Conflictoflaws

Update from the organizers:

“Thanks to the generosity of our sponsors we are able to offer a limited number of participants a partial waiver of the conference. If you work in the not-for-profit sector (academia, ngo’s, judiciary or other government institutions) you can contact the conference bureau (conference@uva.nl) to check for eligibility. The reduced fee will be the same as the one for students and PhD fellows.”

 

For all those interested in the various aspects of collective redress, including cross border issues (in securities and competition cases), the 4th International Class Action Conference held as an on-site conference in Amsterdam provides an excellent opportunity to discuss current issues and share your own experiences. The international conference is co-organized, inter alia, by the University of Amsterdam (The Netherlands), University of Haifa (Israel) and Tilburg University (The Netherlands) and described as follows:

”

4th International
Class Action Conference

Amsterdam, 30 June – 1 July 2022

 

On 30 June and 1 July 2022 the University of Amsterdam will host the 4th international class action conference. The conference is organized by a team from the University of Haifa, the University of Tilburg and the University of Amsterdam, in collaboration with several renowned institutions. The theme of this year’s conference is ‘From Class Actions to Collective Redress: Access to Justice in the 21st century’.

The Conference will bring together a diverse range of international expertise in collective redress. The conference is intended to act as a forum for the sharing of experiences and knowledge. In an increasingly interconnected world, such opportunities for international scholars and practitioners to come together and compare notes on the development of collective redress in their jurisdictions, are more relevant than ever.

For details on the programme and a full list of collaborators, please see 4th International Class Action Conference – Home (aanmelder.nl).”

 

There are different registration fees for commercial participants (500 EUR) and academics/judges/NGOs (300 EUR) as well as a reduced charge for (PhD) students (75 EUR).

(authored by Chen Zhi, Wangjing & GH Law Firm, PhD Candidate at the University of Macau)

It is axiomatic that an arbitration agreement is generally not binding on a non-signatory unless some exceptional conditions are satisfied or appear, while it could even be more controversial in cases relating to guarantee where a non-signatory third person provides guarantee to the master agreement in which an arbitration clause has been incorporated. Due to the close connection between guarantee contract and master agreement in their contents, parties or even some legal practitioners may take it for granted that the arbitration agreement in master agreement can be automatically extended to the guarantor albeit it is not a signatory, which can be a grave misunderstanding from judicial perspective and results in great loss thereby.

As a prime example, courts in China have long been denying the applicability of arbitration agreements to a non-signatory guarantor with rare exceptions based on specific circumstances as could be observed in individual cases, nonetheless, the recent legal documents have provided possibilities that may point to the opposite side. This short essay looks into this issue.

1. The Basic Stance in China: Severability of the Guarantee Contract

Statutes in China provide limited grounds for extension of arbitration agreement to a non-signatory. As set out in Articles 9 & 10 of the Interpretation of the Supreme People’s Court’s (hereinafter, SPC) on Certain Issues Related to the Application of the Arbitration Law?which was issued on 23 August 2006?, this may occur only under the following circumstances:

“(1) An arbitration clause is binding on the non-signatory who is the successor of a signed-party by means of merge, spilt-up of an entity and decease of a natural person or;

(2) where the rights and obligations are assigned or transferred wholly or partially to a non-signatory, unless parties have otherwise consented”.

Current laws are silent on the issue where there is a guarantee relationship. Due to the paucity of direct instructions, some creditors seeking for tribunal’s seizure of jurisdiction over a non-signatory guarantor would tend to invoke Article 129 of the SPC’s Interpretation on Certain Issues Related to Application of Warranty Law (superseded by SPC’s Interpretation on Warranty Chapter of Civil Code since 2021 with no material changes being made), which stipulates that the guarantee contract shall be subject to the choice of court clause as set out in the main agreement, albeit the creditor and guarantor have otherwise consent on dispute resolution. Nevertheless, courts in China are reluctant to apply Article 129 to an arbitration clause by way of mutatis mutandis. In the landmark case of Huizhou Weitong Real Estate Co., Ltd v. Prefectural People’s Government of Huizhou,[1] the SPC explicitly ruled that the Guarantee Letter entered into between creditor and guarantor had created an independent civil relationship which shall be distinguished from the main agreement and thereby the arbitration clause should not be binding on the guarantor and the court seized with the case could take the case accordingly. In a nutshell, due to the independence of the guarantee contract from the main contract, where there is no clear arbitration agreement in the guarantee contract, the arbitration agreement in the main contract cannot be extended to be applicable to the guarantor.

The jurisprudence of Weitong has been subsequently followed and acknowledged as the mainstream opinion for the issue. In SPC’s reply to Guangxi Provincial High Court regarding enforcement of a foreign-related arbitral award rendered by CIETAC on 13 September 2006?Dongxun?,[2] where a local government had both issued a guarantee letter and signed the main agreement, the SPC opined that as there was no term of guarantee provided in the text of main agreement, the issuance of guarantee letter and signature of main agreement was not sufficient to make the government a party to the arbitration clause. In light of this, SPC agreed with the Guangxi Court’s stance that the dispositive section regarding execution of guarantee obligation as set out in the disputed arbitral award had exceeded the tribunal’s power and thus shall be rejected to be enforced. In the same vein, in its reply on 20 March 2013 to Guangdong Provincial High Court regarding the annulment of an arbitral award[3], the SPC held that the disputed arbitral award shall be partially vacated for the arbitral tribunal’s lack of jurisdiction over the guarantee for which the guarantor was a natural person. Hence, it can be drawn that whether the guarantor is a governmental institution or other entity for public interest is not the determining factor to be considered for this type of cases.

