Conflictoflaws

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

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

B. Heiderhoff: Care Proceedings under Brussels IIter – Mantras, Compromises and Hopes

Against the background of the considerable extension of the text of the regulation, the author asks whether this has also led to significant improvements. Concerning jurisdiction, the “best interests of the child” formula is used a lot, while the actual changes are rather limited and the necessary compromises have led to some questions of doubt. This also applies to the extended possibility of choice of court agreements, for which it is still unclear whether exclusive prorogation is possible beyond the cases named in Article 10 section 4 of the Brussels II ter Regulation. Concerning recognition and enforcement, the changes are more significant. The author shows that although it is good that more room has been created for the protection of the best interests of the child in the specific case, the changes bear the risk of prolonging the court proceedings. Only if the rules are interpreted with a sense of proportion the desired improvements can be achieved. All in all, there are many issues where one must hope for reasonable clarifications by the ECJ

 

G. Ricciardi: The practical operation of the 2007 Hague Protocol on the law applicable to maintenance obligations

Almost two years late due to the COVID-19 pandemic, in May 2022 over 200 delegates representing Members of the Hague Conference on Private International Law, Contracting Parties of the Hague Conventions as well as Observers met for the First Meeting of the Special Commission to review the practical operation of the 2007 Child Support Convention and the 2007 Hague Protocol on Applicable Law. The author focuses on this latter instrument and analyses the difficulties encountered by the Member States in the practical operation of the Hague Protocol, more than ten years after it entered into force at the European Union level. Particular attention is given to the Conclusions and Recommendations of the Applicable Law Working Group, unanimously adopted by the Special Commission which, in light of the challenges encountered in the implementation of the Hague Protocol, provide guidance on the practical operation of this instrument.

 

R. Freitag: More Freedom of Choice in Private International Law on the Name of a Person!

Remarks on the Draft Bill of the German Ministry of Justice on a Reform of German Legislation on the Name of a PersonThe German Ministry of Justice recently published a proposal for a profound reform of German substantive law on the name of a person, which is accompanied by an annex in the form of a separate draft bill aiming at modernizing the relevant conflict of law-rules. An adoption of this bill would bring about a fundamental and overdue liberalization of German law: Current legislation subjects the name to the law of its (most relevant) nationality and only allows for a choice of law by persons with multiple nationalities (they max designate the law of another of their nationalities). In contrast, the proposed rule will order the application of the law of the habitual residence and the law of the nationality will only be relevant if the person so chooses. The following remarks shall give an overview over the proposed rules and will provide an analysis of their positive aspects as well as of some shortcomings.

 

D. Coester-Waltjen: Non-Recognition of “Child Marriages“ Concluded Abroad and Constitutional Standards

The Federal Supreme Court raised the question on the constitutionality of one provision of the new law concerning “child marriages” enacted by the German legislator in 2017. The respective rule invalidated marriages contracted validly according to the national law of the intended spouses if one of them was younger than 16 years of age (Art. 13 ss 3 no 1 EGBGB). The Federal Supreme Court requested a ruling of the Federal Constitutional Court on this issue in November 2018. It took the Federal Constitutional Court nearly five years to answer this question.

The court defines the structural elements principally necessary to attain the constitutional protection of Art. 6 ss 1 Basic Law. The court focuses on the free and independent will of the intended spouses as an indispensable structural element. The court doubts whether, in general, young persons below the age of 16 can form such a free and independent will regarding the formation of marriage. However, as there might be exceptionally mature persons, the protective shield of Art. 6 ss 1 Basic Law is affected (paragraphs 122 ff.) and their “marriage” falls under the protective umbrella of the constitution. At the same time, the requirement of a free and meaning ful will to form a marriage complies with the structural elements of the constitutionally protected marriage. This opens the door for the court to examine whether the restriction on formation of marriage is legitimate and proportionate.

After elaborating on the legitimacy of the goal (especially prevention and proscription of child marriages worldwide) the court finds that the restriction on the right to marry is appropriate and necessary, because comparable effective other means are missing. However, as the German law does not provide for any consequence from the relationship formed lawfully under the respective law and being still a subsisting marital community, the rule is not proportionate. In addition, the court demurs that the law does not provide for transformation into a valid marriage after the time the minor attains majority and wants to stay in this relationship. In so far, Art. 13 ss 3 no 1 affects unconstitutionally Art. 6 ss 1 Basic Law. The rule therefore has to be reformed with regard to those appeals but will remain in force until the legislator remedies those defects, but not later than June 30, 2024.

Beside the constitutional issues, the reasoning of the court raises many questions on aspects of private international law. The following article focuses on the impact of this decision.

 

O.L. Knöfel: Discover Something New: Obtaining Evidence in Germany for Use in US Discovery Proceedings

The article reviews a decision of the Bavarian Higher Regional Court (101 VA 130/20), dealing with the question whether a letter rogatory for the purpose of obtaining evidence for pre-trial discovery proceedings in the United States District Court for the District of Delaware can be executed in Germany. The Court answered this question in the affirmative. The author analyses the background of the decision and discusses its consequences for the long-standing conflict of procedural laws ( Justizkonflikt) between the United States and Germany. The article sheds some light on the newly fashioned sec. 14 of the German Law on the Hague Evidence Convention of 2022 (HBÜ Ausführungsgesetz), which requires a person to produce particular documents specified in the letter of request, which are in his or her possession, provided that such a request is compatible with the fundamental principles of German law and that the General Data Protection Regulation of 2018 (GDPR) is observed.

 

W. Wurmnest/C. Waterkotte: Provisional injunctions under unfair competition law

The Higher Regional Court of Hamburg addressed the delimitation between Art. 7(1) and (2) of the Brussels Ibis Regulation after Wikingerhof v. Book ing.com and held that a dispute based on unfair competition law relating to the termination of an account for an online publishing platform is a contractual dispute under Art. 7(1) of the Brussels Ibis Regulation. More importantly, the court considered the requirement of a “real connecting link” in the context of Art. 35 of the Brussels Ibis Regulation. The court ruled that in unfair competition law disputes of contractual nature the establishment of such a link must be based on the content of the measure sought, not merely its effects. The judgment shows that for decisions on provisional injunctions the contours of the “real connecting link” have still not been conclusively clarified.

 

I. Bach/M. Nißle: The role of the last joint habitual residence on post-marital maintenance obligations

For child maintenance proceedings where one of the parties is domiciled abroad, Article 5 of the EuUnterhVO regulates the – international and local – jurisdiction based on the appearance of the defendant. According to its wording, the provision does not require the court to have previously informed the defendant of the possibility to contest the jurisdiction and the consequences of proceeding without contest – even if the defendant is the dependent minor child. Article 5 of the EuUnterhVO thus not only dispenses with the protection of the structurally weaker party that is usually granted under procedural law by means of a judicial duty to inform (such as Article 26(2) EuGVVO), but is in contradiction even with the other provisions of the EuUnterhVO, which are designed to achieve the greatest possible protection for the minor dependent child. This contradiction could already be resolved, at least to some extent, by a teleological interpretation of Article 5 of the EuUnterhVO, according to which international jurisdiction cannot in any case be established by the appearance of the defendant without prior judicial reference. However, in view of the unambiguous wording of the provision and the lesser negative consequences for the minor of submitting to a local jurisdiction, Article 5 of the EuUnterhVO should apply without restriction in the context of local jurisdiction. De lege ferenda, a positioning of the European legislator is still desirable at this point.

 

C. Krapfl: The end of US discovery pursuant to Section 1782 in support of international arbitration

The US Supreme Court held on 13 June 2022 that discovery in the United States pursuant to 28 U.S.C. § 1782 (a) – which authorizes a district court to order the production of evidence “for use in a proceeding in a foreign or international tribunal” – only applies in cases where the tribunal is a governmental or intergovernmental adjudicative body. Therefore, applications under Section 1782 are not possible in support of a private international commercial arbitration, taking place for example under the Rules of the German Arbitration Institute (DIS). Section 1782 also is not applicable in support of an ad hoc arbitration initiated by an investor on the basis of a standing arbitration invitation in a bilateral investment treaty. This restrictive reading of Section 1782 is a welcome end to a long-standing circuit split among courts in the United States.

 

L. Hübner/M. Lieberknecht: The Okpabi case — Has Human Rights Litigation in England reached its Zenith

In its Okpabi decision, the UK Supreme Court continues the approach it developed in the Vedanta case regarding the liability of parent companies for human rights infringements committed by their subsidiaries. While the decision is formally a procedural one, its most striking passages address substantive tort law. According to Okpabi, parent companies are subject to a duty of care towards third parties if they factually control the subsidiary’s activities or publicly convey the impression that they do. While this decision reinforces the comparatively robust protection English tort law affords to victims of human rights violations perpetrated by corporate actors, the changes to the English law of jurisdiction in the wake of Brexit could make it substantially more challenging to bring human rights suits before English courts in the future.

 

Notifications:

H. Kronke: Obituary on Jürgen Basedow (1949–2023)

C. Rüsing: Dialogue International Family Law on April 28 and 29, 2023, Münster

This post is by Maggie Gardner, a professor of law at Cornell Law School. It is cross-posted at Transnational Litigation Blog.

The U.S. Supreme Court yesterday upheld the constitutionality of Pennsylvania’s corporate registration statute, even though it requires out-of-state corporations registering to do business within the state to consent to all-purpose (general) personal jurisdiction. The result in Mallory v. Norfolk Southern Railway Co. re-opens the door to suing foreign companies in U.S. courts over disputes that arise in other countries. It may also have significant repercussions for personal jurisdiction doctrine more broadly.

The Case

Robert Mallory worked for Norfolk Southern for nearly twenty years in Ohio and Virginia. He has since been diagnosed with cancer, which he alleges was caused by the hazardous materials to which he was exposed while in Norfolk Southern’s employ. Although he currently lives in Virginia, he sued Norfolk Southern (a company then incorporated and based in Virginia) in state court in Pennsylvania, asserting claims under the Federal Employers’ Liability Act (FELA).

Norfolk Southern contested personal jurisdiction. But Mallory argued that by registering to do business in Pennsylvania, it had agreed to appear in Pennsylvania courts on any cause of action. While the Pennsylvania Supreme Court agreed with that interpretation of Pennsylvania’s corporate registration statute, it held that the statute violated the Due Process Clause of the Fourteenth Amendment in light of the Supreme Court’s caselaw since International Shoe Co. v. Washington (1945).

