Conflictoflaws

Originally posted today on NGPIL website

The Nigeria Group on Private International Law “(NGPIL”) invites submissions for next year’s NGPIL Conflict of Law’s Competition. The winner will be awarded for the best essay on any aspect of Nigerian conflict of laws. Entries will be accepted from the following: an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practicing and residing in Nigeria. The essay should be unpublished at the time of submission. Submitted essays should be in the English language. Submitted essays should also be within five to ten thousand words. Competitors may be citizens of any nation, age or gender but must be an undergraduate and/or postgraduate scholar studying in Nigeria, or any lawyer below five years post-call experience practicing and residing in Nigeria. They need not be Members, or on the Participant’s list of NGPIL.

The prize is 300 GBP, and the winner of the competition will be encouraged to publish the paper in any high-quality peer reviewed journal on private international law (conflict of laws). The prize is sponsored by and will be awarded by NGPIL based upon the assessment of NGPIL.

Submissions to the Prize Committee must be received no later than January 10, 2022. Entries should be submitted by email in Word or pdf format. The winner will be announced no later than 2 months after the deadline. Decisions of the NGPIL on the winning essay and on any conditions relating to this prize are final. Submissions and any queries should be addressed by email to ngpilaw@gmail.com. All submissions will be acknowledged by e-mail.

 

The second thematic volume in the series Studies in Private International Law – Asia looks into direct jurisdiction, that is, the situations in which the courts of 15 key Asian states (Mainland China, Hong Kong, Taiwan, Japan, South Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka, and India) are prepared to hear a case involving cross-border elements. For instance, where parties are habitually resident abroad and a dispute has only some, little or no connection with an Asian state, will the courts of that state accept jurisdiction and hear the case and (if so) on what conditions? More specifically, the book’s chapters explore the circumstances in which different Asian states assume or decline jurisdiction not just in commercial matters, but also in other types of action (such as family, consumer and employment disputes).

The Introduction defines terminology and identifies similarities in the approaches to direct jurisdiction taken by the 15 Asian states in civil and commercial litigation. Taking its cue from this, the Conclusion assesses whether there should be a multilateral convention or soft law instrument articulating principles of direct jurisdiction for Asia. The Conclusion also discusses possible trajectories that Asian states may be taking in respect of direct jurisdiction in light of the COVID-19 pandemic and the political tensions currently besetting the world. The book suggests that enacting suitable rules of direct jurisdiction requires an Asian state to strike a delicate balance between affording certainty and protecting its nationals. At heart, direct jurisdiction involves sometimes difficult policy considerations and is not just about drawing up lists of jurisdictional grounds and exceptions to them.

For further information please visit: https://www.bloomsbury.com/uk/direct-jurisdiction-9781509936427/

 

This Thursday, the Court of Justice delivered its judgment in the case UM, C-277/20, where it clarifies whether a donation mortis causa may fall within the scope of the notion of “agreement as to succession” in the sense of the Succession Regulation.

The request for a preliminary ruling in this case arises out of proceedings in Austria on the inscription in the land registry of the property right to real estate situated in that Member State. The requested inscription is supposed to be made on the basis of a contract of donation mortis causa in respect to that real estate, entered into between two German nationals habitually resident in Germany. Prior to the request for the inscription, the succession proceedings have been opened before a German court for the last place of residence of the donor.

Before the Austrian courts, the request for the inscription of the propriety right have been already rejected by two instances and ultimately the Oberster Gerichtshof referred to the Court the preliminary questions that read as follows:

Is Article 3(1)(b) of [the Succession Regulation] to be interpreted as meaning that a contract of donation mortis causa entered into between two German nationals habitually resident in Germany in respect of real estate located in Austria, granting the donee a right having the character of an obligation against the estate to registration of his title after the donor’s death pursuant to that contract and the donor’s death certificate, that is without the intervention of the probate court, is an agreement as to succession within the meaning of that provision?

If the answer to the above question is in the affirmative: Is Article 83(2) of [The Succession Regulation] to be interpreted as meaning that it also regulates the effect of a choice of applicable law made before 17 August 2015 for a contract of donation mortis causa that is to be qualified as an agreement as to succession within the meaning of Article 3(1)(b) of [the Succession Regulation]?

In his Opinion presented this July, AG Richard de la Tour considered that Article 3(1)(b) of the Succession Regulation must be interpreted to the effect that the notion of “agreement as to succession” includes donation contracts inter vivos, by which, in favor of the donee, the transfer of the ownership of one or several assets even only partially accounting for the hereditary estate of the donor does not take place until the death of the donor.

In its judgments, the Court also pronounces itself in favour of the interpretation according to which a contract of donation mortis causa is to be qualified as an “agreement as to succession”.

The reasoning of the Court commences with the juxtaposition of exclusion from the scope of the application of the Succession Regulation provided for in its Article 1(2)(g) [“shall be excluded (…) property rights (…) created or transferred otherwise than by succession, for instance by way of gifts”], on the one hand, and definition of the notion of “agreement as to succession” in the sense of Article 3(1)(b) of the Succession Regulation [“an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates (…)], on the other hand (paragraph 27).

The Court stresses then the importance of autonomous and uniform interpretation of the notions of the Succession Regulation (paragraph 29) and contends that the very wording of the definition of the notion of “agreement as to succession” indicates that this notion covers also transfers relating to future estates (paragraph 30).

