Conflictoflaws

The Global Network on Private International Law, Employment and Labour Relations has just been launched by Professor Ulla Liukkunen, University of Helsinki, and Professor Guillermo Palao Moreno, University of Valencia. These scholars were aware that the status of workers and labour relations raise cross-border legal challenges of relevance to labour law and private international law. They therefore considered that there was a a global need to increase knowledge of regulatory approaches and legal practices in different countries and regions as well as internationally. Also their impact on the field of private international law is a relevant concern.

The Global  Network aims to spread knowledge and understanding of the field and its relevance, and to promote interaction among researchers. It brings together researchers from different continents and operates globally. It promotes the development of the field and provides a forum for collaboration and exchange of information between researchers of labour law and private international law.

The are also planning a first seminar on 17 and 18 October 2024.

It is necessary to distinguish (1) a court’s decision to acknowledge the validity of a foreign judgment (judgment recognition and enforcement), and (1) whether a judgment creditor successfully recovers the awarded amount in practice.

For example, Kolmar Group AG v. Jiangsu Textile Industry (Group) Import & Export Co., Ltd. is notable because it was the first case where a foreign monetary judgment was recognized based on the principle of de facto reciprocity in China. However, the recognition and enforcement of the judgment does not necessarily mean that Kolmar Group actually recovered the money.

Up to 10 September 2023, there had been 63 cases in total concerning the recognition and enforcement of foreign judgments on the grounds of reciprocity or judicial assistance treaties ratified by China in civil or commercial matters. Of these, 26 were successful cases where the Chinese courts decided to recognize and enforce foreign judgments while 3 were partially successful cases (the Chinese courts recognized compensatory damages but rejected punitive damages); the recognition and enforcement of foreign judgments were rejected in the remaining 34 cases.

Have the creditors of the 29 foreign judgments recovered their money in China?

After extensive empirical research, the findings can be divided into three groups.

Firstly, the (partially) successful enforcement group includes both voluntary and compulsory enforcement cases. Among the 9 judgments, 3 were to appoint insolvency administrators and with no or limited enforcement contents. For example, in the case of In re DAR, real property owned by the German insolvent company had already been fully paid for and been occupied by the company associated with the creditor before the German insolvency judgment was recognized in China. As this real property was the only property owned by the insolvent company in China, there was no other property to be collected or debt to be paid by the insolvency administrator. Another 3 judgments in this group were rendered against the same party. The plaintiffs, when applying for US judgments to be recognized and enforced in China, successfully requested the Guangzhou Intermediate People’s Court to preserve a significant amount of the defendant’s assets in China in order to pay the judgment debts. Importantly, the cases in this group do not necessarily mean that the judgment creditors will have their foreign judgment completely satisfied.

Secondly, 7 cases are in the group of unsuccessful compulsory enforcement, where all of the compulsory enforcement proceedings had been closed due to the debtors having no assets for enforcement. In Kolmar Group AG v. Jiangsu Textile Industry (Group) Import & Export Co., Ltd, although the Chinese court decided to recognize and enforce the Singaporean judgment, the debtor did not voluntarily fulfill the obligations under the judgment. Consequently, the creditor applied to the Chinese court for compulsory enforcement, and the court docketed the case on 21 December 2016. On 24 January 2017, the same court made a civil ruling and accepted another Chinese company’s application to reorganize the debtor due to the latter’s insolvency. On 8 December 2017, the court made a series of civil rulings approving the merger and reorganization plan of the debtor and terminating the insolvency proceedings. On 28 December 2017, the creditor withdrew its application for the compulsory enforcement of the judgment. From the publicly available documents, the relationship between the judgment creditor and the Chinese company that merged with the judgment debtor is unknown. However, if the judgment creditor had received the payment from the insolvency reorganization proceedings, the Chinese Judgment Enforcement Decision would have contained this information.

Thirdly, 13 cases are in the group containing an unknown enforcement status. This group covers three circumstances. (1) The foreign judgments have been voluntarily enforced by judgment debtors so compulsory enforcement decisions are not necessary. (2) The judgment creditors have not applied for compulsory enforcement and the foreign judgments remain outstanding. (3) The judgment creditors have applied for compulsory enforcement, but the relevant compulsory enforcement decisions are not available to the public, so the status of the enforcement remains unknown.

As a conclusion, although the empirical study only covered 29 foreign judgments, which is a relatively small number, it exhausts all foreign judgments that the Chinese courts have decided to recognize and enforce up to September 2023. It reflects the fact that, for a judgment creditor, obtaining a Chinese court’s decision to recognize and enforcement a foreign judgment is only the first step to recover funds in China.

All comments are welcome.

For detailed information about this research, please refer to section 5.3.1 of ‘Jie (Jeanne) Huang, Developing Chinese Private International Law for Transnational Civil and Commercial Litigation: The 2024 New Chinese Civil Procedure Law, Netherlands International Law Review (2023).’

 

Conventions & Instruments

On 1 September 2024, the 2007 Child Support Convention and the 2007 Maintenance Obligations Protocol entered into force for Georgia. At present, 51 States and the European Union are bound by the 2007 Child Support Convention, while 33 States and the European Union are bound by the 2007 Maintenance Obligations Protocol. More information is available here.

On 10 September 2024, El Salvador deposited its instrument of accession to the 1996 Child Protection Convention. With the accession of El Salvador, the 1996 Child Protection Convention now has 55 Contracting Parties. It will enter into force for El Salvador on 1 July 2025. More information is available here.

On 12 September 2024, Albania signed the 2019 Judgments Convention. Currently, 30 HCCH Members are either bound by the Convention or a Contracting Party for which the Convention has not entered into force yet (United Kingdom and Uruguay). The 2019 Judgments Convention will enter into force for the Republic of Albania only after it deposits an instrument of ratification pursuant to Art. 28(2) of the Convention.  More information is available here.

On 18 September 2024, Switzerland deposited its instrument of accession to the 2005 Choice of Court Convention. With the accession of Switzerland, 35 States and the European Union are bound by the 2005 Choice of Court Convention. It will enter into force for Switzerland on 1 January 2025. More information is available here.

On 19 September 2024, Kosovo signed the 2005 Choice of Court and 2019 Judgments Conventions. The Conventions will enter into force for Kosovo only after it deposits instruments of ratification pursuant to Art. 31(2) of the 2005 Choice of Court Convention and Art. 28(2) of the 2019 Judgments Convention. More information is available here.

 

Upcoming Events

Registration is open until 7 October for participation in the 13th International Forum on the electronic Apostille Programme (e-APP), which will take place on 21 and 22 October 2024 in Astana, Kazakhstan. The Forum will provide a unique international platform for governments, organisations, and the private sector to learn more about the benefits of the e-APP, to promote its effective implementation, and to discuss the latest developments in relation to the e-APP worldwide. 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.

We are pleased to announce an online symposium on Unveiling Arbitration’s (New) Identity in a Changing World, scheduled for May 9, 2025. This symposium aims to explore the evolving identity of arbitration in the face of rapid technological and societal shifts.

Conference Theme
In a world marked by digitalization, artificial intelligence, and growing public scrutiny, arbitration law faces both opportunities and challenges. While it remains essential to uphold arbitration’s core principles—such as party autonomy, consent, privity, due process, and the independence and impartiality of arbitrators—it is equally crucial to assess whether these principles require reevaluation in light of modern developments. The symposium will critically examine these fundamentals, considering whether contemporary issues, such as increased supply chain complexity, the rise of AI, and calls for greater transparency, demand a reconceptualization of arbitration’s foundations.

Call for Papers
We invite submissions that address how technological and societal changes are impacting the key tenets of arbitration. Potential topics include but are not limited to:

• The nature of arbitration and emerging forms of online private adjudication (ODR, BDR, smart contracts, DAOs)
• Consent to arbitration in anonymous or pseudonymous online environments
• Involvement of non-signatories in arbitration agreements
• The role of AI in the arbitrator’s mandate
• Balancing confidentiality with demands for transparency
• Addressing inequalities in resources and expertise between parties
• Efficiency and due process in arbitration
• Technology-driven enforcement vs. traditional mechanisms like the 1958 New York Convention

We particularly encourage submissions from early career researchers, including graduate students and postdoctoral fellows. Participation is free of charge.

