Conflictoflaws

Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers a summary and an analysis of the CJEU’s judgment in Joined cases C-453/18 and C-494/18 – Bondora.  

Introduction

On 19 December 2019, the Court of Justice of the European Union (“CJEU”) rendered its 10th judgment on Regulation 1896/2006 establishing a European Payment Order (“EPO Regulation”). The EPO Regulation introduced the most successful of the uniform civil procedures at European level, allowing creditors the cross-border recovery of pecuniary claims. In this long awaited judgment (particularly by the Spanish tribunals and academia), the CJEU resolved the following inquiry: can tribunals request additional information from the creditor relating to the terms of the agreement in order to examine ex officio the fairness of the terms of the contract invoked as a basis for a European Payment Order (“EPO”)?

Facts of the case

The judicial proceedings, which led to the preliminary references, were brought before the courts of first instance of Vigo and Barcelona, respectively.

Bondora AS, an Estonian registered company, lodged an application for an EPO before the court of first instance of Vigo. Since the defendant was a consumer, that court requested Bondora to provide “the loan agreement and the determination of the amount of the claim” in order to examine the fairness of the contractual terms on which the application for an EPO was made. Bondora AS refused to do so. It argued that Article 7(2) EPO Regulation of the EPO does not prescribe to creditors the submission of any documentation to issue an EPO. Furthermore, in accordance with Spanish law, creditors do not have provide any documentation when they apply for an EPO (Final Disposition 23, para. 2 Ley 1/2000 de Enjuiciamiento Civil). Conversely, in the view of the court of first instance of Vigo, courts have the power to make such request. This court took into consideration the CJEU decision, C-618/10, Banco Español de Crédito, in which the Court found that the Spanish domestic legislation which precluded the examination of the fairness of the contractual terms during the application for a domestic payment order would “deprive consumers of the benefit of the protection intended by Directive 93/13”. This judgment caused a modification of the Spanish payment order legislation. That reform expressly authorised Spanish judges to assess ex officio the fairness of the terms of the contract between businesses or professionals and a consumer on which the application for a domestic payment order is based.  

In this context, the court of first instance of Vigo decided to refer the following questions to the CJEU:

• Is Article 7(1) of [Directive 93/13] and the case-law interpreting that directive, to be construed as meaning that that article of the directive precludes a national provision, like the 23rd final provision of [the LEC], which provides that it is not necessary to submit documents with the application for a European order for payment and that, where documents are submitted, they will be ruled inadmissible?
•  Is Article 7(2)(e) of [Regulation No 1896/2006] to be construed as meaning that that provision does not preclude a creditor institution from being required to submit documents substantiating its claim based on a consumer loan entered into between a seller or a supplier and a consumer, where the court considers it essential to examine the documents in order to determine whether there are unfair terms in the contract between the parties, thereby complying with the provisions of [Directive 93/13] and the case-law interpreting that directive?

In the same year, Bondora AS requested another EPO against another debtor (XY) before the court of first instance of Barcelona. This court, confronting the same issue as the court of first instance of Vigo, decided to refer the following questions to the CJEU:

• Is national legislation such as paragraph [2] of the 23rd final provision of the LEC, which does not permit a contract or an itemisation of the debt to be provided or required in a claim in which the defendant is a consumer and where there is evidence that the sums being claimed could be based on unfair terms, compatible with Article 38 of the Charter, Article 6(1) [TEU] and Articles 6(1) and 7(1) of Directive [93/13]?
• Is it compatible with Article 7(2)(d) of Regulation [No 1896/2006] to require the applicant, in a claim against a consumer, to specify the itemisation of the debt he is claiming in Section 11 of standard form A [in Annex 1 to Regulation No 1896/2006]? Is it also compatible with that provision to require that the content of the contractual terms on the basis of which the applicant is making a claim against a consumer, beyond the principal subject matter of the contract, be reproduced in Section 11 in order to assess whether they are unfair?
•  If the answer to the second question is negative, is it permissible, under the current wording of Regulation No 1896/2006, to ascertain ex officio, prior to the issue of a European payment order, whether an agreement with a consumer contains unfair terms and if so, on what legal basis may that assessment be carried out?
•  In the event that it is not possible to ascertain ex officio, under the current wording of Regulation No 1896/2006, the existence of unfair terms prior to issuing a European payment order, the Court of Justice is requested to rule on the validity of that regulation in the light of Article 38 of the Charter and Article 6(1) [TEU].

The CJEU decided to reply jointly to both preliminary references.

The CJEU’s Reasoning

After a brief overview of the EPO Regulation as such (paras 34-38), the CJEU proceeded to examine the state-of-the-art of consumer protection against unfair contractual terms under Directive 93/13 (paras 39-44). More specifically, the Court referred to its previous judgement C-176/17, Profi Credit Polska. In that decision, the CJEU found that Article 7(1) of Directive 93/13 precludes national legislation permitting the issue of an order for payment where the court hearing an application for an order for payment does not have the power to examine the possible unfairness of the terms of that agreement (para. 44). In the Courts’ view, the same logic applies to the EPO Regulation. This means that Spanish domestic legislation (the above mentioned Final Disposition 23, para. 2 Ley 1/2000 de Enjuiciamiento Civil), which precludes the submission of documentation by the creditor who applied for an EPO, obstructs the courts’ obligation to review the fairness of the terms of the contract. At this point, the question is whether there is any legal basis within the EPO Regulation that would allow courts to request the necessary documentation to examine the fairness of the contractual terms. The CJEU found the solution in Article 9(1) of Regulation No 1896/2006 (para. 49). This provision allows courts to request that the claimant complete or rectify the application for the EPO, and since Bondora, courts are also entitled to request, “the reproduction of the entire agreement or the production of a copy thereof, in order to be able to examine the possible unfairness of the contractual terms” (para. 50).

On the basis of the reasoning set out above, the CJEU concluded that a tribunal “seised in the context of a European order for payment procedure” would be entitled “to request from the creditor additional information relating to the terms of the agreement relied on in support of the claim at issue, in order to carry out an ex officio review of the possible unfairness of those terms and, consequently, that they preclude national legislation which declares the additional documents provided for that purpose to be inadmissible” (para. 54).

The three viewpoints of the judgment

Bondora is not only interesting for the reasoning behind the judgment as such. This decision is also a good example of the difficulties that could arise from the application and the implementation of a European uniform procedure, as well as the impact that a CJEU judgment could have on the European uniform civil procedures.

• A “very Spanish” preliminary reference

The preliminary reference did not come as a surprise for Spanish courts and academia, which have for a long time debated on this issue. There are certain characteristics of the Spanish legislative framework, which made Spain a more likely jurisdiction to refer these kinds of questions to the CJEU than any other Member State.  

