Conflictoflaws

We are happy to share the following information on a conference organised by Robin Cupido (University of Cape Town), Benedikt Schmitz (University of Groningen), and Michiel Poesen (KU Leuven), which will be held in Leuven, Belgium, and online on 16 June 2022 (languages: Dutch and Afrikaans), with funding provided by Tijdschrift voor Privaatrecht.

The conveners invite all interested scholars to a one-day conference that explores the interplay between fundamental rights and private international law in the broadest sense. We are looking forward to the following presentations given by young PIL scholars from South Africa, Belgium, and The Netherlands:

• De sociale impact van grensoverschrijdende bedrijfsmobiliteit in Europa (Marilou Hubers, Universiteit Maastricht)
• Asymmetrische forumkeuze en recht op eerlijk proces (Nischa Vreeling, Rijksuniversiteit Groningen)
• Publieke belangen in het IPR-consumentenrecht (Benedikt Schmitz, Rijksuniversiteit Groningen)
• Bevoegdheid in het EU IPR: vehikel voor bescherming van fundamentele rechten? (Michiel Poesen, KU Leuven)
• Persoonlijke identiteit v. nationale constitutionele identiteit: interactie tussen EU recht en internationaal privaatrecht (Hester Kroeze, UGent: Raad van State)
• Die beskerming van migrante kinders in internasionale privaatreg (Robin Cupido, Universiteit van Kaapstad)
• The Right to Freedom of Religion and Conscience: A Comparative Analysis of the Doctrine of Entanglement (Mathabo Baase, Universiteit van Kaapstad)

Special thanks to Prof. Xandra Kramer (keynote speaker), and Prof. Geert van Calster and Prof. Thalia Kruger (chairs of the roundtables).

Please click here for more information and to register.

The Ferenc Mádl Institute of Comparative Law, Justus Liebig University Giessen and Vienna University of Economics and Business (WU) are organizing the conference Sustainable Finance in European Jurisdictions, with the aim of investigating from a comparative law perspective the regulation underpinning the capital flow into sustainable enterprises. The conference will take place at the Hungarian Academy of Sciences in Budapest on 29 and 30 April 2022 and will also be transmitted via Zoom.

The conference brings together academics to present their findings on 14 different European jurisdictions, seeking to discuss regulation in order to address inconsistencies and identify the path forward. As the challenges faced in this field are global, the necessity for international collaboration appears crucial. Identifying the national regulatory interests and eventual conflicts pave the way to reform and harmonisation.

Attendance is free of charge, however prior registration is mandatory.

See the conference agenda and registration form.

The Chinese University of Hong Kong’s Centre for Comparative and Transnational Law is organising the seminar From Certainty to Uncertainty – CISG in Hong Kong

On 29th September 2021 at 12:30–2:00pm (Hong Kong Time), the Legislative Council of the Hong Kong Special Administrative Region passed the Sale of Goods (United Nations Convention) Ordinance (Cap. 641) in order to give effect to the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG). The Ordinance is expected to come into force at some points in 2022. While the CISG seems like a successful international treaty with (currently) 94 State Parties, yet it is not uncommon for international commercial parties to in fact “opt out” or exclude its application as per the mechanism provided for in Article 6. Not all provisions in the CISG are written in a clear manner. Certain concepts contained therein are unfamiliar to lawyers trained in the common law legal tradition. This seminar is to argue that the decision to introduce the CISG into Hong Kong was in fact the decision to introduce uncertainty into an area of law which was once certain with well-supported statutes, case law authorities grounded upon the solid common law foundation, and advanced private international law and dispute resolution mechanisms.

About the speaker:

Dr Poomintr Sooksripaisarnkit is a Lecturer in Maritime Law within the Australian Maritime College, University of Tasmania. He is also holding a position of a Research Associate within the Research Centre for Private International Law in Emerging Countries, University of Johannesburg, South Africa. He is a Fellow of the Chartered Institute of Arbitrators and the Supporting Member of the London Maritime Arbitrators Association. His research interests lie in commercial conflict of laws (private international law), insurance law, private aspects of admiralty and maritime law, carriage of goods by sea, international sale of goods carried by sea, and aspects of international arbitration. His recent publications include: Poomintr Sooksripaisarnkit and Dharmita Prasad (eds), Blurry Boundaries of Public and Private International Law: Towards Convergence or Divergent Still (Springer Nature 2022), Poomintr Sooksripaisarnkit and Sai Ramani Garimella (eds), Contracts for the International Sale of Goods: A Multidisciplinary Perspective (Thomson Reuters Hong Kong Limited 2019), Poomintr Sooksripaisarnkit and Sai Ramani Garimella (eds), China’s One Belt One Road Initiative and Private International Law (Routledge 2018)

CPD credit is available upon application and subject to accreditation by the Law Society of Hong Kong (currently pending).