By contrast, the second preliminary question is answered in the negative. For the Court, as nothing indicates that a choice of law applicable have been made to succession as a whole, Article 83(2) of the Succession Regulation is not applicable to the case at hand. As such, the choice made solely with regards to the agreement as to succession is not governed by Article 83(2) (paragraph 39).

The judgment can be found here (in German and French so far).

AG Saugmandsgaard Øe observes in his Opinion presented today in the case HRVATSKE ŠUME, C-242/20, the Court of Justice has already faced requests for a preliminary ruling where arose a question on qualification of an action for unjust enrichment for the purposes of the Brussels I Regulation. He notes that no conclusive finding has been made so far as to its qualification as a “matter relating to tort, delict or quasi-delict” in the sense of Article 5(3) of the Regulation (point 4). By contrast, the present case is supposed to create an opportunity to provide a definitive conclusion to the jurisprudential saga in question.

It is noteworthy that the case itself presents a nuance: the unjust enrichment is said to have occurred in enforcement proceedings which were carried out, although they should not have been, and now reimbursement of the amount which was unjustly levied in enforcement proceeding is being sought before the Croatian courts. The nuance is addressed in the second preliminary question.

At the request of the Court, the Opinion does, however, elaborate only on the first preliminary question that reads as follows:

Do actions for recovery of sums unduly paid by way of unjust enrichment fall within the basic jurisdiction established in the [Brussels I Regulation] in respect of “quasi-delicts” since Article 5(3) thereof provides inter alia: “A person domiciled in a Member State may, in another Member State, be sued … in matters relating to … quasi-delict, in the courts for the place where the harmful event occurred or may occur”?

In his Opinion, AG Saugmandsgaard Øe proposes to take a step back and view the preliminary question in a broader perspective. For him, it is necessary to determine, in the first place, whether an action for unjust enrichment falls within the scope of Article 5(1) of the Brussels I Regulation and, only in the negative, in the second place, whether it fall within the scope of Article 5(3) of the Regulation (point 26). He established therefore an order of preference when it comes to the contract/tort distinction under the Regulation.

Having adopted that approach, he concludes that an action for unjust enrichment is not a “matter relating to a contract” in the sense of Article 5(1) of the Brussels I Regulation, save where it is closely connected with a preexisting (or alleged to exist) contractual relationship (points 44-52). Nor it is a “matter relating to tort, delict or quasi-delict” within the meaning of Article 5(3) of the Regulation (point 79).

The Opinion contains an in-depth discussion on the parallels with the Rome I/Rome II Regulations and, in this regard, the outcome of the reasoning followed by AG Saugmandsgaard Øe may bring to mind the one that AG Bobek proposed in the context of actio pauliana in his Opinion delivered in the case Feniks, C-337/17.

The Opinion of AG Saugmandsgaard Øe is available here (no English version so far).

At least from the perspective of private international law, this Thursday can easily go down in history as one of the busiest days in the Court of Justice agenda. Its complete outline can be found here, due to courtesy of Marta Requejo Isidro. Stay tuned also for our next updates on the cases of this morning.

The present post concerns the Opinion presented by AG Rantos in the case TOTO, C-581/20. At the request of the Court, the analysis provided for in the Opinion is limited to the second preliminary question on the interpretation of Article 35 of the Brussels I bis Regulation. The second question reads as follows:

After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of [the Brussels I bis Regulation] to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

In essence, the question seeks to establish whether a Bulgarian court not having jurisdiction as to the substance of the matter is precluded from pronouncing provisional/protective measures under Article 35 of the Brussels I bis Regulation in a situation where a Polish court having jurisdiction as to the substance of the matter has already given a ruling on an application for identical provisional/protective measures and rejected the application.

In brief, AG Rantos argues that in a situation described in the preliminary question the court not having jurisdiction as to the substance of the matter should not pronounce the provisional/protective measures.

In general terms, the Opinion contends that the rules on litispendence provided for in Article 29 of the Brussels I bis Regulation do apply in the context of proceedings for provisional/protective measures. Such finding of a general nature seems to suggest that the court subsequently seized under Article 35 of the Regulation with an identical application for provisional/protective measures should not give a ruling on that application (point 50).

The Opinion then goes on to elaborate on the more specific elements of the case at hand which seemed to inspire the second preliminary question: firstly, the impact of the choice of court clause in favour of the Polish courts on the applicability of Article 35 of the Regulation (in other terms: whether the Polish courts have exclusive jurisdiction also as to the provisional/protective measures); secondly, the actual connection between the measures sought and the territory of Bulgaria (the question being left open for the referring court to asses, point 74); thirdly, the relevance, before the Bulgarian court, of the Polish court decision refusing the provisional/protective measures (point 54).

Concerning the last element, AG Rantos observes that it is not clear whether the ruling of a Polish court refusing to grant provisional/protective measures is final or not (point 76). Thus, he elaborates on these two different hypothesis. In essence, according to the Opinion, the court subsequently seized should not give ruling on the application for provisional/protective measures [either because in a mutual trust oriented manner it should refrain from doing so because such ruling would be irreconcilable with a previous definitive ruling handed down by a Polish court (point 79) or – in the absence of such definitive ruling – because the rules on litispendence require the court subsequently seized to decline jurisdiction in favour of court previously seized (point 88)].

The Opinion is available here (no English version so far).

On Friday 17 September 2021, the Institute for Comparative Law, Conflict of Laws and International Business Law of Heidelberg University (Prof. Dr. Dr. h.c. Thomas Pfeiffer) will host the EFFORTS German Exchange Seminar. This half-day online conference is held within the framework of the project “EFFORTS – Towards more effective enforcement of claims in civil and commercial matters within the EU”, funded by the European Commission and conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, Heidelberg University, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The program for the German Exchange Seminar is available here (PDF, in German). Participation is free of charge. Participants are kindly requested to pre-register by sending an email to sekretariat.pfeiffer@ipr.uni-heidelberg.de.

