Agrégateur de flux

(This post was drafted by Zhang Yong, a PhD student in the University of Macau and revised by Guangjian Tu)

The Annual Inter-regional and International Family Law Forum of Chinese Society of Private International Law was held on September 21, 2024 in Everwin Law Office, Guangzhou. Scholars, practitioners and notaries from all over the country working in the field came together to discuss the relevant issues. After the opening ceremony chaired by Prof. Guangjian Tu from the University of Macau, keynote speeches were delivered: 1, Prof. Yong Gan, School of Law of Wuhan University, who is a member of the Expert Group, introduced the progress of the Expert Group’s work on the Parentage/Surrogacy Project in the Hague Conference on Private International Law; 2, Prof. Faqiang Yuan, School of International Law of East China University of Political Science and Law, shared his research article titled “Annual Report on the Development of Rule of Law in the Field of Family Affairs: Domestic and Abroad in 2022-2023″.

In the parallel sessions, participants had heated debates and discussions on new developments in foreign-related family law in the Mainland China, foreign-related and Hong Kong and/or Macao-related marital property relations and agreements, parentage and maintenance support, recognition and enforcement of inter-regional marriage and family judgments, foreign-related and Hong Kong and/or Macao-related inheritance, and jurisdiction over inter-regional family issues etc.

Of course, the Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland China and of the Hong Kong Special Administrative Region (the Arrangement) was the focus of this forum. The Arrangement was adopted on 20 June 2017 and came into effect on 15 February 2022. In order to achieve closer and more extensive judicial assistance in the area of marriage and family law between Mainland China and Hong Kong, except for inheritance-related issues, the Arrangement covers a broad range of matters, almost everything in marriage and family laws such as validity of marriage, marital property relationships, parentage, maintenance, adoption etc. This is very different from the Regulations enacted in the European Union, which regulated those issues one by one in a piece-meal approach.

Written by Hadrien Pauchard (assistant researcher and doctoral student at Sciences Po Law School)

The third issue of the Revue Critique de droit international privé of 2024 was released on October 1st. It contains four articles and several case notes. In line with the Revue Critique’s recent policy, the doctrinal part will shortly be made available in English on the editor’s website (for registered users and institutions).

The volume features a first article on L’ambiguïté de la notion de « reconnaissance » confrontée à la proposition de règlement de l’Union européenne relative à la filiation (The ambiguity of the concept of “recognition” in the light of the EU draft regulation on parenthood) authored by Prof. Christine Bideau (Université Jean Moulin Lyon 3), who provided the following abstract :

The term “recognition” is often used in private international law, but it has very different meanings. So when the European Commission draws up a proposal for a regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, insisting on the permanence of the parenthood link regardless of the Member State in which the persons concerned are located, we can only wonder what meaning it intended to give to this “recognition” of parenthood that it advocates in its explanatory memorandum.

In the second article, Prof. Étienne Pataut (Université Paris I Panthéon Sorbonne) discusses the Perte de nationalité en Europe : la consolidation du contrôle de proportionnalité (Loss of nationality in Europe : the strengthening of proportionnality review). Its abstract reads as follows :

By two new decisions, the Court of Justice clarifies the content, in particular procedural, of the proportionality control in matters of loss of nationality. These solutions could have a significant impact on French litigation in this area.

In the third article, Prof. Gilles Cuniberti (Université du Luxembourg) embarks À la recherche d’une justification sérieuse à l’application de la Convention de 2004 sur l’immunité des États par le juge français (In search of a serious justification for the application of the 2004 Convention on State Immunity by the French judge). The abstract reads as follows :

Since 2011, the French supreme court for private and criminal matters (Cour de cassation) has ruled that the French law of sovereign immunities is based on customary international law, and that it would be reflected in the United Nations Convention on Jurisdictional Immunities of States and Their Property. This Article surveys the case law of several European supreme courts and argues that it is doubtful that the Convention reflects customary international law. It concludes by proposing that French courts apply the Convention as such, instead of pretending to apply customary international law.

