On Friday, November 13, at 11:oo Brasilia time (i.e. 15:00 in Hamburg and 9:oo a.m. in New York) this book will be launched via zoom. The book emerges from a 2019 conference in Brasilia, which brought together scholars from several countries, and in several languages (Portuguese, Spanish, English). It demonstrates the vibrancy of private international law in Latin America.
Sign up for the event here.
This Thursday 12 and Friday 13 November, the 2020 International Conference of the Korean Judicial Policy Research Institute (JPRI) will take place. The conference is co-organised by the JPRI, the Hague Conference on Private International Law (HCCH), the International Institute for the Unification of Private Law (UNIDROIT), and the United Nations Commission on International Trade Law (UNCITRAL).
This year’s conference theme is “International Commercial Litigation: Recent Developments and Future Challenges”, with sessions spanning a variety of topics, including international commercial contracts, secured transactions and insolvency, recognition and enforcement of foreign judgments, e-litigation and e-service, and the enforcement of arbitral awards and mediation settlement agreements. The full programme is available here.
The sessions will be streamed on the JPRI YouTube Channel.
This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).
In my last blog post, I made mention of a Nigerian Court of Appeal decision that applied the principle of contract law exclusively to a foreign jurisdiction clause.[1] In that case, applying the principles of Nigerian contract law, the Nigerian Court of Appeal held that the alleged choice of court agreement in favour of Benin Republic was unenforceable because the terms were not clear and unambiguous in conferring jurisdiction on a foreign forum.[2]
The purpose of this blog post is to analyse a more recent Nigerian Court of Appeal decision where the court gave full contractual effect to the parties’ choice of court agreement by strictly enforcing a Dubai choice of court agreement.[3]
2. Facts
Damac Star Properties LLC v Profitel Limited (“Damac”)[4] was the fall out of an investment introduced to the 1st plaintiff/respondent by the 2nd respondent allegedly on behalf of the defendant/appellant wherein the 1st plaintiff/respondent paid a deposit of 350,000.00 US Dollars for 9 apartments in Dubai and being 20% of the total cost of the apartments. The contract between the 1st plaintiff/respondent and defendant/appellant contained an exclusive choice of court clause in favour of Dubai. There was a dispute between the parties as to some of the terms of the contract. This resulted in the defendant/appellant selling the apartments to another buyer. The 1st plaintiff/respondent requested for a refund of the deposit that was paid to the defendant/appellant, but its request was declined. As a result of this, the 1st plaintiff/respondent initiated a suit for summary judgment in High Court, Federal Capital Territory, Nigeria, against the defendant/appellant and the 2nd respondent, and got an order to serve the defendant/appellant through the 2nd respondent, its alleged agent in Nigeria. At this stage, the defendant/appellant did not appear and was unrepresented in proceedings at the High Court. The High Court proceeded to hear the suit and entered judgment against the defendant/appellant with an order to refund the sum of 350,000.00 US Dollars with 10% interest from date of judgment till the judgment sum was fully liquidated. The defendant/appellant applied to the High Court to set aside the judgment, but the court dismissed the application.
3. Decision
The defendant/appellant appealed to the Court of Appeal. The Court of Appeal unanimously allowed the appeal. The Court of Appeal held on the basis of the exclusive choice of court agreement in favour of Dubai – which it regarded as valid – the lower court should not have assumed jurisdiction.
4. Judicial statements in Support of Damac
As stated in my last blog post, there is now a trend among appellate Courts in Nigeria (Court of Appeal and Supreme Court) to give choice of court agreements a contractual function. Damac Star Properties LLC (supra) is one of the cases where the Court of Appeal simply gives a choice of court agreement a contractual function without considering whether the choice of court agreement ousted the jurisdiction of the Nigerian courts, or whether Nigeria was the forum conveneins for the action.[5] This point is important, as it appears that there is now some movement in Nigerian jurisprudence towards giving choice of court agreements a contractual function. Given that Nigeria is a common law jurisdiction, it is worth quoting statements from some Nigerian Supreme Court and Court of Appeal judges that have given a choice of court agreements a contractual function.
