Conflict of Laws .net now on LinkedIn

In addition to our Twitter account, you can now also follow us on LinkedIn to see all our latest posts and updates directly in your news feed.

You can find our profile here.

 

Conflict of Laws and the Internet

Pedro de Miguel Asensio from the Universidad Complutense de Madrid has published a book on Conflict of laws and the Internet. The publisher’s blurb reads as follows:
.
The ubiquity of the Internet contrasts with the territorial nature of national legal orders. This book offers a comprehensive analysis of jurisdiction, choice of law and enforcement of judgments issues concerning online activities in the areas in which private legal relationships are most affected by the Internet. It provides an in-depth study of EU Law in this particularly dynamic field, with references to major developments in other jurisdictions. Topics comprise information society services, data protection, defamation, copyright, trademarks, unfair competition and contracts, including consumer protection and alternative dispute resolution.
.
Key features include:
  • comprehensive analysis of the complex conflict of laws issues that arise in connection with Internet activities
  • discussion on the jurisdiction of national courts and the determination of applicable law
  • a European perspective on the relationship between Internet Law and Private International Law (PIL)
  • consideration of the cross-border effects of judgments in all major fields of PIL affected by the Internet.

Conflict of Laws and the Internet will be a vital resource for practitioners and policy-makers alike with applications for IT law experts and companies active in e-commerce. Providing a strong doctrinal base for an area of ever increasing importance and attention, this book will also be a valuable reference for academics working in the fields of IT law and PIL.

Additional information plus access to its detailed table of contents are available here.

Brexit and Cross-Border Insolvency

The latest issue of the Italian Journal Diritto del commercio internazionale (34.1/2020) features an article (in English) on “Brexit and Cross-Border Insolvency Looking Beyond the Withdrawal Agreement” written by Antonio Leandro (University of Bari).

The abstract of the article reads as follows: “The UK and the EU have concluded the Withdrawal Agreement which officially triggers the so-called Brexit. However, the real effects of the Brexit still are unclear, at least as regards the future following the end of the transition period provided for by the Withdrawal Agreement during which the UK will be treated as if it were a Member State. After the transition period, mini hard Brexit(s) are in fact likely for matters currently governed by the EU Law that the Parties will not want to relocate in new legal frameworks, such as bilateral treaties. The paper addresses the consequences of a mini hard Brexit for cross-border insolvency proceedings involving the UK and the Member States with the aim to explain why this specter should be avoided”.

Opinion of Advocate General Szpunar, Case C-253/19 – Novo Banco, on the COMI under the European Insolvency Regulation

Today, Advocate General Szpunar delivered his Opinion in Case C-253/19 – MH, NI v. OJ, Novo Banco SA. As is generally known, Article 3 of Regulation 2015/848, entitled ‘International jurisdiction’, provides in paragraph 1:

‘The courts of the Member State within the territory of which the centre of the debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings (“main insolvency proceedings”). The centre of main interests shall be the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties.

In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. That presumption shall only apply if the registered office has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of an individual exercising an independent business or professional activity, the centre of main interests shall be presumed to be that individual’s principal place of business in the absence of proof to the contrary. That presumption shall only apply if the individual’s principal place of business has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of any other individual, the centre of main interests shall be presumed to be the place of the individual’s habitual residence in the absence of proof to the contrary. This presumption shall only apply if the habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.’

As the Opinion explains (paras. 4 et seq.):

4. The applicants are married to each other and, since 2016, have been resident in Norfolk (United Kingdom), where they are engaged in paid employment. The couple made a request to the Portuguese courts to declare them insolvent. The court of first instance declared that it did not have international jurisdiction to rule on their request, holding that, under the fourth subparagraph of Article 3(1) of Regulation 2015/848, the centre of their main interests was their place of habitual residence, namely the United Kingdom.

5. The applicants brought an appeal against that judgment before the referring court, claiming that it was based on a misinterpretation of the rules laid down by Regulation 2015/848. In that regard, they submitted that, in so far as the sole immovable asset that they owned was located in Portugal, where all the transactions which gave rise to their insolvency had occurred, the centre of their main interests was not their place of habitual residence (United Kingdom), but was located in Portugal. Moreover, they claimed that there is no connection between their current place of residence and the events that led to their insolvency, which occurred entirely in Portugal.