Lastly, Prof. Thibaut Fleury Graff (Université Paris II Panthéon Assas) conducts a review of recent French and European case law on droit des étrangers (aliens’ law). Entitled Du politique au juridique : qui est l’étranger ? Retours choisis sur la jurisprudence 2023 en matière de migrations (From the political to the legal: who is the alien? Selected case law on migration in 2023), the contribution offers a critical look at the boundary work constantly at play in the definition of the status of aliens.

The full table of contents is available here.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

Ordre néerlandais des avocats du barreau de Bruxelles e.a. / Conseil
Relations extérieures
Mesures restrictives en réaction à la guerre en Ukraine : l’interdiction de fournir des services de conseil juridique au gouvernement russe et aux entités établies en Russie est valide

Wolfgang Hau (Ludwig Maximilian University of Munich), Bart Krans (Leiden University) and Anna Nylund (University of Bergen) edited European Law and National Organisation of Civil Justice with Nomos. The book is part of the Streitbeilegung und Streitvermeidung im Zivilrecht – Schriftenreihe des Munich Center for Dispute Resolution. The book explores the interplay between European law […]

By Ananya Bhargava, Jindal Global Law School, OP Jindal Global University, India.

Recently, the Delhi High Court in the case of Honasa Consumer Limited v RSM General Trading LLC granted an anti-enforcement injunction against the execution proceedings instituted in the Dubai Court on the ground that it threatened the arbitral process in India. The Court deemed the proceedings before the Dubai Court as an attempt to frustrate a possible arbitration envisaged by the contract between the parties.  The injunction was granted under S.9 of the Indian Arbitration and Conciliation Act 1996 as an “interim measure.”  This is a significant turning point in the intersection of arbitration and cross-border litigation in India since the remedy of anti-enforcement injunction is rarely granted by judicial authorities across jurisdictions.

Interestingly, in 2021, the same bench of the Delhi High Court granted the first-ever anti-enforcement injunction in India in Interdigital Technology Corporation v. Xiaomi Corporation. Here, the court defined anti-enforcement injunctions as injunctions where a court injuncts one of the parties before it from enforcing against the other a decree or order passed by a foreign court. Thus, the remedy of anti-enforcement injunctions is triggered when a foreign proceeding has already run its course and resulted in an unfavourable judgment. It is a remedy restraining the enforcement of a decree that is in an inconvenient forum or is in breach of the parties’ contractual agreement.

 

By its very definition, an anti-enforcement injunction appears to be a more aggressive and exceptional form of relief. Thus, courts have traditionally been cautious in granting such injunctions, given the potential implications on international comity and judicial restraint. However, the Delhi High Court’s decision to grant one in this case marks an interesting departure from this reluctance. This article delves into the rationale behind Delhi High Court’s judgment in this case and explores its implications on cross-border litigation in India.

 

Brief facts:

The fulcrum of the dispute concerned an Authorized Distributorship Agreement (ADA) between Honasa Consumer Limited (petitioners) and RSM General Trading LLC (respondents). The ADA included an Arbitration clause with New Delhi as the venue of arbitration and the Arbitration and Conciliation Act, 1996 declared as the governing law.  The ADA also conferred exclusive jurisdiction on the courts of New Delhi for matters arising from the contract. Despite these provisions, the respondents filed a suit in the Court of First Instance in Dubai, which ruled against the petitioners and imposed damages. The petitioners challenged this decree in the Dubai Courts of Appeal.

 

While the appeal was pending, the petitioner approached the Delhi High Court under S.9 of the Arbitration and Conciliation Act and sought an injunction against the respondents from enforcing the Dubai Court’s decree. The petitioners argued that the respondent’s actions in filing the Dubai Suit was oppressive and vexatious in nature and it attempted to subvert the contractual clauses agreed upon by both the parties. The respondents, on the other hand, argued that the court’s power to grant interim reliefs under S.9 of ACA does not encompass the power to grant an anti-enforcement injunction against a foreign court’s decree.

 

Delhi High Court’s Ruling:

Based on the following contentions, the Court held that the power to grant “anti-enforcement” or anti-suit injunction would also be encompassed in the power to grant interim measures. The judgment was predicated on a liberal understanding of S.9 of Arbitration and Conciliation Act, where the court owing to the legally abusive nature of the foreign proceedings, deemed it to be “just and convenient” to pass an injunction against the respondents from enforcing the Dubai Court’s decree against the petitioners.

