Conflictoflaws

The European Law Institute (ELI) Extra-Judicial Administration of Justice in Cross-Border Family and Succession Matters project is organising its dissemination conference in Vienna on 14 February. At this all-day event (9.00 to 18.00) experts will present their country reports, comparative findings and policy recommendations, in order to discuss these with the audience.

The project investigated the phenomenon that family and succession law matters are increasingly submitted to other authorities than courts. It seeks a to establish a harmonised concept of “courts” in the EU, taking into account the CJEU case law.

More information and the registration form are available on the ELI website.

On Tuesday, February 4, 2025, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CET). Professor Pietro Franzina (Catholic University of the Sacred Heart) will speak, in English, about the topic

“EU Private International Law at a Time of ‘Broken Multilateralism’ and Growing Geo-Political Tensions”

 

Multilateralism is in crisis. The role of world organisations in international politics and law-making is increasingly being questioned, as some key actors in the global arena no longer consider cooperation and collective action the best way to address common concerns. While multilateralism is not obsolete, let alone ‘dead’, as some claim, there is a growing consensus that current governance schemes need profound reconsideration. The EU, multilateralism’s staunchest defender, is especially exposed to these developments. While the evolution of multilateralism is set to affect all areas of international cooperation, each field has, arguably, its specificities. What features does cooperation in the field of private international law display in this regard? How can the crisis of multilateralism influence the way in which the EU deals with judicial cooperation, be it through its legislation, in the relations with its neighbours and at the global level? What structural changes are under way in global fora, such as the HCCH, and what is their impact on the EU’s own agenda and methods of work?

 

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

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

In an increasingly interconnected world, the application of laws by States beyond their territorial borders is an everyday reality. Yet, almost a century after the (still) leading findings by the PCIJ in the Case of the S.S. “Lotus”, the details of the concept of “extraterritoriality” remain elusive, and one can easily get lost in the multitude of national practices, ranging from  “presumptions against extraterritoriality” to be found mostly in federal systems (mostly for sub-units) to “effects doctrines” and the like in certain areas of law such as e.g. (early) in Germany, (later) in the EU’s competition law and today many other jurisdictions, in particular in Asia.

Given this complexity, this latest publication of the Ius Comparatum Series on “Extraterritoriality in Comparative Perspective” edited by Hannah L. Buxbaum offers a great deal of valuable guidance and insights. Featuring the reports from the most recent IACL/AIDC General Congress in Asunción, the volume provides the reader with unique insights by renowned legal scholars into the practices of 14 national jurisdictions (inter alia China, Germany, Japan, Korea, UK, U.S.) and the the European Union (EU). As is explained in the preface to the book:

Much of the vast scholarly literature on extraterritoriality approaches the topic from the outside in, assessing the extraterritorial projection of state law from the perspective of international law and the constraints it places on state authority. The goal of this project is to approach the topic from the inside out. Considering a range of legal systems, the authors investigate the geographic scope that states claim for their own laws, and the mechanisms by which states translate and locally implement principles of international jurisdictional law.

A particularly valuable contribution is Buxbaum’s General Report. It identifies, inter alia, the following important trends: First, international law turns out as increasinlgy irrelevant as a direct constraint on the territorial reach of state law. Second, extraterritoriality to protect local interests is no longer a practice of dominant states alone, as it is more and more widespread. Thus, extraterritoriality can no longer be taken as a synonym for illegitimacy. Third, extraterritoriality more and more occurs to protect international interests or global goods, in particular in criminal law. Each of these findings is further explained and substantiated. The issue of private enforcement, an even more complex and fragmented area of “managing extraterritoriality” is dealt with (“involves the application of local procedural law which injects additional conflict into cases involving  foreign elements on matters including the extent of discovey, the availability of non-compensatory damages, and the use of representative actions, amongst others”) as well as topic of economic sanctions (“one of the most contentious forms of extraterritoriality”). Highly recommended!

Further information as well as a free sample of Part I: General Report will soon be available on the publisher’s website.

The table of contents includes the following contributions:

Part I: General Report

Extraterritoriality in Comparative Context: Defining the Scope of State Law in a Global Era

Hanna L. Buxbaum

Part II: National Reports

Australia

The Extraterritorial Application of Statutes and Regulations

Danielle Ireland-Piper

Brazil

The Extraterritorial Application of Statutes and Regulations

André de Carvalho Ramos / Mariana Sebalhos Jorge

Canada

A Canadian Perspective

John C. Kleefeld

Québec

L’application Extraterritoriale des Lois et Règlements

Frédérique Sabourin

People’s Republic of China

Extraterritoriality in China

Shiping Liao

Germany

Extraterritoriality in Germany

Sören Segger-Piening

Italy

The Extraterritorial Application of Statutes and Regulations

Alessandra Zanobetti

Japan

The Extraterritorial Application of Statutes and Regulations

Hisashi Harata

South Korea

The Extraterritorial Application of Korean Laws

Gyooho Lee

The Netherlands

The Extraterritorial Application of Dutch Statutes and Regulations

Lucas Roorda / Cedric Ryngaert / Timo Zandstra

Romania

The Extraterritorial Application of Statutes and Regulations

Sergiu Popovici

Taiwan

The Legislative Practice of Extraterritoriality in Statutes and Regulations of Taiwan

Rong-Chwan Chen

United Kingdom (UK)

The Extraterritoriality of Statutes and Regulations

Matteo Angelini

United States (USA)

The Extraterritorial Application of Statutes and Regulations

Franklin A. Gevurtz

Vietnam

L’Application Extraterritoriale des Lois et Règlements

Quoc Chien Ngo / Duc Vinh Nguyen

Part III: Special Report

European Union

The Extraterritorial Application of Statutes and Regulations

Lena Hornkohl

Part IV: Appendix

Questionnaire

Today the Latin American and Caribbean Journal of International Law (LACJIL) was launched at the auditorium of the Hague Academy of the Peace Palace. Among the speakers were Prof. Diego Fernández Arroyo, president of the curatorium of the Hague Academy, and H.E. Leonardo Nemer Caldeira Brant, judge of the International Court of Justice. In addition, a very interesting panel was moderated by the Ambassador of Guatemala to the Kingdom of the Netherlands H.E. Ana Cristina Rodríguez Pineda. The panel was composed of the judge of the International Criminal Court H.E Althea Alexis-Windsor, the Ambassador of Colombia to the Kingdom of the Netherlands H.E. Carolina Olarte Bácares, the Ambassador of Argentina to the Kingdom of the Netherlands H.E. Mario J. A. Oyarzábal and the president of ASADIP Prof. Verónica Ruiz Abou-Nigm. The purpose of the panel was to discuss the recent legal developments in Latin America and the Caribbean, which included the ASADIP principles on transnational access to Justice (TRANSJUS).