Register here by 5 pm (Hong Kong time) on 26 May 2022 to attend the seminar.

The Center for International Legal Education at Pitt Law and the Chartered Institute of Arbitrators–North America Branch are jointly hosting a hybrid panel event on 21 April from 1-5ET.

This event will bring together academics, arbitrators, and counsel to discuss strategic considerations, best practices, and the legal discord in procuring third-party discovery in aid of arbitration. Top of the agenda will be a discussion of the recent Supreme Court argument regarding 28 U.S.C § 1782, which has given rise to nationwide discord regarding whether parties in international arbitrations can ask federal courts to order U.S. discovery in aid of arbitral proceedings.

Registration for both virtual and in-person attendance in Pittsburgh can be found here.

CILE-CIArb Event

A new blog devoted to transnational litigation — Transnational Litigation Blog, or TLB — is now officially up and running. The primary focus of TLB is on transnational litigation in U.S. courts (both state and federal). It covers notable new cases and recent scholarship and provides commentary on decisions and developments. The founding editors of TLB are John Coyle (North Carolina), Bill Dodge (UC-Davis), Maggie Gardner (Cornell), and Ingrid Brunk Wuerth (Vanderbilt). A link to the blog can be found here.

Last week Saudi Arabia acceded to the HCCH Apostille Convention. The Apostille Convention will enter into force for Saudi Arabia on 7 December 2022. The HCCH news item is available here.

This accession is remarkable in two ways.  First, it clearly signals an increased interest in the Apostille Convention in the Middle East. In this regard, it should be noted that the Apostille Convention entered into force for Bahrain on 31 December 2013 and for Oman on 30 January 2012. For a list of Contracting Parties, click here.

Secondly, it will greatly facilitate the ease with which public documents circulate in this region (and globally) as in some of these countries a legalization, especially for commercial documents, is either very expensive or the fees are dependent on a percentage of the total amount of the invoice or a tabular fee. See for an example here. The price of an Apostille should be, after all, reasonable.

                    Judges & collective redress:

new perspectives and opportunities for judiciary

          Thursday 12 May 2022, 15:00 to 17:30 CEST

       This online event will be held in English and is reserved for judges and members of judiciaries.

 

                            >>> REGISTER HERE <<<

Judges may play an important role in collective redress actions following mass harm situations. Mass harm situations refer to cases where a number of persons are harmed by the same illegal practices relating to the violation of their rights by one or more traders or other persons. Collective redress actions may seek the cessation of such practices and/or compensation. The fact that such disputes concern large numbers of persons raises specific procedural challenges but also offers opportunities in terms of efficient administration of justice.

In the context of the EU’s Representative Actions Directive, which will come into application in June 2023, judges will be called upon to undertake specific tasks. Depending on the national rules transposing the Directive, they may be required to assess the admissibility and merits of the actions, to ensure that consumers are appropriately represented and informed, to verify that the interests of all represented parties are well-protected, etc. The objective of this workshop is to raise awareness on collective redress and to exchange on the roles of judges in collective redress actions.

During a panel discussion, three judges with recognised expertise in the field of collective redress will share their insight and experience:

Mr. Fabian Reuschle (judge at the Stuttgart Regional court – Landgericht – Germany). Fabian Reuschle actively participated in the adoption of the German Capital Markets Model Case Act (KapMuG) establishing a lead case procedure for the collective handling of capital market-related actions.

Sir Peter Roth (judge at the London High Court & UK Competition Appeal Tribunal). Sir Peter presided over a collective litigation against MasterCard lodged on behalf of 46 million consumers.

Mr. Jeroen Chorus (retired judge, formerly at the Amsterdam Court of Appeal, the Netherlands). Jeroen Chorus was notably in charge of the Dexia and Shell mass settlement with consequences on consumers in multiple European jurisdictions.

