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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, 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 4 April 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, Jayne (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) Ceci, Federico “Osservazioni sull’adesione dell’Unione europea alla Convenzione dell’Aja del 2019 sul riconosciemento e l’esecuzione delle sentenze straniere in materia civile e commerciale”, Quaderni AISDUE N.º3 (2022), pp. 119-131 (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 Daniel, Naama “Lost in Transit: How Enforcement of Foreign Copyright Judgments Undermines the Right to Research”, PIJIP Research Paper Series 3-2023, pp. 1-60 (available here) 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;
Mortensen, Reid “The HCCH Judgments Convention in Australian Law”, Federal Law Review 47 (2019), pp 420-443 Du, Tao “Frontiers of Private International Law Around the World: An Annual Review (2019-2020)”, Chinese Review of International Law 2021-04, pp. 103-128 (available here) Dyrda, Lukasz “Judicial Cooperation in Civil and Commercial Matters in the Context of the European Union’s Planned Accession to the 2019 Hague Judgments Convention after Brexit”, Europejski Przeglad Sadowy 2022-5, pp. 22-29 Echegaray de Maussion, Carlos Eduardo “El Derecho Internacional Privado en el contexto internacional actual : Las reglas de competencia judicial indirecta en el Convenio de la Haya de 2 de Julio de 2019 y el accesso a la justicia” Revista mexicana de Derecho internacional privado y comprado N°45 (abril de 2021), pp. 128-139 (available here) Efeçinar Süral “Possible Ratification of the Hague Convention by Turkey and Its Effects to the Recognition and Enforcement of Foreign Judgments”, Public and Private International Law Bulletin 40 (2020), pp. 775-798 (available here) EGPIL/GEDIP Observations on the possible accession of the European Union to the Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments, Text adopted on 9 December 2020 following the virtual meeting of 18-19 September 2020 (available here) | Zeitschrift für Europäisches Privatrecht (ZEuP) 2021, pp. 474-476 El Hage, Yves « Sur l’adhésion de l’Union européenne à la convention de la Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale », Revue critique de Droit international privé (RCDIP) 2022, pp. 819 et seq. Ermakova, Elena ; Frovola, Evgenia ; Sitkareva, Elena “International Economic Integration and the Evolution of the Principles of Civil Procedure”, in Elena G. Popkova, Bruno S. Sergi, Modern Global Economic System, Basel 2021, pp. 1589-1597 European Union (EU)/ European Commission “Proposal for a Council Decision on the accession by the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, COM(2021) 388 final (available here) Fan, Jing “On the Jurisdiction over Intellectual Property in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Chinese Yearbook of Private International Law and Comparative Law 2018-02, pp. 313-337 Fan, Jing “Reconfiguration on Territoriality in Transnational Recognition and Enforcement of Intellectual Property Judgments”, Chinese Review of International Law 2021-01, pp. 90-112 (available here) Fankai, Chen “On the Impacts of Two Hague Conventions on the International Commercial Arbitration”, Beijing Arbitration Quaterly 2021-04, pp. 55-77 Farnoux, Étienne “Reconnaissance et exécution des jugements étrangers en matière civil ou commerciale : À propos de la Convention de La Haye du 2 juillet 2019”, La Semaine Juridique 2019, pp. 1613-1617 Forner Delaygua, Joaquim-Joan “El Convenio de La Haya de 2 julio 2019 como nuevo marco normativo de las sentencias en materia de contractual comercial”, in Pérez Vera et al. (eds.), El Derecho internacional privado entre la tradición y la innovación – Obra homenaje al Profesor doctor José María Espinar Vicente, Madrid 2020, pp. 307-325 Franzina, Pietro; Leandro, Antonio

  “La Convenzione dell’Aja del 2 luglio 2019 sul riconoscimento delle sentenze straniere : una prima lettura”, Quaderni di SIDIblog 6 (2019), pp 215-231 (available here)

(The Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments: A First Appraisal) Fuchs, Felix “Das Haager Übereinkommen vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Urteile in Zivil- oder Handelssachen“, Gesellschafts- und Wirtschaftsrecht (GWR) 2019, pp 395-399 Gaponov, M.D. “On the issue of the Execution of foreign Judgments” Science Diary 2023-01 (available here) Garcimartín, Francisco “The Judgments Convention: Some Open Questions”, Netherlands International Law Review (NILR) 67 (2020), pp 19-31 Garnett, Richard “The Judgments Project: fulfilling Assers dream of free-flowing judgments”, in Thomas John, Rishi Gulati, Ben Koehler (eds.), The Elgar Companion to the Hague Conference on Private International Law, Cheltenham/Northampton 2020, pp. 309-321 Gawron, Karol “Recognition and enforcement of foreign court judgments under the 2019 Hague Convention from a Polish perspective” (Master Thesis, Jagiellonian University Kraków, 2022) Goddard, David „The Judgments Convention – The Current State of Play”, Duke Journal of Comparative & International Law 29 (2019), pp 473-490 González Pedrouzo, Carmen “La Convención de La Haya de 2 de juliio de 2019 sobre el Reconocimiento y la Ejecución de Sentencias Extranjeras en Materia Civil y Comercial y su impacto en la legislación uruguaya”, UCLAEH Revista de Derecho 2022-01, pp. 73-88 (available here) Grodl, Lukas “Forum Non Conveniens Doctrine – post Brexit Applicability in Transnational Litigation”, Casopis pro právní vedu a praxis 30 (2022), pp. 285-303 (available here) Gu, Weixia “A Conflict of Laws Study in Hong Kong-China Judgment Regionalism: Legal Challenges and renewed Momentum”, Cornell International Law Journal 52 (2020), pp. 591-642 Guez, Philippe ;
de Berard, François ; Malet-Deraedt, Fleur ; Roccati, Marjolaine ; Sinopoli, Laurence ; Slim, Hadi ; Sotomayor, Marcelo ; Train, François-Xavier “Chronique de droit international privé appliqué aux affaires, Revue de droit des affaires internationales – 1 décembre 2018 au 31 décembre 2019”, Revue de Droit des Affaires Internationales 2020, pp. 237-274 Gugu Bushati, Aida “Country Report Albania”, 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. 16-41 (available here) Guide, Jia
[Foreign Ministry of the People’s Republic of China] “Address by the Director of the Department of Treaty and Law of the Ministry of Foreign Affairs Jia Guide at the Opening Ceremony of the International Symposium on the Hague Judgment Convention (9 September 2019)”, Chinese Yearbook of International Law 2019, pp. 503-505 Gusson Said, Enza ; Quiroga Obregón, Marcelo Fernando “Homologação de sentenças estrangeiras e o Judgements

Project”, Derecho y Cambio Social N.º 60 (2020) en línea,
pp. 1-13 (available here) Häggblom, Annie ”2019 ars Haagkonvention om erkannande och verkstallighet av utlandska domar pa privatrattens omrade: Ett framgangsrikt internationellt instrument pa den internationella privatrattens omrade?” (Examensarbete i internationell privat- och processrätt, Uppsala Universitet, 2021; available here)

“The Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters : A successful international instrument in the field of private international law?” He, Qisheng “The HCCH Judgments Convention and the Recognition and Enforcement of Judgments pertaining to a State”, Global Law Review 3 (2020), pp 147-161 (available here) He, Qisheng “Unification and Division: Immovable Property Issues under the HCCH Judgement Convention”, Journal of International Law 1 (2020), pp 33-55 He, Qisheng “The HCCH Judgments Convention and International Judicial Cooperation of Intellectual Property”, Chinese Journal of Law 2021-01, pp. 139-155 He, Qisheng “Latest Development of the Hague Jurisdiction Project”, Wuhan University International Law Review 2020-04, pp. 1-16 He, Qisheng “ ’Civil or Commercial Matters’ in International Instruments Scope and Interpretation”, Peking University Law Review 2018-02, pp. 1-25 (available here) He, Qisheng “A Study on the Intellectual Property Provisions in the ’Hague Convention on Judgment’ – On the Improvement of Transnational Recognition and Enforcement of Intellectual Property Judgments in China”, Journal of Taiyuan University (Social Science Edition) 2020-05, pp. 40-47 He, Qisheng “Negotiations of the HCCH 2019 Judgments Convention on State Immunity and Its Inspirations”, Chinese Review of International Law 2022-02, pp. 40-52 He, Qisheng “Dilemma and Transformation of the Hague Jurisdiction Project”, Wuhan University International Law Review 2022-02, pp. 36-58 He, Qisheng “The Territoriality of Intellectual Property in International Judicial Cooperation”, Modern Law Science 2022-04, pp. 78-88 Herrup, Paul;
Brand, Ronald A. “A Hague Convention on Parallel Proceedings”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2021-23, pp. 1-10 (available here) Herrup, Paul;
Brand, Ronald A. “A Hague Parallel Proceedings Convention: Architecture and Features”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2022-7, pp. 1-15 (available here) Himmah, Dinda Rizqiyatul “The Hague 2019 Foreign Judgments Convention: An Indonesian Private International Law Perspective”, Mimbar Hukum 34 (2022), pp. 618-648 (available here) Huang, Jie (Jeanne) “Enforcing Judgments in China: Comparing the Conference Minutes of the Supreme People’s Court with the Hague 2019 Judgments Convention”, ASIL:insights 2022-11, pp. 1-7 (available here) Huber, Peter “Blütenträume – Die Haager Konferenz und Haimo Schack”, in Sebastian Kubis, Karl-Nikolaus Peifer, Benjamin Raue, Malte Stieper (eds.), Ius Vivum: Kunst – Internationales – Persönlichkeit, Festschrift für Haimo Schack, Tübingen 2022, pp. 451-463 Jacobs, Holger “Der Zwischenstand zum geplanten Haager Anerkennungs- und Vollstreckungsübereinkommen – Der vorläufige Konventionsentwurf 2016“, Zeitschrift für Internationales Privatrecht & Rechtsvergleichung (ZfRV) 2017, pp 24-30 Jacobs, Holger “Das Haager Anerkennungs- und Vollstreckungsübereinkommen vom 2. Juli 2019 – Eine systematische und rechtsvergleichende Untersuchung“, Tübingen 2021 Jang, Jiyong “Conditions and Procedure for Recognition and Enforcement of Foreign Judgments”, Korea Private International Law Journal 2021-01, pp. 399-430 Jang, Junhyok “The Public Policy Exception Under the New 2019 HCCH Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 97-111 Jang, Junhyok “2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Korea Private International Law Journal 2019-02, pp. 437-510. Jang, Junhyok “Practical Suggestions for Joining the 2019 Judgments Convention and Its Implications for Korean Law and Practice”, Korea Private International Law Journal 2020-02, pp. 141-217 Jovanovic, Marko Thou Shall (Not) Pass – Grounds for Refusal of Recognition and Enforcement under the 2019 Hague Judgments Convention, YbPIL 21 (2019/2020), pp. 309 – 332 Jueptner, Eva “The Hague Jurisdiction Project – what options for the Hague Conference?”, Journal of Private International Law 16 (2020), pp 247-274 Jueptner, Eva “A Hague Convention on Jurisdiction and Judgments: why did the Judgments Project (1992-2001) fail?”, (Doctoral Thesis, University of Dundee, 2020) Kasem, Rouzana “The Future of Choice of Court and Arbitration Agreements under the New York Convention, the Hague Choice of Court Convention, and the Draft Hague Judgments Convention”, Aberdeen Student Law Review 10 (2020), pp. 69-115 Kessedjian, Catherine “Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?“, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 19-33 Khanderia, Saloni „The Hague judgments project: assessing its plausible benefits for the development of the Indian private international law”, Commonwealth Law Bulletin 44 (2018), pp 452-475 Khanderia, Saloni “The Hague Conference on Private International Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?”, Journal of African Law 63 (2019), pp 413-433 Khanderia, Saloni “The prevalence of ‘jurisdiction’ in the recognition and enforcement of foreign civil and commercial judgments in India and South Africa: a comparative analysis”, Oxford University Commonwealth Law Journal 2021 Kindler, Peter “Urteilsfreizügigkeit für derogationswidrige Judikate? – Ein rechtspolitischer Zwischenruf auf dem Hintergrund der 2019 HCCH Judgments Convention“, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 241-253 Konieczna, Kinga “Overview of the Ongoing Activities of the Hague Conference on Private International Law”, Gdanskie Studia Prawnicze 2022-01, pp. 67-77 (available here) Korkmaz, Abdullah Harun “Tanima-Tenfiz Hukukunda Yeni Egilimler: 2 Temmuz 2019 Tarihli Hukuki veya Ticari Konularda Yabanci Mahkeme Kararlar?nin Taninmasi ve Tenfizi Hakkinda Lahey Sözlesmesi”, Istanbul 2021

