Flux des sites DIP

I am hoping for a few gaps in yet again a mad diary this week, to catch up on quite a few developments I tweeted on earlier. First up is judgment in C‑147/21 Comité interprofessionnel des huiles essentielles françaises (CIHEF) et al v Ministre de la Transition écologique ea. The case concerns the possibility for Member States to adopt restrictive measures on commercial and advertising practices for biocidal products. It is a good illustration of the mechanism of precaution or pre-emption in EU law, and of the classic application of Article 36 TFEU’s exceptions to free movement of goods.

Applicants contest the French restriction of commercial practices such as discounts and rebates, as well as advertising, for two specific biocides categories: rodenticides and insecticides. The secondary law benchmark is Biocidal Products Regulation 528/2012.

As for the first category, commercial practices such as discounts, price reductions, rebates, the differentiation of general and specific sales conditions, the gift of free units or any equivalent practices, the Court, also seeking report in the AG’s Opinion, held [33] that the Regulation’s definitions of ‘making available on the market’ and ‘use’ of biocidal products are as such sufficiently broad to cover commercial practices linked to the sale of those products, however [34] that the Regulation does not seek to harmonise the rules relating to commercial practices linked to the sale of biocidal products.

That leaves the classic CJEU Case 8/74 Dassonville test (all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions within the meaning of that provision), tempered by Joined cases C-267/91 and C-268/91 Keck et Mithouard : there is no direct or indirect hindrance, actually or potentially, of trade between Member States, in the event of:

• the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements [[39] of current judgment the CJEU confirms this is the case here]
• on condition that those provisions apply to all relevant traders operating within the national territory [41 held to to be the case here] and that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States [[42] held to have to be judged by the national court but 43 ff strongly suggested to be the case here (i.e. there not being distinctive affectation of domestic cq imported products)].

Should the national court decide that (unlike what the CJEU indicates) the French measures are not selling arrangements, carved out from Article 34’s scope altogether, the CJEU [48] ff holds that the French measures most likely  (the final arbiter will be the French judge) enjoy the protection of both Article 36 TFEU’s health and life of humans exception, and the Court’s Cassis de Dijon-inserted ‘overriding reason in the public interest’ aka the rule of reason aka the mandatory requirements exception: strong indications are that the measures are justified by objectives of protection of the health and life of humans and of the environment, that they are suitable for securing the attainment of those objectives and that they do not not go beyond what is necessary in order to attain them. The referring court will have to confirm.

As for the French obligations relating to advertisements addressed to professionals (which includes in particular adding a specific statement), here the Court holds [60] ff that the Regulation does exhaustively harmonise the  wording of statements on the risks of using of biocidal products which may appear in advertisements for those products. This precludes the relevant French rules.

[68] ff however the French prohibition of advertising addressed to the general public, is held not to have been regulated by the Regulation, with the Court coming to the same conclusions as above, viz Article 34’s selling arrangements carve-out and, subsidiarily, Article 36 TFEU’s and the rule of reason exceptions.

A final check therefore is to be done by the referring court however it seems most likely the French restrictions will be upheld.

Geert.

EU Environmental Law, 2017, Chapter 17, p.308 ff.

The Biocides judgment is now here https://t.co/shbrzHqfzA, #neonicotinoids here https://t.co/o6zK33JHHe https://t.co/tjwfrI7Nil

— Geert Van Calster (@GAVClaw) January 20, 2023

The Hague Conference on Private International Law (HCCH) has recently published the new edition of the Practical Handbook on the Operation of the Apostille Convention.

The Handbook provides guidance on the practical implementation and operation of the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, applied tens of millions of times every year to the benefit of individuals, families, and businesses from across the world.

This second edition provides updated information and resources in response to the latest developments in relation to the Convention, including by incorporating advice from recent meetings and reflecting on the experiences of the growing number of Contracting Parties. Key changes include a greater focus on the electronic Apostille Programme (e-APP), further explanation of the role of diplomatic missions, and the incorporation of outcomes of the Working Group on the Authentication of Documents Generated by Supranational and Intergovernmental Organisations, the Experts’ Group on the e-APP and New Technologies, as well as the most recent meetings of the International Forum on the e-APP and the Special Commission on the practical operation of the Apostille Convention.

The Handbook is available here in English, French and Spanish.

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 19th annual conference, taking place on 11-12 October 2023 in Amsterdam. Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference The Perpetual Renewal of European Insolvency Law.

Submissions are welcome dealing, for instance, with (i) Public and social policy and the impact on corporate rescue, and vice versa, (ii) Pre-packs rehabilitated, (iii) Modern issues surrounding directors’ duties to file for insolvency and (iv) EU Preventive Restructuring Directive and European Insolvency Regulation.

Expressions of interest in delivering a paper should be sent by email on or before 1 March 2023 to the IEAF’s Deputy Chair, Dr. Jennifer Gant, at jenniferl.l.gant@gmail.com by using the form available here.

The call for papers is available here. For further information on the conference, see here.

The number of States which, pressed by the need to relieve and speed up the work of the courts, have de-judicialised the dissolution of the marriage bond and assigned the responsibility thereto to various extrajudicial authorities (Civil Registrars, notaries, mayors, etc.), has considerably increased in recent times.

This has been the case in Spain, where, following the entry into force of Law 15/2015 of 2 July 2015 on Voluntary Jurisdiction, Spanish notarial authorities are competent to grant divorces (Articles 81, 82 and 87 of the Civil Code). Examples exist as well in Latin America (Cuba, Mexico, Brazil, Colombia, Ecuador, Costa Rica, Peru, Bolivia and Nicaragua), Europe (Italy, France, Portugal, Italy, Denmark, Norway, Greece, Russia, Latvia, Estonia, Ukraine, Moldova and Romania), Asia and Euro-Asia (Japan, Kyrgyzstan, China, Armenia).

In fact, a thorough examination of comparative law shows that the regulation of non-judicial divorce is very diverse, even in countries belonging to the same geographical area. Not in all cases does an authority intervene, nor, when it does, does it perform identical functions or is vested with the same competences. With this in mind, a monograph by Nuria Marchal Escalona, titled El Divorcio No Judicial en Derecho Internacional Privado (Thomson Reuters Aranzadi, 2022), analyses the private international law-related problems Spanish notaries face when authorizing a public deed of divorce in cross-border cases. It further deals with the difficulties foreign extrajudicial divorces meet to produce effect in Spain. The study of a per se intricate subject matter becomes even more complex due to the number of legal sources in Spanish private international law in the field.

The monograph addresses, in the first place, jurisdiction – international and territorial – to grant a public deed of divorce. At a second stage, it examines the law applicable both to the dissolution of the marriage and to the issues necessarily associated thereto, such  as the use of the family home, financial regime of the marriage, or maintenance. Lastly, it deals with the problems foreign non-judicial divorces run into to be effective in Spain. In particular regarding the latter point, the analysis is highly topical for three reasons: firstly, due to the  judgment in Case C-646/20, where the CJEU ruled that a divorce certificate issued by a civil registry official constitutes (subject to conditions) a “judicial decision”; by way of consequence, under Regulation 2201/2003 such divorces are to be recognized like a judicial decision. Secondly, Article 65 of Regulation 2019/1111 introduces a relevant novelty in the field, since, in contrast to the twofold combination of judicial decision (Art. 21) and public document (Article 46) of the Brussels I bis Regulation, it also allows for the effectiveness of registered private agreements. Finally, Article 96, paragraph 3, of the Spanish Civil Register Act extends the legal regime it itself accords to foreign judgments to decisions delivered by foreign non-judicial authorities in matters which, under to Spanish law, belong to the remit of judges and courts.

The monograph aims at offering a complete vision of the Spanish private international law rules regarding non-judicial divorce in a clear, praxis-oriented way, with an exhaustive analysis of comparative and case law. Above all, it provides the legal professionals essential guidance to overcome the fragmentation of sources in order to ascertain the rules pertinent to each individual case.

On Tuesday, March 7, 2023, the Hamburg Max Planck Institute will host its 31st monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CET). Dário Moura Vicente (University of Lisbon) will speak, in English, about the topic

Investment Arbitration – Lost in the Bermuda Triangle of EU Law, Public International Law and Private International Law?

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.

MPI is sending an invitation to its virtual workshop on the topic of “Investment Arbitration – Lost in the Bermuda Triangle of EU Law, Public International Law and Private International Law?”, which will be presented by Professor Dário Moura Vicente, University of Lisbon.

As a part of the series “Current Research in Private International Law”, the workshop will take place online via Zoom, on Tuesday, 7 March 2023 at 11:00 a.m. (CET). Registration for the workshop is possible at this LINK.

More information is available here.

Written by Nicolás Zambrana-Tévar LLM(LSE) PhD(Navarra), Associate Professor KIMEP University (Kazakhstan), n.zambrana@kimep.kz

There has recently been a new and disappointing development in the saga of the Sánchez-Hill, a Spanish-Cuban-US family who filed a lawsuit before Spanish courts against a Spanish Hotel company (Meliá Hotels) for unjust enrichment. Meliá is exploiting several hotels located on land owned by Gaviota S.A., a Cuban company owned by the Republic of Cuba. That land was expropriated by Cuba without compensation, following the revolution of 1959.