6. The referring court has doubts as to the correct interpretation of Article 3(1) of Regulation 2015/848 and is uncertain, in particular, of the criteria to be used for the purpose of rebutting the simple presumption laid down in that provision for natural persons not exercising an independent business or professional activity, according to which, for such persons, the habitual residence of the concerned party is presumed to be the centre of that party’s main interests in the absence of proof to the contrary.

7. In that regard, the referring court points out that recital 30 of that regulation states that, in the case of natural persons not exercising an independent business or professional activity, it should be possible to rebut that presumption, for example where the major part of the debtor’s assets is located outside the Member State of the debtor’s habitual residence.

AG Szpunar proposed (paras. 65 et seq.) that the Court should answer the question referred for a preliminary ruling by the Tribunal da Relação de Guimarães (Court of Appeal, Guimarães, Portugal) as follows:

Article 3(1), first and fourth subparagraphs, of Regulation (EC) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the presumption that the habitual residence of a debtor who is a natural person not engaged in a self-employed activity is the centre of his main interests may be rebutted if the place of habitual residence does not fulfil its role as the place where a debtor’s economic decisions are taken, as the place where the majority of his revenue is earned and spent, or as the place where the major part of his assets is located.

However, that presumption cannot be rebutted in favour of the Member State within the territory of which a debtor’s sole immovable asset is located in the absence of any other indication that the centre of that debtor’s main interests is located in that Member State. That fact may be determined on the basis of objective factors which are ascertainable by third parties (current and potential creditors) and relate to the financial interests of that debtor.

The Volkswagen (VW) emissions scandal – The saga continues: Now it’s the turn of the Netherlands, France and Belgium

Thanks to the entering into force of the Dutch Collective Redress of Mass Damages Act (Wet afwikkeling massaschade in collectieve actie, WAMCA) on 1 January 2020, there has been an increase in prospective litigation against Volkswagen in the Netherlands and other countries in Europe involving the Volkswagen emissions scandal (also known as Dieselgate). We have previously reported on this law here and also on ongoing litigation against Volkswagen here (CJEU) and here (UK).

One of the institutes / organisations taking advantage of this opportunity is the Diesel Emissions Justice Foundation (DEJF), which was founded in the Netherlands, and which is seeking to be the exclusive representative in a collective redress action against Volkswagen. The DEJF is currently acting in the Netherlands, Belgium and France and has recently extended its activities to the rest of Europe provided that certain conditions are fulfilled (e.g. customers have not yet been compensated – one cannot be compensated twice and has to choose one representative – see more information here).

As indicated on its website, on 13 March 2020, DEJF summoned Volkswagen et al. to appear before the Amsterdam District Court under new WAMCA proceedings. DEJF requested to be appointed as the Exclusive Representative Organisation (“Lead Plaintiff”). A summary in English is available here and the full text in Dutch is available here. See a summary of the progress here.

Undoubtedly, the ongoing litigation in other parts of the world and its final outcome will have an impact on this action. We will keep you informed.

Sharing Economy in EU Private International Law

Edoardo Rossi has published (in Italian) a book on the Sharing Economic in EU Private International Law (“La Sharing Economy nel diritto internazionale privato europeo”). The author has kindly provided us with an abstract:

In the current economic and social context new and controversial sharing practices, offering anyone the opportunity to search for or make available goods or services on the market regardless of the professional or amateur nature of the persons involved, have emerged. These practices, very heterogeneous and concerning the most different areas of daily life, such as mobility, housing, business activities, communications, work, culture, communication, education and finance, have been linked  to the notion of “sharing economy”, which brings them together by virtue of temporary access to goods or services, facilitated by the large-scale intervention of digital platforms, through which requests and offers are coordinated online in order to share goods or services.

The legitimacy of schemes linked to these new economic models has been challenged in a number of aspects, including low quality of services, safety of consumers, authorisation and licensing, taxes and compliance with competition rules. The inadequacy of the existing rules to deal with the provision of services through the sharing economy models has consequently emerged.

In spite of these critical profiles, the legal relations established through sharing economy platforms are constantly increasing around the world, implying the emergence of elements of transnationality, from which derives the recourse to the rules of private international law, in order to determine the applicable law and the judge competent to rule on any disputes.

