Conflictoflaws

 

Written by Richard Mike Mlambe, Attorney and Lecturer at University of Malawi- The Polytechnic

This is the third online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomics.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, and second symposium was published by Anthony Kennedy. More blog posts on this online symposium will follow this week.

Introduction

The Nigerian private international law (hereinafter PIL) regime is significantly influenced by the common law. As a result, the common law plays a major role in providing the applicable rules on the recognition and enforcement of foreign judgments.[1] Like in many other common law jurisdictions, Nigerian courts recognize and enforce foreign judgments only if, in the eyes of Nigerian PIL, the foreign court had jurisdiction to render the judgment in question.[2] The recognized bases of jurisdiction are submission, residence and presence of the defendant within the foreign country.[3] This is also the position in other common law countries such as South Africa[4], Australia[6]and Malawi.[7]

As a result of the foregoing, Nigerian courts would refuse to recognize and enforce a judgment of a foreign court where the defendant was not present/resident in the foreign country and did not submit to its jurisdiction.[8] It must be emphasized that once the court finds that none of the above grounds is established, then the foreign court is deemed not to have possessed jurisdiction regardless of any connection that the parties or the transaction in issue may have had with the foreign country.

 

Nigerian and Canadian PIL

Okoli and Oppong have observed as follows:

“It is open to question whether the existing recognised bases of international competence – residence, presence, and submission – are adequate for the current international climate of increased trade, movement of persons, and transnational relationships. From a comparative perspective, Canadian courts have applied the real and substantial connection test. This basis   requires that a significant connection exist between the cause of action and the foreign court. Such a connection could include the fact that the cause of action arose in the jurisdiction of the foreign court, or that jurisdiction was the place in which the contractual obligation was to be performed. The ‘real and substantial connection’ test has not found favour outside Canada, and the test has been the subject of academic criticism.”[9]

Under Canadian PIL, the traditional common law principles are recognized such that a foreign court will be deemed to have jurisdiction if the defendant submitted to the jurisdiction of that court[10] or where the defendant was resident[11] or present[12] in the territory of the foreign court. In addition to these bases, the foreign court’s jurisdiction will be recognized where there was a real and substantial connection between the matter and the foreign court.[13] The real and substantial connection test entails that a Canadian court can recognize and enforce a foreign judgment that was delivered in circumstances where the defendant was not physically present in the jurisdiction when served with the originating process, as long as a real and substantial connection between the case or the parties and that foreign jurisdiction exists. This is therefore an additional ground of jurisdiction to the traditional common law grounds obtaining in Nigeria and other common law jurisdictions.

While Nigerian courts insist on the physical presence/residence of the defendant in the foreign territory[14]Canadian courts will go further to determine if there was a real and substantial connection between the matter and the foreign forum. This paper discusses the differences in the two approaches in view of their impact on the interests of justice between the parties, and suggest, with reasons, that Nigeria and the rest of the common law should derive lessons from Canadian PIL.

 

Discussion

This paper acknowledges that the requirement of presence of the defendant in the territory of the foreign court at the time of service ensures that the proceedings are conducted in accordance with the principles of natural justice. If the defendant was not present, the necessary originating processes may fail to reach him, or at least in good time, so as to have sufficient time to defend his case.[15]

However, the fact that in Nigerian a court may be satisfied that the foreign court had jurisdiction merely by virtue of the defendant’s presence therein, without more, is not satisfactory. Firstly, such an approach enables recognition of a foreign judgment that was rendered by a court that was not connected, or at least sufficiently connected, to the case, and therefore an inappropriate court. As a result, the international jurisdiction of a court that has no connection at all with the case or the parties would be established simply because the defendant happens to have been present within that country, no matter how brief the stay may have been in that country. This may encourage forum shopping.[16] The plaintiff may deliberately institute proceedings in a court that is not connected to the case and therefore inappropriate, knowing that the resulting judgment will be accorded recognition and enforcement in Nigeria. Actually, it is this paper’s view that if this is to be followed to its ultimate logical conclusion, then any country in the world has jurisdiction to render a judgment capable of recognition in Nigeria and other common law countries as long as the originating process was served on the defendant within its territory regardless of how little, if any, is that jurisdiction’s connection to the case.[17] We do not believe that such a result is consistent with the ends of justice.[18]

 

Secondly, the insistency on the presence of the defendant in the foreign court practically means that an unscrupulous defendant is at liberty, at the first hint of a dispute, to prevent the plaintiff from getting a judgment capable of recognition in England merely by leaving the natural and appropriate jurisdiction in which the plaintiff may institute proceedings against him. Much as the plaintiff may still initiate the proceedings against the defendant and service be effected in accordance with the procedure for service out of jurisdiction, this paper’s view is that as long as the plaintiff would be unable to secure recognition and enforcement of that judgment on the ground of the defendant’s absence from the jurisdiction, the plaintiff’s right to access to justice and legal remedies would be infringed.[19]

Actually, in our view, the injustice occasioned by the insistence on the presence of the defendant as a necessary and sufficient condition as far as jurisdiction is concerned, may be suffered not only by the plaintiff but also by the defendant. The plaintiff, as stated in the preceding paragraph, may be unable to enforce a judgment that was obtained in a country that is very appropriate forum as long as the defendant was not present, notwithstanding his right to access to justice and effective remedies.[20] On the part of the defendant, a Nigerian court may recognize and enforce a foreign judgment rendered by a court that was not in any material way connected to the case.[21] It is our view that considerations such as these necessitate a revision in the common law approach to presence as a ground of jurisdiction for purposes of recognition and enforcement of foreign judgments.[22]

Under Canadian PIL, a foreign judgment will be enforced against a defendant who was not present within the territory of the foreign forum provided that there was a real and substantial connection between the matter and the forum.[23] Further, it must be noted that the Canadian court will ensure that the rights of the defendant were protected and that the proceedings were conducted in accordance with the principles of natural justice.[24] Put precisely, the courts will require the judgment creditor[25] to satisfy them that the defendant was aware of the proceedings against him through proof of service. The real and substantial connection test therefore enables the plaintiff to have the judgment enforced in circumstances where the court properly exercised jurisdiction even if service was not effected on the defendant within the foreign court’s territory. In this case, the plaintiff’s fundamental right to access to justice and legal remedies as well as the defendant’s right to be duly served with the originating process and to have sufficient time to defend his case are both served.[26]

There are two points that need to be made here. Firstly, under Nigerian PIL, provision is made for service outside jurisdiction if the defendant is not present within the jurisdiction and the case is sufficiently connected with Nigeria and it is the appropriate forum for hearing the case.[27] It can be argued, therefore, that if Nigerian law recognizes that there are circumstances under which courts can properly exercise jurisdiction against a defendant who is not within the jurisdiction and was actually served out of jurisdiction with originating process, why should they not accept that other courts can also exercise jurisdiction under the same circumstances and therefore be able to recognize and enforce judgments rendered by foreign courts under similar circumstances?[28]

Secondly, it must be stated that Nigerian courts are able to decline jurisdiction, when called upon to hear a case, if upon considering all relevant factors, they form the view that another forum exists with jurisdiction and is the more appropriate forum.[29] However, when a judgment is brought for recognition in Nigeria, Nigerian courts would not examine the appropriateness of the foreign court and would recognize that judgment even if the case was not in any way connected to that jurisdiction as long as the defendant’s presence is established. Why should the Nigerian courts, and indeed the courts in other common law jurisdictions, be able to recognize that jurisdiction should be exercised when it is appropriate to do so in the interest of justice when they are asked to hear a case, and then take a very different approach when it comes to recognition of foreign judgments so that they end up recognizing judgments rendered by forums that would be deemed appropriate?[30]

It is submitted that refusal to recognize and enforce foreign judgments by common law courts on the basis of the defendant’s absence from the foreign court, even when the matter was sufficiently connected to that foreign court, is an affront to the ends of justice in international litigation and is not in accordance with the realities of international commercial life. The approach of the Canadian courts through the adoption of the ‘real and substantial connection’ test is commendable. This paper laments that Nigeria and other common law jurisdictions have not joined Canada in this positive direction. An opportunity arose in Malawi, another common law jurisdiction, to modernize her international civil procedure when the Courts (High Court) (Civil Procedure) Rules (2017) were enacted. There is no provision at all with regard to recognition and enforcement of foreign judgments, which leaves the common law regime unchanged. One can only express regret at this missed opportunity.

 

Conclusion

It has been seen that presence of the defendant in the foreign jurisdiction is a basis of jurisdiction of the foreign court for a judgment rendered by that court to be recognized and enforced in Nigeria. In Canada, it is also a recognized basis of the jurisdiction of the foreign court but a foreign judgment may be recognized even when the defendant was not present in the foreign country as long as a real and substantial connection exists between the matter and the foreign jurisdiction.

This paper is of the view that the insistence of the common law on the presence of the defendant in the foreign country leads to injustices in circumstances where recognition is accorded to a judgment having been delivered in a foreign forum that was not appropriate, on one hand, or when a foreign judgment is refused recognition where it was rendered by an appropriate court merely on the basis of the defendant’s absence from the foreign jurisdiction, on the other hand. It is therefore submitted that Nigeria and the rest of the common law should join Canada in applying and developing a test that prevents presence or absence of a defendant from undermining the ends of justice in international litigation and, in particular, in the recognition and enforcement of foreign judgments.

[1] See Richard Frimpong Oppong Private International Law in Commonwealth Africa (Cambridge University Press) 2013 p. 313.

[2] Nigeria law has both a statutory and common law regime for the enforcement of foreign judgments. In this paper, the focus is exclusively on the common law regime. Further, this paper focuses on jurisdiction as a condition of the recognition and enforcement of the foreign judgment and the other conditions (such as finality of the foreign judgment) are not addressed.

[3] Oppong (n1 ) 320.

[4] Richman vBen Tovim, SCA [2006] 148, [2007] (2) SA 283

[5] Burham vSuperior Court of California, 495 US 604; and Born, Rutledge and Kluwer International Civil Litigation in United States Courts (2011) 1120.

[6] Herman vMeallin (1891) 8 WN (NSW) 38.

[7] Malawi also has both a statutory and common law regime for the recognition and enforcement of foreign judgments.

[8] Submission is established either through choice of forum agreements or where he defendant pleads to the merits of the case without contesting jurisdiction which the court otherwise did not have.

[9] Chukwuma Samuel Adesina Okoli and Richard Fimpong Oppong Private International Law in Nigeria (Bloomsbury publishing) 2020 p 353.

[10] Richardson v Allen (1916), 28 D.L.R. 134 (Alta S.C. (A.D.))

[11] First Hawaiian Bank v Smith, [1999] A.J. No. 643, 245 A.R. 148 (Alta Q.B.).

[12] Royal Bank of Canada v Industmarine Ltd., [1982] B.C.J. No. 2365. The constitutionality of mere presence as a ground of jurisdiction is however a controversial issue in Canada.

[13] Morguard Investment Ltd v De Savoye, [1990] S.C.J, No.135, 76 D.L.R. (4th) 256 (S.C.C.). This is a landmark and revolutionary decision that marked a departure from the refusal of recognition of foreign judgments if the defendant was absent from the jurisdiction of the court that delivered the judgment. The court felt that time had come to take a different approach to recognition and enforcement of foreign judgments. Indeed the principles laid down in this case have been confirmed in the subsequent case law of the Supreme Court of Canada, most notably, in Beals v Saldanha (2003) 3 SCR 416.

[14] Assuming that the defendant did not submit to the jurisdiction of the foreign court

[15] See Castel Conflict of Laws Cases, Notes and Materials (1968) 956 where the author actually states that the question of whether a court should have jurisdiction to entertain actions against absent defendants and give judgments which though effective territorially can be recognized in other jurisdictions is a policy issue not for the courts, thereby suggesting (it is submitted) that the court should be slow to render recognition to such judgments except where by legislation they are empowered to do so.

[16] See Tilbury, Davies an Opeskin Conflict of Laws in Australia (2002) 139 where the learned authors write: “A party engages in forum shopping when it seeks to litigate its case in a forum has little genuine connection with the court or the parties. Both plaintiff and defendant may influence the forum in which a case is tried, but the plaintiff is usually better able to do so”.

[17] See Collins (ed) Dicey, Morris and Collins on the Conflict of Laws (2012) 693 who seem to justify mere presence as a ground of jurisdiction on the basis of the temporary allegiance owed by the defendant to the local sovereign.

[18] See Ehrenzweig The Transient Rule of Personal Jurisdiction; The “Power” Myth and Forum Conveniens in Jurisdiction and Private International Law (2014) 565.

[19] It is therefore respectfully submitted that this may amount to a denial of the right to legal remedies and redress by preventing the plaintiff from enforcing the judgment. See generally Grosvenor Casinos Ltd v Ghassan Halaoui (2009 ) 10 NWLR 309.

[20] See TC Hartley International Commercial Litigation Texts, Cases and Materials in Private International Law (2015) 406. The learned author states that actually as far as English courts are concerned, if the defendant was absent from the jurisdiction in question, the fact that a contract was breached in that foreign country or that the tort was committed there does not suffice to confer jurisdiction on the foreign court.

[21] This means that the plaintiff may benefit from his forum shopping.

[22] Indeed the consideration of the injustices occasioned by the traditional common law principles convinced the Supreme Court of Canada to adopt the real and substantial connection test.

[23] See n 13.

[24] If the plaintiff fails to show that the principles of natural justice were adhered to the court will refuse recognition of the foreign judgment.

[25] Usually the plaintiff

[26] It is the submission of this paper that this is the approach that is in accord with the nature of private international law because it is based on the recognition that the parties will not always be physically present in the same jurisdiction when causes of action arise between them. The real and substantial connection test, in the view of this paper, is a recognition of this reality.

[27] See, for example, High Court of Kaduna State (Civil Procedure) Rules 2007, Ord. 8, r. 1)

[28] In other words, why should Nigerian court be able to exercise jurisdiction when they are not ready to recognize the judgments rendered by foreign courts under the same circumstances?

[29] The doctrine of forum non conveniens. On this doctrine in general see Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460.

[30] In other words, why should the Nigerian court recognize that there are circumstances under which they may not be the appropriate forum for the trial of certain cases and decline to do so, and fail to recognize that the same may be the case in other jurisdictions and only regard mere physical presence of the defendant in the foreign territory as conclusive, no matter how improper the exercise of jurisdiction may have been in the foreign court?

