HCCH Monthly Update: October 2021

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Conventions & Instruments

On 5 October 2021, Indonesia deposited its instrument of accession to the HCCH 1961 Apostille Convention, in a ceremony held during the meeting of the Special Commission on the practical operation of the Apostille Convention. With the accession of Indonesia, the Apostille Convention now has 121 Contracting Parties. It will enter into force for Indonesia on 4 June 2022. With this accession, Indonesia becomes the 156th HCCH Connected Party. More information is available here.

Meetings & Events

On 4 October 2021, the HCCH hosted the 12th International Forum on the electronic Apostille programme (e-APP). Throughout the day, experts from around the globe shared their experiences with the development and implementation of the e-APP, its role in the context of e-Government initiatives, and the future of document authentication. More information is available here.

From 5 to 8 October 2021, the Fifth Meeting of the Special Commission on the practical operation of the Apostille Convention was held via videoconference. The meeting coincided with the 60th anniversary of the Apostille Convention. The Special Commission considered the scope and operation of the Convention, including the electronic Apostille Programme (e-APP). Delegates discussed matters relating to the COVID?19 pandemic, plans for the second edition of the Apostille Handbook, and the outcomes of the Experts Group on the e-APP and New Technologies. More information is available here.

On 7 October 2021, the HCCH hosted a virtual seminar on the HCCH 1965 Service Convention and the HCCH 1970 Evidence Convention for the Supreme Court of Ukraine. This will be the first of a series of seminars, organised through the generous support of the EU Project Pravo-Justice, aimed at facilitating the proper and effective implementation of the HCCH Conventions and instruments in Ukraine. More information is available here.

On 8 October 2021, the HCCH hosted a virtual seminar on the negotiation and adoption of the HCCH 2019 Judgments Convention. More information on the 2019 Judgments Convention is available here.

From 11 to 15 October 2021, the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation met for the first time, via videoconference. The Group commenced work on the development of draft provisions on parallel proceedings, to further inform policy considerations and decisions in relation to the scope and type of any new instrument. More information is available here.

On 19 October 2021, the HCCH hosted the HCCH|Approach Global Event. Held online in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention, the event featured a series of lectures and a live panel discussion by global experts. The winners of the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition were announced during the event. More information is available here.

On 28 October 2021, the HCCH Regional Office for Latin America and the Caribbean hosted an online event for Central Authorities of the HCCH 1996 Child Protection Convention from the region, as part of the HCCH|Approach Initiative.

Other

Save the Date: HCCH a|Bridged Edition 2021 will be held online on Wednesday, 1 December 2021. This year’s edition will discuss contemporary issues relating to the application of the?HCCH 2005 Choice of Court Convention,?including the establishment of?international commercial courts around the globe and how it enables party autonomy. Registration will open on Monday, 1 November. More information is available here.

Vacancy: Applications are now open for the position of Library Assistant (8 to 16 hours per week). The deadline for the submission of applications is this Sunday, 31 October 2021 (12:00 a.m. CET). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Which law governs disputes involving corporations?

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Guest post by Dr Sagi Peari, Senior Lecturer/Associate Professor at the University of Western Australia

When it comes to the question of the applicable law that governs disputes involving corporations: one must make a sharp distinction between two principal matters: (1) matters relating to external interactions of corporation (such as disputes between a corporation and other external actors, such as other business entities or individuals); and (2) matters relating to the internal interactions of a corporation (such as disputes within the corporate structure or  litigation between a corporation and its directors). A claim of a corporation against another in relation to a breach of contract between the two is an example of a dispute related to external affairs of a corporation. A claim of a corporate shareholder against a director in the firm is an example of a dispute concerning corporate internal affairs.

The division between external and internal affairs of corporation is an important one for the question of applicable law. A review of the case law suggests a strong tendency of the courts to apply the same choice-of-law rules applicable to private individuals. Thus, the general rule of the place of tort applies equally to corporations and private individuals.[1] In similar, the advancing principle of party autonomy[2] does not distinguish between corporations and other litigants on its operational level. The very fact that litigation involves a corporation does not seem prima facie to affect the identity of the applicable law rules.

The situation becomes dramatically different in cases concerning the internal affairs of a corporation. These are the situations involving claims between the corporate actors (i.e. executives, shareholders and directors) and claims between those actors and the corporation itself. Here, different considerations seem to apply. First, internal affairs of corporations tend to be excluded by the various international statutes aiming to harmonise the applicable law rules.[3] Second, there is a clear tendency of the rules to adhere to a single connecting factor (such as the place of incorporation or corporate headquarters with some further constitutional implications[4]) to determine the question of the applicable law. Thirdly, there is a clear tendency of rejecting the party autonomy principle in this sphere according to which  corporate actors are not free to determine the applicable law to govern their dispute.[5]

One of the neglected frameworks for addressing the external/internal affairs distinction relates to the classical corporate law theory on the nature of corporations and the relationships within the corporate structure. Thus, the classical vision of corporations perceives a corporation as an artificial entity that places the state at the very centre of the corporate creation, existence and activity.[6] Another, perhaps contradictory vision, challenges the artificial nature of corporation. It views corporation as an independent moral actor what dissects its existence from the originating act of incorporation.[7] Lastly, the third vision of corporation evaluates the corporate existence from the internal point of view by focusing on the bundle/nexus of contracts within the corporate structure.[8]

One could argue that an exercise of tackling the various theories of corporations could provide an invaluable tool for a better understanding of the internal/external division and subsequently shed light on the question of applicable law rules. Thus, for example, the traditional insistence of choice-of-law to equalise between corporations and private individuals seems to correlate with the ‘personality’ vision of corporation. On a related note, the insistence of the choice-of-law doctrine on a single connecting factor that denies party autonomy seems to be at odds with the nexus-contract theory and aligns with the traditional artificial entity theory of the corporation.

