Conflictoflaws

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

R. Wagner: Twenty Years of Judicial Cooperation in Civil Matters

With the Treaty of Amsterdam entering into force on 1 May 1999 the European Union has obtained the legislative competence concerning the judicial cooperation in civil and commercial matters. This event’s 20th anniversary gives ample reason to pause for a moment to briefly appreciate the achievements and to look ahead. This article follows the contribution of the author in this journal in regard to the 15th anniversary of the entry into force of the Treaty of Amsterdam (IPRax 2014, 217).

E. Jayme/C.F. Nordmeier: The Freedom to Make a Will as a European Human Right? – Critical Considerations on the West Thrace Decision of the European Court of Human Rights

The article critically examines the decision of the ECHR of 19 December 2018, Molla Sali v. Greece, which deals with the special legal regime applicable to Muslims in West Thrace, a region in northern Greek. The Court considers Art. 14 ECHR in conjunction with Art. 1 of the Additional Protocol No. 1 to be violated if the will of a Muslim testator of this region, drawn up according to Greek state law, is measured against religious law. The authors are of the opinion that a human rights-protected election to state law is not permissible for individual areas of law or single legal questions. It opens up an arbitrary mixture of state and religious law, which can lead to inconsistent overall results. This is particularly the case when legal positions of third parties are affected. In addition, overarching political aspects of the protection of minorities, especially in Western Thrace, are not sufficiently taken into account in the decision.

J. Schulte: A Wii bit illegal? International jurisdiction and applicable law for the infringement of a Community Design by several tortfeasors (ECJ C-24, 25/16 – Nintendo)

On 27 September 2017 the European Court of Justice decided on the international jurisdiction and applicable law with regards to the infringement of a unitary Community intellectual property right, when Nintendo Inc. sued a mother and a daughter company for replicating, advertising and selling Wii console accessories. The Court’s judgement clarifies many important issues ranging from the member state courts’ scope of competence in case of several defendants, to the difficult relationship between Rome II’s conflict of law rules and the ones in the regulations on Community intellectual property rights as well as to the applicable law for infringing acts via the internet. Most notably, the ruling establishes a central act theory in case of multiple places of acts of infringements in the sense of Art. 8(2) Rome II.

P. Mankowski: Choice of law clauses in the Standard Terms and Conditions of airlines

Choice of law clauses in the Standard Terms and Conditions of airlines are commonplace in international air travel. Art. 5 (2) subpara. 2 Rome I Regulation “limits” freedom of choice in passenger contracts. Yet the CJEU’s Amazon judgment has raised questions whether choice of law clause in Standard Terms and Conditions might also be challenged under the aegis of the Unfair Contract Terms Directive.

B. Heiderhoff: Jurisdiction based on Art. 12 (3) Brussels IIbis and its consequences

The Saponaro judgment concerns the judicial authorisation for a renouncement of succession by the parents of a minor heir whose habitual residence is not within the state of the succession proceedings. The Court confirmed that this issue falls within the scope of the Brussels IIbis Regulation and gave details on the prerequisites of jurisdiction under Art. 12 (3) Brussels IIbis Regulation. In particular, the ECJ needed to clarify the meaning of the requirement of having been “accepted expressly or otherwise in an unequivocal manner by all the parties”. As Greek law, in order to secure the rights of the child, provides that a prosecutor is a party to the proceedings, the ECJ held that the acceptance of the prosecutor is necessary. The Court does not, however, even mention the necessity of the agreement of the child, an omission which must be criticised. This contribution additionally raises the question of the applicable law. Here, we see a number of difficulties. Firstly, the prorogated jurisdiction under Art. 12 (3) Brussels IIbis Regulation poses problems for the synchronous operation of the Brussels IIbis Regulation and the 1996 Hague Convention. Secondly, the approval procedure is a constellation where the distinction between protective measures (under Article 15 of the 1996 Convention) and the exercise of parental responsibility (under Article 17 of the 1996 Convention) becomes necessary. Thirdly, the strong interlinkage between the substantive law of parental responsibility and the procedural measures to protect the child make it very complicated to combine the approaches that the different legal systems take. All in all, it generally seems easier to institute the judicial authorisation in the state of the child’s habitual residence.

U.P. Gruber: The habitual residence of infants and small children

The ECJ has stressed in several decisions that for the purpose of Article 8(1) of Regulation No 2201/2003, a child’s place of “habitual residence” has to be established by considering all the circumstances specific to each individual case. However, in a new case, the ECJ has opted for a more conclusive weighing of selected criteria. The ECJ based its assessment on the fact that the child was permanently resident in Belgium. Furthermore, the ECJ pointed to the fact that the mother, who – in practice – had custody of the child, and also the father, with whom the child also had regular contract, both lived in Belgium. Other circumstances were expressly deemed to be “not decisive”, especially the stays of mother and child in Poland in the context of leave periods or holidays, the mother’s cultural ties to Poland and her intention of settling in Poland in the future. In summary, it can be said that for a rather typical fact pattern, the ECJ has given valuable guidance as to where the habitual residence of children is located.

