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The post below was written by Alex Mills, who is Professor of Public and Private International Law at University College London. It is the first contribution to the EAPIL online symposium on the English Law Commission’s proposed reform of the law governing arbitration agreements.

Readers are encouraged to participate in the discussion by commenting on the posts. Those wishing to submit longer analyses are invited to do so by e-mailing Ugljesa Grusic (u.grusic@ucl.ac.uk).

The Law Commission of England and Wales has produced a deeply thoughtful and well-researched Report, which proposes a number of very welcome reforms to the Arbitration Act 1996. Regretfully, however, I have significant reservations about the proposal which is the subject of this Symposium – the adoption of a new choice of law rule for arbitration agreements. This proposal is based on the Second Consultation Paper produced by the Law Commission in March 2023, and this comment draws on my Submission which responded to that Consultation Paper.

The rules for identifying the law applicable to an arbitration agreement have long been the subject of debate. The issue was prominently addressed by the UK Supreme Court in Enka v Chubb [2020] UKSC 38, which acknowledged (at [3]) that it had “long divided courts and commentators, both in this country and internationally”. The decision in Enka v Chubb has, however, strikingly failed to end the division among commentators. I understand why the Law Commission considered it desirable to address this question, because of the importance of the issue and the policy considerations it presents, and because it has been suggested that there is a lack of clarity in the Supreme Court’s judgment in Enka v Chubb. This issue is complex and reasonable arguments can certainly be made on both sides, as indeed acknowledged in the impressive Report and Second Consultation Paper. I am, however, not convinced of the proposal set out in the Report, which is that “the Arbitration Act 1996 be amended to provide that the arbitration agreement is governed by the law of the seat, unless the parties expressly agree otherwise” [Report, 12.77]. In this post I set out what I understand to be the relevant principles, and explain how these broadly support the rule adopted by the Supreme Court in Enka v Chubb, which has also been followed in other common law jurisdictions (such as Singapore and Hong Kong).

A first and well-known key principle is that the law governing the arbitration agreement need not be the same as that governing the remainder of the contract, sometimes referred to as the ‘matrix contract’. This is because of the principle of separability, which allows for a distinct analysis of the arbitration clause’s applicable law.

A second key principle is party autonomy, which is the starting point for analysis of any contractual choice of law issue, and particularly important in arbitration because of its contractual foundations. An agreement as to the law which governs a contract or a clause of a contract must generally be given effect, absent considerations of public policy. Traditionally, a choice of law may be express or implied – if the latter, the search is for factors which demonstrate a real (but undocumented) choice, not a choice which is imputed to the parties as one which they ought to have made.

In the absence of a real choice, it is necessary to consider not the intentions of the parties but the objective factors linking the contract to a particular system of law. Arbitration clauses remain subject to the common law choice of law rule, under which the objective test is sometimes described as a search for the system of law with ‘the closest and most real connection’ to the contract or contractual clause. An arbitration clause will generally be most closely connected to the place where it is to be performed, which is the seat of the arbitration (see further Enka v Chubb, at [120] et seq).

In the law of arbitration, another principle is that of efficiency, but this principle is secondary to that of party autonomy. While the fact that efficiency is generally a goal for parties and for arbitration can assist in interpreting arbitration clauses (see eg Fiona Trust v Privalov [2007] UKHL 40), parties may choose to have their agreements resolved according to inefficient arbitral procedures should they so wish. The law should not interfere with their choices merely because they are thought unwise or undesirable.

On the basis of these clear principles, the law applicable to an arbitration agreement should be governed by the following rule, comprised of three parts in hierarchical order. This is, in essence although not form, the rule set out by the Supreme Court in Enka v Chubb.

Subject to considerations of public policy, an arbitration agreement is governed by:

(i)         The law expressly chosen to govern it;

(ii)        The law implicitly chosen to govern it;

(iii)       The law with which it has its closest and most real connection, which will ordinarily be the law of the seat of the arbitration.

This rule is simple in appearance, although its application may be complex in particular circumstances, as explained further below. The analysis below does not consider the application of public policy, but it remains an important limitation.

The Report proposes to amend the Arbitration Act 1996, to insert the following choice of law rule:

(1) The law applicable to an arbitration agreement is—

(a) the law that the parties expressly agree applies to the arbitration agreement, or

(b) where no such agreement is made, the law of the seat of the arbitration in question.

(2) For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not, of itself, constitute express agreement that that law also applies to the arbitration agreement.

This rule differs from the previous rule in three respects. First, for an express choice to be made, it is necessary that the parties expressly agree that it applies to the arbitration agreement. Second, there is no possibility for an implied choice. Third, in default of a choice, the law of the seat is automatically applied, rather than being the ordinary outcome of the rule.

Under existing law a choice of law for an arbitration agreement may arise in one of three ways.

First, the contract may contain a specific express choice of law agreement for the arbitration clause. In this case, the application of this law to the arbitration clause is self-evidently based on the principles of party autonomy and separability, and is not controversial. This position is maintained in the Law Commission’s proposal.

Second, there may be an implied choice of law for the arbitration agreement. This could arise, for example, where the parties have indicated an understanding that certain statutory provisions which are specific to a governing law will apply to the validity of the arbitration agreement. In this case, the application of the chosen law to the arbitration agreement once again follows straightforwardly as a matter of party autonomy and the principle of separability. One important question in this context is whether a choice of arbitral seat should give rise to an implied choice of law for the arbitration clause. This would certainly be a factor indicating a possible choice of the law of the seat, but it is not generally considered to be a decisive one on its own, as the inquiry is concerned with identifying a real choice made (but not documented) by the parties, and must be attentive to the terms of the contract and other relevant circumstances. This rule would thus in many cases lead to the same outcome as the proposed rule 1(b) in the Report, but would do so not because of a fixed rule of law but because of an implied agreement of the parties. This possibility is rejected in the Law Commission’s proposal.

Third, the matrix contract may contain an express or implied choice of law which should, unless the contrary is agreed, be interpreted to extend to the arbitration clause. This is understood to follow from party autonomy, in combination with the common sense presumption that if parties have made a choice of law for their entire contract, and have not specified a different applicable law for any particular clause of the contract, their choice extends to all of the terms of their contract – including any arbitration agreement (see eg Enka v Chubb, at [43]). This presumption is, however, rebuttable, if there are indications that the parties would not have wanted their choice to cover the arbitration agreement. It is important, however, to understand that this question is about the correct interpretation of the scope of a choice which has been made by the parties. (Here I depart slightly from the reasoning in Enka v Chubb, as I take the view that an express choice of law in the matrix contract which also applies to the arbitration clause is an express, not implied, choice of law for the arbitration clause – see also Report, at [12.34] et seq.) The issue is whether there is evidence which might rebut the common sense presumption. The rule proposed in the Report abolishes the presumption and indeed the possibility of a choice of law in the matrix contract extending to the arbitration agreement, unless it does so specifically and expressly.

There are two main justifications offered for the changes in the Report. The first is that they align with the principle of separability (Report, [12.72]). The analysis of the law applicable to the arbitration agreement is treated as an issue which is entirely unrelated to the contract of which it forms part. It is submitted, however, that this takes separability too far (see eg Enka v Chubb, at [41] and [232] et seq). Separability as a principle rightly ensures that the validity of an arbitration clause is analysed separately from the matrix contract, so that challenges to the validity of the matrix contract do not necessarily undermine the validity of the arbitration clause. This does not, however, require that the arbitration clause be treated as an entirely free-floating agreement, ignoring the context in which it was formed. Indeed, if a choice of law clause in the matrix contract is (as proposed in the Report) deemed to be irrelevant to the arbitration clause, this raises the question whether other clauses in the matrix contract are similarly irrelevant. What if the matrix contract contains an ‘entire agreement’ clause, or a ‘no oral modification’ clause? Are they also irrelevant to the arbitration clause? If not, why is the choice of law singled out, particularly as it may also have interpretive effect?

The second is that the rule proposed in the Report would be more desirable for various policy reasons. The rule would, for example, undoubtedly be clearer and easier to apply than the current position (Report, [12.74]). Applying the rule would also strongly favour the selection of English law to determine the validity of an arbitration agreement with the seat of arbitration in England, which the Report considers to be desirable on various grounds, such as the alignment of the law governing the arbitration agreement and the law governing the arbitration process, and the favourable approach of English law toward arbitration agreements (see Report, [12.16] et seq). It is submitted, however, that these justifications are also not persuasive, as they elevate efficiency and other similar policy considerations above party autonomy. In the absence of an express choice of law specific to the arbitration clause, the fixed rule in the Report in favour of the law of the seat no longer requires but rather excludes an inquiry into what the parties have actually agreed. Contrary to the analysis in the Report (eg, at [12.53], [12.73]), this is a significant constraint on party autonomy. Where parties have chosen a seat for their arbitration, but have (expressly or impliedly) chosen a different governing law for their arbitration clause, the fact that they have thereby chosen different laws for the law governing the arbitration process and the law governing the arbitration agreement may be considered undesirable, and it may be inefficient, but it is submitted that this is not a sufficient reason for the law to disrespect their choice, which is the very foundation of arbitration. The proposed rule also has the undesirable effect that the arbitration agreement and the matrix contract are more likely to be governed by different laws, which raises difficult questions concerning their consistent interpretation and validity (see, eg, Enka v Chubb, at [53] and [235] et seq). There is also a concern that arbitrators will be faced with a difficult choice between applying a law chosen by the parties (for example, through a matrix choice of law agreement, or through an implied choice), which they may consider themselves to be required to do as a matter of their contractual mandate, and applying the law that will be applied by the English courts if their award is challenged.

