Agrégateur de flux

The American Branch of the International Law Association (“ABILA” or “the Branch”) seeks a dynamic individual with superb organizational and people skills and an interest in international law for the position of Chief Operating Officer (COO).  This part-time position will require approximately 80 hours/month, 20 hours/week on average. Workload will fluctuate throughout the year, peaking in late summer and fall during preparations for the Branch’s flagship event, International Law Weekend (ILW). Compensation is $26/hour, equivalent to approximately $26,000/year. Application deadline: January 15, 2025. See more here.

From 2 to 6 December 2024, the second edition of The Hague Academy of International Law’s Advanced Course in Hong Kong was held, co-organised by the Asian Academy of International Law (AAIL) with the support of the Department of Justice of the Government of the Hong Kong SAR. Once again, the Hague Academy of International Law brought distinguished speakers to the “fragrant harbour” to deliver lectures on the “Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”. Just a stone’s throw from the Old Supreme Court Building (now the seat of Hong Kong’s Court of Final Appeal) at the premises of the Hong Kong Club, legal scholars, national judges, government officials and legal practitioners from over 20 jurisdictions as diverse as Laos, the People’s Republic of China, (francophone) Cameroon, The Netherlands, South Africa or the Kingdom of Saudi Arabia came together to discuss their respective experiences and the prospects of the latest instrument in this field, the HCCH 2019 Judgments Convention.

Following the opening remarks (Jean-Marc Thouvenin, Secretary-General of The Hague Academy of International Law and Lam Ting-kwok Paul, Secretary for Justice of the Government of the Hong Kong SAR), Teresa Cheng (Founding Member and Co-Chairwoman of the AAIL) proceeded to give the opening lecture on the recognition and enforcement of foreign judgments in the Hong Kong SAR.

 

In the afternoon, Pietro Franzina (Catholic University of Milan) focused on “Contemporary Approaches to the Recognition and Enforcement of Foreign Judgments”. As part of a comparative overview, he developed a taxonomy of the legal frameworks for recognition and enforcement based on their operational context (simple/double instruments), their legal sources (unilateral-domestic, international, regional/supranational) and the type of decisions they are concerned with (final and conclusive judgments with res judicata effect, decisions on situations with an evolving character). He particularly emphasised that international as well as regional rules are fragmentary in nature. Hence, despite their designation, treaties such as the HCCH 2019 Judgments Convention do not actually set out rules for the enforcement of decisions, but rather determine the criteria for the enforceability of a judgment, which must then be carried out according to the applicable rules of domestic law. Building on this foundation, Franzina’s second lecture on Thursday morning explored the doctrinal puzzle the HCCH 2019 Judgments Convention presents with respect to “Preliminary Questions Outside the Scope and Judgments Consisting of Severable Parts”. Drawing on the notion of “complex judgments”, he masterfully illustrated the carefully drafted solutions the Convention offers to address borderline cases, but also the unavoidable gaps that nonetheless exist in this regard. The lecture culminated in a lively discussion regarding the ground of refusal for judgments on exemplary or punitive damages (Art. 10), which – according to Franzina – was designed not primarily with civil law systems in mind, but rather for common law jurisdictions, who were assumed to have difficulties in asserting the public policy exception (Art. 7 (1) lit. c)) against corresponding foreign judgments, due to the existence of comparable legal institutions in their own systems.

At Tuesday morning, Giuditta Cordero-Moss (University of Oslo) started her lecture on precisely on this topic: “Public Policy as a Limit to Enforcement and Recognition”. While reminding the audience of the importance of an autonomous interpretation (Art. 20) in line with the principles enshrined in the Vienna Convention on the Law of Treaties (VCLT), she presented the public policy exception as part of one important line of development within (see Art. 2 HCCH 1958 until Art. 22 HCCH 2007) and outside (e.g. Art. 34 Lugano 2007) the HCCH ecosystem. With particular focus on the parallels to the New York Convention, she raised the question of the appropriate intensity of public policy control. Under the former instrument, at least two levels of scrutiny have emerged: A “maximalist” theory, according to which the court assesses the matter de novo (e.g. Westacre Investments v. Jugoimport-SDPR Holdings, [1999] 3 All ER 864 , 885), and a “minimalist” theory, according to which a “manifest” breach can – in deference to the arbitral tribunal’s evaluation – only be reviewed to the extent that the issue has not yet been discussed by the tribunal itself (e.g. CA Paris, 18 novembre 2004, Thalès Air Defence, Rev arb. 2005 751). Later, Cordero-Moss turned to the perceived overlaps with other provisions of the Convention. Most significantly, the public policy exception can be combined with the other defences set forth in Art. 7 HCCH 2019 Judgments Convention in order to meet the threshold of “manifest incompatibility” with the essential policies of the requested State. Surprisingly, this reasoning according to the Explanatory Report does not apply to punitive damages exception in Art. 10 (Garcimartín/Saumier, paras. 265). The excellent and remarkably insightful presentation concluded on Wednesday afternoon with a discussion of pertinent substantive cases in the areas of competition, corporate and labour law. Among other things, the speaker discussed the complex case of the English “floating charge”, which allows for a security right in rem that is not attached to assets before it is “crystallised” at a specified future event, and thus could conflict with the numerus clausus principle of property rights, as found in many civil law jurisdictions.

