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The Singapore-based Asian Business Law Institute (ABLI) has been engaging in work related to judgments recognition and enforcement in Asia for some time. This blog reported about the Institute’s publication of 2020 on the Asian Principles for the Recognition and Enforcement of Foreign Judgments.

ABLI is now joining hands with the Permanent Bureau of the Hague Conference on Private International Law for a joint webinar that will take place on on 27 July 2022 between 3 to 6pm (Singapore time).

Titled Cross-border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions, the webinar will comprise two sessions to take a holistic look at the Choice of Court and Judgments Conventions.

Attendees have the option of attending one or both sessions.

Invited speakers Sara Chisholm-Batten (Partner, Michelmores LLP), the David Goddard (Court of Appeal, New Zealand), Anselmo Reyes (International Judge, Singapore International Commercial Court), Nish Shetty (Partner, Clifford Chance LLP) and Dr Ning Zhao (Senior Legal Officer, HCCH) are expected to talk about the practical operations of the two Conventions, how they complement each other and whether the recent debate of the Choice of Court Convention is justified.

For more information or to register, click here. Early bird discount is available till 26 June. Queries about the webinar should be addressed to info@abli.asia.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published.  As always, it contains a number of insightful articles. Here are the authors, titles and abstracts:

Ralf Michaels, Peter Mankowski *11.10.1966 †10.2.2022

Katharina Pistor, Rechtsvergleichung zwischen Rechts- und politischer Ökonomie: am Beispiel des Unternehmensrechts (Legal and Political Economics in Comparative Perspective: the Case of Corporate Law)

Hardly another area of the law has seen as much interest in comparative analysis as corporate law, in particular the publicly traded corporation. The dialogue among legal academics from different legal systems was facilitated by the use of a non-legal language – that of transaction economics. It offered a unified standard for analyzing the pros and cons of different legal rules and models of corporate governance. Legal details remained largely under the radar. More recently, political scientists have discovered the corporation as an object of analysis and have emphasized the political economy that is represented by the establishment, development and function of the “corporation as a legal person”. This literature pays closer attention to the role of the state in corporate law but has neglected questions of comparative law. This paper argues that comparative law could and should assert itself between these two social sciences as a field that is devoted to describing and explaining the similarities and differences of legal institutions as a part of social systems.

Stefan Grundmann, Pluralistische Privatrechtstheorie – Prolegomena zu einer pluralistisch-gesellschaftswissenschaftlichen Rechtstheorie als normativem Desiderat (»normativer Pluralismus«) (Pluralist Private Law Theory: Prolegomena to a Pluralist and Social Science Oriented Legal Theory as a Normative Desideratum (“Normative Pluralism”))

Just how legal scholarship and legal practice should address the social sciences and other fields of inquiry is a vital question whose answer is informed by concerns of innovation, logic, and an understanding of law and jurisprudence. Law and economics is an efficient vehicle in this regard, an approach that in the USA is perhaps even dominant. The present article distinguishes between a monist interdisciplinary openness – vis-à-vis a neighbouring discipline that may indeed already have a particular goal and benchmark in mind – and a pluralist interdisciplinary openness. It identifies in the latter a disproportionately greater heuristic potential (in terms of all societal views). In a pluralist society, one that moulds pluralism into a constitutional requirement, the author sees a pluralist interdisciplinary openness as, above all, normatively superior and even mandated. It also seems better suited to the logic of jurisprudence: a discipline seeking balance in society. The article also addresses the biggest “drawback” of the approach, the unanswered and difficult question of how to determine hierarchizations. Adopting a value-tracking approach, the author proposes a mechanism embracing constitutionality and democracy as guiding legal principles.

Rolf Stürner, The ELI / UNIDROIT Model European Rules of Civil Procedure – An Introduction to Their Basic Conceptions

This contribution introduces the basic conceptions of the Model European Rules of Civil Procedure, which were affirmed by the European Law Institute, Vienna, and by UNIDROIT, Rome, in 2020. In its first part it describes the prior history of the project (ALI/UNIDROIT Principles of Transnational Civil Procedure, Storme Commission) and the history of the emergence of the Model Rules between 2013 and 2020. The following parts depict the organization and coordination of the common work in the various groups, an analysis of methodological questions arising in the context of harmonization of procedural law, a detailed presentation of important results of harmonization in fields of far-reaching convergence of national procedural laws, considerations about strong future trends of procedural design and their significance for different areas of civil procedure, and finally some remarks on innovative procedural developments taken into account by the Model Rules, with important examples in fields like collective proceedings and the financing of proceedings, or in the use of modern means of communication or artificial intelligence. The contribution also contains some cautious remarks on internal conditions associated with the emergence of the Model Rules that may have influenced its results.

Igor Adamczyk and Jakob Fortunat Stagl, Der Eigentumserwerb an Fahrnis im polnischen Recht (Transfer of Ownership in Movable Property under Polish Law)

This essay deals with the transfer of ownership under Polish law. The main question is whether Poland simply adheres to one of the classical models historically significant for this country – that of Austria, Germany, or France – or whether its system can be considered an original solution. The authors are convinced that one cannot analyse the transfer of ownership without considering the underlying contract. In particular, the passing of risk has to be considered in unison with the rules for the passing of ownership. These rules as a whole may seem syncretistic or “mixed”, yet they have to be understood as a genuine – Polish – system for the transfer of ownership.

The table of contents in German is available here.

HCCH 2019 Judgments Convention Repository

 

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 7 June 2022: New entries are printed bold.

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

 

I. Explanatory Reports

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

 

II. Bibliography

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

 