The Holding

A majority of the Supreme Court disagreed. Justice Alito joined Justice Gorsuch’s plurality (with Justices Thomas, Sotomayor, and Jackson) to hold that the question was controlled by a pre-International Shoe decision, Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co. (1917). Pennsylvania Fire approved a Missouri statute that required out-of-state insurance companies to appoint a state official as an agent for service of process for any suit. In Pennsylvania Fire, that Missouri statute was invoked to establish jurisdiction over a Pennsylvania insurance company regarding a contract formed in Colorado to insure a Colorado facility owned by an Arizona company. The five Justices agreed that the Supreme Court has never overruled Pennsylvania Fire and that it thus controls this case.

There is another, broader point on which the five Justices also seem to agree: Pennsylvania Fire does not conflict with International Shoe because International Shoe only addressed jurisdiction over non-consenting defendants. As Alito put it, “Consent is a separate basis for personal jurisdiction”—or as Gorsuch put it, “International Shoe simply provided a ‘novel’ way to secure personal jurisdiction that did nothing to displace other ‘traditional ones.’” An entirely separate avenue for establishing personal jurisdiction exists outside of International Shoe’s framework, which includes (according to the plurality) “[f]ailing to comply with certain pre-trial court orders, signing a contract with a forum selection clause, accepting an in-state benefit with jurisdictional strings attached,” or making a general appearance. And in this consent-based track, the five Justices also seem to agree that federalism concerns are no longer applicable.

Points of Disagreement

Alito wrote separately, however, to argue that Pennsylvania’s statute runs afoul of the dormant Commerce Clause. Even if the statute didn’t discriminate against out-of-state businesses, Alito explained, it significantly burdens interstate commerce, and it does so without any legitimate local interest. While a state “certainly has a legitimate interest in regulating activities conducted within its borders,” and while it “also may have an interest ‘in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors,’” a state “generally does not have a legitimate local interest in vindicating the rights of non-residents harmed by out-of-state actors through conduct outside the State.”

It is not particularly surprising that Alito was alone in elaborating this dormant Commerce Clause concern, given the split opinions earlier this Term in National Pork Producers Council v. Ross. As I discussed in a preview of the Mallory decision, Gorsuch and Thomas in that case found the balancing approach required by the dormant Commerce Clause jurisprudence to simply be infeasible. (Perhaps Alito hoped he might win them over if he could establish a complete lack of legitimate local interest, which would obviate the need for balancing). And if Sotomayor was unconvinced by the plaintiffs’ showing of a substantial burden on interstate commerce in National Pork Producers, she was unlikely to sign onto Alito’s rather vague paragraph about how statutes like Pennsylvania’s could burden small companies.

But why did Alito not join more of the plurality opinion? The plurality embraced a framing of the case that emphasized Norfolk Southern’s significant and permanent presence in Pennsylvania, including its 5,000 employees, 2,400 miles of track, and three locomotive shops (including the largest in North America). That framing is reminiscent of Sotomayor’s emphasis on fairness in her prior personal jurisdiction writings, as well as her questions at oral argument last fall. The plurality opinion also begins by contrasting this case with Mallory’s ability to “tag” an individual employee of Norfolk Southern in Pennsylvania, asking why Mallory shouldn’t be able to assert personal jurisdiction as easily over Norfolk Southern itself. That framing recapitulates a key point in Gorsuch’s concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court (2021).

But neither of those framings resonates with Alito’s prior writings, to say the least. He tends to be more skeptical of litigation and court access policies, and he notably did not join Gorsuch’s concurrence in Ford. Further, both framings would have undermined Alito’s argument that Pennsylvania lacked any legitimate local interest in this case.

Jackson also wrote a brief concurrence that emphasized that personal jurisdiction is a waivable right, focusing on the Court’s opinion in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee (1982). Her invocation of “waiver” rather than “consent” was clearly purposeful (and a distinction that Robin Effron and John Coyle have recently explored).

The Dissent

Justice Barrett’s dissent (joined by Chief Justice Roberts and Justices Kagan and Kavanaugh) staunchly defended the International Shoe paradigm. “For 75 years,” it begins, “we have held that the Due Process Clause does not allow state courts to assert general jurisdiction over [out-of-state] defendants merely because they do business in the State.” The Court’s decision in Mallory, Barrett explains, invites states to evade International Shoe’s limits on personal jurisdiction by simply rewording their long-arm statutes to include implied consent. Indeed (she notes), this case is remarkably like BNSF Railway Co. v. Tyrrell (2017), another FELA suit involving out-of-state parties and a cause of action that arose out of state as well. In Tyrell, the Court rejected the state’s assertion of personal jurisdiction in light of the Court’s recent decisions in Daimler AG v. Bauman (2014) and Goodyear Dunlop Tires Operations, S.A. v. Brown (2011). Approving Pennsylvania’s statute effectively robs all three of those precedents of meaning.

Foreign Defendants in U.S. Courts

The dissent is at least right about the practical implications of the Court’s holding: states that are inclined to do so now have a roadmap for evading the limits on general personal jurisdiction that the Court staked out in Goodyear, Daimler, and BNSF. While the mere fact of doing business is still not enough to subject a “non-consenting” business to jurisdiction in a forum, the mere fact of doing business plus a broadly worded statute might be. Indeed, it’s possible that Sotomayor joined the majority precisely because of her consistent concern that the Roberts Court has gone too far in paring back both general and specific jurisdiction under International Shoe. As the lone justice who refused to join the Court’s opinion in Daimler, she has now helped reclaim some of that state power.

Daimler, itself a case involving a foreign defendant, made it much harder for plaintiffs to hale non-U.S. companies into U.S. courts. After Daimler, plaintiffs have had to establish specific jurisdiction over foreign defendants, which can be hard to do even when the plaintiff resides in the U.S. forum and was injured there, as in J. McIntyre Machinery, Ltd. v. Nicastro (2011). Mallory gives states a different avenue for protecting their citizens’ ability to sue foreign defendants. As the plurality asserts, “all International Shoe did was stake out an additional road to jurisdiction over out-of-state corporations,” separate from the consent-based road upon which states can now rely.

It will be interesting to see how many states take up this invitation. My prediction is that we will see few open-ended statutes like Pennsylvania’s, but that we will see some more tailored statutes, for example asserting all-purpose jurisdiction over any claims brought by in-state residents against companies doing business in the state.

Broader Implications for Personal Jurisdiction Doctrine

It will also be interesting to see how much of a sea change Mallory makes in personal jurisdiction doctrine more broadly. While the holding may appear narrow, five Justices have agreed to limit the ambit of International Shoe’s paradigm to non-consenting defendants—a rather significant restriction. And given how broadly the Court construes “consent” in the age of forum selection clauses and compelled arbitration (and now corporate registration statutes), that could render International Shoe largely obsolete.

The approach of the plurality may also signal that there is more to come. Gorsuch’s opinion focuses on history and tradition and encourages reliance on pre-International Shoe cases. He has found a way to wind back the clock without having to directly overrule International Shoe—but would a future case encourage these Justices to wind back the clock even further?

I do worry that Gorsuch and his like-minded colleagues are too sanguine about the challenges that a return to broad general jurisdiction would entail. As I have written with others, there are real systemic costs to a paradigm of general jurisdiction—precisely the costs that International Shoe was written to address. A fundamental flaw in the plurality’s approach is its syllogism that because the Court approved tag jurisdiction over individuals in Burnham v. Superior Court (1990), it should also continue to recognize broad general jurisdiction over corporations. First, Burnham was a splintered decision, and a majority of the Justices did not agree that tag jurisdiction was completely unmoored from International Shoe’s framework. But second, why isn’t Burnham itself the mistake? Why not level up the protections for individual defendants, requiring some connection between the forum, the dispute, and the defendant greater than the defendant’s fleeting physical presence?

Conclusion

I have started wondering if the binary distinction between general and specific jurisdiction might have outlived its usefulness as a legal construct. Perhaps registration statutes and tag jurisdiction (and some modified forum of doing business jurisdiction?) belong in an intermediate category—but one that must still satisfy International Shoe’s overarching command that the defendant have minimum contacts with the forum such that notions of fair play and substantial justice will not be offended.

 The first issue of 2023 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Francesco Salerno, (formerly) Professor at the University of Ferrara, L’impatto della procedura di interpretazione pregiudiziale sul diritto internazionale privato nazionale (The Impact of the Preliminary Rulings of the Court of Justice on National Private International Law; in Italian)

The European Court of Justice’s uniform interpretation of private international law concerns mainly – albeit not only – the EU Regulations adopted pursuant to Article 81 TFEU: in the context of this activity, the Court also takes into account the distinctive features of EU Member States. The increasing number of autonomous notions developed by the Court greatly enhanced the consistency and the effectiveness of the European rules. Against this background, the Italian judicial authorities implemented such a case-law even when it ran counter well-established domestic legal principles. Moreover, the European institutions rarely questioned the case-law of the Court of Justice, but when they did so, they adopted new rules of private international law in order to “correct” a well-settled jurisprudential trend of the Court.

Cristina Campiglio, Professor at the University of Pavia, La condizione femminile tra presente e futuro: prospettive internazionalprivatistiche (The Status of Women between Present and Future: Private International Law Perspectives; in Italian)

One of the Goals of the U.N. 2030 Agenda for Sustainable Development is gender equality (Goal 5), which can also be achieved through the elimination of “all harmful practices, such as child, early and forced marriage” (Target No 3) and the protection of women reproductive rights (Target No 6). This article addresses these two issues in a conflict-of-laws perspective, identifying the legal mechanisms through which legal systems counter the phenomenon of early marriages celebrated abroad and tackle the latest challenges related to the so-called reproductive tourism. After analyzing the role played by public policy exceptions and by the principle of the best interest of the child, it summarizes the Court of Justice’s case-law on the recognition of family situations across borders. In fact, the recognition of the possession of an EU status – meeting the social need to have a personal status which accompanies individuals anywhere within the EU area – is gaining ground. Such status is a personal identity merely functional to the exercise of EU citizens’ freedom of movement (Article 3(2) TEU, Article 21 TFEU and Article 45 EU Charter of Fundamental Rights). The result is the possession, by EU citizens, of a split personal identity – one functional to circulation, while the other one to its full extent – whose compatibility with the EU Charter of Fundamental Rights principles and with the ECHR may be called into question.

