern.

Second, the Dyson case demonstrates the difficulties of finding the natural forum under the doctrine of forum non conveniens in civil liability claims involving multinationals. These complex disputes have a significant nexus with both England, where the parent or lead company is alleged to have breached the duty of care, and the foreign jurisdiction where claimants sustained their injuries. The underlying nature of the liability issue in the case is how the parent or lead company shaped from England human rights or environmental performance of its overseas subsidiaries and suppliers. In this context, I agree with Geert van Calster, who criticises the court’s finding about Malaysia being the ‘centre of gravity’ in the case. I have argued previously that the forum non conveniens analysis should properly acknowledge how the claimants frame the argument about liability allocation between the parent company and other entities in the group or supply chain.

Finally, the Dyson case is not the first one to be intensely litigated on the forum (non) conveniens grounds. In Lubbe v Cape, Connelly v RTZ and Vedanta, the English courts accepted jurisdiction, acknowledging that the absence of a means of funding or experienced lawyers to handle the case in a host state will lead to a real risk of the non-availability of substantial justice. The court in Dyson reached a different conclusion, but its analysis of the availability of substantial justice for claimants in Malaysia is not particularly persuasive, especially considering the claimants’ ‘fear of persecution, detention in inhumane conditions and deportation should they return to Malaysia’ [71].

One aspect of the judgment is notably concerning. Claimants referred to the conduct of the Dyson defendants as being ‘aggressive’ and ‘heavy-handed’ [71], [73]. In concluding remarks, the court accepted there were deficiencies in Dyson’s responses to the claimants’ requests for the documents [173]. Yet despite this acceptance, the court has on multiple occasions relied on the defendants’ undertakings to cooperate with the claimants to ensure the trial can proceed in Malaysia [136], [147], [151], [152], [166], [169]. Undoubtedly, the ruling will be appealed, and it remains to be seen if the English courts will be willing to try cases involving British multinationals in the post-Brexit landscape.

An online conference titled The Institution of the Family – Tradition, Reform, Uniformity and Perspectives will take place on 4 and 5 December 2023. The event, organized by a group of academic institutions, including the “Dunărea de Jos” University in Galați, the University of Caen Normandie, the Carlos III University of Madrid, the University of Murcia and the Universidad Autónoma del Estado de Morelos of Cuernavaca, aims to explore the evolving approach to family relationships as reflected in domestic, European and international rules.

Scholars interested in making a presentation at the conference have until 19 November 2023 to submit a proposal.

More information on the conference and the call can be found here.

A note on RM RENT A CAR v KFZ BRÜNING ECLI:NL:RBNHO:2023:7489 in which the Noord-Holland court of first instance much more readily accepts the escalation of a purely domestic (German) contract to the ‘international’ plain. Clearly in contrast with de la Tour AG in Inkreal.

RM Rent A car argues that the close links it has with The Netherlands, as a result of a number of its directors are domiciled in The Netherlands, as is its mother holding Network4Cars Trading B.V., explain Dutch choice of court and the Dutch governing law clause. It also refers to the Report Jenard, a contrario I assume (for that detail is not given) p.37 in fine (where the report argues that (now) A25 does not apply between to parties domiciled in the same State and designating a court of that State).

KFZ Brüning by contrast argue that the sale between two German corporations, of German registered vehicles, with delivery in Germany, lacks the international element required to trigger Brussels Ia.

The Court goes about the issue in a roundabout way. It says nothing about the ‘international character’ (arguably implicitly acknowledging it), instead merely finding 2.8 that there is no proof that in signing the purchase order, Brüning also consented to the GTCS.

As noted, an interesting judgment in light of the AG’s Opinion in Inkreal.

First instance Noord-Holland, A25 Brussels Ia choice of court
Lack of reference to general terms & conditions in Purchase Order = ineffectiveness of choice of court in those GTCs
Implicitly acknowledges 'international' element of prima facie German casehttps://t.co/v8TE2B9SpY

— Geert Van Calster (@GAVClaw) August 29, 2023

Still mopping up that blog queue….In Case C-393/22 EXTÉRIA s.r.o. v Spravime, s.r.o.  the CJEU has held that a contract to enter into a future services contract is not itself a services contract within the meaning of Article 7(1) Brussels Ia., rather, a contract whose forum contractus needs to be determined using CJEU 12/76 Tessili v Dunlop‘s ‘looking over the fence’ method.

