The Office of the Judge and the Conflict-of-Law Rule – Conference, May 17th 2021, Cour de cassation, Paris

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The Conference “the Office of the Judge and the Conflict-of-Law Rule” (L’office du juge et la règle de conflit de lois) will be held on Monday 17 May 2021 (in French) and will be streamed live via the Cour de cassation website and social media networks.

This Conference is part of the Lecture Series “Thinking about the office of the judge” (Penser l’office du juge) – 2020-2021 (directed by Sylvie Perdriolle, Honorary President of the Chamber, Sylvaine Poillot-Peruzzetto, Judge at the French Cour de cassation, and Lukas Rass-Masson, professor at the University of Toulouse 1 Capitole).

The programme is as follows:

5:00 p.m. – The Office of the Judge and the Nature of the Conflict-of-Law Rule
Nicolas Nord, Secretary General of the International Commission on Civil Status, Co-chairman of the China Section of the Société de législation comparée
Gian Paolo Romano, Professor at the University of Geneva, Co-director of the Yearbook of International Private Law

5:40 p.m. – The Office of the Judge and the European Conflict-of-Law Rule
Lukas Rass-Masson, Professor at the University of Toulouse I Capitole, Director of the European School of Law Toulouse

6:05 p.m. – The Office of the Judge and the Application of the Conflict-of-Law Rule
François Mélin, Judge at the Court of Appeal of Paris

18:30 p.m. – Discussion

Moderators:
François Ancel, President of the International Commercial Chamber of the Paris Court of Appeal
Gustavo Cerqueira, Professor at the University of Nîmes, France

 

Open Letter Calls upon EU to Allow UK Assession to Lugano Convention

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In response to the EU Commission’s formal refusal to allow the UK to accede to the Lugano Convention, a coalation between several NGOs and legal scholars, lead by the European Coalition for Corporate Justice (ECCJ) has issued an open letter, calling upon the EU to reverse this decision. In essence, they argue that a full return to the common-law rules on jurisdiction, including the forum non conveniens doctrine, will reduce access to the UK courts in cases of corporate human-rights abuses, which has only recently been rendered much more attractive by the UK Supreme Court’s decisions in Vedanta v Lungowe [2019] UKSC 20 and Okpabi v Shell [2021] UKSC 3.

The full letter can be found here. It is still open for signatures (via e-mail to christopher.patz[at]corporatejustice.org).

 

HCCH Vacancy: Legal Officer (Maternity Leave Replacement)

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The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking a Legal Officer (Maternity Leave Replacement). The successful candidate will work primarily in the field of family law, focusing on the 1980 Child Abduction and 1996 Child Protection Conventions as well as on the Family Agreements project.

Applications should be submitted by Monday 31 May 2021 (00:00 CEST). For more information, please visit the Recruitment section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

CJEU on jurisdiction for matters of non-contractual liability in connection with investments in securities and collective actions in the case Vereniging van Effectenbezitters, C-709/19

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In December 2020, we reported about the Opinion presented by Advocate Generale Campos Sánchez-Bordona in the case Vereniging van Effectenbezitters, C-709/19. Today, the Court delivered its judgment in this case.

In brief, the request for a preliminary ruling arose out of the proceedings pertaining to a collective action for a declaratory judgment brought by an association against an oil and gas company on behalf of investors who bought, held or sold the ordinary shares through an investment account in the Netherlands. The association argued that this internationally listed company acted unlawfully towards its shareholders inasmuch as it made incorrect, incomplete and misleading statements about the circumstances pertaining to, inter alia, an explosion resulting in an oil spill. It is in this context that the referring court requested the Court of Justice to interpret Article 7(2) of the Brussels I bis Regulation.

At the request of the Court, in his Opinion of last December, AG Campos Sánchez-Bordona addressed two first preliminary questions. Thus, the third and fourth preliminary questions on international and internal territorial jurisdiction to hear subsequent individual claims of the investors were not addressed in the Opinion.