In 2019, the First Instance Court of Mallorca (Spain) held that the lawsuit was a means to circumvent the sovereign immunity of Cuba, given the fact that, in order to decide on the right to compensation of the claimants for the unjust enrichment of the defendant, the court would allegedly have to decide on the lawfulness of a sovereign act – i.e. expropriation –, because only if the expropriation had been unlawful could the defendant be exploiting land which did not belong to Gaviota but to the claimants. The court held that the claimants were also arguing that they had a right in rem – such as property or possession – over assets of a sovereign state and that such assets were also protected by the rules of sovereign immunity. This alone would have been enough to dismiss the lawsuit but, unnecessarily, the court added that it did not have jurisdiction to decide about property rights concerning real estate assets located outside Spain.

The Court of Appeal of Mallorca disagreed with the lower court. It held that sovereign immunity was not an issue because Cuba had not been named a defendant in the claim. Besides, Spanish courts had jurisdiction because Spain was the place of the domicile of the defendant and the claim was one of unjust enrichment – i.e. a claim in tort –, not one whose subject matter was the existence or scope of a right in rem over a real estate asset. In brief, the claimants were not asking Cuba to give back their land and were not asking monetary compensation neither from Cuba nor from Gaviota.

Meliá then filed a motion arguing that the claim was an attempt to eschew the EU Blocking Statute meant to prevent the effectiveness of US court rulings against EU companies, under the Helms-Burton Act of 1996. The defendants further requested that the matter be taken to the European Court of Justice for a preliminary ruling on the scope and correct interpretation of the Blocking Statute. The CJEU may have taken years to issue such a ruling but the Spanish First Instance Court denied the motion.

Later on, Meliá filed another motion requesting that Gaviota and the Republic of Cuba be joined to the lawsuit (exceptio plurium litisconsortium) and the First Instance Court granted the motion on the basis, once again, that any ruling on unjust enrichment would previously and necessarily require a decision about the property rights of Gaviota and Cuba, which should therefore be heard in the Spanish proceedings. Probably making a very serious strategic mistake, the claimants did not appeal this decision of the First Instance Court and agreed to join Gaviota and Cuba to their claim with the result that, last January 2023, the First Instance Court once again dismissed the lawsuit on grounds of sovereign immunity, given the fact that, now, a sovereign entity is in fact a defendant in the proceedings.

In the meantime, the Cuban Government had been correctly notified and had claimed that it enjoyed sovereign immunity before foreign courts. Beyond that, Cuba never made an appearance in the proceedings but Gaviota did, requesting that the proceedings be stayed on the basis that it also enjoyed sovereign immunity. Besides, the Spanish Government had also issued a report requested by Spanish law, indicating that the Cuban acts of expropriation must indeed be considered acts iure imperii.

The potential implications of a claimants’ improbable victory for the Spanish tourism industry in Cuba are worrisome but, above all, this muddled and already long-lasting lawsuit has given rise to much interest among Spanish scholars, especially conflict of laws specialists. The 2019 decision of the First Instance Court was criticised for applying the doctrine of sovereign immunity in the absence of a sovereign defendant – e.g. something much more similar to the Act of State doctrine, which has no place in Spanish law – and for confusing an action in rem with an action in personam. That initial ruling of the First Instance Court may have also inappropriately mentioned and relied on immunity from execution against property of a sovereign state, which is mostly relevant in enforcement proceedings.

Now, however, the Spanish First Instance Court apparently feels vindicated because its recent an relatively short ruling reiterates verbatim practically everything it said in its 2019 decision. The judge also warns the claimants that they had the chance to appeal the ruling granting the motion to join Gaviota and Cuba but did not do so, which means that such decision is now res judicata. The logic of the argument is somewhat baffling. The judge initially dismissed the claim on grounds of sovereign immunity, despite the fact that no sovereign was a party. Then, the judge requested that the sovereign be joined as a party and, when the claimant yielded and did so, the judge once again dismissed the claim on grounds of sovereign immunity.

The key to this stage of the proceedings may have been the joinder of Gaviota and Cuba to the claim. Arguably, it was not necessary to do so. In Spanish law, the exceptio plurium litisconsortium can be raised in certain cases provided by statute as well as in certain cases provided by case law. Whenever there is a plurality of parties to the same legal relationship, which is the subject-matter of the proceedings, a joinder is obligatory as a condition for a decision on the merits, based on the inseparable nature of that legal relationship. Its justification lies in the right to be heard of all those who might be affected by the ruling on the merits. A joinder is not necessary when the ruling only affects certain individuals or entities in an indirect manner. In the case at hand, the parties to the unjust enrichment are Meliá, i.e. the party who has allegedly enriched itself at the expense of the other party, i.e. the claimants. Cuba is therefore not a party to the alleged unjust enrichment. Moreover, any findings of Spanish courts concerning the unlawfulness of the expropriation would have no bearing on the property rights of Cuba over that land.

In fact, Spanish courts are no strangers to litigation related to the Cuban nationalisation program and, on several occasions, the Supreme Court has taken into consideration the unlawfulness of that nationalisation process with respect to, for instance, ownership rights over trademarks registered in Spain, emphasising that it is not for Spanish courts to decide on such lawfulness but that they can accept or reject some of the extraterritorial effects of the sovereign acts of the foreign state in the territory of the forum. In those cases, the Supreme Court said that the Cuban nationalization was against the public policy of Spain because of the absence of due process and compensation. However, the Supreme Court added that the applicable law to property rights over trademarks registered in Spain was Spanish law, not Cuban law.

The Sánchez-Hill family has just a few more days left to appeal this new decision of the First Instance Court, in proceedings which may potentially have opened a new venue for victims of the Cuban revolution, given the EU Blocking Statute and given the fact that, since the end of the suspension of Title III of the Helms-Burton Act, claims before US Federal Courts based on that piece of legislation have not been very being successful.

 

In preparation of the Conference on the HCCH 2019 Judgments Convention on 9/10 June 2023, taking place on campus of the University of Bonn, Germany, registration now open, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

Update of 15 February 2023: New entries are printed bold.

Please also check the “official” Bibliography of the HCCH for the instrument.

 

I. Explanatory Reports

Garcimartín Alférez, Francisco;
Saumier, Geneviève „Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128

 

II. Bibliography

Ahmed, Mukarrum “Brexit and the Future of Private International Law in English Courts”, Oxford 2022 Åkerfeldt, Xerxes ”Indirekta behörighetsregler och svensk domsrätt – Analys och utredning av svensk domstols behörighet i förhållande till 2019 års Haagkonvention om erkännande och verkställighet” (Examensarbete inom juristprogrammet, avancerad nivå, Örebro Universitet, 2021 ; available here)

 

“Indirect jurisdiction and Swedish law – Analysis and inquiry of the jurisdiction of Swedish courts in relation to the 2019 Hague Convention on Recognition and Enforcement” Al-Jubouri, Zina Hazem “Modern trends for the recognition and enforcement of foreign judgments in civil and commercial matters accordance the 2019 Hague Convention”, Tikrit University Journal for Rights (TUJR) 2022-03, pp. 79-109 (available here) Amurodov, Jahongir “Some issues of Ratification of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019) by the Republic of Uzbekistan”, Uzbek Law Review 2020-03, pp. 11-116 (available here) Arslan, Ilyas “The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Uluslararasi Ticaret ve Tahkim Hukuku Dergisi 10 (2021), pp. 329-402 Badr, Yehya Ibrahim “The Hague 2019 Convention for the Recognition and Enforcement of Foreign Judicial Decisions: A Comparative Study”, International Journal of Doctrine, Judiciary, and Legislation (IJDJL) 2 (2021), pp. 427-468 (available here) Balbi, Francesca “La circolazione delle decisioni a livello globale: il rogetto di convenzione della Conferenza dell’Aia per il riconoscimento e l’esecuzione delle sentenze straniere” (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2019; available: here) Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul R. “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Beaumont, Paul;
Holliday, Jane (eds.) “A Guide to Global Private International Law”, Oxford 2022 Biresaw, Samuel Maigreg “Appraisal of the Success of the Instruments of International Commercial Arbitration vis-a-vis International Commercial Litigation and Mediation in the Harmonization of the Rules of Transnational Commercial Dispute Resolution”, Journal of Dispute Resolution 2022-02, pp. 1-27 (preprint available here) Blanquet-Angulo, Alejandra “Les Zones d’ombre de la Convention de La Haye du 2 Juillet 2019”, Revue Internationale de Droit Comparé (RIDC), 73 (2021), pp. 53-71 Blom, Joost “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 Bonomi, Andrea “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 Bonomi, Andrea “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 Bonomi, Andrea;
Mariottini, Cristina M. “(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 Borges Moschen, Valesca Raizer;
Marcelino, Helder “Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319