The following comment is also featured:

Marco Farina, Adjunct Professor at the University ‘La Sapienza’ in Rome, I procedimenti per il riconoscimento e l’esecuzione delle decisioni straniere nella recente riforma del processo civile in Italia (Proceedings for the Recognition and Enforcement of Foreign Judgments in the Recent Italian Reform of Civil Procedure; in Italian)

In this article, the Author comments on the new Article 30-bis of Legislative Decree No 150/2011, introduced by Legislative Decree No 149/2022 reforming Italian civil procedure and aimed at regulating “proceedings for the recognition and enforcement of foreign judgments provided for by European Union law and international conventions”. The Author analyses the new provision, focusing on the different procedural rules applicable, depending on the relevant EU Regulation or international convention concerned, to the proceedings that the EU Regulations listed in Article 30-bis of Legislative Decree No 150/2011 provide for obtaining the recognition and enforcement of the judgments rendered in a Member State other than the one in which they were rendered. In commenting on this new provision, the Author offers a reasoned overview of the problems generated by it with the relative possible solutions.

Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Pascal DE VAREILLES-SOMMIÈRES, Sarah LAVAL, Droit international privé, Dalloz, Paris (11th ed., 2023) pp. XVI-1359.

The Kingdom of Saudi Arabia (KSA) has recently enacted a new Civil Transactions Law (Royal Decree No. M/199, dated June 16, 2023). The law will enter into force on December 16, 2023, 180 days after its enactment (hereinafter referred to as “the new law”). This law has been rightly described as “groundbreaking” because, prior to the enactment of the new law, there has been no codification of civil law in the Kingdom, and civil law issues have traditionally been governed by the classical rules of Islamic Sharia according to the teachings of the prevailing school of fiqh (religio-legal jurisprudence) in the Kingdom (Hanbali School). Like most of the civil law codifications in the region, the new law focuses mainly on the so-called “patrimonial law,” i.e., property rights and obligations (contractual and non-contractual). Family relations and successions are dealt with in a separate law, which was previously enacted in 2022 and entered into force the same year (Personal Status Act, Royal Decree No. M/73 of 9 March 2022, entered into force on June 18, 2022).

From a private international law perspective, one particular aspect of the new law compared to other civil law codifications in the region is that, unlike most of the Arab civil law codifications, the new law does not contain rules on the choice of the applicable law. In other neighboring countries (namely Egypt, Jordan, Syria, Iraq, Qatar, Oman, and Yemen) as well as in other Arab jurisdictions (including Libya and Algeria), the civil law codifications include at the beginning of their respective Civil Code/Civil Transactions Act a chapter dealing with the “application of the law in space”. These choice-of-law codifications generally contain provisions on characterization, choice of law in family law and succession, property, contractual and non-contractual obligations, and some general rules such as renvoi (or its prohibition) and public policy, etc. Only a few Arab states have chosen to codify choice-of-law rules outside of their Civil Code (Kuwait and Bahrain) or Code of Obligations and Contracts (Morocco and Tunisia). Lebanon is the only country where choice-of-law principles have been developed mainly through case law. Thus, Saudi Arabia remains the only Arab jurisdiction where conflict of laws rules are almost non-existent and where the courts have not been able to develop a body of principles dealing with choice-of-law issues. This is because, in general, Saudi courts apply Saudi law when they assume jurisdiction, regardless of whether or not the dispute has a connection with another legal system or not. Whether there will be a codification of choice-of-law rules in the same way that rules on international jurisdiction and enforcement of foreign judgments have been codified remains to be seen.

 

Interestingly, however, the new law may affect the assessment of public policy in the context of the enforcement of foreign judgments. Indeed, based on the traditional Sharia rules and principles recognized in the Kingdom, Saudi courts have often relied on public policy and inconsistency with Sharia to refuse enforcement of foreign judgments. For example, in a case decided in 1996, the Saudi court refused to enforce a Dubai judgment on the ground that the said judgment allowed for compensation for lost profits and payment of moral damages (Board of Grievances, Case No. 1783/1/Q of 30/12/1417 Hegira [November 12, 1996]). The court cited Sharia rules and principles on compensation, according to which only real and quantifiable losses can be compensated. The new law departed from this traditional principle by clearly allowing compensation for both lost profits (article 137) and moral damages (article 138). Therefore, the traditional position of the Saudi court is no longer tenable under the new rules, as compensation for lost profits and moral damages are now available under the newly adopted rules.

 

Another important issue concerns interest. It is well known that the payment of interest is prohibited under Sharia rules and principles. Saudi courts have been particularly eager to refuse enforcement of those parts of the foreign judgments that order the payment of interest, including legal interest available under the laws of other Arab and Islamic states (see, for example, Board of Grievances, Case No. 2114/Q of 21/8/1436 Hegira [June 9, 2015] refusing enforcement of legal interests ordered by Bahraini courts but allowed partial enforcement of the main award). However, unlike lost of profits and moral damages, the new law’s position on interest is less clear. Several indicators in the new law suggest that the legislature did not wish to depart from the traditionally prevailing position. For example, the prohibition on agreeing to repay amounts that “exceed” the capital in loan agreements, either at the time of the conclusion of the agreement or at the time of the deferment of payment, is clearly stated in article 385 of the new law. Moreover, article 1 of the new law clearly refers to the “rules [al-ahkam] derived from the Islamic Sharia which are most consistent with the present law” as the source of law in the absence of an applicable provision of the new law or a rule of general principles contained in its last chapter. Accordingly, it can be expected that Saudi courts will continue to refuse to enforce the portion of the foreign judgments awarding interests on the ground of public policy and the inconsistency of interests with the principles of the Sharia as understood in the Kingdom.

 

Readers of this blog will certainly enjoy trying

eu-adapt.com

It is the result of a project coordinated by Afonso Patrão (University of Coimbra, in Portugal), joining efforts with the Universities of Heidelberg (Germany), Turku (Finland), Genoa (Italy) and Valencia (Spain), which will be useful when a right in rem is invoked under the law applicable to succession, but the lex rei sitae does not know such right in rem. As Afonso Patrão explains “the app will then suggest an equivalent under the law of the latter Member State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it”.

On Tuesday, July 4, 2023, the Hamburg Max Planck Institute will host its 35th monthly virtual workshop Current Research in Private International Law at 14:00-15:30 CEST. Robert Freitag (FAU Erlangen-Nürnberg) will speak, in German, about the topic

The Overdue Reform of the International Law on Names in Germany

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.

This book review was written by Begüm Kilimcioglu, PhD researcher, Research Groups Law & Development and Personal Rights & Property Rights, University of Antwerp

Barnali Choudbury, The UN Guiding Principles on Business & Human Rights- A Commentary, Edward Elgar Publishing, 2023

The endorsement of the United Nations Guiding Principles (UNGPs) in 2011 represents a milestone for business and human rights as the principles successfully achieved to put the duties of different actors involved in (possible) human rights abuses on the international agenda. The UNGPs provide a non-binding yet authoritative framework for a three-pillared scheme to identify and contextualize the responsibilities with regard to business and human rights: the State’s responsibility to protect, businesses’ responsibility to respect, and facilitating access to remedy. However, although the impact of the principles can be described as ground-breaking, they have also been criticized for their vague and generic language which provides for a leeway for certain actors to circumvent their responsibilities (see Andreas Rasche & Sandra Waddock, Surya Deva, Florian Wettstein).Therefore, it is important to determine and clarify the content of the principles to increase their efficiency and effectiveness. In this light, this commentary on the UNGPs which examines all the principles one-by-one through the inputs of various prominent scholars, academics, experts and practitioners is indeed a reference guide to when working on corporate social responsibility.

The UNGPs and private international law are inherently linked. UNGPs aim to address issues regarding human rights abuses and environmental degradation which are ultimately transnational. Therefore, every time we talk about the extraterritorial obligations of the States, or the private remedies attached to cross-border human rights violations, we have to talk within the framework of private international law. For instance, in a case where a multinational company headquartered in the Global North causes damage through its subsidiaries or suppliers located in the Global North, the contractual clauses regarding their respective obligations or the private remedies in their contracts brings the questions of which law is applicable or how to enforce such mechanisms. Furthermore, in cases where the violations are brought before a court, it is inevitable that the court will have to decide on which law to be applied to the conflict at hand. In this regard, although the commentary does not go into detail about conflict of laws/ private international law issues, we know that the implementation of the UNGPs requires the consideration of private international law rules.

The commentary consists of two parts; the first part is dedicated to the UNGPs, and the second part focuses on the Principles for Responsible Contracts (PRCs) which is an integral addition to the UNGPs.

The first part starts with the UNGPs’ first pillar, the State’s duty to protect in context. The authors Larry Cata Backer and Humberto Cantu Rivera (UNGPs 4&5) emphasize the centrality of the State as an actor in many interactions when it engages in various commercial transactions and the privatization of essential services. Such instances pose a unique opportunity for the State to exercise its influence over businesses, service providers, or investors to facilitate respect for human rights and to fulfill its duty to protect human rights. Furthermore, as Olga Martin-Ortega and Fatimazahra Dehbi highlights (UNGP 7) when a company is operating in a conflict zone, the States that are involved must engage effectively with the situation to protect human rights considering the heightened vulnerability. Overall, actions of privatization or other commercial transactions do not exempt the State from its own duties. On the contrary, the State has heightened duties to ensure and support respect for human rights through various means such as its legislation, policies, agencies or through (effective) membership of multilateral institutions or its contracts.

Moving onto the second pillar, the business’ responsibility to respect, Sara L. Seck emphasizes                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               that this responsibility is not framed as a duty—like the State duty to protect but rather is a more flexible term—and is independent of the State. However, more regard could have been given to common situations such as where the lines between the States and the businesses are blurred. I do not mean here the situations where the business enterprises are fully or partially owned by the State but rather – de facto—the businesses have more power (both in economic and political terms) on the ground. More examples could have been given such as how the revenues of Shell exceed the GDP’s of Malaysia, Nigeria, South Africa and Mexico. In the increasingly globalized and competitive world of today, the (possible) role of businesses changes rapidly. Conversely, the disconnect between the policies, statements, and pledges businesses make with respect to human rights and their actual performance has been identified and highlighted quite accurately. The analysis of the lack of incentives for businesses to respect and engage with human rights by Kishanthi Parella (UNGP 13) provides an excellent mirror to the situation on the ground. It is rightfully identified that although the pressure from the consumers, investors, and/or other stakeholders can incentivize companies to do better, it may be insufficient. For instance, although Shell has been criticized by civil society, affected stakeholders, and the public for over a decade, and has faced several high-profile cases, the change beyond its corporate policies and documents remains highly contested.