Then, Shen Hongyu (Chief Judge of the Supreme People’s Court) dedicated her part of the course on “Unfolding the 2019 Hague Convention” to share “China’s Perspective on International Recognition and Enforcement”. Her remarks offered important insights into the drafting process of both, the recent amendments to the Chinese Civil Procedure Law and the new Law of the People’s Republic of China (PRC) on Foreign State Immunity (1 September 2023). As reported before on col.net, the latter provides for a fundamental shift in China’s stance towards the immunity of foreign States, moving from an absolute position to the adoption of a more restrictive approach. Presumably, this step is not unconnected to China’s endeavour to widen its economic influence via the Belt and Road Initiative. Furthermore, Judge Shen shed some light on the very peculiar approach to indirect jurisdiction in Art. 301 Civil Procedure Law (2023). By referring this question, on a first level, to the lex fori of the court of origin, China’s recognition rules at first appear to place a great deal of trust  in foreign law (though not so much in the originating court’s application of that law), only to then implement a second level of control by requiring the foreign court to have an “appropriate connection with the case” according to standards ultimately set by the requested court, explicitly including the violation of an exclusive choice of court agreement and the provisions of exclusive jurisdiction of the PRC. Thanks to Judge Shen’s well-founded explanations, it  became clear that the emergence of this rather complicated solution, which might be called “(modified) double control”,[1] was the result of a compromise between the proponents of a pure “mirror principle” and a simple “foreign law” approach. In this way, the new law, whilst being generally open to foreign law, is at the same time supposed to effectively prevent foreign courts from abusing their jurisdiction through “long-arm” statutes. Finally, the Supreme Court Judge also expressed the view that, if China were to become a party to the HCCH 2019 Judgments Convention, it would most likely utilise the option granted under Art. 17 to exclude from its material scope all matters for which it currently claims exclusive jurisdiction (see Art. 279 Civil Procedure Law), including disputes concerning some specific Sino-foreign joint venture contracts.

 

 

As a special treat for all participants, Matthias Lehmann (University of Vienna) gave two highly anticipated afternoon lectures on “Crypto Currency and International Law”. Despite the short time frame on Tuesday and Wednesday, he nonetheless expertly managed to explain the complex technical structures underlying and characterising the blockchain, as well as the resulting legal implications. Since all the nodes constituting the blockchain network are spread across different places around the world, digital assets based on this technology (such as Bitcoin or Ether) can hardly be localised in just a single place. While courts and legislators in several jurisdictions have taken on the challenge this decentralised structure is posing for the traditional mechanisms of Private International Law (e.g. Cheong Jun Yoong v Three Arrows Capital Ltd, (2024) SGHC 21), Lehmann, in a more radical approach, proposed to take the results of the innovative technology more seriously. Since the transfers recorded in the blockchain cannot be undone, the distribution of assets provided for by the technology should be presumed to be legitimate. In essence, this suggestion represents what in a legal context could also be understood as a uniform international rule of property law. However, as it is the case with real property, this does not mean that transfers according to that rule are necessary final. Rather, where it can be shown that the digital asset has been acquired illegally, the presumption is rebutted, and the traditional (conflict of laws) rules apply.

On Wednesday and Friday, the author of these lines added with two lectures on “The Jurisdictional Filters”. Positioned at the “heart” of the Convention in terms of function and policy, the positive requirements set forth in Arts. 5 and 6 HCCH 2019 Judgments Convention are intended to filter out decisions based on unacceptable assumptions of direct jurisdictions by the courts of the State of origin. After a short introduction to the general concept of indirect jurisdiction, as (first?) described by Etienne Bartin, there was a brief tour d’horizon of various approaches towards the standards of indirect jurisdiction, including general clauses (e.g. Canada’s “real and substantial connection” test), negative lists enumerating exorbitant grounds of indirect jurisdiction (e.g. Greek-German Agreement of 4 November 1961), the “mirror principle” (e.g. Spain’s Art. 46 de Ley de Cooperación Jurídica Internacional) or of course section 328 (1) no. 1 German Code of Civil Procedure – the mirror principle seems to be a “German” invention by Paul Johann Anselm Feuerbach in 1812) as well as the peculiar “(modified) double control” (see above for Art. 301 PRC Civil Procedure Law) or the (unsuccessful) proposal of a mixed convention, as developed by Arthur von Mehren (e.g. HCCH 1999 Draft of a Judgments Convention). This first lecture concluded with a discussion of elements common to all filters with practical relevance, inter alia, burden and standards of proof, as well as the admissibility of anti-enforcement injunctions based on a “better” interpretation of the Convention, the impact of the arbitration exception in Art. 2 (3) HCCH 2019 Judgments Convention or the role, if any, for anti-enforcement injunctions. On this basis, the second lecture approached the somewhat more than 20 jurisdictional filters and their modifications respectively, depending on the manner of counting, as provided for in the Convention. For this task, it appeared reasonable to distinguish between five groups of filters: 1. Personal connections of the defendant; 2. Forms of consent; 3. Connections of the subject matter; 4. Modifications for the protection of weaker parties; 5. Exclusive Filters. For the purpose of highlighting the pits and downfalls of each jurisdictional filter, the presentation was structured around short hypothetical case illustrations, which were actively discussed with the participants. For example, under Art. 5 (1) lit. d) it is not sufficient, that the branch from which the claim in dispute arose existed at that time, but not anymore when the proceedings where instituted in the court of origin. Furthermore, in light of Switzerland’s recent declaration to apply the HCCH 2005 Choice of Court Convention likewise to non-exclusive forum selection agreements, the precise delineation of the two instruments, as originally envisaged in Art. 5 (1) lit. m), might soon gain significantly more importance. Last but not least, a special emphasis was placed on “false friends” provisions that may look familiar to the legal practitioner from his/her own law, while in fact differing in detail. For instance, Art. 5 (1) lit. a) foresees jurisdiction at the place of the habitual residence of the “person against whom recognition or enforcement is sought”, while Art. 22 PRC Civil Procedure law is limited to the “defendant” in the original proceedings.

