Agrégateur de flux

La rédaction de Dalloz actualité vous souhaite un bel été.

en lire plus

Carole Delga, présidente de la Région Occitanie/Pyrénées-Méditerranée, avait été condamnée pénalement pour discrimination à l’égard de la commune de Beaucaire. Cette condamnation n’était pas prévisible pour la Cour de Strasbourg.

en lire plus

Plamaro
Rapprochement des législations
La directive relative aux licenciements collectifs s’applique également en cas de départ à la retraite de l’employeur

WWF Österreich e.a.
Environnement et consommateurs
L’interdiction de la chasse au loup en Autriche est valide

Hann-Invest
Droit institutionnel
État de droit : la formation de jugement en charge d’une affaire doit décider seule de son issue

The Channel is Really an Abyss When reading court judgments from the UK and the EU, one is often struck by the different attitudes on either side of the Channel. While courts on the continent try to get rid of cases as quickly as possible, their English counterparts seem to tell litigants ‘Bring them on!’. […]

Williams C Iheme, “The Overdependence of African Courts and Businesses on English Law and Forum:
The Negative Repercussions on the Development of African Legal and Economic Systems”  (2024) 15 Pravni Zapisi, pp. 151-190

The uncritical transplantation of English law by Anglophone-African legislators and judges, and their failure to sufficiently adapt English legal concepts to suit the idiosyncratic socioeconomic conditions in Africa, arguably contribute to the perpetuation of English law’s hegemony therein. It is argued that the overdependence on English law and courts by African businesses in resolving contractual disputes
is not necessarily due to any alleged stellar qualities of the former, but largely due to the over-marketing of the English legal system’s competence by its apologists. The analysis uses piquant examples to elicit some adverse effects of using/overreliance on the English law and forum by African businesses in resolving contractual disputes.

To reposition from the lengthened shadow of English law, Anglophone African legislators, judges and legal scholars, must craft autochthonous legal processes that suit Africa’s tastes and socioeconomic milieu.

 

Georgia Antonopoulou, “Forum Marketing in International Commercial Courts?” (2024) Oxford Journal of Legal Studies

Forum selling is a legal term used to describe the practices of courts and judges, geared towards attracting cases, such as increasing the predictability of judgments or speeding up trials. However, do courts also go beyond forum selling to attract cases? Taking international commercial courts as its focus, this article explores how these courts market themselves to attract cases and coins the term ‘forum marketing’. It demonstrates that the courts’ recent establishment, coupled with their voluntary jurisdiction, creates a compelling context, which encourages them to engage in forum marketing. The article argues that forum marketing is not merely a byproduct of the competition in commercial dispute resolution, but a powerful mechanism with deeply persuasive, normative and, effectively, structuring properties. Forum marketing is central to disseminating and reinforcing a pro-business approach in civil justice, consequently setting the stage for procedural inequality and a one per cent procedure.

Janeen M. Carruthers (University of Glasgow) and Bobby W.M. Lindsay (University of Glasgow) edited Research Handbook on International Family Law. Published by Edward Elgar in its Research Handbooks in Family Law series, the book addresses legal topics pertaining to family relationships in a cross-border context, and international family law disputes. It shows how this field […]

We are pleased to present the newest Commentaries on Private International Law (Vol. 7, Issue 1), the newsletter of the American Society of International Law (ASIL) Private International Law Interest Group (PILIG).

The primary purpose of our newsletter is to communicate global news on PIL. Accordingly, the newsletter attempts to transmit information on new developments on PIL rather than provide substantive analysis, in a non-exclusive manner, with a view of providing specific and concise information that our readers can use in their daily work. These updates on developments on PIL may include information on new laws, rules, and regulations; new judicial and arbitral decisions; new treaties and conventions; new scholarly work; new conferences; proposed new pieces of legislation; and the like.

This issue has two sections. Section one contains Highlights on the indirect jurisdiction in India, an amendment to the Chinese Civil Procedural Law, the James Finlay (Kenya) Ltd litigation in the United Kingdom, and a review of the development of PIL in the US and beyond in the year of 2023. Section two reports on the recent developments on PIL in Africa, Asia, Europe, North America, Oceania, and South America from June 2023 to June 2024.