The applicant in the main proceedings, which provides consultancy services in the field of occupational safety and health, and the defendant in the main proceedings concluded, on 28 June 2018, a contract to enter into a future contract relating to the future conclusion of a franchise agreement. The contract contained, in addition to the obligation to conclude that contract in the future, certain contractual terms and conditions and an undertaking on the part of the defendant in the main proceedings to pay an advance of EUR 20 400, exclusive of value added tax, and, in the event of failure to comply with that obligation, a contractual penalty equal to the amount of that advance.

The contract to enter into a future contract provided for the application of Czech law, without any agreement on jurisdiction having been concluded.

Alleging that the defendant in the main proceedings had failed to fulfil its obligation to pay the advance in question, the applicant in the main proceedings withdrew from the contract to enter into a future contract and claimed payment of the contractual penalty.

(34) The concept of ‘services’, within the meaning of the second indent of Article 7(1)(b), implies, at the very least, that the party providing them 1. carries out a specific activity 2. in return for remuneration (see ia CJEU Kareda).

Re 1, (35) the existence of an activity requires the performance of positive acts, to the exclusion of mere abstentions (see ia CJEU Corman-Collins and Granarolo). re 2, remuneration granted in return for an activity, (36) this cannot be understood in the strict sense of the payment of a sum of money, since the receipt of a package of benefits representing an economic value may be regarded as constituting remuneration (same case-law).

(37) a contract to enter into a future contract, the objective of which was to conclude a future franchise agreement and preserve the confidentiality of the information contained in that contract to enter into a future contract, is not an ‘activity’. Moreover, in the absence of any actual activity carried out by the co-contractor, the payment of the contractual penalty cannot be characterised as remuneration.

(39) that the obligation to pay the contractual penalty is closely linked to the franchise agreement which was to be concluded and under which it would be possible to determine the place where the services concerned should have been provided, does not rescue the issue. This is said (40) to follow from the need to interpret exceptions to A4 restrictively, and from the requirements of predictability.

A useful judgment.

Geert.

EU private international law, 3rd ed. 2021, para 2.412. 4th ed forthcoming January 2024.

New #CJEU judgment Jurisdiction Regulation Brussels Ia
Contract to enter into a future services contract is not itself a services contract; jurisdiction to be determined following 'looking over the fence' method, A7(1)(a)

C-393/22 Exteria https://t.co/yZNRz0f9ap

— Geert Van Calster (@GAVClaw) September 14, 2023

Butcher J as I noted in my Tweet on the judgment at the time, has largely granted immediate leave to appeal his ruling in London Steam-Ship Owners’ MIA v [Spain] (Re Prestige) [2023] EWHC 2473 (Comm), in which he entertains yet further litigation forming part of the protracted procedures arising from the sinking of the M/T Prestige in 2002. [Of note is that he did not allow appeal on the issue of the effect of the CJEU Judgment in Prestige, on the jurisdiction of Sir Peter Gross as arbitrator in a second set of arbitration proceedings; I imagine permission to appeal that point has been sought separately with the Court of Appeal itself).

I have reported repeatedly on the issues and the trigger for most of the discussions in the judgment is the CJEU Grand Chamber Judgment which I called a parallel universe here. I stand by my criticism in that post, not because I suggest the CJEU is some lawless band of brigands upending the rule of law. Clearly it is not. Rather, I find the CJEU’s lack of consistent treatment of arbitration whether commercial or investment, troubling. I also fail to understand its backdoor disciplining of arbitration procedures (via the res judicata and privity issues which I discuss in my previous posts) if these procedures are principally excluded from the scope of Brussels Ia.

The Prestige saga is an indictment first of all of the failure of environmental law (one of my other academic and practice hats) properly to address one of the most outrageous outcomes of the fossiel fuel area, which is to pollute twice over nature and human health alike in causing environmental catastrophe by spilling crude oil. As for international litigation, it is an indictment of the failure of international and European law alike to develop a systematic approach to the outcomes of litigation in ordinary, and arbitration.