 

Besides the lectures, the Course’s unofficial theme became somewhat of an “autograph session”. Following a spontaneous idea on making use of “the book” (the only available copy at that time) that had emerged from the HCCH/University of Bonn Conference on the HCCH 2019 Judgments Convention in 20023, all attendees here were again invited to sign a “commemorative copy”, this time the “Hong Kong edition”, thereby following the “Bonn edition”, and we of course hope that further editions might follow. We were happy to see that the trend was catching on, as Judge Shen joined in by inviting the audience to autograph a copy of  the “Annotated International Commercial Cases from the Supreme People’s Court”. Even more professionally, admittedly, there was even a prize awarded for the tenth person (a fortunate number in Chinese numerology, as it seems) putting his or her signature in the collection of cases.

 

Coming full circle, Teresa Cheng delivered the programme’s final presentation on “Arts. 22 and 25 of the HCCH Judgment Convention” focussing on the Mutual Arrangements between the Mainland and the Hong Kong SAR. Based on Art. 95 of the Hong Kong Basic Law, there are several legal frameworks in place that have drawn inspiration from the HCCH Conventions. Although Cheng expressed some doubts about the application of the notion of “territorial units” to Hong Kong, she was ultimately certain that these regional frameworks would remain unaffected by virtue of Art. 22 HCCH 2019 Judgments Convention. This is, of course, subject to ratification by the PRC and extension of its effect to the Hong Kong SAR in accordance with Art. 25 of the 2019 HCCH Judgments Convention. As alluded to in the opening lecture, China’s special situation as a bi-jural legal system, with the Hong Kong SAR as the common law counterpart to civil law based legal system of the People’s Republic of China, lends itself to some legal innovations naturally arising from this coexistence. For example, Art. 4 of the recent Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters specifically excludes anti-suit injunctions from its scope. Likewise, Art. 3 (8) of the same legal framework wisely addresses “cases on the recognition and enforcement of judgments or arbitral awards of other countries or regions”, and thus excludes from its scope decisions that simply merge foreign judgments or arbitral awards into a domestic title according to the English doctrine of obligation. Especially the latter point could serve as a reasonable starting point for correcting the effects of the CJEU judgment in J. v. H. Limited as part of the upcoming reform of the Brussels Ibis-Regulation within the European Union.

On Friday afternoon, the last day of the programme, the participants received their certificates, and, after an academically exciting but of course also demanding week, rewarded with a closing reception featuring not only drinks and food but also inspiring views of Hong Kong’s Victoria Harbour.

 

[1] In their joint essay, Shen/Guo Zaiyu, “Review and Interpretation of the Amended Provisions of the Foreign Part in the Civil Procedure Law”, China Law Review 2023-06, pp. 70-80, prefer to speak of a model of “two-way combination” or a “hybrid approach”, for the English text see https://mp.weixin.qq.com/s/n0iLTtkvEPfwwg8xWs6sJQ https://www.chinajusticeobserver.com/a/thus-spoke-chinese-judges-on-international-civil-jurisdiction and for the Chinese version https://mp.weixin.qq.com/s/n0iLTtkvEPfwwg8xWs6sJQ.

The German Supreme Court (BGH) declared a marriage celebrated by a couple from German territory over video in the US as being void in a decision dated 25 September 2024. Facts A Nigerian couple had given their vows during a videoconference before an official in Utah (USA), where the county government offers so-called ‘online marriage […]

I. Introduction

It is not uncommon for scholars examining the interplay between the HCCH 1980 Child Abduction Convention and the legal systems of countries based on or influenced by Islamic Sharia to raise concerns about the compatibility of the values underlying both systems. While such concerns are not entirely unfounded and merit careful consideration, actual court practice can present a very different reality.