(New Trends in Recognition and Enforcement Law: The Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) Kostic-Mandic, Maja “Country Report Montenegro”, 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. 114-137 (available here) Krotkov, I. A.;
Sidorova, A.P. “On the Concept of the possible Ratification by the Russian Federation of the Convention of July 2019”, in Perm State University (ed.), First All-Russian Conference of Young Scientists on Actual Issues of the Development in Private Law and Civil Procedure (Perm 12 December 2020), Perm 2020, pp. 140- 142 (available here) Landbrecht, Johannes “Commercial Arbitration in the Era of the Singapore Convention and the Hague Court Conventions”, ASA Bulletin 37 (2019), pp. 871-882 (available here) Lee, Gyooho “The Preparatory Works for the Hague Judgment Convention of 2019 and its Subsequent Developments in terms of Intellectual Property Rights”, Korea Private International Law Journal 2020-02, pp. 85-140 Lee, Haemin “Parallel Proceedings and Forum Non Conveniens”, Korea Private International Law Journal 2022-12, pp. 141-217 pp. 141-207 Leible, Stefan; Wilke, Felix M. „Der Vertragsgerichtsstand im HAVÜ – Lehren aus Brüssel und Luxemburg?“, in Sebastian Kubis, Karl-Nikolaus Peifer, Benjamin Raue, Malte Stieper (eds.), Ius Vivum: Kunst – Internationales – Persönlichkeit, Festschrift für Haimo Schack, Tübingen 2022, pp. 710-722 Linton, Marie “Bristande delgivning som hinder för erkännande och verkställighet av utländska domar enligt 2019 års Haagkonvention”, in Marie Linton, Mosa Sayed (eds.), Festskrift till Maarit Jänterä-Jareborg, Uppsala 2022, pp. 189-203

“ Lack of service as an obstacle to the recognition and enforcement of foreign judgments under the HCCH 2019 Judgments Convention” Liu, Guiqiang “Limitation Period for the Enforcement of Foreign Judgments”, China Journal of Applied Jurisprudence 2020-04, pp. 109-124 Liu, Yang “Controversies over International Exclusive Jurisdiction of the Hague Jurisdiction Project and China’s Response”, Present Day Law Science 2022-05, pp. 91-102 Liu, Yang; Xiang, Zaisheng “The No Review of Merit Clause in the Hague Judgments Convention”, Wuhan University International Law Review
2020-05, pp. 44-65 Maistriaux, Léonard « La Convention de La Haye sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale. Lignes de force, état des lieux et perspectives pour la Belgique », Journal des Tribunaux (JT) 2022-12, pp. 181-187 Malachta, Radovan “Mutual Trust between the Member States of the European Union and the United Kingdom after Brexit: Overview”, in Jirí Valdhans (ed.), COFOLA International 2020: Brexit and its Consequences – Conference Proceedings, Brno 2020, pp. 39-67 (available here) Malatesta, Alberto “Circolazione delle sentenze tra Unione europea e Regno Unito : a favore di una cooperazione in seno alla Conferenza dell’Aja”, Rivista di diritto internazionale private e processuale (RDIPP) 57 (2021), pp. 878-898 Mammadzada, Aygun “Enhancing party autonomy under the Hague Convention on Choice of Court Agreements 2005: Comparative analysis with the 2012 EU Brussels Recast Regulation and 1958 New York Arbitration Convention”, (Doctoral Thesis, University of Southampton, 2022, available here) Mariottini, Cristina „Establishment of Treaty Relations under The 2019 Hague Judgments Convention“, YbPIL 21 (2019/2020), pp. 365-380 Mariottini, Cristina “The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, YbPIL 19 (2017/2018), pp 475-486. Martiny, Dieter “The Recognition and Enforcement of Court Decisions Between the EU and Third States”, in Alexander Trunk, Nikitas Hatzimihail (eds.), EU Civil Procedure Law and Third Countries – Which Way Forward?, Baden-Baden 2021, pp 127-146 Maude, L. Hunter “Codifying Comity: The Case for U.S. Ratification of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters”, Wisconsin International Law Review 38 (2021), pp. 108-138 Meier, Niklaus “Notification as a Ground for Refusal”, Netherlands International Law Review (NILR) 67 (2020), pp 81-95 Mills, Alex “Submission to the UK Ministry of Justice Consultation on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters” (Report, 2023) Muir Watt, Horatia “Le droit international privé au service de la géopolitique : les enjeux de la nouvelle Convention de la Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale”, Revue Critique de Droit International Privé 2020, pp. 427-448 Neels, Jan L. “Preliminary remarks on the Draft Model Law on the Recognition and Enforcement of Judgments in the Commonwealth” ” in Engela C Schlemmer and PH O’Brien (eds) Liber Amicorum JC Sonnekus, published as 2017 volume 5 (special edition) Tydskrif vir die Suid-Afrikaanse Reg / Journal of South African Law, pp. 1-9 Nielsen, Peter Arnt “The Hague 2019 Judgments Convention – from failure to success”, Journal of Private International Law 16 (2020), pp 205-246 Nielsen, Peter Arnt “A Global Framework for International Commercial Litigation”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 415-433 Nishimura, Yuko “Indirect Jurisdiction at the Place where the Immovable Property is situated in HCCH 2019 Judgments Convention”, Seinan Gakuin University Graduate School Research Review N°13, pp. 1-20 (available here) North, Cara “The 2019 HCCH Judgments Convention: A Common Law Perspective”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 202-210 North, Cara “The Exclusion of Privacy Matters from the Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 33-48 Oestreicher, Yoav “ ’We’re on a Road to Nowhere’ – Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments”, The International Lawyer 42 (2008), pp 59-86 Öhlund, Jonas ”2019 års Haagkonvention – ett globalt regelverk om erkännande och verkställighet av domar”, Svensk Juristtidning 2020, pp. 350-360 (available here) Okorley, Solomon “The possible impact of the Hague Convention on the Recognition and Enforcement of foreign Judgments in Civil or Commercial Matters on Private International Law in Common Law West Africa”, (Master’s Dissertation, University of Johannesburg, 2019; available: here) Okorley, Solomon “The possible impact of the 2019 Hague Convention on the Recognition and Enforcement of foreign Judgments in Civil or Commercial Matters on the Grounds of International Competence in Ghana”, University of Cape Coast Law Journal (UCC L. J.) 2022-01, pp. 85-112 (available here) Pasquot Polido, Fabrício B. “The Judgments Project of the Hague Conference on Private International Law: a way forward for a long-awaited solution”, in Verónica Ruiz Abou-Nigm, Maria Blanca Noodt Taquela (eds.), Diversity and integration in Private International Law, Edinburgh 2019, pp. 176-199 Pavlova, Olesia “The Judicial Convention: Question of Jurisdiction”, International Law 2023-01, pp. 70-82 (available here) Payan, Guillaume “Convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale”, in Hubert Alcarez, Olivier Lecucq (eds.), L’exécution des décisions de justice, Pau 2020, pp 167-183 Pertegás Sender, Marta “The 2019 Hague Judgments Convention: Its Conclusion and the road ahead”, in Asian Academy of International Law (publ.), Sinergy and Security: the Keys to Sustainable Global Investment: Proceedings of the 2019 Colloquium on International Law, 2019 Hong Kong, pp 181-190 (available here) Pertegás, Marta “Brussels I Recast and the Hague Judgments Project”, in Geert Van Calster (ed.), European Private International Law at 50: Celebrating and Contemplating the 1968 Brussels Convention and its Successors, Cambridge 2018, pp 67-82 Pocar, Fausto “Riflessioni sulla recente convenzione dell’Aja sul riconoscimento e l’esecuzione delle sentenze straniere”, Rivista di diritto internazionale private e processuale 57 (2021), pp. 5-29 Pocar, Fausto “Brief Remarks on the Relationship between the Hague Judgments and Choice of Court Conventions”, in in Magdalena Pfeiffer, Jan Brodec, Petr Bríza, Marta Zavadilová (eds.), Liber Amicorum Monika Pauknerová, Prague 2021, pp. 345-353 Pocar, Fausto “The 2019 Hague Judgments Convention: A Step into the Future or a Restatement of the Present?”, in Jonathan Harris, Campbell McLachlan (eds.), Essays in International Litigation for Lord Collins, Oxford 2022, pp. 71-84 Poesen, Michiel “Is specific jurisdiction dead and did we murder it? An appraisal of the Brussels Ia Regulation in the globalizing context of the HCCH 2019 Judgments Convention”, Uniform Law Review 26 (2021), pp. 1-13 Popov, Vasiliy “Grounds for Recognition and Enforcement of Foreign Judgments in Russia”, Issues of Russian Justice 15 (2021), pp. 137-152 Povlakic, Meliha “Country Report Bosnia and Herzegovina”, 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. 42-81 (available here) Qerimi, Donikë “Country Report Kosovo”, 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. 82-113 (available here) Qian, Zhenqiu “On the Common Courts Provision under the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Wuhan University International Law Review
2019-01, pp. 59-74 (available here) Qian, Zhenqiu;
Yang, Yu “On the Interpretation and Application of the Cost of Proceedings Provision under the Hague Judgment Convention”, China Journal of Applied Jurisprudence 2020-04, pp. 96-108 Reisman, Diana A. A. “Breaking Bad: Fail –Safes to the Hague Judgments Convention”, Georgetown Law Journal 109 (2021), pp. 880-906 Revolidis, Ioannis « From the ashes we will rise – recognition and enforcement of international judgments after the revival of the Hague Convention », Lex & Forum 4/2021 Reyes, Anselmo „Implications of the 2019 Hague Convention on the Enforcement of Judgments of the Singapore International Commercial Court”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 695-709 Ribeiro-Bidaoui, João “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 Rumenov, Ilija “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-404 Rumenov, Ilija “Country Report North Macedonia”, 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. 138-179 (available here) Rumenov, Ilija “The indirect jurisdiction of the 2019 Hague Convention on recognition and enforcement of foreign judgments in civil or commercial matters – Is the “heart” of the Convention”, SEELJ Special Edition No. 8 (2021), pp. 9-45 Sachs, Klaus;
Weiler, Marcus “A comparison of the recognition and enforcement of foreign decisions under the 1958 New York Convention and the 2019 Hague Judgments Convention”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 763-781 Saito, Akira “Advancing Recognition and Enforcement of Foreign Judgments: Developments of Inter-Court Diplomacy and New Hague Judgments Convention”, Kobe Law Journal 2019-03, pp. 59-110 (available here) Salim, Rhonson “Quo Vadis Consumer Dispute Resolution? – UK & EU Cross Border Consumer Dispute Resolution in the Post Brexit Landscape”, Revista Ítalo-Española De Derecho Procesal 2022-01, pp. 97-121 (available here) Sánchez Fernández, Sara “El Convenio de la Haya de Reconocimiento y Ejecución de Sentencias”, Revista Española de Derecho Internacional 73 (2021), pp. 233-252 Saumier, Geneviève “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 49-65 Schack, Haimo “Wiedergänger der Haager Konferenz für IPR: Neue Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens?“, Zeitschrift für Europäisches Privatrecht (ZeuP) 2014, pp 824-842 Schack, Haimo „Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 1-96 Schroeter, Ulrich G. “Rechtsschutz am Erfüllungsort im grenzüberschreitenden Warenhandel nach Lugano-Übereinkommen und Haager Übereinkommen 2019” (Jurisdiction of the courts at the place of performance in cross-border trade under the 2007 Lugano Convention and the 2019 Hague Convention – in German)
in: Claudia Seitz/Ralf Michael Straub/Robert Weyeneth (eds.), Rechtsschutz in Theorie und Praxis: Festschrift for Stephan Breitenmoser, Basel: Helbing Lichtenhahn (2022), 497–508 (available here) Senicheva, Marina “The Relevance and Problems of the Hague Convention of July 2, 2019 on the Recognition and Enforcement of Foreign Judgments Ratification by the Russian Federation”, Advances in Law Studies 8 (2020), online (available: here) Shan, Juan “A study on the Anti-trust Provisions in the 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. 318-335 Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 1)”, Journal of Russian Law No. 2020-07, pp. 170-186 (available here) Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 2)”, Journal of Russian Law No. 2020-11, pp. 140-54 (available here) Shen, Juan “Further Discussion on the Drafts of the Hague Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and Considerations from Chinese Perspective”, Chinese Review of International Law 2016-06, pp. 83-103 (available here) Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 Silberman, Linda “The 2019 Judgments Convention: The Need for Comprehensive Federal Implementing Legislation and a Look Back at the ALI Proposed Federal Statute”, NYU School of Law, Public Law Research Paper No. 21-19 (available here) Skvortsova, Tatyana Aleksandrovna;
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 (available here)

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)

 

I am on a break with the family until after Easter, hence only slowly treating myself to writing up blog posts. There are one or two in the queue, and I hope to be clearing them before long. ]

In C‑832/21 Beverage City & Lifestyle GmbH v Advance Magazine Publishers Inc. Richard de la Tour AG Opined a few weeks back. The claim is for trademark infringement between a US domiciled holder of an EU Trademark, and its EU suppliers in Poland and Germany. The AG suggest Article 8(1)’s joinder mechanism may apply in the case, provided the claimant in limine litis (at the start of proceedings) prove the anchor defendant’s role in the chain of infringements.