Now to the case at hand. My discussion of same is greatly helped by professor Giles Cuniberti’s post over at EAPIL, and the comments on same, and I would suggest readers refer to Giles’ summary of the case and the issues.

Core to the appeal will be to what degree the English courts (pro memoria: the proceedings are subject to Brussels Ia and were introduced pre Brexit) are bound by all of the findings in the CJEU judgment, particularly those with an impact on what the arbitrator should have checked (the CJEU ordinarily practices judicial economy; in the case at hand some argue it answered questions that were not put to it). This provoked an interesting debate on the extent of the authority of those parts of the CJEU judgment which in a precedent system would likely be called obiter. The preliminary reference procedure however is not like a common law precedent or authority regime. What exactly it is will undoubtedly be discussed upon appeal and as professor Dickinson replies in comment to Giles’ post, there may be a way for the European Commission to use the Withdrawal Agreement’s dispute settlement provisions to clarify how CJEU authority is supposed to work.

Geert.

Unsuccessful appeal of #arbitration award following (and mostly ignoring) #CJEU Prestige judgment (see https://t.co/2ysTMGyzwT)
Permission to appeal largely granted instantly

London Steam-Ship Owners' MIA v [Spain] (Re Prestige) [2023] EWHC 2473 (Comm)https://t.co/VSBL2uQ9ip

— Geert Van Calster (@GAVClaw) October 6, 2023

This post has been written by Sanja Marjanovi? (Faculty of Law, University of Niš, Serbia) and Uglješa Gruši? (UCL).

The 18th Regional Private International Law Conference will take place on 17 November 2023 at the Faculty of Law, University of Niš, Serbia, with the support of the Deutche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ). The theme of the Conference is Private International Law and International Organizations – Achievements and Challenges.

The Conference will provide an opportunity to celebrate the 20th anniversary of the inaugural regional PIL conference, which was also held in Niš in 2003. These regional PIL conferences are a result of the vision of Professor Mirko Živkovi? (Faculty of Law, University of Niš) to re-establish a regional PIL network that had been broken by the tragic dissolution of the former Yugoslavia. Although PIL scholars from countries stemming from the former Yugoslavia continue to be the nucleus of these conferences, they regularly attract PIL scholars from other countries as well.

The opening panel will feature the following topics and speakers:

• Reflections on the Complementarity of Global and Regional Unification of Private International Law, Hans van Loon (Former Secretary General of the Hague Conference on Private International Law), The Hague
• Characterisation in the CJEU Case Law: Unity or Diversity?, Vesna Lazi?, Utrecht University and Asser Institute, The Hague
• Centennial of the Hague Academy of International Law, Maja Stanivukovi?, University of Novi Sad

The full programme of the conference can be found here.

The working language of the Conference will be English, and it will also be streamed online.

Those wishing to attend the Conference online are invited to register by emailing contact details and affiliation to antanasijevic@prafak.ni.ac.rs by 16 November at 12 CET.

Conference proceedings will be published in September 2024.

This post has been written by Sanja Marjanović (Faculty of Law, University of Niš, Serbia) and Uglješa Grušić (UCL).

The 18th Regional Private International Law Conference will take place on 17 November 2023 at the Faculty of Law, University of Niš, Serbia, with the support of the Deutche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ). The theme of the Conference is Private International Law and International Organizations – Achievements and Challenges.

The Conference will provide an opportunity to celebrate the 20th anniversary of the inaugural regional PIL conference, which was also held in Niš in 2003. These regional PIL conferences are a result of the vision of Professor Mirko Živković (Faculty of Law, University of Niš) to re-establish a regional PIL network that had been broken by the tragic dissolution of the former Yugoslavia. Although PIL scholars from countries stemming from the former Yugoslavia continue to be the nucleus of these conferences, they regularly attract PIL scholars from other countries as well.

The opening panel will feature the following topics and speakers:

• Reflections on the Complementarity of Global and Regional Unification of Private International Law, Hans van Loon (Former Secretary General of the Hague Conference on Private International Law), The Hague
• Characterisation in the CJEU Case Law: Unity or Diversity?, Vesna Lazić, Utrecht University and Asser Institute, The Hague
• Centennial of the Hague Academy of International Law, Maja Stanivuković, University of Novi Sad

The full programme of the conference can be found here.

