Conflictoflaws

By Csongor István Nagy, Professor of Law at the University of Galway, Ireland, and at the University of Szeged, Hungary, and research professor at the HUN-REN Center for Social Sciences, Hungary.

The overwhelming majority of the international community condemned Russia’s war against Ukraine as a gross violation of international law and several countries introduced unilateral measures freezing Russian assets. It has been argued that countries should go beyond that and use these assets for the indemnification of Ukrainian war damages. Confiscation would, however, be unprecedented and raise serious international law concerns. While states have, with good reason, been reluctant to react to one wrongful act with another, this question has given rise to intensive debate. Recently, the EU authorized the use of net profits from the frozen assets but not the assets themselves to support Ukraine.

In my paper forthcoming in the University of Pennsylvania Journal of International Law I argue that this question should be approached from the perspective of the public law-private law divide and international investment law may open the door to the use of a substantial part of the frozen assets for the purpose of war reparations. The pre-print version is available at SSRN.

Under international law, sovereign immunity rules out confiscation both as a countermeasure and a compensatory measure responding to acta jure imperii, such as military operations. Nonetheless, sovereign immunity does not extend to commercial matters, where judgments and awards can be enforced against state assets. Investment treaties, including the Russia-Ukraine BIT (RUBIT), “commercialize” acta jure imperii. They convert public law violations into quasi-commercial claims “immune from sovereign immunity.” Although not the norm, mass claims are not unknown in investment arbitration. This implies that if Ukrainian claims for war damages can be submitted to investment arbitration and incorporated into an arbitral award, they may have a solid legal basis for enforcement against Russian assets. A good part of these assets can be used for this purpose. Although “non-commercial” assets, such as the property of diplomatic missions, military assets, cultural property, items displayed at an exhibition and, most importantly, the property of the central bank are immune from enforcement due to sovereign immunity, sovereign direct investments, airplanes, ships and the assets of persons attributable to the state can be used to satisfy investment awards.

The key issue of the RUBIT’s applicability is territorial scope. Although, at first, the idea that Ukrainians may be awarded compensation on the basis of the RUBIT may raise eyebrows, in the Crimea cases arbitral tribunals just did that. They consistently applied the RUBIT to Russian measures and treated Crimea (strictly for the purpose of the BIT!) as the territory of Russia on account of de facto control and legal incorporation. The foregoing principles should be valid also outside Crimea in cases where Russia occupies a territory and/or unilaterally incorporates (annexes) it. And if these territories can be treated as a territory for which Russia bears responsibility under international law, Ukrainians may be able to rely on this responsibility.

The Crimea arbitral awards’ notion of territorial scope is not unprecedented in international law at all. For instance, in Loizidou v. Turkey and in Cyprus v Turkey, the European Court of Human Rights applied the European Convention on Human Rights to Turkey by reason of its occupation of Northern Cyprus. In Al-Skeini v. United Kingdom, it found the Convention applicable to the UK’s operations in Iraq on account of the occupation of the country.

Although the RUBIT was recently terminated by Ukraine, it remains in force until January 27, 2025, and has a “continuing effects” clause in Article 14(3), which sustains investment claims for ten years after termination.

Written by Hadrien Pauchard (assistant researcher at Sciences Po Law School)

The second issue of the Revue Critique de droit international privé of 2024 was released a few weeks back. It contains a rich thematic dossier of seven articles and several case notes.

Under the direction of Prof. Sabine Corneloup (Université Paris-Panthéon-Assas), the doctrinal section of this issue is entirely devoted to an in-depth study of the latest French immigration law (Loi n° 2024-42 du 26 janvier 2024 pour contrôler l’immigration, améliorer l’intégration). In line with the Revue Critique’s recent policy, this doctrinal part has been made available in English on the editor’s website (for registered users and institutions). Against the backdrop of tightening migration controls at the global scale, this Act radically shifts administrative, procedural, and substantial aspects of the status of aliens in France.

The dossier opens up with Prof. Hans van Loon’s (University of Edinburgh, former Secretary General of the HCCH) call for La nécessité d’un cadre mondial de coopération pour une réglementation durable de la migration de travailleurs (The need for a cooperative global framework for a sustainable regulation of labor migration). Its abstract reads as follows:

“Sustainable regulation of labor migration cannot be based exclusively on unilateral initiatives by a given country individually, but requires the development of a worldwide framework for cooperation between states, which is sorely lacking at present. Both realistic and highly ambitious, the author proposes a – fully drafted – framework convention aimed at strengthening practical cooperation at global level for a particular type of crossborder displacement of persons for work: temporary and circular migration. This framework could subsequently be extended to other types of migration.”

Adopting the same critical ambition, the subsequent articles further engage with the French bill by following the order of its chapters.

In this vein, Prof. Fabienne Jault-Seseke (Université Paris-Saclay, UVSQ) first assesses the law’s provisions relating to L’accès au séjour : l’objectif d’intégration au service d’un discours brouillé (Access to residency: the objective of integration serving a blurred discourse). It is introduced as follows:

“Fabienne Jault-Seseke highlights the restriction of the conditions for obtaining residence permits, both for new arrivals and for foreign citizens applying for long-term permits. With regard to one of the Act’s flagship measures – the regularization of undocumented workers in short-staffed occupations – the author regrets that the reform’s contribution is ultimately very limited, and that its scope has been further reduced by an administrative order, casting doubt on the legislator’s real desire to promote work as a factor of integration.”

Then, Prof. Thibaut Fleury Graff (Université Paris-Panthéon-Assas) severely judges L’éloignement des étrangers dans la loi du 26 janvier 2024 : régression des protections, extension des rétentions (The expulsion of foreign nationals under the January 26, 2024 law: regression of protections, extension of detentions). His contribution’s abstract reads as follows:

“The author shows the regression in protection resulting from the removal of legislative obstacles to expulsion. In place of the general, objective protection against expulsion enjoyed by certain categories of foreign nationals under the law, the reform substitutes a case-by-case review, by the administrative authority and the administrative judge, of the rights and freedoms constitutionally and conventionally recognized for foreign nationals. This casuistic approach to deportation is accompanied by new provisions facilitating measures that deprive or restrict freedom (administrative detention, house arrest, bans), the duration of which has also been extended.”

In the fourth article, Prof. Natalie Joubert (Université de Bourgogne) takes a hard look on La loi Immigration du 26 janvier 2024 et les droits sociaux (The immigration law of January 26, 2024 and social rights). Her analysis is presented as follows:

“Natalie Joubert highlights the issue of ‘disguised national preference’, which was to have taken the form of a condition of length of legal residence in France – ultimately censured by the Constitutional Council – in historical context, before showing that this condition was not actually censured in itself, but only for its excessive duration. In terms of taking into account the vulnerability of foreign nationals, the author contrasts an advance in protection of access to housing, with a regression in the protection of young adults and asylum seekers.”

The Act also implements Une réforme structurelle du droit d’asile (A structural reform of asylum law), which is precisely the subject of Prof. Sabine Corneloup’s study. Its abstract reads as follows:

“In the field of asylum law, the most noteworthy contribution has been the structural reform of both the administrative and judicial phases of the asylum procedure. Sabine Corneloup analyzes the territorialization of the two phases, which raises considerable material and human stakes, and shows that the introduction of the principle of a single judge before the National Asylum Court, which removes the United Nations High Commissioner from the procedure, can only give rise to the most serious reservations. Whether or not the collegiate system is maintained in the future will depend exclusively on the policy of the President of the Court. With regard to the status of individuals, the author shows that, through the new cases of administrative detention and house arrest of asylum seekers, the Act affects the very legal grounds for such measures.”

The sixth contribution is authored by Stéphanie Gargoullaud (Cour d’appel de Paris) and tackles the procedural aspects of La loi Immigration du 26 janvier 2024 et les règles du contentieux administratif et judiciaire (The Immigration Act of January 26, 2024 and the rules of administrative and judicial litigation). The following abstract was provided:

“Stéphanie Gargoullaud analyzes the law’s main contributions to both judicial and administrative processes. The legislator’s stated aim of simplifying the rules 4 meets a strong expectation on the part of those concerned, given that the French system had become too complex. While simplification is perceptible in the case of administrative recourse, where the number of procedures has been reduced to three, it is hardly visible in the numerous provisions reforming court process concerning administrative detention and waiting zones.”

Last but not least, Prof. Jules Lepoutre (Université Côte d’Azur) discusses La nationalité dans la loi du 26 janvier 2024 : une apparition éphémère, des questions persistantes (Nationality in the law of January 26, 2024: a fleeting appearance, some enduring interrogations). The abstract reads as follows:

“Nationality and citizenship law was at the heart of parliamentary debates, even though it did not feature in the initial bill and occupies a rather anecdotal place in the enacted text. The provisions introduced by the Senators concerning the restriction of ‘droit du sol’, the extension of forfeiture of nationality, the raising of language requirements for naturalization, etc. did not pass constitutional scrutiny. Jules Lepoutre shows that both the policy pursued by the legislator and the control exercised by the constitutional court reveal much about contemporary issues relating to belonging: the presence of reiterative ideologies, and the strong interconnexion between nationality and citizenship on the one hand and immigration and integration on the other.”

What’s more, the international audience will undoubtedly be interested in the Bibliographic section of the issue, which has always been a remarkable feature of the Revue critique. Under the direction of Dr. Elie Lenglart (Université Université de Lille) and Dr. Sandrine Brachotte (UC Louvain), this section has diversified to include major French-language and non-French-language publications in both private international law and international arbitration, as well as contemporary works in global law. Notably, some reviews are authored in English and will therefore benefit readers beyond the borders of the francophonie.

The full table of contents is available here.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

Dear Friends and Colleagues,

Kindly allow us to invite you to two events that mark the completion of a research project carried out at the University of Bonn in respect to the Washington Principles on Nazi-Confiscated Art: The elaboration of a “Restatement of Restitution Rules for Nazi-Confiscated Art“. The formal Closing Event of the Project (proceedings in German language) will take place at the University of Bonn on 4 September 2024 (7:00 p.m.). An international presentation will follow and take place at New York University (NYU) on 16 September 2024 (6:00-8:30 p.m.), organised by the  Center for Transnational Litigation, Arbitration and Commercial Law.