We express our sincere appreciation to our 2024 editorial team, which consists of 20 editors from around the world. The chief editors are PILIG Co-Chairs Jie (Jeanne) Huang (University of Sydney Law School, Australia) and George Tian (University of Technology Sydney Law School, Australia).

The Commentaries and Newsletter can be found at the ASIL website here.

By Professor Jerca Kramberger-Škerl, University of Ljubljana. ‘Speaks 13 languages, can tell a joke in 7, can lecture in 8.’ This was the headline of a 2015 article in the Slovenian newspaper Dnevnik, marking the third appointment of Marko Ilešič as the Slovenian judge at the Court of Justice of the European Union. Indeed, being […]

Written by Aguada, Yasmín** [1]– Jeifetz, Laura Martina***[2]

This post will be divided into two Views. This is Part I.

Abstract: In a globalized world, International Judicial Cooperation (IJC) and advanced technologies are redefining Private International Law (PIL). The convergences between legal collaboration among countries and technological innovations have revolutionized how cross-border legal issues are approached and resolved. These tools streamline international legal processes, overcoming old obstacles and generating new challenges. This paper explores how this intersection reshapes the global legal landscape, analyzing its advantages, challenges, and future prospects.

Keywords: private international law, international judicial cooperation, new technologies, videoconferencing, Iber@, Apostille.

I. INTRODUCTION

In an increasingly interconnected context, international judicial cooperation (IJC) and the advancement of new technologies have been linked in a notable way, reshaping the landscape of private international law (PIL). The dynamic interaction between these two elements has triggered a profound change in how cross-border legal issues are treated and resolved.

Since ancient times, IJC has been essential to address disputes involving multiple jurisdictions. From the harmonization of laws to the enforcement of judgments in foreign countries, the interaction of legal systems has been a constant challenge. However, in recent times, the emergence of technologies has brought with it revolutionary tools and approaches that are transforming IJC.

As borders become more transparent in the digital world, the implications for PIL are immense. Direct judicial communications, videoconferencing, and other technological innovations are streamlining cross-border legal processes. These technological solutions are not only overcoming traditional obstacles in international judicial cooperation but are also giving way to new challenges that require careful evaluation.

This work explores the convergence between these two fields: assistance between jurisdictions and adopting technological innovations. In this way, we propose researching their intersections and how the transnational legal scenario is transformed, with some specific references to Argentine PIL. Collaboration between nations in the search for legal solutions and the potential of new technologies to accelerate these processes are intertwined in a dynamic symbiosis that redefines PIL’s scope and very nature. In this framework, it is essential to understand the joint evolution of IJC and new technologies to anticipate how this relationship will continue to shape this discipline in the future.

II. INFLUENCE OF TECHNOLOGY ON PIL

There is no doubt that the phenomenon of globalization has impacted all branches of the law without distinction. Historically, the primary purpose of PIL was to ensure the continuity of legal relations across different jurisdictions[3]. However, we must recognize that the impact of globalization, the emergence of telecommunications, and the widespread growth of the use of the means of transportation, have led to the movement of people beyond borders. Added to these phenomena is the rise of electronic commerce and online contracting platforms. All these conditioning factors generate a multiplication of private legal relations with foreign elements.

As indicated by Calvo Caravaca and Carrascosa González,[4] the emergence of the Internet produces a shock wave in all branches of law, but more specifically in PIL, a subject that is revealed as the main protagonist in the repercussions of cyberspace in the legal field. The use of online tools globalizes international private legal situations and, therefore, increases their number and variety.

It is a fact: internationalization is not foreign to the eyes of a jurist. However, from the perspective of our subject, the virtualization of borders through the Internet has managed to put classic concepts established since the Middle Ages in crisis. Undoubtedly, the environment has been transformed, and the law – although always behind – has accompanied the new demands of an increasingly digital society at its own pace.

These trends expand with the increase in regional integration processes, by which States generate agreements to promote the circulation of goods, people, diplomatic relations, reduction of customs fees, etc. Without hesitation, these processes even check the basic foundations of the States. And with this, transnational relations achieve an ever greater increase, so their extension requires their inclusion in legislative agendas.[5]

To this complex panorama of challenges and questions, disruptive technologies are now added that are already seen as the protagonists of the new era. Artificial intelligence, smart contracts, the blockchain, the Internet of Things (IoT), and the analysis of large volumes of data (big data) are demanding an exhaustive examination of the basic paradigms of law in general and the PIL in particular.

