Agrégateur de flux

The International Law Association Committee on Alternative Dispute Resolution (ADR) has issued a Call for Papers for a conference scheduled for 7 April 2025 titled ‘Shaping Appropriate ADR in International Law’. Further information is available here. The deadline for submissions is 5 February 2025.

If you require any further information, please do not hesitate to contact info@ila-hq.org

By Harddit Bedi* and Akansha Tripathy**

Introduction

It is beyond dispute that The Convention of International Sales of Goods, 1980 (CISG) has facilitated international trade disputes. However, Courts and tribunals continue to apply their minds in adjudicating the applicability of CISG before advancing into substantive issues. This exercise is not very prolific as it prolongs proceedings. Chapter 1 of the convention lays down the scope and extent of the CISG. Amongst other things, the CISG application does not apply to contracts formed by, inter-alia, auctions under Art. 2(b) of CISG.  The word auction itself is nowhere defined in the convention.

This led to ambiguity. Courts of different jurisdictions had to adjudicate the definition of the word auction, Take, for instance, the Electronic electricity meter case. The Swiss Federal Supreme Court had to determine if the bidding process in a tender contract was the same as an auction. The similarities between a bidding process and an auction cannot be understated. However, unlike an auction, in a tender contract, it is the sellers that bid, not the buyers. Hence, a tender contract may be construed as a reverse auction, not an auction. This leads to the issue: Are tender Contracts—by them being reverse auctions— barred by the CISG under Article 2(b)?

 

The Exclusion of Auctions in CISG—but Why?

Article 2(b) explicitly reads that the CISG exempts sales by auction. In an auction, sellers invite buyers to bid on goods, with the highest bidder securing the purchase. The process ensures competition among buyers, with the help of the seller or an intermediary, and ends with the auctioneer declaring the winning bid. The reason for this exclusion in the convention is not well-founded but speculated. First, it is excluded because auctions are often subject to special rules under the applicable national law, and it is best to not harmonize them. Second, there was no need to include an auction since auctions universally, at that time, did not take place across borders in any case. Third, in an auction, the seller may not know the details about the buyer, including but not limited to, domicile, nationality, and place of operations. That is why, the applicability of the CISG would be uncertain due to Article 2(b) of the CISG since the aforesaid information determines whether the contract is an international one. These reasons justify exclusion, however, defining the term auction would have abated vagueness and ambiguity. Since, in the present context, The exclusion of “sales by auction” can be narrowly interpreted to apply only to traditional auctions, where sellers solicit bids from buyers. However, alternatively, it can be broadly construed to include any competitive bidding process, including reverse auctions.

A Case for CISG Applicability vis-à-vis Tender Contracts

Tender contracts, despite being formed after an auction, do not come under the ambit of Art.2(b). First, just because tender contracts are formed through a bidding process does not make it an auction. It is advanced that tender contracts differ from an auction but may be similar to reverse auctions. In a reverse auction, it is the buyer who invites multiple sellers to bid, to secure goods or services at the lowest possible price. This process is common in procurement, particularly in government tenders and large-scale corporate sourcing. Similarly, since primarily, a tender involves a buyer inviting potential sellers to submit bids for goods or services; the process can be closely equated with a reverse auction in its characteristics—not auctions. Also, the procurer can also consider several other factors and have the discretion to determine to award the contract. This is unlike how an auction functions. In an auction, the seller typically does not have the discretion to consider other factors besides the highest price quoted. Ulrich G. Schroeter, a member of the CISG advisory council, (2022 paper) advances that CISG is applicable in Tender contracts. He states, “The CISG furthermore also applies to international sales contracts concluded with a seller which has been selected by way of a call for tender (invitation to tender, call for bids).” The aforementioned arguments suggest that at the very least it would not be correct to construe tender contracts as auctions. The question that then follows is whether reverse auctions can also be presumed to be included in the ambit of auction mentioned in Art.2(b); which is answered in the subsequent point.