Nnamani JSC opined that: “I think that in the interest of international commercial relations courts have to be wary about departing from fora chosen by parties in their contract. There ought to be very compelling circumstances to justify such a departure.”[6]
Tobi JSC observed: “The bill of lading contains the contractual terms [foreign jurisdiction clause] between the parties and therefore binding on the parties. Parties are bound by the conditions and terms in a contract they freely enter into… The meaning to be placed on a contract is that which is the plain, clear and obvious result of the terms used… When construing documents in dispute between two parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not potent on the face of the document… Where there is a contract regulating any arrangement between the parties, the main duty of the court is to interpret that contract and to give effect to the wishes of the parties as expressed in the contract document… The question is not what the parties to the documents may have intended to do by entering into that document, but what is the meaning of the word used in the document… While a contract must be strictly construed in accordance with the well-known rules of construction, such strict construction cannot be aground for departing from the terms which had been agreed by both parties to the contract… It is the law that parties to an agreement retain the commercial freedom to determine their own terms. No other person. Not even the court, can determine the terms of contract between parties thereto. The duty of the court is to strictly interpret the terms of the agreement on its clear wordings… Finally, it is not the function of a court of law either to make agreements for the parties or to change their agreements as made.”[7]
In Conoil Plc v Vitol SA,[8] the Supreme Court Justices were unanimous on the contractual effect of a choice of court agreement. Nweze JSC in his leading judgment stated that: “In all, the truth remains that if parties, enter into an agreement, they are bound by its terms.”[9] Okoro JSC concurred that: “The law is quite’ settled that parties are bound by the contract they voluntarily enter into and cannot act outside the terms and conditions contained in the said contract. When parties enter into a contract, they should be careful about the terms they incorporate into the contract because the law will hold them bound by those terms. No party will be allowed to read into the contract terms on which there has been no agreement. Any of the parties who does so violates the terms of that contract…. Having agreed that any dispute arising from the contract should be settled at the English court, the appellant was bound by the terms of the contract.”[10] Eko JSC also concurred that: “Where parties, fully cognizant of their rights, voluntarily elect and nominate the forum for the resolution of any dispute arising from their contract, with international flavour as the instant, the courts always respect and defer to their mutual wishes and intention. The courts only need to be satisfied that, in their freedom of contract, the parties negotiated and agreed freely to subject their dispute to the laws and country of their choice.”[11]
Owoade JCA held that: “…it is pertinent to observe that as a general rule in the relationship between national law and international Agreements, freely negotiated private international agreement, unsullied by fraud, undue influence or overwhelming bargaining power would be given full effect. This means that, where such contract provides for a choice of forum, such clause would be upheld unless upholding it would be contrary to statute or public policy of the forum in which the suit is brought.”[12]
In Beaumont Resources Ltd v DWC Drilling Ltd,[13] the Court of Appeal Justices were unanimous on the contractual effect of a choice of court agreement. Otisi JCA held that: “…it is settled that, in the absence of fraud, misrepresentation and illegality, parties to an agreement or contract are bound by the terms and conditions of the contract they signed… It is also well established that the Court cannot make contracts for the parties, rewrite the contract or go outside the express terms of the contract to enforce it…”[14] Sankey JCA concurred that: “The Court of law, on the other hand, must always respect the sanctity of the agreement of the parties – the role of the Court is to pronounce on the wishes of the parties and not to make a contract for them or to rewrite the one they have already made for themselves. The judicial attitude or disposition of the Court to terms of agreement freely entered into by parties to contract is that the Court will implement fully the intention of the contracting parties. This is anchored on the reasoning that where the terms of a contract are clear and unambiguous, the duty of the Court is to give effect to them and on no account should it re-write the contract for the parties. In the absence of fraud, duress or misrepresentation, the parties are bound to the contract they freely entered into.”[15]
The above judicial statements are replete with applying the principles of Nigerian contract law to the terms of a choice of court agreement. In essence, parties are bound by the clear and unambiguous terms of a choice of court agreement, which the Nigerian court will strictly enforce. On this score, Damac is on strong footing and unassailable.
5. Judicial decisions that might be against Damac
Some of the above stated judicial cases, though giving a choice of court agreement a contractual function also considered whether such agreements oust the jurisdiction of the Nigerian court, and whether Nigeria was the more appropriate forum to resolve such disputes despite the presence of a choice of court agreement. Damac is one of the few Court of Appeal cases that exclusively give a choice of court agreement a contractual function without a consideration of whether it is an ouster clause or the Nigerian Court is the forum conveniens.[16]
5.1 Ouster Clause
On the issue of ouster clause, in the early case of Ventujol v Compagnie Francaise De L ’ Afrique Occidentale,[17] Ames J held that in a contract of employment which was entered into in France to be performed in Nigeria, where the defendant also had agents (in Nigeria), the clause for submission of disputes to a Tribunal de Commerce de Marseilles (a French Court at that time) was an agreement to oust the jurisdiction of the court and of no effect. Similarly, in Allied Trading Company Ltd v China Ocean Shipping Line,[18] the plaintiff sought to recover damages for non-delivery of goods. The defendant entered an unconditional appearance, admitted the goods were lost, and denied liability on the grounds, inter alia, that the court had no jurisdiction since the parties had agreed that all disputes arising under or in connection with the bill of lading should be determined in the People’s Republic of China. It was held, inter alia, that this provision purported to oust the jurisdiction of the Nigerian court entirely and was therefore contrary to public policy. In Sonnar (Nig) Ltd v Partenreedri MS Norwind[19] Oputa JSC opined that as a matter of public policy Nigerian Courts “should not be too eager to divest themselves of jurisdiction conferred on them by the Constitution and by other laws simply because parties in their private contracts chose a foreign forum … Courts guard rather jealously their jurisdiction and even where there is an ouster clause of that jurisdiction by Statute it should be by clear and unequivocal words. If that is so, as is indeed it is, how much less can parties by their private acts remove the jurisdiction properly and legally vested in our Courts? Our courts should be in charge of their own proceedings. When it is said that parties make their own contracts and that the courts will only give effect to their intention as expressed in and by the contract, that should generally be understood to mean and imply a contract which does not rob the Court of its jurisdiction in favour of another foreign forum.”[20]
If the above judicial postulations were given literal effect by the Court of Appeal in Damac the exclusive choice of court agreement in favour of Dubai would be regarded as null and void. In effect, treating a choice of court agreement as an ouster clause has the effect of making a choice of court agreement illegal, unlawful or at best unenforceable. Recently, Nweze JSC has interpreted the concept of ouster clause to the effect “that our courts will only interrogate contracts which are designed to rob Nigerian courts of their jurisdiction in favour of foreign fora or where, by their acts, they are minded to remove the jurisdiction, properly and legally, vested in Nigerian courts.”[21] I will interpret Nweze JSC’s statement to mean that where a Nigerian court as a matter of state interest is exclusively vested by statute, the constitution or common law with a subject matter, then no foreign court can have jurisdiction in such matters.[22] Under common law, a clear example of this is a matter relating to immovable property, where the Nigerian court has exclusive jurisdiction. So the implication of this is that the concept of ouster clause has very limited effect in Nigerian jurisprudence.