The EFFORTS-project tackles in particular the European Enforcement Order Regulation, the European Payment Order Regulation, the European Small Claims Regulations and the European Account Preservation Order Regulation. Ultimately, it aims to assess the functioning and the effectiveness of cross-border enforcement within the EU. More information on EFFORTS and its research outputs can be found on the project website and in various newsletters previously posted on conflictoflaws.net here, here, and here.

This project was funded by the European Union’s Justice Programme (2014-2020). The content of this study represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

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

The Faculty of Law at Ozyegin University is organizing its first online Private International Law Symposium on the theme of “Current Issues in Private International Law – MENA & EU”.

The symposium aims to bring together MENA and EU scholars working in the field of private international law field. The symposium is to be held on 19 November 2021.

The organizers are pleased to invite interested persons to submit abstracts of papers relating to the themes of the symposium by 20 September 2021.

All necessary details about the event can be found here: https://events.ozyegin.edu.tr/tr?myozu=1#/0/detail/17152/current-issues-in-private-international-law-mena-eu-call-for-papers

Any inquiries should be directed to Mrs. Jocelyne Alayan at jocelyne.alayan@ozyegin.edu.trseminar_pil@ub.ac.id.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 9 September 2021 at 5:00 pm (Mexico City time – CDT), 12:00 am (CEST time). The topic of the webinar is Rethinking Private International Law (a look through its sources and methods) and will be presented by Professors Luciana B. Scotti and Candela Villegas (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/83622646486?pwd=ZzZwbFJ2R1NLaHFxUGNNUnE0M2FHQT09

Meeting ID: 836 2264 6486

Password: BMAAMEDIP

Participation is free of charge.

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

On 16 and 17 September 2021 an online course on European Union and Third Countries. Issues on jurisdiction and recognition of foreign judgments will take place as a part of the activities of the European Family Law Module funded by the EU ErasmusPlus programme led by Professor Elisabetta Bergamini of the University of Udine, Italy.

Excellent group of lecturers from different EU Member States will be discussing EU Regulations on jurisdiction and recognition and enforcement when those issues arise in situations connected with third States. The course will offer an overview of different aspects to this issue, having regard to EU rules both on civil and commercial matters and on family and succession matters. The course will be either in Italian or in English. The details of the programme are available in Flyer_E2106_EU_and_Third_Countries.

Participation is free of charge, but registration is required by 13 September here.

This note briefly analyses the recent decision of the Nigerian Supreme Court in BCE Consulting Engineers v Nigerian National Petroleum Corporation[1]on the issue of a foreign company that is not registered in Nigeria having the capacity to sue in Nigeria.

Generally, Section 78 of the Companies and Allied Matters Act, 2020 requires that a foreign company must be registered in Nigeria before it can carry on business in Nigeria. This provision is a carryover of the former Section 54 of the Companies and Allied Matters Act, 1990, which contains a similar provision.

However, Section 84(b) of the Companies and Allied Matters Act 2020, makes express provisions for a foreign company to sue and be sued in its corporate name or that of its agent (despite the fact that it is not a registered or incorporated company in Nigeria for the purpose of carrying on business (under Section 78). The same provision previously enacted in Section 60(b) of the Company and Allied Matters Act 1990. Section 60(b) of the Company and Allied Matters Act 1990 has been applied by Nigerian courts in some cases prior to the enactment of the Companies and Allied Matters Act, 2020.

In Companhia Brasileira De Infraestrututira (INFAZ) v Companhia Brasileira De Entrepostos E Commercio (COBEC) (Nig) Ltd,[2] the plaintiff-appellant was a company allegedly registered in accordance with Brazilian law. The plaintiff-appellant was also a shareholder with some Nigerian persons, which constituted the defendant-respondent company. There was a change in the name of the plaintiff-appellant to Companhia Brasileira De Infraestutura Fazendaria, which was allegedly in accordance with Brazilian law. The plaintiff-appellant prayed for the winding-up of the defendant-respondent company. The application was dismissed by the trial court and the appeal to the Court of Appeal was dismissed as well.  One of the issues for consideration was whether the plaintiff-appellant was competent to sue and be sued in Nigeria.

The Court of Appeal held that by virtue of Section 60(b) of the Companies and Allied Matters Act 1990, a foreign company not registered in Nigeria can sue and be sued in Nigerian courts provided that said foreign company was duly incorporated according to the laws of a foreign state recognised in Nigeria. But, if there is a change in the name of that foreign company, evidence of compliance with the law of the land where it was incorporated must be given. In the instant case, the Court of Appeal held that there was no material evidence placed before the court to establish the change of name of the plaintiff-appellant company, and the resolution for change of name in Brazil that was provided before the court was deemed insufficient.[3]

In Edicomsa International Inc and Associates v CITEC International Estates Ltd,[4] the plaintiff-appellant was a foreign company incorporated in the United States of America. However, it was not registered in Nigeria. The plaintiff-appellant was engaged by the defendant-respondent to provide some services. Subsequently, there was a disagreement between the parties on payments due to the plaintiff-appellant, which led to the action before the court. The defendant-respondent, inter alia, challenged the jurisdiction of the trial court on the basis that the plaintiff-appellant was not registered in Nigeria. The trial court upheld the submission of the defendant-respondent. The plaintiff-appellant appealed to the Court of Appeal, which unanimously allowed the appeal. The majority of the Court of Appeal rightly applied Section 60(b) of the Companies and Allied Matters Act 1990 to the effect that the plaintiff-appellant, though not registered in Nigeria, could sue in Nigeria.[5]