 

The Minerva Center for Human Rights at Tel Aviv University will host an  international socio-legal (zoom-) workshop on 22-23 June 2021 to explore the impact of the Covid-19 crisis and its regulation on cross-border families:

Cross-border families (also known as transnational and globordered families) are a growing and diverse phenomenon. People around the globe create bi-national spousal relations, are assisted by cross-border reproduction services, or by a migrant care worker who provides care for a dependent family member. Likewise, families become cross-bordered when one of the parents relocates, with or without the child, or when a parent abducts the child. In addition, increasing rates of forced or voluntary migration create more and more cross-border families, with different characteristics and needs. While some kinds of cross-border families have attracted the attention of legal scholarship, other kinds are still neglected, and much is yet to be studied and discussed regarding the challenges embedded in the attempt to secure the right to family life in the age of globalization.

The global Covid-19 crisis provides more, and alarming, evidence of the socio-legal vulnerabilities of cross-border families. For example, bi-national couples are separated for long periods of time; intended parents are unable to collect their baby from the country of the surrogate; and families assisted by a migrant care worker, the workers, and their left behind families, are entangled in new complex relations of power and dependency. Likewise, the right to heath is at risk when a family member is denied treatment because of partial citizenship status, and questions such as the enforcement of child support across borders are even harder to address than in more peaceful times.

Crises, such as the Covid-19 pandemic, are often a methodological opportunity for socio-legal research. In many cases, a major social crisis shakes habitualization, and opens up taken for granted social scripts to individual and collective reflection. Likewise, such a crisis involves risk regulation and, in the current case, also plague governance—involving intense emergency regulative changes made by different nation-states that might both reveal and challenge deeply shared norms regarding familial rights and national interests. Hence, our current era lends itself more readily than stable, routinized periods to the investigation of current regulation, and the imagining of options for new regulation regarding cross-border families.

On 22-23 June 2021, we plan an international socio-legal workshop that will explore the impact of the Covid-19 crisis and its regulation on cross-border families. We hope to explore the ways Covid-19 restrictions affect cross-border families, and the role of the law, in different countries, in shaping this impact and in challenging it.

The questions during the workshop might include, but are not limited to:

• How does the Covid-19 crisis affect cross-border families?
• How do legal Covid-19 restrictions affect cross-border families?
• Did national jurisdictions adapted their substantial and procedural laws to meet the challenges faced by cross-border families during the pandemic?
• What can be learned from comparing different jurisdictions in their response to cross-border families’ needs during the pandemic?
• What can be learned about the interrelations between globalization, borders, families, and the law, from this crisis?
• What are the lessons to be learned from the pandemic on how can national, regional and international law be developed to better protect the rights of cross-border families, and those involved in their creation and everyday familial doing, in times of crisis and in more stable times?

Confirmed Keynote Speaker: Prof. Yuko Nishitani, Kyoto Univiertys Law School

The workshop will be conducted via Zoom, and is sponsored by the Minerva Center for Human Rights at Tel Aviv University. It will be open to the public, and hopefully, will set the foundations for further multinational research and collaboration.

We will give serious consideration to all high-quality relevant research, from any discipline. Work in progress is welcome, as long as the presentation holds new findings or insights and not only declaration of intent. Faculty members as well as independent researchers and advanced research students are welcome to submit.

The screening process for the workshop will include two phases:

Phase I – Abstract: 

Abstracts should include:

• An overview of the main question and arguments of your contribution (up to 500 words)
• Key words
• Contact details [author(s), affiliation (including institute and department), and e-mail address]
• Short bio of author/s (up to 250 words, each)

Abstracts must be in English and be submitted to this email address: eynatm@media-authority.com

Deadline for submission: 28 February 2021.

Phase II – Summary:

Those who’s abstract will be accepted, will be notified by 31 March 2021 and will be asked to submit a 3-pages summary of their paper by 20 April 2021. Accepted papers will be presented at the workshop. Presenters are expected to take part in all the workshop’s sessions.

Academic Organizers:

Prof. Daphna Hacker, Law Faculty and Gender Studies Program, Tel Aviv University; Prof. Paul Beaumont, Law Faculty, University of Stirling; Prof. Katharina Boele-Woelki, Bucerius Law School, Hamburg; Prof. Sylvie Fogiel-Bijaoui, The College of Management Academic Studies; Dr. Imen Gallala-Arndt, Max Planck Institute for Social Anthropology; Dr. Sharon Shakargy, Faculty of Law, Hebrew University; Prof. Zvi Triger, Law School, The College of Management Academic Studies

On 18 and 19 March 2021, the third German Conference for Young Private International Law Scholars will be held at the Max Planck Institute for Comparative and International Private Law in Hamburg (via Zoom). The conference is dedicated to the question “PIL for a better world: Vision – Reality – Aberration?” The programme, as well as further information on how to register, can be found here. Twitter: @IPR_Nachwuchs

 

Written by Anthony Kennedy, Barrister at Serle Court

This is the second online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomicslaw.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong. More blog posts on this online symposium will follow this week.

Introduction

Authority exists for the proposition that a creditor of a foreign judgment may bring an action at common law in Nigeria, by which action he, in effect, seeks recognition and/or “enforcement” of that foreign judgment[1]. The common law action has not been abolished by statute or disapproved judicially but, sadly, it is not widely understood or used by practitioners/courts in Nigeria. This is unfortunate, especially where the statutory mechanism[2] for the enforcement of foreign judgments is certainly limited but otherwise shrouded in confusion[3]. This paper argues for a reawakening of the common law action.

 

The construction placed on the statutory regime

It is impossible properly to assess the scope for the common law action in Nigeria without first addressing the statutory mechanism for the enforcement of foreign judgments. The common law action only works in the space which has been left for it by the applicable statutory regime. Moreover, tactically, judgment creditors are likely to favour registration of the foreign judgment  under that statutory regime, where such registration is permitted, given the “better protection” which such regime affords them, at least theoretically, when compared with the common law[4].

With that in mind, the authorities yield the following propositions:

1. the Reciprocal Enforcement of Foreign Judgments Ordinance 1922 (the ‘1922 Ordinance’) is still in force and applies to those jurisdictions to which it was extended by Proclamation prior to the passing of the Foreign Judgments (Reciprocal Enforcement) Act 1961[5] (the ‘1961 Act’);

 

2. the provisions of the 1961 Act only come into effect upon the making of an order by the Minister of Justice (pursuant to Section 3 of the 1961 Act)[6] and no such order has yet been made; but

 

3. notwithstanding proposition 2, Section 10(a) of the 1961 Act does have effect, thereby providing the time limit within which the application to register a foreign judgment in Nigeria must be made[7]. Moreover, Section 10(a) of the 1961 Act applies even where the foreign judgment is from a jurisdiction to which neither the 1922 Ordinance nor the 1961 Act has been extended[8].

 

Difficulties generated by the legal profession’s approach to proposition 1

Proposition 1 holds, it is submitted, and, of itself, generates no difficulty for the continued existence and/or growth of the common law action. That said, the legal profession’s approach (and that of the courts) to proposition 1 has been problematic.

Two points are worth making here; both are demonstrative of problems which beset the current state of the law. First, insufficient attention has been paid to the consequence of proposition 1, meaning that its import has not been fully understood. This may, of course, be the result of practitioners and judges concentrating on establishing and endorsing proposition 1 (which process is still ongoing, given the difficult relationship between proposition 1 and proposition 3[9]). Even so, difficulty remains. By way of example: Section 3(1) of the 1922 Ordinance provides that an application for registration be made “at any time within twelve months after the date of the judgment, or such longer period as may be allowed by the court…” (italics added). Where one would have expected argument as to why the court should have, in the legitimate exercise of its discretion, extended the time within which the application could be made, one finds none[10]. A chance to establish when a judgment creditor might appeal to the court’s discretion[11], and, correlatively, when he might have to fall back on the common law action, has been missed.

The second point follows from the first. While, as noted, tactically less advantageous than registration under the statutory regime, Section 3(4) of the 1922 Ordinance allows a judgment creditor to bring an action at common law on the foreign judgment, rather than have it registered under the 1922 Ordinance itself[12]. In circumstances where courts have not heard substantial argument on the Section 3(1) discretion and/or have exhibited a hostile attitude towards extending the time within which to make the application for registration[13], one would have expected a much greater role carved out for the common law action; one remains disappointed. And doubly so because, while not free from all controversy[14], the common law action may be brought within a longer period of time than the 1922 Ordinance permits (if one discounts the fact that the court may, at its discretion, extend time thereunder). At a stroke – so long as the judgment debtor could demonstrate that the other requirements had been met[15] – reliance on the common law action would remove the judgment creditor’s need to act as swiftly as the 1922 Ordinance has been made to require[16].

 

Difficulties generated directly by proposition 3

The language in which Section 10(a) of the 1961 Act is couched gives rise to similar problems as those described when dealing with the first point under the previous sub-heading. Leaving those to the side, it is the second sentence of proposition 3 which poses the most significant risk to the continued life (such as it is) of the common law action in Nigeria. If “registration” is contemplated (or somehow required) when dealing with judgments from jurisdictions to which the statutory regime has not been extended, the common law action (which has nothing at all to do with “registration” of a foreign judgment) is rendered completely useless[17].

Several cases may be cited which combine to paint a rather gloomy picture in this regard. Teleglobe America Inc v 21st Century Technologies[18]is, as far as one can tell, the judiciary’s first (and so most egregious) brushstroke but others have since been added[19]. Taken collectively, they suggest that there is no room left for the common law action, even though there is Supreme Court authority which suggests that the statutory regime was not designed to kill it off.

To be sure, the statutory regime, properly construed, applies only to foreign judgments from a narrow field of jurisdictions. If this is thought to be a problem, the answer does not lie, it is submitted, in a distorted interpretation and application of that statutory regime. Supplementing (a narrow) statutory regime by allowing a judgment creditor to resort to the common law action makes sense: it recognises that the necessary reciprocity which underpins the statutory regime is absent in the majority of circumstances while, at the same time, preserving the judgment creditor’s ability to obtain the debt which the judgment debtor is said to owe, at least in circumstances where Nigerian legal policy (as set out in the rules which govern the common law action) thinks that he should. Judgments which treat this idea with kindness, or at least do not dismiss it out of hand, are to be welcomed[20].

 

 

Difficulties generated indirectly by proposition 3

If proposition 3’s formulation is the product of perceived problems either with the statutory regime or the common law action itself, that is most unfortunate. For, rather than alleviating those problems, proposition 3 rather ensures that they will continue, at least until action on the part of the legislator (which action appears to be some way off).

Removing the common law action from view means that the rules which govern that common law action cannot be changed by the judiciary (which change might allow certain kinks within those rules to be ironed out). To be sure, the common law world has not stood still in relation to the enforcement of foreign judgments: interesting questions remain to be explored. For instance, there is ongoing debate as to the circumstances in which a foreign court should be accorded international jurisdiction over the judgment debtor[21] and different views have been expressed regarding whether the common law may be used to enforce judgments from supra-national tribunals[22]. Consideration of these questions in Nigeria has been stymied by the side-lining of the common law action.

Perhaps even more importantly, with an eye to the future, deliberately obscuring the common law action prevents one from taking a clear view of the current Nigerian legal system, insofar as it relates to the enforcement of foreign judgments, and so, in turn, prevents an assessment of the merits of signing up to international projects, like the recent (and still draft) Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The answer to such questions is of supreme importance if Nigeria wishes to attract (legal) business from the continent as a whole. Those answers must be reached using all of the information available, which is why the common law action must somehow be revived.

 

 

 

 

 

 

[1]Alfred C Toepfer Inc v Edokpolor (1965) NCLR 89. More recently, see: Wilbros West Africa v Mcdonnel Contract Mining Ltd (2015) All FWLR 310.

[2] The overarching statutory regime for enforcement of foreign judgments comprises the Reciprocal Enforcement of Foreign Judgments Ordinance 1922 and the Foreign Judgments (Reciprocal Enforcement) Act 1961.

[3] Olawoyin, Enforcement of Foreign Judgments in Nigeria: Statutory Dualism and Disharmony of Law (2014) 10 JIPL 129, 140.

[4]CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, 2020) 360.

[5]Macaulay v RZB of Austria (2003) 18 NWLR 282.

[6]Marine & General Assurance Company Plc v Overseas Union Insurance Ltd (2006) 4 NWLR 622; Grosvenor Casinos Ltd v Ghassan Halaoui (2009) 10 NWLR 309.

[7]Witt & Busch Ltd v Dale Power Systems PLC (2007) 17 NWLR 1.

[8]Teleglobe America Inc v 21st Century Technologies Ltd (2008) 17 NWLR 108.

[9]VAB Petroleum Inc v Momah (2013) 14 NWLR 284.

[10] By way of example, see Macaulay, supra fn. 5, and Marine & General, supra fn. 6.

[11] For a recent example of when an English court might be likely to exercise a similar discretion, see: Berhad v Frazer-Nash Research Ltd[2018] EWHC 1848 (QB).

[12] Though, where he does so, he is subject to a costs penalty where the conditions in Section 3(4) of the 1922 Ordinance are not satisfied.

[13] See the cases cited supra fn. 10.

[14] Compare, for instance, the competing views of the proper period of limitation as expressed by Olaniyan, The Commonwealth model and conundrum in the enforcement of foreign judgement regime in Nigeria, (2014) Commonwealth Law Bulletin, 40:1, 76, 88 (who seemingly advocates a standard 12 year time limit) and Okoli and Frimpong Oppong “Private International Law in Nigeria”(Hart Publishing, 2020), at 358-359 (who state that it depends on the state of Nigeria in which the action is brought).

[15] As to which, see Okoli and Frimpong Oppong, supra fn. 14 at 351-358.

[16]In this respect, Ogbuagbu JSC’s judgment in Grosvenor, supra fn. 6, at 334-335 is particularly disappointing. See: Okoli and Frimpong Oppong, supra fn. 14, at 373.

[17] See, to similar effect, Olaniyan, supra fn. 14, 88.

[18]Supra fn. 8.

[19] See, inter alia, African Reinsurance Corp v Gilar Cosmetic Store (2010) All FWLR 1194 (concerning a judgment from Liberia) and Obasi v Mikson Establishment Industries Ltd (2016) 16 NWLR 335 (concerning a judgment from Niger).

[20]Wilbros, supra fn. 1. Even there, however, Counsel took great pains to say that this was not an attempt to enforce a foreign judgment and the reasoning of the court in relation to that submission is not always easy to understand.