5.2 Brandon Tests
Damac did not consider the application of the Brandon tests in Nigerian jurisprudence. The Brandon test is a form of application of forum non conveniens to choice of court agreements.
Brandon J, in The Eleftheria,[23] delivered a brilliant decision on this subject. The decision provided comprehensive guidelines that the English court should take into account in deciding whether to give effect to a foreign jurisdiction clause. This is often referred to as “the Brandon test” in Nigerian jurisprudence. Nigerian courts have regularly referred to the Brandon test and utilised it with approval in decided cases.[24] The test is stated hereunder as follows (as it has been referred to and applied) in the Nigerian context: 1. Where plaintiffs sue in Nigeria in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the Nigerian court, assuming the claim to be otherwise within the jurisdiction is not bound to grant a stay but has a discretion whether to do so or not. 2. The discretion should be exercised by granting a stay unless strong cause for not doing it is shown. 3. The burden of proving such strong cause is on the plaintiffs. 4. In exercising its discretion the court should take account of all the circumstances of the particular case. 5. In particular, but without prejudice to (4), the following matters where they arise, may be properly regarded: (a) In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the Nigerian and foreign courts. (b) Whether the law of the foreign court applies and, if so, whether it differs from Nigerian law in any material respects. (c) With what country either party is connected and how closely (d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages. (e) Whether the plaintiff s would be prejudiced by having to sue in the foreign country because they would (i) be deprived of security for that claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with a time-bar not applicable in Nigeria; or (iv) for political, racial, religious, or other reasons be unlikely to get a fair trial (v) the grant of a stay would amount to permanently denying the plaintiff any redress.
The only reported cases where the plaintiff(s) have successfully relied on the Brandon test is where their claim is statute barred in the forum chosen by the parties.[25] Indeed, the burden is on the plaintiff to show strong cause why Nigerian proceedings should be stayed in breach of a choice of court agreement; if not Nigerian courts will give effect to the choice of court agreement.[26]
In Damac, the plaintiff did not demonstrate strong reasons why the choice of court agreement should not be enforced. So even if the Brandon test was considered by the Court of Appeal, the claimant will not have succeeded.
6. Some Reservations
There are three reservations I have about the Court of Appeal’s decision in Damac. First, the Court of Appeal should have ordered a stay of proceedings rather than holding that the lower court did not have jurisdiction. This is what is done in other common law countries. There is wisdom in this approach. If it turns out that the claimant cannot institute its claims in Dubai, the Nigerian forum should remain available to promptly institute its actions against the defendant in this case.
Second the Court of Appeal held that jurisdiction can be raised for the first time on appeal. This statement only applies to substantive jurisdiction. Procedural jurisdiction cannot be raised on appeal for the first time. Thus, if it is established that the defendant/appellant did not promptly raise the issue of choice of court agreement in favour of Dubai at the High court, this might be a ground upon which the defendant/appellant can successfully challenge the decision of the Court of Appeal. This is because the issue of choice of court agreement is a procedural matter and a defendant that wants to raise the issue of choice of court agreement must do so promptly, or it will be deemed to have waived its right by submitting to the jurisdiction of the Nigerian court.
Finally, the Court of Appeal made wrong reference to choice of venue rules[27] as applicable, assuming the choice of court agreement in this case is invalid. Choices of venue rules are only applicable to determine the judicial division to institute a matter for geographic convenience. For example, Lagos State has four judicial divisions: Lagos, Ikeja, Epe and Ikorodu. In the event there is a dispute as to which of the judicial divisions should hear a matter, the rules of court are to be relied on.[28] Choice of venue rules do not apply to determine private international law matters as in this case.