The main reason arises from the differences between the EPO and the Spanish national payment order. The latter is a documentary payment order, meaning that with the application for a preservation order, creditors have to provide documentation that provides the justification of the claim at stake. This contrasts with the EPO, in which creditors have merely to describe evidence supporting the claim (Article 7(1)(e) EPO Regulation). There were occasions when Spanish courts observed EPOs in the light of the rules applicable to domestic law, requesting creditors to provide documentation with the application (e.g. Auto Audiencia Provincial de Barcelona (Sec. 11.a) de 21 de noviembre 2012 (Auto num. 212/2012, ECLI:ES:APB:2012:7729A)). Furthermore, after the above-mentioned CJEU decision in  C-618/10, Banco Español de Crédito, and the legislative reform that the judgment provoked, disparities between the EPO procedure and the domestic payment order procedure increased, making it difficult for Spanish courts to reconcile both procedures.

Another aspect that has to be taken into consideration is the way the EPO Regulation had been implemented into the Spanish legal system. In the EPO Regulation, as well as the other so-called second-generation procedures, there are many elements to be “fulfilled” by the domestic law of the Member States where they apply. This leaves ground to domestic legislators to approve reforms to these instruments in their respective systems. Concerning the EPO Regulation, the Spanish legislator went a step further than the letter of the Regulation. The Spanish law states explicitly that creditors “do not need to submit any documentation” when they apply for an EPO. This unfortunate wording was one of the grounds on which the creditor, Bondora AS, relied on to avoid submitting the documentation requested by the Spanish courts (para. 22).

All these specific circumstances eventually triggered the preliminary references of this case.

• Balancing opposing interests

Concerning the Court’s reasoning itself, the CJEU tries to find a compromise between the creditors’ and defendants’ interests. As the Court states, one of the purposes of the EPO is “to simplify, accelerate and reduce costs in cross-border disputes concerning uncontested pecuniary claims” (para. 36). Nonetheless, the pursuit of those goals cannot be to the detriment of defendants’ rights. Particularly, in this case, “the nature and significance of the public interest constituted by the protection of consumers” (para. 42) prevails over creditors’ interests.

It appears that the CJEU tries to mitigate the imbalance favouring creditors that a literal reading of the EPO Regulation could provoke. Indeed, if we strictly observe Article 7 of the EPO Regulation, no documentation might be needed to obtain an EPO. Nonetheless, as it was demostrated, that would undermine the position of consumers.

From a broader perspective, this search for a balance is not exclusive to the EPO Regulation. We can also find it in CJEU judgments concerning other uniform civil procedures. For instance, the recent decision on Regulation 655/2014, establishing a European Account Preservation Order (C-555/18, K.H.K. (Saisie conservatoire des comptes bancaires)) is a good example. It seems that the CJEU is trying to mitigate the pro-creditor aspects of these proceedings.

• The EPO procedure post-Bondora

How does Bondora affect the EPO procedure? In the conclusion of the judgment, the CJEU merely acknowledged that courts can request additional documentation in order to assess the fairness of the terms of the contract which serves as a basis of the EPO (para. 56). Nonetheless, observing the whole of the Court’s reasoning, it follows that domestic courts might also be obliged to perform a further examination in order to safeguard consumers’ rights against unfair contractual terms. The CJEU stated that “the national court is required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair” (para. 43). Does it mean that every time a creditor indicates in the standard form of the EPO application that the defendant is a consumer, the Court has to examine the fairness of the terms of the agreement between the creditor and the consumer? It seems so. The EPO Regulation only requires creditors the description of the “circumstances invoked as the basis of the claim” and the “description of evidence supporting the claim” (Article 7(1) EPO Regulation). This might not be enough for a court to make a proper assessment of the fairness of the contractual terms. AG Sharpston was of the same view. In the Opinion of this case, she affirmed that “the court’s examination of the merits of the claim based solely on the information included in form A is, on the face of it, rather superficial, which is hardly likely to ensure effective protection of the consumer concerned” (para. 93). Therefore, unless creditors provide the contractual terms by their own motion in an application for an EPO, domestic courts would have to request them on the basis of Article 9(1) of the EPO Regulation. Only in this way would courts be able to assure whether the terms of the agreement are fair or not.

As a consequence of the above, the EPO Regulation, although initially a non-documentary procedure largely inspired by the German payment order, might have turned into something resembling a documentary payment order in those cases when there is involved a contract concluded with a consumer. Whereas Spanish courts might welcome this new approach, in other Member States where payment orders are granted in a more automatic manner, Bondora might be a turning point.

In any case, Bondora has already become a key reference for a proper understanding of the EPO Regulation, a procedure on which the CJEU might still have more to say.  

Under the direction of Professor Eduardo Oteiza (La Plata National University, Argentina) and Professor Burkhard Hess (Max Planck Institute Luxembourg for Procedural Law), the 4th edition of the IAPL–MPI Summer School will take place at the MPI Luxembourg on 27-30 July 2020.

The Summer School aims at bringing together outstanding young post-Doc researchers dealing with international and comparative procedural law as well as with other relevant dispute mechanisms for civil disputes. By way of exception, researchers at the very final stage of their Ph.D. project may also be admitted.

In 2020, the Summer School will focus on the interplay of global tendencies with local traditions in procedural law. This interplay may be analyzed from different perspectives, such as the cross-fertilization in lawmaking processes and between regulatory concepts or the impact of innovative methods and tools in procedural law. The Summer School also intends to reflect on the cultural dimension of litigation and dispute resolution mechanisms and on the role of local culture in shaping the approach to procedural law.

The application form and further information on the Summer School’s research focus are available here.

The deadline for applications is 31 January 2020.

written by Veronica Ruiz Abou-Nigm

ASADIP (American Association of Private International Law)

13th Annual Conference – Punta del Este, URUGUAY, 21-22 November 2019

TRANSNATIONAL EFFECTIVENESS OF LAW: Recognition and enforcement of foreign judgments, arbitral awards and other acts

On 21 and 22 November 2019, the 13thASADIP Annual Conference took place in Punta del Este (Uruguay) with the participation of more than 30 international speakers from several jurisdictions and over 130 attendees, mostly from the Latin American region, but also from North America and Europe. The theme of the conference was the Transnational Effectiveness of Law:Recognition and Enforcement of Foreign Judgments, Arbitral Awards and other Acts;

The then President of ASADIP, Eduardo Vescovi (Uruguay), delivered the welcome speech followed by the inaugural conference on the “Pro-effectiveness principle and transnational access to justice” by Didier Opertti Badán (Uruguay). Following from there, the conference included eight panels (each including several short presentations), a round-table debate (with several participant speakers), and four keynotes (special conferences). Presentations in these various formats were followed by lively discussions with the audience. 