This Journal will deal with international law, including the intersection between public and private international law, arbitration and dispute settlement. This is a great initiative that will provide a new forum to this region, which has 33 States and at least 4 official languages. As indicated during this event, this region is not only receptive to ideas and legal theories but has also an active role in the creation of international law.

The minds behind this groundbreaking idea are H.E. Mario Oyarzábal and Prof. Diego Fernández Arroyo. A balanced team of editors both in terms of geography and gender will be part of this project. Many congratulations!

The language of this publication will be English. The first number is expected to be published in 2026.

 

 

 

The seminar The Lex fori processualis principle at the interface with EU judicial cooperation in civil and commercial matters will take place on 24 January 2025 at the University of Milan. The seminar is organized as part of the 4EU+ Visiting Professorships Call, supported by the 4EU+ European University Alliance and co-funded by the Erasmus+ Programme of the European Union.

Hosted by the Department of International, Legal, Historical, and Political Studies of the University of Milan, the seminar will open with welcoming addresses (Antonella Baldi and Marco Pedrazzi) and an introduction (Francesca C. Villata). Bartosz Wolodkiewicz (University of Warsaw), currently a 4EU+ Visiting Professor at the University of Milan, will present the findings of his new book on foreign procedural law in civil judicial proceedings (Obce prawo procesowe w sadowym postepowaniu cywilnym, Wolters Kluwer 2024). Following this, a round table with international scholars will explore various aspects of the lex fori processualis principle, covering topics such as historical perspectives (Carlos Santaló Goris), legal standing (Lenka Válková), burden of proof (Martino Zulberti), ne bis in idem in EU judicial cooperation (Marco Buzzoni), and res judicata in international commercial arbitration (Michele Grassi). The seminar will conclude with a discussion and closing remarks by Elena D’Alessandro (University of Turin).

For more information on the 4EU+ Alliance, follow:
Facebook: 4EUplusAlliance
Instagram: 4euplus_alliance
LinkedIn: 4EUplus

#4EUplusAlliance #EuropeanUniversities #GrowingInMotion

With thanks for the tip-off to Dr Lenka Válková, University of Milan

In the wake of the CJEU’s controversial judgment in H Limited (Case C-568/22), which appeared to open a wide backdoor into the European Area of Justice through an English enforcement judgments (surprisingly considered a ‘judgment’ in the sense of Art. 2(a), 39 Brussels Ia by the Court), international law firms had been quick to celebrate the creation of ‘a new enforcement mechanism‘ for non-EU judgments.

As the UK had already completed its withdrawal from the European Union when the decision was rendered, the specific mechanism that the Court seemed to have sanctioned was, of course, short-lived. But crafty judgment creditors may quickly have started to look elsewhere.

In a paper that has just been published in a special issue of the Journal of Private International Law dedicated to the work of Trevor Hartley, I try to identify the jurisdictions to which they might look.

In essence, I make two arguments:

First, I believe that the CJEU’s unfortunate decision can best be explained by the particular way in which foreign decision are enforced in England, i.e. through a new action on the judgment debt. Unlike continental exequatur proceedings, this action actually creates a new, enforceable domestic judgment, albeit through proceedings that closely resemble the former. It follows, I argue, that only judgments that result from a new action based on the judgment debt (rather than a mere request to confirm the enforceability of the foreign judgment) can be considered ‘judgments’ in the sense of Art. 2(a) and the Court’s decision H Limited (which also requires the decision to result from ‘adversarial proceedings’). Among many reasons, I find such a limited reading easier to reconcile with the Court’s earlier decision in Owens Bank (Case C-129/92) than a wider understanding of the decision.

Second, I believe that several European jurisdictions still offer enforcement mechanisms through which third-state judgments could realistically be transformed into European judgments (clearing both the requirement of creating a new judgment and resulting from adversarial proceedings). This applies to Ireland and Cyprus (but not Malta) as well as to the Netherlands (through its so-called verkapte exequatur) and Sweden.

The full paper is available here; a preprint can also be found on SSRN.

The third issue of the Journal of Private International Law features a special issue in honour of Professor Trevor Hartley.

It provides as follows (with other research articles):

Jacco Bomhoff, Uglješa Gruši? & Manuel Penades Fons, “Introduction to the special issue in honour of Professor Trevor Hartley”

Jacco Bomhoff, Uglješa Gruši? & Manuel Penades Fons, “Professor Trevor C Hartley’s Bibliography”

Jacco Bomhoff,  “Law made for man: Trevor Hartley and the making of a “modern approach” in European and private international law”

This article offers an overview and an interpretation of Trevor Hartley’s scholarship in the fields of private international law and EU law. It argues that Hartley’s work, beginning in the mid-1960s and spanning almost six decades, shows striking affinities with two broader outlooks and genres of legal discourse that have roots in this same period. These can be found, firstly, in the approach of senior English judges committed to “internationalising” the conflict of laws in the post-war era; and, secondly, in the so-called “legal process” current of scholarship that was especially influential in American law schools from the late 1950s onwards. Reading Hartley’s writings against these backgrounds can help illuminate, and perhaps to some small extent complicate, two labels he himself has given to his own work: of a “modern approach”, in which “law is made for man, not man for the law”.

Adrian Briggs, “What remains of the Brussels I Regulation in the English conflict of laws?”

The paper argues that whether we are concerned with retained or assimilated EU laws, or with rules of UK law made as close copies of EU laws, initial encouragement to interpret them as though they were still rules of EU law is coming to be, and should be, replaced by a cooler realisation that, as they no longer function in English law as cogs in a great European legal construction, they should be reassessed and repurposed to serve the purposes of domestic law. That will mean, for good or ill, that the tangible and intangible effect of the Brussels I Regulation on English law is less, and will come to be much less, than some had supposed.