Programme:

15:00-15:05 Welcome 15:05-15:15 Setting the scene: What does collective redress mean for judges? (Stefaan Voet, KU Leuven University) 15:15 – 16:30 Panel discussion with:

• Judge Roth
• Judge Chorus
• Judge Reuschle

Panel moderated by Maria José Azar-Baud (University of Paris-Saclay, France) & Ianika Tzankova (University of Tilburg, the Netherlands) 16:30-17:15 Questions & Answers session with the audience (moderated by Magdalena Tulibacka, Oxford University, UK/Emory  University – United States and with the participation of the representatives of the Directorate-General for Justice & Consumers of the European Commission 17:15-17:30 Concluding remarks

This project is funded by the European Union.

Attendance to the event is free but registration is mandatory. The number of registrations is limited. Therefore, please register as soon as possible via the following link.

For questions, please contact us.

The Yong Pung How Professorship of Law Lecture 2022 will be held online on Wednesday 25 May 2022 at 5:00 to 6:30pm Singapore time. The speaker, Professor Yeo Tiong Min, SC (Hon), who holds the Yong Pung How Professorship of Law chair at the Singapore Management University, will speak on ‘ The Effect of Choice of Court Agreements on Third Parties’. The synopsis for the talk is as follows:

“The effect of choice of court agreements on the exercise of jurisdiction of the Singapore court between contracting parties at common law has received clarification in Singapore law in recent years. The position is also clear under the SICC Rules and the Choice of Court Agreements Act. The effect on third parties is less clear. In this lecture, the effect of choice of court agreements on the position of third parties under the legal regimes above will be considered, from the perspective of both conflict of laws and the Contracts (Rights of Third Parties) Act in domestic Singapore law.”

Attendance at the webinar is complimentary. More information and the link to register can be found here.

In the framework of the EFFORTS Project, a questionnaire has been drawn up on the digitalization of civil procedures relating to cross-border enforcement.

The questionnaire aims at collecting quantitative and qualitative data on the digitalization of enforcement procedures at the national and European level, with a view to identifying technical solutions and legislative amendments to implement such digitalization.

The questionnaire, together with information on the EFFORTS Project, may be accessed here

The EFFORTS project partners thank you in advance for your time and contribution!

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

by Wolfgang Hau, University of Munich

This year’s Dispute Resolution Day of the Munich Center for Dispute Resolution on 6 May is dedicated to the above mentioned highly topical issue: Can companies in Germany be held responsible for human rights violations that have occurred somewhere in the global supply chain? Are civil lawsuits and commercial arbitration at all suitable for enforcing international human rights obligations of business enterprises? Such and related questions will be examined and discussed by renowned speakers. The conference will be held in German at the University of Munich. You can find the programme and registration information here:

https://www.mucdr.jura.uni-muenchen.de/munich_dispute_resolution_day/drd-2022-flyer.pdf

 

 

Conference The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook

 

Registration now open!

 

 

Dates:                       Friday, 9 September 2022, and Saturday, 10 September 2022 

Venue:                      Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn 

Registration:          sekretariat.weller@jura.uni-bonn.de 

 

Registration fee: € 200.- Young Scholars rate (limited capacity): € 100.- Conference Dinner on 9 September 2022:                         € 50.-

Registration: Please register with sekretariat.weller@jura.uni-bonn.de. Clearly indicate whether you want to benefit from the young scholars’ reduction of the conference fees and whether you want to participate in the conference dinner. You will receive an invoice for the respective conference fee and, if applicable, for the conference dinner. Please make sure that we receive your payment at least two weeks in advance. After receiving your payment we will send out a confirmation of your registration. This confirmation will allow you to access the conference hall and the conference dinner.

Please note: Access will only be granted if you are fully vaccinated against Covid-19. Please confirm in your registration that you are, and attach an e-copy of your vaccination document. Please follow further instructions on site. Thank you for your cooperation.