Five years ago, fundamental research started in Bonn to develop a “Restatement of Restitution Rules for Nazi-Confiscated Art” (RRR). This research was funded by the Federal Government Commissioner for Culture and the Media (“BKM”). Since then, around 1,300 cases from six jurisdictions – Germany, Austria, the Netherlands, France, the United Kingdom and Switzerland – have been recorded and their normative content comparatively scrutinized: Which „tipping points“ for evaluation recur? How have these points been handled in each case and why? Which arguments are systematically convincing in relation to others (“grammar of reasons”), which are less so? What are the principles that guide the decision-making process? Which procedural building blocks from current practice are convincing according to general procedural theory (“best practices”), which less so? The fundamental experience to be taken from the project is one that has always been described in comparative legal studies: only a comparison with others enables a true understanding of one’s own.

Our comparative work has resulted in a project text of around 1,100 pages: Eight articles – Art. 1 RRR to Art. 8 RRR – outline the central recurring issues in formulated rules, which are intended to reflect the normative essence of the issues. Some rules are rather concise, others concern a highly complex set of issues and therefore contain many paragraphs. The text of each rule is followed by a commentary explaining how the proposed rule was generated from practice, which tendencies in practice support the rule and which other tendencies appear to run counter to it. Country reports subsequently analyze the respective practice of the individual jurisdictions, always starting with an abstract overview of the respective issue. The case material referred to is then systematically organized in abstract summaries.

At our Talk at the New York University, we would like to present to you the results of our project. We feel greatly privileged that renowned professors and supporters of our project will deliver their comments on the RRR. The same holds true for the accompanying Closing Event at the University of Bonn on 4 September (in German). Following this event, we will invite you to a small reception.

If you are interested, please register: For the Talk in New York here, for the Closing Event in Bonn with sekretariat.weller@jura.uni-bonn.de. Regarding further information, please consult our institute’s homepage or refer to the atttached pdf Programme (NYU;Bonn). We would be very pleased to see you.

The third issue of the Lloyd’s Maritime and Commercial Law Quarterly was recently released. It contains the following article, case note and book reviews:

Adrian Briggs, “The Hague 2019 Convention”

The Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters 2019 will come into force for the United Kingdom on 1 July 2025. It will represent the principal means for the mutual recognition of judgments between the United Kingdom and the European Union (and any other states adopting it), and it is for this reason timely to examine the instrument which will replace, but certainly not replicate, Chapter III of the Brussels I Regulation. In discussing the structure and detail of the Convention, it is noticeable how far it falls short of the pre-existing regime.

Pau S Davies and Katherine Ratcliffe, “Anti-Arbitration Injunctions and Stays to Arbitration”

Andrew Tettenborn, “Book Review – The 2019 Hague Judgments Convention”

Adrian Briggs, “Book Review – Governing aw Risks in International Business Transactions”

Emory University School of Law seeks applications from outstanding tenured scholars for a Distinguished Professorship in Civil Litigation. This professorship recognizes distinguished achievement in scholarship and teaching of disciplines related to civil litigation, including civil procedure, complex litigation, evidence, conflict of laws, and others focused on civil litigation. Candidates must have exceptional records in research, teaching, and service and have attained a J.D., Ph.D., or equivalent degree. Candidates should currently hold a tenured academic appointment and should be eligible for appointment as a full professor at Emory. For candidates meeting the law school’s standards for scholarly excellence and the demonstrated ability to teach civil litigation courses, the interest in teaching first-year Civil Procedure will be an additional positive factor.

Candidates must complete the online application which requires creating an account, uploading a resume or CV, and providing basic demographic information. In addition, applicants should submit a cover letter, a current CV, a published or unpublished academic article, a brief research agenda, and an indication of teaching interests (if not listed on the CV) to the chair of the Appointments Committee: Professor Joanna Shepherd, at law.faculty.appointments@emory.edu.  Applications will be considered on a rolling basis.

 The second issue of 2024 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Sara Tonolo, Professor at the University of Padova, Il contributo degli studiosi italiani ai corsi de l’Aja di diritto internazionale privato (1973-2023) [The Contribution of Italian Scholars to The Hague Academy Courses on Private International Law (1973-2023); in Italian]

The Private International Law Courses taught by Italian scholars within the Hague Academy have undergone an interesting evolution that deserves consideration on the occasion of the Academy’s Centennial Anniversary, especially regarding the period between 1973 and 2023. Alongside features commons to the courses of the initial period, such as the approach to the study of private international law, outlined by Pasquale Stanislao Mancini, and the comparative method, there are however distinctive and noteworthy features in the courses offered between 1973 and 2023. Among the topics analysed in the Italian Courses during the considered period, the recognition of the substantive effectiveness of judgments through private international law rules is particularly noteworthy both for its influence on the national codification of private international law, and for its relevance in addressing coordination issues arising from the communitarization of private international law. This topic is particularly relevant concerning the interrelation of private international law with other areas of international law, such as international protection of human rights. Given the circular relationship between international protection of human rights and private international law, coordination needs to be established within a debate that is becoming increasingly complex among private international law scholars, thanks also to the role of Italian scholars within the Hague Academy.

Giacomo Biagioni, Associate Professor at the University of Cagliari, Dichiarazione ONU sui diritti dei contadini e diritto internazionale privato dell’Unione europea [The UN Declaration on the Rights of Peasants and EU Private International Law; in Italian]

On 17 December 2018 the United Nations General Assembly adopted by a majority the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas, stressing the importance of agricultural production and recognizing individual and collective rights granted to people living and working in rural areas. The paper aims at assessing the possible impact of the principles enshrined in the Declaration on the system of private international law sources, moving from the general assumption that UN declaration of principles may contribute to the interpretation of domestic law. As peasants and other workers in rural areas can qualify, under the 2018 Declaration, as weaker parties, the paper attempts to clarify to what extent solutions enacted in EU private international law for other categories of weaker parties (such as employees or consumers) with regard to conflict-of-laws and to jurisdictional competence in contractual matters may be extendable to peasants. However, the general approach of EU instruments concerning judicial cooperation in civil matters does not seem to be especially open to receiving the instances of protection of the rights of categories of weaker parties, which are not expressly mentioned in those instruments. Accordingly, as the law now stands, only recourse to general clauses (fraude à la loi, public policy, overriding mandatory rules) may lead to give some consideration to the special position of peasants and other workers in rural areas and to adapt private international law rules to the protection of their fundamental rights.

This issue also comprises the following comments:

Anna Liebman, Research Fellow at the University of Milan, Il rinvio ai criteri della convenzione di Bruxelles del 1968 nel diritto internazionale privato italiano: orientamenti consolidati e questioni aperte [The Reference to the Jurisdiction Criteria of the 1968 Brussels Convention in Italian Private International Law: Established Orientations and Open Questions; in Italian]

The article examines a few issues arising in connection with the reference made by Art 3(2) of Law 31 May 1995 No 218 to the criteria laid down in the 1968 Brussels Convention. In the article, it is first observed how, in recent times and especially in the light of two recent judgments of the Italian Supreme Court, the traditional orientation has completely changed, and that scholars and jurisprudence agree in considering the reference made by this provision as a reference to the most recent EU regulations and not to the 1968 Convention. Second, the article emphasises need for a uniform interpretation of the criteria nationalised by Art 3(2), as this is considered the only solution that allows not to undermine the coherence of the system. Lastly, the  article takes into consideration the possibility for Italian judges to submit a reference for a preliminary ruling to the Court of Justice of the European Union concerning the interpretation of the European discipline made applicable through Art 3 of Law No 218/1995, a possibility that seems to find consideration in the European case law.

Enrico Pedrotti, Juris Doctor, Problemi di giurisdizione in tema di azione contrattuale di garanzia proposta in via autonoma [Questions of Jurisdiction in Contractual Warranty Actions Brought in Autonomous Proceedings; in Italian]

Relying on the Italian Court of Cassation’s judgment No 613 of 8 January 2024, according to which Italian courts do not have jurisdiction pursuant to Art 8(2) of Regulation (EU) No 1215/2012 when an action on guarantee is brought in autonomous proceedings, this article discusses the link between such provision and national procedural rules on guarantees, highlighting how the exercise of judicial discretion in the authorization of a third-party claim in accordance with Art 269 of the Italian Code of Civil Procedure bears significant consequences on jurisdiction. Furthermore, the Author discusses the applicability of Art 7(1)(b) of Regulation No 1215/2012 on the basis of Art 3 of Law 31 May 1995 No 218 reforming the Italian system of private international law, in case the place of performance is located outside the EU, concluding in the negative.

Finally, the issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Mihail DANOV, Private International Law and Competition Litigation in a Global Context, Hart Publishing, Oxford, 2023, pp. XI-375.

By Dr Benjamin Hayward
Associate Professor, Department of Business Law and Taxation, Monash Business School
X: @LawGuyPI, @MonashITICL

On 7 August 2024, the High Court of Australia handed down its long-awaited decision in Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24. The dispute arose out of a domestic commercial arbitration seated in South Australia, where the Commercial Arbitration Act 2011 (SA) is the relevant lex arbitri. That Act is a domestically focused adaptation of the UNCITRAL Model Law on International Commercial Arbitration (with its 2006 amendments).

The respondent to the arbitration sought to rely upon proportionate liability legislation found in the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) and in the Competition and Consumer Act 2010 (Cth). The High Court was asked to determine whether those proportionate liability regimes could be applied in the arbitration. A very practical difficulty arose here, reflected in Steward J noting (in dissent) that the High Court was ‘faced with an invidious choice’: see [228]. Were the proportionate liability laws not to apply in the arbitration, the respondent might find themselves liable for 100% of the applicant’s loss, when they would not be liable to that same extent in court proceedings applying the same body of South Australian law. But were the proportionate liability laws to apply, the applicant might find themselves able to recover only a portion of their loss in the arbitration, and might then have to then pursue court proceedings against another third party wrongdoer to recover the rest: given that joinder is not possible in arbitration without consent.