(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) Borisov, Vitaly Nikolaevich “2019 Hague Judgments Convention: Global Recognition and Enforcement of Civil and Commercial Judgments (Review of the International Conference held in Hong Kong on September 9, 2019), Journal of Foreign Legislation and Comparative Law 2020-03, pp. 166-172 (available here) Brand, Ronald A. “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 Brand, Ronald A. “Jurisdictional Developments and the New Hague Judgments Project”, in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon, Cambridge 2013, pp 89-99 Brand, Ronald A. “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 Brand, Ronald A. “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 Brand, Ronald A. “The Hague Judgments Convention in the United States: A ‘Game Changer’ or a New Path to the Old Game?“, University of Pittsburgh Law Review 82 (2021), pp. 847-880 (available here) Brannigan, Neil “Resolving conflicts: establishing forum non conveniens in a new Hague jurisdiction convention”, Journal of Private International Law 18 (2022), pp. 83-112 Cai, Ya-qi “Feasibility Study on China’s Ratification of the HCCH Judgment Convention from the Perspective of Indirect Jurisdiction”, Journal of Taiyuan Normal University (Social Science Edition) 2021-04, pp. 74-80 Çaliskan, Yusuf;
Çaliskan, Zeynep “2 Temmuz 2019 Tarihli Yabanci Mahkeme Kararlarinin Taninmasi ve Tenfizine Iliskin Lahey Anlasmasinin Degerlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245 (available here)

(An Evaluation of 2 July 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) Cardoso, Connor J. “Implementing the Hague Judgments Convention”, New York University Law Review 97 (2022), pp. 1508-1545 (available here) Celis Aguilar, María Mayela “El convenio de la haya de 30 de junio de 2005 sobre acuerdos de elección de foro y su vinculación con el ‘proyecto sobre Sentencias’ (y viceversa)”, Revista mexicana de Derecho internacional privado y comprado N°40 (octubre de 2018), pp. 29-51 (available here) Chai, Yuhong ; Qu, Zichao “The Development and Future of the Hague Jurisdiction Project”, Wuhan University International Law Review 2021-05, pp. 27-52 (online first) Chen, Shun-Hsiang “Signed, Sealed, & Undelivered: Unsuccessful Attempts of Judgment Recognition Between the U.S. and China”, Brooklyn Journal of Corporate, Financial & Commercial Law 16 (2022), pp. 167-189 (available here) Chen, Wendy “Indirect Jurisdiction over the Recognition and Enforcement of Judgments of Foreign Courts in Compulsory Counterclaims”, Journal of Xingtai University 2019-04, pp. 106-110 Cheng, Xian-ping; Liu, Xian-chao “On the Application of the Severable Clause in The Hague Judgments Convention”, Harbin Normal University Social Science Journal 2021-05, pp. 30-34 Choi, Sung-Soo “Review of the several issues of the Convention on the Recognition and Enforcement of Foreign Judgments”, Gachon Law Review 14 (2021), pp. 37-68 (available here) Clavel, Sandrine ; Jault-Seseke, Fabienne “La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale : Que peut-on en attendre ?”, Travaux du comité français de Droit international privé, Vol. 2018-2020, Paris 2021 (Version provisoire de la communication présentée le 4 octobre 2019, available here) Clover Alcolea, Lucas “The 2005 Hague Choice of Court and the 2019 Hague Judgments Conventions versus the New York Convention – Rivals, Alternatives or Something Else?”, Mc Gill Journal of Dispute Resolution 6 (2019-2020), pp. 187-214 Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 Cong, Junqi “Reinventing China’s Indirect Jurisdiction over Civil and Commercial Matters concerning Foreign Affairs – Starting from the Hague Judgment Convention” (Master’s Thesis, National 211/985 Project Jilin University; DOI: 10.27162/d.cnki.gjlin.2020.001343) Contreras Vaca, Francisco José “Comentarios al Convenio de la Haya del 2 de julio de 2019 sobre Reconcimiento y Ejecución de Sentencias Extranjeras en materia civil y comercial”, Revista mexicana de Derecho internacional privado y comprado N°45 (abril de 2021), pp. 110-127 (available here) Cui, Zhenghao “On the Coordination between the Draft Convention on Judicial Sale of Ships and the related Conventions of the Hague Conference on Private International Law”, China Ship Survey 2021-04, pp. 65-68 Cuniberti, Gilles “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 DAV (German Bar Association) “Position Paper on the EU’s possible accession to the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of the Hague Conference on Private International Law”, Berlin 2020 (available here) de Araujo, Nadia ; de Nardi, Marcelo ;
Spitz, Lidia “A nova era dos litígios internacionais”, Valor Economico 2019 de Araujo, Nadia ;
de Nardi, Marcelo ;
Lopes Inez ;
Polido, Fabricio „Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34 de Araujo, Nadia ;
de Nardi, Marcelo „Consumer Protection Under the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 67-79 de Araujo, Nadia; de Nardi, Marcelo; Ribeiro, Gustavo; Polido, Fabricio; Lopes, Inez; Oliveira, Matheus « Cronicas de Direito Internacional Privado: destaques do trabalho da HCCH nos ultimos dois anos », Revista De Direito Internacional 19 (2022), pp. 13-41

“Chronicles of Private International Law: highlights of HCCH’s work over the past two years”, Brazilian Journal of International Law 19 (2022), pp 13-41 De Nardi, Marcelo “The Hague Convention of 2019 on Foreign Judgments: Operation and Refusals”, in: Michael Underdown (ed.), International Law – A Practical Manual [Working Title], London 2022, pp. 1-10 (available here) de Araujo, Nadia ;
de Nardi, Marcelo „22ª Sessão Diplomática da Conferência da Haia e a Convenção sobre sentenças estrangeiras : Primeiras reflexões sobre as vantagens para o Brasil da sua adoção“, Revista de la Secretaría del Tribunal Permanente de Revisión 7 No. 14 (2019), páginas 198-221

(22nd Diplomatic Session of The Hague Conference and the Convention on Foreign Judgments: First Reflections on the Advantages for Brazil of their Adoption) de Araujo, Nadia ;
De Nardi, Marcelo “International Jurisdiction in Civil or Commercial Matters: HCCH’s New Challenge”, in Magdalena Pfeiffer, Jan Brodec, Petr Bríza, Marta Zavadilová (eds.), Liber Amicorum Monika Pauknerová, Prague 2021, pp. 1-11 Dlmoska, Fani “Would the Judgments Convention lead to unification of the ratification and enforcement of foreign judgments in the SEE Countries: The possible impact of the Judgments Convention”, SEELJ Special Edition No. 8 (2021), pp. 81-103 Dordevic, Slavko “Country Report Serbia”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 180-202 Dotta Salgueiro, Marcos “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”, Netherlands International Law Review (NILR) 67 (2020), pp 113-120 Douglas, Michael;
Keyes, Mary;
McKibbin, Sarah;
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Denyak, Victoria Yurievna “On the issue of Recognition and Enforcement of Court Decisions of a Foreign State in the Russian Federation”, Collection of selected Articles of the International Scientific Conference, Saint Petersburg (2021), pp. 258-261 Solomon, Dennis “Das Haager Anerkennungs- und Vollstreckungsübereinkommen von 2019 und die internationale Anerkennungszuständigkeit“, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 873-893 Song, Jianli “ ‘Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments’ and its influence on my country”, People’s Judicature (Application) 2020-01, pp. 88-92 (available here) Song, Lianbin; Chen, Xi “The Judicial Difference and International Coordination of the Recognition and Enforcement of Foreign Punitive Damages Judgements: Also on China’s Corresponding Measures Under the Frame of HCCH Convention”, Jiang-Huai Tribune 2021-03, pp. 111-113 Spitz, Lidia „Homologação De Decisões Estrangeiras No Brasil –  A Convenção de Sentenças da Conferência da Haia de 2019 e o contrôle indireto da jurisdição estrangeira”, Belo Horizonte 2021 Spitz, Lidia „Refusal of Recognition and Enforcement of Foreign Judgments on Public Policy Grounds in the Hague Judgments Convention – A Comparison with The 1958 New York Convention“, YbPIL 21 (2019/2020), pp 333-364 Stamboulakis, Drossos “Comparative Recognition and Enforcement”, Cambridge 2022 Stein, Andreas „Das Haager Anerkennungs- und Vollstreckungsübereinkommen 2019 – Was lange währt, wird endlich gut?“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 197-202 Stewart, David P. „Current Developments: The Hague Conference adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, American Journal of International Law (AJIL) 113 (2019), pp 772-783 Stitz, Olivia “Comity, Tipping Points, and Commercial Significance: What to expect of the Hague Judgments Convention”, Corporate and Business Law Journal (Corp. & Bus. L.J.) 2 (2021), pp. 203-236 (available here) Storskrubb, Eva “The EU Commission’s Proposal for the EU to Accede to the Hague Judgments Convention”, EU Law Live Weekend Edition No. 75 (2021), pp. 10-16 (available here) Suk, Kwang-Hyun “Principal Content and Indirect Jurisdiction Rules of the Hague Judgments Convention of 2019”, Korea Private International Law Journal 2020-02, pp. 3-83 Sun, Jin;
Wu, Qiong “The Hague Judgments Convention and how we negotiated it”, Chinese Journal of International Law 19 (2020) (available here) Sun, Xiaofei;
Wu, Qiong “Commentary and Outlook on the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Journal of International Law 2019-01, pp. 155-164+170 Symeonides, Symeon C. “Recognition and Enforcement of Foreign Judgments: The Hague Convention of 2019”, in Symeon C. Symeonides, Cross-Border Infringement of Personality Rights via the Internet, Leiden 2021, pp. 130-144 Symeonides, Symeon C. « The Hague Treaty for the Recognition of Foreign Decisions-The Lowest Common Denominator », Lex & Forum 4/2021 Taghipour Darzi Naghibi, Mohammadhossein; Soleimani Andarvar, Ali “Comparative Study of the Recognition and Enforcement of Foreign Court Judgments in The Hague Convention Judgments 2019 and Iranian Law”, Comparative Law Review 13 (2022), pp. 493-514 (available here) Takeshita, Keisuke “The New Hague Convention on Recognition and Enforcement of Foreign Judgments: Analysis on its Relationship with Arbitration”, Japanese Commercial Arbitration Journal (JCA) 2020-02, pp. 10-15 (available here) Takeshita, Keisuke “The New Hague Convention on Recognition and Enforcement of Foreign Judgments”, Japanese Commercial Arbitration Journal