The Law Commission’s Report is overall an excellent example of law reform, offering carefully crafted and well-reasoned proposals for improvement. On this issue, it makes its case well, and there would undoubtedly be some benefits to the reforms which it proposes. Ultimately, however, I am not persuaded that they are consistent with the core principles that should be guiding the law. A simple and clear rule is often desirable, but in this case it is my view that the complexities of the existing rule simply reflect the complexities of arbitration, which cannot and should not be legislated away.

On 7 September 2023, the Court of Justice of the European Union ruled in Case C-590/21, Charles Taylor Adjusting that judgements ordering a party to pay certain sums of money for violating a choice of court agreement are ‘quasi anti suit injunctions’ which violate mutual trust. The courts of Member States are therefore free to consider that such judgements violate public policy and to deny them enforcement under the Brussels I Regulation.

On 3 May 2006, the vessel Alexandros T sank and was lost, along with its cargo, off the bay of Port Elizabeth (South Africa). The companies Starlight Shipping Company and Overseas Marine Enterprises Inc. (‘OME’),  the owner and operator of that vessel, respectively  requested that the insurers of that vessel pay an indemnity on the basis of their contractual liability arising from the occurrence of the insured incident.

After the insurers refused, Starlight initiated proceedings before English courts and before an arbitral tribunal. The parties settled all these actions in several Settlement Agreements, which contained a jurisdiction clause designating English courts. The Settlement Agreements were ratified by several English judgments in 2007 and 2008.

A few years later, Starlight and OME initiated tort actions in Greek courts related to the actions settled in England. One of the defendants in the Greek proceedings was Charles Taylor Adjusting Limited, a legal and technical consultancy which had defended the insurers of the vessel Alexandros T against the claims made by Starlight before the English court, and against the director of that consultancy.

While those actions were pending, the insurers of the vessel and their representatives, including, in particular, Charles Taylor and its director, the defendants in the Greek proceedings, brought actions against Starlight and ΟΜΕ before the English courts seeking a declaration that the actions brought in Greece constituted infringements of the settlement agreements and applying for declarative relief and compensation.

In 2014, the English High Court awarded the applicants compensation in respect of the proceedings instituted in Greece as well as payment of their costs incurred in England on the basis of the content of the settlement agreements and of the jurisdiction clause that they contained.

Charles Taylor and its director then sought recognition and partial enforcement of the 2014 English judgement in Greece.

The Piraeus Court of Appeal found that the 2014 English judgement amounted to a quasi anti suit injunction and should thus be denied recognition and enforcement. The Greek Court of Cassation referred the matter to the CJEU.

The starting point of the reasoning was obviously Turner and the other judgments of the CJEU which have confirmed that anti-suit injunctions are unacceptable under the EU law of jurisdiction: ‘Any injunction prohibiting a claimant from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which, as such, is incompatible with that regulation’.

The key issue was to determine whether other forms of assessment of the jurisdiction of courts of other Member States and sanctions of parties wrongly litigating before the courts of Member States could equally interfere with the jurisdiction of those courts.

The CJEU found that, although it did not order any party to discontinue the foreign proceedings, the English judgment still held:

26. … That judgment and those orders nonetheless contain grounds relating to, first, the breach, by Starlight and OME together with the natural persons representing them, of those settlement agreements; second, the penalties for which they will be liable if they fail to comply with that judgment and those orders; and, third, the jurisdiction of the Greek courts in the light of those settlement agreements. Moreover, that judgment and those orders also contain grounds relating to the financial penalties for which Starlight and OME, together with the natural persons representing them, will be liable, in particular a decision on the provisional award of damages, the amount of which is not final and is predicated on the continuation of the proceedings before the Greek courts.

The CJEU ruled that the 2014 English judgment thus interfered with the jurisdiction of Greek courts, and could thus be classified as a quasi anti suit injunction:

27. … While the purpose of that judgment and those orders is not to prohibit a party from bringing or continuing legal action before a foreign court, they may be regarded as having, at the very least, the effect of deterring Starlight and OME, together with their representatives, from bringing proceedings before the Greek courts or continuing before those courts an action the purpose of which is the same as those actions brought before the courts of the United Kingdom, which matter is, in any event, for the referring court to determine.

The CJEU then discussed whether the prohibition to review foreign judgments under the Brussels Regulation prevented the Greek court from denying enforcement to the 2014 English judgment. The CJEU concludes that the Greek Court could rely on the public policy exception to sanction the infringement to the principle that every court is to rule on its own jurisdiction, that other courts should trust the result, and the principle of access to justice.

The rationale for the judgment seems to be twofold. First, the courts of the Member States should not deter litigants from bringing  proceedings before the courts of any other Member State. Second, the courts of the Member States should always refrain from assessing whether the court of other Member States have jurisdiction.

The first reason seems to exclude any interference in proceedings pending before other Member States which could be perceived as exercising pressure on one party to terminate them. It would leave open the possibility to sue after the termination of the proceedings to seek any form of remedy for initiating the foreign proceedings in violation of a choice of court agreement. The second reason, however, would seem to apply even after the foreign proceedings resulted in a judgment.

The broader question is whether it is possible to seek a remedy for abuse of process for seizing wrongly the court of a Member State. For instance, for initiating proceedings in violation of lis pendens. The answer seems to be that such remedy can only be sought in the Member State of the court wrongfully seized, and nowhere else.

The Court of Justice delivered today (7 September 2023) its decision in case C‑832/21 (Beverage City & Lifestyle GmbH, MJ, Beverage City Polska Sp. z o.o., FE v Advance Magazine Publishers Inc.), which is about the conditions of application of Article 8 Brussels I bis:

“Article 8(1) of [Brussels I bis] must be interpreted as meaning that a number of defendants, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled before which, in the context of an infringement action, claims have been brought against all of those defendants by the proprietor of an EU trade mark where they are each accused of having committed a materially identical infringement of that trade mark and they are connected by an exclusive distribution agreement”.

Source : https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=277065&part=1&doclang=EN&text=&dir=&occ=first&cid=478516

The Court of Justice delivered today (7 September 2023) its decision in case C‑590/21 (Charles Taylor Adjusting Ltd, FD v Starlight Shipping Co., Overseas Marine Enterprises Inc.), which is about a “quasi anti-suit injunction” and recognition and enforcement of judgments from other Member States:

“Article 34(1) of [Brussels I] read in conjunction with Article 45(1) thereof, must be interpreted as meaning that a court or tribunal of a Member State may refuse to recognise and enforce a judgment of a court or tribunal of another Member State on the ground that it is contrary to public policy, where that judgment impedes the continuation of proceedings pending before another court or tribunal of the former Member State, in that it grants one of the parties provisional damages in respect of the costs borne by that party on account of its bringing those proceedings on the grounds that, first, the subject matter of those proceedings is covered by a settlement agreement, lawfully concluded and ratified by the court or tribunal of the Member State which gave that judgment and, second, the court of the former Member State, before which the proceedings at issue were brought, does not have jurisdiction on account of a clause conferring exclusive jurisdiction”.

One of the key points: “the judgment and orders of the High Court [of England and Wales] could be classified as ‘“quasi” anti-suit injunctions’. While the purpose of that judgment and those orders is not to prohibit a party from bringing or continuing legal action before a foreign court, they may be regarded as having, at the very least, the effect of deterring Starlight and OME, together with their representatives, from bringing proceedings before the Greek courts or continuing before those courts an action the purpose of which is the same as those actions brought before the courts of the United Kingdom, which matter is, in any event, for the referring court to determine” (paragraph 27). The Court adds, at paragraph 28, that “An injunction having such effects would not […] be compatible with Regulation No 44/2001”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=277063&mode=req&pageIndex=3&dir=&occ=first&part=1&text=&doclang=EN&cid=434606

How does the anchor defendant mechanism operate in the realm of EU trade marks and actions on trade mark infringement? Is the existence of an exclusive distribution agreement between the defendants sufficient to rely on this mechanism? Those are the questions that the Court of justice addresses in its judgment handed down this morning in the case Beverage City Polska, C-832/21.

A Polish company manufactures, advertises and distributes an energy drink. Its managing director is domiciled in the city where this company is based.

A German company is connected to the Polish one through an exclusive distribution agreement for Germany – on this basis, it sourced the energy drink from the Polish Company. Its managing director is also domiciled in Germany, in a different state of that country.

Another German company being a proprietor of an EU trade mark brings an action for injunctive relief throughout the entire EU and supplementary claims against the Polish and German companies as well as against their managing directors before a court in Germany, with jurisdiction over the place where the managing director of the German company is domiciled.

The German court bases its jurisdiction over the Polish defendants (the company and its managing director) on Article 8(1) of the Brussels I bis Regulation, referring to the principles established in the judgment of the Court of Justice in Nintendo.

As a reminder, Article 8(1) of the Brussels I bis Regulation – applicable in the case via Article 122 of the EU trade mark Regulation – states: ‘A person domiciled in a Member State may also be sued […] where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.’

This decision is contested by the Polish company and its managing director.

