Future work of the HCCH

By the Permanent Bureau of the Hague Conference on Private International Law (HCCH)

From 13 to 15 March 2018, Members of the HCCH gathered in The Hague for the meeting of the Council on General Affairs and Policy. The Council was attended by 171 participants, representing 63 Members, one REIO and observers from four IGOs / eight NGOs.

The Council reviewed the work of the Organisation carried out during the previous year and charted the course for future work.

It recognised the very good progress made on the Judgments Project and mandated the Permanent Bureau to continue preparations for a Fourth and final Special Commission meeting in May 2018. The Council asked the Permanent Bureau to make arrangements for the preparation of a Diplomatic Session in mid-2019.

The Council also welcomed the work of the Experts’ Group on Parentage / Surrogacy and instructed the Permanent Bureau to convene two more meetings of this group. The Experts’ Group will report to Council at its 2019 Meeting.

The Council invited the Members to provide the Permanent Bureau with comments and a list of additional issues to be addressed in the finalised Report on the Tourists and visitors Project. Following a meeting of an Experts’ Group, the finalised Report of the Consultant and the Experts’ Group’s Conclusions and Recommendations will be submitted to the Members before the end of 2018, for consideration by the Council at its 2019 Meeting.

The Draft Practical Guide to Family Agreements under the Hague Conventions will be submitted to the Council at its meeting in 2019.

Furthermore, the Council mandated its Chair to advise the Netherlands Standing Government Committee on Private International Law that it recommends the reappointment of the Secretary General for a further term of five years.

The full Conclusions & Recommendations are available in English and French.

For further information, see https://www.hcch.net/en/governance/council-on-general-affairs.

Please note that the meetings above-mentioned are open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.


Draft Withdrawal Agreement, Continued

It is not quite orthodox to follow on oneself’s post, but I decided to make it as a short answer to some emails I got since yesterday. I do not know why Article 63 has not been agreed upon, although if I had to bet I would say: too complicated a provision. There is much too much in there, in a much too synthetic form; per se this does not necessarily lead to a bad outcome , but here… it looks like, rather. Just an example: Article 63 refers sometimes to provisions, some other to Chapters, and some to complete Regulations. Does it mean that “provisions regarding jurisdiction” are just the grounds for jurisdiction, without the lis pendens rules (for instance), although they are in the same Chapter of Brussels I bis?

One may also wonder why a separate rule on the assessment of the legal force of agreements of jurisdiction or choice of court agreements concluded before the end of the transition period in civil and commercial matters (Regulation 1215/2912) and maintenance (Regulation 4/2009): does the reference to “provisions regarding jurisdiction” not cover them already? Indeed, it may just be a reminder for the sake of clarity; but taken literally it could lead to some weird conclusions, such as the Brussels I Regulation taken preference over the 2005 Hague Convention “in the United Kingdom, as well as in the Member States in situations involving the United Kingdom”, whatever these may be. Of course I do not believe this is correct.

At any rate, for me the most complicated issue lies with the Draft Withdrawal Agreement provisions regarding time. As I already explained yesterday, according to Article 168 “Parts Two and Three, with the exception of Articles 17a, 30(1), 40, and 92(1), as well as Title I of Part Six and Articles 162, 163 and 164, shall apply as from the end of the transition period”, fixed for December 31st, 2020 (Article 121). In the meantime, ex Article 122, Union Law applies, in its entirety (for no exception is made affecting Title VI of Part Three). What are the consequences? Following an email exchange with Prof. Heredia, Universidad Autónoma de Madrid, let’s imagine the case of independent territorial insolvency proceedings – Article 3.2 Regulation 2015/848: if opened before December 31st, 2020, they shall be subject to the Insolvency Regulation. If main proceedings are opened before that date as well, the territorial independent proceedings shall become secondary insolvency proceedings – Article 3.4 Insolvency Regulation. If the main proceedings happen to be opened on January 2nd, 2021, they shall not – Article 63.4 c) combined with Article 168 Draft Withdrawal Agreement (I am still discussing Articles 122 and 168 with Prof. Heredia).

