Conflictoflaws

The Chinese lawmakers published the draft Foreign Relations Law and the draft Foreign States Immunities Law in December 2022. The English version of the two drafts published in this post is translated by Jingru Wang at the Wuhan Unviersity Institute of International Law.

Foreign Relations Law of China

Law on Foreign State Immunity of China

 

 

Written by Alessa Karlinski and Maren Vogel (both Free University Berlin).

On February 23rd and 24th, 2023, young scholars came together at the Siegmund Freud University, Vienna, to discuss different views on private international law under the theme of “Deference to the foreign – empty phrase or guiding principle of private international law?”. Continuing the success of the previous three German-Speaking Conferences of Young Scholars in PIL from previous years in Bonn, Würzburg and Hamburg, this year’s conference was hosted in Austria by Martina Melcher and Florian Heindler who organized the event together with Andreas Engel, Katharina Kaesling, Ben Köhler, Bettina Rentsch, Susanna Roßbach and Johannes Ungerer.

As keynote speaker, Professor Horatia Muir Watt (Sciences Po Paris) borrowed from the often-used metaphor of the “dismal swamp” to present an “ecosophical” approach to private international law. For this purpose, she engaged anthropological and philosophical insights of Western and indigenous origin on the meaning of law and the regulatory functions of private international law in particular.

Vanessa Grifo (University of Heidelberg) presented possible insights from the theory of the post-migrant society for international family law. Based on sociological accounts of “post-migrant” identities, Grifo discussed that a person’s cultural identity can form “hybrid” solidarity to different legal systems and oppose the collective national identity of the country of immigration. While previously, according to Kegel, connecting factors were understood to build upon certain generally neutral conflict-of-laws interests, cultural identity is becoming a relevant aspect of party interests, which she demonstrated with the help of different recent judgement of the German Federal Court of Justice. This paradigm, Grifo argued, shows a shift from the system of the traditional German understanding of connecting factors following Kegel.

Victoria Garin (European University Institute, Florence) examined the connection between private international law and the concept of Relativism. The basis of her analysis is the contemporary private international law attempting to coordinate conflicting regulatory claims of several legal systems. Garin identified extraterritoriality, difference and equivalence as assumptions used in private international law to solve this conflict. These assumptions, Garin argued, are premised on Relativism in its forms as descriptive and normative theory. Through the lens of Relativism a critical examination of private international law, especially regarding current developments in literature, was made. Garin explained to what extent the criticism of Relativism can be applied to private international law theory.

Dr Shahar Avraham-Giller (Hebrew University Jerusalem) presented two seemingly contradictory developments in private international law. First Avraham-Giller pointed out, that legal questions are increasingly restrictively categorised as procedural questions in the EU and in common law states which leads to a broader application of foreign law as the lex causae. The application of the lex fori to procedural questions can itself be understood as an overriding mandatory provision of the forum. On the other hand, as Avraham-Giller projected, an increased recourse of courts to the means of other overriding mandatory provisions to safeguard national public interests can be observed. In her opinion, these seemingly contradictory developments can be explained as an answer to the development of a more “private” understanding of civil proceedings, seeking primarily peaceful settlement of private disputes, while enforcing other values and public goals through mandatory overriding provisions at the same time.

Raphael Dummermuth (University of Fribourg) then shed light on deference to the foreign in the context of the interpretation of the Lugano Convention. First, he addressed the question of the implementation of the objective of taking into account the case law of the ECJ by non-EU courts, as stated in Art. 1(1) Protocol 2 Lugano Convention. The application of the Lugano Convention, he pointed out, requires a double consideration of the foreign: the court must consider standards or judgments that are outside the Lugano Convention and in doing so apply a foreign methodology. Nonetheless, the one-sided duty of consideration is limited where the results of interpretation are decisively based on principles of EU law. He came to the conclusion, that precedent effect should therefore only be given to results that are justifiable within the scope of the classical methodology.

The first day of the conference closed with a panel discussion between Professor Dietmar Czernich, Professor Georg Kodek and Dr Judith Schacherreiter on deference to the foreign in private international legal practice and international civil procedure. The discussants shared numerous insights: from the appointment of expert opinions on foreign law, to deference to the foreign in international commercial arbitration and the practice of legal advice.

Selina Mack (LMU Munich) opened the second day of the conference examining the ordre public in the field of succession law using the example of the right to a compulsory portion in Austria and Germany. Mack began by comparing similar regulations in Germany and Austria with the so-called family provision in England. She then contrasted a decision of the Supreme Court of Austria (OGH) with a decision of the German Federal Court of Justice (BGH), both of which deal with the ordre public according to Art. 35 of the European Inheritance Regulation when applying English law. The ordre public clause under Art. 35 is to be applied restrictively. While the OGH did not consider the ordre public to be infringed, the BGH, on the other hand, assumed an infringement. Mack concluded that this is a fundamental disrespect of the foreign by the BGH.

Tess Bens (MPI Luxembourg) examined methods of enforcing foreign judgments under the Brussels Ia Regulation. Said Regulation does not, in principle, harmonise enforcement law. She presented the enforcement mechanism as applying the enforcement law of the enforcing state by means of substitution or, insofar as the order or measure was unknown to the enforcement law, by means of transposition. Due to structural differences in the enforcement law of the Member States, as Bens outlines, practical problems can nevertheless arise. Especially since the abolition of the exequatur procedure in the case of insufficient concretisation of the enforcement order, the Brussels Ia Regulation does not provide a procedure. Finally, she discussed that these frictions might be mitigated by anticipating differences and requirements of the enforcing by the courts, nonetheless limited due to the difficulty of predictability.