Hans van Loon, “A view from the Hague”

This article highlights the crucial role of Trevor Hartley as the principal author of the Explanatory Report of the 2005 Hague Choice of Court Convention. His exhaustive and crystal-clear explanations, for example on the Convention’s sophisticated rules on intellectual property and its relation to the Brussels I Regulation, are a lasting, indispensable help to its correct interpretation and application. They even shed light on some aspects of the 2019 Hague Judgments Convention. The article also recalls Trevor Hartley’s essential role in the European Group for Private International Law, of which he has been an original member since 1991, most of the time as the only representative of a common-law legal system. Lastly, this contribution praises Trevor Hartley’s exceptional scholarly and pedagogical qualities, as evidenced notably by his widely used International Commercial Litigation.

Linda Silberman, “Trevor Hartley: champion for the Hague Choice of Court Convention”

This article, in tribute to Professor Trevor Hartley, discusses the debate between Gary Born and Professor Hartley about whether countries should ratify the Hague Choice of Court Convention. It also explains how that debate contributed to the conclusions reached by a New York City Bar Committee that was asked by the United States State Department for its views on ratification of the Convention.

 

Alex Mills, “Assessing the Hague Convention on Choice of Court Agreements 2005”

Almost twenty years after the adoption of the Hague Choice of Court Convention 2005, it may be an appropriate moment to reflect on and assess its legacy to date. This article, part of an issue paying tribute to the work of Professor Trevor Hartley, notes a number of different ways in which the legacy of the Convention may be evaluated, particularly appreciating the important role of the Explanatory Report co-authored by Professor Hartley. It argues that the Convention should not be judged merely based on the (admittedly limited, but perhaps growing) number of state parties, but also taking into account its wider influence in a number of different respects which may cast a more positive light on its achievement. These include the importance of the Convention to the Hague Conference on Private International Law, the soft power of the Convention, and the role of the Convention in preserving the enforceability of UK judgments based on exclusive jurisdiction agreements in European Union Member States notwithstanding Brexit.

 

Andrew Dickinson, “Anti-suit injunctions – beyond comity”

This short article considers a theme emerging from Trevor Hartley’s writing on the topic of anti-suit injunctions – the significance of the existence of an international treaty that regulates the circumstances in which the States concerned may or must assert, and may or must decline, jurisdiction with respect to the subject matter of the dispute. It examines, in particular, recent case law extending the reach of the European Union’s prohibition on anti-suit injunctions within the Brussels I regime, and the place of anti-suit injunctions within the framework of the Hague Choice of Court Convention.

 

Verónica Ruiz Abou-Nigm, “Iconic asymmetries of our times: “super Highways” and “jungle tracks” in transnational access to justice”

Drawing from Hartley’s “Multinational Corporations and the Third World: A Conflict-of-Laws Analysis” where he exposes the “unequal fight” between powerful multinational corporations and the people and communities in “the third world”, suggesting that this is partly a consequence of the deficits of legal infrastructures therein, this brief contribution dwells on the global systemic impact of channelling legal proceedings justiciable in the Global South (GS) to courts in the Global North (GN). It takes a private international law and sustainable development perspective and draws attention to the rhetoric and narratives of interdependence between the “super highways” and the “jungle tracks”- the illustrations used by Hartley. The main argument taken forward in this paper is that to realise private international law’s contribution to SDG 16 (peace, justice and strong institutions) responsivity is necessary in jurisdictional decision making in this context to enhance access to justice for all in the GS.

 

 

Grace Underhill, “Masterstroke or misguided? Assessing the proposed parallel proceedings solution of the Hague Conference on Private International Law and the likelihood of its acceptance in Australia”

A dispute litigated simultaneously in two different jurisdictions wastes time and resources, and risks inconsistent judgments. In March 2024, the Hague Convention on Private International Law’s Working Group on matters related to civil and commercial jurisdiction released its third iteration of draft provisions on parallel proceedings. These provisions represent the groundwork (and one chapter) of a long-awaited international instrument that addresses the assumption and declining of jurisdiction. This article canvasses the proposal’s successes and failures in securing the continuance of litigation in a single forum. To assist, this article selects the example of Australia, against whose judicial practice the compatibility of the Working Group’s proposal is tested. This exercise identifies fundamental inconsistencies between the two schemes. Those (potentially insurmountable) concerns for judicial practice, alongside bureaucratic stagnation in Australia’s policy-making appetite in this area must, it is argued, be balanced against the strong normative influences for Australia’s accession to such an agreement. This invites concern for the acceptance of the proposal, and the broader future of the Jurisdiction Project as a whole.

 

 

Tobias Lutzi, “What remains of H Limited? Recognition and enforcement of non-EU judgments after Brexit: Journal of Private International Law”

In its controversial decision in H Limited, the Court of Justice held that an English confirmation judgment, transforming two Jordanian judgments into an English one, constituted a judgment in the sense of Articles 2(a) and 39 Brussels Ia and, as such, qualified for automatic recognition and enforcement in all Member States. The decision has been heavily criticized for seemingly violating the rule against double exequatur and potentially opening a backdoor into the European Area of Justice. As the particular door in question has already been closed with the UK’s completed withdrawal from the EU, though, crafty judgment creditors will have to look to other Member States. This paper will make an attempt at identifying those jurisdictions to which they might look. For this purpose, it will first argue that for an enforcement decision to fall under Chapter III of the Regulation, two requirements must be fulfilled: It must be a new decision on the judgment debt (rather than a mere declaration of enforceability) and it must have come out of adversarial proceedings. The paper will then look in more detail at a selection of jurisdictions that might fulfil these two requirements.