U.P. Gruber/L. Möller: The admissibility of a custody order after the return of the child under the Hague Abduction Convention

The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction seeks to provide a rapid procedure for the return of the child to the country of the child’s former residence. Pursuant to Art. 16 of the Convention, a court in the state of refuge is not permitted to decide on the merits of any custody issue until it has been decided that there exists a reason for not ordering the return of the child, or the application for the return of the child is not lodged within a reasonable time. This provision is based on the assumption that a procedure dealing with custody issues in the state of refuge might delay or otherwise impair the procedure on the return of the child in that state. The OLG Bremen had to decide whether Art. 16 of the Convention was still applicable when the conclusive order to return the child had already been carried out, i.e. the child had been given back to the holder of the right of custody and had returned to its state of residence prior to its removal. The court concluded that in this situation the prohibition in Art. 16 of the Convention had ceased and that therefore German courts could decide on the rights of custody. The decision is correct: When the status quo ante has been fully restored, the objectives of the Convention have been reached; therefore, there is no more need to protect the procedure on the return of the child against influences of parallel proceedings on custody issues. Subsequently, the court also assumed jurisdiction as, under German law, jurisdiction can be based solely on the German nationality of the child. At closer look, the case illustrates that German jurisdictional rules are not well-suited for child abduction cases and there is need for reform.

K. Siehr: International jurisdiction of German courts to take measures in order to enforce the right of access of the mother to meet her children living abroad

A German couple had two sons. The couple divorced and the father got custody for the two children and moved with them to Beijing/China. The Magistrate Court of Bremen (Amtsgericht Bremen) awarded to the mother, still living in Germany, rights of access to the children and obliged the father to cooperate and send the children from Beijing to Germany in order to visit their mother. The father did not cooperate and did not send the children to Germany. The Magistrate Court of Bremen fixed a monetary penalty (Ordnungsgeld) of e 1000,00 in order to sanction the father’s misbehavior. The father lodged an appeal against this decision and the Court of Appeal of Bremen (Oberlandesgericht Bremen) vacated the decision of the Magistrate Court because of lack of international jurisdiction. The Federal Court for Civil and Criminal Matters (Bundesgerichtshof) corrected the Court of Appeal of Bremen and upheld the order for monetary penalty awarded by the Magistrate Court of Bremen. German courts are allowed to sanction their decision by awarding monetary penalties against a party living abroad.

P. Kindler/D. Paulus: Entry of Italian partnerships into the German land register

Under German law, following a judgment of the Federal Court of Justice (BGH) of 29 January 2001, even non-commercial partnerships (the „Gesellschaft bürgerlichen Rechts“, GbR) under certain circumstances – and without being regarded a legal entity – have an extensive legal capacity. On 4 December 2008, in a second step, the Federal Court of Justice held that a GbR can not only acquire ownership of land or other immovable property or rights but may also be entered in the German land register (Grundbuch – „formelle Grundbuchfähigkeit“). Subsequently, as of 18 August 2009, the German legislator implemented a new § 899a to the German Civil Code (BGB) as well as a new section 2 to § 47 of the German Land Register Code (GBO), stating that if a GbR is to be registered, its partners must also be entered into the land register. In its judgment of 9 February 2017 concerning an Italian società semplice, the

German Federal Court of Justice held that also foreign non-commercial partnerships can be entered into the German land register. Prerequisite for this is not a full legal capacity but only that the respective partnership, according to its company statute, at least has a partial legal capacity with regard to the acquisition of real estate („materielle Grundbuchfähigkeit“). In order to determine this, a judge has to investigate foreign law ex officio. This includes not only the determination of the law itself but also of its concrete application in the respective foreign legal practice. To this end, the judge must make full use of the legal sources available to him. The authors share the position of the German Federal Court of Justice but point out that the applicable Italian law of business associations even provides for a full legal capacity of non-commercial partnerships.

K. Duden: Jurisdiction in case of multiple places of performance: preparatory work vs. its implementation on site

In the case of a contract for the provision of services, Art. 7 (1) (b) of the Brussels Ibis Regulation establishes jurisdiction at the place where the service is provided. In light of a decision of the Austrian Supreme Court on an architect’s contract this paper analyses how jurisdiction at a single place of performance can be identified if the performance actually is provided in several places. In doing so, it is argued that a distinction should be drawn between services that have an internal as opposed to an external variety of places of performance. Regarding architects’ contracts the author agrees with the Austrian Supreme Court that the courts at the building site have jurisdiction as the courts at the place of the main performance. Furthermore, the paper discusses where jurisdiction generally should be located for services that consist of extended preparatory work at one place that culminates in its implementation at another place, but where those services do not necessarily have a comparatively strong link with the place of implementation. Finally, cases will be considered in which the place where the service is mainly provided cannot be determined. It is argued that amongst the approaches taken in such cases by the ECJ it is more convincing to grant the claimant a choice amongst the places which could be considered as the place of main performance, rather than give preference – amongst various potential places of main performance – to the jurisdiction at the seat of the characteristic performer.

L. Hübner: Existential disputes as a case for Art. 24 no. 2 Brussels 1a Regulation – the doctrine of fictivité in the European law of jurisdiction

The decision of the Cour de cassation deals with the exclusive jurisdiction for company-related disputes in Art. 24 No. 2 Brussels 1a Regulation. The Cour de cassation confirms the strict interpretation in accordance with the parameters of the ECJ. The subject-matter of the action is not a dispute regarding deficiencies in resolutions, which frequently is the subject-matter of action in connection with Art. 24 (2) Brussels 1a Regulation, but a so-called existential dispute arising from the French doctrine of fictivité.

P. Schlosser: Prescription as Lack of jurisdiction of an arbitral tribunal

In view of the expropriation of gold mines the claimant instituted arbitral proceedings on the basis of the Bilateral Agreement between Canada and Venezuela according to the Additional Facility Rules of the Word Bank Centre. The Canadians were successful. The Cour d’Appel de Paris, however, invalidated the calculation of the award, but not the further elements of the ruling. The reason therefor was a term in the Bilateral Investment Treaty, that the tribunal had only competence to consider events no more than three years prior to the institution of arbitral proceedings. In validating the damage of the Canadians, however, the tribunal had taken into consideration events of a prior occurrence. Normally the claimant had to institute new proceedings because in France the case cannot be referred back to the arbitrators. But since the parties had found a settlement agreement no further proceedings were necessary.