2. Controversies and Exceptions

Theoretically, it is correct for the SPC to unfold the autonomous nature of arbitration jurisdiction, which shall be distinguished from that of litigation. Parties’ autonomy to designate arbitration as a method of dispute resolution and the existence of an arbitration agreement are key elements for a tribunal to be able to obtain the jurisdiction. By this logic, the mere issuance of guarantee letter or signature of a standing-alone guarantee is not sufficient to prove parties’ consent to arbitration as expressed in the main contract. The SPC is not alone in this respect. Actually, one of the much-debated cases by foreign courts is the decision made by the Swiss Supreme Court in 2008 which opined that a guarantor providing guarantee by virtue of a standing-alone letter was not bound by the arbitration clause as provided in the main agreement to which the guarantee letter has been referred, except there was an assumption of contractual rights or obligations, or a clear reference to the said arbitration clause. [4]

All that being said, the SPC’s proposition has given rise to some controversies for the sacrifice of efficiency through a dogmatic understanding of arbitration. Moreover, the segregation of the main contract and guarantee contract may produce risks of parallel proceedings and conflicting legally-effective results. As some commentators have indicated, albeit the severability of guarantee contract in its formality, its content is tight with the main agreement. In the light of the tight connection,[5] the High Court of England ruled in Stellar that it was predictably expectable for a rational businessman to agree on a common method of dispute resolution as set out in the main contract, where the term of guarantor’s endorsement was involved, based on the close connection between the two contracts.[6]

A like but nuanced approach, however, has been developed through individual cases in China, to the author’s best knowledge, one of the prime cases is Li v. Yu decided by Hangzhou Intermediate Court on 30 March 2018  concerning an annulment of an award handed down via arbitration proceedings.[7] The case concerns a main agreement entered into by the creditor, the debtor and the guarantor (who was also the legal representative of the debtor), which had set out a general guarantee term but did not provide detailed obligations. The guarantor subsequently issued a guarantee letter without any clear reference to arbitration clause as stated in main agreement. After the dispute arose, the creditor lodged arbitration requests against both the debtor and the guarantor, the tribunal ruled in creditor’s favor after tribunal proceedings started. The guarantor then applied for annulment of the arbitral award on the basis that there was no valid arbitration agreement between the guarantor and the creditor, contending tribunal’s lack of jurisdiction over the guarantor. The court, however, opined that the guarantor’s signature in the main agreement, in combination of the general guarantee clause incorporated therein, was sufficient to prove the existence of arbitration agreement between the creditor and the guarantor and the guarantor’s consent thereby. Therefore, the annulment application was dismissed by the court.

Admittedly, the opinion as set out in Li is sporadic and cannot provide certainty, largely relying on specific circumstances drawn from individual cases, hence it is difficult to produce a new principle hereby. However, the case does have some novelties by providing a new track for extension of arbitration agreement to a guarantor who is not clearly set out as one of the parties in main agreement. In other words, the presumption of severability of guarantee relationship is not absolute and thus rebuttable. To reach that end, creditors shall furnish proof that the guarantor shall be well aware of the details of the main contract (including arbitration clause) and has shown inclination to be bound thereby.

3. New Rules That Shed New Light

On 31 December 2021, the SPC released Meeting Note of the National Symposium on Foreign-related Commercial and Maritime Trials, which covers judicial review issues on arbitration agreements. Article 97 of the Meeting Note provides systematical approach in reviewing arbitration agreement where an affiliated agreement?generally refers to guarantee contract or other kinds of collateral contract?is concerned, which can be divided into two facets:

First, where the guarantee contract provides otherwise dispute resolution, such consent is binding on the guarantor and thus shall be enforceable. As a corollary, the arbitration agreement in main agreement is not extensible to the guarantor.

Secondly, while the guarantee contract is silent on the issue of dispute resolution, the arbitration agreement as set forth in the main agreement is not automatically binding on the guarantor unless the parties to the guarantee contract is the same as that of main agreement.

In summary, the Meeting Note has sustained the basic stance while providing an exception where the main agreement and the guarantee contract are entered into by the same parties. As indicated by one commentator, the Meeting Note is not a judicial interpretation which can be adopted by the courts to decide cases directly but it to a large extent reflects consensus of judges among China, [8] and hence will produce impact on judicial practice across the whole country.

Nevertheless, some uncertainties may still arise, for instance, whether a mere signature in the main contract by the guarantor is sufficient to furnish the proof about “the same parties”, or shall be in combination with the scenario where an endorsement term of guarantor is incorporated in the main contract. On the contrary, it is also unclear whether a mere existence of term of guarantee is sufficient to make a non-signatory guarantor a party to the main contract.

Another more arbitration-friendly method can be observed from the draft for Revision of Arbitration Law that has been released for public consultation since 30th July of 2021, Article 24 of which provides that the arbitration clause as set out in the main agreement shall prevail over that in the guarantee contract where there is a discrepancy; where the guarantee contract is silent on dispute resolution, any dispute connected thereto shall be subject to the arbitration agreement as set out in main agreement. This article is a bold one which will largely overturn the SPC’s current stance and makes guarantee relationship an exception. A piece of more exciting news comes from the newly-released law-making schedule of 2022 by the Standing Committee of the National People’s Congress,[9] according to which the revision of Arbitration Law is listed as one of the top priorities in 2022 whilst it is still to be seen whether Article 24 in the draft can be retained after scrutiny of the legislature.

4. Concluding Remarks

It is not uncommon that a guarantee for certain debts is provided by virtue of a standing-alone document which is separated from the main contract, whether it is a guarantee contract or a unilaterally-issued guarantee letter. It shall be borne in mind that the close connection between the guarantee document and main contract alone is not sufficient to extend the arbitration agreement as set out in main agreement to a non-signatory guarantor per the consistent legal practice in China over the past 20 years. While the new rules have provided more arbitration-friendly approaches, uncertainties and ambiguities will probably still exist.

From a lawyer’s perspective, as the mainstream opinion in judicial remains unchanged currently, it is necessary to attach higher importance while reviewing a standing-alone guarantee contract which is separated from a master agreement in its formality. In the light of avoiding prospective parallel proceedings incurred thereby, the author advances two options in this respect:

The first option is to insert an article endorsing guarantee’s obligation into the master agreement, and require the guarantor to sign the master agreement, which resembles the scenario in Stellar and Li. Whereas this approach may be less feasible in the post-negotiation phase of master agreement when all terms and conditions are fixed and endorsed, the option mentioned below can be served as an alternative.

The second option is to incorporate into guarantee document a clause which unequivocally refers to the arbitration agreement as set out in master agreement, in lieu of any revision to the master agreement. This approach is in line with Article 11 SPC on Certain Issues Related to the Application of the Arbitration Law which provides that parties can reach an arbitration agreement by reference to dispute resolution clauses as set out in other contracts or documents. While it is noteworthy that from judicial practice in China, such reference shall be specific and clear, otherwise the courts may be reluctant to acknowledge the existence of such arbitration agreement.

 

[1] Case No: 2001 Min Er Zhong No. 177.

[2] Case No: 2006 Min Si Ta No. 24.

[3] Case No: 2013 Min Si Ta No. 9.

[4] Case No. 4A_128/2008,decided on August 19, 2008, decided by Tribunal federal(Supreme Court) of Swiss, as cited in Extension of arbitration clause to non-signatories (case of a guarantor) – Arbitration clause by reference to the main contract (deemed too general and therefore not admitted), available at https://www.swissarbitrationdecisions.com/extension-of-arbitration-clause-to-non-signatories-case-of-a-gua.