By a 5-2 majority, the High Court decided that these proportionate liability regimes were to be applied in the arbitration. There has been much commentary published already as to what this means for arbitration law in Australia – including here, and here. What might be of most interest for this blog’s audience, however, is to note that the High Court’s reasoning was grounded in the application of private international law.

All of the High Court’s judgments in Tesseract – both majority and dissenting – recognised that whether or not the substantive law aspects of the two relevant proportionate liability regimes applied in the arbitration was a question of applicable law, to be resolved via South Australia’s implementation of Art. 28 Model Law. This is not the first time that this provision has been addressed by the High Court of Australia. The High Court was also required to analyse its effect in a failed constitutional challenge to Australia’s implementation of the Model Law in the international commercial arbitration context in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533. In that case, it was confirmed that Art. 28 Model Law does not require arbitrators to apply the law correctly. It was also confirmed that there is no separate term implied into an arbitration agreement having that effect.

It does not appear that the relationship between TCL and Tesseract has been appreciated in some existing commentaries on Tesseract, including in this blog which asks ‘[i]f the arbitrator gets it wrong, will that open the award to an enforcement challenge[?]’ Viewing Tesseract in light of TCL’s previous analysis, it appears that there should be no recourse against an award if an arbitrator correctly identifies the law of an Australian jurisdiction as applicable, but incorrectly applies (or even completely fails to apply) that jurisdiction’s proportionate liability laws. It is now trite law in Australia, as around the world, that errors of law do not ground recourse against an award under either the Model Law or the New York Convention.

Interestingly, the fact that Art. 28 Model Law was the key provision underpinning the High Court’s analysis in Tesseract should also answer a matter identified in some other commentaries – including here, here, and here – around Queensland law prohibiting parties from contracting out of its proportionate liability regime, and Victorian, South Australian, ACT, and Northern Territory law being silent on that contracting out issue. Since Art. 28(1) Model Law permits parties to choose rules of law, and not only law in the sense of a complete State legal system, it is arguably open to arbitrating parties to exclude the operation of proportionate liability laws in all Australian jurisdictions regardless of what they say about contracting out. In such cases, the parties would simply be choosing rules of law – which is a type of choice that Art. 28(1) Model Law permits.

Thus, whilst one of the first questions asked about Tesseract has been ‘[i]s the decision arbitration-friendly?’, it is perhaps not too controversial to suggest that Tesseract was a case less about arbitration itself, and more about private international law.

The book is based on Dr. Ekaterina Aristova’s PhD thesis, completed at the University of Cambridge and subsequently refined through postdoctoral research at the University of Oxford. The core content of the book spans eight chapters across 297 pages, excluding the preface, series editor’s preface, table of contents, and index.

The book explores the approach of English courts to jurisdictional issues in foreign direct liability (FDL) claims brought against English-based parent companies and their foreign subsidiaries as co-defendants. While written from the perspective of English law, it incorporates comparative insights from similar FDL claims in other jurisdictions, including Australia, Canada, EU Member States, and the US.

The book is particularly notable for its observation—citing Professor Robert McCorquodale—that FDL claims intersect with various fields of law, such as domestic criminal law, tort law, contract law, human rights and constitutional law, comparative law, public international law, and private international law. Despite these intersections, the book primarily focuses on the private international law aspect of civil jurisdiction in FDL claims before English courts.

Chapter 1 introduces the book by highlighting the significant role of transnational corporations (TNCs) and the substantial impact their operations have had on human rights violations within the business context. It also briefly clarifies key terminologies used throughout the book.

The introduction is divided into three crucial sections. Section A provides the necessary context for discussing foreign direct liability (FDL) claims. Section B defines the book’s scope, identifies the research questions, and outlines the general methodology employed in the study. Section C concludes with an overview of the book’s structure.

Chapter 2 addresses a major challenge in the regulation of transnational corporations (TNCs): the mismatch between the global nature of TNCs’ operations, carried out by legally distinct companies, and the territorial jurisdiction of sovereign states. Aristova highlights the difficulties in providing a clear legal definition of TNCs due to their complex, multi-tiered structures. While a precise definition is not offered, she notes that TNCs typically possess characteristics of corporate groups and contractual networks.

The chapter then discusses the challenges and potential solutions for holding TNCs accountable, focusing on the principles of corporate legal personality that separate parent companies from their subsidiaries and the public international law principle of territoriality. Finally, Aristova traces the origins of an emerging legislative trend toward legally binding instruments that mandate parent companies of TNCs to conduct human rights due diligence in cross-border business operations.

Chapter 3 provides a comprehensive analysis of litigation against transnational corporations (TNCs) across various jurisdictions, with a particular focus on English courts. It examines how foreign direct liability (FDL) claims have contributed to enhancing corporate accountability for human rights violations.

The chapter begins by introducing a hypothetical FDL case, involving an English-based parent company accused of negligently exercising (or failing to exercise) control over the overseas operations of its foreign subsidiary, resulting in harm to the subsidiary’s employees. Next, it explores how tort law, particularly the negligence element of the duty of care, has been utilised in English courts to circumvent the principle of corporate legal personality, which separates parent companies from their subsidiaries.

Chapter 3 also offers a comparative overview of the global litigation landscape, highlighting key case law developments in Western countries where powerful multinational corporations are headquartered. Jurisdictions considered include the United States, Canada, EU Member States (notably Germany and The Netherlands), and Australia, where claimants have sought justice by initiating FDL claims.

Finally, the chapter addresses the regulatory function of FDL claims, examining issues such as the uneven litigation landscape, fact-sensitive inquiries, the lack of precedents, the interplay between tort law and human rights, barriers to justice in home states, the balance between compensation and deterrence, and the question of whether tort law provides an effective solution.

Chapter 4 examines the capacity and challenges faced by English courts in adjudicating foreign direct liability (FDL) claims.

First, Section A presents the pre-Brexit framework of jurisdictional rules, focusing on Articles 4, 8, 33, and 34 of the Brussels I Recast Regulation. During the UK’s membership in the EU, establishing the domicile of an EU defendant company in transnational and parallel litigation was crucial for determining jurisdiction. It also considers the traditional English jurisdictional rules applied to other foreign companies during the pre-Brexit period.

Second, Section B addresses the impact of Brexit on jurisdictional matters. Post-Brexit, jurisdiction between the UK and the EU is now determined primarily by English traditional jurisdiction rules, the Hague 2005 Convention, and as from 1 July 2025,  the Hague 2019 Convention. Under common law, jurisdiction is fundamentally based on service, which is divided into two categories: jurisdiction as of right and jurisdiction with leave of the court. Jurisdiction as of right is determined by service and submission, subject to the principle of forum non conveniens. Jurisdiction with leave of the court is governed by Civil Procedure Rules 6.36 and 6.37, which require the claimant to demonstrate that (i) a jurisdictional gateway applies, (ii) the claim has a reasonable prospect of success, and (iii) England is the appropriate forum to hear the case.

Finally, Section C concludes by discussing some of the conceptual and practical flaws in the jurisdictional rules applied by English courts in FDL claims.

Chapter 5 explores the impact of transnational corporations (TNCs) and their rapid expansion across borders, which complicates the traditional view of private international law as a neutral set of rules. While Aristova does not seek to challenge the conventional understanding of the discipline or propose a normative stance on its role in addressing globalisation, the chapter instead aims to establish a more refined and focused approach to exercising jurisdiction in FDL claims.

Chapter 6 builds on the objectives of Chapter 5 by identifying the key factors to consider when assessing the suitability of English courts as a forum for disputes involving English parent companies and their foreign subsidiaries as co-defendants. These factors are divided into two categories: the private interests of litigants involved in FDL claims and the State’s interests in exercising jurisdiction over such cases.

Section A briefly examines why claimants often choose to bring FDL claims in England, setting the stage for jurisdictional disputes over the venue. Section B evaluates the claimants’ choice of forum against the procedural fairness of jurisdictional rules from the corporate defendant’s perspective. It considers factors such as the English-based parent company’s personal connections to the home state, the economic and managerial structure of TNCs, the avoidance of parallel litigation across multiple forums, the burden on corporate defendants defending in England, and the predictability and legal certainty of jurisdictional rules.

Section C discusses the broader policy implications English courts cannot avoid when English-based TNCs are accused of overseas human rights violations. It argues that the increasing significance of international, regional, and domestic frameworks for holding TNCs accountable calls for an open acknowledgment of the public interest in trying FDL claims against English parent companies and their subsidiaries in English courts.

Finally, Section D considers English courts’ assertions of jurisdiction in FDL claims from the perspective of host states, addressing foreign policy concerns such as potential infringements on state sovereignty. It examines whether home state adjudication of FDL claims can align with the host state’s interests.

Chapter 7 explores whether introducing a new connecting factor that explicitly accounts for the economic reality of transnational corporations (TNCs) could better address the complexities of FDL claims and improve how English courts determine jurisdiction. Aristova discusses the economic enterprise theory, which proposes that when a parent company and its subsidiaries are closely integrated and function as a single economic entity, their separate legal identities may be disregarded. This theory, Aristova explains, could provide a new framework for jurisdiction in FDL claims.

Aristova acknowledges that the economic enterprise theory has received limited attention in academic and judicial contexts and remains somewhat vague and uncertain. Nevertheless, she suggests that the theory might offer a viable approach for FDL jurisdiction cases in English courts.

I must confess, without claiming expertise in this area, that Chapter 7 is particularly complex—especially the discussion of the economic enterprise theory, which I found unclear. Aristova distinguishes this theory from the concept of piercing the corporate veil, but her arguments would have been more persuasive had she more convincingly demonstrated why this theory is superior to the existing tort-based approach. The current approach, endorsed by the UK Supreme Court, holds that a parent company owes a duty of care to individuals harmed by its subsidiary’s activities if it exercises de facto control or oversight over the relevant harmful actions. Furthermore, Aristova does not advance the economic enterprise theory with much confidence, instead tentatively suggesting it as a potential alternative for future legislative consideration.

Chapter 8 concludes the work by reaffirming the importance of ensuring that victims of FDL claims are given the opportunity to have their day in court and access a remedy.