Second, the absence of explicit exclusion extends to implied inclusion. The UNCITRAL Commentary of Art 2 of the convention advances that all international sale of goods contracts can be governed by CISG besides the following. Art 2 does not refer to contracts formed by bidding process or reverse auctions but just auctions. In addition to this, the World Bank standard tender rules also do not explicitly exclude the application of CISG. From these, there is a reasonable inference that reserving an auction or just contracts formed via bidding are not explicitly included. On the contrary, if anything, the CISG application was included in the New Zealand government as guidance for foreign bidders, although it was later changed to “Common Law of contracts.” Such an inclusion is also present in an international purchase of equipment, by a Brazilian nuclear power state-owned entity. With this argument in mind, a counter-argument may be taken to advance that a court/tribunal can extend the interpretation of an auction to also include a reverse auction. However, that would be a way too broad interpretation and no coherent argument exists to make such a broad interpretation.

Third, precedents have historically not exempted CISG application in tender contracts. In 2019, the Swiss Federal Supreme Court dealt with the issue of tender contracts in CISG. It established that contracts initiated through public tenders do not fall under the ambit of Art. 2(b). The test laid is whether or not one party is foreign or not to the tender contract. So long as that element is present in the transaction, tender contracts are just as valid as any other contract with respect to Art 2(b). In another Swiss precedent, while not directly addressing the issue at hand, the tribunal held that an invitation to a tender is a form of invitation to a contract. Hence, a contract formed through just a process of bidding, though not an auction, can be governed by CISG as it so was in the said precedent. Additionally, as stated above, government procurement is done through mostly reverse auctions/Tender contracts/bidding. Such government procurement when faced with an international element has invoked the application of CISG.

 

Conclusion

This question at hand is pertinent since CISG has proven to be a successful framework, hence, its scope and applicability should not be restricted. Especially with relation to tender contracts since they form a substantial method of procurement of big entities and governments. Not to mention, no valid reason exists for the exclusion. The economic reasons are present and not even touched upon since the article strictly restricted itself to legal arguments. To summarize, the applicability of CISG to tender contracts is ambiguous due to Article 2(b), which excludes “sales by auction” from its ambit. Auctions are usually seller-driven competitive bidding. Whereas, Tender contracts are where buyers ask for bids from sellers. By virtue of this, Tender contracts are different from auctions in certain aspects such as control, procedural formalities, and evaluation criteria which are considered factors beyond price. Since it is a form of reverse auction, it would be incorrect to include reverse auctions as an auction under Art.2(b). More importantly, previously, courts and tribunals have not given the word auction such a broad interpretation. It has allowed CISG to govern the contract. Hence, in conclusion, tender contracts do not come under the ambit of “auction” of Art 2(b) CISG.

*Harddit Bedi is a student of Law at BML Munjal University India, and alumnus of the Hague Academy of International Law (2024). **Akansha Tripathy is a student of Law at BML Munjal University, India.

UN/CEFACT would like to invite you to attend: Workshop on Addressing Conflict of Laws and Facilitating Digital Product Passports: Traceability and Transparency of Critical Raw Material Value Chains, Tuesday, 21 January 2025 (AEST)

Agenda

10:00 am – 11:00 am AEST: The UN/CEFACT working group on ‘conflict of laws in the critical raw material (CRM) value chains’ meeting: Introduction and discussion of the UN/CEFACT White Paper draft outline

Moderator: Associate Professor Jie (Jeanne) Huang, Sydney University School of Law.

This is a hybrid event. Please contact jeanne.huang@sydney.edu.au for zoom details.