Part 1: JCA 2020-04, pp. 40-45 (available here)

Part 2: JCA 2020-05, pp. 40-45 (available here)

Part 3: JCA 2020-06, pp. 42-49 (available here)

Part 4: JCA 2020-10, pp. 40-46 (available here)

Part 5: JCA 2020-11, pp. 35-41 (available here)

Part 6: JCA 2020-12, pp. 43-48 (available here)

Part 7: JCA 2021-02, pp. 50-56 (available here)

Part 8: JCA 2021-04, pp. 45-51 (available here)

Part 9: JCA 2021-07, pp. 46-53 (available here)

Part 10: JCA 2021-09, pp. 40-46 (available here)

Part 11: JCA 2021-10, pp. 48-54 (available here)

Part 12: JCA 2022-01, pp. 45-52 (available here)

Part 13: JCA 2022-03, pp. 44-51

Part 14: JCA 2022-05, pp. 58-55

Part 15 JCA 2022-07, pp. 49-55

Part 16 JCA 2022-09, pp. 36-44

Part 17 JCA 2022-12, pp. 53 et seq. Taquela, María Blanca Noodt ; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 Tian, Hongjun “The Present and Future of the Recognition and Enforcement of Civil and Commercial Judgments in Northeast Asia: From the Perspective of the 2019 Hague Judgments Convention”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 300-317 Tian, Xinyue;
Qian, Zhenqiu;
Wang, Shengzhe “The Hague Convention on the Recognition and Enforcement of Foreign Judgments (Draft) and China’s Countermeasure – A Summary on the Fourth Judicial Forum of Great Powers”, Chinese Yearbook of Private International Law and Comparative Law 2018-01, pp. 377-388 Trooboff, Peter D.;
North, Cara; Nishitani, Yuko;
Sastry, Shubha; Chanda, Riccarda “The Promise and Prospects of the 2019 Hague Convention: Introductory Remarks”, Proceedings of the ASIL Annual Meeting 114 (2020), pp. 345-357 Tsang, King Fung;
Wong, Tsz Wai “Enforcement of Non-Monetary Judgments in Common Law Jurisdictions: Is the Time Ripe?”, Fordham International Law Journal 45 (2021), pp. 379-428 (available here) van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue critique de droit international privé (Rev. Crit. DIP) 2019, pp. 353-365 Viegas Liquidato, Vera Lúcia “Reconhecimento E Homologação De Sentenças Estrangeiras : O Projeto De Convenção Da Conferência da Haia”, Revista de Direito Brasileira 2019-09, pp. 242-256 Vishchuprapha, Shayanit “Thailand’s Possibility of Becoming a Party to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters of 2019”, Mae Fah Luang University Law Journal 2023-01, pp. 185-228 (available here) Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Wang, Quian “On Intellectual Property Right Provisions in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, China Legal Science 2018-01, pp. 118-142 (available here) Wang, Yahan “No Review of the Merits in Recognizing and Enforcing Foreign Judgments”, China Journal of Applied Jurisprudence 2020-04, pp. 78-95 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 (available here) Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279-308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed. 2022 Weller, Matthias „Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019“, in Christoph Althammer/Christoph Schärtl (eds.), Festschrift für Herbert Roth, Tübingen 2021, pp. 835-855 Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Wu, Qiong “The Overview of the 22nd Diplomatic Session of the Hague Conference on Private International Law”, Chinese Yearbook of International Law 2019, pp. 337-338 Xie, Yili “Research on the Intellectual Property Infringment System of the Hague Judgments Convention”, China-Arab States Science and Technology Forum 2021-09, pp. 190-194 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 2017-05, pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Xu, Guojian “On the Scope and Limitation of the Global Circulation of Court Judgments: An Analysis on the Application Scope of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 269-299 Xu, Pengju “A Study on the Interpretation of Non-substantive Review Clauses in the Hague Convention on Judgments”, Frontiers in Business, Economics and Management (FBEM) 2022-03, pp. 79-81 (available here) Yang, Liu “The Applicable Conditions of the Lis Pendens Rule under the Hague Judgments Convention”, Journal of Ocean University of China (Social Sciences) 2022-05, pp. 99-111 Yang, Yujie “On the Rules of indirect Jurisdiction responding to Litigation – Based on Article 5, Paragraph 1, Item 6 of the Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters” (Master Thesis China Foreign Affairs University Beijing 2021) Yekini, Abubakri

  “The Hague Judgments Convention and Commonwealth Model Law – A Pragmatic Perspective”, Oxford 2021. Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Yuzhakov, D.A. “Legal Regulation of the Procedures for Enforcement of Decisions of Foreign Courts in Economic Disputes”, Urgent Issues of the Entrepreneurship Law, Civil Litigation and Arbitration (Perm State University) No. 4 (2021), pp. 119-123 (available here) Zasemkova, Olesya Fedorovna “ ‘Judicial Convention’ as a New Stage in the Recognition and Enforcement of Foreign Judgments”, Lex Russica 2019-10, pp. 84-103 (available here) Zasemkova, Olesya Fedorovna “Recognition and Enforcement of Foreign Judgments in the Context of the Adoption of the « Judicial Convention » 2019”, in Zhuikov V.M., Shchukin A.I. (eds.), Liber Amicorum Natalia Ivanovna Marysheva, pp. 196-211 Zernikow, Marcel “Recognition and Enforcement of Foreign Decisions in MERCOSUR Letters Rogatory (Carta Rogatória) and National Civil Procedure” Yearbook of Private International Law 22 (2020/2021), pp. 353-380 Zhang, Chunliang;
Huang, Shan “On the Common Courts Rules in Hague Judgments Convention – China’s way for the Judicial Assistance under Belt and Road Initiative”, Journal of Henan University of Economics and Law 2020-05, pp. 103-113 Zhang, Lizhen “On the Defamation Problem in the Hague Judgments Project: Ever In and Now out of the Scope”, Wuhan University International Law Review 2019-01, pp. 41-58 (available here) Zhang, Wenliang “The Finality Requirement of Recognition and Enforcement of Foreign Judgments”, Wuhan University Law Review 2020-02, pp. 19-38 Zhang, Wenliang; Tu, Guangjian “The Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement: Comparison and Prospects for Implementation”, Chinese Journal of International Law 20 (2021), pp. 101-135 Zhang, Wenliang;
Tu, Guangjian “The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 Zhang, Zhengyi;
Zhang, Zhen “Development of the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and Its Implication to China”, International and Comparative Law Review 2020, pp. 112-131 Zhao, Ning “The HCCH 2019 Judgments Convention, adding essential components for an effective international legal framework on recognition and enforcement”, in UIHJ (ed.), David Walker (dir.), Cyberjustice, de nouvelles opportunités pour l’huissier de justice / Cyberjustice, New Opportunities for the Judicial Officer – XXIVe Congrès de l’Union Internationale des Huissiers de Justice – Dubai – 22 au 25 Novembre 2021, Bruxelles 2021, pp. 120-133 Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368 Zirat, Gennadii “Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: A new Contribution of the Hague Conference on Private International Law to the Unification of International Civil Procedure”, Ukrainian Journal of International Law 2020-03, pp. 105-112 (available here)

 