Naturally, this brings to the fore the importance of having legally binding, national, regional, and international, rules putting concrete obligations with strong enforcement mechanisms to force companies to do better and create a level playing field for the ones who already are genuinely engaged in human rights issues. Maddelena Neglia discusses the different mandatory legislations initiatives from different countries regarding the implementation of the UNGPs, and Claire Bright and Celine Graca da Pires examine the same initiatives through the lens of Human Rights Due Diligence processes.

However, as the analysis of the current transparency frameworks within the framework of UNGP 13, considering that there are already legally binding rules on non-financial information disclosure, foreshadows the possible outcomes of future legally binding rules, such as the Corporate Sustainability Due Diligence Directive (See also the last documents, the Council position and the Parliament position.) The commentary does not discuss the positions adopted by the Council and the Parliament as they were not yet adopted at the time the commentary was written). The current transparency laws show that unless such rules have teeth, they are bound to be ineffective.

Of course, the efforts of the States and businesses must be accompanied by strong and effective both State-based and non-State based and judicial and non-judicial remedies for the victims of corporate harm. On this matter, the commentary highlights the mechanisms that we are more prone to forgetting, such as the national human rights institutions (NHRIs) or multistakeholder initiatives (MSIs). It is usually the case that when thinking about remedies, the first thing that comes to mind are State-based judicial remedies. However, as Jennifer A. Zerk and Martijn Scheltema remind us there are several different types of remedies which can even be more effective depending on the context. Furthermore, on an academic level, we tend to focus more on Platon’s ‘theory on forms/ideas’ rather than how things work in practice. As a result of this disconnection between the academics and the victims, we also tend to forget to discuss whether the ‘form/idea’ complies with the reality on the ground. Therefore, the emphasis in the commentary on the (obvious) link between the remedies and the persons for whom these remedies are intended reminds us that remedies must be stakeholder centric.

Overall, the commentary points out several important issues about the UNGPs:

• The uncertainty surrounding the UNGPs is real—although this was an intentional choice by Professor Ruggie, considering the current frameworks and how far we have come in the business & human rights world, we should not religiously hold onto the UNGPs but rather search for ways to improve and build upon them. UNGPs indeed were a marvelous achievement at the time, in 2011, when it was even unthinkable for most people that businesses could have any kind of responsibility regarding human rights; yet a worldwide consensus was reached. However, now, there is an enormous momentum to genuinely address corporate disasters through better regulation and enforcement.
• Another important prong in this process still is the international treaty. The commentary does not go into much detail about the Legally Binding Instrument on Business and Human Rights (Penelope Simmons discusses the international treaty within the framework of UNGP 26 as a way to strengthen access to remedy and Barnali Choudhury proposes the international treaty as a way to tackle the remaining problems with the implementation of the UNGPS and the PRCs), however I do believe that the international treaty must also be discussed as an option to better implement the UNGPs. The drafting process of the treaty is evidence of one of many problems with the implementation of the UNGPs. As Daniel Augenstein (UNGP 1), Gamze Erdem Turkelli (UNGP 10) and Dalia Palombo (UNGP 25) point out, international cooperation is very important to effectively address the multi-faceted and transnational problem of respecting and protecting human rights and facilitating remedy when human rights abuses occur within the context of corporate harm. They show that no sole State can fix such a problem, and cooperation between States is essential. This cooperation can be done through could be done by engaging with other States in cases of corporate harm and exchanging information (or making it easy to exchange information) between authorities and courts, or information, as we increasingly see in private international law instruments. However, when we look at the process of drafting such a treaty which would provide common frameworks and rules to do so, it is clear that there is reluctance of the Global North countries whereas the recipient countries of damage are naturally much more enthusiastic.
• The second part of the commentary concerns the Principles for Responsible Contracts which provide guidance for the preparation, management and monitoring of Investor-State (investment) contracts, together with options for access to remedy for the (possible) victims. The PRCs reflect the same principles as the UNGPs and they are supposed to be read in conjunction.

The focus on the PRCs is valuable because historically international investment law and international human rights law were seen as two separate fields of law with no intersection. However, today, as the understanding of human rights is significantly evolving, the link between investments and human rights is becoming all the more evident. Investments – in all sectors but especially the extractive sector- can adversely impact to a significant extend, environmental degradation and human rights, lives of local and indigenous communities and marginalized and vulnerable groups. Rightly so, as the first part of the commentary on UNGPs, the second part, especially within the scope of PRC 7, Tehtena Mebratu-Tsegaye and Solina Kennedy highlight the importance of meaningful stakeholder engagement with the (potentially) affected stakeholders and the ways to design more inclusive community involvement strategies.

Secondly, PRCs is a great opportunity to provide guidance to increase the effectiveness and efficiency of the contractual clauses used in investment contracts. Contractual clauses are the most widely used tools among businesses to pledge and ensure human rights compliance in their activities (see p 63). However, the effectiveness of these clauses is rather limited. Therefore, this wide use must be seen as an advantage and be built upon. In other words, the clauses must be structured in such a way that they do not leave unnecessary wiggle room for the companies and successfully cover the governance gaps.

Lastly, the importance of human rights impact assessments by investors before, during and after a project is a common narrative through the part on the PRCs. This emphasis is important as we are on the verge of adopting hard laws on human rights due diligence that may successfully enforce companies to be more engaging, robust and effective when they address human rights concerns. It has to be borne in mind that investors are also businesses enterprises, and they also must conduct their own Human Rights Due Diligence regarding their projects. In this regard, it is sometimes even the case that investors have more adverse impacts than other types of business actors because of their indirect impact via the projects they finance. Thus, the engagement of the investors with human rights is crucial for effective human rights protection.

Overall, the commentary is a must-have for everyone who is working on business and human rights. The UNGPs constitute the base of all the work that has been done over the years in the field. Thus, to be able to comprehend what business and human rights mean and to build on them, it is essential to examine the UNGPs in detail, which is what the commentary provides.

XVI CONFERENCE OF THE AMERICAN ASSOCIATION OF PRIVATE INTERNATIONAL LAW – ASADIP IV Workshop on Research Strategies for Private International Law – PIL 9th August 2023 -Wednesday 15:00-18.30- PUC Rio-Gavea, Rio de de Janeiro – Call for Papers –

The Brazilian Research Network on Private International Law (“Brazilian PIL-RN”), an initiative of the Inter-institutional Research Group “Private International Law in Brazil and International Fora” (CNPq/DGP), the Latin American Network of International Civil Procedural Law, the Open Latin American Chair of Private International Law and the American Association of Private International Law – ASADIP – will jointly host the IV Workshop on Research Strategies for Private International Law on August 9, 2023, on the occasion of the awaited XVI ASADIP Conference 2023 (“PIL between the Innovation and the Disruption”) in Rio de Janeiro.

PUC Rio will be our host institution for the IV Workshop on Research Strategies in PIL, in this edition structured in two main clusters:

1. Joint Meeting of PIL Research Groups and Networks in Brazil, ASADIP Region and global partners
2. Thematic panels on IPR research with presentation of scientific papers in Working Groups on PIL and Emerging Issues:

• WG I: Sustainable Development Goals-SDGs and Private International Law

• WG II: Dialogues between PIL, International Law and International Trade
• WG III – Migrations, human rights and private international law
• WG IV – PIL between data flow, artificial intelligence and new technologies
• WG V – Current developments on International legal cooperation

This Call for Papers invites participants and specialists to submit proposals – articles/papers, expanded abstracts (for Master and Doctoral candidates) and posters (Undergraduate students) for the presentation of scientific pieces at the IV Workshop on PIL Research Strategies. It is open to submissions of unpublished/ongoing works by faculty professors, investigators, as well postgraduate and undergraduate students, on topics of interest for the research agenda of Private International Law, its strategies and potential impacts on society, local/regional spaces, and international organizations. Proposals may be submitted in any of the three official languages for ASADIP: Spanish, English and Portuguese.

A such warm-up academic initiative is a part of the main proceedings of the XVI ASADIP Conference2023 “PIL between Innovation and the Disruption”,which will take place between 10-11 August 2023 in Rio de Janeiro (PUC Rio and University of Estado do Rio de Janeiro – UERJ).

Highlight on relevant deadlines: 06/28/2023 – 1st deadline for submission of proposals 05/07/2023 – 2nd deadline for submission of proposals 10/07/2023 – Deadline for the evaluation feedback on the proposals 07/17/2023 – Deadline for issuing invitation letters and acceptance of selected proposals 24/07/2023 – Confirmation of participation and registration of participating authors 09/08/2023 – IV Workshop – PUC Rio – preparation for the XVI ASADIP Conference (2023) Executive/Organizing Committee: Nadia de Araujo (PUC-Rio) Fabricio B Pasquot Polido (University of Minas Gerais – UFMG) Valesca Borges (University of Espirito Santo – UFES) Inez Lopes (University of Brasilia – UnB).