Background is the Union Trademark Regulation 2017/1001, which has separate rules on jurisdiction discussed in ia AMS Neve, however it leaves A8(1) Brussels Ia’s anchor defendant mechanism untouched.

(34) ff the AG uses the opportunity to clarify CJEU Nintendo,  with respect to Article 8)1)’s condition of ‘same situation in law’: the AG suggests the Court clarify that the application of different national laws as a result of intellectual property rights’ territorial scope, does not stand in the way of the situation being the same in law in the case of a Union trademark.

Next the AG discusses the issues also of relevance in ia CJEU C‑145/10 Painer, namely the question of sameness in fact, and argues for a flexible interpretation despite the defendants at issue not being contractually linked. He suggests inter alia that it would run against the intention of the Regulation to force the claimant into proving the anchor defendant be the main instigator of the infringement. Along similar lines, that the anchor defendant is not a corporation itself but rather one of its directors, with domicile in a different Member State, does not in the view of the AG prevent him being used as anchor defendant, provided (77) claimant prove at the start of proceedings that the director actively engaged in the infringement or should have known about it but did not stop it.

One can see merit in the AG’s approach in that it, as he also suggests, addresses the issue of abuse of the anchor defendant mechanism. On the other hand, this engagement with some of the merits of the case always raises the issue of how intensive that can /ought to be at the jurisdictional stage without leading to a ‘mini’ trial’. It may be preferable simply to hold that as a director of a corporation, one should not be surprised to be used as jurisdictional anchor for that corporation’s infringements, in one’s place of domicile.

Geert.

EU Private international law, 3rd ed. 2021, 2.482 ff.

Opinion Richard de la Tour this AM re anchor defendants, Article 8(1) Brussel Ia, infringement of Community Trademark

C‑832/21 Beverage City & Lifestyle GmbH v Advance Magazine Publishers Inc.https://t.co/yjOXA6OrbR

— Geert Van Calster (@GAVClaw) March 23, 2023

On 26 May 2023 the Center for the Future of Dispute Resolution (Ghent Univeristy) in collaboration with leading organizations, including ArbTech, Arbitrate.com, Cepani, Cepani40 CyberArb, MetaverseLegal, and UNCITRAL will bring together leading voices in technology and dispute resolution to discuss how blockchain, the metaverse and Web3 affects and will transform arbitration

The conference proposes five panels that will debate the impact of the blockchain, the metaverse and Web3 technologies on the fundamentals of arbitration and explore how arbitration practitioners and arbitration institutions have to adjust to stay relevant.

The blockchain, the Metaverse, and Web3 have become part of the conversation in the arbitration community, but few understand their true significance and potential impact. That is why this conference aims to explore how these technologies will transform arbitration and how practitioners and institutions can adapt to stay relevant.

The questions to be addressed are:

• Blockchain: what is it and (why) should the arbitration community care?
• Metaverse: what is it and (why) should the arbitration community care?
• Bringing down the house: How a new architecture (may) affect the fundamentals of arbitration
• A role and place for lawyers: Is the legal market prepared for this new dispute resolution constellation?
• Arbitration institutions in an era of decentralized spaces: on the cutting edge (or falling off)?

Additionally, UNCITRAL will present its insights and work in the area of blockchain and arbitration.

The list of confirmed speakers includes Mihaela Apostel, Pedro Arcoverde, Elizabeth Chan, Paul Cohen, Dirk De Meulemeester, David Earnest, Elizabeth Zoe Everson, Anna Guillard Sazhko, Wendy Gonzales, Emily Hay, Cemre Kadioglu Kumptepe, Crenguta Leaua, Matthias Lehman, Niamh Leinwather, Aija Lejniece, Maud Piers, Colin Rule, Sean McCarthy, Sophie Nappert, Ekaterina Oger Grivnova, Pietro Ortolani, Amy Schmitz, Takashi Takashima, David Tebel, Leandro Toscano, and Dirk Van Gerven.

The conference will take place at Ghent University (Belgium). Additional details related to the event and the speakers can be found here.

For registration, information can be found here.

On 9 March 2022, the CJEU ruled on the concept of “consumer” under Article 17(1)(c) of Brussels I bis Regulation (Wurth Automotive, Case C-177/22).

According to the CJEU, national court may take into account the “impression” created by a person’s conduct towards the other contracting party in order to deny the former consumer status. Behaving like a trader may therefore lead to the consumer being deprived of his/her procedural protection provided by Brussels I bis Regulation, Section 4. Although this solution is already found in the Gruber judgment (paras 51-52), the facts of this new case are quite different. It is therefore questionable whether the analogical reasoning followed by the Court is fully justified.

Facts and Issue

A person, domiciled in Austria bought a second-hand car over the Internet from a German seller. In practice, however, she had asked her partner, a provider of an online car sales platform, to handle the purchase for her. The contract mentioned that it was concluded between the buyer, described as a “trader” and the German seller. The buyer did not ask for any modification. A few months later, she brought an action for warranty of hidden defects against the German seller before the Austrian court.

Did the Austrian court have jurisdiction based on the consumer’s domicile pursuant to Article 18(1) Brussels I bis Regulation?  And to begin with, was there a “consumer” at all?

The German seller argued that the contract was a B2B contract and raised an objection to international jurisdiction. The Austrian court referred the matter to the Court of Justice to find out how to overcome the factual uncertainties surrounding the characterisation of the “consumer” in this case.

Classical Criterion: Private Consumption’s Purposes of the Contract

As recalled by the CJEU, the concept of consumer within the meaning of Article 17(1) of the Brussels I bis Regulation is based on the purposes (present or future) pursued by the conclusion of the contract. These purposes must be (for the most part) private or, put differently, for non-business use. The rest, in particular the professional status of the person (i.e., whether the person is employed or self-employed) does not matter. In the present case, the buyer was the regular web designer for her partner’s online car sales platform. The only question to be analysed by the referring court here is therefore whether this car was purchased for personal purposes or (mainly) for the pursuit of a professional activity.

Proof of the Private Consumption’s Purposes: From Objective Assessment to Behavioural Analysis

In order to ascertain the private purposes of the contract, the national court must first and foremost rely on the evidence which objectively results from the case in question. But what if this evidence is insufficient? According to the CJEU, the national court may take into account more subjective, “psychological” elements, by checking whether the alleged consumer’s behaviour gave the impression to the other party (i.e. the trader) that she was acting for business purposes.

Consequently, the Court of justice held that

even if the contract does not as such serve a non-negligible business purpose, … the individual must be regarded, in view of the impression he or she has given to the other party acting in good faith, as having renounced the protection afforded by those provisions (para 32, by analogy, Gruber, C‑464/01, para 53).

Hence, a B2C dispute can be removed from Section 4 of Brussels I bis Regulation by a form of “implied waiver” by the consumer.

How to Assess the Behaviour of the Customer?

In order to assess the behaviour of the buyer, the national court must rely on a body of evidence showing “the impression created by that person’s conduct on the other contracting party” (Section 2 of the operative part). In the case at hand, this impression could be revealed (inter alia) by a lack of a reaction on the part of the person relying on the status of consumer to the terms of the contract designating him or her as a trader, by the fact that she had concluded the contract through a professional intermediary in the field of covered by the contract (her partner) or by the fact that, after the contract was signed, the latter had asked the seller about the possibility of mentioning the VAT on the invoice (Section 2 of the operative part).

In addition, where it proves impossible to determine certain circumstances surrounding the conclusion of a contract, the national court must assess the evidentiary value of the available information “in accordance with the rules of national law, including whether the benefit of the doubt must be given to the person relying on the status of consumer” (Section 3 of the operative part). This is a classic expression of procedural autonomy in EU law. Even though the “consumer” within the meaning of Article 17 of the Brussels I bis Regulation is an autonomous concept of EU law, the national court’s assessment shall be based on the lex fori (within the limits of the principles of equivalence and effectiveness).

Critical Assessment

In contrast to the Gruber judgment, the present case did not involve a contract with a twofold private and professional purpose. It was thus not a question of assessing the “non-negligible business purpose” of the contract in order to exclude consumer procedural protection. Therefore, the consideration of the behaviour of the consumer acting as a trader does not have the same scope here as in Gruber. The CJEU is certainly aware of this since it insists on the “good faith” of the professional contractual party as a counterbalance (paras 34 and 37). The good faith of the other party is a necessary condition for denying the consumer his/her procedural protective regime, whereas in theory he/she should be entitled to it in the case of a contract concluded for entirely private purposes.

The implicit reason why the consumer may lose procedural protection is that traders need legal certainty in contractual matters. Either they are dealing with a consumer and they know (and can anticipate) that the consumer enjoys a favourable regime. Or they are doing business with a partner of their own category and party autonomy fully applies. Vis-à-vis a careless or negligent consumer who, inter alia, did not deny entering into the contract as a “trader”, it can be considered that his/her professional co-contracting party was not able to anticipate and integrate the “risk” of concluding a contract with a weaker party.

From a rational point of view, the solution can be approved. But based on the functional logic of consumerism, offering a derogatory regime to protect the weaker party, one may have a doubt. Was the poker player in the judgment Personal Exchange International (analysed here) more of a consumer than this buyer of a second-hand car? The methodology provided by the Court of Justice is not easy to handle and implies a tricky case-by-case analysis. It is therefore not sure that in the end legal certainty will really be strengthened.

Conventions & Instruments

On 1 March 2023, the 1993 Adoption Convention entered into force for Botswana. The Convention currently has 105 Contracting Parties. More information is available here.

On 8 March 2023, China deposited its instrument of accession to the 1961 Apostille Convention and Malta deposited its instrument of ratification of the 2000 Protection of Adults Convention during the meeting of the Council on General Affairs and Policy. The 1961 Apostille Convention, which has 124 Contracting Parties, will enter into force for China on 7 November 2023. The Convention is already in force in the Hong Kong and Macao Special Administrative Regions of the People’s Republic of China. The 2000 Protection of Adults Convention, which has 15 Contracting Parties, will enter into force for Malta on 1 July 2023. More information is available here.

On 9 March 2023, the 1961 Apostille Convention entered into force for Pakistan. The Convention currently has 124 Contracting Parties. More information is available here.

On 20 March 2023, the 1961 Apostille Convention entered into force for Senegal. The Convention currently has 124 Contracting Parties. More information is available here.

Publications & Documentation

On 6 March 2023, the Permanent Bureau published the Practical Guide to Access to Justice for International Tourists and Visitors. More information is available here.

On 8 March 2023, the Permanent Bureau published the HCCH 2022 Annual Report. More information is available here.

Meetings & Events

From 7 to 10 March 2023, the Council on General Affairs and Policy (CGAP) of the HCCH met in The Hague, with over 450 participants joining both in person and online. HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead in terms of normative, non-normative and governance work. More information is available here.

Among other important developments, during the meeting CGAP took the historic decision to adopt Spanish as an official language as of 1 July 2024, on which more information is available here. It also decided to recommend Dr Christophe Bernasconi to the Netherlands Standing Government Committee on Private International Law for the position of Secretary General, on which more information is available here.

On 22 March, the Regional Office for Asia and the Pacific of the HCCH hosted the webinar “HCCH 1961 Apostille Convention – Application and Future Prospects in the Asia Pacific Region”.

Upcoming Events

Registrations are open for the conference “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook”, which will be held in person on 9 and 10 June 2023 at the University of Bonn in Germany. More information is available here.

The desirability of adopting a French code of private international law in a field dominated by EU law is hotly debated in France.

In October 2022, the French Committee of Private International Law hosted a conference on the project. The text of the presentations is freely available here. The presentations were followed by a Q&A session where a number of French scholars expressed their criticism of the draft code and indeed of the entire project. The drafters of the code have since then responded in writing to these critiques.