The monograph thus attempts to analyse some of the most important private international law issues, such as the inadequacy of the party autonomy in regulating the phenomenon, especially with reference to the general terms and conditions of contract unilaterally drawn up by platform operators, which state that the latter is totally unrelated to the legal relations between users, often in conflict with the minimum level of consumer protection guaranteed by EU law and by the national legislations. Critical profiles have also been identified in the online conclusion of contracts that bind the parties involved in sharing economy legal relations, in ascertaining the effectiveness of consent on the choice of forum and choice of law clauses, in cases of potential related actions and in the location of the “domicile” of the platform operators.

For further information see here.

The summary is available here.

Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 3/2020: Abstracts

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

A. Stein: The 2019 Hague Judgments Convention – All’s Well that Ends Well?

The Hague Convention on the Recognition and Enforcement of Foreign Judgments, which was concluded in July 2019, holds the potential of facilitating the resolution of cross-border conflicts by enabling, accelerating and reducing the cost of the recognition and enforcement of judgments abroad although a number of areas have been excluded from scope. As the academic discussion on the merits of this instrument unfolds and the EU considers the benefits of ratification, this contribution by the EU’s lead negotiator at the Diplomatic Conference presents an overview of the general architecture of the Convention and sheds some light on the individual issues that gave rise to the most intense discussion at the Diplomatic Conference.

C. North: The 2019 HCCH Judgments Convention: A Common Law Perspective

The recent conclusion of the long-awaited 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the “Judgments Convention”) provides an opportunity for States to reconsider existing regimes for the recognition and enforcement of foreign judgments under national law. This paper considers the potential benefits of the Judgments Convention from a common law perspective. It does so by considering the existing regime for recognition and enforcement at common law, and providing an overview of the objectives, structure and a number of key provisions of the Judgments Convention. It then highlights some of the potential benefits of the Convention for certain common law (and other) jurisdictions.

P.-A. Brand: Recognition and enforcement of decisions in administrative law matters

Whereas for civil and commercial matters there are extensive rules of international and European civil procedural law on mutual legal assistance and in particular on the recognition and enforcement of civil court decisions, there is no similar number of regulations on legal assistance and for the international enforcement of administrative court decisions. The same applies to the recognition of foreign administrative acts. This article deals with the existing rules, in particular with regard to decisions in administrative matters, and concludes that the current system of enforcement assistance in the enforcement of administrative decisions should be adapted to the existing systems of recognition and enforcement of judgments in civil and commercial matters.

B. Hess: About missing legal knowledge of German lawyers and courts

This article addresses a decision rendered by the Landgericht Düsseldorf in which the court declined to enforce, under the Brussels Ibis Regulation, a provisional measure issued by a Greek court. Erroneously, in its decision the Landgericht held that applications for refusal of enforcement of foreign decisions (article 49 Brussels Ibis Regulation) are to be lodged with the Landgericht itself. Since the party lodged its application with the Landgericht on the last day of

the time limit, the Oberlandesgericht Düsseldorf eventually held that the application was untimely as it was not lodged with the Oberlandesgericht, instead. The Oberlandesgericht refused to restore the status quo ante because the information about the competent court had been manifestly erroneous, whereas the lawyer is expected to be familiar with articles 49 (2) and 75 lit b) of the Brussels Ibis Regulation. This article argues that jurisdiction over applications for refusal of enforcement is not easily apparent from the European and German legal provisions and that the legal literature addresses the issue inconsistently. This results in a certain degree of uncertainty as concerns jurisdiction over such applications, making it difficult to establish cases of possibly manifestly incorrect applications.

C.F. Nordmeier: Abuse of a power of attorney granted by a spouse – The exclusion of matrimonial property regimes, the place of occurrence of the damage under Brussels Ibis and the escape clause of art. 4 (3) Rome II

The article deals with the abuse of power of attorney by spouses on the basis of a decision of the Higher Regional Court of Nuremberg. The spouses were both German citizens, the last common habitual residence was in France. After the failure of the marriage, the wife had transferred money from a German bank account of the husband under abusive use of a power of attorney granted to her. The husband sues for repayment. Such an action does not fall within the scope of the exception of matrimonial property regimes under art. 1 (2) (a) Brussels Ibis Regulation. For the purpose of determining the place where the damage occurred (Art. 7 No. 2 Brussels Ibis Regulation), a distinction can be made between cases of manipulation and cases of error. In the event of manipulation, the bank account will give jurisdiction under Art. 7 No. 2 Brussels Ibis Regulation. Determining the law applicable by Art. 4 (3) (2) Rome II Regulation, consideration must be given not only to the statute of marriage effect, but also to the statute of power of attorney. Particular restraint in the application of Art. 4 (3) (2) Rome II Regulation is indicated if the legal relationship to which the non-contractual obligation is to be accessory is not determined by conflict-of-law rules unified on European Union level.