Scientific Committee:

The Scientific Committee for the IV Workshop on PIL Research Strategies will rely on the valuable participation of several scholars from ASADIP member countries and partnering institutions:

Alfonso Ortega Gimenez (Univ. Miguel Hernandez de Elche, Espanha)

Anabela Goncalves (Univ. de Minho, Portugal)
Augusto Jaeger (Fed. Univ. Rio Grande do Sul – UFRGS) Caitlin Mulholland (PUC Rio)
Carmen Tiburcio (University of State of Rio de Janeiro – UERJ)

Clarissa Brandao (Fed University Fluminense-UFF) Daniel Rojas-Tamayo (Univ. Externado, Colombia) Daniela T. Vargas (PUC Rio) Diego P. Fernandez Arroyo (Science Po, Paris) Eduardo Vescovi (Univ. de la Republica, Uruguay) Elizabeth Villalta (Univ. de El Salvador) Eugenia C. Barza (Fed Univ. Pernambuco – UFPE) Fernando P. Meinero (UniPampa) Gustavo F. Monaco (Univ. Sao Paulo) Lidia Spitz (PUC-Rio)

Luis Ernesto Rodriguez (Univ. Central de Venezuela)

Maria Laura Capalbo (Univ. de la Republica, Uruguay)

Maria Mercedes Albornoz (CIDE, Ciudad de Mexico)

Marilda Ribeiro (University of State of Rio de Janeiro – UERJ)

Nieve Rubaja (Univ. de Buenos Aires, Argentina)

Nuria Gonzalez (Univ. Nac. Autonoma de Mexico)
Paula M. All (Univ. Nac. del Litoral, Argentina) Raphael Vasconcelos (University of State of Rio de Janeiro – UERJ) Renata A. Gaspar (ESPM, Sao Paulo)
Tatyana Scheila Friedrich (Fed. University of Parana – UFPR) Valesca Borges (University of Espirito Santo – UFES) General information and submission rules:

• The proposals of papers – articles, expanded abstracts and posters – in the official languages for ASADIP – Spanish, English and Portuguese – should be submitted and sent within the deadlines to the e-mail: 4workshop.dipr.pucrio2023@gmail.com.
• There will be no registration fees and the organising committee will issue acceptance letters according to the flow of requests from selected participants.Participants will be solely responsible for arranging financial support in their respective institutions for transportation, accommodation, travel logistics and per diems for the presentation of selected papers at the IV Workshop.
• The papers selected by peer review and approved should be adjusted according to the guidelines for authors and will be published in books/collections and proceedings of the event, with support from Brazilian and international funding agencies.

More information can be found on the ASADIP website, social media of the organizing institutions and updates on Sympla.

Professor Dr. Giesela Rühl, LL.M. (Berkeley) is currently seeking to fill three PhD positions at her Chair at Humboldt University of Berlin ( https://www.rewi.hu-berlin.de/en/lf/ls/rhl/index.html).

The successful candidate should have a keen interest in issue of private international law, international civil procedure and/or civil procedure (including access to justice and digital justice). Since the positions come with teaching obligations, knowledge of the German language (and German law) is required.

The official call for applications will be out soon. In the meanwhile if you are interested (or have any questions) please do not hesitate to get in touch: sekretariat.ruehl.rewi@hu-berlin.de.

The Visible College of International Lawyers and the HCCH 2019 Judgments Convention –Conference in Bonn

The HCCH 2019 Judgments Convention has been the subject of an ever-growing body of academic research and discussion ever since it was signed; but due to the pandemic, almost all of it had to happen in writing. Just in time for its entry into force, though, and thus perfectly timed, the first international conference on the HCCH 2019 Judgments Convention Cornerstones – Prospects – Outlook took place a week ago at the University of Bonn, hosted by Matthias Weller together with Moritz Brinkmann and Nina Dethloff, in cooperation with the Permanent Bureau of the HCCH, and with the support of the German Federal Ministry of Justice.

The conference brought together much of the aforementioned discussion between a range of academics, practitioners and policymakers, including the contributors to the book of the same title, edited by Matthias Weller, João Ribeiro-Bidaoui, Moritz Brinkmann, and Nina Dethloff, for which the conference doubled as a launch event. It accordingly followed the same structure, organized into seven panels overall that were split into three larger blocks.

 

The first of those (“Cornerstones”) focused on some of the core concepts underpinning the Convention. Wolfgang Hau (LMU Munich) discussed the meaning of ‘judgments’, ‘recognition’, and ‘enforcement’; Pietro Franzina (Catholic University of Milan) focused on the jurisdictional filters (with an emphasis on contractual obligations, i.e. Art. 5(1)(g)); and Marcos Dotta Salgueiro (University of the Republic of Montevideo) discussed the grounds for refusal. After some lively discussion, the block continued with papers on the Convention’s much-discussed Art. 29 (Cristina Mariottini (Luxembourg)) and on its interplay with the 2005 Choice of Court Convention (Paul Beaumont (University of Stirling)).

Also in light of some less nuanced recent interventions, Cristina Mariottini’s paper was particularly welcome to dispel some myths surrounding Art. 29. The speaker rightly pointed out that the mechanism is not only very different from the much-criticized bilaterilasation requirement of the 1971 Convention but can also be found, in one form or another, in a range of other instruments, including the rather successful 1970 Evidence and 1980 Child Abduction Conventions.

A much wider angle was then taken in the second block (“Prospects for the World”), which brought together perspectives from the European Union (Andreas Stein (European Commission)), the US (Linda Silverman (NYU)), Canada (Geneviève Saumier (McGill University)), the Balkan Peninsula (Ilja Rumenov (Skopje University)), Arab countries (Béligh Elbalti (University of Osaka)), Africa (Abubakri Yekini (University of Manchester) and Chukwuma Okoli (University of Birmingham)), the MERCOSUR Region (Verónica Ruiz Abou-Nigm (University of Edinburgh)), the ASEAN countries (Adeline Chong (SMU)), and China (Zheng (Sophia) Tang (Wuhan University)) in four consecutive panels. While the first block had already highlighted some of the compromises that had to be made during the drafting of the Convention and at the diplomatic conference, it became even clearer that the Convention (or, more precisely, the prospect of its ratification) may be subject to vastly different obstacles and objections in different parts of the globe. While some countries may not consider the Convention to be ambitious enough, others may consider it too much of an intrusion into their right to refuse the recognition and enforcement of foreign judgments – or raise even more fundamental concerns regarding the implementation of the Convention, its interplay with existing bilateral treaties (seemingly a particularly pertinent problem for Arab countries), or with multilateralism in recognition and enforcement more generally. The conference gave room to all of those concerns and provided important context through some truly impressive comparative research, e.g. on the complex landscape of bilateral agreements in and between most Arab states.

The different threads of discussion that had been started throughout the event were finally put together in a closing panel (“Outlook”). Ning Zhao (HCCH) recounted the complicated genesis of the Convention and reflected on the lessons that could be learned from them, emphasizing the need for bridging differences through narrowing down the scope of projects and offering opt-out mechanisms, and for enhancing mutual trust, including through post-convention work. She also provided an update on the ongoing jurisdiction project; José Angelo Estrella Faria (UNIDROIT) advocated a holistic approach to judicial cooperation and international commercial arbitration; and Hans van Loon (HCCH) finally summarized the conference as a whole, putting the emphasis both on the significant achievement that the convention constitutes and the need to put further work into its promotion.

The conference had set out to identify the cornerstones of the 2019 Convention, to discuss its prospects, and to provide an outlook into the future of the Convention. It has clearly achieved all three of these goals. It included a wide range of perspectives on the Convention, highlighted its achievements without shying away from discussing its present and future obstacles, and thus provided ample food for thought and discussion for both the proponents and the critics of the Convention.

At the end of the first day, Burkhard Hess (MPI Luxembourg) gave a dinner speech and reflected on the current shape of the notorious ‘invisible college of international lawyers’ in private international law. As evidenced by the picture above, the college certainly was rather visible in Bonn.

 

 

This post has been written by Anna Bleichenbacher, MLaw, University of Basel, Nievergelt & Stoehr Law and Notary Office (Switzerland).

The Swiss Federal Supreme Court (Bundesgericht) published a leading decision on recognition and public certification of foreign conversions of ancient law pay paternities (Zahlvaterschaften) into paternities with civil status effects on June 15th, 2023 (decision of Swiss Federal Supreme Court 5A_81/2022 of May 12th, 2023).

Respondent in the present case was a German citizen, living in Germany (respondent). She was born out of wedlock in 1967 and acknowledged by her father (father) in the same year, both in Germany. The acknowledgement included only a pay paternity. A pay paternity was a legal institution with an obligation to pay maintenance. The pay paternity did not include a legal child relationship recorded in the civil register.

According to the German law on the legal status of children born out of wedlock of August 19th, 1969 (law on children born out of wedlock), a father who has acknowledged his obligation to pay maintenance for a child in a public deed or an enforceable debt certificate, is seen as a legal father to child, recorded in the civil register, after the enforcement of the law on children born out of wedlock. In short, Germany knows the ipso iure conversion of the pay paternity into the paternity with civil status effects.

Switzerland also knows the legal institution of the pay paternity. However, Swiss law did not provide for ipso iure conversion of the pay paternity into a paternity with civil status effects.

The respondent’s father was a Swiss citizen, living in Switzerland. In 2016, he died, not only leaving behind the respondent, but also his wife and a common daughter (born in wedlock; appellants). In 2017, the respondent appealed to the Swiss civil status authorities, claiming the registration and public certification of the birth in Germany as well as the legal child relationship to the father. After exhaustion of the intra-cantonal appeal process, the appellants reach the Swiss Federal Supreme Court with two main arguments against the registration and public certification of the respondent’s legal child relationship to the father:

(1) Applicability of the Swiss Federal Act on Private International Law (PILA) in the present case

The PILA entered into force on January 1st, 1989. The appellants claimed that recognition and enforcement in the present case are governed by the respective law in force at the time of the respondent’s birth in 1967. This would be the Federal Act on Civil Law Relations of Settled Persons and Residents of June 25th, 1891. The Swiss Federal Supreme Court made clear that the date of the foreign decision or other legal act (i.e. the acknowledgment of the child) is irrelevant. The time at which the question of recognition and enforcement arises is decisive.

Therefore, the PILA is applicable for the present case.

(2) Violation of the Swiss Ordre Public in case of recognition and public certification

The PILA supports the recognition and enforcement of foreign decisions and other legal acts by the principle “in favorem recognitionis”. A foreign child acknowledgment is recognized in Switzerland if it is valid in form and content in one of the jurisdictions named in Art. 73 para. 1 PILA. These include the state of the child’s habitual residence, the child’s state of citizenship or the state of domicile or of citizenship of the mother or the father.

As mentioned above, the legal child relationship between the respondent and the father is based on the acknowledgment of the father in 1967 and the ipso iure conversion of the pay paternity into a paternity with civil status effects. The validity of this conversion in Germany has been proven by German civil status documents of the respondent.

Since Germany is a jurisdiction in the sense of Art. 73 para. 1 PILA, and the child acknowledgment is valid there, Switzerland will only refuse the recognition and public certification in case of violation of Swiss Ordre Public.