 

The court arrived at this conclusion through a comprehensive analysis of three broad legal principles. First, the court analyzed the threshold of granting anti-enforcement injunctions in other jurisdictions. Second, the court considered the scope of S.9 of Arbitration and Conciliation Act, that provides for interim reliefs. Finally, the principle of international comity was discussed in detail by the court. These are discussed briefly below.

 

• Court’s analysis of international jurisprudence:

In the absence of established precedent on anti-enforcement injunctions in India, the Delhi High Court analysed cases from various jurisdictions to shape its approach. The principles outlined in these cases manifest the overall outlook of courts across jurisdictions on anti-enforcement injunctions. While some courts have taken a liberal approach, other jurisdictions are wary of the sheer magnitude of the injunction in rendering the foreign judgment almost redundant.

 

In England, the Court of Appeal in SAS Institute Inc v World Programming Ltd adopted a more liberal view, focusing on the principles of justice and comity rather than imposing a high threshold of “exceptionality in granting such injunctions.” The court held that an anti-enforcement injunction has developed incrementally from the same underlying principles as the anti-suit injunction. Thus, the court did not distinguish between anti-suit and anti-enforcement injunctions based on the degree of exceptionality. Instead, it lowered the threshold for the latter, placing both on the same level.

 

Conversely, the Singapore Court of Appeals (SCA) in Sun Travels & Tours Pvt Ltd v. Hilton International Manage (Maldives) Pvt Ltd., emphasized on the difference between anti-suit and anti-enforcement injunctions and held that a “greater degree of caution” should be exercised by courts while considering an anti-enforcement application.  The court reasoned this on the ground that, “an AEI proscribes the enforcement of foreign, granting an anti-enforcement injunction is comparable to nullifying the foreign judgment or stripping the judgment of any legal effect when only the foreign court can set aside or vary its own judgment.” The SCA was cognizant of the legally aggressive nature of anti-enforcement injunctions and therefore incorporated the threshold of “exceptionality” while dealing with such applications.

 

The Delhi High court on the other hand, deviated from the approach taken by SCA in Sun Travels and subscribed to a more liberal understanding similar to the English Courts. The court while endorsing its holding in Interdigital Technology Corporation v. Xiaomi Corporation held that “where a court in rendering of “justice” requires an anti-enforcement injunction to be issued, then it should not hold back its hands on some perceived notion of lack of “exceptionality” in the case.” By doing so, the court significantly lowered the threshold for granting anti-enforcement injunctions in India and held that rarity and exceptionality need not necessarily be a deciding factor for granting such injunctions.

 

• On the scope of S.9 of Arbitration and Conciliation Act:

On the scope of S.9 of Arbitration and Conciliation Act, the court held that that the scope of S.9 is wide and compendious. It stated that although the section appears exhaustive in nature as it enumerates the matters in which interim relief can be granted, clause (e) of S.9(1)(ii) provided the courts with the discretionary power to grant any such interim measure that is “just and convenient.”. The court while reiterating established principles on interim measures held that while granting an injunction under S.9 of ACA, all the court has to see is whether  the applicant for interim measure has a good prima facie case, whether the balance of convenience is in favour of  interim relief as prayed for being granted and whether the applicant  has approached the court with reasonable expedition.  If these requirements are fulfilled, the court stated that it is within its power to grant the requisite interim relief in the form of an injunction. In this case, the Dubai court decree was held to be oppressive and vexatious, as a result, the court granted the anti-enforcement injunction as an interim relief.

 

Further, the court made an interesting observation with regards to S.9 of Arbitration and Conciliation Act. In response to the respondents citing S.44 of UK Arbitration Act as a defence, the court held that S.9 of ACA combines S.44 of UK Arbitration Act and S.37 of the Senior Courts Act. S.44 of the UK Act empowers the court to pass orders in support of the Arbitral Proceedings. The court noted that the section did not contain any “just and convenient” clause similar to S.9(1)(ii)(e) of Indian ACA. Whereas S.37 of the Senior Courts Act did contain a provision that allows the courts to pass interlocutory orders as is “just and convenient.” Ultimately the court concluded that S.9 of ACA does give powers to the courts to intervene in foreign proceedings where it is in the interest of justice.