Ultimately, the third and fourth questions do not receive a definitive answer in the judgment either. The Court held that these questions are inadmissible as they are of hypothetical nature – in the proceedings pending before the referring court, no subsequent individual claim is concerned (paragraphs 38 and 39).

As to the first and second preliminary questions, these are worded as follows:

(1) (a)      Should Article 7(2) of [the Brussels I bis Regulation] be interpreted as meaning that the direct occurrence of purely financial damage to an investment account in the Netherlands or to an investment account of a bank and/or investment firm established in the Netherlands, damage which is the result of investment decisions influenced by globally distributed but incorrect, incomplete and misleading information from an international listed company, constitutes a sufficient connecting factor for the international jurisdiction of the Netherlands courts by virtue of the location of the occurrence of the damage (“Erfolgsort”)?

(b)      If not, are additional circumstances required to justify the jurisdiction of the Netherlands courts and what are those circumstances? Are the additional circumstances [namely, the fact that the international listed company focuses on global investment public, including the investors in the Netherlands, and the association represents a considerable number of investors in this Member State, the fact that the settlement reached by the international listed company with a number of shareholders in the United States of America was not proposed to the investors represented by the association and, lastly, the fact that the shareholders for whom this association is acting include consumers to whom the Brussels I bis Regulation affords special legal protection] sufficient to found the jurisdiction of the Netherlands courts?

(2)      Would the answer to Question 1 be different in the case of a claim brought under Article 3:305a of the BW by an association the purpose of which is to defend, in its own right, the collective interests of investors who have suffered damage as referred to in Question 1, which means, among other things, that neither the places of domicile of the aforementioned investors, nor the special circumstances of individual purchase transactions or of individual decisions not to sell shares which were already held, have been established?

 

In its judgment, the Court answered together this questions (paragraph 22) and held that Article 7(2) of the Brussels I bis Regulation must be interpreted to the effect that the direct occurrence, in an investment account, of purely financial damage resulting from investment decisions made on the basis of information which was readily available worldwide, but which was incorrect, incomplete and misleading and emanated from an international listed company, does not allow the international jurisdiction of the court of the Member State in which the bank or investment firm that holds that account is established to be founded on a connection with the place where the damage occurred, where that company was not subject to statutory reporting obligations in that Member State (paragraph 37).

The judgment can be consulted here (the English version is not yet available).

Australian webinar on UNCITRAL Model Law on Electronic Signatures 2001

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Electronic commerce: past, present and future

The UNCITRAL National Coordination Committee for Australia (UNCCA) invites you to attend its Seventh Annual May Seminar, to be held online as a webinar. This year we celebrate the 25th anniversary of the UNCITRAL Model Law on Electronic Commerce 1996, and the 20th Anniversary of the UNCITRAL Model Law on Electronic Signatures 2001.

Both of these Model Laws and the subsequent United Nations Convention on Electronic Communications in International Contracts 2005 have had a profound effect on the regulation of electronic commerce globally. In Australia, all of these developments have been incorporated in the Electronic Transactions Acts passed by the Commonwealth and all States and Territories. During 2020 the relevance of these enactments came to the fore as a result of the COVID pandemic.

In this live, interactive webinar, expert commentators from UNCITRAL and Australia will review the history of these developments in ecommerce, the current state of the law, as well as issues that are being considered for future work nationally and globally.

For more information, see here.

AMEDIP: Webinar by Professor Carlos Echegaray de Maussion on International Judicial Co-operation in Times of Pandemic – 13 May 2021 at 5 pm (Mexico City time – CDT) – in Spanish

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The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 13 May 2021 at 5:00 pm (Mexico City time – CDT), 12:00 am (CEST time). The topic of the webinar is International Judicial Co-operation in Times of Pandemic and will be presented by Professor Carlos Echegaray de Maussion (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/87893740067?pwd=L0w4cThOVkFzQ04rZUZvT0lnNGpHZz09

Meeting ID: 878 9374 0067

Password: BMAAMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

 

 

EU Survey on Protection of Vulnerable Adults

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In February 2021, the European Commission launched a study to assess the need for more effective legal protection of vulnerable adults within the European Union. As part of this study, a survey has now been published online for all legal practitioners working in the area: judges, lawyers, notaries, and other relevant authorities. Input from practitioners will be important in shaping any future legislative initiative.