[5] See Yifei Lin: Is Arbitration Agreement in Master Agreement Applicable to Guarantee Agreement? Available at http://www.360doc.com/content/16/0124/11/30208892_530188388.shtml.

[6] Stellar Shipping Co Llc v Hudson Shipping Lines [2010] EWHC 2985 (Comm) (18 November 2010).

[7] Case No: 2018 Zhe 01 Min Te No. 23.

[8] Lianjun Li et al?China issues judicial guidance on foreign related matters, Reed Smith In-depth?25 April 2022??available at https://www.reedsmith.com/de/perspectives/2022/04/china-issues-judicial-guidance-on-foreign-related-matters.

[9] For more details, please see the news post available at https://m.thepaper.cn/baijiahao_18072465. Moreover, per the news report released in late May of 2022, The National Committee of Chinese People‘s Political Consultative Conference had discussed the revision of Arbitration Law in its biweekly symposium held on 30 May 2022, where the attendees had stressed the significance of party autonomy in commercial arbitration, available at: http://www.icppcc.cn/newsDetail_1092041.

by Rui Dias

 

On 23 February 2022, the European Commission published its proposal of a Directive on Corporate Sustainability Due Diligence (CSDD) in respect to human rights and the environment. For those interested, there are many contributions available online, namely in the Oxford Business Law Blog, which dedicates a whole series to it (here). As to the private international law aspects, apart from earlier contributions on the previous European Parliament resolution of March 2021 (info and other links here), some first thoughts have been shared e.g. by Geert von Calster and Marion Ho-Dac.

Building on that, here are some more brief remarks for further thought:

Article 2 defines the personal scope of application. European companies are covered by Article 2(1), as the ones «formed in accordance with the legislation of a Member-State», whereas those of a «third country» are covered by Article 2(2). While other options could have been taken, this criterium of incorporation is not unknown in the context of the freedom of establishment of companies, as we can see in Article 54 TFEU (basis for EU legal action is here Article 50(1) and (2)(g), along with Article 114 TFEU).

There are general, non PIL-specific inconsistencies in the adopted criteria, in light of the relative, not absolutethresholds of the Directive, which as currently drafted aims at also covering medium-sized enterprises only if more than half of the turnover is generated in one of the high-impact sectors. As recently pointed out by Hübner/Habrich/Weller, an EU company with e.g. 41M EUR turnover, 21M of which in a high impact sector such as e.g. textiles is covered; whilst a 140M one, having «only» 69M in high-impact sectors, is not covered, even though it is more than three times bigger, including in that specific sector.

Article 2(4) deserves some further attention, by stating:

«As regards the companies referred to in paragraph 1, the Member State competent to regulate matters covered in this Directive shall be the Member State in which the company has its registered office.»

So, the adopted connecting factor as to EU companies is the registered office. This is in line with many proposals of choice-of-law uniformization for companies in the EU. But apparently there is no answer to the question of which national law of a Member-State applies to third-country companies covered by Article 2(2): let us not forget that it is a proposed Directive, to be transposed through national laws. And as it stands, the Directive may open room for differing civil liability national regimes: for example, in an often-criticised option, Recital 58 expressly excludes the burden of proof (as to the company’s action) from the material scope of the Directive proposal.

Registered office is of course unfit for third country-incorporated companies, but Articles 16 and 17 make reference to other connecting factors. In particular, Article 17 deals with the public enforcement side of the Directive, mandating the designation of authorities to supervise compliance with the due diligence obligations, and it uses the location of a branch as the primarily relevant connection. It then opens other options also fit as subsidiary connections: «If the company does not have a branch in any Member State, or has branches located in different Member States, the competent supervisory authority shall be the supervisory authority of the Member State in which the company generated most of its net turnover in the Union» in the previous year. Proximity is further guaranteed as follows: «Companies referred to in Article 2(2) may, on the basis of a change in circumstances leading to it generating most of its turnover in the Union in a different Member State, make a duly reasoned request to change the supervisory authority that is competent to regulate matters covered in this Directive in respect of that company».

Making a parallel to Article 17 could be a legislative option, so that, in respect to third-country companies, applicable law and powers for public enforcement would coincide. It could also be extended to jurisdiction, if an intention arises to act in that front: currently, the general jurisdiction rule of Brussels Ia (Article 4) is a basis for the amenability to suit of companies domiciled (i.e., with statutory seat, central administration, or principal place of business – Article 63) in the EU. In order to sue third country-domiciled companies, national rules on jurisdiction have to be invoked, whereby many Member-States include some form of forum necessitatis in their national civil procedure laws (for an overview, see here).The Directive proposal includes no rules on jurisdiction: it follows the option also taken by the EP resolution, unlike suggested in the previous JURI Committee draft report, which had proposed new rules, through amendments to Brusselas Ia, on connected claims (in a new Art. 8, Nr. 5) and on forum necessitatis (through a new Art. 26a), along with a new rule on applicable law to be included in Rome II (Art. 6a) – a pathway which had also been recommended by GEDIP in October 2021 (here).

As to the applicable law in general, in the absence of a specific choice-of-law rule, Article 22(5) states:

«Member States shall ensure that the liability provided for in provisions of national law transposing this Article is of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.»

So, literally, it is «the liability provided for» in national transposing laws, and not the provisions of national law themselves, that are to be «of overriding mandatory application». This may be poor drafting, but there is apparently no material consequence arising out of it.

Also, the final part («in cases where the law applicable to claims to that effect is not the law of a Member State») does not appear to make much sense. It is at best redundant, as Geert van Calster points out, suggesting it to be struck out of the proposal. Instead of that text, it could be useful to add «irrespective of the law otherwise applicable under the relevant choice-of-law rules», miming what Rome I and II Regulations state in Articles 9 and 16.

A further question raised by this drafting option of avoiding intervention in Rome II or other choice-of-law regulations, instead transforming the new law into a big set of lois de police, is that it apparently does not leave room for the application of foreign, non-EU law more favourable to the victims. If a more classical conflicts approach would have been followed, for example mirrored in Article 7 of Rome II, the favor laesi approach could be extended to the whole scope of application of the Directive, so that the national law of the Member-State where the event giving rise to damage occurred could be invoked under general rules (Article 4(1) of Rome II), but a more favourable lex locus damni would still remain accessible. Instead, by labelling national transposing laws as overridingly mandatory, that option seems to disappear, in a way that appears paradoxical vis-à-vis other rules of the Directive proposal that safeguard more favourable, existing solutions, such as in Article 1(2) and Article 22(4). If there is a political option of not allowing the application of third-country, more favourable law, that should probably be made clear.