 

• On the issue of international comity:

Lastly, on the issue of comity of Courts, the court held that “the principle of comity of courts can have no application where a foreign Court is manifestly acting in excess of jurisdiction.” Here, the respondent in manifest disregard of  the arbitration agreement contractually agreed upon by the parties, instituted a suit in the Dubai Court against the exclusive choice of Delhi High Court as the seat court. In this regard, the court held that the principle of comity of courts is not, jurisprudentially, a bar to grant of anti-suit or anti-enforcement injunction, where the facts of the case justify such grant.

 

Further, while disregarding the principle of comity in this case, the court buttressed on the principle of contractual supremacy and the need to hold parties accountable to their contractual commitments. It stated that adherence to contractual  covenants, voluntarily executed ad idem, is the very life breath of commerce. Ultimately it concluded that the defence of comity cannot be pleaded by the respondents in this case since the decree of the Dubai court was coram non judice as per the contractual covenants.

 

Implications of the court’s analysis :

The protection of contractual rights stands out as one of the most important themes in the Court’s approach to grant anti-enforcement injunction in the present case. In this regard, the judgment has some positive implications.

 

For instance, while disregarding the application of international comity in this case, the court upheld the exclusive jurisdiction clause between the parties and equated it to the negative covenant in the agreement. This effectively means that judgments from non-chosen jurisdictions would be in prima facie breach of such contractual clauses and would not be enforced ideally. This is in line with the common law approach to private international law that thrives on such contractual agreements.

 

This is a refreshing approach considering the fact that Indian courts have in the past disregarded the choice of law agreements to impute the law of the lex fori. Just a year ago in TransAsia Private Capital vs Gaurav Dhawan, the Delhi High Court had recorded that Indian courts are not required to automatically apply the chosen governing law to the dispute unless the parties introduce expert evidence to that effect. The present judgment in this regard is a positive deviation from the standard “default rule” applied by Indian Courts. A logical corollary to the court’s emphasis on contractual supremacy and protection of the exclusive jurisdiction clause is also the respect for parties choice of governing law. In the present case Dubai Court’s application of Dubai Law was seen as a violation of the contract which stipulated Arbitration and Conciliation Act as the governing statute. The precedential implication of this is that Indian courts can now move away from the default rule and respect the principles of party autonomy which is grounded on the principle of contractual supremacy. Thus, the court rightfully asserted the principle of contractual supremacy while granting an anti-enforcement injunction.

 

That said, the court’s attempt in lowering the threshold for anti-enforcement injunction to the same level as anti-suit injunctions may lead to uncertainty regarding its precedential value for other jurisdictions. In this regard, the judgment does suffer from certain deficiencies. First, setting a low standard for such injunctions can run the risk of courts frequently granting injunctions against foreign judgments in breach of international comity. Dispensing with the requirement of “exceptionality” in cases of anti-enforcement injunctions is dangerous in India, especially when the law on exclusive choice of court agreements is still at its nascent stage. In the past, Indian courts have wrongfully granted anti-suit injunctions despite there being an exclusive choice of court clause between the parties. Reducing the threshold for anti-enforcement injunctions to the same level would pose similar risks, with courts completely disregarding the rule of comity as has been done in cases granting anti-suit injunctions.

 

It was imperative for the court to appreciate the difference between anti-suit and anti-enforcement injunctions. The difference between an anti-suit injunction and an anti-enforcement injunction is not one of material but of degree. There is a spectrum. This is manifested in the fact that injuncting a party from executing a foreign judgment in a foreign court is a greater interference than injuncting a party from initiating foreign proceedings that are still at an early stage. In the present case, the petitioners could have sought an anti-suit injunction while the respondents initiated a suit in the Dubai Court, rather than waiting for the court to finish proceedings and deliver its judgment. As argued by scholars, the earlier an injunction is sought, the less damage is done to international comity, since there is significant wastage of resources of the foreign court in cases of anti-enforcement injunctions.