Further information: https://www.jura.uni-bonn.de/professur-prof-dr-weller/the-hcch-2019-judgments-convention-cornerstones-prospects-outlook-conference-on-9-and-10-september-2022

 

Programme

 

Friday, 9 September 2022

 

8.30 a.m. Registration 9.00 a.m. Welcome notes

Prof Dr Wulf-Henning Roth, Director of the Zentrum für Europäisches Wirtschaftsrecht, Rheinische Friedrich-Wilhelms-Universität Bonn, Germany

Dr Christophe Bernasconi, Secretary General of the HCCH

    Part I: Cornerstones

1. Scope of application

Prof Dr Xandra Kramer, Erasmus University Rotterdam, Utrecht University, Netherlands

2. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich, Germany

3. Indirect jurisdiction

Prof Dr Pietro Franzina, Catholic University of Milan, Italy

4. Grounds for refusal

Dr Marcos Dotta Salgueiro, Adj. Professor of Private International Law, Law Faculty, UR, Uruguay; Director of International Law Affairs, Ministry of Foreign Affairs, Uruguay

5. Trust management: Establishment of relations between Contracting States

Dr João Ribeiro-Bidaoui, First Secretary, HCCH / Dr Cristina Mariottini, Senior Research Fellow at the Max Planck Institute for International, European and Regulatory Law Luxemburg

  1.00 p.m.

  Lunch Break

    Part II: Prospects for the World

1. The HCCH System for choice of court agreements: Relationship of the HCCH Judgments Convention 2019 to the HCCH 2005 Convention on Choice of Court Agreements

Prof Dr Paul Beaumont, University of Stirling, United Kingdom

2. European Union

Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission

3. Canada, USA

Professor Linda J. Silberman, Clarence D. Ashley Professor of Law, Co-Director, Center for Transnational Litigation, Arbitration, and Commercial Law, New York University School of Law, USA

Professor Geneviève Saumier, Peter M. Laing Q.C. Professor of Law, McGill Faculty of Law, Canada

4. Southeast European Neighbouring and EU Candidate Countries

Prof Dr Ilija Rumenov, Associate Professor at Ss. Cyril and Methodius University, Skopje, Macedonia 8.00 p.m. Conference Dinner (€ 50.-)

 

Saturday, 10 September 2022

 

9.00 a.m. Part II: Prospects for the World (continued)

 

5. Middle East and North Africa (including Gulf Cooperation Council)

Prof Dr Beligh Elbalti, Associate Professor at the Graduate School of Law and Politics at Osaka University, Japan

6. Sub-Saharan Africa (including Commonwealth of Nations)

Prof Dr Abubakri Yekini, University of Manchester, United Kingdom

Prof Dr Chukwuma Okoli, Postdoctoral Researcher in Private International Law at the T.M.C. Asser Institute, Netherlands

7. Southern Common Market (MERCOSUR)

Prof Dr Verónica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh, United Kingdom

8. Association of Southeast Asian Nations (ASEAN)

Prof Dr Adeline Chong, Associate Professor of Law, Yong Pung How School of Law, Singapore Management University, Singapore

9. China (including Belt and Road Initiative)

Prof Dr Zheng (Sophia) Tang, University of Newcastle, United Kingdom

  1.00 p.m.

  Lunch Break

    Part III: Outlook

1. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

2. International Commercial Arbitration and Judicial Cooperation in civil matters: Towards an Integrated Approach

José Angelo Estrella-Faria, Principal Legal Officer and Head, Legislative Branch, International Trade Law Division, Office of Legal Affairs, United Nations; Former Secretary General of UNIDROIT

3. General Synthesis and Future Perspectives

Hans van Loon, Former Secretary General of the HCCH

In the context of the Vici project ‘Affordable Access to Justice’, the project team (Erasmus School of Law) is organising a series of online seminars dedicated to the Trends and Challenges in Costs and Funding of Civil Justice.

The next session is scheduled for Wednesday, 20 April 2022 (14:00-16:00 CET) on the topic: Austerity policies and litigation costs reforms.

The relationship between access to justice, efficiency of courts, and litigation costs has never been an easy one. Yet, finding a proper balance has never been more challenging than in recent times. The EU economic crises of the last decade and austerity policies deeply affected justice budgets in several EU Member States and triggered justice reforms, particularly in the area of litigation costs. Building on the experiences of three EU jurisdictions that have been greatly affected by such developments (namely, Greece, Portugal, and Spain), the seminar will assess the impact of austerity measures on access to justice.

Speakers: Panagiotis Perakis (Vice President CCBE), Paula Costa e Silva (Lisbon University), Fernando Gascón Inchausti (Complutense University of Madrid)

To attend the online event, please register here.

With thanks to Adriani Dori for the tip-off.