A minor critique is that the use of abbreviations in the substantive chapters could have been reduced to improve readability. A better approach would be to introduce the full term followed by its abbreviation in each chapter, rather than doing so only once for the entire book.

Overall, the monograph is well-written and highly engaging. It is thorough, particularly in its coverage of English cases, and Aristova demonstrates expert knowledge of the subject.

The book by Brand, Coffee, and Herrup offers a thorough examination of the Hague 2019 Convention on the Recognition and Enforcement of Foreign Judgments (commonly referred to as “The Hague Judgments Convention”). Concluded on July 2, 2019, the Convention currently has 31 Contracting States, including all 27 EU member states, the European Union, and Ukraine. Uruguay has signed and ratified the Convention, which will enter into force on October 1, 2024. The United Kingdom has ratified the Convention, with the Convention taking effect there on July 1, 2025.

The book primarily focuses on the interpretation of The Hague Judgments Convention, offering 226 pages of substantive content spread across 11 chapters (excluding the table of contents, appendix, and index). It is largely intended as a practitioner’s guide. The three authors, all from the United States, and also all member of the U.S. Delegation to Special Commissions and the Diplomatic Sessions of the Hague Conference on Private International Law that adopted the 2005 Convention on Choice of Court Agreements (“Hague 2005 Convention”) and the Hague Judgments Convention. They strive for objectivity but on few occasions critique the Convention through the lens of U.S. conflict of laws. They particularly challenge the Convention’s approach to recognition and enforcement, which relies on rigid rules predominantly linked to physical presence—a methodology influenced by the Brussels I Recast Regulation.

Chapter 1 provides an introduction to The Hague Judgments Convention, highlighting its three core functional provisions. First, Article 4(1) stipulates that recognition and enforcement of judgments can only occur between Contracting States, as outlined in Chapter II of the Convention, and subject to other provisions. Second, Article 5(1) sets forth the eligibility criteria for recognition and enforcement of foreign judgments, listing thirteen specific provisions, with an additional criterion in Section 6. Third, Article 6 establishes the requirement that foreign judgments in rem (concerning property) are only recognised and enforced if the property was located in the court of origin. Regardless of national law, if the property in question was not situated in the country of origin, the Convention mandates that such judgments be denied recognition and enforcement.

The authors in the Introduction highlight the significance of the Hague 2019 Convention in five key ways. First, it facilitates globalisation by supporting the transnational movement of people, goods, and services. Second, the Convention should be viewed as a global instrument that complements the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Hague 2005 Convention on Choice of Court Agreements, as these other instruments do not specifically address the broad spectrum of issues—including non-contractual obligations—covered by the recognition and enforcement of foreign judgments. Third, the Hague 2019 Convention governs the recognition and enforcement of foreign judgments by courts, indicating that it involves the judicial exercise of State powers and necessitates judicial cooperation among contracting states. Fourth, the Convention does not address the jurisdiction to adjudicate (“direct jurisdiction”) but rather assesses how the court of origin exercised jurisdiction based on minimum acceptable conditions (“indirect jurisdiction”). Finally, unlike the Brussels I Recast, which relies on rigid classifications of subject matters, the Hague Judgments Convention adopts a broader approach to eligibility criteria, focusing on the connections between the judgment debtor and the country of origin, the subject matter and the country of origin, as well as consent.

The introduction concludes with reflections on how the Hague Judgments Convention may be interpreted in the future, particularly regarding concepts that are not clearly defined within the Convention.

Chapter 2 offers a concise overview of judgment recognition in the absence of a judgment’s convention, emphasising historical perspectives on the global recognition and enforcement of foreign judgments, as well as national and regional initiatives, particularly in the United States and the European Union. A notable point is the commendation of Article 15 of The Hague Judgments Convention, which permits Contracting States to apply their national rules for recognising and enforcing foreign judgments if those rules are more favourable than the Convention’s provisions. Essentially, the Convention establishes only the minimum criteria for the recognition and enforcement of foreign judgments.

Chapter 3 provides a brief history of the negotiations that led to the formation of The Hague Judgments Convention. Notably, Professor Arthur von Mehren initially proposed a model combining direct and indirect jurisdiction rules for the Convention—a mixed or double Convention model similar to Brussels I Recast. However, unlike Brussels I Recast, these jurisdictional rules were intended to be neither exhaustive nor exclusive. Following the entry into force of The Hague 2005 Convention, which focused on exclusive choice of court agreements related to both jurisdiction and enforcement of foreign judgments, the Hague Experts Working Group was tasked with developing separate conventions: one for recognition and enforcement and another for jurisdiction. Consequently, on July 2, 2019, the Diplomatic Session concluded The Hague Convention on the Recognition and Enforcement of Foreign Judgments.

Chapter 4 centres on the interpretation of The Hague Judgments Convention, making it a crucial part of the book given its overall focus on interpretation. The authors explain that their approach is primarily text-based, adopting a positivist and autonomous methodology. However, they acknowledge several challenges, such as determining the “correct” autonomous interpretation and grappling with terms that are not clearly defined within the Convention. In the absence of a “Global Court” to resolve these ambiguities, there is a risk of divergent interpretations by the courts of Contracting States, which could hinder the realisation of Article 20 of the Convention, which aims to ensure that interpretation respects its international character and promotes uniformity.

The authors also argue that, since the Convention was forged through consensus, any provisions not grounded in clear, established agreement may be subject to varying national interpretations. Despite these challenges, they propose alternative methods for interpreting the Convention, including considering the preamble, extra-textual sources of consensus, the explanatory report, statements from the plenary sessions of the diplomatic conference, and other sources within the Judgments Project, as well as drawing parallels with The Hague 2005 Convention.

Chapters 5 through 9 offer a detailed analysis of the substantive provisions of the Hague Judgments Convention, providing commentary on each Article and its subsections. Each chapter begins by quoting the relevant Article, followed by a precise analysis.

Chapter 5 focuses on Chapter I of the Hague Judgments Convention, which addresses the scope and definitions outlined in Articles 1 to 3. Article 1 establishes that the Convention applies exclusively to civil and commercial matters and pertains to judgments from Contracting countries, excluding inter-state judgments. Article 2 enumerates the matters that are excluded from the Convention’s scope, while Article 3 provides definitions, including the specific meaning of “judgment.”

Chapter 6 delves into Chapter II of the Hague Judgments Convention, which addresses the obligations for recognition and enforcement and the criteria for eligibility outlined in Articles 4 to 6. The authors identify these Articles as the operational core of the Convention, forming the essential framework for the recognition and enforcement of foreign judgments. They emphasize that the Convention is primarily concerned with regulating the process of recognition and enforcement, rather than directly mandating the recognition and enforcement of judgments.

Chapter II of the Convention begins with Article 4, which stipulates that a judgment rendered by a court in a Contracting State must be recognised and enforced in other Contracting States in accordance with the provisions of Chapter II. Article 5 outlines the specific and often narrow criteria for eligibility for the recognition and enforcement of judgments that possess certain characteristics. Article 6 establishes obligations that both regulate and restrict the recognition or enforcement of certain judgments, overriding other provisions of the Convention in the process.

Chapter 7 explores additional provisions related to the obligations of recognition and enforcement, as outlined in Articles 7 to 15 of the Hague Judgments Convention. Article 7 introduces discretionary grounds for refusing the recognition or enforcement of judgments that fall within the Convention’s scope and meet the eligibility criteria of Article 5(1). In some cases, these grounds are broader than those listed in the Hague 2005 Convention. The authors emphasize that the Convention is designed to regulate the recognition and enforcement of judgments within its defined scope, rather than to establish a comprehensive policy for all judgments.

Article 8 deals with the status of certain judgments that may include content outside the Convention’s scope, such as preliminary questions. Article 9 introduces a severability rule, while Article 10 addresses the handling of damages awards. Article 11 brings judicial settlements under the Convention for enforcement purposes. Article 12 outlines the documents required when seeking recognition or enforcement, and Article 13 covers additional procedural points. Article 14 deals with the costs of proceedings. Lastly, Article 15 preserves the right of Contracting States to recognise or enforce judgments under their national law, including their conflict of law rules, but prohibits this in cases involving judgments on rights in rem in immovable property that fall under Article 6.

Chapter 8 examines the general clauses outlined in Articles 16 to 23 of The Hague Judgments Convention. The authors note that these “General Clauses” have the potential to significantly influence the outcome of specific requests for recognition or enforcement. Article 16, for instance, contains transitional rules that determine when the Convention’s provisions will apply to the recognition and enforcement of judgments, based on the date the Convention takes effect between the State of origin and the requested state.

Articles 17 to 19 allow States to make certain declarations that can tailor the application of specific Convention rules under particular circumstances. Article 20 emphasizes the importance of promoting uniformity in the interpretation and application of the Convention. Article 21 authorizes a review of the Convention’s operation. Article 22 provides rules for applying the Convention in “non-unified legal systems,” while Article 23 addresses the relationship between the Convention and other international instruments.

Chapter 9 covers the final clauses outlined in Articles 24 to 32 of The Hague Judgments Convention. The authors explain that these “Final Clauses,” found in Chapter IV of the Convention, establish the rules governing the Convention as a treaty. Article 24 specifies the procedures for States to sign, ratify, accept, approve, or accede to the Convention. Article 25 allows States with two or more territorial units, where different legal systems apply to matters covered by the Convention, to adapt the application of the Convention to those units.

Articles 26 and 27 set forth rules for Regional Economic Integration Organizations (REIOs). Article 28 details the provisions regarding the entry into force of the Convention, while Article 29 outlines the effects of the Convention between Contracting States. Article 31 provides the procedure for a Contracting State to denounce the Convention, and Article 32 outlines the rules for depositary notifications.

Chapter 10 examines the role of the Convention within the context of current practices in the United States. The authors note that while the U.S. has generally been receptive to recognising and enforcing foreign judgments, U.S. judgments have not always received reciprocal treatment in other countries. They suggest that the Convention could help address this issue by improving the treatment of U.S. judgments abroad. The chapter also briefly explores the potential impact of the Convention’s implementation in the U.S., particularly considering whether Article 15 might encourage U.S. courts to adopt an even more liberal approach to the recognition and enforcement of foreign judgments.

