Flux des sites DIP

The Department ‘Law & Anthropology ’ of the Max Planck Institute for Social Anthropology in Halle, Germany, is offering positions in the Max Planck Research Group ‘Transformations in Private Law: Culture, Climate, and
Technology’ headed by Mareike Schmidt for two doctoral students with projects on Cultural Embeddedness of Private Law.

The full advertisement can be found here.

A new issue of ZEuP – Zeitschrift für Europäisches Privatrecht is now available and includes contributions on EU private law, comparative law and legal history, legal unification, private international law, and individual European private law regimes. The full table of content can be accessed here.

The following contributions might be of particular interest for the readers of this blog:

• Chancen und Risiken eines Virtual Registered Office (VRO)
  Stefanie Jung and Anne-Kathrin Haag on the virtualization of the registered office of a business: A virtualisation of the registered office and, possibly also the domestic business address would eliminate the need for a physical connection with the country of registration and thus save effort and costs relating to the establishment of a business. This article explores the opportunities as well as the risks of such a virtualisation. At the same time, the existing requirements for the registered office, the administrative office, the domestic business address, and the business premises will be reflected upon.
• Laloivit-elle? Erste Entwicklungen in der Rechtsprechung zum französischen Lieferkettengesetz
  Laura Nasse on the French Supply Chain Act: The French Supply Chain Act that entered into force on 27.3.2017 is a prime example for national and European legislation in the field of business and human rights. It has inspired the German Supply Chain Act and acted as a benchmark in negotiations on the European Corporate Sustainability Due Diligence Directive. Based on recent case law, this article analyses the impact of the French legislation in practice.
• ECJ on “Quasi-Anti-Suit Injunctions” – Old Wine in New Bottles? – Judgment of the European Court of Justice of 7 September 2023
  Madeleine Petersen Weiner comments on a decision by the ECJ on “Quasi-Anti-Suit Injunctions”.
• Konkretisierung des Orts des Schadenseintritts nach Art. 7 Nr. 2 Brüssel Ia-VO in den sogenannten „Dieselfällen“ – Urteil des EuGH (Neunte Kammer) vom 22.2.2024
  Marko Andjic discusses a decision by the ECJ on the interpretation of Article 7 of the Brussels Ibis regulation concerning the place where the harmful event occurred.

On 4 and 5 December 2024, a conference on the Brussels I bis Regulation will take place in Budapest and online. The event is organized by Balázs Arató, Thomas Garber (Johannes Kepler University Linz), Katharina Lugani (Heinrich Heine University Düsseldorf) and Matthias Neumayr (Johannes Kepler University Linz). The aim is to offer a perspective on […]

Written by Lena-Maria Möller,

College of Law, Qatar University

 

The recent introduction of a civil family law regime in the United Arab Emirates – the first of its kind in the region – has attracted considerable attention, both on this blog and beyond.[1] A key unresolved issue has been the law’s applicability in Abu Dhabi, particularly regarding access for Muslim foreigners to the emirate’s newly established Civil Family Court. Scholars and legal practitioners navigating this new framework have long observed a surprising discrepancy, if not an ideological tension, between the law’s drafters and those interpreting it, especially at the higher court level. Central to this divergence has been whether Abu Dhabi’s Law on Civil Marriage and Its Effects (Law No. 14/2021 of 7 November 2021, as subsequently amended) and its Procedural Regulation (Chairman Resolution No. 8/2022 of 1 February 2022) apply exclusively to non-Muslims or extend also to Muslim foreigners who are citizens of non-Muslim jurisdictions. A recent judgment by the Abu Dhabi Court of Cassation in late October affirmed jurisdiction over Muslim foreigners with dual French-Moroccan nationality, marking a potential shift in personal jurisdiction. This ruling may expand access to a legal framework devoid of religious underpinnings for many Muslim expatriates in the UAE.

 

The Legal Framework

The civil family law regime in the UAE comprises three main legislative components. With the exception of Abu Dhabi, which pioneered a separate non-religious legal framework in late 2021, the Federal Civil Personal Status Code (Law No. 41/2022 of 3 October 2022) governs matters of marriage, divorce, child custody, and inheritance exclusively for non-Muslim citizens and non-Muslim foreigners. The law’s scope is explicitly outlined in Article 1, which clearly differentiates based on religious affiliation rather than nationality.

The earlier local legislation in Abu Dhabi, Law No. 14/2021 of 7 November 2021, initially applied only to non-Muslim foreigners but was soon amended, by Law No. 15/2021 of 15 December 2021, to significantly broaden its scope. Most notably, the terms ‘foreigner’ and ‘non-Muslim foreigner’ were replaced by ‘persons covered by the provisions of this law,’ a concept further clarified in Article 5 of the Procedural Regulations. Under these provisions, the law applies to civil marriage, its effects, and all civil family matters for:

1. Non-Muslim UAE citizens, and
2. Foreign nationals from countries ‘that do not primarily apply Islamic Sharia in personal status matters,’ as determined by the Instruction Guide issued by the Chairman of the Abu Dhabi Judicial Department. For dual citizens, the nationality associated with their UAE residency prevails.

Additionally, the law also applies to marriages concluded in countries that do not primarily apply Islamic Sharia in personal status matters, as outlined in the Instruction Guide (which has yet to be issued), as well as to all marriages conducted under the provisions on civil marriage.

The latter two cases are particularly broad, potentially also covering Muslim citizens who married abroad, yet they are rarely cited by the courts. Judicial discussions tend to focus on paragraph 2 of Article 5, which addresses foreigners from specific non-Muslim jurisdictions. The situation is further complicated by the fact that Law No. 14/2021 also includes jurisdictional provisions and scope-of-application rules, which remain equally ambiguous.[2]

Article 1 of Law No. 14/2021 defines ‘persons covered by the law’ as ‘the foreigner or non-Muslim citizen, whether male or female.’ Unfortunately, the Arabic version of this definition is open to multiple interpretations. This ambiguity arises because the adjective ‘non-Muslim,’ placed after the word ‘citizen’ and set off by commas, could be read as referring either solely to citizens or to both foreigners and citizens. As a result, debates over the phrasing of this definition are a frequent element in pleadings before the Abu Dhabi Civil Family Court.

Moreover, in its amended form, Article 3 of Law No. 14/2021 stipulates that if a marriage has been concluded in accordance with this law, it shall apply with respect to the effects of the marriage and its dissolution. A narrow interpretation of this clause would deny jurisdiction whenever the parties did not marry before the Abu Dhabi Civil Family Court, even if they are non-Muslim foreigners married in a civil ceremony elsewhere. However, it seems clear that the drafters did not intend to exclude this core target group from the law’s jurisdiction. Similarly, it is difficult to imagine that jurisdiction would be automatically assumed in cases involving Arab Muslims – even GCC citizens – who married in a civil ceremony in Abu Dhabi, where the Civil Family Court currently allows civil marriages for all but Muslim citizens of the UAE.

The ambiguity of these clauses grants considerable discretion to the courts, and current case law on personal jurisdiction for Muslim foreigners does not yet indicate a consistent approach or prevailing interpretation. For this reason, the recent judgment by the Abu Dhabi Court of Cassation may indeed mark a turning point in the application of civil family law in Abu Dhabi.

 

Previous Case Law

To date, the most significant ruling by the Abu Dhabi Court of Cassation regarding personal jurisdiction over Muslim foreigners was issued in late April 2024. As discussed on this blog, the judgment denied a French-Lebanese husband and his estranged Mexican-Egyptian wife access to the Abu Dhabi Civil Family Court due to their shared Muslim faith. Initially, the Civil Family Court accepted jurisdiction and, at the husband’s request, dissolved the couple’s brief marriage, a decision that was upheld on appeal. However, the Court of Cassation overturned this ruling, determining that the Civil Family Court lacked jurisdiction based on the parties’ religious affiliation.

This case also highlights the inconsistent, and at times contradictory, approach of the Abu Dhabi Court of Appeal on this issue. The same panel of judges has sometimes upheld jurisdiction in cases involving foreign Muslims, while in other instances, it has denied the application of Law No. 14/2021. The available case law suggests that factors such as whether the individuals are Muslim by birth or by conversion, hold dual citizenship – including that of an Arab country – or have disputed religious affiliations do not consistently influence the court’s jurisdictional decisions.

The Abu Dhabi Civil Family Court generally takes the broadest view of jurisdictional rules, generally affirming that Muslim foreigners may access the court. This stance persists despite frequent jurisdictional challenges by opposing parties in cases involving Muslims, who typically argue that the Muslim Personal Status Court is the proper forum for such disputes. Recently, such arguments have increasingly referenced the Federal Civil Personal Status Code and its exclusive jurisdiction over non-Muslims, a claim likely bolstered by the Court of Cassation’s April 2024 ruling, which disregarded the widely accepted view that the Federal Civil Personal Status Code does not apply in Abu Dhabi.