In particular, given that Damac was a contractual private international law matter where the defendant was neither resident or submitted to the jurisdiction of the court,[29] Order 8(1)(e)(ii) of the High Court of Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018 may have been considered.[30] Order 8(1)(e)(ii) provides that the court may allow any originating or other processes to be served outside Nigeria where: the claim is brought against a defendant to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or other relief for or in respect of a contract made by or through an agent residing or carrying on business within jurisdiction on behalf of a principal residing or carrying on business outside jurisdiction.
7. Conclusion
Damac is a recent trend among Nigerian courts to give a choice of court agreement a contractual function. Indeed, Damac is one of the few cases where issues of ouster clause and forum non conveniens no longer feature in the judgment of the court. There are good reasons why a choice of court agreement should be strictly enforced contractually. It promotes certainty and enhances the efficacy of international commercial transactions. However, given contractual enforcement to a choice of court agreement should only be regarded as a general rule and not an absolute rule. Nigerian courts should retain its discretion not to enforce choice of court agreements especially in the interest of justice and the protection of economically weaker parties.
[1]Kashamu v UBN Plc (2020) 15 NWLR (Pt. 1746) 90.
[2] Ibid 114-6.
[3] Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699(CA).
[4] Ibid.
[5]For an extended analysis see generally CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, 2020) 107 – 125.
[6]Sonnar (Nig) Ltd v Partenreedri MS Norwind (1987) 4 NWLR 520, 541.
[7] Nika Fishing Company Ltd v Lavina Corporation (2008 ) 16 NWLR 509, 542-3.
[8] ( 2018 ) 9 NWLR 463, 489.
[9] Ibid
[10]Ibid 500-1.
[11]Ibid 502.
[12] Captain Tony Nso v Seacor Marine ( Bahamas) Inc ( 2008 ) LPELR-8320 (CA) 12-3.
[13]( 2017 ) LPELR-42814.
[14] Ibid 30.
[15]Ibid 49-50.
[16] See also Megatech Engineering Limited v Sky Vision Global Networks Llc (2014) LPELR-22539 (CA); Kashamu v UBN Plc (2020) 15 NWLR (Pt. 1746) 90; Unipetrol Nigeria Ltd v Prima Alfa Enterprises (Nig) Ltd ( 1986 ) 5 NWLR 532.
[17] (1949) 19 NLR 32.
[18] (1980) (1) ALR Comm 146.
[19](1987) 4 NWLR 520.
[20] Ibid 544-5.
[21] Conoil Plc v Vitol SA ( 2018 ) 9 NWLR 463, 489
[22]See generally CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, 2020) 117 – 124.
[23]The Owners of Cargo Lately Laden on Board the Ship or Vessel ‘ Elftheria ’ v ‘ The Elftheria ’ (Owners), ‘ Th e Elft heria ’ [1969] 1 Lloyd ’ s Rep 237.
[24] See generally GBN Line v Allied Trading Limited ( 1985 ) 2 NWLR (Pt. 5) 74 ; Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520 ; Nika Fishing Company Ltd v Lavina Corporation ( 2008 ) 16 NWLR 509 ; Captain Tony Nso v Seacor Marine ( Bahamas ) Inc ( 2008 ) LPELR-8320 (CA) ; Beaumont Resources Ltd v DWC Drilling Ltd ( 2017 ) LPELR-42814 (CA) .
[25] Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520.
[26] Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509.
[27] In applying the choice of venue rules of Abuja on matters of contract, it considered where the contract was made, place of performance and residence of the parties as prescribed in the rules of court.
[28] Order 4 of the High Court of Lagos (Civil Procedure) Rules 2019 (formerly Order 2 of the High Court of Lagos (Civil Procedure) Rules 2012).
[29]In Nigerian common law private international law, a court has jurisdiction as a matter of right where the defendant is either resident or submits to the jurisdiction of the court. See generally CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, 2020) 50 -86.
[30]This is on the assumption that there was no valid choice of court agreement.
The third issue of 2020 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:
Ilaria Viarengo, Professor at the University of Milan, Planning Cross-Border Successions: The Professio Juris in the Succession Regulation (in English)
The following comment is also featured:
Edoardo Benvenuti, PhD Candidate at the University of Milan, La tutela collettiva risarcitoria dei consumatori nelle controversie transfrontaliere: diritto interno e prospettive di armonizzazione (‘Cross-Border Consumer Collective Redress: Domestic Law and Prospects for Harmonisation’; in Italian)
In addition to the foregoing, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Chris Brummer (ed.), Cryptoassets: Legal, Regulatory and Monetary Perspectives, Oxford University Press, New York, 2019, pp. XIII-441.