[21] Compare the position adopted by the Supreme Court of Canada in (originally)Beals v Saldanha 2003 SCC 72 and (more recently) Club Resorts Ltd v Van Breda [2012] 1 SCR 572 with that of the English Supreme Court in Rubin v Eurofinance SA [2012] UKSC 46.

[22] Compare the decision of the South African Constitutional Court in Government of the Republic of Zimbabwe v Fick [2013] ZACC 22 with that of the Ghanaian Supreme Court in Republic v High Court (Commercial Division) Accra, ex parte AG NML Capital and Argentina, Civil Motion No J5/10/2013. For a Nigerian perspective, see: Adigun, Enforcing ECOWAS judgments in Nigeria through the Common Law Rule on the Enforcement of Foreign Judgments (2019) 15 JIPL 130.

In what appears to be a rather straightforward extension of the Court’s earlier decisions in Cases C-498/16 Schrems and C-208/18 Petruchová, the CJEU held last week in Case C-774/19 Personal Exchange that a natural person contracting with the operator of an online gambling service remains a consumer in the sense of Article 15 of Regulation 44/2001 (Brussels I; now Article 17 or Regulation 1215/2012 (Brussels Ia)) even if they use it for many hours a day and make their living from it.

The question was referred in the context of a dispute between a user and the operator of a gambling website, concerning the alleged violation of certain rules by the user and the subsequent deletion of their account by the operator. The user, who had been playing about 9 hours of online poker per weekday for several years and won considerable sums of money from it, had brought an action in Slovenia although the contract, which the user had agreed to upon registration on the website, contained an exclusive jurisdiction clause in favour of Malta. As the defendant had not disputed that the service had been directed to Slovenia in the sense of Article 15(1)(c) Brussels I, the validity of the jurisdiction clause under Article 17 Brussels I (now Article 19 Brussels Ia) depended entirely on whether or not the user could still be considered a consumer in the sense of Article 15.

Although the Court begins its answer by the usual emphasis on the exceptional character and the resulting need for a narrow interpretation of Articles 15–17 (para. 24) and on the need to look at the purpose of the contract in question (para. 31), the rest of the decision consists entirely of a discussion of whether the claimant may have lost (“peut se voir refuser”) the quality of a consumer for the different reasons invoked by the defendant. According to the Court, this was not the case, neither in light of the sums earned by the claimant (paras. 33–36; as already decided in Petruchová) nor in light of their expertise (paras. 37–40; as already decided in Schrems). While the Court acknowledges the need for a dynamic interpretation of Article 15 (paras. 41–42), by which a party entering into a contract as a consumer could theoretically lose this status at a later point in the contractual relationship, the need for predictability prevents the consideration of the aforementioned factors.

In what Geert van Calster rightly describes as a confusing reference to substantive consumer law, the Court then also discusses to what extent the frequency and volume of the activity must be taken into account (paras 43–49). Seemingly seeking to align its decision with the one in Case C-105/17 Kamenova, where this factors had been considered, the Court qualifies it by holding that the claimant consumer does not lose this quality as long as they do not offer their services as a poker player for remuneration or formally register them.

Written by Dr. Chukwuma Samuel Adesina Okoli, Post-Doctoral Researcher, T.M.C. Asser Institute and Dr. Richard Frimpong Oppong, Associate Professor, University of Bradford, School of Law

We earlier announced that the editors of Afronomicslaw.org invited Chukwuma and Richard to organise a symposium on Private International Law in Nigeria. The introduction to the symposium has now been published today in Afronomicslaw.org. Other posts on the symposium will be posted daily this week.

This Symposium focuses on the recent publication: Private International Law in Nigeria. For many, Nigeria needs no introduction: it is a federal country consisting of thirty-six states and the Federal Capital Territory, Abuja. With increased cross-border transactions and investments, the significance of private international law (or conflict of laws) – the body of law that aims to resolve claims involving foreign elements – has become more accentuated than ever. Indeed, private international law rules have sometimes been invoked in resolving disputes with inter-state dimensions within the federation, especially on jurisdiction and choice of law matters. Conflict of laws has also been used to resolve disputes involving internal conflicts between various customary laws and between customary laws and the Nigerian Constitution or enabling statues, especially in the area of family law. In essence, because of its federal structure, private international law is relevant in both the inter-state and international litigation in Nigeria.

Prior to the publication of Private International Law in Nigeria, there was no comprehensive treatise on the subject in Nigeria. The Book aims to fill that academic void: drawing on over five hundred Nigerian cases, statutes, and academic commentaries, the Book examines mainly jurisdiction (in inter-state and international disputes), choice of law, and the recognition and enforcement of foreign judgments and international arbitral awards. It also examines remedies that affect foreign judicial proceedings such as antisuit injunction, and international judicial assistance to serve legal process and take evidence.

This Symposium brings together the reflections of four scholars on the book and explores some of the issues arising therefrom. In the Book, we examine the common law regime for enforcing foreign judgments in Nigeria and reveal the under-developed state of the law. Anthony Kennedy, a barrister at Serle Court, focuses on this aspect of the book to forcefully argue for a “reawakening of the common law action” to enforce foreign judgments. Kennedy is critical, and rightly so, of how the legal profession and the courts have treated the common law regime notwithstanding clear authority from the Supreme Court of Nigeria that the statutory regime for enforcing foreign judgments was not designed to kill of the common law regime. Kennedy argues that by not side-lining the common law regime, Nigeria may be able to partake in the judicial development of the regime that is going on in other parts of the common law world, as well as international projects such as the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, 2019.

Richard Mike Mlambe, an Attorney and Lecturer at University of Malawi- The Polytechnic, picks up the theme of reform and judicial development of private international law, in a comparative discussion on the bases of jurisdiction in an action to enforce a foreign judgment. Mlambe commends Canada’s “real and substantial connection” basis of international competence. The real and substantial connection test promotes the liberal flow of judgments across borders. Mlambe calls on Nigeria and other common law jurisdictions to join Canada on its “lonely revolution”.

Dr Abubakri Yekini, a Lecturer in Law at Lagos State University, explores the enforceability of jurisdiction agreements in Nigeria drawing on the Book’s discussion which reveals, in the words of Yekini that “it is difficult to give a straight answer on whether jurisdiction agreements are enforced by Nigerian courts” – a state of affairs which he rightly argues creates uncertainties and is not good for international business transactions. Yekini examines three significant challenges to the enforcement of jurisdiction agreements in Nigeria, namely the courts’ mischaracterisation of such agreement as “ouster clauses”; mandatory statutes vesting exclusive jurisdiction in Nigeria courts; and the misapplication of the doctrine of forum non conveniens in cases involving breach of jurisdiction agreement, instead of the strong cause test. Yekini makes an impassioned plea for Nigerian courts to “promote party autonomy”, and a call on Nigeria to become party to the Convention on Choice of Court Agreements, 2005.

Orji Agwu Uka, a Senior Associate at Africa Law Practice (ALP), reflects on the state of private international law in Nigeria and calls for its wider study. Indeed, as Uka rightly acknowledges, for more than a decade, scholars have lamented the level of interest in private international law in Africa. Happily, private international law in Africa can hardly now be described as “the Cinderella subject seldom studied [and] little understood”. Uka undertakes a broad but careful review of the book – highlighting various topics examined in the book but focusing especially on the law on jurisdiction in international and inter-state matters. Uka commends Private International Law in Nigeria for filling a significant academic void on the Nigerian legal landscape.

It is our hope that the Book and this Symposium, in addition to being a rich legal resource for lawyers, judges and legislators would spur on further study of private international law in Nigeria, and Africa. Indeed, the Nigerian Group on Private International Law(“NGPIL”) has already been established and “set sail”. NGPIL aims to “(1) to improve the law in Nigeria in matters relating to private international law (“PIL”) (2) to persuade the Nigerian government to accede to the Hague Conventions on PIL (3) to liaise with other experts, groups, and research centres on PIL on a global level (4) to nurture, guide and develop the legal mechanism and framework for PIL in Nigeria (5) to be the collective voice of PIL experts for the Nigerian government, the judiciary, lawyers and other relevant stakeholders and, (6) to improve the links and communication between PIL experts in Africa”. The book: Private International Law in Nigeria will certainly make the work of NGPIL less daunting.

 

 

The following post has been written by Ennio Piovesani, PhD Candidate at the Universities of Turin and Cologne.

While negotiations for an agreement on the future partnership between the EU and the UK are pending, a spectre haunts Europe: reciprocity.

I. The Residual Role of the Requirement of Reciprocity

In some EU Member States, provisions of national-autonomous aliens law enshrine the requirement of reciprocity. Those provisions are largely superseded by exceptions established in international law, including international treaties (so-called “diplomatic reciprocity”). EU (primary and secondary) law establishes broad exceptions concerning EU citizens and legal persons based in the EU.

In the context of EU / UK relations, the Withdrawal Agreement relieves UK nationals and legal persons from the requirement of reciprocity in the EU Member States. However, the scope of the exception established by the Withdrawal Agreement is limited in (personal and temporal) scope. An agreement on the future partnership between the EU and the UK could establish “full reciprocity” (Cf. points 29 and 49 of the Political Declaration accompanying the Withdrawal Agreement). Instead, if new arrangements will not be made, at the end of the transition period, in cases not covered by the Withdrawal Agreement, the method of reciprocity might once more play a residual role in the context of the treatment of UK nationals and legal persons in some EU Member States.

II. German Case-Law on Reciprocity with the UK and Civil Procedure

The spectre of reciprocity, in relations with the UK, was evoked in three recent cases brought before the German courts. The three cases concern provisions of German-autonomous aliens law in the field of civil procedure, which enshrine the requirement of reciprocity.

1. § 110 ZPO (Security for Court Costs)

In particular, two of the mentioned cases concern § 110 ZPO. Pursuant to § 110(1) ZPO claimants not (habitually) residing in the EU (or in the EEA) must provide security for court costs (if the defendant requests so). § 110(2) ZPO provides exceptions to that duty. The claimant is relieved from the duty to provide security if an international treaty so provides (See § 110(2) no 1 ZPO) or if a treaty ensures the enforcement of the decision on court costs (see § 110(2) no 2 ZPO; see also the other exceptions listed in § 110(2), nos 3–5 ZPO).

In 2018 – before the UK’s withdrawal from the EU –, in a case brought before the Düsseldorf Regional Court, a German defendant sought a decision ordering the UK claimant to provide security under § 110 ZPO (Düsseldorf Regional Court, interim judgment of 27 Sept 2018 – 4c O 28/12). The Regional Court dismissed the defendant’s application, since (at that time) the UK was still an EU Member State. The German court thus shun an investigation as to “whether other international treaties might relieve the claimant from the obligation of providing security for costs after the [UK’s] withdrawal”.

Subsequently, in 2019 – after the UK’s withdrawal from the EU, during the transition period –, a German defendant sought from the Dortmund Regional Court a decision ordering the claimant seated in London to provide security under § 110 ZPO (Dortmund Regional Court, interim judgment of 15 July 2020 – 10 O 27/20). The Regional Court dismissed the defendant’s application, noting that – in the light of the legal fiction created by the Withdrawal Agreement – the UK must be considered as an EU Member State until the end of 2020. The German court – like the Düsseldorf Regional Court – shun an investigation as to whether treaties other than the Withdrawal Agreement relieve UK claimants – not habitually residing in the EU (or in the EEA) – from the duty of providing security under § 110 ZPO.

It appears that, apart from the Withdrawal Agreement, a treaty establishing diplomatic reciprocity for the purposes of § 110(2) no 1 ZPO does not exist yet (cf. ECJ, judgment 20 Mar 1997 – C-323/95).

2. § 917(2) ZPO (Writ for Pre-Judgment Seizure)

The third case brought before the German courts concerns § 917(2) ZPO. Pursuant to the first sentence of § 917(2) ZPO, a writ for pre-judgment seizure can be issued if the prospective judgment will have to be enforced abroad and if “reciprocity is not granted” (i.e. if an international treaty does not grant that the judgment will be eligible for enforcement in the given foreign country).

In 2019 – before the UK’s withdrawal from the EU –, in a case brought before the Frankfurt Higher Regional Court, a German claimant applied for a writ under § 917 ZPO against a UK defendant (Frankfurt Higher Regional Court, judgment of 3 May 2019 – 2 U 1/19). The Higher Regional Court noted that reciprocity under § 917(2) first period ZPO could have been lacking if, after the UK’s withdrawal from the EU, the Brussels Ia Regulation would have not been replaced by new arrangements granting the enforcement of (German) judgments in the UK. This notwithstanding, the German court decided not to issue the writ under § 917(2) first period ZPO, since failure to conclude new agreements replacing the Brussels Ia Regulation was (at that time) unlikely. In fact, the court pointed to the then ongoing negotiations between the EU and UK, namely to Art. 67(II) of the draft Withdrawal Agreement (today’s Art. 67(1)(a) Withdrawal Agreement), providing for the continued application of the Brussels Ia Regulation in the UK.

It appears that, apart from the Withdrawal Agreement, a treaty establishing diplomatic reciprocity with the UK, for the purposes of § 917(2) ZPO, does not exist yet (unless the 1960 Convention between the UK and Germany for reciprocal recognition and enforcement of judgments – or even the 1968 Brussels Convention – will “revive”). An (albeit limited) exception concerns cases covered by exclusive choice-of-court agreements in favour of German courts falling under the 2005 Hague Convention (in fact, on 28 Sept 2020, the UK has deposited its instrument of accession to the 2005 Hague Convention, which should grant continuity in the application of the same Convention in the UK after the transition period).

III. Conclusion

In conclusion, at the end of the transition period, in cases not covered by the Withdrawal Agreement, unless new arrangements are made, the requirement of reciprocity might play a residual role in the context of the treatment of UK nationals and legal persons in some EU Member States, such as Germany.

This entry is the second of two parts that provide an introduction to the Elgar Companion to the Hague Conference on Private International Law (HCCH). It outlines the editors’ reflections on the 35 Chapters, drawing out some of the key themes that emerged from the Companion, including the HCCH’s contribution to access to justice and multilateralism. Together, Parts I and II offer readers an overview of the structure of the Companion (Part I, published on Conflict-of Laws on 8 December 2o2o) as well as of the core themes as they emerged from the 35 Chapters (Part II).

Both parts are based on, and draw from, the Editors’ Introduction to the Elgar Companion to the HCCH, which Elgar kindly permitted.