The second instance court refers the following question to the Court of Justice for a preliminary ruling:

‘Are claims “so closely connected” that it is expedient to hear and determine them together to prevent irreconcilable judgments, within the meaning of Article 8(1) of [Regulation No 1215/2012], where, in infringement proceedings for infringement of an EU trade mark, the connection consists in the fact that the defendant domiciled in a Member State (here, Poland) supplied the goods which infringe an EU trade mark to a defendant domiciled in another Member State (here, Germany) whose legal representative, against whom infringement proceedings have also been brought, is the anchor defendant, if the parties are connected to each other only through the mere supply relationship beyond which there is no legal or factual connection?’

In his Opinion delivered this March, AG Richard de la Tour proposed the Court to answer the preliminary question in a following manner:

‘Article 8(1) of the Brussels I bis Regulation […] must be interpreted as meaning that more than one defendant, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled that are seised, in the context of infringement proceedings, of claims brought against them by the proprietor of an EU trade mark where the defendants are alleged to have infringed that trade mark in a materially identical manner through each of their acts in a supply chain. It is for the court seised to assess whether there is a risk of irreconcilable judgments resulting from separate proceedings, taking into account all the relevant material in the case file.’

In its judgment handed down this Thursday, the Court reminds that according to its case law in order for Article 8(1) to apply, it must be ascertained whether, between various claims brought by the same applicant against various defendants, there is a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. For decisions to be regarded as irreconcilable, it is not sufficient that there be a divergence in the outcome of the disputes, but that divergence must also arise in the context of the same situation of fact and law (para. 28).

Concerning the first requirement (ie. the same situation of law) the Court bases its reasoning on the universal effect of an EU trade mark within the territory of EU Member States. As such, for the Court, this requirement does not seem to be problematic in the situation at hand (para. 29 to 31).

This is the second requirement (ie. the same situation of fact) that is put under more scrutiny. The Court notes that – according to the information provided by the referring judge – the Polish and German companies do not belong to the same group. Furthermore, there is no link between the Polish company and its director, on the one hand, and the director of the German company described by the referring courts as an ‘anchor defendant’, on the other hand (para. 32).

Hence, the sole element potentially connecting the defendant companies seems to be the exclusive distribution agreement. The question is therefore whether such an agreement is sufficient to meet the requirement of ‘the same situation of fact’.

The Court starts it reasoning with a reminder: the purpose of the jurisdiction rule referred to in Article 8(1) of Brussels I bis Regulation is to facilitate the proper administration of justice, to reduce as far as possible the possibility of concurrent proceedings and thus to avoid solutions that might be irreconcilable if the cases were tried separately (para. 34). In order to assess whether there is a connection between the various claims brought before it, it is for the national court to take into account, in particular, the fact that several companies established in different Member States are accused, each separately, of the same acts of infringement in respect of the same products (para. 36).

Echoing the Opinion of its Advocate General, the Court states that the existence of a connection between the claims in question is based primarily on the relationship between all the acts of infringement committed, rather than on the organizational or capital links between the companies concerned. Similarly, in order to establish the existence of a single factual situation, particular attention must also be paid to the nature of the contractual relations existing between the companies involved (para. 37).

For the Court, the existence of the exclusive distribution agreement renders it more foreseeable that multiple actions on trade mark infringement will be considered as meeting the requirement of ‘the same situation of fact’ (para. 38).

The Court also noted that – as it transpires from the case file and the hearing – the close cooperation between the companies manifested itself in the operation of their websites, the domains of which belonged to only one of the co-defendants, through which the products at issue in the main proceedings were marketed by means of cross-references between these sites (para. 39). This also reveals the foreseeable nature of the obligation to respond to allegations of infringement from the same source before the same court (para. 40).

Probably to nuance those considerations, the Court adds that the circumstances justifying the reliance on the anchor defendant mechanism cannot be created in an artificial manner just in order to establish jurisdiction over co-defendants; that is, however, not the case if a ‘close link’ exists between the defendants – such a ‘close link’ exists in presence of an interest in hearing and judging them together to avoid solutions that might be irreconcilable if the cases were judged separately (para. 43-45).

Ultimately, the Court answered the preliminary question by stating that:

‘[…] a number of defendants, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled before which, in the context of an infringement action, claims have been brought against all of those defendants by the proprietor of an EU trade mark where they are each accused of having committed a materially identical infringement of that trade mark and they are connected by an exclusive distribution agreement.’

At least three aspects of the case merit particular attention:

• first, the requirement of ‘the same situation of fact’ appears to hinge on the defendant’s foreseeability that he may be summoned to a court with jurisdiction over other individuals or entities he collaborate with. In other terms, the closer the contractual link and the more intensive the cooperation are, the more one exposes himself to the risk of being sued outside of the court of his domicile through the anchor defendant mechanism;
• second, while the judgment stresses the relevance of contractual relations between the defendants and the fact of them being bound by an exclusive distribution agreement, it remains to be seen how this can translate into the situation of the managing director of a company against which the action is also brought through the anchor defendant mechanism; there is also even more fundamental the question of the possibility to consider that an action brought against the director of a company can ‘anchor’ via Article 8(1) the actions against another company and its director; those inquiries received consideration in the Opinion (points 68 et seq.);
• third, echoing the possibility to rely on the interdiction of the abuse of EU law from Vinyls Italia (para. 54 and 55) in the realm of private international law, the Court underscores that the facts underpinning a case should not be artificially fabricated just in order to justify the reliance on the anchor defendant mechanism.

The judgment can be found here.

On 27 October 2023, the Department of Private Law of Maastricht University (the Netherlands) is hosting a lecture by Prof. Dr. Horatia Muir Watt, Professor at the Sciences Po Law School (Paris), entitled: “Ecological Jurisprudence: The Shape of Legality at its Own Last Frontier (a Private International Law Approach)” at 17:00 (CEST time). This event will take place onsite and in English. For more information, click here.

Registration is free of charge. The deadline to register is 19 October 2023.

A Research Seminar with PhD researchers and Prof. Dr. Horatia Muir Watt will take place that same day from 10.00 – 12.00.

Prof. Horatia Muir Watt has recently published a book entitled: The Law’s Ultimate Frontier: Towards an Ecological Jurisprudence: A Global Horizon in Private International Law (Oxford: Hart, 2023). More information is available here.

London holds the distinction of being a preferred seat for arbitration, making significant developments in English arbitration law of general interest to arbitration specialists and, at times, private international lawyers. Few developments in arbitration law can match the significance of a reform affecting the statute providing a framework for arbitration. This is precisely what the Law Commission of England and Wales is recommending in its final report on the review of the Arbitration Act 1996.

One of the proposals aims to introduce a statutory rule for determining the governing law of an arbitration agreement, which significantly departs from the current common law position. Given the importance of this proposal, the EAPIL blog will host an online symposium on the law governing arbitration agreements from 11 to 13 September 2023.

In this post, I will introduce the Law Commission’s proposals and the symposium.

On 6 September 2023, following an extensive consultation process that included the publication of two consultation papers in September 2022 and March 2023, the Law Commission unveiled its proposals for reforming the 1996 Act (the text of the final report and draft Bill is available here; a summary is available here). These proposals aim to uphold the Act’s core principles, while introducing improvements aimed at enhancing London’s position as a global arbitration centre.

The Law Commission’s major proposals are: codifying an arbitrator’s duty of disclosure; strengthening arbitrator immunity around resignation and applications for removal; introducing the power to make arbitral awards on a summary basis; improving the framework for challenges to awards under section 67 on the basis that the tribunal lacked jurisdiction; adding a new rule on the law governing arbitration agreements; and clarifying court powers in support of arbitral proceedings and emergency arbitrators.

Additionally, the Law Commission proposes several minor corrections, including: allowing appeals from applications to stay legal proceedings; simplifying preliminary applications to court on jurisdiction and points of law; clarifying time limits for challenging awards; and repealing unused provisions on domestic arbitration agreements.

Since private international lawyers are likely more interested in the proposed choice-of-law rule for arbitration agreements and the proposed new relationship between courts and arbitrators regarding jurisdictional challenges, I will focus on these two proposals.

The Rome I Regulation does not cover arbitration agreements, leaving the determination of the law governing arbitration agreements in England to the common law choice-of-law rules for contracts. These rules are well-known: a contract is governed by the law expressly or impliedly chosen by the parties or, in the absence of choice, by the system of law with which the contract is most closely connected. Applying this rule to arbitration clauses can be difficult. Does a broad choice-of-law clause in a matrix contract amount to an express choice of law for the arbitration clause contained therein? If the parties have not expressly chosen the law to govern their arbitration clause, is the choice of law for the matrix contract an indication of implied choice for the arbitration clause? Is the designation of the arbitral seat an indication of such implied choice?

The United Kingdom Supreme Court addressed these questions twice in the past three years in Enka and Kabab-Ji. The court’s majority in Enka (Lord Hamblen, Lord Leggatt, and Lord Kerr) set out the following rules for determining the existence of parties’ choice of law in [170]:

iii) Whether the parties have agreed on a choice of law to govern the arbitration agreement is ascertained by construing the arbitration agreement and the contract containing it, as a whole, applying the rules of contractual interpretation of English law as the law of the forum.

iv) Where the law applicable to the arbitration agreement is not specified, a choice of governing law for the contract will generally apply to an arbitration agreement which forms part of the contract.

v) The choice of a different country as the seat of the arbitration is not, without more, sufficient to negate an inference that a choice of law to govern the contract was intended to apply to the arbitration agreement.

vi) Additional factors which may, however, negate such an inference and may in some cases imply that the arbitration agreement was intended to be governed by the law of the seat are: (a) any provision of the law of the seat which indicates that, where an arbitration is subject to that law, the arbitration agreement will also be treated as governed by that country’s law; or (b) the existence of a serious risk that, if governed by the same law as the main contract, the arbitration agreement would be ineffective. Either factor may be reinforced by circumstances indicating that the seat was deliberately chosen as a neutral forum for the arbitration.

vii) Where there is no express choice of law to govern the contract, a clause providing for arbitration in a particular place will not by itself justify an inference that the contract (or the arbitration agreement) is intended to be governed by the law of that place.