III. Recordings of Events Related to the HCCH 2019 Judgments Convention

ASADIP; HCCH “Conferencia Internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras”, 3 December 2020 (full recording available here and here) ASIL “The Promise and Prospects of the 2019 Hague Convention”, 25-26 June 2020 (full recording available here and here) CILC; HCCH; GIZ; UIHJ “HCCH 2019 Judgments Convention: Prospects for the Western Balkans”, Regional Forum 2022, 30 June-1 July 2022 (short official video available here) CIS Arbitration Forum “CIS-related Disputes: Treaties, Sanctions, Compliance and Enforcement, Conference, Keynote 2: Russia’s accession to the Hague Convention on Recognition and Enforcement of Foreign Judgments”, 25-26 May 2021 (recording available here) CUHK “Latest Development of Hague Conference on Private International Law and the Hague Judgments Convention”, Online Seminar by Prof. Yun Zhao, 25 March 2021 (full recording available here) Department of Justice Hong Kong; HCCH “Inaugural Global Conference – 2019 HCCH Judgments Convention: Global Enforcement of Civil and Commercial Judgments”, 9 September 2019 (recording available here) GIAS “Arbitration v. Litigation: Can the Hague Foreign Judgments Convention Change the Game?, Panel 2, 10th Annual International Arbitration Month, Commercial Arbitration Day”, 25 March 2022 (full recording available here) HCCH “HCCH a|Bridged: Innovation in Transnational Litigation – Edition 2021: Enabling Party Autonomy with the HCCH 2005 Choice of Court Convention”, 1 December 2021 (full recording available here) HCCH “22nd Diplomatic Session of the HCCH: The Adoption of the 2019 Judgments Convention”, 2 July 2020 (short documentary video available here) JPRI; HCCH; UNIDROIT; UNCITRAL “2020 Judicial Policy Research Institute International Conference – International Commercial Litigation: Recent Developments and Future Challenges, Session 3: Recognition and Enforcement of Foreign Judgments”, 12 November 2020 (recording available here) Lex & Forum Journal; Sakkoula Publications SA « The Hague Conference on Private International Law and the European Union – Latest developments », 3 December 2021 (full recording available here) UIHJ; HCCH “3rd training webinar on the Hague Conventions on service of documents (1965) and recognition and enforcement of judgements (2019)”, 15/18 March 2021 (full recording available here in French and here in English) University of Bonn; HCCH “Pre-Conference Video Roundtable on the HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil and Commercial Matters between the EU and Third Countries”, 29 October 2020 (full recording available here)

 

Burcu Yüksel Ripley (University of Aberdeen) has posted on SSRN a paper titled Cryptocurrency Transfers in Distributed Ledger Technology-Based Systems and Their Characterisation in Conflict of Laws. The final version will appear in an edited collection in honour of Jonathan Fitchen titled From Theory to Practice in Private International Law: Gedächtnisschrift for Professor Jonathan Fitchen (Hart, forthcoming).

The abstract reads as follows:

In modern payment systems that are used today, non-cash payments are predominantly executed by banks, acting as an intermediary between payers and payees, in the form of bank-to-bank (interbank) funds transfers through bank accounts. A fundamental structural change has been introduced to this method of making payments with the emergence of cryptocurrencies underpinned by distributed ledger technology (DLT). This has enabled that non-cash payments can be made outside of the banking system directly from payer to payee and secure digital records can be held independently of the usual central trusted authorities such as banks. This global paradigm shift, starting with the possibilities of cryptocurrencies in payments, has introduced new challenges for private international law. The issue of characterisation of cryptocurrency transfers in DLT-based systems is at the heart of the some of the key private international law questions, including the determination of the law applicable to cryptocurrency transfers. The efforts have thus far mainly focused on characterising cryptocurrencies themselves as money, property or claims and a discussion around the application of the lex situs as the predominant connecting factor in international property law and the consideration of the relevant conflict of laws rules regarding the transfer of intangibles for cryptocurrency transfers. The purpose of this chapter is to offer a new perspective on the characterisation of cryptocurrency transfers taking place within DLT-based cryptocurrency systems by utilising an analogy to electronic funds transfers and funds transfer systems under unitary and segmented approaches and consider the potential effects of both approaches on the law applicable to cryptocurrency transfers.

Morten Midtgaard Fogt (Aarhus University, Denmark) has had a book titled Choices, Limits and Consequences of Harmonisation of Commercial Law published. The abstract of the book reads as follows.

The harmonisation of private commercial law and the application of the various instruments of harmonisation are becoming increasingly complex. New formal or informal means of harmonisation are added to the panorama of harmonisation instruments and new actors, be it at global, regional or national level, are introduced as well. Regional harmonisation sets its footprint both internally and externally. Innovative (or reintroduced) methods and phenomena for the harmonisation of commercial law have been suggested. Still, the most important and dominant means of harmonisation are the traditional multilateral conventions, the flexibility of which have been improved by different types of reservations and review and/or revision clauses. Taken together, the harmonisation process with its various and different means constitutes a circle of law harmonisation, in which circle there is an interaction between, and reciprocal influence of, all the various formal or informal means of harmonisation.

This book analyses the process of law harmonisation with the focus on choices, limits and consequences and uses in particular the CISG and Cape Town Conventions as examples. It takes into account means, methods, role of old and new actors, principles of interpretation and gap-filling, impact of judicial bodies and their lawfinding and possible law-making function.

An important issue, which transcends the work, is how to strike the balance between the harmonisation by formal means of legislation and the creative law-making role of jurisprudence and doctrine in order to accommodate the promotion of a dynamic and continued progress in the harmonisation, the necessary degree of predictability and legal certainty, and a clear distinction from the otherwise non-harmonised applicable national law.

The EAPIL Working Group on the Reform of the Brussels I bis Regulation has issued a preliminary position paper formulating proposals for reforming the Regulation.

The proposals are based on the opinions expressed by the members of the working group and the participants at the conference held at the Max Planck Institute Luxembourg in September 2022. The proposals of the members of the Members Consultative Committee were also forwarded to the drafters of the position paper.

The chairs of the Working Group (Burkhard Hess and Geert van Calster) now invite all interested members of EAPIL and readers of the blog to participate in a survey on the proposals formulated in the position paper until 13 March 2023. The survey can be accessed here.

The second issue of 2022 of Giustizia Consensuale (published by Editoriale Scientifica) has just been released, and it features:

Ferruccio Auletta and Alberto Massera, Giustizia consensuale e p.a.: l’accordo bonario per i lavori, i servizi e le forniture nel quadro degli ‘altri rimedi alternativi all’azione giurisdizionale’ (Consensual Justice and Public Administration: The Amicable Agreement for Jobs, Services and Supplies in the Framework of ‘Other Alternative Remedies to Court Proceedings’; in Italian)

The paper examines the present state of the Amicable Agreement. Along with other alternative dispute resolution tools, such as the technical advisory board, arbitration, and negotiated settlements, the Amicable Agreement provides an alternative to litigation in the area of public procurement. Thanks to their experience in the field of public procurement within the Arbitration Chamber of public contracts of the Italian National Anticorruption Authority, the authors incorporate a practitioner’s perspective into their analysis of the Amicable Agreement by referring to case law and to a broad range of doctrinal and legal sources.

Paolo Duret, Soft law, ADR, sussidiarietà: una triade armonica (Soft Law, ADR, Subsidiarity: A Harmonic Triad; in Italian)

The present era is witnessing the simultaneous development of two phenomena: on the one hand, the steady increase in the use of the called soft law, which has expanded from the domain of international law to domestic legal systems; on the other hand, the widespread resort to instruments of dispute resolution that are alternative to litigation (ADR). The paper aims at assessing and examining the connection between soft law and ADR, both in a retrospective and prospective view, focusing in particular on emerging issues such as the recourse to ‘nudging’ and new technologies, along with forms of Online Dispute Resolution (ODR). The principle of subsidiarity acts as a common denominator between the two aforementioned phenomena. In particular, it allows shedding light on the meaning and implications of the relationship between soft law and ADR within the framework of a novel understanding of the State and public administration.

Roberto Bartoli, Una breve introduzione alla giustizia riparativa nell’ambito della giustizia punitiva (A Brief Introduction to Restorative Justice in the Context of Punitive Justice; in Italian)

Restorative justice and punitive justice belong to different paradigms. Therefore, understanding this paradigm shift is key to the understanding of restorative justice itself. Through a ‘close’ comparison between these two paradigms, the author aims to capture the distinctive features of restorative justice in the context of criminal offences, i.e. community justice, dialogic justice, justice that attempts to heal the pain caused by criminal wrongdoing, and non-violent justice. Restorative justice has the potential to foster revolutionary change, especially in instances where restorative justice can provide a procedural tool that is complementary to punitive justice and a material alternative to punishment.

Beatrice Zuffi, Azione di classe e ADR: un binomio in via di definizione (Class Action and ADR: A Pairing in the Making; in Italian)

The paper provides a comparative review of selected legal systems (namely: the U.S.A., the Netherlands, and Belgium) which are at the forefront of fostering the use of ADR in compensatory class actions through laws and regulations. The author then analyses the Italian legislation on class action introduced by Law No 31 of 2019, focusing in particular on the solutions adopted to promote settlement agreements and assessing the feasibility of other alternative dispute resolution methods, such as mediation, negotiation, and arbitration in connection with or in lieu of the three-phase trial under Art. 840 bis ff. of the Italian Code of Civil Procedure.

