Conflictoflaws

On 11 December 2020, from 11 am to 1 pm (MET), the European Association of Private International Law will host the first EAPIL (Virtual) Seminar. Devoted to the impact of Brexit on Private International Law speakers from the United Kingdom and the European Continent will analyze the legal framework that will apply to cross-border cases in the short-term, i.e. as of 1 January 2021 when the transition period provided for in the Withdrawal Agreement has expired. In addition, they will discuss what the future relationship between the EU and the UK could and should look like. Special emphasis will be placed on the question of whether the EU and the UK should strive to adopt a new – bespoke – bilateral agreement (or whether it should simply join existing international conventions).

The speakers of the first session, on civil and commercial matters, will be:

• Alexander Layton (Twenty Essex Street Chambers, London)
• Eva Lein (University of Lausanne)
• Michiel Poesen (KU Leuven)

The second session, on family matters, will feature presentations by:

• Sir Andrew Moylan (Court of Appeal of England and Wales)
• Pietro Franzina (Catholic University of the Sacred Heart, Milan)
• Anatol Dutta (Ludwig Maximilian University Munich).

The Seminar will take place via Zoom. Information about how to register will be announced in due course.

If you have questions concerning the first EAPIL Seminar or the EAPIL Seminar Series as such please get in touch with the Secretary General of EAPIL, Giesela Rühl, at secretary.general@eapil.org.

Background:

The EAPIL (Virtual) Seminar Series was established in October 2020 to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

Many international commercial parties usually provide for a choice of court agreement as a term of their contract. This is done to enhance predictability, certainty and reduction of costs in the event a dispute arises between the parties. Since a choice of court agreement is a term of the contract, does the principle of contract law apply to determine a choice of court agreement? Though this is a matter of controversy in Nigerian law,[1] some recent appellate (Court of Appeal and Supreme Court) cases have  given a foreign choice of court agreement a contractual function.[2]

Kashamu v UBN Plc[3] is a most recent Court of Appeal decision that analyses a foreign choice of court agreement exclusively from the principles of contract law. In this case, The Banque International Du Benin (“BIDB”), a limited financial institution in Benin Republic, granted medium term loan facilities, in different sums, to the Societe d’ Egrenage Industrial De Cotonu du Benin (“SEIC-B”), a private limited company registered in Benin Republic, for construction of its Cotton Ginning factory. The facilities were secured by, inter alia, SEIC-B’s goodwill, factory and land. In addition, the defendant/appellant, the alter ego of SEIC-B, personally guaranteed the facilities in a personal guarantee agreement. The loan agreement between BIDB and SEICB provided that the law and courts of Benin Republic should determine their dispute. However, the guarantee agreement between BIDB and the defendant/appellant did not explicitly provide for a choice of court agreement.

SEIC-B defaulted in the repayment of the loans despite repeated demands. As a result, BIDB appointed the plaintiff/respondent, a public limited financial institution in Nigeria, as its attorney to recover the outstanding facility. Further to the donated power of attorney, the plaintiff/respondent claimed recovery of the debt from the defendant/appellant in the Lagos High Court, Nigeria. The defendant counter-claimed and also challenged the jurisdiction of the Lagos High Court as being the wrong forum to institute the action. The Lagos High Court held that it had jurisdiction.

The defendant/appellant was dissatisfied with this decision and appealed to the Court of Appeal. The defendant/appellant argued that the proper forum for the action was the Courts in Benin Republic, given that the loan agreement between BIDB and SEICB provided that the law and courts of Benin Republic should determine their dispute, He argued that the choice of court agreement in the loan contract should also be incorporated into the guarantee agreement, so that it was the intention of the parties that the courts  of Benin Republic should determine their dispute. He also argued that the execution and performance of the contract were to be in Benin Republic hence the agreement was in French Language.

The plaintiff/respondent argued that the loan agreement and guarantee agreement were distinct. It observed that the parties were bound by the terms in the guarantee agreement. It added that the parties in the guarantee agreement did not agree that the court in Benin Republic would have exclusive jurisdiction over disputes arising from it. It asserted that the guarantee agreement was not expressly incorporated in the loan agreement. It opined that the appellant was not privy to the loan agreement and would not take a benefit from or enforce it for want of privity of contract. It claimed that the content of the guarantee agreement was clear and must be given its literal meaning.

The Court of Appeal unanimously dismissed the appeal. In construing the loan and guarantee agreement to determine if the parties chose the courts of Benin Republic, it applied the principles of Nigerian contract law to the effect that courts are allowed to read a document holistically so as to reach and garner harmonious results of its content. In construing a document, the court is enjoined or mandated by law to apply the literal rule as a canon of interpretation, that is, to accord the words employed there in their ordinary grammatical meaning without any embellishment.[4] It then held that for the document of parties to a private contract to confer jurisdiction on a court, the words used must be clear and explicit and devoid of woolliness and ambiguity. In the instant case, the guarantee contract did not precisely confer jurisdiction on the Benin Republic court.[5] It further held that loan contract did not in any way allude to the guarantee to benefit from the doctrine of incorporation by reference. The doctrine of incorporation could not be invoked because of the want of connection between the two documents.[6]

Kashamu’s case demonstrates the recent attitude of some Nigerian appellate courts to treat choice of court agreements as a term of the contract which should be construed strictly according to the literal and ordinary words used in the contract. In effect in the absence of vitiating circumstances, the parties are bound by the terms of a choice of court agreement, and a Nigerian court will not add or subtract from the way the parties drafted the contract. The Court of Appeal’s approach in Kashamu reflected Nigeria’s law that interprets contractual documents strictly. Kashamu is a modern approach that applies the principles of contract law to choice of court agreements.

[1]For an extended analysis see generally CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, 2020) 107 – 125.

[2]Nika Fishing Company Ltd v Lavina Corporation (2008 ) 16 NWLR 509, 542 (Tobi JSC); Captain Tony Nso v Seacor Marine ( Bahamas) Inc ( 2008 ) LPELR-8320 (CA); Beaumont Resources Ltd v DWC Drilling Ltd ( 2017 ) LPELR-42814 (CA); Kashamu v UBN Plc (2020) 15 NWLR (Pt. 1746) 90.

[3]Kashamu (Ibid)

[4] Kashamu (Ibid) 114-5 (Ogbuinya JCA).

[5] Kashamu (Ibid) 115 (Ogbuinya JCA).

[6] Kashamu (Ibid) 116 (Ogbuinya JCA).

The HCCH and the German Presidency of the Council of the European Union have the pleasure of announcing that registration is now open for HCCH a|Bridged – Edition 2020, which will mark the golden anniversary of the HCCH Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (HCCH Evidence Convention). This year’s edition builds upon the success of HCCH a|Bridged – Edition 2019, which revolved around the theme ‘The HCCH Service Convention in the Era of Electronic and Information Technology’. 

The event will be hosted entirely online on Wednesday 2 December from 2:15 p.m. CET. It will feature a keynote speech by Professor Dr Michael Stürner entitled “50 years of the HCCH Evidence Convention – Facilitating cross-border proceedings” as well as two panels that will discuss the very latest in the cross-border taking of evidence under Chapter I and II of the HCCH Evidence Convention.

Participants will be able to follow the event via a livestream on a dedicated website. While participation is free of charge, the number of registered participants will be limited, and registrations will therefore be handled on a first come, first served basis.