P.F. Schlosser: Governing law provision in the main contract – valid also for the arbitration provision therein?

Both rulings are shortsighted by extending the law, chosen by the parties for the main contract, to the arbitration provision therein. The New York Convention had good reasons for favoring, in the absence of a contractual provision specifically directed to the arbitration provision, the law governing the arbitration at the arbitrators’ seat. For that law the interests of the parties are much more predominant than for their substantive agreements.

F. Rieländer: Choice-of-law clauses in pre-formulated fiduciary contracts for holding shares: Consolidation of the test of unfairness regarding choice-of-law clauses under Art. 3(1) Directive 93/13/EEC

In its judgment, C-272/18, the European Court of Justice dealt with three conflict-of-laws issues. Firstly, it held that the contractual issues arising from fiduciary relationships concerning limited partnership interests are included within the scope of the Rome I Regulation. While these contracts are not covered by the exemption set forth in Art. 1(2)(f) Rome I Regulation, the Court, unfortunately, missed an opportunity to lay down well-defined criteria for determining the types of civil law fiduciary relationships which may be considered functionally equivalent to common law trusts for the purposes of Art. 1(2)(h) Rome I Regulation. Secondly, the Court established that Art. 6(4)(a) Rome I Regulation must be given a strict interpretation in light of its wording and purpose in relation to the requirement “to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence”. Accordingly, this exception is applicable only if the consumer needs to leave the country in which he has his habitual residence for the purpose of enjoying the benefits of the services. Thirdly, the Court re-affirmed that choice-of-law clauses in pre-formulated consumer contracts are subject to a test of unfairness under Art. 3(1) Directive 93/13/EEC. Since the material scope of this Directive is held to apply to choice-of-law clauses, such a clause may be considered as unfair if it misleads the consumer as far as the laws applicable to the contract is concerned.

U. Bergquist: Does a European Certificate of Succession have to be valid not only at the point of application to the Land Registry, but also at the point of completion of the registration in the Land Register?

When it comes to the evidentiary effect of European Certificates of Successions, there are different opinions on whether a certified copy of the certificate has to be valid at the time of the completion of a registration in the Land register. The Kammergericht of Berlin recently ruled that a certified copy loses its evidentiary effect in accordance with art. 69 (2) and (5) of the European Succession Regulation (No. 650/2012) after expiry of the (six-month) validity period, even if the applicant has no influence on the duration of the registration procedure. This contribution presents the different arguments and concludes – in accordance with the Kammergericht – that not the date of submission of the application but the date of completion of the registration has to be decisive for the required proof.

D. Looschelders: International and Local Jurisdiction for Claims under Prospectus Liability

The judgment by the Austrian Supreme Court of Justice (Oberster Gerichtshof, OGH) deals with international and local jurisdiction for a claim under prospectus liability. It is mainly concerned with the determination of the place in which the harmful event occurred, as stated in Art. 5(3) of Regulation No 44/2001. Specifying the damage location can pose significant problems due to the fact that prospectus liability compensates pure economic loss. The OGH had stayed the proceedings in order to make a reference to the European Court of Justice (ECJ) for a preliminary ruling on several questions related to this issue. However, the decision by the ECJ left many details unsettled. This article identifies the criteria developed by the OGH in light of the case. The author agrees with the OGH to designate the damage location in this particular case as the injured party’s place of residence. Nevertheless, he points out the difficulties of this approach in cases where not all investment and damage specific circumstances point to the investor’s country of residence.

W.Voß: U.S.-style Judicial Assistance – Discovery of Foreign Evidence from Foreign Respondents for Use in Foreign Proceedings

In the future, will German litigants in German court proceedings have to hand over to the opposing party evidence located on German territory based on American court orders? In general, under German law, the responsibility to gather information and to clarify the facts of the case lies with the party alleging the respective facts, while third parties can only be forced to produce documents in exceptional circumstances. However, the possibility to obtain judicial assistance under the American Rule 28 U.S.C. § 1782(a) increasingly threatens to circumvent these narrow provisions on document production in transatlantic relations. For judicial assistance under this Federal statute provides parties to foreign or international proceedings with access to pre-trial discovery under U.S. law, if the person from whom discovery is sought “resides or is found” in the American court district. Over the years, the statute has been given increasingly broad applicability – a trend that is now being continued by the recent ruling of the Second Circuit Court of Appeals discussed in this article. In this decision, the Court addressed two long-disputed issues: First, it had to decide on whether the application of 28 U.S.C. § 1782(a) is limited to a person who actually “resides or is found” in the relevant district or whether the statute could be read more broadly to include all those cases in which a court has personal jurisdiction over a person. Second, the case raised the controversial question of whether 28 U.S.C. § 1782 allows for extraterritorial discovery.

