Conflictoflaws

On 9 September 2022, the Max Planck Institute for Procedural Law Luxembourg hosted a conference on the Brussels Ibis Reform, in collaboration with the KU Leuven and the EAPIL.

The Brussels Ibis Regulation is certainly the fundamental reference-instrument of cross-border judicial cooperation in civil matters within the European Union. Since its establishment in 1968, it has been constantly evolving. At present, the European Commission is required to present a report on the application of the Regulation and to propose improvements. Against this background, a Working Group was set up within the network of the European Association of Private International Law (EAPIL) to draft a position paper. The group is led by Burkhard Hess (MPI Luxembourg) and Geert van Calster (KU Leuven). Members of the working group answered a questionnaire, reporting the application and possible shortcomings of the Brussels Ibis Regulation in their respective jurisdictions.

The topics of the conference were based on the 19 reports that were received from 16 working group members and 3 observers. Additional experts presented topics ranging from insolvency proceedings to third state relationships. The aim of the conference is to prepare a position paper. The paper will be presented to the European Commission to advise it on the evaluation process. EAPIL Members are invited to join the Members Consultative Committee (MCC) of the EAPIL Working Group on reforming Brussels Ibis.

After welcome notes by Burkhard Hess (MPI Luxembourg), Andreas Stein (Head of Unit, DG JUST – A1 “Civil Justice”, European Commission European Commission, connected via Video from outside), Gilles Cuniberti (University of Luxemburg/EAPIL) and Geert van Calster (KU Leuven), the first panel, chaired by Marie-Élodie Ancel, Paris, focused on the role and scope of the Brussels Ibis Regulation in European Procedural Law. Dário Moura Vicente, Lisbon, highlighted the Regulation’s indispensable function as a “backbone” of European civil procedural law, reaching far beyond civil and commercial matters into e.g. family law, in order to increase consistency. Room for improvement in this respect was identified, inter alia, for the definition of the substantive scope, in particular in relation to arbitration, the subjective or personal scope, in particular in relation to third state domiciled defendants, and for coordinating the relationships with other instruments such as the GDPR. Following up on the latter aspect, Björn Laukemann, Tübingen, analysed the delineation of the Regulation and the European Insolvency Regulation with a view to annex actions and preventive restructuring proceedings. No imminent need for textual reform was seen for the former, whereas for the latter suggestions for amendments of the Recitals were submitted. Vesna Lazic, Utrecht/The Hague, discussed the controversial judgment of the ECJ in London Steamship that certainly put again on the table the question whether the arbitration exception of the Regulation should be drafted more precisely. Whereas some argued that the large differences in the arbitration laws of the Member States would not allow any unifying approach based on notions of mutual trust, others held that there was some sense in the ECJ’s attempt not to get blocked the Spanish judgments in the UK via arbitration. As to the suggestion of a full-fledged European Arbitration Regulation, one reaction was that this might result in unintended consequences, namely exclusive external competence by the EU on arbitration. Further, the question came up whether in light of the ECJ’s judgment in London Steamship its earlier decision in Liberato should be rectified in the reform. In Liberato, the ECJ held that a violation of the lis pendens rules of the Regulation does not amount to a ground for refusal of recognition whereas in London Steamship the Court held that the lis pendens rules formed part of the fundamental principles of the Regulation to be respected under all circumstances. Speaking of lis pendens, another question in the discussion was whether a backbone instrument like the Brussels Ibis Regulation would or should allow de lege lata transferring certain core elements, such as the rules on lis pendens, to other instruments without any rules on lis pendens, such as the European Insolvency Regulation. The ECJ in Alpine Bau GmbH had rejected the application of Article 29 Brussels Ibis Regulation by way of analogy, as it considered the EIR as a special and distinct instrument of its own kind, so the question was whether analogies from the “backbone” should be encouraged expressly where appropriate in the concrete constellation.

The second panel, chaired by Burkhard Hess, dealt with collective redress. François Mailhé, Picardy, Stefaan Voet, Leuven, and Camelia Toader, Bucharest, discussed intensely the cross-border implications of the new Representative Actions Directive, in particular the potential need for specific heads of jurisdiction, as the Directive was described as subtly seeking to encourage pan-European actions but at the same time leaves a number of options to the Member States. Obviously, this means that provision and allocation of – ideally one-stop – jurisdiction would be of the essence, e.g. by extending the forum connexitatis of Article 8 (1) Brussels Ibis Regulation to connected claimants, possibly even for third state domiciled claimants. However, concerns were formulated that the Brussels Ibis Regulation should not be “politicized” (too strongly). In addition, the importance of other aspects were highlighted such as coordinating and consolidating proceedings, the delineation of settlements and court judgments in respect to court-approved settlements (probably to be characterised as judgments) and the essential role of funding. The overall tendency in the room seemed to be that one should be rather careful with (at least large-scale) legislative interventions at this stage.

The third panel, chaired by Thalia Kruger, Antwerp, focused on third state relations. Chrysoula Michailidou, Athens, discussed potential extensions of heads of jurisdiction for third state domiciled defendants, in particular in respect to jurisdiction based on (movable) property and a forum necessitatis. Alexander Layton, London, focused on the operation of Articles 33 and 34 and reiterated the position that discretion of the court to a certain extent was simply inevitable, also in a distributive system of unified heads of jurisdiction, as it is provided for e.g. in these Articles, in particular by the tool of a prognosis for the chances of recognition of the future third state judgment (“Anerkennungsprognose”) in Article 33(1) lit. a and Article 34(1) lit. b, and by the general standard that the later proceedings in the Member State in question should only be stayed if the Member State court is satisfied that a stay is necessary for the proper administration of justice (Articles 33(1) lit. b and 34(1) lit. c). Further, the question was posed why Articles 33 and 34 would only apply if the proceedings in the Member State court are based on Articles 4, 7, 8 or 9, as opposed to e.g. Articles 6(1) and sections 3, 4 and 5 of Chapter II. The author of these lines observed that relations to third states should be put on a consistent basis including all aforementioned aspects as well as recognition and enforcement of such judgments. Further, need for clarification, e.g. in the respective Recitals, was identified for the question whether there is an implicit obligation of the Member State courts not to recognize third state judgments that violate Articles 24, 25 and the said sections 3, 4 and 5 of Chapter II. This could be framed as a matter of the Member States’ public policy, including fundamental notions of EU law (see ECJ in Eco Swiss on another fundamental notion of EU law as an element of the respective Member State’s public policy). The central point, however, was the suggestion to correct the latest steps in the jurisprudence of the ECJ towards allowing double exequatur, if a Member State’s lex fori provides for judgments upon foreign judgments (see ECJ in H Limited). Options for doing so would be either adjusting the relevant Recitals, 26 and 27 in particular, or the definition of “judgment” or inserting another specific ground for refusal outside the general public policy clause, thereby in essence restating the principle of “no double exequatur” within the mechanics of the Regulation as understood by the ECJ, or limiting the effects of a judgment upon judgments for the purposes of the Brussels system, a method (altering the effects of a judgment under its lex fori) employed by the ECJ in Gothaer Versicherung in respect to other effects of a judgment from a Member State court, or, finally, by introducing an entire set of rules on the recognition and enforcement of third state judgments. In the latter case, all measures would have to be coordinated with the latest and fundamental development within the EU on third state judgments, namely the (prospective) entering into force of the HCCH 2019 Judgments Convention on 1 September 2023. Anyone who is interested in what this Convention could offer should feel warmly invited to participate and discuss, inter alia, the interplay between the Brussels and the Hague systems at the Bonn / HCCH Conference on 9 and 10 June 2023.

The next panel, chaired by Geert van Calster, related to certain points on jurisdiction and pendency to be reformed. Krzystof Pacula, Luxemburg, discussed Articles 7 no. 1 and no. 2 and, inter alia, suggested abstaining from a general reformulation of these heads of jurisdiction but rather opted for concrete measures for improving the text in light of lines of case law that turned out to be problematic. Problems identified were, inter alia, the delineation of the personal scope of Article 7 no. 1 in light of the principle of privity of contracts (“Relativität des Schuldverhältnisses”) and the concurrence of claims under Article 7 no. 1 and no. 2. In this regard, it was discussed whether both of these heads should allow to assume annex competence in regard to each other. Marta Requejo Isidro, Luxemburg, discussed the intricate interplay of Article 29 and 31 and, inter alia, considered increased obligations of the two Member State courts involved to coordinate conclusively the proceedings, for example by inserting certain time limits and, in case only the non-designated court is seized, powers to order the parties to institute proceedings at the designated court within a certain time limit. Otherwise the court seized should decline jurisdiction finally. Victória Harsági, Budapest, discussed the implications of the judgment of the ECJ in Commerzbank in respect to balancing consumer protection with foreseeability when the consumer, after a Lugano Convention State court has been seized with the matter, transferred its domicile to another (Lugano Convention) State, thereby creating the only international element of the case. Burkhard Hess dealt with reforming Article 35 of the Brussels Ibis Regulation after the ECJ in Toto and observed that there was no express hierarchy between measures under that Article and measures by the court of the main proceedings, and the Court did not infer any such hierarchy in its decision. The suggestion, therefore, was to think about introducing express coordination, be it along the lines of Rules 202 et seq. of the 2020 European Model Rules of Civil Procedure, be it along those of Article 6(3) of the 2022 Lisbon Guidelines on Privacy (on these see here and here), be it along those of Article 15 (3) Brussels IIter Regulation. Good reasons for the latter approach were identified, and this led back to the fundamental question to what extent the notion of a coherent “Brussels system” might allow even de lege lata not only to apply concepts from the Brussels Ibis Regulation, the “backbone” of that system, to other instruments by analogy, but also vice versa from the latter instruments to the former.