 

Observatory on Legislation and Regulations

Mauro Bove, I verbali che concludono la mediazione nel d.lgs. n. 149 del 2022 (Mediation Reports under Legislative Decree No 149 of 2022; in Italian)

The paper analyses the discipline of mediation reports under Legislative Decree No 149 of 2022, highlighting its conformity to the provisions of Legislative Decree No 28 of 2010. The author outlines the features and scope of the procedures applicable to instances where a mediated settlement is not achieved and instances where mediation results in a settlement agreement to be included in the mediation report. In particular, the author examines the innovative regulation of mediation reports, which requires the use of digital signatures where mediation takes place online.

Alberto M. Tedoldi, La mediazione civile e commerciale nel quadro della riforma ovvero: omeopatia del processo (Civil and Commercial Mediation in the Framework of the Reform: Homeopathy of the Process; in Italian)

The essay focuses on and looks to expand the knowledge of civil and commercial mediation as regulated by Legislative Decree No 28 of 2010 amended by Legislative Decree No 149 of 2022. The legislative provisions appear to foster the use and development of mediation as a full-fledged dispute resolution process, beyond its function as a tool complementary to litigation. In this, mediation provides an appropriate and comprehensive dispute resolution instrument which addresses the legal relationship in its entirety, rather than the single components of res in judicium deducta, and allows achieving an all-round, durable settlement. ‘The civil process is dead, long live the mediation!’.

Pietro Ortolani, The Resolution of Content Moderation Disputes under the Digital Services Act

Online content on social media platforms gives rise to a wide range of disputes. Content moderation can thus be understood as a form of online dispute resolution, whereby the platforms often balance legal entitlements against each other. This article looks at content moderation through the lens of procedural law, providing an overview of the different dispute resolution avenues under the Digital Services Act (DSA). First, the article sets the scene by describing the overall architecture of the DSA. Against this background, specific provisions are scrutinized, dealing with notice and action mechanisms, statement of reasons, internal complaint handling, and out-of-court dispute settlement. Furthermore, the article considers the interplay between the DSA and the European regime of cross-border litigation. Finally, some general conclusions are drawn regarding the DSA’S ‘procedure before substance’ regulatory approach.

 

Observatory on Practices

Antonio Briguglio, Conciliazione e arbitrato. Contaminazioni (Conciliation and Arbitration. Cross-fertilization; in Italian)

In this paper, the author addresses the topic of the interplay between conciliation and arbitration. In spite of the former being a non-adjudicative ADR procedure and the latter a fully adjudicative ADR process, there are some aspects of cross-fertilization between the two. The author pays particular attention to ‘conciliatory’ elements, whose relevance is greater in arbitral awards than in judicial decisions. In the second part of the paper, the author focuses in detail on the recent Singapore Convention on International Settlement Agreements Resulting from Mediation, which introduces a different element of cross-fertilization between arbitration and conciliation. In particular, the author investigates the meaning and practical implications of the Convention, which basically puts settlement agreements on an equal footing with arbitral awards for purposes of international recognition and enforcement.

Silvana Dalla Bontà, La (nuova) introduzione e trattazione della causa nel processo di prime cure e i poteri lato sensu conciliativi del giudice. Un innesto possibile? (The (New) Introduction and Handling of the Case in the First-Instance Proceedings and the Court’s Conciliatory Powers Lato Sensu. A Possible Graft?; in Italian)

After providing an overview of the new Italian regulation on pleadings and hearings in civil cases before the courts of first instance as introduced by Legislative Decree No 149 of 2022, the paper focuses on the conciliatory powers of the courts, i.e. court-ordered mediation, judicial conciliation, and judicial offer to settle. In particular, the analysis aims to explore if, when, and how these judicial conciliatory powers could be effectively exercised at the new pleading and hearing stages. While uncovering the weaknesses of the recent reform of Italian civil procedure, the author argues that the development of good practices would provide a solution to most of the issues raised by the new legislation. To that end, Civil Justice Observatories could play a pivotal role in achieving lasting solutions through a bottom-up approach that fosters the interaction of different civil justice actors.

Carolina Mancuso and Angela M. Felicetti, Sistemi di dispute resolution per le università: primi spunti di riflessione (Dispute Resolution Systems for Universities: First Considerations; in Italian)

The paper aims to explore some innovative foreign teaching and research experiences (namely, in Spain and in the United States) concerning the dissemination of mediation, conflict management techniques and, more broadly, the culture of alternative dispute resolution in academia. The analysis intends to connect such initiatives with the vibrant Italian panorama, which is rich in experiential teaching initiatives and infused with its own developing tradition of conflict management through student ombudspersons. The ultimate goal of the investigation is to identify new directions for the dissemination of the ADR culture in Italian high education institutions.

 

In addition to the foregoing, this issue features the following book review by Luciana Breggia: Tommaso GRECO, La legge della fiducia. Alle radici del diritto (The Law of Trust. At the Roots of Law; in Italian), Bari-Roma, Editori Laterza, (2021; reprint 2022), VII-XVI, 1-171.

 

The latest issue of RabelsZ has just been published. It contains the following articles:

Holger Fleischer: Große Debatten im Gesellschaftsrecht: Fiktionstheorie versus Theorie der realen Verbandspersönlichkeit im internationalen Diskurs, pp. 5–45, DOI: 10.1628/rabelsz-2023-0003

Great Debates in Company Law: The International Discourse on Fiction Theory versus Real Entity Theory. – This article opens a new line of research on great debates in domestic and foreign company law. It uses as a touchstone the classical debate on the nature of legal personhood, which was moribund for a time but has recently experienced an unexpected renaissance. The article traces the scholarly fate of fiction theory and real entity theory over time and across jurisdictions. It describes the origins of both theories, explores the processes of their reception in foreign legal systems, and through selected case studies illustrates the areas in which both courts and doctrine to this day have continued to draw on their body of arguments.

Sabine Corneloup: Migrants in Transit or Under Temporary Protection – How Can Private International Law Deal with Provisional Presence?, pp.46–75, DOI: 10.1628/rabelsz-2023-0004

An increasing number of migrants are provisionally present in the territory of a State other than their State of origin, be it because they are granted temporary protection until they can return to their country of origin or because migration policies– notably externalization measures– prevent them from accessing the territory of their State of destination. As a result, many migrants are stuck for months, if not years, in transit countries at the external borders of Europe before being able to resume their migratory route. Their provisional presence, which initially was meant to remain transitional and short-term, often becomes indefinite. In the meantime, life goes on: children are born, couples marry and divorce, parental child abductions take place, etc. How can private international law deal with these situations? The 1951 Geneva Refugee Convention, which requires that the personal status of refugees be governed by the law of domicile or residence, does not provide an answer to all difficulties. The paper aims to explore PIL connecting factors, such as nationality, habitual residence, and mere presence, and assess their appropriateness for migrants on the move or under temporary protection.

Hannes Wais: Digitale Persönlichkeitsrechtsverletzungen und anwendbares Recht, pp.76–117, DOI: 10.1628/rabelsz-2023-0005

Digital Infringement of Personality Rights and the Applicable Law. – Under art. 4 para. 1 Rome II Regulation, the law applicable to torts is the law of the state in which the damage occurred. With respect to the violation of personality rights, however, art. 40 para. 1 EGBGB points to the law of the place where the event giving rise to the damage occurred (sent. 1) or, should the victim so decide, the place where the damage occurred (sent. 2). This essay demonstrates that this approach entails an element of unequal treatment and is inconsistent with German substantive law, which tends to favour the tortfeasor over the victim in personality rights cases. These findings give reason to subject the German conflict-of-law rules regarding the infringement of personality rights (which almost exclusively take place online) to an expansive review. The article first discusses the exclusion of personality rights infringements in art. 1 para. 2 lit. g Rome II Regulation and the dormant reform initiative, followed by an analysis of the shortcomings of the solution laid down in art. 40 para. 1 EGBGB. Alternative approaches are subsequently discussed before concluding with a proposal de lege ferenda.

Zheng Sophia TANG: Smart Courts in Cross-Border Litigation, pp. 118–143, DOI: 10.1628/rabelsz-2023-0006

Smart courts use modern technology to improve the efficiency of trials, enabling the parties to access court proceedings from a distance. This advantage is particularly important in cross-border litigation, which is characterised by the cost and inconvenience for at least one party to take part in proceedings abroad. However, although technology can significantly improve procedural efficiency, legal obstacles make efficiency impossible to achieve. This article uses service of proceedings, collecting evidence and virtual hearing as examples to show how the current law, especially the old-fashioned concept of sovereignty, hampers the functioning of technology. In the age of technology, it is necessary to reconceptualise sovereignty. This article argues that private autonomy may be utilised to reshape sovereignty in cross-border litigation procedures and reconcile the conflict between sovereignty and technology.

This post has been written by Silvana Canales Gutiérrez, who is a Postdoctoral Researcher at Rovira i Virgili University (Tarragona).

The “First International Seminar on rights in rem in the European Union: General Aspects and International Jurisdiction”, directed by Georgina Garriga (Universitat de Barcelona) and Maria Font (Universitat Rovira i Virgili), took place at the Faculty of Legal Sciences of the Universitat Rovira i Virgili in Tarragona, on 10 and 11 November 2022.