Chapter 11 serves as the conclusion, summarising the authors’ key points. They make three general observations: First, they argue that the 2019 Hague Judgments Convention, on balance, represents a significant positive development for transnational litigation, offering a comprehensive framework for the recognition and enforcement of a wide range of foreign judgments. Second, they caution that some of the Convention’s central provisions may eventually be seen as flawed and outdated. Third, they suggest that there are measures that could be explored and utilised to mitigate these potential issues.

Overall, the book leaves a positive impression. It is accessible and easy to understand, particularly for those with a background in private international law. The writing is clear and free from typographical errors.

Written by Rishi Gulati

After a highly successful first series, all episodes of UEA Law School’s Second Podcast Series hosted by Rishi Gulati are now available on leading platforms, including on Apple Podcasts, Spotify and SoundCloud. The second series consists of several interesting discussions on key transnational concerns with experts from around the world.

There are two episodes on climate change litigation. Tyndall Centre PhD researcher Millie Prosser and Friends of The Earth Lawyer and PhD researcher Acland Bryant are joined by the renowned environmental lawyer David Wolfe KC and Norwich-based climate litigator Dr Andrew Boswell to discuss the opportunities and limitations in UK climate change litigation in the context of judicial review, and Rishi Gulati is joined by Dr Dalia Palombo on the potential impact of the landmark April 2024 European Court of Human Rights climate change decisions on corporations.

In other episodes, there are conversations between the host and Mr William Rook on sports and human rights, with Dr Nikos Skoutaris on state secession, and with Dr Hansong Li on the history & current political climate of the Indo-Pacific.

The series also consists of recordings from two fascinating events. One of the episode presents the Earlham Law Lecture 2024 by  Professor Sarah Green, Law Commissioner for Commercial and Common Law “on the topic: Of Digital Assets and Sausages: Confessions of a Law Commissioner”. Another episode brings to listeners the launch of the Elgar Companion to the United Nations Commission on International Trade Law which includes remarks from Ms Anna Joubin-Bret,  Secretary of the United Nations Commission on International Trade Law, and Director at the International Trade Law Division of the Office of Legal Affairs at the United Nations. Finally, one of the episodes is a conversation between Rishi Gulati and Ms Kate Lister, London-based singer and song-writer, voice coach, and graduate of the Guildhall School of Music, on presentation skills and voice tips.

The third series will return in September 2024 with several more fascinating discussions!

The latest issue of RabelsZ has just been released. It contains the following contributions which are also available open access:

OBITUARY

Holger Fleischer, Heike Schweitzer: Ernst-Joachim Mestmäcker – † 22 April 2024, pp. 215–222, DOI: https://doi.org/10.1628/rabelsz-2024-0033

ESSAYS

Klaus Ulrich Schmolke: Das Prinzip der beschränkten Gesellschafterhaftung – Ein Streifzug durch die Debatten- und Argumentationsgeschichte, pp. 223–277, DOI: https://doi.org/10.1628/rabelsz-2024-0022

The Concept of Limited Shareholder Liability – A Walk Through History’s Debates and Lines of Argument. Today, the concept of limited shareholder liability is considered a core feature of the modern corporation. And indeed, limited liability has been continuously provided for in the corporate (and limited partnership) laws of western jurisdictions since the 19th century. However, limited liability is not such a matter of course as it is widely perceived today. Rather, it took tough disputes and hard-fought debates before the legislators of the major European jurisdictions of the time were able to bring themselves to provide for limited shareholder liability without tying it to prior state approval. Even after this breakthrough, the debate about the legitimacy and scope of limited liability flared up time and again. This is particularly true for the close corporation, in which the shareholders also exercise control over the management of the business. This article traces the historical dimension of the transnational debate and evaluates the arguments for and against limited shareholder liability that have been put forward over time. The insights gained thereby provide a basis for analysing and evaluating the currently revived criticism of limited shareholder liability.

Sandra Hadrowicz: Natural Restitution in a Comparative Legal Perspective –
An Underappreciated Remedy or an Unnecessary Relic?, pp. 278–306, DOI: https://doi.org/10.1628/rabelsz-2024-0030

Natural restitution is one of the permissible methods for remedying damage in numerous legal orders. However, this form of compensation is much less frequently used in practice than monetary compensation. While monetary compensation is a universally found method of reparation in major legal orders, the issue is more complex when it comes to natural restitution. In some countries (e. g. England, France, the Netherlands), natural restitution is used only by way of exception, in specific cases. In others (e. g. Poland), despite the injured party being given the right to choose the method of reparation, natural restitution is very rarely requested by injured parties. Even more intriguingly, in jurisdictions where natural restitution is theoretically upheld as a principle – including Germany, Austria, Portugal, and Spain – its actual adoption by courts remains relatively rare. The question then arises: Have courts and victims come to undervalue natural restitution or even forgotten of its existence? Or, conversely, does it represent an obsolete or unnecessary element of compensation law?

Domenico Damascelli: Determining the Applicable Law in Matrimonial Property Regimes –
On the Interpretation of Article 26 Regulation (EU) No 2016/1103 in the Absence of Choice-of-law and Common Habitual Residence, pp. 307–324, DOI: https://doi.org/10.1628/rabelsz-2024-0032

Wishing to remain faithful to the alleged principle of immutability of the law governing matrimonial property regimes, the literature interprets Art. 26 para. 1 Regulation (EU) No 2016/1103 such that if the spouses have their habitual residence in different States at the time of marriage, it is necessary to wait for a period of time to ascertain whether they will move it to the same State. If so, only the law of that State is to apply (retroactively); if not, one of the other two laws indicated in Art. 26 is to apply (once and for all). This position gives rise to uncertainty in the determination of the applicable law and is contradicted by literal, systematic and teleological interpretations of the Regulation, which show that, in the absence of a common habitual residence, the law governing the matrimonial property relationships is, depending on the circumstances, the one provided for in letters b or c of para. 1 of Art. 26. However, this law may change the moment the existence of a first common habitual residence is ascertained, regardless of whether it was established immediately, shortly, or long after the conclusion of the marriage.

María Mercedes Albornoz: Private International Law in Mexico’s New National Code of Civil and Family Procedure, pp. 325–354, DOI: https://doi.org/10.1628/rabelsz-2024-0031

In June 2023, Mexico enacted a National Code of Civil and Family Procedure that includes private international law provisions on procedural matters. The adoption of this Code constitutes a landmark reform in the Mexican legal system, modernizing and, for the first time, unifying civil and family procedural laws across the country. The Code’s primary objectives are to streamline legal processes, enhance judicial efficiency, and promote consistency in civil and family litigation. This article contains a study of the main rules that adjust the goals of the Code to cross-border cases. Some of those rules introduce significant innovations compared with previous bodies of procedural legislation in force in Mexico. It sets direct rules for international jurisdiction as well as novel provisions on foreign law, rules on international cooperation and recognition and enforcement of foreign judgments, and provisions on international child abduction. Furthermore, the Code promotes digital justice and thus expressly allows and promotes the use of technological resources in international cooperation. All these rules are expected to improve access to justice in private international law cases.

MATERIALS

Jürgen Samtleben: Mexiko: Nationales Zivil- und Familienprozessgesetzbuch 2023 (Auszug) [Mexico: National Code of Civil and Family Procedures 2023 (German Translation, Excerpt)], pp. 355–378, DOI: https://doi.org/10.1628/rabelsz-2024-0021

BOOK REVIEWS

As always, this issue also contains several reviews of literature in the fields of private international law, international civil procedure, transnational law, and comparative law (pp. 379–421).

Issue 3/2024 of ZEuP – Zeitschrift für Europäisches Privatrecht has just been published. It includes contributions on EU private law, comparative law, legal history, uniform law, and private international law. The full table of content can be accessed here.

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

• Die Europäisierung des internationalen Erwachsenenschutzes
  Jan von Hein on the proposal for a regulation on the international protection of adults: On 31.5.2023, the European Commission presented a proposal for a regulation on the international protection of adults. This proposal is closely intertwined with the Hague Convention on the international protection of adults. Therefore, the proposed regulation shall be accompanied by a Council decision authorising Member States to become or remain parties to the Hague Convention. The following contribution analyses the proposed regulation and its relationship with the Hague Convention.
• Justizgrundrechte im Schiedsverfahren? – Pechstein und die Folgen fu?r die Handelsschiedsgerichtsbarkeit
  Gerhard Wagner and Oguzhan Samanci on human rights and commercial arbitration: Does the ECHR and the German constitution require public hearings in arbitral proceedings, provided that one of the parties had the power to impose the arbitration agreement on the other through a contract of adhesion? This article analyzes the potential implications that the Pechstein decision of the Federal Constitutional Court and ist precursor in the jurisprudence of the ECHR may have for commercial arbitration. The focus is on arbitration clauses in general business terms and in contracts with undertakings that occupy a dominant position in a specific market. The conclusion is that, despite the broad formula employed by the Federal Constitutional Court, the right to a public hearing should remain limited to sports arbitration.
• Die Auslegung von EuGH-Entscheidungen – ein Blick aus der Gerichtspraxis
  David Ullenboom on the interpretation of CJEU decisions: This article examines the question whether a European methodology is needed to interpret judgments of the CJEU for judicial practice. It argues that judgments of the CJEU need to be interpreted in the same way as legal provisions and are therefore subject to a grammatical, systematic, genetic and teleological interpretation in order to determine their meaning for future legal cases.
• Schweizerisches Bundesgericht, 8 June 2023, 5A_391/2021
  Tanja Domej discusses a decision of the Swiss Federal Tribunal on the recognition of the deletion of a gender registration under German law.

Hart Publishing, Oxford, UK is proud to announce the release of Private International Law in BRICS: Convergence, Divergence, and Reciprocal Lessons co-edited by Dr. Stellina Jolly, South Asian University, Delhi, India, and Professor Saloni Khanderia, O.P. Jindal Global University, Sonipat, India. The book forms part of Hart’s prestigious Private International Law Series with Professor Paul Beaumont, University of Stirling, as its Series Editor.

