Conflictoflaws

The following conference report has been provided by Benjamin Saunier, Research Assistant at the Université Paris 2 Panthéon-Assas and Doctoral Candidate at the Université Paris 1 Panthéon-Sorbonne.

The EAPIL Young Research Network held a conference on the topic Jurisdiction over non-EU defendants – Should the Brussels Ia Regulation be extended? on Saturday 14 and Sunday morning 15 May. The conference took place in Dubrovnik, Croatia, at the International University Centre operated by the University of Zagreb, which had co-funded the event together with the EU Commission. It gathered specialists from all over the world, including the non-EU Member States.

The conference was part of an ongoing research project directed by Drs Tobias Lutzi (Cologne/Augsburg), Ennio Piovesani (Torino) and Dora Zgrabljic Rotar (Zagreb). As explained by the organisers at the outset of the conference, the project, launched in June 2021, was inspired by Article 79 of the Brussels Ia Regulation, which provides for the EU Commission to come up with a report on the application of the Regulation, addressing in particular the need to extend its rules to defendants not domiciled in a member state. While the report has yet to be released, the organisers rightly felt it was of great interest to compare the practice of Member States for those cases where the defendant is not subject to rules of direct jurisdiction in the Regulation.

A questionnaire on autonomous, national law on international jurisdiction was sent last year to the 23 participants in the project, who cover 17 Member States of the EU. The questionnaire contained the following questions (here summarised):

– What are the sources of rules on international jurisdiction in your country?
– How is the domicile defined for jurisdictional purposes? Is there a general rule of jurisdiction based on a ground other than domicile of the defendant?
– Is there a forum necessitatis? What are the equivalents of the Regulation Article 7(1) for contractual claims, 7(2) for torts, 8(1) for close connection between defendants, and the equivalents of protective heads of jurisdiction such as the one for consumer law disputes?
– Is your country party to any (bilateral or multilateral) treaty that provides direct rules of jurisdiction in civil and commercial matters?

The national reports were submitted last February and the organisers were able to share some of their (preliminary) conclusions, which will eventually make their way into a book along with the national reports and some of the interventions heard in Dubrovnik. Not all of the findings could be introduced in this report, which only serves as a short teaser for the book.

Tobias Lutzi pointed out that most of the states surveyed, which already make up for the majority of the EU Member States, have adopted specific rules for international jurisdiction. Some of these countries have already extended the rules of the Regulation, or taken substantial inspiration from them. Even courts of the member states that have not adopted specific rules on international jurisdiction did on some occasion take some inspiration from the EU rules when applying the principle of ‘double functionality’, which sees international jurisdiction as entailed by local jurisdiction. This was addressed in details by the members of the first panel of Saturday, which focused on the topic of the influence of EU law on national rules and was composed of Tess Bens, Dr Stefano Dominelli, Dr Dafina Sarbinova and Benjamin Saunier.

Dora Zgrabljic Rotar remarked that in most countries, the same definition of the domicile was applied in international and domestic cases for jurisdictional purposes (which is not to say that the definition itself is the same in all those countries). The majority of the jurisdictions surveyed use the statutory seat as well as the actual seat in order to determine the domicile of a legal person. As for bases of general jurisdiction apart from the defendant’s domicile, most of the countries surveyed seem to have one, be it habitual residence, mere presence, or property of the defendants. Only two of these countries still give relevance to nationality of either party to a litigation in that regard. The existence of a forum necessitatis is also a distinctive feature of the countries implementing it. Speakers of the second panel of Saturday (Vassiliki Marazopoulo, Giedirius Ožiunas, Dr Ioannis Revolidis, Dr Anna Wysocka-Bar), dealing with the peculiarities of autonomous law of the Member States, all had the opportunity of explaining, among other things, whether or not, and why, their home jurisdiction had a forum necessitatis rule.

The third panel of Saturday, composed of Professors Ronald Brand, Burkard Hess and Margerita Salvadori addressed the issue of “extending the Brussels Ia Regulation”, which echoes the project title “should the Regulation be extended?”. The panellists put things in a broad perspective, addressing the discrimination (Ronald Brand) and recognition and enforcement of judgements issues (Burkard Hess) that would be associated with an extension (or non-extension) of the Regulation, as well as the possibility of following a method based on reciprocity in an extended Regulation (Margerita Salvadori).

Participants were also provided with a look at the “bigger picture” thanks to the presentations on Sunday. Dr Johannes Ungerer for the UK and Dr Marko Jovanovic for Serbia both presented third state perspectives. Finally, Dr Ning Zhao gave a thorough presentation of the negotiations held in the Hague Conference since the early 1990s on the issues discussed at the conference, their achievements so far (2005 Choice-of-Court Agreements and 2019 Judgements conventions) and orientations.

The interventions and exchange among participants made for two very pleasant days. The gorgeous setting of Dubrovnik also played its part in making the conference a great success. As Ronald Brand put it, the question asked in the project title raises multiple further questions, so that it can be hoped that no matter what the future holds for the Brussels Ia Regulation, projects such as this one will be happening more and more.

Many thanks to Olivera Boskovic and Caroline Kleiner for this post.

Monday 30 and Tuesday 31 May 2022
Paris Cité University

The determination of jurisdiction and applicable law in the field of non-contractual obligations largely depends on the localisation of damage. However, this can prove to be very difficult, or even impossible. What is the current method used by courts? Are there divergent approaches between the EU and non-EU countries?

The conference will tackle these questions by addressing first, the localisation in different sectors (competition law, financial law, product liability, personality rights, intellectual property and environment). The idea, here, is to confront the EU approach with the approach of non EU countries. Second, a series of round tables aim at analyzing whether there are particular influences on the method of localisation depending on various elements relating either to the content of the actions, or to the nature of the legal situation, or in relation to subjective factors.

The conference is convened by Olivera Boskovic and Caroline Kleiner.

Speakers include Laurence Idot, Ugljesa Grusic, Aline Tenenbaum, Dmitriy Galushko, Etienne Farnoux, Veronica Ruiz Abou-Nigm, Ludovic Pailler, Symeon C. Symeonides, Tristan Azzi, Zhengxing Huo, Yuko Nishitani, Sandrine Clavel, François Mailhé, Cyril Nourissat, Yves El Hage, Matthias Lehmann, Sarah Laval, Maude Minois, Pascal de Vareilles-Sommières.

The full programme is here.

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/)

 

P. Hay: On the Road to a Third American Restatement of Conflicts Law

American private international law (Conflict of Laws, “Conflicts Law”) addresses procedure (jurisdiction of courts, recognition of judgments) as well as the choice of the applicable law. The last of these has been a mystery to many scholars and practitioners – indeed, even in the United States. Since 2014 the American Law Institute2 now seeks to draft a new “Restatement” – the Third – of the subject, with the aim to clarify and perhaps to bring more uniformity to the resolution of conflict-of-laws problems. The following comments first recall the role of restatements in American law. The second part provides some historical background (and an assessment of the current state of American conflicts law, as it relates to choice of law) in light of the Second Restatement, which was promulgated in 1971. The third part addresses the changes in methodology adopted and some of the rules so far proposed by the drafters of the future new Restatement. Examples drawn from existing drafts of new provisions may serve to venture some evaluation of these proposed changes. In all of this, it is important to bear in mind that much work still lies ahead: it took 19 years (1952–1971) to complete the Second Restatement.

 

L. Hübner: Climate change litigation at the interface of private and public law – the foreign permit

The article deals with the interplay of private international law, substantive law, and public law in the realm of international environmental liability. It focuses on the question, whether the present dogmatic solution for the cognizance of foreign permits in “resident scenarios” can be extended to climate change scenarios. Since there exists significant doubts as to the transferability of this concept, the article considers potential solutions under European and public international law.

 

C. Kohler: Recognition of status and free movement of persons in the EU

In Case C-490/20, V.M.A., the ECJ obliged Bulgaria to recognise the Spanish birth certificate of a child in which two female EU citizens, married to each other, were named as the child’s parents, as far as the implementation of the free movement of persons under EU law was concerned, but left the determination of the family law effects of the certificate to Bulgarian law. However, the judgment extends the effects of the recognition to all rights founded in Union law, including in particular the right of the mobile Union citizen to lead a “normal family life” after returning to his or her country of origin. This gives the ECJ the leverage to place further effects of recognition in public law and private law under the protection of the primary and fundamental rights guarantees of EU law without regard to the law applicable under the conflict rules of the host Member State. The author analyses these statements of the judgment in the light of European and international developments, which show an advance of the recognition method over the traditional method of referral to foreign law in private international law.

 

W. Hau: Interim relief against contracting authorities: classification as a civil and commercial matter, coordination of parallel proceedings and procedural autonomy of the Member States

After a Polish authority awarded the contract for the construction of a road to two Italian companies, a dispute arose between the contracting parties and eventually the contractors applied for provisional measures in both Poland and Bulgaria. Against this background, the ECJ, on a referral from the Bulgarian Supreme Court of Cassation, had to deal with the classification of the proceedings as a civil and commercial matter and the coordination of parallel interim relief proceedings in different Member States. The case also gave the ECJ reason to address some interesting aspects of international jurisdiction under Article 35 of the Brussels Ibis Regulation and the relationship between this provision and the procedural laws of the Member States.

 

M. Thon: Jurisdiction Clauses in General Terms and Conditions and in Case of Assignment

Choice of court agreements are one of the most important instruments of international civil procedure law. They are intended to render legal disputes plannable and predictable. The decision under discussion comes into conflict with these objectives. In DelayFix, the CJEU had to deal with the question of whether (1.) Art. 25 of the Brussels Ibis Regulation is to be interpreted as precluding a review of unfairness of jurisdiction clauses in accordance with Directive 93/13/EEC and whether (2.) an assignee as a third party is bound by a jurisdiction clause agreed by the original contracting parties. The first question is in considerable tension between consumer protection and the unification purpose of the Brussels Ibis Regulation considering that the Member States may adopt stricter rules. For the latter question, the CJEU makes it a prerequisite that the assignee is the successor to all the initial contracting party’s rights and obligations, which regularly occurs in the case of a transfer of contract, but not an assignment. In this respect, too, the CJEU’s decision must be critically appraised.