The working language of the Conference will be English, and it will also be streamed online.

Those wishing to attend the Conference online are invited to register by emailing contact details and affiliation to antanasijevic@prafak.ni.ac.rs by 16 November at 12 CET.

Conference proceedings will be published in September 2024.

Written by Akanksha Oak, Jindal Global Law School, India

Introduction

The modern commerce landscape faces a significant challenge: the widespread infringement of intellectual property (“IP”) rights due to online interactions that enable instant global access. This issue is exacerbated by cross-border activities, necessitating the application of private international law (“PIL”). However, IP protection remains territorial, guided by the principle of “lex loci protectionis.” This results in complexities when it intersects with PIL. Online IP infringement further convolutes matters due to the internet’s omnipresence and accessibility, making the establishment of jurisdiction a complicated process for legal professionals. A pivotal development in this arena occurred in 2021 when the Delhi High Court rendered a judgement in the case of HK Media Limited and Anr v. Brainlink International Inc.,[1] illuminating India’s legal framework for determining jurisdiction in cases of online IP infringement within the context of cross-border disputes.

Facts

HT Media, the plaintiff in this case, was involved in the business of print media and online publications. They operated online editions of their newspapers through their websites, specifically www.hindustantimes.com,  and held registered trademarks for “Hindustan” and “Hindustan Times”. The defendants, Brainlink Int. Inc., were a corporation based in New York and owned the domain name www.hindustan.com. Their website provided news content like HT Media, focusing on India-America interests and stock market reports from India.

Due to the striking similarity between the websites, the plaintiffs initiated legal proceedings seeking a permanent injunction against the defendants, restraining them from using the domain name. Simultaneously, the defendants filed a suit in the United States District Court, asserting non-infringement of the plaintiffs’ rights.

In response, the plaintiffs argued that the Indian court should halt the proceedings in the foreign court through an anti-suit injunction. They contended that the defendants were subject to the personal jurisdiction of the Delhi High Court, making it appropriate for the Indian court to intervene in the case.

Enhanced and vital interpretation of “Carrying on Business”

The court’s jurisdiction in the present case was established under Section 134 of the Trade Marks Act 1999, which permits a plaintiff to file a suit in the court’s jurisdiction where it carries on business.

In cases of online infringement of IP, the test for carrying on business was outlined in World Wrestling Entertainment Inc. v. Reshma Collection.[2] In the World Wrestling case, the plaintiffs were a company incorporated under the State of Delaware, USA laws. They filed for a trade mark infringement in a suit in the Delhi High Court. They contested that their website was accessible in Delhi, and thus, under Section 134 of the Trade Marks Act, they carried on business in Delhi. The court noted that “the availability of transactions through a website at a particular place is virtually the same thing as a seller having shops in that place in the physical world.” This means that if a website is accessible via the internet at a particular place, the courts of that place could claim jurisdiction over the dispute. Moreover, due to the pervasive and global access of the internet, this gives the parties an opportunity for forum shopping; the jurisdiction can be established at any place where the online site is accessible.

This principle was further affirmed in the case of Millennium & Copthorne International Ltd. v. Aryans Plaza Services (P) Ltd.[3] In this instance, the plaintiff, “Millennium & Copthorne,” was a London-based company without a physical office in India. Nevertheless, the plaintiff extensively promoted its services in India through its online presence, collaborating with notable companies such as “MakeMyTrip” and “Hotel Travel Ltd.” Applying this law, the plaintiff argued that despite lacking an office in Delhi, they were carrying out business in Delhi and thus qualified to file the suit in the Delhi High Court under Section 134 of the Trade Marks Act.

Unsurprisingly, this approach raises concerns about predictability. This is because parties could file suits in any court where their website is accessible. In the present case, however, this reasoning was not accepted, as the court emphasised the physical existence of the plaintiff’s registered office in Delhi to meet the criterion of “carrying on business.” Moreover, the court deemed the lawsuit filed in the Eastern District of New York vexatious and oppressive.