The court also clarified that the law of the seat is ‘generally’ the system of law most closely connected to the arbitration agreement.

Unsurprisingly, consultees said that these rules were complex and unpredictable. This has led the Law Commission to propose a reform of these rules in its second consultation paper.

The proposal has three key elements: 1) retaining express choice; 2) eliminating implied choice; and 3) specifying that the law of the seat applies in the absence of an express choice.

The proposed choice-of-law rule for arbitration agreements reads as follows:

6A Law applicable to arbitration agreement

(1) The law applicable to an arbitration agreement is—

(a) the law that the parties expressly agree applies to the arbitration agreement, or

(b) where no such agreement is made, the law of the seat of the arbitration in question.

(2) For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not, of itself, constitute express agreement that that law also applies to the arbitration agreement.

(3) This section does not apply in relation to an arbitration agreement that was entered into before the day on which section 1 of the Arbitration Act 2023 comes into force.

If a party participates in arbitral proceedings, raises a jurisdictional challenge before the tribunal, and is accorded a fair hearing, should they be allowed to challenge the tribunal’s jurisdiction before a court using the same arguments and evidence? The answer to this question is principally guided by two somewhat conflicting considerations: efficiency and freedom of contract (which, of course, includes a freedom not to be bound by a non-existent or invalid contract).

The UKSC addressed this issue in Dallah. Lord Mance wrote obiter in [26] that:

An arbitral tribunal’s decision as to the existence of its own jurisdiction cannot…bind a party who has not submitted the question of arbitrability to the tribunal. This leaves for consideration the nature of the exercise which a court should undertake where there has been no such submission and the court is asked to enforce an award. Domestically, there is no doubt that, whether or not a party’s challenge to the jurisdiction has been raised, argued and decided before the arbitrator, a party who has not submitted to the arbitrator’s jurisdiction is entitled to a full judicial determination on evidence of an issue of jurisdiction before the English court, on an application made in time for that purpose under s.67 of the Arbitration Act 1996.

Lord Collins and Lord Saville expressed similar views in, respectively, [96] and [159]-[160].

The Law Commission believes that such a de novo rehearing is inefficient and unfair to the party wishing to enforce the arbitration agreement. It proposes to limit when a participating party can raise a jurisdictional challenge before English courts.

Following a very controversial proposal in its first consultation paper, the Law Commission has settled on a proposal that has the following four key elements: 1) it covers situations where a party participates in arbitral proceedings, objects to the tribunal’s jurisdiction, and the tribunal rules on its jurisdiction; 2) the court will not entertain any new grounds of objection, or any new evidence, unless it was not reasonably possible to put them before the tribunal; 3) the court will re-hear evidence only if necessary in the interests of justice; and 4) these limitations are to be introduced through rules of court rather than the 1996 Act itself.

The proposed rules outlining this new relationship between courts and arbitrators regarding jurisdictional challenges, to be inserted in section 67, read as follows:

(3A) Rules of court about the procedure to be followed on an application under this section may, in particular, include provision within subsection (3B) in relation to a case where the application—

(a) relates to an objection as to the arbitral tribunal’s substantive jurisdiction on which the tribunal has already ruled, and

(b) is made by a party that took part in the arbitral proceedings.

(3B) Provision is within this subsection if it provides that—

(a) a ground for the objection that was not raised before the arbitral tribunal must not be raised before the court unless the applicant shows that, at the time the applicant took part in the proceedings, the applicant did not know and could not with reasonable diligence have discovered the ground;

(b) evidence that was not heard by the tribunal must not be heard by the court unless the applicant shows that, at the time the applicant took part in the proceedings, the applicant could not with reasonable diligence have put the evidence before the tribunal;

(c) evidence that was heard by the tribunal must not be re-heard by the court, unless the court considers it necessary in the interests of justice.

From 11 to 13 September 2023, the EAPIL blog will host an online symposium on the law governing arbitration agreements. The focus will be on assessing the Law Commission’s proposal and providing a comparative perspective. Professor Alex Mills (UCL) and Dr Manuel Penades Fons (KCL) will kick off the discussion by assessing the proposed choice-of-law rule for arbitration agreements from a UK perspective on Monday 11 September 2023. More contributions from comparative perspectives will follow on Tuesday and Wednesday.

Readers are encouraged to participate in the discussion by commenting on the posts. Those wishing to submit longer analyses on the law governing arbitration agreements, the relationship between courts and arbitrators, or any other issue relating to the Law Commission’s final report are invited to do so by e-mailing Ugljesa Grusic (u.grusic@ucl.ac.uk).

The editorial team of the EAPIL blog has just become a bit larger! Ugljesa Grusic, an Associate Professor at the Faculty of Laws of UCL, has kindly accepted to join our invitation: thanks a lot, Ugljesa, and welcome!

Please check out Ugljesa’s first post here.

It’s a rather special first post, as it announces an on-line symposium, edited by Ugljesa himself, that will run from Monday to Wednesday next week, on the law applicable to arbitration agreements in light of the recent proposals of the English Law Commission.

The Court of Justice delivered on 13 July 2023 its judgement in case C‑87/22 (TT v AK), which is about the interpretation of Article 15 Brussels II bis:

“1. Article 15 of Council Regulation (EC) No 2201/2003 […] must be interpreted as meaning that the court of a Member State, which has jurisdiction to rule on the substance of a case on the matter of parental responsibility under Article 10 of that regulation, may exceptionally request the transfer of that case, provided for by Article 15(1)(b) of the regulation, to a court of the Member State to which the child has been wrongfully removed by one of his or her parents.

2. Article 15(1) of Regulation No 2201/2003 must be interpreted as meaning that the only conditions to which the possibility for the court of a Member State with jurisdiction as to the substance of a case in matters of parental responsibility to request that that case be transferred to a court of another Member State is subject are those expressly set out in that provision. When examining those conditions in respect of, first, the existence in the latter Member State of a court better placed to hear the case and, second, the best interests of the child, the court of the first Member State must take into consideration the existence of proceedings for the return of that child which have been instituted pursuant to the first paragraph and point (f) of the third paragraph of Article 8 of the [1980 Hague] Convention on the Civil Aspects of International Child Abduction […] and in which a final decision has not yet been delivered in the Member State to which that child was wrongfully removed by one of his or her parents”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=275389&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4466841

Tim Wöffen (University of Osnabrück) kindly made us aware of the Proposal for a Directive on European cross-border associations, adopted on 5 September by the Commission. The proposal aims to facilitate cross-border activities of non-profit associations in the EU and to improve the functioning of the Internal Market by removing legal and administrative barriers for non-profit associations that operate or wish to operate in more than one Member State. With regard to private international law, Articles 4 and 22 et seq seem particularly relevant. The public is invited to give their comments until November 1st.

Tim offers some initial thoughts (in German) here.

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft, ZVglRWiss) features various contributions to a comparative law symposium that was held at the Private University in the Principality of Liechtenstein (UFL) in autumn 2022. The topic consisted of legal aspects of crypto currencies and assets, with a particular focus on comparative law and private international law. Here are the articles’ German titles and their English abstracts:

Erstes rechtsvergleichendes Symposion an der Privaten Universität im Fürstentum Liechtenstein

Heribert Anzinger und Gerhard Dannecker

ZVglRWiss 122 (2023) 243–251

A short introduction into the symposium’s subject.

Dörte Poelzig und Moritz Kläsener

ZVglRWiss 122 (2023) 252–268

Crypto assets have been the subject of lively discussion in German civil law literature for several years now. However, no comprehensive regulation has been enacted to date. Thus, the question remains as to how the various manifestations of crypto assets are to be classified under civil law, and what consequences this has, in particular, for legal protection and the manner of disposal. This question naturally concerns not only the German, but also the other European legislators. This article is concerned with the legal discussion in Liechtenstein, Switzerland, and Austria, meaning that its focus lies on legal systems that show a certain proximity to German law. Nevertheless, the article also takes a look at the less closely related English legal system. The solutions that were found in these legal systems will be presented here and compared with the German approaches in literature and legislation.

Matthias Lehmann

ZVglRWiss 122 (2023) 269–288

This paper compares emerging conflict-of-laws rules designed to determine the law applicable to digital assets, such as Bitcoin, Ether or stablecoins. Such rules have been developed in the U.S., England, Germany, Switzerland and Liechtenstein; in addition, UNIDROIT has recently drafted a Principle on the question. The article gives an overview of the different rules and tries to distill an “ideal” rule from them. The result could, for example, serve as inspiration for the German legislator or for the joint project of UNIDROITand the Hague Conference on Private International Law.

Jonas Stürmer

ZVglRWiss 122 (2023) 289–303

Crypto assets continue to be particularly popular with criminals and play a major role in various crimes. Although this also regularly poses practical difficulties for law enforcement authorities, it sometimes also offers opportunities for investigations. The particularly practice-relevant confiscation according to sections 73 onwards of the German Criminal Code as well as provisional preservation, on the other hand, are legally possible; here, too, practical challenges occur.