For anyone without a date for Valentine’s Day, we are happy to advertise the following ELI event on de-judicialisation in family and succession matters:

With competences in family and succession matters increasingly moving from courts to other authorities – such as notaries, civil status officers, child protection agencies, judicial officers, advocates, and even private parties – ELI’s Extra-Judicial Administration of Justice in Cross-Border Family and Succession Matters project aims at developing an outline of a harmonised European concept of courts, building on the approach of the Court of Justice of the EU in its recent case law, to ensure a harmonised application of EU instruments to such actors in Member States (for more information on the project, click here). As the trend of ‘de-judicialisation’ continues to grow, the project’s Dissemination Conference offers a valuable opportunity to discuss its implications and to present and reflect on recommendations developed by the ELI to address this shift.

The event will take place on 14 February 2025 from 09:00–18:00 CET at the University of Vienna (Small Ceremonial Hall (Kleiner Festsaal)) and will be streamed online.

ELI will be able to issue a certificate of attendance, when requested, to participants.

Register here. The tentative agenda is available here.

This report was written by Carlos Santaló Goris, postdoctoral researcher at the University of Luxembourg

Recent developments on the application of the EAPO Regulation

On 3 December 2024, the conference ‘European Account Preservation Order: Practical Challenges and Prospects for Reform’ took place at the University of Luxembourg, organized by Prof. Gilles Cuniberti (University of Luxembourg). The conference also served as an occasion to present the book ‘European Account Preservation Order – A Multi-jurisdictional Guide with Commentary’, published by Bruylant/Larcier. The book was co-edited by Dr. Nicolas Kyriakides (University of Nicosia), Dr. Heikki A. Huhtamäki (Huhtamäki Brothers Attorneys Ltd), and Dr. Nicholas Mouttotos (University of Bremen), and offers a comprehensive overview on the application of the European Account Preservation Order (‘EAPO’) at the national level. It contains a report for each Member State where the EAPO Regulation applies, addressing specific aspects of the EAPO procedure that depend on domestic law.

The conference was structured into two panel discussions. The first panel focused on the specific issues regarding the application of the EAPO Regulation identified by practitioners with first-hand experience with this instrument. The second panel discussion explored the potential reform of the EAPO Regulation and which specific changes should be implemented to improve its application. This report aims to offer an overview of the main highlights and outputs of the presentations and discussions of the conference.

First panel discussion: the use of the EAPO application in the practice

The first panel was composed of Dr. Laurent Heisten (Moyse & Associates Law Firm, Luxembourg), Alexandra Thépaut (Étude Calvo & Associés, Luxembourg), and Lionel Decotte (SAS Huissiers Réunis, France) and moderated by Dr. Elena Alina Ontanu (University of Tilburg). This first panel aimed to explore specific issues in the application of the EAPO Regulation from the practice perspective. The discussion was opened by Dr. Laurent Heisten, who indicated that the EAPO is way more complex than the Luxembourgish national provisional attachment order, the saisie-arrêt. He highlighted that the Luxembourgish saisie-arrêt has more lenient prerequisites than the EAPO. In his view, that might explain why creditors often opt for the saisie-arrêt instead of the EAPO.

The complexity of the EAPO compared to the Luxembourgish saisie-arrêt was also remarked by Ms. Alexandra Thépaut. However, she also acknowledged that the EAPO presents some advantages against the Luxembourgish national equivalent procedure. In particular, she referred to the certificate that banks have to issue immediately after the implementation of an EAPO (Article 28). This is something that does not occur with the Luxembourgish saisie-arrêt. Another advantage of the EAPO she referred to is the possibility of obtaining information about the debtors’ bank accounts (Article 14).  The Luxembourgish saisie-arrêt also lacks an equivalent information mechanism.

During the discussion, Prof. Gilles Cuniberti intervened to indicate that using the EAPO could be less costly than relying on equivalent domestic provisional measures. He refers to a specific case in which the creditor preferred to apply for an EAPO in Luxembourg instead of a domestic provisional attachment order in Germany. The reason was that in Germany, the fee for applying for a national provisional measure would be in proportion to the amount of the claim, while in Luxembourg, there is no fee to obtain an EAPO.

A second recurrent issue identified by the panellists was the use of standard forms. In this regard, Mr. Lionel Decotte highlighted while standard forms can seem practical in a cross-border context, they are rather complicated to fill in. Ms. Alexandra Thépaut mentioned finding particularly complex the section on the interest rates of the EAPO application standard form.

Second panel discussion: the future reform of the EAPO Regulation

The second panel focused on the potential reform of the EAPO Regulation. The panellists were Prof. Gilles Cuniberti, Dr. Carlos Santaló Goris, and Dr. Nicolas Kyriakides, and it was moderated by Dr. Nicholas Mouttotos. Prof. Gilles Cuniberti explored the boundaries of the material scope of the EAPO Regulation. He first advocated suppressing the arbitration exception. He explained that it had been adopted by a political decision which was not submitted to the discussion of the expert group. This was most unfortunate, as the rationale for excluding arbitration from the Brussels I bis and other judgment regulations (the existence of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards) was inexistent concerning a remedy belonging to enforcement per se, which was always outside of the scope of the Brussels I bis Regulation.

Prof. Gilles Cuniberti also defended making available the EAPO Regulation in claims regarding matrimonial and succession matters, both expressly excluded from its scope. In his view, there is no reason for these two subject matters to be excluded as the Succession and Matrimonial Property Regimes Regulations, again, only apply to jurisdiction and enforcement of judgments (and choice of law), but do not offer any remedy to attach bank accounts. Lastly, he advocated expanding the use of the EAPO to provisional attachment of financial instruments. This is a potential reform of the EAPO Regulation expressly foreseen in Article 53.

Dr. Carlos Santaló Goris focused on the reform of the EAPO Regulation from the creditors’ perspective.  He observed that national case law on the EAPO shows that creditors with an enforceable title encounter many difficulties satisfying the EAPO’s periculum in mora. This is due to the strict interpretation that courts have of this prerequisite in light of Recital 14 of the Preamble. He also mentioned that there is a pending preliminary reference on the interpretation of the EAPO’s periculum in mora before the European Court of Justice (C-198/24, Mr Green).

Regarding the creditor’s security, he stated that the vague criteria used to calculate the amount of the security is also a source of divergences on how the amount of the security is established from one Member State. He provided the example of Germany, where courts often require 100% of the amount of the claim. This percentage contrasts with other Member States, such as Spain, where the amount of the security represents a much lower percentage of the amount of the claim. Additionally, he also suggested reforming the EAPO to transform it into a true enforcement measure. In his view, creditors with an enforceable title should not only have the possibility of obtaining the provisional attachment of the funds in the debtors’ bank accounts but also the garnishment of those funds.