Today (9 November 2020) ASADIP and UNCITRAL are organising a preparatory conference to the first edition of UNCITRAL Day in Latin America and the Caribbean region (UNCITRAL LAC DAY 2020 – la primera edición del Día de UNCITRAL en América Latina y el Caribe). For more information see here. Free registration here. For other events on UNCITRAL Day click here.
The programme of the XLIII Seminar of the Mexican Academy of Private International and Comparative Law (AMEDIP) is now available here. As previously announced, the XLIII Seminar will take place on 19-20 November 2020 for the first time online.
Among the topics to be discussed are the 1996 HCCH Child Protection Convention, the 1980 HCCH Child Abduction Convention, the 2019 HCCH Judgments Convention, the 2005 HCCH Choice of Court Convention, the HCCH Guide to Good Practice on the Use of Video-link, Human rights and PIL, the brand-new T-MEC / US-Mexico-Canada Agreement (USMCA), digital justice, COVID-19, and alternative dispute resolution.
The meeting will be held via Zoom.
Access details:
https://us02web.zoom.us/j/5554563931?pwd=WE9uemJpeWpXQUo1elRPVjRMV0tvdz09
ID: 555 456 3931
Password: 00000
It will also be transmitted live via AMEDIP’s Facebook page.
Participation is free of charge. The language of the seminar will be Spanish.
For more information, see AMEDIP’s website.
Professor Paul Beaumont (University of Stirling), Dr Mihail Danov (University of Exeter) and Dr Jayne Holliday (University of Stirling) are delighted to be able to host the final AHRC funded Research Network workshop in partnership with the Journal of Private International Law.
Please note that you are welcome to attend as much or as little of the workshop as you are able.
Chair – Professor Paul Beaumont (University of Stirling and co-editor of the Journal of Private International Law)
10.00-10.30 The Opportunities of Brexit for the development of Private International Law in the Commonwealth
Speaker – Professor Reid Mortensen (University of South Queensland)
10.30-10.45 Questions and discussion
10.45-11.15 Some Reflections to be drawn from the Pilot Study and Future Research Project/s
Speaker – Dr Mihail Danov (University of Exeter)
11.15-11.30 Questions and Discussion
11.30-11.45 Coffee Break
Chair – Dr Jayne Holliday (University of Stirling)
11.45-12.15 Connecting Factors in Private International Law – a global perspective
Speakers – Professor Susanne Goessl (University of Kiel) and Dr Ruth Lamont (University of Manchester)
12.15-12.30 Questions and Discussion
12.30-14.00 Lunch break
Chair – Dr Mihail Danov
14.00-14.45 Pluses and minuses of the UK being a party to the Lugano Convention after Brexit
Speaker – Professor Fausto Pocar (University of Milan)
14.45-15.00 Questions and discussion
Chair – Professor Jonathan Harris QC (King’s College London, co-editor of the Journal of Private International Law and Serle Court)
10.30-10.50 Keynote speech by Lord Mance former UK Supreme Court Judge
10.50-11.15 Questions and Discussion and Comments by the Chair
11.15-11.45 Resolving Conflicts of Jurisdiction after Brexit at a global level
Speaker – Dr Ardavan Arzandeh (University of Bristol and soon to be National University of Singapore)
11.45-12.00 Questions and Discussion
Chair – Dr Jayne Holliday
12.00-12.30 The Hague Adults Convention 2000 and the role of the UK and the EU in the Hague Conference after Brexit
Speaker – Professor Pietro Franzina (Catholic University, Milan)
12.30-12.45 Questions and Discussion
Lunch Break
Chair – Dr Mihail Danov
15.00-15.30 Private International Law of Arbitration – a global perspective and the impact of Brexit on arbitration in the UK
Speaker – Professor Giuditta Cordero-Moss (University of Oslo)
15.30-15.45 Questions and Discussion
15.45-16.15 The AHRC Research Network on Private International Law: Some reflections on the way ahead for global private international law.
Speaker – Professor Paul Beaumont
16.15-16.30 Questions and Discussion
Professor Paul Beaumont (University of Stirling), Dr Mihail Danov (University of Exeter) and Dr Jayne Holliday (University of Stirling) are delighted to be able to host the third of four public AHRC workshops on Private International Law after Brexit from global, European, Commonwealth and intra-UK perspective.
Please note that you are welcome to attend as much or as little of the workshop as you are able.