 

C.F. Nordmeier: International jurisdiction and foreign law in legal aid proceedings – enforcement counterclaims, section 293 German Code of Civil Procedure and the approval requirements of section 114 (1) German Code of Civil Procedure

The granting of legal aid in cases with cross-border implications can raise particular questions. The present article illustrates this with a maintenance law decision by the Civil Higher Regional Court of Saarbrücken. With regard to international jurisdiction, a distinction must be made between an enforcement counterclaim and a title counterclaim. The suspension of legal aid proceedings analogous to section 148 of the German Code of Civil Procedure with pending preliminary ruling proceedings before the European Court of Justice in a parallel case is possible. When investigating foreign law in accordance with section 293 of the German Code of Civil Procedure, the court may not limit itself to “pre-ascertaining” foreign law in legal aid proceedings. In principle, the party seeking legal aid is not obliged to provide information on the content of foreign law. If the desired decision needs to be enforced abroad and if this is not possible prospectively, the prosecution can be malicious. Regardless of their specific provenance, conflict-of-law rules under German law are not to be treated differently from domestic norms in legal aid proceedings.

 

R.A. Schütze: Security for costs under the Treaty of Friendship, Commerce and Navigation between the Federal Republic of Germany and the United States of America

The judgment of the Regional Court of Appeal Munich deals with the application of the German-American Treaty of Friendship, Commerce and Navigation as regards the obligation to provide security of costs in German civil procedure, especially the question whether a branch of plaintiff in Germany reliefs him from his obligation under section 110 German Code of Civil Procedure. The Court has based its judgment exclusively on article VI of the Treaty and section 6 and 7 of the protocol to it and comes to the conclusion that any branch of an American plaintiff in Germany reliefs him from the obligation to put security of costs.

Unfortunately, the interpretation of the term “branch” by the Court is not convincing.

The court has not taken into regard the ratio of section 110 German Code of Civil Procedure. The right approach would have been to distinguish whether the plaintiff demands in the German procedure claims stemming from an activity of the branch or from an activity of the main establishment.

 

P. Mankowski: Whom has the appeal under Art. 49 (2) Brussels Ibis Regulation to be (formally) lodged with in Germany?

Published appeal decisions in proceedings for the refusal of enforcement are a rare breed. Like almost anything in enforcement they have to strike a fine balance between formalism and pragmatism. In some respects, they necessarily reflect a co-operative relationship between the European and the national legislators. In detail there might still be tensions between those two layers. Such a technical issue as lodging the appeal to the correct addressee might put them to the test. It touches upon the delicate subject of the Member States’ procedural autonomy and its limits.

 

K. Beißel/B. Heiderhoff: The closer connection under Article 5 of the Hague Protocol 2007

According to Article 5 of the Hague Protocol 2007 a spouse may object to the application of the law of the creditor’s habitual residence (Article 3 of the Protocol) if the law of another state has a “closer connection” with the marriage. The Local Court of Flensburg had to decide whether there was a “closer connection” to the law of the state, in which the spouses had lived together for five years in the beginning of their marriage. The criteria which constitute a “closer connection” in the sense of Article 5 of the Protocol have received comparatively little discussion to date. However, for maintenance obligations, the circumstances at the end of marriage are decisive in order to ascertain the claim. Therefore, they should also have the greatest weight when determining the closest connection. This has not been taken into account by the Local Court of Flensburg, which applied the law of the former common habitual residence, the law of the United Arab Emirates (UAE).

The authors also take a critical stance towards the Court’s assessment of public policy under Article 13 of the Protocol. As the law of the UAE does not provide for any maintenance obligations of the wife (as opposed to maintenance obligations of the husband), the Court should not have denied a violation.

 

M. Lieberknecht: Transatlantic tug-of-war – The EU Blocking Statute’s prohibition to comply with US economic sanctions and its implications for the termination of contracts

In a recent preliminary ruling, the European Court of Justice has fleshed out the content and the limitations of the EU’s Blocking Statute prohibiting European companies from complying with certain U.S. economic sanctions with extraterritorial reach. The Court holds that this prohibition applies irrespective of whether an EU entity is subject to a specific order by U.S. authorities or merely practices anticipatory compliance. Moreover, the ruling clarifies that a termination of contract – including an ordinary termination without cause – infringes the prohibition if the terminating party’s intention is to comply with listed U.S. sanctions. As a result, such declarations may be void under the applicable substantive law. However, the Court also notes that civil courts must balance the Blocking Statute’s indirect effects on contractual relationships with the affected parties’ rights under the European Charter of Fundamental Rights.

 

E. Piovesani: The Falcone case: Conflict of laws issues on the right to a name and post-mortem personality rights

By the commented decision, the LG Frankfurt dismissed the action of two Italian claimants, namely the sister of the anti-mafia judge Falcone and the Falcone Foundation, for protection of their right to a name and the said judge’s postmortem personality right against the owner of a pizzeria in Frankfurt. The decision can be criticized on the grounds that the LG did not apply Italian law to single legal issues according to the relevant conflict of laws rules. The application of Italian law to such legal issues could possibly have led to a different result than that reached by the court.

 

M. Reimann: Jurisdiction in Product Liability Litigation: The US Supreme Court Finally Turns Against Corporate Defendants, Ford Motor Co. v. Montana Eighth Judicial District Court / Ford Motor Company v. Bandemer (2021)

In March of 2021, the US Supreme Court handed down yet another important decision on personal jurisdiction, once again in a transboundary product liability context. In the companion cases of Ford Motor Co. v. Eighth Montana District Court and Ford Motor Co. v. Bandemer, the Court subjected Ford to jurisdiction in states in which consumers had suffered accidents (allegedly due to a defect in their vehicles) even though their cars had been neither designed nor manufactured nor originally sold in the forum states. Since the cars had been brought there by consumers rather than via the regular channels of distribution, the “stream-of-commerce” theory previously employed in such cases could not help the plaintiffs (see World-Wide Volkswagen v. Woodson, 444 U.S. 286, 1980). Instead, the Court predicated jurisdiction primarily on the defendant’s extensive business activities in the forum states. The problem was that these in-state activities were not the cause of the plaintiffs’ harm: the defendant had done nothing the forum states that had contributed to the plaintiffs’ injuries. The Court nonetheless found the defendant’s business sufficiently “related” to the accidents to satisfy the requirement that the defendant’s contacts with the forum state be connected to the litigation there. The consequences of the decision are far-reaching: product manufacturers are subject to in personam jurisdiction wherever they are engaged in substantial business operations if a local resident suffers an accident involving merely the kind of product marketed in the forum state, regardless how the particular item involved arrived there. This is likely to apply against foreign corporations, especially automobile manufacturers, importing their products into the United States as well. The decision is more generally remarkable for three reasons. First, it represents the first (jurisdictional) victory of a consumer against a corporation in the Supreme Court in more than half-a-century. Second, the Court unanimously based in personam jurisdiction on the defendant’s extensive business activities in the forum state; the Court thus revived a predicate in the specific-in-personam context which it had soundly rejected for general in personam jurisdiction just a few years ago in Daimler v. Baumann (571 U.S. 117, 2014). Last, but not least, several of the Justices openly questioned whether corporations should continue to enjoy as much jurisdictional protection as they had in the past; remarkably these Justices hailed from the Court’s conservative camp. The decision may thus indicate that the days when the Supreme Court consistently protected corporations against assertions of personal jurisdiction by individuals may finally be over.

 

R. Geimer: Service to Foreign States During a Civil War: The Example of an Application for a Declaration of Enforceability of a Foreign Arbitral Award Against the Libyan State Under the New York Convention

With the present judgment, the UK Supreme Court confirms a first-instance decision according to which the application to enforce an ICC arbitral award against the state of Libya, and the later enforcement order (made ex parte), must have been formally served through the Foreign, Commonwealth and Development Office under the State Immunity Act 1978, despite the evacuation of the British Embassy due to the ongoing civil war. The majority decision fails to recognize the importance of the successful claimant’s right of access to justice under Art 6(1) ECHR and Art V of the 1958 New York Convention.

 

K. Bälz: Arbitration, national sovereignty and the public interest – The Egyptian Court of Cassation of 8 July 2021 (“Damietta Port”)

The question of whether disputes with the state may be submitted to arbitration is a recurrent topic of international arbitration law. In the decision Damietta Port Authority vs DIPCO, the subject of which is a dispute relating to a BOT-Agreement, the Egyptian Court of Cassation ruled that an arbitral award that (simultaneously) rules on the validity of an administrative act is null and void. The reason is that a (private) arbitral tribunal may not control the legality of an administrative decision and that the control of the legality of administrative action falls into the exclusive competency of the administrative judiciary. This also applies in case the legality of the administrative decision is a preliminary question in the arbitral proceedings. In that case, the arbitral tribunal is bound to suspend the proceedings and await the decision of the administrative court. The decision of the Egyptian Court of Cassation is in line with a more recent tendency in Egypt that is critical of arbitration and aims at removing disputes with the state from arbitration in order to preserve the “public interest”.

The Chinese Court Recognizes an English Commercial Judgment for the First Time
Written by Zilin Hao, Anjie Law Firm, Beijing, China

Introduction
On 17 March 2022, Shanghai Maritime Court of PRC issued a ruling of recognizing and enforcing a commercial judgment made by the English High Court, with the approval of Supreme People’s Court (“SPC”). This is the first time that Chinese court recognizes an English commercial judgment based on the principle of reciprocity, which is undoubtfully a milestone where the English court has not recognized the Chinese judgment before.

