In its session in The Hague on 31 August 2019, the Institut de Droit International/Institute of International Law passed two highly relevant resolutions:

Firstly, the resolution on “Internet and the Infringement of Privacy” adopted by the 8^th Commission (Rapporteurs: Erik Jayme and Symeon Symeonides) focuses on numerous yet unresolved issues of jurisdiction, applicable law and the enforcement of foreign judgments. For example, the Commission rejects a ‘mosaic’ approach for internet-related tortious claims. Instead, it proposes a “holistic principle” that would allow a person to seek redress for injuries in a single state even if the injuries have occurred or may occur in another state. Moreover, the resolution puts forward a rather sophisticated choice of law rule:

In the absence of a choice-of-law agreement valid under Article 8, the applicable law shall be determined as follows:

1. If the court’s jurisdiction is based on paragraph 1(a) of Article 5, the applicable law shall be the internal law of the forum State.

2. If the court’s jurisdiction is based on paragraph 1(b) of Article 5, the applicable law shall be the internal law of the forum State. However, if, at the time of the injury, the defendant’s home is located in another state, the applicable law shall be the internal law of the state that, considering all the circumstances, has the closest and most significant connection.

3. If the court’s jurisdiction is based on paragraph 1(c) of Article 5, the applicable law shall be the internal law of the forum State. However, if the aggrieved person proves that the critical conduct of the person claimed to be liable occurred in another State, the internal law of the latter State shall govern all substantive issues, provided that the aggrieved person formally requests the application of that law and, upon request by the court, establishes the content of that law.

4. If the court’s jurisdiction is based on paragraph 1(d) of Article 5, the applicable law shall be the internal law of the forum State. However, if the person claimed to be liable proves that the most extensive injurious effects occurred in another State, the internal law of the latter State shall govern all substantive issues, provided that that person formally requests the application of that law and, upon request by the court, establishes the content of that law.

5. If the court’s jurisdiction is based on a valid choice-of-court agreement and that court is located in a State referred to in Article 5, the applicable law is determined as provided in paragraphs 1–4 of Article 7, whichever is applicable. If the court is located in a State other than the States referred to in Article 5, the applicable law shall be the law of the State which, considering all circumstances, has the closest and most significant connection.

Finally, the recognition and enforcement of judgments in line with the resolution’s standards shall be subject to conditions identical to the ones introduced in the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

Secondly, the 18^th Commission’s (Rapporteur: Campbell McLachlan) resolution on “Equality of Parties before International Investment Tribunals” deals with one of the most fundamental elements of the rule of law that ensures a fair system of adjudication. The first part of the resolution tackles issues of party equality at the stage of the establishment of the arbitral tribunal (such as access to a tribunal, the indispensable requirement of impartiality, and the tribunal’s composition), the second part is devoted to equality during the proceedings (e.g., the treatment of multiple claims and counterclaims, rules on pleading and evidence, and costs).

The resolutions can be accessed here.

Given that the UK Supreme Court has given permission to hear a third appeal concerning collective actions – two of which have direct cross-border relevance (Merricks v MasterCard Inc [2019] EWCA Civ 674; Okpabi and others v Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd [2018] EWCA Civ 191; and Wm Morrisons Supermarkets Plc v Various Claimants [2018] EWCA Civ 2339) – it may be timely to also reflect on the development of border-crossing collective actions considered in a European context.

To this end, Csongor István Nagy (of University of Szeged’s Faculty of Law) has just published an interesting open access monograph with Springer on collective actions in Europe. It is called Collective Actions in Europe – A Comparative, Economic and Transsystemic Analysis and is available at https://ssrn.com/abstract=3440551 .

The Permanent Bureau of the HCCH has just announced that the programme for the first global conference on the newly adopted HCCH Judgments Convention is now available via: <http://www.hcchjudgmentshk.org/programme.php> with registrations are now also open.

As previously posted, the conference will take place on 9 September 2019 in Hong Kong SAR, People’s Republic of China. It is open to interested experts with participation free of charge. However, advance registration is required as the number of participants is limited. Registrations are handled on a first come, first served basis.

The deadline for registration is Saturday 31 August 2019.

Additional information relating to the Conference (incl. venue, accommodation, transportation, visa requirements, and other practical information) is also now available on the Conference website. Interested experts may consult this site regularly for more updates as they become available.

A half-day Conference at the Max Planck Institute in Hamburg, jointly convened by Ralf Michaels (Max Planck) and Verónica Ruiz Abou-Nigm (Edinburgh) will look at the (renewed) role of academia in Latin American Private International Law. Participants will come from several Latin American countries, as well as from the Institute.
More information and the program are here. The conference takes place on September 10, 13:00-17:30. Registrations by email at veranstaltungen@mpipriv.de

Forty-six countries have signed up to the United Nations Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation”) today. The signatory countries included Singapore, China, India, South Korea and the USA. The Convention, which was adopted by the UN General Assembly in December 2018, facilitates the cross-border enforcement of international commercial settlement agreements reached through mediation. It complements existing international dispute resolution enforcement frameworks in arbitration (the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and litigation (the Hague Convention on Choice of Court Agreements and the recently concluded Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters).  Article 1(3) of the Singapore Convention carves out settlement agreements which may fall within the scope of these other instruments to avoid an overlap. The Convention does not prescribe the mode of enforcement, but leaves it to each Contracting State to do so “in accordance with its rules of procedure and under the conditions laid down in this Convention” (Article 3(1)). Formal requirements to evidence the settlement agreement are specified although the competent authority in the state of enforcement is also granted flexibility to accept any other evidence acceptable to it (Article 4). The settlement agreement may only be refused enforcement under one of the grounds listed in Article 5. These grounds include the incapacity of a party to the settlement agreement, the settlement agreement is null and void under its applicable law and breaches of mediation standards. Only two reservations are permitted: one relating to settlement agreements to which a government entity is a party and the other relating to opt-in agreements whereby the Convention applies only to the extent that the parties to the settlement agreement have agreed to the application of the Convention (Article 8).

While mediation currently commands a much smaller slice of the international dispute resolution mode pie compared to arbitration or litigation, some countries are making concerted efforts to promote mediation. To that end, the Singapore Convention will assist to increase mediation’s popularity among litigants in international commercial disputes.