After registration, participants will receive a password which will also enable them to interact with other participants via a chat function and ask questions during the panel discussions. This password will be distributed to registered participants a few days before the conference. We also encourage participants to submit their questions before the meeting, preferably at the time of registration. Please note that the working language of HCCH a|Bridged – Edition 2020 will be English, and there will be no French interpretation. 

The deadline for registrations is Friday 27 November 2020 at 5:00 p.m. CET. A Concept Note, the Programme, and registration information is available on the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

Issue 4 of RabelsZ is now available online and in print. It contains the following articles:

MAX-PLANCK-INSTITUT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT, Die Frühehe im Rechtsvergleich: Praxis, Sachrecht, Kollisionsrecht (Early Marriage in Comparative Law: Practice, Substantive Law, Choice of Law), pp. 705–785

Early marriage is a global and ancient phenomenon; its frequency worldwide, but especially in Europe, has declined only in recent decades. Often, early marriage results from precarious situations of poverty, a lack of opportunities and education, and external threats, for example in refugee situations. However the concepts and perceptions of marriage, family, identities, and values in different societies are diverse, as the comparison of regulations and the practice of early marriage in over 40 jurisdictions shows. Even if early marriage appears generally undesirable, for some minors the alternatives are even worse. Some countries set fixed ages for marriage; others use flexible criteria such as physical or mental maturity to determine a threshold for marriage. All, however, until very recently provided for the possibility of dispensation. In Western countries, such dispensations have rarely been sought in the last decades and have consequently been abolished in some jurisdictions; elsewhere they still matter. Also, most countries bestow some legal effects to marriages entered into in violation of age requirements in the name of a favor matrimonii.

Early marriage has an international dimension when married couples cross borders. Generally, private international law around the world treats marriages celebrated by foreigners in their country of origin as valid if they comply with the respective foreign law. Such application is subject to a case-specific public policy exception with regard to age requirements, provided the marriage has some relation to the forum. Recent reforms in some countries, Germany included, have replaced this flexible public policy exception with a strict extension of the lex fori to foreign marriages, holding them to the same requirements as domestic marriages and thereby disabling both a case-by-case analysis of interests and the subsequent remediation of a violation of the forum’s age requirements. As a consequence, parties to a marriage celebrated abroad can be treated as unmarried, meaning they derive no rights and protection from their marriage, and their marriage may be limping – valid in one country, invalid in another.

The extension of domestic age requirements to foreign marriage without exception, as done in German private international law, is problematic in view of both European and German constitutional law. The refusal to recognize early marriages celebrated abroad can violate the European freedom of movement. It can violate the right to marriage and family (Art. 6 Grundgesetz) and the child’s best interests. It can violate acquired rights. It can also violate the right to equality (Art. 3 Grundgesetz) if no distinction is made between the protection of marriages validly entered into abroad and the prevention of marriages in Germany. Such violations may not be justifiable: The German rules are not always able to achieve their aims, not always necessary compared with milder measures existing in foreign laws, and not always proportional.

Edwin Cameron and Leo Boonzaier, Venturing beyond Formalism: The Constitutional Court of South Africa’s Equality Jurisprudence, pp. 786–840

[Excerpt taken from the introduction]: After long years of rightful ostracism under apartheid, great enthusiasm, worldwide, embraced South Africa’s reintegration into the international community in 1994. The political elite preponderantly responsible for the Constitution, the legal profession, and the first democratic government under President Nelson Mandela were committed to recognisablyliberal principles, founded on democratic constitutionalism and human rights.

This contribution is an expanded version of a keynote lecture given by Justice Edwin Cameron at the 37th Congress of the Gesellschaft für Rechtsvergleichung at the University of Greifswald on 19 September 2019.

Chris Thomale, Gerichtsstands– und Rechtswahl im Kapitalmarktdeliktsrecht (Choice-of-court and Choice-of-law Agreements in International Capital Market Tort Law), pp. 841–863

The treatment of antifraud provisions in international securities litigation is a salient topic of both European capital markets law and European private international law. The article sets the stage by identifying the applicable sources of international jurisdiction in this area as well as the situations in which a conflict of laws may arise. It then moves on to give a rough and ready interpretation of these rules, notably construing the “place where the damage occurred”, according to both Art. 7 Nr. 2 Brussel Ibis Regulation and Art. 4(1) Rome II Regulation, as being equivalent to the market where a financial instrument is listed or is intended to be listed. However, as the article sets out in due course, this still leaves plenty of reasonable opportunity for a contractual choice of court or choice of law. This is why the article’s main focus is on creating a possibility to utilize choice-of-court and choice-of-law agreements. This is feasible either in the issuer’s charter or, notably in the case of bonds, in the prospectus accompanying the issuance of a given financial instrument. The article shows that both arrangements satisfy the elements of Art. 25 Brussel Ibis Regulation on choice-of-court agreements and Art. 14(1) lit. b Rome II Regulation on ex ante choice-of-law agreements. 

Moritz Hennemann, Wettbewerb der Datenschutzrechtsordnungen – Zur Rezeption der Datenschutz-Grundverordnung (The Competition Between Data Protection Laws –  The Reception of theGeneral Data Protection Regulation), pp. 864–895

The General Data Protection Regulation (GDPR) has granted the European Union an excellent position in the “competition” between data protection laws. This competition goes along with a gradual convergence of data protection laws worldwide, initiated and promoted by the European Union. In this competition, the European Union benefits not only from the so-called Brussels Effect (Bradford), but also from distinct legal instruments: The GDPR rules on the scope of application and on data transfer to non-EU countries are of legal importance in this competition, and the adequacy decision under Art. 45 GDPR creates further de facto leverage for negotiations on free trade agreements with non-EU countries. The European Union has already been able to use this tool as a catalyst for European data protection law approaches. The European Union should, however, refrain from “abusing” its strong position and not press for extensive “copies” of the GDPR worldwide – and thereby create legislative lock-in-effects. Alternative regulatory approaches – potentially even more innovative and appropriate – are to be evaluated carefully by means of a functional and/or contextual comparative approach.

On Youtube you can find the videos of the Annual Conference of the German-Colombian Lawyers Association (DKJV/ACAJ). The conference took place digitally from 29 to 30 October 2020. It dealt with current legal developments in Germany and Colombia with a special focus on Covid-19.

The presentations are in Spanish. They are not only interesting from a comparative point of view. They also they deal with private international law and international procedural law matters.

