Agrégateur de flux

The Russian Legal Information Agency has announced that Russia’s Justice Ministry, acting jointly with the Foreign Ministry and the Supreme Court of the Russian Federation, proposed that the Government pass a recommendation to sign the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the ‘Convention’).

Although there were previously fake news circulating on the internet in this respect, it seems that Russia may well ratify the Convention or, at the very least, that Russian elites are contemplating doing so.

But why would Russia do that?

According to the Russian Agency, the answer seems to be that Russia would want to “create conditions for the recognition and enforcement of decisions taken by Russian courts in all [contracting States] of the new Convention.”

So, Russia hopes to improve the enforcement of Russian judgments abroad. This seems quite logical. Improving the enforcement of the forum’s judgments abroad is a common rationale for entering into bilateral treaties on the enforcement of foreign judgments and for having a reciprocity requirement in the forum’s law of foreign judgments.

There is, however, a downside: by entering into a treaty on the enforcement of foreign judgments, the contracting States also commit themselves to enforcing judgments rendered by other contracting States. In other words, if Russia ratifies the 2019 Convention, it will also promise to enforce in Russia judgments rendered by the courts of other contracting States.

The Russian law of foreign judgments is not liberal. The basic rule is that Russia only enforces judgments on the basis of a treaty. While Russian courts have sometimes accepted to enforce foreign judgments in the absence of treaty under the principle of comity, Russian law remains conservative in this respect.

In contrast, many other States have a very liberal law of foreign judgments, and have enforced Russian judgements on the basis of their common law of foreign judgments, without caring for any form of reciprocity. These liberal States include, among many others, the United States and France. In the US, in particular, courts have enforced Russian judgments on numerous occasions (in 2018, Russian judgments were enforced by New York and California courts, for instance). The 2019 Convention will not improve the prospects of enforcement of Russian judgments in those states.

So the main effect of entering into the 2019 Convention may well be that Russia will commit to enforce judgments that it would not enforce today. In other words, the 2019 Convention would certainly liberalize the Russian law of foreign judgments, but it is unclear to which extent it would improve the enforcement of Russian judgments abroad.

Surely, there are other States with a conservative law of foreign judgments. If these other States ratify the Convention, Russia will have improved the prospects of enforcing its judgments in these states. But who are these states and are they planning to sign the 2019 Convention? And are these states Significant trading partners of Russia? Otherwise, why should Russia care?

Germany is no doubt one of the biggest trading partners of Russia, and there is a reciprocity requirement under the German law of foreign judgments. Maybe German courts have denied enforcement to Russian judgments, but maybe they have considered that the prospects of enforcement of German judgments in Russia were such that German courts should enforce Russian judgments. Our German readers will tell.

A major judicial partner of Russia has been, lately, England. The English common law of judgments is pretty conservative, in particular with respect to the assessment of the jurisdiction of foreign courts. Because of Brexit, England is likely to sign the 2019 Convention. By entering into the Convention as well, the enforcement of Russian judgments in England would then improve. This might be enough of an incentive for Russia to enter into the Convention.

It would be great news for the rest of the world if Russia ratified the 2019 Judgments Convention. Whether it would be good news for Russia remains to be seen.

Today (25 October 2020) is the 40th Anniversary of the HCCH Child Abduction Convention. With more than 100 Contracting Parties, the HCCH Child Abduction Convention is one of the most successful Conventions of the Hague Conference on Private International Law (HCCH). As indicated in the title, this is a time for celebration but also a time for reflection. The Child Abduction Convention faces several challenges, some of which have been highlighted in this blog. The most salient one is that primary carers (usually mothers) are now the main abductors, which many argue was not the primary focus of the deliberations in the late 70s and that the drafters assumed that primarily (non-custodial) fathers were the abductors. See the most recent statistical analysis by Nigel Lowe and Victoria Stephens (year: 2015 applications), where it shows that 73% of the abductors were mothers (most primary or joint-primary carers) and 24% were fathers.