“Indirect jurisdiction and Swedish law – Analysis and inquiry of the jurisdiction of Swedish courts in relation to the 2019 Hague Convention on Recognition and Enforcement” Al-Jubouri, Zina Hazem “Modern trends for the recognition and enforcement of foreign judgments in civil and commercial matters accordance the 2019 Hague Convention”, Tikrit University Journal for Rights (TUJR) 2022-03, pp. 79-109 (available here) Amurodov, Jahongir “Some issues of Ratification of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019) by the Republic of Uzbekistan”, Uzbek Law Review 2020-03, pp. 11-116 (available here) Arslan, Ilyas “The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Uluslararasi Ticaret ve Tahkim Hukuku Dergisi 10 (2021), pp. 329-402 Badr, Yehya Ibrahim “The Hague 2019 Convention for the Recognition and Enforcement of Foreign Judicial Decisions: A Comparative Study”, International Journal of Doctrine, Judiciary, and Legislation (IJDJL) 2 (2021), pp. 427-468 (available here) Balbi, Francesca “La circolazione delle decisioni a livello globale: il rogetto di convenzione della Conferenza dell’Aia per il riconoscimento e l’esecuzione delle sentenze straniere” (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2019; available: here) Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul R. “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Beaumont, Paul;
Holliday, Jane (eds.) “A Guide to Global Private International Law”, Oxford 2022, forthcoming. Biresaw, Samuel Maigreg “Appraisal of the Success of the Instruments of International Commercial Arbitration vs. Litigation and Mediation in the Harmonization of the Rules of Transnational Commercial Dispute Settlement”, preprint (DOI:10.21203/rs.3.rs-953987/v1). 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), forthcoming (Draft 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, Wendy “Indirect Jurisdiction over the Recognition and Enforcement of Judgments of Foreign Courts in Compulsory Counterclaims”, Journal of Xingtai University 2019-04, pp. 106-110 Cheng, Xian-ping; Liu, Xian-chao “On the Application of the Severable Clause in The Hague Judgments Convention”, Harbin Normal University Social Science Journal 2021-05, pp. 30-34 Choi, Sung-Soo “Review of the several issues of the Convention on the Recognition and Enforcement of Foreign Judgments”, Gachon Law Review 14 (2021), pp. 37-68 (available here) Clavel, Sandrine ; Jault-Seseke, Fabienne “La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale : Que peut-on en attendre ?”, Travaux du comité français de Droit international privé, Vol. 2018-2020, Paris 2021 (Version provisoire de la communication présentée le 4 octobre 2019, available here) Clover Alcolea, Lucas “The 2005 Hague Choice of Court and the 2019 Hague Judgments Conventions versus the New York Convention – Rivals, Alternatives or Something Else?”, Mc Gill Journal of Dispute Resolution 6 (2019-2020), pp. 187-214 Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 Cong, Junqi “Reinventing China’s Indirect Jurisdiction over Civil and Commercial Matters concerning Foreign Affairs – Starting from the Hague Judgment Convention” (Master’s Thesis, National 211/985 Project Jilin University; DOI: 10.27162/d.cnki.gjlin.2020.001343) Contreras Vaca, Francisco José “Comentarios al Convenio de la Haya del 2 de julio de 2019 sobre Reconcimiento y Ejecución de Sentencias Extranjeras en materia civil y comercial”, Revista mexicana de Derecho internacional privado y comprado N°45 (abril de 2021), pp. 110-127 (available here) Cui, Zhenghao “On the Coordination between the Draft Convention on Judicial Sale of Ships and the related Conventions of the Hague Conference on Private International Law”, China Ship Survey 2021-04, pp. 65-68 Cuniberti, Gilles “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 DAV (German Bar Association) “Position Paper on the EU’s possible accession to the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of the Hague Conference on Private International Law”, Berlin 2020 (available here) de Araujo, Nadia ; de Nardi, Marcelo ;
Spitz, Lidia “A nova era dos litígios internacionais”, Valor Economico 2019 de Araujo, Nadia ;
de Nardi, Marcelo ;
Lopes Inez ;
Polido, Fabricio „Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34 de Araujo, Nadia ;
de Nardi, Marcelo „Consumer Protection Under the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 67-79 de Araujo, Nadia ;
de Nardi, Marcelo „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) 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) 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) 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 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 Goddard, David „The Judgments Convention – The Current State of Play”, Duke Journal of Comparative & International Law 29 (2019), pp 473-490 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 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) 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) 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 Liu, Guiqiang “Limitation Period for the Enforcement of Foreign Judgments”, China Journal of Applied Jurisprudence 2020-04, pp. 109-124 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 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 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 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 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) 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 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 rivate 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 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, forthcoming (E-pub ahead 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 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 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 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

Part 10: JCA 2021-09, pp. 40-46

Part 11: JCA 2021-10, pp. 48-54

Part 12: JCA 2022-01, pp. 45-52

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

 

As announced on this blog, the final conference of the DXB – Identities on the move – Documents cross borders will be held in Italy on 23-24 June 2022 and will be hosted at A.N.U.S.C.A.’s Academy in Castel San Pietro Terme (Bologna, Italy).

All interested scholars and registrars, public authorities and officials, lawyers and students are invited to take part to it for the outcomes of the research. This final event will offer an opportunity to become aware of the Regulation (EU) 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and to discover the strengths and the challenges of this still relatively unknown instrument. The conference will connect the scientific and applicative dimension of the Regulation, sharing, inter alia, the Commentary on the Regulation and an EU-wide Comparative Survey placing the Regulation into the context of daily national practice.

The event will be held in person, in compliance with health safety regulations, and will also be broadcast online in live streaming for free. Deadline registration for on-line attendance is 21 June 2022 and working languages of the conference will be English, German and Italian.

The Conference programme is available here and includes as speakers Maria Caterina Baruffi, Elsa Bernard, Giacomo Biagioni, Laura Calafà, Matteo Caldironi, Renzo Calvigioni, Cristina Campiglio, Giacomo Cardaci, Gregor Christandl, Mădălina Cocoșatu, Diletta Danieli, Sanjay Dharwadker, Ester di Napoli, Ornella Feraci, Caterina Fratea, Marco Gerbaudo, Susanne Gössl, Paride Gullini, Steve Heylen, Marion Ho-Dac, Fabienne Jault-Seseke, Eva Kaseva, Dafni Lima, Balwicka-Szczyrba Małgorzata, Francesca Maoli, Claudia Elena Marinică, Martina Melcher, Dominik Damian Mielewczyk, Nicolas Nord, Guillermo Palao Moreno, Lina Papadopoulou, Paolo Pasqualis, Paul Patreider, Cinzia Peraro, Stefania Pia Perrino, Marco Poli, Camille Reitzer, Simon Rijsdijk, Alexander Schuster, Sharon Shakargy, Nicole Sims, Thomas Stigari, Anna Sylwestrzak, Marie Vautravers, Rob van der Velde, Jinske Verhellen and Brody Warren.

If you have any questions or inquiries, please write an email to info@identitisonthemove.eu.

As previously announced, the Journal of Private International Law-Singapore Management University Virtual Conference on Conflicts of Jurisdiction will be held online on 23 to 24 June 2022 (6.00 pm to 10.20 pm Singapore time, 11.00 am to 3.20 pm British Summer Time on each day). The event is supported by the Hague Conference on Private International Law (HCCH). Complimentary registration for academics, government and international organisation officials, JPrivIntL Advisory Board members and students will close on 22 June 2022. More information on the conference and the link to register can be found here.

In the context of the Vici project Affordable Access to Justice at Erasmus School of Law (financed by the Dutch Research Council – NWO), the project team has organised a series of seminars titled Trends and Challenges in Costs and Funding of Civil Justice.

The concluding seminar in the series will take place on 22 June 2022, on the Future Regulation of Third-Party Litigation Funding.

The seminar, opened by Xandra Kramer and Geert Van Calster, will feature two sessions. The first session, on the current status and the need for further regulation, will include a stakeholder roundtable moderated by Xandra Kramer with the participation of Paulien van der Grinten, Johan Skog and David Greene. The second session, on modes and levels of regulation, chaired by Eva Storskrubb, will include a panel discussion involving Kai Zenner, Tets Ishikawa, Victoria Sahani and Albert Henke.

Attendance is possible in person and online. The programme is available here.

The Grand Chamber of the CJEU delivered today its judgment in case C‑700/20 (London Steam-Ship Owners’ Mutual Insurance Association Limited v Kingdom of Spain), which is about Article 34 Brussels I:

“1. Article 34(3) of Council Regulation (EC) No 44/2001 […] must be interpreted as meaning that a judgment entered by a court of a Member State in the terms of an arbitral award does not constitute a ‘judgment’, within the meaning of that provision, where a judicial decision resulting in an outcome equivalent to the outcome of that award could not have been adopted by a court of that Member State without infringing the provisions and the fundamental objectives of that regulation, in particular as regards the relative effect of an arbitration clause included in the insurance contract in question and the rules on lis pendens contained in Article 27 of that regulation, and that, in that situation, the judgment in question cannot prevent, in that Member State, the recognition of a judgment given by a court in another Member State.