Submission Guidelines
Please submit an abstract (200-500 words) and a brief bio (100-200 words) though this link: https://forms.gle/7Fn2YDqPvEZYeExT9 by November 1, 2024. Notifications of acceptance will be sent in December 2024. Full draft papers will be due by May 14, 2025, and will be made available to all participants. Select contributors may be invited to develop their papers into chapters for an edited volume.

Organizers:

• Prof. Giorgio Colombo, Ca’ Foscari University of Venice
• Prof. Joshua Karton, Queen’s University
• Prof. Pietro Ortolani, Radboud University
• Prof. Maud Piers, Ghent University

 

 

September 2024 Update: List of China’s Cases on Recognition of Foreign Judgments

 

Written by Dr. Meng Yu and Dr. Guodong Du, co-founders of China Justice Observer*

 

On 22 September 2024, China Justice Observer released the 2024 version of the List of China’s Cases on Recognition of Foreign Judgments.[1] To date, we have collected 109 cases involving China and 26 foreign States and regions. (Note: Foreign divorce judgments are excluded in the Case List.)

The Case List was issued on July 16, 2019, and is updated annually. The 2020 update[2], 2022 update[3], and 2023 update[4] were also posted on Conflictoflaws.net.

The full version of the 2024 List of China’s Cases on Recognition of Foreign Judgments is available here.[5]

The key features of the updated list are:

• The List comprises 26 concise reports for each jurisdiction, together with a chart of bilateral judicial assistance treaties which China has concluded with 39 States, of which 35 bilateral treaties include judgment enforcement clauses.
• A total of eleven newly added cases involve one treaty jurisdiction – Russia (one case), [6]and six non-treaty jurisdictions, namely, Australia (two cases),[7] Canada (three cases),[8] Japan (one case),[9] Malaysia (one case),[10] Singapore (two cases), [11] and Thailand (one case).[12]
• Please note that in Guangxi Nanning China Travel Service Co., Ltd. v. Orient Thai Airlines Co., Ltd. (2023) Gui 71 Xie Wai Ren No. 1,[13] a local Chinese court in Nanning, Guangxi Province, ruled to recognize and enforce a Thai monetary judgment in 2024. Apart from being the first case of enforcing Thai monetary judgments in China, it is also the first publicly reported case confirming a reciprocal relationship based on “presumptive reciprocity”, a concept which was outlined in the Nanning Statement signed by the judiciary of China and the ASEAN countries in 2017. This decision is also interesting because it is unlikely, if not impossible, to have foreign judgments recognized and enforced in Thailand.
• Another noteworthy case is In re Shanghai International Corporation (2021) Hu 03 Xie Wai Ren No.1, [14] where the Shanghai Third Intermediate People’s Court ruled to recognize the Tokyo District Court’s decision to commence civil rehabilitation proceedings and the order appointing the supervisor. This marks not only the first time that China has recognized a Japanese court’s decision in a bankruptcy procedure, but also the first time that China has recognized a Japanese court judgment, signaling a potential shift in the traditionally strained mutual recognition landscape between China and Japan.
• Other newly added cases, be it foreign judgments to be enforced in China or Chinese judgments to be enforced in foreign jurisdictions, provide a valuable comparative perspective on key issues in the eyes of courts from different jurisdictions, such as the enforceability of Chinese civil settlement statements (also known as “civil mediation judgments”, cf. different views in Wei v. Li 2019 BCCA 114 (Canada)[15] and Shi Wen Yue v Shi Minjiu & Anor [2016] SGHC 137 (Singapore) [16]), finality (Canada), [17] proof of foreign judgments (Malaysia),[18] due process in absentia judgments (Singapore,[19] Russia[20]), procedural fairness/natural justice issues arising from alternative service of process (cf. Zhou v Jing [2023] NSWSC 214 (Australia),[21] Yin v Wu [2023] VSCA 130 (Australia)[22]).
• Each case has been reviewed and more details, such as the grounds, the case numbers, and causes of action, have been added.
• Case analyses have been aggregated under the country tags since 2022, so it is now easier to track down relevant cases, together with their information and analyses, in each country/region report. For example, under the tag ‘US-China Judgments Recognition and Enforcement’[23], one can find relevant case analyses involving mutual recognition and enforcement of judgments between the US and China.

 

As always, we endeavor to collect all Chinese court decisions involving the recognition and enforcement of foreign judgments (“REFJ”), and foreign counterparts concerning the recognition and enforcement of Chinese judgments. The Case List is made available for our readers to build reasonable expectations on REFJ in China.

The Case List is continually updated with new reports. Case information, comments, and suggestions are most welcome. Please feel free to contact Ms. Meng YU via e-mail at meng.yu@chinajusticeobserver.com.

 

*We would like to thank the following persons/institutions that shared thoughts and valuable information with us:

Dr. Béligh Elbalti, Associate Professor, Graduate School of Law and Politics, Osaka University, Japan; Dr. ZHANG Wenliang, Associate Professor, School of Law, Renmin University of China; Dr. SU Xiaoling, Lawyer at Beijing DHH Law Firm; Mr. WANG Chengjie, Lawyer at Allbright Law Offices (Shanghai);Wonbanglaw; Ms. Renee M Wong, Attorney at Goldberger and Dubin PC (New York); Dr. WANG Yahan, Associate Professor, Henan University School of Law; Mr. Angus Ni, Litigation attorney at AFN Law PLLC (Seattle); Asian Business Law Institute (ABLI); Ms. Dawei Gongsun, Partner at DGW Kramer LLP (New York).

 

 

 

[1] https://www.chinajusticeobserver.com/a/september-2024-update-list-of-china-s-cases-on-recognition-of-foreign-judgments

[2] https://conflictoflaws.net/2020/out-now-list-of-chinas-cases-on-recognition-of-foreign-judgments/

[3] https://conflictoflaws.net/2022/august-2022-update-list-of-chinas-cases-on-recognition-of-foreign-judgments/

[4] https://conflictoflaws.net/2023/august-2023-update-list-of-chinas-cases-on-recognition-of-foreign-judgments/

[5] https://www.chinajusticeobserver.com/a/list-of-chinas-cases-on-recognition-of-foreign-judgments

[6] https://www.chinajusticeobserver.com/a/chinese-court-refuses-to-recognize-russian-judgment-due-to-due-process

[7] https://www.chinajusticeobserver.com/t/recognizing-and-enforcing-australian-judgments-in-china

[8] https://www.chinajusticeobserver.com/t/canada-china-judgments-recognition-and-enforcement

[9] https://www.chinajusticeobserver.com/a/decoding-the-turning-point-a-closer-look-at-chinas-recognition-of-japanese-bankruptcy

[10] https://www.chinajusticeobserver.com/a/malaysia-dismisses-application-to-enforce-chinese-judgment-due-to-procedural-irregularities-in-2023

[11] https://www.chinajusticeobserver.com/t/singapore-china-judgments-recognition-and-enforcement

[12] https://conflictoflaws.net/2024/first-thai-monetary-judgment-enforced-in-china-highlighting-presumptive-reciprocity-in-china-asean-region/

[13] https://www.chinajusticeobserver.com/a/first-thai-monetary-judgment-enforced-in-china,-highlighting-presumptive-reciprocity-in-china-asean-region

[14] https://www.chinajusticeobserver.com/a/decoding-the-turning-point-a-closer-look-at-chinas-recognition-of-japanese-bankruptcy

[15] https://www.chinajusticeobserver.com/a/canadian-court-enforces-chinese-civil-settlement-statement-mediation-judgment-in-2019