 

The Abu Dhabi Court of Cassation Judgment of 30 October 2024

The case decided by the Abu Dhabi Court of Cassation in late October involved a French-Moroccan Muslim couple who had married in a civil ceremony in France. Their marriage was dissolved by the Abu Dhabi Civil Family Court in June 2023 at the husband’s request. The wife contested this ruling, arguing that the court lacked both territorial jurisdiction – since their last shared residence was in Dubai – and personal jurisdiction, given their shared Muslim faith. She further contended that ongoing proceedings before the Dubai Personal Status Court, along with a pending divorce case in France, should have precluded the Abu Dhabi Civil Family Court from issuing a ruling. The Abu Dhabi Court of Appeal upheld the divorce decision, leading her to appeal to the emirate’s highest court.

From a personal jurisdiction perspective, the Court of Cassation’s judgment is notable for its textbook-like analysis of what constitutes the effective citizenship of dual nationals. Unlike previous cases before both the Court of Cassation and the Court of Appeal, which largely overlooked this aspect of Article 5(2) of Law No. 14/2021, this ruling explicitly concludes that the parties’ French citizenship takes precedence, as it is the nationality tied to their residency in the UAE. The judgment also addresses the fact that the parties married in a civil ceremony in France, invoking Article 5(3) of Law No. 14/2021. The court explains that, since France does not ‘primarily apply Islamic Sharia in personal status matters,’ the conditions of Article 5(3) are also met.

By confirming personal jurisdiction over the parties based on both Article 5(2) and Article 5(3) of Law No. 14/2021, the judgment marks a turning point in two key respects. First, it establishes the requirement to determine the effective nationality of dual citizens, affirming that no nationality, including that of an Arab-Muslim country, takes precedence unless it is linked to UAE residency. Second, by considering the type and location of the marriage, the court asserts that, from the moment a marriage is concluded, couples effectively select a legal framework – religious or civil/secular – that will govern the marriage’s effects and potential dissolution, and that this choice must be honored in any subsequent legal proceedings. Although this perspective may be open to challenge, it provides greater clarity and legal certainty for foreigners of all faiths residing in the UAE.

 

Outlook

For the sake of legal certainty, it is to be hoped that the Abu Dhabi Court of Cassation will maintain its newly established position. The latest interpretation appears the most plausible, particularly in light of Article 5(2) of the Procedural Regulations. Nevertheless, the current provisions on jurisdiction still leave room for ambiguity regarding the law’s exact scope of application, warranting clarification through reform, given the contradictory case law to date.

First, Article 5 should be revised, including paragraph (3), to specify the court’s jurisdiction over anyone who has entered into a civil marriage. For instance, a rule is needed for cases where a couple has married in both a religious and a civil ceremony. Additionally, the Chairman’s Instruction Guide, or at least a clear list of Muslim jurisdictions whose citizens are excluded from the law’s scope, is urgently needed. It is essential to clarify whether the provision applies equally to Arab Muslims or GCC nationals without dual citizenship who have concluded a civil marriage in a non-Muslim jurisdiction. Second, refining the Arabic versions of Law No. 14/2021 and the Procedural Regulations is crucial to avoid multiple interpretations, such as whether the law applies to ‘non-Muslim foreigners and citizens’ versus ‘foreigners and non-Muslim citizens.’ Finally, with recent legislative changes allowing foreign, non-Arabic-speaking lawyers to appear before the Abu Dhabi Civil Family Court, consistent and official English translations of all relevant statutes are absolutely necessary. Current translations available through various official channels are fragmented and occasionally ambiguous.

 

——————————————-

[1] See on this blog, Béligh Elbalti, Abu Dhabi Supreme Court on the Applicability of Law on Civil Marriage to Foreign Muslims, idem, The Abu Dhabi Civil Family Court on the Law on Civil Marriage – Applicability to Foreign Muslims and the Complex Issue of International Jurisdiction, and Lena-Maria Möller, Abu Dhabi Introduces Personal Status for non-Muslim Foreigners, Shakes up Domestic and International Family Law. See also, idem, One Year of Civil Family Law in the United Arab Emirates: A Preliminary Assessment, 38 Arab Law Quarterly (2024), 219-234.

[2] It should be noted here that with the introduction of Law No. 14/2021, a dedicated Civil Family Court was established in Abu Dhabi. Family matters falling within the scope of Law No. 14/2021 are exclusively adjudicated in this court, which applies only the civil family law statutes and no other domestic or foreign legislation. Consequently, questions of the court’s jurisdiction and the law’s scope of application are closely intertwined, if not mutually dependent.

I know I have Tweeted that I would add my tuppence on the Court of Appeal at The Hague on Wednesday reversing (English translation of the Court of Appeal here) the first instance judgment in Milieudefensie v Shell.

That judgment had imposed CO2 reduction emissions targets on Shell. (In my post on the first instance judgment I focus on the applicable law, Article 7 Rome II issue; that issue was not appealed).

I then however read my learned colleague and academic neighbour Quinten Jacobs’ most excellent thread on the case and, being a firm believer in progress by assimilation, I am most pleased he has accepted to turn that thread into a post, below (my contribution merely consisted of editing).

*  * * * * * *

 

Quick recap: In 2021, the District Court in The Hague ruled upon Milieudefensie’s claim which is based on the overall (tortious) duty of care (A6:162 Dutch Civil Code) that Shell must reduce its CO2 emissions by 45% by 2030 compared to 2019 levels. This was unprecedented. For the first time outside the context of an environmental permit, a court imposed reduction obligations on a private company. Shell argued that this ruling would force the company to halt investments and sell off assets, and it appealed the decision.

In its judgment, the Court of Appeal in The Hague first fairly succinctly summarised  the scientific evidence on climate change, referencing the Greenhouse Gas Protocol, reports from the IPCC, and the IEA. The court also covered several legal instruments, such as the UN Climate Convention, the Kyoto Protocol, the Paris Agreement, and the EU’s Fit for 55 initiative. Additionally, it cited the non-binding “expression of principles” in which the Dutch government and Shell agreed on Shell’s ambition to reduce CO2 emissions by 3.9 megatons.

The ruling then examines the climate targets Shell set for itself over the years, from 1986 to 2024. Notably, Shell’s self-imposed goals frequently shift, sometimes based on emissions, and at other times based on a percentage of its spending on emission-free products.

One interesting point is admissibility. The Court of Appeal confirmed the first instance judgment that “collective claims are inadmissible insofar as they serve the interests of the global population.” However, the interests of current and future generations of Dutch citizens and residents of the Wadden area were deemed “sufficiently similar.” The court found it undesirable that only individual citizens would have to file claims separately.

Shell’s argument that the claim  is a “political issue” does not, according to the Court of Appeal, prevent the claim from being admissible seeing as the claimants—several NGOs—are seeking to assert a “legal duty” allegedly violated by Shell.

On the substantive issues: According to Milieudefensie and other claimants, Shell breaches the “general duty of care,” a duty to act “in a manner befitting society,” which depends on the circumstances of each case. This is akin to what Belgium once called “a bonus pater familias”, now referred to as “a prudent and reasonable person” [in the common law known as the Man on the Clapham Omnibus] and as noted in the case at issue grounded in Article 6:162 of the Dutch Civil Code. Specifically, Shell is accused of violating this standard by infringing on human rights.

One key question is whether protection against dangerous climate change should be regarded as a human right, specifically under the right to life (Article 2 of the ECHR) and the right to privacy (Article 8 of the ECHR). Referring to the Dutch Supreme Court’s Urgenda judgment, the very recent Swiss climate ruling by the European Court of Human Rights- Verein KlimaSeniorinnen Schweiz and Others v. Switzerland , and judgments in Pakistan, Colombia, Brazil, and India (Ranjitsinh and Others/Union of India and Others), as well as UN reports and resolutions, the Court of Appeal concluded [7:17] that

“there can be no doubt that protection from dangerous climate change is a human right.”

This is as such not unexpected yet important to see it confirmed by the Court of Appeal. Additionally and importantly, the court reasoned [7.17] that it is

“primarily up to legislators and governments to take measures to minimise dangerous climate change. That being said, companies, including Shell, may also have a responsibility to take measures to counter dangerous climate change.”

Shell and Milieudefensie have jumped on different sections of that sentence to declare victory.

The confirmation of Shell’s responsibility brings the court to discuss ‘indirect horizontal effect of human rights’ [7.18] ff. Human rights traditionally apply to relations between individuals and the state (so-called ‘vertical applicability’, not between private parties (‘horizontal applicability’) It is generally not possible, for example, to sue a neighbor for their alleged violation of one’s freedom of religious expression (unless a crime such as hate speech is committed). However, the court noted—correctly, in line with accepted legal principles—that human rights can also apply “horizontally,” for instance, between a citizen and a corporation. This can occur via “general private law principles,” such as the duty of care, with human rights considerations incorporated into these broad and general standards.

The court [7.24] identified several factors to determine whether a company breaches this “social standard of care” [which seems to be posited by the Court as that special form of the general duty of care: duty of care, with human rights considerations incorporated, GAVC]:

the seriousness of the threat posed, the contribution to its emergence, and the capacity to contribute to addressing it.