Morocco’s engagement with the Hague Conventions, notably the HCCH 1980 Child Abduction Convention and the HCCH 1996 Child Protection Convention, provides a particularly illustrative example. As previously reported on this blog (see here, here and here), Moroccan courts have thus far demonstrated a clear willingness to engage constructively with the HCCH instruments, effectively dispelling – at least to a significant extent – concerns about the existence of a so-called “Islamic exceptionalism” as an obstacle to resolving parental child abduction cases. The case presented here provides yet another compelling example of how Moroccan courts interpret and apply the HCCH 1980 Child Abduction Convention in a manner consistent with Morocco’s international obligations. This is particularly noteworthy given the presence of elements often cited as indicative of “Islamic exceptionalism.”

Although the Supreme Court’s ruling was issued over a year ago (Ruling No. 198 of 25 April 2023), it has only recently been made available, bringing the total number of Hague Convention cases to eight (based on my own count and the available information. For an outline of the other Hague Convention cases, see here). Its legal significance and broader implications therefore warrant special attention.

 

II. The facts

The case concerned a petition for a return order to Switzerland for a child (a girl, in casu) who had been wrongfully retained in Morocco by her father. Although the text of the decision lacks sufficient detail to fully clarify the circumstances of the case, it can be inferred from the Court’s summary of facts that the child was approximately 8 years old at the time Moroccan courts were seized and that the father is likely a Moroccan national. However, the ruling does not provide details regarding the nationality (or religion) of the left-behind mother nor does it specify the time frame within which the application was made.

As previously noted, the legal proceedings were initiated by the public prosecutor, who petitioned for the return of the child to her habitual residence in Switzerland under the HCCH 1980 Child Abduction Convention. The petition followed an official communication from the Ministry of Justice to the Office of the Public Prosecutor.

In response, the father contested the petition on two main grounds. First, he challenged the standing of the public prosecutor to initiate the proceedings, arguing that the petition should have been filed by the Ministry of Justice in its role of Central Authority under the Convention. Second, he invoked the child’s refusal to return to Switzerland, attributing her reluctance to emotional distress and physical abuse allegedly suffered while living with her mother. The father further asserted that the child had now settled into her new environment in Morocco, where she was continuing her education.

The Court of First Instance accepted the petition and ordered the return of the child to her habitual residence, a decision that was upheld on appeal. The father subsequently appealed to the Supreme Court.

Before the Supreme Court, the father reiterated his earlier arguments, particularly challenging the public prosecutor’s standing to initiate such proceedings. He further invoked Article 12 of the HCCH 1980 Child Abduction Convention, arguing that the child was now settled in her new familial and educational environment. In addition, he asserted that the child suffered from emotional distress and anxiety due to alleged domestic violence she experienced while living with her mother. The father referred to reports and certificates issued by Moroccan medical and psychological institutions which were submitted as evidence of the child’s state of mind and her strong resistance to being returned to Switzerland. The father also argued that the mother had not effectively exercised custody rights at the time the child came to live with him, and contended that the mother had consented to the child’s relocation.

 

III. The Ruling

In its Ruling No. 198 of 25 April 2023, the Moroccan Supreme Court rejected all the father’s arguments and upheld the order for the child’s return, providing the following reasoning:

Regarding the first argument, the Supreme Court referred to Article 11 of the HCCH 1980 Child Abduction Convention, which mandates contracting states to take urgent measures to secure the return of abducted children. The Court also cited Law No. 33.17, which transferred the Minister of Justice’s responsibilities to the Public Prosecutor at the Supreme Court, in its capacity as Head Public Prosecutor Office. This transfer enables the public prosecutor to replace the Ministry of Justice in overseeing judicial proceedings and exercising appeals related to the cases falling under their competence.

As for the second argument, the Supreme Court emphasized that determining whether the exception in Article 12 of the HCCH 1980 Child Abduction Convention applies is a matter for the trial court to investigate based on the evidence presented. Based on the lower courts’ finding, the Supreme Court concluded that the father’s retention of the child, who had been living with her mother in Switzerland, where the mother had been granted sole custody, constituted wrongful retention and a violation of the mother’s custody rights as stipulated by Swiss law. The Court also noted that the medical reports submitted did not provide evidence of mistreatment.

Finally, the Supreme Court found that the mother was actively exercising custody of her daughter, as confirmed by the Swiss court decision granting the appellant only visitation rights. The Court also dismissed the father’s claims, particularly those regarding the risk of physical or psychological harm to the child, finding them unconvincing and unsupported by sufficient evidence.

 

IV. Comments

The Supreme Court’s ruling is remarkable in many respects. It directly challenges the notion of “Islamic exceptionalism” in matters of custody and parental authority under the HCCH 1980 Child Abduction Convention. Under traditional interpretation of Islamic law, which underpins the Moroccan Family Code of 2004 – known as the Mudawwana – (notably article 163 to 186 on custody), the father’s right to exercise legal guardianship (wilaya) over the child is often seen as prevailing over the mother’s right to custody (hadanah). For instance, a mother may lose her custody rights if she relocates to a distant place, especially a forign country. Similarly, the environment in which the child is to be raised is considered a critical factor, with particular emphasis on whether the child will grow up in an Islamic environment. This concern is even more pronounced when the custodial mother is not Muslim and resides in a non-Muslim country (Cf. M. Loukili, “L’ordre public en droit international privé marocain de la famille” in N. Bernard-Maugiron and B. Dupret, Ordre public et droit musulman de la famille (Bruylant, 2012) 137, 155-157).