A related issue is that custody laws continue to change and are granting custody rights to non-primary carers (e.g. unmarried fathers, ne exeat clauses, etc.), which expands the scope of the Child Abduction Convention. There is also a growing trend of joint parenting.

Another challenge is the increasing importance of human rights law and its interaction with the Child Abduction Convention (see our previous post Opening Pandora’s Box); in addition, the implementation and application of article 13(1)(b) of the Child Abduction Convention also poses challenges (see our previous posts on the HCCH Guide to Good Practice on the grave-risk exception under article 13(1)(b) of the Child Abduction Convention through the lens of human rights: Part I and Part II).

Moreover, other challenges have arisen in these difficult times of pandemic. In this regard, Nadia Rusinova wrote a post on the “Child Abduction in times of Corona” and another one on “Remote Child-Related Proceedings in Times of Pandemic – Crisis Measures or Justice Reform Trigger?”

Last but not least, there is much uncertainty surrounding Brexit and the new legal framework of the UK. How about all the UK case law regarding Brussels II bis and the related issues regarding the Child Abduction Convention?

Such obstacles are not insurmountable (at least, I hope). Nevertheless, much reflection is needed to continue improving the operation of the Child Abduction Convention in this ever-changing world. Undoubtedly, the Child Abduction Convention is a must-have tool for States to combat internationally removal and retention of children by their parents or someone from the inner family circle in accordance with the UN Convention on the Rights of the Child.

For those of you who are interested in getting more information about this Convention: In addition to the Guides to Good Practice published by the HCCH (open access), some of the leading works in this area are (I will concentrate on books as there are countless articles, see also bibliography of the HCCH here. Some of the books are from Hart, click on the link on the top of the banner for more info):

Monographic works:

Schuz, Rhona. The Hague Child Abduction Convention: A Critical Analysis. Studies in Private International Law; Volume 13. Oxford: Hart Publishing, 2013.  Former Secretary General of the HCCH, Hans van Loon, wrote a very helpful book review. See Van Loon, Hans, “R. Schuz, the Hague Child Abduction Convention: A Critical Analysis.” Netherlands International Law Review, 62, no. 1 (April, 2015): 201–206.

Beaumont, Paul R. and Peter E. McEleavy. The Hague Convention on International Child Abduction. Oxford Monographs in Private International Law. Oxford: Oxford University Press, 1999.

Garbolino, James D. and Federal Judicial Center. The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges, 2015 (open access).

More specific topic:

Written by Conflictoflaws.net’s General Editor: Thalia Kruger.

Kruger, Thalia. International Child Abduction: The Inadequacies of the Law. Studies in Private International Law; Vol. 6. Oxford: Hart Publishing, 2011.

Works in Spanish:

Child abduction and mediation

Chéliz Inglés, María del Carmen. La sustracción internacional de menores y la mediación: Retos y vías prácticas de solución. Monografías. Valencia: Tirant lo Blanch, 2019.

Forcada Miranda, Francisco Javier. Sustracción internacional de menores y mediación familiar. Madrid: Sepín, 2015.

Within the Latin-American region

Tenorio Godínez, Lázaro, Nieve Rubaja, Florencia Castro, ed. Cuestiones complejas en los procesos de restitución internacional de niños en Latinoamérica. México: Porrúa, 2017.

Tenorio Godínez, Lázaro, Graciela Tagle de Ferreyra, ed. La Restitución Internacional de la niñez: Enfoque Iberoamericano doctrinario y jurisprudencial. México: Porrúa, 2011.

This is just a short list; please feel free to add other books that you may be aware of.

The HCCH news item is available here. The HCCH Access to Justice Convention is also celebrating its 40th anniversary. Unfortunately, this Convention is less used in practice.

Yesterday, 23 October 2020, the Republic of Serbia ratified the HCCH Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, which will enter into force for Serbia on 1 February 2021.