Another not so easy task is to explain Article 63.1 in the light of Articles 122 and 168. The assessment of jurisdiction for a contractual claim filed before the end of the transition period will be made according to Union Law, if jurisdiction is contested or examined ex officio before December 31st, 2020; and according  to the provisions regarding jurisdiction of Regulation 1215/2012 (or the applicable one, depending on the subject matter, see Article 63.1 b, c, d) Draft Withdrawal Agreement, if it -the assessment- happens later. Here my question would be, what situations does the author of the Draft have in mind? Does Article 63.1 set up a kind of perpetuatio iurisdictionis rule, so as to ensure that the same rules will apply when jurisdiction is contested at the first instance before the end of the transition period, and on appeal afterwards (or even only afterwards, where it is possible)? Or is it a rule to be applied at the stage of recognition and enforcement where the application therefor is presented after the end of the transition period (but wouldn’t this fall under the scope of Article 63.3)?

That is all for now – was not a short answer, after all, and certainly not the end of it.

(Addenda:  as for the UK, on 13 July 2017, the Government introduced the Withdrawal Bill to the House of Commons. On 17 January 2018, the Bill was given a Third Reading and passed through the House of Commons. Full text of the Bill as introduced and further versions of the Bill as it is reprinted to incorporate amendments (proposals for change) made during its passage through Parliament are available here.  The Bill aims at converting existing direct EU law, including EU regulations and directly effective decisions, as it applies in the UK at the date of exit, into domestic law.)


As we have already announced on this blog, the Albert-Ludwigs-University of Freiburg (Germany) will host a workshop on Friday, 13 April 2018, in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE). An updated flyer with further information has just been released here. The project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims and the Account Preservation Order Regulations. Confirmed speakers include Professors Gerald Mäsch (University of Münster), Ivo Bach (University of Göttingen) and Stefan Huber (University of Tübingen), as well as Dr. Denise Wiedemann (Max-Planck-Institute, Hamburg) and Dr. Bernhard Ulrici (University of Leipzig). Their presentations will be commented on by distinguished practitioners, namely Dr. Max Peiffer (Munich), Prof. Dr. Andreas Baumert (Achern), Dr. Knut Messer (judge at the Central German Court for European Orders for Payment, Berlin), Dr. Bartosz Sujecki (Amsterdam), Dr. David Einhaus (Freiburg) and Dr. Nils H. Harbeck (Hamburg). The language of the workshop will be German. Participation is free of charge, but requires a registration.


Today, the European Union and the United Kingdom have reached an agreement on the transition period for Brexit: from March 29 of next year, date of disconnection, until December 31, 2020. The news are of course available in the press, and the Draft Withdrawal Agreement of 19 March 2018 has already been published… coloured: In green, the text is agreed at negotiators’ level and will only be subject to technical legal revisions in the coming weeks. In yellow, the text is agreed on the policy objective but drafting changes or clarifications are still required. In white, the text corresponds to text proposed by the Union on which discussions are ongoing as no agreement has yet been found. For ongoing judicial cooperation in civil and commercial matters (Title VI of Part III, to be applied from December 31, 2020: see Art. 168), this actually means that subject to “technical legal revisions”, the following has been accepted:

  • Art. 62: The EU and the UK are in accordance as to the application by the latter (no need to mention the MS for obvious reasons) of the Rome I and Rome II regulations to contracts concluded before the end of the transition period, and in respect of events giving rise to damage, and which occurred before the end of the transition period.
  • Art. 64: There is also agreement as to the handling of ongoing cooperation procedures, whereby requests for service abroad, the taking of evidence and in the frame of the European Judicial Network are meant.
  • Art. 65: There is agreement as well as to the way Council Directive 2003/8/EC (legal aid), Directive 2008/52/EC on certain aspects of mediation in civil and commercial matter, and Council Directive 2004/80/EC (relating to compensation to crime victims) will apply after the transition period.