Daniela Hohenwarter-Mayr und Christina Mittermayer

ZVglRWiss 122 (2023) 304–337

The increase in popularity of alternative means of payment is bringing crypto assets closer to the focus of tax law. Due to their characteristics and various functionalities the proper taxation of income from cryptocurrencies is however a challenge. In addition to substantive law hurdles also the efficiency of tax enforcement is not ensured. Austria addresses these difficulties by incorporating cryptocurrencies into the taxation scheme for capital assets and the deduction of a withholding tax. This paper deals with the Austrian approach from a comparative law perspective, its constitutional implications and the need for an accompanying international exchange of information.

Jörn Erbguth

ZVglRWiss 122 (2023) 338–355

Blockchains have a complex relation to data protection. On the one hand, they are subject to criticism due to distributed responsibility and immutability – on the other hand, they can empower individuals and protect privacy better than centralized approaches through privacy enhancing technology. However, in the field of crypto asset trading, upcoming financial market regulations, e.g. the MiCA regulation, prohibit the use of anonymization features and facilitate the identification of transactions written on public blockchains with transaction parties. The paper discusses the compliance of crypto asset trading with the GDPR.

Ergebnise und Forschungsperspektiven des Ersten rechtsvergleichenden Symposions an der Privaten Universität im Fürstentum Liechtenstein

Tina Ehrke-Rabel

ZVglRWiss 122 (2023) 356–360

A short summary of the symposium’s main results and further perspectives for research.

The Hague Academy of International Law has made known the programme of the winter course on International Law of 2024.

The course will be opened by Yves Daudet (Hague Academy of International Law) with a lecture on Solidarity in International Law.

The general course, titled On the Interface between Public and Private International Law, will be given by Campbell Mclachlan KC (Victoria University of Wellington).

The special courses will be as follows: Ximena Fuentes (University of Chile), Defying Existing International Law as the Starting Point of the Formation of New Customary Law; Patrícia Galvão Teles (Autonomous University of Lisbon) The Advisory Function of International Courts and Tribunals; Maria Gavouneli (National and Kapodistrian University of Athens) Energy in International Law; August Reinisch (University of Vienna) The Settlement of Disputes Involving International Organizations; Ben Saul (University of Sydney) The Special Regime of International Counter-Terrorism Law; Santiago Villalpando (Office of United Nations Educational, Scientific and Cultural Organization – UNESCO) The Practice of the Law of Treaties since the Vienna Convention.

The directors of studies will be Fuad Zarbiyev (Geneva Graduate Institute) for the English-speaking section, and Paula Wojcikiewicz Almeida (Getulio Varga Foundation Law School in Rio de Janeiro) for the French-speaking session.

All applicants are required to register online. A limited amount of scholarships is available. Registration period for full fee applicants is between 1 May 2023 and 1 October 2023. Selected attendees of the Winter Courses will also be able to participate in the doctoral networking sessions coordinated by Daniëlla Dam-de Jong (Leiden University), additional afternoon lectures, embassy visits, social activities,  and to register for an exceptional event: the “Hours of Crisis“ Simulation Exercise. The competition will be conducted in English only.

More information on the Academy’s programmes may be found here.

The eleventh edition of the treatise on Droit international privé in the Précis Dalloz series, one of the leading texts on private international law in France, has recently been published (January 2023, 1100 pages).

The previous edition was published ten years ago. The new, fully revised edition has been prepared by Pascal de Vareilles-Sommières (Sorbonne Law school, Paris I University), who was the co-author of the previous editions (alongside the late Yvon Loussouarn and Pierre Bourel), and Sarah Laval (Littoral Côte d’Opale University).

The first part, titled “Common rules governing private international law” (Règles générales de droit international privé), focuses on the general theory of private international law, and adopts an original distinction between “identification of the legal source” (i.e. in the three fields of choice of law, jurisdiction and judgments) and “regime of the foreign norm” (i.e. the regime of the international regularity (or lawfulness) of the foreign norm – law and judgment – and then the regime of the implementation of the foreign norm).

The second part, titled “Special rules governing private international law” (Droit international privé special), is concerned with the special rules applicable in the different fields of private law (i.e. persons, family, property, obligations, businesses). Another sign of originality here is that each of the areas presented contains a preliminary development on the “policy of building connecting factors”.

While the treatise’s foreword is insightful and conceived as a “user’s guide”, I thought it would be interesting to directly ask the two authors about some specific features of this revised edition. They kindly agreed to answer some questions for the readers of the EAPIL blog and I thank them very warmly.

– This treatise takes, in your own words, a “neo-Savignian” approach to private international law. What does this mean?

On the one hand, a neo-Savignian approach to PIL focuses, like under the traditional Savignian approach, on the links between a given legal relationship and a particular country, in order to sort out, in favour of this country, the choice-of-law/choice-of-court issues (including issues related with jurisdiction of foreign courts, in case of a dispute over a foreign judgment dealing with the case) arising out of said relationship. Like Savigny, a neo-Savignian advocate believes that one of these links (or one set of links among them) justifies better than others the precedence of the concerned country as to ruling the relationship at stake through its law or its courts. This creed relies on the idea that the authority of a ruler varies depending on the strength of its links with the governed subject.

When enacting a choice-of-law (or choice-of-court) rule, a lawmaker who follows a neo-Savignian approach picks up the link (or set of links) which, in his opinion, is the most relevant for the kind of relationship covered by the created rule – and which appears to him as showing the “seat” (like Savigny used to say) of the legal relationship in a particular country. This link will therefore become the connecting factor in the choice-of-law rule (or the jurisdictional basis in the choice-of-court rule – including, here again, the jurisdictional standards applied to foreign courts, as provided by the foreign judgment regime) covering the legal relationship at stake. And this “seat country” will consequently have (at least in principle) its law and/or the judgments rendered by its courts enforced, for said legal relationship, by the forum (viz, the country whose choice-of-law/choice-of-court rules apply, assuming that the dispute is brought before that country’s courts).

But on the other hand (and conversely to the Savignian approach), our neo-Savignian approach promotes the idea that legal relationships between private persons in an international setting do not necessarily have only one seat in one country – whose law and courts would thus govern this relationship –, but may well have (and actually often have) several “anchors” or relevant connections to different countries, each of whom being a possible seat or “anchorage”. Two important consequences stem from this: (i) in a given case, the seat relevant for adjudicating the dispute may well prove different from the seat relevant for legislating over it; (ii) moreover, since one must think contemporary choice-of-law and choice-of-court rules (including, as aforementioned, those governing foreign judgments) in terms of domestic rather than international sources (at least in principle), the seat of a given relationship may well vary from country to country.

All this shows that, in our early XXI century, reasoning (as used to do Savigny) in terms of “one seat in one country for one kind of relationship” – at least each time this relationship appears in an international setting – is a bit misleading since it does not correspond to the truth of law as it is experienced by the parties. Our neo-Savignian doctrine admits the possibility of plural seats for a given legal relationship and addresses this occurrence through a set of choice-of-law and choice-of-courts rules which are inspired by Savigny’s thought (search of the most relevant links), as adapted to fit the contemporary legal landscape for private law applying in an international context (plurality of relevant fora enacting varied choice of law and choice of court rules). Accordingly, in a given country, the conflict between the countries (taken as lawmakers or as judgment-makers for the case at stake) with which a legal situation is linked, will be won by the one that has the most relevant relationship with the situation, this relevance being determined by a series of private and public considerations.

Far from being merely neutral, the choice-of-law rules appear as the result of a certain policy implemented by the authors of these rules (the “choice-of-law policy”, distinct from the “substantive policy” enacted by the substantive law chosen as applicable and relevant when it comes to sorting out the substantive issue). The same is true, mutatis mutandis, for the choice-of-court rules.

The neo-Savignian approach also repudiates two popular postulates: (i) the postulate according to which countries are not affected by the solution of conflict of laws (since at a minimum, the authority of the sovereign country, taken as a ruler, vis-à-vis the parties to the legal relationship is at stake when sorting out a choice-of-law/choice-of-court issue); and (ii) also the postulate according to which, in a given case, the applicable law and the jurisdiction of courts are basically disconnected from one another; on the contrary, they are both seen as one side of the exercise of one countries’ power to make “law” (broadly speaking: either by enacting a bill, or by rendering a judgment). The originality of the neo-Savignian approach therefore also lies in a sort of presumption that the country whose courts have jurisdiction over a case often ought to be (and actually, quite naturally) the country whose law governs the relationship (jurisdiction of the forum legis).

– Could you concretely illustrate this neo-Savignian approach?

Let us take one example of a multiple-seat private law relationship; it will be provided by the family chapter of PIL, and more especially, the filiation issue (relation of child to father).

Under French law, the choice-of-law rule points to a country as being the correct lawmaker for filiation where it turns out that the child’s mother has the nationality of that country (C. civ., Article 311-14); whereas the jurisdiction rule points to France as being the correct judgment-maker for filiation where the defendant (often the suspected father) is domiciled in France (CPC, Article 42), or, in case he is not, where he is a French citizen (C. civ., Article 15), or even, as a minimum, where the claimant (the child in a filiation proceeding) is a French citizen (C. civ., Article 14). These rules show that French substantive law on filiation will apply before French courts in a dispute brought before French courts each time that (i) the suspected father is domiciled in France, or at least that he, or the child, has French nationality (so that French courts have jurisdiction); and (ii) the mother is French (so that French substantive law governs the case). In such a case, France gets a plenary power to provide for a substantive regime (both through legislature and through court) for the filiation. The seat of the relation of child to father (at least from the French viewpoint) is located in France, both with respect to the substantive law governing the case and to the court having the final word in the dispute.