What is striking in this case is that the Supreme Court did not consider these “traditional” concerns at all. Instead, it focused solely on the legal framework established under the Hague Convention. The Court simply observed that the mother had been granted sole custody of the child and concluded that the wrongful retention of the child in Morocco constituted a violation of those rights. This finding justified the return order under the HCCH 1980 Child Abduction Convention.

Another noteworthy aspect of the ruling, which can also be observed in other Hague Convention cases, is that the Moroccan Supreme Court does not adhere rigidly to its traditional approach in assessing the admissibility of return orders requests or the revocation of the mother’s custody rights. Under Moroccan private international law, family law issues in general, including matters of parental authority and custody, are generally governed by Moroccan law whenever one of the parties is Moroccan (Article 2(3) of the 2004 Family Code). Traditionally, Moroccan courts have often concluded that public policy is violated when Moroccan law is not applied or a foreign judgment diverges from Moroccan domestic family law regulation (Loukili, op. cit., 150).

In the present case, however, the Supreme Court not only accepted that sole custody was granted to the mother under Swiss law, but also it did so although the application of Moroccan law would have led to a different outcome. Indeed, the Supreme Court has consistently ruled that the mother’s refusal to return with the children to Morocco deprived the father of his right to supervise and control the children under his legal guardianship (wilaya), thus justifying the father’s claim to have the mother’s custody rights revoked (Supreme Court, Ruling of 21 June 2011; Ruling of 23 August 2011). The Supreme Court took the same stance in a case involving child abduction, where the request for the return order, based on the French-Moroccan bilateral Convention of 1981 (article 25), was rejected on the ground that the issuing of such an order would contradict with Moroccan law on custody (Supreme Court, Ruling of 15 October 2003).

The Supreme Court’s approach in Hague Convention cases, including the one commented on here, marks a notable departure from this traditional stance. Not only has the Court repeatedly affirmed the primacy of international conventions over domestic law—though this issue was not explicitly raised before the Court in casu, it can be inferred from the absence of references to Moroccan law on custody—but it also approvingly referred to the law of the child’s habitual residence rather than Moroccan law, despite a literal reading of Article 2(3) of the Mudawwana suggesting otherwise.

The Supreme Court stance in dealing with the Hague Child Abduction cases reflects a growing willingness on the part of the Court to align its reasoning with international obligations and to prioritize the principles enshrined in the Hague Conventions over more restrictive domestic norms. In this sense, this approach challenges the perception of “Islamic exceptionalism” and highlights a progressive interpretation of Moroccan law within the framework of international child abduction cases.

Aux fins de détermination de la compétence internationale des juridictions des États membres au sens de l’article 7.1, b), du règlement (UE) n° 1215/2012 dit « Bruxelles I bis », le lieu d’exécution d’un contrat ayant pour objet le développement et l’exploitation suivie d’un logiciel destiné à répondre aux besoins d’un client établi dans un État membre autre que celui dans lequel la société ayant créé, conçu et programmé ce logiciel est établie est le lieu où ce client accède audit logiciel, c’est-à-dire consulte et utilise celui-ci.

en lire plus

The latest volume of the Yearbook of Private International Law has been recently published, marking the 25th anniversary of its significant contribution to outstanding legal scholarship in the field of comparative private international law.

Readers will undoubtedly appreciate the Editors’ Foreword as well as the insightful tributes dedicated to this milestone edition written by Professors Nadjma Yassari (A Quarter-Century of Excellence), Symeon C. Symeonides (A Tribute), and Ivana Kunda (Petar Šarcevic – The Intellectual Behind the Name). These contributions, which reflect on the Yearbook’s impact and achievements over the years, are freely available online, offering a fitting celebration of this remarkable anniversary.

 

The Yearbook’s latest volume features the following table of contents:

 

DOCTRINE

New Perspectives for the CIEC/ICCS and its Work

Hans Van Loon

 

Recent Developments of Japanese Laws on ADR – A Perspective of International Civil Procedure Law

Yasuhiro Okuda

 

From Past to Future – The Emergence and Development of Advance Choices

Adrian D. Ward

 

Child Marriages

Swedish Rules on Non-recognition of Foreign Child Marriages

Michael Bogdan

 

Early Marriage in Belgian Case Law – The Ever-Lasting Virtue of the Functional Approach of the Public Policy Exception

Marc Fallon and Stéphanie Francq

 

Early Marriages in German Law

Nadjma Yassari

 

Family Status, Identities and Private International Law

A Critical Assessment in the Light of Fundamental Rights

Elena C. Bargelli and Ilaria Pretelli

 

Reasonable Expectations of Unmarried Cohabitants

Guillaume Kessler

 

Recognition of Family Status and Same-Sex Partners – A Chinese Perspective

Yin Liu

 

Free Movement of Same-sex Spouses in the EU

Maria Caterina Baruffi

 

Lessons Drawn from the Commission’s Parenthood Proposal for Further EU Initiative on Personal Identity and Status Continuity

Johan Meeusen

 

The Recognition of Names Between EU Law and Human Rights Law – Recent Developments

Giulia Rossolillo

 