These technologies are rapidly transforming procurement methods, the way business relationships are established, and governance systems, raising fundamental questions about applying PIL rules and protecting the rights and interests of the parties involved.

International organizations have also echoed these modern challenges. Organizations such as the World Trade Organization (WTO)[6], the Institute for the Unification of Private Law (UNIDROIT)[7] and the United Nations Commission on International Trade Law (UNCITRAL)[8] are taking a leading role in the development of practical guides intended to harmonize solutions to the possible legal consequences derived from the use of these tools.

III. IMPACT OF NEW TECHNOLOGIES ON INTERNATIONAL JUDICIAL COOPERATION

In recent years, a series of tools and mechanisms have been consolidated that, promoted by the benefits derived from the use of technology in the process, seek to generate a more direct connection between authorities to provide assistance. Clear examples of this are direct judicial communications, electronic requests, and the use of videoconferences. These innovations are accompanied by different cooperation networks: the central authorities, key actors in the operation of the agreements, which facilitate legal cooperation; judicial networks[9] and contact point networks.

Although the application of new technologies was not considered when most of the regulations and agreements that we have today were negotiated, there is no regulatory obstacle to their use since the operation of such instruments is substantially optimized through the application of these modern tools.

In the field of soft law, the Principles of the American Association of Private International Law (ASADIP), Chapter 4, “Interjurisdictional Cooperation”, article 4.7, provides in this regard: “provided that the security of communications is guaranteed, judges and other justice operators will seek and promote the use of new information and communication technologies, such as telephone and video conferencing, electronic messages, and any other means of communication suitable for ensuring the effectiveness of the requested cooperation”.

Most of the current regulations contain requirements incompatible with the communication technologies we have available today. In pursuit of a more favorable interpretation of the implementation of ICT, article 4.5 of the ASADIP Principles on Transnational Access to Justice (TRANSJUS Principles), approved by the Assembly of the American Association of Private International Law, in its meeting held in Buenos Aires, on November 12, 2016, points out that:

“…the requested State will apply and interpret the rules of interjurisdictional cooperation in a particularly flexible manner, minimizing the relevance of formalities. The courts of the requested State may act ex officio and undertake the regulatory adaptations that are necessary to achieve the completion of the corresponding procedural action. When the law does not indicate a specific form, method or manner to carry out any act of cooperation requested by the requesting State, the courts of the requested State have the power to take all appropriate measures to achieve the objective of the requested assistance, safeguarding always the fundamental procedural guarantees ”

It follows from this principle “the need to seek the delicate balance between the duty of cooperation, through available and suitable means, and respect for the guarantees of due process”.[10]

III.I. Electronic transmission of requests. Iber@.

Firstly, electronic requests are those that are transmitted within the framework of an international judicial procedure by which the court of one State requires a court of another State to provide judicial assistance or the execution of a procedural act (e.g., notification, evidence), and which is formalized through electronic means.

A vitally important tool in the context of international judicial cooperation is the Iber@ electronic communication platform. This system, characterized by its confidentiality, security, ease of use, and access, is used both by the contact points of the Ibero-American Network for International Legal Aid (IberRed) [11], and by other relevant networks, such as Eurojust, the General Secretariat of INTERPOL and the Ibero-American Network of Specialized Prosecutors Against Trafficking in Human Beings.

User access is required, as provided by the General Secretariat of IberRed, previously designated by the institutions that make up the Network. Then, each user generates a private password, which must be renewed every six months. It should be noted that Iber@ does not impose specific requirements beyond a computer and an internet connection, allowing one to log in from anywhere in the world.[12]

Once the user is authenticated in the system, he or she accesses the platform through the IberRed portal and select the institution to which to direct their query: a Contact Point, a Liaison, or a National Member of Eurojust. After submitting the query, the designated recipient receives an email notification. Subsequently, he or she is asked to enter the platform to view the request.