From this perspective, placing this question within the conceptual framework of corporate law could enable us to grasp the paradigmatic nature of the division and contemplate on whether the various suggestions for reform in the area of choice-of-law rules applicable to corporations do not just correlate with the underlying concerns and rationales of private international law/conflict of laws, but also those of corporate law.

I have tackled these (and other) matters in my recent article published in the 45 (3) Delaware Journal of Corporate Law 469-530 (2021) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3905751.

 

[1] See eg Regulation 864/2007, on the Law Applicable to Non-Contractual Obligations (Rome II), 2007 O.J. (L 199) 40 (EC), art 4 (1).

[2] See eg Hague Principles on Choice of Law in International Commercial Contracts, 2015.

[3] See eg Regulation 864/2007, on the Law Applicable to Non-Contractual Obligations (Rome II), 2007 O.J. (L 199) 40 (EC), art 1 (2) (f).

[4] See eg Case C-212/97, Centros Ltd. v. Erhvervs-og Selskabsstyrelsen, 1999 E.C.R. I-1459, 2 C.M.L.R. 551 (1999).

[5] See eg Hague Principles, Commentaries, 1.27-1.29.

[6] See eg Dartmauth College v Woodward 17 U.S. 518, 636 (1819)

[7] See eg Peter A French, ‘Responsibility and the Moral Role of Corporate Entities’, in Business as Humanity (Thomas J Donaldson and RE Freeman eds, 1994) 90.

[8] Of course, the distinction between the above-mentioned three theories is not sharp and variations and overlaps have been suggested over the years in the corporate law literature.

 

Is there a European Union private international law system?” in Lyon, on November 17, 18 and 19, 2021

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The Research Center on Private International Law of the University Jean Moulin Lyon III (EDIEC – EA 4185) is organizing a 3-day conference (dir. sc. Ludovic Pailler et Cyril Nourissat). The ambitious program proposed by the organizers does not only aim to take stock of a vicennial construction of the law of judicial cooperation in civil matters. It should also allow the speakers to assess whether this field of Union law is merely a pile of autonomous texts (at most likely to constitute a few large blocks – family, obligations, etc.) or whether, beyond that, a comprehensive work is taking shape, a true “system” of private international law, in particular thanks to the many judgments handed down by the Court of Justice of the European Union. This event will also be an opportunity to question the necessity of a system of private international law in order to constitute the area of civil justice called for by the European Commission.

In order to take up this major scientific challenge, the colloquium brings together eminent European authors, specialists in Private international law and Union law. Their analysis will be usefully completed by a comparative approach from points of view from outside the Union (China, Maghreb, USA) and by the intervention of practitioners (lawyers, bailiffs, notaries), better able to evaluate the usefulness of a system for their daily work.

Call for Papers and Panels: “Identities on the move – Documents cross borders” Final Conference

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by Paul Patreider

The European Project “DXB – Identities on the move – Documents cross borders” aims at facilitating the dissemination and implementation of Regulation (EU) 2016/1191 in the everyday practice of several EU Member States, improve the knowledge of the links between circulation of public documents, fundamental rights and freedom of movement, ensure a sound implementation of the Regulation for “hard cases” and raise awareness among registrars and legal practitioners. The partnership is supported by a consortium of academic institutions and associations of registrars. More information on the Project and its partners on the official website.

DxB’s Final Conference takes place on 23–24 June 2022 at the premises of A.N.U.S.C.A.’s Academy in Castel San Pietro Terme, Bologna (Italy). The conference will offer a unique opportunity to take stock of the implementation status of Regulation (EU) 2016/1191. The event will also launch the Commentary and the EU-wide comparative survey placing the Regulation in the context of daily national practice.

The Conference will be a truly international event, gathering scholars, registrars, public administrators, political scientists, judges, PhD students and practitioners from all over Europe. Translation services are offered in English, Italian and German. To ensure wide participation as well as the variety of topics and viewpoints, we are pleased to announce a Call for Papers & Panels.

 

CONFERENCE TOPICS

Regulation (EU) 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents has so far gone largely unnoticed in scholarly debates and practitioners’ discussions. As issues related to the circulation and mutual recognition of authentic instruments in civil status and criminal matters are becoming more and more pressing, the Regulation represents a great opportunity to strengthen the principles and values of the European Union.

Given the strict connection between the scientific and practical dimension of Regulation 2016/1191, authors are invited to examine how this act is currently implemented in the context of national civil status systems and fundamental rights. They should explore the potential positive impact on the freedom of movement of European citizens and on the enjoyment of their fundamental rights as well as focus on critical aspects and deficiencies of the current legal framework.

We encourage applicants to submit proposals for papers and panels related to the Regulation and its context. Possible topics include:

  • The creation of a common European civil status framework;
  • The notion of “public document” under the Regulation and similar instruments (e.g. formal and substantial requirements) and under domestic law;
  • The circulation of criminal records;
  • Problems arising from the lack of standardized definitions shared by all Member States (e.g. “crime”, “sex”, “intended parent”, “intersex” );
  • The impact of the Regulation on the effective exercise of the freedom of movement;
  • Connections between EU citizenship, national citizenship status, and circulation of public documents;
  • Case-law of the Court of Justice influencing the interpretation and implementation of the Regulation, with special regard to the Charter of Fundamental Rights and the ECHR;
  • Exercise of electoral rights and the circulation of public documents under Article 2.2. of the Regulation;
  • Analysis of “hard cases” when applying the Regulation (e.g. marriages celebrated by religious authorities as third-country public documents etc.);
  • The Regulation in comparison to the ICCS Conventions and other relevant international conventions (e.g. the Hague Apostille Convention (1961));
  • E-Justice Portal tools (e.g. the multilingual form-filling system) and the efficiency of the Internal Market Information System (IMI) in the event of doubts as to the veracity of the documents, or the authenticity of the authority that signed them;
  • The digitalization of documents and their circulation; how to ensure the authenticity of digital documents (both native digital size or digital copies of a paper original); forms of electronic signature or seals, with special regard to electronic signatures governed by the eIDAS Regulation and country-specific standards;
  • Extension of the scope of the Regulation to public documents relating to, among others, the legal status and representation of a company or other undertakings, diplomas, certificates and other evidence of formal qualifications, officially recognised disabilities, etc. (see article 23 of the Regulation);
  • Critical issues related to multilingual standard forms (regional/local linguistic minorities; public documents for which multilingual standard forms are not yet established by the Regulation etc.).