The last panel started with a submission by Gilles Cuniberti, Luxemburg, to remove Article 43, based on a number of reasons, as the Brussels I Recast aimed at removing “intermediate measures” such as exequatur, which rendered it inconsistent to uphold the intermediate measure foreseen in Article 43 – service of the certificate of Article 53 upon the judgment debtor. This was held to be all the more so, as this measure would primarily protect the debtor, already adjudged to pay, to an unjustifiable degree. Marco Buzzoni, Luxemburg, discussed the adaptation of enforcement titles under Article 54, a provision that was held to be one of the major innovations of the last Recast but turned out to be of little practical relevance. A similar provision had been proposed in the preparatory works for the HCCH 2019 Judgments Convention (February 2017 Draft Convention, Article 9), but was ultimately dropped, as opposed to the 2022 Lisbon Guidelines on Privacy (see its Article 12(2) Sentence 2). Vesna Rijavec, Maribor (unfortunately unable to attend for compelling reasons, but well represented by the chair, Geert van Calster) presented proposals on refining Articles 45(1) lit. c and d, mainly arguing that these should connect to pendency (as had already been proposed by the Heidelberg Report for the Recast of the Brussels I Regulation).

An overall sense of the conference was that no radical revolutions should be expected in the forthcoming Recast, which should be taken as another sign for the overall success of the backbone of the Brussels system, but that there was quite some room for specific and well-reasoned improvements. The conference contributed to preparing these in a truly excellent and inspiring way and in outstanding quality.

The University of Lagos Law Review (“Unilag Law Review”) in its 2022 issue recently published articles on Nigerian law. One of the articles is focused on conflict of laws:

P Oladimeji, “Simplifying the Doctrine of Renvoi under Conflict of Laws”

The doctrine of Renvoi is a topic in Conflict of Laws that posits a stumbling block, more often than anticipated, to students of the academic discourse trying to understand the scope of Conflict of Laws and how the framework of this topic applies in international matters. As such, this paper is an effort by the writer to simplify the tenets of the doctrine of Renvoi, its applicability, and its suppositions as reflected by scholars of English jurisprudence who dealt extensively with the doctrine at the time of its inception in the early 20th century. The paper begins with an introduction to the doctrine of Renvoi and its meaning per Private International Law; and then proceeds to distil the doctrine further by looking at the theories concocted by early scholars of its discourse as to its functionality in law. This paper also looks at the often quoted types of Renvoi and simplifies the difference(s) between these types as much as possible. Following this, the paper analyses the challenges brought to bear by the application of Renvoi in international matters – challenges that have led to rising arguments for and against the application of the doctrine as is.

Thanks to Costanza Honorati and Laura Carpaneto for the tip!

The Practice Guide on the Brussels IIb Regulation (Regulation 2019/1111) has been published on the site of the European Judicial Network in Civil and Commercial Matters (EJN) – scroll to the bottom.

The Guide was written by Boriana Musseva under a contract between the European Commission and Milieu Consulting. It uses the name Brussels IIb (presumably the Commission’s preferred nomenclature) even though some authors also use Brussels IIter. The Guide is still being translated in the other EU languages and will then also be published with the other information that the Commission provides on the European Judicial Atlas.

Here is the direct link to the Practice Guide for the application of the Brussels IIb Regulation.

A volume titled “Cross-Border Litigation in Central Europe: EU Private International Law Before National Courts” and edited by Csongor István Nagy (University of Szeged, Hungary & Center for Social Sciences, Budapest) has recently been published by Kluwer. It was and authored by Katazyna Bogdzevic, Pavle Flere, Lucia Gandzalova, Justyna Gumula-Kedracka, Tena Hosko, Monika Jagielska, Elena Judova, Inga Kacevska, Wojciech Klyta, Vadim Mantrov, Csongor István Nagy, Gabor Palasti, Dora Zgrabljic Rotar, Magdalena Sobas, Janos Szekely, Dace Trupovniece, Jiri Valdhans, Emod Veress, Lucie Zavadilova. The book provides a detailed understanding of the process of seeking justice in cross-border disputes in Central Europe and a comprehensive and exhaustive presentation of the case law in 10 Central European Member States (Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, and Slovenia). It is the first of its kind to offer a comprehensive and analytical overview of the judicial practice in the region. More information on the book, its content and contributors is available here.

The book is a product of the multi-year EU-funded CEPIL project (“Cross-Border Litigation in Central-Europe: EU Private International Law before National Courts”, 800789 — CEPIL — JUST-AG-2017/JUST-JCOO-AG-2017), which was based on the cooperation of six universities (University of Szeged, Hungary, Masarykova univerzita, Czech Republic, Sveu?ilište u Zagrebu, Croatia, Universitatea Sapientia din municipiul Cluj-Napoca, Romania, Univerzita Mateja Bela v Banskej Bystrici, Slovakia, Uniwersytet ?l?ski, Poland). The CEPIL project inquired whether EU private international law functions optimally in the Central European Member States to secure a Europe of law and justice and whether EU private international law instruments are applied correctly and uniformly. It analyzed whether national courts deal appropriately with disputes having a cross-border element and whether the current legal and institutional architecture is susceptible of securing legal certainty and an effective remedy for cross-border litigants. More information on the project is available here.

The current issue of Lex & Forum explores the existing status of Private International Law & the Internet, and tries to map out solutions and proposals for the future.

The issue benefits from the privilege of hosting papers of two worldwide leading figures in the area of private international law: Professor Dan Svantesson is sharing his insightful conclusions about the current state of the interplay between Private International Law & the Internet and, also, points at the critical problems that need to be addressed in order to secure a better digital future. In doing so, he sets the tone of the entire issue. At the same time, Professor Symeon Symeonides offers a fascinating account of a much needed international coordination effort. After explaining the current status of addressing internet related personality infringemetns accross different jurisdictions, Prof. Symeonides focuses on the initiative of the Institut de Droit International (IDI), which at its 79th biennial session adopted a critical Resolution on internet related personality infringements and Private International Law. Prof. Symeonides explains vividly how this transnational initiative improves over existing regional approaches and offers great insights on its history, rationale and development.

The papers of Prof. Svantesson and Prof. Symeonides are accompanied by that of Professor Ioannis Deliskostopoulos, University of Athens, who offers an excellent account of how the CJEU has been dealing with the challenge of personality related internet disputes. Trying to address future challenges, a second family of papers focused on blockchain based issues. Dr. Ioannis Revolidis, Lecturer at the University of Malta, contributes a primer on International Jurisdiction and the Blockchain, by exploring the unique characteristics of blockchain based systems and by extending his analysis on the so-called Non Fungible Tokens. Dr. Nikolaos Zaprianos puts the challenge of smart contracts into perspective, offering an excellent account about the limits of automation in contractual relationships, while Dr. Konstantinos Voulgarakis monitors the impact of cryptoassets in capital markets and the ensuing private international law challenges. All the aforementioned papers have been presented during a webinar hosted by Lex&Forum on May 13 2022 (youtube.com/watch?v=84wCNVyWXPA&t=652s, accessed 3.9.2022).

The analysis of the relation between Private International Law & the Internet in the current issue of Lex&Forum is concluded with the Praefatio authored by another leading expert in the area, Prof. Gerald Spindler from the University of Göttingen/Germany. The title of it reads as follows: “The Internet and other emerging technologies within the EU and international legal order – aspects of conflicts of laws and international civil procedure”.

At the same time, the Judge of the Court of Appeal Mr. Ioannis Valmantonis has provided a comment on the decision of the CJEU in Gtflix v DR, while Dr. Apostolos Anthimos contributes his views on two Greek court decisions on the refusal of recognition and enforcement of arbitral awards ordering payment in bitcoin (Court of Appeal Western Central Greece 88/2021 and Court of First Instance of Agrinio, Single Chamber, 193/2018). Lastly, Dr. Evangelos Ziakas contributes a paper on the mosaic approach of the CJEU on internet related personality disputes.