Afterwards, the participants were able to discuss various topics in a small group for one hour in three parallel groups, each introduced by two impulse speeches.

The first group looked at the factor of nationality in private international law. Stefano Dominelli (Università di Genova) introduced into the current debate on the connecting factor of nationality in matters concerning the personal status. In his opinion, it is debateable whether a shift towards the application of local law really strengthens deference to the foreign. Micheal Cremer (MPI Hamburg) looked at the handling of so-called golden passports in the EU. He pointed out, that European conflict of laws regularly does not take the purchased nationality into account, being in line with most of the theoretical approaches to the nationality principle.

The second group focused on the influence of political decisions on the application of foreign law. Dr Adrian Hemler (University of Konstanz) presented the concept of distributive justice as a reason for applying foreign law. He emphasised, that the difference between purely national and foreign constellations makes the application of foreign law necessary. In his presentation, Felix Aiwanger (LMU Munich) looked at different standards of control with regard to foreign law. He argued that legal systems that can be considered as reliable are subject to a simplified content review.

The third group discussed the treatment of foreign institutions in international family law. Dr Lukas Klever (JKU Linz) presented the recognition of decisions on personal status in cases of surrogacy carried out abroad. He discussed differences and possible weaknesses in the recognition under the Austrian conflict of laws and procedural law. Aron Johanson (LMU Munich) then provided a further perspective with a look at the institute of polygamy. He explained, that while in Germany a partial recognition can be possible, Sweden had switched to a regular refusal of recognition. Subsequently the question of a duty of recognition arising from the free movement of persons as soon as one member state recognises polygamy was asked.

Dr Tabea Bauermeister (University of Hamburg) devoted her presentation to the conflict of laws dimension of the claim for damages in Art. 22 of the European Commission’s proposal for a directive on corporate sustainability due diligence (CSDDD), paragraph 5 of which compels the member states to design it as an overriding mandatory provision. She outlined, that regulatory goals can also be achieved through mutual conflict-of-laws provisions. An example of this is the codification of international cartel offence law. Bauermeister concluded, that the use of mandatory overriding provisions instead of special conflict-of-laws provisions expresses a distrust of the foreign legislature’s competence or willingness to regulate and therefore represents a disregard of the foreign.

Dr Sophia Schwemmer (Heidelberg University) then examined private enforcement under the CSDDD vis-à-vis third-state companies. She stated, that while third-state companies were included in the scope of application insofar as they are active in the EU internal market, the applicability of the CSDDD could normally not be achieved using the classic conflict-of-laws rules. The CSDDD resorts to an overriding mandatory provision for this purpose. However, Schwemmer concluded that a different approach, e.g. an extended right of choice of law for the injured party, was also imaginable and preferable.

As last speaker, Dr Lena Hornkohl (University of Vienna/Heidelberg University) addressed the effects of EU blocking regulations on private law. She stated that the application of EU blocking statutes as a reaction to extraterritorial third-country regulations can lead to almost irresolvable conflicts in private law relationships. Hornkohl then critically examined the ECJ case law that postulates the direct applicability of the Blocking Regulation in private law relationships. Binding private parties to the Blocking Regulation, she concluded, leads to the instrumentalisation of private law at the expense of private parties with the aim of enforcing foreign policy objectives.

A conference volume will be published by Mohr Siebeck Verlag later this year. The next PIL Young Researchers Conference will take place in Heidelberg in 2025.

Ever since the infamous West Tankers saga, if not before, the interplay between the international jurisdiction of national courts and arbitral tribunals has been subject to a constant stream of publications. Writing a monograph on this topic that is both fundamental and innovative in this field is therefore no small feat – making this book by Faidon Varesis, which has come out at the beginning of the year and is based on his Cambridge dissertation, all the more impressive.

The book is organized in three parts (which are not evident from the Table of Contents). Varesis first discusses the importance of commercial disputes in a globalized world, focusing on the private and regulatory interests involved. He then looks more closely at the issue of jurisdiction and the interplay between litigation and arbitration at what he identifies as “jurisdictional intersections” (referring to a range of different situations in which state courts or arbitral tribunals need to resolve questions of adjudicative jurisdiction), before discussing the concept of party autonomy and its expression in an arbitration agreement. In the second part, Varesis then develops a theoretical model for the distribution of jurisdiction between arbitration and litigation that puts the arbitration agreement at its centre. In the third and final part, the author then tests this model against the current legal framework in England and Wales and demonstrates how it would enable courts and arbitral tribunals alike to solve questions arising at the aforementioned jurisdictional intersections in a global-law spirit.

Arguably the most significant contribution of this book to existing scholarship and debates is its attempt to construct a system around a “horizontal” (rather than hierarchical) relationship between arbitration and litigation as two equivalent yet interdependent modes of dispute resolution. How much appetite there is for such an approach in the wake of Katharina Pistor’s Code of Capital and other critical accounts of corporations seemingly using the law to create and (re-)distribute capital and wealth behind closed doors is obviously open to debate; but this does not make Varesis’ attempt to reconstruct a horizontal system of jurisdiction, arbitral or adjudicatory, that reconciles the distribution of regulatory competence with the need for substantial fairness any less of an intellectually stimulating exercise.