Source: https://www.hcch.net/en/news-archive/details/?varevent=757

INTRODUCTION
Commercial arbitration is now very popular around the globe. It forms an important part of Nigerian jurisprudence. It is regulated by the Arbitration and Conciliation Act (“ACA”), Cap. A18, LFN 2004.

Clauses designating an arbitral tribunal to resolve disputes between the parties are now common place in international commercial transactions. Generally, Nigerian courts respect and strictly enforce the parties’ choice to resolve their dispute before an arbitral tribunal in both domestic and international cases. This right is however not absolute. The right to resolve disputes before an arbitral tribunal could be waived by submitting to the jurisdiction of the Nigerian court. Indeed, Section 5 (1) of the ACA provides that: “If any party to an arbitration agreement commences any action in any court with respect to any matter which is the subject of an arbitration agreement any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay the proceeding.” In essence, if a party to an international arbitration clause delivers any pleadings or takes any steps in the proceedings, such a party is deemed to have waived its right to an arbitration clause by submitting to the jurisdiction of the Nigerian court,

What provokes this comment is that in a recent Nigerian Court of Appeal decision in The Vessel MT. Sea Tiger & Anor v Accord Ship Management (HK) Ltd. (2020) 14 NWLR (Pt. 1745) 418 (“Tiger”), the Court of Appeal held inter alia that where a party is served with a judicial claim, in breach of an international arbitration agreement, but fails to appear before the court, such a party is deemed to have waived its right to an arbitration agreement by submitting to the jurisdiction of the Nigerian court. It also held that payment of an out of court settlement amounts to submission.

This comment holds that the Court of Appeal’s decision was wrongly decided in so far as it held that where proceedings are instituted in breach of an international arbitration clause, failure to appear before judicial proceedings and payment of an out of court settlement amounts to waiver by submitting to the jurisdiction of the court.

FACTS

In Tiger (supra), the 2nd plaintiff-appellant and the 1st defendant-respondent – both foreign companies before the Nigerian Court – entered into a ship management agreement on 18th of February 2012 in Hong Kong for the management of the 1st plaintiff-appellant vessel. The parties agreed that any dispute arising from their agreement shall be referred to international arbitration in London.

When a dispute arose as to the payment of the management fees between the parties, the 1st defendant-respondent instituted proceedings (suit No. FHC/L/CS/1789/2013) at the Federal High Court Nigeria for the arrest of the 1st plaintiff-appellant vessel. In that proceeding, the 1st defendant-respondent (as plaintiff) sued the plaintiff-appellants (the vessel and owners of the vessel) as the defendants in that case. The plaintiff-appellants settled the claim out of court by making payments to the 1st defendant-respondent. Subsequently, on 27th February 2014, the 1st defendant-respondent as plaintiff in suit No. FHC/L/CS/1789/2013 withdrew its suit and the vessel was ordered to be released.

In consequence of the arrest of the 1st plaintiff-appellant from 31st December 2013 to 27th February 2018, the appellants sued the defendant-respondents in the Federal High Court, Lagos for huge compensation arising from what it claimed to be the wrongful arrest of the 1st plaintiff-appellant in breach of their agreement to settle their dispute by international arbitration in London.

DECISION
The Court of Appeal unanimously dismissed the claim of the plaintiff-appellants by holding that they had waived their right to the international arbitration clause by submitting to the jurisdiction of the Nigerian Court. The decision was reached on two principal grounds. The first ground was failure to appear and challenge the proceedings after being served with court processes. The second ground was the payment of an out of court settlement in order to release the vessel. In order to provide more clarity, the relevant portions of the decisions are quoted.

First, Garba JCA in his leading judgment held that: “The failure or refusal by it (plaintiff-appellants) to appear in reaction to the originating processes to enable the appellant challenge the jurisdiction of the lower court on the ground of the arbitration clauses in the Ship Management Agreement…left no other reasonable presumption in law and option to the lower court than that the appellants had submitted to the jurisdiction of that court to adjudicate over the suit since the only challenge to the suit by the appellants was entirely and completely predicated and founded on the arbitration clauses in the Ship Management Agreement and not on the lack of jurisdiction on the part of the court, in any event, entertain the suit on any cognizable ground of law. The failure or refusal to enter an appearance and be represented in the suit constituted and amounted to a muted but clear submission to the jurisdiction of the lower court in the case.”