The program was the following:

• Saludos y bienvenida a los participantes

del Embajador de Colombia en Alemania Hans-Peter Knudsen Quevedo

• Ponencia 1:

Prof. Dr. Dr. h. c. Martin Ibler, Universität Konstanz (Alemania): Últimos límites constitucionales que protegen los Derechos Fundamentales en la lucha contra Covid19

• Ponencia 2:

Prof. Dr. Christian Wolffhügel, Ministerio de Justicia (Colombia): Valoración de las medidas de la Administración Colombiana durante la pandemia Covid19

• Ponencia 3:

Prof. Dr. Bernd Marquardt, Universidad Nacional (Bogotá, Colombia): Corona y el derecho constitucional: Colombia en el contexto latinoamericano

• Ponencia 4:

Prof. Dr. María Julia Ochoa Jiménez, LL.M., Universidad de Antioquia (Medellín, Colombia): El Derecho Internacional Privado en el proyecto de reforma del Código Civil de Colombia

• Ponencia 5:

Prof. Gabriel Barreto Ferro, LL.M., Universidad Santo Tomás; Barreto, Torres & Puig (Bogotá, Colombia): La digitalización de la justicia bajo la influencia de la crisis del Covid19

• Ponencia 6:

Prof. Mauricio Torres Guarnizo, LL.M., Universidad Santo Tomás, Barreto, Torres & Puig (Bogotá, Colombia): Los efectos de la crisis del Covid19 en el Derecho Económico en Colombia

• Ponencia 7:

Prof. Dr. John Zuluaga Taborda, LL.M., Universidad Sergio Arboleda (Bogotá, Colombia): La cooptación del sistema sanitario por parte del poder punitivo. Un análisis del caso colombiano

• Ponencia 8:

Prof. John Jairo Morales Alzate, LL.M., Arbitro Lista A Cámara de Comercio; Conjuez Sección 2 Consejo de Estado y Sala Disciplinaria (Bogotá, Colombia): El arbitraje en Colombia en tiempos de Covid19

• Ponencia 9:

Prof. Dr. Susanne Gössl, LL.M., Universität zu Kiel (Alemania): La legislación de Covid19 en materia civil en Alemania

• Ponencia 10:

Dr. Katharina König, Editorial Nomos (Alemania/Colombia): La admisión de juristas extranjeros como abogados en Colombia de la perspectiva alemana

• Ponencia 10:

Magistrado Prof. Milton Chaves García, Consejo de Estado (Colombia): La Fiscalidad ante la Crisis del Covid19

• Ponencia 11:

Prof. Dr. Michael Stöber, Universität zu Kiel (Alemania): Evolución reciente del Derecho Tributario Alemán con especial atención a las medidas Covid19

• Ponencia 12:

Elisabeth Hincapié Hincapié, LL.M., Harsco Rail Europe GmbH (Alemania): Actuales preguntas sobre el Cumplimiento

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

The University of Zurich is seeking applications for a Professorship in civil procedure and private law to take effect from the beginning of the Fall Semester 2021 (1 August 2021), or by arrangement.

We are seeking a candidate with an excellent legal track record who is committed to carrying out teaching and research across the whole spectrum of civil procedure law, including from an international and comparative law perspective. Experience in arbitration as well as restructuring and insolvency law is an advantage. This should be reflected in an outstanding dissertation, a habilitation thesis (or equivalent academic achievement) that is complete or at an advanced stage, and additional publications. Depending on the successful candidate’s qualifications, the professorship will take the form of a full or associate professorship. A temporary position as assistant professor with tenure track is possible provided that the candidate’s habilitation thesis is at an advanced stage. In all cases, the professorship will be a full-time position. If an excellent application is submitted, particularly from countries or regions (such as French-speaking Switzerland) that do not require a habilitation thesis to be completed, the requirement for habilitation can be waived if comparable achievements are demonstrated. Applicants must be able to teach in English and, ideally, in French. Applicants without a Swiss background must be willing to familiarise themselves with Swiss civil procedure and private law within a reasonable amount of time and, if necessary, attain the level of German required for teaching and examination. The University of Zurich strives to increase the proportion of under-represented groups – in particular women – in its teaching and research staff, and therefore explicitly encourages applications from these candidates. Further information relating to this job profile can be found below. Please submit your application documents as specified in the following job profile by 9 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 Tanja Domej (tanja.domej@rwi.uzh.ch), is available to answer any questions and provide further information.

Further information is here.

Kareem Olatoye and Abubakri Yekini, both lecturers at Lagos State University, Nigeria, recently published an article titled: “Islamic Law in Southern Nigerian Courts: Constitutional Law and Conflicts of Laws Perspectives” (2019/2020) 6 Benin Journal of Public Law 120. The abstract reads as follows:

This article challenges the prevailing views that Islamic law is not applicable in southern part of Nigeria and that the civil courts do not have jurisdiction over matters bordering on Islamic personal law. It argues that these views are wrong as litigants are denied access to justice since no state in the southern part of Nigeria has established Islamic courts. The article further argues that the existing legal frameworks – the Constitution, High Court Laws and Evidence Act – support the recognition and application of Islamic law either as a lex fori or lex causae. Thus, there ought to be no distinction between north and south because Islamic law is not a territorial law. The article suggests a paradigm shift in the Nigerian courts’ approach to Islamic law in Southern Nigeria, particularly, the Southwest which has a near-majority Muslim population. It further suggests the establishment of Islamic law courts or the creation of divisions in the existing civil courts for Islamic law matters to ensure that litigants have access to justice, and Islamic law questions are determined by those learned in that law.

The ELI-Unidroit Model European Rules of Civil Procedure were adopted by the European Law Institute and Unidroit in 2020. It consists of a set of main principles and rules covering a wide array of topics in the area of European civil procedure. It contains 245 rules in twelve parts, dedicated to  general provisions, rules on parties, case management, commencement of proceedings, proceedings preparatory to a final hearing, access to information and evidence, judgment, res iudicata and lis pendens, means of review, provisional and protective measures, collective proceedings and costs.

Aiming at transforming the ALI-Unidroit Principles on Transnational Civil Procedure (2004) to make them suitable for the European regional context, the groundwork was laid at an exploratory workshop in Vienna in October 2013. The project kicked off in 2014, when the first three working groups were established. In the following years, five more working groups dedicated to specific topics were added, and in 2016, the Structure group was tasked with coordinating the work of the different working groups, filling the gaps, and securing a coherent set of model rules to be used by European and national legislators in particular. In collaboration with a task force charged with the (overview of) the translation of the Rules into French, the work was completed in 2020. It was approved by the ELI Council on 15 July and by ELI Membership on 5 August, and approved by the Unidroit Governing Council on 24 September 2020. This project, involving some 45 academics and practitioners participating in the working groups as well as a Steering group, advisory members from all over the world, and European and international institutions as observers, is the most encompassing set of model rules on European Civil Procedure.

A series of conferences and seminars were held over the past years and will be held to discuss the Rules, including an expected celebratory ELI-Unidroit event that had to be postponed due to Covid-19. A Nordic conference organized by the Swedish Network for European Studies and Uppsala University will take place on 15-16 March 2021. More information is available here.

Erasmus School of Law of Erasmus University Rotterdam is organizing a mini-webinar on Friday, 6 November 2020 from 11.30-13 hrs CET. You can register for free here until 6 November at 9 am CET.

The ELI-Unidroit Model European Rules of Civil Procedure: soft law shaping the future of European Civil Procedure?

11.20 – 11.30     Welcome and opening

11.30 – 11.50    Xandra Kramer (Erasmus University Rotterdam, Utrecht University)

Creation, main principles, and perspectives of the ELI-Unidroit Model Rules

11.50 – 12.00    Discussion

12.00 – 12.20    Eva Storskrubb (Uppsala University)

Cost Rules in the ELI-Unidroit Model Rules

12.20 -12.40      Masood Ahmed (University of Leicester)

Costs, Management & ADR: an English view on the ELI-Unidroit Model Rules

12.40 – 13.00    Discussion

This webinar is organized in the context of the ongoing ERC project Building EU Civil Justice at Erasmus School of Law (PI: Xandra Kramer), financed by the European Research Council and anticipates the Vici project Affordable Access to Justice, financed by the Dutch Research Council that will kick off in December 2020.