The Swiss Federal Supreme Court stated that, just because Swiss law does not provide for ipso iure conversion of the pay paternity, a German legal act on paternity valorization does not violate Swiss Ordre Public. This is mainly because both jurisdictions aim for a similar purpose, namely the equality of children born out of wedlock. In an obiter dictum, the Swiss Federal Supreme Court even doubts the conformity of Swiss regulation with fundamental rights.

In summary, the recognition and public certification of a German ipso iure converted pay paternity into a paternity with civil status effects does not violate the Swiss Ordre Public. In application of the PILA, Swiss civil status authorities are obliged to carry out the post-certification of such legal child relationship.

The latest issue of RabelsZ has just been released. It contains the following contributions:

OBITUARY

Eva-Maria Kieninger, Ralf Michaels: Jürgen Basedow * 29.9.1949 † 6.4.2023, pp. 229–235, DOI: 10.1628/rabelsz-2023-0051

ESSAYS

Felix Berner: Implizite Qualifikationsvorgaben im europäischen Kollisionsrecht, pp- 236–263, DOI: 10.1628/rabelsz-2023-0028

Implicit Characterization in European Conflict of Laws. – Most German scholars assume that problems of characterization in European choice of law are to be resolved by means of functional characterization. This essay challenges that assumption. Quite often, European choice-of-law rules themselves require a certain treatment of a characterization problem. This can follow from the rules or recitals of European regulations. In such cases, the required approach is more or less explicitly given. However, the required analysis can also be implicitly established, especially when it is derived from the purpose of certain choice-of-law rules. The approach towards characterization is of both practical and theoretical significance. In practice it determines the outcome of a characterization inquiry. On a theoretical level, the approach towards characterization embodies a conceptual change: The more rules on characterization there are, the more the classic problem of characterization is marginalized. Questions of characterization turn into questions of “simple statutory interpretation”.

Frederick Rieländer: Die Anknüpfung der Produkthaftung für autonome Systeme, pp. 264–305, DOI: 10.1628/rabelsz-2023-0032

The Private International Law of Product Liability and AI-related Harm. – As the EU moves ahead with extensive reform in all matters connected to artificial intelligence (AI), including measures to address liability issues regarding AI-related harm, it needs to be considered how European private international law (PIL) could contribute to the EU’s objective of becoming a global leader in the development of trust-worthy and ethical AI. To this end, the article examines the role which might be played in this context by the conflict-of-law rule concerning product liability in Article 5 of the Rome II Regulation. It shows that the complex cascade of connecting factors in matters relating to product liability, although providing legal certainty for market players, fails to consistently support the EU’s twin aim of promoting the up-take of AI, while ensuring that injured persons enjoy the same level of protection irrespective of the technology employed. Assessing several options for amending the Rome II Regulation, the article calls for the introduction of a new special rule concerning product liability which allows the claimant to elect the applicable law from among a clearly defined number of substantive laws. Arguably, this proposal offers a more balanced solution, favouring the victim as well as serving the EU’s policies.

Tim W. Dornis: Künstliche Intelligenz und internationaler Vertragsschluss, pp. 306–325, DOI: 10.1628/rabelsz-2023-0043

Artificial Intelligence and International Contracting. – Recently, the debate on the law applicable to a contract concluded by means of an AI system has begun to evolve. Until now it has been primarily suggested that the applicable law as regards the “legal capacity”, the “capacity to contract” and the “representative capacity” of AI systems should be determined separately and, thus, that these are not issues falling under the lex causae governing the contract. This approach builds upon the conception that AI systems are personally autonomous actors – akin to humans. Yet, as unveiled by a closer look at the techno-philosophical foundations of AI theory and practice, algorithmic systems are only technically autonomous. This means they can act only within the framework and the limitations set by their human users. Therefore, when it comes to concluding a contract, AI systems can fulfill only an instrumental function. They have legal capacity neither to contract nor to act as agents of their users. In terms of private international law, this implies that the utilization of an algorithmic system must be an issue of contract conclusion under art. 10 Rome I Regulation. Since AI utilization is fully subject to the lex causae, there can be no separate determination of the applicable law as regards the legal capacity, the capacity to contract or representative capacity of such systems.

Peter Kutner: Truth in the Law of Defamation, pp. 326–352, DOI: 10.1628/rabelsz-2023-0038

This article identifies and examines important aspects of truth as a defence to defamation liability in common law and “mixed” legal systems. These include the fundamental issue of what must be true to establish the defence, whether the defendant continues to have the burden of proving that a defamatory communication is true, the condition that publication must be for the public benefit or in the public interest, “contextual truth” (“incremental harm”), and the possibility of constitutional law rules on truth that are different than common law rules. The discussion includes the emergence of differences among national legal systems in the operation of the truth defence and evaluation of the positions that have been adopted.

 

BOOK REVIEWS

As always, this issue also contains several reviews of literature in the fields of private international law, international civil procedure, transnational law, and comparative law (pp. 353–427).

Written by Phoebe Winch, Secretary of International Law Association (ILA) Australian Branch.

 

The Australian Branch is now calling for submissions for the 2023 Brennan Essay Prize in Public International Law and the Nygh Essay Prize in Private International Law.

The prizes are awarded for essays that demonstrate outstanding scholarship and make a distinct contribution to the field of public international law and private international law (conflict of laws), respectively. Essays for the prize to be awarded in 2023 should be sent to the email address of the Secretary of the Australian Branch at secretary@ila.org.au.

Further details (including conditions of entry) are available here. The deadline for submission is: 15 July 2023.

The results will be made available on the website of the ILA (www.ila.org.au) on approximately 31 August 2023. Winners will be notified by email. 

The Ministry of Justice of Japan (MOJ), Civil Affairs Bureau, in cooperation with the Japan Commercial Arbitration Association (JCAA) and supported by CIArb East Asia Branch, Japan Association of Arbitration (JAA), Japan International Dispute Resolution Center (JIDRC), is organizing an international symposium (hybrid format) on the “Future Prospects of International Arbitration and Mediation: How does the Judiciary Assist?”.

This event could not have been more timely as the House of Councillors (the upper house of the Japanese Diet) unanimously passed and enacted into law on 21 April of this year the amendments to the Arbitration Act and the “Act for the Implementation of Settlement Agreements Resulting from Mediation” (the “Singapore Mediation Convention Implementation Act”). These enactments aim to promote international arbitration and mediation in Japan and to make Japan an attractive hub for international dispute resolution in competition with other leading centers in the region.

 

Date, Venue & Formats:

July 7 (Fri.), 2023, 9am-12:30 pm (JST)

Hotel New Otani Tokyo?ONSITE / Online?

Language: English

English-Japanese consecutive interpretation available

Program (see link below):

Keynote Speeches

Panel Sessions

Registration: free

Sign up on the Official Website of the Forums

by 6pm, JUNE 26 (Mon.) for ONSITE participation,

by noon, JULY 3 (Mon.) for Online participation

 

Details of registration and the program can be found here.

While doing research on a choice of law article, I found it necessary to consult a book generally co-edited by Professors Daniel Girsberger, Thomas Graziano, Jan Neels on Choice of Law in International Commercial Contracts (‘Girsberger et al’). The book was officially published on 22 March 2021. I began reading sections of the book related to tacit choice of law sometime in December 2022 and found the work truly global and compelling. At the beginning of June this year, I decided to read the whole book and finished reading it today. It is 1376 pages long!

To cut the whole story short, the book is the bible on choice of law in international commercial contracts. It covers over 60 countries, including regional and supranational bodies’ rules on choice of law. Professor Symoen Symeonides had previously written a single authored award winning book on Codifying Choice of Law Around the World, but that work did not cover as much as Girsberger et al’s book in terms of the number of countries,  and regional and supranational instruments (or principles) covered.

The book arose from the drafting of the Hague Principles on Choice of Law in International Commercial Contracts, headed by Professor Girsberger and commissioned by Professor Marta Partegas. The central aim of the Hague Principles is to promote party autonomy, as the Hague Principles does not touch on the law applicable in the absence of choice.

The book starts with a general comparative outline of choice of law around the world and its comparison to the Hague Principles. This outline is derived from the works of many other scholars in the book. In other preliminary chapters, there are discussions devoted to party autonomy, provenance of the Hague Principles, roadmap to promoting the Hague Principles, international commercial arbitration, and perspectives from UNIDROIT and UNCITRAL.

The essential part of the book focuses on regional and national reports of countries around the world, with a focus on comparison to the Hague Principles. The format used is consistent, and easy to follow for all the reports in this order: introduction and preamble, scope of the principles, freedom of choice, rules of law, express and tacit choice of law, formal validity of the choice of law, agreement on the choice of law and battle of forms, severability, exclusion of renvoi, scope of the chosen law, assignment, overriding mandatory rules and public policy, establishment, law applicable in the absence of choice, and international commercial arbitration.

The Hague Principles has been successful so far given the regional or supranational bodies such as Asia,[1] and Latin America[2] that have endorsed it. From 31st May to 3 June 2023, the Research Centre for Private International Law in Emerging Countries in University of Johannesburg held a truly Pan-African Conference on the African Principles on Choice of Law in International Commercial Contracts.[3] Many African scholars (including myself) and some South African government officials were present and spoke in this very successful conference. The African Principles also draws some inspiration from the Hague Principles, which involved the participation of African scholars like Professors Jan Neels and Richard Frimpong Oppong.

Girsberger et al’s book and the Hague Principles success so far may be due to the more inclusive approach it took, rather than other Hague Conventions that are not fully representative of countries around the world, especially African stakeholders.

More please.

[1] Asian Principles on Private International Law 2018.

[2] Guide of the Organization of American States on the Applicable Law to International Commercial Contracts 2019

[3] See generally JL Neels and EA Fredericks, “An Introduction to the African Principles of Commercial Private International Law”(2018) 29 Stellenbosch Law Review 347; JL Neels, ‘The African Principles on the Law Applicable to International Commercial Contracts – A First Drafting Experiment’ (2021) 25 Uniform Law Review 426, 431; JL Neels and EA Fredericks, ‘The African Principles of Commercial Private International Law and the Hague Principles’ in Girsberger et al  paras 8.09-8.11.

 

Oxford University Press officially released the recent book authored by Dr Ugljesa Grusic (Associate Professor at UCL Laws) titled Torts in UK Foreign Relations.

The book offers a comprehensive account of private international law aspects of tortious claims arising out of the external exercise of British executive authority.