[16] https://www.chinajusticeobserver.com/a/chinese-civil-settlement-statements-enforceable-in-singapore

[17] https://www.chinajusticeobserver.com/a/chinese-judgment-finality-in-doubt-in-canada

[18] https://www.chinajusticeobserver.com/a/malaysia-dismisses-application-to-enforce-chinese-judgment-due-to-procedural-irregularities-in-2023

[19] https://www.chinajusticeobserver.com/a/china-wenzhou-court-recognizes-a-singapore-monetary-judgment

[20] https://www.chinajusticeobserver.com/a/chinese-court-refuses-to-recognize-russian-judgment-due-to-due-process

[21] https://www.chinajusticeobserver.com/a/a-chinese-judgment-denied-enforcement-by-court-of-nsw-australia,-due-to-defective-service-by-post%ef%bc%9f

[22] https://www.chinajusticeobserver.com/a/a-chinese-judgment-denied-enforcement-in-australia-as-public-announcement-against-natural-justice

[23] https://www.chinajusticeobserver.com/t/recognizing-and-enforcing-american-judgments-in-china

The first issue of 2024 of Giustizia consensuale (published by Editoriale Scientifica) has just been released, and it features:

Paolo Comoglio (Associate Professor at the University of Genoa), Giustizia forzata. Lo strano caso dell’offer to settle in Cassazione nel nuovo art. 380 bis c.p.c. (Forced Justice. The Strange Case of the Offer to Settle before the Court of Cassation pursuant to the New Article 380-bis of the Italian Code of Civil Procedure; in Italian).

This article examines the accelerated definition procedure for Cassation appeals pursuant to Article 380-bis of the Italian Code of Civil Procedure, as amended by the ‘Cartabia reform’. Beginning with an analysis of case law, the article critically explores the main questions of unconstitutionality surrounding Article 380-bis and the uncertainties that this peculiar procedural device poses.

Paola Licci (Researcher at the Università di Roma Tor Vergata), La centralità della giustizia consensuale nelle controversie di lavoro (The Centrality of Consensual Justice in Labor Disputes; in Italian)

This article examines the evolution of consensual justice in labor matters, beginning with the first form of conciliation provided by the law on probiviral tribunal and ending with the assisted negotiation introduced in labor disputes by the ‘Cartabia reform’. The analysis of these institutions reveals that consensual justice plays a fundamental role in resolving labor disputes, both due to the nature of the litigation and the inability of the justice system to offer effective (and differentiated) protection swiftly.

 

Observatory on Legislation and Regulations

Federico Ferraris (Associate Professor at the Università degli Studi di Milano-Bicocca), Il regolamento di procedura e le spese di mediazione secondo il nuovo d.m. n. 150 del 2023 (ovvero come rendere sovrabbondante ciò che avrebbe dovuto rimanere essenziale, comprensibile e contenuto) (The Rules of Procedure and mediation costs under the new Ministerial Decree No 150 of 2023 (i.e. how to make superabundant what should have remained essential, understandable and contained); in Italian)

This article focuses on parts of Ministerial Decree No 150/2023, which repealed Ministerial Decree No 180/2010 (which, in turn, implemented Legislative Decree No 28/2010). In particular, it takes into consideration, on the one hand, the rules of procedure, which every mediation body must be equipped with, and, on the other hand, of the mediation fees, amended to take into account the nature of the first mediation session under the new rules, which has become ‘effective’ (as opposed to merely ‘informative’). The article aims to emphasise the complexity – if not the unreasonableness of some provisions – in the face of a procedure, the mediation, that should instead remain by definition flexible and adaptable.

 

Observatory on Jurisprudence            

Elena Zucconi Galli Fonseca (Professor at the University of Bologna), Mediazione e nuove domande (Mediation and New Claims; in Italian)

This article addresses the complex issue of whether mediation is a prerequisite for newly introduced claims within ongoing legal proceedings. The discussion begins with a landmark decision by the Plenary of the Italian Supreme Court, which ruled that counterclaims are not subject to mandatory mediation. This decision hinges on the principles of judicial economy, legal certainty, and the reasonable duration of legal processes. The article critiques the Court’s narrow view of mediation as merely a tool for reducing judicial caseloads, arguing instead for a more positive perspective on mediation as a valuable means for dispute resolution. It suggests that mandatory mediation should be understood as a mechanism to foster a culture of mediation rather than merely a procedural hurdle. The author advocates for a uniform approach to mediation obligations across different types of disputes and concludes by emphasizing the importance of court-ordered mediation in cases where counterclaims or third-party interventions open a new perspective for dispute resolution.

Angela M. Felicetti (Research Fellow at the University of Bologna), ADR per ordine del giudice nella common law inglese. I nuovi orizzonti aperti da Churchill v. Merthyr Tydfil (ADR by Court Order in English Common Law. The New Horizons Opened by Churchill v. Merthyr Tydfil; in Italian)

This comment explores the relationship between civil litigation and ADR in the United Kingdom, focusing on the evolution of court-ordered ADR. The discussion begins with an examination of the landmark decision Halsey v. Milton Keynes General NHS Trust and its impact on subsequent common law, particularly in shaping judicial attitudes towards ADR. The analysis then delves into the development of court-mandated mediation post-2004, highlighting significant changes and trends. Finally, a detailed review of the 2023 Churchill v. Merthyr Tydfil judgment exemplifies the new direction in ADR practices in England and Wales, indicating a shift in judicial perspectives and procedural approaches.

 

Observatory on Practices

Tony N. Leung (Magistrate Judge, District of Minnesota),  Finding the Intersection of Self-Interests. One Judge’s Mediation Objective, Approaches Using Science and Art, and for Settling Civil Lawsuits

This article focuses on how to conduct mediations to resolve American civil lawsuits. Mediators must know position-based and interest-based approaches to negotiation and move insouciantly between them to find the parties’ intersection of self-interests to resolve cases. A modality exists to settlement that requires knowing when to mediate, deciding on a place, preparing in advance, and deciding on the manner to conduct the mediation. The mediation modality also has structured sections: a start inspiring parties that settlement is attainable; a middle with the mediator moving from room to room while utilizing the essential skills of listening, observing, conveying empathy, and building trust, rapport, and respect; and a closing that may require the mediator to break impasse by using certain settlement tools and reminding the parties that the alternatives to settlement have unavoidable costs and risks that are worse alternatives to settlement.

Pierfrancesco C. Fasano (Director of Mediation Centre and Scientific Director of the Academy for Qualifying Mediators), The Elephant, the Forest, and the Pudding. Understanding the Patent  Mediation and Arbitration Centre (PMAC) of the Unified Patent Court (UPC)

This paper, using the narrative technique of metaphors, traces the institution, future operation, possible technical advantages, and potential of the Patent Mediation and Arbitration Centre of the Unified Patent Court. The regulatory framework, though fragmented and evolving, has led the first interpreters and commentators to provide doubtful or skeptical readings on the uniqueness and ability of this institution to act as a model. The conclusions reached by the author are more optimistic because they are orientated towards systematic and functional interpretation, starting from the originality of the organisational structure of the Centre, challenging cognitive biases, which sometimes frustrate the world of consensual justice.

 

Conference Proceedings

Silvana Dalla Bontà (Professor at the University of Trento), La cura delle parole. Sinteticità e chiarezza nel dialogo processuale e nella giustizia consensuale (The Care of Words. Clarity and Conciseness in Civil Litigation and Alternative Dispute Resolution Mechanisms; in Italian)

This article draws on the introductory remarks delivered at the Seminar ‘The care of words. Clarity and conciseness in civil litigation and alternative dispute resolution mechanisms’, held at the University of Trento on 5 December 2023. After analysing the recent codification of the principle of clarity and conciseness in the drafting of pleadings pursuant to the Italian Code of Civil Procedure (Art. 121) and its implementation in the Ministry of Justice Decree No 130/2023, the author inquires whether this principle can be applied to arbitration proceedings and consensual dispute resolution mechanisms such as negotiation and mediation. While acknowledging the difficulty of striking the right balance between clarity and conciseness, the article argues that the real solution of this dilemma would be to focus not on the length requirements of the pleading but on the accurate use of the words in conveying the party’s point of view. This means investing in a new culture that promotes conscious and mindful communication as a decisive means to serve justice and strengthen a cohesive society.