Some of the criticisms voiced during this conference were since then published. They include an article by Dominique Bureau and Horatia Muir Watt and an article by Louis d’Avout.

CC Rainer Lück 1RL.de, https://commons.wikimedia.org/wiki/File:Bundesverfassungsgericht_IMGP1634.jpg

 

I.

Yesterday, on March 29, 2023, the German Constitutional Court published its long-awaited (and also long) decision on the German “Act to Combat Child Marriage” (Gesetz zur Bekämpfung von Kinderehen). Under that law, passed in 2017 in the midst of the so-called “refugee crisis”, marriages celebrated under foreign law are voidable if one of the spouses was under 18 at the time of marriage (art. 13 para. 3 no. 2 EGBGB), and null and void if they were under 16 (art. 13 para. 3 no. 1 EGBGB) – regardless of whether the marriage is valid under the normally applicable foreign law. In 2018, the German Federal Court of Justice refused to apply the law in a concrete case and asked the Constitutional Court for a decision on the constitutionality of the provision.

That was a long time ago. The wife in the case had been fourteen when the case started in the first instance courts; she is now 22, and her marriage certainly no longer a child marriage. And as a matter of fact, the Constitutional Court decision itself is  already almost two months old; it was rendered on February 1. This and the fact that the decision cites almost no sources published after 2019 except for new editions of commentaries, suggests that it may have existed as a draft for much longer. One reason for the delay may have been internal: the president of the Court, Stephan Harbarth, was one of the law’s main drafters. The Court decided in 2019 that he did not have to recuse himself, amongst others for the somewhat questionable reason that his support for the bill was based on political, not constitutional, considerations. (Never mind that members of parliament are obligated by the constitution also in the legislative process, and that a judge at the Constitutional Court may reasonably be expected to be hesitant when judging on the unconstitutionality of his own legislation.)

 

II.

In the end, the Court decided that the law is, in fact, unconstitutional: it curtails the special protection of  marriage, which the German Constitution provides, and this curtailment is not justified. The decision is long (more than sixty pages) but characteristically well structured so a summary may be possible.

Account to the Court, the state’s duty to protect marriage (art. 6 para. 1 of the Basic Law, the German Constitution) includes not only marriage as an institution but also discrete, existing marriages, and not only the married status itself but also the whole range of legal rules surrounding it and ensuing from it. Now, the Court has provided a definition of marriage as protected under the Basic Law: it is a union, in principle in perpetuity, freely entered into, equal and autonomously structured, and established by the marriage ceremony as a formalized, outwardly recognizable act. (Early commentators have spotted that “between one man and one woman” is no longer named as a requirement, but it seems far-fetched to view this as a stealthy inclusion of same-sex marriage within the realm of the Constitution.) The stated definition includes marriages celebrated abroad under foreign law. Moreover, it includes marriages celebrated at a very young age as long as the requirement is met that they were entered into freely.

A legislative curtailment of this right could be justified. But the legislator has comparably little discretion where a rule, as is the case here, effectively amounts to an actual impediment to marriage. Whether a curtailment is in fact justified is a matter for the classical test of proportionality: the law must have a proper and legitimate purpose; it must be suitable towards that purpose; it must be necessary towards that purpose; and it must be adequate (“proportional” in the narrow sense) towards the purpose, in that the balance between achieving the purpose and curtailment of the right must not be out of proportion.

Here, the law’s purposes themselves – the protection of minors, the public ostracization of child marriage, and legal certainty – isarelegitimate. The worldwide fight against child marriage is a worthy goal. So is the desire for legal certainty regarding the validity of specific marriages.

The law is also suitable to serve these purpose: the minor is protected from the legal and factual burdens arising from the marriage; the law may deter couples abroad from getting married (or so the legislator may legitimately speculate; empirical data substantiating this is not available.) A clear age rule avoids the uncertainty of a case-by-case ordre public analysis as the law prior to 2017 had required.

According to the Court, the measures are also necessary towards these purposes, because alternative measures would not be similarly successful. Automatic nullity of the affected marriages is more effective, and potentially less intrusive, than determining nullity in individual proceedings. It is also more effective than case-by-case determinations under a public policy analysis. And it offers better protection of minors than forcing them to go through a procedure aimed at annulling the marriage would.

Nonetheless, the Court sees in the law a violation of the Constitution: the measure is disproportionate to the curtailment of rights. That curtailment is severe: the law invalidates a marriage that the spouses may have considered valid, may have consummated, and around which they may have built a life. Potentially, they would be barred from living together although they consider themselves to be married.

The Court grants that the protection of minors is an important counterargument in view of the risks that child marriages pose to them. So is legal certainty regarding the question of whether a marriage is or is not valid.

But the legislation is disproportionate for two reasons. First, the law does not regulate the consequences of its verdict on nullity. So, not only does the minor spouse lose the legal protections of marriage, including the right to cohabitation; they also lose the rights arising from a proper dissolution of the marriage, including financial claims against the older, and frequently wealthier, spouse. These consequences run counter to the purpose of protecting the minor. Second, the law does not enable the spouses to carry on their marriage legally after both have reached maturity unless they remarry, and remarriage may well be complicated. This runs counter to the desire to protect free choice.

The court could have simply invalidated the law and thereby have gone back to the situation prior to 2017. Normally, substantive validity of a marriage is determined by the law of each spouse’s nationality (art. 13 para. 1 EGBGB). Whether that law can be applied in fact, is then a matter of case-by-case determinations based on the public policy exception (art. 6 EGBGB). That is in fact the solution most private international lawyer (myself included) preferred. The Court refused this simple solution with the speculation that this might have resulted in bigamy for (hypothetical) spouses who had married someone else under the assumption that their marriages were void. (Whether such cases do in fact exist is not clear.) Therefore, the Court has kept the law intact and given the legislator until June 30, 2024 to reform it. In the meantime, the putative spouses of void marriages are also entitled to maintenance on an analogy to the rules on divorce.

 

III.

The German Constitutional Court has occasionally ruled on the constitutionality of choice-of-law rules before. Its first important decision – the Spaniard decision of 1971 – dealt with whether the Constitution had anything to say about choice of law at all, given that choice of law was widely considered to be purely technical at the time, with no content of constitutional relevance. That decision, which addressed a Spanish prohibition on remarrying after divorce, already concerned the right to marry. Another, more recent decision held that a limping marriage, invalid under German law though valid under foreign law, must nonetheless be treated as a marriage for purposes of social insurance. Both decisions rear their heads in the current decision, forming a prelude to a constitutional issue that now resurfaces: the court is interested less in the status of marriage itself and more in the actual protections that emerge from a marriage.

The legal consequences of a marriage are, of course, manifold, and the legislator’s explicit determination that the child marriage should yield no consequences whatsoever is therefore far-reaching. (Konrad Duden’s proposal to interpret the act so as to restrict this statement to consequences that are negative for the minor is not discussed, unfortunately). Interestingly, the Court accords no fewer than one fifth of its decision, thirteen pages, to a textbook exposition of the relevance of marriage in private international law. Its consequences were among the main reasons for near-unanimity in the German conflict-of-laws field in opposition to the legal reform. Indeed, another fifth of the decision addresses the positions of a wide variety of stakeholders and experts –the federal government and several state governments, the Max Planck Institute for Comparative and International Private Law, a variety of associations concerned with the rights of women, children, and human rights as well as psychological associations. Almost all of them urged the Court to rule the law unconstitutional.

These critics will regard the decision as an affirmation, though perhaps not as a full one, because the Court, worried only about consequences, essentially upholds the legislator’s decision to void child marriages entered into before the age of sixteen. This is unfortunate not only because the status of marriage itself is often highly valuable to spouses, as we know from the long struggles for the acceptance of same-sex marriage rather than mere life partnership. Moreover, the result is the acceptance of limping marriages that are however treated as though they were valid. This may be what the Constitution requires. From the perspective of private international law, it seems slightly incoherent to uphold the nullity of a marriage on one hand and then afford its essential protections on the other, both times on the same justification of protecting minors. In this logic, the Court does not question whether the voiding of the marriage is generally beneficial to all minors in question. Moreover, in many foreign cultures, these protections are the exclusive domain of marriage. It must be confusing to tell someone from that culture that the marriage they thought was valid is void, but that it is nonetheless treated as though it were valid for matters of protection.

 

IV.

An interesting element in the decision concerns the Court’s use of comparative law. Germany’s law reform was not an outlier: it came among a whole flurry of reforms in Europe that were quite comprehensively compiled and analyzed in a study by the Hamburg Max Planck Institute (it is available, albeit only in German, open access). In recent years, many countries have passed stricter laws vis-à-vis child marriages celebrated under foreign law: France (2006), Switzerland (2012), Spain (2015), the Netherlands (2015), Denmark (2017), Norway (2007/2018), Sweden (2004/2019) and Finland (2019). Such reforms were successful virtue-signaling devices vis-a-vis rising xenophobia (not surprisingly, right-wingers in Germany have already come out again to criticize the Constitutional Court). Substantively, these laws treat foreign child marriages with different degrees of severity – the German law is especially harsh. However, comparative law reveals more than just matters of doctrine. Several empirical reports have demonstrated that foreign laws were not more successful at reducing the number of child marriages than was the German law, which is more a function of economic and social factors elsewhere than of European legislation. Worse, the laws sometimes had harmful consequences, not only for couples separated against their will, but even for politicians: in Denmark, one former immigration minister was impeached after reports by the Danish Red Cross of a suicide attempt, depression, and other negative psychosocial effects of the law on married minors. And surveys have shown that enforcement of the laws has been spotty in Germany and elsewhere.

The Constitutional Court did not need to pay much attention to these empirical reports. In assessing whether annulling foreign marriages was necessary, the Court did however take guidance from the Max Planck comparative law study, pointing out (nos 182, 189) that the great variety of alternative measures in foreign legislation made it implausible that the German solution – no possibility to validate a marriage at age eighteen – is necessary . This makes for a good example of the usefulness of comparative law – comparative private international law, to be more precise –  even for domestic constitutional law. If demonstrating that a measure is necessary requires showing a lack of alternatives, then comparative law can furnish both the alternatives as well as empirical evidence of their effectiveness. That comparative law can be put to such practical use is good news.

 

V.

The German legislator must now reform its law. What should it do? The Court has hinted at a minimal solution: consider these marriages void without exception, but extend post-divorce maintenance to them, and enable the couple to affirm their marriage, either openly or tacitly, once they are of age. In formulating such rules, comparative analysis of various legal reforms in other countries would certainly be of great help.

But the legislator may also take this admonition from the Constitutional Court as an impetus for a bigger step. Not everything that is constitutionally permissible is also politically and legally sound. The German reform was rushed through in 2017 in the anxiousness of the so-called refugee crisis. The same was true, with some modifications, of other countries’ reforms. What the German legislator can learn from them is not only alternative modes of regulation but also that these reforms’ limited success is not confined to Germany. This insight could spark legislation that focuses more on the actual situation and needs of minors than on the desire to ostracize child marriage on their backs. Such legislation may well reintroduce case-by-case analysis, something private international lawyers know not to be afraid of. This holds true especially in view of the fact that the provision does not regulate a mass problem but rather a relatively small number of cases which is unlikely to create excessive burdens on agencies and the judiciary. The legislator could also substitute the place of celebration for the spouses’ nationality as the relevant connecting factor for substantive marriage requirements, as the German Council for Private International Law, an advisor to the legislator, has already proposed (Coester-Waltjen, IPRax 2021, 29). This would make it possible to distinguish more clearly between two very different situations: couples wanting to get married in Germany (where the age restriction makes eminent sense) on the one hand, and couples who already got married, validly, in their home countries and find their actually existing marriage to be put in question. Indeed, this might be a good opportunity to move from a system that designates the applicable law to a system that recognizes foreign acts, as is the case already in some other legal systems.

In any case, the Court decision provides Germany with an opportunity to move the fight against child marriage back to where it belongs and where it has a better chance of succeeding – away from private international law, and towards economic and other forms of aid to countries in which child marriage would be less rampant if they were less afflicted with war and poverty.

 

 

 

 

 

 

 

The European Commission has published, on 29 March 2023, a Study to support the preparation of a report on the application of the Brussels I bis Regulation, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

The blurb reads as follows.