The final programme of the conference on Regulation Brussels Ia: a standard for free circulation of judgments and mutual trust in the European Union (JUDGTRUST) 21 and 22 April 2022 at The Hague can be found here. A previous post introduced the themes, speakers, moderators and the coordinator of the conference.

Documents & Publications

On 9 March 2022, the Permanent Bureau announced the launch of the post-event publication of HCCH a|Bridged – Edition 2021, focused on contemporary issues relating to the application of the 2005 Choice of Court Convention, including the promotion of party autonomy. More information is available here.

On 9 March 2022, the Permanent Bureau published the results of the 2022 survey for arbitration institutions on the 2015 Principles on Choice of Law in International Commercial Contracts. More information is available here.

On 16 March 2022, the Permanent Bureau of the HCCH published an Information Note on the subject of “Children deprived of their family environment due to the armed conflict in Ukraine: Cross-border protection and intercountry adoption”. More information is available here.

Vacancies

The Permanent Bureau is currently welcoming applications for the position of Diplomat Lawyer (Secretary or First Secretary). The deadline for the submission of applications is 15 April 2022 (5.00 p.m. CEST). More information is available here.

Other

CEDEP’s Choice of Law online course is now open to the public, featuring an introductory lecture on the Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, published year by the Secretariats of UNCITRAL, UNIDROIT and the HCCH. The lecture is available here, and more information about the course 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.

May the 30-day time limit within which the defendant has to sent a statement of opposition against a European order for payment, set in Article 16(2) of the Regulation No 1896/2006 (the EOP Regulation), be interrupted through application of the national provision that, for a specified timeframe related to the pandemic of SARS-CoV-2, provides for such effect ?

This is, in essence, the question that Advocate General Collins addresses in his Opinion in the case Uniqa Versicherungen, C-18/21.

 

Legal context of the preliminary question

As summarized at point 2 of the Opinion, Article 16(2) of the EOP Regulation provides that a statement of opposition to a European order for payment shall be sent within 30 days of service of the order, in the absence of which that order becomes enforceable against the defendant.

A defendant who does not lodge a statement of opposition within that 30-day time limit may, in a number of exceptional cases, apply for a review of the order pursuant to Article 20 of the Regulation.

According to its Article 26, procedural issues not specifically dealt with in that Regulation are governed by national law.

Against this background, as the referring court in the present case, the Austrian Supreme Court (Oberster Gerichtshof), puts it in its request for a preliminary ruling, some authors take the view that Article 20 of Regulation takes account (in the abstract) of situations such as the COVID-19 crisis and, for such situations, has provided for the possibility to have European orders for payment reviewed and, if necessary, declared null and void. According to that view, recourse to national law is therefore not permissible in view of Article 20, which was created precisely to address cases of force majeure.

The opposing view, also reported by the referring court, is based on the interpretation according to which the interruption of the time limit set in Article 16(2) of the EOP Regulation has remained unregulated by EU law, with the result that – pursuant to Article 26 of the Regulation – recourse is to be done to national law.

 

Preliminary question

All this prompted the Austrian court to refer a following preliminary question to the Court:

Are Articles 20 and 26 of the EOP Regulation to be interpreted as meaning that those provisions preclude an interruption of the 30-day period for lodging a statement of opposition to a European order for payment, as provided for in Article 16(2) of that Regulation, by Paragraph 1(1) of the Austrian Law on accompanying measures for COVID-19 in the administration of justice, pursuant to which all procedural periods in proceedings in civil cases for which the event triggering the period occurs after 21 March 2020 or which have not yet expired by that date are to be interrupted until the end of 30 April 2020 and are to begin to run anew from 1 May 2020?

 

Assessment of the preliminary question provided for in the Opinion

In the first place, in his overview of the EOP Regulation, AG Collins convincingly demonstrates that the review procedure under Article 20 of the Regulation does not purport to be a substitute for the opposition procedure under Article 16 (see, for detailed argumentation, points 31 et seq.).

Building upon that demonstration, in the second place, he addresses the legal issue at hand and presents a series of arguments that lead him to the conclusion according to which the EOP Regulation “[does] not preclude the adoption, in the circumstances of the COVID-19 pandemic, of a national measure that interrupted the 30-day time limit for lodging a statement of opposition to a European order for payment contained in Article 16(2) thereof” (point 49).