With this present issue, Lex & Forum enters its second year of publication. The first four issues of the previous year were dedicated to the fundamental and most current issues of European private/procedural international law: the judicial cooperation after BREXIT (1st issue), the impact of 40 years since Greece joined the European Union to the internal Procedural Law (2nd issue), the importance of private autonomy in European private/procedural international law (3rd issue) and the accession of the European Union to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019 (4th issue). During the second year, the focus of the issues will now be shifting to individual disputes, influenced by European  procedural or private international law. The focus of the present issue refers to maritime differences, which are particularly important for our country. As data shows, while the population of Greece represents only 0.15% of the world population, the Greek-owned ships represent almost 21% of the world tonnage and 53% of the EU merchant fleet. Greek shipowners lead the world rankings in ship ownership with 17% for 2021, compared to colossal countries in terms of population and economy, such as China (15%) and Japan (12%) (data: IUMI 2021). Under these circumstances, maritime differences at the European and global scale are a particularly crucial chapter for our country’s economy and fully justify the involvement of this focus on this issue.

The ‘Praefatio’ of this Lex&Forum issue has the great honor of hosting the valuable thoughts of the former President of the CJEU (2003-2015), Prof. Vassilios Skouris, on the topic of mutual trust and recognition as key pillars of the European Union. The main topic of the issue (Focus) is dedicated to maritime disputes and was initially presented at an online event, on the 21st of February 2022, in collaboration with the most competent bodies on the subject, the Piraeus Court of First Instance and the Piraeus Bar Association (<https://www.sakkoulas.gr/el/info/events/archive/lex-forum-oi-navtikes-diafores-ston-evropaiko-kai-ton-pagkosmio-charti/>). The Focus in this issue incorporates the contribution of the Professor at the HSB Hochschule Bremen Ms. Suzette Suarez on arrest of ships in cases of environmental damages, the presentation of the Professor at  the University of Athens and Chair of the meeting Ms. Lia Athanassiou, regarding the treatment of foreign shipping companies by the Greek jurisprudence, and the ones of the Judges who served in the Mari­time Department of the Court of Piraeus, Mr. Antonios Alapandas, PhD, Judge at the Court of Appeal, on the special jurisdictional bases of maritime disputes, and Mr. Kyriakos Oikonomou, former Judge of the Supreme Court, on the choice of court agreements in maritime disputes, as well as the contributions of the Judge Mr. Antonios Vathrakokilis, on the applicable law to maritime privileges, and, finally, of Mr. Georgios Theocharidis, Professor of Maritime Law and Politics at the World Maritime University in Malmö, Sweden, on the International Convention on the ‘Judicial Sale of Ships’. Lex&Forum expresses its warmest thanks to the President of the Courts of First-Instance of Piraeus Council Judge Mr. Vassilios Tzelepis and the President of the Piraeus Bar Association Mr. Elias Klappas, as well as to all the rapporteurs for their honorable contributions.

The jurisprudence section of this issue includes the CJEU judgments, 15.7.2021, European Commission v. Poland, on the topic of national regulations restricting the independence of judges, with commentary by the scientific associate in the International Hellenic University Ms R. Tsertsidou, 7.5.2020, LG/Rina, on the concept of civil and commercial matters in case of an action against a ship classification and certification body under the authority of a third state, with a commentary by Dr. N. Zaprianos, 1.7.2021, UE, HC, on a European Certifi­cate of Succession of ‘indefinite time’, with commentary by Dr. S. Karameros, and 4.6.2020, FX/GZ, on international jurisdiction for the adjudication of the opposition against the execution of a maintenance claim, with commentary by the President of the Court of First Instance Mr. A. Vathrakokilis.

The national case law section features the following judgments:  Court of First Instance Piraeus No 3296/2020, on the appointment of an Interim Administration of a Shipping Company with a registered office abroad, with commentary by the PhD Cand. Ms. A. Lagoudi; Court of First Instance Korinthos No 1/2022, on the topic of parental care and maintenance of an out-of-marriage minor by parents of foreign citizenship, with commentary by Dr. G.-A. Georgiadis; Supreme Court decision No 1127/2020, on the applicable law on limitation periods in case of a lawsuit of an insurance company against a carrier, with commentary by Dr. A. Anthimos.

The issue includes as well the legal opinion of Professor Emeritus at the University of Athens Mr. Nikolaos Klamaris on the international jurisdiction of the Court of Piraeus (Department of Maritime Disputes) on a tort, committed in Piraeus by defendants based in Asia, while in the column L&F Praxis, the Judge Mr. Georgios Safouris presents the main practical problems of the referral questions to the CJEU within 11 Q&As.

Lex&Forum renews its scientific appointment with its subscribers for the next issue, focusing on the Internet and other emerging technologies within the EU and International legal order.

 

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The eighth EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

The EFFORTS Final Conference will take place on Friday, 30 September 2022. On that occasion, the Project Partners’ research groups will present the outcomes of the Project; increase awareness of the EFFORTS Regulations (Brussels Ia, European Enforcement Order, European Payment Order, European Small Claims Procedure and European Account Preservation Order); and evaluate and discuss the state of the art in EU and national legislation and practices relating to the implementation of the EFFORTS Regulations in the 7 targeted Member States. More details will follow in due course.

Regular updates are available on the Project website and via the Project’s LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

In a widely reported trip, members of the 5th Civil Chamber of the Higher Regional Court of Hamm, Germany, together with two court-appointed experts, travelled to Peru to collect evidence in one of Germany’s first climate-change lawsuits. The highly symbolic case has been brought by Saúl Luciano Lliuyas, a Peruvian farmer, who claims that man-made climate change and the resulting increased flood risk threatens his house in the Andes, which is located right below a glacial lake. Supported by two German NGOs, he seeks compensation from RWE, Europe’s single biggest emitter of carbon dioxide, for the equivalent of its contribution to worldwide human carbon dioxide emissions, i.e. 0.47 percent, of the additional protective measures he had to take to flood-prove his house.

The trip had already been scheduled in 2019 but was delayed by the Covid-19 pandemic. Its main purpose appears to have been the proper instruction of the two experts, who are charged with assessing the climate-change-related risk for the claimant and the extent of RWE’s potential contribution to it.