The ICCS’s Contribution to the Portability of Names

Nicolas Nord

 

Identity and Civil Status of Children Conceived through Cross-Border Procreation Contracts – Perspectives on Filiation and the Best Interests of the Child

Ilaria Pretelli

 

Digital Assets and Online Accounts

Digital Assets in English Private International Law

Uglješa Crusic

 

Online Accounts – Comparative and Private International Law Aspects

Nataliia Filatova-Bilous and Tetiana Tsuvina

 

Decisions on the European Succession Regulation in Comparative Perspective

The Application of the European Succession Regulation by the Courts of the Member States

Andrea Bonomi

 

Decisions on the European Succession Regulation in Austria

Matthäus Uitz

 

Decisions on the European Succession Regulation in Bulgaria

Stilyana Stavreva

 

Decisions on the European Succession Regulation in Croatia

Martina Drventic Barisin

 

Decisions on the European Succession Regulation in Cyprus

Konstantinos Rokas

 

Decisions on the European Succession Regulation in the Czech Republic

Magdalena Pfeiffer

 

Decisions on the European Succession Regulation in Germany

Jan Peter Schmidt and Leandra C.C. Koiike

 

Decisions on the European Succession Regulation in Greece

Konstantinos A. Rokas

 

Decisions on the European Succession Regulation in Hungary

Laura De Negri

 

Decisions on the European Succession Regulation in Italy

Giuseppe Mansour Agrelli

 

Decisions on the European Succession Regulation in Poland

Krzysztof Pacula

 

Decisions on the European Succession Regulation in Portugal

Afonso Patrão

 

Decisions on the European Succession Regulation in Slovakia

Elena Judova

 

Decisions on the European Succession Regulation in Slovenia

Neža Pogorelcnik Vogrinc and Filip Dougran

 

Decisions on the European Succession Regulation in Spain

María Gonzalez Marimon

 

Decisions on the European Succession Regulation in Sweden

Laima Vaige

 

National Reports

Surrogacy in Türkiye

Ceyda Sural Efecinar and Ba?ak Basoglu

 

Questions of Applicable Law as Regards Unpaid Wages of Turkish Employees under the Foreign Employment Contracts

Gülüm Bayraktaroglu-Ozcelik and Rifat Erten

 

Execution Measures Related to EU Procedural Regulations and Brussels IIbis in Bulgaria

Boriana Musseva and Nadia Rusinova

 

Forum

The Personal Relativity of Public Policy on Transnational Surrogacy in Switzerland – A Proposal

Lorène Anthonioz

 

Turkish Private International Law of Succession Revisited in the Light of the European Succession Regulation and Recent Developments in Swiss Law

Biset Sena Gunes

I reviewed and criticised the successful first instance forum non conveniens challenge by Dyson viz a claim allegations of forced labour at Dyson’s Malaysian Supplier, here.

That finding was today resoundly overturned by the Court of Appeal in Dhan Kumar Limbu & others v Dyson Technology Limited and others [2024] EWCA Civ 1564.

The issues at stake were expertly discussed this week in an online EAPIL seminar called by prof Ugljesa Grusic at the occasion of Dr Ekaterina Aristova’s excellent OUP volume Tort Litigation Against Transnational Corporations.

The first instance judge concluded that Malaysia was the more appropriate forum for the claims to be heard and that there was no real risk of the claimants being unable to access justice there.

[4] Popplewell LJ confirms standing authority that the Court of Appeal only interferes in such exercise, necessarily fact and view driven as it is, and absent some procedural unfairness or irregularity, where the lower court has made an error of principle, such as taking into account irrelevant matters or failing to take into account relevant matters, or has reached a conclusion which exceeds the generous ambit within which reasonable disagreement is possible and so is plainly wrong.

[22] Summarises what is needed: for a ‘service in’ case (here: against those defendants with domicile in the jurisdiction), the burden is on the defendant to show that there is another available forum which is clearly and distinctly more appropriate. The burden reflects the fact that in such a case the claimant has served the defendant as of right which is an advantage which will not lightly be disturbed (reference to Spiliada). In a service out case (here against the non-E&W domiciled defendants), the burden is on the claimant to show that England is clearly the appropriate forum. In both cases appropriate forum means that in which the case may be tried more suitably for the interests of all the parties and the ends of justice (reference ia to Lungowe v Vedanta [66]).

The various factors going into this exercise are listed [22-23]

In determining the appropriateness of the forum, the court looks at connecting factors to determine with which forum the action has the most real and substantial connection (Spiliada at p. 478A). These include not only factors affecting convenience or expense, but also other factors such as governing law, the place where the parties reside or carry on business, and where the wrongful acts and harm occurred (Spiliada p. 478A-B, Vedanta at [66]). The risk of multiplicity of proceedings giving rise to a risk of inconsistent judgments is only one factor, although a very important one (Vedanta at [69]). In applying these connecting factors to cases involving multiple defendants, their relative status and importance in the case should be taken into account, such that greater weight is given to the claims against those who may be described as a principal or major party or chief protagonist: JSC BTA Bank v Granton Trade Limited [2010] EWHC 2577 (Comm) per Christopher Clarke J at [28].