 

11:00 am – 12:00 pm AEST: Research interview with Dr. David Brown who is a researcher with Mighty Earth and has done a lot of research on deforestation in CRM value chains in Indonesia.  For his recent publication, “From Forests to EVs,” which he co-authored with Mighty Earth.  Kindly refer to https://mightyearth.org/article/from-forests-to-electric-vehicles/. (The interview is not open to the public due to the research ethics requirement)

 

12:00 pm – 13:00 pm AEST: Lunch

 

13:00 pm- 14:00 pm AEST: Professor Philip M. Nichols keynote:

Does Compliance with the Global Anticorruption Regime Require the Use of Artificial Intelligence?: The Case of Managing Global Critical Raw Material Value Chains

Background

Business firms constantly hear that artificial intelligence has changed the world and that they must either utilize artificial intelligence or fall behind. By extension, this would be true of regulatory compliance as well as operations. This article challenges the mantra of artificial intelligence as a ubiquitous agent of change. It does so through the lens of the global anticorruption regime, a transnational web of laws, regulations and norms that work together to reign in corruption. As this article demonstrates, the global anticorruption regime imposes on business firms a requirement to implement effective and up-to-date antibribery programs. Given the prevailing conception of artificial intelligence as the newly-critical tool for business, it would be easy to interpret “effective” and “up-to-date” as requiring the use of artificial intelligence. To determine whether in fact the global anticorruption regime does, this article undertakes two analyses. First, it carefully determines the systems requirements of the type of artificial intelligence most applicable to antibribery programs – systems that can distinguish between honest and corrupt actors and transactions – and determines the regulatory constraints on the use of artificial intelligence in that way. This article then asks specifically what tasks artificial intelligence would be asked to do as part of an antibribery program, and evaluates the capacity of artificial intelligence to perform those tasks given the already determined system requirements and constraints. These analyses yield a surprising conclusion: in some instances the use of artificial intelligence would be helpful, but for most business firms, particularly for smaller firms or firms that have not experienced bribery, the use of artificial intelligence would not be helpful and could be harmful. Regulators and legal scholars must not think of artificial intelligence as a panacea; its potential use must be analyzed in the context of objectives and the capacities, needs, and limits of artificial intelligence.

 

Dr. Philip M. Nichols is the Joseph S. Kolodny Professor of Social Responsibility in Business and Professor of Legal Studies and Business Ethics at the Wharton School of the University of Pennsylvania. He was Co-Chair, UN/CEFACT Law Group (United Nations experts committee on electronic commerce and trade facilitation), 1998 to 2005.

Event page: https://law-events.sydney.edu.au/event/globalanticorruptionregime_ai/

Registration: https://www.eventbrite.com.au/e/does-compliance-with-the-global-anticorruption-regime-require-the-use-of-ai-tickets-1143595548069?aff=oddtdtcreator UN/CEFACT would also like to call for participation:

White Paper on Addressing Conflict of Laws and Facilitating Digital Product Passports in Cross-border Value Chains 

Help draft the white paper on Addressing Conflict of Laws and Facilitating Digital Product Passports (DPPs) in Cross-border Value Chains to achieve legal coordination and establish traceability in global trade law. Aligned with regional and global initiatives, the White Paper seeks to address conflicts of law and foster the legal harmonization essential for the DPPs implementation across borders. The white paper will also ensure that DPPs comply with international standards, promoting interoperability and supporting a globally consistent approach. It will focus on the critical raw materials-the EV batteries value chain but will have broad implications for other industries.

 

The proposed White Paper will (1) present the status quo of conflict of laws in existing national and international laws relating to the implementation of DPPs, and (2) propose solutions for legal coordination and facilitate trade, especially:

1. Analyzing initial uptake of DPPs by industry stakeholders and anticipated impact;
2. Coordinating diversified national laws for cross-border data transfer involved in DPPs;
3. Obtaining mutual recognition of ESG certificates whose data are required by DPPs;
4. Promoting Interoperability between different DPPs; and
5. Incorporating UNTP and other UN/CEFACT industry standards/good practices into international and national trade laws to address legal conflicts in the adoption of DPPs.

Please provide your name/position/associations/email contacts;

Please indicate your expertise;

Please choose the ways to participate (multiple choice):

1. Participate as an active contributor in the working group to draft the White Paper (The group will typically have a one-hour meeting every two weeks from January to May 2025),
2. Participate as an observer in the working group to draft the White Paper,
3. Participate in research interviews, and
4. Any other ways that you think you can contribute.