2. Article 34(1) of Regulation No 44/2001 must be interpreted as meaning that, in the event that Article 34(3) of that regulation does not apply to a judgment entered in the terms of an arbitral award, the recognition or enforcement of a judgment from another Member State cannot be refused as being contrary to public policy on the ground that it would disregard the force of res judicata acquired by the judgment entered in the terms of an arbitral award”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=261144&text=&dir=&doclang=EN&part=1&occ=first&mode=DOC&pageIndex=0&cid=4584727

AG Szpunar delivered last week (16 June 2022) his opinion in case C‑265/21 (AB, AB-CD v Z EF), which is about Article 5 Brussels I. The opinion is available in the vast majority of EU official languages (save notably German), albeit not in English. Here is the French version:

« 1) L’article 5, point 1, du règlement (CE) nº 44/2001 […] doit être interprété en ce sens que son application présuppose la détermination d’une obligation juridique librement consentie par une personne à l’égard d’une autre et sur laquelle se fonde l’action du demandeur, même lorsque cette obligation ne lie pas directement les parties au litige. Dans le cadre de l’interprétation de cette disposition, la juridiction nationale doit veiller au respect de l’équilibre entre l’objectif de prévisibilité et de sécurité juridique et celui de proximité et de bonne administration de la justice.

2) Aux fins d’apprécier le fondement d’une action en vue de déterminer si elle relève de la « matière contractuelle », au sens de l’article 5, point 1, du règlement nº 44/2001, la juridiction saisie n’est pas tenue d’examiner, au stade de la vérification de la compétence, l’obligation contractuelle ou, le cas échéant, le contenu du ou des contrats en cause. Afin de vérifier si les conditions essentielles de sa compétence sont remplies, cette juridiction identifie uniquement les points de rattachement avec l’État du for justifiant sa compétence en vertu de cette disposition et apprécie tous les éléments dont elle dispose, notamment les allégations pertinentes du demandeur quant à la nature des obligations sur lesquelles se fonde son action et, le cas échéant, les contestations émises par le défendeur. La circonstance que l’action en cause au principal est une action en reconnaissance d’un droit de propriété est sans incidence sur le fait que cette action relève de la « matière contractuelle » et, partant, sur l’application de l’article 5, point 1, du règlement nº 44/2001.

3) L’action en reconnaissance d’un droit de propriété portant sur un bien meuble, lorsqu’elle est fondée sur deux contrats qui ne lient pas directement les parties au litige, relève de la « matière contractuelle », au sens de l’article 5, point 1, du règlement nº 44/2001. Le contrat à prendre en compte pour déterminer le lieu de l’obligation qui sert de base à la demande est le contrat original faisant l’objet du litige ».

Source : https://curia.europa.eu/juris/document/document.jsf?text=&docid=261006&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=4632834

This morning, the CJEU has pronounced on the interplay between the Brussels I bis Regulation and arbitration, this time in the context of the recognition in the UK of a judgment given by a Spanish court.

I. Facts

This case C-700/20 results from the event taking place two decades ago. Some of you may recall that in November 2002, the Greek-owned and Bahamas-operated oil tanker Prestige encountered a storm in the seas close to Galicia coast in Spain. Being damaged, the tanker eventually sunk leaving oil spill and causing significant damage to northern coast of Spain and the western coast of France.

The Spanish state and some other parties sought damage compensation, in the context of the criminal proceedings before the Audiencia Provincial de A Coruña commenced against the master, owners, and the London P&I Club, the liability insurer of both the vessel and its owners, in 2003. In 2012, the London P&I Club commenced arbitration proceedings in London seeking a declaration that, pursuant to the arbitration clause in the insurance contract concluded with the owners of the Prestige, the Spanish state was required to pursue its claims in the arbitration proceedings, and that it could not be liable to the Spain in respect of those claims due to the ‘pay to be paid’ clause.

The arbitration was quicker and the award was made in 2013, upheld the claims also limiting the the London P&I Club’s liability up to USD 1 billion. The P&I Club applied to the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court), under Section 66 (1) and (2) of the Arbitration Act 1996, for leave to enforce the arbitral award in that jurisdiction in the same manner as a judgment or order and for a judgment to be entered in the terms of that award. The leave was granted in 2013 along with a judgment in the terms of the award.

The Spanish proceedings ended in 2018 by the judgment of the Tribunal Supremo whereby it confirmed that the master, ship owners and the P&I Club were liable to over 200 parties, including the Spanish state, subject, in the case of the P&I Club, to the contractual limit of liability of USD 1 billion. In 2019, the Audiencia Provincial de A Coruña issued an order setting out the amounts that each of the claimants was entitled to obtain from the respective defendants, entitling the Spanish State to be paid approximately EUR 2.3 billion, subject in the case of the P&I Club to the limit of EUR 855 million. Soon after, the Spanish state made an application to the High Court of Justice (England & Wales), Queen’s Bench Division, on the basis of Article 33 of the Brussels I Regulation, for recognition of the latter enforcement order. Slightly prior to the expiration of the Brexit transition period, the UK court made a reference for preliminary ruling concerning the Brussels I Regulation, Article 1(2)(d) – exclusion of arbitration, and Article 34(1) and (3) – grounds for refusal of recognition and/or enforcement.

II. The Issues

At issue was whether that recognition or enforcement could be refused on the basis of the existence, in the UK, of a judgment entered in the terms of an arbitral award and the effects of which are irreconcilable with those of the abovementioned judicial ruling (first and second question). And, if not, whether recognition or enforcement may be refused as being contrary to public policy on the ground that it would disregard the force of res judicata acquired by the judgment entered in the terms of an arbitral award (third question).

III. Decision and Reasoning

Not following the opinion of AG Collins delivered in May this year, the CJEU held that a judgment entered by a court of a MS (in this case, UK) in the terms of an arbitral award cannot prevent the recognition there of a judgment given in another MS (in this case, Spain) where a judicial decision resulting in an outcome equivalent to the outcome of that award could not have been adopted by a court of the first MS without infringing the provisions and the fundamental objectives of the Brussels I Regulation. In the case at hand, this means that the Spanish judgment could have been refused recognition and enforcement only if the UK judgment entered by the UK court in the terms of an arbitral award could have been adopted by a UK court without infringing the provisions and the fundamental objectives of that Regulation.
However, the CJEU went on to explain that such fundamental objectives include the principles of free movement of judgments in civil matters, predictability as to the courts having jurisdiction and therefore legal certainty for litigants, sound administration of justice, minimisation of the risk of concurrent proceedings, and mutual trust in the administration of justice (para. 56). It added another requirement –that such judgment should not violate the right to an effective remedy guaranteed in Article 47 of the EU Charter of Fundamental Rights (para. 58).

Turning to the facts of the case, the CJEU concludes that the respective UK judgment could not have been rendered on the basis of the Brussels I Regulation without infringing two fundamental rules of the Regulation: first, the rule on the relative effect of an arbitration clause included in an insurance contract which does not extend to claims against a victim of insured damage who bring a direct action against the insurer, in tort, delict or quasi-delict, before the courts for the place where the harmful event occurred or before the courts for the place where the victim is domiciled and, second, the rule on lis pendens which coordinates parallel proceedings based on the priority principle favouring the court first seised.