Can English courts hear tortious claims for wrongs allegedly committed by British armed forces and security services during their overseas operations? Should English courts hear such claims? What law governs issues raised by such claims? Can foreign judgments given on such claims be recognised and enforced in the UK?

 

Many questions such as these have arisen in relation to cases dealing with the tortious liability of the UK government and its officials for extraterritorial public acts committed during the conflicts in Kosovo, Afghanistan, and Iraq, and the ‘war on terror’. Torts in UK Foreign Relations examines the English courts’ treatment of such issues and offers a better understanding of this contested area of private international law. It shows that a defining characteristic of such tortious claims is that they are often subjected to the choice-of-law process and lead to the application of foreign law. Further, Dr Grusic clarifies the nature of the doctrines operating in this field, maps out the relationship between different jurisdictions and rules that are engaged, and criticises the current approach to choice-of-law, while arguing that English tort law should play a more prominent role.

 

Torts in UK Foreign Relations will appeal widely to academics, practitioners, and students in the fields of private international law, foreign relations law, tort law, and public law.

 

Torts in UK Foreign Relations:

• Offers the first comprehensive account of private international law aspects of tortious claims arising out of the external exercise of British executive authority
• Segregates issues raised by such tortious claims and clarifies the principles, rules and practice that determine the law governing these issues
• Maps out the relationship between different jurisdictions and rules that are engaged
• Discusses important developments and case law affecting the field, including the Supreme Court judgments in Rahmatullah, Belhaj, Maduro and Brownlie

 

Torts in UK Foreign Relations is available to order on the OUP website.

The University of Lancaster has organised a workshop on Challenges in Contemporary International Litigation on Wednesday, 21 June 2023, 12.30 – 5 pm UK time (in person and online via Teams). Some well established and emerging experts will discuss cutting edge issues of practical significance in private international law (broadly understood).

The programme for the workshop is as follows:

12.30 pm

Welcome remarks by Dr Mukarrum Ahmed and Professor David Milman (Co-chairs – University of Lancaster)

Professor Paul Beaumont FRSE (University of Stirling), ‘HCCH Jurisdiction Project’

Professor Paul Torremans (University of Nottingham), ‘CJEU case law on Article 7.2 Brussels I Regulation and its application to online copyright cases’

Dr Kirsty Hood KC (Discussant)

1.45 pm – 3.00 pm

Professor Zheng Sophia Tang (Wuhan University), ‘The challenge of emerging technology to International litigation’

Professor Veronica Ruiz Abou-Nigm (University of Edinburgh), ‘Sustainability and Private International Law’

Dr Mihail Danov (University of Exeter), ‘Private International Law and Competition Litigation in a Global Context’

3.00 pm – 3.15 pm Break

3.15 pm – 5.00 pm

Dr Jayne Holliday (University of Stirling), ‘The non-recognition of transnational divorces’

Dr Chukwuma Okoli (University of Birmingham), ‘Implied Jurisdiction Agreement in International Commercial Contracts’

Dr Michiel Poesen (University of Aberdeen), ‘The interaction between UK private international law and liability arising out of the use of artificial intelligence’

Mr Denis Carey (University of Lancaster), ‘The Consultation on the Reform of the Arbitration Act 1996’

The workshop is free to attend, but registration is required via email. A Teams link will be provided for remote attendees.

In Yin v Wu [2023] VSCA 130, the Court of Appeal of the Supreme Court of Victoria set aside a judgment[1] which had affirmed the enforcement a Chinese judgment by an Associate Justice of the Supreme Court.[2] This was a rare instance of an Australian court considering the defence to enforcement of a foreign judgment on the basis that the judgment debtor was denied natural justice—or procedural fairness—before the foreign court.

Background

The dispute concerned a payment made by a Chinese national living in China, Di Wu, to a Chinese national living in Australia, Ke Yin. The payment was made pursuant to a foreign exchange agreement: Yin had promised to pay Wu a sum of US Dollars in exchange for Wu’s Chinese RMB.

The arrangement was made unusually through a series of Telegram and WhatsApp messages, from accounts with different numbers and aliases. (In Australia, we would say that the arrangement sounded ‘suss’.) The agreement was seemingly contrary to Chinese law, which may have contributed to the clandestine character of communications underlying the agreement; see [30].

After Wu transferred the funds—RMB ¥3,966,000—Yin denied that the full sum was received and did not transfer any sum of US Dollars to Wu. Yin eventually returned RMB ¥496,005 but not the balance of what Wu had paid. Wu went to the police on the basis he had been ‘defrauded’; they refused to act. Meanwhile, while broadcasting video under a pseudonym on Twitter, Yin suggested that his accounts had been frozen at the instigation of Wu’s cousin and with the participation of ‘communists’.

On 13 October 2017, Wu commenced a proceeding against Yin in the Ningbo People’s Court. The Court characterised the foreign exchange agreement as ‘invalidated and unenforceable’, but nonetheless provided judgment and costs to Wu for RMB ¥3,510,015 (‘Chinese Judgment’).

The Chinese Judgment recorded that: ‘[t]he defendant [Yin] failed to attend despite having been legally summoned to attend. As such, the court shall enter default judgment according to the law. … Any party dissatisfied with this judgment may, within 15 days from the date of service of the written judgment, file an appeal …’: [27].

Wu commenced enforcement proceedings in China. An affidavit in those proceedings recounted that Yin’s whereabouts were then unknown, but Yin had been served according to relevant procedure of the Chinese forum, which allowed service ‘by way of public announcement’: [31]. The ‘Public Notice’ provided as follows (see [32]):

‘In relation to the private loan dispute between the plaintiff Wu Di and defendant Yin Ke, you are now, by way of public notice, served with the Complaint and a copy of the evidence, notice to attend, notice to adduce evidence, risk reminder, summons to attend court, notice of change of procedure, civil ruling and the letter of notice. You are deemed to have been served with the said documents after sixty days from the date of this public notice.’

 

Recognition and enforcement sought in Australia

Wu filed an originating motion in the Supreme Court of Victoria, seeking an order for enforcement of the Chinese Judgment, or alternatively, reimbursement of the sum paid to Yin.

The latter and alternative order may be understood in terms of an order seeking the recognition of the obligation created by the Chinese Judgment, to be given effect through the remedial powers of the Australian forum: see Kingdom of Spain v Infrasructure Services Luxembourg S.À.R.L.  (2023) 97 ALJR 276; [2023] HCA 11, [43]–[46]; Schibsby v Westenholz (1870) LR 6 QB 155, 159.

Australia has a fragmented regime for recognition and enforcement of foreign judgments; see generally Michael Douglas, Mary Keyes, Sarah McKibbin and Reid Mortensen, ‘The HCCH Judgments Convention in Australian Law’ (2019) 47(3) Federal Law Review 420. New Zealand judgments are treated with deference under the Trans-Tasman Proceedings Act 2010 (Cth); judgments of various other jurisdictions are easily registered under the Foreign Judgments Act 1991 (Cth), where the relevant court is identified in the Foreign Judgments Regulations 1992 (Cth) on the basis of reciprocal treatment of Australian judgments in the relevant foreign jurisdiction. For other in personam money judgments, recognition and enforcement may occur pursuant to common law principles.

At common law, a foreign judgment may be recognised and enforced if four conditions are satisfied—subject to defences:

‘(a)           the foreign court must have exercised jurisdiction that Australian courts will recognise;

(b)           the foreign judgment must be final and conclusive;

(c)           there must be an identity of the parties; and

(d)           the judgment must be for a fixed sum or debt’: Doe v Howard [2015] VSC 75, [56].

Here, the Chinese Judgment was assessed according to the common law principles.

In his defence, Yin pleaded (among other things) that he was not served with the documents commencing the foreign proceeding which produced the Chinese Judgment, or any other documents relevant to the foreign proceeding while it was on foot. He also pleaded that he was unaware of the existence of the Chinese Judgment until the Australian proceeding was commenced. As an extension of that plea, Yin said that enforcement of the Chinese Judgment should be refused on the basis of public policy, or because there was a failure by the Chinese court to accord Yin natural justice: [6].

Wu sought summary judgment on the basis that Yin’s defence had no prospects of success. On 22 October 2021, summary judgment was entered in favour of Wu by an Associate Justice of the Supreme Court: Wu v Yin (Supreme Court of Victoria, Efthrim AsJ, 22 October 2021); see Wu v Yin [2022] VSC 729, [5].

The Associate Justice referred (at [33]) to Boele v Norsemeter Holding AS [2002] NSWCA 363, [28], where Giles JA of the New South Wales Court of Appeal held as follows:

‘In determining whether due notice has been given regard will be had to the notice provisions of the foreign court: for example, notification not by personal service but in accordance with the rules of the foreign court may be held to be consistent with affording natural justice even if not in accord with notice provisions of the forum (see Jeannot v Fuerst (1909) 25 TLR 424; Igra v Igra (1951) P 404; Terrell v Terrell (1971) VR 155).’

Efthrim AsJ considered that the statement in the Chinese Judgment that Yin had ‘been legally summoned to attend’ was enough to defeat the natural justice defence: [2022] VSC 729, [74]–[79]. Although the ‘public notice’ service underlying the Chinese Judgment would generally be insufficient for service within Australia under Australian law, it was considered sufficient for the purposes of overcoming the defence.

Yin appealed to the Supreme Court’s trial division on the ground (among others) that Efthrim AsJ erred in holding that Yin’s defence that he was not accorded natural justice in the Chinese proceeding had no prospect of success. Tsalamandris J rejected this ground, and Yin’s appeal: [2022] VSC 729, [124], [133]. Yin applied for leave to appeal the decision of Tsalamandris J to the Court of Appeal.

Before the Court of Appeal

The Court of Appeal overturned the decision of Tsalamandris J, granting leave to appeal and allowing the appeal on the following ground (see [79]):

Ground 1: the judge erred in upholding the associate justice’s conclusion that the defence to the enforcement claim had no real prospect of success, and in doing so erred by imposing an onus on Yin to adduce evidence about applicable Chinese law relating to service by public announcement and why that method of service had not been properly invoked in this case. Further, the judge erred by relying on the Wang affidavit [the affidavit in the Chinese enforcement proceeding, mentioned above] which was not in evidence, or not relied on by Wu, on the hearings before either the associate justice or the judge.