Marco Gradi (Professor at the University of Messina), Il processo come dialogo (The Judicial Process as a Dialogue; in Italian)

Drawing on the speech delivered at the Conference ‘The care of words. Clarity and conciseness in civil litigation and alternative dispute resolution mechanisms’, held at the University of Trento on 5 December 2023, the essay deals with the form of the procedural dialogue between the parties from an ethical perspective. The judicial process is a dialogue between the litigants, which requires a fair exchange on the disputed issues, according to a principle of cooperation. Based on this premise, the author examines the question of the length and conciseness of procedural acts, the art of eloquence and the elegance of speech, and the relationship between truth and clarity of the parties’ statements.

Maria C. Erlicher (formerly President of the First Division (Civil) of the Bolzano Tribunal), Il processo bilingue italiano-tedesco. La cura delle parole tra garanzie e sfide (The Bilingual Italian-German Process. The Care of Words Between Guarantees and Challenges; in Italian)

Drawing on the speech delivered at the Conference ‘The care of words. Clarity and conciseness in civil litigation and alternative dispute resolution mechanisms’, held at the University of Trento on 5 December 2023, the article provides an overview of the use of Italian and German in the judicial offices of the Autonomous Province of Bolzano – South Tyrol, with a focus on the bilingual Italian-German civil trial. Particular attention is paid to the difficulties that the application of the principles of clarity and conciseness set forth in the ‘Cartabia reform’ may encounter in the context of the bilingual Italian-German trial and the practices adopted to date to make the management of court proceeding more efficient. The aim is to highlight the importance of careful wording on the part of all legal practitioners in the judicial offices of the Autonomous Province of Bolzano – South Tyrol in order to avoid misunderstandings both in the procedural dialogue, particularly in the bilingual Italian-German trial, and in the context of consensual justice, where language is an essential tool to ensure a proper understanding.

Elena Gabellini (Researcher at the University of Bologna), La cura delle parole nella dimensione arbitrale: tra libertà e vincoli (The Care of Words in Arbitration: Between Freedom and Constraints; in Italian)

Drawing on the speech delivered at the Conference ‘The care of words. Clarity and conciseness in civil litigation and alternative dispute resolution mechanisms’, held at the University of Trento on 5 December 2023, the article analyses how written and spoken language, which are elements constituting the minimal framework of each trial, are applied in the arbitration. After a brief overview of the features of arbitration proceeding, the study focuses on the significance of dialogue within this procedural framework. In this way, it will be possible to define the actual application of the principles of conciseness and clarity of procedural acts, which have been recently incorporated embedded into the civil trial, within the framework of arbitration.

Silvana Dalla Bontà (Professor at the University of Trento), La cura delle parole tra processo e metodi consensuali. Per una gestione responsabile del conflitto (The Care of Words Between Process and Consensual Methods. For a Responsible Management of the Dispute; in Italian)

Drawing on the speech delivered at the Seminar ‘The care of words. Clarity and conciseness in civil litigation and alternative dispute resolution mechanisms’, held at the University of Trento on 5 December 2023, the article explores the crucial role of ‘the care of words’ in diffusing conflict, rebuilding trust, and generating creative solutions. To this end, lawyers can play a pivotal role in encouraging conflicting parties to adopt a cooperative and non-adversarial approach to conflict resolution. In this respect, client interviews represent a unique opportunity for lawyers to empower parties, explore their interests, and assess the best way to deal with their problems. Effective communication, appropriate questions, active listening, and constructive feedback are some of the tools lawyers can use to foster a collaborative approach to problem resolution. This ‘new’ lawyer will be the best promoter of a ‘new’ justice which, by integrating judicial and non-judicial dispute resolution mechanisms, will foster social cohesion and preserve the judicial function for disputes that truly require the intervention of a third-party decision.

 

Finally, this issue features the following Book Reviews:

A book review by Silvana Dalla Bontà (University of Trento): Giuseppe RUFFINI (a cura di), Diritto processuale civile, vol. I, La giustizia civile, il Mulino, Bologna, 2023, 1-549; vol. II, La giustizia consensuale e il processo di cognizione, il Mulino, Bologna, 2024, 1-506.

A book review by Jachin Van Doninck (Vrije Universiteit Brussel): Anna NYLUND and Antonio CABRAL (eds.), Contractualisation of Civil Litigation – Contractualisation de la Procédure Civile, Cambridge, Intersentia, 2023, i-xv, 1-517.

A book review by Marco Buzzoni (Luxembourg Center for European Law, University of Luxembourg): Katia FACH GÓMEZ, The Technological Competence of Arbitrators: A Comparative and International Legal Study, European Yearbook of International Economic Law (Special Issue), Springer Nature, 2023, vii-xiv, 1-172.

 

 

A new volume on the Colombian Draft Project on Private International Law has been published in the series of the Department of Law at the University of Turin, and under this link. The editors, Margherita Salvadori (University of Turin) and Gilberto Boutin (University of Panama) have kindly shared the following information with us: The book presents a comprehensive investigation of the ‘Project of a General Law on Private International Law for Colombia’ , developed by the Istituto Antioqueño de Derecho Internacional Privado (hereinafter: ‘IADIP Draft’). It offers readers a holistic view of the subject, bringing together international experts and providing a detailed mapping of how Colombia can enhance its synergy with the international community and improve interactions with other national legal systems. In particular, the Book features the following contributions:

• Claudia Madrid Martínez, “General Institutions of Private International Law in IADIP’s Draft General Act on Private International Law”. This article examines the fundamental institutions of Private International Law essential for resolving conflicts of laws and applying foreign laws. It focuses on Chapter II of the IADIP Draft, providing solutions based on the Inter-American Convention ratified by Colombia.
• Ennio Piovesani, “Article 4 PGLPIL on Internationally Mandatory Provisions”. A brief commentary on Article 4 of the IADIP Draft, addressing the category of internationally mandatory provisions.
• María Julia Ochoa Jiménez, “Rights of Indigenous Peoples and Communities”. This article explores how Colombian private international law, traditionally emphasizing territoriality, has often overlooked the legal diversity of indigenous peoples and their internationally recognized rights. The IADIP Draft aims to align Colombian law with legal pluralism to better recognize these differentiated rights.
• Margherita Salvadori, “General Overview on the PGLPIL’s Rules on Choice-of-Court Agreements and on their Importance for the Colombian Legal System”. Discusses the lack of specific regulations on choice-of-court agreements in Colombia, the role of the rules of the IADIP Draft, and the proposed rules on lis pendens. The article concludes that adopting the 2005 Hague Convention would benefit international trade in Colombia.
• José Luis Marín Fuentes, “The Recognition of International Judicial Decisions in the Draft Act on Private International Law for Colombia”. Examines the recognition of foreign judicial, administrative, and arbitral decisions in Colombia, highlighting the need for urgent reform.
• María Julia Ochoa Jiménez, “Property Law”. Critiques Article 20 of Colombia’s Civil Code, noting its outdated terms and confusing language and highlights how the IADIP Draft seeks to clarify and update regulations to better reflect recent developments in property law.
• Claudia Madrid Martínez, “Law Applicable to International Contracts”. Highlights the inadequacy of Colombian Private International Law concerning international contracts, while stressing how the IADIP Draft aims to address these gaps, especially given that Colombia has not ratified the Inter-American Convention on Law Applicable to International Contracts.
• Margie-Lys Jaime, “International Arbitration in Colombia”. Reviews Colombia’s role in international arbitration conventions and its 2012 Law 1563, discussing the regulation of international commercial arbitration, enforcement challenges, and Colombia’s experience with investor-state dispute settlement (ISDS).
• Gilbert Boutin Icaza, “Comparative Law between Panama and Colombia regarding Private International Law Companies under the Code of Private International Law of Panama and The Project of Private International Law in Colombia”. Compares conflict of law systems in Panama and Colombia, focusing on the criteria for determining the nationality of companies and the implications of re-domiciliation for tax and commercial purposes.
• Nestor Raul Londoño Sepulveda & Melissa Palacio Maldonado, “A Hypothesis About the Application of the Montevideo Treaties of 1889 in Colombia”. Discusses Colombia’s reliance on outdated international agreements and the need for a coherent Private International Law system, and highlights the frequent disregard and misapplication of these treaties.
• Finally, the book features an English translation of the IADIP Draft.