Lex&Forum will return with a new issue, which will be focusing on the relationship of the EU Private International Law acquis with cases including third country elements.

The Centre for Studies and Research in International Law and International Relations Series at Brill has just issued its 23rd volume, edited by Hannah Buxbaum.

The Centre for Studies and Research in International Law and International Relations of the Hague Academy of International Law is designed to bring together highly qualified young international lawyers from all over the world, to undertake original research on a common general theme which is determined annually by the Curatorium of the Academy. The Centre is sub-divided in an English-speaking and French-speaking section. The research undertaken at the Centre is published in a collective volume containing the reports of the Directors and the best contributions from the participants. In 2019, the Director was Hannah Buxbaum, and her fascinating cross-over topic was „extraterritoriality“.

The blurb reads as follows: „Extraterritoriality is a challenging concept as a matter of international law and policy, raising fundamental questions about the allocation of power among States. It is also a dynamic concept, reflecting and responding to shifts in the global economy, patterns of human behavior, and understandings of state sovereignty.“

Following the Reports of the Directors of Studies, no less than 20 chapters explore the notion and implications of extraterritoriality, either in French or in English language, such as e.g. the first Chapter by Buxbaum herself  on “The Practice(s) of Extraterritoriality” (for an SSRN preprint see here), “(Il)licéités et (dé)mesures de l’extraterritorialité”, several Chapters on historical aspects, “Objects and Subjects of Extraterritorialité”, “Extraterritorialité within the Framework of the EU” and other regional organisations, as well as aspects of extraterritoriality in certain areas of law such as in criminal law, cybersecurity, human rights, environmental law, outer space, data protection etc. “Throughout, the volume recognizes extraterritoriality as an expansive concept used to assess both the actions and the obligations of states within the international arena”, the blurb further explains.

Thus, the volume connects private and public international law perfectly and also includes interdisciplinary input. It thereby represents the spirit of the Hague Academy’s Centre for Studies and Research at its best. Highly recommended!

A similarly promising project is currently ongoing at the Centre: “Climate Change and the Testing of International Law” from 22 August – 9 September 2022.

 

The second issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Costanza Honorati, Professor at the University Milan-Bicocca, Giovanna Ricciardi, Doctoral candidate at the University Milan-Bicocca, Violenza domestica e protezione cross-border (Domestic Violence and Cross-Border Protection) [in Italian]

Domestic violence has drawn increasing attention both from the lawmaker and legal scholars. Legal means to prevent domestic violence and protect women have been promoted and implemented at the national and supranational levels. This article concentrates on seeking and enforcing civil protection measures in cross-border family conflicts. Protective measures are often sought and taken in the State where the prospective victim (and often also the tortfeasor) is habitually resident. PIL issues are however rarely addressed. Regulation (EU) No 606/2013 on mutual recognition of protection measures in civil matters provides a useful instrument when the need for recognition and enforcement in a different Member State arises at a later stage. Less dealt with is the issue of selecting an appropriate ground for jurisdiction, which is not governed by the mentioned Regulation. The latter issue becomes especially relevant in the very peculiar case of protection measures to be issued in the so-called State of refuge when a mother challenges a situation of domestic violence as a ground for leaving the State of a child’s habitual residence and searches for protection elsewhere. The interplay between domestic violence and abduction cases, a situation quite frequent in practice but rarely addressed in legal literature, is further explored and dealt with.

Ilaria Viarengo, Professor at the University Milan, The Coordination of Jurisdiction and Applicable Law in Proceedings Related to Economic Aspects of Family Law

This article addresses the complex features and problems arising from the combined application of all European and international instruments dealing with divorce and the economic aspects of family law. The need to avoid litigation proceedings in different jurisdictions, entailing the duplication of proceedings and costs and the need to have divorce and all the financial aspects governed by the same law are of central importance from a practical point of view. This article provides an analysis of whether and to what extent these two needs can be satisfied with the combined application of the EU family law regulations at issue. Firstly, it deals with some general issues whose solution could have an impact on the coordination among all these instruments. Consequently, it examines the interplay among rules on jurisdiction and applicable law, including the role of party autonomy in pursuing coordination.

The following comment is also featured:

Curzio Fossati, Doctoral candidate at the University of Insubria, La residenza abituale nei regolamenti europei di diritto internazionale privato della famiglia alla luce della giurisprudenza della Corte di giustizia (Habitual Residence in EU Private International Law Regulations in Family Matters in View of the Case-Law of the Court of Justice) [in Italian]

This article deals with the concept of habitual residence, which is in widespread use in the EU Regulations in the field of family law. Firstly, the article gives an overview of these Regulations, and then it analyses the case-law of the CJEU on the criterion of habitual residence referred to children, deceased persons, and spouses. The contribution examines two fundamental elements of the concept of habitual residence identified both by CJEU and scholars: the objective element, i.e. a sufficiently stable presence of a person in a Member State, and the subjective element, i.e. the intention of the person concerned to establish the permanent or habitual centre of his or her interests in that place. The article also tries to identify the most suitable method of interpretation of the concept of habitual residence and, in particular, it investigates which approach is more desirable between a uniform approach (which fosters a uniform definition of habitual residence in EU law) and a functional one (which implies an interpretation that takes into account the aim of the disposition in which the concept is used). Ultimately, the Author endorses the solution adopted by the CJEU in the IB case, which combines the aforementioned approaches.

Finally, this issue features the following book review by Cristina M. Mariottini, Senior Research Fellow at the Max Planck Institute Luxembourg for Procedural Law: Henry Deeb GABRIEL, Contracts for the Sale of Goods – A Comparison of U.S. and International Law, 3rd ed., Oxford University Press, Oxford, 2022, pp. v-401.

Carlos Santaló Goris, Research Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers an analysis of the reform recently approved in Luxembourg concerning the functioning of the information mechanism of the Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”). The EAPO Regulation and other EU civil procedural instruments are the object of study in the ongoing EFFORTS project, with the financial support of the European Commission. 

The EAPO Regulation introduced the first European civil interim measure that permits, as its name indicates, the provisional attachment of the debtors’ bank accounts in cross-border civil and commercial claims. Besides the temporary attachment of debtors’ funds, it also contains a special tool to search for the bank accounts containing those funds. This information mechanism is perhaps one of the main appeals of the EAPO. It has even inspired some national legislatures, for instance, the French one, to improve their domestic mechanisms to trace debtors’ assets in civil proceedings. Nonetheless, access to the EAPO’s information mechanism is more limited than access to the EAPO itself. Whereas creditors without a title can apply for an EAPO, they cannot submit a request to search for debtors’ bank accounts. This option is limited to creditors with a title, whether the title is enforceable or not.

Article 14 of the EAPO Regulation sets up the basic structure of the information mechanism. Provided creditors satisfy the necessary prerequisites to ask for the investigation of the debtors’ bank accounts, the court which examines the EAPO application sends a request for information to the Member State where the bank accounts are located. There, an information authority would be in charge of searching for debtors’ bank accounts and giving an answer to the requesting court.

The EAPO Regulation gives the Member States broad discretion in implementing the mechanism to investigate the debtors’ bank accounts. Article 14 only suggests three different methods that the Member States can choose to search the information about the debtors’ bank accounts. The first one consists of asking all the banks in the territory of the requested Member State to disclose whether they have the debtors’ bank accounts (Art. 14(5)(a) EAPO Regulation). According to the second method, the information about the debtors’ bank accounts is retrieved from the registries held by public administrations (Art. 14(5)(b) EAPO Regulation). Finally, according to the third method, courts may “oblige the debtor to disclose with which bank or banks in its territory he holds one or more accounts” (Art. 14(5)(c) EAPO Regulation).  The request to disclose the information is “accompanied by an in personam order by the court prohibiting the withdrawal or transfer” by the debtor “of funds held in his account or accounts up to the amount to be preserved by the Preservation Order” (Art. 14(5)(c) EAPO Regulation). This list of methods is not exhaustive, and the Member States are allowed to opt for any other method as long as it is “effective and efficient” and “not disproportionately costly or time-consuming” (Art. 14(5)(d) EAPO Regulation).

At the Luxembourgish domestic level, the EAPO information mechanism represented a major innovation. The Luxembourgish civil procedural system lacks an equivalent national tool to investigate debtors’ bank accounts. Therefore, the EAPO’s mechanism became (and still is) the only tool to trace debtors’ bank accounts during a civil procedure in Luxembourg. When a creditor requests a national provisional attachment order (saisie-arrêt), but ignores in which bank the debtors’ accounts are located, the attachment order must be sent to all the banks where those accounts may be held. The more banks the saisie-arrêt is sent to, the higher the chances of freezing the debtors’ funds. Such “fishing expeditions’ are costly. The saisie-arrêt is served to the banks through a bailiff (huissier). The more banks the saisie-arrêt is sent to, the higher the fee that the bailiff will charge.