An important boost for this platform came with the ratification of the Treaty on the Electronic Transmission of Requests for International Legal Cooperation between Central Authorities, which took place in Medellín in July 2019, commonly known as the Medellín Treaty. This agreement has been signed by Andorra, Argentina, Brazil, Colombia, Chile, Spain, Paraguay, Portugal, and Uruguay, and it is also open to signature to other nations. It should be noted that this treaty entered into force in May 2022.

As Mercedes Albornoz and Sebastián Paredes point out[13], this instrument does not regulate the formal, procedural, or substantial requirements of the request but instead offers a renewing and perfected perspective of the existing treaties on international cooperation. The proposed innovation, in line with current times, involves eliminating the traditional transmission of requests for international assistance in paper format and instead favoring the Iber @ electronic platform as the main means (Article 1). However, its use is not mandatory (Article 4 ).

Unquestionably, cross-border cooperation demands the incorporation of new technologies to guarantee effective judicial protection, which requires collaborative efforts on the part of States. The ultimate objective is to achieve the digitalization of existing mechanisms in the field of international judicial cooperation. In this trajectory, the Iber@ platform presents a significant opportunity, considering its distinctive security characteristics, immediacy, and friendly accessibility.

III.II. e-Apostille. Digitization of evidence and documents.

Another fundamental tool in the framework of international judicial cooperation is the digitization of evidence and documents. At that level, and explicitly concerning public instruments, the electronic apostille is a simplification and streamlining mechanism for the circulation of such documents. Broadly speaking, it is a digital document that is transmitted electronically, allowing a country to expedite the authentication of public documents to produce their effects in other States[14]. This is the electronic implementation of the Hague Apostille, the single and simplified authentication process for public documents provided for by the 1961 Hague Convention[15]. It is carried out by electronic means and on an electronic public document.

Regarding the use of technological tools, the Special Commission, when evaluating the practical operation of the Apostille Convention, reiterated in several meetings that the spirit and letter of the Convention “do not constitute an obstacle to the use of modern technology”, even affirming that the use of said technology can significantly improve the application and operation of the Convention.

In 2006, the Hague Conference (HCCH), together with the National Notary Association of the United States of America (NNA), officially launched the electronic Apostille Pilot Program (e-APP), which was a pilot program until 2012, when it became a permanent program.

The e-APP allows for a much more effective performance of the Convention, considerably increasing security. It can be used with any type of technology and does not privilege the use of one technology over another, so the state parties can freely choose the one that best suits their needs and structures. The e-APP comprises two components: the issuance of e-Apostilles and the operation of e-registers.

The Hague Conference periodically organizes International Fora on the e-APP to discuss and promote its implementation. In 2021, the twelfth Forum on the e-APP was held via videoconference for the first time, and during its celebration, the effects of the COVID-19 pandemic on the operation of the Apostille Convention were pointed out, and the e-APP. Specifically, the number of (e-)Apostilles requested and issued decreased, and public services were hampered by restrictions, prompting a transition towards online services. However, they also noted that Contracting Parties that had already implemented the e-APP, particularly the e-Apostille component, reported fewer issues.

Currently, 53 countries have implemented one or two components of the e-APP. Faced with technologies in constant innovation, the 1961 Hague Convention “remains in force and has even increased its number of ratifications by designing the electronic Apostille Program (e-APP) with the objective of guaranteeing that the Convention functions in a manner effective, safe and uninterrupted, we opted for the incorporation of technology, in this case, through the issuance of electronic apostilles (e-Apostilles) and the use of electronic records (e-Registries) [16].” The e-APP provides the Apostille Convention with renewed energy and relevance, ultimately seeking to extend the scope of the Convention to the electronic medium and strengthen its important benefits by making its operation more effective and secure. In this way, we see how the incorporation of new technologies is possible to optimize the operation of existing agreements and facilitate international judicial and administrative cooperation, and thus promote access to justice.

[1]** Lawyer and notary, Law School, National University of Córdoba, Argentina. Law School, Master in International Business Law, Complutense University of Madrid. Assistant professor in Private International Law and Public International Law at the Faculty of Law, National University of Córdoba. Email: yasmin.aguada@mi.unc.edu.ar

[2] *** Lawyer, Law School, National University of Córdoba, Argentina. PhD student, University of Cádiz. Master in International Business Law, Complutense University of Madrid. Assistant professor in Private International Law at Law School,  National University of Córdoba. Email: martina.jeifetz@unc.edu.ar

[3] DREYZIN DE KLOR, ADRIANA. El derecho internacional privado actual. Volume I. Zavalia, Ciudad Autónoma de Buenos Aires, 2015.