 

WHO SHOULD PARTICIPATE

Participation is not restricted to lawyers or to established scholars. We welcome registrars, public administrators, professionals, practitioners, doctoral students. We welcome proposals that offer multi-disciplinary perspectives from various areas of law (including European, civil, administrative, comparative, international, criminal, and labour law), as well as from scholars in the humanities and the social sciences (e.g. history, economics, political science, sociology) with an interest in the Conference’s themes. We also welcome submissions from both senior and junior scholars (including doctoral students) as well as interested practitioners.

 

PAPER AND PANEL SUBMISSIONS

  • Submit your PAPER proposal with an abstract of a maximum of 500 words and 5 keywords. The abstract must also contain Title, Name, Affiliation (e.g. university, institution, professional association), Country and E-mail address.
  • Submit your PANEL proposal with an abstract of a maximum of 800 words and 5 keywords. We welcome a state-of-the art symposium or a round-table providing on key issues. Fully formed panel proposals should include at least three and no more than five presentations by scholars or practitioners who have agreed in advance to participate. Panel proposals should also identify one panel chair/moderator. Include: title of the panel, names of speakers and of the chair/moderator and their affiliation (e.g. university, institution, professional association), title of each presentation (if applicable), e-mail address of panel participants, language(s) to be used.

We encourage submissions in English. However, as part of the vision of a truly European conference, paper and panel proposals will also be accepted in Italian and German.

Selected paper authors will receive further information on the publication of the proceedings.

Submission templates for paper & panel proposal are available on the DXB website.

 

HOW AND WHEN TO SUBMIT

Send proposals to: info@identitiesonthemove.eu. Indicate in the e-mail subject line: “Conference call – name of the (lead) author (or moderator) – Title of the paper or panel proposal”.

The deadline for submitting the paper or panel abstract proposal is 22 December 2021.

Applicants will be informed about the outcome of the abstract selection process no later than 15 January 2022. If successfully selected, full papers must be submitted by 15 April 2022.

 

PROGRAMME AND REGISTRATION

The draft of the Conference Programme will be published on 1st March 2022. The final Conference Programme with all panel sessions will become available on 25 April 2022.

Registration for the Conference opens on the DXB website on 15 January and closes on 20 May 2022.

The event will be held in person, in compliance with the current health safety regulations, and will also be broadcast online via live streaming with free access.

Onsite participants will need a Covid-19 digital certificate (Green Pass), or equivalent certificate recognized under Italian law, if still so required by the Authorities at the time of the conference.

N.B. All speakers and moderators, including those invited under the call, are required to attend the event in person.

Registration fee: it includes conference materials, shuttle service (see website for details), tea/coffee and lunch refreshments as well as the certificate of attendance.

Ordinary fee: 80 Euros

Reduced student fee (including Ph.D. students): 40 Euros

Check the Project website for updates.

This project was funded by the European Union’s Justice Programme (2014–2020). Project number: 101007502. The content of this Call represents the views of the partners only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

Mag. Paul Patreider, Institut für Italienisches Recht, Fachbereich Privatrecht, Universität Innsbruck

Out now: Liber Amicorum Monika Pauknerová

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On October 18, 2021 Professor Monika Pauknerová, professor for private international law and international trade law at Charles University in Prague, Czech Republic, celebrated a significant jubilee. Colleagues and friends from many countries contributed to a liber amicorum to her honour:

Magdalena Pfeiffer, Jan Brodec, Petr Bríza and Marta Zavadilová (eds.). Liber Amicorum Monika Pauknerová. Praha: Wolters Kluwer ?R, 2021, 552 p. ISBN 978-80-7676-186-5.  The publication contains 47 contributions in English, Czech and Slovak, most of them on private international law.

 

 

TABLE OF CONTENT

Nadia de Araujo and Marcelo De Nardi
International Jurisdiction in Civil or Commercial Matters: HCCH´s New Challenge

Jürgen Basedow
International Transport Conventions and the European Union

Paul Beaumont and Jayne Holliday
Habitual Residence in Child Abduction Cases: The Hybrid Approach Is Now the Norm bur How Much Weight Should Be Given to Parental Intention?

Alexander J. Belohlávek
Conflicting Interpretations of International Treaties

Karel Beran
Cím se liší „právní entita“ od právnické osoby (úvaha nad „jinou než fyzickou
osobou“ podle § 30 odst. 1 z. m. p. s.)

Michael Bogdan
Article 36 of the EU Insolvency Regulation and the Treatment of General
Priority Rights

Jan Brodec
Vliv lex loci arbitri na prubeh mezinárodní obchodní arbitráže

Petr Bríza
Determination of the Law Applicable to a Share Transfer Agreement: Are All
Doubts Dispelled after the TVP Case?

Giuditta Cordero-Moss
Private International Law in Arbitration

Elizabeth B Crawford and Janeen M Carruthers
The Incurious Curia

Stanislava Cerná
Stát jako ovládající osoba

Lucie Dolanská Bányaiová
Jak moc musí být cizí rozsudek vykonatelný?

Katerina Eichlerová
EMCA – inspirace (nejen) pri vymezení požadavk? na oznacení pobocky

Richard Fentiman
Foreign Law as Local Law: a Case of Mistaken Identity?