In terms of private international law, the case is straightforward. The German courts have international jurisdiction on the basis of Articles 4(1), 63(1) Brussels Ia as RWE has its statutory seat and central administration in Germany. As far as the applicable law is concerned, the claimant can rely on the privilege awarded to the (alleged) victims of environmental torts by Art 7 Rome II, according to which they may opt for the law of the country in which the event giving rise to the damage occurred (as opposed to the law of the country in which the damage occurred, which generally applies pursuant to Art. 4(1) Rome II), i.e. for German law in the case of pollutions caused by RWE’s power plants in Germany. Thus, the usual PIL problems of climate-change lawsuits (international jurisdiction based on Art. 7(2) or 8(1) Brussels Ia, immunity of state-owned corporations, predictability of the law of the place of the damage, application of Art. 17 Rome II, …) do not arise in this case.

Regarding the application of substantive German law, the case is much more open. In the first instance, the Regional Court of Essen outright rejected the claim for lack of a sufficient causal connection between RWE’s contribution to climate change and the specific risk of the claimant. This is in line with what might still be the majority position in German scholarship, according to which individual contributions to global climate change cannot trigger civil liability in tort or property law. The fact that the second-instance court has now started to collect evidence implies, however, that it considers the claim to succeed on the basis of the claimant’s submissions. Seen together with the German Constitutional Court quashing national legislation for being incompatible with Article 20a of the Constitution and international commitments to limit global warming in 2021, the lawsuit in Hamm may be a sign of German courts slowly adopting a more active position in the global fight against climate change, including with regard to civil liability.

Meetings & Events

From 17 to 19 May 2022, the First Meeting of the Special Commission on the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol was held in The Hague in hybrid format, attended by over 200 delegates representing HCCH Members, Contracting Parties and Observers. More information is available here. The meeting resulted in the adoption of over 80 Conclusions & Recommendations, providing guidance to (prospective) Contracting Parties on a wide range of issues relating to the implementation and practical operation of these instruments. More information is available here.

 

Publications & Documentation

On 25 May 2022, the Permanent Bureau announced the launch of the post-event publication of HCCH|Approach, “Advancing and Promoting the Protection of All Children”, an HCCH initiative organised in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. More information is available here.

 

Upcoming Events

Registrations are now open for the upcoming Conference on Conflicts of Jurisdiction, organised by the Journal of Private International Law and the Singapore Management University, with the support of the HCCH. The conference will be held online on 23 and 24 June 2022. More information is available here.

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.

 

What’s new in EU family law?

High-level conference on the Brussels IIb Regulation

8 September 2022 13h-16h CET

Hybrid Conference – European Parliament Brussels and Online

Hosted by

Ewa Kopacz

Vice President and European Parliament Coordinator on Children’s Rights

and

Didier Reynders

Commissioner for Justice

Please click here to register and to view the draft conference programme.

 

This high-level conference aims to draw attention to the novelties and important changes introduced by the Brussels IIb Regulation, which enters into application on 1 August 2022, and to provide a forum for an exchange of views with legal practitioners on cross-border family disputes involving children in the European Union.

The conference will provide participants with an opportunity to hear from experts in EU family law on the key changes to the Regulation and to engage in a moderated discussion on the topic through a Q & A session.

The event will be hosted online with the limited possibility to participate in person in Brussels*. Interpretation of the conference will be provided in 10 languages (DE, EN, FR, IT, EL, ES, PT, PL, BG, RO).

*Participation in this event is free. Please note that persons planning to attend this event in the European Parliament in Brussels do so at their own expense.

On Tuesday, June 7, 2022, the Hamburg Max Planck Institute will host its 23rd monthly virtual workshop Current Research in Private International Law at 11:00-12:30 CEST. Rosario Espinosa Calabuig (Universidad de Valencia) will speak, in English, about the topic

“Sorority, Equality and Private International Law“.

Gender perspective in Private International Law (PIL) can be claimed through the so-called Sorority: Solidarity between women against sexual discrimination. PIL becomes an ethical tool to fight for solidarity and against phenomena such as misogyny and sexism, among others. Different topics (such as application of Islamic law by national authorities, child abduction in cases of gender violence or transnational surrogacy) show how PIL can be a tool to promote equality rights and how sorority can reinforce this equality. So, there is a reciprocal influence between all of them.

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.

Webinar series: ‘Crossroads in Private International Law’ First webinar: ‘Strategic Climate Change Litigation in the EU: Between Judicial Restraint and Proactive Judicial Policy’ The Aberdeen Centre for Private International Law invites you to a webinar titled ‘Strategic Climate Change Litigation in the EU: Between Judicial Restraint and Proactive Judicial Policy’. It is the first webinar within the Centre new webinar series ‘Crossroads in Private International Law’. The event will be delivered by Nevena Jevremovic, Honorary Lecturer at the Aberdeen School of Law and moderated by Professor Guillaume Laganière from the Université du Québec à Montréal (UQAM). The webinar will be held on Wednesday 01 June 2022, 4-5pm UK time, through MS Teams.  Click here for more information and registration

The ASADIP is pleased to share with you the Partnership entered into with the International Academy of Comparative Law (IACL) and the Center for the Study of Law, Economics and Policy (CEDEP) with a view to hold its annual event. The XV Conference of the Association: “A private international law to transform the world” will take place on October 27, 2022 in the city of Asunción, Paraguay during the General Congress of the International Academy of Comparative Law, which will take place from October 23 to 28, 2022. The ASADIP invites you especially to be able to participate and meet again in this very special year. The opening of early registration for the General Congress is imminent. For the first time there will be simultaneous interpretation into Spanish during the Congress. The opportunity presented by this conjunction of activities and specialists of the highest level from all continents is unique. More information here. A call for papers is forthcoming.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 26 May 2022 at 3:00 pm (Mexico City time – CDT), 10:00 pm (CEST time). The topic of the webinar is The impact of artificial intelligence on Private International Law and will be presented by Professor Wendolyne Nava, Professor Yaritza Pérez and Roberto Falcón (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/84254265759?pwd=0r4SHVY24q8DByvWf236cKaQo1mPXF.1

Meeting ID: 842 5426 5759

Password: BMAAMEDIP

Participation is free of charge.

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

Based on a tweet by the ‘enfant terrible of tech’, Elon Musk, Michael Douglas recently discussed ‘Conflict of Laws of Freedom of Speech on Elon Musk’s Twitter’ on this blog. In a new volume published by Mohr Siebeck, Anna Bizer adresses similar questions, from the point of view of German and European PIL. Starting from the observation that social media challenges the existing legal framework (even more so than the internet itself) by incentivizing the sharing of, and interaction with content, and thus perpetuating violations of personality rights, even where the original author of a post has already deleted it, the author focuses on three areas of law: contract law, tort law, and data protection.