In the recent case of BCE Consulting Engineers v Nigerian National Petroleum Corporation[6] the Nigerian Supreme Court did not consider Section 60(b) of the Companies and Allied Matters Act 1990 (now Section 84(b) of the Companies and Allied Matters Act 2020), though its final decision was correct. In that case, the claimant/1st appellant claimed that it entered into a consultancy service agreement with the defendant/respondent which the latter unlawfully terminated. The plaintiff/1st appellant therefore filed an action via originating summons in the Federal High Court, Lagos State Judicial Division, seeking declaratory reliefs to that effect. It further claimed the total value of outstanding claims on invoices submitted by it, special and general damages. One of the issues canvassed at the Supreme Court was whether the Court of Appeal was right when it held that the contract entered into by the claimant-1st appellant a foreign company without incorporation in Nigeria was illegal and unenforceable? The Supreme Court Justices unanimously agreed with Peter-Odilli JSC who held as follows in her leading judgment:

“I agree with learned counsel for the appellants that section 54 of the Companies and Allied Matters Act [Cap C20 LFN 2004][7] does not apply to the facts of this case because the situation before the court in this case is one of a firm registered in Nigeria and entering into contract with the respondent but subsequently to the execution of the contract incorporating itself outside Nigeria as a limited liability company”.[8]

It is submitted that the Supreme Court should also have had regard to Article 60(b) of the Companies and Allied Matters Act 1990 (now Section 84(b) of the Companies and Allied Matters Act, 2020) in holding that assuming the claimant-1st appellant was a foreign company that was not registered in Nigeria, it was capable of maintaining an action in Nigeria. This would have put to doubt any question as to the capacity of a foreign company that is not registered in Nigeria to sue or be sued in Nigeria. It would also have made the Supreme Court’s decision exhaustive in this regard.

 

 

[1] (2021) All FWLR (Pt. 1083)  359.

[2](2004) 13 NWLR 376.

[3]Companhia Brasileira De Infraestrututira v Cobec (Nig) Ltd (2004) 13 NWLR 376, 391, 395 (Aderemi JCA, as he then was) (overturned on another point in INFAZ v COBEC (Nig) Ltd (2018) 12 NWLR 127). See also Watanmal (Singapore) Pte Ltd v. Liz Olofin and Company Plc (1997) LPELR-6224(CA) 13 (Musdapher JCA as he then was); NU Metro Retail (Nig) Ltd v. Tradex S.R.L & Anotherr (2017) LPELR-42329(CA) 41-2 (Garba JCA as he then was).

[4](2006) 4 NWLR 114.

[5]Edicomsa International Inc and Associates v CITEC International Estates Ltd (2006) 4 NWLR 114, 125-26 (Rhodes-Vivour JCA, as he then was), 130 (Omage JCA).  See also B.C.N.N. Ltd. v. Backbone Tech. Net. Inc.  (2015) 14 NWLR (Pt. 1480) 511. Cf.  AG Butler (Nig) (Ltd) v The Sanko Steamship Co. Ltd (2020) LPELR -51141 (CA). Cf. Hung & Ors v. EC Investment Co. (Nig) Ltd (2016) LPELR -42125 (CA) (Tur JCA dissenting).

[6] (2021) All FWLR (Pt. 1083)  359

[7] “Subject to sections 56 to 59 of this Act, every foreign company which before or after the commencement of this Act was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria, shall take all steps necessary to obtain incorporation as a separate entity in Nigeria for that purpose, but until so incorporated, the foreign company shall not carry on business in Nigeria or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than receipt of notices and other documents, as matters preliminary to incorporation under this Act.” This provision is now contained in Section 78 of the the Companies and Allied Matters Act, 2020.

 

[8] ibid, 396.

The Hague Academy of International Law has recently published its programmes for the Summer Courses in 2022. The part on public international law will take place from 11 to 29 July 2022, the part on private international law will follow from 1 to 19 August 2022.

This latter part will start with an inaugural lecture by Dominique Hascher, the general course will be given by Louis d’Avout, and special courses will be offered by Marco Frigessi di Rattalma, João Bosco Lee, Ulla Liukkunen, Kermit Roosevelt III, Tiong Min Yeo, and Arnaud Nuyts – a truly impressive global gathering of expertise – highly recommended! Opening of the registration period: November 1st, 2021. Further information can be found here.

A special feature of the 2022 programme will be a conference in memoriam of Emmanuel Gaillard who passed away last year, far too early (for a memorial note on CoL by Ralf Michaels see here). Contributors will be Yas Banifatemi, Diego P. Fernández Arroyo, Dominique Hascher, Horatia Muir Watt, Luca Radicati di Brozolo.

 

 

 

 

More and more participants decide to take part in both parts, which of course is the best of all choices, as the two branches of international law have much in common and the lines more and more blur (again). In addition, most of the global challenges of our time can only be dealt with adequately if tackled in an integrated approach. Therefore, it is with good reason that, following to the two parts on public and private international law courses, the Academy’s Centre for Studies and Research again addresses such a cross-over topic in its programme from 22 August to 9 September 2022: Climate Change and the Testing of International Law. For more information see here.