Authored by leading scholars and practitioners in private international law, the chapters draw on domestic legislation and case law interpretations in each of these emerging economies. They cover a wide array of topics, including contractual and non-contractual obligations, choice of court agreements, and personal matters such as marriage, divorce, matrimonial property, succession, and surrogacy—all within the context of increased cross-border movement of people.

As the title suggests, this book explores the intricate landscape of private international law within the BRICS countries—Brazil, Russia, India, China, and South Africa. Divided into six sections, each part of the book offers a thematic analysis of core private international law-related questions and an in-depth examination of the reciprocal lessons each BRICS country can share concerning each of three core conflict of law issues – the international jurisdiction of courts, the applicable law and the effectiveness of foreign decisions (both judgments and arbitral awards) overseas.

This book serves as an invaluable comparative resource for governments, legislators, traders, academics, researchers, and students interested in the intricate legal dynamics at play within the BRICS nations. With the BRICS countries collectively representing around 42% of the world’s population and approximately 23% of global GDP, the need for enhanced legal cooperation and harmonization is more critical than ever. Over the past decade, cross-border interactions within the BRICS bloc and beyond have escalated significantly. However, the diversity in political, legal, economic, and social structures, coupled with the lack of geographical proximity and historical connections, has posed challenges to effective cooperation and the ability of BRICS to play a proactive role in global governance. The 15 BRICS Summits held between 2009 and 2023 have primarily focused on economic cooperation, particularly in trade, investment, foreign affairs, and innovation. While these areas are crucial, they cannot be viewed in isolation. Increased trade and cooperation inevitably lead to the movement of persons, goods, and services across national boundaries, raising important legal questions. For instance, economic cooperation that facilitates the movement of people also impacts personal relationships. Scenarios such as marriage, divorce, adoption, surrogacy, and inheritance across borders create complex legal challenges that require a robust understanding of private international law. Will a marriage or divorce be recognized in the home country? How will the nationality of a child born through surrogacy or adopted abroad be determined? These questions, though critical, have not yet been thoroughly examined in the context of BRICS.

Recognizing this gap, our book seeks to explore and analyze the role of private international law in fostering enhanced cooperation among BRICS countries. In pursuit of its objectives, the project draws lessons from various multilateral and supranational instruments operating under the HCCH – Hague Conference on Private International Law and in the European Union, renowned for pioneering clear, predictable rules to regulate international disputes through the unification of laws.

Details of the book as well as purchase options can be found here!

Professor Konrad Duden, Chair of Private Law, Private International Law and Comparative Law at the University of Hamburg, is looking to appoint a research assistant, with the option to work towards a PhD.

More information can be found here.

Although the United States signed Hague Convention on Choice of Court Agreements (COCA) in 2009, it has yet to ratify it. In this post, I report on some recent developments that offer a basis for (cautious) optimism that the United States may soon take the necessary steps to ratify both COCA and the Hague Judgments Convention.

On January 19, 2009, the United States signed COCA. In the years that followed, the State Department had conversations with the Uniform Law Commission (ULC) about how COCA should be implemented. The ULC is a non-partisan, non-profit, unincorporated association comprised of volunteer attorneys appointed by each state of the United States plus the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. Its mission is to promote uniformity in the law among these jurisdictions to the extent desirable and practicable.

Because the enforcement of foreign money judgments has been governed by state law in the United States since 1938, and because the ULC has promulgated widely adopted uniform state legislation on this topic, the ULC argued that COCA should be implemented—at least in part—through state law. In particular, the ULC proposed that the treaty be implemented through “cooperative federalism.” Under this approach, there would be parallel federal legislation and state legislation implementing the treaty, with a reverse preemption provision in the federal legislation allowing state law to govern if the state had passed the appropriate act.

This proposal ultimately foundered due to disagreements between the State Department and the ULC as to whether federal courts sitting in diversity would apply the state or federal legislation. Stasis ensued. The State Department was reluctant to present the treaty to the Senate without the support of the ULC. And the ULC was reluctant to endorse an implementation framework that displaced existing state law.

On March 2, 2022, the United States signed the Hague Judgments Convention (HJC), a multilateral agreement that seeks to facilitate the recognition and enforcement of judgments more generally. Shortly thereafter, the ULC approved a Study Committee, chaired by Bill Henning and Diane Boyer-Vine, to consider how best to implement the HJC in the United States. The goal was to find a method of implementation that would minimize the disruption to state law while representing sound public policy. About a year after the Study Committee was created, it sought and received permission to revisit the question of how best to implement COCA. I served as the Reporter for the Study Committee.

Following more than eighteen months of discussion and reflection, the Study Committee recommended that the ULC revisit its earlier position on COCA implementation. Specifically, the Study Committee recommended that the ULC abandon the cooperative federalism approach and leave the method of implementing COCA to the discretion of the State Department. This recommendation, which included an endorsement of COCA, was made subject to several uncontroversial caveats relating to the preservation of state law. The recommendation was approved by the ULC’s Executive Committee on July 18, 2024.

These developments should make it easier for the State Department to obtain the advice and consent of the Senate should it choose to push for ratification of COCA. Historically, the Senate has been sensitive to issues of federalism and sometimes hesitant to give its advice and consent for conventions that displace state law. The endorsement of the ULC, an organization formed by the states with a mission of preserving state law, will signal to the Senate that any disruption of state law is acceptable and in the public interest.

The Study Committee’s initial charge was to consider the best method of implementing the Hague Judgments Convention (HJC). Whereas COCA seeks to facilitate the recognition and enforcement of judgments rendered by courts selected in an exclusive choice-of-court agreement, the HJC seeks to facilitate the recognition and enforcement of other judgments. Because the enforcement of foreign money judgments in the United States has long been governed by state law, the Study Committee sought to identify a path to ratification that would preserve existing state law to the extent possible. It concluded that this path ran through Article 15 of the HJC.

Article 15 reads as follows:

Subject to Article 6 [dealing with judgments based on rights in rem in real property], this Convention does not prevent the recognition or enforcement of judgments under national law.

This language makes clear that ratifying countries may be more generous when it comes to the recognition and enforcement of foreign judgments than the Convention requires. It follows that state law may continue to be used to recognize and enforce foreign judgments in the United States so long as applying that law produces outcomes consistent with the minimum standards laid down by the HJC.

With this insight in mind, the Study Committee recommended that the ULC “endorse ratification of the Hague Judgments Convention as long as the United States preserves the ability of litigants to seek recognition and enforcement of money judgments rendered in another country under existing state law . . . in cases where applying state law would produce results that are consistent with the requirements of the Convention.” This recommendation was approved by the ULC’s Executive Committee on July 18, 2024.

How might this work in practice? Imagine the following scenario. Immediately after the United States ratifies the HJC, Congress enacts a statute listing the minimum standards that must be met for a foreign judgment to be enforced via the HJC in the United States. Thereafter, judgment creditors would have a choice. On the one hand, they could seek recognition and enforcement under the federal statute. On the other hand, they could seek recognition and enforcement under state law. The benefit of this approach is that it preserves the ability of judgment creditors to rely on (what most observers describe as) a simple and efficient system of state law to recognize and enforce foreign judgments. The minimum standards laid down in the federal statute ensure that the application of state law in such cases will not take the United States out of compliance with the HJC. And if the judgment creditors prefer to enforce under the federal statute, they are free to do so.

With the Study Committee having completed its work, the action will now shift to the State Department’s Advisory Committee on Private International Law, which will hold its next meeting at Texas A&M University School of Law in Fort Worth, Texas on Thursday and Friday, October 24-25, 2024. At that meeting, the State Department will be seeking input and guidance with respect to efforts toward U.S. ratification of COCA, the HJC, and the Singapore Convention.

This post is kindly provided by Dr. Meng Yu, lecturer at China University of Political Science and Law, and co-founder of China Justice Observer.

Key Takeaways:

• In June 2024, the China-ASEAN Free Trade Area Nanning International Commercial Tribunal under the Nanning Railway Transportation Intermediate Court in Guangxi ruled to recognize and enforce a Thai monetary judgment (Guangxi Nanning China Travel Service, Ltd. v. Orient Thai Airlines Co., Ltd. (2023) Gui 71 Xie Wai Ren No. 1).
• Apart from being the first case of enforcing Thai monetary judgments in China, it is also the first publicly reported case confirming a reciprocal relationship based on “presumptive reciprocity”.
• The Chinese court’s confirmation that “presumptive reciprocity”, as outlined in the Nanning Statement, is a form of mutual consensus between China and ASEAN countries helps to promote the circulation of judgments within the China-ASEAN region.

On 18 June 2024, the China-ASEAN Free Trade Area Nanning International Commercial Tribunal under the Nanning Railway Transportation Intermediate Court, Guangxi (hereafter the “Nanning Court”), ruled to recognize and enforce a Thai monetary judgment.

This case marks the first time that a Chinese court has recognized and enforced a Thai monetary judgment. It is also the first publicly reported case to confirm a reciprocal relationship based on “presumptive reciprocity”. The “presumptive reciprocity” test, outlined in the Nanning Statement of the 2nd China-ASEAN Justice Forum in 2017, has now been confirmed by the Nanning Court as a form of reciprocal consensus [1] between China and ASEAN countries. This explains the use of the term “presumptive reciprocity consensus” in the Chinese news report (cf. Guangxi High People’s Court’s news).

Although the full text of the judgment has not yet been made publicly available, the Chinese news report and related court announcements provide valuable details about the case. This case marks the latest application of the new reciprocity requirement by Chinese courts and actively promotes the circulation of judgments within the China-ASEAN region.

I. Case background

In July 2015, Guangxi Nanning China Travel Service Co., Ltd. (“Nanning China Travel”), a Chinese company, and Orient Thai Airlines Co., Ltd. (“Orient Thai Airlines”), a Thai company, entered into an airline ticket sales contract based on their long-term cooperation in charter flights. The contract was signed in Nanning and stipulated that disputes would be settled by the court where the Orient Thai Airlines was located. Subsequently, disputes arose between the parties, and Nanning China Travel filed a lawsuit against Orient Thai Airlines in the Central Intellectual Property and International Trade Court of Thailand (“Thai Court”).