The second edition of the EAPIL Winter School held annually in Como, Italy, will focus on Multistate Torts.

The event is organized by the University of Insubria in cooperation with the Jagiellonian University in Kraków and the University of Murcia and will feature English classes from about 20 international experts. It is aimed primarily at law graduates, law practitioners and PhD candidates with an interest in private international law, EU law and human rights law.

An online teaser seminar presenting the Winter School will take place on 2 December 2024, 6 p.m. CET. Those interested in participating in the online seminar are invited to send an email to eapilws@gmail.com in order to receive the link to the meeting.

In order to apply, interested candidates need to fill out this form.

The full programme can be found here, more information is also available here.

 

 

IE Law School in Madrid, Spain, is currently advertising four tenure-track assistant professorships, preferably in private law, commercial & corporate law, IP law, or digital & tech law, among others.

More information can be found here.

Private International Law in Türkiye by Emre Esen and Melis Avsar is now available: https://iupress.istanbul.edu.tr/tr/book/private-international-law-in-turkiye/home 

Private International Law in Türkiye is now available and free to access, offering a comprehensive English-language resource on Turkish Private International Law. Written by Emre Esen and Melis Avsar, the book fills a significant gap for students, practitioners, and scholars alike. Drawing on extensive teaching experience, the authors provide practical guidance for cross-border disputes in Türkiye while addressing key discussions from Turkish legal literature. In addition, the book includes Turkish court decisions and applications, making it an invaluable tool for legal professionals.

Angola deposited its instrument of accession to the 1993 Adoption Convention on 14 March 2024. According to Article 46(2)(a), and as notified by the Depositary (i.e. the Ministry of Foreign Affairs of the Netherlands), this Convention entered into force for Angola on 1 July 2024.

The Depositary provided a six-month period to file objections in accordance with Article 44(3) of the Adoption Convention, which ended on 18 September 2024.

Germany filed an objection on 27 August 2024 and the Netherlands on 17 September 2024. As a result, the Adoption Convention did not enter into force between Angola and those States. For more information, click here.

Interestingly, under this Convention there is approximately a 3-month gap between the date of entering into force and the ending of the objection period.

 

The book Derecho de familia internacional en un contexto de creciente migración: cuestiones vinculadas con el reglamento 2019/1111 has just been released by Aranzadi. The director of the book is Professor Beatriz Campuzano Díaz. It is open access, click here.

The table of contents is as follows (underlined the only article in English):

I PARTE. CUESTIONES VINCULADAS CON EL ÁMBITO DE APLICACIÓN

Tratamiento de la diversidad de estructuras familiares en los reglamentos europeos y continuidad del estatuto personal

Mª Ángeles Sánchez Jiménez

La filiación en el DIPr de la UE: entre la situación actual y las perspectivas de cambio

Beatriz Campuzano Díaz

II PARTE. CUESTIONES VINCULADAS CON LAS NORMAS DE COMPETENCIA JUDICIAL INTERNACIONAL

Los mecanismos de solución de la litispendencia internacional en materia de responsabilidad parental y la comprobación de la competencia judicial internacional. Perspectiva española

Elena Cano Bazaga

III PARTE. CUESTIONES VINCULADAS CON LA SUSTRACCIÓN INTERNACIONAL DE MENORES

El derecho del menor a ser oído y su articulación en el Derecho procesal español. Especial referencia al procedimiento de restitución o retorno

Pilar Martín-Ríos

Análisis de la jurisprudencia sobre el procedimiento de restitución de menores y su regulación en la LEC

Antonio Jesús Calzado Llamas

Problems related to the procedure of minors´returning decisions, with reference to Polish law

Monika Walachowska

IV PARTE. CUESTIONES VINCULADAS CON LA EFICACIA EXTRATERRITORIAL DE RESOLUCIONES, DOCUMENTOS PÚBLICOS Y ACUERDOS

Medidas para facilitar la aplicación en España de las normas sobre reconocimiento y ejecución del Reglamento 2019/1111: propuestas de lege ferenda

María Ángeles Rodríguez Vázquez

Mediación en procesos de responsabilidad parental

Antonia Durán Ayago

V PARTE. LAS RELACIONES CON TERCEROS PAÍSES

Cooperación judicial internacional en materia matrimonial y de responsabilidad parental con el Reino Unido y Gibraltar después del Brexit

Miguel Checa Martínez

El reconocimiento del divorcio marroquí en España. El método comparado como alternativa

Salma El Ouazzani Chahdi

Las resoluciones sobre filiación y las relaciones paternofiliales dictadas por las autoridades españolas y su incidencia en los ordenamientos jurídico español y marroquí: una perspectiva de género

Mª Dolores Adam Muñoz

El papel de las autoridades brasileñas en la lucha contra la sustracción internacional de niños

Aline Beltrame de Moura, Fellipe Leal

VI PARTE. MENORES, FAMILIA, DERECHO DE EXTRANJERÍA Y PROTECCIÓN INTERNACIONAL

¿Novedades en el Derecho de familia de los extranjeros en España? Un nuevo derecho “de familias” también para los extranjeros en España

Elena López Barba

Menores refugiados, una aproximación a las medidas de protección: del Reglamento Dublín al Reglamento Bruselas, pasando por Ucrania

Casilda Rueda Fernández

El derecho de la infancia migrante no acompañada a reunirse con sus familiares en situaciones fronterizas

Lucía Ione Padilla Espinosa

Protección de menores víctimas de matrimonios forzados en el derecho migratorio de la Unión Europea. Especial referencia al derecho de reagrupación familiar

Cristina María Zamora Gómez

El Derecho Internacional Privado y su incidencia en la protección jurídica de las mujeres víctimas de violencia de género. Especial referencia al Reglamento 2019/1111

Juana de los Ángeles Toledo Larrea

 

 

 

 

As announced, the Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its annual XLVII Seminar entitled “The teaching, research and promotion of private international law in Mexico” (La enseñanza, investigación y difusión del Derecho Internacional Privado en México) from 23 to 25 October 2024. The final program is now available here. The deadline for early bird registration is 23 September 2024, click here.

In addition, AMEDIP is organising a webinar on Thursday 26 September 2024 at 15:00 (Mexico City time). The topic of the webinar is international civil judicial cooperation & new technologies and will be presented by Prof. Pablo Enrique de Rosas (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/88653189527?pwd=3R3n0Wy7W1KjQbs0YaBp0dRJZXaoEd.1

Meeting ID: 886 5318 9527

Password: AMEDIP

Participation is free of charge.

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

The United Nations University – Maastricht Economic and Social Research Institute on Innovation and Technology (UNU-MERIT) is organising a seminar online on the children’s right to be heard (incl. in cases of international child abduction) on 25 September 2024 from 14:00 to 16:00 CEST.

Participation is free of charge. For more information and access details, click here.