I. Case Overview
1. The Original English Judgments
18 March 2015, the high court of Queen’s Bench Division (Commercial Court), England & Wales made a judgment on the case of Spar Shipping AS v Grand China Logistics Holding (Group) Company, Ltd (hereinafter “Spar Case”) . In the Spar Case, the Claimant (“Spar”) was the registered owner of three supramax bulk carriers each let on long term time charter to Grand China Shipping (Hong Kong) Co Ltd (hereinafter “GCS”) with guarantees issued by the defendant, GCL, incorporated in Shanghai as the parent of the charterer. The charterer failed to pay hire on time and in September 2011 Spar withdrew the vessels and terminated the charterparties under the cancellation clause, which states: “If the vessel is off-hire for more than 60 days continuously, Charterers have the option to cancel this Charter Party.”. Spar then sued the GCL under the guarantees, claiming the balance of hire unpaid under the charters and damages for loss of bargain in respect of the unexpired term of the charters.

In the first instance, Mr Justice Popplewell J. concluded that payment of hire by the Charterers under the three charters was not a condition to cancel charterparties but the liberty to withdraw the vessel from service. The judge also held that payment of hire was that the charterer had renounced the charter parties and that the shipowner was entitled to about USD 24 million in damages for loss of bargain in respect of the unexpired terms of the charter parties. The decision was appealed, the English Court of Appeal upheld the judgment of first instance and ordered the charterers’ parent company GCL as guarantor to pay the shipowner the amounts due under the three charterparties including damages plus interest and costs.

2. The Chinese Ruling- (2018) Hu72Xie Wai Ren No.1
In March 2018, the applicant of Norwegian shipowner applied to the Shanghai Maritime Court, the competent court where the respondent is located, for recognition of the judgment of the English court. On March 17, 2022, the Shanghai maritime court finally made a civil ruling to recognize the judgment made by the English court involved in the case.

According to the ruling, the key issues in this judicial cooperation case are as follows: (1)Whether there is a reciprocal relationship between China and the UK on the recognition and enforcement of civil judgments, including whether there are precedents for English courts to recognize and enforce Chinese court judgments and whether there are precedents for refusing to recognize and enforce Chinese court judgments; (2) In the absence of reciprocal precedent, whether the Chinese court can recognize the judgment of the English court based on the principle of reciprocity; (3)Whether the injunction system of the English court constitutes a reason for refusing to recognize the judgment of the English court; (4) Whether the fines for interest and expenses claimed by the applicant fall within the admissible scope of foreign judgment.

After hearing, the Shanghai Maritime Court decided to recognize the judgment of the English court. Firstly, the PRC Ruling considered that the PRC and United Kingdom have not concluded or acceded to treaties on mutual recognition and enforcement of court judgments in civil and commercial matters, so the principle of reciprocity should be taken as the basis for the recognition of an English Judgment. The claimant argued that “the judgment of Spliethoff’s Bevrachtingskantoor BV v Bank of China Ltd, [2015] EWHC 999 (Comm) of the English High Court of Justice Queen’s Bench Division Commercial Court (hereinafter “Spliethoff Case”) could be regarded as positive precedent of Chinese judgments recognised and enforced by English Courts. In this Case, the English court confirmed that another Chinese judgment in Rongcheng Xixiakou Shipbuilding Co., Ltd., Wartsila engine (Shanghai) Co., Ltd. v. Wartsila Finland Oy decided by Shandong High Court (hereinafter “Xixiakou Case”) was effective and enforceable, but did not actually enforce it. This opinion was not adopted by the Shanghai Maritime Court.

Despite the above, the Shanghai Maritime Court held that “when stipulating the principle of reciprocity, the Civil Procedure Law of the People’s Republic of China does not limit it to that the relevant foreign court must first recognize the civil and commercial judgment of Chinese court. If there are possibilities that the civil and commercial judgment made by Chinese court can be recognized and enforced by the foreign court, it can be considered that there is reciprocity between the two jurisdictions.” Therefore, even if in the absence of reciprocal precedent, the Chinese court still can recognize the judgment of the English court based on the principle of reciprocity.

Secondly, in terms of the anti-suit injunction in the English judicial system, the Shanghai Maritime Court held that in this specific case, the English courts did not issue anti-suit injunctions to prohibiting the parties from litigating in foreign courts. Both parties have agreed that the English court has the jurisdiction and the English court asserted jurisdiction based on the choice of court agreement. The existence of anti-suit injunction in the foreign legal system is not a reason to make foreign judgments unenforceable in China.

Thirdly, in terms of an error in the application of law in the English judgment, the Shanghai Maritime Court held that this was a substantive matter and was not subject to judicial review in recognition and enforcement of foreign judgments. And even if the error of applying the law is indeed proved, it will constitute the reason for refusing recognition and enforcement only when it violates the basic principles, public order and social public interests under the PRC legislation.

Finally, the Shanghai Maritime Court decided that the interest, expenses and fines in this case were due to the respondent’s failure to perform its payment obligations, which were “monetary debt” and admissible matters for recognition and enforcement of the English judgment.

II. Comments
On 31 December 2021, shortly before this ruling, the SPC issued a memorandum on commercial and maritime matters entitled “Memorandum of the National Courts’ Symposium on Trials for Commercial and Maritime Cases” (hereinafter “Memorandum”). Article 44 of the Memorandum provided that “When hearing a case applying for recognition and enforcement of a judgment of a foreign court, the people’s court may recognize that there is a reciprocal relationship under any of the following circumstances: (1) according to the law of the country where the court is located, the civil and commercial judgments made by the People’s Court can be recognised and enforced by the courts of that country; (2) China has reached a memorandum or consensus of mutually reciprocity with the country where the court is located; (3) the country where the foreign court is located has made reciprocal commitments to China through diplomatic channels or China has made reciprocal commitments to the country where the court is located through diplomatic channels, and there is no evidence that the country where the court is located has refused to recognize and enforce the judgments and rulings made by Chinese courts on the ground that there is no reciprocal relationship. Obviously, the principle of the ruling that Shanghai Maritime Court made to recognize English judgment was consistent with the Memorandum.

Article 288 of the Civil Procedure Law of PRC (hereinafter “CPL”) and article 544 of the Judicial Interpretation of CPL issued by the SPC both make reciprocity one of the bases for recognizing and enforcing foreign judgments. When China has committed more to international connection and cooperation, the application of the principle of reciprocity in judicial practice is gradually getting more flexible. The court abandoned the previous rigid ‘de facto’ reciprocity and adopts the “legal reciprocity” or “de jure reciprocity”. As long as the Chinese judgment can be recognized and enforced according to the law of the country where the foreign court is located, the reciprocal relationship exists. According to the Memorandum, the courts of China shall examine and determine whether there is a reciprocal relationship case by case.

Since the UK not a Belt and Road Initiative (“BRI”) country, this case shows China adopts a liberal and flexible approach to enforce foreign judgments as a general policy. Chinese courts also adopts a minimum-review approach to review foreign judgments, which is clearly favourable to foreign judgment enforcement. It indicates China continues an open attitude to international commerce and judicial cooperation in civil and commercial matters.

1. Spar Shipping as v Grand China Logistics Holding (Group) Company Ltd, [2015] EWHC 718 (Comm).
2. Michael Volikas, Court finds payment of charter hire is not a condition: Astra not followed, 20 March 2015, available at https://www.incegd.com/en/news-insights/.
3. Yang Yang and Patrick Lee, PRC Court recognizes an English judgment for the first time – a Gard perspective, 12 April 2022, available at https://www.gard.no/web/updates/content.
4. Grand China Logistics Holding (Group) Co. Ltd v Spar Shipping AS, [2016] EWCA CIV 982.
5. Spar Shipping AS (2018) Hu 72 Xie Wai Ren No 1.
6. Yang Wengui and Luo Yi, The Chinese court recognized the commercial judgment of the British court for the first time (translated), Chinese version published on 24 March 2022, available at HAI TONG & PARTNERS websitehttps://www.haitonglawyer.com/news/598.html. HAI TONG & PARTNERS is the law firm entrusted by the applicant before Shanghai Maritime Court in this case.
7. Spliethoff’s Bevrachtingskantoor BV v Bank of China Ltd [2015] EWHC 999 (Comm) (17 April 2015).
8. Case No.: (2013) Lu Min Si Zhong Zi No. 87, accordingly the case number of the first-instance judgment is Qingdao Maritime Court (2011) Qinghai Fa Hai Shang Chu Zi No. 271.
9. WANG Limin and DING Qixue, Report on the trial of Xixiakou Shipyard Case of Qingdao Maritime Court, published on 24 Arial 2014, available at http://qdhsfy.sdcourt.gov.cn/qdhsfy/394069/394047/548075/index.html.
10. Wang Beibei, Key points of “Memorandum of the National Courts’ Symposium on Trials for Commercial and Maritime Cases”, published on the official social media account of Shanghai Second Intermediate People’s Court “SJ-Research”, 5 May 2022.

Issue 2/2022 of RabelsZ has just been published. It contains the following contributions:

Ralf Michaels: Peter Mankowski *11.10.1966 †10.2.2022, Volume 86 (2022) / Issue 2, pp. 323–326, DOI: 10.1628/rabelsz-2022-0028

 

Katharina Pistor: Rechtsvergleichung zwischen Rechts- und politischer Ökonomie: am Beispiel des Unternehmensrechts, Volume 86 (2022) / Issue 2, pp. 327–363, DOI: 10.1628/rabelsz-2022-0029

Legal and Political Economics in Comparative Perspective: the Case of Corporate Law. – Hardly another area of the law has seen as much interest in comparative analysis as corporate law, in particular the publicly traded corporation. The dialogue among legal academics from different legal systems was facilitated by the use of a non-legal language – that of transaction economics. It offered a unified standard for analyzing the pros and cons of different legal rules and models of corporate governance. Legal details remained largely under the radar. More recently, political scientists have discovered the corporation as an object of analysis and have emphasized the political economy that is represented by the establishment, development and function of the “corporation as a legal person”. This literature pays closer attention to the role of the state in corporate law but has neglected questions of comparative law. This paper argues that comparative law could and should assert itself between these two social sciences as a field that is devoted to describing and explaining the similarities and differences of legal institutions as a part of social systems.

