The fourth issue of 2017 of the Dutch Journal on Private International Law, Nederlands Internationaal Privaatrecht, contains contributions on the likely response of developing countries to the Principles on Choice of Law in International Commercial Contracts 2015 developed by the Hague Conference on Private International Law, the interpretation of Article 9(3) of the Rome I Regulation by the Court of Justice of the European Union in the case Nikiforidis v. Republik Griechenland, the consequences of a ‘hard Brexit’ for the Family Law areas currently covered by EU regulations, and new developments in China’s recognition and enforcement of foreign judgments.
Matthijs ten Wolde & Kees de Visser, ‘Editorial’, p. 725-726.
Akinwumi Ogunranti, ‘The Hague Principles – a new dawn for developing countries?’, 727-746
This paper focuses on the likely response of developing countries to the Principles on Choice of Law in International Commercial Contracts 2015 (hereafter: Principles) developed by the Hague Conference on Private International Law. It makes two claims: that Article 2(4) of the Principles which permits parties to make an unrelated choice of law in international contracts, without generally protecting weaker parties, may not be favourably received by developing countries. Second, that Article 3 of the Principles on non-state law may also not be viewed favourably by developing countries because such provisions are always seen with distrust. In effect, this paper examines the likely reactions of developing countries to these pivotal provisions of the Principles. It then asks the question of whether a new dawn has arrived in private international legislations relating to choice of law or whether developing countries should be charting roads that lead to more places than just The Hague.
A.E. Oderkerk, ‘Buitenlandse voorrangsregels in de context van de Griekse crisis: geen rol voor het unierechtelijk beginsel van loyale samenwerking’, p. 747-758
In its ruling of 18 October 2016, the Court of Justice of the European Union (CJEU) answers a number of questions related to the interpretation of Article 9(3) of the Rome I Regulation, two of which confirm the current legal doctrine on this matter. Firstly, it is confirmed that Article 9 should be interpreted restrictively; no other overriding mandatory rules than those of the forum State or the State where the obligations in the agreement are (to be) fulfilled can be applied. Secondly, it is acknowledged that a national court may take into account other overriding mandatory rules as facts in so far as this is in accordance with the lex causae. In this ruling the Court departs from the doctrine with regard to the temporal scope of the Regulation, holding that the phrase ‘the conclusion of the agreement’ in Article 28 must be interpreted autonomously. The Court also clarifies under which circumstances a long-term contract concluded before 17 December 2009 may fall within the temporal scope of the Regulation. Finally, it is of interest that the Court takes the position that the principle of loyal cooperation has no influence on the (strict) interpretation of Article 9(3).
Just van der Hoeven, ‘Zachte conclusies over de betekenis van een harde Brexit voor het internationaal personen- en familierecht’, p. 759-771
This article gives an overview of the consequences of a ‘hard Brexit’ for the Family Law areas currently covered by EU regulations. It examines the applicability of various international instruments in these areas, and gives a brief answer to the question how the current EU regulations differ from these international instruments.
Yahan Wang, ‘A turning point of reciprocity in China’s recognition and enforcement of foreign judgments: a study of the Kolmar case’, p. 772-789
In the case of Kolmar Group AG v. Jiangsu Textile Co. Ltd. (the Kolmar case), a Chinese court has for the first time recognized and enforced a foreign civil judgment based on reciprocity. This article regards this case as a turning point of reciprocity in China’s recognition and enforcement of foreign judgments. Before 2016, the reliance on treaty-based and factual reciprocity led to some defects in China’s judicial practice, which could be attributed to the strict standards of reciprocity and deficient judicial interpretations. Through the Belt and Road initiative, China is seeking to improve international transactions between China and foreign countries – including some EU countries. In line with this development, the Chinese Supreme People’s Court seems to be transforming the strict criteria of reciprocity, adopting presumed reciprocity in its judicial practice. This article argues that execution of the Belt and Road initiative, establishing an efficient court reporting system and participating in international conventions are essential to China’s judicial reform.