Iacyr de Aguilar Vieira, Gustavo Cerqueira (Eds.), The Vienna Convention in America. 40th anniversary of the United Nation Convention on Contracts for the International Sale of Goods / La Convention de Vienne en Amérique. 40^eanniversaire de la Convention des Nations Unies sur les contrats de vente internationale des marchandises, Paris : Société de législation comparée, 2020, 408 p. (available in hard copy and e-book)

To celebrate the 40th anniversary of the Vienna Convention on Contracts for the International Sale of Goods, the Latin American section of the Société de législation comparée has published this book to present the Convention’s current state of application in different American countries, as well as to evaluate its influence on domestic sales laws.

This book seeks to provide a better understanding of how the Convention is being applied in American countries and by doing so, supports the efforts towards its uniform application. Concerning the more specifics private international law issues, the numerous analyses relating to the applicability of the Convention and to the subsidiary application of national law offer very interesting insights into the conflict of laws systems of Contracting States in this part of the world. A comparative approach concludes the volume.

This book offers the perfect opportunity to compare the Vienna Convention’s implementation in American States and to benefit from the view of American scholars on this universal instrument for the uniformization of sales of goods.

Among the contributors are Maria Blanca Noodt Taquela, Alejandro Garro, Franco Ferrari, Lauro Gama Jr., Jose Antonio Moreno Rodríguez, Cecilia Fresnedo de Aguirre, Ana Elizabeth Villalta Vizcarra and Claudia Madrid Martínez.

This publication is meant for both scholars and lawyers in the field of international trade.

 

 

Maria Campo Comba just published a book titled: “The Law Applicable to Cross-border Contracts involving Weaker Parties in EU Private International Law” with Springer.  The abstract reads as follows:

This book provides answers to the following questions: how do traditional principles of private international law relate to the requirements of the internal market for the realisation of the EU’s objectives regarding the protection of weaker parties such as consumers and employees? When and how should private international law ensure the applicability of EU directives concerning the protection of weaker parties? Are the EU’s current private international law, rules on conflict of laws, and private international law approach sufficient to ensure the realisation of its objectives regarding weaker contracting parties, or is a different approach to private international law called for? The book concludes with several proposed amendments, mainly regarding the Rome I Regulation on the law applicable to contractual obligations, as well as suggestions on the EU’s current approach to private international law. 

This book is primarily intended for an academic audience and to help achieve better regulation in the future. It also seeks to dispel certain lingering doubts regarding the current practice of EU private international law.

 

More information on the book can be found here

Written by Catherine Shen, Project Manager, Asian Business Law Institute

 

1. The ConflictofLaws.net previously published a short update on the Asian Principles for the Recognition and Enforcement of Foreign Judgments (Adeline Chong ed, Asian Business Law Institute, 2020) which was released in September 2020.
2. Starting in November 2020, ABLI has been following up that publication with a series of concise handbooks written in no-frills languages called “Where in Asia” to address practical questions such as where in Asia judgments from a particular jurisdiction are entitled to be, have been and cannot be, recognised and enforced in other jurisdictions. The jurisdictions considered are Australia, Brunei, Cambodia, China, India, Japan, Lao, Malaysia, Myanmar, the Philippines, Singapore, South Korea, Thailand and Vietnam, which corresponds to those discussed in the two flagship ABLI publications on judgments recognition and enforcement: Recognition and Enforcement of Foreign Judgments in Asia (Adeline Chong ed, Asian Business Law Institute, 2017) and the Asian Principles.
3. For example, included in this “Where in Asia” series is a Quantitative Analysis of the Enforcement of Foreign Judgments in China (as of December 2020) which is based on a list on China’s cases on recognition of foreign judgments (List) being maintained by China Justice Observer (CJO).
4. While CJO’s List looks at both applications to recognise and enforce foreign judgments in China as well as those to recognise and enforce Chinese judgments in foreign jurisdictions, ABLI’s analysis focuses specifically on the former category of applications.
5. Based on the List, ABLI identified an uptick in the number of such applications from 2015 to 2020, compared to the previous two decades, with Europe being the region that has exported the most judgments to China.
6. Further, there are two routes for the recognition and enforcement of foreign judgments in China: either pursuant to a bilateral agreement (or “treaty”) between China and the country of the foreign court for the reciprocal enforcement of each other’s judgments, or under China’s domestic Civil Procedure Law (CPL) in the absence of such an agreement or treaty. Through its analysis, ABLI found that almost three in every five applications to enforce foreign judgments in China were unsuccessful, which is hardly surprising considering that more than half of all applications were made under the CPL route where applicants are required to demonstrate reciprocity. Under Chinese law currently, de facto reciprocity is required ie it has to be established that the foreign court whose judgment is before the Chinese court had previously enforced a Chinese judgment.
7. Other key insights revealed by the analysis include the percentage of applications that failed due to lack of reciprocity, the percentage of applications that were unsuccessful on procedural grounds, the percentage of applications that came from Belt and Road countries, etc.
8. The other handbooks available in the “Where in Asia” series include where in Asia can judgments from Australia, China, India, Indonesia, Malaysia, Singapore, Thailand and Vietnam be enforced in the Asia Pacific. Of particular interest may be the position in relation to Indonesian and Thai judgments. Since these two countries generally do not allow the recognition and enforcement of any foreign judgment, how is this stance affecting the exportation of their own judgments abroad? For example, the Indonesia handbook specifically discusses the case of Paulus Tannos v Heince Tombak Simanjuntak ([2020] SGCA 85, [2020] 2 SLR 1061) where the Singapore Court of Appeal overturned the High Court’s decision last year and refused to recognise Indonesian bankruptcy orders on the ground of breach of natural justice.
9. The “Where in Asia” series is available here. ABLI is delighted to offer readers of ConflictofLaws.net an exclusive discount off its entire judgments book collection. Please write to catherine_shen@abli.asia for more information and your unique coupon code.