The programme is as follows:

14:00  Opening remarks
Marieke Hopman (Maastricht University)

14:05  Institutionalized adolescents and their right to be heard
Julieta Marotta (UNU-MERIT) & Laura Lora (Universidad de Buenos Aires)

14:25  Children in post-conflict peacebuilding and their right to be heard 
Lucy Opoka (Leiden University)

14:45  Internationally abducted children & their right to be heard 
Mayela Celis Aguilar (Maastricht University)

15:05  Family judges and the visibility of children in court
Alicia Taliercio (former Family Judge Prov. Buenos Aires)

15:25  Directors and the right of children to be heard
Natalia V. González García Cuerva (director of Hogar También son Nuestros)

15:45  Open dialogue
Moderator: Julieta Marotta (UNU-MERIT)

UNU-MERIT is a research and training institute of the United Nations University (UNU – headquarters in Tokyo and 13 institutes) which collaborates closely with Maastricht University.

Since its foundation in 1926, the Max Planck Institute in Hamburg (or its predecessor) has continuously published the collection of PIL decisions by German courts. ‘Die deutsche Rechtsprechung auf dem Gebiete des Internationalen Privatrechts’, or short ‘IPRspr’, offers the complete and systematic documentation of German case law on private international law, including procedural law and foreign law. The decisions are boiled down to their private international law aspects and categorized according to subject matter. Depending on the case, the headnotes are reformulated or completely rewritten.

Even though both academics and practitioners have always regarded the IPRspr as an important source of information, its practical value was somewhat diminished by the time lag between the reporting period and the publication, as well as by the limited search options. In order to realize its full potential, it was therefore decided in 2019 to convert the IPRspr into a freely accessible database. After several years of planning, programming and updating, this project has now been successfully concluded under the direction of the Centre for the Application of Foreign Law, headed by Jan Peter Schmidt.

On 1 October 2024 at 11:00, the editorial team will officially present the ‘IPRspr 2.0’, as part of the series ‘Current Research in Private International Law’ (registration at <https://events.mpipriv.de/vorstellungderiprspr>; in line with the language of publication, the event will be in German). The database can already be accessed at <iprspr.de>.

The new IPRspr not only offers free and easy access to the PIL decisions of German courts, but also a wide range of search and retrieval functions. The database currently contains around 6,500 decisions dating back to 2004. New decisions are continually being incorporated. Next to the “Hamburg Guidelines for Ascertaining and Applying Foreign Law in German Litigation”, which will soon be published in their English translation, the IPRspr thus forms another building block for the successful dealing with cross-border cases.

As a book publication, however, the IPRspr will be discontinued. The volume published in 2022 with the decisions from 2019 was therefore the last edition of IPRspr as a printed work after almost a hundred years of existence.

The editorial team encourages the PIL community to cite decisions in parallel with the IPRspr number in future and to submit or communicate new decisions. And it looks forward to any other kind of feedback (iprspr@mpipriv.de).

On 8 October 2024, Jeremy Heymann and Marylou Françoise (both Université jean Moulin Lyon 3) will be hosting a conference on ‘International Commercial Courts, State Model(s) of Specialised (Domestic) Courts ?’ in Lyon. The conference constitutes the inaugural event of a series of conferences on ‘International Disputes and Specialised Courts’ and features practical and academic perspectives from numerous jurisdictions. It will be held both in Lyon and online.

The programme can be found here; the registration form can be found here.

Yesterday (18-09-2024), Switzerland acceded to the HCCH Choice of Court Convention and filed a declaration under Article 22 with respect to non-exclusive choice of court agreements. This is particularly noteworthy because this is the first time a declaration under Article 22 of the Choice of Court Convention has been filed. The Choice of Court Convention will enter into force for Switzerland on 1 January 2025.

Unlike the European Union and other Contracting States, Switzerland did not file a declaration under Article 21 of this Convention (declarations with respect to specific matters, e.g. insurance contracts).

The Swiss declaration indicates the following:

Switzerland

18-09-2024

In accordance with Article 22, paragraph 1, Switzerland declares that its courts will recognise and enforce judgments given by courts of other Contracting States designated in a choice of court agreement concluded by two or more parties that meets the requirements of Article 3, paragraph c), and designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, a court or courts of one or more Contracting States (a non-exclusive choice of court agreement).

While this is a significant development, Article 22 of the Choice of Court Convention only applies in a reciprocal manner and only with regard to the provisions of Chapter III (Arts. 8-15). In other words, and as indicated in the Explanatory Report written by Trevor Hartley and Masato Dogauchi: “For Article 22 to operate, the State of origin and the State in which recognition or enforcement is sought must both be Contracting States and they must both have made a declaration under Article 22” (paragraph 241). The Explanatory Report also specifies that “[b]oth declarations must be in force when recognition is sought; otherwise there is no reciprocity” (paragraph 255).

Moreover, and in addition to reciprocity, Article 22(2) of this Convention sets out a series of conditions that the non-exclusive choice of court agreements must satisfy.

The seminal book of Ronald A. Brand and Paul M. Herrup further clarifies “A choice of court agreement will be a ‘non-exclusive choice of court agreement’ for purposes of recognition and enforcement under Article 22 if it designates ‘a court or courts of one or more Contracting States’. This definition contrasts with the final element of exclusivity in Article 3(a) […]” (see, The 2005 Hague Convention on Choice of Court Agreements: Commentary and documents (Cambridge: Cambridge University Press, 2008, 154).

Unless another Contracting State files a declaration under Article 22, the recognition and enforcement of non-exclusive choice of court agreements under this article will sadly not yet see the light of day. In any case, this is very interesting development, which may perhaps influence other existing or future Contracting States to do the same.

The HCCH news item is available here.

The 2024 Asia-Pacific Colloquium of the Journal of Private International Law (JPIL) will be held on 5-6 December 2024 at the Melbourne Law School of the University of Melbourne in Australia.

The format will be similar to previous colloquia where participants are requested to submit a paper for distribution in advance to other attendees. The colloquium will then take the form of a short presentation of each paper by each participant followed by a roundtable discussion. As with previous colloquia, the aim is to assist participants in preparing their papers for submission to the JPIL.

The theme of the 2024 Colloquium is ‘Private International Law: Domestic Law or International Law?’ While private international law forms part of a country’s domestic legal system, it has also been influenced by international developments, such as foreign decisions, scholarly writings, conventions and other transnational instruments. Participants are encouraged to consider topics in private international law that address this theme: for example, some areas have remained wholly domestic in nature while others reveal clear evidence of cross- border harmonisation. Is ‘internationalisation’ of private international law always achievable or desirable?

Please note that participants will be responsible for their travel to and accommodation in Melbourne for the colloquium. Lunch will be provided across the two days of the colloquium, together with a dinner on 5 December.

More information can be found here.

The second edition of the HAIL Advanced Courses in Hong Kong, organised in cooperation with with the Asian Academy of International Law and (AAIL) and the Hong Kong Department of Justice, will take place on 2-6 December 2024 with a focus on one of the key features of Private International Law, namely Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, in particular the HCCH 2019 Judgments Convention.

For this Advanced Course, the Secretary-General of The Hague Academy of International Law (Professor Jean-Marc Thouvenin) has invited leading academics and practitioners from around the world to Hong Kong, including Teresa Cheng (AAIL), Giuditta Cordero-Moss (University of Oslo),  Pietro Franzina (Cahtolic University of Milan), Judge Shen Hongyu (Supreme People’s Court, China), Matthias Lehmann (University of Vienna) and Matthias Weller (University of Bonn), who will deliver eight expert lectures on:

Lecture 1: ‘Recognition and Enforcement of Foreign Decisions: General Presentation’ (Teresa Cheng)
Lecture 2: ‘Contemporary Approaches to the Recognition and Enforcement of Foreign Judgments: A Comparative Overview’ (Pietro Franzina)
Lecture 3: ‘Public Policy as a Limit to Enforcement and Recognition’ (Giuditta Cordero-Moss)
Lecture 4: , ‘Unfolding the 2019 Hague Convention: Genesis, Ratifications, Scope, Key Provisions, and China’s Perspective on International Recognition and Enforcement’ (Judge Shen Hongyu)
Lecture 5: ‘Jurisdictional Filters I: General Concept; Residence and Choice of Court’ (Matthias Weller)
Lecture 6: ‘Judgments that Ruled on Preliminary Questions Outside the Scope of the Convention and Judgments that Consist of Severable Parts’ (Pietro Franzina)
Lecture 7: ‘Jurisdictional Filters II: Contract, Tort, forum rei sitae’ (Matthias Weller)
Lecture 8: ‘Arts. 22 and 25 of the HCCH Judgment Convention’ (Teresa Cheng)

In addition, Matthias Lehmann will deliver expert lectures on ‘Crypto Currency and International Law’ in the afternoon. He will also offer an Introduction to ‘International Comparative Law’ as a separate one-day event on 30 November 2024 (separate registration and fee required; see here).