 

Stefan Grundmann: Pluralistische Privatrechtstheorie – Prolegomena zu einer pluralistisch-gesellschaftswissenschaftlichen Rechtstheorie als normativem Desiderat (»normativer Pluralismus«), Volume 86 (2022) / Issue 2, pp. 364–420, DOI:  10.1628/rabelsz-2022-0030

Pluralist Private Law Theory: Prolegomena to a Pluralist and Social Science Oriented Legal Theory as a Normative Desideratum (“Normative Pluralism”). – Just how legal scholarship and legal practice should address the social sciences and other fields of inquiry is a vital question whose answer is informed by concerns of innovation, logic, and an understanding of law and jurisprudence. Law and economics is an efficient vehicle in this regard, an approach that in the USA is perhaps even dominant. The present article distinguishes between a monist interdisciplinary openness – vis-à-vis a neighbouring discipline that may indeed already have a particular goal and benchmark in mind – and a pluralist interdisciplinary openness. It identifies in the latter a disproportionately greater heuristic potential (in terms of all societal views). In a pluralist society, one that moulds pluralism into a constitutional requirement, the author sees a pluralist interdisciplinary openness as, above all, normatively superior and even mandated. It also seems better suited to the logic of jurisprudence: a discipline seeking balance in society. The article also addresses the biggest “drawback” of the approach, the unanswered and difficult question of how to determine hierarchizations. Adopting a value-tracking approach, the author proposes a mechanism embracing constitutionality and democracy as guiding legal principles.

 

Rolf Stürner: The ELI / UNIDROIT Model European Rules of Civil Procedure – An Introduction to Their Basic Conceptions, Volume 86 (2022) / Issue 2, pp. 421–472, DOI:  10.1628/rabelsz-2022-0031

This contribution introduces the basic conceptions of the Model European Rules of Civil Procedure, which were affirmed by the European Law Institute, Vienna, and by UNIDROIT, Rome, in 2020. In its first part it describes the prior history of the project (ALI/UNIDROIT Principles of Transnational Civil Procedure, Storme Commission) and the history of the emergence of the Model Rules between 2013 and 2020. The following parts depict the organization and coordination of the common work in the various groups, an analysis of methodological questions arising in the context of harmonization of procedural law, a detailed presentation of important results of harmonization in fields of far-reaching convergence of national procedural laws, considerations about strong future trends of procedural design and their significance for different areas of civil procedure, and finally some remarks on innovative procedural developments taken into account by the Model Rules, with important examples in fields like collective proceedings and the financing of proceedings, or in the use of modern means of communication or artificial intelligence. The contribution also contains some cautious remarks on internal conditions associated with the emergence of the Model Rules that may have influenced its results.

Igor Adamczyk, Jakob Fortunat Stagl: Der Eigentumserwerb an Fahrnis im polnischen Recht, Volume 86 (2022) / Issue 2, pp. 473–501, DOI: 10.1628/rabelsz-2022-0032

Transfer of Ownership in Movable Property under Polish Law. – This essay deals with the transfer of ownership under Polish law. The main question is whether Poland simply adheres to one of the classical models historically significant for this country – that of Austria, Germany, or France – or whether its system can be considered an original solution. The authors are convinced that one cannot analyse the transfer of ownership without considering the underlying contract. In particular, the passing of risk has to be considered in unison with the rules for the passing of ownership. These rules as a whole may seem syncretistic or “mixed”, yet they have to be understood as a genuine – Polish – system for the transfer of ownership.

 

Further to my last post, I omitted to include a book review by Professor Gilles Cuniberti in the second issue of ICLQ for 2022 which is focused on essays written in honour of Emeritus Professor Adrian Briggs (QC), and the latest edition of his (Briggs’) book on Civil Jurisdiction and Judgements.

The book entitled Lessons on Private International Law published by DIKAIA is the result of a collective effort of some of the speakers who presented at a course organised by the Mexican Consejo de la Judicatura Federal (Council of the Federal Judiciary) and the Mexican Escuela Federal de Formación Judicial (Federal School of Judiciary Training) in 2021.

Basically, this book puts into writing some of the presentations relating to the general topics on Private International Law given at the course. It should be noted that this book has seen the light of day thanks to the devoted work of professors Jorge Alberto Silva Silva and Nuria González Martín, who were the editors / coordinators.

This book explains the basic and general concepts of Private International Law, in particular those concerning the Mexican legal system. In addition, this book deals with innovative and fairly unknown topics to the Mexican doctrine, such as extension rules and the concept of lex loci factum. A full table of contents is provided below. The book ends with an analysis of the case of Antenor Patiño vs. María Cristina de Borbón, which although a bit “ancient” (1955 – a divorce case), it reflects the problems which arise regarding conflicts of jurisdiction and conflicts of laws in a high-profile case.

This book is accessible online and may be purchased here.

AUTHORS

Elí Rodríguez Martínez

Francisco José Contreras Vaca

Jorge Alberto Silva Silva – Coordinator

Jorge Cicero Fernández

Karl August Prinz von Sachsen Gessaphe

Ligia Claudia González Lozano

Mario de la Madrid

Nuria González Martín – Coordinator

Rolando Tamayo y Salmorán

Rosa Elvira Vargas Baca

 

TABLE OF CONTENTS

CAPÍTULO 1

INTRODUCCIÓN AL DERECHO INTERNACIONAL PRIVADO / Jorge Alberto Silva Silva

1. PRELIMINARES
2. Conjunto normativo
3. Un orden jurídico de la comunidad internacional
4. Subordinación de todos los conjuntos jurídicos de la comunidad internacional a uno solo
5. ENTRAMADO DE NORMAS Y ORDENAMIENTOS JURÍDICOS

III. RELACIONES ENTRE LOS CONJUNTOS NORMATIVOS DE LA COMUNIDAD INTERNACIONAL

1. Conjuntos disjuntos
2. Conjuntos subordinados
3. Intersección de conjuntos
4. Vinculación unilateral de conjuntos
5. En resumen
6. LEX LOCI FACTUM
7. FUNCIÓN DEL DERECHO INTERNACIONAL PRIVADO
8. PROBLEMAS DE TRÁFICO JURÍDICO INTERNACIONAL

VII. NATURALEZA Y CONTENIDO DEL DERECHO EXTRANJERO

VIII. MÉTODOS PARA RESOLVER PROBLEMAS DE TRÁFICO JURÍDICO INTERNACIONAL

1. Normas de aplicación inmediata o autolimitadas
2. Normas materiales o sustantivas
3. Normas de extensión
4. Normas de conflicto
5. Pasos o secuenciación en la elección del derecho designado
6. RAZONES PARA RECHAZAR O TOMAR EN CUENTA UN ORDEN JURÍDICO EXTRANJERO
7. Razones en contra
8. Razones a favor
9. Ejemplos de resoluciones mexicanas rechazando derecho extranjero
10. Ejemplos de resoluciones mexicanas aceptando el derecho extranjero
11. Tesis del universalismo multicultural

BIBLIOHEMEROGRAFÍA

CAPÍTULO 2

SISTEMA CONFLICTUAL TRADICIONAL / Jorge Alberto Silva Silva

1. NORMA DE CONFLICTO TRADICIONAL
2. HACIA UN CONCEPTO DE LA NORMA DE CONFLICTO TRADICIONAL

III. ESTRUCTURA SINTÁCTICA DE LA NORMA DE CONFLICTO

1. Supuesto normativo
2. Orden jurídico por identificar
3. Punto de contacto o de conexión
4. LA NORMA CONFLICTUAL EN LA REVOLUCIÓN CONFLICTUAL
5. DIFERENCIA ENTRE UNA NORMA DE CONFLICTO Y UNA NORMA INCORPORANTE
6. PROBLEMAS QUE SURGEN CON EL ORDEN JURÍDICO DESIGNADO
7. Proceso de bilateralización
8. Falso conflicto

VII. NORMATIVIDAD MEXICANA

BIBLIOHEMEROGRAFÍA

CAPÍTULO 3

FUENTES DEL DERECHO INTERNACIONAL PRIVADO / Rosa Elvira Vargas Baca

1. CONSIDERACIONES PREVIAS
2. FUENTES DEL DERECHO INTERNACIONAL PRIVADO
3. Derecho de fuente interna relacionado con el Derecho Internacional Privado

III. FUENTES DE DERECHO EXTRANJERO RELACIONADOS CON EL DERECHO INTERNACIONAL PRIVADO

1. Conferencias Diplomáticas y Congresos
2. Tratados
3. Jurisprudencia internacional
4. Costumbre internacional
5. Doctrina Internacional
6. BIBLIOHEMEROGRAFÍA

CAPÍTULO 4

FOROS INTERNACIONALES / Rosa Elvira Vargas Baca

1. ASPECTOS PRELIMINARES DE LOS FOROS INTERNACIONALES
2. Conferencia de La Haya
3. Comisión de las Naciones Unidas para el Derecho Mercantil Internacional
4. Instituto Internacional para la Unificación del Derecho Internacional Privado
5. Conferencias Interamericanas de Derecho Internacional Privado
6. Mecanismos de trabajo de los foros internacionales
7. FOROS NACIONALES
8. Seminario Nacional de Derecho Internacional Privado y Comparado
9. Talleres de cooperación procesal internacional

III. BIBLIOHEMEROGRAFÍA

CAPÍTULO 5

CALIFICACIÓN DEL SUPUESTO NORMATIVO / Mario de la Madrid Andrade

1. CONSIDERACIONES PRELIMINARES
2. EL CONCEPTO DE CALIFICACIÓN JURÍDICA

III. EL PROCESO DE CALIFICACIÓN Y SU RESULTADO

1. EL CONFLICTO DE CALIFICACIONES
2. LOS MÉTODOS DE CALIFICACIÓN
3. La calificación lex fori
4. La calificación lex causae
5. El método comparativo
6. LA CALIFICACIÓN EN MÉXICO

VII. BIBLIOHEMEROGRAFÍA

CAPÍTULO 6

CUESTIÓN ADYACENTE, PREVIA O INCIDENTAL. PLURALIDAD DE SUPUESTOS NORMATIVOS / Ligia Claudia González Lozano y Nuria González Martín