On Tuesday, November 3, the Hamburg Max Planck Institute will host its fifth monthly virtual workshop in private international law at 11:00-12:30. Susanne Gössl (Christian Albrecht University Kiel) will speak, in German, about the topic

„Wer oder was bin ich überhaupt? – Zur Zukunft des Personalstatuts unter europäischen Einflüssen
(“Who or What am I Anyway? The Future of the Law Applicable to Natural Persons under European Influence”)

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

This is the fifth such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, and Anatol Dutta in October. The designated December speaker isMarc-Philippe Weller (Heidelberg). Starting in January 2021,  we plan to alternate between German and English, in order to enable more interested scholars to participate.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

C. Wendehorst: Digital Assets in Private International Law

Rights with third party effect (erga omnes rights, rights in rem) in digital assets may exist at four levels: (a) the level of physical manifestation of data on a medium; (b) the level of data as encoded information; (c) the functional level of data as digital content or services; and (d) the level of data as representation of rival assets. As yet, recognized conflict-of-law rules exist only for level (c), which has always been dealt with under international intellectual property law.

As to rights in physical manifestations of data, these may be dealt with under Art. 43 EGBGB where data is stored and accessed only locally. In the case of remote access to data, especially in the case of data stored in the cloud, the law of the state where the controller is located should apply. In the case of two or more controllers located in different states, the location of the server operator (cloud provider) may decide instead, but neither of these connecting factors applies if the facts of the case indicate a closer connection with the law of another state.

Data as encoded information is a non-rival resource. Should a foreign jurisdiction recognise exclusive data ownership rights, these would have to be dealt with under international intellectual property law. For data access rights, portability rights and similar rights the rules on the territorial scope of the GDPR may provide some helpful indications as to the applicable law. However, where such rights arise within a contractual relationship or other specific framework the law applicable to this framework may prevail.

As to crypto assets, uniform conflict-of-law rules would be highly desirable. Subject to further integration of crypto assets into the existing system for intermediated securities, rights in tokens should primarily be governed by the law referred to by conflict-of-law rules specifically addressing crypto assets, including appropriate analogies to such rules. Where no such rules exist, the closest connection must be ascertained by a connecting factor that is sufficiently certain and clearly visible to third parties, such as the law that has visibly been chosen as the applicable law for the whole ledger (elective situs), the location of the issuer (LIMA), or the place of the central administrator (PROPA) or of the sole holder of a private master key (PREMA).

R. de Barros Fritz: The new legal tech business model of mass action litigation from the choice of law perspective

In recent years, courts had to increasingly deal with questions of substantive law concerning a new, but in practice already well-established business model of mass action litigation, which is offered by companies such as Financialright Claims and Myright. These are often cases that have links to foreign countries. The present article has therefore taken this opportunity to examine the question of the law applicable to this business model in more detail.

P. Hay: Forum Selection Clauses – Procedural Tools or Contractual Obligations? Conceptualization and Remedies in American and German Law

German and American law differ methodologically in treating exclusive forum selection clauses. German law permits parties, subject to limitations, to derogate the jurisdiction of courts and, in the interest of predictability, to select a specific court for any future disputes. The German Supreme Court emphasized in 2019 that, as a contract provision, the clause also gives rise to damages in case of breach. American law historically does not permit parties to “oust” the jurisdiction a court has by law. But the parties’ wishes may be given effect by granting a party’s motion to dismiss for forum non conveniens (FNC) when sued in a different court in breach of the agreement. FNC dismissals are granted upon a “weighing of interests” and in the court’s discretion. The clause, even when otherwise valid, is therefore not the kind of binding obligation, enforced by contract remedies, as in German law. The case law does not give effect to its “dual nature,” as characterized by the German Supreme Court. The latter’s decision correctly awarded attorneys’ fees for expenses incurred by the plaintiff when the defendant had sued (and lost) in the United States in breach of a forum selection clause, especially since German jurisdiction and German law had been stipulated. Application of the “American Rule” of costs most probably would not have shifted fees to the losing party had American law been applied, although the rule is far less stringent today than often assumed.

A. Stadler/C. Krüger: International jurisdiction and the place where the damage occurred in VW dieselgate cases

Once again the European Court of Justice had to deal with the question of where to locate the place where the harm or damage occurred (“Erfolgsort”, Article 7 no. 2 Brussels Ibis Regulation) which is particularly difficult to define in case of pure economic loss tort cases. Previous case law of the ECJ resulted in a series of very specific judgments and a high unpredictability of the international jurisdiction. In the Austrian “Dieselgate” case the referring court had doubts whether the Austrian car purchasers who had bought and received their cars in Austria suffered a “primary loss” or only an irrelevant “secondary loss”. The ECJ rightly rejects the idea of a secondary loss and concludes that the place where the (primary) damage occurred is to be located in Austria. The authors criticise that the ECJ – without an obvious reason – emphasises that the case at hand is not about pure economic loss. Although they agree with the court’s finding that the place where the damage occurred was in Austria as the place of acquisition of the cars, they discuss whether in future cases one might have to distinguish between the place where the sales contract was entered into or the place where the defective object became part of the purchasers’ property. The authors reject any detailed approach and advocate in favour of abandoning the principle of ubiquity in cases of pure economic loss. Alternatively, the only acceptable solution is an entire consideration of all relevant facts of the individual case.

P.F. Schlosser: Jurisdiction agreements binding also third beneficiaries in contracts?

Even in the context of jurisdiction agreements, the European Court applies the rules protecting the policy holder for the benefit of the “insured”. In this respect the Court’s methodology and result must be approved of. The restriction of the holding as to the consent of the insured and the qualification of the insured as an insurance company are of no practical impact and due to the narrow question referred to the Court. The holding may, however, not be transferred by a reverse argumentation to assignments of rights against consumers or employees to commercial entities.

B. Heiderhoff: Article 15 Brussels IIbis Regulation, the Child’s best interests, and the recast

Article 15 Brussels IIbis Regulation provides that the court competent under Article 8 et seq Brussels IIbis Regulation may, under certain prerequisites, transfer the case to a court in another Member State. In the matter of EP./. FO (ECJ C-530/18) the ECJ once more explains the central notion of this rule, being the best interest of the child. The ECJ holds that the competent court must not initiate the transfer on the basis that the substantive law applied by the foreign court is more child friendly – which is, by the way, a rather unrealistic scenario for various reasons. Concerning procedural law, the ECJ points out that different rules may only be taken into account if they “provide added value to the resolution of the case in the interests of the child”. Notwithstanding the ECJ’s fundamental and recurrent statement that the transfer is never mandatory, it still seems reasonable for the competent court to apply a well-balanced, comprehensive approach towards the transfer. Should it deny the transfer to a court that is “better placed to hear the case” on the grounds that the foreign law is “different” or maybe that it even seems to be less in the interest of the child? According to the principle of mutual trust, the author suggests to use the public policy standard and to ignore any differences in the substantive and procedural law, as long as they do not threaten to add up to a public policy infringement. The paper also points out some changes in the new Articles 12 and 13 Brussels IIbis Recast which aim at further specifying the transfer mechanism. The resulting deletion of the comprehensive evaluation of the child’s best interests by the transferring court in para 1 seems unintentional. Thus, the author recommends to keep up the current handling.