In its thirteenth iteration, the ASADIP annual conference brought together an enthusiastic group of established private international law scholars and practitioners. There were also specific activities catered for the younger generation of scholars, practitioners and research students: these were the ASADIP-CLAEH (Young ASADIP) Conference that took place at the University CLAEH of Punta del Este, on 20thNovember in the afternoon, including panel presentations and a debate; and, as it has been happening for many years at the ASADIP annual conference, a poster contest that took place on the second day of the conference. Several young researchers from Peru, Argentina, Brazil, and France presented their research in front of the evaluation committee, with three of them being awarded prices. For the full list of all the activities, including the specific topics of the panels and keynote addresses, and the names and profiles of all the international speakers and research students presenting, see the full report (in Spanish) here.

Furthermore, on 23 November 2019 the annual ASADIP General Assembly was held, during which the ASADIP Council for the period 2019-2022 was elected. For further information on the new Council members see further here. 

The detail:

First Panel: “Circulation of public documents globally”. Speakers: Paula María All (Argentina), Carmen González (Uruguay), Renata Alvares Gaspar (Brazil) and José Manuel Canelas (Bolivia), mooderated by Eduardo Vescovi (Uruguay).

Second Panel: “International cooperation in transnational family situations”. Speakers: Nieve Rubaja (Argentina), Luciana B. Scotti (Argentina) and Daniel Trecca (Uruguay), moderated by Elizabeth Villalta Vizcarra (El Salvador).

Third Panel: “Transnational Efficacy of Foreign Judgments – Flexibilization of Requirements” Speakers: Claudia Madrid Martínez (Colombia), Taydit Peña Lorenzo (Cuba), Carolina D. Iud (Argentina) and Eduardo Tellechea (Uruguay), moderated Adriana Fernández (Uruguay).

These morning panels were followed by the first Keynote Speech: “New Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters ”by João Ribeiro-Bidaoui (HCCH).

Fourth Panel: “The Hague Convention on Recognition and Enforcement of Foreign Judgments and its impact on Latin American countries”. Speakers: Marcos Dotta (Uruguay), Verónica Ruiz Abou-Nigm (UK), Fabricio Bertini Pasquot Polido (Brazil) and Juan Carlos Guerrero (Mexico), moderated by Inez Lopes (Brazil).

Fifth Panel: The last Panel of the first day on “Transnational Effectiveness of Provisional Measures” was moderated by Sebastián Paredes (Argentina), presenting on the subject Cecilia Fresnedo de Aguirre (Uruguay), Eugenio Hernández-Bretón (Venezuela) andThiago Paluma (Brasil).

The second day of the Conference began with the Sixth Panel moderated by Mercedes Albornoz (Mexico). Speakers: Gonzalo Lorenzo Idiarte (Uruguay), María Blanca Noodt Taquela (Argentina) and Roberto Ruiz Díaz Labrano (Paraguay) reflected around the question of “Is it desirable to abolish the exequatur? 

After that, the second keynote speech on the “New OAS Guide on the Law Applicable to International Commercial Contracts in the Americas” was delivered by the Rapporteur of the Guide, José A. Moreno Rodríguez (Paraguay) and Jeannette Tramhel (OAS).

Panel Seven: “Transnational Efficacy of Foreign Arbitral Awards -Impact of the new international arbitration laws in the Río de la Plata”. Speakers: Paul F. Arrighi (Uruguay), María Laura Capalbo (Uruguay), Soledad Díaz (Uruguay), Alejandro Menicocci (Argentina), Guillermo Argerich (Argentina) and Juan Jorge (Argentina), moderated by Juan José Cerdeira (Argentina).

Debate: “Execution of foreign arbitral awards – something to change?”. Participants: Francisco A. Amallo (Argentina), João Bosco Lee (Brazil), Diana Giraldo Montoya (Colombia), Francisco Grob (ICSID) and Jaime Vintimilla (Ecuador), being the moderator María Laura Capalbo (Uruguay).

The third keynote speech on the “New Singapore Convention and the execution of international agreements resulting from cross-border mediation ” was delivered by Luis Ernesto Rodríguez Carrera (Venezuela) and María Verónica Duarte (Uruguay).

Panel Eight: “The transnational effectiveness of arbitral awards versus that of foreign judgments”. Speakers: María Susana Najurieta (Argentina), Julio César Rivera (Argentina), Carlos Odriozola (Mexico) and María Macarena Fariña (Uruguay), moderated by Nicolás Etcheverry (Uruguay).

The conference closed with a keynote speech from Diego P. Fernández Arroyo (France) on the “Role of Private International Law in the Global Era”.

Rachael Mulheron, Asserting personal jurisdiction over non-resident class members: comparative insights for the United Kingdom

The opt-out class action involves a unique participant, viz, the absent class member whose claim is prosecuted by a representative claimant, who does not opt-out of the action nor do anything else in relation to it, and yet who is bound by its outcome. In a cross-border class action, the means by which a domestic court may validly assert personal jurisdiction over absent class members who are resident outside of that court’s jurisdiction remains perhaps the single biggest conundrum in modern class actions jurisprudence. The United Kingdom (UK) legislature requires that non-resident class members compulsorily opt-in to the UK’s competition law class action, in order to demonstrably signify their consent to the jurisdiction of the UK court. However, that legislative enactment is unusual, and becoming even rarer, in modern class actions statutes. The comparative analysis undertaken in this article demonstrates that where that type of statutory provision is not enacted, then the judicially-developed “anchors” by which to assert personal jurisdiction over non-resident class members are multifarious, diverse, and conflicting, across the leading class actions jurisdictions. This landscape yields important lessons for UK law-makers, and strongly suggests that the UK legislature’s approach towards non-resident class members represents “best practice”, in what is a complex conundrum of class actions law.

Richard Garnett, Recognition of jurisdictional determinations by foreign courts

Parties have occasionally sought to use findings on jurisdiction made by a court in one country to preclude re-litigation of the same matter elsewhere. In common law countries the traditional means by which this tactic has been employed is the doctrine of issue estoppel. The aim of this article is to assess the extent to which jurisdictional determinations by foreign courts can have binding effects in other countries.