Conversely, no agreement has been found regarding Art. 63, i.e., how to deal with jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities (but whatever is agreed will also be valid in respect of the provisions of Regulation (EU) No 1215/2012 as applicable by virtue of the agreement between the European Community and the Kingdom of Denmark, see Art. 65.2, in green).

In the light of this it may  be not really worth to start the analysis of the Title as a whole: Art. 63 happens to be the less clear provision. Some puzzling expressions such as “as well as in the Member States in situations involving the United Kingdom” are common to approved texts, but may change in the course of the technical legal revision. So, let’s wait and see.

NoA: Another relevant provision agreed upon – in green-  is Art. 124, Specific arrangements relating to the Union’s external action. Title X of Part III, on pending cases and new cases before the CJEU, remains in white.

And: On the Draft of February 28, 2018 see P. Franzina’s entry here. The Draft was transmitted to the Council (Article 50) and the Brexit Steering Group of the European Parliament; the resulting text was sent to the UK  and made public on March 15.





The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features three articles on private international law. The English abstracts, kindly provided by the journal’s editor-in-chief, Prof. Dr. Dörte Poelzig (M.jur., Oxon), University of Leipzig, read as follows:

Wie kann der Zugang zu ausländischem Recht in Zivilverfahren verbessert werden?
Michael Stürner

ZVglRWiss 117 (2018) 1-23

[How can we improve the access to foreign law in civil proceedings?]

In civil disputes quite frequently foreign law applies. Under German law, both the process of establishment and the application of foreign law rules lie within the responsibility of the court. However, there is only little solid knowledge about the practical problems in the process of establishing the content of foreign law. The existing legal instruments to establish foreign law are partly deficient. Above all there is a lack of readily available information channels. On an empirical basis the present paper identifies possible solutions.


Welches Internationale Privatrecht wollen wir im 21. Jahrhundert?
Federico F. Garau Sobrino

ZVglRWiss 117 (2018) 24-49

[What kind of Private International Law do we want in the 21st century?]

A substantial part of the current European and conventional Private International Law [PIL] rules based on EU law or International treaties is characterized by abstruse wording, what is caused by a controversial, far-from-reality legislative technique. Many of these rules are unintelligible to the average legal mind. We are confronted with highly specialized PIL norms, created by and for specialists, but alien to everyday life and inaccessible to law practitioners, who often do not understand them nor know how to apply them. Private International Law does no longer address the needs of society; the question whether it provides a solution to legal cross-border problems, or whether it has become “the problem” itself, is a legitimate one.


Das internationale Datenprivatrecht: Baustein des Wirtschaftskollisionsrechts des 21. Jahrhunderts
–Das IPR der Haftung für Verstöße gegen die EU-Datenschutzgrundverordnung–
Jan D. Lüttringhaus

ZVglRWiss 117 (2018) 50-82

[Private International Law of Data Protection: A Crucial Building Block of International Business Law in the 21st Century]

“Data is just like crude [oil]. It’s valuable, but if unrefined it cannot really be used”. As of May 18, 2018, the General Data Protection Regulation (EU) 2016/679 (GDPR) provides a European framework that regulates the refining of data as the “new oil”. In the digital age, data may not only be transferred across borders in a split second but, more often than not, data processing already takes place abroad. Against this backdrop, the GDPR reaches far beyond the borders of the EU Member States. This extraterritorial dimension raises a multitude of questions relating to both international data protection law and private international law. Conflict-of-law issues equally arise in intra-EU cases: For example, illegal data processing gives rise to a claim for damages under the GDPR. At the same time, the Regulation does not contain any rules on, for instance, fault, the calculation of damages or the limitation period. Thus, despite the autonomous nature of the claim under the GDPR, the applicable national law must still be determined in cross-border scenarios.