Zuzana Fišerová
Zamyšlení nad kolizní úpravou pro rozvod manželství s mezinárodním prvkem
aneb nastal cas, aby CR pristoupila k narízení ?ím III?

Cristina González Beilfuss
Prorogation of Jurisdiction in Parental Responsibility Matters under Regulation
(EU) No. 2019/1111

Trevor Hartley
The Concept of a Consumer under Brussels I: the Petruchová Case

Elena Júdová
Špeciálne režimy v európskom medzinárodnom práve súkromnom

Zdenek Kapitán
Mezinárodní pravomoc ceských soudu ve vecech péce o deti založená na
státním obcanství

Catherine Kessedjian
Mediation for Disputes in Investment Matters

Zdenek Kühn
Vztah ceské Ústavy k mezinárodnímu právu

Ivana Kunda
Overriding Mandatory Provisions before the CJEU: Takaways or Getaways?

Tuula Linna
Sustainability and Insolvency Proceedings

Alena Macková a Filip Crncevic
Systém mimosoudního rešení sporu spotrebitel? v CR perspektivou ADR

Peter Mankowski
Presumptions, Escape Clauses and Protective Regimes under the Rome
I Regulation

Milan Müller
Mezinárodní postoupení pohledávek a jeho úcinky na tretí strany ve svetle
pripravované nové evropské právní úpravy

Hans Ulrich Jessurun d’Oliveira
“Latent” Citizens. What Do They Tell Us about the Concept of Citizenship?

Jan Ondrej
Smlouvy o mezinárodní preprave se zamerením na Úmluvu o prepravní
smlouve v mezinárodní silnicní nákladní doprav? a její provádení v právu CR

Daniel Patek
Úcinky (nekalé) souteže

Marta Pertegás Sender
Cross-Border Liability Cases in the European Union: No Good Match with the
Special Jurisdiction Rules of the Brussels I Regulation?

Magdalena Pfeiffer
The Cinderella Treatment of Foreign Arbitral Awards in the Czech
Enforcement Procedure

Fausto Pocar
Brief Remarks on the Relationship between the Hague Judgments and Choice
of Court Conventions

Helena Prášková
Konsenzuální a smírná rešení rozporu ve verejné správe

Ilaria Pretelli
Three Patterns, One Law: Plea for a Reinterpretation of The Hague Child
Abduction Convention To Protect Children from Exposure to Sexism,
Misogyny and Violence Against Women

Elena Rodríguez Pineau
Parallel Litigation in Proceedings Relating to Data Protection

Nadežda Rozehnalová
Cesta k soucasnému uchopení imperativních predpis?

Kvetoslav Ružicka
Náklady stran v rozhodcím rízení

Pavel Simon
Potíže spojené s ur?ením místn? p?íslušného soudu ve sporech s mezinárodním
prvkem aneb o zbyte?nosti § 11 odst. 3 o. s. ?.

Michal Skrejpek
Commercium inter gentes

Josef Staša
Cel?eprávní procesní mix po cesku

Pavel Svoboda
Trnitá cesta ke kodexu unijního správního práva procesního

Pavel Šturma
Pojem due diligence v mezinárodním investicním právu

Zbynek Švarc
Odpovednost dopravce za škodu v mezinárodní silnicní preprave zboží

Michal Tomášek
Nejpríznivejší sudište japonských šógunu

Aukje A.H. van Hoek
The Declaratory Judgment—between Remedy and Procedural Technique

Spyridon Vrellis
Family Reunification in Greek Immigration Law

Marta Zavadilová
Kulhající manželství osob stejného pohlaví

 

For further information see here.

Forum Selection Clauses, Afghanistan, and the United States

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One Afghanistan-based company sues another in commercial court in Afghanistan. The plaintiff wins at trial. The Afghanistan Supreme Court reverses. It orders the parties to resolve their dispute in the United States. The plaintiff files suit in the United States. Chaos ensues.

This may sound like an unlikely scenario. It is, however, a concise description of the facts presented in Nawai Wardak Transportation Co. v. RMA Grp. Afghanistan Ltd, No. 350393 (Mich. Ct. App. 2021). This case is noteworthy for a number of reasons. It offers insights into best drafting practices for choice-of-court clauses. It illustrates how U.S. courts decide whether these clauses should be enforced. And it suggests that the Afghanistan Supreme Court takes the principle of party autonomy pretty seriously.

In July 2012, the United States Agency for International Development (“USAID”) contracted with Aircraft Charter Solutions (“ACS”) to perform aircraft flight operations out of Kabul International Airport in Afghanistan. ACS entered into a contract with RMA Afghanistan (“RMA”), an Afghanistan-based company, to supply fuel to locations throughout Afghanistan. RMA, in turn, entered into a contract with Nawai Wardak Transportation Company (“NWTC”), another Afghanistan-based company, to supply fuel in support of the contract between USAID and ACS. The contract between RMA and NWTC contained the following provision:

The parties irrevocably agree that the courts of the United States of America shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Roughly a year after the RMA-NWTC contract was signed, a dispute arose. NWTC demanded payment. RMA refused. NWTC brought a suit against RMA in commercial court in Afghanistan and won a judgment. The Supreme Court of Afghanistan reversed the judgment of the lower court. It concluded that the case should have been dismissed because the parties had previously agreed in their choice-of-court clause to litigate all disputes in the United States.

Undeterred, NWTC filed suit against RMA in state court in Michigan. RMA immediately moved to dismiss the Michigan lawsuit on the grounds that the state court lacked personal jurisdiction over it. It argued that it had only consented to suit in federal court via the choice-of-court clause. It pointed out that that clause referred to the courts “of” the United States of America. It then argued that this language necessarily excluded state courts because these courts were only “of” the State of Michigan. They were not courts of the United States as a whole.