1. CONCEPTO, CUESTIONAMIENTOS Y ORÍGEN
2. IDENTIFICACIÓN DE LA CUESTIÓN PRINCIPAL U ORIGINAL Y DE LA ADYACENTE

III. SISTEMAS DE RESOLUCIÓN DE LA CUESTIÓN ORIGINAL Y ADYACENTE

1. Independencia o autonomía de la cuestión previa
2. Absorción o dependiente
3. Armonización y mayor proximidad
4. PROBLEMAS Y ARGUMENTOS
5. ¿Subsunción o autonomía?
6. Posibilidades argumentativas a tomarse en cuenta
7. POSIBLES ESCENARIOS SEGÚN MÉTODO QUE SE APLIQUE
8. REGLAMENTACIÓN MEXICANA

VII. CONCLUSIÓN

VIII. BIBLIOHEMEROGRAFÍA

CAPÍTULO 7

EL REENVÍO Y SU REGULACIÓN EN EL DERECHO CIVIL MEXICANO / Francisco José Contreras Vaca

1. INTRODUCCIÓN
2. ORIGEN DEL REENVÍO

III. CONCEPTO DE REENVIO

1. TRATAMIENTODEL REENVÍO EN LA LEGISLACIÓN CIVIL FEDERAL MEXICANA Y LA APLICABLE EN LA CIUDAD DE MÉXICO.
2. CRITICAS A LA REGULACIÓN DEL REENVIO EN MÉXICO.
3. CONCLUSIONES

VII. BIBLIOHEMEROGRAFÍA

CAPÍTULO 8

VULNERACIÓN DEL ORDEN PÚBLICO / Elí Rodríguez Martínez

1. INTRODUCCIÓN
2. UN VISTAZO RÁPIDO A LA HISTORIA

III. CONCEPTO

1. EL ORDEN PÚBLICO EN EL “DERECHO PÚBLICO” Y EN EL “DERECHO PRIVADO”
2. El orden público en el derecho público
3. El orden público en el derecho privado
4. CONCEPTOS SIMILARES
5. Leyes de orden público
6. Normas de orden público
7. Excepción de orden público
8. CARACTERÍSTICAS DEL ORDEN PÚBLICO INTERNACIONAL

VII. EFECTOS DEL ORDEN PÚBLICO INTERNACIONAL

1. Efectos con respecto a la ley aplicable
2. Efectos con relación el grado de incompatibilidad con las normas del foro

VIII. EL ORDEN PÚBLICO Y LAS NORMAS DE POLICÍA

1. EL ORDEN PÚBLICO INTERNACIONAL EN EL DERECHO MEXICANO
2. BIBLIOHEMEROGRAFÍA

CAPÍTULO 9

INSTITUCIONES IDÉNTICAS, ANÁLOGAS Y DESCONOCIDAS / Karl August Prinz von Sachsen Gessaphe

1. INTRODUCCIÓN
2. INTERPRETACIÓN DEL ART. 14 Fracc. III CCFED
3. Aplicabilidad de la norma
4. Carácter de la norma

III. INSTITUCIONES O PROCEDIMIENTOS DESCONOCIDOS

1. Instituciones desconocidas
2. Procedimientos desconocidos
3. INSTITUCIONES O PROCEDIMIENTOS ANÁLOGOS
4. Método funcional
5. Aplicación a ejemplos
6. IMPEDIMENTO AL FALTAR INSTITUCIONES ANÁLOGAS
7. RESUMEN
8. Instituciones y procedimientos desconocidos
9. Instituciones análogas en derecho mexicano
10. Consecuencia al faltar instituciones análogas
11. Delimitación de la contrariedad al orden público

VII. CONCLUSIÓN

VIII. BIBLIOHEMEROGRAFÍA

CAPÍTULO 10

FRAUDE A LA LEY / Nuria González Martín

1. ELEMENTOS PRELIMINARES
2. MANIPULACIÓN DE LOS PUNTOS DE CONTACTO

III. PRECISIÓN DEL CONCEPTO DE FRAUDE A LA LEY

1. Fraude como delito
2. Simulación
3. Vulneración del orden público
4. ELEMENTOS CARACTERÍSTICOS DEL FRAUDE A LA LEY
5. ELEMENTOS ESPECIALES A TOMAR EN CUENTA
6. Evasión artificiosa
7. Evasión de los principios fundamentales del orden jurídico
8. Determinar la intención fraudulenta
9. SANCIÓN PARA QUIEN DEFRAUDE A LA LEY
10. Nulidad del acto extranjero
11. No reconocimiento de efectos

VII. EJEMPLOS ILUSTRATIVOS

1. Caso Bauffremont-Bibescu
2. Divorcios al vapor

VIII. REGLAMENTACIÓN MEXICANA

A MODO DE CONCLUSIÓN

BIBLIOHEMEROGRAFÍA

CAPÍTULO 11

DERECHO INTERNACIONAL PRIVADO Y DERECHOS HUMANOS. CONSIDERACIONES SOBRE SU INTERACCIÓN A FAVOR DE LA PERSONA, LA NIÑEZ Y LA FAMILIA / Jorge Cicero Fernández

1. INTRODUCCIÓN
2. LOS TRATADOS SOBRE DERECHOS HUMANOS

1 Su naturaleza y alcances

2. Derechos protegidos y deberes estatales

III. TRATADOS DE DERECHO INTERNACIONAL PRIVADO “CONCERNIENTES A LA PROTECCIÓN DE LOS DERECHOS HUMANOS”

1. EL CONSEJO DE EUROPA

1 Desarrollos normativos

2. La Jurisprudencia del TEDH
3. LA JURISPRUDENCIA Y LA PRÁCTICA JUDICIAL MEXICANAS

CONCLUSIÓN

BIBLIOHEMEROGRAFÍA […]

CAPÍTULO 12

APLICACIÓN ARMÓNICA Y ADAPTACIÓN DE ORDENAMIENTOS INTERPRETACIÓN ENANTEOTÉLICA E INTERPRETACIÓN EQUITATIVA / Rolando Tamayo y Salmorán

I PRELIMINARIA

1. Prudentia y prudentia iuris

III. LA PROFESIÓN JURÍDICA

1. ¿CÓMO SE CONOCE EL DERECHO?
2. Genesis iurisprudentiæ
3. BIBLIOHEMEROGRAFÍA

CAPÍTULO 13

INTERPRETACIÓN Y REFORMULACIÓN DEL DERECHO INTERNACIONAL PRIVADO / Jorge Alberto Silva Silva

1. INTRODUCCIÓN
2. RESUMIENDO LOS CAPÍTULOS ANTERIORES

III. EXPRESIONES Y CONCEPTOS

1. LA TAREA DEL JUEZ
2. EL DIPR ES UNA DISCIPLINA DIFÍCIL
3. LA LEGISLACIÓN COMO UN CAOS FENOMÉNICO

VII. PROBLEMAS DE APLICACIÓN Y DECISIÓN

VIII. UN ACERCAMIENTO A LA ACTIVIDAD REFORMULATORIA

1. PROCESO INTELECTUAL
2. Reformulación a partir de textos legislados
3. Reformulación a partir de ausencia de textos legislados
4. MANIPULACIÓN CONFLICTUAL
5. CONCLUSIONES

XII. BIBLIOHEMEROGRAFÍA

CAPÍTULO 14

EXÉGESIS DEL DERECHO CONVENCIONAL INTERNACIONAL. CONVENIOS EN VIGOR RELACIONADOS CON LA PARTE GENERAL DEL DIPr / Nuria González Martín

1. NOTA PRELIMINAR
2. CONVENCIÓN INTERAMERICANA SOBRE NORMAS GENERALES DE DERECHO INTERNACIONAL PRIVADO

III. CONVENCIÓN INTERAMERICANA SOBRE DOMICILIO DE LAS PERSONAS FÍSICAS EN EL DERECHO INTERNACIONAL PRIVADO

1. CONVENCIÓN INTERAMERICANA SOBRE CONFLICTOS DE LEYES EN MATERIA DE ADOPCIÓN DE MENORES
2. CONVENCIÓN INTERAMERICANA SOBRE PERSONALIDAD Y CAPACIDAD DE LAS PERSONAS JURÍDICAS EN EL DERECHO INTERNACIONAL PRIVADO
3. CONVENCIÓN INTERAMERICANA SOBRE CONFLICTOS DE LEYES EN MATERIA DE LETRAS DE CAMBIO, PAGARÉS Y FACTURAS

VII. CONVENCIÓN INTERAMERICANA SOBRE CONFLICTO DE LEYES EN MATERIA DE SOCIEDADES MERCANTILES

VIII. CONVENCIÓN INTERAMERICANA SOBRE PRUEBA E INFORMACIÓN ACERCA DEL DERECHO EXTRANJERO

APÉNDICE

ANÁLISIS DEL CASO ANTENOR PATIÑO VS. MARIA CRISTINA DE BORBÓN: UNA RELECTURA / Francisco José Contreras Vaca

1. INTRODUCCIÓN
2. PLANTEAMIENTO DE LA CONTROVERSIA.

III. ESTUDIO DE LA LITIS

1. El problema de reconocimiento de validez y ejecución de sentencias dictadas por tribunales extranjeros.
2. El problema de la litispendencia y conexidad en la esfera internacional.
3. Consideraciones generales.
4. CONCLUSIÓN

 

Under the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, maintenance obligations are governed by the law of the State of habitual residence of the creditor, save where the Protocol itself provides otherwise [Article 3(1)]. Echoing the issues pertaining to the so-called conflit mobile, the Protocol provides also that in the case of a change in the habitual residence of the creditor, the law of the State of the new habitual residence is to apply as from the moment when the change occurs [Article 3(2)].

If the creditor is a child, does a wrongful removal – followed by an order commanding to return the child to the State in which he/she habitually resided immediately prior to the wrongful removal – constitute an obstacle to the acquisition of a new place of habitual residence by the creditor? This is the legal issue that the Court addresses in its judgment handed down this Thursday in the case W.J., C-644/20.