Finally, Dr. Nicolas Kyriakides explored how to foster the use of the EAPO Regulation across the EU. In his view, it would be necessary to expand the use of the EAPO Regulation to purely domestic cases. He referred to the case of the European Small Claims Procedure and how this instrument served as an inspiration for some national legislators to introduce equivalent domestic procedures. In his view, when judges and practitioners use these equivalent domestic procedures, indirectly they become familiar with the EU civil proceedings on which the equivalent domestic procedure was modeled. This is a way of integrating the EU civil proceedings into the legal practice. Therefore, when judges and practitioners have to apply the EU civil procedures, they already know how to do it. This can result in a more efficient and effective application of these EU instruments. On a second level, Dr. Nicolas Kyriakides identified the legal basis that the EU legislator might have to adopt such kinds of measures. He considered that the EU could invoke Article 81 (Judicial cooperation in civil and commercial matters), and Article 114 (Harmonization for the Internal Market) of the Treaty on the Functioning of the European Union could serve to harmonize domestic procedural rules within the boundaries of the principles of subsidiarity, proportionality, and procedural autonomy.

The panelists’ presentations were followed by an open discussion with the audience. One of the issues that was addressed during this discussion was the use of the IBAN to determine the location of the bank accounts. Prof. Gilles Cuniberti expressed his concern about the use of the IBAN since nothing prevents a bank from opening an account with an IBAN that does not correspond to the Member State where the account is effectively held.

Waiting for the Commission’s report on the EAPO Regulation

Following Article 53(1) of the EAPO Regulation, the Commission should have elaborated a report on the application of the EAPO by 18 January 2024. This conference offers a glimpse into what might eventually appear reflected in that report. The EAPO Regulation seems still far from being an instrument often relied on by creditors who try to recover a cross-border claim. The conference, which combined a practical and academic analysis of the EAPO regulation, served to identify some of the problems that might be preventing the EAPO from being perceived by creditors as an efficient tool to secure cross-border claims. Initiatives like this conference can help prepare the ground for designing a more effective EAPO procedure.

 

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 30 January 2025 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is: From the Old to the New Private International Law: Contexts, Objectives, Methods and Practice and will be presented by HE Ambassador Mario J. A. Oyarzábal (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/83362977786?pwd=VsniAolvT9vCNnbjVl4FdbAqXkOX9E.1

Meeting ID: 833 6297 7786

Password: AMEDIP

Participation is free of charge.

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

This submission written by Celeste Hall, JD Candidate at the University of Pittsburgh School of Law and Global Legal Scholar.

The legal news has been awash lately in the recognition and enforcement of investment arbitration awards by U.S. courts. Most of the press is on the long-running and still-unfolding saga regarding Spain (see here and here). And a new decision recognizing an award against Zimbabwe was just issue at the end of December, as well. Here, however, we would like to add to the news with the recent decision recognizing an investment arbitration award against Mexico in United Mexican States v. Lion Mexico Consolidated.

Like most investment arbitrations, the decision tells a sordid tale. Lion Mexico Consolidated (LMC) is a Canadian company which provided financing to a Mexican businessman, Mr. Hector Cardenas Curiel, to develop real estate projects in Nayarit and Jalisco, Mexico. Cardenas’ company failed to pay on the loans, and LMC tried for years to obtain payment, all to no avail. Cardenas then began what was described as a “complex judicial fraud” to avoid payment, including a forgery and a subsequent lawsuit in a Jalisco court to cancel the loans. LMC was never informed of the suit and therefore, never appeared. The Jalisco Court issued a default judgment discharging the loans and ordering LMC to cancel the mortgages; Cardenas then arranged for an attorney to act fraudulently on LMC’s behalf to file and then purposefully abandon the appeal. LMC only learned of the entire scheme when they attempted to file their own constitutional challenge and were rejected. The Mexican Courts refused to allow LMC to submit evidence of the forgeries, so LMC brought a NAFTA Chapter 11 arbitration against Mexico for its failure to accord Lion’s investments protection under Article 1105(1) of NAFTA.

In the arbitration, Mexico argued that Article 1105(1)(b) only applies to investments, and because LMC is an investor, it could not seek relief under Article 1105(1). The arbitral tribunal disagreed and awarded LMC over US$ 47 million in damages. In the U.S. courts, Mexico petitioned to vacate the Award, and LMC cross-petitioned to affirm it.

Mexico conceded that the DC Circuit’s power to vacate an arbitral award is limited: as long as the tribunal “interpreted” 1105(1) the Court must confirm the award even if serious interpretive error was committed. Mexico attempted to skirt this issue by claiming that the Tribunal did not “interpret” anything. Instead, in Mexico’s view, they simply ignored the literal meaning of investments of investors by granting relief to Lion.

The Court was not impressed by this argument. It held that “[t]he Tribunal addressed Mexico’s interpretation of Article 1105(1) head on, employed common interpretative tools to reach a different conclusion, cited authorities in support of its reading, and explained its reasoning. By any definition of the word, the Tribunal interpreted Article 1105(1). Because the Court can’t second-guess that interpretation, the Court DENIED Mexico’s Petition to Vacate the Arbitral Award, and GRANTED LMC’s Cross- Petition for Confirmation, Recognition, and Enforcement of the Arbitral Award.”

Additionally, the Court denied a motion to intervene filed Hector Cardenas Curiel. Cardenas knew that the arbitral case hinged upon his fraud but did not pursue intervention at the arbitral stage. The Court found that Cardenas’ attempt to intervene at this stage was “too little too late”, and Cardenas did not meet the requirements for intervention under Federal Rule of Civil Procedure 24(a)(2) or 24(b).

This decision is important because it follows a long line of cases giving deference to arbitrators in investment treaty cases; when they interpret the governing treaty and decide cases thereunder, their decisions will not be second-guessed by U.S. courts later.

As posted earlier here, the conference organizers and editors of the JPIL are welcoming submissions for the 20th Anniversary Conference of the Journal of Private International Law, to be held in London 11–13 September 2025.

