Conflictoflaws

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.

Over the past 19 years, Professor Symeon C. Symeonides (Alex L. Parks Distinguished Professor of Law, Dean Emeritus) has been providing scholars, researchers, practitionners and student with a comprehensive and extensive compliation of Parivate International law bibliogrphy.

The 2024’s compilation (Private International Law Bibliography 2024: U.S. and Foreign Sources in English) includes 58 books and 427 journal articles, covering a wide range of topics within private international law (conflict of laws) and related fields.

The bibliography addresses key areas such as prescriptive jurisdiction, extraterritoriality, federal-state conflicts, and specific aspects of arbitration. It also encompasses legal issues related to foreign relations and international human rights, providing a valuable reference for those studying or working in these domains.

This compilation serves as a significant resource for legal scholars and practitioners, offering a thorough overview of the literature in private international law and its associated fields.

Access to the bibliography is available on Prof. Symeonides’ SSRN page here.

I would like to take this opportunity to extend my heartfelt congratulations to Prof. Symeonides for his unwavering commitment and remarkable contributions. His bibliography continues to be a cornerstone of legal research and a testament to the enduring importance of meticulous scholarship.

On Tuesday, January 7, 2025, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 4:00 p.m. – 5:30 p.m. (CET). Professor Joseph William Singer (Harvard Law School) will speak, in English, about the topic

“Conflict of Abortion Laws”

 

With the abolition of the constitutional abortion right in the United States come huge differences among the laws of the states, and that leads to questions about which state law applies when a person from an anti-abortion state travels to a pro-choice state to get an abortion. Can anti-abortion states apply their regulatory and tort regimes to their own residents who leave the state to obtain an abortion? Can they empower residents to sue abortion providers in other states to protect what they view as the “unborn child”? Can pro-choice states confer immunity from suit on abortion providers and on people who get abortions from suits filed in anti-abortion states? Does the United States Constitution limit the power of anti-abortion states to apply their laws in an extraterritorial manner, and, if not, how should courts revolve conflicts of law (private international law) questions about abortion?

 

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.

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

 

W. Hau: Third countries and the revision of the Brussels Ibis Regulation: jurisdiction, parallel proceedings, recognition and enforceability (German)

The question of whether the provisions of the Brussels Ibis Regulation on international jurisdiction should be extended to defendants not domiciled in a Member State is to be considered in the upcoming round of revision (as expressly stated in Article 79). This paper discusses this question, but also whether the already existing provisions on the relevance of parallel proceedings in third countries have proven effective and whether the recognition and enforcement of third-country judgments should finally be put on the Brussels agenda.

 

Ch. Thomale: Ipso facto clauses in cross-border cases (German)

Ipso facto clauses or bankruptcy clauses present a controversial problem to both contract law and insolvency law. After a comparative overview of international substantive solutions to the problem, the article addresses associated conflict of laws issues, notably of characterisation. Special attention is given to “anticipatory” ipso facto clauses, cancelling the contract before the opening of insolvency proceedings.

 

A. Engel/R. Müller: Limits to the freedom of choice of law in the context of player agent services (German)

The article deals with a decision of the Rechtbank Limburg (Netherlands) (31 January 2024 – C/03/313729 / HA ZA 23–42, ECLI:NL:RBLIM:2024:524) concerning limits to the freedom of choice of law, in the context of player agent services in international football. The decision hinged upon the application of Section 297 No. 4 of the German Social Security Code III (SGB III). The relevant contract between the parties contained a clause according to which the claimant was exclusively authorised to represent the player during the term of the contract. The German provision would render the clause invalid.

While the parties had chosen Dutch law to be applicable to the contract, the court held that the German provision was applicable in view of Art. 3 para. 3 of the Rome I Regulation, which stipulates the application of mandatory provisions of the state in which the facts of the case are exclusively located if the law of another state is chosen. The article analyses this limit to party autonomy in the context of other limitations which could have been applied: Art. 9 Rome I, regarding overriding mandatory provisions, and Art. 6 Rome I, regarding the protection of consumers. The article pays heed in particular to the requirements of the domestic connections of the case.

 

J. M. Blaschczok: The assessment of arbitration agreements in competition law (German)

In recent years, arbitration agreements have come under the repeated scrutiny of competition law enforcers. By analysing a recent judgment of the CJEU, the Article finds that arbitration agreements are generally still regarded as harmless to competition in EU law. The Article subsequently discusses the exceptional cases in which arbitration agreements have been found to violate competition law. These cases include arbitration agreements which serve to cover-up other infringements of competition law as well as arbitration agreements by which a dominant undertaking imposes an unfair dispute resolution mechanism on a structurally disadvantaged party. The Article concludes that neither EU competition law nor other EU law require the place of arbitration to be located within the single market.

 

D. Fischer: § 40 KGSG as an overriding mandatory provision (German)

Erik Jayme stated incidentally in a conference report in 2018 that sec. 40 (1)–(4) Kulturgutschutzgesetz (KGSG) is an overriding mandatory provision. Haimo Schack makes the same qualification.  This finding can be confirmed for sec. 40 (1) and (2) KGSG. This article concentrates on the nature of these two paragraphs of sec. 40 KGSG as overriding mandatory provisions.