Regulation 1215/2012 (Brussels Ia Regulation) was adopted on 12 December 2012, entered into force on 9 January 2013, and started to apply from 10 January 2015 onwards. It aims to establish a uniform and comprehensive set of rules governing jurisdiction and the recognition and enforcement of judgments in cross-border civil and commercial matters. The scope of the Regulation encompasses a wide range of civil and commercial matters, including insurance, consumer, and employment contracts. It applies in all EU Member States. Since the adoption of the Regulation, several developments, such as the case-law of the CJEU, increased worker mobility, digitalisation, the adoption of new international instruments in the field of private international law (PIL) (such as the 2019 Hague Judgments Convention), the adoption of other EU instruments providing for PIL rules applicable in civil and commercial cross-border matters (such as the Maintenance Regulation or the Insolvency Regulation) are likely to have had an impact on its operation. In this context, the objective of the Study is to assist the Commission in preparing the report on the application of the Brussels Ia Regulation (as provided under its Article 79), and to provide a thorough legal analysis of the application of the Brussels Ia Regulation in the Member States. In particular, the Study aims to determine whether the Regulation is correctly applied in the Member States and to identify specific difficulties encountered in practice. The Study also aims to assess whether recent socioeconomic changes pose challenges to the application of Brussels Ia Regulation’s rules, definitions, and connecting factors. The analysis – based on desk research, CJEU and national case-law analysis and interviews at both the EU and national levels – covers 34 questions on the main legal and practical issues and questions arising from the application of the Brussels Ia Regulation.

The study, written by Milieu, is based on advice provided by Pedro de Miguel Asensio and Geert Van Calster, and draws on input from a team of national experts including Florian Heindler and  Markus Schober, Michiel Poesen, Dafina Sarbinova, Christiana Markou, Hana Špániková, Bettina Rentsch and Maren Vogel, Morten M. Fogt, Thomas Hoffmann and Karine Veersalu, Argyro Kepesidi Eduardo Álvarez-Armas, Katja Karjalainen, Virginie Rouas, Ivan Tot, Tamás Fézer, William Binchy, Laura Carpaneto and Stefano Dominelli, Yvonne Goldammer and Arnas Stonys, Vincent Richard, Aleksandrs Fillers, Emma Psaila, Kirsten Henckel, Anna Wysocka-Bar, Maria João E. de Matias Fernandes, Sergiu Popovici, David Jackson, Ela Omersa, and Natalia Mansella.

The report can be found here.

As many readers of the blog surely know already, the Unified Patent Court Agreement (UPC Agreement) will enter into force on 1 June 2023.

With this in mind, a 3-month Sunrise period started on 1 March 2023. From that date, an opt-out from the jurisdiction of the Court, as laid down in Article 83(3) of the UPC Agreement, can be filed. According to the provision, applicants for and proprietors of a “classic” European patent, as well as holders of a supplementary protection certificate (SPC) issued for a product protected by a “classic” European patent, can opt out their application, patent or SPC from the exclusive competence of the Court. As a result, the UPC will have no jurisdiction concerning any litigation related to this application, patent or SPC. The application to opt out can only be made via the Case Management System of the Court (CMS); the conditions are explained here. It should be noted that the opt-out will only become effective on the date of entry into force of the Agreement on a Unified Patent Court.

Filing a request to become a representative before the UPC, as per Article 48 of the Agreement, is also possible since 1 March 2023. Two categories are eligible to become representative before the UPC: lawyers authorised to practice before a court of a Contracting Member State  (Article 48(1) UPCA) and European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office and who have appropriate qualifications as per Article 48(2) UPCA and the European Patent Litigation Certificate Rules.

The first experiences with the live version of the Court’s Case Management System (CMS) have just been reported by the Registrar (a week before, Luxembourg launched a call for applications for administrative support staff at the Registry and Court of Appeal of the Unified Patent Court in Luxembourg, deadline ending soon, in case of interest. Other vacancies are posted here).

Just for the record: 24 EU Member States have signed the Agreement on a Unified Patent Court (Spain, Poland and Croatia have not). Initially, the UPCA will be in force in 17 states which have ratified the Agreement (Cyprus, Czech Republic, Greece, Hungary, Ireland, Romania, Slovakia have not). The unitary patent is the outcome of enhanced cooperation procedure; it was established via Regulation No 1257/2012 of 17 December 2012. In 2014, Regulation No 542/2014 was adopted amending Regulation No 1215/2012 as regards the rules on jurisdiction to be applied with respect to the Unified Patent Court (see consolidated version of the latter Regulation, whose Article 24(4) will still remain in force after 1 June 2023, albeit with a more limited scope of application).

For litigants embroiled in cross-border litigation, the anti-suit injunction has become a staple in the conflict of laws arsenal of common law courts. Its purpose being to restrain a party from instituting or prosecuting proceedings in a foreign country, it is regularly granted to uphold arbitration or choice of court agreements, to stop vexatious or oppressive proceedings, or to protect the jurisdiction of the forum court. However, what is a party to do if the foreign proceeding has already run its course and resulted in an unfavourable judgment? Enter the anti-enforcement injunction, which, as the name suggests, seeks to restrain a party from enforcing a foreign judgment, including, potentially, in the country of judgment.

Decisions granting an anti-enforcement injunction are “few and far between” (Ecobank Transnational Inc v Tanoh [2015] EWCA Civ 1309, [2016] 1 WLR 2231, [118]). Lawrence Collins LJ (as he then was) described it as “a very serious matter for the English court to grant an injunction to restrain enforcement in a foreign country of a judgment of a court of that country” (Masri v Consolidated Contractors International (UK) Ltd (No. 3) [2008] EWCA Civ 625, [2009] QB 503 at [93]). There must be a good reason why the applicant did not take action earlier, to prevent the plaintiff from obtaining the judgment in the first place. The typical scenario is where an applicant seeks to restrain enforcement of a foreign judgment that has been obtained by fraud.

This was the scenario facing the New Zealand High Court in the recent case of Kea Investments Ltd v Wikeley Family Trustee Limited [2022] NZHC 2881. The Court granted an (interim) anti-enforcement injunction in relation to a default judgment worth USD136,290,994 obtained in Kentucky (note that the order was made last year but the judgment has only now been released). The decision is noteworthy not only because anti-enforcement injunctions are rarely granted, but also because the injunction was granted in circumstances where the foreign proceeding was not also brought in breach of a jurisdiction agreement. Previously, the only example of a court having granted an injunction in the absence of a breach of a jurisdiction agreement was the case of SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599 (see Tiong Min Yeo “Foreign Judgments and Contracts: The Anti-Enforcement Injunction” in Andrew Dickinson and Edwin Peel A Conflict of Laws Companion – Essays in Honour of Adrian Briggs (OUP, 2021) 254).

Kea Investments Ltd v Wikeley Family Trustee Limited involves allegations of “a massive global fraud” perpetrated by the defendants – a New Zealand company (Wikeley Family Trustee Ltd), an Australian resident with a long business history in New Zealand (Mr Kenneth Wikeley), and a New Zealand citizen (Mr Eric Watson) – against the plaintiff, Kea Investments Ltd (Kea), a British Virgin Islands company. Kea alleges that the US default judgment is based on fabricated claims intended to defraud Kea. Its substantive proceeding claims tortious conspiracy and a declaration that the Kentucky judgment is not recognised or enforceable in New Zealand. Applying for an interim injunction, the plaintiff argued that “the New Zealand Court should exercise its equitable jurisdiction now to prevent a New Zealand company … from continuing to perpetrate a serious and massive fraud on Kea” (at [27]) by restraining the defendants from enforcing the US judgment.

The judgment is illustrative of the kind of cross-border fraud that private international law struggles to deal with effectively: here, alleged fraudsters using the Kentucky court to obtain an illegitimate judgment and, apparently, frustrate the plaintiff’s own enforcement of an earlier (English) judgment, in circumstances where the Kentucky court is unwilling (or unable?) to intervene because Kea was properly served with the proceeding in BVI.

Gault J considered that the case was “very unusual” (at [68]). Kea had no connection to Kentucky, except for the defendants’ allegedly fabricated claim involving an agreement with a US choice of court agreement and a selection of the law of Kentucky. Kea also did not receive actual notice of the Kentucky proceedings until after the default judgement was obtained (at [73]). In these circumstances, the defendants were arguably “abusing the process of the Kentucky Court to perpetuate a fraud”, with the result that “the New Zealand Court’s intervention to restrain that New Zealand company may even be seen as consistent with the requirement of comity” (at [68]).

One may wonder whether the Kentucky Court agrees with this assessment – that a foreign court’s injunction restraining enforcement of its judgment effectively amounts to an act of comity. In fact, Kea had originally advanced a cause of action for abuse of process, claiming that the alleged fraud was an abuse of process of the Kentucky Court. It later dropped the claim, presumably due to a recent English High Court decision (W Nagel (a firm) v Chaim Pluczenik [2022] EWHC 1714) concluding that the tort of abuse of process does not extend to foreign proceedings (at [96]). The English Court said that extending the tort to foreign proceedings “would be out of step with [its] ethos”, which is “the Court’s control of its own powers and resources” (at [97]). It was not for the English court “to police or to second guess the use of courts of or law in foreign jurisdictions” (at [97]).

Since Gault J’s decision granting interim relief, the defendants have protested the Court’s jurisdiction, arguing that Kea is bound by a US jurisdiction clause and that New Zealand is not the appropriate forum to determine Kea’s claims. The Court has set aside the protest to jurisdiction (Kea Investments Ltd v Wikeley Family Trustee Limited [2023] NZHC 466). The Court also ordered that the interim orders continue, although the Court was not prepared to make a further order that the defendants consent to the discharge of the default judgment and withdraw their Kentucky proceedings. This, Gault J thought, was “a bridge too far” at this interim stage (at [98]).

UBS’ bailout of Credit Suisse, arguably strong-armed by the Swiss State, will have had countless lawyers phoning investors, and countless investors lawyering up. I am no expert in banking and finance law, I am of course like everyone else aware that the anger is most visible in so-called AT1 bondholders. This blog is interested in the dispute resolution fall-out likely to rain down on various dispute resolution avenues for some time to come.

A quick flag that those considering litigation, will have a range of issues to ponder. Who to sue, for starters. The Swiss authorities might be a target, leading of course to considerations of immunity and, give the close involvement of the Swiss authorities in the rescue, of the qualification of the claims as ‘civil and commercial’ (echoes here of CJEU Kuhn etc, now under the Lugano Convention).

What litigation avenue to pursue, next: the bond holders will be subject to dispute resolution clauses, one imagines either with choice of court for Switzerland or providing for commercial arbitration. Depending on time and avenue of acquisition of the bonds, the holders may well argue they are not bound by such clauses, Further, a potential to use the route typically favoured by Swiss-headquartered multinationals, against other States: ISDS. Investor-State Dispute Settlement (with their ‘fork in the road’ provisions).

(Digital) Rolodexes the world over will be spinning by now. As and when this leads to litigation as suggested above, the blog will be reporting.

Geert.

 

 

On 21 April, Louvain-La-Neuve will be hosting a conference in honour of prof emeritus Marc Fallon. The general concept of the conference is included below (summary provided by prof Stéphanie Francq, one of the main organisers of the event). More info with full program and link for registration is here. This will be a thoughtFest for all interested in EU private international law and with working languages both English and French, it speaks to a broad audience.

Get thee to Louvain. Geert.

 

Why and for what purpose should European private international law be codified? This twofold question will be at the heart of the discussions on April 21, 2023, during a colloquium paying tribute to the remarkable work of Professor Marc Fallon in the fields of private international law and European law, and in particular to his involvement in the Belgian and European codification of private international law. How did we come to envisage a European codification of private international law? What do we expect from it? Does an EU codification have the same ambitions as national codifications? Do these ambitions not vary according to the place, the time and the context of international constraints imposed on the legislator? Does a codification at the European level, and at the present time, imply specific needs, challenges and consequences, even dangers, for both the national and the European legal orders? And above all, does it offer new prospects or hopes for the European project and for the discipline of private international law?

The European Commission has published in December 2022 an ambitious proposal for a new Regulation dealing with the private international law of parenthood (COM (2022) 695 final).

With this proposal, the EU could for the first time adopt a private international law instrument dealing with the creation (and not only the effects) of a family status. While both the CJEU and the ECtHR have somewhat limited the freedom enjoyed by States faced with parenthood established abroad, there is not yet any precedent of an international instrument dealing with all issues arising when parenthood crosses national borders.

The proposal is currently being discussed in the Council, with the assistance of the Commission. There is no guarantee that a Regulation will effectively be adopted. Nor is it possible to tell at this stage how much a future Regulation will deviate from the proposal.

The proposal raises, however, many intriguing questions which are likely to trigger an intense debate. It offers a unique opportunity to discuss the private international law treatment of parenthood with a special focus on the proposal.