On 16 September 2019, the Thai Court issued a civil judgment No. GorKor 166/2562 (the “Thai Judgment”), ordering Orient Thai Airlines to pay CNY 18,002,676 (approx. USD 2,476,330) plus interest to Nanning China Travel.

In February 2023, in order to enforce the rights confirmed by the Thai Judgment, and considering that Orient Thai Airlines has multiple branches in China that may have executable assets, Nanning China Travel applied to the Nanning Court for recognition and enforcement of the Thai Judgment.

On 18 June 2024, the Nanning Court rendered the civil ruling (2023) Gui 71 Xie Wai Ren No. 1 to recognize and enforce the Thai Judgment.

II. Court’s views

Although China and Thailand have signed the “Treaty on Judicial Assistance in Civil and Commercial Matters and on Cooperation in Arbitration”, the treaty does not contain provisions on judgment recognition and enforcement. In the absence of a treaty, as this is the case with Thailand, recognition and enforcement can be pursued on the basis of the principle of reciprocity (New Art. 299 of the PRC Civil Procedure Law [former article 288 of the 2021 Amendment of the PRC Civil Procedure Law]).[2]

Determining whether reciprocity exists between China and Thailand is, therefore, a crucial first step.

As Judge Huayan Wang of the Nanning Court explained, “We (the court) examined two issues: the time limit of the application for recognition and enforcement, and the existence of reciprocity. The key to this case is the determination of reciprocal consensus, in the absence of de jure reciprocity and de facto reciprocity”.

In doing so, the Nanning Court referred to the presumptive reciprocity test proposed in the Nanning Statement as a form of reciprocal consensus, and ultimately determined that reciprocity existed between China and Thailand.

III. Comments

1. “Presumptive reciprocity” in this case

Interestingly, the Nanning Statement was adopted in Nanning in June 2017, and seven years later, in a striking coincidence, a local intermediate court in the same city confirmed the reciprocity between China and Thailand, relying on presumptive reciprocity proposed the Nanning Statement.

Simply put, the so-called “presumptive reciprocity” means that, unless proven otherwise, reciprocity is presumed to exist between the requested State and the State of origin, to the extent permitted by domestic law of the requested State.[3] Here, “proven otherwise” refers to any existing case where the judgments from the requested State have been refused enforcement in the State of origin on the ground of the lack of reciprocity. Since no such cases were found by the Nanning Court, reciprocity is presumed to exist between Thailand and China.

It is, however, still unclear how Thai courts would react to the “first move” from Chinese courts: will they follow suit or not? Given that it is unlikely, if not impossible, to have any foreign judgment recognized and enforced in Thailand, as discussed in an post provided by Asian Business Law Institute (ABLI), should a Thai court refuse to recognize and enforce a Chinese judgment on the ground of lack of reciprocity one day, the presumed reciprocity might have to be reviewed, or even revoked. By then, will there be any other way out? More issues need to be clarified and settled in future cases.

2. Wider Implication: reciprocal understanding or consensus in China-ASEAN region

What is more noteworthy is that the reciprocity consensus applied by Nanning court is considered to be a subcategory of “reciprocal understanding or consensus”, which is one of the three new reciprocity tests in addition to de jure reciprocity and reciprocal commitment.

Chart – Reciprocity tests in China

Compared to the other two current reciprocity tests—de jure reciprocity and reciprocal commitment—reciprocal understanding or consensus is a more easily overlooked test, because it is neither as well-known as de jure reciprocity nor as novel as the reciprocal commitment (cf. other related posts including: (i) De jure reciprocity – The First Time China Recognizes English Judgment, Implementing 2022 Judicial Policy in Full; (ii) Reciprocal commitment – First Case of Reciprocal Commitment: China Requests Azerbaijan to Enforce its Judgment Based on Reciprocity; (iii) How Chinese Courts Determine Reciprocity in Foreign Judgment Enforcement – Breakthrough for Collecting Judgments in China Series (III); (iv) China’s 2022 Landmark Judicial Policy Clears Final Hurdle for Enforcement of Foreign Judgments.)

Although the presumptive reciprocity proposed in the Nanning Statement is considered the best example of reciprocal consensus, from the time the Nanning Statement was adopted in 2017 until June 2024, the “presumptive reciprocity” remained largely theoretical. Prior to this case, there were no publicly reported cases indicating whether, and if so, how, Chinese courts applied “presumptive reciprocity” when dealing with cases involving the recognition and enforcement of judgments from ASEAN countries.

This case changed this situation.

The “presumptive reciprocity” outlined in the Nanning Statement, as a form of reciprocal consensus between China and ASEAN countries, has been confirmed by the Chinese court in this case. This means that for the ten ASEAN countries, apart from Laos and Vietnam, which already have applicable bilateral treaties with China, the remaining eight countries—Brunei Darussalam, Burma, Cambodia, Indonesia, Malaysia, the Philippines, Singapore, and Thailand—can have their civil and commercial judgments recognized and enforced in China based on the presumptive reciprocity.

In addition, for monetary judgments from Singapore, there is also the China-Singapore Memorandum of Guidance (MOG), which can be considered another example of “reciprocal understanding or consensus”. This MOG serves as a practical guideline for Chinese courts on how to recognize and enforce Singaporean monetary judgments. (Cf. other related posts including: (i) Series – Singapore-China Judgments Recognition and Enforcement; (ii) Chinese Court Recognizes Singaporean Judgment Again: No Bilateral Treaty But Only Memorandum?).

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[1] Since the 2000s, the standards to establish reciprocity have evolved significantly, reflecting China’s efforts to liberalize its rules on the recognition and enforcement of foreign judgments. The 2021 “Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide” issued by China’s Supreme People’s Court introduces new standards for determining reciprocity that replace the previous de facto reciprocity test. The new reciprocity standards include de jure reciprocity, reciprocal understanding or consensus, and reciprocal commitment. These standards coincide with possible outreaches of legislative, judicial, and administrative branches.

[2] Art. 299: “After examining an application or request for recognition and enforcement of a legally effective judgment or ruling of a foreign court in accordance with an international treaty concluded or acceded to by the People’s Republic of China or under the principle of reciprocity, a people’s court shall render a ruling to recognise the legal force of the judgment or ruling and issue an order for enforcement, as needed, to enforce the judgment or ruling in accordance with the relevant provisions of this Law, if   the people’s court deems that the judgment or ruling neither violates the basic principles of the laws of the People’s Republic of China nor damages the sovereignty, security, and public interest of the State” (emphasis added).

[3] Below is the original statement from the Nanning Statement:“If two countries have not been bound by any international treaty on mutual recognition and enforcement of foreign civil or commercial judgments, both countries may, subject to their domestic laws, presume the existence of their reciprocal relationship, when it comes to the judicial procedure of recognizing or enforcing such judgments made by courts of the other country, provided that the courts of the other country had not refused to recognize or enforce such judgments on the ground of lack of reciprocity.”(emphasis added)

The second edition of Commercial Litigation in Anglophone Africa: The Law Relating to Civil Jurisdiction, Enforcement of Foreign Judgments and Interim Remedies by Andrew Moran KC and Anthony Kennedy was published in December 2022. The blurb of the book reads as follows:

Commercial Litigation in Anglophone Africa details the broad framework of the private international law rules in operation in each of the sixteen Anglophone jurisdictions considered (Botswana, Gambia, Ghana, Eswatini, Kenya, Lesotho, Liberia, Malawi, Namibia, Nigeria, Sierra Leone, South Africa, Tanzania, Uganda, Zambia and Zimbabwe).

The authors identify and provide a refined explanation of the law to be applied as it relates to: (i) civil jurisdiction over commercial disputes involving a foreign element; (ii) the enforcement of foreign judgments; and (iii) the availability and nature of the interim remedies, in each of the sixteen jurisdictions addressed. The authors have also provided comprehensive coverage of the potential availability of an anti-suit injunction (in common law jurisdictions) or anti-suit interdict (in Roman-Dutch law jurisdictions). 

The first edition of the book was reviewed in the Journal of Private International Law (Okoli, 2020), South African Law Journal (Ordor, 2019) and Lloyds Maritime and Commercial Law Quarterly (McParland, 2019). Overall, the reviews of the 1st edition of the book were very positive.

The preface to the second edition of the book notes several recent developments that have been taken into account. One recent development worth noting is the rise in the number of anti-suit and anti-arbitration injunctions in the English-speaking African courts of, for example, Ghana,[1] South Africa,[2] and Nigeria.[3] I also observe that the book incorporates about seventy new decided cases that were not utilised in the previous edition.

Overall, my impression of this book is positive. Practitioners interested in commercial conflict of laws in Africa will find this work very useful.

[1] The Attorney General v Cassius Mining Limited (Suit No CM/MISC/0568/2023), decided on 31 July 2023; Magna International Transport Ltd v Ghana Telecom Communications Co Ltd (Suit No: H1/227/2018), decided on 17 October 2019; Quantum Oil Terminals Ltd v International Finance Corporation, Suit No: Misc/00228/17 (Rulings of 8 January 2018 and 23 February 2018).

[2] Vedanta Resources Holdings Limited v ZCCM Investment Holdings PLC [2019] ZAGPJHC 250 (23 June 2019).

[3] Shell Petroleum Development Company Nigeria Limited v Crestar Integrated Natural Resources Limited (2016) 9 NWLR 300, 322; Zenith Global Merchant Limited v Zhongfu International Investment (Nig) FZE (2017) All FWLR 1837.  See also Ecobank (Nig) Ltd & Ors v Aiteo Eastern E and P Co Ltd & Anor (2022) LPELR-56994(CA).

Verónica Ruiz Abou-Nigm (Edinburgh), Paul Beaumont (Stirling) and Jonathan Harris (KCL) are pleased to announce that Sheffield Law School will host a Symposium on 6 September 2024 to celebrate the scholarly work of emeritus professor David McClean CBE KC (Hon).

David has long been one of the leading Conflict of Laws (Private International Law) scholars in English law and across countries through the Commonwealth. For over six decades his authoritative work on Private International Law has been internationally recognised.