Proposals including an abstract of up to 500 words can be send to JPrivIL25@ucl.ac.uk until 17 January 2025.

More information can also be found here.

An ERA online seminar on Migrants in European Family Law will take place on 6-7 February 2025. For more information, click here. The programme is available here.

As stated by the organisers:

“This online seminar addresses complex, practical legal issues at the interface between European family and migration law. It will address issues related to the portability of the personal status of migrants, in particular the recognition of marriage and divorce.

We will discuss the protection of migrant children in Europe, care and guardianship of unaccompanied minors, the frictions between family law and migration law in the case of child abduction and the structuring of return procedures.

The seminar will also present the recent case law of the European Court of Human Rights (ECtHR) on family and migration law, including the right to family reunification.”

Early bird registration ends on 13 January 2025.

 

 

 

 

The 26th Volume of the Japanese Yearbook of Private International Law (Kokusai Shiho Nenpo) published by the Private International Law Association of Japan (Kokusai Shiho Gakkai) (hereinafter “PILAJ”)has recently been released.

This new volume features the following table of content (all links direct to the papers’ English abstracts)

 

Part 1 – The Status and Development of Private International Law from a Global Perspective

Corporate Climate Liability in Private International Law (in English)

Marc-Philippe WELLER and Madeleine Petersen WEINER

 

The Case for a Special Conflicts Rule in the European Union for Cross-Border Trade Secret Disputes (in English)

Onur Can SAATCIOGLU

 

Trends in Australian Private International Law (in English)

Mary KEYES

 

Part II – International Transactions and Dispute Resolution through Arbitration and Mediation

The Application of Mandatory Rules of Law in International Arbitration (in Japanese)

Tatsuya NAKAMURA

 

Due Process and Efficiency in Arbitral Proceedings —From a Swiss Perspective (in Japanese)

Kazuaki NISHIOKA

 

Part III – Academic Conference Presentations

On the Relationship between lex rei sitae and the Immutability of Law of Creation —From the Perspective of Temporal and Factual Division of the Applicable Law (in Japanese)

Yoshiaki NOMURA

 

Conflict of Laws and Corporate Environmental Irresponsibility in the Developing World —Remedying Choice of Law Rule for Environmental Damage (in English)

Thu Thuy NGUYEN

 

Arb./Med.Arb. as Multi-layered Dispute Resolution in Practice —Including Practice in Asian Countries and Concrete Mediation Techniques (in Japanese)

Yoshihiro TAKATORI

 

Arrest of Ships and International Private Law (in Japanese)

Fumiko MASUDA

 

The contents of all volumes are available here.

Papers included in volumes 1 (1999) to 23 (2023) are freely available on the PILAJ’s website.

English abstracts of the papers published in Japanese are also available from volume 18 (2016).

The current and past volumes of JYPIL can be ordered from the publisher’s website (Shinzansha).

 

The International Law Association Committee on Alternative Dispute Resolution (ADR) has issued a Call for Papers for a conference scheduled for 7 April 2025 titled ‘Shaping Appropriate ADR in International Law’. Further information is available here. The deadline for submissions is 5 February 2025.

If you require any further information, please do not hesitate to contact info@ila-hq.org

By Harddit Bedi* and Akansha Tripathy**

Introduction

It is beyond dispute that The Convention of International Sales of Goods, 1980 (CISG) has facilitated international trade disputes. However, Courts and tribunals continue to apply their minds in adjudicating the applicability of CISG before advancing into substantive issues. This exercise is not very prolific as it prolongs proceedings. Chapter 1 of the convention lays down the scope and extent of the CISG. Amongst other things, the CISG application does not apply to contracts formed by, inter-alia, auctions under Art. 2(b) of CISG.  The word auction itself is nowhere defined in the convention.

This led to ambiguity. Courts of different jurisdictions had to adjudicate the definition of the word auction, Take, for instance, the Electronic electricity meter case. The Swiss Federal Supreme Court had to determine if the bidding process in a tender contract was the same as an auction. The similarities between a bidding process and an auction cannot be understated. However, unlike an auction, in a tender contract, it is the sellers that bid, not the buyers. Hence, a tender contract may be construed as a reverse auction, not an auction. This leads to the issue: Are tender Contracts—by them being reverse auctions— barred by the CISG under Article 2(b)?

 

The Exclusion of Auctions in CISG—but Why?

Article 2(b) explicitly reads that the CISG exempts sales by auction. In an auction, sellers invite buyers to bid on goods, with the highest bidder securing the purchase. The process ensures competition among buyers, with the help of the seller or an intermediary, and ends with the auctioneer declaring the winning bid. The reason for this exclusion in the convention is not well-founded but speculated. First, it is excluded because auctions are often subject to special rules under the applicable national law, and it is best to not harmonize them. Second, there was no need to include an auction since auctions universally, at that time, did not take place across borders in any case. Third, in an auction, the seller may not know the details about the buyer, including but not limited to, domicile, nationality, and place of operations. That is why, the applicability of the CISG would be uncertain due to Article 2(b) of the CISG since the aforesaid information determines whether the contract is an international one. These reasons justify exclusion, however, defining the term auction would have abated vagueness and ambiguity. Since, in the present context, The exclusion of “sales by auction” can be narrowly interpreted to apply only to traditional auctions, where sellers solicit bids from buyers. However, alternatively, it can be broadly construed to include any competitive bidding process, including reverse auctions.

A Case for CISG Applicability vis-à-vis Tender Contracts

Tender contracts, despite being formed after an auction, do not come under the ambit of Art.2(b). First, just because tender contracts are formed through a bidding process does not make it an auction. It is advanced that tender contracts differ from an auction but may be similar to reverse auctions. In a reverse auction, it is the buyer who invites multiple sellers to bid, to secure goods or services at the lowest possible price. This process is common in procurement, particularly in government tenders and large-scale corporate sourcing. Similarly, since primarily, a tender involves a buyer inviting potential sellers to submit bids for goods or services; the process can be closely equated with a reverse auction in its characteristics—not auctions. Also, the procurer can also consider several other factors and have the discretion to determine to award the contract. This is unlike how an auction functions. In an auction, the seller typically does not have the discretion to consider other factors besides the highest price quoted. Ulrich G. Schroeter, a member of the CISG advisory council, (2022 paper) advances that CISG is applicable in Tender contracts. He states, “The CISG furthermore also applies to international sales contracts concluded with a seller which has been selected by way of a call for tender (invitation to tender, call for bids).” The aforementioned arguments suggest that at the very least it would not be correct to construe tender contracts as auctions. The question that then follows is whether reverse auctions can also be presumed to be included in the ambit of auction mentioned in Art.2(b); which is answered in the subsequent point.