The survey is open until 4 June 2021 and available at the following link: https://ec.europa.eu/eusurvey/runner/vulnerable_adults_practitioners.

Although the survey is in English, respondents are welcome to submit responses in any of the official EU languages.

For more information, see the survey link above or for more specific questions contact the project team at: < crossborder.adults@milieu.be >.

Overcoming Challenges, Addressing Conflicts, Settling Disputes Summer School on EU Business Law, University of Milan, 16-18 June 2021

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In collaboration with the University of Heidelberg, the Charles University of Prague and the University of Warsaw, the University of Milan is conducting the project ‘From Diversities to Unity through Coordination (EU-DUC)’ within the framework of the 1st Call for joint educational proposal promoted by the 4EU+ European University Alliance.

In this context, from 16 to 18 June 2021, the University of Milan will host the Overcoming Challenges, Addressing Conflicts, Settling Disputes Summer School on EU Business Law. The Summer School is open to students of 4EU+ universities, and it is envisioned to take place in a hybrid (online/in person) mode.

Students can register, from 15 April until 22 May 2021, on Eventbrite. With their registration, they must submit to Prof. Francesca C. Villata (euduc@unimi.it) their CV and a letter of motivation, indicating the order of preference between the 5 interactive modules offered with the Summer School.

More information on the 4EU+ European University Alliance and the Summer School’s Programme are available here.

Dickinson on European Private International Law after Brexit

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Just as the Commission formally announced its refusal to give consent to the UK’s accession to the Lugano Convention, Andrew Dickinson has provided a comprehensive overview on the state of Private International Law for civil and commercial matters in the UK and EU, which has just been published in the latest issue of Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) (IPRax 2021, p. 218).

The article sketches out this ‘realignment of the planets’ from three angles, starting with the legal framework in the UK, which will now be based on the Withdrawal Act 2018, several other statutes and multiple pieces of secondary legislation. The latter include the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations, which entail a return to the rules previously applied only to non-EU defendants, and the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations, which (by contrast) essentially carries over the Rome I and II Regulation. With regard to jurisdiction, the situation is of course complicated by some residual remains of the Brussels regime, some new provisions aiming to preserve certain jurisdictional advantages for consumers and employees, and the interplay with the Hague Choice of Court Convention, all of which the article also covers in detail. Interestingly, especially in the context of last week’s news, Dickinson concludes the section on jurisdiction (on p. 218) as follows:

One might take comfort in the fact that there is nothing in the mechanisms and rules described above that is truly novel. In large part, the effect of the UK’s withdrawal from the EU will be to extend to the province formerly occupied by the Brussels-Lugano regime the conflict of law rules for situations lacking an EU connection, with which many cross-border practitioners will be familiar. Some will welcome, for example, the increased role for the doctrine of forum non conveniens or the removal of fetters on the UK courts’ ability to grant anti-suit injunctions. Others will see the transition to what is unquestionably a complex and piecemeal set of rules as a backward step, which nonetheless creates an opportunity to review, simplify and up- date the UK’s private international law infrastructure. The case for reform will grow if the UK’s application to rejoin the 2007 Lugano Convention does not bear fruit.

The text then goes on to describe the consequent changes in EU Private International Law and the effects of these changes on third states with whom the EU has concluded international agreements.

The article links up nicely with Paul Beaumont’s article on The Way Ahead for UK Private International Law After Brexit, which has just been published in this year’s first issue of the Journal of Private International Law and which considers the steps the UK should take to remain an effective member of international institutions such as the Hague Conference on Private International Law. Both articles can also be read in conjunction with Reid Mortensen’s contribution on Brexit and Private International Law in the Commonwealth and Trevor Hartley’s article on Arbitration and the Brussels I Regulation – Before and After Brexit, which appear in the same issue.