General reflections

The contributions in the Companion chronicle the evolution of the HCCH in the last 127 years and provide a deep insight into the operation and workings of the Organisation. In addition, they critically assess the past and current work of the HCCH, as well as providing impetus for possible future directions. The editors Thomas John, Rishi Gulati and Ben Koehler encouraged the authors to use the Companion as a platform for critical reflections and assessments – their familiarity with the HCCH, the Organisation’s work, but also its mandate and capacity, ensures the great value of each individual contribution.

The Companion can be of much interest in three particular ways.

First, it is an academic contribution that provides considered expositions on current and future legal issues in private international law in general. The selection of authors, which are drawn from different regions and legal backgrounds, allowed considering topics from a number of different perspectives. The quality of the contributions will result in the Companion serving a most useful source in the substantive development of private international law. It also will constitute a useful resource for States, judges, legal practitioners, academics, and other public and private international organisations engaged in advancing private international law, not only in terms of gaining an understanding of existing HCCH instruments, but also in their efforts towards legislative and policy reform.

Second, the Companion aims to provide considerable and thorough insight into the workings of the organisation itself, and thus serve well as a comprehensive practical guide to the HCCH. This will appeal to those who wish to gain a better understanding of the HCCH as an Organisation regardless of their familiarity with it. It may also benefit those who have been working with the Organisation for some time and wish to broaden or deepen their understanding further.

Finally, in addition to highlighting the successes of the HCCH, the aim has also been to critically analyse the organisation and its work. Much work has been done by the HCCH, but more is required, and the 35 Chapters reveal four underlying themes.

Theme I: Private international law and access to justice

The first underlying theme that can be observed throughout all contributions is how access to justice values increasingly underpin private international law. Just some examples include the call for enhanced access to documents in multiple languages; better use of technology to improve legal cooperation across borders; the need to enhance access to justice for consumers and international tourists; the impact of the right to a fair trial on access to justice for the employees of international organisations such as the HCCH; the bearing of fair trial rights on civil jurisdiction, such as through the doctrine of forum non conveniens; and ensuring access to justice for vulnerable sections of society.

In all those instances, access to justice is an important value, and in its various manifestations, starts to underpin and shape the development of private international law. This is a positive development. Private international law ought to be more than mere technical rules but should be driven by underlying tangible values that have great practical importance. Access to justice is a laudable tangible value, recognised in Sustainable Development Goal 16 of the UN. Private international law, and in particular the HCCH, could play a significant role in providing and strengthening access to justice at an international level. And there is some indication that the Organisation appreciates that it indeed can play this role, hinting at it in its most recent HCCH Strategic Plan 2019 – 2020. However, its appreciation is limited and mentioned only in the context of the HCCH’s non-normative work.[1] Based on the discussions in the Companion, it seems that the HCCH could – and should – pursue a comprehensive access to justice agenda across its entire normative and non-normative work programme with much more vigour than is currently the case.

Theme II: the interaction between public and private international law

Another theme underpinning the Companion’s contributions is the increased interaction between public and private international law. This theme is discernible in many Chapters, including in those that deal with civil jurisdiction. It transpires that this area is one where public and private international law can especially inform each other. While this interaction is now subject to increased academic scrutiny, the same does not seem to be the case in practice. Thus, it seems important, that the HCCH pays more attention to public international law developments when pursuing its projects, especially in the sphere of the further work on the Judgments Project. Equally, such increased attention to the public realm could mean that the public realm is likely to return the favour, which is equally needed.

Moreover, the interaction between HCCH instruments and human rights treaties, such as the UNCRC and UNCRPD, was evident. With many HCCH international family law instruments concerned with child protection and the protection of other vulnerable persons, this interaction is hardly surprising. But clear interrelationships exist in other spheres as well. For example, modern work environments, which are radically shifting through remote work technology and flexible workplace, the HCCH could also work towards greater cooperation with other international organisations, such as the ILO, to assist in developing international labour standards that better protect the rights of weaker parties, including the rules on civil jurisdiction in employment cases.

Theme III: Hard and soft law instruments

A third theme that emerged was the HCCH’s willingness to adopt soft law instruments as opposed to only facilitate the negotiation of binding international agreements or HCCH Conventions. There is no better example of this than the adoption of the 2015 Choice of Law Principles, which promote party autonomy.

With party autonomy perhaps now constituting a recognised connecting factor in private international law, as is also evident with the adoption of the 2005 Choice of Court Convention underpinned by this same connecting factor, the HCCH has no doubt made an important stride to embrace the potential of soft law instruments to achieve international consensus. Following the adoption of the 2019 Judgments Convention, which was decades in the making, and only successfully negotiated after the failures of the past were recognised, rectified, and compromises made, perhaps soft law instruments could be pursued with greater energy by the HCCH. Ultimately, it will be the experience of the 2015 Choice of Law Principles that will dictate whether more soft law instruments are negotiated under the umbrella of the HCCH.

Theme IV: multilateralism

A fourth theme that emerged is perhaps more subtle: multilateralism. The Companion recalls that the founder of the HCCH, T M C Asser, conceived the first Conference in 1893 not only as a platform which develops unified rules of private international law, but also as a forum in which experts come together and develop these rules in a peaceful and professional setting. This goal has not changed, and multilateral expertise is combined to forge innovative legal solutions to the vexed challenges of a globalized world. And these solutions are adopted by consensus, the decision-making technique which lies at the very heart of the HCCH.

When dealing with the Organisation, it is important to appreciate that it decides on every aspect of its work programme and budget by reaching to the furthest extent possible consensus among its Members.[2] This consensus-based approach has been chosen not without reason. While much effort may be exerted to achieve consensus, and achieving it may take longer, consensus-based decision making ensures the maximum buy-in of the Members in the outcomes produced by the HCCH. This buy-in becomes very clear in the Organisation’s premier decision-making bodies, the Diplomatic Sessions, which adopt the HCCH’s multilateral Conventions; the Council on General Affairs and Policy (CGAP), the “engine room” which determines the Organisation’s annual work programme; and the Council of Diplomatic Representative (CDR), which takes important financial and budgetary decisions. A common saying in all bodies, but also in Working and Experts’ Groups, is: nothing is agreed, until everything is agreed; and everything is agreed by consensus.[3]

This consensus-based approach to the multilateral work of the HCCH has been highly successful for the Organisation. It ensured that the development of private international law rules remained based on expertise and enjoys significant buy-in. But the HCCH is unlikely to be immune from the challenges to building consensus as experienced by other international organisations. Therefore, it will remain important for the HCCH to constantly review and, if necessary, to adapt its consensus-based approach to decision-making. This will be paramount so that the HCCH continues Asser’s vision that a peaceful and professional forum develops multilaterally unified private international law.

Final remarks

Overall, and despite some regions not yet as connected to the HCCH as they perhaps should be, the HCCH is now a global organisation for the unification of private international law. It is the world organisation for legal cooperation. It is 127 years old and going strong. The HCCH is highly relevant and important in an increasingly internationalised world. It is no doubt an organisation with a bright future. At a time when we are witnessing a pushback against multilateralism, the HCCH is an admirable example of the value of international cooperation and how international organisations can improve the day-to-day lives of people and enhance certainty and predictability for cross-border trade and commerce.

However, as the Companion makes apparent, while much has been done, more is required. The editors hope that the Companion will be a contribution to the understanding of the HCCH and the development of the Organisation as well as of private international law.

[1] A possible connection of the non-normative work of the HCCH is not a strategic priority of the HCCH per se but is mentioned in the Context to Strategic Priority 2. See HCCH, Strategic Plan of the HCCH 2019 – 2022 (2019) 5, <https://assets.hcch.net/docs/bb7129a9-abee-46c9-ab65-7da398e51856.pdf> accessed 30 April 2020.

[2] See Statute of the HCCH, Article 8(2) and Rules of Procedure of the HCCH, Rule II.H.3, available <https://www.hcch.net/en/governance/rules-of-procedure>.

[3] The Rules of Procedure of the HCCH have rules to support voting both at meetings, i.e. at Diplomatic Sessions, CGAP and CDR, as well as by distance. See Rules of Procedure of the HCCH, Rule II.H.4 and Rule II.I.6, available <https://www.hcch.net/en/governance/rules-of-procedure>. To the Editors’ knowledge, the HCCH has never taken a decision by vote at a meeting.

The Chinese villages win a lawsuit in China to repatriate a Mummified Buddha Statue hold by a Dutch Collector

—What Role has Private International Law Played?

By Zhengxin Huo, Professor of Law, China University of Polit’l Science and Law; Associate Member of International Academy of Comparative Law; Observer of the UNESCO 1970 Convention. Email: zhengxinh@cupl.edu.cn. The author would like to thank Dr. Meng YU for valuable comments.

1. Introduction

On 4 December 2020, the Sanming Intermediate People’s Court of China’s southeastern Province of Fujian rendered a judgment ordering the Dutch defendants to return a stolen 1,000-year-old Buddhist mummy, known as the statue of Zhanggong-zushi, to its original owner: two village committees in the Province within 30 days after the verdict comes into effect. [1]

This is the first time in history that a Chinese court seized jurisdiction over a case filed by Chinese plaintiffs to repatriate a stolen cultural property illicitly exported. Once published, the judgment has aroused immediate attention both at home and abroad. Given the enormous quantity of Chinese cultural property stolen and illegally exported overseas, the potential influence of the judgment can hardly be overstated. This note focuses on the major legal issues that the Chinese judgment dealt with and attempts to analyse the role of private international law that has played.

 

2. Summary of Facts

Oscar Van Overeem, a Dutch architect, purchased a Buddhist statue for 40,000 Dutch guilders (US $20,500) in 1996 from a collector in Amsterdam who had acquired it in Hong Kong. In 1996, Van Overeem contacted a restorer to repair some chips and cracks in the exterior. When the restorer opened the bottom of the statue, he found two small pillows, and resting on the pillows, the body of a mummified monk. Initial radiocarbon testing found that the body was approximately 900-1000 years old. The statue was taken to the Meander Medical Center in Amersfoort, where a full CT scan was performed and samples taken through endoscopy. The investigative team found scraps of paper on which Chinese characters were written, placed inside the body in the cavities normally containing organs. These identified the Buddhist mummy as the mummy of a monk known as “Zhanggong-zushi”.

 

In 2014, Van Overeem loaned the statue to the Drents Museum in Assen for an exhibition, “Mummy World,” which traveled to the Hungarian Natural History Museum in the spring of 2015. Press reporting on the Hungarian exhibition alerted the Chinese villagers. Based on photographs from Hungary and archival materials in China, the Chinese villagers believe the statue is the one that have held the mummy of the village’s patriarch, Zhanggong Zushi. The statue was enshrined in the Puzhao Temple, jointly owned by the two villages named “Yunchun” and “Dongpu”, and worshiped by the local residents, for over 1,000 years until it went missing in December 1995.

 

After an unsuccessful negotiation, the Committee of Yunchun Village and the Committee Dongpu Village sued Van Overeem to demand the statue’s return both in Fujian Province of China and in Amsterdam of the Netherlands at the end of 2015,[2] fearing that a statute of limitation might bar their case. Three years later, the Amsterdam District Court made a decision on 12 December 12, 2018, [3] ending one chapter in the legal battle over the statue of Zhanggong-zushi, but failed to resolve a controversial situation or illuminate the path forward for the parties, as the Dutch court did not decide anything about the ownership of the parties.[4] It simply determined not to hear the case, based on its finding that the two village committees did not have standing to sue in the Dutch court.[5]

 

Against this background, the lawsuit before the Chinese court is more important in terms of legal analysis. According to the information released by the Sanming Intermediate People’s Court (the Court), it formally filed the case on 11 December 2015, which then served the Dutch defendants by international judicial cooperation. The Court, thereafter, held the hearings on 26 July and 12 October of 2018 respectively, and publicly pronounced the judgement on 4 December 2020.[6] Lawyers of both sides were present both at the hearings and the pronouncement of the judgement. From the perspective of private international law, the following two issues, among others, are particularly worth of concern:

 

(1) Jurisdiction: The Court exercised the jurisdiction over the dispute because the Dutch defendants did not raise an objection to its jurisdiction who responded to the action timely.[7]

(2) Application of Law: Based on the interpretation of “the lex rei sitae at the time that the legal fact occurred” in Article 37 of the Private International Law Act, the Court held that Chinese law, rather than Dutch law, shall govern the ownership of the statue.[8]

 

3. The Jurisdiction of the Chinese Court: Prorogated Jurisdiction

Jurisdiction is the first issue that the Court had to consider when it dealt with the dispute. Under the Civil Procedure Law of China (CPL), the general rule of territorial jurisdiction is that a civil action shall be brought in the People’s Court of the place in which the defendant is domiciled subject to various exceptions grouped together under the title of “special jurisdictions”.[9] As the defendants in the present case are domiciled in the Netherlands,[10] the jurisdiction of the Court depended on “special jurisdictions” among which the jurisdiction on actions on contractual disputes or disputes over property rights is most relevant.

 

In international civil litigation, many cases involve a foreign defendant not domiciled or residing within China. Given the importance of some of such cases, the CPL empowers Chinese courts the jurisdiction over actions involving contract disputes or disputes over property rights against a non-resident defendant if certain conditions are satisfied. Article 265 of the CPL prescribes the following:[11]

In the case of an action concerning a contract dispute or other disputes over property rights and interests, brought against a defendant who has no domicile within the territory of the People’s Republic of China, if the contract is signed or performed within the territory of the People’s Republic of China, or if the object of the action is located within the territory of the People’s Republic of China, or if the defendant has distrainable property within the territory of the People’s Republic of China, or if the defendant has its representative office within the territory of the People’s Republic of China, the People’s Court of the place where the contract is signed or performed, or where the object of the action is, or where the defendant’s distrainable property is located, or where the torts are committed, or where the defendant’s representative office is located, shall have jurisdiction.

 

Therefore, for actions concerning a dispute over property rights brought against a defendant who has no domicile in China, a Chinese Court may exercise jurisdiction if one of the following conditions are satisfied: (1) the property is located in China; (2) the defendant has distrainable property in China; (3) the tort was committed in China; (4)the defendant has its representative office in China.

 

In the case at hand, one can hardly argue that the Court has the jurisdiction under Article 265 of the CPL, as the statue is not located in China when the action was filed, nor did the defendants steal it or purchase it in China, nor do they have distrainable property or representative office in China. However, the Court ruled that its jurisdiction over the case was established pursuant to the prorogated jurisdiction under the CPL regime.