During four sessions in May 2023, experts from various Member States will discuss the main elements of the proposal, find weaknesses and possibilities of improvement. Each webinar will start at 6 pm and end at 8 pm, and focus on two topics, each presented by one expert, who will discuss the content of the proposal and examine the questions and possible improvement it raises. There will be ample room for discussion.

The programme of the series is as follows:

• 3 May 2023, webinar chaired by Claire Fenton-Glynn: The EU Proposal on Parenthood: lessons from comparative and substantive law (Jens Scherpe), and What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss)
• 10 May 2023, webinar chaired by Fabienne Jault-Seseke: The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl), and The law governing parenthood: are you my father? (Tobías Helms)
• 17 May 2023, webinar chaired by Nadia Rustinova: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Ontanu), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi)
• 24 May 2023, webinar chaired by Steven Heylen: Authentic documents and parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: a passport for parents and children? (Ilaria Pretelli)

The series of webinars is organized by Cristina González Beilfuss (Universitat de Barcelona), Susanne Gössl (Universität Bonn), Ilaria Pretelli (Institut Suisse de Droit Comparé), Tobias Helms (Universität Marburg) and Patrick Wautelet (Université de Liège) under the auspices and with the support of EAPIL, the European Association of Private International Law.

A post on this blog will announce the opening of registrations in mid-April 2023 and provide further details.

For inquiries, please contact sgoessl@uni-bonn.de.

“A rose is a rose is a rose”, goes the famous quote. It indicates a basic, intuitive truth: the words we use to designate things usually have the ability to evoke a specific imagery and the mainstream understanding of the “essence” of such things. Usually: this specification is essential in current EU private international law (EUPIL), which is based on judicial cooperation – and therefore communication – among 27 different legal systems, with all the difficulties this might entail. In particular, in this Tower of Babbel of legal languages, some of the legal concepts used by uniform EUPIL Regulations may carry an avoidable ambiguity and present problematic gray areas, where “a rose” might intuitively be “a rose” for some Member States, while appearing like a totally different exotic flower to the eyes of others.

This post focuses on the problems raised by the notions of “judgment” or “decision”, which are in turn strictly linked to the notion of “court”. In this respect, the principle of autonomous interpretation of EUPIL concepts, as established by the CJEU since 1976, seems to have undergone a certain evolution, and more recent case law has lent a remarkably multifaceted character to the interpretive approach to shape the meaning of those notions.  The preliminary ruling handed down by the CJEU on 15th November 2022 in C-646/20, Senatsverwaltung für Inneres und Sport, as well as the fact of this case, are particularly relevant for this purpose.

The Root of the Problem

The uncertainties surrounding the meaning of the notion of “judgment” in EUPIL stem from two main factors.

The first trigger lies in the limited competences of the EU, whose legislative action is bound by the principles of conferral, subsidiarity and proportionality. As a result, large areas of the Member States’ private and procedural laws remain, to the present days, untouched by the process of EU harmonization or approximation, with domestic legislators maintaining high degrees of discretion in shaping their internal laws. This is not necessarily a problem for private international law (PIL), whose raison d’être is, precisely, legal diversity. The problem of characterisation – ie the alternative between lege fori and lege causae – is a leitmotif of PIL and has engaged scholars over centuries. The “real problem” arises when EU law forces the private international lawyer to think out of the box of this traditional alternative, with the CJEU having since long established that, in interpreting the legal notions used by EUPIL instruments, “reference must be made not to the law of one of the States concerned but, first, to the objectives and scheme of [each instrument] and, secondly, to the general principles which stem from the corpus of the national legal systems’. This is the famous LTU v Eurocontrol principle, set out by case 29/76, § 3. I will come back to this principle in a moment.

The second trigger of said “communication difficulties” is inherent to, and exacerbated by, the current structure of EU law in general, and of EUPIL in particular. In the latter, the EU legislator has notably adopted a piecemeal approach to harmonization. As a result, EUPIL is composed by a wide array of subject-specific Regulations, each having a limited material scope of application and covering a particular sub-area of civil law. While the legal notions used across different EUPIL instruments could, in principle, profit from the principle of inter-textual interpretation to receive similar meanings (cf Recitals 7 of the Rome I and Rome II Regulations), the CJEU has warned against a too liberal use if this approach. In C-45/13, Kainz, the Court held that the objective of consistency cannot, in any event, lead to interpreting the notions used by a specific Regulation in a manner which is unconnected to the scheme and objectives pursued by the concerned instrument (§ 20). This is to say that the meaning of uniform legal concepts used by several EU law Regulations could undergo important sectoral variations in accordance with the specific material scope, scheme of objectives of each of them.

This problem acquires a particular importance in relation to some notions, such as the concept of “judgment”, that are used cross-cuttingly by almost all EUPIL Regulations. In a previous post, I pointed to the ambiguity of the term ‘court’ and to the different drafting techniques (and wordings) adopted by the EU legislator with respect to statutory definitions thereof. The same reasoning could be extended to the (bordering) notions of ‘judgment’ or ‘decisions’. The CJEU acknowledged the disrupting effect of these two triggers in a judgment rendered in April 2022, where it remarked that, owing to the limited (material) scope of application of EUPIL Regulations, and lacking a complete unification of Member States’ laws, ‘certain types of proceedings and court judgments in one Member State do not necessarily have an equivalent in the other Member States’ (Case C-568/20, H Limited, commented on this blog here and here). This is precisely the problem of  the “exotic rose”.

The LTU Criteria under a Growing Pressure?

Case C-646/20, Senatsverwaltung für Inneres und Sport is a good example thereof. As previously reported on this blog (here, here and here), this case concerned the recognition, in a Member State (Germany) of the dissolution of a marriage established in an agreement between spouses and pronounced by a civil registrar of another Member State (Italy).

Born from the objective of easing the burden on the court system and making divorce procedures swifter in the most “unproblematic” cases of dissolution of marriage by mutual consent, the Italian rules on extra-judicial divorces caused some interpretive doubts in Germany, where the recognition of the resulting divorce deed was sought. Ultimately, the question raised by the referring German court cut down to the definition (and the outer boundaries) of the notions of ‘judgment’ and ‘court’ retained by the Brussels IIa Regulation. Consistently with the general principle set in LTU, the starting point of the reasoning is that no weight should be given, for these purposes, to the explicit characterization established under Italian law, which specifies that the agreement concluded before the civil registrar replaces judicial decisions relating, in particular, to the procedure for dissolution and termination of the civil effects of the marriage (§§ 22-23 of the judgment).

It is worth stressing that the field of family law presents a particular challenge for the “second prong” of the LTU principle, ie for the interpretative value of the “general principles stemming from the corpus of the national legal systems”.

The LTU judgment was handed down in 1976, within the framework of a much more limited EUPIL (limited to the 1968 Brussels Convention) and a much smaller and less “legally diverse” Community (made of just nine States, with all the parties to this Convention belonging to the civil law tradition, since  the UK, Ireland and Denmark only acceded to it in 1978). The possibility of identifying some “general principles”, common or at least familiar to all of those legal systems, was not, at the time, such a preposterous idea. Indeed, in the second prong of LTU, the Court seemed to draw inspiration from both Savigny’s idea of the community of law and Rabels’ comparative approach to characterization.

Several decades later, and within the framework of a much bigger and more diverse Union, the viability and practical usefulness of said approach could be doubted, especially with respect those branches of private (and civil procedural) law that are characterized by remarkable variations at the domestic level. Over the last decade, several Member States have undertaken wide-ranging (and non-coordinated) reforms in a variety of fields, such as debt recovery or divorce law and divorce proceedings, having adopted in this respect a variety of solutions.

Concerning the latter, a common denominator of divorce reforms consists in the momentum gained by extrajudicial divorces, which have been introduced by 9 Member States (see here for the complete legal references to these reforms). Besides this general common feature (the devolution of divorce proceedings to a non-judicial body), the system set in place by said reforms vary greatly from country to country.

Firstly, there is no common solution as concerns the identification of the (non-judicial) authority empowered to hear divorce proceedings. Portugal, Italy and Estonia have chosen to delegate such proceedings to the Civil Registry Office. In Estonia, this competence is shared with the notary. The notary is also the designated authority for Latvia, Romania, France, Greece, Spain and Slovenia. Secondly, there is no common take on the breath of the devolution of divorce proceedings to non-judicial authorities. It seems (this premise is essential given the language barrier and the scarce information available in English with respect to certain jurisdictions) that in some Member States, these non-judicial authorities exercise a mandatory and exclusive jurisdiction over divorce proceedings. This means, in practice, that there is no alternative (i.e., judicial) procedural avenue open to applicants who wish to get divorced by mutual consent.

Combined together, these factors make it particularly difficult to envision the existence of the “general principles stemming from the corpus of the national legal systems” in the field of (extrajudicial) divorce.

A Practical Guide to Deciphering the “Scheme and Objectives” of EUPIL Instruments

In the light of the above, it is not surprising  that, in Senatsverwaltung für Inneres und Sport, the CJEU relied primarily on the first prong of the LTU principle, that is the “scheme and objectives” of the Brussels IIa Regulation. In particular, this judgment is especially interesting for the way in which the Court approaches the assessment thereof:  this analysis proceeds through several steps, in which the Court mobilizes distinct interpretive elements to shed better light on the scheme and/or objectives of the Brussels Ia Regulation.

My impression is that this approach, and said elements, are deemed to acquire increasing importance in future cases, especially in areas where the second prong of the LTU principle – ie the “general principles stemming from the corpus of the national legal systems” – is not of much help owing to the uncoordinated and diverse evolution of the domestic laws of Member States.

These “general interpretive guidelines” can be summarized as follows:

1. The importance of the letter of the law (and of statutory definitions)

After having recalled the principle of autonomous interpretation of the notions used by the Brussels IIa Regulation, and particularly by its Articles 2 (4) and 21 (§ 41 of Senatsverwaltung für Inneres und Sport), the CJEU summarizes the general objectives pursued by this instrument (§§ 42-45).

The judgment places particular emphasis on the broad wording used by Article 2 (1) and (4) of these Regulation, pursuant to which “the term court shall cover all authorities in the Member States with jurisdiction in the matters falling within the scope of the [Brussels IIa] Regulation pursuant to Article 1”, whereas the notion of “judgment” shall include, inter alia, “a divorce…whatever the judgment may be called…”.

Siding on this point with the Opinion of AG Collins, who also referred to the wide definition of “judge” adopted by Article 2(2) (§ 35), the CJEU concluded that the Brussels IIa Regulation is “is capable of covering divorces which have been granted at the end of both judicial and extrajudicial proceedings, provided that the law of the Member States also confers jurisdiction in relation to divorce on extrajudicial authorities ”.

As I have already remarked elsewhere, however, EUPIL statutory definitions of “court” vary greatly from instrument to instrument, as concerns both their specific contents and the drafting technique (see a recap table here). This circumstance must be born in mind when trying to transplant interpretive solutions from one EUPIL instrument to another.

2. The importance of ‘inter-textual’ interpretation.

It is also significant to note that, in Senatsverwaltung für Inneres und Sport, the CJEU itself resorts to inter-textual interpretation. In that case, however, the Court adopts a “vertical”, rather than a “horizontal” approach: that is to say, reference is made not to EUPIL instruments covering tangential subject-matters, but to the evolution (if any) of a single instrument over time, through subsequent recasts.

In support of the broad reading of the notion of judgement resulting from the wording of Article 2(4), the CJEU referred to the considerably clearer stance taken on this point by the successor of Regulation 2201/2003 (§ 58). In particular, Recital 14 of the Brussels IIb Regulation states that “any agreement approved by the court following an examination of the substance in accordance with national law and procedure should be recognized or enforced as a decision”. On this point, the Court accepts the Commission’s submission whereby the Brussels IIb Regulation is no innovation in the pre-existing legal regime, its Recital 14 being therefore useful to clarify the notions used by the Brussels IIa Regulation (§ 61; see, in this respect, the opposite stance taken by the German Government, summarized in §§ 52 and 53 of the AG Opinion).

3. The importance of preparatory works.

While the “vertical” approach is, in theory, less risky than the “horizontal” one, insofar as it should not expose to the dangers of evoked by Kainz, it may require to invest considerable efforts in researching preparatory woks. Very often, the legislator’s intent is not clearly expressed by the initial Proposal made by the EU Commission, but emerges later on in the debates within the Parliament or in other exchanges held during the legislative process.