The Court decided to answer the preliminary question without first requesting its Advocate General to present an Opinion. It did so in a negative: the fact that a court of a Member State has ordered, in separate proceedings, the return of that child to the State in which he/she was habitually resident immediately before his/her wrongful removal is not sufficient to prevent that child from acquiring new habitual residence in the Member State to which the child was removed.

In brief, its reasoning may be summarized as follows:

• also for the purposes of the Hague Protocol, the notion of ‘habitual residence’ calls for it autonomous interpretation (paragraph 62);

  interestingly, while the Court has jurisdiction to interpret the Protocol and does so with a binding effect with regards to the Member States, the Protocol is also binding for non-Member States; that being said, the plead for autonomous interpretation seems justified also from the perspective of extra-EU parties to the Protocol, although it is yet to be seen whether they will align with the interpretation provided for by the Court, its methods of said interpretation and references to Charter).

• the habitual residence of the maintenance creditor is that of the place where on the facts his or her habitual centre of life is located, taking into account his or her family and social environment (paragraph 66),
• as a connecting factor for determination of law applicable to maintenance obligations, the notion of ‘habitual residence’ is heavily factual – it is the presence with a territory of a particular State that matters the most; as a consequence, it is only in the context of an assessment of all the circumstances of the case before it that, while taking into due consideration the best interests of that child, the national court hearing the case may find it necessary to take into account the potentially wrongful nature of the removal or retention of that child and conclude that the degree of stability of presence within the territory of a Member State does not allow to conclude that the child habitual resides in that State (paragraph 73).

The judgment is available here, in French. A press release in English can be found here.

Elon Musk’s purchase of Twitter has been a divisive event. Commenting on the response on Twitter and elsewhere, Musk tweeted:

The extreme antibody reaction from those who fear free speech says it all

>

By “free speech”, I simply mean that which matches the law.

I am against censorship that goes far beyond the law.

If people want less free speech, they will ask government to pass laws to that effect.

Therefore, going beyond the law is contrary to the will of the people.

Ralf Michaels quote-tweeted perceptively: ‘But which law?’

Twitter and the conflict of laws

By their very nature, digital platforms like Twitter present a variety of conflict of laws issues.

‘Twitter’ is not a monolithic entity. The functionality of the social media platform with which readers would be familiar is underpinned by a transnational corporate group. Twitter, Inc is incorporated in Delaware, and has various subsidiaries around the world; Twitter International Company, for example, is incorporated in Ireland and responsible as data controller for users that live outside of the United States. The business is headquartered in San Francisco but has offices, assets, and thousands of staff around the world.

The platform is populated by 400 million users from all over the world. After the US, the top 5 countries with the most Twitter users are comprised of Japan, India, the UK and Brazil. The tweets and retweets of those users may be seen all over the world. Users have wielded that functionality for all sorts of ends: to report on Russia’s war in real-time; to coordinate an Arab Spring; to rally for an American coup d’état; to share pictures of food, memes, and endless screams; and to share conflict of laws scholarship.

Disputes involving material on Twitter thus naturally include foreign elements. Where disputes crystallise into litigation, a court may be asked to consider what system of law should determine a particular issue. When the issue concerns whether speech is permissible, the answer may be far from simple.

Free speech in the conflict of laws

The treatment of freedom of speech in the conflict of laws depends on the system of private international law one is considering, among other things. (The author is one of those heathens that eschews the globalist understanding of our discipline.)

Alex Mills has written that the balance between free speech and other important interests ‘is at the heart of any democratic political order’.[1] Issues involving free speech may thus engage issues of public policy, or ordre public,[2] as well as constitutional considerations.

From the US perspective, the ‘limits of free speech’ on Twitter is likely to be addressed within the framework of the First Amendment, even where foreign elements are involved. As regards private international law, the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act 28 USC 4101- 4105 (‘SPEECH Act’) is demonstrative. It operates in aid of the constitutional right to freedom of expression and provides that a US ‘domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that’ the relevant foreign law would provide the same protections for freedom of speech as would be afforded by the US Constitution.[3]

Other common law jurisdictions have approached transnational defamation issues differently, and not with explicit reference to any capital-c constitutional rights. In Australia, the High Court has held that the lex loci delicti choice-of-law rule combined with a multiple publication rule means that defamation is determined by the law of the jurisdiction in which a tweet is ‘available in comprehensible form’: the place or places it is downloaded.[4] In contrast, where a claim concerns a breach of confidence on Twitter, an Australian court is likely to apply the equitable principles of the lex fori even if the information was shared into a foreign jurisdiction without authorisation.[5] In either case, constitutional considerations are sidelined.

The balance to be struck between free speech on the one hand, and so-called ‘personality rights’ on the other, is a controversial issue within a legal system, let alone between legal systems. So for example, the choice-of-law rule for non-contractual obligations provided by the Rome II Regulation does not apply to personality rights, as a consensus could not be reached on point.[6] Similarly, defamation and privacy are excluded from the scope of the HCCH Judgments Convention by Art 2(1)(k)–(l).

There is a diversity of approaches to choice of law for cross-border infringements of personality rights between legal systems.[7] But the ‘law applicable to free speech on Twitter’ is an issue that goes far broader than personality rights. It touches on as many areas of law as there are aspects of human affairs that are affected by the Twitter platform. For example, among other things, the platform may be used to:

• spread misrepresentation about an election, engaging electoral law;
• influence the price of assets, engaging banking and finance law; or
• promote products, engaging consumer law.

Issues falling into different areas of law may be subject to different choice-of-law rules, and different systems of applicable law. What one system characterises as an issue for the proper law of the contract could be treated as an issue for a forum statute in another.

All of this is to say: determining what ‘the law says’ about certain content on Twitter is a far more complex issue than Elon Musk has suggested.

The law applicable to online dignity

Key to the divisiveness of Musk’s acquisition is his position on content moderation. Critics worry that a laissez-faire approach to removing objectionable content on the platform will lead to a resurgence of hate speech.

Musk’s vision for a freer Twitter will be subject to a variety of national laws that seek to protect dignity at the cost of free speech in various ways. For example, in April, the European Parliament agreed on a ‘Digital Services Act’, while in the UK, at the time of writing, an ‘Online Safety Bill’ is in the House of Commons. In Australia, an Online Safety Act was passed in 2021, which provided an ‘existing Online Content Scheme [with] new powers to regulate illegal and restricted content no matter where it’s hosted’. That scheme complements various other national laws, like our Racial Discrimination Act 1975, which outlaws speech that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and was done because of the race, colour or national or ethnic origin of the person or group.

When a person in the United States posts content about an Australian that is permissible under US law, but violates Australian statute, the difficulty of Musk’s position on the limits of censorship becomes clear. Diverse legal systems come to diverse positions on the appropriate balance between allowing online freedom and protecting human dignity, which are often struck with mandatory law. When your platform is frequented by millions of users all over the world, there is no single ‘will of the people’ by which to judge. Perhaps Musk will embrace technological solutions to give effect to national standards on what sort of content must be censored.

A host of other conflicts issues

Musk-era Twitter is likely to pose a smorgasbord of other issues for interrogation by conflict of laws enthusiasts.

For example: legal systems take diverse approaches to the issue of whether a foreign parent company behind a platform like Twitter can be imposed with liability, or even criminal responsibility, for content that is on the platform. While conservatives in America consider the fate of s 230 of the Communications Decency Act—a provision that means that Twitter is not publisher of content they host—other countries take a very different view of the issue. Litigation involving the companies behind Twitter is likely to engage courts’ long-arm jurisdiction.

Perhaps the thorniest conflicts problem that may emerge on Musk’s Twitter is the scope of national laws that concern disinformation. In an announcement on 25 April, Musk stated:

‘Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated’.

Recent years have shown that the future of humanity is not necessarily benefited by free speech on social media. How many lives were lost as a result of vaccine-scepticism exacerbated by the spread of junk science on social media? How many democracies have been undermined by Russian disinformation campaigns on Twitter? The extraterritorial application of forum statutes to deal with these kinds of issues may pose a recurring challenge for Musk’s vision.[8] I look forward to tweeting about it.

Michael Douglas is Senior Lecturer at UWA Law School and a consultant in litigation at Bennett + Co, Perth.

 

[1] Alex Mills, ‘The Law Applicable to Cross-border Defamation on Social Media: Whose Law Governs Free Speech in “Facebookistan”?’ (2015) 7 Journal of Media Law 1, 21.

[2] See, eg, International Covenant on Civil and Political Rights, art 19(3).

[3] SPEECH Act s 3; United States Code, title 28, Part VI, § 4102. See generally Lili Levi, ‘The Problem of Trans-National Libel’ (2012) 60 American Journal of Comparative Law 507.

[4] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575.

[5] But see Michael Douglas, ‘Characterisation of Breach of Confidence as a Privacy Tort in Private International Law’ (2018) 41 UNSW Law Journal 490.

[6] Art 4(1); see Andrew Dickinson, The Rome II Regulation (Oxford University Press, 2008).

[7] See generally Symeon C Symeonides, Cross-Border Infringement of Personality Rights via the Internet (Brill, 2021) ch VI; Tobias Lutzi, Private International Law Online: Internet and Civil Liability in the EU (Oxford University Press, 2020) ch 4.

[8] See generally Matthias Lehmann, ‘New Challenges of Extraterritoriality: Superposing Laws’ in Franco Ferrari and Diego P Fernández Arroyo (eds), Private International Law: Contemporary Challenges and Continuing Relevance (Edward Elgar, 2019) ch 10.

The Pax Moot Borrás Round of 2022 took place in Paris on 4 to 6 May. The preliminary rounds and semi-finals were held at the Universities of Sciences-Pio and Paris-Dauphine; the finals took place at the Commercial Court on the Quai de la Corse.

The University of Ljubljana won the oral rounds, with the University of Ghent as runner-up.

For the written memorials two teams share the winning position: the Università Cattolica del Sacro Cuore Milano and the Universität Wien.

Santiago García Parga, from Universidad Autónoma de Madrid won the prize for the best pleader.

The European Commission co-funds the moot court.