The court referenced several “informal and non-binding agreements” that detail companies’ responsibilities regarding climate, such as the UNGP, OECD guidelines, and ISO guidelines, which Shell has endorsed. [7:26] Even if public regulations do not explicitly compel them to do so, particularly those companies whose products contribute to the climate problem are still expected to help mitigate it.

The Court of Appeal concluded on the issue [7:27]

In summary, the court of appeal is of the opinion that companies like Shell, which contribute significantly to the climate problem and have it within their power to contribute to combating it, have an obligation to limit CO2 emissions in order to counter dangerous climate change, even if this obligation is not explicitly laid down in (public law) regulations of the countries in which the company operates. Companies like Shell thus have their own responsibility in achieving the targets of the Paris Agreement.

The next question is whether a court can impose additional reduction obligations beyond existing legislation.

In this context it is usual to recall the summary by the Court [3.5] of ‘scope emissions’, with reference to the global accounting ‘GHG Protocol’:

– scope 1: direct emissions from installations that are owned or controlled in full or in part by the company;

– scope 2: indirect emissions from third-party installations from which the company purchases electricity, steam or heat for its business activities;

– scope 3: other indirect emissions not included in scope 2 generated in the company’s value chain, including emissions generated from the use or consumption of products the company supplies to third parties, such as other organisations or consumers.

The court observed [7:28] that “a considerable amount of new climate legislation” has been enacted, some after the initial ruling. It cited the updated EU-ETS system, which already covers a significant portion of Shell’s so-called scope 1 and 2 emissions, [7:35] placing them almost entirely beyond the reach of the first instance court’s reduction order. Furthermore, a significant portion of its European scope 3 emissions will fall under the EU-ETS-2 system introduced in 2023. Due to two other directives, CSRD and CSDDD, Shell must also develop a climate transition plan aligned with the Paris Agreement.

Is this sufficient? Not entirely, according to the Court of Appeal [7:53]. These measures are “not exhaustive,” and the duty of care could still lead to a tailored reduction order, though existing legislation should be considered in assessing this duty.

The key question is whether the court imposes a reduction order on Shell. This requires a “threat of a breach of a legal duty.” Regarding scope 1 and 2 emissions, the court was brief: [7:64] no reduction order is imposed, as Shell had largely achieved the 45% reduction target compared to 2019 by the end of 2023 and committed to continue these efforts. There is no “threat of a breach” of a legal duty.

For the remaining scope 3 emissions, the court noted a consensus that emissions must be reduced by a net 45% by 2030 to keep global warming below 1.5°C. However, the court found it could not  specify a particular reduction obligation for Shell Applying a general standard of -45% to Shell is [7:75] “not sufficiently case-specific” [the original Dutch text uses ‘fijnmazig’, best translated by ‘tailored’ in this case, GAVC] given evidence that reduction paths vary by sector and country, as indicated by reports from the IEA and the European Commission. The Court of Appeal [7:75] uses the simple example that

if Shell starts supplying gas to a company that previously obtained its energy from coal (which necessarily comes from a supplier other than Shell), this will lead to an increase in Shell’s scope 3 emissions, but on balance may lead to lower global CO2 emissions. It follows from that example alone that applying the general standard to Shell of a 45% reduction by the end of 2030 (or 35% or 25% in the alternative and further alternative claims) is not sufficiently case-specific.

The court acknowledged that as a major oil company, Shell has a “special responsibility,” but its product mix does not reflect the global product range, making an individual reduction order inappropriate.

[7:82] ff the Court then discusses whether a sectoral reduction target for the oil and gas portfolio is possible. Both Milieudefensie and Shell have enlisted experts who have written reports on this. According to the court, [7:91] “no sufficiently unequivocal conclusion can be drawn from all these sources regarding the required reduction in emissions from the combustion of oil and gas on which to base an order by the civil courts against a specific company.”

The contested assumptions, including the percentages from the IEA, call for “great caution in elevating numbers based on these reports to a legal norm.” It also plays a role that Milieudefensie itself contradicts or qualifies those numbers. According to the court [7:96] the available data do not provide “sufficient support”  to oblige Shell to reduce its CO2 emissions by a certain percentage in 2030.  Therefore, Milieudefensie’s claims are dismissed.

Obiter, the court went on to consider [7.97] ff whether scope 3 reduction obligations would be ‘effective’. Shell argued that if it complied with the reduction order by ceasing sales of fossil fuels from other producers, those companies would simply continue supplying fossil fuels to other buyers, with another company taking over Shell’s trading activities.

Both parties submitted reports from climate scientists on this reasoning. The court concluded that it had not been demonstrated that a reduction obligation imposed on a single company would positively impact the fight against climate change. There was no proven causal link between restricting sales and a reduction in emissions. The court found the “signaling function” of such an order “too speculative.” Core is [7:106]:

The district court rejected Shell’s contention that an obligation to reduce its scope 3 emissions by a certain percentage is not effective on the basis that any reduction in greenhouse gas emissions has a positive effect on combating climate change (paragraph 4.4.49 of the district court’s judgment). This consideration is correct in itself and is also in line with what the Supreme Court considered in the Urgenda judgment (legal ground 5.7.7 and 5.7.8). However, this does not mean that a reduction obligation imposed on a specific company will have such a positive effect, especially if this reduction obligation can also be realised by selling less fossil fuels. After all, in that scenario, the specific company would only disappear from the value chain and the (already produced) fossil fuels would still reach the end consumer via another intermediary. There may be a causal relationship between a production limitation and emission reduction, as assumed by the district court (cf. section 4.4.50 of the district court’s judgment), but Milieudefensie et al. have failed to put forward sufficient grounds to assume that in this case a causal relationship (also) exists between a sales limitation and emission reduction.

This is what Geert referred to as the ‘drug dealer defence’. [And note the obiter and cautious opening which the Court leaves for production obligations, GAVC].

This appears to be a significant barrier for future climate litigation. If only one party is brought before the court, Shell’s argument—that other companies will simply take over its role—could always come into play.

The court’s conclusion: Shell has a responsibility in the climate transition, but this does not translate into a specific reduction order. A single reduction target of 45% for one company is too general, and it has not been demonstrated that such an order would effectively lower (global) emissions. Or, in the Court’s words [7:111]:

While it follows from the foregoing that Shell may have obligations to reduce its scope 3 emissions, this cannot lead to the award of Milieudefensie et al.’s claims on this point. The court of appeal has come to the conclusion that Shell cannot be bound by a 45% reduction standard (or any other percentage) agreed by climate science because this percentage does not apply to every country and every business sector individually. The court has answered in the negative the question whether a sectoral standard for oil and gas can be established on the basis of scientific consensus. This entails that based on the available climate science, it cannot be said that a 45% reduction obligation (or any other percentage) applies to Shell in respect of scope 3. In addition, it could not be established that an obligation on Shell to reduce its scope 3 emissions by a certain percentage is effective, so that, at any rate, Milieudefensie et al. have no interest in their scope 3 claim.

Quinten.

 

 

This post was written by Etienne Farnoux, who is Professor of Private Law at the University of Strasbourg. It is the third contribution to the EAPIL online symposium on the UK Supreme Court Judgment in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30. The previous contributions, by Manuel Penades and Faidon Varesis can be found […]

(Written by E. Farnoux and S. Fulli-Lemaire, Professors at the University of Strasbourg)

Horatia Muir Watt (Sciences Po) hardly needs an introduction to the readers of this blog. The book published last year and reviewed here constitutes the latest installment in her critical epistemological exploration of the field of private international law. More specifically, the book builds upon previously published fundamental reflections on the methods of private international law already initiated (or developed) in her previous general course (in French) at the Hague Academy of International Law (Discours sur les méthodes du droit international privé (des formes juridiques de l’inter-altérité)), as well as on the contemporary relevance of private international law (“Private International Law Beyond the Schism”). Numerous other works, naturally, also come to mind when reading this book (see among many others, ed. with L. Bíziková, A. Brandão de Oliveira, D. Fernandez Arroyo, Global Private International Law : adjudication without frontiers; Private International Law and Public law).

The publication of a book on the field that this blog deals with would be enough to justify it being flagged for the readers’ attention. We feel, however, that its relevance to our academic pursuits warrants more than a mere heads-up and, while it would be unreasonable (and risky) to try to summarize the content of this engrossing and complex book in a blog friendly format, we would like to make a few remarks intended to encourage the readers of this blog to engage with this innovative and surprising work.

The book’s program

It should be made clear from the outset that, maybe contrary to what the title “Towards an Ecological Jurisprudence” may suggest prima facie, the book does not engage primarily with the emergence and evolution of positive environmental law, even in a private international law perspective (although the double-entendre may be deliberate, because, as we will see, the book is animated by a deeply-rooted, and understandable, environmental angst). First, because the book is not particularly concerned with positive law (what is also referred to as lex or “Law I” in the book) as such but, in a more theoretical thrust, with the idea of the law (our “normative universe”, nomos, also called ius or “Law II”). Second, because the word “ecological” is used here in a much deeper and broader sense, that immediately encapsulates the ambition of the book: it refers to the ability to make room and accept “alterity” in all its shapes: humanity, foreign cultures and other life (and non-life) forms or “ecosphere”, i.e. all the ecosystems and their interactions. It conveys a sense of connection of the self with others and its surroundings, philosophically as well as environmentally. Consequently, the “Ecological Jurisprudence” that the author wishes to help bring about is not a particular development in environmental law but a much more thorough modification of our understanding of law and legality.