In answering the third question, the CJEU has relied on the opinion of the AG Collins, who stated the EU legislature intended to regulate exhaustively the issue of the force of res judicata acquired by a judgment given previously and, in particular, the question of the irreconcilability of the judgment to be recognised with that earlier judgment by means of Article 34(3) and (4) of the Brussels I Regulation, thereby excluding the possibility that recourse be had, in that context, to the public-policy exception set out in Article 34(1) of that Regulation. Therefore, res judicata cannot be contained in the notion of public policy for the purpose of recognition and enforcement of judgments under Article 34 of the Brussels I Regulation.

Undoubtedly, this judgment will provoke different reactions, but one thing is certain this is a one-hit wonder in UK given that UK is no longer bound by the Brussels regime.

The CJEU judgment has been made availalbe online yet, but the CJEU issued the Press Release.

First Instance where a Mainland China Civil Mediation Decision has been Recognized and Enforced in New South Wales, Australia

 

I Introduction

 

Bank of China Limited v Chen [2022] NSWSC 749 (‘Bank of China v Chen’), decided on the 7 June 2022, is the first instance where the New South Wales Supreme Court (‘NSWSC’) has recognised and enforced a Chinese civil mediation decision (i.e.,?????).

 

II Background

 

This case concerned the enforcement of two civil mediation decisions obtained from the People’s Court of District Jimo, Qingdao Shi, Shandong Province China (which arose out of a financial loan dispute) in Australia.[1]

 

A foreign judgement may be enforced in Australia either at common law or pursuant to the Foreign Judgements Act 1991(Cth).[2] As the People’s Republic of China is not designated as a jurisdiction of substantial reciprocity under the Foreign Judgements Regulation 1992 (Cth) schedule 1, the judgements of Chinese courts may only be enforced at common law.[3]

 

For a foreign judgement to be enforced at common law, four requirements must be met:[4] (1) the foreign court must have exercised jurisdiction in the international sense; (2) the foreign judgement must be final and conclusive; (3) there must be identity of parties between the judgement debtor(s) and the defendant(s) in any enforcement action; and (4) the judgement must be for a fixed, liquidated sum. The onus rests on the party seeking to enforce the foreign judgement.[5]

 

Bank of China Ltd (‘plaintiff’) served the originating process on Ying Chen (‘defendant’) pursuant to r 11.4 and Schedule 6(m) of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) which provides that an originating process may be served outside of Australia without leave of the court to recognise or enforce any ‘judgement’.[6] Central to this dispute was whether a civil mediation decision constituted a ‘judgement’ within the meaning of schedule 6(m).

 

III Parties’ Submission

 

A Defendant’s Submission

 

The defendant filed a notice of motion seeking for (1) the originating process to be set aside pursuant to rr 11.6 and 12.11 of the UCPR, (2) service of the originating process on the defendant to be set aside pursuant to r 12.11 of the UCPR and (3) a declaration that the originating process had not been duly served on the defendant pursuant to r 12.11 of the UCPR.[7]

 

The defendant argued that the civil mediation decisions are not ‘judgements’ within the meaning of UCPR Schedule 6(m).[8] Moreover, the enforcement of foreign judgment at common law pre-supposes the existence of a foreign judgement which is absent in this case.[9]

 

The defendant submitted that the question that must be asked in this case is whether the civil mediation decisions were judgements as a matter of Chinese law which is a question of fact.[10] This was a separate question to whether, as a matter of domestic law, the foreign judgements ought to be recognised at common law.[11]

 

B Plaintiff’s Submission

 

In response, the plaintiff submitted that all four common law requirements were satisfied in this case.[12] Firstly, there was jurisdiction in the international sense as the defendant appeared before the Chinese Court by her authorised legal representative.[13] The authorised legal representative made no objection to the civil mediation decisions.[14] Secondly, the judgement was final and conclusive as it was binding on the parties, unappealable and can be enforced without further order.[15] Thirdly, there was an identity of parties as Ying Chen was the defendant in both the civil mediation decisions and the enforcement proceedings.[16] Fourthly, the judgement was for a fixed, liquidated sum as the civil mediation decisions provided a fixed amount for principal and interest.[17]

 

In relation to the defendant’s notice of motion, the plaintiff argued that the question for the court was whether the civil mediation decisions fell within the meaning of ‘judgement’ in the UCPR, that is, according to New South Wales law, not Chinese law (as the defendant submitted).[18] On this question, there was no controversy.[19] While the UCPR does not define ‘judgement’, the elements of a ‘judgement’ are well settled according to Australian common law and Chinese law expert evidence supports the view that civil mediation decisions have those essential elements required by Australian law.[20]

 

Under common law, a judgement is an order of Court which gives rise to res judicata and takes effect through the authority of the court.[21] The plaintiff relied on Chinese law expert evidence which indicated that a civil mediation decision possesses those characteristics, namely by establishing res judicata and having mandatory enforceability and coercive authority.[22] The expert evidence noted that a civil mediation decision is a type of consent judgement resulting from mediation which becomes effective once all parties have acknowledged receipt by affixing their signature to the Certificate of Service.[23] The Certificate of Service in respect of the civil mediation decisions in this case had been signed by the legal representatives of the parties on the day that the civil mediation decisions were made.[24] While a civil mediation decision is distinct to a civil judgement (i.e., ?????),[25] a civil mediation decision nonetheless has the same binding force as a legally effective civil judgement and can be enforced in the same manner.[26]

 

The expert evidence further noted that Mainland China civil mediation decisions have been recognised and enforced as foreign judgements in the Courts of British Columbia, Hong Kong and New Zealand.[27] The factors which characterise a ‘judgement’ under those jurisdictions are the same factors which characterise a ‘judgement’ under Australian law.[28]This supports the view that the same recognition should be afforded under the laws of New South Wales.[29]Accordingly, the plaintiff submitted the a civil mediation decision possesses all the necessary characteristics of a ‘judgement’ under Australian law such that service could be effected without leave under schedule 6(m).[30]

 

IV Resolution

 

Harrison AsJ noted that the judgements of Chinese courts may be enforceable at common law and found that all four requirements was satisfied in this case.[31] There was jurisdiction in the international sense as the defendant’s authorised legal representative appeared before the People’s Court on her behalf, the parties had agreed to mediation, the representatives of the parties came to an agreement during the mediation, and this was recorded in a transcript.[32] The parties’ representatives further signed the transcript and a civil mediation decision had been issued by the people’s courts.[33] Moreover, the civil mediation decision was final and binding as it had been signed by the parties.[34] The third and fourth requirements were also clearly satisfied in this case.[35]

 

In relation to the central question of whether the civil mediation decisions constituted  ‘judgements’ in the relevant sense, Harrison AsJ found in favour of the plaintiff.[36] Harrison AsJ first noted that this question should not be decided on the arbitrary basis of which of the many possible translations of ????? should be preferred.[37] Moreover, the evidence of the enforcement of civil mediation decisions as judgements in the jurisdictions of British Columbia, Hong Kong and New Zealand was helpful, though also not determinative.[38]

 

Rather, this question must be determined by reference to whether civil mediation decisions constituted judgements under Australian law as opposed to Chinese law, accepting the plaintiff’s submission.[39] The civil mediation decisions were enforceable against the defendant immediately according to their terms in China without the need for further order or judgement of the People’s Court.[40] The parties could not vary or cancel the civil mediation decisions without the permission of the Jimo District Court.[41] The civil mediation decisions also had the same legal effects as a civil judgement.[42] Therefore, Harrison AsJ concluded that the civil mediation decisions were judgements for the purposes of Australian law as they established res judicata and were mandatorily enforceable and had coercive authority.[43] It then followed that the civil mediation decisions fell within the scope of UCPR schedule 6(m) and did not require leave to be served.[44]

 

V Orders

 

In light of the analysis above, Harrison AsJ held that the Chinese civil mediation decisions were enforceable and dismissed the defendant’s motion.[45] Costs were further awarded in favour of the plaintiff.[46]

 

 

 

Author: Hao Yang Joshua Mok, LLB Student at the University of Sydney Law School

Supervised by Associate Professor Jeanne Huang, Sydney Law School

 

References:

[1]

This is an update on my monthly post on the Court of Justice of the European Union, in order to announce the publication today (Monday 20) of the decision in case C-700/20,  The London Steam-Ship Owners’ Mutual Insurance Association.