Ardavan Arzandeh, “Gateways” within the Civil Procedure Rules and the future of service-out jurisdiction in England

For well over 150 years, the heads of jurisdiction currently listed within paragraph 3.1 of Practice Direction B, accompanying Part 6 of Civil Procedure Rules, have played a vital role in the English courts’ assertion of jurisdiction over foreign-based defendants. These jurisdictional “gateways” identify a broad range of factual situations within which courts may decide to entertain claims against defendants outside England. However, the existing general framework for deciding service-out applications is increasingly vulnerable to attack. In particular, the greater prominence of the forum conveniens doctrine, but also problems arising from the gateways’ operation, combine to cast doubt on their continued role (and relevance) in service-out cases. Against this backdrop, the article assesses the case for abandoning the gateway precondition. It is argued that rather than jettisoning the gateways, future revision of the law in this area should aim to minimise ambiguities concerning the gateways’ scope and also ensure that they include only instances which connote meaningful connection between the dispute and England.

Liang Zhao, Party autonomy in choice of court and jurisdiction over foreign-related commercial and maritime disputes in China

Chinese civil procedure law provides the choice of foreign courts through jurisdiction agreements in foreign-related commercial and maritime disputes. In Chinese judicial practice, foreign jurisdiction agreements may be held null and void because of the lack of actual connection between the agreed foreign jurisdictions and the foreign-related disputes. Chinese courts may, therefore, have jurisdiction when China has actual connection with the dispute, in particular when Chinese parties are involved in disputes. However, the actual connection requirement does not apply to Chinese maritime jurisdiction when China has no actual relation with the maritime disputes. Chinese courts also have maritime jurisdiction in other special ways although foreign courts are designated in contract. Conflict of jurisdiction over foreign-related disputes is thus caused. This article analyses how party autonomy is limited by Chinese civil procedure law and how Chinese court exercise jurisdiction when Chinese courts are not chosen by parties. This article argues that the Hague Convention on Choice of Court Agreements should be adopted to replace the actual connection requirement under the Chinese civil procedure law and Chinese courts should respect party autonomy in respect of the choice of foreign court. It is also suggested that Chinese courts shall apply forum non conveniensto smooth the conflict of jurisdiction between Chinese courts and foreign courts.

Maisie Ooi, Rethinking the characterisation of issues relating to securities

This article contends that there is a pressing need to rethink the characterisation of issues relating to securities, both complex and plain vanilla. It will demonstrate that the less than coherent choice-of-law process that exists for securities today is a consequence of courts utilising characterisation categories and rules that had not been designed with securities in mind and applying them in disregard of the new dimensions that securities and their transactions bring to characterisation. These have resulted in rules that do not provide certainty and predictability to participants in the securities and financial markets.
The thesis that this article seeks to make is that a new characterisation category is required that is specific to securities which will encompass both directly held and intermediated securities (possibly also crypto-securities), and address issues of property, contract and corporations together. This will have its own choice-of-law rules which will be manifestations of the lex creationis, the law that created the relevant res or thing that is the subject-matter of the dispute. The convergence of issues traditionally dealt with by separate categories and rules will simplify and make for more coherent choice-of-law for securities.

Chukwuma Samuel Adesina Okoli & Emma Roberts, The operation of Article 4 of Rome II Regulation in English and Irish courts

This article makes a critical assessment of the operation of Article 4 of Rome II in English and Irish courts measuring the extent to which judges of England and Wales (hereafter England) and Ireland are interpreting Article 4 of Rome II in accordance with what the EU legislator intended.

Onyoja Momoh, The interpretation and application of Article 13(1) b) of the Hague Child Abduction Convention in cases involving domestic violence: Revisiting X v Latvia and the principle of “effective examination”

A key interpretation and application issue in the scheme of Article 13(1) b) of the Hague Child Abduction Convention is whether judges should investigate first the merits of the defence before considering whether protective measures are adequate or whether they should first consider the adequacy of protective measures. There is no generally accepted international practice nor is there clear authority on the appropriate or preferred approach. This article argues that judges should always undertake an effective examination of the allegations of domestic violence first before considering whether, if there is merit to the allegations and they are substantiated, adequate protective measures can sufficiently ameliorate the grave risk of harm.

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

H. Schack: The new Hague Judgment Convention

This contribution presents the new Hague Convention on the recognition and enforcement of foreign judgments in civil or commercial matters adopted on 2 July 2019 by the Hague Conference on Private International Law. This Convention simple with a positive list of accepted bases for recognition and enforcement supplements the 2005 Hague Convention on choice of court agreements. The benefit of the 2019 Convention, however, is marginal, as its scope of application is in many ways limited. In addition, it permits declarations like the “bilatéralisation” in Art. 29 further reducing the Convention to a mere model for bilateral treaties. If at all, the EU should ratify the 2019 Convention only after the US have done so.

F. Eichel: The Role of a Foreign Intervener in Establishing a Cross-Border Case as a Requirement for the Application of European Legislation on Civil Procedure

The Small-Claims Regulation (No. 861/2007) is only applicable in crossborder cases. The European Court of Justice (ECJ) in its judgment in ZSE Energia has decided that the foreign seat of an intervener does not turn an otherwise purely domestic case into a cross-border case. The IPRax article agrees with this decision, but criticizes the reasons given by the ECJ. Without specific need, the ECJ stated that the participation of an intervener would be inconsistent with the Small-Claims Regulation at all, although general procedural issues are governed by the procedural law of the lex fori (cf. article 19 Small-Claims Regulation). In addition, the article analyses the impact of the ECJ’s ruling on other European legal acts such as the European Order for Payment Regulation (No. 1896/2006), the European Account Preservation Order Regulation (No. 655/2014), the Directive on the right to legal aid (RL 2002/8/EC), and the Mediation Directive (RL 2008/52/EC).

C.A. Kern/C. Uhlmann: When is a court deemed to be seised under the Brussels Ia Regulation? Requirements to be met by the claimant and pre-action correspondence

In the aftermath of the VW-Porsche takeover battle, an investor based on the Cayman Islands announced to sue Porsche SE in the High Court of England and Wales. Probably in an attempt to secure a German forum, Porsche initiated a negative declaratory action in the Landgericht Stuttgart. However, the complaint could not be served on the investor for lack of a correct address. The German Federal Supreme Court held that Porsche had not met the requirements of Art. 32 no. 1 lit. a of the recast Brussels I Regulation and asked the lower court to determine whether the „letter before claim“ sent by the investor had already initiated proceedings in England so that parallel proceedings in Germany were barred. The authors agree that Art. 32 no. 1 must be interpreted strictly, but doubt that a „letter before claim“ is sufficient to vest English courts with priority under the Brussels Regulation.

C. Thomale: Treating apartment-owner associations at Private International Law

In its recent Brian Andrew Kerr ./. Pavlo Postnov and Natalia Postnova decision, the CJEU has taken a position on how to handle apartment owners’ obligations to contribute to their association in terms of international jurisdiction and choice of law. The casenote analyses the decision, notably assessing the relationship of international jurisdiction and choice of law, the concept of “services” as contained in the Brussels I Regulation and the Rome I Regulation respectively, as well as the company law exception according to Art. 1 (2) (f) Rome I Regulation.