On 8 February 2019 the Belgain Court of Cassation decided the case Happy Flights v Ryanair. The Dutch version of the decision is available here.

At issue was the validity of the clause in Ryanair’s general terms and conditions that the Irish courts have jurisdiction over disputes. The Court of Cassation quashed the decision of the Commercial Court of Brussels, which had considered only the formal validity of the choice-of-court clause.

The Court of Cassation confirmed that the consumer protection provisions of Brussels Ia do not apply (the contracts concern transport). It further found that according to Art. 25(1) of Brussels Ia the substantive validity of the clause (in a non-negotiated contract) was subject to Irish law (specifically the Irish implementation in Act 27/1995 of Directive 93/13/EEG on unfair terms in consumer contracts). The Court did not explicitly refer to Irish private international law (according to Consideration 20 of Brussels Ia), but directly to Act 27/1995.

It sent the case back to the Commercial Court of Leuven for a new assessment.

Thank you to Veerle Van den Eeckhout for the tip-off.

On 10 April 10 2019, the UK Supreme Court handed down its much anticipated judgment in the “Vedanta” case (see here). The judgment is currently raising many comments and discussions on Corporate Social Responsibility (CSR), including from the perspective of Private International Law.

The PowerPoint (in French) of a presentation by Veerle Van den Eeckhout in March 2017 explains some Private International Law aspects of CSR, including the state of the Vedanta proceedings at that time and its context.

A Legislative initiative procedure which started nearly a year ago, is coming now to the next level: The European Commission has recently stated its position on the European Parliament non-legislative resolution with recommendations to the Commission on expedited settlement of commercial disputes. The response is featured in a document titled ‘Follow-up to the European Parliament non-legislative resolution with recommendations to the Commission on expedited settlement of commercial disputes’. The main issues addressed may be summarized as follows:

Creation of a European Expedited Civil Procedure (EECP)

The Commission will take the resolution as further inspiration to analyse simplifications to cross-border litigation, but not necessarily by a specific European Expedited Civil Procedure.

Possible changes to the Rome I, the Rome II and the Brussels Ia Regulations

The Commission will, as appropriate, consider issues concerning choice of law agreements and choice of court agreements within the framework of the review of the relevant instruments (the Rome I and the Brussels Ia Regulations).

Other measures – building competence in commercial law in Member States

The Commission will continue to support training and research in commercial law and to facilitate access to information on foreign law in the framework of non-legislative actions, including financial programmes.

Other measures – analysing establishment of the European Commercial Court

At this stage, it does not seem appropriate to engage in preparatory action concerning the establishment of a European Commercial Court. However, the Commission will consider the question of the desirability of further studies in this field.

The full text of the doc. document is available here.

Once there, scroll down to Documentation gateway, and open the European Commission box.

The two volumes of the Luxembourg Reports on European Procedural Law were published early this month. They are the fruits of an evaluation study of national procedural laws and practices in terms of their impact on the free circulation of judgments and on the equivalence and effectiveness of the procedural protection of consumers under EU consumer law.

The volumes present a comparative examination and empirical evaluation of national procedural rules and practices as regards mutual trust and the free circulation of judgments on the one hand, and consumer protection on the other, in light of relevant EU and national legislation and European Court of Justice and domestic case law.

The publication was edited by Burkhard Hess, Stephanie Law & Pietro Ortolani. The Report was prepared by a Consortium of European universities led by the MPI Luxembourg for Procedural Law as commissioned by the European Commission [UST/2014/RCON/PR/CIVI/0082].

For more information, check here.

The European Law Institute is calling for submissions for its 2019 ELI Young Lawyers Award. Candidates must be law students (undergraduate or postgraduate) at a European university. The call is for a unique and original paper which has not previ­ously been published and which deals with a European legal issue that is ripe for reform. Papers must be submitted by April 30, 2019, 20:00 CET in any of the EU official languages along with an English translation. Further details can be found here.

To celebrate its 150th birthday, the Société de législation comparée is organizing a comparative law essay competition. It is open to all lawyers, of all nationalities, regardless of their speciality. Membership of the Society is not required to participate.

Entrants will compose, on a subject of their choice, an essay which is supported by comparative legal reasoning.

The submitted text must be unpublished, never formally examined and contain at least 100,000 characters. It can be written in French or English. Entrants must send a print and an electronic version of the text to the Société de législation comparée, 28 rue Saint-Guillaume, 75007 Paris, France and emmanuelle.bouvier@legiscompare.com no later than October 15, 2019. The application form must be attached to the text.

The selection committee will present the results of its deliberations at the Society’s birthday colloquium in December 2019. First prize will be the publication of the text by the Society in the form of a book. Other awards may be given to distinguished candidates by the committee. Other forms of publications may also be proposed.

To download the application form, please click here.

The Editors of the Melbourne Journal of International Law (‘MJIL’), Australia’s premier generalist international law journal, are now inviting submissions for volume 20(2). MJIL is a peer-reviewed academic journal, based at the University of Melbourne.

The deadline for submissions is July 1, 2019. Submissions and inquiries should be directed to law-mjil@unimelb.edu.au. For more information, please visit https://law.unimelb.edu.au/mjil#submissions.