Let us assume now that the man is Italian, and the child is a US citizen (since he was born within the US territory, where one assumes also here that his French mother lives with him). In that case, Italian courts claim jurisdiction over the case (Italian Act No 218, 1995, Article 37). Assuming that the claimant brings the dispute against the suspected father before Italian courts, these courts should assert jurisdiction on the filiation issue, since for Italy, the judicial seat of the case is in Italy. As to the legislative seat, it will be provided by the Italian choice-of-law rule, under which the law governing filiation is the law of the country of origin (nationality) of the child (Italian Act No 218, 1995, Article 33), here the law of the relevant US state. Hence the Italian court will not apply the French law, even though the child’s mother is French (and notwithstanding the French choice-of-law rule claiming applicability of French law for that reason).

Typically, under our neo-Savignian approach, the filiation proceeding covers a relation that has not one seat in onecountry, but at least three seats in three countries (France, Italy and the United States), and parties to this relationship should be aware of this data when wondering what is the content of the legal regime governing the substantive issues arising out of their case. One should add here that the country where the filiation proceeding is brought would be well advised not to forget this plural-seat data when it comes to addressing the legal issues arising out of this dispute. It is probably so for France, if recognition of enforcement of the Italian judgment is sought there: even though the French choice-of-law rule claims French substantive law being applicable to the filiation issue (since the mother is French), the foreign judgment regime as set up by French case-law does not rule out the Italian judgment for the mere reason that the Italian court did not enforce French law (but rather the law of the relevant state in the USA).

– The formal presentation of private international law solutions in the treatise is inspired by a “trans-systemic/transnational” pedagogy. The aim is to go beyond the particularistic (i.e., French-oriented) approach to the discipline. Could you elaborate on that?

This presentation divides each PIL development into two parts. The first part is more about rhetoric; it sets the problematics, the principles and the interests at stake for each topic, it lists the different considerations that shall be taken into consideration to solve the choice-of-law/choice-of-court issues, and it suggests a solution according to the neo-Savignian approach. These rhetoric parts are not too deeply invaded by legal data from one particular country or another. Accordingly, at that stage, the book rather sticks to a universalist view of PIL.

The second part of the developments on each issue is a presentation of the rules as they exist in some jurisdictions, would these rules stick to the solutions exposed in the first part or would they differ from them. In this second part, the rules are not only French rules, but European and International (Hague Conventions in particular) rules as well. The purpose of this transnational presentation is to depart from a purely French point of view as well as to understand the extent to which French Law solutions are similar to European and International Law solutions. The outcome of this presentation is that, contrarily to other handbooks on the libraries’ shelves, this recast edition is not merely a book on French PIL, but rather a book on PIL as it is conceived and applied by France, by the European Union and by the international community through international conventions (mainly Hague conventions from the Hague Conference for PIL).

The (private international) law of choice-of-court agreements provides us with a good example of this methodology. In the rhetoric part of the presentation on this issue, the book draws on (i) the relation between the lawfulness of choice-of-court agreements and the question whether the jurisdiction rule is binding or non-binding in law, for the parties; and (ii) the considerations influencing the decision whether such a rule ought to be binding in law or not for the parties. Then, in a series of developments on law as it is in force in some jurisdictions, a quick presentation is made regarding French law, EU law (Brussels I bis Regulation) and the Hague convention on choice of court agreements.

– How do you “present” and “represent” in the treatise the Europeanisation of private international law and, ultimately, EU private international law?

To make a long story short, one can say that there are two possible paths that one can follow in order to present the EU as a lawmaker in the field of PIL.

On the one hand, the traditional way tends to look at the EU from the classical public international law viewpoint. EU member-states are sovereign States bound by an international treaty (Treaty of Rome, 1957 – which was ultimately renamed the Treaty on the Functioning of the European Union by the Treaty of Lisbon, 2007). From that standpoint, EU PIL is fostered by EU institutions and comes into force in the EU member-states through an international treaty. It is on that basis that it becomes part of the law of each member-state and it ought to work as such.

On the other hand, a more unusual analysis of the EU is to see this entity as a political entity having some features of a sovereign State (nevertheless not all of them, so that it cannot claim being a State from the international law standpoint, but, at a maximum, it may qualify as what is sometimes called a “proto-state”). As such, EU PIL in a member-state differentiates from domestic PIL of this member-state, with some consequences like one in the field of characterization, where, for a member-state court, resorting to domestic definitions for interpreting EU legal categories as used in EU PIL regulations is not appropriate (at least in principle). Similarly, the proto-state notion proves useful for the correct understanding of the function of EU PIL, compared to member-state PIL of domestic origin. This last one may be seen as a tool for fixing the ambit of legislative or judiciary action of a member-state. The first one is seen in the book as delineating the outskirts of each member-state’s private law (as made by a legislature or by a court), whether with regards to each other, or even with regards to non-member-states. It may well be used also as a tool for delineating the outskirts of EU private law where it exists, as the case may be. And finally, the proto-state notion is useful to understand another influence of EU law on EU member-state PIL having a domestic origin: to the extent that EU may be seen as a “proto-federal State”, the interference of EU freedom of persons (Article 21 TFEU) on the law of EU member-states, including PIL of domestic origin, appears as one regarding the lawfulness of the legal provisions composing this domestic law.

One must add that the European influence on the PIL of European countries is not limited to EU law, but may come from other organizations or instruments as well, like the Council of Europe. This international organization is much less integrated than the European Union, and for this reason the book does not see it as a proto-state. But of course, this does not prevent us from scrutinizing the possible incidence of the Council of Europe law (and especially the ECHR case-law) on EU (and EU member-state) PIL, particularly through the reshaping of the public policy defence.

– Could you concretely illustrate your “proto-state” approach of EU PIL?

Article 4.1 of Rome II Regulation and Articles 4, 7, and 45 of the Brussels I bis Regulation read as follows, through the proto-State notion as applied to the European Union:

In principle, under Article 4.1 of Rome II regulation, the EU grants (or recognizes) jurisdiction to legislate in matter of non-contractual obligation to any member-state having sovereignty on the territory where the damage occurs. The same jurisdiction to legislate is recognized in principle by EU PIL to any non-EU country exercising sovereignty on this territory. EU member-states are granted jurisdiction to adjudicate a case in non-contractual obligations under the Brussels I.a regulation (article 4 and 7); but countries having rendered a judgment in this subject matter may be seen as providing a regular ground to their judgment, even though they are not a country selected by these articles, and this is so whether they are (i) an EU member-state (since the origin of the EU member-state judgment is not controlled under article 45.3 of Brussels I.a regulation); or (ii) a non-EU country (since EU PIL does not cover recognition and enforcement of non-EU country judgments).

– For the benefit of the private international law community, what are the two or three major issues which, in your book, seem to you to be at the heart of the reflections to be conducted for the private international law of the future? 

The first issue could be a potential harmonization between the answer to the two questions of (i) which law prevails? and (ii) which court has jurisdiction? In France, scholars usually have strong opinions on the separation between these two fields and stick to the postulate that their regulation relies on distinct considerations: whereas the court that has jurisdiction appears to be chosen after purely procedural considerations, the choice of law is usually determined by non-procedural considerations, since the choice-of-law issue may arise outside any proceedings. This presentation neglects the idea that choosing a country’s court instead of another one is not neutral with respect to the outcome of the proceeding and eventually has a strong influence on the solution of the dispute. Therefore, a country exercising a legislative power also has an interest in exercising its judicial power. Taking these elements into consideration might be a good opportunity to review the choice-of-court rules and see to what extent they stick – or could stick – to this approach.

A second issue is about the leeway available to a court when it comes to exercising its jurisdiction over a case presenting relevant links with court’s country. Since the claimant holds a strong sway on the outcome of the proceeding – through the choice of the forum where the dispute is brought –, any country ought to provide its courts with the power to give up the exercise of its jurisdiction over the dispute, each time it turns out that the claimant would have an excessive advantage in suing the defendant before the court of one of the countries whose links with the case are sufficient to trigger its jurisdiction to adjudicate.

A third issue could be the digitalization of international private relations. This digitalization emphasizes the opportunity to depart from a reasoning in terms of mere localization of facts and urges the need to adopt a reasoning in terms of policy advocated for by the choice-of-law/choice-of-court legislature. For these relations, the determination of the applicable law or of the court that has jurisdiction cannot be the result of a search for a country where the facts take place (it is submitted that this country really does not exist), but the result of the comparison between the different public and private interests at stake. Eventually, the relationship arising in a digitalized context has its seat in the country with the most relevant links to it – relevance being here the outcome of an analysis and weighing of the competing interests that one can find, for a country, to be recognized as a ruler (through its laws or courts) for said relationship, and, for the parties to said relationship, that this country be recognized as governing it.

Marion Ho-Dac and Cécile Pellegrini (both Lyon Catholic University) are hosting a conference at Lyon Catholic University on Friday 29 September 2023 on the occasion of the launch of their book “Governance of Artificial Intelligence in the European Union What Place for Consumer Protection?”.