H. Roth: The Probative Value of Certificates as per Art 54 Brussels I and Art 53 Brussels Ia

According to the European rules on recognition and enforcement of judgments in civil and commercial matters, the probative value of both certificates is determined as mere information provided by the court of origin. At the second step of assessing whether there are grounds to refuse recognition (appeal or refusal of enforcement), the court of the member state in which enforcement is sought will have to verify itself the factual and legal requirements for service of process.

M. Brosch: Public Policy and Conflict of Laws in the Area of International Family and Succession Law

The public policy-clause is rarely applied in private international law cases. Relevant case law often concerns matters of international family and succession law. This also applies to two recent decisions of the Court of Appeal in Berlin and the Austrian Supreme Court relating, respectively, to the recognition of a Lebanese judgement on the validity of a religious marriage and the applicability of Iranian succession law. Although systemically coherent, the courts’ findings give rise to several open questions. Furthermore, it is argued that two opposite tendencies can be identified: On the one hand, the synchronisation between forum and ius as well as the prevalence of the habitual residence as connecting factor in EU-PIL leave little room for the application of the public policy-clause. On the other hand, its application may be triggered in areas where the nationality principle still prevails, i.e. in non-harmonised national PIL and PIL rules in bilateral treaties.

E.M. Kieninger: Vedanta v Lungowe: A milestone for human rights litigation in English courts against domestic parent companies and their foreign subsidiary

In Vedanta v Lungowe, a case involving serious health and environmental damage due to emissions into local rivers from a copper mine in Sambia, the UK Supreme Court has affirmed the jurisdiction of the English courts, in relation to both the English parent company and the subsidiary in Sambia. In the view of the Supreme Court, the claim against the parent company has a real issue to be tried and denying access to the English courts would equal a denial of substantive justice. The decision is likely to have consequences not only for the appeal against the Court of Appeal’s denial of access to the English courts in Okpabi v Royal Dutch Shell, but also for the development of a more general duty of care of parent companies towards employees and people living in the vicinity of mines or industrial plants run by subsidiaries.

B. Lurger: How to Determine Foreign Legal Rules in Accelerated Proceedings in Austrian Courts

In a rather lengthy proceeding initiated in 2014 in the district court Vienna Döbling the wife claimed maintenance from her husband. The Austrian Supreme Court (OGH) examined the special conditions of the application of foreign law in accelerated proceedings (motion for injunctive relief). The Court first clarified the construction of Art. 5 Hague Maintenance Protocol in relation to a pending divorce proceeding in which Austrian law applied, whereas the habitual residence of the claimant was situated in the United Kingdom. The OGH held that in accelerated proceedings, the question of whether foreign law had to be applied (the choice of law question) can regularly be answered without considerable effort. As the next step, the determination of the content of the foreign law must be undertaken by the lower courts with reasonable means and effort. As in ordinary proceedings, the parties do not have any particular duties to assist the court in this determination. Considering the special circumstances of the case, which consisted in the considerable wealth of the parties and the divorce and maintenance proceedings going up and down the instances in Vienna already for years, the Supreme Court arrived at the conclusion that the application of English law by the Austrian courts was appropriate even in the accelerated proceeding at hand.

The XXV Annual Conference of the Italian Society of International and EU Law (ISIL) on Shared Values and Commons in the International and Supranational Dimension will be hosted at the University of Salento on 18-19 June 2020. The Conference will consist of three sessions on the following topics:

-The respect and promotion of the democratic values and of the rule of law in the international and European legal orders;

-The mandatory principle of environmental conservation, with special emphasis on sustainability;

-The threats to human rights due to the increasing role played by new technologies in contemporary societies.

Papers are accepted for presentation in Italian, English or French. Abstracts (250 words max) and a short bio may be submitted to SIDI2020@unisalento.it by 25 January 2020. The selection process will be completed by the end of February 2020.

More information on this call for papers is available here.

Saloni Khanderia & David Stewart published recently on the Hague Judgments Convention in the following reviews:

• Saloni Khanderia, 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 (Vol. 63, Issue 3/2019)
• David Stewart, 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 (Vol. 113, Issue 4/2019)

Written by Jack Wass, Stout Street Chambers, New Zealand

On 5 December 2019, the New Zealand Court of Appeal released a significant decision on jurisdiction over land in cross-border cases.

In Christie v Foster [2019] NZCA 623, the Court overturned the High Court’s decision that the Moçambique rule (named after British South Africa Co v Companhia de Moçambique [1893] AC 602) required that a dispute over New Zealand land be heard in New Zealand (for a case note on the High Court’s decision, see here). The plaintiff sought to reverse her late mother’s decision to sever their joint tenancy, the effect of which was to deprive the plaintiff of the right to inherit her mother’s share by survivorship. The Court found that the in personam exception to the Moçambique rule applied, since the crux of the plaintiff’s claim was a complaint of undue influence against her sister (for procuring their mother to sever the tenancy), and because any claim in rem arising out of the severance was precluded by New Zealand’s rules on indefensibility of title. As a consequence the Court declined jurisdiction and referred the whole case to Ireland, which was otherwise the appropriate forum.

In the course of its decision, the Court resolved a number of important points of law, some of which had not been addressed in any Commonwealth decisions:

First, it resolved a dispute that had arisen between High Court authorities about the scope of the in personam exception, resolving it in favour of a broad interpretation. In particular, the Court disagreed with High Court authority (Burt v Yiannakis [2015] NZHC 1174) that suggested an institutional constructive trust claim was in rem and thus outside the exception.

Second, it held (reversing the High Court) that the Moçambique rule does not have reflexive effect. The rule prevents the New Zealand court from taking jurisdiction over claims in rem involving foreign land out of comity to the foreign court, but does not require the New Zealand court to take jurisdiction over cases involving New Zealand land. Although New Zealand will often be the appropriate forum for a case involving New Zealand land, the court is free to send it overseas if the circumstances require, even if the claim asserts legal title in rem.

Third, the Court confirmed that there is a second exception to the Moçambique rule – where the claim arises incidentally in the administration of an estate. Dicey, Morris and Collins had suggested the existence of this exception for many editions, but it had to be inferred from earlier cases without being properly articulated. The Court expressly found such an exception to exist and that it would have applied in this case.

In the course of its analysis, the Court expressed sympathy for the arguments in favour of abolishing the Moçambique rule entirely. Although the Court did not go that far, it reinforced a trend of the courts restricting the application of the rule and suggested that in the right case, the courts might be prepared to abandon it entirely.