 

An important publication on the HCCH 2019 Judgments Convention has come out: Holger Jacob’s PhD thesis, “Das Haager Anerkennungs- und Vollstreckungsübereinkommen vom 2. Juli 2019“, supervised by our esteemed colleague Peter Huber, University of Mainz, Germany. The book is certainly the most comprehensive treatise on the subject matter in German language at this moment, and it is highly recommended: thorough analysis and precision invite anyone interested in the topic to study concepts and details of the new core element of the “Hague system” for judicial cooperation in civil matters.

This post was written by Harshal Morwale, in India-qualified international arbitration lawyer working as an associate with a premier Indian law firm in New Delhi; LLM from the MIDS Geneva Program (2019-2020); alumnus of the Hague Academy of International Law. 

Sovereign immunity from enforcement would undoubtedly be a topic of interest to all the commercial parties contracting with state or state entities. After all, an award is only worth something when you can enforce it. The topic received considerable attention in India recently, when the Delhi High Court (“DHC”) ruled on the question of immunity from enforcement in case of commercial transactions (KLA Const Tech v. Afghanistan Embassy). This ruling is noteworthy because India does not have a consolidated sovereign immunity law, and this ruling is one of the first attempts to examine immunity from enforcement.

This post is part I of the two-part blog post. This part examines the decision of the DHC and identifies issues emanating from it. The post also delves into the principles of international law of state immunity and deals with the relevance of diplomatic immunity in the current context. The second part (forthcoming) will explore the issue of consent to the arbitration being construed as a waiver of immunity from enforcement and deal with the problem of whether the state’s property can be attached to satisfy the commercial arbitral award against a diplomatic mission.

DHC: No Sovereign Immunity From Enforcement In Case Of Commercial Transactions

In the case of KLA Const Tech v. Afghanistan Embassy, KLA Const Technologies (“claimant”) and the Embassy of the Islamic Republic of Afghanistan in India (“respondent”) entered into a contract containing an arbitration clause for rehabilitation of the Afghanistan Embassy. During the course of the execution of works, a dispute arose between the parties. The claimant initiated the arbitration. An ex parte award was passed in favor of the claimant by the Sole Arbitrator. Since the respondent did not challenge the award, the claimant seeks its enforcement in India in line with Section 36(1) of the Arbitration & Conciliation Act 1996, whereby enforcement cannot be sought until the deadline to challenge the award has passed. In the enforcement proceedings, the DHC inter alia focused on immunity from enforcement of the arbitral award arising out of a commercial transaction.

The claimant argued that the respondent is not entitled to state immunity because, in its opinion, entering into an arbitration agreement constitutes “waiver of Sovereign Immunity.” Further, relying on Articles 10 and 19 of the United Nations Convention on Jurisdictional Immunities of States and Their Property (“UNCJIS”), the claimant argued that the states cannot claim immunity in case of commercial transactions and the UNCJIS expressly restricts a Foreign State from invoking sovereign immunity against post-judgment measures, such as attachment against the property of the State in case of international commercial arbitration.

After analyzing the claimant’s arguments and relevant case laws, the DHC reached the following decision:

1. In a contract arising out of a commercial transaction, a foreign state cannot seek sovereign immunity to stall the enforcement of an arbitral award rendered against it.
2. No separate consent for enforcement is necessary, and consent to arbitrate is sufficient to wave the immunity. The DHC opined that this ruling is in “consonance with the growing International Law principle of restrictive immunity.”

The DHC ordered the respondent to declare inter alia all its assets, bank accounts in India, etc., by a stipulated date. Since the respondent did not appear and did not make any declaration by that date, the DHC has granted time to the claimant to trace the attachable properties of the respondent.

The decision has been well received in the Indian legal community and has been lauded as a pro-arbitration decision as it promotes prompt enforcement of arbitral awards in India, regardless of the identity of the award-debtor. The decision is also one of the first attempts to define immunity from ‘enforcement’ in India. The existing law of sovereign immunity in India is limited to section 86 of the Indian Civil Procedure Code, which requires the permission of the Central Government in order to subject the sovereign state to civil proceedings in India. Therefore, the DHC’s decision is critical in the development of sovereign immunity jurisprudence in India.

Difference Between Jurisdictional Immunity And Enforcement Immunity Under The UNCJIS

It is worth noting that the DHC did not explicitly address the claimant’s argument regarding the UNCJIS. Regardless, it is submitted that the claimant’s argument relying on articles 10 and 19 of the UNCJIS is flimsy. This is particularly because the UNCJIS recognizes two different immunities – jurisdiction immunity and enforcement immunity. Article 10 of the UNCJIS, which provides for waiver of immunity in case of commercial transactions, is limited to immunity from jurisdiction and not from enforcement. Further, Article 20 of the UNCJIS clearly states that the state’s consent to be subjected to jurisdiction shall not imply consent to enforcement. As argued by the late Professor James Crawford, “waiver of immunity from jurisdiction does not per se entail waiver of immunity from execution.”

Notwithstanding the above, even the DHC itself refrained from appreciating the distinction between immunity from jurisdiction and immunity from enforcement. The distinction is critical not only under international law but also under domestic statutes like the English Sovereign Immunity Act (“UKSIA”). It is submitted that Indian jurisprudence, which lacks guidance on this issue, could have benefitted from a more intricate analysis featuring the rationale of different immunities, the standard of waivers, as well as the relevance of Article 20 of UNCJIS.