NWTC responded to this argument by pointing out that the case could not be heard in federal court because those courts lacked subject-matter jurisdiction on the facts presented. If the clause were interpreted the manner suggested by RMA, the plaintiff contended, then the choice-of-court clause would be rendered a nullity because no court in the United States could hear the claim and it would be deprived of a remedy altogether.

The state trial court in Michigan ruled in favor of RMA and dismissed the case. This decision was then appealed to the Court of Appeals of Michigan. That court acknowledged that “the dictionary definition of ‘of’ supports that, while Michigan courts may be in the United States, they are not of the United States.” The court then went on to conclude, however, that dictionary definitions are not conclusive:

We are not constrained to follow dictionary definitions when interpreting a contract, and the effect of interpreting the forum-selection clause to refer exclusively to federal courts is to deprive both parties of a forum in which to resolve their contract disputes. In other words, for either party to have had a legal remedy for the other party’s failure to perform under the subcontract, the parties must have intended “courts of the United States of America” as a geographical designation encompassing both federal and state courts. Any other reading of the forum-selection clause would render it nugatory, which is to be avoided when interpreting contracts.

The court of appeals then considered the defendant’s argument that if the clause was interpreted to refer to any state court in the United States, it would become so “overbroad and so lacking in specificity” that “enforcing it would be unreasonable and unjust.” The court held that this argument had not been fully developed in the proceedings below. Accordingly, it remanded the case for further consideration by the lower court.

This case presents a number of interesting issues relating to choice-of-court clauses. The first has to do with contract drafting. As a matter of best practice, it is better to name a specific U.S. state in which a suit must be brought rather than the United States as a whole. If the clause selects the nation as a whole, however, it is better to select the courts “in” in the United States rather than courts “of” the United States to make clear that the suit may be brought in either state or federal court.

The second issue relates to clause enforcement. U.S. courts routinely decline to give effect to choice-of-court clauses selecting courts that lack subject-matter jurisdiction to hear the dispute. If the chosen forum lacks the power to resolve the case, these courts reason, the parties may sue wherever they want. The Court of Appeals of Michigan recognized this fact and rightly rejected the defendant’s arguments that would have produced a contrary result.

The third issue relates to the need for specificity in identifying the chosen forum. Under ordinary circumstances, a clause selecting the courts of “any” U.S. state would not be enforceable because it does not clearly identify where the suit may proceed. In the unique facts presented in the case described above, however, the lack-of-specificity argument is unlikely to carry the day because, if accepted, it would result in no court being able to hear the dispute.

Finally, it is important to note that the State of Michigan has adopted a statute that clearly spells out when its courts should and should not give effect to choice-of-court clauses. This is unusual. Only three other U.S. states—Nebraska, New Hampshire, and North Dakota—have adopted similar statutes based on the Model Choice of Forum Act. Judges in the remaining U.S. states apply judge-made common law to decide the issue of enforceability. The Michigan approach has a lot of recommend to it because it provides a clear, concise, and unchanging set of factors for the courts to consider when analyzing this issue.

ASADIP: XIV Conference will be held from 4 to 5 November 2021 online (mainly in Spanish but simultaneous interpretation English-Spanish will be provided on the first day of the conference)

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The American Association of Private International Law (ASADIP) will be holding its annual XIV conference entitled “Private International Law and Modern Technologies” on 4-5 November 2021 for the first time online.

There is a full website dedicated to this conference, click here.

The Conference will be mostly in Spanish (with a few exceptions) but simultaneous English-Spanish interpretation will be provided on the first day of the conference, which has been made possible thanks to the Organization of American States (OAS).

The programme is available here. Many international organisations will take part in this conference, notably the OAS, UNCITRAL, HCCH, and UNIDROIT.

The Conference has many interesting panels but perhaps it is worth noting the one taking place on Thursday 4 November at 14:15 – 16:00 h (Argentinean time, 18:15 – 20:00 CET time) – PANEL II – “Blockchain, contratos inteligentes y Derecho internacional privado” (Blockchain, intelligent contracts and Private International Law), where Giesela Rühl, a conflictoflaws.net editor and former general editor, will be participating along with Matthias Lehmann, Luis Ernesto Rodríguez Carrera and Alfonso Ortega Giménez. As previously indicated, simultaneous English-Spanish interpretation will be provided on that day.

The Conference is free of charge and no previous registration is required. The platform that will be used is KUDO and there are four links that have been provided to join the conference, one for each session. Participants will be allowed as “spectators” and their cameras and microphones will be deactivated but it will nonetheless be possible to use the chat function with the moderator to ask questions.

To join each session, participants must click on the provided link (for the specific session) and enter their full name and their professional affiliation. For more information on how to join, click here and see below.

First session (morning) / Thursday 4 November
Hora: 9:45 am a 1:00 pm (Horario Argentina)
https://live.kudoway.com/br/110112440372
Meeting ID: 110112440372

Second session (afternoon) / Thursday 4 November
Hora: 2:15 pm a 5:30 pm (Horario Argentina)
https://live.kudoway.com/br/110111239295
Meeting ID: 110111239295

Third session (morning) / Friday 5 November
Hora: 9:45 am a 2:00 pm (Horario Argentina)
https://live.kudoway.com/br/110115267689
Meeting ID: 110115267689

Fourth Session (afternoon) / Friday 5 November
Hora: 3:00 pm a 5:30 pm (Horario Argentina)
https://live.kudoway.com/br/110115948325
Meeting ID: 110115948325

 

Extraterritorial Application of Chinese Personal Information Protection Law: A Comparative Study with GDPR

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Written by Huiying Zhang, PhD Candidate at the Wuhan University Institute of International Law

China enacted the Personal Information Protection Law (PIPL) at the 30th Session of the Standing Committee of the 13th National People’s Congress on August 20, 2021. This is the first comprehensive national law in China concerning personal information protection and regulating the data processing activities of entities and individuals. PIPL, the Cyber Security Law (came into force on June 1, 2017) and Data Security Law (promulgated on September 1, 2021) constitute the three legal pillars of the digital economy era in China.