On 12 and 13 December 2019, the University of Ljubljana (Slovenia) is the destination of many experts and academics of different national and professional backgrounds who will join in the discussion about various legal aspects of the family property in cross-border situations in EU. The event titled “Best Practices in European Family and Succession Law” is the second public event within the Justice co-funded project PSEFS which stands for “Personalised Solution in Family and Succession Law”. Here is the programme of the event.

The news from the project and more are available at the PSEFS web page.

We are happy to officially announce that the European Association of Private International Law (EAPIL) has recently been founded!

An independent and non-partisan organization registered as a non-profit association under the laws of Luxembourg, EAPIL aims to promote the study and development of private international law by fostering the cooperation of academics and practitioners  as well as the exchange of information on the sources of the discipline, its scholarship and practice.

To learn more about EAPIL – and to become a member – please check out the Association’s website.

To learn about the EAPIL founding conference, to be held at the University of Aarhus (Denmark) in May 2020, please visit the official conference website.

The case Monasky v. Taglieri will be argued on Wednesday 11 December 2019 at 10:00 a.m. before the US Supreme Court. As you may remember, this case deals with the determination of habitual residence under the HCCH Child Abduction Convention and may be pivotal in resolving the split in the US circuit courts. Our previous posts on this case are available here and here.

You will be able to read the transcript of the oral arguments this Wednesday and listen to the audio recording of the oral arguments soon thereafter.

As indicated on the US Supreme Court website, “The transcripts of oral arguments are posted on this website on the same day an argument is heard by the Court. Same-day transcripts are considered official but subject to final review. The audio recordings of all oral arguments heard by the Supreme Court of the United States are available to the public at the end of each argument week.”

A collection of essays titled Investment Arbitration in Central and Eastern Europe, edited by Csongor istván Nagy (University of Szeged, Hungary), has recently been published by Edward Elgar. See here for more information on the book, its contents and contributors.

As noted in the publisher’s blurb, Central and Eastern Europe (CEE) appears to be the testing ground for investment arbitration in Europe: the majority of the cases against EU Member States are proceedings launched against countries from the region. Despite their relevance, CEE experiences have not been analysed in a comprehensive manner. The book aims to fill this gap.

The introductory chapter, written by the editor, is titled Intra-EU BITs after Achmea: A Cross-Cutting Issue and can me downloaded via SSRN.

As noted earlier on this blog, we will celebrate the forthcoming establishment of the European Association of Private International Law (EAPIL) at a conference to  be held at Aarhus University, Denmark, from 14 to 16 May 2020.

The conference will bring together academics and practitioners from all over Europe and provide a unique opportunity to talk and think about European Private International Law in a pan-European fashion. Topics to be discussed will include the effects and the challenges of digitalization, the problems of fragmentation as well as other challenges the discipline is currently facing.

Early bird registration is still possible via the conference website. For questions, please get in touch with the local organizer, Morten M. Fogt (mmf@law.au.dk).

Stay tuned for more Information about the European Association of Private International Law (EAPIL) including information about how to join!

In November 2019, there were a couple of new signatory States to the HCCH Conventions. New Zealand signed the HCCH Child Support Convention and Austria did the same with respect to the HCCH Service Convention.

These HCCH Conventions are not yet in force for New Zealand and Austria as both States would need to ratify them pursuant to the relevant articles under each Convention. Nevertheless, by signing the Conventions both States have acquired the “obligation not to defeat the object and purpose of a treaty prior to its entry into force” in accordance with Article 18 of the Vienna Convention on the Law of Treaties.

With regard to Austria, and given the external competence of the European Union in these matters, it is important to note that the signature was made pursuant to the Council Decision (EU) 2016/414 of 10 March 2016 authorising the Republic of Austria to sign and ratify, and Malta to accede to, the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, in the interest of the European Union. Interestingly, this decision requires that the ratification to the Service Convention be made by 31 December 2017 at the latest. I am unaware of any updates with respect to this decision.

The HCCH news items are available here (New Zealand) and here (Austria).

On 13-14 February 2020, ERA (Academy of European Law) will host a Seminar in Strasbourg to present the major judgments related to family matters issued by the European Court of Human Rights (ECtHR) in 2019. The focus of the presentations will be mainly on:

• Children in European migration law
• Parental rights, pre-adoption foster care and adoption
• Parental child abduction
• Reproductive rights and surrogacy
• LGBTQI rights and gender identity

The Seminar, organised by Dr Angelika Fuchs, will provide participants with a detailed understanding of this recent jurisprudence. The focus will be placed, in particular, on Article 8 ECHR (respect for private and family life) and the analysis of the case law of the ECtHR will tackle the legal implications but it will also extend to social, emotional and biological factors.

The opening speech will be given by Ksenija Turkovi?, Judge at the European Court of Human Rights in Strasbourg.

More information on the event and on registration is available here.

This event is organised with the support of the Erasmus+ programme of the European Union

The Hague Conference on Private International Law (HCCH) has posted the Conclusions & Recommendations of the “International Seminar on the Protection of Children Across Borders: The 1996 HCCH Convention on the Protection of Children” that took place in Rabat, Morocco, in mid-November 2019.

The seminar focused on discussing ways to improve the protection of children across borders in West Africa, in North Africa and in Europe. Two topics of particular interest were discussed: kafala and unaccompanied minors.

With regard to the institution of kafala, the participants “welcomed the opportunity to share information and experiences concerning crossborder kafala cases; in particular, the participants noted that, in States where it is unknown under domestic law, kafala may be recognised or, at the very least and depending on the circumstances, its effects would correspond to the delegation of parental responsibility, guardianship or curatorship, in order to ensure its legal effectiveness across borders. Participants also recognised that kafala and adoption are two very different concepts” (C&R No 9).

The HCCH Child Protection Convention makes explicit reference to the institution of Kafala in Articles 3(e) and 33. Paragraph 3.27 of the Practical Handbook on the Operation of the 1996 Child Protection Convention explains what is understood by Kafala: “The institution of kafala is widely used in some States as a form of care for children when they cannot be cared for by their parents. Under kafala, children are cared for by new families or relatives but the legal link with their birth parents is generally not severed. Kafala can take place across borders but since it is an arrangement which does not constitute an adoption it is not within the scope of the 1993 Hague Intercountry Adoption Convention. However, where used, the institution of kafala clearly constitutes a measure of protection in respect of a child and is therefore expressly within the scope of the 1996 Convention.”

With regard to the protection of unaccompanied and separated children, the participants “recognised the need to implement the “Guidelines for the Alternative Care of Children” resulting from Resolution 64/142 adopted by the United Nations General Assembly” (C&R No 11).