In particular, AG Collins contends, firstly, that the EOP Regulation “lays down minimum standards to ensure the recognition and enforcement of an order adopted in another Member State without the necessity to bring any prior intermediate proceedings in the Member State of enforcement” and, as a consequence, “a general interruption of time limits due to the COVID-19 pandemic is a procedural issue not dealt with in [the] Regulation” (point 42).

He indicates, secondly, that “national procedural measures adopted in accordance with Article 26 of [the EOP Regulation] may not […] undermine the objectives pursued by that regulation” (point 43).

Benchmarking the national measure related to COVID-19 against that requirement, he explains that this measure does not undermine the objectives of the Regulation “since a general interruption of time limits does not add another procedural step to the recognition and enforcement of a European order for payment” and, as a consequence, “the uniform mechanism established by [the EOP Regulation] is unaltered” (point 45).

Thirdly, AG Collins backs his findings by the considerations relating to Article 47 of the Charter, with a further reference to the case law of the ECtHR (see footnote 35). In essence, refusing to interrupt the time limit for sending the opposition against a European order for payment and, thus, ignoring the impact of the pandemic on the practical possibility to sent that statement could run against the rights of the defendant (points 46 and 47).

The Opinion is available here.

‘Access to Justice and International Organisations: Coordinating Jurisdiction between the National and Institutional Legal Orders’ by Rishi Gulati has just been published by Cambridge University Press. The author has kindly provided us with the follow summary:

This book addresses some of the most difficult legal challenges that international institutions confront. As is all too evident, we live in a denial of justice age when it comes to the individual pursuit of justice against international organisations (IOs). Victims of institutional conduct are often denied reasonable means of dispute settlement at the international level. Victims are also generally unable to seek justice at the national level due to IO immunities, which aim to secure institutional independence. Access to justice and IO independence are equally important values and satisfactorily realising them both has so far proven elusive. In this book, Rishi Gulati argues that private international law techniques can help allocate regulatory authority between the national and institutional orders in a nuanced manner by maintaining IO independence without sacrificing access to justice. As private international law rules can be adjusted nationally without the need for international action, the solution proposed can be readily implemented, thereby resolving a conundrum that public international law has not been able to address for decades.

The book is divided into five chapters. Chapter 1 provides the basis of, and nature of an IO’s access to justice obligation. It  demonstrates that under international law, IOs must provide ‘appropriate’ modes of dispute resolution to the victims of institutional conduct. Relying on international human rights law in general, and the right to a fair trial in particular, chapter 2 goes on to specify the criteria for assessing the ‘appropriateness’ of dispute resolution mechanisms that should be created at IOs. The discussion does not stop here. Chapter 3 goes on to rigorously apply those criteria to assess dispute resolution mechanisms at IOs, where such mechanisms even exist. It is concluded that where such mechanisms exist, they tend to be deficient. This is the case with several international administrative tribunals created to resolve employment disputes. Alarmingly, in many instances, dispute resolution mechanisms are completely absent, meaning that a denial of justice is a foregone conclusion.

It is thus hardly surprising that more and more, national courts are asked by victims to adjudicate claims against IOs. However, adjudication at the national level is complicated due to the existence of an IO’s jurisdictional immunities before national courts. Chapter 4 considers the nature of institutional immunities, and shows that the application of IO immunities is a conundrum that is yet to be resolved. This chapter considers the latest jurisprudence on the topic. It provides a succinct analysis of all aspects of the law on IO immunities, showing that the manner in which the law is currently applied results in further denials of justice. It is pointed out that no satisfactory solution has been implemented to realise access to justice for victims and an IO’s functional independence simultaneously. Chapter 5 resolves this long-standing international legal challenge. It shows how private international law techniques can be used to realize access to justice in claims against IOs but without compromising on IO independence. This book shows how the various branches of public international law, including international human rights  and international organisations law, do and should interact with private international law with a view to solve a particularly difficult regulatory challenge. The work is not only intended to be academically rigorous, but it seeks to provide real life answers to hard cases.

Written by Catherine Shen, ABLI

The Asian Business Law Institute (ABLI) has recently released a free publication titled Enforcement of Foreign Judgments in ASEAN: Ranking the Portability of ASEAN Judgments within ASEAN, a derivative publication under its Foreign Judgments Project.