First Issue of 2021’s Journal of Private International Law

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The first issue of the Journal of Private International Law for 2021 was released today and it features the following articles:

Paul Beaumont, Some reflections on the way ahead for UK private international law after Brexit

Since 1 January 2021 the UK has moved out of the implementation period for its withdrawal from the European Union (EU) and it is an appropriate time to reflect on the way forward for the UK in developing private international law. This article considers the practical steps that the UK should take in the near future. There is significant work that the UK can do to progress its commitment to the “progressive unification of the rules of private international law” by improving its commitment to the effective functioning of several key Conventions concluded by the Hague Conference on Private International Law (HCCH). Some of these steps can and should be taken immediately, notably accepting the accessions of other States to the Hague Evidence and Child Abduction Conventions and extending the scope of the UK’s ratification of the Adults Convention to England and Wales, and Northern Ireland. Other things require more consultation and time but there are great opportunities to provide leadership in the world by ratifying the Hague Judgments Convention 2019 and, when implementing that Convention which is based on minimum harmonisation, providing leadership in the Commonwealth by implementing, at least to some extent, the Commonwealth Model Law on Recognition and Enforcement of Civil and Commercial Judgments. Within the UK, as a demonstration of best constitutional practice, intergovernmental cooperation between the UK Government and the devolved administrations should take place to consider how intra-UK private international law could be reformed learning the lessons from the UK Supreme Court’s highly divided decision in Villiers. Such work should involve the best of the UK’s experts (from each of its systems of law) on private international law from academia, the judiciary and legal practice. Doing so, would avoid accusations that Brexit will see a UK run by generalists who give too little attention and weight to the views of experts. This use of experts should also extend to the UK’s involvement in the future work of HCCH at all levels. The HCCH will only be able to be an effective international organisation if its Members show a commitment to harnessing the talents of experts in the subject within the work of the HCCH.

 

Reid Mortensen, Brexit and private international law in the Commonwealth

“Brexit is a trading and commercial opportunity for the countries of the Commonwealth, as it makes it likely that, for many, their access to United Kingdom (UK) markets will improve significantly. The question addressed in this article is whether, to support more open and trading relationships, Brexit also presents opportunities for the development of the private international law of Commonwealth countries – including the UK. Focusing on Australia, Canada, New Zealand and Singapore, as well as the UK, an account is given of the relationship between the different systems of private international law in these Commonwealth countries in the period of the UK’s membership of the European Union (EU). Accordingly, consideration is given to the Europeanisation of UK private international law and its resistance in other parts of the Commonwealth. The continuing lead that English adjudication has given to private international law in the Commonwealth and, yet, the greater fragmentation of that law while the UK was in the EU are also discussed. The conclusion considers the need to improve the cross-border enforcement of judgments within the Commonwealth, and the example given in that respect by its federations and the trans-Tasman market. Possible directions that the cross-border enforcement of judgments could take in the Commonwealth are explored.”

 

Trevor Hartley, Arbitration and the Brussels I Regulation – Before and After Brexit

This article deals with the effect of the Brussels I Regulation on arbitration. This Regulation no longer applies in the UK, but the British Government has applied to join the Lugano Convention, which contains similar provisions. So the article also discusses the position under Lugano, paying particular attention to the differences between the two instruments. The main focus is on the problems that arise when the same dispute is subject to both arbitration and litigation. Possible mechanisms to resolve these problems – such as antisuit injunctions – are considered. The article also discusses other questions, such as freezing orders in support of arbitration.

 

Maksymilian Pazdan & Maciej Zachariasiewicz, The EU succession regulation: achievements, ambiguities, and challenges for the future

The quest for uniformity in the private international law relating to succession has a long history. It is only with the adoption of the EU Succession Regulation that a major success was achieved in this field. Although the Regulation should receive a largely positive appraisal, it also suffers from certain drawbacks that will require a careful approach by courts and other authorities as to the practical application of the Regulation. The authors address selected difficulties that arise under its provisions and make suggestions for future review and reform. The article starts with the central notion of habitual residence and discusses the possibility of having a dual habitual residence. It then moves to discuss choice of law and recommends to broaden further party autonomy in the area of succession law. Some more specific issues are also addressed, including legacies by vindication, the relationship between the law applicable to succession, the role of the legis rei sitae and the law applicable to the registries of property, estates without a claimant, the special rules imposing restrictions concerning or affecting succession in respect of certain assets, as well as the exclusion of trusts. Some proposals for clarifications are made in that regard.