On 13 March 2023, the Journal of International Dispute Settlement  published a private international law article:

G Antonopoulou, “The ‘Arbitralization’ of Courts: The Role of International Commercial Arbitration in the Establishment and the Procedural Design of International Commercial Courts” 

International commercial arbitration is the most preferred dispute resolution method in cross-border commercial disputes. It has been, however, claimed that arbitration has lost its flexibility by becoming increasingly formal and by incorporating litigation practices. In academic literature, this trend has been termed the ‘judicialization’ of international commercial arbitration. This article argues that while arbitration is becoming progressively judicialized, international commercial courts evidence an opposite, less studied trend; namely, the ‘arbitralization’ of courts. Through a comparative analysis of different international commercial courts, the article explores how the competition with arbitration has prompted the establishment of these courts, and how arbitration has served as the inspiration for some of their most innovative features. The article concludes that while the incorporation of arbitration features could improve court proceedings, some of international commercial courts’ arbitration features undermine procedural justice and the role of courts as public institutions and therefore hit the limits of arbitralization.

A new private international law article was just published in the Arab Law Quarterly.:

A Dawwas, “Tacit Choice of Law Applicable to International Commercial Contracts: The Hague Principles and Arab Laws Compared”

This article deals with the law tacitly chosen by the parties to govern their international commercial contracts. It shows the method by which The 2015 Hague Principles on Choice of Law in International Commercial Contracts and Arab laws refer to tacit choice, whether directly or indirectly. In addition, it tackles the level of strictness in tests for tacit choice and its criteria under both The Hague Principles and Arab laws. It concludes that, in order to achieve more predictability and legal certainty, the Legislatures in Arab states should reform the legal provisions on choice of law applicable to the contract with foreign element(s) according to the best practice followed by The Hague Principles in this regard.

The lectures of Mario J. A. Oyarzábal entitled “The influence of public international law upon private international law in history and theory and in the formation and application of the law”, which were delivered at The Hague Academy of International Law in 2020, will be published on 22 March 2023 in the Collected Courses of the Academy (Recueil des cours de l’Académie de droit international de La Haye, Vol. 428, 2023, pp. 129 et seq.).

Mario Oyarzábal is an Argentine diplomat and scholar, currently the Ambassador of the Argentine Republic to the Kingdom of the Netherlands.

The summary below has been provided by the author.

As its title suggests, this course explores the influence of public international law upon private international law, in the history and the theory as well as in the formation and the application of the law.

The course focuses on the biggest transformations that have taken place on the international plane over the course of the last century and assesses how that has affected the legal landscape, raising questions as to the scope and the potential of private international law and the suitability of the traditional sources of international law to address the role of private actors and the incursion of public law in the private arena.

In Chapter I, the author analyses how the concepts of public and private international law have evolved over time, from the Jus Gentium and the origins of the conflict of laws to the rise of sovereignty and positivism which led to the exclusion of private disputes connected with more than one State from the domain of international law. Much attention is given to the developments in international relations and international law that took place since the second half of the 20th century – institutionalization, decolonization, human rights, globalization – which have produced a profound transformation in the sources, the method and ultimately the scope of private international law. The significance for private international law of the human rights movement and the regime for the protection of foreign investors are assessed from both backward and forward-looking perspectives.

Chapter II addresses the public international law sources of private international law in an ever-changing world. Starting with the sources stated in the Statute of the International Court of Justice, the author digs into the relevance of other international sources of private international law such as community law, human rights standards and non-legally binding norms (or soft law), party autonomy and reciprocity. The law of treaties – their interpretation and the conflict of treaties – as applied to private international law is dealt with in certain detail, as well as the role – and potential – of the jurisprudence of the International Court of Justice in the determination of the rules of private international law in certain areas.

The last Chapter addresses the interaction of public and private international law in selected areas: jurisdictional immunities – of foreign States, diplomats and international organizations – and the right of access to justice; mutual legal assistance – in relation with the 2019 Hague Judgments Convention, and the so-called “MLA initiative” on a convention for the investigation and prosecution of international crimes; sovereign debt restructuring processes in light of Argentina’s experience; the international law principle of the best interests of the child as applied to abducted, migrant and refugee children; international sports law with special focus on FIFA and football; international arts law under the 1970 UNESCO Convention and the 1995 UNIDROIT Convention and general international law; cybercrime as well as cryptocurrencies. The private international law issues relating to nationality, deep seabed mining, and sea level rise – which are the subjects of public international law – are also introduced.

Having analyzed the prevailing trends, the lectures survey three areas in which the interconnectivity of actors, activities and norms are present requiring public/private law solutions: international economic law – in relation to climate litigation and the human rights preoccupations present in the investment protection regime, as well as the issue of economic and financial sanctions which have exacerbated with the war in Ukraine; international data flows and the threat they pose to personal data protection in particular; and the protection of vulnerable persons and groups including older adults, tourists and migrants.

This course takes a pragmatic problem-solving approach, which nonetheless is systemic and based on principles, and argues that while public and private international law are and should be kept as separate legal fields, both are needed to address an increasing number of issues.    