F. Koechel: Article 26 of the Brussels Ibis Regulation as a Subsidiary Ground of Jurisdiction and Submission to Jurisdiction Through Eloquent Silence

According to the CJEU’s decision, a court may assume jurisdiction based on the entering of an appearance of the defendant only if Articles 4 ff. of the Brussels Ibis Regulation do not already provide for a concurrent ground of jurisdiction in the forum state. This restrictive interpretation complicates the assessment of jurisdiction and limits the scope of the Brussels Ibis Regulation without any substantial justification. On the contrary, a subsidiary application of Article 26 of the Brussels Ibis Regulation is systematically inconsistent with Article 25, which generally privileges the jurisdiction agreed by the parties over any concurrent ground of jurisdiction. In this decision, the CJEU confirms its previous interpretation according to which Article 26 Brussels Ibis Regulation may not be employed as a ground of jurisdiction vis-à-vis a defendant who chooses not to enter an appearance. However, the CJEU does not sufficiently take into account that in the main proceedings the court had requested the defendant to state whether or not he wanted to challenge jurisdiction. The question therefore was not simply if a defendant submits to a court’s jurisdiction by not reacting at all after having been served with the claim. Rather, the CJEU would have had to answer whether a defendant enters an appearance within the sense of Article 26 of the Brussels Ibis Regulation if he does not comply with the court’s express request to accept or challenge jurisdiction. The article argues that the passivity of the defendant may only exceptionally be qualified as a submission to jurisdiction if he can be deemed to have implicitly accepted the court’s jurisdiction.

C. Lasthaus: The Transitional Provisions of Article 83 of the European Commission’s Succession Regulation

The European Commission’s Succession Regulation 650/2012 aims to facilitate cross-border successions and intends to enable European citizens to easily organise their succession in advance. In order to achieve this goal, the regulation – inter alia – facilitates the establishment of bilateral agreements as to succession. This is the case not only for agreements made after 17/8/2015 but – under the condition that the testator dies after this date – according to the transitional provisions in Article 83 also for those made prior. Due to these transitional provisions, some formerly invalid agreements made prior to the effective date of the regulation turned valid once the regulation applied. In its judgment, the German Federal Court of Justice (“BGH“) ruled on the legal validity of a formerly invalid bilateral agreement as to succession between a German testator and her Italian partner. This legal review inter alia deals with the distinction between Article 83 para. 2 and Article 83 para. 3 of the Regulation as well as legal aspects concerning the retroactive effect of the transitional provisions.

P. Kindler: The obligation to restore or account for gifts and advancements under Italian inheritance law: questions of applicable law and international civil procedure, including jurisdiction and the law applicable to pre-judgment interest

The present decision of the Higher Regional Court of Munich deals with the obligation to restore or account for gifts and advancements when determining the shares of different heirs under Italian law (Article 724 of the Italian Civil Code). Specifically, it addresses a direct debit from the bank account held by husband and wife and payed to the wife alone a few days before the husband’s death. The husband was succeeded on intestacy by his wife and three descendants one of which sued the deceased’s wife in order to obtain a declaratory judgment establishing that half of the amount payed to the wife by the bank is an advancement, received from the deceased during his lifetime, and that such advancement has to be adjusted in the partitioning between the heirs. The article presents the related questions of applicable law under both the European Succession Regulation and the previous conflict rules in Germany and Italy. Side aspects regard, inter alia, the law applicable to interest relating to the judicial proceedings (Prozesszinsen) and how the Court determined the content of the foreign substantive law.

P. Mankowski: Securing mortgages and the system of direct enforcement under the Brussels Ibis Regulation

On paper, the Brussels Ibis Regulation’s turn away from exequatur to a system of direct enforcement in the Member State addressed was a revolution. In practice, its consequences have still to transpire to their full extent. The interface between that system and every-day enforcement practice is about to become a fascinating area. As so often, the devil might be in the detail, and in the minute detail at that. The Sicherungshypothek (securing mortgage) of German law now stars amongst the first test cases.

E. Jayme: Registration of cultural goods as stolen art: Tensions between property rights and claims of restitution – effects in the field of international jurisdiction and private international law

In 1999, the plaintiff, a German art collector had acquired a painting by the German painter Andreas Achenbach in London. In 2016 the painting was registered in the Madgeburg Lost Art Database according to the request of the defendant, a (probably) Canadian foundation. The painting was owned, between 1931 and 1937, by a German art dealer who had to leave Germany and was forced to close his art gallery in Düsseldorf. The plaintiff based his action on a violation of his property rights. The court dismissed the action: the registration, according to the court, did not violate the plaintiff’s property rights. The case, at first, involves questions of international civil procedure. The court based jurisdiction, according to para. 32 of the German Code of Civil Procedure, on the place of the pretended violation of property, i.e. the seat of the German foundation, which had registered the painting in its lost art register. The European rules were not applicable to a defendant having its seat outside the European community. The author follows the Magdeburg court as to the question of jurisdiction, but criticises the outcome of the case and the arguments of the court for generally excluding the violation of property rights. A painting registered as lost art loses its value on the art market, it cannot be sold. In addition, the registration of a painting as lost art may perhaps violate property rights of the German plaintiff in situations where there has been, after the Second World War, a compensation according to German public law, or where the persons asking for the registration did not sufficiently prove the legal basis of their claim. However, the Magdeburg registration board has developed some rules for cancelling registration based on objective arguments. Thus, the question is still open.

I. Bach/H. Tippner: The penalty payment of § 89 FamFG: a wanderer between two worlds

For the second time within only a few years, the German Federal Supreme Court (BGH) had to decide on a German court’s jurisdiction for the enforcement of a (German) judgment regarding parental visitation rights. In 2015, the BGH held that under German law the rule regarding the main proceedings (§ 99 FamFG) is to be applied, because of the factual and procedural proximity between main and enforcement proceedings. Now, in 2019, the BGH held that under European law the opposite is true: The provisions in Articles 3 et seq. Brussels IIbis Regulation are not applicable to enforcement proceedings. Therefore, the question of jurisdiction for enforcement proceedings is to be answered according to the national rules, i.e. in the present case: according to § 99 FamFG.

D.P. Fernández Arroyo:Flaws and Uncer tain Effectiveness of an Anti-Arbitration Injunction à l’argentine

This article deals with a decision issued by an Argentine court in the course of a dispute between an Argentine subsidiary of a foreign company and an Argentine governmental agency. The court ordered the Argentine company to refrain from initiating investment treaty arbitration against Argentina. This article addresses the conformity of the decision with the current legal framework, as well as its potential impact on the ongoing local dispute. Additionally, it briefly introduces some contextual data related to the evolution of Argentine policies concerning arbitration and foreign investment legal regime.

The website of The Hague Conference on Private International Law in October 29th recorded an important development, which reads as follows:

“Following the approval of the Explanatory Report on the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Judgments Convention) on 22 September 2020, the Permanent Bureau is pleased to announce the official publication of the Explanatory Report prepared by the co-Rapporteurs Professors Francisco Garcimartín (Spain) and Geneviève Saumier (Canada).”

More information can be found here

Membership

On 21 October 2020, Nicaragua deposited its instrument of acceptance of the Statute, becoming the 86th Member of the HCCH. More information is available here.

Conventions & Instruments 

On 1 October 2020, the HCCH 1965 Service Convention entered into force for the Philippines. It currently has 78 Contracting Parties. More information is available here.