Second, Garba JCA held that: “…the lower court is right that the appellants submitted to its jurisdiction in the suit no:FHC/L/CS/1789/2013 by the payment and settlement of the 1st respondent’s claim in order to secure the release of the 1st appellant from the arrest and detention it was placed under in the case thereby not only taking a step in the case, but actively and effectively so, in the circumstances of the case.”

COMMENTS
The Court of Appeal’s decision in Tiger (supra) is very important from the perspective of private international law and international commercial arbitration. The implication of Tiger (supra) is that where proceedings are instituted in a Nigerian court in breach of a foreign arbitration clause, the party requesting arbitration would be wise to appear before the court and immediately request the court to stay its proceedings in favour of a foreign arbitration clause. If this is not done, an international arbitration clause is ineffective in Nigerian law on the basis that the party requesting arbitration would be deemed to have waived its right by submitting to the jurisdiction of the court. In addition, payment of an out of court settlement would amount to waiver by submitting to the jurisdiction of the Nigerian court.

Prior to Tiger (supra), waiver to an arbitration clause by submission to the jurisdiction of the Nigerian court could only be established where the defendant entered an unconditional appearance or defended the case its merits.

It is submitted that Tiger (supra) is a wrong extension of the principle to the extent that it holds that failure to appear before proceedings which breach an international arbitration clause constitutes waiver by submission to the jurisdiction of a court. A defendant that did not appear before court proceedings cannot be deemed to have waived its right by submitting to the jurisdiction of the Nigerian court. In other words, failure to appear to proceedings upon being duly notified is the very antithesis of submission to the jurisdiction of a court. It is illogical to hold that such a defendant has “delivered pleadings” or “taken steps in the proceedings” in the eyes of Section 5 of the ACA. A defendant is entitled to ignore court proceedings by sticking to the arbitration clause. This should also be seen as a pro-arbitration stance that is consistent with Nigeria’s approach of upholding the sanctity of arbitration agreements. Indeed, as stated in the introduction, Nigerian courts generally enforce arbitration agreements strictly.

The truth is that Tiger’s case reflects the attitude of Nigerian judges to absentee defendants. Nigerian judges regard it as impolite for a defendant not to appear to court proceedings. The preferable approach in Nigerian jurisprudence is to enter a conditional appearance and then challenge the jurisdiction of the court. Indeed, in Muhammed v Ajingi (2013) LPELR-20372 (CA), the Court of Appeal (Abiru JCA) unanimously held that a defendant who has been duly notified of proceedings but fails to appear to promptly challenge the jurisdiction of the court is deemed to have waived its right by submitting to the jurisdiction of the Nigerian court. Though, Muhammed v Ajingi was not an arbitration case, it demonstrates the attitude of Nigerian courts to absentee defendants.

The Court of Appeal was also wrong to have regarded the payment of the settlement sum by the plaintiff-appellants to release the vessel as waiver by submitting to the jurisdiction of the court. Such an approach does not amount to delivering pleadings or taking steps in the proceedings in the eyes of Section 5 of the ACA. Indeed, in the earlier case of Confidence Insurance Ltd v The Trustees of the Ondo State College of Education Staff Pension (1999) 2 NWLR (Pt. 591) 373, 386, the Court of Appeal (Achike JCA as he then was) unanimously held that: “effort made out of court to settle the matter in controversy between the parties” does not amount to submission. Nigerian courts should be seen to encourage out of court settlement. If the law is that efforts made out of court settlement amounts to submission, this might discourage a potential defendant from making out of court settlements, where there is the presence of a foreign arbitration clause.