Luxembourg appointed its national financial authority, the Commission de Surveillance du Secteur Financier (“CSSF”), as its national information authority for the EAPO information mechanism. In contrast to the costly “fishing expeditions” of the saisie-arrêt, the CSSF does not charge any fees for obtaining information about the debtors’ bank accounts.

The CSSF searches for the bank accounts by requesting that all the banks or branches of foreign banks operating in Luxembourg disclose if they hold the debtors’ accounts (Art. 14(5)(a) EAPO Regulation). Until September 2022, this request was sent by regular mail to all those entities. Banks were given 20 days to reply to the CSSF. Those 20 days, plus the time it takes to send the request by mail to the banks and receive their answers, explain why it takes at least one month until the CSSF can reply to the court which submitted the original information request.

However, from 1 September 2022, the request for information is sent through an online platform, the Guichet numérique eDesk (Circulaire CSSF 22/819). Banks operating in Luxembourg are required to join this platform. Thanks to this reform, the CSSF will be able to obtain information about the debtors’ bank accounts faster. It also ensures better monitoring of the answers provided by the banks. Overall, this reform enhances the functioning of the EAPO’s information mechanism at the Luxembourgish level and is in line with the EAPO Regulation, which favours the swift transmission of documents (Recital 24 Regulation).

 

 

On Tuesday, September 20, 2022, the Hamburg Max Planck Institute will host its 25th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. -12:30 p.m. (CEST). Prof. Hisashi Harata (University of Tokyo) will speak, in English, about the topic

“Foreign-Corporation Regulations and Private International Law: With a Case Study on Derivative Action”.

The globalization of enterprise organization as well as activities causes more serious labour issues, environmental issues, human rights issues and so on. The corporate law rules on duties and responsibilities of corporate directors are regarded as a tool for corporate governance and
compliance.
Based on the current position for the lex incorporationis as well as the internal-affairs doctrine, the breach of duties and responsibilities of directors and the shareholder’s standing for derivative action would be ruled by the lex incorporationis, except for the application of overriding mandatory rules of lex fori.
However, the existence of foreign-company regulations in different jurisdictions like California, New York, Hongkong, Netherland etc. might lead us to a theoretical reflection, as they could impose regulations severer than lex incorporationis on directors and there is no room for such regulations of third countries other than lex incorporationis and lex fori to be applied within the conventional framework of P.I.L.
This presentation will shed lights on this theoretical issue, introducing practical case-study analysis on derivative action, and suggest several problematic points to be tackled in further studies.

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.

by JProf. Dr. Katharina Kaesling, LL.M. (College of Europe)

Proposals for conference presentations and short presentations at the fourth conference for young German-speaking scholars in private international law (“IPR-Nachwuchstagung”) in February 2023 can be submitted until 12th September 2022.

The organisers are welcoming all contributions by young scholars that deal with the theme of the conference “Deference to the foreign – empty phrase or guiding principle of private international law”. The call for papers and further information can be found on the conference website.

Although the conference will mainly be held in German, English proposals and presentations are also most welcome.

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/)

 

J. Richter: Cross-border service of writs of summons according to the revised EU Service Regulation

The service of judicial documents, particularly the service of writs of summons, is of central importance in civil proceedings. In cross-border proceedings, service of legal documents poses particular problems, which are addressed by the European Regulation on the Service of Documents. The revision of this regulation, which will enter into force on 1 July 2022, provides an opportunity to examine the current and future rules by taking the example of the international service of writs of summons.

 

G. van Calster: Lex ecologia. On applicable law for environmental pollution (Article 7 Rome II), a pinnacle of business and human rights as well as climate change litigation.

The European Union rules on the law that applies to liability for environmental damage, are an outlier in the private international law agenda. EU private international law rules are almost always value neutral. Predictability is the core ambition, not a particular outcome in litigation. The rules on applicable law for environmental damage, contained in the Rome II Regulation on the law that applies to non-contractual obligations, are a clear and considered exception. Courts are struggling with the right approach to the relevant rules. This contribution maps the meaning and nature of those articles, their application in case-law, and their impact among others on business and human rights as well as climate change litigation.

 

M. Castendiek: “Contractual” rights of third parties in private international law

Although contractual rights are usually limited to the parties, almost all jurisdictions in Europe recognize exceptions of this rule. Whereas those “contractual” rights of third parties are strictly limited in common law countries, German and Austrian Law even extend contractual duties of care on third persons related to the parties. Prior to the Rome Regulations, the conflict-of-law judgments on those “contracts with protective effect in favour of third parties” differed between German and Austrian courts.

The article points out that a consistent jurisdiction on this issue needs a clear distinction between contractual and non-contractual rights even between the parties of the contract. It points out that the Regulation Rome I covers only obligations that would not exist without the contract. Those obligations remain contractual even if they entitle a third party.

“Contractual” duties of care corresponding with negligence in tort, on the other hand, fall within the scope of the Regulation Rome II. For the contracting parties as well as for third parties, the conflict-of-laws in claims following the disregard of such duties is determined by the application of Article 4 Regulation Rome II. The article provides criteria to determine whether the close connection rule in Article 4(3) Regulation Rome II can lead to the application of the law governing the contract.

 

C. von Bary: News on Procedural Consumer Protection from Luxemburg: Consumer Status and Change of Domicile

In two recent decisions, the CJEU continues to refine the contours of procedural consumer protection in cross-border disputes. In the case of a person who spent on average nine hours a day playing – and winning at – online poker, the court clarified that factors like the amount involved, special knowledge or the regularity of the activity do not as such lead to this person not being classified as a consumer. It remains unclear, however, which criteria are relevant to determine whether a contract is concluded for a purpose outside a trade or profession. Further, the CJEU stated that the relevant time to determine the consumer’s domicile is when the action is brought before a court. This seems to be true even if the consumer changes domicile to a different member state after the conclusion of the contract and before the action is brought and the seller or supplier has not pursued commercial or professional activities or directed such activities at this member state. This devalues the relevance of this criterion to the detriment of the professional party.

 

W. Voß: The Forum Delicti Commissi in Cases of Purely Pecuniary Loss – a Cum-Ex Aftermath

Localising the place of damage in the context of capital investment cases is a perennial problem both under national and European civil procedural law. With prospectus liability having dominated the case law in the past decades, a new scenario is now increasingly coming into the courts’ focus: liability claims resulting from cum-ex-transactions. In its recent decision, the Higher Regional Court of Munich confirms the significance of the place of the claimant’s bank account for the localisation of purely financial loss in the context of sec. 32 German Civil Procedure Code but fails to provide any additional, viable reasoning on this notoriously debated issue. The decision does manage, however, to define the notion of principal place of business as delimitation of the scope of application of the Brussels regime convincingly. Incidentally, the text of the judgment also proves an informative lesson for the recently flared-up debate about anonymization of judicial decisions.

 

L. Hornkohl: International jurisdiction for permission proceedings under the German Telemedia Act (TMG) in cases of suspected abusive customer complaints on online marketplaces

In its decision of 11 March 2021, the Cologne Higher Regional Court denied the international jurisdiction of the Cologne courts for permission proceedings under the German Telemedia Act (TMG) in cases of suspected abusive customer complaints in online marketplaces. The Cologne court decision combined several precedents of the German Federal Court and the European Court of Justice. Although the Cologne Higher Regional Court decided that permission proceedings constitute a civil and commercial matter within the meaning of the Brussels I Regulation, international jurisdiction could not be established in Germany. The place of performance according to Art. 7 No. 1 lit. b second indent Brussels Ibis Regulation must, in case of doubt, uniformly be determined at the place of establishment of the online marketplace operator in Luxembourg. Article 7 No. 2 of the Regulation also does not give jurisdiction to German courts. The refusal to provide information per se is not a tort in the sense of Article 7 No. 2. Furthermore, there is no own or attributable possibly defamatory conduct of the platform operator. Contradictory considerations of the German legislator alone cannot establish jurisdiction in Germany.

 

A. Spickhoff: Contract and Tort in European Jurisdiction – New Developments

The question of qualification as a matter of contract or/and of tort is among others especially relevant in respect to the jurisdiction at place of performance and of forum delicti. The decision of the court of Justice of the European Union in res Brogsitter has initiated a discussion of its relevance and range to this problem. Recent decisions have clarified some issues. The article tries to show which. The starting point is the fraudulent car purchase.

 

R.A. Schütze: Security for costs for UK plaintiffs in German civil proceedings after the Brexit?