 

Below is the table of contents:

The Influence of Public International Law upon Private International Law: In History and Theory and in the Formation and Application of the Law by Mario J. A. Oyarzábal:

Table of Contents
Foreword 141
Preliminary remarks 143

Chapter I. The influence of public international law upon the history and the theory of private international law 146
1. The evolving concepts of public and private international law 146
2. A historical and theoretical overview 151
(a) Jus gentium and the origins of the conflict of laws 151
(b) International comity 152
(c) Sovereignty and the dearth of the internationalist approach . 154
(d) The legal conscience of the civilised world 155
(e) The early normative and institutionalisation efforts 158
(f) The Russian and the American revolutions 163
(g) The growing international legal community 170
(h) International law and development 176
(i) Public law in the international arena 186
(j) The privatisation of the State 196
(k) Expansion and diversification of international law 198
(l) Significance for private international law of the human rights movement 209
(m) From international law to transnational law 223
3. Should private international law be international law? 230

Chapter II. The influence of public international law upon the formation of private international law 240
A. Sources of the law 240
1. Customary international law 240
2. Treaties 244
(a) Private international lawmaking treaties  244
(b) Validity and application of treaties 248
(c) Reservations  255
(d) Interpretation of treaties

(e) Application of successive treaties regarding the same subject matter

(f) Treaties as part of the domestic systems of private international law

(g) Incidences of non-recognition of States, breach of diplomatic relations and State succession 259
3. General principles of law 286
4. Judicial decisions  290
(a) Decisions of the ICJ and its predecessor 290
(b) Arbitral awards  298
(c) Decisions of national courts  302
5. The writings of publicists  307
B. Other sources 309
1. “Community” law 309
2. Human rights standards  317
3. Non-legally binding norms 324
4. Party autonomy 332
5. Reciprocity 333
Note on comity 339
Note on international conferences and organisations concerned with private international law 340

Chapter III. The influence of public international law upon the application of private international law: selected problems 342
1. Jurisdictional immunities and the right of access to justice 342
2. From mutual recognition to international legal cooperation  365
3. Sovereign debt restructuring: Public and private law litigation 379
4. International law on the rights of the child 411
(a) International human rights of children in private international law 411
(b) Best interests of abducted children 416
(c) The protection of the best interests of migrant children 421
(d) Best interests of the child in intercountry adoption 428
5. International sports law 431
(a) International sports organisations: Personality and lawmaking and law enforcement 431
(b) The case of FIFA 439
6. International art law 449
(a) Cultural internationalism and cultural nationalism 449
(b) The public and the private international law approaches 452
(c) Free market and exports control 455
(d) Human rights considerations 456
(e) Anti-seizure statutes 458
(f) Conflicts law in illegally exported works of art 461
(g) Cultural heritage, peace and security 462
7. International norms and standards in cyberspace 464
(a) Cybercrime, rights and global politics 466
(b) The rise of cryptocurrency 468
Note on nationality 473
Note on deep seabed mining and the protection of the marine environment 476
Note on sea level rise 477
Critical recap and outlook 480
Epilogue 503
Selected bibliography 505

The HCCH this month published some recent developments on private international law in Issue 1 of Uniform Law Review for 2023 as “News from the Hague Conference on Private International Law (HCCH)”

Over the past year, the HCCH, supported by its Permanent Bureau, has continued its work for the progressive unification of the rules of private international law (PIL). This annual contribution to the Uniform Law Review provides an overview of the activities of the HCCH from 1 November 2021 to 30 November 2022 and anticipates some upcoming events, encompassing the HCCH’s three main areas of work: international family and child protection law, transnational litigation and apostille, and international commercial, digital, and financial law.

Originally posted in News and events – Nigeria Group on Private International Law (ngpil.org)

On 4 March 2023, the Nigerian Group on Private International Law (“NGPIL”) colleagues were pleased to meet the winners of the 2023 NGPIL Conflict of Law’s Essay Prize. This year, we awarded two candidates, winner and first runner up, for excellent and engaging pieces on PIL and Nigeria.

Our winner, Oluwabusola Fagbemi, an LLM student from the University of Ibadan, Oyo State emerged as the winner of this year’s competition. She wrote on “A Comparative Analysis of Product Liability in the Conflict of Laws”, a piece that the deciding panel found to engage robust research, comprising of Nigeria common law, EU approach, English approach and US approach. Our winner was awarded 185,000NGN. In her words “It is an honour to be selected for The NGPIL Prize for the year 2022/2023. Thank you very much…It was also great to get to know them [NGPIL] and hear of their exciting work, and the impact that they are making in the PIL space globally… believe that The NGPIL is the right place for me to grow, learn, advance my career, and develop my interests in PIL. I will definitely keep in touch and remain connected, and I am looking forward to future collaboration.”

Adeyinka Adeoye from the Nigerian School of Law, Kano Campus received the 1st runner prize on her paper entitled “Product Liability in Private International Law” from a Nigerian perspective. She was awarded 65,000NGN. In her words “I am super excited that my essay emerged first runner-up. This news came at the best possible time“.

Huge congratulations to Busola and Adeyinka!

The Council on General Affairs and Policy (CGAP) of the HCCH met from 7 to 10 March 2023. The meeting was attended by over 450 participants, representing 80 HCCH Members, 8 non-Member States, 7 intergovernmental organizations, 9 international non-governmental organizations, and members of the Permanent Bureau. The Conclusions & Decisions adopted by CGAP are now available in English and French.