As far as questions of contract law are concerned, Bizer rightly puts an emphasis on the fact that social media platforms often involve a triangle (or pyramid) of contractual relationships between the hosts and at least two users. Regarding the relationship between the host and individual users, she identifies the delineation between private and professional use (only one of which triggers the consumer rules in the Brussels Ia and Rome I Regulations) as the main problem and argues in favour of a much wider understanding of the consumer definition. Regarding the relationship between multiple users of the same service, she rightly acknowledges the potential of the platform contract to influence the applicable law via Art. 4(3) Rome I.

Concerning tort law, Bizer is generally critical of the existing legal framework under Art. 40–42 of the German EGBGB (infringements of personality rights being excluded from the Rome II Regulation). Instead of giving the claimant a choice between Handlungsort (place of acting) and Erfolgsort (place of damage), potentially leading to a mosaic of applicable laws, the applicable law should be determined by identifying the objective centre of the violation, with the intended readership of a given publication as the guiding criterion, which may be supplemented, if necessary, by the CJEU’s centre-of-interests criterion and the place of acting. Again, the author acknowledges that the contract for the social media platform might be taken into account via an escape clause (i.e. Art. 41 EGBGB).

In addition to questions of data protection, the author also addresses the role of the e-Commerce Directive’s country-of-origin rule and the ordre public in what is a well-argued, excellently researched book on a highly topical question.

The American Law Institute is currently drafting the Restatement (Third) of Conflict of Laws. Lea Brilmayer (an eminent scholar of conflict of laws and a professor at Yale Law School) and Kim Roosevelt (the Reporter for the Restatement (Third) and a professor at the University of Pennsylvania Carey Law School) recently engaged in a spirited debate about the current state of that project. Brilmayer and Daniel Listwa argued here that the current draft needs less theory and more blackletter rule. Roosevelt argued in response that the critics identify a problem that does not exist and propose a solution that would make things worse.

This exchange — the latest back-and-forth in a conversation between these interlocutors — is likely to prove illuminating to anyone curious about the status of the Restatement (Third) in the United States.

The Rovira i Virgili University (Tarragona), University of Barcelona and University of Lleida organise the First International Seminar on Rights In Rem in the European Union: General Aspects and International Jurisdiction.

The seminar seeks to define the concept of rights in rem in the framework of European private international law and comparative law, and to identify the problematic aspects arising from the characterisation of such a concept in terms of both the delimitation of the legal instruments applicable to this matter, and of its application in the Spanish legal system as the representative of a State in which several systems of law coexist. Moreover, in terms of jurisdiction, the Seminar will also address the problems of the delimitation of the rule of jurisdiction applicable under the Brussels I bis Regulation. The Seminar is divided into four panels dealing with three major topics:
· The approach to the concept of rights in rem in European comparative private law and European private international law
· Rights in rem in the Spanish legal system and the state’s internal conflict of laws
· Rights in rem and international jurisdiction under the Brussels I bis Regulation.

In addition to the invited speakers whose topics are indicated in the programme, the Seminar is open to those interested in presenting their short communications on the topic. Applications for submitting a communication proposal must include the following information: author’s personal information and academic position; topic selected; title of the paper and an abstract of between 300 and 500 words in length. Proposals for communications should be sent to: mireia.eizaguirre@urv.cat by 12 September 2022. More information is available in the call for communications.

You are welcome to take a look at and share the official seminar leaflet.

This Seminar is part of the activities within the project PID2020-112609GB-I0 Property Rights System over Tangible Goods in the Field of European Private International Law: Aspects of International Jurisdiction and Applicable Law, funded by the Spanish Government.

The fourth German Conference for Young Scholars in Private International Law, held on site at the Sigmund Freud University in Vienna on 23 and 24 February 2023 (we have posted about the event previously here), has issued a call for papers. Proposals are invited for conference presentations (20 min.; to be published) and short presentations (5-10 min.; non-published). Furthermore, the organizers proudly announced that the keynote lecture will be delivered by Professor Horatia Muir Watt (Sciences Po).

The organizers describe the purpose of these proposals and the goals of the conference as follows (emphasis added):

 

“The theme of the conference will be

Deference to the foreign
– empty phrase or guiding principle of private international law?

As part of any legal system, rules of private international law are determined by the principles of the respective national jurisdiction, but they also open up the national system to foreign rules. This creates the challenge of reconciling foreign law and foreign values with the national legal system. At the conference, we will seek to explore whether and to what extent deference to the foreign is a pervasive principle in private international law. In doing so, we will look at the methods of private international law as well as interdisciplinary approaches to the justification and implementation of said principle.

 

The theme invites discussion of fundamental questions:

• What is the history of deference to the foreign in private international law?
• Does European Union law lead to a new understanding of the foreign and, in particular, to a stronger delineation from third countries?
• To what extent does mutual trust function as a basis of deference to the foreign in the pro- cess of internationalisation and Europeanisation?
• What is the relationship between deference to the foreign and escape clauses, overriding mandatory provisions, preliminary questions, local data theory (Datumtheorie), renvoi, and public policy clauses?
• What is the role of fundamental and human rights in the context of deference to the foreign?
• Are there tendencies in private international law, specific to or across different areas of law, towards a decline of the principle of deference to the foreign?
• Which levels of acceptance, integration, or assimilation are recognised in private interna- tional law?
• What is the importance of deference to the foreign in the European area of justice?

 

Contributions can also focus on the relationship between deference to the foreign and the methods of private international law:

• What is the role of methods and private international law concepts in implementing the principle of deference to the foreign (e.g. substitution or recognition)?
• Which insights does legal pluralism offer in relation to deference to the foreign?
• What are the insights of interdisciplinary approaches to the justification and methodological implementation of the principle of deference to the foreign?
• Are there parallels between the conflict of laws approach to deference to the foreign and approaches in other sciences or arts?

 

Various examples can serve as illustrations of whether and how private international law imple- ments the principles of deference to the foreign in specific areas, for instance:

• The influence of EU freedom of movement on the recognition of legal situations or a per- son’s status, such as same-sex marriages or parenthood
• The recognition of foreign citizenship of multinationals
• The importance of deference to the foreign in the regulation of international supply chains
• Deference to the foreign in economic law within the EU, g. by means of the European Passport in banking and capital market law

 

We are looking forward to contributions which take up the theme of deference to the foreign. The examples given above are mere suggestions and should not limit the scope of suitable topics. We welcome contributions from all areas of private international law and international civil procedure as well as from international arbitration and uniform law.