The judgment of the Oberlandesgericht Frankfurt/Main deals with one of the open procedural questions of the Brexit: the obligation of plaintiffs having permanent residence in the United Kingdom to provide security of costs in German civil proceedings. The Court has rightly decided that from January 1st, 2021 plaintiff cannot rely on sect. 110 par. 1 German Code of Civil Procedure (CCP) anymore as the United Kingdom is no longer member of the EU. If the plaintiff has lodged the complaint before January 1st, 2021, the obligation to provide security of costs arises at that date and security can be claimed by respondent according to sect. 110 CCP. However, the Court has not seen two exceptions from the obligation to provide security for costs according to sect. 110 par. 2 no. 1 and 2 CCP which relieve plaintiff from the obligation to provide security of costs if an international convention so provides (no. 1) or if an international convention grants the recognition and execution of decisions for costs (no. 2). In the instant case the court had to apply art. 9 par. 1 of the European Convention on Establishment of 1955 and the Convention between Germany and the United Kingdom on Recognition and Execution of Foreign Judgments of 1960, both Conventions not having been touched by the Brexit. Facit therefore: claimants having permanent residence in the United Kingdom are not obliged to provide security for costs in German Civil proceedings.

 

H. Roth: Qualification Issues relating to § 167 Civil Procedure Code (Zivilprozessordnung, ZPO)

§ 167 of the Civil Procedure Code (ZPO) aims to relieve the parties of the risk accruing to them through late official notification of legal action over which they have no control. This norm is part of procedural law. It is valid irrespective of whether a German court applies foreign or German substantive law. The higher regional Court (Oberlandesgericht) of Frankfurt a.M. found differently. It holds that § 167 should only be considered when German substantive law and thus German statute of limitations law is applied.

 

A. Hemler: Undisclosed agency and construction contract with foreign building site: Which law is applicable?

Does the term “contract for the provision of services” in Art 4(1)(b) Rome I Regulation include a building contract with a foreign building site? Or should we apply the exception clause in Art 4(3) Rome I Regulation if the building site is abroad? Which law governs the legal consequences of undisclosed agency, i.e. how should we treat cases where a contracting party acts as an agent for an undisclosed principal? Furthermore, what are the legal grounds in German law for a refund of an advance payment surplus in such a building contract? In the case discussed, the Oberlandesgericht (Higher Regional Court) Köln only addressed the latter question in detail. Unfortunately, the court considered the interesting PIL issues only in disappointing brevity. Therefore, based on a doctrinal examination of the exception clause in Art 4(3) Rome I Regulation, the paper discusses whether the scope of the general conflict of laws rule for contracts for the provision of services should exclude building contracts with a foreign building site by virtue of a teleological limitation. It also sheds light on the dispute around the law governing cases of undisclosed agency. The paper argues that Art 1(2)(g) Rome I Regulation is not applicable in this regard, i.e. the issue is not excluded from the Rome I Regulation’s scope. Instead, it is covered by Art 10(1) Rome I Regulation; hence, the law governing the contract remains applicable.

 

S.L. Gössl: Uniqueness and subjective components – Some notes on habitual residence in European conflict of laws and procedural law

The article deals with the case law of the ECJ on the habitual residence of adults, as addressed in a recent decision. The ECJ clarified that there can only ever be one habitual residence. Furthermore, it confirms that each habitual residence has to be determined differently for each legal acts. Finally, in the case of the habitual residence of adults, subjective elements become more paramount than in the case of minors. In autonomous German Private International Law, discrepancies with EU law may arise precisely with regard to the relevance of the subjective and objective elements. German courts should attempt to avoid such a discrepancy.

 

D. Wiedemann: Holidays in Europe or relocation to Bordeaux: the habitual residence of a child under the Hague Convention on International Child Abduction

A man of French nationality and a woman of Chilean nationality got married and had a daughter in Buenos Aires. A few months after the birth of their daughter, the family travelled to Europe, where they first visited relatives and friends and finally stayed with the man’s family in Bordeaux. One month and a few days after they arrived in Bordeaux, mother and daughter travelled to Buenos Aires and, despite an agreement between the spouses, never returned to Bordeaux. The father in France asked Argentinean authorities for a return order under the HCA. According to the prevailing view, the HCA only applies, if, before the removal or retention, the child was habitually resident in any contracting state except for the requested state. The court of first instance (Juzgado Civil) assumed a change of the child’s habitual residence from Argentina to France, but, considering that the lack of the mother’s consent to move to France results in a violation of the Convention on the Elimination of All Forms of Discrimination against Women, it granted an exception under Art. 20 HCA. The higher court (Cámara Nacional de Apelaciones en lo Civil) and the Argentinian Supreme Court (Corte Suprema de Justicia de la Nación) required the manifestation of both parents’ intent for a change of the child’s habitual residence. The higher court saw a sufficient manifestation of the mother’s intent to move to France in the termination of her employment in Buenos Aires and ordered the return. In contrast, the CSJN refused to give weight to the termination of employment as it happened in connection with the birth of the daughter.

 

H.J. Snijders: Enforcement of foreign award (in online arbitration) ex officio refused because of violation of the defendant’s right to be heard

With reference to (inter alia) a judgement of the Amsterdam Court of Appeal, some questions regarding the consideration of requests for recognition and enforcement of foreign arbitral awards in the Netherlands are discussed. Should the State Court ex officio deal with a violation of public order by the arbitral tribunal, in particular the defendant’s right to be heard, also in default proceedings like the Amsterdam one? In addition, which public order is relevant in this respect, the international public order or the domestic one? Furthermore, does it matter for the State Court’s decision that the arbitral awards dealt with were issued in an online arbitration procedure (regarding a loan in bitcoin)? Which lessons can be derived from the decision of the Amsterdam Court for drafters of Online Arbitration Rules and for arbitral tribunals dealing with online arbitration like the arbitral e-court in the Amsterdam case? The author also points out the relevance of transitional law in the field of arbitration by reference to a recent decision of the Dutch Supreme Court rejecting the view of the Amsterdam Court of Appeal in this matter; transitional law still is dangerous law.

 

 

Notifications:

E. Jayme/E. Krist: The War of Aggression on Ukraine: Impact on International Law and Private International Law –Conference, March 31st , 2022 (via Zoom)

C. Budzikiewicz/B. Heiderhoff: „Dialogue International Family Law“- Conference, April 1st-2nd, 2022 in Marburg

The edited volume Frontiers in Civil Justice: Privatisation, Monetisation and Digitisation (eds. Xandra Kramer, Jos Hoevenaars, Betül Kas and Erlis Themeli) has been published by Elgar.

The book is the third edited volume resulting from the project Building EU Civil Justice, funded by an ERC consolidator grant, at Erasmus School of Law at Erasmus University Rotterdam. Twenty authors from a wide range of countries and with different backgrounds have contributed.

The book studies three interrelated frontiers in civil justice from a European and from national perspectives, combining theory with policy and insights from practice: the interplay between private and public justice, the digitization of justice, and litigation funding. These current topics are viewed against the backdrop of the requirements of effective access to justice and the overall goal of establishing a sustainable civil justice system in Europe.

The combined works take on a pan-European perspective and zoom in on several jurisdictions, thereby providing a holistic exploration of current civil justice debates and frontiers. The book includes chapters dedicated to the interaction between public and private justice (ADR), the digitisation of both private dispute resolution and court litigation, including the rapid development and use of advanced forms of Artificial Intelligence, and the funding of justice, especially collective actions and settlements by means of third party litigation funding and common funds.

More information is available at the publisher’s website here. The first Introductory chapter is open access available on the website.

 

The DynamInt Research Group at Humboldt University (located in the heart of Berlin, close to the Brandenburg Gate) invites international post-docs working in the field of European law (broadly understood) to apply for a research stay lasting between 3 and 6 months.

Applications are excepted on a rolling basis (no deadline). Successful candidates will receive a financial allowance and will be provided with a fully equipped working place. It is possible to teach classes while staying at Humboldt University. However, teaching is not mandatory.

Further information is available here: https://www.rewi.hu-berlin.de/de/lf/oe/rhp/stellenausschreibungen/postdoc

Conventions & Instruments

On 29 August 2022, the European Union deposited its instrument of accession to the HCCH 2019 Judgments Convention, becoming the first Contracting Party to the Convention, and Ukraine deposited its instrument of ratification, becoming the second Contracting Party to the Convention. As a result, the Judgments Convention will enter into force on 1 September 2023 – just over four years after its adoption on 2 July 2019. More information is available here.

On 29 August 2022, Ukraine deposited its instrument of ratification of the HCCH 2007 Maintenance Obligations Protocol. The Protocol, which currently has 32 Contracting Parties, will enter into force for Ukraine on 1 December 2022. More information is available here.

 

Vacancies

Applications are now open for the position of Legal Officer within the Transnational Litigation & Apostille Division of the Permanent Bureau of the HCCH. The deadline for the submission of applications is 14 October 2022. More information is available here.