JM Scherpe and E Bargelli have just published an edited book titled: “The Interaction between Family Law, Succession Law and Private International Law” with Intersentia.

The publisher’s blurb reads as follows:

There can be no doubt that both substantive family and succession law engage in significant interaction with private international law, and, in particular, the European Union instruments in the field. While it is to be expected that substantive law heavily influences private international law instruments, it is increasingly evident that this influence can also be exerted in the reverse direction. Given that the European Union has no legislative competence in the fields of family and succession law beyond cross-border issues, this influence is indirect and, as a consequence of this indirect nature, difficult to trace.

This book brings together a range of views on the reciprocal influences of substantive and private international law in the fields of family and succession law. It outlines some key elements of this interplay in selected jurisdictions and provides a basis for discussion and future work on the reciprocal influences of domestic and European law. It is essential that the choices for and within certain European instruments are made consciously and knowingly. This book therefore aims to raise awareness that these reciprocal influences exist, to stimulate academic debate and to facilitate a more open debate between European Institutions and national stakeholders.

 

More information can be found here

The latest amendments to the International Chamber of Commerce (“ICC”) Arbitration Rules enter into force today, providing for a restyling to the 2012 rules (as earlier amended in 2017). The restyling aims to fine-tune the current rules by increasing flexibility, efficiency and transparency of the ICC arbitrations and taking in the practice that the International Court of Arbitration (“Court”) has meanwhile developed and consolidated.

This post briefly lists the main novelties.

1.Multi-party disputes (and disputes arising out of multi-tier contracts) will profit from an improved joinder and consolidation regime. The new rules entitle the tribunal, once constituted and upon request of a party addressed to the Secretariat, to join third parties after considering “all the relevant circumstances”, provided that the additional parties accept the constitution of the tribunal and agree to the Terms of Reference, where applicable (Article 7 (5)). Among the circumstances to be taken into account, the tribunal shall assess prime facie its jurisdiction over the additional party, the timing of the request for joinder, possible conflicts of interest and the impact of the joinder on the proceedings. As regards consolidation, it is also available in the case of two or more ICC arbitrations in which the disputed claims are made under multiple arbitration agreements (Article 10 (b)).

2.Yesterday a year closed which saw arbitration increasingly making use of virtual hearings and electronic filings, thereby experiencing a process of digitalization against the backdrop of the pandemic. Many benefits for the “good administration of arbitration” easily came into light, compared with the difficulties for arbitrators, parties and staff to personally meet.

Admittedly, the ongoing efforts to make arbitration resilient in these dramatic days should result in getting it more efficient (and cheaper) also in the upcoming post-pandemic era.

In this vein, the new ICC rules allow the tribunal to decide, after consulting the parties, that hearings can be conducted remotely (Article 26 (1)), thereby easing the proceedings conduct and adding to efficiency in the light of the circumstances of the case. The option for electronic submission is acknowledged for the Request for Arbitration, the Answer and any written communication.

3.Any revision, even the slightest, in the realm of arbitration always attempts to strengthen transparency, equality of parties, and enforceability of the awards.

Article 11 (7) compels parties to disclose any third-party funder (referred to as “any non-party which has entered into an arrangement for the funding of claims or defences and under which it has an economic interest in the outcome of the arbitration”). This will assist arbitrators in complying with their duties of impartiality and independence, while lessening the deal of information that parties habitually keep confidential. The aim to reinforce transparency, impartiality and independence also marks the contents of Article 17 (2) and Article 13 (6). The first empowers the tribunal to “take any measure necessary to avoid a conflict of interest” stemming from a change in party representation. The tribunal will act so only after giving an opportunity to the parties to comment in writing within a suitable period of time. Article 13 (6) takes care of impartiality and independence in the appointment of arbitrators in investment arbitration, requiring the prospected arbitrators not to have the same nationality of any party.

Transparency also underpins the amendment of Appendices I and II, which respectively gather the Statute and the Internal Rules of the Court. Particularly, Appendix II features new Article 5, which governs the communication from the Court of the reasons of its decisions. Only exceptionally may the Court refuse such communication.

With the view to protecting the equality of parties and the validity of the award, the Court may exceptionally appoint each member of the tribunal (Article 12 (9)). This power aims to discourage practices which threaten the validity of the tribunal constitution, such as drafting arbitration agreements with one-sided clauses for the appointment of the members.

4.A clarification has been inserted as to the tribunal’s power to render “additional awards” in case of claims that it “omitted to decide” (Article 36 (3)). Parties have to apply to the Secretariat for an additional award only in respect of “claims made in proceedings”.

5.Finally, fast track arbitration will be open to more transactions as the maximum dispute value to trigger expedited procedures raises from 2 to 3 US$ million for arbitration agreements concluded as of today. The chance to opt-in for applying the expedite procedure to higher-value disputes remains, as it does the opt-out and the Court’s assessment, upon request of a party, that the expedite procedure is inappropriate in the circumstances.

In the light of foregoing, it is apparent that, even if no full-blown revision unfolds to the arbitration community’s eyes, the listed “adjustments” are designed to benefit parties, arbitral tribunal and staff in the short and long term.