The conference focused on rights in rem, approached from the standpoint of EU private international law (EUPIL) and comparative law, trying to identify the problematic aspects of the “in rem” qualification under the regulatory instruments applicable in the EU (mainly, Regulation (EU) 1215/2012), as well as under Spanish domestic law, owing to the plurilegislative nature of its legal system.

A. The Contents of Rights in Rem from a Comparative Law Perspective

The conference was permeated by an analytical and comparative approach that began with the presentation by Héctor Simón Moreno (Universitat Rovira i Virgili) on “Rights In Rem in Europe: A Comparative Perspective”.  The speaker explained the essential differences in the conception of rights in rem existing in common law and civil law legal systems. He argued that these differences affect the dimension of these rights and directly influence their material content, as well as the ways of acquiring, transmitting, or losing these rights, their effects on third parties and the legal actions for claiming them, which can change from system to system.

In the same line of thought, Francisco J. Garcimartín Alférez (Universidad Autónoma de Madrid) pointed to the difficulties in delineating rights in rem in the EU legal order. These difficulties stem from the uncertainties that surround the definition and the terminology relating to this subject-matter both in the normative instruments and in the case law of the EU. However, the speaker deemed it possible to identify certain “key points” of rights in rem, such as the right of ownership and their enforceability against third parties. It is even possible to shape a relatively consistent general definition of rights in rem: although such exact definition cannot be directly extracted from normative texts, it is possible to identify the essential attributes of these rights, that could help in their characterization.

Eva-Maria Kieninger (Julius-Maximilians-Universität Würzburg), addressed the traditional distinction between rights in rem on movable and immovable property. The speaker explained that the general idea of rights in rem existing only on immovable property can also be extended to movable property, through a legal fiction which portrays them not only as an accessory, but also as an integral part of a piece of land. In this regard, the speaker gave the example of solar panels: according to Dutch case law, if their vocation is to remain in the real estate, they can change their status of movable property and become part of the land where they are located. However, the criterion to determine the legal conversion of movable property into real estate presents difficulties in the EU, taking into account that there are neither proposals for unification of the Member States’ land laws, nor domestic proposals within each State to define or regulate such conversion. To solve this legal vacuum at a global level, UNIDROIT developed a proposal for a convention that was adopted in 2019, the “Protocol to the convention on international interests in mobile equipment on matters specific to mining, agricultural and construction equipment” (MAC protocols), which, as of 20 September 2022, has only been signed by six countries and has been ratified by none.

B. The Contents of Rights in Rem in Plurilegislative Legal Systems

From a comparative perspective, rights in rem can be regulated in different ways, especially when dealing with plurilegislative legal systems. This premise was developed by Ángel Serrano Nicolás (Notary in Barcelona), who presented a comparative analysis of the different legal systems coexisting in Spain to regulate rights in rem. In particular, he explained the differences between the Spanish Civil Code and the foral civil regulations of Catalonia, the Basque Country and Navarra, in relation to legal institutions such as usucapio, surface rights, easements, the right of withdrawal and first refusal, and the right of use and habitation, among others.

In the same line of argument, but from a conflict-of-laws perspective, Albert Font i Segura (Universitat Pompeu Fabra) highlighted the exclusive competence of the State in registry matters. This exclusive competence unifies the access, publicity and regulation of rights in rem, facilitating their homogeneity of treatment despite the diversity existing in the Spanish civil regulations. This diversity impacts, in particular, on the regulation of inter-local conflicts (Basque Country), on the administrative control of the registry qualification, on procedural legislation and on the guarantees of the rights in rem. The application of one regulation or another is not easy to establish and this problem cannot always be avoided by means of an agreement on the applicable law. These legal frictions create an inter-regional conflict of laws that is at least debatable, and which has been the subject of decisions by the Constitutional Court on several occasions.

The analysis of the current situation of rights in rem within this panel revealed that there are different ways of conceiving their constituent elements. At the same time, it is not possible to say that there are currently new rights in rem, which are excluded from the applicable regulations, even where they involve electronic contracting with innvoative elements, such as transactions with cryptocurrencies or 3D property rights.

C. International Jurisdiction

Moving on to the subject of international jurisdiction, specifically on Regulation (EU) 1215/2012, the remaining speakers analyzed the most important aspects of this Regulation, pointing to the problems of application of certain of its articles, the alternative interpretations of some of its provisions and, in some cases, making proposals on how to improve its wording or application to meet its objectives in the light of the new challenges facing EUPIL.

Ilaria Pretelli (Institut Suisse de Droit Comparé) began by explaining that the maxim forum rei sitae applies when it comes to actions related to determining the extent, content, ownership or possession of property. This classic relationship between jurisdiction and the place where the property is located is justified by the fact that, for evidentiary purposes, it is necessary to carry out verifications, investigations and expert opinions in the place where the property is located, provided that the claim involves an assessment strictly linked to such place, in accordance with the doctrine developed by the CJEU. However, as regards mixed actions, these may generate a conflict of jurisdictions when they involve a personal right and a right in rem, taking into account that these actions are predominantly in personam. The fact that the contract in dispute concerns immovable property is irrelevant, the immovable nature of the subject matter of the contract being of marginal importance only (e.g. Case C-417/15). This being so, it may be necessary to reconsider the applicability of the forum rei sitae rule in cases where the main object of the action is the claim of a personal right and not of a right in rem.

Ivana Kunda (University of Rijeka) gave an interesting explanation on the recovery of cultural objects under Regulation (EU) 1215/2012. The speaker explained that cultural objects have a special protection, as they are part of the heritage and history of mankind, which means that they do not theoretically belong to a State, but are goods of interest to the society as a whole. Taking the above into consideration, art. 7.4 of Regulation (EU) 1215/2012, whose intention is to protect cultural objects located in the Member States by establishing a specific forum to recover them, has a limitation that is not in line with the objectives of the special protection needed by  this type of property. In fact, this provision requires both the defendant and the cultural object to be located in the Member States for the Regulation to be applicable. The speaker proposed a change of this provision, modeled on other RBIbis protective fora, in which the defendant is not required to be domiciled in the Member States in order to be sued in the EU. This same model could be replicated for Art. 7.4 of the Regulation.

Cristina González Beilfuss (Universitat de Barcelona) focused on the problematic assimilation (for civil law) of the trust. In English and Anglo-American law, it is not clear whether the trust is a right in rem: while being included within the property right, there is a split between the rights of the beneficiary and those of the trustee. In contrast, in civil law, the property right is absolute, which makes it necessary to adapt the trust. These different understandings of the trust in civil and common law systems have an impact on the determination of international jurisdiction, since it must be established whether it is an action related to a  right in rem, or whether the subject matter of the claim falls under the scope of personal rights. This distinction affects the determination of the forum (Articles 7 and 25 of Regulation (EU) 1215/2012). Additionally, other interpretative doubts arise, concerning, for example, the lack of uniformity and the difficulties in determining the domicile of the trust, or the application of Regulation (EU) 1215/2012 to testamentary trusts (considering that wills are excluded from the scope of application of the Regulation).

Carmen Parra Rodríguez (Universitat Abat Oliba CEU) put forth a proposal for improving Regulation (EU) 1215/2012 as concerns rights in rem over movable property. The speaker remarked that the concept of movable property is not defined in this Regulation, which does not contemplate a specific forum in this respect. Due to this, there are proposals that regard the forum rei sitae as a potential alternative for actions involving movable property, although the mobility of such assets generally makes it difficult to definitively determine the place where they are located. Thus, other fora may be more appropriate to the nature of movable property, such as the defendant’s domicile, the place where the property is registered, the court with the closest ties, or determining jurisdiction by express or implied submission.

Josep Maria Fontanellas Morell (Universitat de Lleida), argued for a relaxation of the exclusive forum of Article 24 of Regulation (EU) 1215/2012. The speaker argued, on the one hand, that the qualification adopted by the CJEU in this respect needs clarification, insofar as it should better delimit the category to distinguish it from other adjacent ones, such as contractual obligations or delictual or quasi-delictual matters. On the other hand, the arguments that justified, at the time, the creation of an exclusive forum should be reconsidered, as they have now partly lost their raison d’être.

D. Future Events

The ideas put forward in the Seminar are the beginning of a debate on the Private International Law of rights in rem, which will continue in the near future. Two other events (open to the general public) on this same subject are scheduled: the first is especially devoted to the perspective of the Spanish and European notary’s office and it will be held (in Spanish) on 13 and 14 June 2023 at the College of Notaries of Catalonia (Barcelona, Spain). The second will be focused on a future instrument on the law applicable to rights in rem. It will take place in 2024 at the University of Barcelona and it will be held entirely in English.

The 36th Annual Survey of Choice of Law in the American Courts (2022) has been posted to SSRN.

The cases discussed in this year’s survey cover such topics as: (1) choice of law, (2) party autonomy, (3) extraterritoriality, (4) international human rights, (5) foreign sovereign immunity, (6) foreign official immunity, (7) adjudicative jurisdiction, and (8) the recognition and enforcement of foreign judgments. Happy reading!