M. Jänterä-Jareborg: Sweden: Non-recognition of child marriages concluded abroad

Combatting child marriages has been on the Swedish legislative agenda since the early 2000s. Sweden’s previously liberal rules on the recognition of foreign marriages have been revisited in law amendments carried out in 2004, 2014 and 2019, each reform adding new restrictions. The 2019 amendment forbids recognition of any marriage concluded abroad as of 1/1/2019 by a person under the age of 18. (Recognition of marriages concluded before 1/1/2019 follows the previously adopted rules.) The marriage is invalid in Sweden directly by force of the new Swedish rules on non-recognition. It is irrelevant whether the parties had any ties to Sweden at the time of the marriage or the lapse of time. The aim is to signal to the world community total dissociation with the harmful practice of child marriages. Exceptionally, however, once both parties are of age, the rule of nonrecognition may be set aside, if called upon for “extraordinary reasons”. No special procedure applies. It is up to each competent authority to decide on the validity of the marriage, independently of any other authority’s previous decision.  While access to this “escape clause” from the rule of non-recognition mitigates the harshness of the system, it makes the outcome unpredictable. As a result, the parties’ relationship may come to qualify as marriage in one context but not in another. Sweden’s Legislative Council advised strongly against the reform, as contrary to the aim of protecting the vulnerable, and in conflict with the European Convention on Human Rights, as well as European Union law. Regrettably, the government and Parliament took no notice of this criticism in substance.

I. Tekdogan-Bahçivanci: Recent Turkish Cases on Recognition and Enforcement of Foreign Family Law Judgements: An Analysis within the Context of the ECHR

In a number of recent cases, the Turkish Supreme Court changed its previous jurisprudence, rediscovered the ECHR in the meaning of private international law and adopted a fundamental-rights oriented approach on the recognition and enforcement of foreign judgements in family matters, i.e. custody and guardianship. This article aims to examine this shift together with the jurisprudence of the European Court of Human Rights, to find a basis for this shift by analysing Turkey’s obligation to comply with the ECHR and to identify one of the problematic issues of Turkish private international law where the same approach should be adopted: namely recognition and/or enforcement of foreign judgements relating to non-marital forms of cohabitation.

 

Opinion of AG Szpunar on “civil and commercial matters“ according to Article 1(1) Brussels I bis Regulation in Case C-73/19 – Movic

Today, AG Szpunar delivered his Opinion on the request for a preliminary ruling from the hof van beroep te Antwerpen (Court of Appeal of Antwerp, Belgium) on the interpretation of civil and commercial matters“ according to Article 1(1) Brussels I bis Regulation.

The question was (para. 1o):

“Is an action concerning a claim aimed at determining and stopping unlawful market practices and/or commercial practices towards consumers, instituted by the Belgian Government in respect of Dutch companies which from the Netherlands, via websites, focus on a mainly Belgian clientele for the resale of tickets for events taking place in Belgium, (…) a civil or commercial matter within the meaning of Article 1(1) of [Regulation 1215/2012], and can a judicial decision in such a case, for that reason, fall within the scope of that regulation?“

The relevant Belgium law prohibits, amongst others, the resale of event admission tickets. In addition, the business practice in question falls under the unfair business-to-consumer commercial practices legislation in Belgium. In both cases, the President of the Commercial Court deals with the matter. Actions are brought at the request of the competent minister of the Belgium Government. A variety of measures of relief was sought in the proceedings at hand: (1) a declaration that unfair commercial practices have taken place, (2) an order for cessation of those practices, (3) an order to publicise the court’s decision about the infringement at the expense of the defendants, (4) an order for penalty payments to be made in a fixed amount in respect of every future infringement, and (5) a ruling permitting the fact of such infringement to be certified simply by means of a report drawn up by an official, on oath, of the Algemene Directie Economische Inspectie (Directorate-General for Economic Inspection).