The Court of Appeal’s decision turned on the available evidence. Yin deposed that he was not served with any documents in connection with the Chinese proceedings. That evidence was uncontradicted: [90]. In these circumstances, ‘the associate justice and the judge erred in placing the onus on Yin to establish that there was no valid service on him by alternative means permitted by Chinese law’: [84]. Yin’s evidence raised a prima facie case that he had been denied natural justice in the Chinese proceedings: [91].

In obiter, the Court of Appeal also considered that even if it were assumed ‘that the evidence was sufficient to establish that Yin had been “legally summoned”, the evidence as a whole [did] not establish that the public notice procedure apparently adopted complied with the requirements of natural justice in the circumstances of the case’: [84]; [95].

The Court of Appeal cited (at [96]–[99])) Terrell v Terrell [1971] VR 155, which was also cited in Boele, [28]. Terrell was about a petition for divorce by an American husband who had left his wife in Australia and returned to the US. The husband obtained a decree if divorce in the US. The Australian court considered a forum statute that would give effect to foreign decrees if they would be recognised under the law of the domicile. But the statute provided that a foreign decree would not be recognised ‘where, under the common law rules of private international law, recognition of it[s] validity would be refused on the ground that a party to the marriage had been denied natural justice’; see [96].

Barber J considered that ‘natural justice’ was ‘not a term of great exactitude, but in this context probably refers to the need for the defending party to have notice of the proceedings and the opportunity to be heard’: Terrell, 157. A foreign judgment produced in circumstances where the respondent to the foreign proceedings had no notice of them or an opportunity to be heard would be amenable to a natural justice defence. Barber J considered an exception to that position, which was inapplicable in the circumstances as the husband had withheld the wife’s address from the foreign court (see Terrell, 157):

‘To this basic rule there is an exception, that where the foreign court has power to order substituted service or to dispense with service, and that power has been properly exercised upon proper material, even where the respondent was not in fact made aware of the proceedings, such proceedings cannot be held to be unjust, as similar powers are available to our courts. However, there must have been some attempt to effect personal service: Grissom v Grissom, [1949] QWN 52. Moreover, if the order for substituted service is based on a false statement that the petitioner did not know the respondent’s whereabouts, or where a false statement is made as to the respondent’s address for service, the decree will not be recognized as valid: Norman v Norman (No2) (1968) 12 FLR 39; Grissom v Grissom, supra; Macalpine v Macalpine, [1958] P35; [1957] 3 All ER 134; Brown v Brown (1963) 4 FLR 94; [1963] ALR 817;Middleton v Middleton, [1967] P 62; [1966] 1 All ER 168.

After considering Terrell and other authorities, the Court of Appeal concluded as follows (at [107]):

… even if Wu had established by admissible evidence that service of the Chinese proceeding was legally effected on Yin by some form of public notice — albeit one which did not come to Yin’s attention — the Court should not have recognised the Chinese judgment on a summary basis. This is because at the time Wu commenced the Chinese proceeding he well knew of a number of alternate means of giving notice of the proceeding to Yin, namely, by Twitter, WhatsApp and Telegram. Indeed, Wu’s case in the Chinese proceeding and in this Court was based on money paid under an alleged contract made by these means. In these circumstances, there is a case to be investigated at trial as to whether Wu informed the Chinese court of these alternative means of giving notice of the Chinese proceeding to Yin.

The Court then provided (at [108]) some helpful dicta on the future application of the natural justice defence to enforcement of foreign judgments, considering the following proposition in Nygh’s Conflict of Laws (LexisNexis, 10th ed, 2020) at 990 [40.84]:

It matters not that the forum would not have dispensed with notice in the same situation, although a line would have to be drawn somewhere as in the case where the rules of a foreign court dispensed with the need of giving a foreign defendant any form of personal notification even in peacetime.

The Court opined (at [109]):

In our view, in considering whether natural justice has been provided, modern courts should move with the times in their assessment of the sufficiency of foreign modes of service which do not aim to give defendants personal notification by the many electronic means now commonly available. Courts should draw the line and look unfavourably on modes of service by foreign courts which do not attempt to give notice by such means where a defendant’s physical whereabouts are unknown but electronic notice in some form is possible.

Yin failed on his other grounds of appeal. As the underlying decision also provided summary judgment for Wu’s restitution claim, the Court of Appeal characterised the restitution claim as separate to the enforcement claim: [111]. The Court of Appeal affirmed the decision that Yin’s defence that he did not know Wu went ‘nowhere’: [118]. Wu ultimately succeeded: he obtained summary judgment for the restitution claim, together with interest: [158].

Some takeaways

Yin v Wu provides a few insights for the natural justice defence to recognition and enforcement of foreign judgments in common law courts.

The first concerns the onus of proof. The onus of making out a defence to recognition of a foreign judgment would ordinarily fall on a defendant: Stern v National Australia Bank [1999] FCA 1421, [133].  The Court of Appeal’s decision demonstrates how burdens may shift in the practical operation of private international law in the context of litigation. (On the difference between legal and evidentiary burdens, and how they may shift, see Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27.) Once Yin had produced evidence he was not served, it was up to Wu to contradict that evidence. The omission may be understood on the basis that the underlying decision was one for summary judgment.

Second, the decision is notable for framing enforceability in terms of a natural justice defence rather than in terms of the first criterion for recognition or enforcement: ‘the foreign court must have exercised jurisdiction that Australian courts will recognise’. This element is often framed as a requirement of ‘international jurisdiction’. Yin was not within the territorial jurisdiction of the Chinese court at any relevant time, and nor did he submit to the foreign court. International jurisdiction was seemingly predicated on Yin’s nationality. Arguably, this is insufficient for recognition and enforcement at common law in Australia (but see Independent Trustee Services Ltd v Morris (2010) 79 NSWLR 425, cf Liu v Ma (2017) 55 VR 104, [7]). The focus on natural justice defence rather than international jurisdiction would be a product of how the parties ran their cases.

Third, although the Court of Appeal allowed the appeal as regards the natural justice defence, the judgment supports the orthodox view that this defence should have a narrow scope of operation. As Kirby P opined in Bouton v Labiche (1994) 33 NSWLR 225, 234 (quoted at [73]), courts should not be ‘too eager to criticise the standards of the courts and tribunals of another jurisdiction or too reluctant to recognise their orders which are, and remain, valid by the law of the domicile’. Australian courts provide for substituted service in a variety of circumstances; it would be odd if a foreign court’s equivalent procedure was held to engage the natural justice defence.

Finally, the case serves as a warning for litigants seeking to enforce a judgment of a Chinese court in Australia: relying purely on the ‘public notice’ mechanism of the Chinese forum, without taking further steps to bring the proceeding to the attention of the defendant, may present problems for enforcement. The same can be said for transnational litigation in any jurisdiction that does not require ‘personal service’ in the sense understood by common law courts.

Dr Michael Douglas is Senior Lecturer at the University of Western Australia and a Consultant at Perth litigation firm, Bennett.

 

[1] Wu v Yin [2022] VSC 729 (Tsalamandris J).

[2] Wu v Yin (Supreme Court of Victoria, Efthrim AsJ, 22 October 2021).

This note has been kindly provided by Dr. Samuel Vuattoux-Bock, LL.M. (Kiel), University of Freiburg (Germany).

On 8 June 2023, the Swiss Federal Supreme Court (Bundesgericht) pronounced a judgment on the removal of gender markers of a person according to German Law and denied the recognition of this removal in Switzerland.

Background of the judgment is the legal and effective removal 2019 of the gender information of a person with swiss nationality living in Germany. Such removal is possible by a declaration of the affected person (accompanied by a medical certificate) towards the Registry Office in accordance with Sect. 45b para. 1 of the German Civil Status Act (Personenstandsgesetz, PStG). The claimant of the present judgment sought to have the removal recognized in Switzerland and made a corresponding application to the competent local Swiss Office of the Canton of Aargau. As the Office refused to grant the recognition, the applicant at the time filed a successful claim to the High Court of the Canton of Aargau, which ordered the removal of the gender markers in the Swiss civil and birth register.

The Swiss Federal Office of Justice contested this decision before the Federal Supreme Court. The highest federal Court of Switzerland revoked the judgment of the High Court of the Canton of Aargau and denied the possibility of removing gender information in Switzerland as it is not compatible with Swiss federal law.

According to Swiss private international law, the modification of the gender indications which has taken place abroad should be registered in Switzerland according to the Swiss principles regarding the civil registry (Art. 32 of the Swiss Federal Act on the Private International Law, IPRG). Article 30b para. 1 of the Swiss Civil Code (ZGB), introduced in 2022, provides the possibility of changing gender. The Federal Supreme Court notes that the legislature explicitly refused to permit a complete removal of gender information and wanted to maintain a binary alternative (male/female). Furthermore, the Supreme Court notes that the legislature, by the introduction in 2020 of Art. 40a IPRG, neither wanted to permit the recognition of a third gender nor the complete removal of the gender information.

Based on these grounds, the Federal Supreme Court did not see the possibility of the judiciary to issue a judgment contra legem. A modification of the current law shall be the sole responsibility of the legislature. Nevertheless, the Supreme Court pointed out that, due to the particular situation of the affected persons, the European Court of Human Rights requires a continual review of the corresponding legal rules, particularly regarding social developments. The Supreme Court, however, left open the question of whether the recognition of the removal of gender information could be a violation of Swiss public policy. The creation of a limping legal relationship (no gender marker in Germany; male or female gender marker in Switzerland) has not been yet addressed in the press release.

Currently, only the press release of the Federal Supreme Court is available to the public (in French, German and Italian). As soon as the written grounds will be accessible, a deeper comment of the implications of this judgment will be made on ConflictOfLaws.

This year’s annual meeting of the German Branch of the International Law Association will take place at the Goethe-University in Frankfurt (Main) on Friday, 7 July 2023. The subject will be “Regional Developments in International Law in Africa and Latin America”. The list of distinguished speakers includes Prof. Dr. Thoko Kaime, University of Bayreuth, Alan Diego Vogelfanger, LL.M., University of Bonn/Universidad de Buenos Aires, Kholofelo Kugler, LL.B., M.A., University of Lucerne (Switzerland), and Priv.-Doz. Dr. Jan Peter Schmidt, Max-Planck-Institute for Comparative and International Private Law. The full program can be found here. For registration, please click here. A passive attendance via Zoom will be possible.