Second, the absence of explicit exclusion extends to implied inclusion. The UNCITRAL Commentary of Art 2 of the convention advances that all international sale of goods contracts can be governed by CISG besides the following. Art 2 does not refer to contracts formed by bidding process or reverse auctions but just auctions. In addition to this, the World Bank standard tender rules also do not explicitly exclude the application of CISG. From these, there is a reasonable inference that reserving an auction or just contracts formed via bidding are not explicitly included. On the contrary, if anything, the CISG application was included in the New Zealand government as guidance for foreign bidders, although it was later changed to “Common Law of contracts.” Such an inclusion is also present in an international purchase of equipment, by a Brazilian nuclear power state-owned entity. With this argument in mind, a counter-argument may be taken to advance that a court/tribunal can extend the interpretation of an auction to also include a reverse auction. However, that would be a way too broad interpretation and no coherent argument exists to make such a broad interpretation.

Third, precedents have historically not exempted CISG application in tender contracts. In 2019, the Swiss Federal Supreme Court dealt with the issue of tender contracts in CISG. It established that contracts initiated through public tenders do not fall under the ambit of Art. 2(b). The test laid is whether or not one party is foreign or not to the tender contract. So long as that element is present in the transaction, tender contracts are just as valid as any other contract with respect to Art 2(b). In another Swiss precedent, while not directly addressing the issue at hand, the tribunal held that an invitation to a tender is a form of invitation to a contract. Hence, a contract formed through just a process of bidding, though not an auction, can be governed by CISG as it so was in the said precedent. Additionally, as stated above, government procurement is done through mostly reverse auctions/Tender contracts/bidding. Such government procurement when faced with an international element has invoked the application of CISG.

 

Conclusion

This question at hand is pertinent since CISG has proven to be a successful framework, hence, its scope and applicability should not be restricted. Especially with relation to tender contracts since they form a substantial method of procurement of big entities and governments. Not to mention, no valid reason exists for the exclusion. The economic reasons are present and not even touched upon since the article strictly restricted itself to legal arguments. To summarize, the applicability of CISG to tender contracts is ambiguous due to Article 2(b), which excludes “sales by auction” from its ambit. Auctions are usually seller-driven competitive bidding. Whereas, Tender contracts are where buyers ask for bids from sellers. By virtue of this, Tender contracts are different from auctions in certain aspects such as control, procedural formalities, and evaluation criteria which are considered factors beyond price. Since it is a form of reverse auction, it would be incorrect to include reverse auctions as an auction under Art.2(b). More importantly, previously, courts and tribunals have not given the word auction such a broad interpretation. It has allowed CISG to govern the contract. Hence, in conclusion, tender contracts do not come under the ambit of “auction” of Art 2(b) CISG.

*Harddit Bedi is a student of Law at BML Munjal University India, and alumnus of the Hague Academy of International Law (2024). **Akansha Tripathy is a student of Law at BML Munjal University, India.

UN/CEFACT would like to invite you to attend: Workshop on Addressing Conflict of Laws and Facilitating Digital Product Passports: Traceability and Transparency of Critical Raw Material Value Chains, Tuesday, 21 January 2025 (AEST)

Agenda

10:00 am – 11:00 am AEST: The UN/CEFACT working group on ‘conflict of laws in the critical raw material (CRM) value chains’ meeting: Introduction and discussion of the UN/CEFACT White Paper draft outline

Moderator: Associate Professor Jie (Jeanne) Huang, Sydney University School of Law.

This is a hybrid event. Please contact jeanne.huang@sydney.edu.au for zoom details.

 

11:00 am – 12:00 pm AEST: Research interview with Dr. David Brown who is a researcher with Mighty Earth and has done a lot of research on deforestation in CRM value chains in Indonesia.  For his recent publication, “From Forests to EVs,” which he co-authored with Mighty Earth.  Kindly refer to https://mightyearth.org/article/from-forests-to-electric-vehicles/. (The interview is not open to the public due to the research ethics requirement)

 

12:00 pm – 13:00 pm AEST: Lunch

 

13:00 pm- 14:00 pm AEST: Professor Philip M. Nichols keynote:

Does Compliance with the Global Anticorruption Regime Require the Use of Artificial Intelligence?: The Case of Managing Global Critical Raw Material Value Chains

Background

Business firms constantly hear that artificial intelligence has changed the world and that they must either utilize artificial intelligence or fall behind. By extension, this would be true of regulatory compliance as well as operations. This article challenges the mantra of artificial intelligence as a ubiquitous agent of change. It does so through the lens of the global anticorruption regime, a transnational web of laws, regulations and norms that work together to reign in corruption. As this article demonstrates, the global anticorruption regime imposes on business firms a requirement to implement effective and up-to-date antibribery programs. Given the prevailing conception of artificial intelligence as the newly-critical tool for business, it would be easy to interpret “effective” and “up-to-date” as requiring the use of artificial intelligence. To determine whether in fact the global anticorruption regime does, this article undertakes two analyses. First, it carefully determines the systems requirements of the type of artificial intelligence most applicable to antibribery programs – systems that can distinguish between honest and corrupt actors and transactions – and determines the regulatory constraints on the use of artificial intelligence in that way. This article then asks specifically what tasks artificial intelligence would be asked to do as part of an antibribery program, and evaluates the capacity of artificial intelligence to perform those tasks given the already determined system requirements and constraints. These analyses yield a surprising conclusion: in some instances the use of artificial intelligence would be helpful, but for most business firms, particularly for smaller firms or firms that have not experienced bribery, the use of artificial intelligence would not be helpful and could be harmful. Regulators and legal scholars must not think of artificial intelligence as a panacea; its potential use must be analyzed in the context of objectives and the capacities, needs, and limits of artificial intelligence.