The book rests on the premise that European or Western modernity (in all its aspects, philosophical, social, and scientific) has created (or aggravated) a series of severances between humankind and the surrounding world (as well as, it seems, within humankind). Law (as all things cultural) has not been immune from this divorce (quite the contrary), and modern legality has shaped our relationship to alterity, both human and natural. In short, Law has become an exercise in alienation (alienation from the self to the other, from the self to nature or Gaia, the earth itself). The book constitutes an attempt to propose (more precisely, uncover) an alternative conception of legality, one that connects (with the other(s): human beings among themselves as well as with their environment) rather than alienates (an “Ecological Jurisprudence”).

The phrase “The Ultimate Frontier” is also a (multiple) play on words. To the readers of this blog, versed as they are in conflict of laws, it will evoke the outer limit of a given legal system, the line that marks where it ends (where its laws cease to be applicable) but also where it comes into contact with other legal systems. In a sense, this is the traditional object of private international law (which, as the author point out performs a type of “boundary labour”) but, again, the ambition of the book is much greater: the “Ultimate Frontier” at stake is that of modern legality, where it comes into contact with, and maybe gives way to, non-modern types of normativity. The book thus presents itself as a quest for the (re)discovery of such an alternative normativity. There seems to be, however, a darker meaning of the “Ultimate Frontier”, which refers to the end of human time or a “horizon of extinction”, alluding, among other jeopardies, to climate and environmental distress and giving a sense of urgency to the book. The question at its core is not only that of “law’s own survival” but also of finding a way for humans to (co-)exist on the planet in a less catastrophic way. The author’s strongly held belief is that law has a role to play in this endeavor, provided that a fundamental reconfiguration is allowed to take place. The general idea is that while alterity in the legal world usually takes the form of a foreign norm or an alien cultural practice, the attitude of a legal tradition towards alterity is usually coherent irrespective of whether that alterity comes in legal form or in the form of nature or of other life forms. At the risk of oversimplification, it could be said that while, looking back, law is part of the problem, it could also become, looking forward, part of the solution.

The subtitle of the book, “A Global Horizon in Private International Law”, emphasizes that its objective is to outline this reconfiguration in the particular field of private international law, or rather by building on some of the less obvious insights offered by private international law. This inquiry takes place at the “Global Turn”, that is at a moment when Western legality has spread far and wide while at the same time losing the stato-centric quality that underpinned it. Why private international law? The reason is twofold. First of all, private international law, like comparative law or public international law, is well-suited to dealing with alterity, in the legal form. By contrast with these other areas of the law, however, the majoritarian (Savignian) approach to private international law is very much inscribed at the heart of modern legal thought. Methodologically, its engagement with alterity is asymmetrical: the forum (the self) and the foreign norm (the other) are not placed on an equal footing; the forum, while purporting to make room for foreign norms, actually very carefully selects and reshapes those of them that can be accepted. In terms of epistemology, the fundamental involvement of private international law (its complicity?) with byproducts of Modernity, notably capitalism (or neoliberalism) and coloniality, reveals this modern bias. Here, readers familiar with H. Muir Watt’s previous works (see for instance “Private International Law Beyond the Schism”) will recognize a familiar theme, that of private international law’s (voluntary ?) obliviousness to the many challenges facing humanity, and consequently to its own role in enabling some of them (PIL disembedded). This obliviousness is so deeply rooted that it has had the incidental advantage of sheltering the discipline from the critical contemporary approaches (decoloniality for instance) that have flourished in public international law and comparative law, stigmatizing the biases at play. In this perspective, private international law is very much (the best?) representative of the broader category of private law, self-perceived and described as too technical or formal to be political, even as it plays a crucial role in the fundamental separation within the Oiko (the separation of the economy from the ecology).

The quest for an Ecological Jurisprudence hence implies an awareness to both the challenges of the era, as well as un understanding of the role of private international law in paving the road to today’s (dire) state of affairs. Such an awareness makes it possible to take a hard, critical look at the methods and shortcomings of contemporary private international law. This is not, however, the only or even the main reason why the book is grounded in private international law.

That second reason for this choice lies in the dual nature (or dual scenography) of private international law, which the book seeks to reveal. Behind or underneath the technical, “modern” and capitalism-enabling private international law, a “minor jurisprudence or shadow avatar” can be observed, that is committed to a truly pluralist approach, making room for alterity. Interestingly, according to the author, such a shadow account can be found in the (pre-modern) statutist and neo-statutist theories, supposedly made redundant by the Savignian, multilateralist approach. It is by highlighting the flickering, intermittent yet enduring influence of this secondary view of the field that Horatia Muir Watt sketches the outline of a private international law truly pluralist and open to alterity, a private international law that belongs to the world and from which, perhaps, our understanding of ius stands to profit.

The book’s outline

The book is structured in three main parts. The first is dedicated to an exploration of private international law’s methodological and epistemological duality. The two competing schemes (the classic, dominant, Savignian multilateralist approach and the minority statutist approach) each provide a set of tools (methods) by which law organizes its own interaction with “exogenous forms of legality”. To quote a particularly telling sentence : “this duality [between the two modes of reasoning in respect to foreign law] can be correlated to two underlying models of legality: a modern, or monist, scheme, embodied during the nineteenth century, that seeks closure, order, decisiveness, objectivity and predictability from a purportedly neutral (Archimedean) standpoint; and a further pluralist version, geared to diplomatic negotiation, reflexivity, the perpetual oscillation between poles and the refusal of separation between the observer and the observed, or between application and interpretation”.

This part starts with a refreshing preliminary section presenting the core concepts of the discipline, ostensibly for the benefit of non-specialists but specialists will find the presentation to be quite creative. Horatia Muir Watt then offers, in a first chapter, a “story of origin” in which she revisits the traditional historical account of the advent of multilateralism, insisting on tensions and inconsistencies. Indeed, since the reception of foreign law generally comes at the price of a denial of difference, the suppressed otherness makes itself felt down the line, causing all kinds of trouble with which multilateralism deals in a piecemeal way.

The second chapter is dedicated to picking up those traces of alternative pluralist methodology, where alterity takes place on the terms of the other, thus forming a “shadow account”. By the end of the first part, private international law has served its purpose as a revealer of two different ways of dealing with alterity, one of which, in the eyes of the author, may be “harnessed to the ecological needs of our planet”. This part is particularly interesting to readers with past experience of private international law, as it provides an innovative and critical approach to the field, one that often challenges their assumptions and may renew the way they think about it and, maybe, teach it.

The second part may prove to be a more challenging read for (private international) lawyers because it presents a perspective on the law seen here mainly through the works and thoughts of non-lawyers. The idea here is to compare further (and more systematically) the two alternative conceptions of legality, with a focus on form and substance, or “aesthetics” and “ontology”. The legality produced by Modernity, called “jurisdictional jurisprudence”, systematically reduces alterity to a set of spare parts or raw material recognizable and useable. The form, the aesthetics, of Modern legality is a “rage for order”, an all-encompassing love for division, classification, hierarchization and structuration, which singularly for (private) international law has taken the form of a particular insistence on the geographical division of space, and on the drawing of frontiers. To quote again a particularly telling sentence, “such a particular, obsessional form of legal ordering – in the name of science, nature or reason – reinforced the severance of humanity from its surrounding”. That is the ontology of Modern law: anthropocentric, “devastating life in its path and devouring the very resources it needs to survive”. Fortunately, this majoritarian destructive force is haunted by its shadow opposite, the “minor jurisprudence”, “made of (ontological) hybridity or interstitiality and (aesthetic) entwinement and oscillation”. This form of legality is willing and able to take up the “labour of connection” that is necessary to an ecological jurisprudence. Here, the analysis relies heavily on Bruno Latour’s work on the “passage of law” where law, by virtue of its operation, produces a connecting experience in a pluralist environment. Each time, conflict of laws acts as a revealer (“the heuristic”) to support the argument, following the overall program of the book. Each type of legality accounts for some (often contradictory) features or element of our paradoxical discipline.

Conflicts specialists may finish this part of book with some ruffled feathers: the indictment of the multilateralist method they practice and indeed sometimes advocate for is quite relentless, and the relief provided by the idea that their shadow statutism may eventually redeem them might not always feel entirely sufficient. However, they (at least the undersigned) will also be grateful to have been initiated to some fascinating anthropological insights (including Philippe Descola’s work), and generally for the benefits that such outside perspective inevitably provides.

In a somewhat more classical fashion, Part III explores the political-economic and ethical dimensions of the conflict of laws. With regards to economy, the contribution of private international law to what the author calls the neoliberal world order is not a surprise. Instrumental in this is the idea of individual autonomy, which provides a foundation for a market rationality seen as both unavoidable and inescapable. On the ethical plane, the book explores the possibility for conflict of laws methods to express radical hospitality in legal form. Taking seriously the teachings of phenomenology, it suggests transforming the separation between self and other into an understanding of the other as part of ourselves.