Applications are now open for the 2023 Peter Nygh HCCH Internship. The deadline for the submission of applications is 30 September 2022. More information is available here.

 

Upcoming Events

The inaugural CODIFI Conference will be held online from 12 to 16 September 2022. CODIFI will examine issues of private international law in the Commercial, Digital, and Financial (CODIFI) sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

HCCH 2019 Judgments Convention Repository

In preparation of the Conference on the HCCH 2019 Judgments Convention on 9/10 June 2023, taking place on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

Update of 31 August 2022: New entries are printed bold.

Please also check the “official” Bibliography of the HCCH for the instrument.

 

I. Explanatory Reports

Garcimartín Alférez, Francisco;
Saumier, Geneviève „Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128

 

II. Bibliography

Ahmed, Mukarrum “Brexit and the Future of Private International Law in English Courts”, Oxford 2022 Åkerfeldt, Xerxes ”Indirekta behörighetsregler och svensk domsrätt – Analys och utredning av svensk domstols behörighet i förhållande till 2019 års Haagkonvention om erkännande och verkställighet” (Examensarbete inom juristprogrammet, avancerad nivå, Örebro Universitet, 2021 ; available here)

 

“Indirect jurisdiction and Swedish law – Analysis and inquiry of the jurisdiction of Swedish courts in relation to the 2019 Hague Convention on Recognition and Enforcement” Al-Jubouri, Zina Hazem “Modern trends for the recognition and enforcement of foreign judgments in civil and commercial matters accordance the 2019 Hague Convention”, Tikrit University Journal for Rights (TUJR) 2022-03, pp. 79-109 (available here) Amurodov, Jahongir “Some issues of Ratification of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019) by the Republic of Uzbekistan”, Uzbek Law Review 2020-03, pp. 11-116 (available here) Arslan, Ilyas “The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Uluslararasi Ticaret ve Tahkim Hukuku Dergisi 10 (2021), pp. 329-402 Badr, Yehya Ibrahim “The Hague 2019 Convention for the Recognition and Enforcement of Foreign Judicial Decisions: A Comparative Study”, International Journal of Doctrine, Judiciary, and Legislation (IJDJL) 2 (2021), pp. 427-468 (available here) Balbi, Francesca “La circolazione delle decisioni a livello globale: il rogetto di convenzione della Conferenza dell’Aia per il riconoscimento e l’esecuzione delle sentenze straniere” (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2019; available: here) Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul R. “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Beaumont, Paul;
Holliday, Jane (eds.) “A Guide to Global Private International Law”, Oxford 2022, forthcoming. Biresaw, Samuel Maigreg “Appraisal of the Success of the Instruments of International Commercial Arbitration vs. Litigation and Mediation in the Harmonization of the Rules of Transnational Commercial Dispute Settlement”, preprint (DOI:10.21203/rs.3.rs-953987/v1). Blanquet-Angulo, Alejandra “Les Zones d’ombre de la Convention de La Haye du 2 Juillet 2019”, Revue Internationale de Droit Comparé (RIDC), 73 (2021), pp. 53-71 Blom, Joost “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 Bonomi, Andrea “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 Bonomi, Andrea “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 Bonomi, Andrea;
Mariottini, Cristina M. “(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 Borges Moschen, Valesca Raizer;
Marcelino, Helder “Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319

(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) Borisov, Vitaly Nikolaevich “2019 Hague Judgments Convention: Global Recognition and Enforcement of Civil and Commercial Judgments (Review of the International Conference held in Hong Kong on September 9, 2019), Journal of Foreign Legislation and Comparative Law 2020-03, pp. 166-172 (available here) Brand, Ronald A. “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 Brand, Ronald A. “Jurisdictional Developments and the New Hague Judgments Project”, in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon, Cambridge 2013, pp 89-99 Brand, Ronald A. “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 Brand, Ronald A. “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 Brand, Ronald A. “The Hague Judgments Convention in the United States: A ‘Game Changer’ or a New Path to the Old Game?“, University of Pittsburgh Law Review 82 (2021), pp. 847-880 (available here) Brannigan, Neil “Resolving conflicts: establishing forum non conveniens in a new Hague jurisdiction convention”, Journal of Private International Law 18 (2022), pp. 83-112 Cai, Ya-qi “Feasibility Study on China’s Ratification of the HCCH Judgment Convention from the Perspective of Indirect Jurisdiction”, Journal of Taiyuan Normal University (Social Science Edition) 2021-04, pp. 74-80 Çaliskan, Yusuf;
Çaliskan, Zeynep “2 Temmuz 2019 Tarihli Yabanci Mahkeme Kararlarinin Taninmasi ve Tenfizine Iliskin Lahey Anlasmasinin Degerlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245 (available here)

(An Evaluation of 2 July 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) Cardoso, Connor J. “Implementing the Hague Judgments Convention”, New York University Law Review 97 (2022), forthcoming (Draft available here) Celis Aguilar, María Mayela “El convenio de la haya de 30 de junio de 2005 sobre acuerdos de elección de foro y su vinculación con el ‘proyecto sobre Sentencias’ (y viceversa)”, Revista mexicana de Derecho internacional privado y comprado N°40 (octubre de 2018), pp. 29-51 (available here) Chai, Yuhong ; Qu, Zichao “The Development and Future of the Hague Jurisdiction Project”, Wuhan University International Law Review 2021-05, pp. 27-52 (online first) Chen, Shun-Hsiang “Signed, Sealed, & Undelivered: Unsuccessful Attempts of Judgment Recognition Between the U.S. and China”, Brooklyn Journal of Corporate, Financial & Commercial Law 16 (2022), pp. 167-189 (available here) Chen, Wendy “Indirect Jurisdiction over the Recognition and Enforcement of Judgments of Foreign Courts in Compulsory Counterclaims”, Journal of Xingtai University 2019-04, pp. 106-110 Cheng, Xian-ping; Liu, Xian-chao “On the Application of the Severable Clause in The Hague Judgments Convention”, Harbin Normal University Social Science Journal 2021-05, pp. 30-34 Choi, Sung-Soo “Review of the several issues of the Convention on the Recognition and Enforcement of Foreign Judgments”, Gachon Law Review 14 (2021), pp. 37-68 (available here) Clavel, Sandrine ; Jault-Seseke, Fabienne “La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale : Que peut-on en attendre ?”, Travaux du comité français de Droit international privé, Vol. 2018-2020, Paris 2021 (Version provisoire de la communication présentée le 4 octobre 2019, available here) Clover Alcolea, Lucas “The 2005 Hague Choice of Court and the 2019 Hague Judgments Conventions versus the New York Convention – Rivals, Alternatives or Something Else?”, Mc Gill Journal of Dispute Resolution 6 (2019-2020), pp. 187-214 Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 Cong, Junqi “Reinventing China’s Indirect Jurisdiction over Civil and Commercial Matters concerning Foreign Affairs – Starting from the Hague Judgment Convention” (Master’s Thesis, National 211/985 Project Jilin University; DOI: 10.27162/d.cnki.gjlin.2020.001343) Contreras Vaca, Francisco José “Comentarios al Convenio de la Haya del 2 de julio de 2019 sobre Reconcimiento y Ejecución de Sentencias Extranjeras en materia civil y comercial”, Revista mexicana de Derecho internacional privado y comprado N°45 (abril de 2021), pp. 110-127 (available here) Cui, Zhenghao “On the Coordination between the Draft Convention on Judicial Sale of Ships and the related Conventions of the Hague Conference on Private International Law”, China Ship Survey 2021-04, pp. 65-68 Cuniberti, Gilles “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 DAV (German Bar Association) “Position Paper on the EU’s possible accession to the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of the Hague Conference on Private International Law”, Berlin 2020 (available here) de Araujo, Nadia ; de Nardi, Marcelo ;
Spitz, Lidia “A nova era dos litígios internacionais”, Valor Economico 2019 de Araujo, Nadia ;
de Nardi, Marcelo ;
Lopes Inez ;
Polido, Fabricio „Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34 de Araujo, Nadia ;
de Nardi, Marcelo „Consumer Protection Under the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 67-79 de Araujo, Nadia ;
de Nardi, Marcelo „22ª Sessão Diplomática da Conferência da Haia e a Convenção sobre sentenças estrangeiras : Primeiras reflexões sobre as vantagens para o Brasil da sua adoção“, Revista de la Secretaría del Tribunal Permanente de Revisión 7 No. 14 (2019), páginas 198-221