Deadline to express your EOI is Friday 17 January 2025. Please contact the project lead Dr. Jie (Jeanne) Huang (Jeanne.huang@sydney.edu.au) and forward your email to her research assistant Raven Yang (raven.yang@sydney.edu.au).

 

Co-edited by Ben Köhler, Rishi Gulati and Thomas John, the Elgar Companion to UNCITRAL is now out. This is the third and final in the trilogy of books on the three key international institutions mandated to work on private international and international private law. The Elgar Companions to the HCCH and to UNCITRAL have already been published in 2020 and 2023 respectively.

The Elgar Companion to UNIDROIT brings together a diverse selection of contributors from a variety of legal backgrounds to present the past, present and future prospects of UNIDROIT’s instruments (for more information: link).

The book will be virtually launched by the President of UNIDROIT, Professor Dr. Maria Chiara Malaguti, on 17 January 2025 at 13:00 CET. The launch event will also include a presentation by Professor Dr. Dr. h.c. Dr. h.c. Herbert Kronke, who will speak on the topic of “UNIDROIT and the EU”. The event will be held via zoom.

To register, please send an email to ben.koehler@uni-bayreuth.de

The Netherlands Commercial Court (NCC) has recently updated its rules of procedure. The updated version has come into force on January 1, 2025.

The update might interest litigation lawyers, and could be relevant to this blog’s readers who follow the developments in regulatory competition, in particular the establishment and work of international commercial courts, including several posts on this blog (see inter alia here, here, here, here, here, here, here, here, here, here, here, here, here, here, here).

The full title of the NCC rules of procedure is ‘Rules of Procedure for the International Commercial Chambers of the Amsterdam District Court (NCC District Court) and the Amsterdam Court of Appeal (NCC Court of Appeal) NCC Rules / NCCR’. The document summarizes the amendments as follows:

‘This fourth version of the Rules is occasioned by the various changes to the laws of evidence in the Code of Civil Procedure that come into force on 1 January 2025 (Article 194 ff). Additionally, there are amendments in – amongst others – the following rules:

– 2.1.3 (notification of interested parties)

– 2.2 and explanatory notes (language and third parties)

– 3.2.1 (communication by email)

– 3.2.9 (maximum size of documents in appeal)

– 3.4.2 (extension of a time limit)

– 5.2 (default)

– 6.3.2 (summary proceedings)

– 7.1.4 (scheduling)

– 7.2 (invitation to the hearing)

– 7.7.2 (audio and video recordings)

– 8.4 (right to information and confidentiality)

– 8.4.8 (prejudgment attachment to protect evidence)

– 8.8 (preparatory evidence events)

– explanatory notes 1.3.2 (jurisdiction to deal with prejudgment attachments).’

Several updates thus have practical character; other amendments follow the development of the EU and national civil procedural law (for instance, in relation to the right to information and confidentiality).

On 1 January 2025, Poland assumed the presidency of the Council of the European Union, marking the start of a new trio of presidencies that also involves Denmark and Cyprus. The Polish presidency’s programme for the semester ending on 30 June deals with a broad range of topics, including judicial cooperation in civil matters. In this […]

Beevers Kaas
Concurrence
Droit de la concurrence et accords de distribution : le distributeur exclusif doit être protégé des ventes actives effectuées sur son territoire par tous les autres acheteurs du fournisseur

Mousse
Principes du droit communautaire
RGPD et transport ferroviaire : l’identité de genre du client n’est pas une donnée nécessaire pour l’achat d’un titre de transport

The Child Support forum is pleased to invite every interested stakeholder to a new open meeting on the issue of “International Maintenance Recovery on the Basis of Authentic Instruments”.

The payment of child maintenance is not always ordered by a court. Maintenance debtors may commit themselves to make these payments in an enforceable deed, also called “authentic instrument”. The enforceable deeds are usually established by public notaries or public authorities. They should not be confused with administrative orders, as they are based on a voluntary declaration by the maintenance debtor. In case of non-payment, enforcement can be carried out in the State of origin, in the same way as a court decision.