The registration fee of HK$ 10,000 includes daily lunch and refreshments. Full attendance is mandatory. Interested candidates are invited to complete the online application form by 18 October 2024. All applications are subject to review. Succesful applicants will receive email confirmation by 11 November 2024. Registered participants will have pre-course access to the HAIL e-learning platform that provides reading materials prepared by the lecturers. A certificate of attendance will be awarded to participant with a perfect attendance record.

For further information provided by the organisers, please refer to the attached eFlyer and the AAIL Event Webpage. There you will also find all the necessary information regarding the separate Comparative Law Short-Course.

By Birgit van Houtert, Assistant Professor of Private International Law at Maastricht University

From 29 July till 16 Augustus 2024, the Summer Courses on Private International Law (PIL) were held at the 93rd session of the summer courses of the Hague Academy of International Law. The PIL courses were followed by 250 onsite attendees and remotely 61 attendees from 74 different countries. The inaugural lecture was presented by Lord Lawrence Collins of Mapesbury (Former Justice at the United Kingdom Supreme Court) on the “Use and Abuse of Comity in International Litigation”. In the next three weeks, the general course was given by Charalambos Pamboukis (Professor at the National and Kapodistrian University of Athens) titled “The Metamorphoses of Private International Law”. During these three weeks, six special courses were given by Alessandra Zanobetti (Professor at the University of Bologna) on “The Effects of Economic Sanctions and Counter-Measures on Private Legal Relationships”; Natalie Y. Morris-Sharma (Director at the Attorney-General’s Chambers of Singapore) on “The Singapore Convention and the International Law of Mediation”; Carlos Esplugues Mota (Professor at the University of Valencia) on “New Dimensions in the Application of Foreign Law by Courts (and Arbitrators) and Non-judicial Authorities”; Jack Coe (Professor at Pepperdine Caruso School of Law) on “Non-ICSID Convention Investor-State Awards in Domestic Courts”; Eva Lein (Professor at the University of Lausanne) on “Breathing Space in International Commercial Litigation”; Andrew Dickinson (Professor at the University of Oxford) on “Natural Justice in Recognition and Enforcement of Foreign Judgements”. These PIL experts provided very interesting and valuable insights, including future (desirable) directions on PIL that can guide and inspire students, researchers, legal practitioners, courts, and legislators. The courses will be published by Brill in the series Collected Courses of The Hague Academy of International Law / Recueil des cours de l’Académie de La Haye. The fact that the courses commonly focused on PIL globally, by including national, regional and international PIL, is particularly laudable in view of our interconnected world. This blog aims to describe common threads of the 2024 Online Summer Courses on PIL that may encourage you to read the Hague Academy Collected Courses and inspire further research.[1]

The interaction between public international law and PIL

All lectures showed that there cannot be drawn a sharp distinction between public international law and PIL.[2] Several lecturers have illustrated the current interaction between these two fields of law. On the basis of case law in England and the U.S. involving private parties, Collins argued that the principle of comity has often been misused in favour of the interests of the forum state. For instance, in a case involving a request for evidence from French airplane manufacturing companies by victims of an airplane crash, instead of a first resort to the Hague Evidence Convention, the U.S. Supreme Court ruled that comity requires an assessment of the interests of the foreign nation involved and the requesting nation.[3] Collins argued that in practice, U.S. and English courts do not give effect to foreign blocking statutes, like the French Blocking Statute, but have ruled in favor of disclosure of documents and information. As the main abuse of comity, Collins pointed out that the Court of Appeals for the Second Circuit in New York has rejected the enforcement of arbitral awards for reasons of forum non conveniens. With respect to the grant of anti-suit injunctions, courts nonetheless ruled that comity requires caution as these injunctions involve an indirect interference with proceedings of foreign courts unless the injunction aims to prevent a breach of a choice of court agreement or arbitration agreement.[4] Another illustration on the interplay between public and private international law can be drawn from the Zanobetti’s lectures who argued that economic sanctions may set aside the lex contractus by means of the public policy exception in PIL. In the context of investor-state arbitration, Coe and Morris-Sharma have referred to the intersection between PIL and public international law. Coe in particular demonstrated the common features between business-to-business arbitration and non-ICSID (International Centre for Settlement of Investment Disputes) arbitration, both types of arbitration result in awards to which the New York Convention applies. Morris-Sharma has argued that although the investor-state dispute settlement regime mainly concerns state-to-state obligations, a foreign (private) investor may bring a claim directly against the state. While Morris-Sharma gave her lectures on the United Nations Convention on International Settlement Agreements Resulting from Mediation, adopted in 2018, (the Singapore Convention on Mediation, SCM), she noted that whereas this treaty concerns a public international law instrument, it has as subject matter the regulation of private relationships and therefore concerns issues of PIL. In view of current global issues, Morris-Sharma emphasised the importance of “continuing conversations” between public and private international law to bring order into global governance. In addition to research, Maastricht University shows that education could also be a tool to foster these type of conversations as students of the European Law School are taught PIL integrated into courses of European and international law.[5]

The global governance role of PIL[6]

Several courses have demonstrated the increasing role that contemporary PIL plays regarding global goals, varying from the protection of human rights, such as to guarantee the right of a fair hearing in the context of the recognition of foreign judgements as indicated by Dickinson and Lein, to trans-human goals like the protection of the environment as pointed out by Pamboukis. Pamboukis also emphasised the importance of the ‘peacemaking’ role of contemporary PIL, in the sense of the pacification of different values, which facilitates pluralism and the acceptance of the ‘otherness’.[7] However, Pamboukis argued that the trend of anti-globalisation may lead to other metamorphoses of PIL. Esplugues Mota pointed out that there already exist a trend of “nationalisation of transnational situations” fostered by PIL. For instance, as a result of the anti-immigration trend in western countries, the connecting factor of the nationality has increasingly been changed into the ‘habitual residence’ to nationalise situations. Nonetheless, in view of the current global problems, such as climate crises, war and economic sanctions, Jean-Marc Thouvenin (Secretary-General of The Hague Academy of International Law, Professor at the University Paris Nanterre) made in his welcome speech of the 2024 Summer Course the bold statement that “private international law is faring better these days than public international law”. The lectures given by Lein showed that PIL can indeed be a valuable global governance tool in this era of “polycrises”[8] as it facilitates international trade by providing “breathing space” mechanisms to international contractual parties. For instance, parties can generally make a choice for a national contract law that enables them to renegotiate or adapt their contract in case unforeseen circumstances impede the performance of contractual obligations.

Justice as objective of PIL

The courses showed that PIL is increasingly providing justice and PIL should also aim to serve justice. Yet, as mentioned by Pamboukis, the notion of justice is broad.[9] According to Pamboukis, justice is fairness, which includes equality. In the context of PIL, he illustrated that equality is, inter alia, visible by the multilateral character of conflict-of-laws rules and rules that protect weaker parties. Based on natural justice, Dickinson also referred to the importance of the principle of equality for the law that includes both substantive and procedural aspects. To safeguard this principle, he pointed out the public policy exception regarding the recognition and enforcement of foreign judgments.

