Out now: Recognition and Enforcement of Judgments in Civil and Commercial Matters

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This book is published as part of Hart’s Studies in Private International Law- Asia series. It is edited by Anselmo Reyes who is a Guest Professor at the Law Faculty of Doshisha University  and an International Judge of the Singapore International Commercial Court.

The publisher’s blurb is as follows:

“This collection offers a study of the regimes for the recognition and enforcement of foreign commercial judgments in 15 Asian jurisdictions: mainland China, Hong Kong, Taiwan, Japan, Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka and India. For practising lawyers, the book is intended as a practical guide to current law and procedures for enforcing judgments in the selected jurisdictions. However, it does not stop at describing current law and practice. Of interest to academics and students, it also analyses the common principles of the enforcement regimes across the jurisdictions, and identifies what should be regarded as the norm for enforcement in Asian countries for the purpose of attracting foreign direct investment and catalysing rapid economic development.

In light of the common principles identified, the book explores how laws in Asia may generally be improved to enable judgments to be more readily enforced, while ensuring that legitimate concerns over indirect jurisdiction, due process and domestic public policy are respected and addressed. With this in mind, the book discusses the potential impact that the adoption of the 2005 Hague Convention on Choice of Court Agreements might have on Asian jurisdictions; it also considers the potential impact of the convention for the enforcement of judgments in civil and commercial matters presently being drafted by the Hague Conference on Private International Law.

This timely book argues that it is imperative to adopt a uniform system for the recognition and enforcement of judgments throughout Asia if there is to be traction for the enhanced cross-border commerce that is expected to result from endeavours such as the ASEAN Economic Community (AEC), the Belt and Road Initiative (BRI), CPTPP (also known as TPP-11), and RCEP.

Anselmo Reyes is Guest Professor at the Law Faculty of Doshisha University in Kyoto and an International Judge of the Singapore International Commercial Court.”

Meeting on international transfer of maintenance funds: solutions and good practices

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Written by Mayela Celis

A meeting on the international transfer of maintenance funds was held in The Hague, the Netherlands from 16 to 18 September 2019. The Conclusions and Recommendations are available here.

Among the solutions contemplated were the establishment of a centralised point for international transfers for both incoming and outgoing transfer of funds, abolishing the use of cheques and exploring how to increase transparency and cost reduction of the transfer of funds. The meeting also discussed the advantages and disadvantages of bundled payments, as well as the use of blockchain and other payment transfer solutions.

While the Experts’ Group discussed solutions and good practices in the context of the 2007 HCCH Child Support Convention, these are equally relevant to the United Nations Convention of 1956 on the Recovery Abroad of Maintenance Obligations, Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, and other regional or bilateral instruments.

It should be noted that pursuant to its Article 49, the 2007 HCCH Child Support Convention prevails over the 1956 United Nations Convention in so far as its scope of application as between the relevant States coincides with the scope of application of the 2007 HCCH Convention.

The European Union, as a Regional Economic Integration Organisation, approved the 2007 HCCH Child Support Convention, which entered into force for the EU on 1 August 2014 (with the exception of Denmark which has not yet acceded to it)

The HCCH news item is available here.

New article on The Hague judgments project: assessing its plausible benefits for the development of the Indian Private International Law

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Written by Saloni Khanderia

Associate Professor Saloni Khanderia (Jindal Global Law School, O.P. Jindal Global University, Sonipat, India) recently published a new paper in the Commonwealth Law Bulletin, titled The Hague judgments project: assessing its plausible benefits for the development of the Indian Private International Law.

The author talks about the two international instruments which come under the esteemed Hague judgments project: the Convention of 30 June 2005 on Choice of Court Agreements [the HCCA] and the recent Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments [the Draft Convention], with specific reference to India. The question that the author raises is whether India should endorse the above two instruments. Even though India is a Member of the Hague Conference, it a non-signatory to any treaty or Convention regarding the international jurisdiction of courts and the consequent recognition and enforcement of foreign verdicts. Thus it becomes interesting to see the stance India should take. Initially, the author provides an overview of the judgments project, followed by the role of the HCCA and the Draft Convention and their applicability and contribution to transnational trade. The article presents a position of India in the sphere of private international law. It further analyses the role of the two instruments on the development of India’s private international law.

The author welcomes the freedom of choice of a forum that is granted to the parties in India in respect of civil and commercial transnational matters. However, there is a need for certainty in several matters. Looking at the jurisprudence it can be seen that the Indian courts have been dismissing cases where the parties have not chosen them as a governing forum. Conversely, the courts have taken cognizance and assumed jurisdiction where the same has been conferred upon them by the agreement. Ratification to the HCCA tends to solve this problem as would subject the Indian private international law to a fixed and consistent set of rules on (dis)regarding the choice of court agreements. HCCA also lays down exceptions in cases on an exclusive choice of court agreements, therefore, its incorporation in the Indian laws would guide the court as to when to disregard the choice of court agreement. The ratification would also help in the holistic development of the private international law by easing the need the file fresh suits for recognition and enforcement.