 

Formalities

Speakers are invited to give a presentation of approximately 20 minutes (in either German or English). The written contributions will later be published in a conference volume with Mohr Siebeck.

The conference programme will also include smaller discussion rounds in which short presentations of approximately 5-10 minutes can be given. These contributions will not be published. We are also looking forward to abstracts for such short presentations.

The deadline for the submission of proposals is 12 September 2022. Please send your proposal to ipr@sfu.ac.at. The proposal should contain:

• an anonymised abstract (not exceeding 800 words) in pdf format, and
• a short cover letter, preferably in the e-mail, containing the speaker’s name, address, and institutional affiliation, as well as
• the indication whether the abstract proposes a conference presentation (20 minutes)

and/or a short presentation in the smaller discussion rounds.

 

Please do not hesitate to contact us, if you have any further questions (ipr@sfu.ac.at).

We are very much looking forward to your proposals.

 

Kind regards:
Andreas Engel | Florian Heindler | Katharina Kaesling | Ben Köhler
Martina Melcher | Bettina Rentsch | Susanna Roßbach | Johannes Ungerer

 

More information is available at https://tinyurl.com/YoungPIL.”

Written by Pedro Lacasa, Legal Consultant, Universidad Nacional de Asunción

There is no doubt that the use of emerging technologies has impacted the international arbitration arena. This tech revolution was unprecedently accelerated by the 2020 pandemic whilst national States’ borders were closed, and travel activity diminished (if not directly forbidden by some States).

The increase of the application of the Blockchain technology in commercial contracts and the proliferation of smart contracts (even though some think they are in essence merely a piece of software code[1]) have reached the point of being a relevant part of international commerce and suddenly they demand more attention than before (see the overview of these new technologies and its impact in arbitration here http://arbitrationblog.kluwerarbitration.com/2019/01/27/2018-in-review-blockchain-technology-and-arbitration/).

The omnipresence of technology in arbitration and the application of the blockchain technology to dispute resolution mechanisms in the international arena led to the naissance of the ‘blockchain arbitration’.

But just because a method focuses on dispute resolution, is not ipso facto a proper ‘arbitration’.

While the utilization of a trusted chain of information enhanced by technology is encouraged in arbitration proceedings, particularly in international arbitrations, we must underscore the fact that not any dispute resolution mechanism is a proper ‘arbitration’… not even if based on the blockchain.

Blockchain arbitration models do not share some of the essential features of arbitration. The parties cannot choose the arbitrator in charge freely. They cannot easily choose aspects like the language of the procedure, the nationality of the arbitrators, the qualification of the arbitrators, the applicable law, etc. If the parties choose the arbitrators based on their qualifications or nationality, such choices can directly impact the availability of the existing ‘blockchain arbitrators’. A fortiori, the parties cannot choose the applicable law to the arbitration itself or to the merits of the dispute either.

Nominating the arbitrators

In Kleros, one of the most popular blockchain arbitration applications, the candidates for adjudicators first self-select themselves into specific courts (i.e., specific types of disputes) and then, the final selection of the adjudicators is done randomly (meaning a party cannot directly nominate someone in particular as an arbitrator for the underlying dispute). As it specifies in its whitepaper[2] “contracts will specify the options available for jurors to vote”, meaning the contract itself is the first factor that restrain party autonomy. In Kleros anyone can be an adjudicator. The probability of being drawn as an adjudicator for a dispute is proportional to the amount of tokens such user stakes within the platform.

Whilst other platforms such as Aragon[3] use the same drafting (of adjudicators) system, networks such as Jur[4], Mattereum and Sagewise[5] use a system that go a step closer to the International Arbitration legal framework (like the 1958 New York Convention, the UNCITRAL Model Law, etc.) in order to make their awards more enforceable worldwide but still lack the flexibility of a wider private autonomy and the role of the conflicts of laws, both present in classical international commercial arbitration processes.

These blockchain-based dispute resolution adjudicators are referred also as ‘jurors’[6]. ‘Jurors’ are Blockchain users elected to vote in favor of one of the parties to the underlying dispute utilizing the Schelling Point method.

But without even analyzing what the Schelling Point methodology has to do with the art of rendering justice in a definitive and final manner, we must ask the question: if the ‘jurors’ have more features of a jury and not of an arbitrator, why do we call a mechanism that solves disputes through decisions made by jurors and not by arbitrators arbitration?

Moreover, these jurors, like users of the Blockchain, have a direct economic interest in serving as jurors in the dispute at hand[7]. However, to think that an arbitrator decided to assume the task of being a part of an arbitral tribunal in an international arbitration constituted to resolve an international dispute, only because that would mean eventually more money to him, is an obscure idea at best. Such arbitrator was elected because of his or her qualities, experience, background, and reputation. This also occurs in domestic arbitrations. Nonetheless, such private autonomy is not possible in some blockchain arbitrations.

It is one thing to refer to such mechanisms as blockchain-based methods. But it is completely different is to maintain that such mechanisms are indeed ‘arbitrations’ stricto sensu[8], just like suggested by many authors[9] and professional associations such as the Blockchain Arbitration Society

Although the global society must embrace all the tech innovations regarding dispute resolution, the clear definition of what is an ‘arbitration’ and what is not should be a healthy practice.

Conclusion

Overall, the technology evolution within the dispute resolution mechanisms is here to stay. This disruption needs a twofold adaptation: on one hand, the parties on an international contractual commercial relationship must adapt themselves to the new ways of solving disputes. The same goes for Sovereign States, that must update their domestic and international legislation to recognize and somehow regulate such new dispute resolution mechanisms.

On the other hand, these platforms for dispute resolution must adapt to the historical surrounding of the conflict solving industry, calling a dispute resolution mechanism for what it is and avoid euphemisms.

Lastly, the misconception on the dispute resolution mechanisms and international arbitration procedures may provoke a confusion to the detriment of the users of such digital networks.

 

[1] See Charlie Morgan ‘Will the Commercialisation of Blockchain Technologies Change the Face of Arbitration?’ [Kluwer Arbitration Blog, March 5, 2018] available at http://arbitrationblog.kluwerarbitration.com/2018/03/05/topic-to-be-confirmed/.

[2] Kleros white paper [September 2019] available at https://kleros.io/whitepaper.pdf.