The last chapter, titled “An Ethic of Responsiveness: The Demands of Interalterity” will be particularly interesting for conflicts lawyers. It is not unusual for us, particularly when we teach the subject, to insist, often with some sense of pride, that private international law is a place of openness to otherness. The first two parts of the book have made quite plain that there are limits, at the very least, to the extent of that openness, but also maybe how hollow this claim may become if all we do is insert some element of a foreign legal system into our own. This last chapter explores what it actually means to take alterity seriously. Some pages, again, may be unsettling to read because making room for the Other is a radical experience for the Self, one in which the difference between the two disappears. In the course of the chapter, Horatia Muir Watt distinguishes value pluralism, an equivalent to political liberalism where a rights-based approach (privacy, freedom of expression) provides some space for diversity within a unitary form and source of legality, from a proper legal pluralism that accepts multiple legal norms which coexist on an equal footing. In conflicts terms, value pluralism coincides with multilateralism (the forum controls the reception of foreign law) while legal pluralism requires changing the location of legal authority (something the alternative method does willingly).

Highlights

The book’s general orientation (its driving force perhaps) owes a lot to recent or contemporary developments in human sciences outside of the law, notably in sociology, anthropology and history of sciences. The influence of the late Bruno Latour, inclassable philosopher, anthropologist, sociologist and science epistemologist runs particularly strong in the book, as well as that of philosophers Emmanuel Levinas and Jacques Derrida, or anthropologist Levi-Strauss. More generally the references, within or without the law, are innumerable and very diverse. In this sense, the book stands out as a rare example of a truly transdisciplinary attempt at relocating (private international) law within the human sciences (and their contemporary debates and concerns), as well as an equally important effort to force the discipline to face up to the pressing challenges of our times (climate change, collapse in biodiversity, extreme inequalities, crises of late capitalism. As a result, the depth and expressiveness of the book (but also, it should be acknowledged, its density) are somewhat unusual for an academic work in the otherwise often technical field of private international law. It is also a testament to its author’s commitment to openness to alterity (here in scientific fields and concepts). Also very striking is the avowed freedom of discourse that the author grants herself, not only in the interdisciplinary approach (which the author describes as bricolage, to make apparent the choices and selection that she has had to make) but also, more generally, in the construction of the discourse itself which sometimes verges on free association, giving the book a palimpsestic quality, not unsuited for its stated purpose: the forecasting of an ecological jurisprudence.

The regular readers of Conflict of Laws.net may not have been Horatia Muir Watt’s target audience, or at least her primary target audience, when writing this book. In itself, this willingness to engage with readers beyond the admittedly small circle of private international lawyers should be applauded, because few among them have managed, or even attempted, to offer (useable) insights to the legal community at large. This, however, should absolutely not be taken to mean that private international lawyers will gain nothing from The Law’s Ultimate Frontier; quite the opposite, in fact. This book challenges one’s understanding of private international law, and is an invitation to rethink the purpose of our involvement in its practice or scholarship. Many a time, the critique of a foundational myth – internationality, extraterritoriality, party autonomy, even tolerance…  – or a novel way of (re)framing well-known doctrinal debate or case, hallowed or recent – Caraslanis, Chevron, Vedanta… – produces a jolt, a “I did find it strange when first reading about it, but I could not quite put my finger on it” moment of illumination. This is no small feat.

Yesterday, the ICLQ published an article by Dr Maria Hook titled, “The Purpose of the Gateways for Service out of the Jurisdiction.” It is open access and it’s abstract reads as follows:

This article argues that the purpose of the English gateways for service out of the jurisdiction is to identify a presumptive meaningful connection; that courts have used different mechanisms to rebut the presumption of a meaningful connection established by the gateways; and that there are lessons to be learnt from a clearer, more explicit understanding of this presumptive purpose of the gateways. The article uses Brownlie (I and II) and Fong v Ascentic Ltd to support and illustrate these arguments.

This post was written by Faidon Varesis, who is Assistant Professor in Private International Law and International Dispute Resolution at the University of Cambridge and a Fellow of St John’s College. It is the second contribution to the EAPIL online symposium on the UK Supreme Court Judgment in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC […]

This post was written by Manuel Penades, who is Reader in International Commercial Law at King’s College London. It is the first contribution to the EAPIL online symposium on the UK Supreme Court Judgment in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30. Readers are encouraged to participate in the discussion by commenting on the […]

Call for Applications

Lindemann Fellowship for Private International Law

The Lindemann Fellowship, generously funded by the Lindemann Foundation, is a newly established initiative aimed at supporting promising academics in the field of private international law. The Fellowship’s primary
goal is to provide early-career researchers with the opportunity to build a network with academics from all over Europe. Fellows will, in principle, be accepted for a three-year period, with new Fellows joining each year, as existing Fellows complete their tenure.

The core of the Fellowship is an annual, fully-funded meeting of the Fellows and coordinators, lasting two days, where Fellows present their current research. These meetings will generally take place in Hamburg, Germany, but may also occur in other locations. The meetings offer younger scholars a valuable opportunity to engage with other highly skilled Fellows from across Europe. Additionally, Fellows will have the chance to meet the coordinators of the Fellowship, receive feedback on their research projects, and obtain guidance on questions related to their future academic careers.

The research presented at the annual meetings will be edited for publication in collected volumes. The research presentations and subsequent publications should focus on the field of private international law in a broad sense (particularly conflict of laws and international civil procedure), but may also include the interplay with other areas of law or disciplines. The research can be based on an already completed or ongoing PhD thesis. As the volumes will be published in English and will be open access, this can be an opportunity for Fellows to publish key findings from their PhD in English and in an easily accessible format.

Who should apply and how?

Applicants’ primary area of research should be in private international law. Candidates who have completed their PhD must apply within four years after defending their PhD. Candidates who expect to submit their PhD within a year and have an outstanding academic background are also encouraged to apply. Applicants should be based within Europe (not restricted to the European Union). Fellows are expected to attend the annual meetings and to contribute to the collected volumes.

Applications, including a short letter of motivation, curriculum vitae, list of publications, teaching and presentations, and other relevant documents – all as one PDF – should be submitted by 15.12.2024 to sekretariat-duden.rw@uni-hamburg.de. Please direct questions to konrad.duden@uni-hamburg.de.

The coordinators:

Sabine Corneloup
University of Paris-Panthéon-Assas

Andrew Dickinson
University of Oxford

Konrad Duden
University of Hamburg

Agnieszka Frackowiak-Adamska
University of Wroc?aw

Pietro Franzina
Università Cattolica del Sacro Cuore, Milan

Ralf Michaels
Max Planck Institute, Hamburg

Marta Pertegás Sender
University of Maastricht

The full call for applications can also be found here.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 28 November 2024 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is the private international law aspects in the case Estados Unidos Mexicanos (Mexico) v. Smith & Wesson Brands et al. and will be presented by Dr. Manuel Segovia González (in Spanish). We have previously reported on the case here.

The details of the webinar are:

Link:

https://us02web.zoom.us/j/86578424187?pwd=r4sV1akhTaehHR79AJyWev4UxDghSg.1

Meeting ID: 865 7842 4187

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

 

 

On 18 September 2024, the UK Supreme Court gave the reasons for its unanimous judgment in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30. This development was covered by the EAPIL Blog. In brief, the court upheld the judgment of the Court of Appeal ([2024] EWCA Civ 64), which had granted an anti-suit injunction to enforce […]

Christian von Bar (University of Osnabrück), Oliver L. Knöfel (European University Viadrina Frankfurt (Oder)), Ulrich Magnus (University of Hamburg), Heinz-Peter Mansel (University of Cologne) and Arkadiusz Wudarski (European University Viadrina Frankfurt (Oder) and University of Szczecin) edited Gedächtnisschrift für Peter Mankowski with Mohr Siebeck. The commemorative volume honours the late Peter Mankowski, who served as […]

The fourth issue of the Journal du droit international for 2024 has been released. It contains four articles, two of which might be of interest for the purposes of private international law. It also contains several case notes and a survey of the most important judgments addressing private international law issues delivered by the CJEU […]

Written by Yasmín Aguada** [1]– Laura Martina Jeifetz ***[2]. Part I is available here

Abstract: Part II aims to delve deeper into the aspects addressed in the previously published Part I. International Judicial Cooperation (IJC) and advanced technologies redefine Private International Law (PIL) in a globalized world. The convergences between legal collaboration among countries and technological innovations have revolutionized how cross-border legal issues are approached and resolved. These tools streamline international legal processes, overcoming old obstacles and generating new challenges. This paper explores how this intersection reshapes the global legal landscape, analyzing its advantages, challenges, and prospects.

Keywords: private international law, international judicial cooperation, new technologies, videoconferencing, direct judicial communications, Smart contracts, and Blockchain.