Indian’s archaic rules on private international law make it necessary for the country to endorse the Draft Convention as it would prevent the Indian courts from enforcing a foreign judgment that has been rendered in violation to such an agreement, on coming into effect. Like the HCCA it would ease the process of recognition and enforcement of foreign judgments as one would not have look

through the domestic laws before moving the courts. It would provide certainty to the litigants as would provide answers to inconsistent judgments and parallel proceedings. Although

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the ground of public policy is seemingly recognized in India, the Draft Convention would enhance the predictability with respect to enforcement as it explicitly confers the requested court with the right to deny the enforcement, for this reason. The above arguments by the author clearly lay out the conclusion that India should endorse the HCCA and the Draft Convention under the Hague’s Judgment Project.

von Hein, Kieninger & Rühl: How European is European Private International Law?

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Over the course of the last few decades, the European legislature has adopted a total of 18 Regulations in the area of private international law, including civil procedure. The resulting substantial legislative unification has been described as the first true ‘Europeanisation’ of private international law, and even as a kind of ‘European Choice of Law Revolution’. However, it remains largely unclear whether the far-reaching unification of the ‘law on the books’ has turned private international law into a truly European ‘law in action’: To what extent is European private international law actually based on uniform European rules common to all Member States, rather than on state treaties or instruments of enhanced cooperation? Is the manner in which academics and practitioners analyse and interpret European private international law really different from previously existing domestic approaches to private international law? Or, rather, is the actual application and interpretation of European private international law still influenced, or even dominated, by national legal traditions, leading to a re-fragmentation of a supposedly uniform body of law?

In bringing together academics from all over Europe, How European is European Private International Law? sets out to answer – for the first time – these crucial and interrelated questions. It sheds light on the conspicuous lack of “Europeanness” currently symptomatic of European private international law and discusses how this body of law can become truly European in character in the future.

The book was edited by Jan von Hein, Eva-Maria Kieninger and Giesela Rühl and published by Intersentia. It is based on a conference that took place in Berlin in March 2018, see here and here.

Call for Application to the Doctoral Programme in Sustainability

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International and public law, ethics and economics for sustainable development – LEES is the name of the doctoral study programme jointly offered by the University of Milan, the University of Maastricht and the University of Rijeka. There are 6 scholarships available to excellent candidates who wish to conduct interdisciplinary research relevant to sustainability, including that related to private international law.

The call closes on 14 October 2019, and the studies commence as of the beginning of November 2019 in Milan. Further information and instruction is available here.

Cross-Border Debt Recovery in the EU – Workshop on the application of the “second generation” regulations in France and Luxembourg

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On Friday 27 September 2019, the Max Planck Institute Luxembourg will host a workshop on Cross-Border Debt Recovery in the EU – Application of the “second generation” regulations in France and Luxembourg. The workshop is organised in the framework of the IC2BE Project, conducted by a European consortium comprising the MPI Luxembourg and the Universities of Antwerp, Freiburg (coord.), Madrid, Milan, Rotterdam, and Wroclaw. Funded by the Justice Programme (2014-2020) of the European Commission, this Project (JUST-AG-2016-02) aims to assess the working in practice of the “second generation” of EU Regulations on procedural law for cross-border cases, i.e., the European Enforcement Order (Regulation (EC) No 805/2004, “EEO”), the European Order for Payment (Regulation (EC) No 1896/2006, “EPO”), the European Small Claims Procedure (Regulation (EC) No 861/2007 as amended by Regulation (EU) No 2015/2421, “ESCP”) and the European Account Preservation Order (Regulation (EU) No 655/2014, “EAPO”) Regulations.

The workshop will address the application in practice of such Regulations in Luxembourg and France. Mr. François Biltgen (CJEU), Prof. Burkhard Hess, and Prof. Cyril Nourissat will chair the workshop’s Sessions. As was the case with the previous workshop hosted by the MPI Luxembourg on 8 June 2018, this event will bring together academics from various institutions, judges, bailiffs, lawyers and representatives from consumer organisations.

This workshop is conceived as a closed event. However, people having a special interest in the topic may apply for admission provided they submit a short explanation to motivate their request. The working languages will be English and French.

Contact address: veerle.vandeneeckhout@mpi.lu

The case law database of the IC2BE project is available here (in progress).

For the National seminars that will be hosted in the participating countries, see here.

For information on the IC2BE final conference, that will be held in Antwerp on 21-22 November 2019, see here and here.