Regarding cross-border cases, the recognition and enforcement of child maintenance claims on the basis of authentic instruments is mentioned in certain provisions. However, the lack of international awareness as regards their nature leads to difficulties when it comes to their implementation. The meeting aims to provide information on these two topics and to allow an exchange between the stakeholders involved on both levels, the establishment and the enforcement of authentic instruments.

To register, click here.

This post has been written by Artur Doržinkevič, a PhD candidate and a lecturer at Mykolas Romeris University. On 21 November 2024, the Lithuanian Court of Appeal issued a ruling in civil case No. e2-651-912/2024, which provided further clarification regarding anti-SLAPP procedures as they pertain to lawyers. Although the case concerned domestic anti-SLAPP procedure, the […]

Over the past 19 years, Professor Symeon C. Symeonides (Alex L. Parks Distinguished Professor of Law, Dean Emeritus) has been providing scholars, researchers, practitionners and student with a comprehensive and extensive compliation of Parivate International law bibliogrphy.

The 2024’s compilation (Private International Law Bibliography 2024: U.S. and Foreign Sources in English) includes 58 books and 427 journal articles, covering a wide range of topics within private international law (conflict of laws) and related fields.

The bibliography addresses key areas such as prescriptive jurisdiction, extraterritoriality, federal-state conflicts, and specific aspects of arbitration. It also encompasses legal issues related to foreign relations and international human rights, providing a valuable reference for those studying or working in these domains.

This compilation serves as a significant resource for legal scholars and practitioners, offering a thorough overview of the literature in private international law and its associated fields.

Access to the bibliography is available on Prof. Symeonides’ SSRN page here.

I would like to take this opportunity to extend my heartfelt congratulations to Prof. Symeonides for his unwavering commitment and remarkable contributions. His bibliography continues to be a cornerstone of legal research and a testament to the enduring importance of meticulous scholarship.

A quick note on Playtech Software ea v Games Global Ltd ea [2024] EWHC 3264 (Ch) in which Thompsell J discussed ia Rome II in an application for service out (of the jurisdiction). 

As confirmed by Arnold LJ in Shenzhen Senior Technology Material Co Ltd v Celgard, LLC [2020] EWCA Civ 1293 [51]  as a matter of English law, claims for breach of equitable obligations of confidence are not claims in tort: yet that does not rule out that under Rome II, they are non-contractual obligations whose lex causae is determined under that Regulation (see also Autostore).

Thompsell J in casu [100]:

Breach of confidence is a species of unfair competition within Article 6 of the Rome II Regulation and Article 6(2) applies because Playtech’s claims are concerned with alleged acts of unfair competition affecting exclusively the interests of a specific competitor. In these circumstances, Article 6(2) provides that “Article 4 shall apply“. The consequence is that Article 4, which is concerned with the law applicable to a non-contractual obligation arising out of a tort, applies to determine the applicable law. This is despite breach of confidence not being a claim in tort for the purposes of English law.

Note that Article 4 Rome II unlike Article 6, contains an overall escape clause. [103] with reference to Celgard, the judge confirms that under Article 4(1) the connecting factor is the direct damage caused by the wrongdoing. Whether the relevant acts also had an effect, and may be regarded as having been carried out, in the United Kingdom, is not the relevant factor.

The judge [106] upholds claimant’s argument that it is facing competition to its business, which it conducts in the UK, in relation to its sales from at least one game developed by defendant, that has a feature that has relied on its confidential information, allegedly spirited away by a former employee of one of Playtech’s sister companies. The direct damage therefore is held to have been suffered in the jurisdiction and the tort gateway (see also UKSC Brownlie) for jurisdiction satisfied.

Geert.