 

Thus, keeping the threshold for an anti-enforcement injunction the same as an anti-suit injunction creates significant risks. Indian courts should instead adhere to the high-threshold approach taken by the SCA in Sun Travels while granting an anti-enforcement injunction and relegate it to “exceptional cases” where the defendants are in clear breach of their contractual obligations, as in the present case.

 

Second, the court’s remark on the difference between S.9 of ACA and S.44 of the UK Arbitration Act is a crucial observation. Even though the UNCITRAL Model Law on International Commercial Arbitration (on which the Indian ACA is based) under Article 9 provides for interim measures, it does not elucidate the nature of such measures or the situations where they can be granted. The inclusion of the “just and convenient” clause in S.9 gives Indian courts an extra degree of discretion that is not contemplated in other jurisdictions. In the UK, the discretionary power of the court to grant interim measures when it is “just and convenient” does not flow from the UK Arbitration Act, but rather from the Senior Courts Act, which is used exceptionally. In India, this power is enunciated in the ACA itself. This distinction is important since it highlights the degree of judicial intervention envisaged by Indian and UK legislation. Ordinarily, S.151 of the CPC does provide the requisite power to the courts to grant remedies in the interest of justice. The specific inclusion of the “just and convenient” clause within the ACA risks a higher degree of judicial intervention in arbitration. Furthermore, incorporating the power to grant an anti-enforcement injunction within the clause can set a dangerous precedent.

 

More prominently, without delineating specific considerations as to when such injunctions can be granted and by simultaneously reducing the threshold of rarity in granting such injunctions, the court has normalized a higher degree of judicial intervention in cases of transnational litigation. Here, although the court rightly passed an anti-enforcement injunction, it sourced its legality from S.9(1)(ii)(e) as being “just and convenient,” rather than acknowledging the exceptionality of the present case and limiting such injunctions to rare circumstances. The court completely failed to recognize  the risks of lowering the threshold for granting such injunctions especially in India where excessive judicial intervention has been the biggest impediment to the development of transnational litigation.

 

The concerns raised above become more prominent considering  the absence of a specific legal framework governing the grant of such injunctions. The court’s move to lower the threshold could significantly impact decisions in other jurisdictions, given the lack of a uniform procedural law on this issue. To further contextualize this concern, I will briefly discuss the international framework—or rather, the lack thereof surrounding anti-enforcement injunctions and the concerns that arise due to this legal lacunae.

 

Which law governs Anti-Enforcement Injunctions?

There is no explicit domestic or international procedural framework that gives the court the power to grant such injunctions. S.9 of the Arbitration and Conciliation Act adopts Article 9 of the UNCITRAL Model Law on International Commercial Arbitration (Model Law) that allows courts to grant interim measures at the request of a party. The Model Law does not provide for an express provision authorising the grant of an anti-enforcement injunction in aid of arbitration.

 

In the absence of such express provision, the question that arises here is  “whether the scope of Article 9 is broad enough to encompass the power to grant anti-enforcement injunctions?” At this juncture, there seems to be no definitive answer to this.  Whether Article 9 is broad enough to restrain enforcement of a foreign court decree in aid of arbitration is a matter of conjecture. Model Law’s silence with respect to this has already lead to inconsistent judgments in domestic courts of States that have adopted it, as demonstrated by jurisprudence in Singapore and India. Thus, the need to incorporate a procedural framework with respect to such injunctions becomes important.

 

Another concern that arises is the potential conflict between anti-enforcement injunctions and laws related to recognition and enforcement of foreign judgments.  Earlier in this blog, the US Court of Appeal for the Second Circuit’s decision on anti-enforcement injunction was discussed. The court here held that the Recognition Act of the US does not allow pre-emptive anti-enforcement injunctions and the court granting such injunctions are in overreach of their powers. The court reasoned this on the ground that anti-enforcement injunctions preclude the normal operation of New York’s Laws on recognition and enforcement of foreign judgment. A party can challenge such judgments at the Enforcement stage according to the laws of the enforcing court but cannot sought an injunction against a party to initiate such enforcement proceedings altogether.  The respondents in this case gave a similar argument on S.13 of CPC which deals with executability of foreign judgments in India. They argued that the court cannot grant “pre-emptive” Injunction against enforcement as the same will be against S.13 of CPC.