In terms of work relating to possible new legislative instruments, CGAP mandated the establishment of a Working Group on private international law (PIL) matters related to legal parentage generally, including legal parentage resulting from an international surrogacy arrangement. Noting progress made by the Working Group on matters related to jurisdiction in transnational civil or commercial litigation in the development of provisions for a draft Convention, CGAP invited the convening of two further Working Group meetings. It also supported further exploratory work on the PIL implications of the digital economy, including, among other, by mandating the conduct of a study on the PIL implications of CBDCs and by endorsing the launch of the HCCH-UNIDROIT Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens. Across several projects, CGAP welcomed the cooperation with UNCITRAL, UNIDROIT, and WIPO, including with respect to work in the areas of digital economy, insolvency proceedings and intellectual property.

In relation to post-Convention work, CGAP approved the Toolkit to Prevent and Address Illicit Practices on Intercountry Adoption and the Model Forms for use under the 1993 Adoption Convention, mandated the development of a Template for Country Fact Sheets on available post-adoption services relating to search for origins, and mandated the establishment of a Working Group on financial aspects of intercountry adoption. CGAP also agreed upon the extension of the scope of the International Hague Network of Judges (IHNJ) to matters relating to the 2000 Protection of Adults Convention. CGAP endorsed the Conclusions & Recommendations of the recent meetings of the Special Commissions (SCs) on the practical operation of the 1993 Adoption, 2000 Protection of Adults, and 2007 Child Support Conventions, and welcomed the preparations for the upcoming meetings of the SCs on the practical operation of the 1980 Child Abduction and 1996 Child Protection Conventions, to be held in the second half of 2023, and on the practical operation of the 1965 Service, 1970 Evidence and 1980 Access to Justice Conventions. Finally, CGAP mandated the PB to continue work, in partnership with relevant subject-matter experts, and subject to available resources, to study the 2006 Securities Convention and digital developments in respect of securities markets; the interpretation of analogous institutions for the purpose of Article 2 of the 1985 Trusts Convention; and, in relation to the 2015 Choice of Law Principles, the feasibility, desirability and necessity of developing guidance on applicable law in international contracts providing protection to weaker parties.

From a good governance perspective, CGAP approved the HCCH Strategic Plan for 2023-2028. It also decided to adopt Spanish as an official language of the HCCH as of 1 July 2024. Finally, CGAP decided to recommend Dr Christophe Bernasconi to the Netherlands Standing Government Committee on Private International Law for the position of Secretary General of the HCCH for another five-year mandate.

This book, by Adeline Chong and Man Yip, faculty members at the Yong Pung How School of Law at the Singapore Management University, is part of the Oxford Private International Law Series. There is a 30% discount for purchases made through the OUP website using the promotion code AUTHFLY30. The publisher’s blurb is as follows:

 

“There has been significant reform in Singapore private international law in recent years. Developments such as the establishment of the Singapore International Commercial Court, the incorporation of the Hague Convention on Choice of Court Agreements into Singapore law, and the enactment of the Insolvency, Restructuring and Dissolution Act 2018, have all thrown the country into a period of rapid growth.

Singapore Private International Law: Commercial Issues and Practice provides a roadmap to assist readers in navigating this changing landscape. In it, Chong and Yip offer an overview of Singapore’s legal system, exploring how governmental and judicial efforts have capitalised on Singapore’s location at the heart of Asia, its status as a leading financial centre globally, and its modern infrastructure, to make it the hub of choice for cross-border disputes and insolvency and restructuring efforts. Practical guidance is given to matters such as changes to jurisdiction, protective measures, the recognition and enforcement of foreign judgments, general choice of law issues, and issues specific to contract, tort, unjust enrichment, equitable obligations, trusts, property, corporations, and international insolvency and corporate restructuring. The book also looks at how the English common law principles have been implemented and developed in Singapore, with relevant cases, legislation, and foreign sources used to offer a comparative perspective.”

 

Further information can be found at this link: https://global.oup.com/academic/product/singapore-private-international-law-9780198837596?cc=sg&lang=en&#

For more than 40 years, the ICC Institute of World Business Law has been enhancing ties between the academic world and practising lawyers.

Launched in 2007, the Institute created the Institute Prize as a means to encourage focused research on legal issues affecting international business. Contributing to the understanding and progress of international commercial law around the world, the Institute Prize recognises legal writing excellence.

The Institute Prize is open to anyone 40 years of age or under as of deadline date who submits a doctoral dissertation or long essay (minimum of 150 pages) drafted in French or English on the subject of international commercial law, including arbitration.

Rules and deadlines concerning the next Prize edition in 2023 are finally out. The works submitted for the Prize should be sent to the Secretariat of the Institute at the contact address indicated below: iccprize@iccwbo.org by 3 April 2023 at the latest.

It goes without saying that CoL is proud that one of its former editors, Brooke Marshall, was named laureate of the 2021 ICC Institute of World Business Law Prize for her thesis on ‘Asymmetric Jurisdiction
Clauses’. We keep our fingers crossed that perhaps again someone from the global CoL community will be successful.

Applications are now open for three- to six-month legal internships at the Permanent Bureau’s headquarters in The Hague, for the period from July to December 2023!

Interns work with our legal teams in the areas of Family and Child Protection Law, Transnational Litigation and Legal Cooperation, and Commercial, Digital and Financial Law. Duties may include carrying out research on particular points of private international law and/or comparative law, taking part in the preparation of HCCH meetings and contributing to the promotion of the HCCH and its work.