As previously reported on Conflicts of Laws, the ECtHR was requested an advisory opinion by the French Court of Cassation.

On April 10th, the ECtHR delivered its first advisory opinion. It held that:

“In a situation where a child was born abroad through a gestational surrogacy arrangement and was conceived using the gametes of the intended father and a third-party donor, and where the legal parent-child relationship with the intended father has been recognised in domestic law,

1. the child’s right to respect for private life within the meaning of Article 8 of the European Convention on Human Rights requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”;
2. the child’s right to respect for private life does not require such recognition to take the form of entry in the register of births, marriages and deaths of the details of the birth certificate legally established abroad; another means, such as adoption of the child by the intended mother, may be used”.

For a brief summary of the advisory opinion and the case background see the Press Release.

For further details see the Advisory Opinion.

The fifth edition of the annual conference of the Carlos III University of Madrid devoted to private international law will take place on 25 and 26 April 2019. This year’s topic is surrogacy.

Speakers include Javier Carrascosa González (Univ. Murcia), Cristina González Beilfus (Univ. Barcelona), Iván Heredia Cervantes (Univ. Autónoma Madrid), Ilaria Pretelli (Swiss Institute of Comparative Law), and Fabrizio Marongiu Buonaiuti (Univ. Macerata).

See here for the full programme and further information.

The e-Codex Plus project and the ERC project team Building EU Civil Justice of the Erasmus School of Law are jointly organising the conference ‘e’ meets justice: building bridges in cross-border procedures. On 2 and 3 May 2019, academics, IT and legal professionals will meet in Lisbon to discuss how to improve the collaboration between these communities in cross-border civil procedures. The aim of the conference is to offer a platform for different stakeholders to meet, engage in discussions and exchange ideas in order to find a meeting point between the legal world and the digital world, arriving at ‘e-justice’. Focusing on e-CODEX as a potential tool to improve the current situation, participants will be encouraged to propose ideas, engage in discussions and develop a mind-set to foster the future of e-Justice in the EU.

In recent years, cross-border (e-)commerce has increased rapidly. In particular, e-commerce enabled consumers to engage in online transactions with traders from outside their jurisdictions. This development resulted in a growing number of cross-border (online) disputes. While the number of disputes surges, there is a lack of suitable redress mechanisms for consumers, posing challenges to access justice. Consumers encounter obstacles to find a remedy for their cross-border claims, due to differences in language, increased costs, longer procedures, and various diverging legal procedures. It is important that justice embraces technology in order to support online and offline consumers. For a smooth functioning of the Internal Market, it is essential that the consumer has trust and confidence to make (online) cross-border purchases. Therefore, the European Union has been active in creating consumer protection legislation, both in substantive law and more recently in procedural law. Cross-border procedures exist, but their accurate functioning requires that infrastructure must be interlinked and coherent, and should enable more dialogue between stakeholders. In this regard, e-CODEX can be a valuable tool to provide the digital exchange of case related data, connecting parties and courts in a single interface.

You can find more information on the programme on: https://www.e-codex.eu/e-meets-justice-conference. Do you want to be part of this lively and thought-provoking dialogue? You can register now by sending an email to: aanmelden@minvenj.nl.

On 15 April 2019 eleven international publishing will host an event on “Choice of Law in International Contracts” to honor the publication of Dr Gustavo Moser’s book Rethinking Choice of Law in Cross-Border Sales. The event will take place from 1 to 5 pm in the  Salon Franz Josef, Hotel Regina, Rooseveltplatz 15, 1090 Vienna, Austria. Topics will include:

• Choice of Law and Brexit
• Drafting Choice of Law Clauses
• CISG Status and Prospects 

1:00 pm – 3:00 pm| Roundtable Lunch with the Stakeholders

Speakers: Professor Ingeborg Schwenzer; Louise Barrington; Dr Patricia Shaughnessy; Michael McIlwrath; Luca Castellani; Dr Florian Mohs; and Dr Sabrina Strassburger

Moderator: Dr Gustavo Moser

3:30 pm – 5:00 pm| Coffee & Tea Talk

Speakers: Professor Ingeborg Schwenzer; Professor Petra Butler; Professor Andrea Bjorklund; and Dr Lisa Spagnolo

Moderator: Dr Gustavo Moser

Prof. Dr. Marc-Philippe Weller and Markus Lieberknecht, Heidelberg University, have kindly provided us with the following blog post which is a condensed abstract of the authors’ article in the Juristenzeitung (JZ) 2019, p. 317 et seqq. which explores the topic in greater detail and includes comprehensive references to the relevant case law and literature.

In one of the most controversial German judgments of 2018, the Higher Regional Court of Frankfurt held that the air carrier Kuwait Airways could refuse transportation to an Israeli citizen living in Germany because fulfilling the contract would violate an anti-Israel boycott statute enacted by Kuwait in 1964. The Israeli citizen had validly booked a flight from Frankfurt to Bangkok with a layover in Kuwait City. However, Kuwait Airways hindered the Israeli passenger from boarding the aircraft in Frankfurt. According to the judgment of the Frankfurt Court, Kuwait Airways acted in line with the German legal framework: specific performance of the contract of carriage was deemed to be impossible because of the Kuwait boycott statute.

This judgment is wrong. Hence, it is not surprising that the decision sparked reactions in German media outlets which ranged from mere disbelief to sheer outrage.

The case demonstrates that the seemingly ‘neutral’ domain of Private International Law is not exempt from having to deal with delicate political matters such as the current global rise in anti-Israel and anti-Semitic sentiments. However, Private International Law is not as ill-equipped as the Frankfurt judgment seems to suggest. In fact, both Private International Law and (German) substantive law offer a wide range of instruments to respond to anti-Semitic discrimination.

First, the article explores the term anti-Semitism in order to carve out a workable definition for legal purposes. Based on this concept and on the available empirical data, we identify three scenarios which appear particularly relevant from a private law perspective: these include, first, encroachment on the personal honor and dignity of Jewish persons; second, attempts to alienate Jewish persons economically, one example being the Kuwait Airways case; third, physical attacks on Jewish persons or their property.

When addressing such behavior, private law operates under the influence of a superseding framework of anti-discriminatory provisions contained in international Law, European Law and constitutional law. We attempt to show that the protection of Jewish identity constitutes an overarching paradigm of Germany’s post-war legal order, a notion which finds support in the Jurisprudence of the German Federal Constitutional Court.

On a Private International Law level, this basic value of Germany’s post-war legal order shapes the domestic public policy (ordre public). Moreover, it translates into a twofold use of overriding mandatory provisions. First, under Art. 9(3) Rome I Regulation German courts are precluded from applying foreign overriding mandatory provisions with an anti-Semitic objective, such as Kuwait’s boycott statute. Although the ECJ’s reading of Art. 9(3) Rome I Regulation in Nikiforidis does leave room to take such provisions, or their effects, into account within the applicable substantive law as purely factual circumstances or as foreign data, we argue that the result of this process must not be that provisions which violate the ordre public are inadvertently given effect through the ‘back door’ of substantive law.

Applying our findings to the case, we conclude that Kuwait Airways lacked grounds to invoke both legal and factual impossibility. Whereas the former is precluded under Art. 9(3) Rome I Regulation for constituting a normative application of the Kuwaiti law, the latter requires a more intricate reasoning: We argue that the passenger’s right to specific performance had to be upheld under German contract law, while any purported intrusion of the Kuwaiti authorities into the performance is best dealt with at the enforcement stage. This approach is in line both with the result-driven desire to avoid granting the Kuwaiti law any effect within the German legal order and with the doctrinal structures of German law. One could reach the same conclusion by relying on a fact pointed out by Jan von Hein (Freiburg University): Kuwait Airways is a state enterprise owned by Kuwait, i.e. the very creator of the legal impediment (the boycott statute). Hence, it should not be allowed to rely on a self-created obstacle to refuse performance.

Conversely, overriding mandatory provisions contained in German law, e.g. anti-discrimination statutes, can be used to ward off or modify anti-Semitic effects of a foreign lex causae governing the legal relation in question. We then go on to discuss the necessity, or lack thereof, of adopting a Blocking Statute specifically designed to subvert the effectiveness of foreign legislation with an anti-Semitic agenda.

Lastly, we demonstrate that, in addition to securing the right to specific performance of Israeli citizens, the substantive law provides a host of legal grounds which can serve to empower victims of anti-Semitic discrimination. These instruments range from contractual damages to possible claims based on anti-discrimination law and the law of torts, addressing all of the relevant scenarios outlined above.

Kindly shared by Marta Pertegás Sender, Professor at the University of Maastricht

The University of Maastricht Law Faculty is offering two post-doc positions in the area of private law (including private international law), with focus on digital legal studies and globalisation respectively. The job descriptions and requirements are available hereunder:

– Assistant Professor Digital Legal Studies

– Assistant Professor Private Law and Globalization

On April 30, 2019, the Université de Montréal, in collaboration with the Department of Justice Canada, organises a conference on the topic of the “Unidroit Convention on International Interests in Mobile Equipment”. The conference will cover the Aircraft Protocol, which is in force with respect to Canada, as well as the draft MAC Protocol dealing with the asset-based financing of agricultural, mining and construction equipment.  The aim of the conference is to share experience and to foster discussions on the application of the Convention in the Canadian legal system.  What are the challenges?  What are the benefits to users?  Is the draft MAC Protocol relevant to Canada?

The full program will be available shortly on the Université de Montréal website. For further information and registration see here.

Written by Dr Rishi Gulati, LSE Fellow in Law, London School of Economics; Barrister, Victorian Bar, Australia

The regulation of public international organisations (IOs) has been brought into sharp focus following the landmark US Supreme Court ruling in Jam v International Finance Corporation586 US (2019) (Jam). Jam is remarkable because the virtually absolute immunities enjoyed by some important IOs have now been limited in the US (where several IOs are based), giving some hope that access to justice for the victims of institutional action may finally become a reality. Jam has no doubt reinvigorated the debate about the regulation of IOs. This post calls for private international law to play its part in that broader debate. After briefly setting out the decision in Jam, a call for a greater role for private international law in the governance of IOs is made.

The Jam decision

The facts giving rise to the Jam litigation and the subsequent decision by the US Supreme Court has already attracted much discussion by public international lawyers, including by this author here. Only a brief summary is presently necessary. The International Finance Corporation (IFC), the private lending arm of the World Bank which is headquartered in the US entered into a loan agreement with Coastal Gujarat Power Limited, a company based in India, to finance the construction of a coal-fired power plant in Gujarat.  The plaintiffs sued the IFC (including in tort) in a US Federal District Court asserting that pollution from the plant harmed the surrounding air, land, and water. The District Court found  that the IFC was absolutely immune under the US International Organisations Immunities Act 1945 (IOIA). The DC Circuit affirmed that decision. For an analysis of those decisions, see previous posts by this author here and here.

However, in its landmark ruling in Jam, the US Supreme Court reversed the decision of the court below, significantly affecting the potential scope of IO immunities. The IOIA, which applies to the IFC, grants international organizations the ‘same immunity from suit…as is enjoyed by foreign governments’ (22 U. S. C. §288a(b). The main issue in Jam concerned how the IOIA standard of immunity is to be interpreted. Should it be equated with the virtually absolute immunity that states enjoyed when the IOIA was enacted? Or should the IOIA standard of immunity be interpreted by reference to the restrictive immunity standard (immunity exists only with respect to non-commercial or public acts)? This latter standard is now enshrined in the US Foreign Sovereign Immunities Act 1976 (s 1605(a)(2), FSIA). By seven votes to one (with Breyer J dissenting) the US Supreme Court has now given a definitive answer. The majority of the court concluded that the IOIA grants immunity with reference to the FSIA standard of immunity, stating:

In granting international organizations the “same immunity” from suit “as is enjoyed by foreign governments,” the Act seems to continuously link the immunity of international organizations to that of foreign governments, so as to ensure ongoing parity between the two. The statute could otherwise have simply stated that international organizations “shall enjoy absolute immunity from suit,” or specified some other fixed level of immunity. Other provisions of the IOIA, such as the one making the property and assets of international organizations “immune from search,” use such noncomparative language to define immunities in a static way…Or the statute could have specified that it was incorporating the law of foreign sovereign immunity as it existed on a particular date…Because the IOIA does neither of those things, we think the “same as” formulation is best understood to make international organization immunity and foreign sovereign immunity continuously equivalent (Jam, pp. 9-10).

The result is that the IFC (and similarly situated organisations) only possess immunities in respect of their non-commercial or public transactions. While the limiting of IO immunities is to be welcomed for it can only go towards enhancing access to justice for the victims of institutional conduct, the decision in Jam raises more questions than it perhaps answers.

Firstly, how can the decision in Jam be accommodated with the international law notion of IO immunities that finds its basis in the theory of ‘functionalism’? The idea being that IOs need immunities to avoid an intrusion into their independence by host states/national courts. Instead of clarifying what this functional standard actually means and how it interacts with the commercial v non-commercial distinction, in Jam, the Supreme Court chose to simply engage in an exercise of statutory interpretation taking a parochial approach (Jam, p. 12). So, there now exists a schism in the international and national (at least in the US) law on IO immunities (see here). Other commentators have tried to provide some indications on how functionalism can be translated to the commercial v non-commercial distinction for the purposes of determining IO immunities, without however providing an answer that will generate any certainty. For the moment, it is simply noted that a transaction that may be within the scope of functional immunities may also be a classically commercial transaction making it difficult to precisely determine what ought to be immune.

Secondly, leaving to one side the schism between the international and national understanding of IO immunities now created, the difficulty in distinguishing between commercial and non-commercial activity itself must not be understated. Webb and  Milneshave stated that ‘IOs with links to the US like the World Bank face the daunting prospect of litigation in the US Courts exploring the extent and limits of what is “commercial”. In state immunity law, this exception has been broadly defined, essentially as comprising the type of activity in which private actors can engage (in contradistinction to the exercise of public power), and its outer boundaries remain unmarked.‘ Just like the distinction has given significant challenges in the state immunity context (whether the focus should be on the nature of the transaction or its purpose), the difficulty will be even greater in the IO context only creating further uncertainties. As Breyer J pointed out in his dissent:

As a result of the majority’s interpretation, many of the international organizations to which the United States belongs will discover that they are now exposed to civil lawsuits based on their (U. S.-law-defined) commercial activity. And because “commercial activity” may well have a broad definition, today’s holding will at the very least create uncertainty for organizations involved in finance, such as the World Bank, the Inter-American Development Bank, and the Multilateral Investment Guarantee Agency. The core functions of these organizations are at least arguably “commercial” in nature; the organizations exist to promote international development by investing in foreign companies and projects across the world…The World Bank, for example, encourages development either by guaranteeing private loans or by providing financing from its own funds if private capital is not available (Jam, p. 29).

The justifiable concerns pointed to by Breyer J require a comprehensive response falling nothing short of treaty reform. In fact, the majority of the Supreme Court in Jam observed that treaty amendment was one method to resolve any real or perceived difficulties for IOs in so far as the scope of their immunities is concerned. In rejecting IFC’s argument that most of its work of entering into loan agreements with private corporations was likely commercial activity; and the very grant of immunities becomes meaningless if it can be sued in respect of claims arising out of its core lending activities (Jam, p. 15), the court said:

The IFC’s concerns are inflated. To begin, the privileges and immunities accorded by the IOIA are only default rules. If the work of a given international organization would be impaired by restrictive immunity, the organization’s charter can always specify a different level of immunity. The charters of many international organizations do just that…Notably, the IFC’s own charter does not state that the IFC is absolutely immune from suit (Jam, pp. 17-8).

Treaty reform is obviously demanding and time-consuming. Jam nevertheless provides the impetus to pursue it with vigour. Such reform is required not only for organisations such as the IFC, but also IOs more generally.

The need for real and meaningful reform: a role for private international law

Clearly, Jam demonstrates the particular difficulties in assessing the scope of the IFC’s immunities. In answering questions of IO immunities, the tension is between two values: maintaining an IO’s functional independence and securing access to justice for the victims of IO action. This tension is not only manifest vis-à-vis the IFC in particular, but exists for all IOs in general. As this author discussed in another work, regardless of the subject matter of a dispute or the gravity of harm, the location of the affected party or the identity of the IO, the public visibility of a dispute or its inconspicuousness, we live in a ‘denial of justice age’ when it comes to the pursuit of justice against IOs. The victims (including families of the more than 9000 individuals who lost their lives) of cholera introduced in Haiti by UN peacekeepers in 2010 are still awaiting effective justice. The victims of the Srebrenica genocide of 1995 for which the UN assumed moral responsibility have not yet been compensated, with no such compensation in sight. When hundreds of Roma suffered serious harm due to lead poisoning caused by the apparent negligence of the UN Mission in Kosovo in placing vulnerable communities next to toxic mines, the UN belatedly set up a Human Rights Advisory Panel; its adverse findings have gone unenforced to this day. There are countless other disputes, including, contractual, tortious, employment and administrative, where a denial of justice is much too common.

If the balance between IO independence and access to justice is to be better and properly struck, fresh thinking is needed that underpins any reform process. Of course, each IO is different from one another, and the shape that any reforms that may take will need to be particularised to the circumstances of the concerned organisation. Nevertheless, IOs constitute international legal persons with significant commonalities, and there ought to be certain foundational reforms that are equally applicable to most if not all organisations. Private international law can play a major role in any such foundational reform process.

Specifically, as I showed elsewhere, there exists a ‘regulatory arbitrage’ in the governance of IOs. This arbitrage results in victims of IO conduct slipping through legal loopholes when seeking to access justice. One manifestation of the regulatory arbitrage is provided by the law on IO immunities, including how it is interpreted and/or applied. As is much too common (see for example the Haiti Cholera Litigation), despite lack of access to justice within the institutional legal order which IOs are required to provide under international law, by and large national courts refuse to limit IO immunities interpreting  functional immunities as de facto absolute. Therefore, (a) immunities that were always intended to be limited by functionalism are overextended; and (b) immunities are not made contingent on the provision of access to justice at the institutional level. The balance between perceived institutional independence and access to justice has leaned towards the former. The result is a denial of justice at multiple levels.

For some victims, Jam may ultimately correct the exploitation of this arbitrage in respect of claims pursued against organisations such as the IFC for lending by that organisation is likely to constitute commercial and therefore non-immune. However, other victims will continue to be denied justice due to ambiguous and broad wording used in constituent instruments providing for IO immunities (such as the immunities of the UN). IOs will continue to exploit the prevailing regulatory arbitrage to avoid liability. Unless the exploitation of the regulatory arbitrage is tackled, the denial of justice age cannot be brought to an end. To address this arbitrage, private international law techniques can be used to balance often competing but legitimate values. For example, conceptualising question of IO immunities in terms of ‘appropriate’ forum can be a useful method to coordinate the exercise of jurisdiction between the IO and national legal orders that co-exist in a pluralist legal space. Here, what should determine whether a national court ought to take jurisdiction over an IO is whether access to justice consistently with fair trial standards is available or can be adequately provided within the IO legal order? This must be determined following a specific and nuanced inquiry as opposed to a tick the box exercise (for employment claims, see a detailed study here).

Further, focusing on the rules on jurisdiction, choice of law and the recognition and enforcement of foreign judgments (the three aspects of private international law), the individual right to access justice can be secured without compromising IO independence   for private international law is perfectly suited to slice regulatory authority across legal orders with much precision. This author has called for the Hague Conference on Private International Law to initiate discussions about the negotiation of a global treaty that enshrines the private international law rules applicable between states and IOs. The regulatory framework that must govern IOs is one which involves public, institutional and  private international law benefiting from each other’s strengths.

Written by Matthew S. Erie, Associate Professor of Modern Chinese Studies and Fellow at St. Cross College, University of Oxford

On April 2, 2019, the Government of the Hong Kong Special Administrative Region (“HKSAR”) and the Supreme People’s Court of the People’s Republic of China” (“Supreme People’s Court”) signed an Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the HKSAR (hereinafter, “the Arrangement Concerning Mutual Assistance,” see English translation here). This is a momentous development in the growth of international commercial arbitration in both mainland China (also, the “PRC”) and Hong Kong as it is the first time that such a mechanism has been put in place to allow Chinese courts to render interim relief to support arbitrations seated outside of the PRC.

Historically, non-Chinese parties have been concerned about doing business with Chinese parties given the lack of the ability to ensure that the status quo of the assets of the Chinese party in question is not altered pending the outcome of the arbitration and the tribunal’s issuance of the final award.  As a result of the Arrangement Concerning Mutual Assistance, foreign parties will have more comfort in entering into such agreements with Chinese parties; further, the attractiveness of both Hong Kong as a seat of arbitration and the PRC will be enhanced. More generally, the Arrangement Concerning Mutual Assistance demonstrates the close cooperation between legal, judicial, and arbitral authorities in the PRC and Hong Kong. The Arrangement Concerning Mutual Assistance builds on such soft law sources as the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the HKSAR Pursuant to the Choice of Court Agreements Between Parties Concerned, signed on July 14, 2006, and the Arrangement Concerning Mutual Enforcement of Arbitral Awards Between the Mainland and the HKSAR, signed on June 21, 1999.  These sources of soft law position Hong Kong as a major legal hub for Chinese companies investing outside of mainland China. This is particularly so in the context of the Belt and Road Initiative, a multi-trillion dollar project affecting some two-thirds of the world’s population, announced by PRC President Xi Jinping in 2013, to connect mainland China’s economy with those of states throughout Eurasia.