Tiger (supra) properly so called was an action in damages for breach of an international arbitration clause. Since it has been argued in this case that the plaintiff-appellants did not submit to the jurisdiction of the Nigerian court, damages should have been awarded for breach of the international arbitration clause. If the Court of Appeal had adopted this approach, it would have honoured Nigerian judiciary’s approach to generally and strictly enforce the sanctity of arbitration agreements. It was obvious in this case that the plaintiff-appellants suffered loss from the arrest of its ship in breach of an international arbitration clause. It is unfortunate that the Court of Appeal did not award compensation in this case.

CONCLUSION
It remains to the seen whether Tiger (supra) will go on appeal to the Nigerian Supreme Court. If it does go on appeal, it is proposed that the Supreme Court overturns the Court of Appeal’s decision. If it does not go on appeal to the Supreme Court, it is proposed that the Nigerian Court of Appeal and Supreme Court in future holds that the failure to appear to proceedings in breach of an international arbitration to arbitrate and the payment of out of court settlement does not constitute waiver by submission to the jurisdiction of the Nigerian court.

Non lieu à renvoi

Ronald A. Brand (University of Pittsburgh School of Law) has published a paper titled Comparative Method and International Litigation on the Journal of Dispute Resolution 273 (2020).

The abstract reads:

In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more importance to the transaction planning lawyer as to the litigator, and affects my focus here for comparative study of developments both in the Hague Conference process and in national (and regional) legal systems during the negotiation of the two treaties with which I have been involved. I look not only at domestic law, but also at treaties and other international legal instruments – the comparative evolution of the law. Moreover, I look at both legal rules and legal systems, addressing the comparative evolution of the institutions that make the law. This includes a comparison of the most influential legal systems at the start of the Hague negotiations. The differences resulting from that comparison ultimately affected the focus of the negotiations and the text of the resulting legal instruments. I end with a set of four conclusions based on these observations and comparisons.

See also here.

Another day and another application for a stay on the basis of Article 30 Brussels Ia. Lopesan Touristik SA v Apollo European Principal Finance Fund III (Dollar A) L.P. & Ors [2020] EWHC 2642 (Comm) engages a Sale and Purchase Agreement (SPA) between Lopesan as seller and Spanish company Oldavia as buyer, for Lopesan’s interest in the Buenaventura hotel in Spain. The Hotel is owned by Creative Hotel Buenaventura SAU.

Oldavia is a special purpose vehicle through which Apollo, who are private equity interests, acquired the Hotel for c.€93 million. That funding commitment was reflected in the terms of an Equity Commitment Letter (ECL), under which Apollo promised Oldavia, on the terms and conditions set out in the ECL, to provide it with the funding required to complete the SPA, which obligation was expressly made enforceable by Lopesan under the Contracts (Rights of Third Parties) Act 1999.

The SPA is governed by Spanish law and contains an exclusive jurisdiction clause in favour of the Spanish courts. The ECL is governed by English law and contains an exclusive jurisdiction clause in favour of the English courts.

Completion did not take place, and there are disputes between Lopesan and Oldavia as to whether Oldavia was or is obliged to complete under the SPA.

On 12 August 2020, Lopesan commenced proceedings against Oldavia in Madrid seeking specific performance of Oldavia’s obligation to complete under the SPA. Parties agree that those proceedings will not be determined for at least 12 months. On 20 August 2020, Lopesan wrote to Apollo seeking confirmations and undertakings intended to ensure that, if the specific performance claim against Oldavia succeeded, Apollo would provide the funds to Oldavia to allow completion to occur. Apollo disputed that Oldavia was under any obligation to complete, and as a result that it was under any corresponding obligation to put Oldavia in funds to enable it to complete.

On 15 September 2020 Lopesan then issued proceedings seeking to enforce its rights as a third party beneficiary under the ECL by way of an order for specific performance of Apollo’s obligation to put Oldavia in funds. Lopesan also issued an application for a speedy trial of that action to ensure judgment was delivered before 1 January 2021: there is a potential argument that Apollo’s obligations will lapse on 1 January 2021, even if, before that date, Oldavia came under a legal obligation to complete the SPA.