The Association of Southeast Asian Nations (ASEAN) comprises of Brunei Darussalam, Cambodia, Indonesia, Lao, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. These jurisdictions are of different legal traditions of civil law (Cambodia, Indonesia, Lao, Thailand and Vietnam), common law (Brunei Darussalam, Malaysia, Myanmar and Singapore) and hybrid law (Philippines) tradition. There are two primary hurdles for increasing the portability of ASEAN judgments within the bloc. First, some ASEAN jurisdictions, such as Indonesia and Thailand, have no law that allows foreign judgments to be recognised and enforced. Second, most civil law jurisdictions in ASEAN still have rather rigid requirements on reciprocity. These two hurdles are the main influencers of the ranking.

Three key takeaways can be gleaned from the ranking.

First, Vietnamese judgments claim the crown of being the most portable of ASEAN judgments within ASEAN. They can be enforced in seven out of the other nine ASEAN countries, provided, of course, that the requirements for enforcement under the laws of those countries are satisfied. This is a portability rate of close to 78%. Compared to other ASEAN jurisdictions, Vietnam has the benefit of having bilateral agreements with Cambodia and Lao which allow its judgments to be enforced in the latter two jurisdictions. Cambodia requires a guarantee of reciprocity while Lao PDR requires a bilateral treaty with the relevant country covering the enforcement of each other’s judgments before reciprocity is satisfied.

Second, judgments rendered by the other civil law countries of ASEAN come in second place. They can be enforced in six out of nine ASEAN countries.

Third, judgments from the common law countries of ASEAN and the hybrid law jurisdiction of the Philippines are jointly in third place. They can be enforced in five out of nine ASEAN countries, namely in the other common law and hybrid law jurisdictions, as well as Vietnam. Although Vietnam, being a civil law jurisdiction, imposes a condition of reciprocity, it appears relatively easy to satisfy this requirement.

This result may be surprising or even perverse since most civil law jurisdictions, i.e., Cambodia, Indonesia, Lao and Thailand, have comparatively illiberal regimes for the enforcement of foreign judgments (whether due to the rigid requirement of reciprocity or the lack of relevant laws), while the common law and hybrid law jurisdictions in ASEAN have comparatively liberal rules for foreign judgments enforcement. This “asymmetry” is mainly due to the inability of those civil law jurisdictions to return the favour of the more liberal rules of the common law and hybrid law jurisdictions in ASEAN given the state of their laws, namely, the requirement that there be reciprocity between the two countries.

The Enforcement of Foreign Judgments in ASEAN: Ranking the Portability of ASEAN Judgments within ASEAN is available for free and can be downloaded here. ABLI regularly publishes latest developments in the field of recognition and enforcement of foreign judgments in Asia on its website and LinkedIn.

On 31 March 2022, 4-7pm CEST, the German Association of International organizes an online panel, in German, on question of public and private international law regarding the Russian invasion of Ukraine: The topics are as follows:

• Public international law questions of armed conflict (Paulina Starski)
• Public international law questions “off the battlefield” (Markus Krajewski)
• The enforcement of claims from Russian government bonds: potential scenarios (Peter Kindler)
• The status of Ukrainian refugees in private international law (Jan von Hein)

More information here.

 

The war in Ukraine has also affected the lives of legal researchers. The Max Planck Institute for Comparative and International Private Law is extending support to these individuals.

The Institute would like to assist scholars who have had to discontinue their research activities because of the war in Ukraine. Towards this end, the Institute is offering scholarships supporting a stay in Hamburg for research in the field of private law. In addition to office space and access to our library, we can also provide assistance in locating housing.

Affected researchers can contact the Institute’s Welcome Center. The offer is directed at doctoral candidates as well as individuals who have already earned their doctorates.

© shutterstock / MAKSIM ANKUDA

 

Under the Insolvency Regulation 2015, a transfer of the centre of main interests (COMI) of the debtor after lodging of the request for opening of insolvency proceedings affects the exclusive jurisdiction of the court seised with that application prior to the transfer?

This is the legal issue that the Court addresses in the judgement delivered this morning in the case Galapagos BidCo, C-723/20.

Factual context

A holding having its registered office in Luxembourg since 2014 contemplates, in June 2019, to move its actual centre of administration to England. In August 2019, its directors lodge a request before the High Court to have insolvency proceedings opened in respect of the debtor’s assets.