This was the case as concerns the definition of court in the Brussels IIb Regulation. Even though the Commission’s Proposal already made clear that the scope of the Recast should have been limited to matters of parental responsibility (and should therefore not have touched too much upon most of the general definitions set by Article 2) a political discussion about the notion of court topic took place and appeared for the first time in this document, well into the negotiation phase. An explicit proposal to include a Recital dedicated to this issue emerged later on (see this document).

In proceedings before the CJEU, important insights on the unfolding of the legislative process may come from the Commission’s observations, which are systematically filed in all EUPIL preliminary references (see here). Outside this specific context, however, researching the original intent of the EU legislator might be quite burdensome for the “average interpreter”, in cases where this intent does not clearly stand out in the Commission’s proposal.

4. The importance of the type of examination (on the merits) involved in extrajudicial proceedings.

As specifically concerns the notions of “judgment” or “decision”, and “court” or “tribunal”, the most important criterion used by the CJEU remains the assessment of the type of functions performed by the seized domestic authority.

This approach is used by the CJEU even outside the field of EUPIL (for example, in order to identify the “courts or tribunals” of a Member State for the purposes of Article 267 TFUE), with important sectoral variations. In fact, the Court has always stressed that the uniform meaning of these notions (and of “court” in particular) in EU Law must be fitted to the specific context in which they are called to operate.

In this respect, Senatsverwaltung für Inneres und Sport is no exception, as the most important in the clarification provided by Recital 14 of the Brussels IIb Regulation consists, precisely, in  the explicit identification of the constitutive element of a “decision” in the field of family law and parental responsibility. This “constitutive element” is of fundamental importance for distinguishing “decisions” from the two other types of legal acts contemplated by that Regulation, ie the “authentic instrument” on the one side, and the “agreements that are neither a decision nor an authentic instrument, but have been registered by a public authority competent to do so”, on the other side.

According to the CJEU, the decisive element in the definition of decision is the existence of a prior examination, made by or under the supervision of the competent (public) authority, of the substance of the matter. While the AG endeavored to demonstrate the substantial identity of the tasks performed by the authority conducting a procedure of divorce by mutual consent, which remain essentially the same in a judicial and in an extrajudicial setting (§ 41 of the Opinion), the CJEU focused on the substantive content of these tasks (§§ 54, 57 and 63-66).

What shall an “examination of the substance of the matter” entail, according to the Court?

First, referring to Solo Kleinmotoren, the CJEU reasserts that the competent authority “must retain control over the grant of the divorce”, which implies the examination of the content of the divorce agreement in the light of the applicable provisions of national law, with a view to verify whether the legal requirements set therein are satisfied, as well as the existence and validity of the spouses’ consent to divorce (§§ 54-55). This aspects marks an important difference between consensual divorces and other types of settlement which are “essentially contractual in nature”, as the tasks of the competent authority are limited to the “passive” recording of an agreement, without any examination of its content in the light of the legal provisions in force (§ 57).

Second, the Court attached specific importance to the binding nature of the agreement drafted by the Italian civil registrar (§ 63), as well as to the means and formalities for the examination of the validity and existence of the spouses’ consent (§ 64).

Combined with the analysis of the tasks relating to the examination of the content of the agreement in the light of the Italian legal provisions on extrajudicial divorces (§ 65), these elements led the CJEU to consider that the Italian Civil Registrar retained sufficient control over the grant of the divorce, the resulting agreement being therefore a “judgment” within the meaning of Article 2 (4) of the Brussels IIa Regulation, interpreted in the light of Recital 14 of the Brussels IIb Regulation.

5. The importance (if any) of practical and/or “political” considerations.

As seen above, the arguments drawn from the inter-textual interpretation of the Brussels Ia and Brussels IIb Regulations played a significant role in supporting the solution finally retained in Senatsverwaltung für Inneres und Sport. Such inter-textual reading  was deployed by the CJEU to reinforce the argument based directly on the “open-ended” statutory definitions set out by Article 2 of the Brussels IIa Regulation.

In this respect, the Court accepted the Commission’s view that, in adopting the newest Regulation, “the EU legislature was not seeking to innovate and introduce new rules, but only to ‘clarify’, on the one hand, the scope of the rule already laid down in Article 46 of the Brussels IIa Regulation and, on the other hand, the criterion for distinguishing the concept of ‘judgment’ from those of ‘authentic instrument’ and ‘agreement between the parties’, namely the criterion relating to the examination of the substance” (§61). As a result, the CJEU could hold that “that interpretation of the concept of ‘judgment’ cannot be invalidated by the fact that no Member State had yet made any provision in its legislation, at the time of the development and adoption of the Brussels IIa Regulation, for the option for spouses to divorce through extrajudicial means” and that this “interpretation follows directly from the broad and open definitions of the concepts of ‘court’ and ‘judgment’ referred to in Article 2(1) and (4) of that regulation” (§ 50).

This “temporal dimension” of the evolution of extrajudicial divorces across EU Member States was approached much more pragmatically by AG Collins. Without referring to the alleged continuity between the two Regulations, and deeming the latest Recast incapable of supporting “any conclusions…for the purposes of interpreting Regulation 2201/2003” (§ 54, last sentence), AG Collins derived a separate duty, for the judiciary, to interpret “clearly open” definitions set out by EU law “in the light of present day circumstances” (§ 54). “The law cannot cut itself from society as it is, and must not fail to adjust to it as quickly as possible, since it would otherwise risk imposing outdated views and adopting a static role”, he contended. Therefore, “in accordance with that view, EU law must be interpreted in a dynamic manner, in order to avoid it becoming ‘fossilised’”.

While the solution adopted the CJEU is to be appreciated for its strong foundations in the letter of the law and the clear legislative intent behind said EUPIL Regulations, the approach proposed by AG Collins is certainly alluring from an academic point of view. It is in fact indisputable that, at the time the Brussels Ia was adopted, no Member State had introduced extrajudicial divorces in its national legal order. Portugal was the first Member State to proceed in this sense, followed in 2010 by three additional Member States (Estonia, Romania and Latvia). Italy followed in 2014 with the procedure analyzed by the CJEU in Senatsverwaltung für Inneres und Sport, tailed by Spain (2015) and France (2016). Finally, in 2017, the new family law code of Slovenia and the Greek law No. 4509/2017 completed the current picture. Seen from this standpoint, it is quite clear that extrajudicial divorces have recently become a veritable legislative trend, which is slowly acquiring a pan-European dimension.

Against this evolving backdrop, AG Collins’ warning against the risks of a “fossilised” EUPIL, no longer suitable for the needs of its final users, reflected a serious concern and evokes the “political dimension” of this field of law remarked by Professor Kinsch in his Hague Academy Course. The latter is linked, among others, to a consistent rhetoric of the EU Commission, which tends to highlight the benefits and advantages that “mobile citizens” can derive from the unified and pan-European EUPIL regimes.

In this vein, the Commission’s initial Proposal for the Brussels IIb Regulation stressed that a Recast was needed in conformity with the objectives set by the Juncker Commission’s Political Guidelines. According to these Guidelines, judicial cooperation among EU Member States had to “be improved step by step keeping up with the reality of increasingly mobile citizens across the Union getting married and having children, by building bridges between the different justice systems and by mutual recognition of judgments, so that citizens can more easily exercise their rights across the Union”. In line with these objectives, the Commission is presenting the new rules as a tangible proof that “the EU works to protect our children and families, ensuring that Member States enforce each other’s judicial decisions” (see the promotional video available here). In particular, “considering the growing number of Member States which allow out-of-court agreements on legal separation and divorce or on matters of parental responsibility, the new rules will facilitate the circulation of [authentic] instruments and [out-of-court] agreements” (here).

In the end, this “pragmatic argument” based on the consideration that EUPIL should keep in touch with an evolving reality in order to serve properly the interests of its final intended users, found no space in the Senatsverwaltung für Inneres und Sport, but could hypothetically become an additional interpretive tool in future cases, in those field of substantive private law presenting a similar evolution.

 

As the American Society of International Law Annual Meeting approaches, the ASIL Private International Law Interest Group (PILIG) warmly invites you to a career talk featuring professional development in Private International Law.

• 2:00 PM-3:00 PM ET, Thursday 30 March
Venue: Embassy, Washington Hilton, 1919 Connecticut Ave NW, Washington, DC 20009

Neale Bergman, Attorney-Adviser, Office of the Legal Adviser (L/EB), U.S. Department of State
Milana Karayanidi, Counsel, Orrick
James Nafziger, Professor of Law, Vice-Chair, International Law Association (ILA)
Rekha Rangachari, Secretary-General, New York International Arbitration Center
David Stewart, Professor from Practice, Georgetown Law

This panel of seasoned experts will share their experiences and offer advice concerning career paths in international and particularly private international law fields, in areas such as research, government related work, dispute resolution, international development, and legal information. A short networking session will be offered to participants to further engage with speakers after the panel discussion.

In addition, we invite PILIG members, PILIG newsletter editors, and PILIG friends to join us for a casual happy hour gathering at the McClellan’s Sports Bar located at the Washington Hilton. Please find event details below:

• Happy Hour

4:00 PM- 5:00 PM ET, Thursday 30 March
Social & Networking Event
McClellan’s Sports Bar

No Host Bar
We hope to celebrate with you the conclusion of “pandemic years” while you enjoy ASIL’s excellent conference programs. We look forward to learning any PIL (and non-PIL) inspirations from you for the more exciting years to come. Everyone is welcome to stop by.

• PILIG newsletter editors recruiting 

We also invite scholars, practitioners, and students to contact us to become a PILIG newsletter editor.

ASIL Private International Law Interest Group Co-Chairs

Shu Shang <sshang@cpp.edu>

Jeanne Huang <jeanne.huang@sydney.edu.au>

The fourth issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. In addition to recent case law and other materials, it features five contributions.

Christian Kohler, Private International Law Aspects of the European Commission’s Proposal for a Directive on Slapps (“Strategic Lawsuits Against Public Participation”)

The Commission’s proposal for a Directive on SLAPPs (“Strategic lawsuits against public participation”) aims at protecting journalists and human rights defenders who engage in public debates from manifestly unfounded or abusive court proceedings with cross-border implications. Inter alia, it protects SLAPP defendants against judgments from third countries that would have been considered manifestly unfounded or abusive if they had been brought before the courts or tribunals of the Member State where recognition or enforcement is sought, and allows SLAPP defendants to seek compensation of the damages and the costs of the third country-proceedings before the courts of the Member State of his or her domicile. The article examines the conflicts rules in question and discusses the broader private international law context of the proposed Directive, in particular the rules of jurisdiction and the mosaic approach of the CJEU for the interpretation of Article 7(2) of Regulation Brussels Ia. In order to limit the forum shopping potential of the present rules on jurisdiction and applicable law in defamation cases, an intervention by the EU legislator should be envisaged. 

Pietro Franzina, Il Contenzioso Civile Transnazionale sulla Corporate Accountability (Cross-Border Civil Litigation on Corporate Accountability)

Civil proceedings are brought with increasing frequency against corporations for allegedly failing to prevent or mitigate the adverse impact of their activity on the protection of human rights and the environment. Most of these proceedings are initiated by non-governmental organisations whose activity consists in safeguarding or promoting the collective interests at issue, or otherwise benefit from support provided by such organisations. A cross-border element is almost invariably present in these proceedings, as they often involve persons from different countries and/or relate to facts which occurred in different States. Litigation in matters of corporate accountability is, distinctively, strategic in nature. The aim pursued by those bringing the claim does not consist, or at least does not only or primarily consist, in achieving the practical result that the proceedings in question are meant, as such, to provide, such as compensation for the prejudice suffered. Rather, the goal is to induce a change in the business model or industrial approach of the defendant (and, possibly, of other corporations in the same field or with similar characteristics) and increase the sustainability of their corporate activity at large. The paper gives an account of the factors that determine the impact of the described proceedings, that is, the ability of those proceedings to effectively prompt the pursued change. The analysis focuses, specifically, on the factors associated with the rules of private international law, chiefly the rules that enable the claimant to sue the defendant before the courts of one State instead of another. The purpose of the article is not to examine the latter rules in detail (actually, they vary to a large extent from one State to another), but to assess the strategic opportunities, in the sense explained above, that the rules in question may offer to the claimant, depending on their structure and mode of operation.