On 23 October 2020, Serbia deposited its instrument of ratification of the HCCH 2007 Child Support Convention. It now has 42 Contracting Parties (41 States and the European Union) and will enter into force for Serbia on 1 February 2021. More information is available here. 

On 25 October 2020, the HCCH 1980 Child Abduction Convention and HCCH 1980 Access to Justice Convention celebrated their 40th anniversaries since adoption at the Fourteenth Session. More information is available here. 

On 29 October 2020, Costa Rica deposited its instrument of accession to the HCCH 1996 Child Protection Convention. It now has 53 Contracting Parties and will enter into force for Costa Rice on 1 August 2021. More information is available here. 

Meetings & Events

From 6 to 9 October 2020, the Experts’ Group on the Tourists and Visitors (ODR) Project met for the third time, via videoconference. The meeting focused on the necessity, desirability, and feasibility of a soft law instrument on matters relating to online dispute resolution (ODR). More information is available here.  

From 12 to 16 October 2020, the Experts’ Group on Parentage / Surrogacy met for the seventh time, via videoconference. The meeting focused on developing possible provisions for a general private international law instrument on the recognition of foreign judicial decisions on legal parentage and a separate protocol on the recognition of foreign judicial decisions on legal parentage rendered as a result of an international surrogacy arrangement. More information is available here. 

On 29 October 2020, the HCCH, together with the University of Bonn, co-hosted an online roundtable discussion of the prospects for judicial cooperation in civil and commercial matters between the EU and third countries. This event was a precursor to the conference ‘The HCCH 2019 Judgments Convention’ which is being held in September 2021, jointly organised by the University of Bonn and HCCH. More information is available here. 

Publications & Documentation

Following its approval last month, the Permanent Bureau has released the official publication of the Explanatory Report on the HCCH 2019 Judgments Convention. An electronic copy of the Report is now available for download, in English and French, and hard copies are available for purchase from our website. More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

On Monday, 16 November 2020, starting at 9.15 am CET, the Young EU Private International Law Research Network of the European Association of Private International Law (EAPIL), organizes a webinar on “Overriding Mandatory Rules in the Law of the EU Member States”.

In two sessions, Young PIL researchers from various EU Member States will discuss selected issues related to overriding mandatory rules, such as their explicit legislative characterization in recent EU directives and their application by arbitral tribunals.

Subsequently, the General Report of the second Young EU PIL project, namely “The Application of Overriding Mandatory Norms outside the Scope of Application of the EU Private International Law Regulations” as well as some national perspectives will be presented. The concluding discussion of the webinar is dedicated to future initiatives and projects of the Research Network.

All young PIL researchers who are interested in joining the webinar and/or the Young EU Private International Research Network are cordially invited to send an e-mail to youngeupil@gmail.com. Attendance is free of charge. Details regarding the virtual attendance will be sent to all registered participants.

The programme reads as follows:

9.15 am   Opening of the conference – Tamás SZABADOS (ELTE)

Session I – Chair: Florian HEINDLER (Sigmund Freund University Vienna)

9.20 am   Ennio PIOVESANI (University of Turin/University of Cologne): Overriding Mandatory Rules in the Context of the Covid-19 Pandemic

9.35 am   Martina MELCHER (University of Graz): Substantive EU Regulations as Overriding Mandatory Provisions?

9.50 am   Johannes UNGERER (University of Oxford): Explicit Legislative Characterization of Overriding Mandatory Provisions in EU Directives

10:05 am   Uglješa GRUŠI? (University College London): Some Recent Developments Regarding the Treatment of Mandatory Rules of Third Countries

10.20-10:35 am   Discussion

Session II – Chair: Dr. Eduardo Alvarez-Armas (Brunel University London)

10.45 am   Katarzyna BOGDZEVI? (Mykolas Romeris University): Overriding Mandatory Provisions in Family Law and Personal Status Issues

11.00 am   Markus PETSCHE (Central European University): The Application of Mandatory Rules by Arbitral Tribunals

11.15 am   István ERD?S (ELTE): Imperative Rules in Investment Arbitration

11.30-11.45 am   Discussion

Young EU PIL Project: The Application of Overriding Mandatory Norms outside the Scope of Application of the EU Private International Law Regulations

2.00 pm   Tamás SZABADOS (ELTE): Presentation and Discussion of the General Report

2.15 pm   Stefano DOMINELLI (University of Genoa) and Ennio PIOVESANI (University of Turin/University of Cologne): Italian Perspective

Holger JACOBS (University of Mainz): German Perspective

Dora ZGRABLJI? ROTAR (University of Zagreb): Croatian Perspective. Overriding Mandatory Rules and the Proposal on the Law Applicable to the Third-party Effects of Assignments of Claims

3.00 -3.30 pm   Future of the Young EU Private International Law Network (Chair: Martina MELCHER and Tamás SZABADOS)

Professor Chris Thomale, University of Vienna and Roma Tre University, has kindly provided us with his thoughts on the recent EP Draft Report on corporate due diligence and corporate accountability.

In recent years, debate on Corporate Social Responsibility (CSR) has picked up speed, finally reaching the EU. The Draft Report first and foremost contains a draft Directive on corporate due diligence and corporate accountability, which seems a logical step ahead from the status quo developed since 2014, which so far only consists of reporting obligations (see the Non-Financial Reporting Directive) and sector specific due diligence (see the Regulations on Timber and Conflict Minerals). The date itself speaks volumes: Precisely, to the very day (!), 8 years after the devastating fire in the factory of Ali Enterprises in Pakistan, which attracted much international attention through its follow-up litigation against the KiK company in Germany, the EU is taking the initiative to coordinate Member State national action plans as required under the Ruggie Principles. Much could be said about this new Directive in terms of company law and business law: The balancing exercise of on the one hand, assuring effective transparency of due diligence strategies and, on the other hand, avoiding overregulation in particular with regard to SMEs still appears somewhat rough and ready and hence should see some refinement in due course. The same applies to the private enforcement of those due diligence duties: By leaving the availability and degree of private enforcement entirely to the Member States (Art. 20), the Directive seems to gloss over one of the most pressing topics of comparative legal debate. The question of availability, conditions and extent of private liability imposed on parent companies for human rights violations committed in their value chains abroad, must be addressed by the EU eventually.

To this forum, however, the private international implications of the Draft Report would appear even more important:

As regards the conflicts of laws solution, the proposed Art. 6a Rome II Regulation seeks to make available, at the claimant’s choice, several substantive laws as conveniently summarized by Geert van Calster in the terms of lex loci damni, lex loci delicti commissi, lex loci incorporationis and lex loci activitatis. Despite my continuous call for a choice between the first two de regulatione lata, to be reached by applying a purposive reading of Art. 4 para 1 and 3 Rome II (see JZ 2017 and ZGR 2017), the latter two, lex loci incorporationis and lex loci activitatis, seem very odd to me. First, they are supported, to my humble knowledge, by no existing Private International Law Code or judicial practice. Second, the lex loci incorporationis has no convincing rationale, why it should in any way be connected with the legal relationship as created by the corporate perpetrator’s tort. Lex loci activitatis is excessively vague and will create threshold questions as well as legal uncertainty. Third, I would most emphatically concur with Jan von Hein’s opinion of a quadrupled choice being excessive and impractical in and of itself.