 

The Hague Convention of the Recognition and Enforcement of Foreign Judgments does not contemplate the pre-emptive restrain against the enforcement of a judgment either.  Article 7(1)(d) of the Convention states that recognition and enforcement of a judgment maybe refused if the proceedings were contrary to an Agreement. Thus, although the remedy of refusal of enforcement is available, both domestic and international law is silent on an anti-enforcement injunction as a pre-emptive relief. Unlike the US courts that explicitly disallowed the power to grant anti-enforcement injunctions, the Delhi High Court in this case rooted it in S.9 of Arbitration and Conciliation act as an interim relief. Thus, without any international legal standard, domestic courts are free to interpret the legality of anti-enforcement injunctions in their jurisdictions. While a complete bar on courts to grant anti-enforcement injunction is not the correct approach, a liberal approach in granting it is dangerous as well. Presently, such injunctions can only be incorporated as an interim relief. This significantly lowers the exceptionality threshold. Anti-enforcement injunctions are inherently hostile and aggressive in nature, thus there is a need for an international procedural framework to address such injunctions.

 

Conclusion:

While the judgment provides much-needed protection of contractual rights, it falls short of addressing the existing lacuna in the law. The court could have taken this opportunity to delineate specific guidelines for granting such injunctions, granted since this was only the second instance when it was granted in India. By failing to do so, the reduced threshold for granting anti-enforcement injunctions becomes even more dangerous. The present case fits into the rare and exceptional category as the respondents were in clear breach of the contract. Thus, the courts attempt in lowering the threshold for granting anti-enforcement injunctions was not needed. Anti-enforcement injunctions raise serious concerns of comity and they interfere significantly with foreign legal systems. It is therefore necessary to determine the relevant factors that necessitate the grant of an anti-enforcement injunction.

 

The court’s approach in this case highlights the need for clearer guidelines. A more defined framework for when and how anti-enforcement injunctions can be granted will help ensure that domestic courts adhere to certain standards set by the Model Law. The current silence of the Model Law on such injunctions is causing a patchwork of interpretations across different jurisdictions, leading to uncertainty and inconsistency. Establishing clear international standards would help courts manage these complex legal issues more effectively, paving the way for more predictable decisions in the future.

Les règles relatives au transfert partiel de la compétence préjudicielle de la Cour de justice au Tribunal entrent en application

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

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

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

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

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

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

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

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

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

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

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

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

All comments are welcome.

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

To date, two decisions are scheduled for publication in October in relation to EU private international law instruments. Both will be known on Friday 4. The first one is C- 633/22, Real Madrid Club de Fútbol, a Grand Chamber decision on Regulation 44/2001 (T. von Danwitz as reporting judge). As reported here, the dispute on the […]

 

Conventions & Instruments

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

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

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

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

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

 

Upcoming Events

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

 

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

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

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

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

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

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

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

Organizers:

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

 

 

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

 

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

 

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

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

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

The key features of the updated list are:

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

 

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

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

 

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

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

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In a judgment of 18 September 2024, the French supreme court for civil and criminal matters (Cour de cassation) dismissed a challenge to the jurisdiction of French courts over a Lebanese bank which was found to have directed its activity to France. The plaintiff was a consumer domiciled in France who had deposited monies with […]

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

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

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

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

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

 

Observatory on Legislation and Regulations

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

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

 

Observatory on Jurisprudence            

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

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

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

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

 

Observatory on Practices

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

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

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

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

 

Conference Proceedings

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

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

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

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

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

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

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

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

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

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

 

Finally, this issue features the following Book Reviews:

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

More information can be found here.

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

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

The author of this post is Nishat Hyder-Rahman, Postdoctoral Research Fellow, MSCA Impact Fellowship Programme, Department of Private and Economic Law, Vrije Universiteit Brussel. A previous post on this post discussed the chamber decision of the European Court of Human Rights (ECtHR) in the case of Verhoeven v France. The case concerned whether the French […]

Visite à la Cour de justice de l'Union européenne d'une délégation de la Cour suprême des États-Unis d'Amérique dans le cadre du « Forum de Luxembourg »