 

Prorogated jurisdiction under the CPL refers to situations where a party institutes proceedings in a court, and the other party implicitly acquiesces to the jurisdiction of that court by responding to the action and not raising an objection to the jurisdiction. That is to say, the defendant’s failure to object is understood as defendant’s consent to the Chinese court’s jurisdiction. Article 127 of the CPL provides as follows:[12]

Where a party raises any objection to jurisdiction after a case is accepted by a people’s court, the party shall file the objection with the people’s court during the period of submitting a written statement of defense. The people’s court shall examine the objection. If the objection is supported, the people’s court shall issue a ruling to transfer the case to the people’s court having jurisdiction; or if the objection is not supported, the people’s court shall issue a ruling to dismiss the objection. Where a party raises no objection to jurisdiction and responds to the action by submitting a written statement of defense, the people’s court accepting the action shall be deemed to have jurisdiction, unless the provisions regarding tier jurisdiction and exclusive jurisdiction are violated.

 

Since the defendant’s failure to object constitutes consent to jurisdiction, it is imperative that defendants, foreign defendants in particular, raise a timely jurisdictional objection. Under Article 127 of the CPL, if a party to a civil action objects to the jurisdiction of a People’s Court, the objection must be raised within the time period prescribed for the filing of answers. According to Articles 125 and 268, defendant shall have fifteen days, or thirty days if residing outside the territory of China, to file his answer upon receipt of plaintiff’s complaint. Thus, if a defendant wants to challenge the People’s Court’s jurisdiction, he must do so within this statutory fifteen-day or thirty-day period.[13]

 

It should be noted that the Dutch defendants in the present case did not raise objection to the jurisdiction of the Court; instead, they had responded to the lawsuit by submitting a written statement of defense represented by two Chinese lawyers, to the surprise of many observers. Hence, jurisdiction of the Court over this case was established under the prorogated jurisdiction of the CPL in an unexpected manner.

 

4. Choice of Law Issue: Lex Rei Sitae = Lex Furti?

One of the most widely accepted and significant rules of private international law today is that, in determining property rights, a court applies lex rei sitae. This rule has been accepted by Chinese private international law, though party autonomy is placed before lex rei sitae by Article 37 of the Private International Law Act. Given that it is very rare that the parties reach agreement on the applicable law after the dispute over the property has occurred, the lex rei sitae plays a de facto decisive role.

 

However, the question of application of the lex rei sitae in specific cases remains open out of diverse possible interpretations of the rule. From the perspective of comparative law, it can be found that many jurisdictions, say England, prefer to apply the law of the place of last transaction,[14] while others, say France, apply the law of place where goods are located at the time of the litigation.[15] As far as China is concerned, its courts has never clarified the meaning of the lex rei sitae in Article 37 of the Private International Law Act; therefore, the outcome of the present action was entirely dependent on the interpretation of this article.

 

The Chinese plaintiffs commenced the action for recover of the stolen statue by arguing, among other things, that they are its owners because bona fide acquisition does not apply to stolen cultural property under the Property Law of China. The Dutch defendants took the stand, claiming to have purchased the statue on good title under Dutch Civil Code. Thus, it had to be decided which of the two laws shall be used in the present case: whether Chinses law or Dutch law shall govern the ownership of the statue. The Court, by resorting to Article 37 of the Private International Law Act, held that title was to be determined by Chinese law.

 

However, the Court acknowledged that the statue was stolen and illicitly exported before the implementation of the Private International Law Act, therefore, it had to decide in the very beginning whether the Act is applicable to the present dispute. To determine the issue, the Court referred to Article 2 of the Judicial Interpretation on the the Private International Law Act issued by the Supreme People’s Court,[16] which states that:

As to a civil relationship involving foreign elements which occurred before the implementation of the Private International Law Act, People’s Court shall determine the governing law according to the choice-of-law rules effective at the time of the occurrence of such relationship. In case no choice-of-law rules existed at that time, the Private International Law Act may be resorted to in order to determine the applicable law.

 

Given the General Principles of Civil Law, the most significant and primary legislation on private international law in China before 2010, is silent on the law applicable to property right,[17] the Court decided it is proper to invoke the Private International Law Act to fill the lacunae pursuant to the above article. The Court then referred to Article 37 of the Private International Law Act of China which provides that “the parties may choose the law applicable to the real rights in movable property; in the absence of such choice, the lex rei sitae at the time when the legal fact occurred applies”.[18] As the parties in the case failed to reach agreement on the applicable law, the Court decided that the ownership of the statue shall be governed by the lex rei sitae at the time when the legal fact occurred.

 

With regard to the meaning of “the time when the legal fact occurred”, the Court stated that it pointed to the time when the statue was stolen, rather than the time when Oscar Van Overeem purchased it in Amsterdam. Summarising the conclusion, the judge stressed that the statue is a cultural property of great historic and religious significance, instead of an ordinary property. As the illicit traffic of cultural property usually creates a number of legal facts which inevitably leads to the proliferation of the lex rei sitae, including the law of the location of a cultural property had been stolen (lex furti), the law of the place of first transaction, the law of the place of last transaction, the law of the place of exhibition, the law of the location of a cultural property at the time of litigation, etc., the judge emphasised the need to spell out the lex rei sitae at the time when the legal fact occurred for the cases of recovering cultural property.

 

The Court stressed that when interpreting the lex rei sitae in a cultural property repatriation case, the object and purpose of international conventions of cultural property should be taken into consideration. It went on to highlight two conventions to which China is a contracting party: Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“the 1970 Convention”) and Convention on Stolen or Illegally Exported Cultural Objects (“the 1995 Convention”). As both those conventions are devoting to prohibiting the illicit trafficking of cultural property and facilitating the return of cultural property to its origin nations, the Court concluded that it should interpret the lex rei sitae at the time when the legal fact occurred in the light of their object and purpose.

 

Hence, the Court decided that the lex rei sitae at the time when the legal fact occurred should be understood as the lex furti, i.e., law of the location of a cultural property had been stolen, insofar as such interpretation favours the protection of cultural heritage and facilitates the return of cultural property illicitly trafficked, whereas the place of transaction not only favours the laundering of stolen cultural property but also adds considerable uncertainty to the question of title.

 

The Court then referred to the Property Law of China under which bona fide acquisition does not apply to stolen cultural property. Consequently, the Court ruled that the Chinese village committees retain the title of the statue and demanded the defendants to return it to plaintiffs.

 

5. Concluding Remarks

Under the CPL, judicial proceedings in China occur in two instances, namely, trial and appeal. Therefore, the Dutch defendants are entitled to appeal to the Higher People’s Court of Fujian Province within 30 days. If they do not appeal within the time limit, the judgment will become effective.

 

At the present stage, it is not clear whether the defendants will comply with the judgment or appeal, or simply ignore it. Though as a Chinese, I do hope that the Dutch defendants will return the statue as ordered by the Court; nevertheless, I am afraid that ignoring the Chinese judgment may be one of their reasonable options because of serious obstacles to recognize and enforce this Chinese judgment in the Netherlands.

 

In spite of the uncertainty ahead, one cannot overestimate the significance of this judgment. First of all, as noted in the very beginning, this is the first time that a Chinese court exercises the jurisdiction over case to recover a Chinese cultural property stolen and illicitly exported. Therefore, it is a historic judgment, no matter it will be enforced or not in the future.

 

Second, the Court in the judgement clarified for the first time that “lex rei sitae at the time when the legal fact occurred” in Article 37 of the Private International Law should be interpreted in the light of the object and purpose of the 1970 Convention and the 1995 Convention, so that the lex furti, i.e., Chinese law, shall govern the ownership of cultural property lost overseas. Given the huge number of Chinese cultural property stolen and illicitly exported abroad, the author believes the impact of the judgment is tremendous.

[1] The Committee of Yunchun Village and the Committee Dongpu Village v. Oscar Van Overeem, Design & Consultancy B.V. and Design Consultancy Oscar van Overeem B.V., the Sanming Intermediate People’s Court (2015) Sanmin Chuzi No. 626, Date of judgment: 4 December 2020.

[2] China villagers launch Dutch court bid to retrieve mummy, https://www.bbc.co.uk/news/world-europe-40606593, last visited on 8 December 2020.

[3] C/13/609408 / HA ZA 16-558, Court of Amsterdam, 12 December 2018, available at https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2018:8919, last visited on 8 December 2020.

[4] Chinese villagers disappointed about Dutch rejection of mummy Buddha repatriation case, http://www.xinhuanet.com/english/2018-12/14/c_137672368.htm, last visited on 8 December 2020.

[5] Uncertain Future for Golden Statue Holding Buddhist Mummy, https://culturalpropertynews.org/uncertain-future-for-golden-statue-holding-buddhist-mummy/, last visited on 8 December 2020.

[6] http://fjfy.chinacourt.gov.cn/article/detail/2020/12/id/5647265.shtml, last visited on 8 December 2020.

[7] The Committee of Yunchun Village and the Committee Dongpu Village v. Oscar Van Overeem, Design & Consultancy B.V. and Design Consultancy Oscar van Overeem B.V., the Sanming Intermediate People’s Court (2015) Sanmin Chuzi No. 626, Date of judgment: 4 December 2020, p.21.

[8] Id,. at pp. 24-35.

[9] Zhengxin Huo, Private International Law (2017), pp.148-151.

[10] The defendants are Oscar Van Overeem, Design & Consultancy B.V. and Design Consultancy Oscar van Overeem B.V.

[11] Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] art. 265 (1991, revised in 2017) (PRC).

[12] Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] art. 127 (1991, revised in 2017)(PRC).

[13] Zhengxin Huo, Private International Law (2017), p.157.

[14] E.g., Winkworth v. Christie’s Ltd.[1980] 1 Ch. 496.

[15] Stroganoff-Scerbatoff v. Bensimon, 56 Rev. crit. De dr. int. privé(1967).

[16] See Zhengxin Huo, ‘Two Steps Forward, One Step Back: A Commentary on the Judicial Interpretation on the Private International Law Act of China’ (2013) 43 HKLJ 685, 710.

[17] The General Principles of Civil Law was adopted at the Fourth Session of the Sixth National People’s Congress on April 12, 1986, coming into force on January 1, 1987. It was abolished on January 1, 2021 when the Civil Code of the PRC took effect. For a quite a long period, the GPCL was the most important source of Chinese private international law. Structurally, the GPCL has devoted an entire chapter to regulating the conflict of laws (i.e., Chapter Eight, Application of Laws to Civil Matters Involving Foreign Elements), where nine conflict rules can be found.

[18] Zhonghua Renmin Gongheguo Shewai Minshi Falvguanxi Shiyongfa [Act on the Application of Laws over Foreign-related Civil Relationships] art. 37 (2010) (PRC).

 

 

 

 

 

 

Guest post by Franz Kaps, Attorney at law at DLA Piper, Frankfurt am Main

The resurgence of COVID-19 (Coronavirus) cases has been observed in countries around the world after COVID-19 outbreaks were successfully curbed earlier this year. To flatten the curve of the second wave of the pandemic governments again closed “non-essential businesses”, restricted travel and imposed “lockdowns” and “stay-at-home orders”. Beyond the health and human tragedy of the pandemic, it caused the most serious economic crisis since World War II, which also affected commercial contracts. In cases where the COVID-19 virus or government measures have affected commercial contracts, it is necessary to carefully analyse the state of affairs to determine the appropriate remedy.

The ICC Force Majeure Clause

Whether a force majeure clause is applicable in a particular case, and what its consequences would be, depends primarily on the wording of the clause. Courts have held that force majeure clauses are to be interpreted in a narrow sense and that performance under a contract is ordinarily excused only if the event preventing performance is explicitly mentioned in the force majeure clause. However, the state-of-the-art ICC Force Majeure Clause (Long Form) 2020 in Paragraph 3 (e) only presumes an epidemic to be a force majeure event but does not cover pandemics such as COVID-19. The difference between an epidemic and a pandemic is that an epidemic is a disease happening in a particular community. A pandemic, in contrast, is a disease that spreads over a whole country or the whole world. Due to its global spread, COVID-19 is classified as a pandemic.

In order to invoke the force majeure defence Paragraph 1 ICC Force Majeure Clause additionally requires that the party affected by the impediment proves that the following three conditions are met:

1. the impediment is beyond its reasonable control; and
2. the impediment could not reasonably have been foreseen at the time of the conclusion of the contract; and
3. the effects of the impediment could not reasonably have been avoided or overcome by the affected party.

The events enumerated in Paragraph 3 ICC Force Majeure Clause which are presumed to fulfil conditions a) and b) under Paragraph 1 ICC Force Majeure Clause do not explicitly cover pandemics. Consequently, a party claiming a force majeure defence as a result of the COVID-19 pandemic must prove all three conditions.

Whether the impact and governmental measures triggered by COVID-19 are beyond the reasonable control of the parties depends on the specifics of each case. In many cases of mandatory governmental measures it will be relatively straight-forward for a party to argue this successfully.

With regard to the second condition – the reasonable foreseeability of the COVID-19 pandemic according to Paragraph 1 (b) ICC Force Majeure Clause – the point in time when the parties have concluded their contract is crucial. In October 2019, the effects of COVID-19 were less foreseeable than in December 2019, and in any case, as of March 2020, it was at least foreseeable that the COVID-19 virus would in some way interfere with the performance of contractual obligations.

In 2020, countries adopted differentiated approaches to combat the COVID-19 pandemic. These approaches included stay-at-home orders, travel restrictions, closure of non-essential businesses and lockdowns. It is also not yet possible to foresee which government measures will be taken to ensure a flatter curve for the second COVID-19 wave in winter of 2020 and beyond. This is particularly true as countries previously known for their laid-back COVID-19 policies are currently considering changing their policies and are willing to adopt stricter measures in response to the second wave of the COVID-19 virus. Sweden, for example, which was known for its special path without restrictions, mandatory requirements to wear masks, or lockdowns, has now introduced COVID-19 restrictions to contain the spread of COVID-19 and does not rule out local lockdowns. In the US, too, it is very probable that tougher COVID-19 measures will be implemented by the government at the latest when President-elect Biden takes office in January 2021.

Besides government COVID-19 measures, it is difficult for the parties to foresee specific effects of the COVID-19 virus on global supply chains and the performance of their obligations.

With regard to the second wave or further waves of the COVID-19 pandemic, it is therefore difficult for a party to foresee the exact impact of the Covid-19 virus in the individual countries and the various measures taken by the respective governments.

The third requirement under Paragraph 1 ICC Force Majeure Clause, that the effects of the impediment could not reasonably have been avoided or overcome by the affected party, again lacks legal certainty and is subject to the specificities of the case at hand – particularly regarding the reasonable remedies available to the party to eliminate and overcome the consequences of the COVID-19 pandemic.