Applications should be submitted by 31 March 2023. For more information, please visit the Internships Section of the HCCH website.

 

 

 

 

 

 

May today’s milestone (reported here) be also an ode to late professors Alegría Borrás and Julio González Campos for their absolute tireless efforts regarding the Spanish language at the Hague Conference on Private International Law (HCCH) and their infatuation with the Spanish language.

Let us remember that we are standing on the shoulders of giants.

 

Take a last look at this image from the website of the HCCH; it will likely change soon. The HCCH has adopted Spanish as an official language from 1 July 2024. . . Here is the official announcement from The Hague Conference (the link provides also the Spanish version): During the annual meeting of the Council on General Affairs and Policy (CGAP), the Members of the Hague Conference on Private International Law (HCCH) expressed their unanimous support for the introduction of Spanish as an official language. From 1 July 2024, Spanish will join English and French as one of the three official languages of the Organisation. This development represents an important further step contributing to universality and inclusiveness at the HCCH, reflecting the importance of multilingualism and multilateralism as core pillars of its work. The adoption of Spanish as an official language will facilitate the proper and effective implementation and operation of the HCCH’s Conventions and instruments in Spanish-speaking States and will therefore have a decisive positive impact on the lives of the hundreds of millions of native Spanish-speakers around the world. The adoption of Spanish will also simplify the lives of the countless other individuals who interact with Spanish-speaking States – be it through commerce, travel, personal relations, or other. The decision to adopt Spanish as an official language of the HCCH will be reflected in CGAP’s Conclusions and Decisions, to be published in the coming days. . . And here is a first blog entry from Claudia Martínez, appropriately in Spanish. . . Notably, a Spanish version of the HCCH website has existed since the launch in 2009. Then, it was the only language version other than the English and French ones. Today, (more or less) full versions exist also in German and Portuguese;  other language sites provide translations of Hague Conventions.

Alexander DJ Critchley has added an enriching installment to Hart’s renowned Studies in Private International Law Series entitled “The Application of Foreign Law in the British and German Courts”.

The author has extensive experience as solicitor in Scots law with a specialisation in family law. His book is the publication of a doctoral thesis completed with distinction at the university of Tübingen (Germany). The blurb reads as follows:

This book explores the application of foreign law in civil proceedings in the British and German courts. It focuses on how domestic procedural law impacts on the application of choice of law rules in domestic courts. It engages with questions involved in the investigation and determination of foreign law as they affect the law of England and Wales, Scotland, and Germany. Although the relevant jurisdictions are the focus, the comparative analysis extends to explore examples from other jurisdictions, including relevant international and European conventions. Ambitious in scope, it expertly tracks the development of the law and looks at possible future reforms.

Please check out Hart’s banner at the top of this page for special discounts for CoL readers.

 

The first view of the second issue of ICLQ  for 2023 contains a private international law article that was published online just recently:

 

S Matos, Arbitration Agreements and the Winding-Up Process: Reconciling Competing Values

Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.

This week the Hague Conference on Private International Law (HCCH) published the Practical Guide – Access to Justice for International Tourists and Visitors. The HCCH news item is available here.

As indicated in the Guide, this document “is intended to assist international tourists and visitors to foreign countries seeking access to justice for disputes arising from their tourism experience by providing information on online dispute resolution mechanisms that may be available and HCCH legal instruments that may be relevant in a given case.”

There are a few aspects of the Guide that are worthy of note:

First, the definitions of a visitor and a tourist are interesting.

A “visitor” is considered to mean “a traveller taking a trip to a main destination outside their usual environment, for less than a year, for any main purpose (business, leisure, or other personal purpose) other than to be employed by a resident entity in the country or place visited.”

A “tourist”: “A visitor (domestic, inbound, or outbound) is classified as a “tourist” if their trip includes an overnight stay.”

These definitions are taken from the United Nations World Tourism Organization (UNWTO).

Secondly, Part I of this Guide provides a list of online dispute resolution platforms, although some are not specific to international tourists and visitors. Among the governmental initiatives are: EU Online Dispute Resolution Platform (European Commission), Concilianet de PROFECO (Mexico) and Consumidor.gov.br (Brazil). Among the private initiatives are: Airbnb Online Resolution Centre and Endispute.

Thirdly, Part II of this Guide sets out examples of common claims made by tourists and visitors such as lost baggage, cruise cancelled due to weather, and damage to property at hotel. These examples are merely indicative and of course do not constitute legal advice.

All in all it makes an interesting read and its layout is more easily readable on different devices. Nevertheless, it does make me wonder how much this document would actually help tourists and visitors in times of trouble.

 

 

On 8 March 2023, the latest edition of the cycle of seminars – entirely in English – on cross-border civil and commercial litigation will begin, as part of the European project Jean Monnet Module on Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe, organized by the Department of Italian and Supranational Public Law of the University of Milan.

This year’s edition will focus on the following three topics:

– Binding effects and res iudicata in a multilevel dimension (seminars on 8-9-15-16-17-22-23 March 2023);

– Collective redress and group litigation (seminars on 29 March-12-13-19-20-26-27-28 April 2023);

– Main procedural issues of climate litigation (seminars on 3-4-10-11-17-18 May 2023).

The seminars (currently being accredited by the Milan Bar Council) can be followed both face-to-face and remotely, on the MS Teams platform.