14:00 – 14:10 – The Workshop and its Context
Professor Paul Beaumont (University of Stirling), AHRC Network on UK Private International Law post Brexit: Project Objectives and Workshop Aims
14:10 – 16:00 – Cross-Border Litigation: Specific Issues in some specific sectors
Chair: Alex Layton QC (King’s College London and Twenty Essex)
Dr Jenny Papettas (University of Birmingham), Cross-Border Motor Claims After Brexit
Professor Yvonne Baatz (Centre for Commercial Law Studies, Queen Mary University of London), Brexit and Cross-Border Maritime Disputes
Professor Rob Merkin QC (University of Exeter), Cross-Border Dispute Resolution – Insurance Sector: Brexit Implications
Tom Sprange QC (King & Spalding), High-Value Disputes: A US Law Firm’s Perspective on Brexit
Dr Mihail Danov (University of Exeter), Cross-Border Litigation: New Data, Initial Brexit Implications in England and Wales and Long-Term Policy Choices
Questions and discussion
10:00 – 12:00 Global and Commonwealth Perspectives on Private International Law in the UK after Brexit (not restricted to commercial law)
Chair: Professor Paul Beaumont
Professor Mary Keyes (Griffith University, Australia), How Brexit may affect Commonwealth PIL: A View from Australia
Dr Christophe Bernasconi (Secretary General of the Hague Conference), A Global Perspective from the HCCH – the global international institution on private international law
Iain Mackie (Macfarlanes), A London Law Firm Perspective on international and commonwealth litigation after Brexit
Questions and discussion
Break
13:30 – 15:00 – EU/EEA and Intra-UK Commercial PIL: Brexit Challenges and Opportunities
Chair: Professor Eva Lein (University of Lausanne, Switzerland)
Alex Layton QC, Interim Remedies
Professor Barry Rodger (University of Strathclyde), Re-designing (or not) the UK landscape in relation to PIL: An Intra-UK perspective on Brexit
Lindsey Clegg (Freeths), Re-designing (or not) the UK landscape in relation to PIL: A Regional Law Firm Perspective on Brexit
Questions and discussion
20-minute break
15:20 – 16:50 – Brexit and Cross-Border Competition Litigation
Chair: Professor Barry Rodger
Omar Shah (Morgan, Lewis & Bockius LLP), Brexit and Cross-Border Collective Redress
Nick Frey (Freshfields Bruckhaus Deringer LLP), Brexit – A Defendant’s Perspective on Competition Litigation
Dr Mihail Danov, Cross-Border Competition Litigation: Brexit Opportunities?
Questions and discussion
16.50 – 17.15 Prof Paul Beaumont and Dr Mihail Danov, Concluding Remarks and Next Steps
Professor Paul Beaumont (University of Stirling), Dr Mihail Danov (University of Exeter) and Dr Jayne Holliday (University of Stirling) are delighted to be able to host the following AHRC funded Research Network workshop.
How to join the online workshop:
Any queries please contact Dr Jayne Holliday at j.holliday@stir.ac.uk
The Development of Private International Law in the UK post Brexit
AHRC Research Network Workshop II – Family Law – Programme
Friday 6 November 2020
10.00-10.15 – Welcome and introduction by Dr Jayne Holliday (University of Stirling)
10.15-10.45 – Hague Intercountry Adoption Convention – how it should be interpreted and applied by Laura Martínez-Mora (Secretary, Hague Conference on Private International Law)
10.45-11.00 – Discussion
11.00-11.15 – Break
11.15-11.45 – Private International Law of Family Agreements after Brexit by Alexandre Boiché (French advocate, member of the Experts’ Group on Family Agreements at the Hague Conference on Private International Law)
11.45-12.15 – International Surrogacy and International Parentage – hopes for a global solution by Professor Giacomo Biagioni (University of Cagliari)
12.15-12.30 – Discussion
12.30-13.30 – Break for lunch
13.30-14.00 – Private International Law of Parental Responsibility (Custody and Access) after Brexit by Professor Thalia Kruger (University of Antwerp)
14.00-14.30 – Private International Law of Divorce after Brexit by Dr Máire Ní Shúilleabháin (University College Dublin)
14.30-14.45 Discussion
14.45-15.00 Break
15.00-16.00 – Keynote speech by Lord Justice Moylan ‘International Family Justice – Where are we Going?’
16.00-16.30 – Concluding remarks incorporating some comments on maintenance after by Brexit by Professor Paul Beaumont (University of Stirling)
In preparation of the Conference on the HCCH 2019 Judgments Convention on 13/14 September 2021, planned to be taking place on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…
We all benefited from your contributions at the Video Pre-Conference Roundtable on 29 October 2020. Our sincere thanks go to all the speakers and participants who pushed further the frontiers of our knowledge and understanding.
Update of 4 November 2020: New entries are printed bold.
Please also check the “official” Bibliograghy of the HCCH for the instrument.