EU private international law, 4th ed 2024, Heading 4.6.2.

https://x.com/GAVClaw/status/1869462089934450944

Bindl / Commission
Droit institutionnel
Le Tribunal condamne la Commission à payer des dommages et intérêts à un visiteur de son site Internet de la Conférence sur l’avenir de l’Europe en raison du transfert de données à caractère personnel aux États-Unis

Sandrine Clavel, Patrick Jacob and Fabienne Jault Seseke (all professors at the University of Versailles St Quentin) are the editors of a new French journal dedicated to international dispute resolution, Perspectives Contentieuses internationales (PCI). The journal, which will be freely available, aims at covering both public and private law aspects of international dispute resolution. It […]

Il résulte des principes régissant le conflit de lois en matière d’action directe que l’action est possible si elle est permise, soit par la loi de l’obligation principale, soit par la loi du contrat d’assurance, de sorte que, si la loi de l’obligation principale l’autorise, la loi du contrat d’assurance, applicable au régime de l’assurance, ne peut y faire obstacle et ne peut être invoquée que dans ses dispositions qui régissent les relations entre l’assureur et l’assuré, dispositions à laquelle la question de l’action directe est étrangère.

en lire plus

This post was written by Elena Alina Onţanu, Assistant Professor at the University of Tilburg, and Carlos Santaló Goris, Postdoctoral Researcher at the University of Luxembourg. The Bulgarfrukt judgment is the latest in a series of cases submitted by national judges to the Court of Justice of the European Union (CJEU) in which the service […]

This post has been written by Bryan (H.B.) Verheul, PhD Candidate in Private International Law, Leiden University. He attended the Advanced Course in Hong Kong as a participant. Between 2 and 6 December 2024, the second edition of The Hague Academy of International Law’s Advanced Course on Recognition and Enforcement of Judgments in Civil and […]

On Tuesday, January 7, 2025, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 4:00 p.m. – 5:30 p.m. (CET). Professor Joseph William Singer (Harvard Law School) will speak, in English, about the topic

“Conflict of Abortion Laws”

 

With the abolition of the constitutional abortion right in the United States come huge differences among the laws of the states, and that leads to questions about which state law applies when a person from an anti-abortion state travels to a pro-choice state to get an abortion. Can anti-abortion states apply their regulatory and tort regimes to their own residents who leave the state to obtain an abortion? Can they empower residents to sue abortion providers in other states to protect what they view as the “unborn child”? Can pro-choice states confer immunity from suit on abortion providers and on people who get abortions from suits filed in anti-abortion states? Does the United States Constitution limit the power of anti-abortion states to apply their laws in an extraterritorial manner, and, if not, how should courts revolve conflicts of law (private international law) questions about abortion?

 

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

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

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

 

W. Hau: Third countries and the revision of the Brussels Ibis Regulation: jurisdiction, parallel proceedings, recognition and enforceability (German)

The question of whether the provisions of the Brussels Ibis Regulation on international jurisdiction should be extended to defendants not domiciled in a Member State is to be considered in the upcoming round of revision (as expressly stated in Article 79). This paper discusses this question, but also whether the already existing provisions on the relevance of parallel proceedings in third countries have proven effective and whether the recognition and enforcement of third-country judgments should finally be put on the Brussels agenda.

 

Ch. Thomale: Ipso facto clauses in cross-border cases (German)

Ipso facto clauses or bankruptcy clauses present a controversial problem to both contract law and insolvency law. After a comparative overview of international substantive solutions to the problem, the article addresses associated conflict of laws issues, notably of characterisation. Special attention is given to “anticipatory” ipso facto clauses, cancelling the contract before the opening of insolvency proceedings.

 

A. Engel/R. Müller: Limits to the freedom of choice of law in the context of player agent services (German)

The article deals with a decision of the Rechtbank Limburg (Netherlands) (31 January 2024 – C/03/313729 / HA ZA 23–42, ECLI:NL:RBLIM:2024:524) concerning limits to the freedom of choice of law, in the context of player agent services in international football. The decision hinged upon the application of Section 297 No. 4 of the German Social Security Code III (SGB III). The relevant contract between the parties contained a clause according to which the claimant was exclusively authorised to represent the player during the term of the contract. The German provision would render the clause invalid.