[3] See “Juror staking” and “ Juror drafting” https://github.com/aragon/whitepaper.

[4] See “Open Justice Platform” in Jur’s whitepaper V 3.0.0  [March 2021], available at https://jur.io/wp-content/uploads/2021/03/jur-white-paper-v.3.0.0.pdf.

[5] See Darcy W.E. Allen, Aaron M. Lane & Marta Poblet, ‘The Governance of Blockchain Dispute Resolution’ [Harvard Negotiation Law Review, vol. 25, issue 1, Fall 2019] 75-102.

[6] Maxime Chevalier, ‘From Smart Contract Litigation to Blockchain Arbitration, a New Decentralized Approach Leading Towards the Blockchain Arbitral Order’ [Journal of International Dispute Settlement, vol. 12, issue 4, December 2021] 558 – 584 https://academic.oup.com/jids/article-abstract/12/4/558/6414874?redirectedFrom=PDF.

[7] Kleros white paper [September 2019] available at https://kleros.io/whitepaper.pdf.

[8] See for example Sharath Mulia & Romi Kumari, ‘Blockchain Arbitration: The Future of Dispute Resolution’ [Fox Mandal, November 2021] available at https://www.foxmandal.in/blockchain-arbitration-the-future-of-dispute-resolution/.

[9] For example, see Ritika Bansal, ‘Enforceability of Awards from Blockchain Arbitrations in India [August 2019] available at: http://arbitrationblog.kluwerarbitration.com/2019/08/21/enforceability-of-awards-from-blockchain-arbitrations-in-india/.

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 18th annual conference, taking place from 5-6 October 2022 in Dubrovnik (Croatia). Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference: “Insolvency Law in Times of Crisis”

The conference is intended to focus on, inter alia, the following overall topics:

• The longer-term impact of the COVID-19 pandemic on insolvency and restructuring laws in the EU and elsewhere;
• The impact of geopolitical crises and macro-economic uncertainties on insolvency and restructuring laws in the EU and elsewhere;
• Reflections on the implementation of the Preventive Restructuring Directive 2019/1023 Directive;
• Cross-border issues relating to the new restructuring frameworks, and
• Reflections on the EU initiative for further harmonization of insolvency laws.

The IEAF board also invites submissions on other topics that fall with in the scope of the overall theme of the conference.

 

Conference methodology

In line with the practice established in our past academic conferences, the intention for the autumn conference is to have research papers that challenge existing approaches, stimulate debate and ask, and attempt to answer, comparative and interdisciplinary questions about the above-mentioned topics. Accordingly, proposals are invited that do more than just outline a topic of interest in respect of any given jurisdiction, but seek to understand, analyse and critique the fundamentals of insolvency and restructuring systems in ways that are relevant across jurisdictions and across fields of academic inquiry. All contributions must be in English.

 

Presenting at the IEAF conference

Expressions of interest in delivering papers within the conference theme should be sent by email on or before 15 June 2022 to the INSOL Europe Academic Forum’s Secretary. Authors of papers selected for presentation will benefit from a waiver of the participation fee for the academic conference, however, they will be responsible for their own travel and accommodation costs. A limited number of travel grants will be available to junior scholars invited to present.

For further information, see: www.insol-europe.org/academic-forum-events

Our esteemed co-editor Mukarrum Ahmed has recently published a book titled Brexit and the Future of Private International Law in English Courts with Oxford University Press. He has kindly provided us with the following summary:

This book is the first full length study of the private international law implications of Brexit in a single consolidated resource. It provides an analytical and authoritative commentary on the impact of Brexit upon jurisdiction, foreign judgments, and the applicable law in civil and commercial matters. By discussing the principal post-Brexit changes in England, this book faces towards the future of private international law in English courts. It utilises a once-in-a-generation opportunity to analyse, understand, and reframe some fundamental assumptions about private international law with a view to suggesting adjustments and law reform.

Ahmed argues that a conscious unlearning of the central precepts of EU private international law would be detrimental to the future of English private international law. The multilateral issues that lie ahead for the discipline rely on the legal epistemology of EU private international law, which also serves as a useful reference point when comparing aspects of English private international law. Unshackled from the EU’s external competence constraints, the UK will have the opportunity to play a more prominent role in the development of the Hague Conference’s global instruments. A methodologically pluralist approach to English private international law may be the best route to sustain its global leadership in this field, as well as simultaneously assimilating the best private international law developments from the Commonwealth, Europe, and beyond.

In the context of the Vici project ‘Affordable Access to Justice’ at Erasmus School of Law (financed by the Dutch Research Council – NWO), the Project team organises a series of seminars dedicated to the Trends and Challenges in Costs and Funding of Civil Justice.

The Project’s Fifth Seminar is scheduled, in an online format, for Wednesday, 25 May 2022 (15:00-17:00 CEST) on the topic “Funding and Costs of ADR in the Civil Justice System”.

Speakers: Sue Prince (University of Exeter, UK), Nicolas Kyriakides (University of Nicosia, Cyprus), Dorcas Quek Anderson (Singapore Management University, Singapore); Moderator: Masood Ahmed (University of Leicester, UK).

For the complete program and online registration, please see here.

The Project’s Sixth Seminar, which concludes the series, will take place on Wednesday, 22 June 2022 (14:00-18:00 CEST) in a hybrid format (online and in-person attendance possible) on the topic “Future Regulation of Third-Party Litigation Funding”.

Session I – Current Status and the Need for Further Regulation?: Keynote address by Geert Van Calster (KU Leuven, Belgium); Roundtable with the participation of Paulien van der Grinten (Senior Legislative Lawyer, Ministry of Justice and Security, the Netherlands), Johan Skog (Partner, Kapatens, Sweden), David Greene (Partner, Edwin Coe, England); Moderator: Xandra Kramer (Erasmus University Rotterdam/Utrecht University, the Netherlands).

Session II – Modes and Levels of Regulation: Discussion panel with the participation of Kai Zenner (European Parliament, Head of Office (MEP Axel Voss)), Tets Ishikawa (Managing Director, LionFish Litigation Finance Ltd, England), Victoria Sahani (Arizona State University, USA), Albert Henke (Università degli Studi di Milano, Italy); Moderator: Eva Storskrubb (Uppsala University, Sweden) (member of the VICI project at Erasmus University Rotterdam).

The Sixth Seminar is set up in a hybrid format. The complete program and a more detailed description of the two sessions may be found here. You can register and participate either in person or online.

With thanks to Eduardo Silva de Freitas for the tip-off.