(22nd Diplomatic Session of The Hague Conference and the Convention on Foreign Judgments: First Reflections on the Advantages for Brazil of their Adoption) de Araujo, Nadia ;
De Nardi, Marcelo “International Jurisdiction in Civil or Commercial Matters: HCCH’s New Challenge”, in Magdalena Pfeiffer, Jan Brodec, Petr Bríza, Marta Zavadilová (eds.), Liber Amicorum Monika Pauknerová, Prague 2021, pp. 1-11 Dlmoska, Fani “Would the Judgments Convention lead to unification of the ratification and enforcement of foreign judgments in the SEE Countries: The possible impact of the Judgments Convention”, SEELJ Special Edition No. 8 (2021), pp. 81-103 Dordevic, Slavko “Country Report Serbia”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 180-202 Dotta Salgueiro, Marcos “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”, Netherlands International Law Review (NILR) 67 (2020), pp 113-120 Douglas, Michael;
Keyes, Mary;
McKibbin, Sarah;
Mortensen, Reid “The HCCH Judgments Convention in Australian Law”, Federal Law Review 47 (2019), pp 420-443 Du, Tao “Frontiers of Private International Law Around the World: An Annual Review (2019-2020)”, Chinese Review of International Law 2021-04, pp. 103-128 (available here) Echegaray de Maussion, Carlos Eduardo “El Derecho Internacional Privado en el contexto internacional actual : Las reglas de competencia judicial indirecta en el Convenio de la Haya de 2 de Julio de 2019 y el accesso a la justicia” Revista mexicana de Derecho internacional privado y comprado N°45 (abril de 2021), pp. 128-139 (available here) Efeçinar Süral “Possible Ratification of the Hague Convention by Turkey and Its Effects to the Recognition and Enforcement of Foreign Judgments”, Public and Private International Law Bulletin 40 (2020), pp. 775-798 (available here) EGPIL/GEDIP Observations on the possible accession of the European Union to the Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments, Text adopted on 9 December 2020 following the virtual meeting of 18-19 September 2020 (available here) | Zeitschrift für Europäisches Privatrecht (ZEuP) 2021, pp. 474-476 Ermakova, Elena ; Frovola, Evgenia ; Sitkareva, Elena “International Economic Integration and the Evolution of the Principles of Civil Procedure”, in Elena G. Popkova, Bruno S. Sergi, Modern Global Economic System, Basel 2021, pp. 1589-1597 European Union (EU)/ European Commission “Proposal for a Council Decision on the accession by the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, COM(2021) 388 final (available here) Fan, Jing “On the Jurisdiction over Intellectual Property in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Chinese Yearbook of Private International Law and Comparative Law 2018-02, pp. 313-337 Fan, Jing “Reconfiguration on Territoriality in Transnational Recognition and Enforcement of Intellectual Property Judgments”, Chinese Review of International Law 2021-01, pp. 90-112 (available here) Farnoux, Étienne “Reconnaissance et exécution des jugements étrangers en matière civil ou commerciale : À propos de la Convention de La Haye du 2 juillet 2019”, La Semaine Juridique 2019, pp. 1613-1617 Forner Delaygua, Joaquim-Joan “El Convenio de La Haya de 2 julio 2019 como nuevo marco normativo de las sentencias en materia de contractual comercial”, in Pérez Vera et al. (eds.), El Derecho internacional privado entre la tradición y la innovación – Obra homenaje al Profesor doctor José María Espinar Vicente, Madrid 2020, pp. 307-325 Franzina, Pietro; Leandro, Antonio

  “La Convenzione dell’Aja del 2 luglio 2019 sul riconoscimento delle sentenze straniere : una prima lettura”, Quaderni di SIDIblog 6 (2019), pp 215-231 (available here)

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Part 1: JCA 2020-04, pp. 40-45 (available here)

Part 2: JCA 2020-05, pp. 40-45 (available here)

Part 3: JCA 2020-06, pp. 42-49 (available here)

Part 4: JCA 2020-10, pp. 40-46 (available here)

Part 5: JCA 2020-11, pp. 35-41 (available here)

Part 6: JCA 2020-12, pp. 43-48 (available here)

Part 7: JCA 2021-02, pp. 50-56 (available here)

Part 8: JCA 2021-04, pp. 45-51 (available here)

Part 9: JCA 2021-07, pp. 46-53 (available here)

Part 10: JCA 2021-09, pp. 40-46

Part 11: JCA 2021-10, pp. 48-54

Part 12: JCA 2022-01, pp. 45-52

Part 13: JCA 2022-03, pp. 44-51

Part 14: JCA 2022-05, pp. 58-55

Part 15 JCA 2022-07, pp. 49-55 Taquela, María Blanca Noodt ; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 Tian, Hongjun “The Present and Future of the Recognition and Enforcement of Civil and Commercial Judgments in Northeast Asia: From the Perspective of the 2019 Hague Judgments Convention”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 300-317 Tian, Xinyue;
Qian, Zhenqiu;
Wang, Shengzhe “The Hague Convention on the Recognition and Enforcement of Foreign Judgments (Draft) and China’s Countermeasure – A Summary on the Fourth Judicial Forum of Great Powers”, Chinese Yearbook of Private International Law and Comparative Law 2018-01, pp. 377-388 Trooboff, Peter D.;
North, Cara; Nishitani, Yuko;
Sastry, Shubha; Chanda, Riccarda “The Promise and Prospects of the 2019 Hague Convention: Introductory Remarks”, Proceedings of the ASIL Annual Meeting 114 (2020), pp. 345-357 Tsang, King Fung;
Wong, Tsz Wai “Enforcement of Non-Monetary Judgments in Common Law Jurisdictions: Is the Time Ripe?”, Fordham International Law Journal 45 (2021), pp. 379-428 (available here) van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue critique de droit international privé (Rev. Crit. DIP) 2019, pp. 353-365 Viegas Liquidato, Vera Lúcia “Reconhecimento E Homologação De Sentenças Estrangeiras : O Projeto De Convenção Da Conferência da Haia”, Revista de Direito Brasileira 2019-09, pp. 242-256 Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Wang, Quian “On Intellectual Property Right Provisions in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, China Legal Science 2018-01, pp. 118-142 (available here) Wang, Yahan “No Review of the Merits in Recognizing and Enforcing Foreign Judgments”, China Journal of Applied Jurisprudence 2020-04, pp. 78-95 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 (available here) Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279-308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed. 2022 Weller, Matthias „Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019“, in Christoph Althammer/Christoph Schärtl (eds.), Festschrift für Herbert Roth, Tübingen 2021, pp. 835-855 Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Wu, Qiong “The Overview of the 22nd Diplomatic Session of the Hague Conference on Private International Law”, Chinese Yearbook of International Law 2019, pp. 337-338 Xie, Yili “Research on the Intellectual Property Infringment System of the Hague Judgments Convention”, China-Arab States Science and Technology Forum 2021-09, pp. 190-194 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 2017-05, pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Xu, Guojian “On the Scope and Limitation of the Global Circulation of Court Judgments: An Analysis on the Application Scope of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 269-299 Yang, Yujie “On the Rules of indirect Jurisdiction responding to Litigation – Based on Article 5, Paragraph 1, Item 6 of the Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters” (Master Thesis China Foreign Affairs University Beijing 2021) Yekini, Abubakri

  “The Hague Judgments Convention and Commonwealth Model Law – A Pragmatic Perspective”, Oxford 2021. Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Yuzhakov, D.A. “Legal Regulation of the Procedures for Enforcement of Decisions of Foreign Courts in Economic Disputes”, Urgent Issues of the Entrepreneurship Law, Civil Litigation and Arbitration (Perm State University) No. 4 (2021), pp. 119-123 (available here) Zasemkova, Olesya Fedorovna “ ‘Judicial Convention’ as a New Stage in the Recognition and Enforcement of Foreign Judgments”, Lex Russica 2019-10, pp. 84-103 (available here) Zasemkova, Olesya Fedorovna “Recognition and Enforcement of Foreign Judgments in the Context of the Adoption of the « Judicial Convention » 2019”, in Zhuikov V.M., Shchukin A.I. (eds.), Liber Amicorum Natalia Ivanovna Marysheva, pp. 196-211 Zernikow, Marcel “Recognition and Enforcement of Foreign Decisions in MERCOSUR Letters Rogatory (Carta Rogatória) and National Civil Procedure” Yearbook of Private International Law 22 (2020/2021), pp. 353-380 Zhang, Chunliang;
Huang, Shan “On the Common Courts Rules in Hague Judgments Convention – China’s way for the Judicial Assistance under Belt and Road Initiative”, Journal of Henan University of Economics and Law 2020-05, pp. 103-113 Zhang, Lizhen “On the Defamation Problem in the Hague Judgments Project: Ever In and Now out of the Scope”, Wuhan University International Law Review 2019-01, pp. 41-58 (available here) Zhang, Wenliang “The Finality Requirement of Recognition and Enforcement of Foreign Judgments”, Wuhan University Law Review 2020-02, pp. 19-38 Zhang, Wenliang; Tu, Guangjian “The Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement: Comparison and Prospects for Implementation”, Chinese Journal of International Law 20 (2021), pp. 101-135 Zhang, Wenliang;
Tu, Guangjian “The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 Zhang, Zhengyi;
Zhang, Zhen “Development of the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and Its Implication to China”, International and Comparative Law Review 2020, pp. 112-131 Zhao, Ning “The HCCH 2019 Judgments Convention, adding essential components for an effective international legal framework on recognition and enforcement”, in UIHJ (ed.), David Walker (dir.), Cyberjustice, de nouvelles opportunités pour l’huissier de justice / Cyberjustice, New Opportunities for the Judicial Officer – XXIVe Congrès de l’Union Internationale des Huissiers de Justice – Dubai – 22 au 25 Novembre 2021, Bruxelles 2021, pp. 120-133 Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368 Zirat, Gennadii “Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: A new Contribution of the Hague Conference on Private International Law to the Unification of International Civil Procedure”, Ukrainian Journal of International Law 2020-03, pp. 105-112 (available here)