Lenka Válková, The Commission Proposal for a Regulation on the Recognition of Parenthood and other Legislative Trends Affecting Legal Parenthood

The developments in science and changing family patterns have given rise to many problems, including those of non-recognition of parenthood, which affects mostly children of same-gender parents and children in cases of surrogacy. The basic drivers of the current difficulties in recognising parenthood lie in the differences of the national rules on the establishment and recognition of parenthood and the lack of the uniform conflict rules and rules on recognition of judgments in the area of parenthood. Despite the numerous case-law of CJEU and ECtHR, which plays a crucial role in allowing flexibility in law with regard to parenthood, there is still no legal instrument which provides for a clear framework seeking to outline a consistent and systematic approach in this area. In 2021 and 2022 three important legislative actions have been taken. The Parenthood Proposal for a Regulation on jurisdiction, applicable law, recognition of decisions has been published on 7 December 2022. At the same time, the Final Report of the Experts Group on the Parentage/Surrogacy Project of the HCCH has been issued on 30 November 2022. Moreover, the Report on Review of the Implementation of the European Convention on the Legal Status of Children Born Out of Wedlock has been prepared in November 2021 as a preliminary step to a possible future update of the substantive law provisions of the Convention. All regulatory initiatives are addressed in this article, with a special focus on the Parenthood Proposal. In particular, this article offers a first appraisal of the Parenthood Proposal in light of other two legislative efforts and examines whether the works on international level may eliminate the need for an action concerning recognition of parenthood at EU level.

Stefano Dominelli, Emoji and Choice of Court Agreements: A Legal Appraisal of Evolutions in Language Methods Through the Prism of Art 25 Brussels Ia Regulation

Starting from the consideration that emoji and the alike are becoming increasingly common in computer-based communication, this article transposes current debates in material law surrounding emoji and their aptitude to express intent into the field of choice of court agreement through the prism of Art 25 Brussels Ia Regulation. The aim of this article is to develop some hypotheses and methods for the assessment of emoji in the conclusion of choice of court agreements.

Michele Grassi, Revocazione della Sentenza Civile per Contrasto con la Convenzione Europea per la Salvaguardia dei Diritti dell’uomo e delle Libertà Fondamentali (Revocation of a Civil Judgment for Conflict with the European Convention for the Protection of Human Rights and Fundamental Freedoms)

This article comments on the recent reform of the Italian Code of Civil Procedure, with a specific focus on the introduction of the possibility to seek revocation of a civil judgment conflicting with a decision of the ECtHR. The possibility to re-open proceedings in breach of the ECHR was not contemplated by the previous rules applicable to the matter, and the Italian Constitutional Court had excluded that the obligation of Contracting States to conform to the judgments of the ECtHR could imply the need to review national res judicata in civil or administrative law matters. Against this background, this article examines the new mechanism of review of national decisions introduced by the recent reform, pointing out that such mechanism has been designed to apply in limited circumstances and that, consistently with the reparatory perspective adopted by the Italian Constitutional Court, it gives little to no consideration to the obligation of cessation of international wrongful acts consisting in violations of human rights protected by ECHR.

Erik Sinander (Stockholm University) has published an article titled The Role of Foreseeability in Private International Employment Law in the first issue of the brand new Nordic Labour Law Journal.

The abstract reads as follows:

The EU’s private international employment law rules contain several measures intended to protect employees. Hence, unlike in the case of general contracts, one party (the employee) is given more forum shopping alternatives than the other (the employer), party autonomy is limited for employment contracts, and the objectively applicable law is based on the idea that the law of the place where labour is performed shall govern the contract. In this article, I argue that these protective measures are illusory and undermined in practice by the lack of foreseeability that is built into the choice of law rules. The conclusion of the article is that although it might be important to include protective measures in choice of law rules, the overarching principle for private international law rules should be to guarantee foreseeability. Paradoxically, EU private international employment law is highly unforeseeable, which, I argue, undermines the employee protection measures that are inserted into the EU private international employment law rules.

By Dr Benjamin Hayward

Those who enjoy playing video games as a pastime (though certainly not in the competitive esports environment) might take advantage of different forms of assistance when they find themselves stuck.  Once upon a time, they might have read up on tips and tricks printed in a physical video game magazine.  These days, they are more likely to head online for help.  They might seek out hints – tidbits of information that help point the gamer in the right direction, but that still allow them to otherwise work out a solution on their own.  They might use cheats – which allow the gamer ‘to create an advantage beyond normal gameplay’.  Otherwise, they might use a walkthrough – which, as the name suggests, might walk a player through the requirements of perhaps even ‘an entire video game’.

Despite initial appearances, these definitions do more than just tell us about recreation in general, and gaming culture in particular.  They also help us understand the state of play in relation to the Australian Consumer Law’s application to the digital economy, and, in turn, the ACL’s implications for international digital economy trade.

This video game analogy is actually very apt: gaming set the scene for recent litigation confirming the ACL’s application to off-shore video game vendors.  In the Valve case concerning the Steam computer gaming platform, decisions of the Federal Court of Australia and (on appeal) its Full Court confirmed that reach, via interpretation of the ACL’s s 67 conflict of laws provision.  The High Court of Australia denied special leave for any further appeal.  In the subsequent Sony Europe case, concerning the PlayStation Network, liability was not contested.  On the other hand, there was a live issue in Valve – at least at first instance – as to whether or not video games constitute ‘goods’ for the purposes of the ACL’s consumer guarantees.  The ACL’s statutory definition of goods includes ‘computer software’.  Expert evidence, not contested and accepted by the Federal Court, treated computer software as equivalent to executable files; which may work with reference to non-executable data, which is not computer software in and of itself.

Understanding the ACL’s definition of ‘goods’ has significant implications.  The ‘goods’ concept is a gateway criterion: it determines whether or not the ACL’s consumer guarantees apply, and in turn, whether it is possible to mislead consumers about the existence of associated rights.  So far as digital economy trade is concerned, case law addressing Australia’s regular Sale of Goods Acts confirms that purely-digital equivalents to traditional physical goods are not ‘goods’ at common law.  Any change to this position, according to the New South Wales Supreme Court, requires statutory intervention.  Such intervention did occur when the Trade Practices Act 1974 (Cth) transitioned into the Competition and Consumer Act 2010 (Cth).  Now, ‘computer software’ constitutes a statutory extension to the common law definition of ‘goods’ that would otherwise apply.

It is against all this context that a very recent decision of the Federal Court of Australia – ACCC v Booktopia Pty Ltd [2023] FCA 194 – is of quite some interest.  Whilst most of the decision is uncontroversial, one aspect stands out: the Court held, consistently with Booktopia’s admission, that eBooks fall within the scope of the ACL’s consumer guarantee protections.  This finding contributed to an AUD $6 million civil pecuniary penalty being imposed upon Booktopia for a range of breaches of the ACL.  But is it actually correct?  Whether or not that is so depends upon whether the statutory phrase ‘computer software’ extends to digital artefacts other than traditional desktop computer programs.  There is actually good reason, based upon the expert evidence tendered and accepted in the Valve litigation, to think not.

So what does the Booktopia case represent?  It could be a hint – an indication that will eventually lead us to a fully-explained understanding of the ACL’s wide reach across the digital economy.  In this sense, it might be a pointer that helps us to eventually solve this interpretative problem on our own.  Or it could be a cheat – a conclusion possibly justified in the context of this individual case given Booktopia’s admissions, but not generalisable to the ACL’s normal operation.  Either way, given the ACCC’s expressed view (not necessarily supported by the ACL’s actual text) that ‘[c]onsumers who buy digital products … have the same rights as those who shop in physical stores’, what we really need now is a walkthrough: a clear and reasoned explanation of exactly what ‘computer software’ actually means for the purposes of the ACL.  This will ensure that traders have the capacity to know their legal obligations, and will also allow Parliament to extend the ACL’s digital economy protections if its reach is actually limited in the way that my own scholarship suggests.

All of this has significant implications for international trade, as ‘many transfers’ of digital assets ‘are made between participants internationally’.  The increasing internationalisation and digitalisation of trade makes it imperative that this ambiguity be resolved at the earliest possible opportunity.  Since, in the words of the Booktopia judgment, ACL penalties ‘must be of an appropriate amount to ensure that [their] payment is not simply seen as a cost of doing business’, traders – including international traders – do need to know with certainty whether or not they are subject to its consumer protection regime.

 

Dr Benjamin Hayward
Senior Lecturer, Department of Business Law and Taxation, Monash Business School
Twitter: @LawGuyPI
International Trade and International Commercial Law research group: @MonashITICL

The latest edition of Dicey, Morris & Collins on the Conflict of Laws, jointly edited by The Rt Hon. the Lord Collins of Mapesbury and Professor Jonathan Harris KC (Hon.), was published by Sweet & Maxwell in September 2022. First published in 1896, Dicey, Morris & Collins on the Conflict of Laws is in its 16th edition. The publisher provides the following description for this pre-eminent treatise on private international law.

Dicey, Morris & Collins on the Conflict of Laws is renowned worldwide as the foremost authority on private international law. It explains the rules, principles and practice that determine how the law of England & Wales relates to other legal systems. Its commentary, Rules and illustrations, with detailed reference to international conventions, legislation and case law, ensures it remains an indispensable tool for practitioners engaged in cross-border matters. Across two volumes and a Companion Volume, it contains high-quality and detailed analysis. Volume 1 deals with general principles, the effects of withdrawal by the United Kingdom from the European Union, foreign affairs and the conflict of laws, procedural issues relating to international litigation, jurisdiction, recognition and enforcement of foreign judgments and arbitration. Volume 2 deals with a number of specific areas of law. It addresses family law, property law, succession and trusts, corporations and insolvency and the law of obligations. A Companion Volume considers in greater detail the transitional issues arising from the United Kingdom’s withdrawal from the European Union and the relevant EU legislation in a number of key areas.  Key Features 

• • Explains the rules, principles and practice that determine how the law of England and Wales relates to other legal systems. 
  • Volume 1 deals with general principles the effects of the withdrawal by the United Kingdom from the European Union, foreign affairs law, protective measures and international judicial cooperation, jurisdiction of English courts, recognition and enforcement of foreign judgments and international arbitration. 
  • Volume 2 covers family law, property law, succession and trusts, corporations and bankruptcy, contracts, torts, unjust enrichment and equitable claims, and foreign currency obligations.
  • Includes a new Part containing detailed analysis of Foreign Affairs and the Conflict of Laws, including expanded coverage of important developments in this area.
  • Includes detailed treatment of the Hague Convention on Choice of Court Agreements 2005.
  • Family law coverage includes important developments in respect of same-sex marriages, civil partnerships and surrogacy.
  • A Companion Volume explains in detail the transitional provisions relating to the withdrawal by the United Kingdom from the European Union and the relevant EU legislation in areas where those transitional issues will remain relevant for the foreseeable future, including on lis pendens, recognition and enforcement of foreign judgments, family law and insolvency.

New material in the Sixteenth edition: The new edition addresses all key developments, international conventions, legislation and case law since publication of the 15th edition in 2012. It includes the following significant developments 

• • Full analysis of the effects of the withdrawal by the United Kingdom from the European Union.
  • Detailed coverage of the Hague Convention on Choice of Court Agreements 2005.
  • Analysis of domestic legislation, including the Private International Law (Implementation of Agreements) Act 2020, important amendments to the Civil Jurisdiction and Judgments Act 1982 and a number of key statutory instruments.
  • A new Part containing detailed analysis of Foreign Affairs and the Conflict of Laws, including expanded coverage of important developments in this area.
  • Covers important developments in family law, including in respect of same-sex marriages, civil partnerships and surrogacy.
  • Detailed analysis of the many decisions of the Supreme Court, Privy Council, Court of Appeal and High Court and in other parts of the United Kingdom, Commonwealth and other jurisdictions.

Companion to the Sixteenth Edition The Companion Volume explains in detail the effects of the withdrawal by the United Kingdom from the European Union. It analyses the relevant transitional provision in the Withdrawal Agreement concluded between the United Kingdom and the European Union, as well as domestic legislation on transitional issues. It analyses the relevant EU law in areas likely to remain relevant for the foreseeable future, including in relation to lis pendens and the recognition and enforcement of judgments from EU Member States. It considers the relevant family legislation in the Brussels IIa and Maintenance Regulations. The Companion Volume also includes detailed coverage of relevant provisions of the recast Insolvency Regulation.

Further information is available here.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 30 March 2023 at 14:30 (Mexico City time – CST), 22:30 (CEST time). The topic of the webinar is Family law in England and Wales and cross-border problems and will be presented by Carolina Marín Pedreño, specialist in Family law and former president of the Westminster & Holborn Law Society (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/82391552268?pwd=dSt5K2V1elNvSURyVE1nOTB6M2p3dz09

Meeting ID: 823 9155 2268

Password: AMEDIP

Participation is free of charge.

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