23. For both service in and service out cases, if the court concludes that the foreign court is more appropriate by reference to connecting factors, applying the relevant burden of proof, the court will nevertheless retain jurisdiction if the claimant can show by cogent evidence that there is a real risk that it will not be able to obtain substantial justice in the appropriate foreign jurisdiction (Vedanta at [88]). Cogent evidence does not mean unchallenged evidence (Vedanta at [96]). This is often conveniently treated as a second stage in the analysis because it usually calls for an assessment of different evidence, but it does not involve a different question: if there is a real risk of denial of justice in a particular forum it is unlikely to be an appropriate one in which the case can most suitably be tried in the interests of the parties and for the ends of justice: Vedanta at [88]. In this case the parties and the Judge adopted that two-stage approach, labelling the first stage as “appropriate forum” and the second stage as “access to justice”. I will adopt the same structure, whilst keeping in mind that second stage factors may also be relevant to the first stage in what is juridically a single holistic exercise in seeking to identify where the case can most suitably be tried in the interests of the parties and for the ends of justice.

Grounds of appeal are listed [30]. I will not rehash all of the grounds or their discussion (the judgment is succinct yet all of the paras count really), rather highlight the IMO most relevant ones:

[34]: the Judge failed to take any account of the important connecting feature that D1 and D2 are domiciled in England and have been served here as of right. The domicile of the parties was not one of the Judge’s headings and did not feature in his conclusory paragraphs.

This is an important confirmation of the principle as it also exists in EU law: suing a defendant in their domicile as of right, must be given its proper weight in a forum non balancing exercise, and note Popplewell LJ’s reference to EU law:

[34] The reason it is an important connecting factor in relation to jurisdiction is because presence here is the basis for establishing the court’s jurisdiction, and domicile here connotes a degree of permanence and allegiance to the country’s institutions, including its courts, which means that the party can reasonably expect, and be expected, to meet claims against it in such courts in the absence of sufficient countervailing factors. That is why within the EU domicile remains the foundational factor for allocating jurisdiction in civil and commercial matters, subject to derogations.

[36] the argument that the weight placed on the UK domiciled defendants, be neutralised by the non-UK domicile of the other defendants, fails, ! however with in my view important instruction for future challenges: Lord Justice Popplewell holds that “the reality is that Dyson UK is the principal protagonist and Dyson Malaysia a more minor and ancillary defendant to the claim against D1 and D2.”

That evidently may be a factor to take into account where the UK anchor defendant is not the main protagonist.

[38] Viz the ‘centre of gravity’ of the claim (not a separate part of the test, rather a clerical trick as it were to rank arguments), this is held to be

an allegation of a failure occurring amongst the management in England and is alleged primarily to have occurred in England, although it will also focus to some extent on conduct in Malaysia. The complaints made by Mr Hall were made to Dyson UK and the alleged failure to take steps to act on them is primarily a failure of English personnel in England. The unjust enrichment of D1 and D2 ultimately took effect in England at their centre of trading, and the proprietary remedies claimed are of property rights over profits and products located in this country.

This latter element is also a response to TWAIL arguments which I flag here in my review of Dr Aristova’s jurisdictional analysis (she discusses them extensively in her volume).

[42] ff an error of principle was also found in the judge’s finding that there was a real risk of irreconcilable findings in relation to pending [GAVC now discontinued; note [43] the flag that discontinuation may have been motivated by strategic considerations in current appeal] defamation proceedings even if the current proceedings proceed in England on the basis that it was most unlikely that the High Court would case manage the proceedings to avoid or reduce the risk of such a possibility. Plainly, there would have been a plain likelihood of the English courts so coordinating.

[47] The fact that litigation will be coordinated and conducted from one of the two rival fora, irrespective of the forum in which the litigation takes place, is held to be a significant connecting factor with that forum. Note of course that this may give unscrupulous defendants forum management possibilities.

[49] ff the judge’s acceptance of and reliance on material support offered by defendants for the trial in the alternative forum, is frankly demolished, starting with the observation

I start with the Undertakings. In the experience of the court they are unprecedented, and the researches of counsel have not identified anything similar (we were referred to Société Nationale Industrielle Aerospatiale v Lee Kui JAK [1987] AC 871, an anti-suit injunction case, in which the undertakings were not remotely comparable). As a mechanism for ensuring that the impoverished claimants are thereby enabled to meet disbursements necessary to conduct the claims in Malaysia, they seem to me to suffer from six serious flaws….

for these six flaws the reader of this post best read the judgment, starting with the observation of an obvious conflict of interest.

[59-60] considerable emphasis on equality of arms both in legal representation (note the reference to Tesla rather than the ordinarily intuitive ‘Rolls Royce’ comparison) and in terms of witnesses’ online translation needs.

Having found the judge’s approach suffering from serious issues of principle, the Court of Appeal then makes it own brief assessment [63] ff. Funding, domicile of the parties, practical convenience are all found to be in favour of E&W. Applicable law leads to Malaysian law (presumably because parties agree), with the Court holding that is nevertheless not particularly onerous for the English courts to apply.