II.III. Videoconferences and virtual hearings

Videoconferencing and video-links are familiar today after the widespread use they acquired during the COVID-19 pandemic. These resources perform various functions in judicial processes, ranging from facilitating communications with the parties involved, experts and witnesses, to holding hearings and training activities. These are just examples that illustrate the wide range of uses they offer.[3]

Despite its long presence both nationally and internationally, videoconferencing has seen a notable increase in its application, particularly in the context of criminal cases, as can be seen in inmates’ statements.[4] However, its growing expansion into areas such as international abduction cases and civil and commercial matters is also evident.[5]

Regarding the concept, Tirado Estrada states that videoconferencing constitutes “an interactive communication system that simultaneously transmits and “in real time” the image, sound and data at a distance (in point-to-point connection), allowing relationships and interaction, visually, auditorily and verbally, to a group of people located in two or more different places as if the meeting and dialogue were held in the same place.” [6] It allows communication between people in different places and simultaneously through equipment reproducing images and sound.

Among the advantages that should be highlighted is its notable contribution to the agility in the processing of legal processes, which affects the quality and effectiveness of judicial procedures. These technologies enable a direct link without intermediaries between those involved in the judicial process, the administration of justice, and the relevant authorities.

Likewise, it is pertinent to point out the significant reduction in costs associated with transportation to the judicial headquarters while facilitating the recording and, therefore, the exhaustive record of the events in the hearings. Furthermore, it must be emphasized that videoconferencing ensures security conditions by applying robust encryption protocols.

Ultimately, videoconferences guarantee the observance of essential principles within the framework of due process, such as the publicity of the acts, the practical possibility of contradiction of the parties involved, and the immediacy in the perception of evidence.[7]

II.III.I. Regulatory instruments regarding the use of videoconferencing

In April 2020, The Hague Conference on Private International Law (HCCH) published a document within the March 18, 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters[8]. The publication of this work, called Guide to Good Practice on the Use of Video-Link under the Evidence Convention, was drafted by the Permanent Bureau, with a Group of Experts contributing their insights and comments. Although the project started in 2015, its publication occurred during the pandemic. This soft law instrument provides a series of guidelines regarding platforms intended to enable the simultaneous interaction of two or more people through bidirectional audio and video transmission[9].

It is worth mentioning the Ibero-American Convention on the Use of Videoconferencing in International Cooperation between Justice Systems (Ibero-American Convention) and its Additional Protocol[10], signed in 2010. Both instances were approved by law 27. 162, dated August 3, 2015.

This Ibero-American Convention conceives videoconferencing as a resource that enhances and expedites cooperation between the competent authorities of the signatory States. The treaty’s scope covers the civil, commercial, and criminal matters. However, it is possible to extend its application to other fields in which the parties involved expressly agree (article 1).

The Convention recognizes the relevance of new technologies as fundamental tools for achieving swift, efficient, and effective justice. The primary objective is to promote the use of videoconferencing among the competent authorities of the States Parties, considering this medium as a concrete mechanism to strengthen and expedite cooperation in various areas of law, including civil, commercial, and criminal matters, as well as any other agreed upon by the parties. The Convention defines videoconferencing as an  “interactive communication system that allows the simultaneous and real-time transmission of image, sound, and data over a distance, with the aim of taking statements from one or more persons located in a place different from that of the competent authority, within the framework of a judicial process, and under the terms of the applicable law of the involved States.” (art. 2). This definition underscores the importance of immediacy and direct interaction, critical aspects ensuring the validity and effectiveness of the statements obtained through this medium.

Among the most relevant provisions of the Convention is the regulation of hearings via videoconference. The Convention establishes that if the competent authority of a State Party needs to examine a person within the framework of a judicial process, whether as a party, witness, or expert, or during preliminary investigative proceedings, and this person is in another State, their statement can be requested via videoconference, provided that this tool is deemed appropriate for the case. Additionally, the Convention details the requirements that must be met for the request to use videoconferencing and the rules governing its conduct, thus ensuring a standardized and efficient procedure.

The Additional Protocol to the Convention adds significant value by regulating practical aspects that enhance the efficiency of the judicial process. In particular, it addresses issues related to videoconferencing costs, establishing clear criteria on who should bear the expenses. It also regulates the linguistic regime, determining the language or languages used during the videoconferences, which is crucial to ensuring all parties’ understanding and effective participation. Moreover, the Protocol sets precise rules for transmitting videoconference requests, simplifying and streamlining the procedure, which contributes to incredible speed and effectiveness in international judicial cooperation.

The ASADIP Principles on Transnational Access to Justice (TRANSJUS), approved on November 12, 2016, are again relevant. In article 4.6, using video conferences or any other suitable means to hold joint hearings is included[11]. Next, as already mentioned, it proposes that legal operators favour the use of new technologies, such as telephone and video conferencing, among other available means, as long as the security of communications is guaranteed.[12]

Within the scope of cooperation in civil matters, it is relevant to point out the Convention in force in Argentina since 7-VII-1987, which addresses the Obtaining of Evidence Abroad in Civil or Commercial Matters[13]. Regarding the integration of video conferences in this context, we underscore that in July 2024, a Special Commission was held to review the implementation of various Conventions, including the taking of evidence. During these deliberations, it was stressed that video links are in line with the provisions of the 1970 Convention.

The role of videoconferencing as an increasingly relevant means for taking evidence under Chapter I of the Convention was discussed. However, a marked division of opinion was identified among the Contracting States regarding the possibility of using videoconferencing to directly take evidence, highlighting a significant challenge for the Convention. Another issue addressed was the update of the Guide to Good Practices on the Use of Videoconferencing, published in 2020, which has been largely incorporated into the Evidence Handbook. This reflects the growing importance of videoconferencing in international proceedings and the recognition that new technologies must be integrated into conventional practices.

Furthermore, regarding compatibility with the modern technological environment, the Commission noted that, although the 1970 Convention continues to function well in a paper-based environment, it faces challenges adapting to technological developments, such as videoconferencing. This issue raises doubts about the Convention’s ability to remain relevant in the future without greater acceptance of the “functional equivalence” approach by the Contracting States. Finally, a proposal was discussed to develop an international system to facilitate the electronic transmission of requests or create a decentralized system of platforms for such transmission. This proposal aims to improve the efficiency and modernize obtaining international evidence[14]. These discussions underscore the importance of updating and adapting the 1970 Convention to new technological realities to ensure its effectiveness and relevance.

Moreover, it was established that Article 17[15] of the said Convention does not constitute an obstacle for a judicial officer of the court requesting a party located in a State Party to conduct virtual interrogations of a person in another Contracting State. In this sense, the use of technologies such as videoconferencing is adequately adapted to the principles and provisions of the Convention mentioned above, facilitating international cooperation in judicial matters.

Article 17 of the 1970 Hague Convention regulates the possibility of a duly appointed commissioner obtaining evidence in the territory of a contracting State about a judicial proceeding initiated in another contracting State. This article establishes a mechanism for obtaining evidence that does not involve coercion and is subject to two essential requirements: authorization by a competent authority and compliance with established conditions. Additionally, the article allows for a contracting State to declare that obtaining evidence under this article can be carried out without prior authorization.

This article is particularly relevant for international judicial cooperation in the region, as it facilitates evidence collection abroad without resorting to coercive mechanisms. However, countries like Argentina have objected to the application of Article 17. The reasons are related to the protection of national sovereignty, as the appointment of foreign commissioners to act in a State’s territory to obtain evidence may be seen as an intrusion into that State’s sovereignty. Some countries in the region consider that allowing commissioners appointed by foreign courts to operate could compromise their jurisdictional autonomy.

On the other hand, concerning legal security and process control, the States that have objected to Article 17 value maintaining rigorous control over the procedures for obtaining evidence within their territory. Authorizing the actions of foreign commissioners without strict supervision could raise concerns about legal security and fairness in the process. Finally, differences between the legal systems of the countries in the region and those from which the appointed commissioners come could create difficulties in the uniform application of the article.

In summary, while Article 17 of the 1970 Hague Convention offers a valuable mechanism for obtaining evidence abroad, its implementation has generated tensions in the region due to concerns about sovereignty, process control, and differences in legal systems. These objections reflect the need to balance international cooperation and respect for each state’s jurisdictional autonomy.

The regulation in Argentina

In Argentina, the Order of the Supreme Court of Justice of the Nation (CSJN) 20/2013 is relevant. It establishes a set of Practical Guidelines for implementing video conferences in cases in process before the courts, oral tribunals, and appeals chambers, both national and federal, belonging to the Judicial Branch of the Nation.

This Order contemplates the possibility of resorting to videoconferencing when the accused, witnesses, or experts are outside the jurisdiction of the competent court. Consequently, it is essential to have adequate technical resources and a secure connection, which will be submitted to the evaluation of the General Directorate of Technology of the General Administration of the Judiciary. In this context, the regulations explicitly state that the application of these Guidelines must ensure full observance of the adversarial principles and effective defense.[16]

On the other hand, it should be noted that in February 2014, the Federal Board of Cortes and Superior Courts of Justice of the Argentine Provinces and the Autonomous City of Buenos Aires (JUFEJUS) gave its approval to the Protocol for the Use of the Videoconferencing System. This initiative aims to promote the adoption of hearings through video media as a resource aimed at reinforcing reciprocal collaboration, optimizing the effectiveness of jurisdictional processes, and simplifying the conduct of training and coordination meetings, among other relevant purposes.[17]

II.IV. Direct judicial communications.