Apollo seek a stay of the proceedings under A30(1) BIa.

At 47 Foxton J refers to the Privatbank /EuroEco discussion which he summarises as ‘whether actions are related for the purposes of A30 only when the actions can in fact be heard and determined together, or whether actions are related where they would be heard and determined together but for some external factor (such as exclusive jurisdiction agreements or subject-matter limits on the jurisdiction of a particular court) which prevents this.’ Effective v theoretical hearing together, in other words. He sides with Privatbank but also accepts, with reference to Privatbank, that a practical inability to achieve an outcome where both cases are heard and determined together will be a factor which weighs against granting a stay as a matter of the discretion which Article 30 grants the judge, and that “absent some strong, countervailing factor, the fact that proceedings cannot be consolidated and heard together will be a compelling reason for refusing a stay”.

Further, and with reference to The Alexandros and to Generali v Pelagic Fisheries, where the factor which prevents the two actions being heard together is an exclusive jurisdiction clause, that of itself will constitute a powerful (although not insuperable) factor against staying proceedings which have been brought in the parties’ chosen jurisdiction pending the determination of proceedings elsewhere. At 50 he holds that this is a factor even when the other proceedings have themselves not been commenced in breach of contract.

At 57 Foxton J points that neither the relatedness of the actions nor that the Spanish court is first seised, are disputed. Relatedness exists given that any issue arising in the English proceedings which concerns the issue of whether Oldavia was obliged to complete the SPA necessarily arises in Spain. He then holds that the degree of relatedness is high and that the Spanish courts have much closer proximity to the subject matter of the case, involving, as it does, issues as to the effect of Covid-19 and the Spanish government’s response to it on a Spanish hotel, and the legal effects of those and other matters on a contract governed by Spanish law. However, at 58, if the English proceedings are stayed, it will not be possible to hear and determine the claims in the English and Spanish proceedings together, given the conflicting exclusive jurisdiction clauses in the ECL and the SPA. The decision (whether on issues of law or fact) in the Spanish proceedings would not be binding in the English proceedings, although if Lopesan fails in the Spanish proceedings, that will in practice be determinative of the English proceedings. Findings of law in the Spanish proceedings will also have a strong evidential value in the English proceedings.

Nevertheless, the significance of the English jurisdiction clause and the practical impossibility to hear the claims together in the Spanish courts, make him decide at 60 ff against a stay. His judgment displays the characteristic support of the English courts and English law for party autonomy: parties have deliberately structured the transaction so that claims under the ECL would be heard in a different jurisdiction to claims under the SPA. Consider his reasoning at 61:

That choice having been made, no doubt for good commercial reasons, and the events which have transpired being a scenario which must have been squarely within the parties’ contemplation, it would take a very strong case to justify staying proceedings brought as of right here pending the outcome of proceedings in another jurisdiction. The closer proximity of the Spanish courts to the dispute, nor its status as the natural forum to determine issues of Spanish law, are not sufficient to justify a stay, both because this must have been obvious to the parties when they put this arrangement in place, and because the parties expressly agreed not to raise any objections to proceedings in England on the ground that proceedings have been brought in an inconvenient forum. I do not suggest that this last factor is determinative or that it precludes an Article 30(1) stay. There is a public, as well as a purely private, interest in avoiding irreconcilable judgments within the Brussels Recast regime. However, the factor that the parties wanted the dispute to be determined in their chosen forum regardless of whether another court might be a more convenient forum is a factor which weighs in the balance against a stay.

A relevant judgment.

Geert.

(Handbook of) European Private International Law – 2nd ed. 2016, Chapter 2, Heading 2.2.14.5. Third edition forthcoming February 2021

 

I.a. application (dismissed) for a stay under A30(1) Brussels Ia.
Foxton J holding that the proceedings in Spain are related however no risk of irreconcalibility. https://t.co/gAeqYZNeEI

— Geert Van Calster (@GAVClaw) October 8, 2020