Dr Sophie Duroy and Dr Rishi Gulati, both presently members of the KFG Berlin Potsdam Research Group ‘The International Rule of Law – Rise or Decline?’, will be hosting a virtual half-day webinar titled “Global Security and the International Rule of Law: Interdisciplinary Perspectives” on 30 May 2022. The event is free to attend. A program and link to registration is below:

https://www.eventbrite.co.uk/e/global-security-and-the-international-rule-of-law-tickets-331724325387

Two recent private international law articles were published by International and Comparative Law Quarterly:

B Marshall, “Asymmetric Jurisdiction Clauses and the Anomaly created by Article 31(2) of the Brussels I Recast Regulation”

The English Court of Appeal and German Bundesgerichtshof recently decided that Article 31(2) of the Brussels I Recast Regulation applies to asymmetric jurisdiction clauses. This article contends that while this conclusion is sound, separating the ‘clause’ into two ‘agreements’ to reach it is not. This disaggregation prevents a solution to the anomaly that Article 31(2) creates for asymmetric clauses, where a lender sues under its option and the borrower subsequently sues in the anchor court. This article proposes a solution, based on a uniform characterisation of the clause as a whole, which protects the lender’s option and mitigates the risk of parallel proceedings

TD Grant, “Arbitration, Corruption and Post-Award Control in French and English Courts”

In September 2021, the French Cour de Cassation reversed the annulment that the Paris Cour d’appel earlier had granted in regard to an arbitral award in Alexander Brothers v Alstom on grounds of corruption. This brought French courts in line with their English counterparts, at least in that one case, the latter having accepted the Alexander Brothers award as enforceable. Noteworthy beyond the welcome consistency that the recent French judgment imparts in one case, that and other recent judgments cast light on several issues in international arbitration, including the arbitrability of allegations of fraud or corruption, the relevance of evidence of corruption ‘downstream’ from a contract, and the legal effects (if any) on third parties of internal compliance regimes that enterprises adopt in response to national regulatory and enforcement actions in respect of corruption.

 

(This post is provided by Zeyu Huang & Wenhui Chi. Mr. Huang practises law as a Shenzhen-based associate at Hui Zhong Law Firm. He holds LLB (Renmin U.), LLM & PhD (Macau U.). Ms. Chi is now working as a legal counsel at the Shenzhen Court of International Arbitration (SCIA) and the South China International Arbitration Center (Hong Kong) (SCIAHK). She holds BA (PKU), LLM & JD (PKU School of Transnational Law). The authors may be contacted at huangzeyu@huizhonglaw.com or chiwenhui@scia.com.cn.)

 

The People’s Republic of China (hereinafter “China” or “PRC”) deposited its instrument of ratification for the United Nations Convention on Contracts for the International Sale of Goods (hereinafter “CISG”) on 11 December 1986. Since its entry into force in 1988, it is beyond doubt that CISG applies to the territory of Mainland China albeit with some reservations and/or declarations (e.g. Article 96). However, businesspeople, courts, practitioners and scholars are split, uncertain and inconsistent over the issue whether the CISG should extend to Hong Kong and Macau after their returns respectively in 1997 and 1999. [1]

 

This issue stemed from the unclear intentions of China when it submitted the diplomatic notes to the United Nations, which purported to inform the Secretary-General of the status of Hong Kong and Macau in relation to deposited treaties. [2] However, China did not mention CISG in the Diplomatic Notes at all. As a result, whether China had expressed its intention of extending or excluding CISG to Hong Kong and Macau has been subject to inconsistent interpretations and enquires conducted by different non-Hong Kong fora. [3]

 

To solve this problem, China, after seeking the views of Hong Kong SAR Government, determined to actively remove the uncertainty by depositing a declaration of extension of the territorial application of CISG to Hong Kong on 5 May 2022. [4] On and after 1 December 2022, CISG will apply to both Hong Kong and Mainland China. It should be noted that the declaration that China is not bound by Article 1(1)(b) CISG does not apply to Hong Kong. Nevertheless, it remains to be seen whether the Macau SAR government will follow suit on this matter, requesting the Central Government to extend the application of CISG to Macau.

 

Extension of International Treatises Ratified by China to Hong Kong and Macau

 

The issue of whether international treaties ratified by China ‘automatically’ applies to the territory of the Hong Kong and Macau SARs was once hotly debated in the investor-State arbitration cases of Tza Yap Shum v. Peru [5] and Sanum v. Laos-I [6]. Contrary to international tribunals and the Court of Appeal of Singapore’s confirmative and liberal stances, Chinese government and commentators said no. [7] They all insist that China has made its intentions clear in the Diplomatic Notes that the treaty to which China is or will become a party applies to Hong Kong and Macau only after China has decided so and carried out separately the formalities for such application. [8] Moreover, the extension of territorial application to Hong Kong and Macau must be in line with the “One Country, Two Systems” policy and the Basic Laws of Hong Kong and Macau. [9] Accordingly, the PRC Central People’s Government in Beijing has the final say over whether the international treaty to which China is or will be a party applies to Hong Kong and Macau after consulting with the two SARs’ governments.

 

The same problem stays with the applicability of CISG in the Hong Kong and Macau SARs. On the one hand, no mention of CISG in the Diplomatic Notes submitted by China, at least on the side of Hong Kong, demonstrates China’s true intentions in public international law that the CISG shall not apply in the SAR. [10] In this view embraced by some French and US courts, China’s Diplomatic Notes not mentioning CISG qualify as Article 93(1) CISG reservation indicating that CISG does not apply to Hong Kong and Macau. [11] On the other hand, some other foreign courts considered the Diplomatic Notes did not constitute an Article 93(1) CISG reservation and therefore the default rule in Article 93(4) applies, saying that CISG ‘automatically’ applies to all territorial unites of China. [12] This interpretive approach is similar to the confirmative and liberal approach adopted by the tribunals in Tza Yap Shum v. Peru and Sanum v. Laos-I on the issue whether Chinese investment treaty absent in the Diplomatic Notes extends to territory of the Hong Kong and Macau SARs. However, such approach was often criticized as contrary to China’s expressed intentions. [13]

 

What Does It Mean for Hong Kong?

 

Legally speaking, the act of China’s depositing the declaration of extension of CISG to Hong Kong has three implications.

 

Firstly, and most obviously, on and after 1 December 2022 it would be correct for any foreign court or international tribunal to hold that CISG applies to Hong Kong. This will wipe out the “confusion and conflict as to whether or not China’s diplomatic notes for Hong Kong and Macao, deposited in 1997 and 1999 respectively, are sufficient to exclude the application of the CISG” to Hong Kong and Macau under Article 93 CISG. [14] Indeed, they are sufficient; but China has now decided to reverse its previous intention.

 

Secondly, China has impliedly confirmed that the Diplomatic Notes qualify as Article 93(1) CISG reservation, which means CISG would not automatically apply to territorial units of China such as Hong Kong and Macau unless China has determined so. In other words, China’s Central People’s Government has the final say on whether a Chinese international treaty applies to Hong Kong and Macau or not.

 

Thirdly, any construction of the Diplomatic Notes by foreign courts or arbitral tribunals which leads to the ‘automatic’ application of CISG or other international treaties (including Chinese investment agreements) to Hong Kong and Macau would be incorrect and in disregard of China’s true intentions expressed in the Diplomatic Notes. This will possibly prevent foreign courts or investment arbitration tribunals from easily reaching the decision that CISG or Chinese international investment agreement ‘automatically’ applies to Hong Kong and Macau. It also means Hong Kong might need seek the views of Central People’s Government on whether or not to extend Chinese international investment agreement to the Hong Kong SAR, especially in cases where the Hong Kong investors intend to rely on these international instruments to safeguard their rights and interests in investments made overseas.

 

In parallel with the ongoing Reform and Opening-up within and beyond China, China’s accession to CISG has fundamentally shaped the legislative and judicial landscape of codifying Chinese contract law. It is believed that the Ordinance [15] implementing the CISG in Hong Kong would for sure reshape the legislative and judicial landscape of Hong Kong law. [16]

 

Conclusion: Shall Macau Follow Suit?

 

The answer is of course yes. As another major player in the Belt and Road Initiative (BRI) and Greater Bay Area (GBA) in China, Macau is now confronted with the same “confusion and conflict” issue once faced by Hong Kong before 5 May 2022. As mentioned earlier, such “confusion and conflict” as to whether the Diplomatic Notes are sufficient to exclude the application of CISG and other international treaties not mentioned therein to Hong Kong and Macau has been removed. China impliedly reiterated itself through this act of extending CISG to Hong Kong that the Diplomatic Notes are sufficient to do so.

 

Hence, whether CISG or Chinese investment treaty extends to Macau is likewise subject to the final decision of China’s Central People’s Government. Despite divergent opinions and interpretations, Chinese government’s stance has been consistent – CISG or Chinese international investment agreement outside the Diplomatic Notes does not ‘automatically’ applies to Hong Kong and Macau, and such extension needs the Central People’s Government’s final approval. Therefore, according to Article 138(1) of the Macau Basic Law, Macau should follow up on future consultations with the Central People’s Government in Beijing to decide whether the CISG (and Chinese investment treaty) should apply to the Macau SAR, and if so, how they should apply. It is foreseeable that China would probably also deposit another separate instrument of extending the application of CISG to Macau. By then, perhaps we can see the dawn of unifying the sales law as key part of inter-regional private laws within the PRC. 

 

——

Endnotes

[1] See the Department of Justice of Hong Kong, Consultation Paper titled “Proposed Application of The United Nations Convention on Contracts for the International Sale of Goods to the Hong Kong Special Administrative Region” (hereinafter “Consultation Paper”), Consultation Period expired by 30 December 2020, paras. 3.33-3.44. It is available at https://www.gov.hk/en/residents/government/publication/consultation/docs/2020/CISG.pdf.

[2] See United Nations, ‘Multilateral Treaties Deposited with the Secretary-General’ (hereinafter “Diplomatic Notes”), China: Notes 2 and 3, which informed the Secretary-General of the status of Hong Kong and Macau in relation to treaties deposited with the Secretary-General. The diplomatic notes laid out the deposited treaties that would respectively apply to Hong Kong and Macau.