Overall, a resounding victory for claimants with however as I point out above, one or two risk factors carefully to manage for future reference: if arguably not of such nature as to displace the reconfirmed solid right to claim in the defendant’s place of domicile.

Geert.

EU private international law, 4th ed. 2024, Chapter 7.

https://x.com/GAVClaw/status/1867545272261521803

 

On 14 and 15 February 2025, the 5th iteration of the German Conference for Young Researchers in Private International Law will take place at the University of Heidelberg. The conference – which is being organized by Felix Berner, Andreas Engel, Aron Johanson, Markus Lieberknecht, Sophia Schwemmer, Ann-Kathrin Voß, Charlotte Wendland, and Anton Zimmermann –  is dedicated to the topic of ‘Digital transformation and Private International Law. Local connections in boundless spaces’:

After statute theory, Savignyan PIL and Europeanisation, digitalisation has the potential to initiate a fourth evolutionary stage in the history of conflict of laws, which is characterised by decentralisation and delocalisation. We may therefore be on the threshold of a PIL 4.0. At our conference, we would like to discuss how the conflict-of-laws problems arising from the boundless spaces of digitalisation can be solved in European and autonomous German, Austrian and Swiss private international law. At the same time, we would like to look at the possibilities for legal changes at national, European and international level.

A keynote will be given by Christiane Wendehorst (University of Vienna).

The programme can be found here; registration is possible here.

More information can also be found on the conference website.

Every two years, the ICC Institute of World Business Law awards a prize worth € 10,000 to the best doctoral dissertation or long essay on on international commercial law (including arbitration) written by an author under the age of 40 in English or French.

Submissions can be made until 7 April 2025.

More information can be found in the flyer and in the prize rules.

Under Norwegian criminal law, entering into or assisting with a child marriage or a marriage-like relation is prohibited. A judgment of the Norwegian Supreme Court (HR-2024-2161-A of 25 October 2024) a man and his parents, all residing in Norway, were found guilty of this crime after the man had entered a marriage-like relation with a […]

Nemzeti Földügyi Központ
Libre circulation des capitaux
Droits d’usufruit sur des terres agricoles en Hongrie : le droit de l’Union ne s’oppose pas à la réinscription de tels droits conformément à un arrêt de la Cour de justice, même si leur inscription initiale était illégale

Getin Holding
Liberté d'établissement
La Cour de justice précise les règles concernant l’indépendance d’une autorité de résolution nationale et les recours contre ses décisions à l’égard d’établissements financiers défaillants

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided by the editor of the journal. S. Deuring, Gender and International Private Law – Comments on the New Article 7a of the German Introductory Act to the Civil Code Although the attribution of […]

This post has been written by Ekaterina Aristova, Leverhulme Trust Early Career Fellow, Bonavero Institute of Human Rights, Faculty of Law, University of Oxford. It is the sixth and final post in the EAPIL blog on-line symposium on Ekaterina Aristova, Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024). The […]

This post has been written by Dalia Palombo, Assistant Professor of Human Rights Law, Department of Public Law and Governance, Tilburg University. It is the fifth post in the EAPIL blog on-line symposium on Ekaterina Aristova, Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024). The others contributions, by Ekaterina Aristova, […]

This post has been written by Mukarrum Ahmed, Lecturer in Business Law, Lancaster University. It is the fourth post in the EAPIL blog on-line symposium on Ekaterina AristovaTort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024). The others contributions, by Ekaterina Aristova, Peter Muchlinski and Geert Van Calster, can be […]

This post has been written by Geert Van Calster, Professor of Private International Law, KU Leuven and member of the Belgian Bar. It is the third post in the EAPIL blog online symposium on Ekaterina Aristova, Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024). The others contributions, by Ekaterina Aristova […]

The inaugural conference of the Australasian Association of Private International Law will be held from Wednesday 16 to Thursday 17 April at the Ship Inn conference centre, Southbank, Brisbane, Queensland, Australia, sponsored by Griffith Law School.

We are pleased to invite the submission of paper proposals for the conference, on any aspect of private international law, broadly understood.  This includes issues of jurisdiction, choice of law, the recognition and enforcement of foreign judgments (including how they relate to cross-border issues within a federation), and all areas of private law that raise cross-border and transnational issues.

Paper proposals should be made on this form by Wednesday 29 January 2025. We also welcome panel proposals; please email aapril2025conference@gmail.com if you have a proposal for a panel. Proposed presenters on any panel will be required to submit paper proposals.

We welcome anyone interested in private international law, including from the judiciary, legal practice, government, and the academy, from any jurisdiction.  Attendees, including presenters, will be required to pay a registration fee. A conference dinner will be held on the evening of Wednesday 16 April, at an additional cost.

This post has been written by Peter Muchlinski, Emeritus Professor of International Commercial Law, The School of Law, Gender and Media, SOAS, University of London. It is the second post in the EAPIL online symposium on Ekaterina Aristova, Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024). Dr Ekaterina Aristova’s […]

This post has been written by Ekaterina Aristova, Leverhulme Trust Early Career Fellow, Bonavero Institute of Human Rights, Faculty of Law, University of Oxford. It is the first post in the EAPIL Blog Symposium on Ekaterina Aristova, Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024). I am delighted that […]