Only if the conditions set out above are fulfilled can a party successfully invoke the force majeure defence pursuant to Paragraph 5 ICC Force Majeure Clause and be relieved from its duty to perform its contractual obligations and from any liability in damages or from any other contractual remedy for breach of contract.

State-of-the-Art Force Majeure Clause

This legal uncertainty regarding the impact of COVID-19 under the modern ICC Force Majeure Clause as well as under other force majeure clauses requires parties to first clarify whether their clause generally covers pandemics. Secondly, in light of the second wave of COVID-19, parties should consider amending their force majeure clauses to include or exclude the novel COVID-19 pandemic as a force majeure event in order to provide legal certainty as to whether a contract must be performed and whether a damage claim for non-performance of contractual obligations exists.

When pandemics are included in a force majeure clause as a force majeure event, an affected party under Paragraph 3 ICC Force Majeure Clause needs only to prove that the effects of the impediment could not reasonably have been avoided or overcome. Parties should therefore consider reviewing and updating their clauses and contemplate including pandemics as a force majeure event. In our globalised world, the next pandemic will spread sooner or later – therefore a lege artis force majeure clause must cover pandemics as a force majeure event. Where a pandemic is included in a force majeure clause, parties should refer to an objective criterion such as a pandemic declared by the World Health Organization to define when pandemics trigger the force majeure consequences. By linking a pandemic to such an objective criterion, disputes as to whether a pandemic in the sense of the force majeure clause exists can be avoided.

Besides updating their force majeure clause parties should consider temporarily modifying their clauses in light of the current second wave of the COVID-19 virus. Parties, when amending their force majeure clause, may decide either to introduce a clause ensuring that effects and governmental measures due to the ongoing COVID-19 pandemic are not covered by their clause, or opt for a clause encompassing the current COVID-19 pandemic. Which option a party should select is a policy question and depends on the characteristics of the case. A party affected by the COVID-19 pandemic in the performance of its contractual obligations – because, for example, it depends heavily on international supply chains easily disrupted by the effects of the COVID-19 pandemic – should, on the one hand, ensure that the parties incorporate a force majeure clause encompassing the COVID-19 pandemic as a force majeure event. On the other hand, if the risk of non-performance of contractual obligations as a result of the COVID-19 virus is primarily in the risk sphere of the other party, a party may contemplate excluding the COVID-19 pandemic from the scope of the force majeure clause. In any case, a good starting point for future “tailor-made” force majeure clauses – which take into account the parties’ specific needs – is the balanced ICC Force Majeure Clause.

In preparation of the Conference on the HCCH 2019 Judgments Convention on 13/14 September 2021, planned to be taking place on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

We all benefited from your contributions at the Video Pre-Conference Roundtable on 29 October 2020. Our sincere thanks go to all the speakers and participants who pushed further the frontiers of our knowledge and understanding.

Update of 10 December 2020: New entries are printed bold.

Please also check the “official” Bibliograghy of the HCCH for the instrument.

 

1. Explanatory Reports

Garcimartín Alférez, Francisco;
Saumier, Geneviève „Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128

 

1. Bibliography

Balbi, Francesca “La circolazione delle decisioni a livello globale: il progetto di convenzione della Conferenza dell’Aia per il riconoscimento e l’esecuzione delle sentenze straniere” (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2019; available: here) Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul R. “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Blom, Joost “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 Bonomi, Andrea “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 Bonomi, Andrea “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 Bonomi, Andrea;
Mariottini, Cristina M. “(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 Borges Moschen, Valesca Raizer;
Marcelino, Helder “Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319

(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) Brand, Ronald A. “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 Brand, Ronald A. “Jurisdictional Developments and the New Hague Judgments Project”, “in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon”, Cambridge 2013, pp 89-99 Brand, Ronald A. “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 Brand, Ronald A. “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 Çaliskan, Yusuf;
Çaliskan, Zeynep “2 Temmuz 2019 Tarihli Yabanci Mahkeme Kararlarinin Taninmasi ve Tenfizine Iliskin Lahey Anlasmasinin Degerlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245

(An Evaluation of 2 July 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) Clavel, Sandrine; Jault-Seseke, Fabienne “La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale: Que peut-on en attendre?”, Travaux du comité français de Droit international privé, Vol. 2018-2020, forthcoming (Version roviso ire de la communication présentée le 4 octobre 2019 available here) Clover Alcolea, Lucas “The 2005 Hague Choice of Court and the 2019 Hague Judgments Conventions versus the New York Convention – Rivals, Alternatives or Something Else?”, Mc Gill Journal of Dispute Resolution 6 (2019-2020), pp. 187-214 Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 Cuniberti, Gilles “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 de Araujo, Nadia; de Nardi, Marcelo;
Spitz, Lidia “A nova era dos litígios internacionais”, Valor Economico 2019 de Araujo, Nadia;
de Nardi, Marcelo;
Lopes Inez;
Polido, Fabricio „Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34

  de Araujo, Nadia;
de Nardi, Marcelo „Consumer Protection Under the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 67-79 de Araujo, Nadia;
de Nardi, Marcelo „22ª Sessão Diplomática da Conferência da Haia e a Convenção sobre sentenças estrangeiras: Primeiras reflexões sobre as vantagens para o Brasil da sua adoção“, Revista de la Secretaría del Tribunal Permanente de Revisión 7 No. 14 (2019), páginas 198-221

(22nd Diplomatic Session of The Hague Conference and the Convention on Foreign Judgments: First Reflections on the Advantages for Brazil of their Adoption) Dotta Salgueiro, Marcos “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”, Netherlands International Law Review (NILR) 67 (2020), pp 113-120 Douglas, Michael;
Keyes, Mary;
McKibbin, Sarah;
Mortensen, Reid “The HCCH Judgments Convention in Australian Law”, Federal Law Review 47 (2019), pp 420-443 Efeçinar Süral Possible Ratification of the Hague Convention by Turkey and Its Effects to the Recognition and Enforcement of Foreign Judgments, Public and Private International Law Bulletin 40/2 (2020), pp. 785 et seq. Fan, Jing “On the Jurisdiction over Intellectual Property in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Chinese Yearbook of Private International Law and Comparative Law 2018-02, pp. 313-337 Franzina, Pietro; Leandro, Antonio

  “La Convenzione dell’Aja del 2 luglio 2019 sul riconoscimento delle sentenze straniere: una prima lettura”, Quaderni di SIDIblog 6 (2019), pp 215-231, available at http://www.sidi-isil.org/wp-content/uploads/2020/09/Quaderni-di-SIDIBlog-6-2019.pdf

(The Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments: A First Appraisal) Fuchs, Felix “Das Haager Übereinkommen vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Urteile in Zivil- oder Handelssachen“, Gesellschafts- und Wirtschaftsrecht (GWR) 2019, pp 395-399 Garcimartín, Francisco “The Judgments Convention: Some Open Questions”, Netherlands International Law Review (NILR) 67 (2020), pp 19-31 Goddard, David „The Judgments Convention – The Current State of Play”, Duke Journal of Comparative & International Law 29 (2019), pp 473-490 He, Qisheng “The HCCH Judgments Convention and the Recognition and Enforcement of Judgments pertaining to a State”, Global Law Review 3 (2020), pp 147-161 He, Qisheng “Unification and Division: Immovable Property Issues under the HCCH Judgement Convention”, Journal of International Law 1 (2020), pp 33-55 Jacobs, Holger “Der Zwischenstand zum geplanten Haager Anerkennungs- und Vollstreckungsübereinkommen – Der vorläufige Konventionsentwurf 2016“, Zeitschrift für Internationales Privatrecht & Rechtsvergleichung (ZfRV) 2017, pp 24-30 Jang, Junhyok “The Public Policy Exception Under the New 2019 HCCH Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 97-111 Jang, Junhyok “2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Korea Private International Law Journal 25 (2019), pp. 437-510. Jovanovic, Marko Thou Shall (Not) Pass – Grounds for Refusal of Recognition and

Enforcement under the 2019 Hague Judgments Convention, YbPIL 21 (2019/2020), pp. 309 – 332 Jueptner, Eva “The Hague Jurisdiction Project – what options for the Hague Conference?”, Journal of Private International Law 16 (2020), pp 247-274 Kessedjian, Catherine “Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?“, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 19-33 Khanderia, Saloni „The Hague judgments project: assessing its plausible benefits for the development of the Indian private international law”, Commonwealth Law Bulletin 44 (2018), pp 452-475 Khanderia, Saloni “The Hague Conference on Private International Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?”, Journal of African Law 63 (2019), pp 413-433 Mariottini, Cristina „Establishment of Treaty Relations under The 2019 Hague Judgments

Convention“, YbPIL 21 (2019/2020), pp. 365-380 Mariottini, Cristina “The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, YbPIL 19 (2017/2018), pp 475-486. Meier, Niklaus “Notification as a Ground for Refusal”, Netherlands International Law Review (NILR) 67 (2020), pp 81-95 Nielsen, Peter Arnt “The Hague 2019 Judgments Convention – from failure to success”, Journal of Private International Law 16 (2020), pp 205-246 North, Cara “The 2019 HCCH Judgments Convention: A Common Law Perspective”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 202-210 North, Cara “The Exclusion of Privacy Matters from the Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 33-48 Oestreicher, Yoav “ ’We’re on a Road to Nowhere’ – Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments”, The International Lawyer 42 (2008), pp 59-86 Okorley, Solomon “The possible impact of the Hague Convention on the Recognition and Enforcement of foreign Judgments in Civil or Commercial Matters on Private International Law in Common Law West Africa”, (Master’s Dissertation, University of Johannesburg, 2019; available: here) Pasquot Polido, Fabrício B. “The Judgments Project of the Hague Conference on Private International Law: a way forward for a long-awaited solution”, in Verónica Ruiz Abou-Nigm, Maria Blanca Noodt Taquela (eds.), Diversity and integration in Private International Law, Edinburgh 2019, pp. 176-199 Pertegás Sender, Marta “The 2019 Hague Judgments Convention: Its Conclusion and the road ahead”, in Asian Academy of International Law (publ.), Sinergy and Security: the Keys to Sustainable Global Investment: Proceedings of the 2019 Colloquium on International Law, 2019 Hong Kong, pp 181-190 Pertegás, Marta “Brussels I Recast and the Hague Judgments Project”, in Geert Van Calster (ed.), European Private International Law at 50: Celebrating and Contemplating the 1968 Brussels Convention and its Successors, Cambridge 2018, pp 67-82 Qian, Zhenqiu “On the Common Courts Provision under the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Wuhan University International Law Review
2019-01, pp. 59-74 Qian, Zhenqiu;
Yang, Yu “On the Interpretation and Application of the Cost of Proceedings Provision under the Hague Judgment Convention”, China Journal of Applied Jurisprudence 2020-04, pp. 96-108 Reyes, Anselmo „Implications of the 2019 Hague Convention on the Enforcement of Judgments of the Singapore International Commercial Court”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 695-709 Ribeiro-Bidaoui, João “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 Rumenov, Ilija “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-4040 Sachs, Klaus;
Weiler, Marcus “A comparison of the recognition and enforcement of foreign decisions under the 1958 New York Convention and the 2019 Hague Judgments Convention”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 763-781 Saito, Akira “Advancing Recognition and Enforcement of Foreign Judgments: Developments of Inter-Court Diplomacy and New Hague Judgments Convention”, Kobe Law Journal 68(4), pp. 59-110 Saumier, Geneviève “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 49-65 Schack, Haimo “Wiedergänger der Haager Konferenz für IPR: Neue Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens?“, Zeitschrift für Europäisches Privatrecht (ZEUP) 2014, pp 824-842 Schack, Haimo „Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 1-96 Senicheva, Marina “The Relevance and Problems of the Hague Convention of July 2, 2019 on the Recognition and Enforcement of Foreign Judgments Ratification by the Russian Federation”, Advances in Law Studies 8 (2020), online (available: here) Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 1)”, Journal of Russian Law No. 2020-7, pp. 170-186 Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 2)”, Journal of Russian Law No. 2020-11, pp. 140-54 Shen, Juan “Further Discussion on the Drafts of the Hague Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and Considerations from Chinese Perspective”, Chinese Review of International Law 2016-06, pp. 83-103 Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 Solomon, Dennis “Das Haager Anerkennungs- und Vollstreckungsübereinkommen von 2019 und die internationale Anerkennungszuständigkeit“, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 873-893 Spitz, Lidia „Refusal of Recognition and Enforcement of Foreign Judgments on Public Policy Grounds in the Hague Judgments Convention – A Comparison with The 1958 New York Convention“, YbPIL 21 (2019/2020), pp 333-364 Stein, Andreas „Das Haager Anerkennungs- und Vollstreckungsübereinkommen 2019 – Was lange währt, wird endlich gut?“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 197-202 Stewart, David P. „Current Developments: The Hague Conference adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, American Journal of International Law (AJIL) 113 (2019), pp 772-783 Sun, Xiaofei;
Wu, Qiong “Commentary and Outlook on the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Journal of International Law 2019-01, pp. 155-164+170 Taquela, María Blanca Noodt; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 Tian, Xinyue;
Qian, Zhenqiu;
Wang, Shengzhe “The Hague Convention on the Recognition and Enforcement of Foreign Judgments (Draft) and China’s Countermeasure – A Summary on the Fourth Judicial Forum of Great Powers”, Chinese Yearbook of Private International Law and Comparative Law 2018-01, pp. 377-388 van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue Critique de Droit International Privé 2019, pp 353-366 Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Wang, Quian “On Intellectual Property Right Provisions in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, China Legal Science 2018-01, pp. 118-142 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279 – 308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in: Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed., forthcoming Weller, Matthias Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019, in Christoph Althammer/Christoph Schärtl, Festschrift für Herbert Roth, in Vorbereitung. Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 5 (2017), pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Zhang, Wenliang;
Tu, Guangjian “The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368

 

Just published in Recueil Dalloz: a “cri d’alarme” by Professors Lagarde, Gaudemet-Tallon, Kessedjian, Jault-Seseke and Pataut concerning the fate of the useful International Commission on Civil Status. Here is a translation of their call to action:

The International Commission on Civil Status in Danger[1]

POINT de Vue Recueil Dalloz issue N° 42 of 3 December 2020,  p. 2355 by Paul Lagarde, Professor emeritus Paris I University, Hélène Gaudemet-Tallon, Professor emeritus Paris II University, Catherine Kessedjian, Professor emeritus Paris II University, Fabienne Jault-Seseke, Professor at  Paris Saclay University, and Étienne Pataut, Professor at the Sorbonne Law School

Civil status issues are a crucial element of a person’s identity. Solving these issues is an essential component of the protection of the right to private and family life, and a gateway to everyone’s recognition as a person before the law. This is why many efforts are made, for instance, to promote birth registration[2]. From birth to death, the legal existence of a person is conditioned by civil status.