John Coyle (University of North Carolina School of Law)
William Dodge (University of California, Davis School of Law)
Aaron Simowitz (Willamette University College of Law)

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 19th annual conference, taking place from Wednesday 11 – Thursday 12 October 2023 in Amsterdam (the Netherlands). Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference: “The Perpetual Renewal of European Insolvency Law”.

The conference is intended to focus on, inter alia, the following overall topics:

• Public and social policy and the impact on corporate rescue, and vice versa
• Cross-border issues (recognition, coordination)
• Asset tracing (including crypto assets)
• Competition for cases as a driving force for legislative reform
• International organisations update
• Sustainability and corporate restructuring
• Environmental claims in insolvency
• Transaction avoidance eclipsed in preventive restructuring procedures
• Pre-packs rehabilitated
• Asset partitioning: prudent entrepreneurship or manifestation of opportunism
• Modern issues surrounding directors’ duties to file for insolvency
• The impact and benefit (or not) of creditors’ committees
• EU Preventive Restructuring Directive

The IEAF board also invites submissions on other topics that fall with in the scope of the overall theme of the conference.

Conference methodology

In line with the practice established in our past academic conferences, the intention for the autumn conference is to have research papers that challenge existing approaches, stimulate debate and ask, and attempt to answer, comparative and interdisciplinary questions within the above broadly defined theme. Accordingly, proposals are invited that do more than just outline a topic of interest in respect of any given jurisdiction, but seek to understand, analyse and critique the fundamentals of insolvency and restructuring systems in ways that are relevant across jurisdictions and across fields of academic inquiry. Contributions must be in English.

Presenting at the IEAF conference

Expressions of interest in delivering a paper should be sent by email on or before 1 March 2023 to the IEAF’s Deputy Chair, Dr. Jennifer Gant.

Authors of papers selected for presentation will benefit from a waiver of the participation fee for the academic conference, however, they will be responsible for their own travel and accommodation costs. A limited number of travel grants are available for junior scholars invited to present.

For further information, see: www.insol-europe.org/academic-forum-events

I am mopping up draft posts so forgive me if some of them are a touch late compared to my original report on them on Twitter.  Asian Offshore Services v Self Elevating Platform ECLI:NL:RBROT:2023:34 of the Court of First Instance at Rotterdam is an interesting illustration of the positive conflicts rule of Article 4 juncto Article 63 Brussels Ia.

Article 4’s domicile rule is supplemented by Article 63’s definition of domicile for legal persons:

Article 63:

1.   For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its: statutory seat [Dutch: statutaire zetel]; central administration; [Dutch: hoofdbestuur] or principal place of business [Dutch: hoofdvestiging].

2.   For the purposes of Ireland, Cyprus and the United Kingdom, ‘statutory seat’ means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.

3.   In order to determine whether a trust is domiciled in the Member State whose courts are seised of the matter, the court shall apply its rules of private international law.

A63 may lead to so-called positive conflicts: more than one court considering itself to be the domicile of the defendant. This is interesting nota bene in the case of business and human rights cases where claimants may want to forum shop and sue in the EU, such as in Anglo American.

In the case at issue, the court first of all [4.2] dismisses the parties’ awkward consensus [4.1] that neither Brussels Ia, nor any international Treaty determines jurisdiction. Clearly Brussels Ia does apply (claimant is domiciled at Kuala Lumpur; defendant registered in Curaçao) and the Court applies it proprio motu.

The court then points to the statutory seat in Curaçao, and [4.9] notes SEP’s lack of contestation that Sliedrecht is its ‘fixed place of business’ as testified by an extract from the local commercial register. Now I a may be a stickler for language here but a fixed place of business is not the same as the principal place of business (which implies main business activities). It is the latter which the Regulation requires.

Geert.

EU Private International Law, 3rd ed. 2021, 2.131 ff.

First instance Rotterdam
Held Netherlands have A4 Brussels Ia 'domicile' jurisdiction because on the facts, 'principal place of business' of Curaçao incorporated corporation is in The Netherlands

ASIAN OFFSHORE SERVICES v SELF ELEVATING PLATFORM N.V.https://t.co/Luf7qg1tnR

— Geert Van Calster (@GAVClaw) January 17, 2023

Summary provided by the author, Asif Efrat

In a globalized world, legal cases that come before domestic courts are often transnational, that is, they involve foreign elements. For example, the case before the court may revolve around events, activities, or situations that occurred in a foreign country, or the case may involve foreign parties or the application of foreign law. Such cases typically present an overlap between the legal authorities of two countries. To handle a transnational case cooperatively, one legal system must cede its authority over the case, in full or in part, to a foreign legal system. This effectively means that a local citizen would be subjected to the laws or jurisdiction of a foreign legal authority, and that raises a host of questions and concerns: Does the foreign legal system abide by the rule of law? Does it guarantee human rights? Will the foreign court grant our citizen the due process and fair treatment they would have enjoyed at home?

The newly published book Intolerant Justice: Conflict and Cooperation on Transnational Litigation (Oxford University Press) argues that the human disposition of ethnocentrism – the tendency to divide the world into superior in-groups and inferior out-groups – would often lead policymakers to answer these questions negatively. The ethnocentric, who fears anything foreign, will often view the foreign legal system as falling below the home country’s standards and, therefore, as unfair or even dangerous. Understandably, such a view would make cooperation more difficult to establish. It would be harder to relinquish the jurisdiction over legal cases to a foreign system if the latter is seen as unfair; extraditing an alleged offender to stand trial abroad would seem unjust; and the local enforcement of foreign judgements could be perceived as an affront to legal sovereignty that contravenes fundamental norms.

This book examines who expresses such ethnocentric views and how they frame them; and, on the other hand, who seeks to dispel these concerns and establish cooperation between legal systems. In other words, the domestic political debate over transnational litigation stands at the center of this book.

In this debate, the book shows, some domestic actors are particularly likely to oppose cooperation on ethnocentric grounds: the government’s political opponents may portray the government’s willingness to cooperate as a dangerous surrender to a foreign legal system, which undermines local values and threatens the home country’s citizens; NGOs concerned for human rights might fear the human-rights consequences of cooperation with a foreign legal system; and lawyers, steeped in local rules and procedures, may take pride in their legal system and reject foreign rules and procedures as wrong or inferior.

By contrast, actors within the state apparatus typically view cooperation on litigation more favorably. Jurists who belong to the state – such as judges, prosecutors, and the justice-ministry bureaucracy – may support cooperation out of a concern for reciprocity or based on the principled belief that offenders should not escape responsibility by crossing national borders. The ministry of foreign affairs and the ministry of defense may similarly support cooperation on litigation that could yield diplomatic or security benefits. These proponents of cooperation typically argue that legal differences among countries should be respected or that adequate safeguards can guarantee fair treatment by foreign legal authorities. In some cases, these arguments prevail and cooperation on litigation is established; in other cases, the ethnocentric sentiments end up weakening or scuttling the cooperative efforts.

These political controversies are examined through a set of rich case studies, including the Congressional debate over the criminal prosecution of U.S. troops in NATO countries, the British concerns over extradition to the United States and EU members, the dilemma of extradition to China, the wariness toward U.S. civil judgments in European courts, the U.S.-British divide over libel cases, and the concern about returning abducted children to countries with a questionable human rights record.

Overall, this book offers a useful analytical framework for thinking about the tensions arising from transnational litigation and conflict of laws. This book draws our attention to the political arena, where litigation-related statutes and treaties are crafted, oftentimes against fierce resistance. Yet the insights offered here may also be used for analyzing judicial attitudes and decisions in transnational cases. This book will be of interest to anyone seeking to understand the challenges of establishing cooperation among legal systems.

Matthias Lehmann (University of Vienna) and Gilles Cuniberti (University of Luxembourg) are considering establishing an EAPIL Working Group on the Law Governing Digital Assets.

The first project of the Working Group would be to write a position paper to be filed for the purpose of the online consultation of the Draft UNIDROIT Principles and Commentary on Digital Assets and Private Law. The consultation ends on 20 February 2023.

The EAPIL position paper would focus on the private international aspects of the UNIDROIT proposal.

Any EAPIL Member interested in joining the Working Group should contact either Matthias Lehmann (matthias.lehmann@univie.ac.at) or Gilles Cuniberti (gilles.cuniberti@uni.lu) as soon as possible.

The New Age of Dispute Resolution: Digitization & Evolving Norms

Time: 18:30 – 20:30 pm

Venue: Bracewell LLP New York

When: 13 February Monday 2023

Organized with New York International Arbitration Centre, New York State Bar Association, and American Society of International Law

The event will be held in relation to UNCITRAL’s project on the Stocktaking of Dispute Resolution in the Digital Economy. As part of its stocktaking activities to seek inputs from different parts of the world, the Secretariat is organising this discussion with practitioners and academics in New York on two respective issues: (1) the use of technology in arbitration; and (2) online mediation. Presenters: (Panel 1) Christina Hioureas, Emma Lindsay, Hagit Muriel Elul, Martin Guys and Sherman W. Kahn; (Panel 2) Jackie Nolan-Haley and Sherman W. Kahn.