Moreover, standard contract terms may also lie in the focus of both conflict of laws and data protection law, e.g., when determining whether data processing is necessary for the performance of a contract or whether the data subjects’ pre-formulated consent is valid. Generally speaking, various preliminary questions may arise in the areas of conflict of laws and international administrative law given that the GDPR provides only an incomplete framework that often relies on and has to be complemented by national law.

The very recent ECJ Schrems-case illustrates that data protection litigation is often international by nature. In light of this, the GDPR also contains rules on jurisdiction which have to be reconciled with the Brussels Ibis Regulation. Finally, as the GDPR paves the way for national instruments on collective redress in data protection cases, the international dimension of these actions must equally be examined.


Business and Human Rights (Empresas y Derechos Humanos)

A new book co-edited by Prof. F.J. Zamora Cabot and M.C. Marullo has just been published in the field of human rights and business by the Italian publisher house Editoriale Scientifica, as part of the collection  “La ricerca del diritto nella comunità internazionale”. The diversity of the approaches of the contributions – constitutional law, International Public Law, investment arbitration, Procedural Law, Private International Law-, makes it worth for specialists in the different areas.  The index and Foreword can be looked up here.


A saga that has kept Malaysians engaged for years has finally founds its conclusion. A woman, named (rather improbably, at least for European observers) Indira Gandhi, was fighting with her ex husband over custody. The ex-husband had converted to Islam and had extended the conversion to their three children, with the consequence that the Syariah courts gave him sole custody. What followed was a whole series of court decisions by civil courts on the one hand and Syariah courts on the other, focusing mainly on the jurisdictional question which set of courts gets to decide matters of religious status and which law—Islamic law or civil law—determines the question. The Malaysian Federal Court now quashed the conversion as regards the children, thereby claiming, at least for children, a priority of the Constitution and the jurisdiction of civil courts.

Although the case is mostly discussed in the context of religious freedom and (civil) judicial review, it also raises core issues of conflict of laws. Malaysia is a country with an interpersonal legal system, which leaves jurisdiction over certain matters of Islamic law to the Syariah courts. Indira Gandhi’s ex-husband here used this system, effectively, for a form of forum shopping: converting to Islam enabled him, ostentatiously, to opt into a system more favorable to his own situation. The background, from the perspective of conflict of laws, is that the decisive connecting factor, namely a person’s religion, is open to manipulation in a way in which other connecting factors are not. According to Article 121 of the Federal Constitution, the civil courts have no jurisdiction over matters of the Syariah Courts. On the other hand, Art. 12(4) of the Constitution provides that a minor’s religion is determined by his parent or guardian, a provision the Syariah Courts neglected here. Letting the Constitution trump leads to a desirable result in this case, but it does not, by itself, resolve the underlying conflict-of-laws issues. Here, as in comparable situations, the doctrinal problem appears to lie first in the issue of unilateral determination of personal status and second in a conflation of issues of jurisdiction and applicable law.

The case is Indira Gandhi v. Pengarah Jabatan Agama Islam Perak u.a., [2018] 1 LNS 86 (Federal Court of Malaysia); it is available here. A short summary is here,  another one, including a useful timeline of events, is here. For a very helpful analysis of the case and its background and implications by Jaclyn L. Neo, focusing especially on questions of jurisdiction and judicial review, see here.  A longer discussion by Dian A.H. Shah focuses also on two other cases and more broadly on the issues of religious freedom: Dian A.H. Shah, Religion, conversions, and custody: battles in the Malaysian appellate courts, in  Law and Society in Malaysia: Pluralism, Religion and Ethnicity (Andrew Harding/Dian A.H. Shah eds., 2018). The affair is also discussed in Yvonne Tew‘s article ‘Stealth Theocracy,’ which is forthcoming with the Virginia Journal of International Law.