Recognition of civil status documents from one State to another is fundamental to ensure the continuity of personhood when people cross international borders. International cooperation is essential to allow a correct understanding and interpretation of civil status documents and facilitate their circulation (both regarding their form (instrumentum) and their content (negotium)).

This is the purpose of the International Commission on Civil Status (CIEC/ICSS), an intergovernmental organization created in the aftermath of the Second World War. The five founding States are Belgium, France, Luxembourg, The Netherlands and Switzerland. Although not operating in the spotlights, this organisation has a most respectable track record. It has enabled the adoption of thirty-four conventions and eleven recommendations on birth, name, nationality, gender change, marriage, partnership, refugees, civil status services, among others. Many of these instruments provide for cooperation of competent authorities or facilitate the understanding of civil status acts, in particular by establishing multilingual forms and allowing their electronic transmission. They have been successful and proved to be very useful. Convention No. 16 is a convincing example[3]. It binds twenty-four States, including States that are not members of the ICCS. It abolishes both legalisation and apostille requirements.

At some point, the ICCS had up to seventeen members (including States outside the EU such as Mexico and Turkey). But despite the undoubted success of the ICCS, Member States have withdrawn from the Organisation one after the other. The withdrawal by the Netherlands in 2018 and France in 2019 may deliver the final blow to the ICCS.

These withdrawals are incomprehensible.

It has been suggested that they have budgetary reasons. This seems hardly credible since the annual budgetary contribution of France to the CIEC amounted to € 33,000, whilst a further reduction to € 15,000 had already been agreed. Moreover, the ICCS has recently decided to dispense with the contribution of its members until 2025. So, this, hardly convincing, argument does not hold.

No more convincing is the idea that the European Union, because of EU regulation 2016/1191 ensuring the circulation of civil status documents in the Union (inspired by ICCS’s work), would have taken over ICCS’s mission. EU regulations do not bind third States; yet, due to migration flows, the EU Member States are often faced with questions concerning the civil status of nationals from countries in the Middle East, Africa, Asia, among others.

Moreover, by signing the Global Compact for Migration in 2019, France has committed itself to promote cooperation in the field of international migration. As the Global Compact itself reminds us, this commitment draws from actions to “Improve civil registry systems, with a particular focus on reaching unregistered persons and our nationals residing in other countries, including by providing relevant identity and civil registry documents, strengthening capacities, and investing in information and communications technology solutions, while upholding the right to privacy and protecting personal data…”.

This is precisely the role of the ICCS, currently launched in ambitious electronic communication projects on civil status documents – supported, moreover, by the European Union.  Now is the time for States (and for the European Union, which is now in a position to become itself an ICCS member) to reinvest in the ICCS – and definitely not to give up!

 

[1] For a detailed argument, see H. van Loon, Requiem or transformation? Perspectives for the CIEC / ICCS and its work, Yearbook of private international law, vol. 20 (2018/2019), p. 73-93 (this article predates France’s withdrawal).

[2] See Art 7 (1) of the United Nations Convention on the Rights of the Child.

[3] Convention on the issue of multilingual extracts from civil-status records, signed in Vienna, 8 September 1976. This Convention has, moreover, been reviewed and modernized by Convention No 34, signed in Strasbourg, 14 March 2014.

Written by Fieke van Overbeeke[1]

 

On 1 December 2020 the Grand Chamber of the CJEU ruled in the FNV/Van Den Bosch case that the Posting of Workers Directive(PWD) is applicable to the highly mobile labour activities in the road transport sector (C-815/18). This judgment is in line with recently developed EU legislation (Directive 2020/1057), the conclusion of AG Bobek and more generally the ‘communis opinio’. This question however was far from an ‘acte clair’ or ‘acte éclairé’ and the Court’s decision provides an important piece of the puzzle in this difficult matter.

The FNV/Van Den Bosch case dates back all the way to the beginning of 2014, when the Dutch trade union FNV decided to sue the Dutch transport company Van den Bosch for not applying Dutch minimum wages to their Hungarian lorry drivers that were (temporarily) working in and from its premises in the Netherlands. One of the legal questions behind this was whether the Posting of Workers Directive is applicable to the road transport sector, for indeed if it is, the minimum wages of the Netherlands should be guaranteed if they are more favourable than the Hungarian minimum wages (and they are).

At the Court of first instance, the FNV won the case with flying colours. The Court unambiguously considered that the PWD is applicable to road transport. Textual and teleological argumentation methods tied the knot here. The most important one being the fact that Article 1(2) PWD explicitly excludes the maritime transport sector from its scope and remains completely silent regarding the other transport sectors. Therefore the PWD in itself could apply to the road transport sector and thus applies to the case at hand.

Transport company Van Den Bosch appealed and won. The Court of Appeal diametrically opposed its colleague of first instance, favouring merely the principles of the internal market. The Court of Appeal ruled that it would not be in line with the purpose of the PWD to be applied to the case at hand.

The FNV then took the case to the Supreme Court (Hoge Raad), at which both parties stressed the importance of asking preliminary question to the CJEU in this matter. The Supreme Court agreed and asked i.a. whether the PWD applies to road transport and if so, under which specific circumstances.

The CJEU now cuts this Gordian knot in favour of the application of the PWD to the road transport sector. Just as the Court in first instance in the Netherlands, the CJEU employs textual and teleological argumentation methods and highlights the explicit exception of Article 1(2) PWD, meaning that the PWD in itself could apply to road transport.

As regards to the specific circumstances to which the PWD applies, the CJEU sees merit in the principle of the ‘sufficient connection’ (compare CJEU 19 December 2018, C-16/18 Dobersberger, paragraph 31) and rules:

‘A worker cannot, in the light of PWD, be considered to be posted to the territory of a Member State unless the performance of his or her work has a sufficient connection with that territory, which presupposes that an overall assessment of all the factors that characterise the activity of the worker concerned is carried out.’

So in order to apply the PWD to a specific case, there has to be a sufficient connection between worker and temporary working country. In order to carry out this assessment, the CJEU identifies several ‘relevant factors’, such as the characteristics of the provision of services, the nature of the working activities, the degree of connection between working activities of a lorry driver and the territory of each member state and the proportion of the activities compared to the entire service provision in question. Regarding the latter factor, operations involving loading or unloading goods, maintenance or cleaning of the lorries are relevant (provided that they are actually carried out by the driver concerned, not by third parties).

The CJEU also clarifies that the mere fact that a lorry driver, who is posted to work temporarily in and from a Member State, receives their instructions there and starts and finishes the job there is ‘not sufficient in itself to consider that that driver is “posted” to that territory, provided that the performance of that driver’s work does not have a sufficient connection with that territory on the basis of other factors.’

Finally, it is important to note that the Court provides a helping hand regarding three of the four main types of transport operations, namely transit operations, bilateral operations and cabotage operations. A transit operation is defined by the Court as a situation in which ‘a driver who, in the course of goods transport by road, merely transits through the territory of a Member State’. To give an example: a Polish truck driver crosses Germany to deliver goods in the Netherlands. The activities in Germany are regarded as a ‘transit operation’. A bilateral operation is defined as a situation in which ‘a driver carrying out only cross-border transport operations from the Member State where the transport undertaking is established to the territory of another Member State or vice versa’. To give another example, a Polish truck driver delivers goods in Germany and vice versa. The drivers in those operations cannot be regarded as ‘posted’ in the sense of the PWD, given the lack of a sufficient connection.

By referring to Article 2(3) and (6) of Regulation No 1072/2009, a cabotage operation is defined by the CJEU as ‘as national carriage for hire or reward carried out on a temporary basis in a host Member State, in conformity with that regulation, a host Member State being the Member State in which a haulier operates other than the haulier’s Member State of establishment’. For example, a Polish lorry driver carries out transport between two venues within Germany. According to the CJEU, these operations do constitute a sufficient connection and thus will the PWD in principle apply to these operations.

In short, the CJEU gives a green light for transit- and bilateral operations and a red light for cabotage operations. The CJEU however remains silent regarding the fourth important road transport operation: cross-trade operations. A cross-trade operationis a situation in which a lorry driver from country A, provides transport between countries B and C. The sufficient connection within these operations should therefore be assessed only on a case-by-case basis.

At large, the judgment of the CJEU is in line with the road transport legislation that has been adopted recently (Directive 2020/1057). This legislation takes the applicability of the PWD to road transport as a starting point and then provides specific conflict rules to which transport operations the PWD does and does not apply. Just like the judgement of the CJEU, this legislation determines that the PWD is not applicable to transit- and bilateral operations, whereas the PWD is applicable to cabotage operations. Cross-trade operations did not get a specific conflicts rule and therefore the application of the PWD has to be assessed on a case-by-case basis, to which the various identified factors by the Court could help.

All in all, the Gordian knot is cut, yet the assessment of the applicability of the PWD to a specific case will raise considerable difficulties, given de wide margin that has been left open and the rather vague relevant factors that the CJEU has identified. Hard and fast rules however seem to be impossible to impose to the highly mobile and volatile labour activities in the sector, and in that regard the CJEU’s choice of a case by case analysis of a sufficient connection seems to be the lesser of two evils.

***

[1] Fieke van Overbeeke, Legal Counsel at the International Institute for International and Foreign Law – the Netherlands and research fellow at the University of Antwerp – Belgium. On 13 December 2018 successfully defended her PhD on the topic of the applicability of the Posting of Workers Directive to the road transport sector. The PhD (in Dutch) is fully available online. Disclaimer: Fieke van Overbeeke has been a  legal expert on the side of the FNV during the trials in the Netherlands and at the CJEU.

Guest Post by John Coyle, the Reef C. Ivey II Distinguished Professor of Law at the University of North Carolina School of Law

One tried-and-true way of obtaining personal jurisdiction over a foreign person that otherwise lacks minimum contacts with a particular U.S. state is to require the person to agree ex ante to a forum selection clause.  This strategy only works, however, if the forum selection clause will be enforced by the courts in the chosen state.  To date, scholars have written extensively about the enforceability of “outbound” forum selection clauses that redirect litigation from one court to another.  They have devoted comparatively less attention to the enforceability of “inbound” forum selection clauses that purport to provide a basis for the chosen court’s assertion of personal jurisdiction over a foreign defendant.

 

In a recent paper, Katherine Richardson and I seek to remedy this deficit.  We reviewed 371 published and unpublished cases from the United States where a state court was asked to assert personal jurisdiction over an out-of-state defendant on the basis of an “inbound” consent-to-jurisdiction clause.  In conducting this review, we documented the existence of several different enforcement frameworks across states.  The state courts in New York, for example, take a very different approach to determining whether such a clause is enforceable than the state courts in Florida, which in turn take a very different approach to this question than the state courts in Utah.

 

These differences in enforcement frameworks notwithstanding, we found that consent-to-jurisdiction clauses are routinely given effect.  Indeed, our data suggest that such clauses are enforced by state courts approximately 85% of the time.  When the courts refuse to enforce these clauses, moreover, they tend to cite just a handful of predictable reasons.  First, the courts may refuse to enforce when the clause fails to provide proper notice to the defendant of the chosen forum.  Second, the courts may conclude that the clause should not be given effect because the parties lack a connection to the chosen forum or that litigating in that forum would be seriously inconvenient.  Third, a clause may go unenforced because it is contrary to the public policy of a state with a close connection to the parties and the dispute.

 

After mapping the relevant terrain, we then proceed to make several proposals for reform.  We argue that the courts should generally decline to enforce consent-to-jurisdiction clauses when they are written into contracts of adhesion and deployed against unsophisticated counterparties.  We further argue that the courts should decline to enforce such clauses in cases where the defendant was never given notice as to where, exactly, he was consenting to jurisdiction.  Finally, we argue that the courts should retain the flexibility to decide whether to dismiss on the basis of forum non conveniens even when a forum selection clause specifically names the jurisdiction where the litigation is brought.  Each of these reforms would, in our view, produce fairer and more equitable results across a wide range of cases.

 

Although our research focused primarily on state courts, our reform proposals are relevant to federal practice as well.  Federal courts sitting in diversity are required by Federal Rule of Civil Procedure 4(k)(1)(a) to follow the law of the state in which they sit when they are called upon to determine whether to enforce a consent-to-jurisdiction clause.  If a given state were to revise or reform its rules on this topic along the lines set forth above, the federal courts sitting in that state would be obliged to follow suit.

The following entry is the first of two parts that provide an introduction to the Elgar Companion to the Hague Conference on Private International Law (HCCH). Together, the parts will offer readers an overview of the structure of the Companion (Part I) as well as of the core themes as they emerged from the 35 Chapters (Part II). Both parts are based on, and draw from, the Editors’ Introduction to the Elgar Companion to the HCCH, which Elgar kindly permitted.

Introduction

The Elgar Companion to the HCCH will be launched on 15 December 2020 as part of a 1 h long virtual seminar. The Companion, edited by Thomas John, Dr Rishi Gulati and Dr Ben Koehler, is a unique, unprecedented and comprehensive insight into the HCCH, compiling in one source accessible and thought-provoking contributions on the Organisation’s work. Written by some of the world’s leading private international lawyers, all of whom have directly or indirectly worked closely with the HCCH, the result is a collection of innovative and reflective contributions, which will inform shaping the future of this important global institution.

The Companion is timely: for more than 125 years, the HCCH has been the premier international organisation mandated to help achieve global consensus on the private international law rules regulating cross-border personal and commercial relationships. The organisation helps to develop dedicated multilateral legal instruments pertaining to personal, family and commercial legal situations that cross national borders and has been, and continues to be, a shining example of the tangible benefits effective and successful multilateralism can yield for people and businesses globally.

Approach to private international law

The Companion approaches private international law classically, that is, by understanding the subject matter with reference to its three dimensions: jurisdiction, applicable law, and the recognition and enforcement of foreign judgments. But, as the contributions in this work show, since its inception, and in particular since the 1980s, the HCCH has helped to reach international consensus concerning a further, a “fourth” dimension of private international law: cross-border legal cooperation.