All information on the program and how to register may be found here.

Conventions & Instruments

On 1 February 2023, the 1980 Child Abduction Convention entered into force for Botswana. The Convention currently has 103 Contracting Parties. More information is available here.

On 17 February 2023, Azerbaijan deposited its instrument of accession to the 1965 Service and 2007 Child Support Conventions. The 1965 Service Convention, which now has 80 Contracting Parties, will enter into force for Azerbaijan on 1 September 2023, subject to the Article 28 procedure. As for the 2007 Child Support Convention, with the accession of Azerbaijan 46 States and the European Union are now bound by it. It will enter into force for Azerbaijan on 28 February 2024. More information is available here.

Meetings & Events

On 7 and 8 February 2023, the Permanent Bureau of the HCCH co-organised the Regional Conference “The HCCH and the relevance of its work for Southern Africa”, together with Finland and South Africa, with the participation of Namibia and Tanzania, as well as other Southern African Development Community States, and hosted by the University of Pretoria (South Africa). More information is available here.

From 13 to 15 February 2023, the International Transfer of Maintenance Funds Experts’ Group met for the fourth time. Pursuant to its mandate, the Experts’ Group continued its work discussing good practices in relation to the cross-border transfer of maintenance payments, with a view to identifying solutions that are cost-effective, transparent, prompt, efficient and accessible. More information is available here.

From 13 to 17 February 2023, the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation met for the fourth time. Pursuant to its mandate, the Working Group made further progress on the development of draft provisions for a possible future instrument on parallel litigation in civil or commercial matters. More information is available here.

Upcoming Events

Registrations are open for the conference “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook”, which will be held in person on 9-10 June 2023 at the University of Bonn in Germany. More information is available here.

Vacancies

Applications are now open for three- to six-month legal internships for the period from July to December 2023. The deadline for the submission of applications is 31 March 2023 (18:00 CEST). 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.

 

Reviewing Sanctions in Arbitration: The Good, the Bad, and the Ugly of Private International Law Analysis

by Naimeh Masumy, [nmasumy@gmail.com]

The growing role of arbitration as a peaceful means for resolving investment, commercial and inter-state disputes is now impacted by an increasing number of sanction regimes borne out of the recent geopolitical conflicts.  Following Russia’s invasion of Ukraine, many regulators across various jurisdictions sought to move towards greater coordination of sanction implementation and enforcement efforts. The recent tranche of sanctions has sparked a debate on the appropriate standards of review that arbitral tribunals ought to apply when dealing with disputes involving sanctions.

In this short note, we look at the case of Sofregaz v. NGSC, which provides a sobering exposition of the challenges faced by the adjudicative bodies when assessing the legality of unilateral Extra-territorial sanctions under international law.  This case concerns the annulment of an arbitral award rendered in Paris 2018 in favor of NGSC, pursuant to the Rules of Arbitration of the International Court of Arbitration of the International Chamber of Commerce (ICC Rules). In 2018, the ICC tribunal found against Sofregaz and awarded NGCS an amount of over USD 2.4 million for an unpaid invoice and down payment drawn by Sofregaz under certain guarantees. Sofregaz applied to set aside the award before the Paris Court of Appeal.  It sought an annulment application based on NGSC’s exposure to US secondary sanction. Sofregaz argued, inter alia, that the tribunal had failed to carry out its mandate and had not considered the impact of sanctions against Iran on the performance of the contract. In Sofregaz’s view, this resulted in an award contrary to French international public policy in that it gave effect to a contract that could not be performed without breaching the designated sanctions. The Court of Appeal dismissed the annulment application brought by the Sofregaz, using private international law analysis to dismiss the legality of U.S. sanctions.

This note will highlight why invoking such a private international law analysis when determining the validity and the scope of applicable sanctions will undermine international arbitration. Then, it will show that such an analysis is inconsistent with the overriding objectives of international arbitration – arguably, the creation of an autonomous dispute resolution system for the effective and expeditious resolution of disputes in a delocalized fashion.

The Relevance of Private International Law Analysis to Arbitration

Private international law provides a judicial tool for courts to address the distinction between forum law and foreign law and promotes a smooth functioning of the international legal regime by mitigating jurisdictional conflicts, especially in a legal relationship involving several applicable laws.  Courts weigh private and public policy concerns of the forum law and foreign law when determining whether to apply the laws of a foreign jurisdiction over the forum law.

Many scholars have strongly advocated the use of private international law analysis in international arbitration. The benefits of such analysis are particularly clear when arbitrators are faced with potentially conflicting laws, similar to the case of Sofregaz v. NGCS. where the tribunal was confronted with three different sets of laws: Iranian law governing the contract, French law as the law applicable at the seat of arbitration, and the U.S. law governing the sanctions regime, albeit extraterritorially imposed, which materially impacted on the performance of a contract. The tribunal did not consider the impact of US sanctions, and rendered an award in favor of NGSC due to the wrongful termination of a contract for the conversion of a gas field.

 In such instances, private international law can operate as a mechanism of localization that permits tribunals to adjudicate in cases involving several legal orders by taking into account important considerations such as overriding mandatory rules at the seat of the arbitral tribunal.