 

III. Recordings of Events Related to the HCCH 2019 Judgments Convention

ASADIP; HCCH “Conferencia Internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras”, 3 December 2020 (full recording available here and here) ASIL “The Promise and Prospects of the 2019 Hague Convention”, 25-26 June 2020 (full recording available here and here) Department of Justice Hong Kong; HCCH “Inaugural Global Conference – 2019 HCCH Judgments Convention: Global Enforcement of Civil and Commercial Judgments”, 9 September 2019 (recording available here) HCCH “HCCH a|Bridged: Innovation in Transnational Litigation – Edition 2021: Enabling Party Autonomy with the HCCH 2005 Choice of Court Convention”, 1 December 2021 (full recording available here) HCCH “22nd Diplomatic Session of the HCCH: The Adoption of the 2019 Judgments Convention”, 2 July 2020 (short documentary video available here) JPRI; HCCH; UNIDROIT; UNCITRAL “2020 Judicial Policy Research Institute International Conference – International Commercial Litigation: Recent Developments and Future Challenges, Session 3: Recognition and Enforcement of Foreign Judgments”, 12 November 2020 (recording available here) UIHJ; HCCH “3rd training webinar on the Hague Conventions on service of documents (1965) and recognition and enforcement of judgements (2019)”, 15/18 March 2021 (full recording available here in French and here in English) University of Bonn; HCCH “Pre-Conference Video Roundtable on the HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil and Commercial Matters between the EU and Third Countries”, 29 October 2020 (full recording available here) Lex & Forum Journal; Sakkoula Publications SA « The Hague Conference on Private International Law and the European Union – Latest developments », 3 December 2021 (full recording available here)

 

In view of the upcoming revision of the instrument, the Max Planck Institute Luxembourg in collaboration with EAPIL and KU Leuven hosts a (hybrid) international conference on “The Brussels Ibis Reform” scheduled for Friday, 9 September 2022. As part of the ongoing efforts within EAPIL, the event will serve to discuss the results of the corresponding working group chaired by Burkhard Hess and Geert van Calster as well as the application of the Regulation in general. In addition, legal experts will present on pertinent topics such as insolvency proceedings, arbitration and third state relations. The overarching goal of the discourse is to prepare an academic position paper that is to advise the the European Commission in the – mandatory although delayed –  evaluation process.

Further information on the MPI Conference and online registration can be found in the attached programme and on the event’s website. A first overview of relevant aspects is provided in a Research Paper by Burkhard Hess.

Programme_The Brussels Ibis Reform

Just about a month ago, as previously reported, the EU formally decided to accede to the 2019 Hague Judgments Convention – a decision that has now been implemented by depositing the instrument of accession with the Convention’s Depositary, the Ministry of Foreign Affairs of the Netherlands. At the same time, Ukraine has deposited its instrument of ratification, thus becoming the second contracting party.

As per its Article 28(1), the Convention will enter into force on 1 September 2023 for all EU Member States (except Denmark) and Ukraine.

The Convention currently has five additional signatories: Costa Rica, Israel, the United States of America, Uruguay, and, somewhat delicately, the Russian Federation.

The Nigerian Bar Association recently published articles on Nigerian law. Interestingly, the first two articles are on Nigerian conflict of laws. This should probably not come as a surprise because the editor-in-chief, Professor Uche Chukwumaeze, specialises in Nigerian conflict of laws.

The articles and abstracts read as follows:

O Uka, “Internal Conflict of Laws in Nigeria: Making a Case for the Consolidation of Rules of Jurisdiction in Inter-State Disputes”

“Owing to the central place that jurisdiction occupies in the adjudication process in Nigeria, jurisdictional conflicts will continue to take up precious judicial time into the foreseeable future. A lesser-known facet of these conflicts is the one among the various High Courts in Nigeria in actions in personam. Until recently, Nigerian courts have had to resolve these conflicts and generally interprete internal conflict of laws questions without the benefit of the direction that legislation and high-quality academic works provide. This paper examined the position on the jurisdiction of courts in inter-State jurisdictional challenges in actions in personam. It analysed decisions which tackled territorial jurisdiction challenges in actions in personam with a view to highlighting their inherent errors. Ultimately, the paper proposed a hierarchical roadmap for Nigerian courts to adopt in determining the issue of jurisdiction in inter-State in personam disputes which if followed, would potentially go a long way towards resolving the protracted jurisdictional conflicts between Nigerian courts, reduce the largely unnecessary challenges to these courts’ authority, significantly reduce the notorious delays in the determination of cases in Nigeria, and eliminate one of the biggest impediments to the smooth administration of the justice delivery system in Nigeria.”

 

I Olawunmi, “Party Autonomy and Commercial Expectations: How are the Nigerian Courts faring on Choice of Law and Forum Clauses in Contracts beyond Borders?”

“Where a contract bears a transnational coloration, it is only instinctual to have the parties agree on specific arrangements to guide their commercial endeavour. It is a legal right for parties to a contract to freely negotiate the terms to govern their agreement. This underpins the principle of party autonomy that guides the law of contract globally. It is a common practice to have parties to an international commercial contract select the law to govern their agreement. Since conflict is inevitable in any human relationship, parties can also agree to the forum to resolve their disputes. Parties can choose arbitration or even litigate in a foreign court over a contractual dispute. This paper aims to x-ray party autonomy, law and forum clauses, their different effects and the judicial attitude of Nigerian courts to them, especially for contracts entered into and/or are to be performed in Nigeria. The author adopts the doctrinal methodology of research, with reliance placed on both primary and secondary sources. This paper recommends that the courts should not derogate from the doctrine of party autonomy in determining commercial disputes as practical as possible, as this would help investors achieve their contractual goals.”

The third issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2022 was recently published. It features the following case notes and articles:

A Briggs, “Render unto Caesar the things that are Caesar’s”

R Bork, “The Arbitrability of Insolvency-Related Claims”

CH Tham, “Assignments, Assignees and the Burden of an Arbitration Clause”

Jean Monnet Chair Action DIGITEUL invites contributions to the international conference on Competition in Digital Markets which will be held on September 30, 2022. The conference will be online only.DIGITEUL is a Jean Monnet Chair Action coordinated by Dr Zeynep Ayata at Koç University Law School.

 

Theme of the Conference

Digitalisation has been affecting all aspects of the economy and society at an unprecedented pace and scale. The powerful methods of data processing and new business models that became prevalent with digitalisation led to complex problems for competition authorities. The intersection of these new issues with fundamental rights places them on a different stage than traditional problems that competition authorities have dealt with. Lawmakers around the world have initiated ex-ante interventions tools for competition law enforcement only, the Digital Markets Act that has been recently enacted by the European Union being the first example of such measures. The conference aims to explore perspectives on how to balance the different interests that needs to be protected when dealing with the challenges that digitalisation brings to surface in the area of competition law.

 

Keynote Speech by Prof Dr Ariel Ezrachi, University of Oxford

 

Scientific Selection Committee

Prof Dr Pinar Akman, University of Leeds, UK

Associate Prof Dr Kerem Cem Sanli, Istanbul Bilgi University, Turkey

Associate Prof Dr Konstantinos Stylianou, University of Leeds, UK

Assistant Prof Dr Zeynep Ayata, Koç University, Turkey

Assistant Prof Dr Marios Iacovides, Uppsala University, Sweden

 

Eligibility Criteria & Submission Instructions

Abstracts in English, no more than 300 words should be submitted to digiteul@ku.edu.tr by 01.09.2022. Only academics, researchers and postgraduate students may apply. Each applicant may propose only one individual abstract (co-authored abstracts are allowed). All submissions will be reviewed using a double-blind review process. Successful applicants will be notified by email by 09.09.2022. Participation in the conference is entirely free. Presented papers’ short or extended abstracts will be published on DIGITEUL’s website.