Another of the IJC’s essential tools is direct judicial communications (DJC), intended to facilitate communication between two judges involved in a specific case[18]. In the autonomous source, DJC finds legal reception in Art. 2612 of the Civil and Commercial Code of the Nation.[19]

Direct judicial communications “are communications between two judicial authorities from different countries that are developed without the intervention of an administrative authority (intermediary authorities), as is the usual case of international warrants that are processed through Chanceries and/or Central Authorities designated by the country itself (generally administrative).” [20]

DJC can be implemented in all areas of the IJC. The HCCH has indicated that direct judicial communications can be used to obtain information about specific cases or to request information. Initially, DJC has shown notable success in two main fields: international return proceedings for children and adolescents and cross-border insolvency processes. Over time, it has been acknowledged that various international instruments, both regional and multilateral—such as the 1996 Child Protection Convention—benefit from the use of direct judicial communications. As of March 2023, the International Hague Network of Judges (IHNJ)’s scope has expanded to include the 2000 Protection of Adults Convention[21].

Regarding international child abduction, since 2001, the Special Commission of the 1980 Hague Convention has explored the possibility and feasibility, as well as the limits, safeguards, and guarantees of direct judicial communications, initially linked to the development of the IHNJ to obtain the quick and safe return of the child. Shortly after the IHNJ of Specialists in Family Matters was created in 2002, a Preliminary Report was presented, and the DJC was identified as an ideal mechanism to facilitate the IJC. In 2013, the Permanent Bureau, in collaboration with a Special Commission, published the Emerging Guidance Regarding the Development of the International Hague Network of Judges[22].

In this context, direct judicial communications have evolved to incorporate updated safeguards and protocols. According to the “Emerging Guidance regarding the development of the International Hague Network of Judges,” all communications must respect the legal frameworks of the countries involved, and judges should maintain their independence when reaching decisions. The guidance also outlines procedural safeguards, such as notifying the parties before the communication, keeping a record of the communications, and ensuring that conclusions are documented in writing. These practices help ensure transparency and preserve the rights of the parties involved.

In this framework, the HCCH has identified at least two types of communications: those of a general nature not related to a specific case and consisting, for example, of sharing general information from the IHNJ or coming from the Permanent Bureau of the Hague Conference, with his colleagues, or in keeping the Hague Conference informed of national developments affecting the work of the Conference; and those that consist of direct judicial communications related to specific cases, the objective of these communications being very varied, but on many occasions aimed at mitigating the lack of information that the competent judge may have about the situation and legal implications in the State of habitual residence of the child. These types of direct judicial communications are complemented by the safeguards incorporated in the 2013 Guidance, ensuring that the parties’ rights are respected and transparency is maintained throughout the process.

Additionally, technological advancements are recognized as essential for improving direct judicial communications. The document highlights the importance of using the most appropriate technological facilities, such as telephone or videoconference, to ensure communications are carried out efficiently and securely. These technological tools are crucial in safeguarding the confidentiality of sensitive information, particularly in cases where confidential data is involved.

Direct judicial communications, which represent an essential advance in the field of the IJC, are widely influenced by the implementation of new information and communication technologies. Members of the International Hague Network of Judges emphasized the importance of the Hague Conference implementing, as soon as possible, secure internet-based communication, such as secure email and video conferencing systems, to facilitate networking and reduce costs derived from telephone communications.[23] In 2018, on the 20th Anniversary of the IHNJ, the participants reiterated the need to develop a Secure Platform for the IHNJ[24]. Currently, the secure platform for the IHJN is available.

Since its initial implementation, a secure communications system has been established to facilitate efficient and protected exchanges between judges from different jurisdictions within the IHNJ. This system strengthens judicial cooperation in cross-border child protection, allowing judges to share relevant information directly under security standards that ensure confidentiality and procedural efficiency. During the 25th anniversary celebration of the IHNJ on October 14, 2023, representatives from over 30 jurisdictions gathered in The Hague, highlighting the value of this network and discussing its expansion, which -as was mentioned- now includes the 2000 Protection of Adults Convention in addition to the 1980 Child Abduction and 1996 Child Protection Conventions?[25].

III. FUTURE PERSPECTIVES. SMART CONTRACTS AND BLOCKCHAIN?

In analyzing possible future evolution in the interaction between international judicial cooperation and new technologies, it is essential to consider how blockchain technology and its derivatives, such as smart contracts, could significantly impact this area.

Blockchain technology, known for its ability to create immutable and transparent records, has the potential to revolutionize international judicial cooperation by providing a secure and trusted platform for the exchange and management of legal information between jurisdictions. Records on the blockchain could be used to ensure the authenticity and integrity of court documents, which in turn would strengthen trust between the parties involved.[26]

Smart contracts are autonomous and self-executing protocols that could simplify and speed up the execution of agreements between international judicial systems. These contracts may be designed to execute automatically when certain predefined conditions are met, which could be helpful in legal cooperation involving the transfer of information or evidence between jurisdictions.

However, successfully implementing blockchain technologies in international judicial cooperation would require overcoming significant challenges. Critical considerations include the standardization of protocols and data formats, interoperability between judicial systems, and the question of the legal sovereignty of records on the blockchain.

Blockchain technology and smart contracts could offer innovative solutions for international judicial cooperation by improving reliability, transparency, and process automation. Although the challenges are significant, their proper adoption could transform how jurisdictions interact and collaborate globally on legal matters.

Concerning automated contracting, it is noteworthy that during its fifty-seventh session in 2024, the United Nations Commission on International Trade Law (UNCITRAL) finalized and adopted the Model Law on Automated Contracting (MLAC)[27] and gave in principle approval to a draft guide for its enactment. In November, Working Group IV (Electronic Commerce) is expected to review this guide to enacting the UNCITRAL Model Law on Automated Contracting to finalize and publish it.

IV. BENEFITS AND CHALLENGES.

The convergence between international judicial cooperation and new technologies presents several substantial benefits that can profoundly transform how jurisdictions worldwide collaborate on legal matters. Certain advantages can be identified by explicitly analyzing electronic requests, direct judicial communications, videoconferences, and future projections related to blockchain technology and smart contracts. Between them:

Efficiency: New technologies allow for streamlining judicial cooperation processes, eliminating unnecessary delays. Electronic requests and direct judicial communications reduce document processing and sending times, significantly reducing shipping times by traditional mail.

Cost savings: Technologies reduce the need for physical resources, such as paper, transportation, and additional personnel for administrative procedures. Video conferencing also reduces travel costs for witnesses, experts, and attorneys as they can participate from their respective locations.

Transparency and authenticity: Document digitization and electronic system implementation ensure a transparent and reliable record of communications. Additionally, electronic signature and authentication technologies guarantee the integrity and legitimacy of shared documents.

Greater access to justice: Technologies can democratize access to justice, allowing involved parties, especially those in remote locations or with limited resources, to participate in judicial proceedings and collaborate more effectively. These promises to avoid the long delays that traditional processing channels suffer, ultimately undermining the basic principles of access to justice and making adequate judicial protection difficult.

New technologies are transforming international judicial cooperation by eliminating time, distance, and resource barriers while improving the efficiency and effectiveness of transnational judicial processes. These technologies could raise the quality and speed of justice globally.

V. FINAL CONSIDERATIONS

Throughout this journey, we have explored how the intersection between international judicial cooperation and new technologies is transforming the legal landscape internationally. We have observed the growing impact of these new technologies in the IJC field and in the collaborative efforts between States to seek legal and administrative solutions to improve access to justice in cross-border proceedings. In this context, we have analyzed several technological tools, such as electronic requests and videoconference. At the same time, we have observed how facilitating instruments such as Apostilles and direct judicial communications have also incorporated, or are incorporating, technological components to improve their results.

Contemplating the possible future directions of this complex network of connections between the IJC and new technologies immerses us in searching for answers and alternatives and deep reflection on the numerous challenges that arise. Indeed, the rapid integration of new technologies is fundamentally changing various aspects of the legal field, which requires careful contemplation.

In conclusion, it is appropriate to emphasize the benefits that the implementation of new technologies can bring to the field of the IJC: reduction of costs and delays that lead to greater efficiency and agility while guaranteeing the fundamental rights of due process, defense, and security, always guided by the basic principle of ensuring access to justice.

In essence, this contribution highlights the crucial role that the symbiotic relationship between international judicial cooperation and evolving technologies will play in shaping the future of global legal practices.