 

Dr. Philip M. Nichols is the Joseph S. Kolodny Professor of Social Responsibility in Business and Professor of Legal Studies and Business Ethics at the Wharton School of the University of Pennsylvania. He was Co-Chair, UN/CEFACT Law Group (United Nations experts committee on electronic commerce and trade facilitation), 1998 to 2005.

Event page: https://law-events.sydney.edu.au/event/globalanticorruptionregime_ai/

Registration: https://www.eventbrite.com.au/e/does-compliance-with-the-global-anticorruption-regime-require-the-use-of-ai-tickets-1143595548069?aff=oddtdtcreator UN/CEFACT would also like to call for participation:

White Paper on Addressing Conflict of Laws and Facilitating Digital Product Passports in Cross-border Value Chains 

Help draft the white paper on Addressing Conflict of Laws and Facilitating Digital Product Passports (DPPs) in Cross-border Value Chains to achieve legal coordination and establish traceability in global trade law. Aligned with regional and global initiatives, the White Paper seeks to address conflicts of law and foster the legal harmonization essential for the DPPs implementation across borders. The white paper will also ensure that DPPs comply with international standards, promoting interoperability and supporting a globally consistent approach. It will focus on the critical raw materials-the EV batteries value chain but will have broad implications for other industries.

 

The proposed White Paper will (1) present the status quo of conflict of laws in existing national and international laws relating to the implementation of DPPs, and (2) propose solutions for legal coordination and facilitate trade, especially:

1. Analyzing initial uptake of DPPs by industry stakeholders and anticipated impact;
2. Coordinating diversified national laws for cross-border data transfer involved in DPPs;
3. Obtaining mutual recognition of ESG certificates whose data are required by DPPs;
4. Promoting Interoperability between different DPPs; and
5. Incorporating UNTP and other UN/CEFACT industry standards/good practices into international and national trade laws to address legal conflicts in the adoption of DPPs.

Please provide your name/position/associations/email contacts;

Please indicate your expertise;

Please choose the ways to participate (multiple choice):

1. Participate as an active contributor in the working group to draft the White Paper (The group will typically have a one-hour meeting every two weeks from January to May 2025),
2. Participate as an observer in the working group to draft the White Paper,
3. Participate in research interviews, and
4. Any other ways that you think you can contribute.

Deadline to express your EOI is Friday 17 January 2025. Please contact the project lead Dr. Jie (Jeanne) Huang (Jeanne.huang@sydney.edu.au) and forward your email to her research assistant Raven Yang (raven.yang@sydney.edu.au).

 

Co-edited by Ben Köhler, Rishi Gulati and Thomas John, the Elgar Companion to UNCITRAL is now out. This is the third and final in the trilogy of books on the three key international institutions mandated to work on private international and international private law. The Elgar Companions to the HCCH and to UNCITRAL have already been published in 2020 and 2023 respectively.

The Elgar Companion to UNIDROIT brings together a diverse selection of contributors from a variety of legal backgrounds to present the past, present and future prospects of UNIDROIT’s instruments (for more information: link).

The book will be virtually launched by the President of UNIDROIT, Professor Dr. Maria Chiara Malaguti, on 17 January 2025 at 13:00 CET. The launch event will also include a presentation by Professor Dr. Dr. h.c. Dr. h.c. Herbert Kronke, who will speak on the topic of “UNIDROIT and the EU”. The event will be held via zoom.

To register, please send an email to ben.koehler@uni-bayreuth.de

The Netherlands Commercial Court (NCC) has recently updated its rules of procedure. The updated version has come into force on January 1, 2025.

The update might interest litigation lawyers, and could be relevant to this blog’s readers who follow the developments in regulatory competition, in particular the establishment and work of international commercial courts, including several posts on this blog (see inter alia here, here, here, here, here, here, here, here, here, here, here, here, here, here, here).

The full title of the NCC rules of procedure is ‘Rules of Procedure for the International Commercial Chambers of the Amsterdam District Court (NCC District Court) and the Amsterdam Court of Appeal (NCC Court of Appeal) NCC Rules / NCCR’. The document summarizes the amendments as follows:

‘This fourth version of the Rules is occasioned by the various changes to the laws of evidence in the Code of Civil Procedure that come into force on 1 January 2025 (Article 194 ff). Additionally, there are amendments in – amongst others – the following rules:

– 2.1.3 (notification of interested parties)

– 2.2 and explanatory notes (language and third parties)

– 3.2.1 (communication by email)

– 3.2.9 (maximum size of documents in appeal)

– 3.4.2 (extension of a time limit)

– 5.2 (default)

– 6.3.2 (summary proceedings)

– 7.1.4 (scheduling)

– 7.2 (invitation to the hearing)

– 7.7.2 (audio and video recordings)

– 8.4 (right to information and confidentiality)

– 8.4.8 (prejudgment attachment to protect evidence)

– 8.8 (preparatory evidence events)

– explanatory notes 1.3.2 (jurisdiction to deal with prejudgment attachments).’

Several updates thus have practical character; other amendments follow the development of the EU and national civil procedural law (for instance, in relation to the right to information and confidentiality).

The Child Support forum is pleased to invite every interested stakeholder to a new open meeting on the issue of “International Maintenance Recovery on the Basis of Authentic Instruments”.

The payment of child maintenance is not always ordered by a court. Maintenance debtors may commit themselves to make these payments in an enforceable deed, also called “authentic instrument”. The enforceable deeds are usually established by public notaries or public authorities. They should not be confused with administrative orders, as they are based on a voluntary declaration by the maintenance debtor. In case of non-payment, enforcement can be carried out in the State of origin, in the same way as a court decision.

Regarding cross-border cases, the recognition and enforcement of child maintenance claims on the basis of authentic instruments is mentioned in certain provisions. However, the lack of international awareness as regards their nature leads to difficulties when it comes to their implementation. The meeting aims to provide information on these two topics and to allow an exchange between the stakeholders involved on both levels, the establishment and the enforcement of authentic instruments.

To register, click here.