[4] CALVO CARAVACA, ALFONSO  L. and CARRASCOSA GONZÁLEZ, JAVIER. Conflictos de leyes y conflictos de jurisdicciones en Internet, Madrid, Colex, 2001.

[5] SCOTTI, LUCIANA. Los escenarios del derecho internacional privado actual: globalización, integración y multiculturalidad. Derecho Internacional Privado y Derecho de la Integración– Book tribute to Roberto Ruíz Díaz Labrano, coord. Fernández Arroyo, D. Moreno Rodríguez, José A. CEDEP, Asunción, 2001.

[6] The World Trade Organization prepared a work directed by Emmanuelle Ganne in which the impacts of blockchains on global trade are analyzed. GANNE, Emmanuelle. Can blockchains revolutionize international trade? 2018.

Available at: https://www.wto.org/spanish/res_s/booksp_s/blockchainrev18_s.pdf. Accessed: 7 July 2024.

[7] For its part, since 2020, UNIDROIT has commissioned a specialized group, at the initiative of some European countries, to prepare a regulatory instrument that contains principles and practical guides on Digital Assets and Private Law. For more details: https://www.unidroit.org/work-in-progress/digital-assets-and-private-law/#1456405893720-a55ec26a-b30a . Accessed: 7 July 2024.

[8] Since 2022, the UNCITRAL Working Group on Electronic Commerce has been analyzing legal issues related to the digital economy. They have especially dedicated themselves to making a legislative proposal for artificial intelligence and automated contracting. More information at: https://uncitral.un.org/es/working_groups/4/electronic_commerce. Accessed: 7 July 2024.

[9] As an example, we mention the International Hague Network of Judges, a group of judges who jointly cooperate on requests for international return of children. For more details: International Network of Judges of The Hague. Available at: https://www.hcch.net/es/instruments/conventions/specialized-sections/child-abduction/ihnj. Accessed: 7 July 2024.

[10]SCOTTI, LUCIANA . op. cit., 2020, p. 428.

[11]The Ibero-American Network of International Judicial Aid (IberRed) constitutes a valuable collaboration network in areas of civil and criminal law. The Network is made up of Central Authorities and members of the Ministries of Justice, and other judicial bodies from 22 Ibero-American countries. It is also made up of the Supreme Court of Puerto Rico. The basic objective is to optimize the operation of the current civil and criminal assistance agreements, and to strengthen cooperation between the member countries of the Ibero-American Community of Nations. Such a structure constitutes a fundamental advance in the construction of an Ibero-American Judicial Space. In order to safeguard effective judicial protection, it aims to strengthen international legal cooperation mechanisms and, in addition, simplify the instruments and tools currently in force. Its official languages are Spanish and Portuguese IBERO-AMERICAN NETWORK OF INTERNATIONAL JUDICIAL AID. https://iberred.notariado.org/, 2014. Accessed: 7 July 2024.

[12] AGUADA, YASMÍN and JEIFETZ, LAURA MARTINA. “Nuevas oportunidades de la cooperación judicial internacional: exhorto electrónico y blockchain”. Legal and Social Research Center, Anuario XIX, 2019.

[13] ALBORNOZ, MERCEDES and PAREDES, SEBASTIAN. “Nuevo Tratado de Medellín: la tecnología de la información al servicio de la cooperación internacional” in Derecho en Acción, 2019.

[14] Private documents, in order to be apostillised, require prior certification by a notary public.

[15] It is worth remembering that the 1961 Hague Convention eliminated the requirement for legalization of foreign public documents, replacing it with the apostille. This Convention is one of the most accepted and applied international treaties globally. It is currently in force in 126 States, making it one of the most successful international instruments in the field of international legal and administrative cooperation.