The matter thus was whether or to what extent the expression “civil and commercial matters” in Article 1(1) of the Brussels I bis Regulation, encompasses proceedings of that kind between the authorities of a Member State and private law entities established in another Member State. Evidently, this matter touches upon the delicate question of a private-public divide which generally is perceived to be more and more blurring (see e.g. Burkhard Hess, The Private-Public Divide in International Dispute Resolution, Recueil des Cours Vol. 388, The Hague 2018). Nevertheless, many instruments of Private International Law of the European Union make use of this divide to delineate their respective material scope of application and it may indeed be assumed that the term „civil and commercial matters“ should be interpreted not only autonomously but also consistently across the respective instruments (para. 41, with reference to the ECJ’s judgment of 28 July 2016, Verein für Konsumenteninformation, C?191/15, EU:C:2016:612, paragraph 39), at least in principle. The ECJ has struggled with this question in the past and has tended towards a broad understanding of civil and commercial matters, see e.g. ECJ, judgment of 9 March 2017, C-551/15, EU:C:2017:193 – Pula Parking, for a comment (mainly on other aspects of the case) on this blog see here; see also the recent Opinion by AG Spzunar in Rina, C-641/18, EU:C:2020:3, reported on this blog here. The judgment in Rina is expected to be handed down soon (originally scheduled for 7 May 2020, but was postponed – we will keep you posted). The Opinion im Movic seems to continue this tendency:

The following considerations were taken into account: (1) what does the nature of interests of the public authority to issue its request to the court need or not need to be (paras. 24 et seq.); (ii) in what way does the authority’s powers of investigation influence the analysis (paras. 48 et seq.), and (iii) whether the authority is granted special powers not available to private persons (here in particular the power to certify that infringements have occurred) contribute to the analysis (paras. 63 et seq.).

On the basis of this analysis, AG Szpunar proposed (para. 80) that

“proceedings relating to an action brought by the public authorities of a Member State against persons governed by private law established in another Member State, in which a declaration is sought that infringements constituting unfair commercial practices have taken place, together with an order for the cessation of those practices, an order for measures of publicity at the expense of the defendants, and an order for penalty payments to be made in a fixed amount in respect of every future infringement, fall within the scope of ‘civil and commercial matters’ within the meaning of that provision. On the other hand, such proceedings do not fall within the scope of that expression in so far as they relate to an action in which the public authorities seek the grant of special powers that go beyond those arising from the rules applicable in relationships between private individuals.“

The full text of the Opinion is available here.

 

Out now: List of China’s Cases on Recognition of Foreign Judgments

Written by Dr Meng Yu and Dr Guodong Du, co-founders of China Justice Observer. [Note: Click on the tables to enlarge them.]

A list of cases on the recognition and enforcement of foreign judgments between China and twenty (20) States and regions has been published by China Justice Observer, a legal information provider based in Beijing. This is a project sponsored by the Academy for the Rule of Law at China University of Political Science and Law. The contributors are Dr. Meng Yu and Dr. Guodong Du, co-founders of China Justice Observer.

You can download the List at:

https://www.chinajusticeobserver.com/a/list-of-chinas-cases-on-recognition-of-foreign-judgments.

The Case List is made available for the readers to build reasonable expectations on recognition and enforcement of foreign judgments (“REFJ”) in China. It comprises public Chinese court decisions involving REFJ, and many (if not all) foreign counterparts concerning the recognition and enforcement of Chinese judgments. Please note that foreign divorce judgments are excluded in the Case List.

To date, China Justice Observer has collected 57 cases involving China and 20 foreign States and regions. The Case List is continually updated with new reports. Case information, comments, and suggestions are most welcome. Please feel free to contact Dr. Meng Yu via e-mail at meng.yu@chinajusticeobserver.com.

For an overview of the disposition of cases on recognition of foreign judgments, please see table 1 below.

For information about bilateral judicial assistance treaties that China and 39 States have concluded, please see table 2 below.

For the detailed country(region) report about cases on recognition of foreign judgments, please see the following charts.

  1. America (USA) – China

To date, there are 13 court decisions involving the REFJ between China and the United States of America. More specifically:

  • In China, there are 7 cases, among which, Chinese courts recognized US judgments in 2 cases, while refused to recognize US judgments in 3 cases.
  • In the US, there are 6 cases, among which, the US courts recognized Chinese judgments in 4 cases, while refused to recognize Chinese judgments in 1 case.