 

B. Kasolowsky/C. Wendler: German Courts confirm Anti-Suit Remedy against Sanctioned Russian Parties breaching Arbitration Agreements pursuant to Section 1032(2) GCPR (English)

Following last year’s landmark decision recognising the availability of declaratory anti-suit relief, the Berlin Higher Regional Court has again applied Section 1032(2) GCPR and broadened its scope of application. In its new decision, the court reiterated that sanctioned Russian parties remain bound to previously concluded arbitration agreements. In addition, the court offered even more hands-on protection for parties trying to serve proceedings in Russia.

 

L. M. Kahl: Security for legal costs before the Unified Patent Court compared to German and Austrian law (on UPC, Central Division Munich of 30 October 2023, UPC_CFI_252/2023) (German)

The article takes a decision of the Unified Patent Court (UPC) as an opportunity to examine the discretionary provision on security for costs, Art. 69 (4) UPCA, in more detail. According to this provision, both enforcement difficulties against third countries and the insolvency risk of the plaintiff can be considered. Among other things, the article deals with the effects of the attribution of UPC acts to the contracting member states pursuant to Art. 23 UPCA on the ordering of a security, how a so-called decision by default is to be interpreted when the claimant fails to provide a security and traces the line of previous case law. This can be seen as part of a general trend towards better protection of defendants.

 

J. Gibbons: Acceptance of English Notary Public Certificate of corporate representation without requirement of being a scrivener notary: recent decision of Regional Higher Court of Cologne (English)

The purpose of this article is to explain the professional standing, qualification, legal competence, regulatory equivalence, authority and evidential value of the acts of notaries public and scrivener notaries in England and Wales. This is considered necessary, as a number of German courts have, in recent years, rejected certificates of corporate representation issued by a notary public in England for use in Germany and elsewhere on the ground that they are not issued by a scrivener notary.

 

Ch. Thomale: Inheritance of limited partnership interests in cross-border cases (German)

The case note discusses a judgment rendered by the Higher Regional Court of Hamm, concerning the inheritance of limited partnership interest in a German partnership while the inheritance succession is governed by Austrian law. The note focuses on the company and partnership law exceptions according to Art. 1 para. 2 lit. h) and i) Regulation (EU) 659/2012 and places these in the overall context of EU conflict of laws.

 

S. L. Gössl: Birth registrations and (no) procedural recognition in Ukrainian surrogacy cases (German)

In two cases, the BGH dealt with the attribution of parenthood to a child born to a surrogate mother in Ukraine. Under Ukrainian law, the German intended parents would have been the legal parents. The BGH refused to recognise this allocation under both procedural law and conflict of laws. From a dogmatic point of view, her statements are well justifiable. The distinction between a ‘decision’ and other administrative acts in the sense of procedural recognition could have been explored further.

 

M. Andrae: Correction of the date of birth under civil status and social law based on foreign court decisions and public documents (German)

A person‘s identity includes their date of birth. In the area of social law, a person’s rights and obligations are partly dependent on their age. The date of birth is part of the social insurance number. If the person in question was born abroad, it is often the case that only the year of birth is given and, if necessary, proven. This has corresponding consequences for civil status certification and social law. The registration under civil status law is then limited to stating the year of birth. In the area of social law, July 1st of the year in question is fictitiously assumed. The insurance number contains blank spaces in this regard. Later, a specific date of birth is claimed and a foreign decision or documents are presented as proof. In other cases, a date of birth with a different year of birth is claimed in this way. The article discusses under which conditions the original civil status entry must be corrected and a different date of birth must be assumed for social law purposes.

 

N. C. Elsner: Review of OGH, order of 2.11.2023 – 5 Nc 22/23i: Enforcement of a British decision in Austria (German)

 

L. M. Kahl: Review of OGH, order of 31.1.2024 – 3 Ob 6/24i: Judicial conflict: Inadmissible non-application of the Hague Convention on Civil Procedure by Russian courts due to a Russian presidential decree (German)

 

A. Anthimos: UK Third Party Costs Orders Enforceable in Greece (German)

A UK third-party costs order (TPCO) is a totally unknown procedural concept in Greece. In the course of exequatur proceedings, the Piraeus first instance court and the Piraeus court of appeal were called to examine the issue for the first time in Greece, both declaring that no obstacles, especially those intertwined with procedural public policy, are barricading the path towards the declaration of enforcement of a TPCO issued by a judge in the UK.

Chinese Journal of Transnational Law will hold an online workshop on Cross-border Protection of Cultural Property on 28 Feb 2025. All are welcome to attend. A Zoom link will be provided closer to the event.

Tentative Programme

Keynote Speakers

•Prof. Christa Roodt, University of Glasgow

•Prof. Zhengxin Huo, China University of Political Science and Law

 

Speakers and Presentations

•Restitution of Cultural Objects Unethically Acquired During the Colonial Era: The Intersection of Public and Private International Law

Andreas Giorgallis (PGR), University of Glasgow

•The Contribution of Postcolonial Theory to the Cross-Border Protection of Indigenous Cultural Heritage

Eleni Moustaira, National and Kapodistrian University of Athens

•From Freedom to Restitution (With Special Focus on Central and Eastern Europe and the Lusophone Community)

Miroslaw Michal Sadowski, University of Strathclyde

•Restitution of Cultural Property in China: In Search of a New Paradigm for Cross-Border Cultural Property Claims

Ruida Chen, China University of Political Science and Law

•Forfeiture and Freezing Orders in Trans-border Cultural Property Litigation

Maggie Fleming Cacot

•Restitution of Stolen Foreign Cultural Property and Hurdles in Choice of Law

Yehya Badr, Yamamah University

•The Issue of Applicable Law in Disputes Arising from Violations of Private Law Regulations on Cultural Properties: The Case of Türkiye

Ekin Hacibekiroglu, Kadir Has University

•Evolving Models of Restitution

Evelien Campfens, University of Amsterdam

•Moving People, Shifting State Borders and the Return of Cultural Property: The Case of Poland

Andrzej Jakubowski, Instytut Nauk Prawnych, Polska Akademia Nauk,

We invite those interested in this important discussion to mark their calendars. More information will be provided soon.

The editors of ConflictofLaws.net would like to wish you a year filled with happiness, health, and success, academically and otherwise.

2024 has been another great year for the blog, with close to one new post per day (bringing us to more than 5,500 posts in total) and record numbers of readers and subscribers. Our content, just like our readership, reflects the global scope of the blog, with popular posts including Saloni Khanderia & Shubh Jaiswal’s article on the application of the lex fori ‘by default’ in Indian courts, Mayela Celis’ note on Smith & Wesson v Mexico, Orji A Uka & Damilola Alabi’s contribution on service under Nigerian law, Yasmín Aguada & Laura Martina Jeifetz two-part piece on international judicial cooperation and technology in private international law, and Tobias Lutzi’s comment on the CJEU’s decision in Real Madrid.

In addition to our e-mail newsletter (which continues to be surprisingly popular), you can subscribe to our blog on LinkedIn, Twitter/X, and – from this year on – Bluesky.

Today (31-December 2024), FAMIMOVE 2.0. is coming to an end after having accomplished all of its goals and created a solid network of experts. The project’s full name is Families on the Move: The Coordination between international family law and migration law and is an international project co-funded by the European Commission under the JUST-2022-JCOO program. For more information, click here.

The project aimed to improve the protection of migrant children and families by bringing actual practice more in line with EU goals and values, such as the protection of fundamental rights and best interests of the child. It sought to provide more effectiveness to EU objectives through a better coordination of instruments in overlapping fields, such as Regulations in private international law in family law matters and migration law rules.

The project’s duration was 24 months, starting on 1 January 2023. Total Project Costs: €863,584.70, of which an EU contribution of €777,226.23. The consortium comprised the following universities: Maastricht University (the Netherlands – coordinator), University of Münster (Germany), University of Milano-Bicocca (Italy), University of Versailles Saint-Quentin-en-Yvelines (France), Lund University (Sweden), Eotvos Lorand University (Hungary) and Ghent University (Belgium).

The achievements of the project are the following (some of which are publicly available):

• Seven awareness raising seminars were held in each of the partners’ countries (in their official languages). These seminars brought together migration and child protection authorities, as well as private international law experts;
• Three transnational pilot projects / roundtables relating to key issues of international child protection in a migration context: cross border recognition of guardianship, kafala and child marriage. These roundtables were held in Milan, Paris and Münster and gathered experts from at least three countries each. See also the leaflets below for more information:
• The final conference took place in Brussels: some of the presentations are publicly available here. See also the blog post The role of judge: from compassion to rights
• A book: Children in Migration and International Family Law: The Child’s Best Interests Principle at the Interface of Migration Law and Family Law – open access available here. We have previously announced it on this blog here. The book has twenty chapters that have been divided into the following: Introduction, General Topics, Guardianship for Unaccompanied Minor Refugees, Early Marriage, Kafala and Additional Topics;
• Leaflets on the project and guidelines – Leaflets available in 6 languages can be downloaded here
• A FAMIMOVE website was created: https://famimove.unimib.it/. This website features a blog, which has approximately 40 entries, ranging from activities conducted under the project to the latest news on migration/refugee law as well as private international law. I would like to highlight the following entries:
  • Family reunification for beneficiaries of international protection: the EUAA overview
  • The new Early Marriages Act in Germany
  • The Court of Justice on the recognition of refugee status
  • The OJ publication of the new EU law on asylum and migration

Undoubtedly, FAMIMOVE 2.0 has contributed to a better alignment of migration law and private international law. This project’s legacy is well documented in the publications referred to above. It is to be hoped (at least in my view) that similar initiatives will emerge in the future, especially now that the application of the new Pact on Migration and Asylum is looming in the distance (scheduled for 2026), and which will certainly present new challenges and opportunities.

FAMIMOVE 2.0 is a continuation of an earlier requested grant to the European Commission. As part of FAMIMOVE 1.0, two documents were issued:

Children on the move: A private International Law Perspective

Private International Law in a Context of Increasing International Mobility

Views and opinions expressed in this project are however those of the authors only and do not necessarily reflect those of the European Union or the European Commission. Neither the European Union nor the granting authority can be held responsible for them.

I.  Introduction

Foreign family law decisions can be recognized, and where necessary, enforced in Japan if they meet the prescribed requirements for this purpose. Prior to 2018, it was an establish practice to apply the same recognition and enforcement regime used for civil and commercial matters to foreign family law decisions. However, discussions existed in literature regarding whether constitutive family law judgments and decrees should be recognized following the choice of law approach, or whether the specific characteristics of foreign family law decisions might justify exceptions, such as the non-application of certain recognition requirements (see Mario Takeshita, “The Recognition of Foreign Judgments by Japanese Courts” 39 Japanese Annual of International Law (1996) 59-61).

Since 2018, the applicable regime has been significantly clarified, effectively putting an end to much of the prior academic debate on the subject. This development stems from the introduction of new provisions on the recognition and enforcement of foreign family law decisions in the Act No. 20 of 2018, which amends the procedural acts applicable to family law cases as it will be outline below (English translation can be found in 62 Japanese Yearbook of International Law (2019) 486. See also Prof. Yasuhiro Okuda’s translation in 50 ZJapanR/J. Japan.L (2020) 235).

This Act, which came into force on 1 April 2019, also introduces new detailed rules on international jurisdictional in family law disputes (for details, see Yuko Nishitani, “New International Civil Procedure Law of Japan in Status and Family Matters” 62 Japanese Yearbook of International Law (2019) 141; Yasuhiro Okuda, New Rules on International Jurisdiction of Japanese Courts in Family Matters, 50 ZJapanR/J. Japan.L (2020) 217).

Nonetheless, it has to be acknowledged that, in the context of the recognition and enforcement of foreign family law decisions, several issues remain open. In addition, since the entry into force of the new law, there have been relatively few reported cases that provide clear guidance on the application of the legal framework. In this respect, the Chiba District Court’s judgment of 19 July 2024 presented here, concerning the enforcement of a Singaporean divorce judgment component ordering the payment of child living expenses, offers valuable insights.

 

II. Facts

The case concerns X’s (ex-wife, Plaintiff) request for an enforcement judgment under Article 24 of the Civil Enforcement Act (CEA) to enforce a portion of a Singaporean judgment rendered in November 2010, requiring the Y (ex-husband, the Defendant) to pay, inter alia, living expenses for two of their three children until they reached the age of majority, along with accrued interest. X initiated the enforcement action in 2019. By the time of the action, one child had already attained the age of majority under Singaporean law (21 years), while the other reached the age of majority during the pendency of the case.

The parties in the case married in Japan in the early 1990s, where they lived and had two sons. In 1997, the Y relocated to Singapore, followed by the rest of the family in 1998. While living in Singapore, they had their third child, a daughter. In March 2007, X initiated divorce proceedings before Singaporean courts, with Y participating by appointing legal counsel and responding to the proceedings.

In accordance with Singapore’s two-step divorce process, the court issued a provisional judgment in October 2008 dissolving the marriage. The court then proceeded to address ancillary matters, including custody, guardianship, visitation, living expenses, and the division of joint assets. During these proceedings, Y permanently left Singapore and returned to Japan in June 2010. Following his departure, Y ceased to participate in the proceedings, and his legal counsel was subsequently granted permission to withdraw from representing him.

In November 2010, the Singaporean court issued a final judgment granting X sole custody and guardianship of the children, ordering the payment of living expenses, and dividing the couple’s joint assets. Prior to the hearing, a notice was sent to Y’s last known address, which he had provided during the proceedings. However, the judgment, as well as the summons for appeal, was not served on Y, leading to the expiration of the appeal period without the judgment being challenged.

In 2019, X sought enforcement of the Singaporean judgment as indicated above. Before the Court, the parties disputed most of the recognition requirements (article 118 of the Code of Civil Procedure [CCP]). Y also challenged enforcement by raising a defense based on the existence of a ground for an objection against civil execution, notably the fact that the limitation period for the claims related to the payment of living expenses under the foreign judgment had expired. Finally, Y argued that X’s request to enforce the foreign judgment constituted an abuse of right or a violation of the principle of good faith.

 

III. Ruling

In its judgment rendered on 19 July 2024, the Chiba District Court largely dismissed Y’s arguments and granted X’s application, with two exceptions: the court rejected X’s claim for living expenses claim for the children beyond the age of 21. It did not also allow the enforcement of the portion of accrued interest on the living expenses, which the Court found to be extinguished under Singaporean statute of limitations.

Before addressing each of the issues raised, the court first outlined the general applicable principles, citing relevant Supreme Court cases where available. Although these parts are crucial, they will be omitted from the summary for brevity.

 

1. Whether the foreign judgment can be deemed final [Article 118, first sentence of the CCP]

According to the court, under Singaporean law, a judgment becomes effective on the date it is issued, and an appeal must be filed within 28 days from the judgment date, regardless of whether the judgment is served. The court observed that since no summons for an appeal was served within this period, the foreign judgment should be deemed final.

 

2. Whether the foreign court had jurisdiction [Article 118(1) of the CCP]

The court first noted that the foreign lawsuit involved X seeking divorce and addressing ancillary matters with Y. The court, then categorized the case as “personal status” case, and assessed the indirect jurisdiction of the foreign court by reference to the Japanese rules of direct jurisdiction in personal status cases as set out in the Personal Status Litigation Act (PSLA), article 3-2 et seq. For the court, article 3-2(i) of the PSLA allows that an action concerning personal status may be filed with the courts in Japan in when the defendant has domicile in Japan, and that jurisdiction is determined at the time the lawsuit is filed (article 3-12 of the CCP). The court then found that, at the time the foreign proceeding was initiated, both parties were domiciled in Singapore. Therefore, based on Japan’s rules on international jurisdiction in personal status cases, the court concluded that the Singaporean court had jurisdiction over the case. Furthermore, the court considered that there were no circumstances suggesting that it would be unreasonable, on the basis of the principle of jori (naturalis ratio), to recognize the foreign judgment issued by the foreign court.

 

3. Whether the procedure leading to the foreign judgment violates public policy (the lack of service of the foreign judgment on Y) [Article 118(3) of the CCP]

The court admitted that the foreign judgment was not served on Y, and that he was not aware of it within the appeal period. However, the court determined that, based on Y’s conduct during the proceedings, he had voluntarily waived his right to be informed of the judgment’s issuance. According to the court, Y knew a judgment on ancillary matters would be delivered and had the opportunity to receive it through proper procedures. The court also found that, while Y was not aware of the judgment within the appeal period, he had been given procedural safeguards and ample opportunity to become informed. Therefore, the court concluded that the lack of service of the foreign judgment did not violate the fundamental principles of Japanese procedural public policy.

 

4. Whether the content of the foreign judgment violates [substantive] public policy (the amount of living expenses for the children) [Article 118(3) of the CCP]

The court held that the foreign judgment’s calculation of the children’s living expenses was based on a reasonable evaluation of the parties’ financial capacity, rejecting Y’s argument that the calculation was unrelated to his financial situation or had punitive elements. The court further stated that the amount stipulated in the foreign judgment was not excessive or inconsistent with Japanese public policy, given the actual living expenses of the children. Moreover, the court emphasized that Y’s challenge, based on his decreased or absent income was not accepted by the foreign court, would constitute a prohibited review of the merits under Article 24(4) of the CEA.

 

5. Whether reciprocity is established (Art. 1118(4) of the CCP)

For the court, the requirements for recognizing a foreign judgment in Singapore are based on English common law, which broadly aligns with the conditions outlined in Article 118 of the CCP. Thus, the court determined that reciprocity exists between Singapore and Japan.

 

6. The applicability of the statute of limitations on the claim for living expenses under the foreign judgment

The court confirmed that the party opposing enforcement of a foreign judgment could raise in the exequatur proceedings defenses based on the extinction or modification of claims that occurred after the judgment was rendered. The court then determined that Singaporean law was applicable to the defense of extinctive prescription. Thereafter, the court compared the Singaporean limitation periods (12 years for claims based on the judgment and 6 years for interest) with Japan’s shorter periods (5 years or 10 years for claims confirmed by a final judgment). The court found that applying Singapore’s longer limitation periods did not clearly violate Japan’s public policy, upholding the validity of living expense claims filed within the 12-year period. However, it ruled that interest claims accrued before October 2013 had been extinguished due to the expiration of the 6-year limitation period.

 

7. Abuse of Rights or Violation of the Principle of Good Faith

The court addressed Y’s argument that X’s attempt to enforce the foreign judgment constitutes an abuse of rights or a violation of good faith. The court rejected this claim, stating that enforcing a judgment in accordance with the law does not breach good faith or constitute an abuse of rights. In addition, the court found no evidence to support Y’s argument.

 

IV. Comments

1. Significance of the Case

The Chiba District Court judgment of 19 July 2024 is significant for its treatment of various issues concerning the recognition and enforcement of foreign family law decisions under the new legal framework. The court addressed key issues such as indirect jurisdiction, procedural and substantive public policy, reciprocity, and the ability to raise defenses during the exequatur process, including objections based on the expiration of limitation periods and the consistency of foreign law with Japanese public policy. Most of these issues are subject of ongoing academic discussion in Japan (for an overview, see Manabu Iwamoto, “Recognition and Enforcement of Foreign Decisions on Personal Status Litigation and Family Relations Cases” 62 Japanese Yearbook of International Law (2019) 226).

 

2. Personal Status Cases v. Domestic Relations Cases

Japan’s legal framework for recognizing foreign judgments in general is governed primarily by domestic law. As far as foreign family law decisions are concerned, it is generally admitted that their recognition and enforcement depend on whether the family law relationship is classified as a “personal status case” or a “domestic relations cases.”

“Personal status cases” generally encompass “contentious” family law disputes concerning marital or parental relationships, such as divorce, which is a quintessential example of a “personal status case”. Family law matters in this category, as determined by article 2 of the Personal Status Litigation Act (PSLA), are governed by its provisions. Given the constitutive nature, foreign judgments on personal status cases typically do not require enforcement.

On the other hand, “domestic relations cases” groups family matters that are generally “non-contentious”, although certain cases, such as claims for custody or maintenance, can be highly adversarial. These matters are governed Domestic Relations Case Procedure Act (DRCPA), which includes appended tables listing cases classified as domestic relations cases. Unlike personal status cases, some types of domestic relations cases may involve elements that require enforcement, such as the payment of maintenance, return of a child etc.).

From the perspective of Japanese law, maintenance cases typically fall under this category (see Manabu Iwamoto, “International Recovery of Maintenance in Japan” 65 Japanese Yearbook of International Law (2022) 254).

 

3. Applicable legal regime

In this regard, the 2018 reform brought some significant changes. Indeed, a new provision was introduced in the DRCPA (new article 79-2) and article 24 of the CEA on the enforcement of foreign judgments was modified to accommodate these changes. However, no similar provision was introduced in the PSLA, since it was considered that contentious judgments in family matter are not different from contentious judgments in civil and commercial matters, therefore, they should be subject to the same legal regime.

Accordingly, depending on the type of case involved as outline above, foreign family law decisions can be recognized either (i) by direct application of article 118 of the CCP, when the foreign judgment in question pertains to “personal status cases”, or (ii) by mutatis mutandis application of article 118 of the CCP, when the foreign decision is rendered in a matter relating to “domestic relations cases” pursuant to article 79-2 of the DRCPA. The main difference between these two approaches is that, unlike foreign personal status judgments, the requirements of article 118 of the CCP would fully apply mutatis mutandis to foreign domestic relations decisions, provided that doing so “is not contrary to the nature” of the decision in question (article 79-2 of the DRCPA). In other words, for foreign domestic relations decisions, the requirements of article 118 of the CCP may apply partially, depending on the nature of the case.

In this context, since maintenance judgments is typically classified under “domestic relations cases”, their recognition is, as a matter of principle, governed by article 79-2 of the DRCPA, along with the mutatis mutandis application of the requirements of article 118 of the CCP. Whether recognition and enforcement of foreign maintenance judgments is subject to full or partial application of the recognition requirements under article 118 of the CCP is subject to discussion in literature. However, the general tendency among courts, as confirmed by the case presented here, is to apply all the recognition requirements.

 

4. Conjunction between personal status cases and domestic relations cases

A key challenge arises, however, when a foreign family law judgment combines elements of personal status (e.g., divorce) with issues categorized under domestic relations (e.g., child custody or maintenance). In this regard, while the Chiba District Court treated the foreign judgment as a single “personal status case” and applied article 118 of the CCP, without reference to Article 79-2 of the DRCPA, prevailing literature and case law suggest that each aspect should be treated separately.

Following this approach, the court should have proceeded as follows: first, it should have categorized the court order to pay child living expenses as pertaining to “domestic relations cases”. Under this categorization, the court would then have needed to assess, pursuant to article 79-2 of the DRCPA, whether all the recognition requirements of article 118 of the CCP should apply mutatis mutandis, or only partially, depending on the nature of the case. Finally, the court should have reviewed the indirect jurisdiction of the foreign court by reference to the jurisdictional rules set out in the DRCPA (specifically, article 3-10, which governs cases relating to maintenance obligation), rather than those set out in the PSLA.

That said, it has to be acknowledged, that the court’s ultimate conclusion would likely not have changed since the jurisdiction of the foreign court would also have been justified by the jurisdictional rules included in the PSLA, which allow actions for ancillary measures, including child custody and support, to be decided by the court exercising divorce jurisdiction (article 3-4 of the PSLA).

The last issue of RabelsZ 2024 has just been released. It contains the following contributions (which are all available Open Access: CC BY 4.0):

 

Holger Fleischer & Simon Horn, Unternehmensskandale und skandalgetriebene Regulierung: Die Stavisky-Affäre als Prüfstein (Corporate Scandals and Scandal-Driven Regulation: The Stavisky Affair as Touchstone), pp. 648–693, https://doi.org/10.1628/rabelsz-2024-0062

This article is an opening contribution to a new research program on corporate scandals and their legal treatment around the world. In addition to addressing civil and criminal sanctions, the main focus lies on the widespread but under-researched phenomenon of scandal-driven reform legislation. Selected case studies from the past and the present will help to create a better picture of the connections between business scandals and legal regulation. A first touchstone for such systematic comparative scandal-based research is found in early 1930s France with the Stavisky affair – a case that not only kept the business and financial world in suspense, but one that also shook the political foundations of the Third Republic.

 

Chukwuma Samuel Adesina Okoli & Richard Frimpong Oppong, Enhancing the Draft African Principles on the Law Applicable to International Commercial Contracts – Innovations for the African Context, pp. 694–733, https://doi.org/10.1628/rabelsz-2024-0050

This article examines the draft African Principles on the Law Applicable to International Commercial Contracts, evaluating current and proposed choice of law rules in numerous African countries and incorporating global comparative perspectives. It argues that the African Principles should not only largely echo regional/supranational and international instruments like the Rome I Regulation and the Hague Principles on the Law Applicable to Commercial Contracts but should innovate to address the specific needs of the African context. The article suggests reforms in several areas: the scope of the African Principles, protection of weaker parties such as consumers and employees, government contracts, non-state law, and in provisions for the law applicable in the absence of choice.

 

Béligh Elbalti, The Applicable Law in Succession Matters in the MENA Arab Jurisdictions – Special Focus on Interfaith Successions and Difference of Religion as an Impediment to Inheritance, pp. 734–759, https://doi.org/10.1628/rabelsz-2024-0057

This article examines the question of the law applicable in cross-border successions in the MENA Arab region, with a particular focus on the issue of interfaith succession. It shows that the private international law treatment of succession matters depends largely on derogative factors, in particular the involvement of Islam as the religion of one of the parties. In cases where all the parties are foreign non-Muslims, the conflict of laws approach is usually observed, and the foreign law is applied. However, if one of the parties is a Muslim, nationality as the connecting factor is effectively supplanted by the religion of the parties, and the lex fori is applied. Unlike the usual perspective, which typically examines this approach through the lens of public policy, this article argues that the practice, of substituting the lex fori for the ordinarily applicable law in disputes involving Muslims, is based on an »unwritten principle of private international law« that effectively designates the Islamic religion as a de facto connecting factor under the cover of public policy.

 

Martin Lutschounig, Eingeschränkte Anwendung des lex fori-Prinzips bei internationalen Verkehrsunfällen (Limited Application of the lex fori Principle for Cross-border Traffic Accidents), pp. 760–786, https://doi.org/10.1628/rabelsz-2024-0061

According to the principle of forum regit processum, a court deciding a dispute applies its own national procedural law even in cases which are substantively governed by foreign law. It is therefore crucial how the individual legal question is categorized, namely whether it is classified as substantive or procedural. According to the prevailing opinion, this decision is made applying the lex fori. The situation is different, however, under the Rome II Regulation, as also the scope of the applicable law (lex causae) is subject to an autonomous interpretation. The article argues that the question of whether a foreign rule is to be classified as procedural or substantive is, therefore, not a question of national but of autonomous European law. A classification according to the lex fori would, by contrast, bear the danger of leading to different scopes of application of the lex causae depending on the place of jurisdiction. These problems are illustrated with reference to traffic accident cases in which a litigant seeks recovery of a supplementary claim, such as the pretrial costs of an expert opinion, an out-of-court settlement, or lump-sum costs.

 

As always, this issue also contains several reviews of literature in the fields of private international law, international civil procedure and comparative law (pp. 787–828). The issue closes with an index covering all contributions of the year 2024 (pp. 829–854).

Edited by: 

Dr Chukwuma Okoli, University of Birmingham, United Kingdom

Dr Eghosa O. Ekhator, University of Derby, United Kingdom

Professor Veronica Ruiz Abou-Nigm, University of Edinburgh, United Kingdom

Professor Ralf Michaels, Max Planck Institute for Comparative and International Private Law, Germany

Hans van Loon, Netherlands 

OVERVIEW 

The Journal of Sustainable Development Law and Policy invites scholarly articles for publication in a special issue focusing on the theme “Private International Law and Sustainable Development in Africa.” This is an area with limited scholarship in Africa, as most research has traditionally emphasized substantive laws, often neglecting the critical role of private international law in sustainable development. Interested researchers should consider themes such as the ones explored in Michaels/Ruiz Abou-Nigm/Van Loon (eds.) (2021): The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law. Proposals should emphasise private international law and sustainable development issues that are of particular relevance to the African context.

We encourage researchers to explore the intersection of private international law and sustainable development in relation to issues such as environmental protection, corporate social responsibility, and the protection of vulnerable groups (for example, employees, consumers, migrants, and indigenous peoples). Interesting topics in private international law could include how multinational companies are held accountable to host communities in Africa regarding cross-border environmental issues including climate change, as well as social and economic sustainability. Researchers could engage with the regulatory framework for multinational companies in cross-border transactions affecting corporate social responsibility in Africa, and the enhancement of human rights standards and social justice in cross-border employment matters in Africa .They might also wish to reflect on the implications for Africa of the new EU Directive 2024/1760 on corporate sustainability due diligence, and of similar due diligence legislative initiatives deployed at the national level in different countries. Other relevant topics include the African Continental Free Trade Agreement and its relationship with private international law and sustainable development, as well as the harmonization of private international law in Africa and its relation with sustainability goals, regional economic integration, abuses of party autonomy in international commercial contracts, and the appeal of international commercial adjudication in Africa. These are all themes that can be explored from a sustainability perspective.

We are particularly interested in innovative academic approaches that address these themes within the African context. We welcome proposals from all approaches, including critical, doctrinal, analytical, conceptual, reflexive, interdisciplinary, post-critical and speculative traditions of law, that enable a serious scholarly reflection on private international law and sustainable development. Contributions will start filling a significant gap in the literature and promote a deeper understanding the relationships, the impact and the potential of private international law in sustainable development in Africa.

SUBMISSION GUIDELINES 

Applicants are invited to submit a research proposal of up to 500 words, together with a short CV in the same document. Submissions should be sent to c.okoli@bham.ac.uk, and copy E.Ekhator@derby.ac.uk, andinfo@ogeesinstitute.edu.ng by 10 January, 2025 with the email subject clearly marked “Submission Proposal – Special Issue JSDP – PIL and Sustainable Development in Africa”.

Proposals will be reviewed by the editors and selected participants will be informed by the end of January 2025.

Full draft of selected papers of up to 8,000 words inclusive of footnotes should be submitted by 30 June 2025 following the ‘submission guidelines’ section of The Journal of Sustainable Development and Policy: https://www.ogeesinstitute.edu.ng/submissions.

The editors are seeking opportunities for funding to support a conference in late 2025 to discuss draft papers in advance of publication of the special issue in early 2026.

ABOUT THE PROJECT 

Read more about the project The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law here 

Since its inception in 2001, the annual survey on Chinese judicial practice in private international law, published by the Chinese Journal of International Law,  has served as a valuable source of information on Chinese practice in private international law, particularly during periods when case law was not readily available (notably prior to 2013). The first annual survery, titled ‘Private International Law in the Chinese Judicial Practice in 2001’, appeared in Vol. 2(1), 2003, and was prepared by Professors Huang Jin and Du Huangfang. However, in its early years, the survey was not published on a regular basis. Indeed, in addition to the 2001 survey, only three others were published between 2005 and 2014: the survey for the year 2002 (published in 2005), for 2003 (published in 2008), and for 2006 (published in 2009).

 

Since 2015, the regular publication of the survey has been ensured by Professor He Qisheng of Peking University Law School under the title “Chronology of Practice: Chinese Practice in Private International Law”. (For previous announcements on this blog, see the posts for 2018, 2019, 2020, and 2021. Annual surveys for the years 2013 to 2018 are also available on Professor He’s SSRN page.) Professor He’s dedication to maintaining and expanding the annual survey has been instrumental in ensuring it remains an indispensable resource for the field, while making information on private international law in China readily accessible to non-Sinophone researchers.

With that said, the  Chronology of Practice: Chinese Practice in Private International Law in 2023 is now available, marking the 11th consecutive annual survey since 2015. This year’s edition is particularly noteworthy as it includes English translations of recently enacted legal provisions, include among others:

• The new provisions on international jurisdiction (Chapter 24, “Jurisdiction” of the Civil Procedure Law (2023 Amendment), Arts. 276–282),
• Provisions on service of process and taking of evidence (Chapter 25, “Service of Process, Taking of Evidence, and Periods” of the Civil Procedure Law (2023 Amendment), Arts. 283–287),
• Provisions on foreign judgments (Arts. 293–296 of the Civil Procedure Law (2023 Amendment)), and
• The Supreme People’s Court Interpretation on Certain Issues Concerning the Application of the Law of the PRC on the Application of Law to Foreign-Related Civil Relations (II) (Arts. 1–13).

Like its predecessors, this year’s survey provides important updates and further enhances accessibility to key legal developments for researchers and practitioners of private international law.

 

The abstract of 2023 survey reads as follows:

The survey of the Chinese practices in private international law in 2023 highlights the following aspects: First, four new laws and two administrative regulations, three judicial interpretations by the Supreme People’s Court (“SPC”) have been formulated, and six groups of 44 typical cases have been selected by the SPC. Notably, China acceded to the Hague Apostille Convention this year. Additionally, Chinese courts concluded 24,000 foreign-related civil and commercial cases, 16,000 maritime cases, and 16,000 commercial arbitration judicial review cases. Second, Part IV of the Civil Procedure Law was amended to include new provisions addressing jurisdiction, service of process abroad, taking of evidence and periods, as well as recognition and enforcement of foreign judgments and arbitral awards. These new rules and relevant cases are presented throughout the Survey. Third, the application of international treaties and practices has emerged as a significant topic, with new rules in the Foreign Relations Law and the SPC Interpretation of International Treaties and International Practices. Additionally, the SPC selected 14 representative cases in this regard. Fourth, concerning the ascertainment of foreign laws, the SPC issued two judicial interpretations and selected three relevant cases. Fifth, regarding the judicial review of arbitration cases, the SPC has selected several Typical Cases of Judicial Review of Arbitration, which serve as significant guiding examples.

 

The table of content of the paper is as follows:

I. Introduction

II. Overview

• II.A. Report on the Work of the SPC in 2023
• II.B. New laws and the SPC’s judicial interpretations
• II.C. Typical cases

III. Jurisdiction

• III.A. Rules in the Civil Procedure Law 2023
• III.B. Choice of court agreement
  • III.B.i. Standard terms and conditions
  • III.B.ii. Asymmetric choice of court agreement
• III.C. Forum non convenience

I.V. Choice of law

• IV.A. Characterization
• IV.B. Ascertainment of foreign law
  • IV.B.i. SPC Private International Law Interpretation II
  • IV.B.ii. SPC Decision on Amending the CICC Provisions
  • IV.B.iii. Cases on ascertainment of foreign laws
• ?IV.C. Extraterritoriality of Chinese laws

V. International conventions and international practices

• V.A. Foreign Relations Law
• V.B. SPC Interpretation of International Treaties and International Practices
• V.C. Cases on the application of international conventions
• V.D. Cases on the application of international practices

VI. Service of process, taking of evidence and periods

• VI.A. Rules in the Civil Procedure Law 2023
• VI.B. Service of process abroad
• VI.C. Evidence
• VI.D. Apostille

VII. Foreign Judgments

• VII.A. Rules in the Civil Procedure Law 2023
• VII.B. Cases about recognition and enforcement of foreign judgments

VIII. International arbitration and foreign arbitral awards

• VIII.A. Rules in the Civil Procedure Law 2023
• VIII.B. Judicial review of arbitration

The University of Edinburgh is looking to fill a new position in Global Law – which is understood to include private international law. More here.