[16] ALL, PAULA. “Legalización de documentos en la fuente convencional y en la fuente interna. Un paso más en el avance hacia lo tecnológico y lo digital” in, LA LEY, 04/29/2019, 1. Online Citation: AR/DOC/961/2019

On 27 June 2024, the English Court of Appeal delivered a judgment on the Rome II Regulation (which is assimilated EU law in the UK) in Nicholls v AXA Assistance Group Group T/A AXA Travel Insurance [2024] EWCA Civ 718 (LLJ Dingemans, Stuart-Smith and Coulson). The case concerned personal injuries in Spain, Spanish law was […]

Par un arrêt rendu le 20 juin 2024, la Cour de justice de l’Union européenne se prononce sur la notion de demande de retour au sens de l’article 10 du règlement (CE) n° 2201/2003 du Conseil du 27 novembre 2003 dit « Bruxelles II bis ». Elle y affirme, d’une part, qu’une telle demande doit viser au retour de l’enfant dans l’État où il avait immédiatement sa résidence habituelle avant le déplacement illicite et que, d’autre part, une demande de garde ne peut suppléer à l’absence d’une demande de retour dans le délai imparti.

Sur la boutique Dalloz Code de procédure civile 2025, annoté Voir la boutique Dalloz

en lire plus

On 11 and 12 July 2024, the Comparative Procedural Law and Justice (CPLJ) Final Conference will take place at the University of Luxembourg. The organizers have kindly shared the following announcement with us:

The conference will be held in a hybrid format and participation is free of charge. A brief description of the background of the CPLJ project and the final conference is provided below, together with the registration details.

The Project

CPLJ is a global project on comparative civil justice, which was launched in September 2020 by the former Max Planck Institute Luxembourg for Procedural Law with the financial support of the Luxembourg Research Fund (FNR). The project was designed to provide a comprehensive analysis of comparative civil procedural law and contemporary civil dispute resolution mechanisms.

Against this backdrop, CPLJ seeks to understand procedural rules within their cultural contexts and to identify effective approaches for resolving civil disputes. Moreover, it examines current developments in comparative civil procedure on a global scale, including the impact of information technologies, the growth of alternative dispute resolution methods, recent trends in access to justice and litigation funding, the complexities of collective litigation, and the increasing demands for transparency and independence within justice systems. These and other topics are addressed in sixteen thematic segments drafted by multi-jurisdictional author teams.

Over one hundred scholars from around the world actively participated in the genesis of CPLJ. They were guided by a Board of General Editors, consisting of Prof. Burkhard Hess, Prof. Margaret Woo, Prof. Loïc Cadiet, Prof. Séverine Menetry and Prof. Enrique Vallines. An Advisory Board of twelve esteemed scholars provided additional scientific support. Each of the sixteen author teams was led by a coordinator, who is a distinguished professor affiliated with a prestigious university or research institution. The multi-jurisdictional background of the individual members of the author teams ensures a global perspective.

The Final Conference

The final conference presents the results of the four-year CPLJ project. The rich two-day program encompasses numerous presentations by distinguished speakers who are contributors to the project, always followed by a discussion. The speakers will present highlights of their teams’ comparative procedural law research in their respective thematic segments.

The final conference additionally marks the launch of the CPLJ website that will host the thematic segments and the various contributions to those segments after their completion. The website will be open-access and is expected to become one of the major reference works for comparative civil procedural law for many years to come.

Make sure to register in time and please indicate whether you expect to attend in-person or online. The full program and registration details can be found here. We look forward to welcoming many attendants in Luxembourg to celebrate the conclusion of this exciting project with us.

On 5 July 2024, Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859 (Text with EEA relevance) was published in the Official Journal of the European Union. Pursuant to Article 38 of the Directive, it […]

The last seminar in the series organised by Marie-Elodie Ancel (University of Paris-Panthéon-Assas) and Pascal de Vareilles-Sommières (University of Paris 1 Panthéon-Sorbonne) and hosted by the Cour de cassation on the recast of the Brussels I bis Regulation was held on 24 June 2024. The general topic of the seminar was recognition and enforcement of […]

Caixabank e.a. (Contrôle de transparence dans l’action collective)
Rapprochement des législations
Prêts hypothécaires : la transparence des clauses « plancher » peut faire l’objet d’un contrôle dans le cadre d’une action collective concernant tout le système bancaire d’un pays

This post was written by François Mailhé, who is Professor of Private Law at the University of Picardie Jules Verne. The author thanks Justice Fulchiron for changing the Cour de cassation‘s practice and making his preliminary report available to the public on the Court’s website, thus providing a new source of information on the Court’s […]