This Symposium will bring together colleagues and friends, from the UK and abroad, to celebrate David’s many contributions.

Keynote speakers: Lord Collins of Mapesbury, Hans van Loon, George Leloudas and Kisch Beevers. Chairs and Speakers: David McClean, Roxana Banu, Jonathan Harris, Campbell McLachlan, Verónica Ruiz Abou-Nigm, Jayne Holliday, Paul Beaumont, Abubakri Yekini, Alex Mills, Andreas Ruehmkorf, Auguste Hocking, and Daniel Wand.

This is an in-person event. It is open to all, subject to capacity, but registration is required. Please follow this link for more information about the event, including programme and registration.

https://www.tickettailor.com/events/schooloflawuos/1337648

By Zihao Fan (Ph.D. Candidate in Law, Peking University Law School)

The ‘Global Value Chains and Transnational Private Law’ workshop was successfully held at Edinburgh Law School in a hybrid format from June 23 to 25, 2024. This project is funded by the Law Schools Global League (LSGL), convened by Prof. Verónica Ruiz Abou-Nigm (Edinburgh Law School) and Prof. Michael Nietsch (EBS Law School). The workshop attracted scholars and researchers from 15 universities and institutions worldwide. Over two days, participants shared inspiring work in progress and engaged in discussions on how transnational private law influences and shapes global supply chains. During the workshop plans for the upcoming publication and dissemination were discussed. This overview aims to briefly summarise the research outcomes presented during the workshop (following the sequence of the presentations).

Morning Session on 24 June

Dr. Catherine Pedamon (Westminster Law School) and Dr. Simone Lamont-Black (Edinburgh Law School) first introduced a previous related workshop held in Edinburgh Law School on ‘Sustainability in the Food Supply Chain: Challenges and the Role of Law & Policy’. This project consists of contributions from a variety of legal and policy areas at the UK, EU, and international levels, focusing on the role of law (including commercial law, contract law, competition law, and corporate law) in resolving regulatory difficulties and opportunities in food supply chains, with a particular emphasis on sustainability and food security, therefore highly connected to the current project.

Afterwards, Dr. Pedamon and Dr. Lamont-Black also presented their research titled ‘Responsible Contracting in Agri-Food Supply Chains: Mitigating Power Asymmetries on the Road Towards Sustainability’. They pointed out that recent events like the Covid-19 pandemic, the war in Ukraine, climate-related price instability, and inflation have severely impacted the global economy, creating an unprecedented food crisis. Complex food supply chains reveal power imbalances, with larger trading partners often imposing unfair practices on less powerful suppliers. This research aims to shed light on the issues surrounding governance gaps and the various challenges and opportunities that arise from private international law, examining UK domestic law pertaining to food supply relationships, taking the EU level regulation into account, and providing potential examples of its implementation.

Dr. Francesca Farrington (School of Law, University of Aberdeen) and Dr. Nevena Jevremovic (School of Law, University of Aberdeen) then presented their work titled ‘Private International Law and the Race to the Bottom in Labour Standards: The Case of Begum v Maran’, discussed the recent Court of Appeal case, Begum v Maran. They noted that the literature has generally focused on the unique arguments relating to duty of care, and the Court of Appeal’s conclusion that the claim was not fanciful – it illustrates that the Rome II Regulation does little to prevent a ‘race to the bottom’ in labour standards especially given that corporate liability was a rapidly expanding field of law. They also discussed the different results when courts adopting different characterization methods on business-related human rights (BHR) claims.

Dr. Sara Sanchez Fernandez (IE Law School, Spain) shared her research on ‘Civil Liability under the CS3D: International Jurisdiction Rules and Access to an Effective Legal Remedy’. She first introduced the background: the EU recently enacted the Corporate Sustainability Due Diligence Directive (CS3D), which establishes due diligence responsibilities and civil consequences for violations of such obligations. The CS3D establishes rules for organizations’ risk-based due diligence requirements across their entire value chain. Her research centred on the assurance of access to Member State courts for CS3D-related issues, scrutinizing the interaction between CS3D, international jurisdiction in the Brussels I bis Regulation, and the foreign jurisdiction rules of Member States. She also explored the potential solutions for cases where entities are non-EU domiciled.

First Afternoon Session on 24 June

Prof. Toshiyuki Kono (Faculty of Law, Kyushu University) and Prof. Ren Yatsunami (Faculty of Law, Kyushu University) presented their work on ‘The Global Value Chain & Network Responsibility: The New Possibilities of Private Ordering’. They pointed it out that in recent years, policymakers and scholars from numerous disciplines have concentrated on mapping the outlines of the modern global value chain, with the concept of ‘network’ emerging as a repeating theme. They investigate the relevance of viewing networks as lenses through which better understand the GVC and its regulation, particularly in terms of human rights and environmental issues. Besides, they also examine the failure of the network and related legal responses, suggesting that a mixture of public and private norms, hard laws and soft laws should be considered as alternatives.

Prof. Carlos Vasquez (Georgetown Law School, US) then discussed his research on ‘Applicable Law in BHR Cases’. He focused on the applicable substantive law in BHR suits brought in developed countries (usually the home state of the defendant corporation) for injuries suffered in developing countries (the host state). He centred on both vertical and horizontal choice-of-law inquiries: ‘vertical’ refers to the decision-making process that involves choosing between international law and national (or subnational) law as the primary source of relevant law, while ‘horizontal’ refers to the decision between applying the legal system of the host country or the legal system of the home State.

Dr. David Capper (School of Law, Queen’s University Belfast) presented his research next, on ‘Procedural Aspects of Transnational BHR-Litigation’. Continuing with BHR cases he discussed how victims of tortious conduct by multinational corporations are seeking remedy against the latter in a Global North jurisdiction, with a focus on the UK. He illustrated the procedural mechanisms in the UK that are available for mass tort litigation of this kind and suggested that the Group Litigation Order (GLO) would be the appropriate mechanism in the majority of cases of mass tort litigation. Then he elaborated on several aspects of GLO, including group registers, case management, and costs. Finally, he suggested examining the Okpabi case to see how GLOs work.

Second Afternoon Session on 24 June

Prof. Irene-Marie Esser (School of Law, University of Glasgow) and Dr. Christopher Riley (Durham Law School) presented their research on ‘Groups and Outsiders in the Context of Tort and Human Rights Violations’, examining the challenges that arise in protecting the interests of ‘outsiders’ from corporate groups’ misbehaviour. They argued that regulations applied to individual ‘stand-alone’ companies suffer weaknesses when applied to corporate groups. By using the UK’s experience of enforcing human rights norms against groups and of applying tort law, they demonstrate the implications of an ‘enterprise approach’ for regulation.

Dr. Catherine Pedamon (Westminster Law School) shared her work in progress on the French duty of vigilance. The French Loi de Vigilance has been enacted for seven years, yet its first decision was rendered on 5th December 2023. It still appears to be in the initial stages of development, not only due to its groundbreaking nature but also the obstacles to enforcement. She then shared some key preconditions on the applicability, the public availability of a vigilance liability plan, compensation for damages due to the companies’ failure to comply, etc. She also introduced the recent developments in the related cases in France.

Prof. Michael Nietsch discussed his research, ‘Corporate Accountability of Multinational Enterprises for Human Rights Abuses – Navigating Separate Legal Entity and Attribution under Delict’, elaborating the growing interest in corporate accountability for human rights violations in the German judicial system. In contrast to the UK, Germany has seen few incidents of damages lawsuit with the implementation of statutory due diligence procedures under the Supply Chain Due Diligence Act 2021 (Lieferkettensorgfaltspflichtengesetz, LkSG). Nonetheless, legal academics continue to discuss the basis for corporate liability for human rights violations under German private law, as well as the proper standards of care that arise as a result. This is a fundamental issue in German delict law and the separation of legal entities. He argued that the LkSG has ruled out private liability based on a violation of the Act’s due diligence criteria while allowing such liability on other grounds, which adds to the complexity.

At the end of the day, Dr. Juan Manuel Amaya Castro (Faculty of Law, University of the Andes, Colombia) presented his work on ‘Global Value Chains with a Human Face’. He discussed the definition of social traceability from a legal perspective and its requirements, purpose, and reasons for tracing a particular good in the supply chain. He then explained how traceability is mandated in due diligence and reporting legislation, pointing out that practices including auditing and certification, feedback loops, administrative guidelines, and civil liability standards should be considered.

Morning Session on 25 June

Dr. Biset Sena Güne? (Max Planck Institute for Comparative and International Private Law, Hamburg, Germany) started the day with her research, ‘Harmonisation of Private International Law Rules to Promote Sustainability in Global Value Chains?’. She elaborated that the role of private international law is frequently constrained concerning sustainability. In most cases, the ability to reach a truly sustainable outcome is dependent on the applicable private legislation. When this is the case, it is difficult to justify the need for harmonisation of current private international law standards without simultaneously focusing on uniform private law regulatory remedies. Nonetheless, she suggested that the need for harmonisation of private international law standards governing corporate social responsibility should be explored further and proposed a comparative approach for that further research.

The morning session on 25 June also discussed the plans for the upcoming publication and the dissemination conference to be held in Germany in 2025.

In summary, the workshop enabled fruitful discussion of work-in-progress and shared insights on the complexities of global value chains and the role of transnational private law. Key topics included sustainability, corporate accountability, and legal frameworks affecting global supply chains. The project successfully fosters international collaboration amongst and beyond LSGL researchers, nurturing comparative and interdisciplinary approaches. Participants gained a deeper understanding and ideas to take the research forward to address regulatory and coordination challenges in furthering sustainability in global commerce.

The American Association of Private International Law (ASADIP) will be holding its annual XVII conference entitled “A Private International Law more intelligent and less artificial” from 25 to 27 September 2024 in Buenos Aires and Pilar (Argentina). This Conference is being organised together with the Jornadas Nacionales de Derecho Civil at the Universidad Austral (Argentina).

A call for papers has been extended to 15 August 2024. The topic is party autonomy in Private International Law. For more information, click here.

To register, click here (ASADIP members have 40 % discount, early bird registration possible).