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Cuadernos de Derecho Transnacional, vol. 10

Cuadernos de Derecho Transnacional, vol. 10, nr. 1, has just been released. Cuadernos publishes research papers on private international law, uniform law and comparative private law twice a year (March and October). The journal accepts manuscripts in all main European languages (to submit a paper click here).

The complete number as well as each single contribution can be accessed and downloaded  for free.


On 11 May 2018 the Department of Italian and Supranational Public Law of the University of Milan will host a conference  on Punitive Damages and European Private International Law: State of the Art and Future Developments, in cooperation with the Interest Group on Private International law of the Italian Society of International Law and with the Rivista di diritto internazionale privato e processuale.

The conference takes inspiration from a recent revirement of the Italian Corte di Cassazione (Cass., S.U., 5 July 2017, No 16601) and aims at analysing the private international issues involved by the recognition of  punitive damages within European legal orders.

Speakers and discussants include:

  • Giulio Ponzanelli (Università cattolica del Sacro Cuore)
  • Lotte Meurkens (Maastricht University)
  • Pietro Franzina (University of Ferrara)
  • Chiara Tuo (University of Genova)
  • Amélie Skierka (Wilmer Hale LLP)
  • Antonio Leandro (University of Bari)
  • Astrid Stadler (Universität Konstanz)
  • Olivera Boskovic (Université Paris Descartes)
  • Alex Mills (University College London)
  • Giacomo Biagioni (University of Cagliari)
  • Cedric Vanleenhove (Ghent University)
  • Wolfgang Wurmnest (Universität Augsburg)
  • Ornella Feraci (University of Siena)

The complete programme is available here.

Admission is free. Participants are kindly asked to register by 4 May 2018 here.

For information please contact conference.pil.milan@gmail.com.




A brief update on our previous post regarding the approval of the establishment of the Netherlands Commercial Court by the House of Representatives (Tweede Kamer). The bill is now scheduled for rubber-stamping by the Senate (Eerste Kamer) on 27 March 2018. This makes the kick-off date of 1 July 2018 realistic.

We believe that this court will strengthen international commercial complex litigation in the Netherlands, and it offers business litigants an alternative to arbitration and high quality commercial courts in other countries. See also (for Dutch readers) Eddy Bauw and Xandra Kramer, ‘Commercial Court’ is uitkomst voor complexe internationale handelszaken, Het Financieele Dagblad, 11 October 2017.

More news will follow soon.



Our previous post:

This one is next: the Netherlands Commercial Court!

(PhD candidate, postdoc researcher and PI ERC project Building EU Civil Justice)

Following up on our previous post, asking which international commercial court would be established next, the adoption of the proposal for the Netherlands Commercial Court by the House of Representatives (Tweede Kamer) today answers the question. It will still have to pass the Senate (Eerste Kamer), but this should only be a matter of time. The Netherlands Commercial Court (NCC) is expected to open its doors on 1 July 2018 or shortly after.

The NCC is a specialized court established to meet the growing need for efficient dispute resolution in cross-border civil and commercial cases. This court is established as a special chamber of the Amsterdam District Court and of the Amsterdam Court of Appeal. Key features are that proceedings will take place in the English language, and before a panel of judges selected for their wide expertise in international commercial litigation and their English language skills.

To accommodate the demand for efficient court proceedings in these cases a special set of rules of procedure has been developed. The draft Rules of Procedure NCC can be consulted here in English and in Dutch. It goes without saying that the court is equipped with the necessary court technology.

The Netherlands prides itself on having one of the most efficient court systems in the world, as is also indicated in the Rule of Law Index – in the 2017-2018 Report it was ranked first in Civil Justice, and 5th in overall performance. The establishment of the NCC should also be understood from this perspective. According to the website of the Dutch judiciary, the NCC distinguishes itself by its pragmatic approach and active case management, allowing it to handle complex cases within short timeframes, and on the basis of fixed fees.