I reported on the facts and the questions referred by the High Court of Justice Business and Property Courts of England and Wales, United Kingdom here, but I believe it worth reproducing them again. The main proceedings are based on a dispute between London Steam-Ship Owners’ Mutual Insurance Association Limited (‘the Insurer’), having its registered office in the United Kingdom, and the Kingdom of Spain; it concerns claims for damages arising from the sinking off the coast of Spain of a vessel carrying fuel oil – the Prestige. The insurance contract contained, inter alia, an arbitration agreement governed by English law.

The Kingdom of Spain asserted its rights to receive compensation from the Insurer under the insurance contract, in the context of criminal proceedings instituted in Spain in 2002. Following a first-instance decision in 2013 and several appeals, the Spanish proceedings culminated in a finding that the Insurer was liable for the loss caused by the shipping accident subject to the limitation of liability provided for in the insurance contract. The Spanish court issued an execution order on 1 March 2019. On 25 March 2019, the Kingdom of Spain applied for recognition and enforcement of that order in the United Kingdom in accordance with Article 33 of the Brussels I Regulation. That application was granted. The Insurer appealed against that decision in accordance with Article 43 of the Brussels I Regulation.

The Insurer, for its part, initiated arbitration proceedings in London in 2012. In the resulting award it was established that the Kingdom of Spain would have to initiate arbitration proceedings in London in order to assert claims under the insurance contract. The Commercial Court of the High Court of Justice of England and Wales, before which enforcement of the award was sought under section 66 of the Arbitration Act 1996, entered a judgment in the terms of the award against the Kingdom of Spain in October 2013, which was confirmed on appeal. The Kingdom of Spain took part neither in the arbitration proceedings nor in the judicial proceedings in the United Kingdom.

The referring court asked the Court of Justice the following questions:

(1) Given the nature of the issues which the national court is required to determine in deciding whether to enter judgment in the terms of an award under Section 66 of the Arbitration Act 1996, is a judgment granted pursuant to that provision capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of EC Regulation No 44/2001?

(2) Given that a judgment entered in the terms of an award, such as a judgment under Section 66 of the Arbitration Act 1996, is a judgment falling outside the material scope of Regulation No 44/2001 by reason of the Article 1(2)(d) arbitration exception, is such a judgment capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of the Regulation?

(3) On the hypothesis that Article 34(3) of Regulation No 44/2001 does not apply, if recognition and enforcement of a judgment of another Member State would be contrary to domestic public policy on the grounds that it would violate the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought, is it permissible to rely on Article 34(1) of Regulation No 44/2001 as a ground of refusing recognition and enforcement or do Articles 34(3) and (4) of the Regulation provide the exhaustive grounds by which res judicata and/or irreconcilability can prevent recognition and enforcement of a Regulation judgment?

An opinion by AG Collins was published on May 5, 2022. He proposed the Court of Justice to answer that

“A judgment entered in the terms of an arbitral award pursuant to section 66(2) of the Arbitration Act 1996 is capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, notwithstanding that such a judgment falls outside the scope of that regulation by reason of Article 1(2)(d) thereof.”

In practical terms, if followed by the Court of Justice, the Spanish decision would not be recognized in the UK under the Brussels Regulation. Very bad news for the Spanish government and also for all those, many, affected by the heavy oil spill, the worst marea negra ever experienced in Galicia.

The Grand Chamber, with M. Safjan acting as reporting judge, has decided otherwise in a decision already available  in English and French.

On the first and second questions, that she addresses together, the Court of Justice has decided

“Article 34(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a judgment entered by a court of a Member State in the terms of an arbitral award does not constitute a ‘judgment’, within the meaning of that provision, where a judicial decision resulting in an outcome equivalent to the outcome of that award could not have been adopted by a court of that Member State without infringing the provisions and the fundamental objectives of that regulation, in particular as regards the relative effect of an arbitration clause included in the insurance contract in question and the rules on lis pendens contained in Article 27 of that regulation, and that, in that situation, the judgment in question cannot prevent, in that Member State, the recognition of a judgment given by a court in another Member State.”

And on the third

“Article 34(1) of Regulation No 44/2001 must be interpreted as meaning that, in the event that Article 34(3) of that regulation does not apply to a judgment entered in the terms of an arbitral award, the recognition or enforcement of a judgment from another Member State cannot be refused as being contrary to public policy on the ground that it would disregard the force of res judicata acquired by the judgment entered in the terms of an arbitral award.”

I expect the judgement and its reasoning to be very much commented in academic circles.

For the record, Prof. Adrian Briggs very kindly provided this piece of information in a comment to my post: “So far as concerns C-700/20, it should be noted that on March 1, the Court of Appeal, in The Prestige (No 5) [2022] EWCA Civ 238, ruled that the reference should not have been made as a matter of European law, and (in effect) remitted the matter to the judge with its advice that he should withdraw the reference. On March 31 the Supreme Court gave permission to appeal against the decision of the Court of Appeal.” If I am not wrong, the UKSC decision on the issue will be known this week as well.

Lydia Lundstedt (University of Stockholm) has posted Gtflix TV V Dr: ‘Same Ole Same Ole’ or Has the CJEU Broken New Ground? on SSRN.

In Gtflix Tv v DR, the Grand Chamber of the Court of Justice of the European Union (CJEU) handed down an important decision confirming the mosaic approach and the accessibility approach to the application of the damage head of jurisdiction to infringements of personality rights on the internet pursuant to Article 7(2) of the Brussels Ia Regulation. Pursuant to the mosaic approach, an injured party can bring proceedings in every Member State where the damage occurs but only with respect to the damage taking place in that Member State’s territory. Pursuant to the accessibility approach, the sole criterium for the occurrence of damage in a Member State is that the content that is placed online ‘is or has been accessible’ in that Member State. Both these approaches have been criticised by commentators and resisted by the Member States courts. Nevertheless, the CJEU arguably forges new ground as the decision seems to expand the mosaic and accessibility approaches into the realm of unfair competition law. Lastly, questions remain concerning whether the courts of the Member State where the damage occurred have jurisdiction to order other territorially limited remedies such as geo-blocking measures, in addition to compensation for damage.

For previous reports on this case, see here, here and here.