Curious Framing Of The Question By The DHC

In the current case, the DHC framed the question of sovereign immunity from enforcement as follows: Whether a Foreign State can claim Sovereign Immunity against enforcement of arbitral award arising out of a commercial transaction? On the face of it, the DHC decided a broad point that the award is enforceable as long as the underlying transaction is commercial. The real struggle for the claimants would be to determine and define which property would be immune from enforcement and which wouldn’t.

The framing of the issue is interesting because the sovereign state immunity from enforcement has generally been perceived as a material issue rather than a personal issue. In other words, the question of state immunity from enforcement has been framed as ‘what subject matter can be attached’ and not ‘whether a particular debtor can claim it in a sovereign capacity’. In one of the case laws analyzed by the DHC (Birch Shipping Corp. v. The Embassy of the United Republic of Tanzania), the defendant had argued that under the terms of the US Foreign Sovereign Immunities Act, its “property” was “immune from the attachment.” Further, in the operative part of the judgment, the US District Court stated, “the property at issue here is not immune from attachment.” Unlike the DHC’s approach, the question of immunity from enforcement in the Birch Shipping case was argued and ruled upon as a material issue rather than a personal one.

While the decision of the DHC could have a far-reaching impact, there is a degree of uncertainty around the decision. The DHC ruled that as long as the transaction subject to arbitration is commercial, the award is enforceable. There remains uncertainty on whether this ruling means that all properties of the sovereign state can be attached when the transaction is commercial. Would this also mean diplomatic property could be attached? The DHC still has the opportunity to clarify this as the specific properties of the respondent for the attachment are yet to be determined, and the claimant has been granted time to identify the attachable properties.

Diplomatic Immunity or Sovereign Immunity: Which One Would Apply? 

While state immunity and diplomatic immunity both provide protection against proceedings and enforcements in the foreign court or forum, the subjects of both immunities are different. While sovereign immunity aims to protect the sovereign states and their instrumentalities, diplomatic immunity specifically covers the diplomatic missions of the foreign states. The law and state practice on sovereign immunity are not uniform. On the other hand, the law of diplomatic immunity has been codified by the Vienna Convention on Diplomatic Relations (“VCDR”). Unlike the UNCJIS, the VCDR is in force and has been adopted by over 190 states, including India and Afghanistan.

Since the party to the contract, the arbitration, and the enforcement proceedings in the current case is an embassy, which is independently protected by the diplomatic immunity, the decision of the DHC could have featured analysis on the diplomatic immunity in addition to the state immunity. Like the UNCJIS, the VCDR recognizes the distinction between jurisdictional and enforcement immunities. Under Article 32(4) of the VCDR, the waiver from jurisdictional immunity does not imply consent to enforcement, for which a separate waiver shall be necessary.

Additionally, the DHC had an opportunity to objectively determine whether the act was sovereign or diplomatic. In Re P (Diplomatic Immunity: Jurisdiction), the English Court undertook an objective characterization of the entity’s actions to determine whether they were sovereign or diplomatic. The characterization is critical because it determines the kind of immunity the respondent is subject to.

In the current case, the contract for works entered into by the embassy appears to be an act undertaken in a diplomatic capacity. Hence, arguably, the primary analysis of the DHC should have revolved around diplomatic immunity. It is not to argue that the conclusion of the DHC would have been different if the focus was on diplomatic immunity. However, the analysis of diplomatic immunity, either independently or together with the sovereign immunity, would have substantially bolstered the significance of the decision considering that the interplay between sovereign and diplomatic immunities under Indian law deserves more clarity.

One might argue that perhaps the DHC did not deal with diplomatic immunity because it was raised neither by the claimant nor by the non-participating respondent. This raises the question – whether the courts must raise the issue of immunity proprio motu? The position of law on this is not entirely clear. While section 1(2) of the UKSIA prescribes a duty of the Court to raise the question of immunity proprio motu, the ICJ specifically rejected this approach in the Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) (para 196). Both of these approaches, however, relate to sovereign immunity, and there lacks clarity on the issue in the context of diplomatic immunity.

Conclusion

As noted above, despite being one of the first Indian decisions to deal with state immunity from an international law perspective, the decision leaves several questions open, such as the determination of attachable properties and the relevance of diplomatic immunity in the current context. It remains to be seen what approach the DHC takes to resolve some of these issues in the upcoming hearings.

The next part of the post explores the issue of consent to the arbitration being construed as a waiver of immunity from enforcement. The next part also deals with the problem – whether the state’s property can be attached to satisfy the commercial arbitral award against a diplomatic mission.

 

The Journal of Law, Market & Innovation (JLMI) is a new initiative of the Turin Observatory on Economic Law and Innovation. The JLMI is an open access journal of the University of Turin that aims at fostering research with respect to the regulatory challenges posed by markets and innovation in our times. The JLMI relies on an interdisciplinary methodology. More information at https://www.ojs.unito.it/index.php/JLMI.

In its yearly Special Issue, which is a joint initiative with the Master in International Trade Law and to which this call for papers is addressed, it focuses on international and comparative approaches to trade law with the goal of offering to the readers challenging ideas, critical insights and new perspectives.

This Call concerns the first Special Issue to be published in Spring 2022 on The interplay of physical and digital trade law. The Call aims at gathering contributions that question to what extent technology and digital trust are changing global trade law, and discuss the implications, for the regulation of global trade, of the interplay of physical trade and the digitalization of the economy.

The editors of the issue are University of Turin’s dr Lorenza Mola, Professor of International Law and 2020-2021 scientific director of the Master, dr Cristina Poncibò, Professor of Comparative Private Law and member of the Scientific Committee of the Master, and dr Elena D’Alessandro, Professor of Civil Procedure and member of the Scientific Committee of the Master.