Mainland China’s soft law agreements with Hong Kong are not surprising given that Hong Kong is a “special administrative region” of the PRC, a relationship often summarized as “one country two systems.” Nor is it surprising that Hong Kong should function as a legal hub for Chinese companies. Yet Hong Kong is just one of many such hubs emerging throughout a number of jurisdictions across the Eurasian landmass that are jockeying to provide legal services, and particularly dispute resolution services, to not just Chinese companies but also Japanese, Indian, and those of GCC and ASEAN states. The diversity of parties notwithstanding, with some of the largest multi-national companies in the world backed by strong central government support, China is the dominant economy of the region. China is not only creating soft law with other jurisdictions but also onshoring disputes by building its own NLHs in Shanghai and Shenzhen. As a consequence, emergent economies in Asia are accounting for an ever-larger number of cross-border commercial disputes, and jurisdictions in Asia are building capacity to handle those disputes. Soft law, international arbitration houses, international commercial courts, business mediation, transplanted English common law procedural rules, English language, and lawtech—these are all constitutive elements of what I call “new legal hubs” (“NLHs”), one-stop shops for cross-border commercial dispute resolution, in financial centers, promoted as an official policy by nondemocratic or hybrid regimes.

Over the course of two years, I conducted ethnographic fieldwork on six NLHs in four countries, including in Hong Kong, Singapore, Dubai, Kazakhstan, and China. The result of my research, “The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution” (see here), is forthcoming in the Virginia Journal of International Law. The article analyses NLHs at two levels: their impact on the host states in which they are embedded and interhub connections as a form of transnational ordering. This article finds that, first, legal hubs are engines of doctrinal, procedural, and technological experimentation, but they have had limited impact on the reform of the wider jurisdictions within which they are embedded. Second, through relationships of competition and complementarity, legal hubs function to enhance normative settlement. However, many of the innovations (e.g., intrahub cross-institutional mechanisms between courts and arbitration institutions and interhub soft law such as memoranda of understanding) are untested, vulnerable to state politics, or even unlawful. Consequently, NLHs demonstrate the potential and fragility of “rule of law” in nondemocratic states that promote globalization against trends in the West.

The article begins with an introduction that defines NLHs, identifies their significance as jurisdictional carve-outs to otherwise weak legal systems of host states, and proposes an anthropology of legal hubs. Part I sets the analysis of NLHs against the backdrop of a partially deglobalizing Euro-American liberal legal order and a globalizing “Inter-Asian” one. Part II describes the methodology of “para-ethnography.” Part III provides a theory of NLHs. Part IV builds on this theory to generate a continuum of NLHs. Part V assesses how NLHs and their host states affect each other, including hubs’ positive spillover effects and host state pushback. Part VI examines the possibilities for interhub ordering.

On 7 June 2019, the School of Law at Royal Holloway, University of London and the School of Law at Middlesex University organise a conference on the topic of “Access to Justice and Arbitration”. The conference is hosted at Royal Holloway.

The aim of the conference is to initiate a focused debate about access to justice in arbitration that would enable a larger public discussion about the specific role of access to justice in arbitration.

The full programme will be published shortly. For further information and registration see here and here.

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has announced that the 11th International Forum on the e-APP (electronic Apostille Program) will be held in Fortaleza, Brazil, from 16 to 18 October 2019.

The e-APP promotes the use of technology to further enhance the secure and effective operation of the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents Apostille Convention (Apostille Convention).  Among the technologies that will probably be discussed are the use of distributed ledger technologies (such as blockchain) in accordance with the Conclusion & Recommendation No 35 of the HCCH Council.

The working languages of the Forum will be English, Portuguese and Spanish.

Many Contracting Parties have already implemented one or both components of the e-APP. There are already 35 Contracting Parties with an e-Register, many of which are in the Americas. See here.

More information (incl. registration process) will be made available on the Apostille Section of the HCCH website. While the number of participants is limited, registration is free of charge and will be handled on a first come, first served basis.

The HCCH news item is available here. See also the information relating to the 10th e-APP Forum as it compiled all previous Conclusions & Recommendations.

The book titled I Regolamenti europei sui regimi patrimoniali dei coniugi e delle unioni registrate: commento ai Regolamenti (UE) 24 giugno 2016, n.1103 e 1104 applicabili dal 29 gennaio 2019, authored by Paolo Romano, was recently released by the Italian publisher Giuffrè.

The official description (translated from the Italian original) states:

With the adoption of Regulations (EU) Nos. 1103 and 1104 of 2016, applicable from 29 January 2019, the supranational legislator has completed – albeit in the form of enhanced cooperation – the framework of European family law, dictating common rules on jurisdiction, applicable law, recognition and enforcement of decisions in matters of matrimonial property regimes and property effects of registered partnerships. After intervening over the course of a decade in the matrimonial matters and parental responsibility, then in terms of maintenance obligations and succession, the Council of the European Union has therefore provided citizens and professionals with the necessary coordinates to reach a complete definition of the property relationships of spouses and partners (between them and third parties) deriving directly from the creation of the family bond or its dissolution. Retracing the structure of the two legislative acts, as supplemented by the Implementing Regulations (EU) No. 1935 and No. 1990 of 7 and 11 December 2018 which adopted the standard forms attached to them, and commenting on the discipline in the light of the most recent rulings of the European Courts, the author examines their compatibility with the relevant institutes of Italian substantive and procedural law – from the reflections on the discipline of legal communion and applicability to registered partnerships and de facto couples, to exploring their practical implications in terms of circulation of agreements on assisted negotiation – in a constantly evolving regulatory and social context.

This book follows Romano’s former book Le controversie familiari dell’Unione Europea published with the same editor in 2018.