This is a guest post by Izaak Weaver-Herrera, JD student at the University of Pittsburgh School of Law

Third-party discovery in the United States pursuant to 28 U.S.C. § 1782 has often represented a pragmatic, if contentious, tool for international counsel. However, in a decision this week, the U.S. Supreme Court held that § 1782 discovery may be ordered only if the assembled “foreign or international tribunal” is a body which has been conferred governmental or intergovernmental authority. There has already been a wealth of reaction to this decision, including on this site. This post will offer a few additional perspectives.

As a bit of background, ZF Automotive arrived on the Court’s docket as a consolidation of two cases: ZF Automotive US, Inc., et al. v. Luxshare, Ltd. and Alixpartners, LLP, et al., v. the Fund for Protection of Investor’s Rights in Foreign States. Both cases questioned an open aspect of § 1782’s use: whether the phrase “foreign or international tribunal” included private commercial arbitrations between parties of different States and whether it included arbitral panels assembled pursuant to bilateral investment treaties. The Court ruled that since neither panel was conferred governmental authority, § 1782 discovery would be inappropriate in both instances.

Justice Barrett, writing for a unanimous Court, adopted a textual approach to the question. In other words, this was less of a decision on international policy, and more a reflection of what Congress said and meant. The Court paid particular attention to the use of “foreign” and “international” as modifiers to the word “tribunal.” The latter was more critical than the former. The term “[t]ribunal” has peculiar governmental or sovereign connotations, the Court said, “so ‘foreign tribunal’ more naturally refers to a body belonging to a foreign nation than to a tribunal that is simply located in a foreign nation.” Similarly, the Court found that “international tribunal” under the statute more naturally referred to tribunals between nations, rather than arbitral panels composed of or adjudicating issues between nationals of different States.

The Court also reasoned that this understanding of the statute more uniformly aligned with principles underlying both § 1782’s origin and the Federal Arbitration Act. The express purpose of § 1782 was to foster international comity. An overly broad application of § 1782, the Court’s view, would permit the use of district court resources in furtherance of “purely private bodies adjudicating purely private disputes abroad,” positioning the U.S. court system as a persistent presence in potentially limitless international disputes. The Court’s opinion also recognized the tension such a reading would create between the discovery permitted under the FAA. While the FAA restricts discovery to the discretion of arbitration panels, § 1782 permits both the tribunal itself and any “interested person” to submit requests for discovery. Thus, the Court reasoned, a narrower reading of § 1782 also serves to harmonize the scope of arbitration in the United States.

With these observations, the private arbitral tribunal in ZF Automotive was not a “foreign or international tribunal” under § 1782. This was deemed “straightforward.” The Court found the arbitration panel in the Alixpartners dispute more complicated, but ultimately reached the same conclusion. The opinion noted the BIT “simply references the set of rules that govern the panel’s formation and procedure if an investor chooses that forum,” and therefore did not confer permanent sovereign authority on the ad hoc tribunal. Rather, Lithuania simply consented to an arbitration much in the same way two private entities might. Thus, although the Alixpartners tribunal could render a judgment against Lithuania based on its consent in a treaty, it had not been conferred permanent sovereign authority and could not be considered a “foreign or international tribunal.”

The Court did not “foreclose[] the possibility that sovereigns might imbue an ad hoc arbitration panel with official authority.” So although Mixed Claims Commissions of years’ past didn’t quit analogize to modern BIT tribunals, the Court acknowledged that the former may indeed fall on the permissible side of the Court’s new bright line. As international tribunals keep specializing and proliferating (think of the proposed Multilateral Investment Court, or bodies entrusted to handle international criminal law), future questions as to whether a body is “imbued with governmental authority” will for sure arise—but, of course, private commercial arbitration is clearly outside the bounds of section 1782.

The JUDGTUST Project (Regulation BIa: a standard for free circulation of judgments and mutual trust in the EU) conducted by the T.M.C. Asser Instituut in cooperation with Universität Hamburg, University of Antwerp and Internationaal Juridisch Instituut has come to its completion. The findings of the this research are available online here.

The project was animated by the aim to identify best practices and provide guidelines in the interpretation and application of the Brussels I-bis Regulation (also known as Brussels Ia). For this the analysis carried across the EU Member states sought to evaluate to what extent the changes introduced (compared to the Brussels I Regulation) achieved their objective, what are the remaining shortcomings, and how can these be overcome by considering future useful changes. Together with this, the research has analysed how legislative projects at global level – e.g. the Hague Judgment Convention – and political developments – e.g. Brexit – influence the way the Brussels I-bis is applied.

In analysing the interaction between the Brussels I bis Regulation and the other EU private international law instruments, the project combines a primarily comparative legal approach with the use of empirical research methods. The comparative legal research relies on the analysis of legislation, case law of national courts in EU Member States and the Court of Justice of the European Union (CJEU), and scholarly writings. This endeavour identifies the difficulties in the application of the Brussels I-bis provisions and best practices in applying the provisions of the Regulation. This is done without neglecting the outcomes of the previous regulation – the Brussels I – and other closely related private international law sources. The empirical research relies on various methods, both qualitative and quantitative. On the basis of a dedicated Questionnaire, the national reporters from EU Member States provided information on relevant domestic case law and legal literature.

With its findings the JUDGTRUST project seeks to enhance the general understanding of the autonomous nature of the EU legal sources. Further it looks to contribute to the uniform interpretation and application of the Regulation and consequently promotes mutual trust and efficiency of cross-border resolution of civil and commercial disputes. Furthermore, the analysis provides suggestions on how to reach a greater degree of consistency of the EU private international law legislation.

The outputs of the Project include various materials available online such as the National Reports, a Consolidated Report, and materials of the Final Conference.

Together with these open access materials a Handbook on the Interpretation and Application of the Brussels I bis is expected in the coming period.

In addition to the comparative and analytical research, the project also contributed to the development of a Moot Court Competition (PAX Moot) for law students. With this the project seeks to contribute to the education of a new generation of practitioners dealing with EU private international law.

Written by Mayela Celis, UNED

Yesterday (15 June 2022) the US Supreme Court rendered its Opinion in the case of Golan v. Saada regarding the HCCH Child Abduction Convention. The decision was written by Justice Sotomayor, click here. For our previous analysis of the case, click here.

This case dealt with the following question: whether upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding. (our emphasis)

In a nutshell, the US Supreme Court answered this question in the negative. The syllabus of the judgment says: “A court is not categorically required to examine all possible ameliorative measures [also known as undertakings] before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm.” The Court has also wisely concluded that “Nothing in the Convention’s text either forbids or requires consideration of ameliorative measures in exercising this discretion” (however, this is different in the European Union context where a EU regulation complements the Child Abduction Convention).

While admittedly not everyone will be satisfied with this Opinion, it is a good and well-thought through decision that will make a great impact on how child abduction cases are decided in the USA; and more broadly, on the way we perceive what the ultimate goal of the treaty is and how to strike a right balance between the different interests at stake and the need to act expeditiously.

In particular, the Court stresses that the Convention “does not pursue return exclusively or at all costs”. And while the Court does not make a human rights analysis, it could be argued that this Opinion is in perfect harmony with the current approaches taken in human rights law.

In my view, this is a good decision and is in line with our detailed analysis of the case in our previous post. In contrast to other decisions (see recent post from Matthias Lehmann), for Child Abduction – and human rights law in general – this is definitely good news from Capitol Hill.