 

 

[1]** Lawyer and Notary, Faculty of Law, National University of Córdoba, Master in International Business Law, Complutense University of Madrid. Assistant professor in Private International Law and Public International Law at the Faculty of Law, National University of Córdoba. Email: yasmin.aguada@mi.unc.edu.ar

[2] *** Lawyer, Faculty of Law, National University of Córdoba. PhD student, University of Cádiz. Master in International Business Law, Complutense University of Madrid. Assistant professor in Private International Law at Law School, National University of Córdoba. Email: martina.jeifetz@unc.edu.ar

[3] HARRINGTON, CAROLINA. “Justicia, aislamiento y videoconferencia la experiencia del derecho internacional privado en desandar barreras: guía de buenas prácticas de la conferencia de la haya 2019”, in Guillermo Barrera Buteler (Dir.), El derecho argentino frente a la pandemia y post-pandemia covid-19.  Córdoba, Universidad Nacional de Córdoba, 2020.

[4]In the field of criminal cooperation, various legal instruments recognize the viability of the technological use of videoconferencing. These include the Statute of the International Criminal Court, ratified at the Rome Conference on July 17, 1998; the European Convention on Legal Assistance in Criminal Matters, approved on May 29, 2000 by the Council of Ministers of Justice and Foreign Affairs of the European Union; the Second Additional Protocol of 2001 (Strasbourg, November 8, 2001) to the European Convention on Mutual Assistance in Criminal Matters, signed in Strasbourg on April 20, 1959 by the member states of the Council of Europe. Additionally, noteworthy are the influential 2000 Palermo Convention on Transnational Organized Crime and the 2003 Mérida United Nations Convention against Corruption, among other notable instruments. These treaties highlight the usefulness and effectiveness of videoconferencing as a technological resource in criminal cooperation at the international level.

[5] GOICOECHEA, IGNACIO. “Nuevos desarrollos en la cooperación jurídica internacional en materia civil y comercial”, in Revista de la Secretaría del Tribunal Permanente de Revisión (STPR), 7, year 4, 2016.

[6] TIRADO ESTRADA, JESÚS JOSÉ. “Videoconferencia, cooperación judicial internacional y debido proceso.”, in Revista de la Secretaria del Tribunal Permanente de Revisión, year 5, no. 10, 2017, p. 154. Available in: https://dialnet.unirioja.es/servlet/articulo?codigo=6182260. Consultation date: 10/11/2024.

[7] GONZALEZ DE LA VEGA, CRISTINA, SEONE DE CHIODI, MARÍA Y TAGLE DE FERREYRA, GRACIELA. “Bases para el acceso a la justicia en la restitución internacional de NNA”. Paper presented at the Argentine Congress of International Law, Córdoba, September 2019.

[8] Such Convention has been in force in Argentina since 07/07/1987. For more details:  https://www.hcch.net/en/instruments/conventions/status-table/?cid=82. Consultation date: 10/11/2024.

[9] Video-link refers to the technology which allows two or more locations to interact simultaneously by two-way video and audio transmission, facilitating communication. – HCCH Guide to Good Practice on the Use of Video-Link under the Evidence Convention.

[10] For the Convention, videoconference is understood as an interactive communication system that reproduces, simultaneously and in real time, images, sound and data of people who are located in geographical locations other than that of the competent authority. This system allows the taking of statements in accordance with the applicable law of the intervening States. Available in: https://www.comjib.org/wp-content/uploads/imgDrupal/Convenio-Videoconferencia-ES-publicaciones_1.pdf

Consultation date: 06/13/2024.

In the following link you can check the status of signatures and ratifications of the treaties and agreements of the conference of ministers of justice of the Ibero-American countries. Available in:  https://drive.google.com/drive/folders/1EzscrkCSThRo7gtjZJlt9LZphoMBtA0q. Consultation date: 04/09/2024.

[11] “They are characterized by being framed in two (or more) processes for closely linked cases, heard before courts in different countries. The hearing is developed to “serve” more than one main process. Frequently, in family cases involving children, one can observe the existence of lawsuits initiated in different countries with various objects (restitution, parental responsibility, custody, communication regime, maintenance), which can benefit from the simultaneity implied in the joint celebration of the audience”. HARRINGTON, CAROLINA. “Audiencias Multijurisdiccionales. Configuraciones y perspectivas para facilitar el acceso a justicia en litigios internacionales”. Paper presented at the Argentine Congress of International Law, Córdoba, September 2019.

[12]ASADIP PRINCIPLES ON TRANSNATIONAL ACCESS TO JUSTICE (TRANSJUS). Available at: http://www.asadip.org/v2/wp-content/uploads/2018/08/ASADIP-TRANSJUS-EN-FINAL18.pdf. Consultation date: 10/11/2024.

[13] This Agreement, approved by Law No. 23,480, links us with 64 countries. HCCH. Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. Available in: https://www.hcch.net/en/instruments/conventions/status-table/?cid=82 . Consultation date: 10/11/2024.

[14] Consult Celis, Mayela, July 3, 2024 “This week at The Hague: A few thoughts on the Special Commission on the HCCH Service, Evidence and Access to Justice Conventions” Available in: https://conflictoflaws.net/2024/this-week-at-the-hague-a-few-thoughts-on-the-special-commission-on-the-hcch-service-evidence-and-access-to-justice-conventions/. Consultation date: /10/11/2024.

[15] Article 17. In civil or commercial matters any person duly designated as a commissioner may, in the territory of a Contracting State, proceed, without compulsion, to obtain evidence relating to a proceeding instituted before a Court of another Contracting State. : a) if a competent authority designated by the State where the evidence is to be obtained has given its authorization, in general, or for each particular case; and b) if said person meets the conditions that the competent authority has established in the authorization. Any Contracting State may declare that the collection of evidence in the manner provided for in this article may be carried out without prior authorization. Available in: https://www.hcch.net/es/instruments/conventions/full-text/?cid=82 . Consultation date: 05/20/2024.

[16]SUPREME COURT OF JUSTICE OF THE NATION. Agreed on 20/2013. Available at: https://www.csjn.gov.ar/documentos/descargar/?ID=77906 . Consultation date: 10/11/2024.

[17] JU.FE.JU. “Protocol for the use of the Videoconferencing System”, 2014. Art. 3 defines: “Videoconferencing shall be understood as an interactive communication system that simultaneously and in real time transmits image, sound and data at a distance between one or more sites.” Available in: https://www.jufejus.org.ar/protocolo-de-videoconferencias/. Consultation date: 10/11/2024.

[18] For more information see: HARRINGTON, CAROLINA. “Comunicaciones judiciales directas. Un arma versátil para enfrentar desafíos procesales en el derecho internacional privado de familia” in LLC2018 (October), 3, 2017. Online Citation: AR/DOC/3303/2017.

[19]Art. 2612.- International procedural assistance. Without prejudice to the obligations assumed by international conventions, communications addressed to foreign authorities must be made by means of a letter. When the situation requires it, Argentine judges are empowered to establish direct communications with foreign judges who accept the practice, as long as the guarantees of due process are respected (…) .”

[20] GOICOECHEA, IGNACIO. Nuevos desarrollos en la cooperación jurídica internacional en materia civil y comercial. Revista de la Secretaria del Tribunal Permanente de Revisión (STPR), year 4, No 7 (pp. 127-151), 2016, p. 136.

[21] HCCH. Details. 25th Anniversary of the International Hague Network of Judges. Available in: https://www.hcch.net/en/news-archive/details/?varevent=944. Consultation date: 22/10/2024.

[22] Direct Judicial Communications. Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges. Available in: https://assets.hcch.net/docs/62d073ca-eda0-494e-af66-2ddd368b7379.pdf. Consultation date: 22/10/2024.

[23] Conclusions 7 and 41, Inter-American Meeting of Judges and Central Authorities of the Hague International Network on International Child Abduction, Mexico, February 23-25, 2011. Available in: https://www.hcch.net/es/%20news-archive/details/?varevent=217. Consultation date: 10/11/2024.

[24] Conference Of Hague Convention Network Judges Celebrating the 20th. Anniversary of The International Hague Network Of Judges. Conclusions And Recommendations. Available in: https://assets.hcch.net/docs/69f03498-8a72-4ffe-aa44-30fc70493859.pdf. Consultation date: 24/10/2024.

[25] https://www.hcch.net/en/news-archive/details/?varevent=944  Consultation date: 27/10/2024.

[26]AGUADA, YASMÍN and JEIFETZ, LAURA MARTINA. Nuevas oportunidades de la cooperación judicial internacional: exhorto electrónico y blockchain.  Anuario XIX CIJS, 2019.

[27] The UNCITRAL Model Law on Automated Contracting introduces essential principles to legitimize contracts formed and executed by automated systems, even in the absence of human intervention. First, its focus on technological neutrality and legal recognition ensures that contracts are valid regardless of whether a person has directly reviewed them. This aspect is particularly valuable for smart contracts and blockchain applications, as it aligns with the requirements of coded and dynamic agreements, which may use information that updates periodically. Additionally, action attribution is clarified to hold users accountable for automated system actions, even in cases of unforeseen outcomes. These provisions are poised to enhance cross-border legal coherence and foster trust in automation within global legal frameworks. The document is available here: https://uncitral.un.org/sites/uncitral.un.org/files/mlac_en.pdf. Consultation date: 25/10/2024.

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