One of the grounds to establish that the jurisdiction of the US court was oppressive was that the plaintiff was not carrying on business in the US. This determination was made by diverging from the precedent set in the World Wrestling case, as illustrated above. In this case, the court analysed the target audience of the plaintiff’s business. This analysis demonstrated that the plaintiff was indeed conducting business in India, and most of its readers were residents of India despite the global accessibility of its website. Had the court followed the World Wrestling case ratio, the mere accessibility of the plaintiff’s website would have constituted carrying on business in the US. However, the court, in this instance, refrained from doing so. Hence, the court’s interpretation of “carrying on business” was twofold: it relied on the physical presence of the plaintiff’s registered office and evaluated its target audience to establish the “carrying on of business.” The court did not solely consider the accessibility of the plaintiff’s website, as was the practice in previous cases.

The ruling in the WWE case allowed parties to potentially misuse the right of forum shopping, enabling them to file suits in any country where their website was accessible. However, the approach adopted in the present case aligns more closely with the principles of PIL. It helps prevent the abuse of forum shopping by restricting the options available to parties when filing a suit under the ambit of “carrying on business.” This decision establishes a precedent, underscoring the significance of establishing jurisdiction based on various connecting factors, such as the registered office of the party’s business and its target audience. This approach emphasises the importance of a collective analysis by considering a range of factors rather than solely relying on the accessibility of a website in a specific location.

The test of “Cause of Action”

In online IP infringement cases, another ground for establishing jurisdiction revolves around determining the place where the cause of action arose. The Delhi High Court has established precedents in this regard, notably in Banyan Tree Holding (P) Ltd. v. A. Murali Krishna Reddy,[4] and further elucidated in Impresario Entertainment v. S & D Hospitality.[5] In the Banyan Tree case, the plaintiff had a registered office in Singapore. It had an e-commerce website accessible in India, and thus, it instituted a suit in Delhi. It filed for trade mark infringement against the defendant, whose place of business was in Andhra Pradesh, India. The issue in this case was regarding the jurisdiction of the Delhi High Court, as neither of the parties resided in the territory of Delhi. Thus, the court established the “tighter version of the effects test” for deciding the place of cause of action in online infringement matters. The court ruled that to establish jurisdiction when the defendant does not reside or conduct business in the forum state but the website in question is universally accessible, and the plaintiff must demonstrate that the defendant specifically targeted the forum state with the intent to harm the plaintiff.

Building on this, in Impresario Entertainment v. S & D Hospitality, a Mumbai-based restaurant business (plaintiff) sued a Hyderabad-based restaurant (defendant) with a similar name in the Delhi High Court. The plaintiff claimed jurisdiction under the grounds of cause of action based on the reasoning that interactive website listings such as Zomato were accessible in Delhi, and thus, it was also one of the places where infringement took place, resulting in the cause of action. However, the court ruled in favour of the defendant, stating that mere website interactivity was insufficient for establishing jurisdiction under this ground. Thus, the Impresario case emphasised the concept of “specifically targeting the forum state,” requiring the plaintiff to prove that one of their customers was misled by the defendant, leading to the conclusion of a commercial transaction or a strong intention to finalise a transaction.

The tests for carrying on business and cause of action represented opposite ends of the spectrum: the former was relatively easy to establish, and the latter was challenging to prove, placing the burden on the plaintiff. In the present case, the court struck a balance between these tests. It established a criterion where the connecting factors for identifying where the cause of action arose required a demonstration of the likelihood of damage without conclusively proving a commercial transaction. The court held that since the plaintiff was an Indian news channel catering to an Indian audience, their goodwill and reputation were primarily in India. Consequently, any damage inflicted would stem from the defendant’s site being accessed from India, given that the plaintiff’s primary target audience resided there. The burden of proof was not on the plaintiff to prove that he had “actually” faced financial damage but to show that there was a “likelihood” of facing such financial damage to invoke the grounds for cause of action, unlike in the cases of Banyan Tree and Impresario. Furthermore, as the IP rights were safeguarded in India, any infringement would constitute a cause of action where these rights were granted.