The solution proposed in terms of international jurisdiction, I will readily admit, looks puzzling to me. I fail to see, which cases the proposed Art. 8 para 5 Brussels Ibis Regulation is supposed to cover: As far as international jurisdiction is awarded to the courts of the “Member State where it has its domicile”, this adds nothing to Art. 4, 63 Brussels Ibis Regulation. In fact, it will create unnecessary confusion as to whether this venue of general jurisdiction is good even when there is no “damage caused in a third country [which] can be imputed to a subsidiary or another undertaking with which the parent company has a business relationship.” Thus, we are left with the courts of “a Member State […] in which [the undertaking] operates.” As already pointed out, this term itself will trigger a lot of controversy regarding certain threshold issues. But there is more: Oftentimes this locus activitatis will coincide with the locus delicti commissi, e.g., when claimants want to rely on an omission of oversight by the European parent company. In that case, Art. 7 No. 2 Brussels Ibis Regulation offers a venue at the very place, i.e. both in terms of international and local jurisdiction, where that omission was committed. How does the new rule relate to the old one? And, again, which cases exactly are supposed to be captured by this provision? In my view, this is a phantom paragraph that, if anything, can only do harm to the fragile semantic and systematic architecture built up by the Brussels Ibis Regulation and CJEU case law.

The same seems true of the proposed Art. 26a Brussels Ibis: First, there is no evident need for such a forum necessitatis, rendering Member State courts competent to hear foreign-cubed cases with no connection to the EU whatsoever. To the contrary, recent development of the US Alien Torts Statute point in the opposite direction. Second, the EU might be overreaching its legislative jurisdiction: Brussels Ibis Regulation is based on the EU’s competence to legislate on judicial cooperation in civil matters (Art. 81 para 2 TFEU). Such a global long-arm statute may not be covered by that competence, if it is legal at all under the public international confines incumbent upon civil jurisdiction (for details, see here). Third, it will be virtually anybody’s guess what a court seized with a politicised and likely emotional case like the ones we are talking about will deem a “reasonable” Third State venue. In fact, this would be a forum non conveniens test with inverted colours, i.e. the very test the CJEU, in 2005, deemed irreconcilable with the exigencies of foreseeability and legal certainty within the Brussels Ibis Regulation.

The HCCH 2019 Judgments Convention:

Prospects for Judicial Cooperation in Civil and
Commercial Matters between the EU and Third Countries

Pre-Conference Video Roundtable
University of Bonn / HCCH

Thursday, 29 October 2020, 6.30 p.m. (UTC+1) (via Zoom)

Speakers:

Dr Christophe Bernasconi, Secretary General of the HCCH

Colin Brown, Unit Dispute Settlement and Legal Aspects of Trade Policy, DG Trade, European Commission

Dr Alexandra Diehl, White & Case LLP, Frankfurt, Chair of the Arbitration/Litigation/Mediation (“ALM”) Working Group of the German-American Lawyers Association (DAJV)

Dr Veronika Efremova, Senior Project Manager GIZ, Open Regional Funds for South East Europe-Legal Reform

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

Dr Jan Teubel, German Federal Ministry of Justice and Consumer Protection

Moderators:                         

Dr João Ribeiro-Bidaoui, First Secretary, HCCH

Prof Dr Matthias Weller, University of Bonn

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighbouring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe. The USA are currently the largest trade partner of the EU. The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, the EU still seems to be in search of a strategy for judicial cooperation in civil matters with countries outside the Union. The HCCH 2019 Judgments Convention may be a valuable tool to establish and implement such a strategy, in particular alongside the EU’s external trade relations. These prospects will be discussed by the speakers and a global audience in this Pre-Conference Video Roundtable.

We warmly invite you to participate and discuss with us. In order to do so, please register with sekretariat.weller@jura.uni-bonn.de. You will receive the access data for the video conference via zoom per email, including our data protection concept, the day before the event.

If you have already registered and received a confirmation from our office (please allow us a couple of days for sending it back to you), your registration is valid and you do not need to re-register.

Please do not hesitate to forward our invitation to friends and colleagues if you wish.

Main Conference “The HCCH 2019 Judgments Convention”, 13 and 14 September 2021

Our event intends to prepare the main conference on the HCCH 2019 Judgments Convention at the University of Bonn (Professors Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, Wulf-Henning Roth, Philipp Reuss, Matthias Weller), co-hosted by the HCCH (Dr Chistophe Bernasconi, Dr João Ribeiro-Bidaoui), on 13 and 14 September 2021 (originally scheduled for 25 and 26 September 2020, but rescheduled to avoid Covid-19 risks). At this conference on the campus of the University of Bonn, leading experts will present on the legal concepts and techniques of the Convention, and policy issues will be further developed.

Speakers will include (listed chronologically):

Hans van Loon (key note), Former Secretary General of the Hague Conference on Private International Law, The Hague;

Prof Dr Xandra Kramer, Erasmus University Rotterdam;

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

Prof Dr Pietro Franzina, Catholic University of Milan;

Prof Dr Francisco Garcimartín Alférez, Autonomous University of Madrid;

Dr Ning Zhao, Senior Legal Officer, HCCH;

Prof Paul Beaumont, University of Stirling;

Prof Dr Marie-Elodie Ancel, University Paris 2 Panthéon-Assas;

Dr Pippa Rogerson, Reader in Private International Law, Faculty of Law, Cambridge;

Ass. Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia;

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh;

Prof Zheng (Sophia) Tang, University of Newcastle;

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

For the full programme see https://www.jura.uni-bonn.de/professur-prof-dr-weller/conference-on-the-hcch-2019-judgments-convention-on-13-and-14-september-2021/. You will receive an invitation for registration in due time. A registration fee of € 100.- will be asked for participating.

The Universities of Genoa, Valencia, Turiba, the Institute of Private International Law in Sofia, the European Association for Family and Succession Law, and Defence for Children Italy are currently conducting a research Project to collect and develop best practices on the right of the child to information in cross-border family proceedings.

The “MiRI Project” (Minor’s Right to Information in EU civil actions), co-funded by the European Union (JUST/2018/JCOO/AG/CIVI/831608), foresees the involvement of lawyers and judges which may contribute to a truthful reconstruction of how children are effectively informed of their rights, of the circumstances litigated before courts, of the consequences following specific decisions, etc. during cross-border proceedings.

Lawyers and judges may provide their knowledge and expertise by fulfilling a questionnaire – answers to the questionnaire will help Partners to the Project to identify, disseminate already existing good practices, and possibly elaborate new ones.

The questionnaire is available in English, Spanish, Bulgarian, Latvian, French and Italian.

Answering the questionnaire takes approximately 25-30 minutes; consultations are open until the end of November 2020. Answers are anonymous and will not be published. Answers can be sent to info@europeanfamilylaw.eu

The Partners to the Project appreciate your involvement!

The October issue of International and Comparative Law Quarterly was recently published. It features two articles on private international law:

S Donelly, “Conflicting Forum-Selection Agreements in Treaty and Contract” (2020) 69  International and Comparative Law Quarterly 759 – 787.

When an investor submits a claim to arbitration under a treaty that falls within the scope of an existing, contractual forum-selection clause between it and the host State, which prevails: the agreement to arbitrate under the treaty or the contractual clause? This is a vexed and commonly arising question. This article argues that by placing it in the context of both private and public international law and reasoning from first principles it is possible to arrive at a coherent, reliable and satisfactory approach. The true question is whether the contractual clause is a waiver of the investor’s right to recourse to an investment tribunal.