Below I include a few excerpts of the decision (our emphasis, we omit footnotes):

“In addition, the court’s consideration of ameliorative measures must be guided by the legal principles and other requirements set forth in the Convention and ICARA. The Second Circuit’s rule, by instructing district courts to order return “if at all possible,” improperly elevated return above the Convention’s other objectives. Blondin I, 189 F. 3d, at 248. The Convention does not pursue return exclusively or at all costs. Rather, the Convention “is designed to protect the interests of children and their parents,” Lozano, 572 U. S., at 19 (ALITO , J., concurring), and children’s interests may point against return in some circumstances. Courts must remain conscious of this purpose, as well as the Convention’s other objectives and requirements, which constrain courts’ discretion to consider ameliorative measures
in at least three ways.

“First, any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. The Convention explicitly recognizes that the child’s interest in avoiding physical or psychological harm, in addition to other interests, “may overcome the return remedy.” Id., at 16 (majority opinion) (cataloging interests). A court may therefore decline to consider imposing ameliorative measures where it is clear that they would not work because the risk is so grave. Sexual abuse of a child is one example of an intolerable situation. See 51 Fed. Reg. 10510. Other physical or psychological abuse, serious neglect, and domestic violence in the home may also constitute an obvious grave risk to the child’s safety that could not readily be ameliorated. A court may also decline to consider imposing ameliorative measures where it reasonably expects that they will not be followed. See, e.g., Walsh v. Walsh, 221 F. 3d 204, 221 (CA1 2000) (providing example of parent with history of violating court orders).

“Second, consideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute. The Convention and ICARA prohibit courts from resolving any underlying custody dispute in adjudicating a return petition. See Art. 16, Treaty Doc., at 10; 22 U. S. C. §9001(b)(4). Accordingly, a court ordering ameliorative measures in making a return determination should limit those measures in time and scope to conditions that would permit safe return, without purporting to decide subsequent custody matters or weighing in on permanent arrangements.

“Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts “act expeditiously in proceedings for the return of children.” Art. 11, Treaty Doc., at 9. Timely resolution of return petitions is important in part because return is a “provisional” remedy to enable final custody determinations to proceed. Monasky, 589 U. S., at ___ (slip op., at 3) (internal quotation marks omitted). The Convention also prioritizes expeditious determinations as being in the best interests of the child because “[e]xpedition will help minimize the extent to which uncertainty adds to the challenges confronting both parents and child.” Chafin v. Chafin, 568 U. S. 165, 180 (2013). A requirement to “examine the full range of options that might make possible the safe return of a child,” Blondin II, 238 F. 3d, at 163, n. 11, is in tension with this focus on expeditious resolution. In this case, for example, it took the District Court nine months to comply with the Second Circuit’s directive on remand. Remember, the Convention requires courts to resolve return petitions “us[ing] the most expeditious procedures available,” Art. 2, Treaty Doc., at 7, and to provide parties that request it with an explanation if proceedings extend longer than six weeks, Art. 11, id., at 9. Courts should structure return proceedings with these instructions in mind. Consideration of ameliorative measures should not cause undue delay in resolution of return petitions.

“To summarize, although nothing in the Convention prohibits a district court from considering ameliorative measures, and such consideration often may be appropriate, a district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate. Ultimately, a district court must exercise its discretion to consider ameliorative measures in a manner consistent with its general obligation to address the parties’ substantive arguments and its specific obligations under the Convention. A district court’s compliance with these requirements is subject to review under an ordinary abuse-of-discretion standard.”

Michael Karayanni (Bruce W. Wayne Professor of International Law at the Hebrew University of Jerusalem) published the special course he gave at the Hague Academy on The Private International Law of Class Actions: A Functional Approach in Volume 422 of Collected Courses of the Hague Academy of International Law

According to Professor Karayanni, a transnational class action raises fundamental questions of Private International law with regard to the class action court’s jurisdiction over the defendant and the class members, on how to choose the applicable law, and ultimately on how to deal with the judgment if and when it comes up for enforcement or recognition before a foreign court. At times these questions and the complications they give rise to, become part and parcel of the class action court’s consideration whether to certify the class action as such.

In his lectures, Professor Karayanni identifies the major private international problems that are endemic to transnational class actions and discusses how these are handled, principally by courts in the US, Canada, and Israel. In this he offers an analytical legal framework that can better assist us in dealing with the private international law questions pertaining to transnational class action. He does so by identifying three different categories of class actions, with each of them demanding a separate and more surgical treatment: Insubstantial individual claims and negative incentive for individual litigation; Significant individual claims and positive incentive for individual litigation; Significant individual claims and negative incentive for individual litigation – the class action of the disempowered.

The volume also includes the course of Said Mahmoudi (Professor of International Law at Stockholm University) on Self-Defence and “Unwilling or Unable” States.

Further details on the volume are available here.

The conference Sense and Sensibility in Cross-Border Cases: Couples’ Property will gather line of academic and expert speakers from several countries who will present the results of the research carried out so far under the EU Justice project EU-FamPro dedicated to the EU Twin Regulations (2016/1103 and 2016/1104) in addition to some national topics. Please check the conference programme for details.

The conference will take place on 30 June 2022 in a beautiful venue of the Jean Monnet Inter-University Centre in Opatija (Croatia) and online. The conference is open access without charging any fees, but registration for both onsite and online attendance is required here by 20 June 2022.

The conference is organised by the University of Rijeka, Faculty of Law and the Croatian Comparative Law Association in cooperation with the University of Camerino, the University of Ljubljana, the University of Almeria and the Lithuanian Law Institute.

Written by Catherine Shen, ABLI

Following a successful collaboration last year, the Asian Business Law Institute (ABLI) and the Permanent Bureau of the Hague Conference on Private International Law (HCCH) are joining hands again for a second joint webinar this year on Wednesday 27 July between 3 to 6pm (Singapore time).

Titled Cross-border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions, the webinar will comprise two sessions, each devoted to one of the conventions. Attendees have the option of attending one or both sessions.

Invited speakers Sara Chisholm-Batten (Partner, Michelmores LLP), the Honourable Justice David Goddard (Court of Appeal, New Zealand), Justice Anselmo Reyes, (International Judge, Singapore International Commercial Court), Nish Shetty (Partner, Clifford Chance LLP) and Dr Ning Zhao Senior Legal Officer, HCCH) are expected to talk about the practical operations of the Choice of Court Agreements and Judgments Conventions, how they complement each other and whether the recent debate on the Choice of Court Agreements Convention is justified.

For more information or to register, click here. Early bird discount is available till 26 June. Queries about the webinar can be directed to Catherine at info@abli.asia.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 16 June 2022 at 3:00 pm (Mexico City time – CDT), 10:00 pm (CEST time). The topic of the webinar is The need for a PIL law for Ecuador and will be presented by Professor Jaime Vintimilla Saldaña (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/89189611809?pwd=RXhDeE5Gdlkwd2prWnREeVhVelBudz09

Meeting ID: 891 8961 1809

Password: BMAAMEDIP

Participation is free of charge.

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

The author of this post is Etienne Farnoux, who is a professor of law at the University of Strasbourg. He has recently published his doctoral thesis on the policy considerations that underlie the rules of international jurisdiction, with a special focus on torts (Les considérations substantielles dans le règlement de la compétence internationale des juridictions – Réflexion autour de la matière délictuelle).