The following topics and perspectives may be taken into considerations, among others: Trade, Digital Trust and Human Trust; Contract Digitalization and B2B platforms; Trade, DLTs, Blockchain; E-customs; Digital Justice and Trade; Perspectives from China and the Global South. The editors invite submissions addressing the legal aspects underpinning questions such as: Are the main drivers of physical trade challenged?; Trade and essential infrastructures: what lessons learned from the Suez Channel case?; Does digitalization really change trade?; Is global trade really going digital?; How to adapt dispute settlement mechanisms to digital trade? How is the Belt and Road Initiative shaping the physical/digital interplay in global trade? What is the impact of COVID-19 on such interplay?

Authors are invited to address questions and issues arising from the specific area of law relating to their topic. All types of legal approaches will be considered for publication. However, please note that any analysis solely limited to a national legal system will fall outside the scope of the Journal. An international, supranational or transnational legal dimension is imperative. The Board of Editors will select articles based on quality of research and writing, diversity, and relevance of topic. The contributions from the Alumni of the Master programme are particularly welcomed. The novelty of the academic contribution is also an essential requirement.

Prospective articles should be submitted in the form of abstract (around 800 words) or draft articles (see below) to submissions.jlmi@iuse.it within August 31, 2021. Accepted authors will be notified within September 10, 2021. Final articles shall be delivered within December 10, 2021 and should conform to the journal style guide that is based on OSCOLA. Typically, the JLMI accepts contributions within the range of 10.000 to 15.000 words, including footnotes, but both shorter and longer articles will be considered. Pre-selected articles will be subject to single-blind peer review. For further information, or for consultation on a potential submission, you can contact us by email at editors.jlmi@iuse.it.

In 2015, the United Nations formulated 17 ambitious goals towards transforming our world – the Sustainable Development Goals (SDG 2030). Their relation to public international law has been studied, but private law has received less attention in this context and private international law none at all. Now renowned and upcoming scholars from multiple countries and disciplines analyze, for each of the 17 SDGs, what role private international law actually plays towards these goals and how private international law could, or should, be reformed to help achieve them. The resulting findings will be published in an open access volume with Intersentia  and presented in the framework of a Conference to be held on 9 to 11 September 2021 at the Max Planck Institute for Comparative and International Private Law in Hamburg.

The Conference will take place in a hybrid format, i.e. both at the Max Planck Institute for Comparative and International Private Law in Hamburg and virtually via Zoom. English-Spanish and Spanish-English simultaneous translation for the Conference will be provided by professional interpreters.

The Conference Program and further information can be found via this LINK.

Please register for participation at the Conference via Zoom HERE.

 

 

 

 

 

Conventions & Instruments

On 23 July 2021, New Zealand deposited its instrument of ratification of the HCCH 2007 Child Support Convention. With the ratification of New Zealand, 42 states and the European Union are bound by the Child Support Convention. It will enter into force for New Zealand on 1 November 2021. More information is available here.

On 1 August 2021, the HCCH 1996 Child Protection Convention entered into force for Costa Rica. It currently has 53 Contracting Parties. More information is available here.

Meetings & Events

As of 3 August 2021, registration for the 12th International Forum on the electronic Apostille Programme (e-APP) is open to the general public. The event will be hosted online on 4 October 2021. The deadline for registration is Friday, 10 September 2021, 5.00 p.m. CEST. More information is available here.

On 9 August 2021, the HCCH and the Inter-American Commission on Human Rights of the Organization of American States co-hosted a webinar on international child abduction.

On 19 August 2021, the HCCH, the Council of ASEAN Chief Justices and the Malaysian Judiciary co-hosted a virtual HCCH-ASEAN Masterclass. More information is available here.

Other

Vacancy: Applications are now open for three- to six-month legal internships from January to June 2022. The deadline for the submission of applications is 24 September 2021 (18:00 CEST). More information is available here.

Reminder: Submissions for the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition are due on 1 October 2021. The competitions are organised as part of the Advancing and Promoting the Protection of All Children (Approach) Initiative, launched in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. 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.

 The second issue of 2021 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) has been released. It features:

Christian Kohler, Honorary Professor at the University of Saarland, Limiting European Integration through Constitutional Law? Recent Decisions of the German Bundesverfassungsgericht and their Impact on Private International Law (in English)

• On May 5, 2020 the Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) in Germany ruled that the Public Sector Purchase Programme (“PSPP”) of the European Central Bank (ECB) as well as the judgment of the Court of Justice of the European Union (CJEU) in case C-493/17 were “ultra vires” because they exceeded the competences conferred on these institutions. Both the PSPP and the CJEU’s judgments were thus without effect in Germany. In order to assess the judgment of the BVerfG and to measure the ensuing conflict, a look at its case-law in matters of European integration is indispensable. In seminal judgments relating to the ratification of the Maastricht treaty (1993) and the treaty of Lisbon (2009), the Constitutional Court had previously explained its approach toward the European Union as being a confederation sui generis of sovereign states governed by the principle of conferral, and that any action of the German institutions relating to the European integration has to respect a twofold limitation: it has to remain within the limits of the competences conferred by the treaties, and it has to safeguard Germany’s “constitutional identity” as enshrined in the Basic Law. Any act taken in violation of these limits may be declared void by the Constitutional Court. The control exercised by the BVerfG has been further extended by a ruling of February 13, 2020: the Court held that the German law authorizing the ratification of the Agreement on a Unified Patent Court (UPC) was void as it had not been adopted by a majority of two thirds by the Bundestag and the Bundesrat as required by the Basic Law. This implies that from now on the Court will control not only the material but also the formal validity of an act relating to the European integration. Both the “Lisbon” judgment and the UPC ruling have implications for European private international law. Whereas these implications are well defined in the “Lisbon” judgment they are less visible but nevertheless present in the ruling of February 13, 2020.