The Permanent Bureau of the Hague Conference is also working on this topic. In fact, in 2018 the governance body of the Hague Conference mandated to prioritise work on the finalisation of the revisions to a preliminary document relating to the application of the 1996 HCCH Child Protection Convention to unaccompanied and separated children (referred to as Preliminary Document No 7 of the Seventh Meeting of the Special Commission of 2017 on the 1980 and 1996 Conventions). To the best of my knowledge, this document has not yet been released.

Currently only two African States are States parties to the HCCH Child Protection Convention: Lesotho and Morocco. Only Morocco was present at the seminar probably due to its geographic scope.

The HCCH news items is available here.

The Italian Independent Authority for Children and Adolescents (Autorità garante per l’infanzia e l’adolescenza) has just published a book to celebrate the 30th anniversary of the United Nations Convention on the Rights of Child (CRC).

The book, in Italian, is titled La Convenzione delle Nazioni Unite sui diritti dell’infanzia e dell’adolescenza: conquiste e prospettive a 30 anni dall’adozione (“The 30th Anniversary of the UN Convention on the Rights of the Child: Achievements and Perspectives”). It consists of chapters dealing with a range of issues surrounding the Convention.

Some of the chapters discuss the relevance of the Convention to the rules of private international law regarding children.

Christophe Bernasconi and Philippe Lortie, respectively Secretary General and First Secretary of the Hague Conference on Private International Law, analysed the impact of the CRC on the work of the Hague Conference in the field of child protection.

Olivia Lopes Pegna, of the University of Florence, wrote a chapter on the techniques used by private international law rules to realise the best interests of the child.

Ester di Napoli discussed the synergies between migration law and private international law, in particular as regards the protection of unaccompanied minors.

The book can be downloaded here for free. The English abstracts of each chapter, kindly provided by Ester di Napoli, are available here.

The First Edition of the Milan Investment Arbitration Pre-Moot  will take place in Milan on February 14-15, 2020, within the frame of the Frankfurt Investment Arbitration Moot Court (FIAC).

For more information, click here.

Written by Chukwuma Okoli, TMC Asser Institute, The Hague

About a decade ago, Oppong lamented a “stagnation” in the development of private international law in Africa. That position is no longer as true as it was then – there is progress. Though the African private international law community is small, the scholarship can no longer be described as minimal (see the bibliograhy at the end of this post). There is a growing interest in the study of private international law in Africa. Why is recent interest on the study of private international law [in Africa] important to Africa? What lessons can be learn’t from other non-African jurisdictions on the study of private international law?

With increased international business transactions and trade with Africa, private international law is a subject that deserves a special place in the continent. Where disputes arise between international business persons connected with Africa, issues such as what court should have jurisdiction, what law should apply, and whether a foreign judgment can be recognized and enforced are keys aspects of private international law. Thus, private international law is indispensable in regulating international commercial transactions.

Currently, there is no such thing as an “African private international law” or “African Union private international law” that is akin to, for example, “EU private international law”. It could, however, be argued that there is such a thing as “private international law in Africa”. The current private international law in Africa is complicated as a consequence of a history of foreign rule, and the fact that Africa has diverse legal traditions (common law, Roman-Dutch law, civil law, customary law and religious law). Many countries in Africa still hang on to what they inherited during the period of colonialism. As colonialism breeds dependence, there has not been sufficient conscious intellectual effort to generate a private international law system that responds to the socio-economic, cultural, and political interests of countries in Africa.

Drawing from comparative experiences, it is opined that a systematic academic study of private international law might create the required strong political will and institutional support (which is absent at the moment) that is necessary to give private international law its true place in Africa.

There has always been private international law in Africa from time immemorial. Africans, like any other persons, migrated from one territory to another (especially within Africa), where the clash of socio-cultural, political, and economic interests among persons in Africa gave rise to private international law problems as we know them today. Some of these disputes between private parties of different nation states may have likely been resolved through war or diplomacy.

The systematic study of private international law as we know it today has largely been academically developed by the Member States of the European Union (EU) and the United States of America (“USA”). The period of industrialization in the 19th century, and the rise of capitalism gave birth to a variety of solutions that could respond to globalization. Indeed, the firm entrenchment of the principle of party autonomy in international dispute settlement in the 20th century was a way of securing the interest of the international merchant who does their business in many jurisdictions. The privatization of international law dispute settlement is what gave birth to the name private international law.

In the international scene, the study of private international law is currently dominated by two major powers: the EU and the US, but the EU wields more influence internationally. The EU operates an integrated private international law system with its judicial capital in Luxembourg. The EU can be described as a super-power of private international law in the world, with The Hague as its intellectual capital. Many of the ideas in the Hague instruments (a very important international instrument on private international law) were originally inspired by the thinking of European continental scholars. As a result of colonization, many countries around the world currently apply the private international law methodology of some Member States of the EU. The common law methodology is applied by many Commonwealth countries that were formerly colonized by the United Kingdom; the civil law methodology is applied by many countries (especially in French-speaking parts of Africa) that were formerly colonized by France and Belgium; and the Roman-Dutch law methodology is applied by many countries that were formerly colonized by Netherlands.

Asia appears to have learnt from the EU and USA experience. Since 2015 till date, private international academics from Asia and other regions around the world have held many conferences and meetings with the purpose of drawing up the principles of private international law on civil and commercial matters, known as “Asian Principles of Private International Law”). The purpose of the principles is to serve as a non-binding model that legislators and judges (or decision makers) in the Asian region can use in supplementing or reforming their private international law rules.

It is important to stress that it is the systematic study of private international law by scholars over the years in the US and Member States in the EU and Asia that created the required political will and institutional support to give private international law it’s proper place in these countries. In Africa, such systematic study becomes especially important in an environment of growing international transactions both personal and commercial. This is what propels the study of private international. It is seldom an abstract academic endeavor given the nature and objectives of the subject

Professor Oppong – a leading authority on the subject of private international law in Africa – has rightly submitted in some of his works that private international law can play a significant role in Africa in addressing issues such as: “regional economic integration, the promotion of international trade and investment, immigration, globalization and legal pluralism.” A systematic study of private international law in Africa will address these some of these challenges that are significant to Africa. Indeed, a solid private international law system in African States can create competition among countries on how to attract litigation and arbitration. This in turn can lead to economic development and the strengthening of the legal systems of such African countries

What should private international law in Africa look like in the future?  Is it possible to have a future “African Union private international law” comparable to that of the European Union? Should it operate in an intra-African way to the exclusion of international goals such as conflicts between non-African countries, and the joint membership or ratification of international instruments such as The Hague Conventions? Should it take into account internal conflicts in individual African states, where different applicable customary or religious laws may clash with an enabling statute or the constitution, or different applicable religious or customary laws may clash in cross-border transactions? In the alternative, should it focus primarily on diverse solutions among countries in Africa, and promote international commercial goals, with less attention placed on African integration?