While the parties had chosen Dutch law to be applicable to the contract, the court held that the German provision was applicable in view of Art. 3 para. 3 of the Rome I Regulation, which stipulates the application of mandatory provisions of the state in which the facts of the case are exclusively located if the law of another state is chosen. The article analyses this limit to party autonomy in the context of other limitations which could have been applied: Art. 9 Rome I, regarding overriding mandatory provisions, and Art. 6 Rome I, regarding the protection of consumers. The article pays heed in particular to the requirements of the domestic connections of the case.

 

J. M. Blaschczok: The assessment of arbitration agreements in competition law (German)

In recent years, arbitration agreements have come under the repeated scrutiny of competition law enforcers. By analysing a recent judgment of the CJEU, the Article finds that arbitration agreements are generally still regarded as harmless to competition in EU law. The Article subsequently discusses the exceptional cases in which arbitration agreements have been found to violate competition law. These cases include arbitration agreements which serve to cover-up other infringements of competition law as well as arbitration agreements by which a dominant undertaking imposes an unfair dispute resolution mechanism on a structurally disadvantaged party. The Article concludes that neither EU competition law nor other EU law require the place of arbitration to be located within the single market.

 

D. Fischer: § 40 KGSG as an overriding mandatory provision (German)

Erik Jayme stated incidentally in a conference report in 2018 that sec. 40 (1)–(4) Kulturgutschutzgesetz (KGSG) is an overriding mandatory provision. Haimo Schack makes the same qualification.  This finding can be confirmed for sec. 40 (1) and (2) KGSG. This article concentrates on the nature of these two paragraphs of sec. 40 KGSG as overriding mandatory provisions.

 

B. Kasolowsky/C. Wendler: German Courts confirm Anti-Suit Remedy against Sanctioned Russian Parties breaching Arbitration Agreements pursuant to Section 1032(2) GCPR (English)

Following last year’s landmark decision recognising the availability of declaratory anti-suit relief, the Berlin Higher Regional Court has again applied Section 1032(2) GCPR and broadened its scope of application. In its new decision, the court reiterated that sanctioned Russian parties remain bound to previously concluded arbitration agreements. In addition, the court offered even more hands-on protection for parties trying to serve proceedings in Russia.

 

L. M. Kahl: Security for legal costs before the Unified Patent Court compared to German and Austrian law (on UPC, Central Division Munich of 30 October 2023, UPC_CFI_252/2023) (German)

The article takes a decision of the Unified Patent Court (UPC) as an opportunity to examine the discretionary provision on security for costs, Art. 69 (4) UPCA, in more detail. According to this provision, both enforcement difficulties against third countries and the insolvency risk of the plaintiff can be considered. Among other things, the article deals with the effects of the attribution of UPC acts to the contracting member states pursuant to Art. 23 UPCA on the ordering of a security, how a so-called decision by default is to be interpreted when the claimant fails to provide a security and traces the line of previous case law. This can be seen as part of a general trend towards better protection of defendants.

 

J. Gibbons: Acceptance of English Notary Public Certificate of corporate representation without requirement of being a scrivener notary: recent decision of Regional Higher Court of Cologne (English)

The purpose of this article is to explain the professional standing, qualification, legal competence, regulatory equivalence, authority and evidential value of the acts of notaries public and scrivener notaries in England and Wales. This is considered necessary, as a number of German courts have, in recent years, rejected certificates of corporate representation issued by a notary public in England for use in Germany and elsewhere on the ground that they are not issued by a scrivener notary.

 

Ch. Thomale: Inheritance of limited partnership interests in cross-border cases (German)

The case note discusses a judgment rendered by the Higher Regional Court of Hamm, concerning the inheritance of limited partnership interest in a German partnership while the inheritance succession is governed by Austrian law. The note focuses on the company and partnership law exceptions according to Art. 1 para. 2 lit. h) and i) Regulation (EU) 659/2012 and places these in the overall context of EU conflict of laws.