 

Stellina Jolly & Aaditya Vikram Sharma, Domestic violence and inter-country child abduction: an Indian judicial and legislative exploration

The Hague Convention on the Civil Aspects of International Child Abduction aims to prevent the abduction of children by their parents by ensuring the child’s prompt return to his/her place of habitual residence. At the time of drafting the Convention, the drafters believed that non-custodial parents who were fathers perpetrated most of the abductions. However, the current statistics reveal the overwhelming majority of all abductors as primary or joint-primary caretakers. Unfortunately, it is unknown what exact proportion of these situations includes abductions triggered by domestic violence. In the absence of an explicit provision of domestic violence against spouses as a defence against an order of return, for a parent who has abducted a child to escape domestic violence, the relevant defence is of “grave risk of harm” to and “intolerable situation” for the child under Article 13(1)(b) of the Convention. However, the lack of guidance on what constitutes “grave risk” and “intolerable situation”, at least in the past, and its operationalisation in the context of domestic violence brings in pervasive indeterminacy in child abduction. In 2012, the Hague Conference on Private International Law identified “domestic violence allegations and return proceedings” as a key issue and recommended steps for developing principles on the management of domestic violence allegations in return proceedings leading to the adoption of a Good Practice Guide on this issue in 2020.

The Ministry of Women and Child Development (WCD) and the Ministry of Law and Justice, India, cite that most Indian parents who abduct their children happen to be women escaping domestic violence abroad. Thus, they are victims escaping for themselves and their children’s safety. This research has summed up the judgments delivered by High Courts and the Supreme Court of India on child abduction between 1984 and 2019. Through judicial mapping, the paper discusses the cases in which battered women have highlighted and argued domestic violence as a reason against their children’s return. The paper evaluates whether the reason given by the two ministries against India’s accession to the Hague Convention is reflected in cases that have come up for judicial resolution and what are the criteria evolved by the judiciary in addressing the concerns of domestic violence against a spouse involved in child abduction. The paper analyses India’s legislative initiative, the Civil Aspects of International Child Abduction Bill, 2016 and assesses the measures proposed by the Bill for considering domestic violence against a spouse in abduction cases.

 

Kittiwat Chunchaemsai, Legal considerations and challenges involved in bringing the 2005 Hague Convention on Choice of Court Agreements into force within an internal legal system: A case study of Thailand

Thailand must consider two vital elements, namely its internal legal system and environment before signing the Hague Convention on Choice of Court Agreements 2005 (Hague Convention). This paper investigates whether the law of Thailand in its current form is inconsistent with the Hague Convention. Articles 1–15 are examined to identify areas of inconsistency and to suggest appropriate solutions. This study finds that the internal legal system of Thailand is not quite in line with the Hague Convention. This conclusion leads to analytical recommendations to suit the needs of the current Thai legal system. Implementing these recommendations is necessary for Thailand if it intends to become a Party to the Hague Convention. Thailand must not only have a specific implementation act but must also review and revise the relevant laws appropriately.

 

Saeed Haghani,  Evolution of lex societatis under Iranian law: current status and future prospects

There has been a growing attention to applicable law to companies (lex societatis) in Iranian legal research. A brief study of relevant legal literature leads us to a list of both disagreements and complexities on the subject. Meanwhile, a recent parliamentary effort on the issue, illustrates the importance of lex societatis in the eyes of the Iranian legislature. A comparative approach would be of great help in the analysis of the formation and evolution of relevant Iranian legal rules. This paper tries to provide the reader with a comprehensive view of the current transitory state of Iranian law regarding lex societatis.