[3] See Consultation Paper, supra note 1, paras. 3.38-3.39.

[4] For Press Release, see https://unis.unvienna.org/unis/en/pressrels/2022/unisl327.html.

[5] See Tza Yap Shum v. Peru, ICSID Case No. ARB/07/6, Award, 7 July 2011, where a Hong Kong resident having Chinese nationality relied upon the Peru-China BIT 1994 to bring the ICSID arbitration against Peru.

[6] See Sanum Investments Ltd. v. Lao People’s Democratic Republic, PCA Case No. 2013-13, Decision on Jurisdiction of 13 December 2013, where a Macau-based company invoked the China-Laos BIT 1993 to initiate the UNCITRAL ad hoc arbitration administered by PCA against Laos.

[7] See e.g., PRC Ministry of Foreign Affairs, ‘Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on October 21, 2016’, available at https://www.mfa.gov.cn/ce/cegv//eng/fyrth/t1407743.htm; An Chen, ‘Queries to the Recent ICSID Decision on Jurisdiction Upon the Case of Tza Yap Shum v. Republic of Peru: Should China-Peru BIT 1994 Be Applied to Hong Kong SAR under the “One Country, Two Systems” Policy?’ (2009) 10 Journal of World Investment & Trade 829, at 832-844.

[8] See Diplomatic Notes, supra note 2.

[9] See Article 153 of the Hong Kong Basic Law and Article 138 of the Macau Basic Law.

[10] See Consultation Paper, supra note 1, paras. 3.42 (“While it is not disputed that in Hong Kong at least, the CISG should not apply ….”).

[11] See ibid, at para. 3.38. The Consultation Paper cited the following cases: Telecommunications Products Case, Cour de Cassation, Case No. 04-117726, 2 April 2008 (France); Innotex Precision Ltd v Horei Image Products, 679 F. Supp. 2d 1356 (2009) (US); America’s Collectibles Network Inc. v Timlly (HK) Ltd., 746 F. Supp. 2d 914 (2010) (US); Wuhan Yinfeng Data Network Co. Ltd. v Xu Ming (19 March 2003), Hubei High People’s Court (China).

[12] See ibid, at para. 3.39. The Consultation Paper cited the following cases: CNA Int’l Inc. v Guangdong Kelon Electronical Holdings et al. Case No. 05 C 5734 (2008) (US); Electrocraft Arkansas, Inc. v Super Electric Motors Ltd. (2009) 4:09 CV 00318 SWW (US).

[13] See Consultation Paper, supra note 1, para. 3.42. See also Mahdev Mohan & Siraj Shaik Aziz, ‘Construing A Treaty Against States Parties’ Expressed Intentions: Sanum Investments Ltd v Government of the Lao People’s Democratic Republic’ (2018) 30 Singapore Academy of Law Journal 384.

[14] See Consultation Paper, supra note 1, para. 3.42.

[15] https://www.elegislation.gov.hk/hk/cap641!en.

[16] For comparison between the CISG and Hong Kong law, see Consultation Paper, supra note 1, para. 2.8.

Invitation by Pietro Franzina

On 29 April 2022, Germany filed an application against Italy before the International Court of Justice. Germany complains that Italy is allowing its courts to entertain claims for compensation for prejudice resulting from war crimes and crimes against humanity perpetrated between 1943 and 1945 by the Third Reich’s forces in Italy.

Recalling the ruling given by the International Court of Justice itself in 2012, in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Germany contends that the conduct of Italian authorities amounts to a violation of jurisdictional immunity of Germany as a sovereign State (for a more detailed account of the case, see this post on the EAPIL blog).

A webinar in English, organised by the University of Ferrara and the Catholic University of Milan, will take place on 11 May 2022, between 10.30 am and 12.30 pm, via GoogleMeet, to discuss the various issues surrounding the case.

The speakers include Giorgia Berrino (University of Modena and Reggio Emilia), Serena Forlati (University of Ferrara), Pietro Franzina (Catholic University of the Sacred Geart, Milan), Karin Oellers-Frahm (Max Planck Institute for Comparative Public Law  and International Law, Heidelberg), Riccardo Pavoni (University of Siena), and Pierfrancesco Rossi (LUISS Guido Carli, Rome).

Attendance is free. See here for further details.

The second issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2022 was just published. It features the following case notes, articles and book review on private international law:

David Capper, Proving Dissipation in Freezing Orders

J Atmaz Al-Sibaie, Foreign Claims and Foreign Laws

P Devonshire, Clearing the Decks: The Siskina in the Privy Council

M Paterson, Finally laying The Siskina to rest? and expanding the court’s power to grant freezing injunctions

M Teo, Foreign Act of State: Comity or Certainty

A Dickinson, W(h)ither Unjust Enrichment? Border Disputes in the Conflict of Laws (Again)

C Proctor, Book Review on INTERNATIONAL NEGOTIABLE INSTRUMENTS. Benjamin Geva, Osgoode Hall Law School, York University, Toronto, and Sagi Peari, UWA Law School, University of Western Australia. ISBN 978-0-19-882868-6. Oxford University Press, Oxford (2020) xxxi and 252 pp., plus I p. Appendix and 12 pp. Index. Hardback £110.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 12 May 2022 at 1:00 pm (Mexico City time – CDT), 8:00 pm (Europe, CEST time). The purpose of this webinar is to showcase the book entitled Private International Law: Practical Cases Resolved and Explained, and will be presented by professors David Carrizo Aguado, María del Carmen Chéliz Inglés and Lucas Andrés Pérez Martín in Spanish.

Link: https://us02web.zoom.us/j/88944671902?pwd=SHdQSGVFOGZHWjl4TDdJTmJ6bUc1dz09

Meeting ID: 889 4467 1902

Password: BMAAMEDIP

Participation is free of charge.

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

On Tuesday, May 10, 2022, the Hamburg Max Planck Institute will host its 22nd monthly virtual workshop Current Research in Private International Law at 17:00-18:30 CEST. Kermit Roosevelt (University of Pennsylvania) will speak, in English, about the topic

“The Third Restatement of Conflict of Laws: Origins and Aspirations“.

During the middle of the twentieth century, American judges and law professors reacted against the territorialist rigidity of the First Restatement of Conflict of Laws, ushering in the chaos of the choice-of-law revolution. The Second Restatement, completed in 1971, won wide acceptance by courts but found less favor with law professors and has not brought order to the field. In 2014, the American Law Institute decided to try again, beginning work on the Third Restatement. What lessons can be learned from the history of American choice of law, and how can those lessons inform the drafting of a new Restatement? Kermit Roosevelt, the Reporter for the Third Restatement, will offer an overview of the current draft that seeks to situate it within the history of American choice of law and suggest the reasons that it takes the form it does.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

The Early Bird Registration for the 80th Biennial Conference of the International Law Association in Lisbon (19–23 June 2022) will close on 13th May 2022.

The programme includes sessions of the ILA Committees and Study Groups and a set of parallel panels where the main issues affecting the current status of International Law will be discussed. Information on the programme is available here. Kindly register as soon as possible to secure your place. Online registration is available here.

This book presents a new explanation as to the conflict-of-law rule in the field of intellectual property. In addition, it also provides new insights into the history of the conflict-of-laws, aliens law and their relationship.

The book focusses on the difficult question whether the Berne Convention (on copyright) and the Paris Convention (on industrial property) contain a conflict-of-law rule. Opinions differ widely on this matter today. However, in the past, for the nineteenth-century authors of these treaties, it was perfectly self-evident that these treaties contain a conflict-of-law rule, namely in the ‘principle of national treatment’ as it is called. How is that possible? These are the fundamental questions at the heart of this book: does the principle of national treatment in the Berne Convention (article 5(1)) and the Paris Convention (Article 2(1)) contain a conflict-of-law rule? And if so, why do we no longer understand this conflict-of-law rule today?

The study reveals a ground-breaking new explanation why the principle of national treatment in these treaties contains a conflict-of-law rule: the lex loci protectionis.

Key to understanding is a paradigm shift. The principle of national treatment was developed as a doctrine-of-statute solution addressing a doctrine-of-statute problem. In that way of thinking, it is self-evident that the principle of national treatment contains a conflict-of-law rule. However, today we have started to think differently, i.e. within the paradigm of Von Savigny. This causes a problem: we look at an old, statutist solution through Savignian glasses, and as a result the conflict-of-law rule in the principle of national treatment is out of the picture. Meanwhile, we are not even aware that we are looking through Savignian glasses and that these glasses narrow our field of vision – and as a result, this conflict-of-law rule is beyond our reach. The explanation in this book results in a comprehensive and consistent interpretation of the respective provisions in these treaties, and it explains why we no longer understand this conflict-of-law rule today (see especially paragraph 5.1.2).

The search for this new explanation has, in addition, generated several new insights into the history of the conflict of laws in general (see especially paragraph 5.2.3), aliens law, and the relationship between these two fields of law.

Finally, the book is also detailed and authoritative explanation of the intersection of the conflicts of law and intellectual property law, providing a full and detailed analysis of the current state of affairs of the intersection of these fields of law. It also deals with less common themes such as material reciprocity (Chapter 6).

This book is an English translation of Sierd J. Schaafsma’s book, which appeared in Dutch in 2009, and is now updated with the most significant case law and legislation.

Elgar, 2022; see Elgar website.

Conventions & Instruments

On 8 April 2022, the Kingdom of Saudi Arabia deposited its instrument of accession to the HCCH Apostille Convention. The Convention will enter into force for Saudi Arabia on 7 December 2022. With this accession, the Apostille Convention now has 122 Contracting Parties. More information is available here.

Meetings & Events

From 28 March to 1 April 2022, the Experts’ Group on Parentage / Surrogacy met for the eleventh time. The Group discussed the content of the final report that is to be presented to the Council on General Affairs and Policy (CGAP) at its 2023 meeting. More information is available here.

The Permanent Bureau has announced that 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.