The thesis proposes to question the classical locational or proximity-based analysis of international adjudicatory jurisdiction in tort disputes. It is a commonplace idea – one that can be found both in European and national (French) private international law – that the rules of international jurisdiction are based on the geographical localization of the dispute, also known as the principle of proximity. If one thinks of international adjudicatory jurisdiction as being a question of territorial limitation of a State’s adjudicatory authority, it makes sense to rely on the localization of the dispute (or elements thereof) to organize it in a neutral way. The specific jurisdiction rule in matters relating to tort based on the location of the harmful event (art. 7 para. 2 of Brussels I recast regulation) perfectly embodies this locational approach to international judicial jurisdiction.

However, this proximity-based approach is faced with dire difficulties, namely the growing virtualization of entire swathes of human activities and the rise in crossborder private relations. More fundamentally, the vision of international jurisdiction as being based on the principle of proximity pays little attention to the notion that international jurisdiction is an organization by the State of its duty to render justice, be it with regards to crossborder private relations. The thesis opposes the locational analysis with a new approach to international jurisdiction that puts forward the substantive considerations specific to the underlying issue of the dispute, considerations that have remained at least partly hidden until now. In this perspective, the rules of international jurisdiction should reflect policy considerations which can be observed at two levels: at the level of procedural justice and at the level of substantive justice. It is the goal of this work to study the influence of these policy considerations on the rules of international jurisdiction with regards to crossborder tort cases.

As the subtitle indicates, the demonstration focuses on tort matters. Indeed, international litigation relating to civil liability, such as actions for damages against international polluters, transnational corporations responsible for human rights violations, corporations issuing securities on the financial markets, as well as cyber-torts, highlight in a particularly striking manner the need to base jurisdiction on something other than the location of the material elements of the dispute. Although the demonstration focuses particularly on the rules of jurisdiction in tort, it is not limited to them: it allows itself more general incursions into the system of jurisdiction in civil and commercial matters (in French, American and European Union private international law).

The thesis is articulated in two parts: the demonstration of the inadequacy of proximity as a basis for international jurisdiction (first part) leads to an outline of a concept of international jurisdiction based on substantive considerations (second part).

A Critical Assessment of the Principle of Proximity

The first part is devoted to a critical approach of the principle of proximity both from a historical point of view and a functional point of view. It examines each of the objectives pursued by the jurisdiction rules, based on the principle of proximity: evidential effectiveness; foreseeability; administrability of solutions. The weaknesses of the objectives of evidential efficiency and predictability leads to doubts about the role of the location operation in determining international jurisdiction. A study of the case law of the European Court of Justice on the subject of article 7(2) of the Brussels I bis Regulation reveals an instrumentalization of the location of the material elements of the dispute. This instrumentalization can be observed from the very beginnings of European case law on torts in the solutions given for complex torts with monolocalized harm (hypothesis of the Mines de Potasse judgment) and plurilocalized harm (hypothesis of the Fiona Shevill judgment) and for torts with continuous harm (hypothesis of the Dumez, Marinari and Kronhofer judgments). In all these cases, territorial location is manipulated, for purely argumentative purposes, so as to arrive at a solution which is not in any way dictated by location. This phenomenon is further accentuated by the growing immateriality of human activities, which can be observed in economic matters and through the figure of cyber-crimes. The loss of materiality of at least part of the elements of the dispute reveals the artificiality of the territorial localization operation and brings to light the balancing of interests at the heart of the jurisdictional question, between the interests of the alleged victim and those of the alleged perpetrator of the harm.

Substantive Considerations Underlying Rules of Jurisdiction

The second part is devoted to the study of this balancing of interests, apprehended through the notion of substantive considerations and made possible by the deconstruction of the principle of proximity. These considerations can be considered at two levels: that of procedural justice and that of truly substantive justice.

At the level of procedural justice, the most striking phenomenon is the decline of the traditional objective of jurisdictional protection of the defendant, around the principle of forum rei, and its progressive reversal in favor of the plaintiff, resulting in the rise of forum actoris. This phenomenon is complex and sometimes ambiguous because of the contradictory orientations adopted, as shown by the contradictory case law interpreting Article 7(2), as well as the difficult question of the regime of international jurisdiction, and in particular the forum non conveniens. At the level of substantive justice, the rise of the promotion of the interests of the plaintiff can be understood when set against the traditional normative and remedial functions of civil liability, both of which militate in favor of the alleged victim (which presupposes the exclusion of actions denying liability). As the case law of the Court of Justice still explicitly refuses to recognize such a protective function to forum delicti, this clarification is necessary and allows to look realistically at avenues for reform.

Looking prospectively, the risk of giving in without restraint to this favor for the claimant, seen in substantive terms as the alleged victim, is to open the way to anarchic forum shopping. A middle way would be to abolish the forum delicti and open a forum victimae instead, the jurisdiction of the alleged victim’s domicile. This forum can be envisaged in two ways. It could be constructed as an ordinary forum in tort, provided that a plausibility check on the alleged victim’s claims is introduced to combat procedural harassment. If this proposal were to be considered too bold, given the persuasive force that the consideration of the defendant’s jurisdictional protection continues to exert, it is possible to conceive of this forum victimae as a forum for the protection of the allegedly weak party. To a certain extent, this seems to be the path taken, albeit implicitly, by the case law of the Court of Justice, notably in the eDate and Kolassa judgments.

This substantive reading of the rule of jurisdiction is transversal and not exclusive of more occasional and more salient incursions of a substantial interest of the forum which will make the rule of jurisdiction subject to the pursuit of a substantive policy. This substantive interest of the forum may take the form of legislative policies (loi de police) or fundamental values (public policy) of the forum. To study the influence of overriding mandatory provisions on the rules of jurisdiction, it is necessary to go beyond the dogma of the independence of legislative and judicial jurisdictions, affirmed in a Monster Cable decision by the French Cour de Cassation. The outcome may be twofold. It may open the possibility, in some cases, of a purposeful correspondence between legislative competence and jurisdictional competence. It also militates in favor of the imperative nature of adjudicatory jurisdiction when an overriding mandatory rule is applicable. However, mandatory rules are not the only substantive elements that have an influence on the determination of international jurisdiction. The fundamental values of the forum are also likely to leave their mark on the rules of jurisdiction. The emergence of the forum of necessity is a cross-cutting example as it concerns access to justice, but other fundamental rights may be affected, notably personal freedom. The violation of such a right could give French courts universal civil jurisdiction to entertain a possible action for damages.

Finally, the thesis moves to draw the consequences of the demonstration beyond the rules of direct international jurisdiction, in the relations between the jurisdictional organizations of different States. In this perspective, the substantive approach to the rules of jurisdiction calls into question the international fungibility of courts, a precondition to a jurisdictional system such as the Brussels system. Whether this fungibility really exists or not is open to debate, and the ambiguous role of the forum delicti – merely justified by location but playing the part of a tool of protection of the claimant – should be put in this context. In this perspective the substantial approach to jurisdiction also helps to conceptualize the debate around the universalization of the Brussels system and the coexistence of several systems of jurisdiction for a single judicial system (Brussels I and national law), as well as the meaning and relevance of the control of indirect jurisdiction.

Some of the conclusions of this thesis have been summarized in English in an article entitled ‘Delendum est Forum Delicti? Towards the jurisdictional protection of the alleged victim in cross-border torts’ published in B. Hess, K. Lenaerts and V. Richard (ed.), The 50th anniversary of the European law of civil procedure, Baden-Baden: Nomos 2020, (259) p. 263 et seq.