Have China and the US concluded any treaty concerning REFJ? No.

What is the prerequisite and basis for Chinese courts to review US judgments? Reciprocity.

For the case info, please see the list above.

  1. Australia – China

To date, there are 4 court decisions involving the REFJ between China and Australia. More specifically:

  • In China, there is one case, where the Chinese court refused to recognize an Australian judgment.
  • In Australia, there are 3 cases, among which, the Australian courts recognized Chinese judgments in 2 cases, while refused to recognize Chinese judgments in 1 case.

Have China and Australia concluded any treaty concerning REFJ? No.

What is the prerequisite and basis for Chinese courts to review Australian judgments? Reciprocity.

For the case info, please see the list above.

  1. British Virgin Islands (BVI) – China

To date, there is one court decision involving the REFJ between China and the British Virgin Islands (BVI). More specifically:

  • In the BVI, there is one case, where the BVI court recognized a Chinese judgment.

Have China and the BVI concluded any treaty concerning REFJ? No.

What is the prerequisite and basis for Chinese courts to review the BVI judgments? Reciprocity.

For the case info, please see the list above.

  1. Canada – China

To date, there is one court decision involving the REFJ between China and Canada. More specifically:

  • In Canada, there is one case, where the Canadian court recognized a Chinese judgment.

Have China and Canada concluded any treaty concerning REFJ? No.

What is the prerequisite and basis for Chinese courts to review Canadian judgments? Reciprocity.

For the case info, please see the list above.

  1. Chad – China

To date, there is one court decision involving the REFJ between China and Chad. More specifically:

  • In China, there is one case, where the Chinese court refused to recognize a Chadian judgment.

Have China and Chad concluded any treaty concerning REFJ? No.

What is the prerequisite and basis for Chinese courts to review Chadian judgments? Reciprocity.

For the case info, please see the list above.

  1. France – China

To date, there are 5 court decisions involving the REFJ between China and France. More specifically:

  • In China, there are 5 cases, among which, Chinese courts recognized French judgments in 3 cases, while refused to recognize French judgments in 2 cases.

Have China and France concluded any treaty concerning REFJ? Yes.

What is the prerequisite and basis for Chinese courts to review French judgments? The bilateral treaty.

For the case info, please see the list above.

  1. Germany – China

To date, there are 4 court decisions involving the REFJ between China and Germany. More specifically:

  • In China, there are 3 cases, among which, Chinese courts recognized German judgments in one case, while refused to recognize German judgments in 2 cases.
  • In Germany, there is one case, where the German court recognized a Chinese judgment.

Have China and Germany concluded any treaty concerning REFJ? No.

What is the prerequisite and basis for Chinese courts to review German judgments? Reciprocity.

For the case info, please see the list above.

  1. Israel – China

To date, there are 2 court decisions involving the REFJ between China and Israel. More specifically:

  • In China, there is one case, where the Chinese court refused to recognize an Israeli judgment.
  • In Israel, there is one case, where the Israeli court recognized a Chinese judgment.

Have China and Israel concluded any treaty concerning REFJ? No.

What is the prerequisite and basis for Chinese courts to review Israeli judgments? Reciprocity.

For the case info, please see the list above.

  1. Italy – China

To date, there are 4 court decisions involving the REFJ between China and Italy. More specifically:

  • In China, there are 4 cases, among which, Chinese courts recognized Italian judgments in one case, while refused to recognize Italian judgments in 3 cases.

Have China and Italy concluded any treaty concerning REFJ? Yes.

What is the prerequisite and basis for Chinese courts to review Italian judgments? The bilateral treaty.

For the case info, please see the list above.

  1. Japan – China

To date, there are 4 court decisions involving the REFJ between China and Japan. More specifically:

  • In China, there are 2 cases, where Chinese courts refused to recognize Japanese judgments.
  • In Japan, there are 2 cases, where the Japanese court refused to recognize Chinese judgments.

Have China and Japan concluded any treaty concerning REFJ? No.

What is the prerequisite and basis for Chinese courts to review Japanese judgments? Reciprocity.

For the case info, please see the list above.

  1. Malaysia – China

To date, there is one court decision involving the REFJ between China and Malaysia. More specifically:

  • In China, there is one case, where the Chinese court refused to recognize a Malaysian judgment.