S’il résulte de la règle prétorienne de concentration des moyens que le demandeur à une action en paiement doit présenter, dès l’instance initiale, l’ensemble des moyens qu’il estime de nature à justifier sa demande, de sorte qu’il est irrecevable à former ultérieurement la même demande contre les mêmes parties en invoquant un fondement juridique qu’il s’était précédemment abstenu de soulever, il n’y a pas lieu d’étendre son champ lorsque l’instance initiale se déroule devant une juridiction étrangère, son application étant de nature à porter une atteinte excessive au droit d’accès au juge en ce qu’elle n’est pas, dans ce contexte, suffisamment prévisible et accessible.

Sur la boutique Dalloz Code de procédure civile 2025, annoté Voir la boutique Dalloz

en lire plus

Written by Mayela Celis, Maastricht University

The Special Commission on the practical operation of the 1965 Service, 1970 Evidence and 1980 Access to Justice Conventions will take place in The Hague from 2 to 5 July 2024. For more information (incl. all relevant documents), click here. Particularly worthy of note is that this is the first meeting in the history of the Hague Conference on Private International Law (HCCH) in which Spanish is an official language  – the new language policy entered into force on 1 July 2024.

A wide range of documents has been drafted for this Special Commission, such as the usual questionnaires on the practical operation and the summary of responses of Contracting States. These documents are referred to as Preliminary Documents (Prel. Doc.). Particularly interesting is the document relating to Contractual Waiver and the Service Convention (i.e. when the parties opt out of the Convention), the conclusions of which I fully endorse (Prel. Doc. No. 12, click here, p. 10).

Country profiles have also been submitted for approval (Prel. Docs 9 and 10), a practice which is in line with what has been done with other HCCH Conventions. A document on civil and commercial matters has also been issued and while it basically restates previous Conclusions and Recommendations, it includes the suggestion made by some States to develop “a list-based approach to identify the scope of “civil or commercial matters”” and recommends not following that route but rather take a case-by-case approach (Prel. Doc. 11, click here) – a very wise approach.

Moreover, it is worth noting that revised versions of the Service and Evidence Handbooks have been submitted for approval. A track changes version of each has been made available on the website of the Hague Conference. The Handbooks are usually only available for purchase on the HCCH website so this is a unique opportunity to view them (although not in final form).

For ease of reference, I include the links below:

Service Handbook (track version, clean version)

Evidence Handbook (track version, clean version)

With regard to the Service Handbook, a few changes are worth underscoring. I will refer to changes in comparison to the 4th version of the Handbook. While I will refer to the track changes version, please note that not all changes have been marked as changes as this version refers to changes made to an intermediate version circulated internally:

1. P. 61 of the track changes version – Service on an agent – The clarification of the two lines of cases that have emerged regarding service on an agent (e.g. the US Secretary of State) and whether the document should be sent abroad is particularly interesting.
2. P. 66 of the track changes version – Service by postal channels on Chinese defendants – The emphasis on China’s opposition to postal channels is particularly significant, given the litigation regarding service on Chinese defendants through postal channels.
3. P. 69 et seq. of the track changes version – Substituted service – a welcome addition to underscore that this type of service is also used when the Convention does not apply.
4. P. 87 et seq. of the track changes version – a practical example from Brazil on how to locate a person to be served – this is an interesting example and it enriches the Handbook by including an example from Latin America.
5. P. 101 et seq of the track changes version and glossary – EU digitalisation – a fleeting reference is made to the modernization initiative of the European Union.
6. P. 145 et seq of the track changes version – Water Splash, Inc. v Menon decision by the US Supreme Court – The position of the US regarding article 10(a) has been updated and all the previous case law of lower and appeal courts has been deleted.

The above-mentioned changes are very welcome and will be very useful to practitioners.

On a more critical note, it should be noted that it is unfortunate that the Annex on the use of information technology featured in a previous edition of the Service Handbook has been deleted (previously Annex 8). In this Annex, there were references to the latest case law on electronic service by electronic means (approx. 26 pages), including email (incl. references to the first case and the evolution in this regard), Facebook, X previously known as Twitter, message board, etc. and an analysis whether the Service Convention applied and why (not).