The following day the directors are replaced by a new one, who sets up an office for the holding in Germany.

The request to have insolvency proceedings opened before the High Court is not withdrawn. Quite to the contrary, they seem to continue although a decision opening these proceedings has not yet been delivered.

That being said, a request for the opening of insolvency proceedings is lodged by the holding also with a German court.

This court orders preservation measures and appoints a temporary insolvency administrator. The capital market and bondholders are informed that the centre of administration of the holding have been move to Germany. However, the second instance court ruling on an appeal introduced by the creditors reverses the order of the first instance and dismisses the debtor’s request to have insolvency proceedings opened, due to the lack of international jurisdiction.

Next, the creditors request to have insolvency proceedings opened, still in Germany, in respect of the debtor’s assets. The German court considers that it has jurisdiction to rule on the request as the centre of main interests of the holding is situated in Germany. It orders preservation measures and appoints a temporary insolvency administrator.

A subsidiary of the holding brings an appeal against the order. It argues that the German courts lack jurisdiction as the centre of administration of the holding has been moved to England in June 2019. The appeal is dismissed by the second instance court.

An appeal on a point of law is brought before the Bundesgerichtshof, which lodges a request for a preliminary ruling before the Court of Justice.

 

Preliminary questions

Is Article 3(1) of [the Insolvency Regulation 2015] to be interpreted as meaning that a debtor company the statutory seat of which is situated in a Member State does not have the centre of its main interests in a second Member State in which the place of its central administration is situated, as can be determined on the basis of objective factors ascertainable by third parties, in the case where, in circumstances such as those in the main proceedings, the debtor company has moved that place of central administration from a third Member State to the second Member State at a time when a request to have the main insolvency proceedings opened in respect of its assets has been lodged in the third Member State and a decision on that request has not yet been delivered?

If Question 1 is answered in the negative:

Is Article 3(1) of [the Insolvency Regulation 2015] to be interpreted as meaning that: the courts of the Member State within the territory of which the centre of the debtor’s main interests is situated at the time when the debtor lodges the request to have insolvency proceedings opened retain international jurisdiction to open those proceedings if the debtor moves the centre of its main interests to the territory of another Member State after lodging the request but before the decision opening insolvency proceedings is delivered, and such continuing international jurisdiction of the courts of one Member State excludes the jurisdiction of the courts of another Member State in respect of further requests to have the main insolvency proceedings opened received by a court of that other Member State after the debtor has moved its centre of main interests to that other Member State?

 

The judgement of the Court

The Court decided to answer the preliminary question without first requesting its Advocate General to present an Opinion.

In its judgement, the Court focuses its attention on the second preliminary question.

Its considers that, by this question, which it is appropriate to examine first, the referring court seeks to establish, in substance, whether Article 3(1) of the Insolvency Regulation 2015 is to be interpreted as meaning that the court of a Member State to which an application for the opening of main insolvency proceedings has been made retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is transferred to another Member State after that application has been lodged but before that court has given a decision on it (paragraph 24).

The Court answers in the sense that the court of a Member State seised of an application for the opening of main insolvency proceedings retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is transferred to another Member State after the application has been lodged but before that court has given a ruling on it. Consequently, and insofar as that Regulation remains applicable to that application, the court of another Member State subsequently seised of an application made for the same purpose may not, in principle, assume jurisdiction to open main insolvency proceedings until the first court has given judgement and declined jurisdiction (paragraph 40).

Having in mind the specificity of the case which concerns the UK, the Court makes some additional remarks as to the implications of Brexit. Indeed, the aforementioned passage relating to the fact that “the Regulation remains applicable to the application” echoes this issue.

In essence, the Court clarifies that if on the date of expiry of this transitional period (31 December 2020), High Court had still not ruled on the application for the opening of main insolvency proceedings (it seems that it is not clear whether this was the case), it would follow that Insolvency Regulation 2015 would no longer require that, as a result of this application, a court of a Member State, on the territory of which debtor’s centre of main interests would be located, should refrain from declaring itself competent for the purposes of opening such proceedings (paragraphs 38 and 39)

Given the answer to the second question and having in mind that at least potentially the court seized first with the request for the opening of main insolvency proceedings may have retained its exclusive jurisdiction, the Court deems it not necessary to address the first preliminary question  (paragraphs 41 to 43)

The judgement can be consulted here.