Have China and Malaysia concluded any treaty concerning REFJ? No.

What is the prerequisite and basis for Chinese courts to review Malaysian judgments? Reciprocity.

For the case info, please see the list above.

  1. Netherlands – China

To date, there is one court decision involving the REFJ between China and the Netherlands. More specifically:

  • In the Netherlands, there is one case, where the Dutch court recognized a Chinese judgment.

Have China and the Netherlands concluded any treaty concerning REFJ? No.

What is the prerequisite and basis for Chinese courts to review Dutch judgments? Reciprocity.

For the case info, please see the list above.

  1. Poland – China

To date, there is one court decision involving the REFJ between China and Poland. More specifically:

  • In China, there is one case, where the Chinese court recognized a Polish judgment.

Have China and Poland concluded any treaty concerning REFJ? Yes.

What is the prerequisite and basis for Chinese courts to review Polish judgments? The bilateral treaty.

For the case info, please see the list above.

  1. Russia – China

To date, there is one court decision involving the REFJ between China and Russia. More specifically:

  • In China, there is one case, where the Chinese court recognized a Russian judgment.

Have China and Russia concluded any treaty concerning REFJ? Yes.

What is the prerequisite and basis for Chinese courts to review Russian judgments? The bilateral treaty.

For the case info, please see the list above.

  1. Singapore – China

To date, there are 3 court decisions involving the REFJ between China and Singapore. More specifically:

  • In China, there are 2 cases, where Chinese courts recognized Singaporean judgments.
  • In Singapore, there is one case, where the Singaporean court recognized Chinese judgments.

Have China and Singapore concluded any treaty concerning REFJ? No, but the heads of the supreme courts in China and Singapore signed China-Singapore Memorandum of Guidance on Recognition and Enforcement of Money Judgments (Memorandum of Guidance).

What is the prerequisite and basis for Chinese courts to review Singaporean judgments? Reciprocity.

For the case info, please see the list above.

  1. South Korea – China

To date, there are 4 court decisions involving the REFJ between China and South Korea. More specifically:

  • In China, there are 3 cases, among which, the Chinese courts recognized a South Korean judgment in one case, while refused to recognize South Korean judgments in 2 cases.
  • In South Korea, there is one case, where the South Korean court recognized a Chinese judgment.

Have China and South Korea concluded any treaty concerning REFJ? No.

What is the prerequisite and basis for Chinese courts to review South Korean judgments? Reciprocity.

For the case info, please see the list above.

  1. Turkey – China

To date, there is one court decision involving the REFJ between China and Turkey. More specifically:

  • In China, there is one case, where the Chinese court recognized a Turkish judgment.

Have China and Turkey concluded any treaty concerning REFJ? Yes.

What is the prerequisite and basis for Chinese courts to review Turkish judgments? The bilateral treaty.

For the case info, please see the list above.

  1. UAE – China

To date, there are two court decisions involving the REFJ between China and the UAE. More specifically:

  • In China, there are two cases, where the Chinese courts recognized UAE judgments.

Have China and the UAE concluded any treaty concerning REFJ? Yes.

What is the prerequisite and basis for Chinese courts to review UAE judgments? The bilateral treaty.

For the case info, please see the list above.

  1. UK – China

To date, there are 2 court decisions involving the REFJ between China and the UK. More specifically:

  • In China, there is one case, where the Chinese court refused to recognize British judgments.
  • In the UK, there is one case, where the British court recognized a Chinese judgment.

Have China and the UK concluded any treaty concerning REFJ? No.

What is the prerequisite and basis for Chinese courts to review British judgments? Reciprocity.

For the case info, please see the list above.

  1. Uzbekistan – China

To date, there are two court decisions involving the REFJ between China and Uzbekistan. More specifically:

  • In China, there are two cases, where the Chinese courts refused to recognize Uzbekistani judgments.

Have China and Uzbekistan concluded any treaty concerning REFJ? Yes.

What is the prerequisite and basis for Chinese courts to review Uzbekistani judgments? The bilateral treaty.

For the case info, please see the list above.

 

Singapore Convention on Mediation to enter into force on 12 September 2020

Qatar is the third signatory State to the UN Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation”) to have ratified it. The other two are Singapore and Fiji (see previous post here). The Convention will enter into force after the deposit of three instruments of ratification. As Qatar deposited its instrument of ratification on 12 March 2020, the Convention will enter into force on 12 September 2020. The status table may be found here.