PIPL includes eight chapters and 74 articles, covering General Provisions, Rules for Processing Personal Information, Rules for Cross-border Provisions of Personal Information, Rights of Individuals in Activities of Processing Personal Information, Obligations of Personal Information Processors, Departments Performing Duties of Personal Information Protection, Legal Liability and Supplementary Provisions. This note focuses on its extraterritorial effect.

 

1.Territorial Scope

Article 3 of the PIPL provides:

“This Law shall apply to activities conducted by organizations and individuals to control the personal information of natural persons within the territory of the Peoples Republic of China.

This Law shall also apply to activities outside territory of the People”s Republic of China to handle the personal information of natural persons within the territory of the People’s Republic of China under any of the following circumstances:

a . personal information handling is to serve the purpose of providing products or services for natural persons within the territory of the People’s Republic of China;

  1. personal information handling is to serve the purpose of analyzing and evaluating the behaviors of natural persons within the territory of the People’ s Republic of China; or
  2. having other circumstances as stipulated by laws and administrative regulations.”

 

According to paragraph 1 of Art 3, PIPL applies to all data processing activities of personal information carried out in China. If foreign businesses processes or handles the personal information within the territory of China, in principle, they shall comply with the PIPL. It indicates that this clause focuses on the activities of processing or handling personal information in the territorial of China, especially the physical link between the data processing or handling activities and Chinese territory.

According to paragraph 2 of Art 3, the PIPL shall be applicable to activities outside the territory of China in processing or handling the personal information within China under some circumstances. As provided in Art 53, “personal information handlers outside the borders of the People’ s Republic of China shall establish a dedicated entity or appoint a representative within the borders of the People’ s Republic of China to be responsible for matters related to the personal information they handle”. Notably, this clause focuses on the physical location of the data processors or handlers rather than their nationality or habitual residence.

PIPL has extraterritorial jurisdiction to data processing or handling activities outside the territorial of China under 3 circumstances as provided in paragraph 2 of Art 3 of the PIPL. This is the embodiment of the effect principle, which derives from the objective territory jurisdiction and emphasizes the influence or effect of the behavior in the domain. If the purpose is to provide products or services to individuals located in China, or to analyze the behaviors of natural person in China, the PIPL shall be applicable. Crucially, the actual “effect” or “influence” of data processing or handling is emphasized here, i.e. when it is necessary to determine what extent or what requirements are met of the damage caused by the above-mentioned data processing or handling activities outside the territorial of China, Chinese courts may reasonably exercise the jurisdiction over the case. Obviously, it reflects the consideration of the element of “brunt of harm”. However, if the “effect” or “influence” is not specifically defined and limited, there will be a lot of problems. It is important to figure out exactly whether data processors or handlers outside the territorial of China are aware of the implications of their actions on natural person within China and whether the “effect” or “influence” of the data-processing behaviors are direct, intentional and predictable.

The PIPL explicitly states its purported extraterritorial jurisdiction for the first time and insists on the specific personal jurisdiction and the effect principle. It is mainly because the PIPL is formulated “in order to protect personal information rights and interests, standardize personal information handling activities, and promote the rational use of personal information”, but in the process of legal protection of personal information of natural person, there are a lot of challenges, such as the contradiction between the application of traditional jurisdiction, the virtual nature of personal information and so on. In this sense, all jurisdiction of the PIPL, whether territorial jurisdiction or personal jurisdiction or effect principle, are all further supplements for the existing personal information protection regime previously provided.

 

2.PIPL and GDPR: a Comparative Study

The provisions on jurisdiction of GDPR are mainly concentrated in Art 3 and Art 23, 24, 25, 26, 27 of preambular 2. In Art 3, paragraph 1 and 2 identified “establishment principle” and “targeting principle” and paragraph 3 provides “This regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law”.

A. Establishment Principle

Under paragraph 1 of Art 3, GDPR applies to “the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.” It set the “establishment criterion”, which has the dual characteristics of territorial jurisdiction and extraterritorial jurisdiction.

Compared with establishment criterion in GDPR, the PIPL indicates that personal information handlers outside the territorial of China shall establish a dedicated entity or appoint a representative within China as previously mentioned. It highlights the significance and necessity of establishing an entity when foreign data handlers process the personal information of national persons outside China under circumstance in paragraph 2 of Art3 of PIPL.

B. Targeting Principle

Compared with targeting criterion in GDPR, PIPL has many differences. Paragraph 2 of Art 3 of the GDPR clearly states that for data processors and controllers that do not have an establishment in the EU, GDPR will apply in two circumstances. Firstly, as stated in Art 3 of GDPR, the processing activities relate to “the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union” (Art 2 GDPR). It seems too abstract to give the definition and processing method of data processor and controller’ s behavior intention. Art 23 of the GDPR provides the clarification that “it should be ascertained whether it is apparent that the controller or processor envisages offering services to data subjects in one or more Member States in the Union.” The key factor to assess whether the processor or controller “targets” the EU is whether the behaviour of the offshore data processors or controllers indicates their apparent intention to provide goods or services to data subjects in the EU. This is an objective subjective test.

In contrast, Art 3 of the PIPL states that the law shall apply when the data processor processes personal information “to serve the purpose of providing products or services for natural persons within the territory of the People’ s Republic of China”. It indicates that the purpose of data processor or controller outside China is to provide a product or service to a domestic natural person in China. The key to the application is not only about whether it has purpose, but also about whether they have processed personal information of a natural person in China.