Unfortunately, very few excerpts of this Annex have been included throughout the Handbook. The concept of address under Article 1(2) of the Service Convention vs email address is of great importance and it has remained in its place (p. 88 of the track version version).

As a result, the Service Handbook contains now very few references to “service by e-mail” (1 hit), “electronic service” (3 hits), “e-service” (2 hits) or “service by electronic means” (10 hits, see in particular, p. 100) and no hits for “service by Facebook” or “service by Twitter”. It also seems to focus on e-service executed by Central Authorities of the requested State according to domestic laws (as opposed to direct service by email across States). And in this regard, see for example the comment from China (Prel. Doc. 15, click here, p. 41).

Having said that, an additional document on IT was drafted (Prel. Doc. No 13, click here), which summarises the way in which information technology can be used to enhance the above-mentioned Hague Conventions and focuses specifically on electronic transmission, electronic service and video-link.

With regard to e-service, Preliminary Document No 13 notes among other things that Contracting Parties remain divided as to whether or not service – of process or otherwise – via e-mail or other forms of e-service is within the scope of Article 10(a) postal channels (p. 9). See in this regard the comment from the European Union (Prel. Doc. 15, click here, p. 38). This casts a shadow on the ‘functional equivalence’ approach of this Convention. Moreover, this document only discusses e-service very briefly and the literature referred to in the Prel. Doc. is outdated pertaining to one or two decades ago. On the other hand, however, reference is made to the 2022 responses to the Questionnaire and two recent cases.

Another perhaps unfortunate deletion is the relationship between the Service Convention and the applicable EU regulation (No. 2020/1784). The Handbook merely dedicates a half page to this important relationship (p. 169 of the track changes version) and does not analyse the similarities and the differences between them, as was the case in previous versions. A missed opportunity.

On a positive note, the graphs and tables have been improved and made more reader-friendly and a new Annex has been included “Joining the Convention” (new States can only accede to the Convention).

With regard to Evidence Handbook, it could be noted that this Handbook has been subject to a more recent update in 2020, as well as the publication of a Guide to Good Practice on Video-Link in the same year. Therefore, in a way there are less new developments to include. In particular, it has been noted that sections of the Guide to Good Practice on Video-Link have been included into the Evidence Handbook. A question may then arise as to whether the Guide will remain a stand-alone document (but apparently, it will not – for now the free version of the GGP can be downloaded. Hopefully, the Handbook will also be translated into as many languages as the Guide was).

As with the Service Handbook, the graphs and tables have been improved and made more reader-friendly.

Of great significance is the delicate split of views with regard to the possibility of obtaining direct taking of evidence by video-link under Chapter I of the Evidence Convention. In my view, this is the Achilles’ heel of the Evidence Convention since without direct taking of evidence under Chapter I, there is a real danger that this instrument has become obsolete. Let alone the fact that the Evidence Convention has no specific safeguards for the direct taking of evidence.

In sum, the Service and Evidence Conventions work well in a paper environment. However, these Conventions are struggling to keep up with technological developments as some States are reluctant to accept the ‘functional equivalence’ approach of some of their provisions, in particular art. 10(a) of the Service Convention and art. 9(2) of the Evidence Convention (direct service by postal channels and direct taking of evidence by the requesting State). An easier implementation of IT is the electronic transmission of requests, something that is left as a long-term goal (see below), the effecting of e-service by the Central Authority of the requested State or the use of video-link in the indirect taking of evidence. A question then arises as to how fit are these Conventions for the future and that is something that only time will tell.

This aside – the updating of the Handbooks and the drafting of the preliminary documents is a huge enterprise. The drafters should be congratulated, as these documents will certainly be of great benefit to the users of both Conventions.

At the end of a meeting of the Special Commission, Conclusions and Recommendations are adopted.  In this regard, Prel. Doc. No. 13 submits a few proposals regarding information technology (see pages 15-17). In particular, it stands out [for the long-term] “the proposal for the development of an international system to facilitate the e-transmission of requests or alternatively, to propose how a decentralised system of platforms for the transmission of requests may function effectively.” In that respect, a question arises as to how to combine synergies and avoid overlapping efforts at the international and the EU level.

A link to the Conclusions & Recommendations will be added to this post once they have been made available.