These questions are not easy to answer. It is opined that private international law in Africa deserves to be systematically studied, and solutions advanced on how the current framework of private international law in Africa can be improved. If such study is devoted to this topic, the required political will and institutional support can be created to give [private international law] proper significance in Africa.

For recent monographs on the subject see generally
CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, 2020- forthcoming)
P Okoli, Promoting Foreign Judgments; Lessons in Legal Convergence from South Africa and Nigeria (Wolters Kluwer, Alphen aan den Rijn, 2019)
AJ Moran and AJ Kennedy, Commercial Litigation in Anglophone Africa: The law relating to civil jurisdiction, enforcement of foreign judgments, and interim remedies (Juta, Cape Town, 2018)
RF Oppong, Private International Law in Ghana (Wolters Kluwer Online, Alphen aan den Rijn, 2017)
M Rossouw, The Harmonisation of Rules on the Recognition and Enforcment of Foreign Judgments in Southern African Customs Union (Pretoria University Law Press, Pretoria, 2016)
E Schoeman et. al., Private International Law in South Africa (Wolters Kluwer Online, Alphen aan den Rijn, 2014)
RF Oppong, Private International Law in Commonwealth Africa (Cambridge University Press, Cambridge, 2013)
C Forsyth, Private International Law – the Modern Roman Dutch Law including the Jurisdiction of the High Courts (5th edition, Juta, Landsowne, 2012).

Written by Michael Douglas, Mary Keyes, Sarah McKibbin and Reid Mortensen

Michael Douglas, Mary Keyes, Sarah McKibbin and Reid Mortensen published an article on how the implementation of the HCCH Judgments Convention would impact Australian private international law: ‘The HCCH Judgments Convention in Australian Law’ (2019) 47(3) Federal Law Review 420. This post briefly considers Australia’s engagement with the HCCH, and the value of the Judgments Convention for Australia.

Australia’s engagement with the HCCH

Australia has had a longstanding engagement with the work of the Hague Conference since it joined in 1973. In 1975, Dr Peter Nygh, a Dutch-Australian judge and academic, led Australia’s first delegation. His legacy with the HCCH continues through the Nygh Internship, which contributes to the regular flow of Aussie interns at the Permanent Bureau, some of whom have gone on to work in the PB. Since Nygh’s time, many Australian delegations and experts have contributed to the work of the HCCH. For example, in recent years, Professor Richard Garnett contributed to various expert groups which informed the development of the Judgments Project. Today, Andrew Walter is Chair of the Council on General Affairs and Policy.

Australia has acceded to 11 HCCH instruments, especially in family law where its implementation of HCCH conventions leads the Conference. However, with respect to recent significant instruments, it has lagged behind. For example, in 2016, Australia’s Commonwealth Attorney-General’s Department (‘AGD’) recommended accession to the 2005 HCCH Choice of Court Convention through an ‘International Civil Law Act’; it also recommended that the proposed legislation should give effect to the HCCH’s Principles on Choice of Law in International Commercial Contracts. In November 2016, the Australian Parliament’s Joint Standing Committee on Treaties supported both recommendations. Despite those recommendations, we are yet to see the introduction of a Bill into Parliament. We remain hopeful that 2020 will see progress.

Australia actively participated in the negotiation of the HCCH Judgments Convention and agreed to the final act. However, it is not a signatory. The mood within the Australian private international law community is that Australia will accede—the question is when. When it does, what would that mean? That is the focus of the article by Douglas, Keyes, McKibbin and Mortensen, who argue that accession ought to be welcomed.

The value of the HCCH Judgments Convention for Australia

Accession to the Judgments Convention would be a positive development for Australia. The Convention expands the grounds for recognising foreign judgments in Australia, especially in the recognition of foreign courts to exercise special jurisdictions giving rise to an enforceable judgment, and the enforcement of non-money judgments.  The proposed grounds for refusal of recognition and enforcement broadly align to the current treatment of the defences to recognition and enforcement, and the bases for setting aside registration of foreign judgments, under Australian law. By harmonising Australia’s private international law with that of other Contracting States, the Judgments Convention should provide greater certainty to Australian enterprises engaging in international business transactions with entities from other Contracting States. As an island nation, ensuring certainty for cross-border business is essential to the Australian economy.

For Australia, the primary advantage of the Judgments Convention is the capacity to enforce Australian judgments overseas. A party to cross-border litigation who obtains the benefit of an Australian judgment will have a clearer pathway to obtaining meaningful relief.  The ability to enforce an Australian civil or commercial judgment internationally is extremely limited, with the exception of New Zealand. The Judgments Convention, if implemented in Australia, would both expand and reposition the ability to project Australian judicial power beyond New Zealand. Certainly, the Convention would enhance the ability to enforce judgments of the courts of the other Contracting States to the Convention in Australia. Equally, as a multilateral Convention, the Judgments Convention would enable Australian judgments to circulate among the other Contracting States to the Convention. That would be a most attractive outcome for the Australian judicial system. Non-money judgments, which currently have almost no extraterritorial reach, would become enforceable through the Convention. The recognition of judgments that emerge when Australian courts exercise special jurisdictions dealing with contractual, non-contractual and trust obligations is also a long overdue reform and would see the law relating to the international enforcement of judgments align more closely with the nature of modern commercial litigation. If adopted widely, the Judgments Convention will provide better access to the assets of judgment debtors and to defendants themselves. This will reduce the risks associated with cross-border litigation, and so with it, the risks to cross-border business.

A secondary effect of the implementation of the Judgments Convention is the pressure it may apply to the Australian rules of adjudicative jurisdiction that allow Australian courts to deal with international litigation. There remains a very substantial disparity between the extremely broad adjudicative jurisdictions claimed by Australian courts and the narrow jurisdictions that are allowed to foreign courts by Australian courts considering whether to recognise foreign judgments. The Judgments Convention does not address this disparity, although the recognition of foreign judgments made when courts of origin exercise special jurisdictions somewhat narrows it. Unless the Australian rules of adjudicative jurisdiction are reformed, the enforceability of an Australian judgment in cross-border litigation will require a litigant’s consideration of both the Australian rules of adjudicative jurisdiction and the different Judgments Convention rules of indirect jurisdiction. Ultimately, though, to get an internationally enforceable judgment, it would only be compliance with the Judgments Convention that counted.

In short, this article strongly recommends that Australia should accede to the Judgments Convention in order to modernise and improve Australian law, and to provide better outcomes for Australian judgment creditors. It would be timely for Australia also to refocus and continue its efforts on accession to the Choice of Court Convention.