Secondly, the procession activities are in related to “the monitoring of their behaviour as far as their behaviour takes place within the Union”. It requires both the data subject and the monitored activity be located within the EU. “Monitoring” shall be defined in accordance with Article 24 of the GDPR preamble. This provision does not require the data processors or controllers to have a corresponding subjective intent in the monitoring activity, but the European Data Protection Board ( Hereinafter referred to as EDPB) pointed out that the use of the term “monitoring” implied that the data controllers or processors had a specific purpose, namely to collect and process the data. Similarly, Art 3 of the PIPL also applies to activities outside China dealing with personal information of natural persons within China, if the activities are to analyse and evaluate the acts of natural persons within China. The meaning of “analysis and evaluation” here is very broad and seems to cover “monitoring” activities under the GDPR.

Furthermore, paragraph 3 of Art 3 of the GDPR provides: “This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law.” It suggests that the data processor or controller does not have an establishment in the territory of the EU and there is no circumstances under paragraph 2 of Art 3 of the GDPR. Due to that the international law applies EU member state law in the area where the numerical controller is located, this law shall apply. This condition is primarily aimed at resolving the issue of extraterritorial jurisdiction over data processing or controlling that takes place in EU without an establishment. This condition is similar to Directive 95/46 of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. The similar condition is not included in the PIPL, which instead shall apply to other circumstances “as stipulated by laws and administrative regulations”.

C. Passive personality principle

Under the passive personality principle, a state has prescriptive jurisdiction over anyone anywhere who injures its nationals or residents. As previously mentioned, paragraph 2 of Art 3 of the GDPR states that although the personal data processors or controllers are not established in the EU, EU still applies the laws of member states in accordance with public international law. Art 25 of the preamble of GDPR provides examples of such situations which may include a Member State’s diplomatic mission or consular post.

To some extent, GDPR includes all the personal data processing activities involving natural persons situated in the EU area into its jurisdiction, which is a variation of the passive nationality principle. It is because EU treats the individual data right as a fundamental human right and aims to establish a digital market of the unified level of protection. PIPL adopts the similar practice by adopting the passive nationality principle to protect Chinese citizens and residents.

3.Conclusion

The promulgation of PIPL shows that China recognizes the extraterritorial effect of data protection law. The exploration of legislation not only has the meaning of localization, but also contributes to the formulation of data rules for the international community. It marks an important step towards China’ s long-term goal of balancing the preservation of national sovereignty, the protection of individual rights and the free flow of data across borders.

The Nigerian Court of Appeal recognises the Immunity of the President of the Commission of ECOWAS from being impleaded in Nigerian courts

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This is a case note on the very recent Nigerian Court of Appeal’s decision that recognised the immunity of the President of the Commission of ECOWAS (Economic Community of West African States) from being impleaded in Nigerian courts.[1]

In Nigeria, the applicable law in respect of diplomatic immunities and privileges is the Diplomatic Immunities and Privileges Act, which implements aspects of the Vienna Convention on Diplomatic Relations 1961 (the “Vienna Convention”). Under the Diplomatic Immunities and Privileges Act, foreign envoys, consular officers, members of their families, and members of their official and domestic staff are generally entitled to immunity from suit and legal process.[2] Such immunities may also apply to organisations declared by the Minister of External Affairs to be organisations, the members of which are sovereign powers (whether foreign powers or Commonwealth countries or the Governments thereof).[3]

Where a dispute arises as to whether any organisation or any person is entitled to immunity from suit and legal process, a certificate issued by the Minister stating any fact relevant to that question shall be conclusive evidence of that fact.[4]

In a very recent case the claimant/respondent who was a staff of the Commission of ECOWAS sued the defendant/appellant in the National Industrial Court in Nigeria for orders declaring his suspension from office by the Commission unlawful and a violation of ECOWAS Regulations, and damages from the defendant/appellant for publishing what the claimant/respondent considered a “libelous” suspension letter. The defendant/appellant responded to the suit with a statement of defence and equally filed a motion of notice objecting to the jurisdiction of the National Industrial Court on grounds of diplomatic immunity he enjoys from proceedings in municipal courts of Nigeria by virtue of the Revised Treaty of ECOWAS, General Convention on Privileges and Immunities of ECOWAS and the Headquarters Agreement between ECOWAS and the Government of the Republic of Nigeria. He also placed reliance on Principles of Staff Employment and ECOWAS staff Regulations. In addition he attached a certificate from Nigeria’s Minister of Foreign Affairs which acknowledged his diplomatic immunity.

The trial court (Haastrup J) held that it had jurisdiction and dismissed the preliminary objection of the defendant/appellant. It relied on Section 254C (2)[5] of the 1999 Constitution (as amended in 2011)  and Order 14A Rule 1 (1)[6] of the National Industrial Court of Nigeria(Civil Procedure) Rules, 2017 to hold that the National Industrial Court had jurisdiction to resolve all employment matters in Nigeria, including cases that have an international element.

The Nigerian Court of Appeal unanimously allowed the appeal. Ugo JCA in his leading judgment held as follows:

“So this Certificate of the Minister of Foreign Affairs of Nigeria attached to the affidavit of Chika Onyewuchi in support of appellant’s application/objection before the trial National Industrial Court for the striking out of the suit is sufficient and in fact conclusive evidence of the immunity claimed by appellant. That also includes the statement of the Minister in paragraph 2 of the same certificate that the ECOWAS Revised Treaty of 1993 was “ratified by the Federal Republic of Nigeria on 1st July, 1994,” thus, putting paid to the trial Judge’s contention that appellant needed to prove that the said treaty was ratified by Nigeria for him to properly claim immunity.
Even Section 254C(2) of the 1999 Constitution of the Federal Republic of Nigeria which states that ‘Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith,’ does not by any means have the effect of conferring jurisdiction on the National Industrial Court over diplomats. In fact Section 254C(2) of the 1999 Constitution, as was correctly argued by Mr. Obi, only confers on the National Industrial Court power to apply international conventions, protocols and treaties ratified by Nigeria relating to labour, employment, workplace, industrial relations and matters connected therewith while exercising its jurisdiction over persons subject to its jurisdiction. Diplomats who enjoy immunity from Court processes from municipal Courts in Nigeria like the Respondent are not such persons. Incidentally, the apex Court in African Reinsurance Corporation v. Abate Fantaye (1986) 3 NWLR (PT 32) 811 in very similar circumstances conclusively put to rest this issue of immunity from proceedings in municipal Courts enjoyed by persons like appellant. That case was cited to the trial Judge so it is surprising that she did not make even the slightest reference to it in expanding her jurisdiction to appellant who has always insisted, correctly, on his immunity. In truth, the lower Court did not simply expound its jurisdiction but attempted to expand it too. A Court is competent when, among others, the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction…
Appellant’s diplomatic status and his consequent immunity from proceedings in the Courts of this country was such a feature that prevented the National Industrial Court from exercising jurisdiction over him and Suit No. NICN/ABJ/230/2019 of respondent; it was therefore wrong in holding otherwise and dismissing his preliminary objection…”[7]

Adah JCA in his concurring judgment held as follows:

“The Appellant, being an international organization enjoys immunity from suit and legal process, both by virtue of Section 11 and 18 of the 1962 Act, and Certificate issued by the Minister of External Affairs. Where a sovereign or International Organization enjoys immunity from suit and legal process, waiver of such immunity is not to be presumed against it. Indeed, the presumption is that there is no waiver until the contrary is established. Thus, waiver of immunity by a Sovereign or International Organization must be expressly and positively done by that Sovereign or International Organization.

In the instant case, the appellant from the record before the Court is an international organization. The Foreign Affairs Minister of Nigeria had given a certificate to indicate the immunity of the appellant. Exhibit CA issued by the Ministry of Foreign Affairs on 16th January, 2020 in paragraphs 2 and 3 thereof state as follows:

“2. The ministry of Foreign Affairs wishes to reaffirm the status of the ECOWAS Commission as an international organization and the immunity and privileges of the Commission and its staff members with exception of Nigerians and holders of Nigeria permanent residency from Criminal, Civil and Administrative proceedings by virtue of ECOWAS Revised Treaty by of 1993, which was ratified by the Federal Republic of Nigeria on 1st July, 1994.
3. The Headquarters Agreement between the ECOWAS Commission and the Federal Republic of Nigeria also confers immunity on officials and other employees of ECOWAS by virtue of Article VII (3) (C) of the Agreement.”

It is very clear therefore, that the appellant is covered by the Diplomatic Immunities and Privileges Act and is not amenable to the jurisdiction of the Municipal Courts. The fact that their base is in Nigeria or that Nigeria is the Host Country of the appellant does not make the appellant subserviate to the jurisdiction of Nigerian Courts. It is therefore, the law as stated lucidly in the leading judgment of my learned brother that the lower Court has no jurisdiction to entertain the claim against the appellant…”[8]

This is not the first time Nigerian courts have dealt with the issue of impleading a diplomat or foreign sovereign before the Nigerian court.[9] The decision of the trial judge was surprising in view of the weight of authorities from the Nigerian Supreme Court and Court of Appeal on the concept of diplomatic immunities in Nigeria. The claimant/respondent may have argued that matters of employment qualify as waiver of diplomatic immunity, but this position has never been explicitly endorsed by Nigerian courts. The Supreme Court of Nigeria has only accepted the concept of waiver in situations where the person claiming immunity entered into commercial transactions with the claimant.[10]

Looking at the bigger picture how does an employee who has been unfairly dismissed by a diplomatic organisation gain access to justice in Nigerian and African courts? Should the law be reformed in Nigeria and African countries to take into account the interest of employees as weaker parties?

 

 

[1] President of the Commission of ECOWAS v Ndiaye (2021) LPELR-53523(CA).

[2]Diplomatic Immunities and Privileges Act, Cap D9 LFN 2004 ss 1, 3-6.

[3]ibid, ss 11 and 12.

[4]ibid, s 18.

[5] ‘Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.’

[6] It provides that:

1.—(1) Where an action involves a breach of or non-compliance with an international protocol, a convention or treaty on labour, employment and industrial relations, the Claimant shall in the complaint and witness statement on oath, include,

(a) the name, date and nomenclature of the protocol, convention or treaty ; and

(b) proof of ratification of such protocol, convention or treaty by Nigeria.

(2) In any claim relating to or connected with any matter, the party relying on the International Best Practice, shall plead and prove the existence of the same in line with the provisions relating to proof of custom in the extant Evidence Act.”

[7] President of the Commission of ECOWAS v Ndiaye (2021) LPELR-53523(CA) 19-20.

[8] Ibid 24-26.

[9] See generally CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, Oxford, 2020) (chapter 7).

[10]African Reinsurance Corporation v JDP Construction (Nig) Ltd (2007) 11 NWLR 224, 234-5 (Akintan JSC)..

Amrita Bahri, “Gender and Trade Law”, Inaugural Keynote for the Master of Laws in International Trade 2021/22 Edition, University of Turin, 5 November 2021, 3.00 to 5.00 P.M. CET (Zoom)

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The University of Turin and ILO International Training Centre’s Master in International Trade Law are pleased to announce the 2021/2022 Programme’s inaugural keynote. The event will take place on 5 November 2021, from 3.00 to 5.00 P.M. CET, on Zoom (at the following link: https://itcilo-org.zoom.us/j/85085505961?pwd=U2dLRitJTzUzYzlJUHAyM0NzclNydz09#success). The keynote will deal with ‘Gender and Trade Law’ and it will be delivered by Amrita Bahri, Assistant Professor, ITAM; Co-Chair, WTO Chair Program; Trade and Gender Consultant, International Trade Centre.

Please see the event’s flyer below: