Agrégateur de flux

Following the publication of the book Research Methods in Private International Law: A Handbook on Regulation, Research and Teaching (Elgar, 2024), edited by Xandra Kramer and Laura Carballo Piñeiro (see our earlier news item), we are organising two launch events.

The first webinar is on 10 September 2024, from 10-12 CEST. After a brief introduction by the editors, eminent contributors to the book will present their views on methods of regulation, research and education in private international law. Topics addressed include recognition as a method, European law perspectives, the essence of comparative law, law & economics, and feminism in private international law.

• The webinar is co-organised by the University of Vigo. Speakers are Dulce Lopes (University of Coimbra), Adriani Dori (Erasmus University Rotterdam), Diego P. Fernández Arroyo (Sciences Po Law School Paris), Giesela Rühl (Humboldt University of Berlin), and Mary Keyes (Griffith University of Brisbane). You can register here.

The second webinar is on 23 September 2024, from 10-11.30 CEST. This webinar will zoom in on the importance and methodology of education in private international law, addressing general educational aspects in different jurisdictions including The Netherlands, India, UK, and Nigeria from the perspective of colonialism and history, the significance of teaching PIL, curriculum development, the use of AI, design of assessment, etc .

• This webinar is co-organised by the University of Vigo, the American Society of International Law (ASIL) and hosted by the University of Sydney (moderated by Jeanne Huang). Speakers are Veronica Ruiz Abou-Nigm (University of Edinburgh), Chukwuma Okoli (Birmingham Law School), Abubakri Yekini (University of Manchester), Ramani Garimella (South Asian University) and Aukje van Hoek (University of Amsterdam).You can register here.

Written by Tarasha Gupta and Akshath Indusekhar, Jindal Global Law School, OP Jindal Global University, Sonipat, India

Recently, the Singapore International Commercial Court (“SICC”) in DJO v. DJP & Others set aside an award authored by retired Indian judges that it deemed to have copied and pasted portions of another arbitral award. The SICC reasoned its decision on the basis that the copy and pasting reflected the arbitrators’ partiality and their being influenced by arguments extraneous to the arbitration at hand. This article unravels the rationale for the SICC’s judgement in this peculiar case and explores its implications on international commercial arbitration for seat courts across jurisdictions worldwide.

 

Brief Facts

 

The Claimant, DJO, was the Respondent in the Arbitration. The Defendants / Claimants in the Arbitration are a consortium of two Indian companies and one Japanese company (“Consortium X”), formed to tender for a contract with DJO relating to the Western Dedicated Freight Corridors. DJO and Consortium X entered a contract in August 2017, incorporating the International Federation of Consulting Engineers Conditions of Contract and providing for disputes to be resolved by arbitration seated in Singapore, in accordance with the ICC Arbitration Rules 2021 (“ICC Rules”). The substantive contract was to be governed by Indian law.

 

In January 2017, the Indian Ministry of Labour issued a Notification increasing the minimum wages payable to workmen. More than three years later, in March 2020, Consortium X sought an adjustment for additional labour costs due to the Notification. After the processes set out in the contract were unsuccessfully exhausted and attempts at an amicable settlement and a claim before the Dispute Adjudication Board were unsuccessful, arbitration commenced between Consortium X and DJO (“the Arbitration”). The three-member arbitral tribunal constituted of three eminent retired Indian judges (“the Tribunal”). Judges A and B were nominated by each party. Judge C was nominated by Judges A and B and approved by the ICC.

 

Simultaneously, two other arbitrations took place relating to the effect of the Notification on contracts relating to the Eastern Dedicated Freight Corridor. Judge C was appointed as arbitrator in these other arbitrations as well. The hearings in these arbitrations had substantially concluded before the hearings began in the Arbitration between DJO and Consortium X. Crucially, while the Arbitration was seated in Singapore and conducted according to the ICC Rules, the other two arbitrations were seated in India and conducted in accordance with the rules of arbitration of the International Centre for Alternative Dispute Resolution, New Delhi. Accordingly, the lex arbitri for the two other arbitrations was the Indian Arbitration & Conciliation Act, 1996.

 

Arbitrator Bias and Copied Portions of Arbitral Awards

 

DJO submitted that 278 out of 451 paragraphs of the final award passed in the Arbitration (“the Award”) were substantially reproduced from an award in one of the two other arbitrations. Consortium X accepted that 212 paragraphs of the Award were taken, but disagreed with the degree of reproduction. The SICC viewed it unnecessary to resolve the dispute as to which paragraphs were copied– the parties’ agreement on this point was enough to show that Judge C heavily relied upon, and applied, his knowledge of the other two arbitrations in the present Arbitration.

 

The SICC noted several problems in the Award passed in the Arbitration vis-à-vis that passed in the two other arbitrations. The Tribunal referred to submissions from the other arbitrations in the Award, which were never made by the parties to the Arbitration. The Tribunal attributed arguments which were never raised by the parties to them, including relying upon authorities which were never drawn to the Tribunal’s attention. The Tribunal also failed to appreciate the difference in the wording with the contracts in the other arbitrations and DJO/Consortium X’s contract, referring to provisions which were not found in the contract between DJO and Consortium X. To the SICC, this clearly demonstration that the Tribunal drew upon the submissions made in the other arbitrations, rather than deciding solely based on that made in the Arbitration.

 

Applicable Legal Principles

 

Based on parties’ submissions, the SICC considered the plausibility of setting aside the impugned Award based on three provisions. First, Article 34(2)(a)(iv) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”) was considered, which allows for an arbitral award to be set aside due to non-compliance with the parties’ agreed upon arbitral procedure. Second, Article 34(2)(b)(ii) of the Model Law was considered, as it allows for an award to be set aside upon contravention of the public policy of Singapore. Third, the SICC considered whether Section 24(b) of Singapore’s International Arbitration Act, 1994 (“IAA”) was attracted, as it allows an award to be set aside due to a breach of principles of natural justice that prejudices parties’ rights.

 

The SICC also recalled legal principles applicable to the parties’ chosen arbitral procedure, i.e. the ICC Rules. For example, Article 11 of the Rules provides for the impartiality and independence of the arbitrators and towards all the parties involved in the arbitration. Article 22 deals with the conduct of arbitration and casts duties upon the arbitral tribunal to, inter alia, conduct the arbitration in an expeditious manner with due cognizance to the dispute’s complexity (Article 22(1)) and act fairly and impartially, hearing each party’s case (Article 22(4)).

 

The SICC also referred to Section III of the ICC’s 2021 Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration (“the Note”), which deals with arbitrators’ impartiality and independence. Specifically, Paragraph 27 of the Note enunciates the requirement for arbitrators to consider relevant circumstances, including if they acted in a case involving one of the parties or their affiliates, or acted as an arbitrator in a related case.

 

Holding on Legal Principles

 

First, the SICC clarified that the Tribunal’s application of the incorrect lex arbitri to determine interests and costs was insufficient to set aside the Award. The Award referred to Sections 31(7) and 31A of the Indian Arbitration & Conciliation Act 1996, rather than any reference to Singaporean law. Yet, the SICC noted that its doubt on the Tribunal’s independence of thought was caused not by its error of law (which is irrelevant to a setting aside application), but its reliance on the reasoning of the other awards.

 

Second, DJO contended that the Award should be set aside on account of non-compliance with the agreed arbitral procedure under Article 34(2)(a)(iv) of the Model Law. It was contended that Article 32(2) of the ICC Rules provide that the Tribunal should give the reasons for its decision in an award, and the Tribunal in the present case had not done that by virtue of their copy-and-pasting. The SICC considered it unnecessary to consider these submissions, as the argument in effect concerned the Tribunal’s failure to independently and impartially consider the arguments in the Arbitration, which relates to the field of natural justice.

 

Third, the SICC considered whether the principles of natural justice had been violated. It reiterated the intrinsic nature of such principles (including the right to a fair hearing and the rule against bias) in the appointment of arbitrators under Articles 11 and 22 of the ICC Rules. Recalling a slew of judgments, it also acknowledged the high threshold and exceptional nature of application of principles of natural justice. DJO made 4 submissions in this regard. First, that the rule against bias precludes an arbitrator from pre-judging a case, and the use of knowledge obtained from unrelated arbitration proceedings constitutes impermissible pre-judging. A necessary antecedent question was whether the Tribunal applied its mind to the issues in an independent, impartial and fair manner? The Court referred to CNQ v. CNR, where the High Court stated that the test is whether a reasonable observer, upon due consideration of the relevant facts, suspects that the decision maker reached a conclusion even before the parties’ submissions. In DJO’s case, the test of a hypothetical fair-minded, reasonable person inevitably yielded the apprehension of pre-judgement. The Award attributed submissions made in an earlier arbitration to the counsels in the present case, indubitably striking at the mantle of an impartial, independent mind. Thus, the Court inferred a very real apprehension of bias, meeting the threshold for violation of principles of natural justice. Second, DJO argued they had not been granted a fair hearing or a fair, independent, and impartial decision. The SICC responded that when a tribunal draws heavily from submissions from a previous case and fails to provide the parties with an opportunity to address them, a fair hearing is not granted. DJO’s third and fourth grounds concerned the right to a fair hearing. As sub-sets of the second ground, the Court found no need to address them separately.

 

Ultimately, it concluded that the Award was liable to be set aside due to the breach of natural justice. However, it acknowledged that the mere fact of copying is insufficient to vitiate an arbitral award. Here, it was set aside because the reproduction was not with a view to hide the origin of the copied work but was merely to minimize the work of the Tribunal in writing the award, which ultimately violated the principles of natural justice.

 

Fourth, DJO alleged the Award contravened the public policy of Singapore (Article 34(2)(b)(ii) of the Model Law). The SICC acknowledged the exceptional nature of the public policy ground for setting aside arbitral awards, and the high threshold established by previous jurisprudence. It stated that since the finding on the contravention of principles of natural justice could set aside the arbitral award, this would render a public policy assessment unnecessary. However, the Court rejected the blanket assertion that all forms of plagiarism would fundamentally be contrary to public policy.

 

Implications

 

By considering the Model Law and ICC Rules, the SICC’s judgment has the potential to shape the interpretation of seat courts’ powers across the globe. In this regard, the judgment has several favourable implications.

 

For instance, the judgement crucially maintains the high threshold that has and ought to characterize the public policy ground of setting aside arbitral awards. While most jurisdictions allow for arbitral awards to be set aside upon contravention of public policy, an overly broad scope of application could grant Courts a carte blanche to disregard foreign-seated arbitral awards unfavourable to a local party. The reiteration of the exceptional nature of the public policy ground for setting aside arbitral awards is paramount in this regard.

 

Further, the SICC clearly laid down which nature of copying is prohibited, rather than universally disallowing it in any form. It held that a degree of dishonest intention and concealment is intrinsic to the phrase “plagiarism”, whereas in the case at hand, the copy-and-pasting was merely to minimise the Tribunal’s work, rather than to conceal work’s origin; the Tribunal may have considered this to be fit owing to the conspicuous similarity in legal questions. It rightly noted that merely copying cannot render an arbitral award liable to be set aside. Rather, in the case at hand, the award was set aside as its anomalies that reflected a violation of the principles of natural justice. This differentiation is particularly relevant, since Courts worldwide often reproduce paragraphs of judgements and scholarly work which recall the jurisprudence on a subject, albeit with due attribution to the sources. In any case, reproduction made in good faith, to expedite proceedings on identical matters, ought not to be prohibited in all forms. The SICC rightfully assessed the copy-and-pasting on its impacts on the parties rather than laying down a universal rule.

 

The SICC also reinforced the principle of minimal curial intervention in arbitral awards. At one juncture, for example, it acknowledged that a crucial factual difference across the arbitrations was the length of the delay between the Notification and the time when Consortium X raised the issue of adjustment in the main Arbitration. DJO contended that the Tribunal’s failure to focus on this factual peculiarity itself undermined the Award’s validity. However, the SICC deemed this claim unnecessary to rule upon, insofar as deciding it would entail reviewing the substantive merits of the Tribunal’s findings, thereby exceeding the jurisdiction of a seat court. The SICC’s restraint in not re-entering the substantive merits of the dispute even while recognising an error regarding the same demonstrates a solid commitment to upholding the finality of arbitral awards, improving the certainty and efficacy of this mode of dispute resolution. By choosing to base its analysis on the principles of natural justice instead of the Tribunal’s application of the incorrect lex arbitri or its finding on facts, the SICC has strengthened established principles regarding the limited role of seat courts in an arbitral award. This has positive implications for international commercial arbitration, which benefits from party autonomy and respecting private arbitral tribunals’ findings while limiting deference to domestic judicial systems.

 

That said, the Court’s method of clubbing certain issues together may lead to uncertainty regarding its precedential value for other jurisdictions following the Model Law.

 

First, the Court’s non-consideration of the alleged public policy aspects of the breach of principles of natural justice has undesirable implications. It is true that Section 24(b) of the IAA explicitly provides natural justice as a ground to set aside an arbitral award, and thus there was no need to rely on any other provision to set aside the present Award. However, this judgment is a missed opportunity to acknowledge the nexus between the principles of natural justice and public policy under the Model Law itself. Although the public policy ground has a high threshold, the judgment’s superficial engagement with the threshold by itself and the absence of delineating its scope makes its precedential value for other Model Law jurisdictions unclear. More prominently, by not discussing whether “public policy” under the Model Law encompasses natural justice, the ground could be rendered an inoperable remedy.

 

Second, the Court’s refusal to consider DJO’s argument that the Award be set aside due to non-compliance with the agreed-upon arbitral procedure means that there is now little clarity on whether copied arbitral awards violate the ICC Rules of Arbitration, specifically, Article 32(2). There is also little clarity on whether a tribunal copying and pasting portions of an award such would violate Article 34(2)(a)(iv) of the Model Law, under which this argument was brought. This has repercussions for non-Singaporean seated arbitrations that choose to be governed by the ICC Rules, as well as other jurisdictions following the Model Law.

 

It is interesting to note, however, that the SICC did cite the ICC Rules’ provisions on arbitrator bias and impartiality at the beginning of its judgment (as aforementioned). This could mean that the SICC intended to suggest copying portions of another award violates the ICC Rules insofar as it reflects a pre-existing prejudice on the arbitrators’ part. However, in the absence of an explicit finding to the same it is difficult to draw this implication, especially considering that a violation of these Rules was not the reason why the Award was ultimately set aside.

 

Conclusion

 

While the SICC’s judgement does strengthen key tenets of the role of seat courts international commercial arbitration, its complete implications for other Model Law jurisdictions remain unclear. As arbitration grows more popular as a dispute resolution mechanism for complex transnational commercial disputes, high degrees of similarity between ongoing arbitrations involving common arbitrators is to be expected, and copied arbitral awards may not be the only issue to face seat courts going forward. That being said, despite the seemingly egregious nature of reproduction in the case at hand, the SICC carefully treaded the line between criticism of the Award and the risk of a blanket prohibition of copying portions of arbitral awards. Thus, from the observations on the powers of the seat court, the principles of natural justice, and procedural impropriety, the SICC’s judgment is a landmark decision in navigating these challenges in the future.

Des modifications importantes des règles de procédure de la Cour de justice et du Tribunal entrent en vigueur le 1er septembre

The second issue of the Journal of Private International Law for 2024 has just been published. It contains the following articles:

Reid Mortensen & Kathy Reeves, The common law marriage in Australian private international law

The common law marriage is a curiosity in the private international law of marriage in the Commonwealth and Ireland. In some cases, a marriage that is invalid under the law of the place where it was solemnised (lex loci celebrationis) may nevertheless be recognised as valid if it meets the requirements of a common law marriage. These originate in the English canon law as it stood in the eighteenth century and include the central requirement of the parties’ present declaration that they are married. The parties also had to meet the essentials of a Christian marriage as described in Hyde v Hyde (1866): “a voluntary union for life of one man and one woman to the exclusion of all others”.

There are more reported cases on common law marriages in private international law in Australia than any other country. Although its Australian development coincided with that of other countries, in the twenty-first century the Australian common law marriage is now in an unusually amorphous condition. The preconditions for a court to ignore the lex loci have been significantly liberalised. Additional uncertainty in the nature of a common law marriage is created by a combination of repeated misinterpretations of the Marriage Act, the failure to use precedent outlining its requirements and the dismantling of the Hyde definition of marriage in the Same-Sex Marriage Case (2013). The article considers that the common law marriage might still serve a useful purpose in Australian private international law, and how it could better do so.

 

Stephen G. A. Pitel, The statutory assertion of exclusive jurisdiction

Statutes that create or codify causes of action sometimes contain jurisdiction provisions. The wording of these provisions can differ widely. Some of them purport to give exclusive jurisdiction to a specific court. In the private international law context, this raises the question of whether such a provision precludes the courts of any other jurisdiction from hearing a claim under the statute. This article analyses how these provisions have been interpreted. It focuses on Canadian law but draws on American, Australian and New Zealand jurisprudence. The article contends that the Canadian jurisprudence is uneven and insufficiently rigorous. Several of the decisions cannot be reconciled with each other, such that some must be regarded as incorrect. Several of the decisions fail to identify the important questions that are posed by alleged assertions of exclusive jurisdiction and also fail to answer them. Moving forward, courts should treat the claim that such a provision deprives a court of jurisdiction with caution and even scepticism.

 

Charlotte Wendland, Will substitutes in EU private international law: deathbed gifts and contracts for the benefit of a third party upon death

Will substitutes exist in many legal systems, including those of Member States of the European Union. Two of these will substitutes are deathbed gifts and contracts for the benefit of a third party upon death. Both instruments are located at the intersection of succession law and contract law and are therefore difficult to characterise for the purposes of private international law. One could either characterise them as succession instruments in the sense of the EU Succession Regulation or as contracts in the sense of the Rome I Regulation. This article analyses the different options on how to characterise these will substitutes by taking into account the wording of both Regulations, comparative analysis of the substantive law, the likelihood of adaptation and the recent judgment by the Court of Justice of the European Union (CJEU) on this matter.

 

Jie (Jeanne) Huang, Can private parties contract out of the Hague Service Convention?

Treaties are concluded by States but often impose rights and obligations directly upon private parties. Can private parties contract out of a treaty including States’ oppositions without explicit permissions granted by the treaty? The complexity between party autonomy and State sovereignty is reflected in recent cases and unsettled debates regarding the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters of November 15, 1965 (“HSC”). The HSC contains a large number of oppositions made by 65 Contracting States including China, Germany, India, and Singapore. Combining public and private international law, this paper aims to explore the correlative relationship between party autonomy and State sovereignty in applying the HSC.

 

Lydia Lundstedt, The law applicable to the right of priority from a European perspective

The right of priority established in the Paris Convention for the Protection of Industrial Property allows a patent applicant to claim the filing date of a first application for any subsequent applications for the same invention filed within twelve months in another Paris Convention Contracting State. This right may be claimed by the person who has filed an application or their successor in title. If priority is not validly claimed, patent applications and patents relying on the right may be rejected, revoked or invalidated. National and regional rules governing who may claim priority, whether a priority right may be divided or shared, whether it may be transferred independently of the priority application and the rights to the invention, and the requirements for a valid transfer differ from country to country. The issue of whether priority has been validly claimed may therefore depend on which country’s law applies, which depends on the characterisation of the issues. The aim of this article is to provide a European perspective on the law applicable to the right of priority.

 

Amy Held, The modern property situationship: Is bitcoin better off (left) alone?

In modern private international law (PIL), property and situs apparently go hand in hand in an established PIL monogamy to which there tends to be a collective commitment for all PIL aspects of a cross-border dispute for all PIL subcategories of property objects. This article argues that mechanistic deference to such apparent property-situs monogamy as an overarching rule in the PIL of property is not only misconceived; but is positively impeding progress in the modern PIL debates surrounding property rights in modern decentralised objects such as bitcoin. It therefore examines the discrete justifications for the situs rules to show that the apparent property-situs monogamy is actually the cumulative effect of a wide variety of situation-specific considerations in what is really a property-situs situationship. Hence, from an analysis of the situs rules, and the principles underpinning international jurisdiction and applicable law more generally, it suggests alternative property PIL solutions to the intractable problems posed by decentralised phenomena based on policy considerations rather than continued focus on the property object itself as the “natural seat” of a property relationship.

 

Jim Yang Teo, Transnational res judicata in international commercial disputes and potential influences for BRI dispute resolution

Res judicata plays an important role in the management of complex cross-border commercial disputes. Courts and tribunals are increasingly required to grapple with the application of res judicata on the basis of a prior determination from a different, and potentially unfamiliar, legal system. These considerations come even more alive in the context of the ambitious transnational project of the Belt & Road Initiative. This paper critically examines the Singapore Court of Appeal’s decision in Merck Sharp & Dohme Corp v Merck KgGA, which offers a cooperative vision of transnational res judicata that strikes a balance between comity and mutual trust between national legal systems, and each system’s own sovereign and constitutional responsibilities and interests. The paper also considers the potential influences of Merck’s unique transnational vision for the BRI dispute resolution ecosystem.

 

Chibike Amucheazi, Chidebe Matthew Nwankwo & Fochi Nwodo, A reassessment of the challenges of enforcement of foreign judgments in Nigeria: the need for legislative reform to ease business

Enforcement of foreign judgments has significant relevance in this era of increased international investments and commercial relations across borders. Focusing on Nigeria as the central jurisdiction of analysis, this paper takes the position that rules of private international law form an often understated yet important aspect of the governance system of a country often measured by the Ease of Doing Business (EDB) ranking of the World Bank. This paper further argues that central to opening up the economy and inviting FDI into the country, the obvious matter of the inconsistency in the application of the foreign judgment enforcement statutes ought to be settled so as to create determinacy in Nigeria’s legal system – a potential attraction for foreign investors who appreciate predictability in the laws of a host country. It recommends the review and adoption of the Foreign Judgment (Reciprocal Enforcement) Act 1990 in order to quell the circumspection of the investor and trade participant due to uncertain legislation.

 

 

After reading and reviewing a thought-provoking book on the choice of law in international commercial contracts in Indonesia last year, I decided to delve further into the subject by picking up a book on Indonesian private international law. The book, titled Indonesian Private International Law, is part of the prestigious Hart series on Private International Law in Asia. Authored by Dr. Afifah Kusumadara, with contributions from a team of Indonesian scholars (hereafter referred to as “the authors”), this work was published during the COVID-19 pandemic. Spanning 226 pages across six chapters, the book aims to be the leading English-language text on private international law in Indonesia. This review provides an overview of its content.

Indonesia, a civil law country, has legal principles influenced by Dutch traditional private international law, owing to its colonial history. However, the book does not adhere strictly to the abstract style typical of civil law texts; instead, it offers helpful explanations of relevant case law.

Chapter 1 discusses the scope of Indonesian private international law, noting that it is somewhat limited, covering issues such as the status of persons, family matters, real property, formalities, international arbitration, choice of arbitral tribunals, and enforcement of foreign arbitral awards. The authors highlight that the sources of Indonesian private international law include legislation, customary law, case law, international treaties, and doctrine. However, Indonesia does not have a comprehensive code on private international law. The chapter also addresses preliminary matters like characterisation, incidental questions, and renvoi; connecting factors such as nationality, domicile, and residence; as well as issues related to substance and procedure, proof of foreign law, evidence in international disputes, public policy, and mandatory rules.

Chapter 2 covers jurisdiction in personam, dividing the discussion into general and special rules. The primary rule for jurisdiction in personam in Indonesia is to sue the defendant in their home court. For general jurisdiction, the principle of forum non conveniens is recognised in Indonesia’s judicial practice, though it has not been codified. Similarly, the doctrine of lis alibi pendens is part of Indonesian civil procedure, though rarely used in cases pending in foreign courts between the same parties and subject matter. Anti-suit injunctions have been issued by Indonesian courts, albeit not codified, usually to protect Indonesia’s judicial interests and those of its citizens.

Written choice of court agreements are permitted in Indonesia, though the country’s civil procedure rules do not specifically address foreign choice of court agreements. In practice, a choice of court agreement is likely to be enforced if it designates Indonesian courts and the defendant resides in Indonesia. Indonesian judges often conflate choice of court agreements with choice of law, leading them to decline jurisdiction when there is an express choice of foreign law.

Service of court processes, both within and outside the jurisdiction, is allowed under Indonesia’s civil procedure rules. However, the authors of the book note that Indonesian law does not explicitly address the service of foreign proceedings within Indonesia, and they recommend that Indonesia accede to the 1965 Hague Service Convention to address this gap.

The discussion then moves to special rules governing specific contracts, torts, unjust enrichment, trusts and charitable foundations, property law (including immovable property, intangible property, and succession), intellectual property, family law (covering marriage, divorce, nullity, separation, and child welfare), corporate law, insolvency, personal bankruptcy, and competition law. Notably, this structure is largely mirrored in Chapters 3 and 4, which focus on choice of law and the recognition and enforcement of foreign judgments.

Following this, Chapter 2 delves into jurisdiction over shipping claims.

Finally, Chapter 2 addresses immunities from jurisdiction. The authors note that the Indonesian government advocates for the doctrine of absolute immunity to protect the state’s interests in foreign courts. However, Indonesian courts apply the doctrine of restrictive immunity to safeguard the interests of Indonesian nationals involved in commercial transactions with foreign states within Indonesia. Notably, diplomatic immunity under the Vienna Conventions on Diplomatic and Consular Relations is considered waived when foreign legal representatives enter into employment contracts with local staff, as demonstrated in the case of Brazilian Embassy in Jakarta v. Luis F.S.S. Pereira (Supreme Court decision 376 K/Pdt. Sus-PHI/2013, 29 October 2013, pp. 97, 111-112).

Chapter 3 focuses on the choice of law. Indonesian legislation and court practice generally uphold the principle of party autonomy. In situations where the applicable law is not specified, Indonesian scholars tend to favor the law of the habitual residence of the characteristic performer, although judicial practice in this area remains uncertain. The authors mention that there are Indonesian Private International Law Bills that support this principle, but I do not know whether these have been currently enacted into law.

The chapter then explores formal validity, material validity, capacity, and mandatory rules. It also delves into specific types of contracts, such as consumer contracts, employment contracts, insurance contracts, contracts for the sale and hire of goods, contracts of carriage, negotiable instruments, letters of credit, contracts involving the transfer of foreign currency, and agency agreements.

While Indonesian Private International Law does not explicitly address the law applicable to torts, the prevailing doctrine is lex loci delicti commissi (the law of the place where the tort was committed). However, Indonesian judges often apply lex fori (the law of the forum) to protect Indonesian citizens. The authors note that there are also Indonesian Private International Law Bills that support the position of lex loci delicti commissi. The chapter further discusses the law applicable to specific torts, including negligence, nuisance, wrongful interference with goods, defamation, and environmental damage and pollution.

Finally, Chapter 3 revisits other topics previously covered in Chapter 2, examining them from a choice of law perspective

Chapter 4 addresses the recognition and enforcement of foreign judgments. In general, foreign judgments, particularly condemnatory judgments, are not recognised or enforced in Indonesia, except in cases involving general maritime average where Indonesian parties are involved. However, certain foreign judgments, such as declaratory and constitutive judgments, may be recognised and enforced if the issuing countries provide reciprocal treatment to Indonesian judgments and the judgment does not conflict with Indonesia’s public policy. The authors explain that declaratory and constitutive judgments confirm a legal status or establish a new legal condition for the parties, as seen in cases involving property ownership, adoption, or divorce.

Finally, Chapter 4 revisits topics previously covered in Chapters 2 and 3, examining them from the perspective of recognition and enforcement of foreign judgments.

Chapter 5 covers commercial arbitration in Indonesia. The authority of arbitral tribunals in the country is based on party consent, which is upheld as long as it does not conflict with Indonesia’s public policy. This principle similarly applies in the context of choice of law. Indonesia has acceded to the 1958 New York Convention and has incorporated it into its legal system. However, the authors point out that Indonesian courts have not consistently interpreted this law, particularly regarding the definition of public policy.

The chapter also addresses investment treaty arbitration, discussing aspects such as jurisdiction, choice of law, and the recognition and enforcement of arbitral awards. Indonesia is a signatory to the ICSID Convention, which governs international investment disputes.

Chapter 6, the final chapter, discusses the harmonisation of private international law, including Indonesia’s involvement in global initiatives such as The Hague Conference, UNCITRAL, and UNIDROIT. The chapter concludes with comments on the future of private international law in Indonesia. The authors observe that Indonesia has played a limited role in global efforts to harmonise private international law and propose numerous ways for the country to better align its private international law rules with current global realities.

Overall, Indonesian Private International Law is a well-written and informative book, particularly valuable for those unfamiliar with Indonesia’s legal landscape. While a basic understanding of private international law is necessary to fully appreciate the text, the book is accessible and enlightening. Despite a few minor typographical errors, it was a pleasure to read, and I highly recommend it.

The Faculty of Law at the University of Rijeka will be hosting its 2024 Doctoral Conference RIDOC on 13 December 2024. This event is designed for doctoral candidates who want to present and evaluate their preliminary research findings in front of academics, practicing lawyers, and engage in discussions with peers on an international scale. Eligible […]

In a judgment of 23 May 2024, the French supreme court for private and criminal matters (Cour de cassation) ruled that French courts have jurisdiction to entertain a paternity claim against French actor Alain Delon. The Court of Appeal of Orleans had declined jurisdiction on the ground that the plaintiff had brought proceedings in France […]

 

 

It is a great pleasure to review the book titled Treatment of Foreign Law in Asia, edited by Kazuaki Nishioka. This volume contains 17 chapters, including an introduction and conclusion, spanning 298 pages (excluding the series editor’s preface, table of contents, bibliography and index). The book examines 15 Asian jurisdictions, representing a variety of legal systems, including civil law (China, Taiwan, Japan, South Korea, Vietnam, Cambodia, Indonesia, and Thailand), common law (Hong Kong, Singapore, Malaysia, Myanmar, and India), and mixed jurisdictions (Philippines and Sri Lanka).

Currently, no international instrument comprehensively addresses the treatment of foreign law in cross-border matters. The central theme of this book is how 15 Asian states balance the demands of cost-effectiveness, time efficiency, and fairness in the ascertainment of foreign law, how their approaches can be improved, and how regional, quasi-regional, or international databases and institutions can facilitate the ascertainment of Asian and other foreign laws. The chapters explore four key themes: (A) the status of choice of law rules, (B) the handling of foreign law before judicial authorities, (C) the treatment of foreign law by administrative or non-judicial authorities and alternative dispute resolution service providers, and (D) access to local and foreign law. However, this review primarily focuses on the theme of proving foreign law before judicial authorities in Asia, as this is fundamental to private international law.

I have never been disappointed by reading Asian books on private international law. I have previously reviewed five other Asian books on this topic—three devoted to the recognition and enforcement of foreign judgments, one on direct/adjudicatory jurisdiction,  and one on choice of law in international commercial contracts in Indonesia. This current review marks the fourth time I am reviewing an Asian book on private international law, and the sixth Asian book on the subject I have reviewed overall.

I once regarded the European Union as the superpower of private international law, wielding more influence than the U.S. or any other global power, largely due to its dominant role in shaping the Hague instruments and other global conflict of laws matters. However, it is now fair to say that Asia is emerging as a significant player in private international law, though it is not yet as united or formidable as the European Union. After reading this stimulating book, I feel inspired to write something related to the African continent (See also Richard F. Oppong, ‘Foreign Law in Commonwealth African Courts’ in Yuko Nishitani (ed), Treatment of Foreign Law: Dynamics towards Convergence? (Springer, 2017) 601–611.)

Professor Richard Fentiman rightly observes that the application of foreign law is the crux of conflict of laws. This is particularly true in Asia, where the diversity of legal systems regularly triggers conflict of laws scenarios. Fentiman also rightly notes that foreign law is only likely to be pleaded in England under three conditions: when English law offers no equivalent claim or defence; when foreign law is significantly more advantageous; and when pleading foreign law is mandatory, such as in cases involving foreign immovable property where the lex situs applies. While this statement is made in the context of English law, it is generally applicable to the proof of foreign law in Asia.

In civil law jurisdictions in Asia, foreign law is treated as “law,” similar to domestic law (with the exception of Thailand, where foreign law is treated as a question of fact). Courts in civil law countries, except Thailand, operate under the presumption that they are familiar with all laws, including foreign law (iura novit curia). Judges are obliged to apply relevant foreign law, regardless of whether it has been raised by the parties. In contrast, common law judges treat foreign law as a matter of fact, to be proven by the parties through expert testimony. If neither party pleads foreign law, judges are not obligated to raise it. If no evidence of foreign law is presented, the judge may assume that the foreign law is identical to the domestic law.

The common law approach in Asia can be costly and time-consuming due to the need for expert evidence, which not all parties can afford, particularly in cross-border family matters. This method may result in judgments that are a capricious mix of foreign and domestic law, failing to accurately reflect either. However, where parties can afford experts, proving foreign law in this manner can be more efficient, as the parties have a vested interest in the proceedings.

There is a gradual shift in common law towards allowing judges to take a more active role in ascertaining foreign law, provided it is pleaded. In a recent United Kingdom Supreme Court case in FS Cairo (Nile Plaza) LLC v Lady Brownlie, Lord Leggatt (with whom the other members of the Court all agreed) at paragraph 148 held that:

“[T]he old notion that foreign legal materials can only ever be brought before the court as part of the evidence of an expert witness is outdated. Whether the court will require evidence from an expert witness should depend on the nature of the issue and of the relevant foreign law. In an age when so much information is readily available through the internet, there may be no need to consult a foreign lawyer in order to find the text of a relevant foreign law.”

In a more recent case from the Cayman Islands (Gol Linhas Aereas SA v MatlinPatterson Global Opportunities Partners (Cayman) II LP), the United Kingdom Privy Council at paragraphs 46 – 47 approved the Cayman Court of Appeal’s approach of directly considering the text of foreign legislation and case law to ascertain the content of the applicable foreign law. Additionally, in a recent decision, the English Court of Appeal suggested that Brownlie (supra) did not limit the sources of evidence a court may rely on when determining the content of foreign law ( Soriano v Forensic News LLC [2021] EWCA Civ 1952 [64]).

The challenge in civil law countries in Asia is that the idealistic approach of automatically applying foreign law can be difficult in practice, especially when judges lack access to foreign legal resources or are unfamiliar with the relevant language or legal culture. Consequently, countries like Cambodia, Vietnam, and China have adopted a hybrid approach, treating foreign law as both law and fact, with judges and legal representatives cooperating to ascertain it.

Where foreign law cannot be ascertained, both common law and civil law countries in Asia often apply the lex fori (the law of the forum). However, various civil law authors in the book explore alternative methods, such as dismissal of the case, reliance on general principles of law, or principles of closest connection. Resorting to lex fori is ultimately more cost-effective, efficient, and pragmatic, making it a sensible fallback.

In conclusion, the common law approach may be more suitable for purely commercial disputes, where parties can afford foreign experts. Meanwhile, the civil law approach is better suited to non-commercial matters such as consumer or family cases, where the parties may not have the resources to hire experts. Judges in common law systems should not be barred from investigating foreign law if it is accessible and familiar to them. This is a concept that could be further developed in future academic work, judicial reforms, or international legislative instruments.

Nishioka’s edited book sparks renewed debate on the need for international, regional, and domestic instruments and judicial reforms concerning the treatment of foreign law in cross-border matters. It is a thought-provoking and highly recommended read.

Csongor István Nagy (University of Galway, Ireland; HUN-REN Centre for Social Sciences, Institute for Legal Studies, Hungary) authored a book titled Private International Law: A Hungarian Perspective, published by Brill in its Law in Eastern Europe series. The book is accessible through the publisher’s website and on SSRN. The abstract provided by the author on […]

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

 

Th. Klink: Der Commercial Court nach dem Justizstandort-Stärkungsgesetz – ein Modellprojekt für grenzüberschreitende Gerichtsverfahren

The Legal Venue Strengthening Act allows the German states to establish Commercial Courts at the higher regional courts as of 2025. The project aims to make the jurisdiction of state courts more attractive, especially for cross-border disputes, by implementing elements of arbitration. In a contract or after the dispute has arisen, the parties can agree on the jurisdiction of the Commercial Court as a special court of first instance in cases with a value of EUR 500,000.– or more, provided that a specific area of law is involved (B2B cases, M&A cases and cases of D&O liability). For the first time, the entire civil procedure from complaint to judgment can be conducted in English. Commercial Chambers may be established at the regional courts, allowing for similar specialization regardless of the amount in dispute. The article explains the background to the legislative reform and analyzes the procedural framework for jurisdiction and commencement of proceedings, with a focus on cross-border litigation.

 

J. F. Hoffmann: New developments regarding the relationship between main and secondary insolvency proceedings in European insolvency law?

The ECJ had to answer fundamental questions concerning the relationship between main and secondary proceedings under the European Insolvency Regulation. Firstly, the ECJ affirms that the lex fori concursus of the main proceedings applies to liabilities of the estate that arise between the opening of the main proceedings and that of the secondary proceedings. Reading between the lines, it can be inferred from the decision that the secondary estate is also liable for these preferential debts of the main proceedings. However, a number of details remain vague and in the future, the individual categories of liabilities of the estate should be more clearly distinguished: The secondary estate should only have subsidiary liability for the costs of the main proceedings. Genuine privileges of the main proceedings that are not related to the administration of the estate should not be able to be invoked in the secondary proceedings, just as, conversely, the secondary proceedings should be able to recognize their own privileges in accordance with the lex fori concursus secundarii.

Secondly, the ECJ states largely undisputed that the secondary estate is only constituted at the time the secondary proceedings are opened. The main administrator may transfer assets from the state of (future) secondary proceedings to the state of main proceedings prior to the opening of secondary proceedings. Although this may constitute abuse of rights under certain circumstances, the ECJ does not specify this further. The ECJ also takes a position in favor of avoidability on the highly controversial question of whether the secondary administrator can take action against the main administrator by way of insolvency avoidance. However, no further clarification is provided. The question is ultimately left entirely to the national regulations on insolvency avoidance, which is not a convincing solution. In substance, the powers of the main administrator to deal with assets located in other Member States should be limited to what is necessary for the proper conduct of the insolvency proceedings as a whole (ordinary course of business).

 

B. Kasolowsky/C. Wendler: Sanctioned Russian parties breaching the arbitration agreement: an extra-territorial declaratory relief in aid of arbitration

In a landmark decision on 1 June 2023, the Berlin Higher Regional Court upheld the validity of an arbitration agreement under Section 1032(2) of the German Code of Civil Procedure in a novel context. The court used this provision to bind a sanctioned Russian entity to an arbitration agreement, which it had breached by initiating proceedings in Russian state courts. This decision also sheds light on how German courts deal with the practical challenges of serving court documents on Russian parties. Notably, the court ruled that Russian parties could be served by public notice in German courts, as the Russian authorities currently refuse to accept service of documents under the Hague Service Convention.

 

B. Steinbrück: Federal Court of Justice rules foreign judgments refusing to set aside an award cannot bind German courts

Does a foreign decision upholding an arbitral award on challenge have binding effect in enforcement proceedings in the German courts? If a foreign award has already been challenged unsuccessfully at the arbitral tribunal’s seat, a full re-hearing of the same grounds of challenge can seem inefficient; however, foreign decisions vary widely in their quality, so a blanket binding effect equally seems inappropriate. The Federal Court of Justice has nonetheless now ruled out any binding effect of foreign decisions rejecting challenge proceedings. The Federal Court of Justice also decided that, even if the court at the seat of the arbitration has rejected a challenge, it is open to the losing party to proactively apply to the German courts for a declaration that the foreign award cannot be enforced in Germany.

On the facts of the present case, this outcome appears justified, since the arbitral award at stake in the decision itself appears to have been obtained in highly dubious circumstances and suffered from serious irregularity. Nonetheless, it is less clear why a foreign decision rejecting the challenge to an arbitral award should not be taken into account in German enforcement proceedings if the foreign challenge proceedings are comparable to German litigation standards. As such, a more nuanced approach that is able to reflect that foreign decisions on arbitral awards vary widely would have been preferable.

 

Ch. Reibetanz: The ‘purely domestic case’ under Art. 3 (3) Rome I Regulation

In its first decision concerning Article 3 (3) Rome I Regulation, the German Federal Court of Justice has set out guidelines as to when “all other elements relevant to the situation […] are located in a country other than the country whose law has been chosen”. The provision constitutes a relevant restriction of the principle of party autonomy in international contract law. The case concerns a choice-of-law clause in a tenancy agreement to which the Bulgarian embassy was a party. The Federal Court decided that the case is “purely domestic”. The author argues that the decision is highly questionable from a dogmatic point of view. Instead of applying Article 3 (3) Rom I Regulation, the Court should have at least referred the question to the ECJ. The protection of the tenant could have been equally safeguarded by means of Article 11 (5) Rome I Regulation.

 

J. P. Schmidt: The European rules on the service of documents and national time limits for appeals – the translation regime must not be hollowed out

The European rules on the service of documents allow for the service without translation. However, the addressee may refuse to accept the document to be served if it is not written in either a language which the addressee understands or the official language of the Member State addressed. In order to safeguard this protection, but also to promote the efficiency and speed of cross-border judicial proceedings, the CJEU ruled that the period for Coding an Appeal under national law may not start to run at the same time as the period for refusing acceptance (Judgement of 7.7.2022 – Rs. C-7/21, LKW Walter). The CJEU’s decision deserves support, even though it raises a number of follow-up questions and highlights the practical downsides of the flexible translation regime.

 

F. Heindler: Wirksame Eheschließung zweier afghanischer Staatsbürger als Vorfrage bei Behandlung eines Antrags auf einvernehmliche Scheidung durch österreichische Gerichte

The Rome III Regulation on the law applicable to divorce and legal separation excludes the existence, validity or recognition of a marriage from its scope (“preliminary question”). Austrian courts dealing with divorce applications from spouses in a cross-border situation apply national Private International Law provisions to determine if the marriage validly exists. This annotation comments on a decision concerning two Afghan citizens who married in Afghanistan in 1996. According to section 16(2) of the Austrian Private International Law Act, the form of a marriage celebration abroad is subject to the personal status law of each of the betrothed, sufficient is, however, compliance with the provisions on form of the place of celebration. According to section 17(1) of the Austrian Private International Law Act, the prerequisites for entry into marriage are subject to the personal status law of each of the betrothed. In both cases, a subsequent change in the prerequisites determinative for the reference to a particular legal order has no effects upon already completed facts (section 7 of the Austrian Private International Law Act). Personal status law in the case at hand was determined according to the Afghan citizenship. The question decided by the Austrian Supreme Court was a matter of form of marriage celebration, i.e. whether in 1996 Afghanistan (the exact locus is not reported in the decition) the marriage had to be registered. The Austrian Supreme Court stated that a registration requirement postulated in the Afghan Civil Code of 1977, but widely ignored in practice in 1996, could not render a marriage celebration ineffective. The Supreme Court recalled that foreign law shall be applied as it would be in its original jurisdiction (section 3 of the Austrian Private International Law Act).

 

G. Zou/Z. Wang: The Refinement of Rules on the Ascertainment of Foreign Laws in China

The ascertainment of foreign law has always been a major challenge that has long constrained the quality and effectiveness of foreign-related civil or commercial trials by Chinese people’s courts. The judicial interpretation (II) concerning the application of Chinese PIL-Act newly promulgated in November 2023 by the Supreme People’s Court of China greatly refines many aspects in ascertaining foreign laws including the responsibility, means, relevant procedures, criteria, the burden of the expenses, etc. It is expected but remains to be seen whether the people’s courts as well as Chinese and foreign parties could benefit from such refinement.

 

D. Sprick: Building a “Foreign-Related Rule of Law”: China’s State Immunity Law

With its new Law on Foreign State Immunity, the People’s Republic of China abandons its long-standing notion of absolute state immunity and introduces a paradigmatic shift towards the internationally dominant restrictive approach of state immunity. Furthermore, this law needs to be understood as a building block of China’s ambitions for a stronger impact of its legal system around the globe within the agenda of a “foreign-related rule of law”. This paper will therefore discuss this new avenue for the resolution of commercial disputes between private parties and states before Chinese courts, which is certainly also aimed at providing enhanced protection for Chinese businesses considering their legal risks stemming out of China’s going global strategy and especially its Belt and Road Initiative (BRI). Furthermore, China’s new Law on Foreign State Immunity will be analysed within the specific setting of China’s approach toward the rule of law and its limited legal certainty as well as its political functionality understanding of Chinese courts.

 

G. Zou/Z. Wang: The Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Act of the People’s Republic of China on the Law Applicable to Civil Relations with Foreign Elements (II)

 

E. Jayme †: On the dual applicability of German law of succession and Cuban matrimonial property law

 

On Tuesday, September 10, 2024, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 2:00 pm – 3:30 pm (CEST). Nieve Rubaja (University of Buenos Aires) will speak, in English, about the topic

International Surrogacy Agreements From the Latin American Perspective. An Overview.

The media, judicial cases and administrative constraints show that surrogacy is a reality in Latin American countries. Regulation on this subject matter has become a need in order to protect the human rights involved, especially the rights of the children born. Over the last decades, legal systems in Latin America have been transversely affected by the emergence and progressivity of human rights. In addition, there are more than 20 countries in the region and each of them has its own historical, social and cultural shades; therefore, human rights have been a key factor for the unification of some conceptions in the region. This imprint impacts on surrogacy regulation (and bills) both for domestic and for cross-border cases. The few countries which provide rules regarding cross-border surrogacy cases choose a recognition approach. According to this, the legal parentage established abroad must be recognised in the forum if it is compatible with their international public policy, taking into account the best interest of the child. Among Latin American countries Argentina, Brazil, Mexico and El Salvador have designated representatives to participate in the Working Group on the Parentage/Surrogacy Project of the Hague Conference of Private International Law, which brings an opportunity to include Latin American voices. This meeting aims at providing an overview of the comparative analysis carried out considering the distinctive features of the region.

The presentation will be followed by an 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.

 

RIDOC 2024: Rijeka Doctoral Conference has been announced by the RIDOC2024-Call.

Interested doctoral students and candidates in law or law-related areas may apply by sending the abstract accompanied by their CV to ridoc@pravri.uniri.hr.

Important dates:
20 September 2024 – application deadline
15 October 2024 – information on acceptance by the Programme Committee
13 December 2024 – conference presentation

RIDOC conferences have been organised by the University of Rijeka, Faculty of Law since 2016, regularly featuring sessions on private international law.

Matthias Lehmann (University of Vienna and Radboud University Nijmegen) has made available on SSRN the article on Digital Assets in The Conflict of Laws: A Comparative Search for the Ideal Rule that is being published on Singapore Journal of Legal Studies 2024. The abstract of the article reads as follows: Which law applies to private […]

By Csongor István Nagy, Professor of Law at the University of Galway, Ireland, and at the University of Szeged, Hungary, and research professor at the HUN-REN Center for Social Sciences, Hungary.

The overwhelming majority of the international community condemned Russia’s war against Ukraine as a gross violation of international law and several countries introduced unilateral measures freezing Russian assets. It has been argued that countries should go beyond that and use these assets for the indemnification of Ukrainian war damages. Confiscation would, however, be unprecedented and raise serious international law concerns. While states have, with good reason, been reluctant to react to one wrongful act with another, this question has given rise to intensive debate. Recently, the EU authorized the use of net profits from the frozen assets but not the assets themselves to support Ukraine.

In my paper forthcoming in the University of Pennsylvania Journal of International Law I argue that this question should be approached from the perspective of the public law-private law divide and international investment law may open the door to the use of a substantial part of the frozen assets for the purpose of war reparations. The pre-print version is available at SSRN.

 

Under international law, sovereign immunity rules out confiscation both as a countermeasure and a compensatory measure responding to acta jure imperii, such as military operations. Nonetheless, sovereign immunity does not extend to commercial matters, where judgments and awards can be enforced against state assets. Investment treaties, including the Russia-Ukraine BIT (RUBIT), “commercialize” acta jure imperii. They convert public law violations into quasi-commercial claims “immune from sovereign immunity.” Although not the norm, mass claims are not unknown in investment arbitration. This implies that if Ukrainian claims for war damages can be submitted to investment arbitration and incorporated into an arbitral award, they may have a solid legal basis for enforcement against Russian assets. A good part of these assets can be used for this purpose. Although “non-commercial” assets, such as the property of diplomatic missions, military assets, cultural property, items displayed at an exhibition and, most importantly, the property of the central bank are immune from enforcement due to sovereign immunity, sovereign direct investments, airplanes, ships and the assets of persons attributable to the state can be used to satisfy investment awards.

 

The key issue of the RUBIT’s applicability is territorial scope. Although, at first, the idea that Ukrainians may be awarded compensation on the basis of the RUBIT may raise eyebrows, in the Crimea cases arbitral tribunals just did that. They consistently applied the RUBIT to Russian measures and treated Crimea (strictly for the purpose of the BIT!) as the territory of Russia on account of de facto control and legal incorporation. The foregoing principles should be valid also outside Crimea in cases where Russia occupies a territory and/or unilaterally incorporates (annexes) it. And if these territories can be treated as a territory for which Russia bears responsibility under international law, Ukrainians may be able to rely on this responsibility.

 

The Crimea arbitral awards’ notion of territorial scope is not unprecedented in international law at all. For instance, in Loizidou v. Turkey and in Cyprus v Turkey, the European Court of Human Rights applied the European Convention on Human Rights to Turkey by reason of its occupation of Northern Cyprus. In Al-Skeini v. United Kingdom, it found the Convention applicable to the UK’s operations in Iraq on account of the occupation of the country.

 

Although the RUBIT was recently terminated by Ukraine, it remains in force until January 27, 2025, and has a “continuing effects” clause in Article 14(3), which sustains investment claims for ten years after termination.

 

 

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

The second issue of the Revue Critique de droit international privé of 2024 was released a few weeks back. It contains a rich thematic dossier of seven articles and several case notes.

Under the direction of Prof. Sabine Corneloup (Université Paris-Panthéon-Assas), the doctrinal section of this issue is entirely devoted to an in-depth study of the latest French immigration law (Loi n° 2024-42 du 26 janvier 2024 pour contrôler l’immigration, améliorer l’intégration). In line with the Revue Critique’s recent policy, this doctrinal part has been made available in English on the editor’s website (for registered users and institutions). Against the backdrop of tightening migration controls at the global scale, this Act radically shifts administrative, procedural, and substantial aspects of the status of aliens in France.

The dossier opens up with Prof. Hans van Loon’s (University of Edinburgh, former Secretary General of the HCCH) call for La nécessité d’un cadre mondial de coopération pour une réglementation durable de la migration de travailleurs (The need for a cooperative global framework for a sustainable regulation of labor migration). Its abstract reads as follows:

“Sustainable regulation of labor migration cannot be based exclusively on unilateral initiatives by a given country individually, but requires the development of a worldwide framework for cooperation between states, which is sorely lacking at present. Both realistic and highly ambitious, the author proposes a – fully drafted – framework convention aimed at strengthening practical cooperation at global level for a particular type of crossborder displacement of persons for work: temporary and circular migration. This framework could subsequently be extended to other types of migration.”

Adopting the same critical ambition, the subsequent articles further engage with the French bill by following the order of its chapters.

In this vein, Prof. Fabienne Jault-Seseke (Université Paris-Saclay, UVSQ) first assesses the law’s provisions relating to L’accès au séjour : l’objectif d’intégration au service d’un discours brouillé (Access to residency: the objective of integration serving a blurred discourse). It is introduced as follows:

“Fabienne Jault-Seseke highlights the restriction of the conditions for obtaining residence permits, both for new arrivals and for foreign citizens applying for long-term permits. With regard to one of the Act’s flagship measures – the regularization of undocumented workers in short-staffed occupations – the author regrets that the reform’s contribution is ultimately very limited, and that its scope has been further reduced by an administrative order, casting doubt on the legislator’s real desire to promote work as a factor of integration.”

Then, Prof. Thibaut Fleury Graff (Université Paris-Panthéon-Assas) severely judges L’éloignement des étrangers dans la loi du 26 janvier 2024 : régression des protections, extension des rétentions (The expulsion of foreign nationals under the January 26, 2024 law: regression of protections, extension of detentions). His contribution’s abstract reads as follows:

“The author shows the regression in protection resulting from the removal of legislative obstacles to expulsion. In place of the general, objective protection against expulsion enjoyed by certain categories of foreign nationals under the law, the reform substitutes a case-by-case review, by the administrative authority and the administrative judge, of the rights and freedoms constitutionally and conventionally recognized for foreign nationals. This casuistic approach to deportation is accompanied by new provisions facilitating measures that deprive or restrict freedom (administrative detention, house arrest, bans), the duration of which has also been extended.”

In the fourth article, Prof. Natalie Joubert (Université de Bourgogne) takes a hard look on La loi Immigration du 26 janvier 2024 et les droits sociaux (The immigration law of January 26, 2024 and social rights). Her analysis is presented as follows:

“Natalie Joubert highlights the issue of ‘disguised national preference’, which was to have taken the form of a condition of length of legal residence in France – ultimately censured by the Constitutional Council – in historical context, before showing that this condition was not actually censured in itself, but only for its excessive duration. In terms of taking into account the vulnerability of foreign nationals, the author contrasts an advance in protection of access to housing, with a regression in the protection of young adults and asylum seekers.”