Implications of the case

In the European Union (EU), the court’s jurisdiction is established under Art 7(2) of the Brussels I Recast Regulation. The connecting factors in this article are the places where the damage occurred or may occur. Thus, jurisdiction is established based on the location of the harm caused by online infringement, which the likelihood of financial loss to the plaintiff would prove. The plaintiff must prove that damage was caused due to the accessibility of the defendant’s site in that country. The court’s reasoning in the present case aligns with the reasoning of the EU to establish jurisdiction in such cases, as even in the present case, the court established jurisdiction based on connecting factors such as the place of “damage” by analysing the plaintiff’s target audience and how damage to its goodwill in India would lead to financial loss for the party. Thus, with the ruling in HK Media Limited and Anr v. Brainlink International Inc., India has also adopted an Article 7(2) Brussels approach. This ruling sets an encouraging precedent, fostering consistency and harmonising private international law rules across nations for cross-border online IP infringement. It furthers the goals of establishing predictability and certainty in determining jurisdiction in cross-border disputes.

[1] 2020 SCC Online Del 1703.

[2] 2014 SCC Online Del 2031.

[3] 2018 SCC Online Del 8260.

[4] 2009 SCC Online Del 3780.

[5] 2018 SCC OnLine Del 6392.

Indi Gregory is an eight-month-old child. She suffers from profound metabolic, neurological and cardiological disorders. At the time of writing this post she was a patient at an intensive care unit at a hospital in Nottingham.

A few months ago, the doctors who have been treating Indi in England came to the conclusion that her illness is incurable and that, given the pain caused by the life supporting treatment she is receiving, it is in Indi’s best interest that such treatment be withdrawn.

The parents disagreed and have since reiterated their wish to have the treatment continued. They made contact with a paediatric hospital in Italy, which made itself available to explore further options and continue treating the child.

The matter was dealt with by the High Court of England and Wales. This dramatic case, which reminds of similar cases involving children with incurable diseases, widely covered by the press (including the cases of Charlie Gard and Alfie Evans), raises a number of highly sensitive issues, legally and ethically. It also raises some private international law issues, as a result of the fact that Indi was recently granted Italian citizenship and that the Italian authorities, namely the Italian Consul in Manchester, claimed jurisdiction over the matter and issued orders aimed at transferring Indi to Rome.

This post is exclusively concerned with the latter issues.

The hospital Trust seised the High Court of England and Wales, in September 2023, seeking authorisation to remove the life sustaining care Indi was receiving, on the ground that, according to the Trust, there was no prospect of recovery, Indi’s life expectancy was very limited, the treatments she was receiving were causing her a high level of pain and suffering, and there was no discernible quality of life or interaction by Indi with the world around her.

The parents opposed the application, alleging, inter alia, that Indi had prospects of gaining a degree of autonomy, that she was showing small signs of improvement, and that the precise causes of her presentation are unclear and required further time and investigation.

On 13 October 2023, the Family division of the High Court ruled in favour of the Trust. Peel J explained:

With a heavy heart, I have come to the conclusion that the burdens of invasive treatment outweigh the benefits. In short, the significant pain experienced by this lovely little girl is not justified when set against an incurable set of conditions, a very short life span, no prospect of recovery and, at best, minimal engagement with the world around her. In my judgment, having weighed up all the competing considerations, her best interests are served by permitting the Trust to withdraw invasive treatment in accordance with the care plan presented.

Shortly afterwards, the Court of Appeal of England and Wales was seised of an appeal against the decision, by the parents, based on three grounds. By a ruling of 23 October 2023, the Court concluded that there was no prospect of an appeal on either of those grounds succeeding, and accordingly refused permission to appeal.

The parents of Indi Gregory seised the European Court of Human Rights, seeking an urgent order that would prohibit the withdrawal of life supporting treatment. The Strasbourg Court, however, did not uphold their request.

Peel J of the High Court was then again seised by Indi’s parents. They sought permission for the care of their child to be transferred to other medical professionals, at a hospital in Rome. On 2 November 2023, the High Court dismissed the application on the ground that there was no material change of circumstances, or other compelling reason, to justify reconsideration of the original order.