| Garcimartín Alférez, Francisco; Saumier, Geneviève |
„Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) |
| Garcimartín Alférez, Francisco; Saumier, Geneviève |
“Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) |
| Nygh, Peter; Pocar, Fausto |
“Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128 |
| Beaumont, Paul | “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 |
| Beaumont, Paul R. | “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 |
| Blom, Joost | “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 |
| Bonomi, Andrea | “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 |
| Bonomi, Andrea | “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 |
| Bonomi, Andrea; Mariottini, Cristina M. |
“(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 |
| Borges Moschen, Valesca Raizer; Marcelino, Helder |
“Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319
(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) |
| Brand, Ronald A. | “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 |
| Brand, Ronald A. | “Jurisdictional Developments and the New Hague Judgments Project”, “in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon”, Cambridge 2013, pp 89-99 |
| Brand, Ronald A. | “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 |
| Brand, Ronald A. | “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 |
| Çali?kan, Yusuf; Çali?kan, Zeynep |
“2 Temmuz 2019 Tarihli Yabanci Mahkeme Kararlarinin Taninmasi ve Tenfizine Iliskin Lahey Anlasmasinin Degerlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245
(An Evaluation of 2 July 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) |
| Clavel, Sandrine; Jault-Seseke, Fabienne | “La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale: Que peut-on en attendre?”, Travaux du comité français de Droit international privé, Vol. 2018-2020, forthcoming (Version roviso ire de la communication présentée le 4 octobre 2019 available here) |
| Clover Alcolea, Lucas | “The 2005 Hague Choice of Court and the 2019 Hague Judgments Conventions versus the New York Convention – Rivals, Alternatives or Something Else?”, Mc Gill Journal of Dispute Resolution 6 (2019-2020), pp. 187-214 |
| Coco, Sarah E. | “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 |
| Cuniberti, Gilles | “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 |
| de Araujo, Nadia; de Nardi, Marcelo; Spitz, Lidia |
“A nova era dos litígios internacionais”, Valor Economico 2019 |
| de Araujo, Nadia; de Nardi, Marcelo; Lopes Inez; Polido, Fabricio |
„Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34
|
| de Araujo, Nadia; de Nardi, Marcelo |
„Consumer Protection Under the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 67-79 |
| de Araujo, Nadia; de Nardi, Marcelo |
„22ª Sessão Diplomática da Conferência da Haia e a Convenção sobre sentenças estrangeiras: Primeiras reflexões sobre as vantagens para o Brasil da sua adoção“, Revista de la Secretaría del Tribunal Permanente de Revisión 7 No. 14 (2019), páginas 198-221
(22nd Diplomatic Session of The Hague Conference and the Convention on Foreign Judgments: First Reflections on the Advantages for Brazil of their Adoption) |
| Dotta Salgueiro, Marcos | “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”, Netherlands International Law Review (NILR) 67 (2020), pp 113-120 |
| Douglas, Michael; Keyes, Mary; McKibbin, Sarah; Mortensen, Reid |
“The HCCH Judgments Convention in Australian Law”, Federal Law Review 47 (2019), pp 420-443 |
| Efeç?nar Süral | Possible Ratification of the Hague Convention by Turkey and Its Effects to the Recognition and Enforcement of Foreign Judgments, Public and Private International Law Bulletin 40/2 (2020), pp. 785 et seq. |
| Franzina, Pietro; Leandro, Antonio
|
“La Convenzione dell’Aja del 2 luglio 2019 sul riconoscimento delle sentenze straniere: una prima lettura”, Quaderni di SIDIblog 6 (2019), pp 215-231, available at http://www.sidi-isil.org/wp-content/uploads/2020/09/Quaderni-di-SIDIBlog-6-2019.pdf
(The Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments: A First Appraisal) |
| Fuchs, Felix | “Das Haager Übereinkommen vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Urteile in Zivil- oder Handelssachen“, Gesellschafts- und Wirtschaftsrecht (GWR) 2019, pp 395-399 |
| Garcimartín, Francisco | “The Judgments Convention: Some Open Questions”, Netherlands International Law Review (NILR) 67 (2020), pp 19-31 |
| Goddard, David | „The Judgments Convention – The Current State of Play”, Duke Journal of Comparative & International Law 29 (2019), pp 473-490 |
| He, Qisheng | “The HCCH Judgments Convention and the Recognition and Enforcement of Judgments pertaining to a State”, Global Law Review 3 (2020), pp 147-161 |
| He, Qisheng | “Unification and Division: Immovable Property Issues under the HCCH Judgement Convention”, Journal of International Law 1 (2020), pp 33-55 |
| Jacobs, Holger | “Der Zwischenstand zum geplanten Haager Anerkennungs- und Vollstreckungsübereinkommen – Der vorläufige Konventionsentwurf 2016“, Zeitschrift für Internationales Privatrecht & Rechtsvergleichung (ZfRV) 2017, pp 24-30 |
| Jang, Junhyok | “The Public Policy Exception Under the New 2019 HCCH Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 97-111 |
| Jovanovic, Marko | Thou Shall (Not) Pass – Grounds for Refusal of Recognition and
Enforcement under the 2019 Hague Judgments Convention, YbPIL 21 (2019/2020), pp. 309 – 332 |
| Jueptner, Eva | “The Hague Jurisdiction Project – what options for the Hague Conference?”, Journal of Private International Law 16 (2020), pp 247-274 |
| Kessedjian, Catherine | “Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?“, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 19-33 |
| Khanderia, Saloni | „The Hague judgments project: assessing its plausible benefits for the development of the Indian private international law”, Commonwealth Law Bulletin 44 (2018), pp 452-475 |