Arbitrators are generally empowered to apply the law deemed “appropriate” or “applicable” in the absence of a governing law clause. Notably, Article 22(3) of the 2020 LCIA Rules also authorizes arbitrators, when determining the lex contractus, to apply the rules of law they deem appropriate. Such approaches can provide objective yardsticks for tribunals exercising their discretion to select the appropriate law. Having objective criteria aids predictability and efficiency and ensures tribunals do not act outside their designated mandates.

This is of particular significance as the uncertainty over the governing law may negatively affect the parties’ due process rights and may lead to the award being issued arbitrarily. Such concern was echoed in the Sofregaz application to set aside the award in 2019, in which it was claimed that the tribunal failed to take into account the impact of U.S. economic sanctions. Thus, that award recognition would be contrary to international public policy (“l’ordre public international”).

The court dismissed the claim observing that the Tribunal did not violate international public policy in failing to consider the impact of U.S. economic sanctions. To this end, the French court defined international public policy as “the body of rules and value whose violation the French legal order cannot tolerate, even in the international context.” In its reasoning, the court heavily endorsed French conflict-of-laws rules to determine the contour of mandatory rules. This approach means that if a tribunal relies on objective criteria to take into account essential regulations of the forum such as domestic and international mandatory law, the final award may remain immune from potential challenges.  In other words, private international law analysis may be a desirable straight jacket to ensure that tribunals comply with regulatory provisions of the forum. As such, it may enable courts to establish trust in arbitration and refrain from inquiring into the merits of final awards.

Conflict of Rules Analysis: Undermining the Delocalization Theory

The delocalization theory of arbitration is a part of the much broader, which posits that international arbitration ought to be completely detached from the procedural and substantive law of the place of arbitration or the seat, or lex loci arbitri, and from national law in general. According to this theory, arbitration is a private activity, which can be considered favorably or unfavorably, but certainly does not need to be empowered by any state ex ante. While this theory found a firm grounding under the French law of international arbitration, in reality, this theory usually carries little weight, especially in enforcing an award that has been challenged. The theory of delocalization begins to wane, as the legal system of the forum country will be the primary source relevant to ascertaining the legal relationship of the final award and the mandatory provisions of the lex fori.

In addition, the New York Convention muddies the waters by making reference to domestic public policy in article V (2) (b) as a ground for non-recognition or enforcement of an award., Based on the literal reading of the Convention, the law of the seat of arbitration usually delineates. Thus, to contextualize international arbitration through the prism of absolute delocalization, a system wholly emancipated from the forum law will pose practical challenges.

The above is of relevance to the role of sanctions for arbitral awards. Private international law is predicated on the notion that the world is divided into nation states and national legal orders. This approach dramatically contrasts with what international arbitration delocalisation theory arguably has long sought: to free arbitration from national orders. According to this view, examining the validity and scope of sanctions through the prism of private international law analysis forces the arbitrator to draw upon domestic law. This, in turn, contravenes the main tenet of delocalization theory, which confirms that arbitration has no forum. Further, the arc of modern arbitration laws arguably negates the relevance of private international law analysis. Modern arbitration laws are mostly substantive laws, and the notions embedded in arbitration are substantially transnational rather than international, which undermines the viability of the private international law analysis.

Private International Law Analysis: A False Aura of Objectivity

Despite the widespread view that private international law provides a roadmap towards a more predictable and objective outcome for disputes involving sanctions, such framework is prone to inconsistent and divergent results. Private international law provides a basis of jurisdiction to apply foreign law when several laws may concurrently apply to the dispute. In doing so, private international law approaches balance competing interests according to notions such as reciprocity, expectation of courtesy and comity. The exact contours of these notions have remained imprecise, as the U.S. Supreme Court noted in the case of Hilton v. Guyot. Courts often draw upon their ideology and values explicitly and implicitly to ascertain comity. Such assessment will inadvertently lead to adjudicators interposing ad hoc political judgments about foreign relations, opening a door for arbitrators to endorse parochial domestic policies to ascertain the legal orders involving international components. This is evident in the French Court’s reasoning, in which the court heldthat “[t]he unilateral sanctions taken by U.S. authorities against Iran cannot be regarded as the expression of an international consensus, since the French authorities dispute the extraterritorial reach of these sanctions”. This assessment was drawn by balancing the interests of French national policies, which denotes that relying on political considerations rather than legitimate international considerations concerning the legality of sanctions will open the door for domestic idiosyncratic views and interpretations, which in turn, will bar this concept to be applied hegemonically across different jurisdictions.

If the governing law of sanctions is determined by private international law, it may pose conceptual difficulties. Sanctions are international instruments hinging on the notion of sovereign equality. The underpinning principle of sovereign equality of states is deeply embedded in one of the main tenants of international law. Any actions impinging on that principle would therefore need to involve considerations of public policy. Public international law must impose limits to the scope and validity of sanctions and to governing law. To this end, using private international law approaches to ascertain the validity of sanctions will negate the character (or nature) of sanctions as a public international law instrument transcending national boundaries

Conclusion

This post has called into question the viability of a private international law analysis in reviewing the scope of the application of sanctions. It has contended that a private international law analysis borrows its genesis from the domestic law of the forum (state). Private international law analysis needs to have sufficient normative weight to scrutinize or inquire into the substance of sanction regimes. Further, invoking private international law principles does not preclude arbitrators from engaging in subjective assessments to examine the applicability of a sanctions regime. By abandoning a private international law analysis, the interpretation and enforceability of sanctions will become more anachronistic and predictable.