As the meta-metamorphosis of the traditional, Von Savigny-based, conflict-of-laws rule, Pamboukis pointed out the change of its purpose from conflictual justice, i.e. justice based on geographically closest connection, to substantive justice in the sense of a just, fair result by means of a more flexible conflict-of-laws rule and methods. Pamboukis advocated the increasing important role of the method of recognition, in particular with respect to acquired rights and personal status. He also referred to adaptation and a more flexible application of conflit mobile to achieve a just result in concreto. Furthermore, Pamboukis argued to apply in PIL the principle of proportionality as balancing the concrete interests involved should lead to a fair result. The decision of the French Supreme Court on 17 November 2021, which opened up the possibility of recognising a foreign bigamous marriage in a particular case,[10] seems to be in line with the direction of PIL as advocated by Pamboukis.

With respect to the interpretation of justice in PIL, human rights are also increasingly playing an important role. As indicated by Dickinson and Lein, fair trail rights in human right treaties, like the right to be heard, have influenced the interpretation of the public policy exception in the context of the recognition of foreign judgements. Esplugues Mota nonetheless pointed out the “human rights discourse” regarding the recognition of personal situations abroad as a factor militating against the application of foreign law.[11] The recent Anti-SLAPPs (‘Strategic lawsuits against public participation’) Directive (EU) 2024/1069 could also be seen as an expression of the human rights impact on PIL that influences the concept of justice in the PIL.[12]

Several lecturers highlighted the importance of justice at procedural level. Zanobetti called for further research on the issue whether the ‘no-claim’ clause related to economic sanctions is contrary to the right to have access to courts. Lein argued that PIL provides various tools that facilitate access to justice in times of crises, such as the change of a choice of court clause that can easily be done according to various PIL instruments[13]. Dickinson advocated to pursue natural justice by recognising and enforcing foreign judgements unless they are unjust or inconsistent with the core values of the requested state. Furthermore, the procedure that resulted into the foreign judgement should have complied with procedural principles of natural justice such as due process, and the competence of the court of origin should be in accordance with these principles such as jurisdiction based on the parties’ consent. Dickinson illustrated that several national legal systems and treaties reflect natural right-based principles with respect to the recognition of foreign judgements.[14] On the basis of natural law, Dickinson also advocated that states and courts should pursue multi-dimensional justice when developing rules of recognition and enforcement, which requires an assessment on different levels of relational perspectives, including the parties to the dispute, states, and other human beings. Morris-Sharma argued that access to justice is also facilitated by alternative dispute resolution mechanism. However, Esplugues Mota pointed out that the risk of “second class justice” is high in case arbitrators apply foreign law wrongly, as this application is generally even not subject to control.

The changed state-based approach in PIL

While in international civil disputes, PIL traditionally indicates in which state, or states, the court is competent and the law of which country, or countries, applies, most of the lecturers addressed the growing role of arbitrators with respect to the application of foreign law, including non-state law. Nonetheless, Dickinson’s lectures on the principle of peaceful dispute resolution derived from natural law pointed out the importance of access to an independent and impartial judge who provides binding solutions and the possibility of appeal. As mentioned earlier, Esplugues Mota emphasised the risk of “second class justice” in case of alternative dispute resolution. Several lecturers referred to the use of AI technologies in dispute resolution, including AI courts. However, as indicated by Lein, judgements based on the use of AI technologies run the risk of not being recognised on the basis of the public policy exception. This risk seems high considering the fact that AI technologies are not (yet) accurate and fully impartial as they are based on human biases, like gender bias.

Several courses showed that the application of non-state law is playing an increasing role with respect to cross-border disputes between private parties.[15] As explained by Esplugues Mota, the application of non-state law may entail difficulties as regards its meaning, content, characterisation, and level of certainty. Esplugues Mota nonetheless asserted that certain non-state rules, namely the law of the societas mercatorium,[16] religious law,[17] and indigenous law,[18] are increasingly taken into account, or even applied by non-state and state authorities. In this way, PIL facilitates legal pluralism.

Concluding remarks

As argued by Pamboukis, PIL generally became more open, flexible. The courses indicated the need for PIL to remain open to the influence of human rights, pluralism, non-state law, including the law of nature, and the ‘otherness’. Fingers crossed that this openness of PIL continuous to grow in spite of the upcoming movement of anti-globalization, nationalism, including right-wing extremism. Therefore, international cooperation in PIL remains highly important.

[1] As I followed the courses online, this blog does not concern the seminars or elective courses that were given onsite at the Hague Academy of International Law. The assignment for writing this blog was given by Maastricht University, which made it possible for me to attend these courses.

[2] The scholar Alex Mills has frequently published on the blurry distinction between public international law and private international law.

[3] See Societe Nationale Industrielle Aerospatiale v. U.S. District Court 482 US 522 (1987).

[4] Collins referred to the Laker Airways litigation, inter alia, Laker Airways Ltd v Sabena Belgian World Airways, 731 F. 2d 909 (DC Cir 1984).

[5] On the combination of teaching of public and private international law, see also Poomintr Sooksripaisarnkit and Dharmita Prasad, “Private International Law and Public International Law-Increasing Convergence or Divergence as Usual?”, in: Poomintr Sooksripaisarnkit and Dharmita Prasad (eds.), Blurry boundaries of public and private international law: towards convergence or divergent still?, Singapore: Springer 2022.

[6] Robert Wai and Horatia Muir-Watt are among the scholars who frequently published on the role of global governance role of PIL.

[7] With respect to the concept of pluralism and the ‘otherness’, Pamboukis referred to the scholar Santi Romano. On this interesting topic, see also Horatia Muir Watt who has published her 18th Rabel Lecture in November 2002 on Alterity in the Conflict of Laws-An Onthology of the In-Between.

[8] Lein defined the term ‘polycrises’ as “the simultaneous occurrence of several catastrophic events” such as pandemics, environmental disasters, and armed conflicts. Lein referred in this context to Catherine Kessedjian, “Chapter 12, International Law and Crisis Narratives after the Covid-19 Pandamic”, in: Mbengue, d’Aspremont, Crises Narratives in international Law 2022, pp. 132 ff.

[9] With respect to various views on the concept of justice in PIL, see also Michael S. Green, Ralf Michaels, Roxana Banu (eds), Philosophical Foundations of Private International Law, Oxford University Press 2024.

[10] See the EAPIL blog post, on 6 January 2022, “French Supreme Court Opens Door for Recognition of Foreign Bigamous Marriage” by Marion Ho-Dac.

[11] Esplugues Mota referred in this context to the Wagner and J.M.W.L. v. Luxembourg case of 2007 involving the right to have a family on the basis of Article 8 European Convention on Human Rights.

[12] With respect to improvements and challenges of the Anti-SLAPPs Directive (EU) 2024/1069 in the context of PIL, see my forthcoming article in Nederlands Internationaal Privaatrecht no. 4, 2024.

[13] In this context, Lein referred to, inter alia, Article 25(2) Brussels I Regulation (EU) 1215/2012.

[14] Dickinson referred to, inter alia, the criterion of “fundamental principles of procedural fairness” in Article 7(1)(c) of the 2019 Hague Judgements Convention.

[15] Ralf Michaels has frequently published on non-state law in the context of PIL. See, inter alia, Ralf Michaels, “The Re-State-Ment of Non-State Law: The State, Choice of Law, and the Challenge From Global Legal Pluralism”, 51 Wayne Law Review 1209-1259, 2005.

[16] In this context Esplugues Mota referred, inter alia, to Article 13. III of the Private International Law Act of Uruguay of 2020; Article 3 Hague Principles on Choice of Law in International Commercial Contracts of 2015.

[17]  Esplugues Mota referred to, inter alia, the decision of the French Cour de cassation on 6 May 1985 that awarded damages to a divorced Jewish woman as she could not remarry within the Jewish faith because her husband did not ‘give the Get’.

[18] In this context Esplugues Mota referred, inter alia, to Article 1(1) of the South African Law of Evidence Amendment Act 45 of 1988 on judicial notice of law of foreign state and of indigenous law.