| Khanderia, Saloni | “The Hague Conference on Private International Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?”, Journal of African Law 63 (2019), pp 413-433 |
| Mariottini, Cristina | „Establishment of Treaty Relations under The 2019 Hague Judgments
Convention“, YbPIL 21 (2019/2020), pp. 365-380 |
| Mariottini, Cristina | “The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, YbPIL 19 (2017/2018), pp 475-486. |
| Meier, Niklaus | “Notification as a Ground for Refusal”, Netherlands International Law Review (NILR) 67 (2020), pp 81-95 |
| Nielsen, Peter Arnt | “The Hague 2019 Judgments Convention – from failure to success”, Journal of Private International Law 16 (2020), pp 205-246 |
| North, Cara | “The 2019 HCCH Judgments Convention: A Common Law Perspective”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 202-210 |
| North, Cara | “The Exclusion of Privacy Matters from the Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 33-48 |
| Oestreicher, Yoav | “ ’We’re on a Road to Nowhere’ – Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments”, The International Lawyer 42 (2008), pp 59-86 |
| Pasquot Polido, Fabrício B. | “The Judgments Project of the Hague Conference on Private International Law: a way forward for a long-awaited solution”, in Verónica Ruiz Abou-Nigm, Maria Blanca Noodt Taquela (eds.), Diversity and integration in Private International Law, Edinburgh 2019, pp. 176-199 |
| Pertegás Sender, Marta | “The 2019 Hague Judgments Convention: Its Conclusion and the road ahead”, in Asian Academy of International Law (publ.), Sinergy and Security: the Keys to Sustainable Global Investment: Proceedings of the 2019 Colloquium on International Law, 2019 Hong Kong, pp 181-190 |
| Pertegás, Marta | “Brussels I Recast and the Hague Judgments Project”, in Geert Van Calster (ed.), European Private International Law at 50: Celebrating and Contemplating the 1968 Brussels Convention and its Successors, Cambridge 2018, pp 67-82 |
| Reyes, Anselmo | „Implications of the 2019 Hague Convention on the Enforcement of Judgments of the Singapore International Commercial Court”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 695-709 |
| Ribeiro-Bidaoui, João | “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 |
| Rumenov, Ilija | “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-4040 |
| Sachs, Klaus; Weiler, Marcus |
“A comparison of the recognition and enforcement of foreign decisions under the 1958 New York Convention and the 2019 Hague Judgments Convention”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 763-781 |
| Saumier, Geneviève | “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 49-65 |
| Schack, Haimo | “Wiedergänger der Haager Konferenz für IPR: Neue Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens?“, Zeitschrift für Europäisches Privatrecht (ZEUP) 2014, pp 824-842 |
| Schack, Haimo | „Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 1-96 |
| Shchukin, Andrey Igorevich | “Indirect International Jurisdiciton in the Hague Convention on the Recognition and Enforcement of Foreign Judments of 2019 (Part 1)”, Journal of Russian Law No. 2020-7, pp. 170-186 |
| Silberman, Linda | “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 |
| Solomon, Dennis | “Das Haager Anerkennungs- und Vollstreckungsübereinkommen von 2019 und die internationale Anerkennungszuständigkeit“, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 873-893 |
| Spitz, Lidia | „Refusal of Recognition and Enforcement of Foreign Judgments on Public Policy Grounds in the Hague Judgments Convention – A Comparison with The 1958 New York Convention“, YbPIL 21 (2019/2020), pp 333-364 |
| Stein, Andreas | „Das Haager Anerkennungs- und Vollstreckungsübereinkommen 2019 – Was lange währt, wird endlich gut?“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 197-202 |
| Stewart, David P. | „Current Developments: The Hague Conference adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, American Journal of International Law (AJIL) 113 (2019), pp 772-783 |
| Taquela, María Blanca Noodt; Abou-Nigm, Verónica Ruiz | “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 |
| Teitz, Louise Ellen | “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 |
| van der Grinten, Paulien; ten Kate, Noura |
„Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 |
| van Loon, Hans | “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 |
| van Loon, Hans | “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 |
| van Loon, Hans | “Le Brexit et les conventions de La Haye”, Revue Critique de Droit International Privé 2019, pp 353-366 |
| Wagner, Rolf | “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 |
| Weidong, Zhu | “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 |
| Weller, Matthias | “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 |
| Weller, Matthias | “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279 – 308 |
| Weller, Matthias | “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in: Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed., forthcoming |
| Weller, Matthias | Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019, in Christoph Althammer/Christoph Schärtl, Festschrift für Herbert Roth, in Vorbereitung. |
| Wilderspin, Michael; Vysoka, Lenka |
“The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 |
| Xu, Guojian | “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 |
| Xu, Guojian | “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 5 (2017), pp 100-130 |
| Xu, Guojian | “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 |
| Yeo, Terence | “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) |
| Zhang, Wenliang; Tu, Guangjian |
“The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 |
| Zhao, Ning | “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368 |