The book tackles the interplay between Artificial Intelligence (AI) governance and consumer protection on the European Union (EU) market. An in-depth analysis of the existing and future EU legal framework is conducted in order to assess its capacity to meet the challenges posed by AI. The effectiveness of consumer rights, and more widely of fundamental rights, in the digital single market calls for a regulatory ecosystem that fosters trust and therefore, upstream, transparency and explainability of AI systems. Hence, the book explores different normative paths – from hard law to standardization – as well as monitoring and supervision tools – from ethics to media literacy – that could progressively lead to an inclusive and comprehensive EU governance structure for AI. Several book’s chapters highlight the complexity of balancing conflicting interests such as the protection of consumers against the adverse impacts of AI, supporting AI development and technological innovation and putting AI at the service of empowered consumers. Ultimately, the book offers important insights into thinking about tomorrow’s digital consumer in EU law, inviting a rethinking of European policy boundaries and related legal regimes.

The full programme for the event can be found here.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

C. Budzikiewicz/K. Duden/A. Dutta/T. Helms/C. Mayer: The European Commission’s Parenthood Proposal – Comments of the Marburg Group

The Marburg Group – a group of German private international law scholars – reviewed the European Commission’s Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood. The Group welcomes the initiative of the Commission and embraces the overall structure of the Parenthood Proposal. Nevertheless, it suggests some fundamental changes, apart from technical amendments. The full article-by-article comments of the Group with redrafting suggestions for the Commission Proposal are available at www.marburg-group.de. Building on the comments, the present article authored by the members of the Marburg Group focuses on the main points of critique and considers the present state of discussion on the proposed Regulation.

U.P. Gruber: A plea against ex post-adaptation of spousal inheritance rights

Adaptation is recognized as a tool to eliminate the lack of coordination between the provisions of substantive law derived from different legal systems. According to a widespread view, adaption is very often necessary with regard to the spouse’s share in the deceased’s estate, namely if the matrimonial property regime and questions relating to succession are governed by different laws. However, in this article, the author takes the opposite view. Especially in light of the ECJ’s classification of paragraph 1371(1) BGB as a provision dealing with succession, there are new solutions which render ex post adaptations superfluous.

M. Mandl: Apparent and virtual establishments reflected through Art. 7 No. 5 Brussels Ia Regulation and Art. 19 (2) Rome I Regulation

The Federal Court of Justice (Bundesgerichtshof – BGH) has ruled that a dispute has the required connection to the operation of an (existing) establishment pursuant to Article 7 (5) Brussels Ia Regulation if the business owner operates an internet presence that gives the appearance of being controlled by this establishment instead of the company’s central administration and the contract in dispute was concluded via this internet presence. This decision provides an opportunity to examine the prerequisites and legal consequences of apparent establishments and so-called virtual establishments (internet presences) from a general perspective, both in the context of Article 7 (5) Brussels Ia Regulation and in connection with Article 19 (2) Rome I Regulation.

D. Nitschmann: The consequences of Brexit on Civil Judicial Cooperation between Germany and the United Kingdom

The United Kingdom’s withdrawal from the European Union has far-reaching consequences for international civil procedure law. This is exemplified by the decisions of the Higher Regional Court of Cologne for the international service of process. Since the European Regulation on the Service of Documents no longer applies to new cases, the Brexit leads to a reversion to the Hague Service Convention and the German-British Convention regarding Legal Proceedings in Civil and Commercial Matters. Of practical relevance here is, among other things, the question of whether and under what conditions direct postal service remains permissible.

R.A. Schütze: Security for costs of english plaintiffs in Austrian litigation

The judgment of the Austrian Supreme Court (Oberster Gerichtshof – OGH) of 29 March 2022 deals with the obligation of English plaintiffs to provide security for costs according to sect. 57 Austrian Code of Civil Procedure. The principle stated in para. 1 of this section is that plaintiffs of foreign nationality have to provide security for costs. But an exception is made in cases where an Austrian decision for costs can be executed in the country of residence of the plaintiff.

The OGH has found such exception in the Hague Convention 2005 on Choice of Court Agreements. As the United Kingdom has, on 28 September 2020, declared the application of the Hague Convention 2005 for the United Kingdom, the Convention is applicable between Austria and the United Kingdom despite the Brexit. The Hague Convention opens the possibility to recognition and execution of judgments rendered under a choice of court agreement including decisions on costs.

Th. Garber/C. Rudolf: Guardianship court authorisation of a claim before Austrian courts ¬– On international jurisdiction and applicable law for the grant of a guardianship court authorization

The Austrian court has requested court approval for the filing of an action by a minor represented by the parents. The international jurisdiction for the granting of a guardianship court authorisation is determined according to the Brussels II-bis Regulation or, since 1.8.2022, according to the Brussels II-ter Regulation. In principle, the court competent to decide on the action for which authorization by the guardianship court is sought has no corresponding annex competence for the granting of the authorization by the guardianship court: in the present case, the Austrian courts cannot therefore authorize the filing of the action due to the lack of international jurisdiction. If an Austrian court orders the legal representative to obtain the authorization of the guardianship court, the courts of the Member State in which the child has his or her habitual residence at the time of the application have jurisdiction. In the present case, there is no requirement for approval on the basis of the German law applicable under Article 17 of the Hague Convention 1996 (§ 1629 para 1 of the German Civil Code). The Cologne Higher Regional Court nevertheless granted approval on the basis of the escape clause under Article 15 para 2 of the Hague Convention 1996. In conclusion, the Cologne Higher Regional Court must be agreed, since the escape clause can be invoked to protect the best interests of the child even if the law is applied incorrectly in order to solve the problem of adaptation.

M. Fornasier: The German Certificate of Inheritance and its Legal Effects in Foreign Jurisdictions: Still Many Unsettled Issues

What legal effects does the German certificate of inheritance („Erbschein“) produce in other Member States of the EU? Is it a reliable document to prove succession rights in foreign jurisdictions? More than one decade after the entry into force of the European Succession Regulation (ESR), these questions remain, for the most part, unsettled. In particular, commentators take differing views as to whether the Erbschein, being issued by the probate courts regardless of whether the succession is contentious or non-contentious, constitutes a judicial decision within the meaning of Article 3(1)(g) ESR and may therefore circulate in other Member States in accordance with the rules on recognition under Articles 39 ESR. This article deals with a recent ruling by the Higher Regional Court of Cologne, which marks yet another missed opportunity to clarify whether the Erbschein qualifies as a court decision capable of recognition in foreign jurisdictions. Moreover, the paper addresses two judgments of the CJEU (C-658/17 and C-80/19) relating to national certificates of inheritance which, unlike the German Erbschein, are issued by notaries, and explores which lessons can be learned from that case-law with regard to certificates of inheritance issued by probate courts. In conclusion, it is submitted that, given the persisting uncertainties affecting the use of the Erbschein in foreign jurisdictions, the European Certificate of Succession provided for by the ESR is better suited for the settlement of cross-border successions.

E. Vassilakakis/A. Vezyrtzi: Innovations in International Commercial Arbitration – A New Arbitration Act in Greece

On 4.2.2023 a new Arbitration Act came into effect in Greece. It was approved by means of Law No. 5016/2023 on international commercial arbitration, and was enacted in order to align the regime of international commercial arbitration with the revision of the UNCITRAL Model Law on International Commercial Arbitration adopted in 2006 (hereinafter the revised Model Law). The new law contains 49 arbitration-related provisions and replaces the Law No. 2735/1999 on international commercial arbitration, while domestic arbitration continues to be regulated by Art. 867–903 of the Greek Code of Civil Procedure (hereinafter grCCP). A reshaping of Art. 867 ff. grCCP was beyond the “mission statement” of the drafting Committee.1 Besides, it should also be associated with a more extensive and, in consequence, time-consuming reform of procedural law. Hence, the dualist regime in matters of arbitration was preserved.

Pursuant to Art. 2, the new law incorporates on the one hand the provisions of the revised Model Law and on the other hand the latest trends in international arbitration theory and practice. Therefore, it is not confined to a mere adjustment to the revised Model Law, but also includes several innovative provisions that merit a brief presentation.

Notifications:

C. Rüsing: Dialogue International Family Law, 28th – 29th April, Münster, Germany.

The editors of the European Yearbook of International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the EYIL 2024. This year’s Focus Section will concentrate on International and European Economic Law – Moving Towards Integration? In the General Section, the EYIEL will address Current Challenges, Developments and Events in European and International Economic Law.

For the Focus Section, abstracts can cover any topic relating to the interlinkages and integration of economic law with other fields such as labour and human rights, environmental protection or climate change. This could cover developments in the WTO as well as in bi- and pluslateral trade agreements, in investment law or in EU law. We particularly welcome contributions addressing the following aspects:

• Labour, human rights and sustainable development provisions and chapters in FTAs; ? Developments in WTO jurisprudence and other dispute settlement mechanisms relating to the integration of non-trade topics in the WTO; 
• Innovations in investment treaty law in relation to sustainable development, environmental law and/or human rights; 
• New approaches inside and outside the WTO (e.g. fisheries agreement, environmental goods agreements); 
• Comparative analysis of developments relating to interlinkages and integration of economic law in different regions (Europe, North- and South-America, Asia, Africa, Pacific) 
• Specific instruments and clauses within agreements integrating and determining the relationship of trade and non-trade topics, including techniques to counter fragmentation and advance integration/harmonization; 
• “Greening” of EU law and European economic law; 
• Global value chain regulation and governance models for sustainable production and consumption; 
• Dogmatic approaches to systemic integration in international (economic) law. 