The Act also implements Une réforme structurelle du droit d’asile (A structural reform of asylum law), which is precisely the subject of Prof. Sabine Corneloup’s study. Its abstract reads as follows:

“In the field of asylum law, the most noteworthy contribution has been the structural reform of both the administrative and judicial phases of the asylum procedure. Sabine Corneloup analyzes the territorialization of the two phases, which raises considerable material and human stakes, and shows that the introduction of the principle of a single judge before the National Asylum Court, which removes the United Nations High Commissioner from the procedure, can only give rise to the most serious reservations. Whether or not the collegiate system is maintained in the future will depend exclusively on the policy of the President of the Court. With regard to the status of individuals, the author shows that, through the new cases of administrative detention and house arrest of asylum seekers, the Act affects the very legal grounds for such measures.”

The sixth contribution is authored by Stéphanie Gargoullaud (Cour d’appel de Paris) and tackles the procedural aspects of La loi Immigration du 26 janvier 2024 et les règles du contentieux administratif et judiciaire (The Immigration Act of January 26, 2024 and the rules of administrative and judicial litigation). The following abstract was provided:

“Stéphanie Gargoullaud analyzes the law’s main contributions to both judicial and administrative processes. The legislator’s stated aim of simplifying the rules 4 meets a strong expectation on the part of those concerned, given that the French system had become too complex. While simplification is perceptible in the case of administrative recourse, where the number of procedures has been reduced to three, it is hardly visible in the numerous provisions reforming court process concerning administrative detention and waiting zones.”

Last but not least, Prof. Jules Lepoutre (Université Côte d’Azur) discusses La nationalité dans la loi du 26 janvier 2024 : une apparition éphémère, des questions persistantes (Nationality in the law of January 26, 2024: a fleeting appearance, some enduring interrogations). The abstract reads as follows:

“Nationality and citizenship law was at the heart of parliamentary debates, even though it did not feature in the initial bill and occupies a rather anecdotal place in the enacted text. The provisions introduced by the Senators concerning the restriction of ‘droit du sol’, the extension of forfeiture of nationality, the raising of language requirements for naturalization, etc. did not pass constitutional scrutiny. Jules Lepoutre shows that both the policy pursued by the legislator and the control exercised by the constitutional court reveal much about contemporary issues relating to belonging: the presence of reiterative ideologies, and the strong interconnexion between nationality and citizenship on the one hand and immigration and integration on the other.”

What’s more, the international audience will undoubtedly be interested in the Bibliographic section of the issue, which has always been a remarkable feature of the Revue critique. Under the direction of Dr. Elie Lenglart (Université Université de Lille) and Dr. Sandrine Brachotte (UC Louvain), this section has diversified to include major French-language and non-French-language publications in both private international law and international arbitration, as well as contemporary works in global law. Notably, some reviews are authored in English and will therefore benefit readers beyond the borders of the francophonie.

The full table of contents is available here.

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

Dear Friends and Colleagues,

Kindly allow us to invite you to two events that mark the completion of a research project carried out at the University of Bonn in respect to the Washington Principles on Nazi-Confiscated Art: The elaboration of a “Restatement of Restitution Rules for Nazi-Confiscated Art“. The formal Closing Event of the Project (proceedings in German language) will take place at the University of Bonn on 4 September 2024 (7:00 p.m.). An international presentation will follow and take place at New York University (NYU) on 16 September 2024 (6:00-8:30 p.m.), organised by the  Center for Transnational Litigation, Arbitration and Commercial Law.

 

Five years ago, fundamental research started in Bonn to develop a “Restatement of Restitution Rules for Nazi-Confiscated Art” (RRR). This research was funded by the Federal Government Commissioner for Culture and the Media (“BKM”). Since then, around 1,300 cases from six jurisdictions – Germany, Austria, the Netherlands, France, the United Kingdom and Switzerland – have been recorded and their normative content comparatively scrutinized: Which „tipping points“ for evaluation recur? How have these points been handled in each case and why? Which arguments are systematically convincing in relation to others (“grammar of reasons”), which are less so? What are the principles that guide the decision-making process? Which procedural building blocks from current practice are convincing according to general procedural theory (“best practices”), which less so? The fundamental experience to be taken from the project is one that has always been described in comparative legal studies: only a comparison with others enables a true understanding of one’s own.

Our comparative work has resulted in a project text of around 1,100 pages: Eight articles – Art. 1 RRR to Art. 8 RRR – outline the central recurring issues in formulated rules, which are intended to reflect the normative essence of the issues. Some rules are rather concise, others concern a highly complex set of issues and therefore contain many paragraphs. The text of each rule is followed by a commentary explaining how the proposed rule was generated from practice, which tendencies in practice support the rule and which other tendencies appear to run counter to it. Country reports subsequently analyze the respective practice of the individual jurisdictions, always starting with an abstract overview of the respective issue. The case material referred to is then systematically organized in abstract summaries.

At our Talk at the New York University, we would like to present to you the results of our project. We feel greatly privileged that renowned professors and supporters of our project will deliver their comments on the RRR. The same holds true for the accompanying Closing Event at the University of Bonn on 4 September (in German). Following this event, we will invite you to a small reception.

If you are interested, please register: For the Talk in New York here, for the Closing Event in Bonn with sekretariat.weller@jura.uni-bonn.de. Regarding further information, please consult our institute’s homepage or refer to the atttached pdf Programme (NYU;Bonn). We would be very pleased to see you.

As already noted on this blog, a PAX Moot Court Half-Day Conference was held on 26 April 2024, organized by the Centre for Private International Law at the School of Law of the University of Aberdeen, in cooperation with the Faculty of Law of the University of Ljubljana. The conference titled Private International Law in […]

The third issue of the Lloyd’s Maritime and Commercial Law Quarterly was recently released. It contains the following article, case note and book reviews:

Adrian Briggs, “The Hague 2019 Convention”

The Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters 2019 will come into force for the United Kingdom on 1 July 2025. It will represent the principal means for the mutual recognition of judgments between the United Kingdom and the European Union (and any other states adopting it), and it is for this reason timely to examine the instrument which will replace, but certainly not replicate, Chapter III of the Brussels I Regulation. In discussing the structure and detail of the Convention, it is noticeable how far it falls short of the pre-existing regime.

Pau S Davies and Katherine Ratcliffe, “Anti-Arbitration Injunctions and Stays to Arbitration”

Andrew Tettenborn, “Book Review – The 2019 Hague Judgments Convention”

Adrian Briggs, “Book Review – Governing aw Risks in International Business Transactions”

 

Emory University School of Law seeks applications from outstanding tenured scholars for a Distinguished Professorship in Civil Litigation. This professorship recognizes distinguished achievement in scholarship and teaching of disciplines related to civil litigation, including civil procedure, complex litigation, evidence, conflict of laws, and others focused on civil litigation. Candidates must have exceptional records in research, teaching, and service and have attained a J.D., Ph.D., or equivalent degree. Candidates should currently hold a tenured academic appointment and should be eligible for appointment as a full professor at Emory. For candidates meeting the law school’s standards for scholarly excellence and the demonstrated ability to teach civil litigation courses, the interest in teaching first-year Civil Procedure will be an additional positive factor.

Candidates must complete the online application which requires creating an account, uploading a resume or CV, and providing basic demographic information. In addition, applicants should submit a cover letter, a current CV, a published or unpublished academic article, a brief research agenda, and an indication of teaching interests (if not listed on the CV) to the chair of the Appointments Committee: Professor Joanna Shepherd, at law.faculty.appointments@emory.edu.  Applications will be considered on a rolling basis.

As already noted on this blog, Xandra Kramer (Erasmus University Rotterdam and Utrecht University) and Laura Carballo Piñeiro (University of Vigo) edited Research Methods in Private International Law – A Handbook on Regulation, Research and Teaching. An online book launch is scheduled for 10 September 2024, from 10am to 12pm CEST. During this event, several […]