 

S. L. Gössl: Birth registrations and (no) procedural recognition in Ukrainian surrogacy cases (German)

In two cases, the BGH dealt with the attribution of parenthood to a child born to a surrogate mother in Ukraine. Under Ukrainian law, the German intended parents would have been the legal parents. The BGH refused to recognise this allocation under both procedural law and conflict of laws. From a dogmatic point of view, her statements are well justifiable. The distinction between a ‘decision’ and other administrative acts in the sense of procedural recognition could have been explored further.

 

M. Andrae: Correction of the date of birth under civil status and social law based on foreign court decisions and public documents (German)

A person‘s identity includes their date of birth. In the area of social law, a person’s rights and obligations are partly dependent on their age. The date of birth is part of the social insurance number. If the person in question was born abroad, it is often the case that only the year of birth is given and, if necessary, proven. This has corresponding consequences for civil status certification and social law. The registration under civil status law is then limited to stating the year of birth. In the area of social law, July 1st of the year in question is fictitiously assumed. The insurance number contains blank spaces in this regard. Later, a specific date of birth is claimed and a foreign decision or documents are presented as proof. In other cases, a date of birth with a different year of birth is claimed in this way. The article discusses under which conditions the original civil status entry must be corrected and a different date of birth must be assumed for social law purposes.

 

N. C. Elsner: Review of OGH, order of 2.11.2023 – 5 Nc 22/23i: Enforcement of a British decision in Austria (German)

 

L. M. Kahl: Review of OGH, order of 31.1.2024 – 3 Ob 6/24i: Judicial conflict: Inadmissible non-application of the Hague Convention on Civil Procedure by Russian courts due to a Russian presidential decree (German)

 

A. Anthimos: UK Third Party Costs Orders Enforceable in Greece (German)

A UK third-party costs order (TPCO) is a totally unknown procedural concept in Greece. In the course of exequatur proceedings, the Piraeus first instance court and the Piraeus court of appeal were called to examine the issue for the first time in Greece, both declaring that no obstacles, especially those intertwined with procedural public policy, are barricading the path towards the declaration of enforcement of a TPCO issued by a judge in the UK.

Chinese Journal of Transnational Law will hold an online workshop on Cross-border Protection of Cultural Property on 28 Feb 2025. All are welcome to attend. A Zoom link will be provided closer to the event.

Tentative Programme

Keynote Speakers

•Prof. Christa Roodt, University of Glasgow

•Prof. Zhengxin Huo, China University of Political Science and Law

 

Speakers and Presentations

•Restitution of Cultural Objects Unethically Acquired During the Colonial Era: The Intersection of Public and Private International Law

Andreas Giorgallis (PGR), University of Glasgow

•The Contribution of Postcolonial Theory to the Cross-Border Protection of Indigenous Cultural Heritage

Eleni Moustaira, National and Kapodistrian University of Athens

•From Freedom to Restitution (With Special Focus on Central and Eastern Europe and the Lusophone Community)

Miroslaw Michal Sadowski, University of Strathclyde

•Restitution of Cultural Property in China: In Search of a New Paradigm for Cross-Border Cultural Property Claims

Ruida Chen, China University of Political Science and Law

•Forfeiture and Freezing Orders in Trans-border Cultural Property Litigation

Maggie Fleming Cacot

•Restitution of Stolen Foreign Cultural Property and Hurdles in Choice of Law

Yehya Badr, Yamamah University

•The Issue of Applicable Law in Disputes Arising from Violations of Private Law Regulations on Cultural Properties: The Case of Türkiye

Ekin Hacibekiroglu, Kadir Has University

•Evolving Models of Restitution

Evelien Campfens, University of Amsterdam

•Moving People, Shifting State Borders and the Return of Cultural Property: The Case of Poland

Andrzej Jakubowski, Instytut Nauk Prawnych, Polska Akademia Nauk,

We invite those interested in this important discussion to mark their calendars. More information will be provided soon.