Specifically, concerning the proposal by the Rome hospital for cardiac intervention, Peel J considered that such intervention was inappropriate “because of the severity of the underlying conditions, IG’s instability and the lack of prospect of any meaningful quality of life, and the ongoing burden and pain of invasive treatment”. He added that “invasive life sustaining treatment is no longer appropriate for IG” and that the “substantial burdens of such treatment significantly outweigh any perceived (but in my judgment negligible) benefit, in a context where her life expectancy is very short, and her conditions irreversible”. He explained that,

there is nothing to suggest that IG’s prognosis would be beneficially altered by the Italian hospital’s treatment. On the contrary, it may well prolong pain and suffering if and to the extent that it incorporates invasive procedures which in my judgment are not in IG’s best interests, and should not be sanctioned.

On 6 November 2023, the Italian Government decided to grant Italian citizenship to Indi Gregory. It relied for this on Article 9(2) of the Italian Statute on Citizenship (Law No 91 of 1992), according to which citizenship may be granted, through a Presidential Decree, where to do so is of “exceptional interest for the Italian State”.

According to the press release accompanying the decision, such an interest consisted, in the circumstances, in providing IG with additional therapeutic opportunities (“ulteriori sviluppi terapeutici”), for the purposes of safeguarding the pre-eminent humanitarian values underlying the case (“preminenti valori umanitari”). The decision, the press release explains, was adopted following a request by the parents of the child, in connection with their wish to have Indi transferred to Rome to receive further treatment.

The author of this post was unable to retrieve any official document explaining in which way, i.e., based on which legal grounds and reasoning, the fact of making Indi Grgeory an Italian citizen would alter the picture resulting from the orders of Peel J, and increase the chances of Indi being transferred to Rome.

Be that as it may, on 8 November 2023, according to press reports, the Italian Consul in Manchester asserted that Italian authorities had jurisdiction over the case, precisely on the ground that Indi had become an Italian citizen, and ordereed that IG be transferred to Italy. The decision was taken by the Consul in his capacity of “guardianship judge”, that is, in the exercise of the judicial functions that Italian law confers on the heads of consular posts as regards, specifically, the protection of minors of Italian nationality outside the territory of Italy. The Consul also appointed a special representative of IG to take care of the implementation of the order. Press reports indicate that the appointed representative made contact with the hospital managers seeking their “cooperation”.

The English High Court made a new ruling on 8 November 2023. The parents wished to take the child back home, in Derbyshire, and have the extubation and the resulting compassionate care performed there.

Peel J dismissed the request. He observed that Indi “should continue to have clinical treatment of the highest quality, carried out in a safe and sustainable setting”, which would “not be available at home”, noting that

for the plan to work at home, there needs to be a close, constructive and engaged level of communication between the parents and the Trust/relevant clinicians, but, unfortunately, that does not appear to be the case.

Interestingly, for the purposes of this post, Peel J took note that Indi had very recently been granted Italian citizenship, while adding that the Indi’s father (the mother did not intervene at the hearing)

acknowledged, correctly and properly, that my decisions and orders are unaffected by this development.

Rumours circulated in the press concerning a possible agreement between the Italian and the UK Governments regarding the transfer of Indi to Italy, although no indications were given as to the legal grounds on which the decisions of the High Court could be superseded.

Withdrawal of life support is expected to be carried out today, 9 November 2023, at 15 CET.

The text of the order issued by the Italian Consul in Manchester has not been made publicly available. The author of this post is not aware of the exact provisions of the order. The grounds on which the Consul asserted that the case comes with the jurisdiction of Italian authorities are also not known. It is also not known whether the Consul addressed the issue of the recognition of the English orders in the Italian legal system, and, in the affirmative, what conclusions were reached in that regard. In addition, it is not known whether any exchanges occurred between the Consul and the High Court either prior to the Consul’s order or at a later stage.

The following remarks are, accordingly, of a general nature, and do not purport to represent an analysis, let alone an assessment, of the measures taken by the Italian authorities.

Italy and the UK are parties to the Hague Child Protection Convention of 19 October 1996.

As stated in Article 1(1)(a), the Convention aims, inter alia, to “determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child”. Cases like that of Indi Gregory appear to come with the material scope of the Convention.

Pursuant to Article 5(1) of the Hague Child Protection Convention, the authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property. In relation to States, like the UK, in which two or more systems of law regarding the protection of children apply in different territorial units, reference to habitual residence must be construed, as clarified in Article 47(1), as referring to habitual residence in a territorial unit. Thus, as concerns children whose habitual residence is in England, English courts have jurisdiction.