TC Hartley, ““Recent Developments under the Brussels I Regulation” (2020) 69  International and Comparative Law Quarterly 779 – 790.

This article considers recent CJEU case law on the Brussels I Regulation. Two aspects of Article 7(1) (which applies to matters relating to a contract) are considered: the first is whether the contract must be between the parties to the case; the second is whether membership of an association should be regarded as constituting implied consent to be bound by decisions of the association so that jurisdiction to enforce them may be taken under Article 7(1). The article also discusses recent case law on who counts as a ‘consumer’ in terms of Article 17.

Ilaria Viarengo and Francesca C Villata recently published a new book titled: “Planning the Future of Cross Border Families: A Path Through Coordination“ under the prestigious Hart Studies in Private International Law. The abstract reads as follows:

This book is built upon the outcomes of the EUFam’s Project, financially supported by the EU Civil Justice Programme and led by the University of Milan. Also involved are the Universities of Heidelberg, Osijek, Valencia and Verona, the MPI in Luxembourg, the Italian and Spanish Family Lawyers Associations and training academies for judges in Italy and Croatia. The book seeks to offer an exhaustive overview of the regulatory framework of private international law in family and succession matters. The book addresses current features of the Brussels IIa, Rome III, Maintenance and Succession Regulations, the 2007 Hague Protocol, the 2007 Hague Recovery Convention and new Regulations on Property Regimes.
The contributions are authored by more than 30 experts in cross-border family and succession matters. They introduce social and cultural issues of cross-border families, set up the scope of all EU family and succession regulations, examine rules on jurisdiction, applicable law and recognition and enforcement regimes and focus on the current problems of EU family and succession law (lis pendens in third States, forum necessitatis, Brexit and interactions with other legal instruments). The book also contains national reports from 6 Member States and annexes of interest for both legal scholars and practitioners (policy guidelines, model clauses and protocols).

The ANNUAL MEETING OF THE ROYAL NETHERLANDS SOCIETY OF INTERNATIONAL LAW (ILA Dutch Branch) is online accessible on Friday 6 NOVEMBER 2020 (13:30 – 16:30 CET).  

 Over the decades, international law adapted in many ways to the quickly evolving, multi-facetted digital reality, and one of the central questions now is whether or not concepts and ideas developed in the ‘predigital era’ still fit the digitalised world. Is international law, both public and private, ready for the digital era or has it rather been a ‘fragmented follower of developments’ and should it fundamentally rethink a number of notions and approaches? 

Four speakers will present their papers on the adaptability of (private) international law to the digital environment. Two officials of the Dutch Ministry of Foreign Affairs (M. BUSSTRA and W. THEEUWEN) will give an overview on “International Law in the Context of Cyber Operations”. Y. BURUMA, a Justice of the Supreme Court of The Netherlands, will present his views on “International Law and Cyberspace – Issues of Sovereignty and the Common Good”, while D. SVANTESSON, Professor at the University of Bond (Australia) will consider whether “International Law [Is] Ready for the (Already Ongoing) Digital Age: Perspectives from Private and Public International Law”. 

There is ample room for debate after these presentations. Given the topical theme and the open debate with public and private international lawyers, this event may be of interest to some readers of this blog. Should you be interested, please register no later than 3 November 2020 by sending an email to info@knvir.org.

Thanks to Marta Pertegás Sender for providing the text

In the very recent case of Yankey v Austin (2020) LPELR-49540(CA)  the Nigerian Court of Appeal was faced with the issue of whether a court in the United State has jurisdiction to make an order affecting immovable property in Lagos, Nigeria.

The facts of the case was that the claimant/respondent previously sued the defendant/appellant before the Family Court Division, of the District of the Fourth Judicial District, County of Hennepin, State of Minnesota (“US Court”) – where they resided at the time, for dissolution of their marriage that was celebrated in Nigeria. The defendant/appellant as respondent before the US Court did not contest the dissolution of the marriage. They entered into a Mutual Termination Agreement, which is called Terms of Settlement in the Nigerian legal system. There was no trial and no evidence was adduced. Their homestead at 4104 Lakeside Avenue, Brooklyn Center, Minesota was awarded exclusively to the claimant/respondent as petitioner before the US Court. It did not end there.

The claimant/respondent subsequently instituted proceedings before the Lagos State High Court, Nigeria, and claimed joint ownership of the defendant/appellant’s property situated in Lagos, by relying on the US judgment. The lower court granted the claim.

The defendant/appellant appealed to the Court of Appeal, which unanimously allowed the appeal by overturning the decision of the lower court. The Court of Appeal (Ogakwu JCA) thoroughly analysed the documents which were in issue: (1) Mutual Termination Agreement, (2) Judgment of the US Court, and (3) petition for the dissolution of the parties marriage in the US Court. The Court of Appeal reached the conclusion that there was nothing in the documents in issue which suggests that the US judge granted joint ownership of the defendant/appellant’s landed property with the plaintiff/respondent. It also held that based on the principle of lex situs the US Court cannot make an order affecting immovable property in Nigeria.

The decision in Yankey  is an important decision from the perspective of public and private international law. Based on the principle of territorial sovereignty, a foreign court cannot make an order affecting immovable property in another country.  This rule as applied in Nigeria  –  often referred to as the  Mocambique  rule  –  is derived from the English case of British South Africa Company v Companhia de Mocambique [1893] AC 602. In that case, the plaintiff s’   statement of claim alleged that they were rightful owners of large tracts of land in South Africa, yet agents of the defendants unlawfully took possession of the lands and displaced the plaintiff  company and its servants, agents, and tenants. The plaintiffs also alleged that the defendants not only stole the plaintiff s’  personal property, but also assaulted and imprisoned some of them. It was held that an English court would not entertain an action to recover damages for a trespass to land situated abroad.

It is worth mentioning that in Nigeria, an  exception to the Mozambique rule exists where the action between the parties is founded on some personal obligation arising out of a contract or implied contract, a fiduciary relationship, fraud or other unconscionable conduct, and does not depend on the law of the  locus  of the immovable property to exist (British Bata Shoe Co Ltd v Melikian   ( 1956 )  1 FSC 100;     Aluminium Industries Aktien Gesellschaft  v Federal Board of Inland Revenue   ( 1971 )  2 ALR Comm 121   , (1971) 2 NCLR 1)

The Mozambique rule has been applied  by the Nigerian  Supreme Court only in inter-state matters such as in Lanleyin v Rufai  ( 1959 )  4 FSC 184. Yankey is the first case where it was applied in a case with truly international dimensions. Admittedly, the Court of Appeal did not explicitly mention the Mozambique rule or the Nigerian Supreme Court cases that have applied it in inter-state matters. The truth is that there was no need for the Court of Appeal to do so. Based on the facts of the case, the US Court never made an order for joint ownership of landed property in Lagos.

Yankey is a most welcome decision. If the lower court’s decision was allowed to stand, it would mean that any foreign court can generally make an order affecting landed property in Nigeria. The Court of Appeal was therefore right to hold that the US Court never made an order for joint ownership of landed property for the parties in this case. It was also right to hold that a foreign court cannot make an order of joint ownership of immovable property in Nigeria.