In line with this development, and with the firm belief that such cooperation is crucial to the private international law of the 21st century, the Companion has adopted a strong focus on cross-border legal cooperation, including by an increased use of technology. This deliberate choice was fortuitous: the global pandemic is testing the domestic and international justice sector like never before, bringing into sharp focus the often non-existing or still arcane methods prevalent especially in the area of cross-border legal cooperation.

Structure of the Companion

The Companion comprises 35 Chapters that are organised into three Parts.

Part I of the Companion: Institutional perspectives

Part I consists of three Sections. Section 1 considers the HCCH as an international organisation and the contributions trace the development of the Organisation from its inception in 1893 until the present day, including its trajectory towards a truly global organisation. The initial Chapters specifically concern the history of the HCCH; its institutional setting, especially in terms of the HCCH’s privileges and immunities; as well as a contribution on the relationship between the HCCH, and the other two international organisations dealing with international private law issues, i.e., UNCITRAL and UNIDROIT, often also referred to as the HCCH’s ‘Sister Organisations’.

The following Section is dedicated to the HCCH as an organisation with global reach. The Chapters demonstrate how the HCCH is evolving from an organisation whose membership was historically European-based into an increasingly global institution. The HCCH currently has 86 Members (as of December 2020), comprising 85 States and the EU. Perhaps other Regional Economic Integration Organisations (REIO) may also become members one day, and this should be encouraged. Remarkably, since the turn of the century, the HCCH has added 39 New Members (or 45% of its current membership), including six South American States, two States from North America, one in Oceania, fourteen in Asia, eleven in Europe and five in Africa.[1] Since 3 December, the HCCH has a further Candidate State: Mongolia, which has applied for membership and for which the six-month voting period is now running. Importantly, this Section considers the HCCH’s expanded reach, including thoughtful contributions on the organisation’s work in Latin America and the Caribbean; Africa; and in the Asia Pacific. The Chapters also reflect on the work of the HCCH’s Regional Offices, namely, the Regional Office for Asia and the Pacific (ROAP), which is based in Hong Kong and commenced its work in 2012; as well as the Regional Office for Latin America and the Caribbean (ROLAC), operating out of Buenos Aires since 2005.

Part I’s final Section looks at the HCCH as a driver of private international law. The Chapters contain stimulating contributions concerning some of the contemporary philosophical dimensions of private international law as shaped by globalisation, and the ways in which the HCCH can be understood in this context; the role the Organisation can play in shaping private international law into the future; considering whether the 2015 Choice of Law Principles establish a good framework for regulatory competition in contract law; what role the HCCH can play in further strengthening legal cooperation across borders; and the concept of public order, including its relationship with mandatory law.

Part II of the Companion: Current instruments

Part II of the Companion concerns contributions on existing HCCH instruments. It traces the evolution, implementation, and effectiveness of each of those instruments, and looks forward in terms of how improvements may be achieved. The contributors not only provide a record of the organisation’s successes and achievements, but also provide a critical analysis of the HCCH’s current work. They canvassed the traditional tripartite of private international law, including forum selection, choice of law and the recognition and enforcement of judgments. In addition, they also provided their thoughts on the fourth dimension of private international law, i.e. cross-border legal cooperation, tracing the pioneering, as well as championing, role of the HCCH in this regard, resulting in cooperation being a quintessential feature, in particular of more modern conventions, developed and adopted by the HCCH.

Part II is organised following the three pillars of the HCCH: (1) family law; (2) international civil procedure, cross-border litigation and legal cooperation; and (3) commercial and financial law.

The first Section of Part II addresses HCCH instruments in the family law sphere. Contributions include an analysis of the HCCH and its instruments relating to marriage; the 1980 Child Abduction Convention; the 1993 Intercountry Adoption Convention; a Chapter on the challenges posed by the 1996 Child Protection Convention in South America; the 2000 Adult Protection Convention; a contribution on HCCH instruments in the area of maintenance Obligations; the work of the HCCH in the field of mediation in international children’s cases; and a contribution overviewing the interaction between various HCCH instruments concerning child protection.

The second Section concerns HCCH instruments that are some of its major successes. But as the Chapters show, more work needs to be done given the ever-increasing cross-border movement of goods, services and people, and the need to better incorporate the use of technology in cross border legal cooperation. Contributions concern the 1961 Apostille Convention; the 1965 Service and 1970 Evidence Conventions; the 2005 Choice of Court Convention; and finally, the 2019 Judgments Convention which was decades in the making.

The final Section in Part II consists of contributions on HCCH commercial and finance instruments. Contributions specifically focus on the 1985 Trusts Convention; the 2006 Securities Convention; and the 2015 Choice of Law Principles, which constitute a soft law instrument demonstrating versatility in the kind of instruments HCCH has helped negotiate.

Part III – Current and possible future priorities

Part III of the Companion consists of Chapters that discuss the substantive development of private international law focusing on current and possible future priorities for the HCCH. In that regard, this Companion seeks to bridge the HCCH’s past and its future.

The first Section focuses on current priorities. It consists of contributions on a highly difficult and sensitive area of international family law, i.e. parentage and international surrogacy and how the HCCH may assist with its consensual solutions; how the HCCH may play a global governance role in the area of the protection of international tourists; and how the exercise of civil jurisdiction can be regulated. Specifically, this Chapter shows how the doctrine of forum non conveniens is increasingly being influenced by access to justice considerations, a matter borne out by comparative analysis.

The second Section of Part III, and of the Companion, contemplates possible future priorities for the HCCH. Contributions concern how private international law rules ought to be developed in the context of FinTech; what role the HCCH may play in setting out the private international law rules in the sphere of international commercial arbitration; how the digitisation of legal cooperation ought to reshape the fourth dimension of private international law; the potential development of special private international law rules in the context of complex contractual relationships; how the HCCH can engage with and embrace modern information technology in terms of the development of private international law; and finally, what role there is for the HCCH in developing a regulatory regime for highly mobile international employees. It is hoped that in addition to providing ideas on how progress may be made on its current priorities, the contributions in Part III can also provide a basis for the HCCH’s future work.

Concluding remarks and outlook

The editors, who collaboratively prepared this entry, chose this structure for the Companion to provide the reader with an easy access to a complex organisation that does complex work. The structure also makes accessible the span of time the Companion bridges, chronicling the HCCH’s history, reaching back to 1893, while looking forward into its future.

The second entry on Conflict-of-Laws.net will outline the editor’s reflections on the 35 Chapters, drawing out some of the key themes that emerged from the Companion, including the HCCH’s contribution to access to justice and multilateralism.

[1] HCCH, ‘Members & Parties’ <https://www.hcch.net/en/states> accessed 6 December 2020. The latest Member State is Nicaragua for which the Statute of the HCCH entered into force on 21 October 2020.

The University of Zurich, Switzerland, has asked CoL to publish the following:

The University of Zurich is seeking applications for a Professorship in private law (with a focus on the Code of Obligations) to take effect from the beginning of the Spring Semester 2022 (1 February 2022), or by arrangement. The level of employment is 50%. The professorship is to be occupied by an individual with a command of the Swiss Code of Obligations as a subject in its full breadth and in reference to comparative law. Proof of exceptional qualification in this subject is to be provided in the form of an outstanding dissertation and a completed or near-com-pleted habilitation thesis (or equivalent academic accomplishment). Also desirable is a willingness to use research and teaching to address current issues concerning the Code of Obligations that may arise in the course of digitalisation, for example, as well as other develop-ments. Depending on the applicant’s qualifications, the professorship will take the form of a full or associate professorship. A temporary tenure-track assistant professorship is possible if the applicant’s habilitation thesis is at an advanced stage but is not yet completed. The University of Zurich strives to increase the representation of women in research and teaching, and therefore specifically encourages qualified female academics to apply. Further information relating to this job profile can be found below. Please submit your application documents as specified in the job profile by 30 December 2020 via www.recruiting.ius.uzh.ch. You may be requested to submit hard-copy documents separately at a later point. The relevant member of the appointment committee, Professor Helmut Heiss (helmut.heiss@rwi.uzh.ch), is available to answer any questions and provide further information.

Further information is here.

The British Institute of International and Comparative Law (BIICL) (in consortium with Civic Consulting) has been selected by the European Commission to conduct a study supporting the preparation of a report on the application of the Rome II Regulation (EC) No. 864/2007 on the law applicable to non-contractual obligations (JUST/2019/JCOO/FW/CIVI/0167).

The study assesses the 10-year application of the Rome II Regulation in the Member States and will support the Commission in the future review of the Regulation. It analyses all areas covered and looks into specific, cutting-edge questions, such as cross-border corporate violations of businesses against human rights and the potential impact of the development of artificial intelligence.

To gather views of practitioners and academics from all Member States, BIICL conducts a survey which is available here: https://www.surveymonkey.com/r/JLWQ8XQ

Please contribute your experience to the study, if you have a particular expertise in the Rome II Regulation, or in one of the above-mentioned areas – namely cross-border torts related to artificial intelligence, corporate abuses against human rights, or defamation.
BIICL invites interested colleagues from all Member States to participate in the survey, but seeks in particular more contributions from: Bulgaria, Croatia, Cyprus, Finland, Luxembourg, Romania and Slovenia.

Deadline: December 31st, 2020

More information about the Study is available on BIICL’s website (https://www.biicl.org/projects/com-study-on-the-rome-ii-regulation).

 

First Part https://fb.watch/2a8DGPRMtc/ (HCCH); https://fb.watch/2a8XU-EuX6/  (ASADIP)

Second Part https://fb.watch/2a8Bmy347e/ (HCCH); https://fb.watch/2a8VDZCcPL/ (ASADIP)

 

By Dr Sarah McKibbin

In the recent decision of RCD Holdings Ltd v LT Game International (Australia) Ltd,[1] Davis J of the Supreme Court of Queensland dismissed proceedings brought in breach of an exclusive jurisdiction clause that had been expressed in ‘an arm’s length agreement reached between commercial entities’.[2] In deciding whether to exercise his discretion not to stay or dismiss proceedings, Davis J examined whether procedural disadvantages and ‘inconvenience’ in the jurisdiction nominated in the clause were relevant considerations.

In 2013, the parties entered a contract setting up a scheme to promote a computer betting game at casinos in Melbourne, Nevada and Melbourne.[3] The contract, which was signed and to be partially performed in Australia, included a clause entitled ‘Governing Law’ by which the parties agreed that:[4]

any dispute or issue arising hereunder, including an alleged breach by any party, shall be heard, determined and resolved by an action commenced in Macau. The English language will be used in all documents.

A dispute arose and, notwithstanding the clause, the plaintiffs commenced proceedings in Queensland alleging breaches of the contract in connection with the scheme’s implementation at Crown Casino in Melbourne. The defendant, LT, entered a conditional appearance seeking to strike out the claim or, alternatively, have it stayed based on the exclusive jurisdiction clause. The plaintiffs’ submissions focused on the inconvenience of having to litigate in Macau and the perceived procedural advantages secured by LT in doing so.[5] The plaintiffs further submitted that the COVID-19 pandemic prevented them from commencing proceedings in Macau.[6]

The decision reinforces that ‘strong reasons’[7] are required to enliven the court’s discretion not to grant a stay of proceedings brought in breach of an exclusive jurisdiction clause. This reflects a fundamental policy consideration that ‘“parties who have made a contract should be kept to it”’.[8] Here, the parties differed on the circumstances relevant to the exercise of this discretion.[9] The plaintiffs relied upon the list of circumstances identified by Brandon J in The Eleftheria, which included ‘the relative convenience and expense of the trial’ and ‘[w]hether the plaintiffs would be prejudiced by having to sue in the foreign court’.[10]  As Davis J marked, subsequent English and Australian decisions have questioned the role of procedural disadvantages and inconvenience in the nominated jurisdiction, ‘at least when they are factors which should have been known at the time the exclusive jurisdiction clause was agreed.’[11]

In that respect, Davis J followed the judgment of Bell P in the recent New South Wales Court of Appeal decision of Australian Health & Nutrition Association Ltd v Hive Marketing Group,[12] which endorsed the critical observations of Allsop J in Incitec Ltd v Alkimos Shipping Corp[13] and Waller J in British Aerospace plc v Dee Howard Co.[14] In Incitec, Allsop J perceived ‘financial and forensic inconvenience’ to the party bound by the clause to be the direct consequence of the bargain entered.[15] In a similar vein, Waller J in British Aerospace considered that these factors ‘would have been eminently foreseeable at the time that [the parties] entered into the contract’.[16]

Setting issues of ‘inconvenience’ to one side, however, Davis J attached greater significance to the fact that the parties upon contracting presumably ‘considered the commercial wisdom of agreeing’ to the inclusion of the clause.[17] The factors relied upon by the plaintiffs were in existence and could have been taken into account by the parties at the time of contracting.[18] Indeed, evidence demonstrated that the courts of Macau: (1) could deal with the claim; (2) could provide the remedy sought by the plaintiffs; and (3) would accept court documents in the English language.[19] Issues of inconvenience ‘can hardly be weighty in the exercise of discretion where one party seeks to deny the other the benefit of the covenant.’[20] Finally, Davis J observed that ‘there is little, if any, evidence at all as to the impact of the pandemic upon any litigation in Macau’.[21] Yet, ‘if the pandemic developed so as to effectively prevent, or unduly frustrate’ litigation in Macau, this discretionary consideration would be taken into account together with ‘any other relevant considerations’ in a subsequent application.[22]

[1] [2020] QSC 318.

[2] Ibid, [56].

[3] Davis J observes that ‘[t]he scheme is clearly to be targeted at casinos throughout the world’: at para [7].

[4] RCD Holdings (n 1) [8].

[5] Ibid, [54].

[6] Ibid, [33].

[7] Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, 259 (Gaudron J). Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418, 429 (Dawson and McHugh JJ), 445 (Toohey, Gaudron and Gummow JJ).

[8] Ibid, quoted in RCD Holdings (n 1) [57].

[9] Ibid, [58].

[10] Ibid.

[11] See, eg, British Aerospace plc v Dee Howard Co [1993] 1 Lloyd’s Rep 368; Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496, 506; Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419.

[12] Australian Health & Nutrition (n 7).

[13] (2004) 138 FCR 496, 506 [49].

[14] [1993] 1 Lloyd’s Rep 368, 376.

[15] Incitec Ltd v Alkimos Shipping Corp (n 11) 506 [49].

[16] British Aerospace plc v Dee Howard Co (n 12) 376.

[17] RCD Holdings (n 1), [65].

[18] Ibid.

[19] Ibid, [32].

[20] Ibid, [65].

[21] Ibid, [70].

[22] Ibid.