As a rule, the authorities of the State of which the child is a national do not have jurisdiction under the Convention.

Rather, the Convention contemplates the possibility that a case be transferred by the authorities having jurisdiction based on Article 5 to the authorities of a different Contracting State.

Specifically, Article 8 stipulates that the authority of the State of habitual residence of the child, if they consider that the authority of another Contracting State “would be better placed in the particular case to assess the best interests of the child” (including the authorities of the State of nationality of the child), may request that other authority to assume jurisdiction to take such measures of protection as they consider to be necessary, or suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.

Article 9 goes on to state that the authorities to which the case may be transferred (including, again, the authorities of the State of nationality), if they consider that they are better placed in a particular case to assess the child’s best interests, they may request the competent authority of the Contracting State of the habitual residence of the child that they be authorised to exercise jurisdiction to take the measures of protection which they consider
to be necessary. The authorities concerned may then proceed to an exchange of views.

In the case of Indi Gregory, the English High Court has, so far, not considered that the Italian authorities would be better placed to deal with the case, including after the Court was informed that an Italian hospital was available to treat the child and that Indi had been made an Italian citizen.

On 9 November 2023 news reports had that the Italian Consul in Manchester had approached the High Court in connection with a request based on Article 9 of the Convention. Very few details were available on this  at the time of publishing this post.

The urgency of the matter does not appear to change things. The Hague Convention includes a special provision that applies in “all cases of urgency”, namely Article 11, but this provision confers jurisdiction on the authorities of the Contracting State “in whose territory the child or property belonging to the child is present”.

It is worth adding that measures relating to the protection of a child emanating from the authorities (including a Consul, as the case may be) of a Contracting State are entitled to recognition in all other Contracting States “by operation of law”, as stated in Article 23(1). However, recognition may be refused, according to Article 23(2)(a) “if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II”, of the Convention, i.e., Article 5 and following.

One may wonder whether the picture resulting from the above provisions of the Hague Child Protection Convention could be affected in some way where a consular post, rather than a judicial authority, claims to take measures directed at the protection of a child.

The Hague Convention applies, as such, to all the authorities of a Contracting States with competence over matters within the scope of the Convention itself. The nature of the authorities involved in a given case are, accordingly, immaterial. Rather, where a consular post is involved, it is appropriate to assess whether the rules governing consular relations may play a role, and possibly affect the operation of the Hague Convention.

Both the UK and Italy are parties to the Vienna Convention on consular relations, of 24 April 1963. In addition, the two countries have concluded between themselves, in 1954, a consular convention.

Article 5 of the Vienna Convention describes consular functions as including, among others, “safeguarding … the interests of minors … who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such person”. As specified in Article 5(h), the latter function is to be exercised by consular posts “within the limits imposed by the laws and regulations of the receiving State”.

For their part, the authorities of the receiving State (the English authorities, in the case of Indi), are required, according to Article 37(b) of the Vienna Convention “to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor … who is a national of the sending State”. It is clarified, however, that the giving of this information is “without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments”.

The bilateral consular convention does not appear to extend the functions of consular authorities regarding the protection of children, nor impose on the authorities of the receiving State duties that go beyond what is provided in the Vienna Convention, in particular as regards the jurisdiction of courts and the recognition of foreign decisions.

As a result, it is difficult to see how the findings above, made in respect of the Hague Child Protection Convention, could be modified in light of the involvement of a consular authority.

Ronald A. Brand, Michael S. Coffee and Paul Herrup are the authors of The 2019 Hague Judgments Convention, published by Oxford University Press, part of its Private International Law Series.

Declared a ‘game-changer’ by the Hague Conference Secretary General, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters has introduced international obligations of unprecedented sweep and power. Now, this authoritative treatise provides the diplomatic background and the historical context for the Convention, discussing the law on judgments recognition in the absence of the Convention’s ratification. After recounting the twenty-seven-year history of the negotiations leading to the Convention’s conclusion, it offers an article-by-article discussion of each provision. It also considers paths not taken, advancing possible solutions to address future pressures and developments.

More information, including the table of contents, can be found here.