Fabrizio Marongiu Buonaiuti, Professor at the University of Macerata, Il rinvio della legge italiana di riforma del diritto internazionale privato alle convenzioni internazionali, tra adeguamento al mutato contesto normativo e strumentalita` alla tutela dei valori ispiratori (The Reference to International Conventions Made in the Law Reforming the Italian System of Private International Law: Between Adaptation to the Changed Normative Context and Instrumentality to the Protection of the Underlying Principles)

• A salient feature of the law providing for the reform of the Italian system of private international law (Law No. 218 of 31 May 1995) consists of the references it embodies to some private international law conventions for the purposes of relying on their rules in order to regulate issues not falling within their scope of application, consistently with the regime contained in the relevant convention. This article discusses the fate of those references, as a consequence of the fact that most of the conventions referred to have in the meantime been replaced by EU regulations, when not by subsequent conventions. While just one of the said references, that embodied under Article 45 of the said law, concerning the law applicable to maintenance obligations, has been updated so far by the Italian legislature, the author proposes that, as a matter of consistent interpretation, the other references made by the same law should be held as directed to the new instruments having replaced the conventions existing at the time the law was passed. As argued in the final part of the article, the proposed solution is also conducive to a more effective achievement of the objectives pursued already by the conventions initially referred to.

Zeno Crespi Reghizzi, Professor at the University of Milan, La “presa in considerazione” di norme straniere di applicazione necessaria nel regolamento Roma I (‘Considering’ Foreign Overriding Mandatory Provisions under the Rome I Regulation)

• In its Nikiforidis judgment of 2016, the Court of Justice of the European Union ruled that the limits set by Article 9(3) of the Rome I Regulation to the effects of foreign rules of mandatory application concern only their ‘application’ in the international private law sense, not also their ‘taking into account’ by substantive rules of the lex contractus. The present article discusses the reasons for this interpretative solution and highlights the need to specify its scope in order to preserve the Regulation’s systemic coherence.

The following comment is also featured:

Rebekka Monico, Research fellow at the University of Insubria, La disciplina europea sul Geo-blocking e il diritto internazionale privato e processuale (The EU Geo-Blocking Regulation and Private International and Procedural Law)

• This article analyses the relationship between Regulation (EU) No 2018/302 on the prohibition of geo-blocking practices which are not justified on objective grounds and the rules of private international law contained in the Brussels I-bis, the Rome I and the Rome II Regulations. In this respect, Article 1(6) of Regulation (EU) 2018/302 contains, in addition to a safeguard clause of the Union law concerning judicial cooperation in civil matters, the clarification that the mere fact that the trader complies with the prohibitions imposed by the Geo-blocking Regulation does not imply that he intentionally directs his activity towards the Member State of the consumer pursuant to Articles 17(1)(c) and 6(1)(b) of the Brussels I-bis and the Rome I Regulations, respectively. Although this clarification is consistent with the Pammer, Mühlleitner, Emrek and Hobohm judgments, the Author endorses a new interpretation of the directed-activity criterion by the Court of Justice of the European Union which would protect consumers and, at the same time, provide greater legal certainty for traders.

In addition to the foregoing, this issue features the following book review by Cristina M. Mariottini, Senior Research Fellow at the Max Planck Institute Luxembourg: Julia HÖRNLE, Internet Jurisdiction: Law and Practice, Oxford University Press, New York, 2021, pp. vii-485.

On 3 and 4 September 2021 the international conference “Diversity of Enforcement titles in Cross-border debt Collection in the EU” will take place in hybrid mode – online and onsite in Maribor, Slovenia. The conference will feature speeches from several distinguished experts including Judge at the Court of Justice of the European Union Marko Ilesic as a keynote speaker.

The conference is organised by the University of Maribor, Faculty of Law within the framework of the EU Justice project “Diversity of Enforcement titles in cross-border debt collection in the EU – EU-En4s“, which is a consortium of 16 partners from 12 EU Member States and a third State. Registration is free of charge and available here.

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

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

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

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

On 17 September 2021 the conference ‘Taking Stock: International Commercial Courts in Europe and Asia‘ will take place (hybrid, online/London). Reknown academic experts and practitioners will shed light on new developments, experiences, the interaction with arbitration, and global challenges.

In recent years, International Commercial Courts have been established across Europe and in Asia. Now that these courts have been dealing with international cases for a while, it is time to take stock and look at various questions: the reasons behind the recent proliferation of these courts and their international features in terms of court language, judicial composition, parties and disputes; the perspectives of court users and judges on key features of these courts, their suitability for specific kinds of disputes and the handling of international commercial disputes in practice; the interface between International Commercial Courts and arbitration, in particular in jurisdictions with well-developed arbitration centres; and the ever more important question how these courts deal with global challenges such as Covid 19, Digitalisation & AI.

The conference is co-organized by BICCL, Erasmus University Rotterdam (ERC project team Building EU Civil Justice) and the University of Lausanne. The conference takes place in a hybrid format, online and in London (limited places). You can register through the website of BIICL.

More information and the program available here.