For the General Section, abstracts should address topics of current relevance to European and International Economic Law. Similarly, reviews of case-law or practices and developments in the context of international organisations are encouraged.

Abstracts should not exceed 500 words. They should be concise and clearly outline the significance of the proposed contribution. Abstracts together with a short bionote should be submitted until 31 October 2023 via email to eyiel@leuphana.de.

Successful applicants will be notified by 31 December 2023 that their proposal has been accepted. They are expected to send in their final contribution by 30 April 2024.

Final submissions will undergo peer review prior to publication. Given that submissions are to be developed on the basis of the proposal, the review will focus on the development of the paper’s central argument put forward in the abstract.

Submissions addressing particular regional and institutional developments should be analytical and not descriptive. Due to its character as a yearbook, the EYIEL will not publish articles which will lose their relevance quickly. Submissions should not exceed 12,000 words (including footnotes and references), though preference may be given to shorter submissions. They should include an abstract and a biographical note. Submissions need to be in conformity with the EYIEL style guidelines.

The editors of the EYIEL welcome informal enquiries about any other relevant topic in the field of international and European economic law. In case you have an idea or proposal, please submit your enquiry via e-mail to eyiel@leuphana.de.

This post was written by Verena Wodniansky-Wildenfeld, University of Vienna.

On 8 March 2023, the German Supreme Court issued a judgment on the paternity of two children. In the case at hand, the validity of the marriage of the mother, which gives rise to the presumption of paternity, had to be determined as a preliminary issue. This was further complicated by the interference of a talaq divorce.

An Iranian-German woman married an Iranian man in Iran in 1996 and was subsequently divorced by a talaq in Iran in 2006. The recognition of this divorce was refused in Germany, as is usual for reasons of public policy in connection with the right to be heard, in 2012 by a decision of a German administrative authority. In 2009, the woman remarried another Iranian man in Iran and gave birth to two children in 2010 and 2013, who have had their habitual residence in Germany ever since. The second husband was registered as the father in the German birth register. The registry office wanted to correct this registration in favour of the first husband, as Section 1592(1) of the German Civil Code (BGB) considers the husband of the mother at the time of the birth as the legal father of the child.

The core issue before the German Supreme Court was the determination of the law applicable to parenthood. In the absence of overriding rules of EU or international law (the Bilateral Treaty between Germany and Iran did not apply because the mother of the children has both German and Iranian nationality), the court turned to national conflicts rules. Article 19(1) of the Introductory Act to the German Civil Code (EGBGB) provides for an alternative connecting factor based either on the law of the child’s habitual residence or, for each parent separately, on his or her nationality. In the case of married persons, parentage may also be determined according to the law governing the general effects of their marriage at the time of birth.

As the children had their habitual residence in Germany, the Court examined parentage in accordance with German substantive law. Accordingly, the children’s father would be the person who was married to the child’s mother at the time of birth.

The question arose to whom the mother was effectively married at the time of birth. The court therefore assessed the validity of the second marriage as a preliminary question. The substantive requirements for marriage are governed by the law of the nationality of each of the spouses (Article 13(1) EGBGB). Accordingly, the second marriage violated from a German viewpoint the prohibition of bigamy (Section 1306 BGB), as the Iranian divorce was not recognised in Germany. For the mother of the child, the second marriage would merely be dissolvable under German law, but not automatically null and void by operation of law (ex lege). For the second husband, who is exclusively of Iranian nationality, Iranian law applies according to Article 13(1) EGBGB, which stipulates that a man must not marry a woman who is already married (Article 1050 Iranian Civil Code), otherwise the marriage is considered to be invalid.

In this respect, the Court first had to decide whether the talaq divorce with the first husband was effective in order to answer the question of the validity of the marriage with the second husband.

The legally binding decision of the German administrative authority not to recognise the talaq divorce has the consequence that it has no legal effect in Germany. A separate conflict-of-laws assessment is therefore not required, at least in cases with a strong national link, as in the present case. The Court therefore correctly assumed that the second marriage of the mother was a violation of the Iranian prohibition of bigamy and therefore null and void, as the divorce had to be considered invalid.

In order to avoid a situation in which the status of the parties to a marriage is in doubt (limping marriage), the “stricter” law that is most opposed to the marriage is generally applied when examining the substantive requirements for marriage. According to this principle, the second marriage would be considered void, as it is considered void under Iranian law. However, this would be a “paradox” result in so far as the marriage would not be null and void under either of the two legal systems when examined individually. Therefore, the Court deviates from the principle of applying the stricter law and, exceptionally, allows the milder German law to decide the consequence. The result is that under German law two marriages existed at the time of birth. The court resolves the subsequent double presumption of paternity by an analogous application of Section 1593 sentence 3 BGB (A child that could be both the child of the former husband and the new husband is to be regarded only as the child of the new husband). Consequently, only the second marriage is decisive, and the second husband was registered as the father of both children.

Although the reasoning of the decision may appear contrived and somewhat forced, the outcome reflects the factual circumstances. The prior legally binding decision not to recognise the divorce and the resulting lack of a conflict-of-laws analysis forces the court to reach deep into its bag of tricks in order not to undermine a presumption of paternity that is effective in both legal systems. Adaptation would normally be the tool of choice in cases where the result of a conflicts analysis is unsatisfactory because the legal consequences would not arise in either jurisdiction. In the case at hand, however, adapting the outcome was not possible due to the interplay between procedural law and substantive law. The procedural effect of the refusal to recognise the divorce must be clearly distinguished from the conflict-of-laws implications. The court is therefore facing the challenge of making corrections at the level of the legal consequences in order to achieve the desired result. Dogmatically as well as methodologically, it is always problematic to put the cart before the horse in this way, and once again the approach taken by the Court is not flawless. Instead of following legal practice, the Court chose the most practical solution in the individual case – which is always where legal practice and science have to part company.

I am thrilled to announce that my book on international child abduction has been published this week (María Mayela Celis Aguilar (aka Mayela Celis), Madrid: Dykinson, 2023, 604 pp. – in Spanish). More information is available here.

I am most grateful to Prof. Marina Vargas Gómez-Urrutia and Hans van Loon for having written the Foreword of this book and for their support throughout this process. This book is dedicated to the memory of Adair Dyer, former Deputy Secretary General of the Hague Conference on Private International Law (HCCH), whom some of you may have known.

As stated in the publisher’s website (translation into English): “This monograph conducts a critical study of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction by analysing both case law and doctrine. In particular, it examines key concepts of the Convention, such as habitual residence and rights of custody, as well as other problems that arise more frequently in its application. But not before carrying out a detailed study of the phenomenon of international child abduction from a multidisciplinary and human rights approach.

“From a case law perspective, this work analyses approximately 600 judgments – and decisions – issued in 46 countries party to the 1980 Hague Convention, as well as decisions from seven international or regional tribunals and bodies. Moreover, it prominently studies the decisions rendered by the European Court of Human Rights and the Court of Justice of the European Union that were considered most relevant. In addition, reference is made to decisions and opinions of the Inter-American Commission on Human Rights, Inter-American Court of Human Rights, International Court of Justice, UN Committee on the Elimination of Discrimination against Women, and the UN Committee on the Rights of the Child. 25 mediatic or historical cases are also analysed on the basis of news media or sociological and historical literature.

“From a doctrinal perspective, this book carries out a detailed study of the latest doctrinal developments, both European and Latin-American. Furthermore, from a legislative perspective, this work includes an analysis of the latest legislative developments regarding both hard law and soft law. With respect to the former, this work briefly studies the European Brussels II ter Regulation (2019/1111) and with regard to the latter, it analyses and provides critical comments on the Guide to Good Practice of the HCCH on Article 13(1)(b) of the 1980 Hague Convention.”

Book reviews are very much welcome.

On Tuesday, September 19, 2023, the Hamburg Max Planck Institute will host its 36th monthly virtual workshop Current Research in Private International Law at 17:00-18:30 (CEST). Chris Thomale (Universität Wien/Università degli Studi Roma Tre) will speak, in German, about

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

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

crosspost from https://eurolatinstudies.com

The collection of assignments presented here is the result of the V Workshop Jean Monnet Network – BRIDGE on “El Derecho Internacional Privado en las Relaciones entre la Unión Europea y América Latina” which took place on April 19th, 2023, in hybrid mode, at University of Sevilla, Spain. This initiative promoted an intense debate on the theoretical and practical aspects about international law and the relations between European Union and Latin America, with the presence of professors and researchers from several universities.

The proceedings are part of the activities developed by Jean Monnet Network project called “Building Rights and Developing Knowledge between European Union and Latin America – BRIDGE”, co-financed by the Erasmus+ Program of European Commission (620744-EPP-1-2020-1-BR-EPPJMO-NETWORK), composed of a consortium of seven Latin American and European universities.

The articles presented at the Workshop were previously evaluated through Call for Papers, launched in January 2023, and selected by the Organizing Committee composed of Professors Aline Beltrame de Moura (Federal University of Santa Catarina), Beatriz Campuzano Días and Mª Ángeles Rodríguez Vázquez (both from University of Sevilla, Spain). Part of the articles selected for presentation at the Workshop were published in Anais do V Workshop Jean Monnet Network – BRIDGE and the others were published in the V edition of the Latin American Journal of European Studies (2023-1).