EU Family Property in the PSEFS Project Initial Results

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Within the ongoing EU Justice Project “Personalized Solution in European Family and Succession Law”, shortly known by the acronym PSEFS, the first stage of research has resulted in several publications. One of the most important is the e-book consisting of 28 reports by for the EU Member States concerning the forms of couples relations and patrimonial consequences thereof and succession regimes, which is accessible here. It also includes several questions regarding the private international law.

This massive publication has been summarised into the PSEFS Atlas provided for each EU Member State, containing information about the property regimes of married couples and registered partners and rules of succession. Designed as an informative tool for legal professionals and an effective support for citizens, it is accessible by clicking to the territory of the selected EU Member State on the map.

In the attempt to reach the public the team members also created two brochures, one with general information about the three regulations: the Succession Regulation, the Matrimonial Property Regulation and the Registered Partnership Property Regulation, and the other with case studies explaining the functioning of these regulations. The brochures are available in 5 languages by clicking on the pictures of their front pages under the respective results/information and support to the citizens section of the Project webpage.

The Project developments may also be followed on the PSEFS Facebook page. One of the forthcoming activities is the Ljubljana PSEFS Project Events. It is expected to gather close to hundred participants as it is open to both academics and practitioners interested in the topic regardless of their involvement in the PSEFS Project.

Awaken the Guardian: UK damages for breach of a choice of court agreement violate Greek public policy

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The Piraeus Court of Appeal refused recognition and enforcement of two English orders awarding damages for breaching a choice of court and a settlement agreement due to violation of the Greek procedural public policy.

Apostolos Anthimos

INTRODUCTION

The ruling forms part of the famous The Alexandros T saga. It comes as the expected step forward, after the judgment rendered by the English CoA in the case Starlight Shipping Company v Allianz Marine & Aviation Versicherungs AG (The Alexandros T [2014] EWCA Civ 1010. The latter decision has been already reported and criticized in our blog by Martin Ilmer. An extensive presentation and critical analysis of the judgment is also included in the doctoral thesis of my blog colleague, Mukarrum Ahmed, pp. 142-151. For a concise, however complete presentation of the case in its previous stages, see here. For a view in favor of the outcome in the UK courts, see here.

THE FACTS

The application for the declaration of enforceability concerned two orders issued by a judge of the High Court of England in 2014, awarding damages (amounting to 300.000 £) for breach of a choice of court and a settlement agreement between the parties. The orders were issued on the basis of a judgment of the High Court [Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] EWHC 3068 (Comm) (26 September 2014), see also [2015] 2 All E.R. (Comm) 747; [2014] 2 Lloyd’s Rep. 579], which granted declaratory relief in favor of the insurers, and specific performance and damages for the solicitors’ and adjuster’s, on the basis that the proceedings in Greece were in breach of the settlement agreements and the exclusive jurisdiction clauses of both the settlement agreements and the underlying policies.

The Piraeus 1st Instance Court granted exequatur [Nr. 3461/2015, unreported]. The Greek shipping company appealed pursuant to the Brussels I Regulation, seeking revocation in accordance with Article 45, in conjunction with Art. 34.1 Brussels I Regulation.

THE RULING

Initially, the Piraeus CoA engaged in an analysis of the Brussels regime, starting from the Brussels Convention. It then focused on the public policy defense under Article 34.1 Brussels I Regulation. In this context, the court underlined the significance of Article 8 of the Greek Constitution, which reads as follows: No person shall be deprived of the judge assigned to him by law against his will. Finally, the court made reference to the institution of anti-suit injunction, concluding what is already common ground for continental legal orders, namely that recognition of such measures may not be tolerated.

With respect to the issue at stake, the reasoning of the Piraeus CoA is brief and to the point. The court stated verbatim the following:

It is true that both the English court and the Judge issuing the orders did not issue anti-suit injunctions. However, judgments hindering the progress of litigation initiated in Greece by ordering damages, and warnings for further damages against the claimants in the Greek proceedings, are included both in the ruling and the orders aforementioned. Consequently, the above contain ‚quasi‘ anti-suit injunctions, which pose barriers towards free access to Greek courts, in violation of Article 6.1 ECHR and Articles 8.1 & 20 of the Greek Constitution, the provisions aforementioned belonging to the core of public policy in Greece.

Piraeus Court of Appeal, Nr. 371/1.7.2019

COMMENTS

The ruling of the Piraeus court does not come as a surprise. The reasoning might be laconic, nevertheless it is crystal clear, and in line with the comments made by Martin Ilmer &  Mukarrum Ahmed.

For the time being, no information is available on a possible final appeal lodged by the English side. I would however tend to believe that a final appeal is to be expected for the following reasons:

  • In the course of proceedings initiated by the Greek side, at least three judgments issued by the Piraeus First Instance Court have incidentally recognized the same English judgments and orders, following the analysis embedded in the judgments of the High Court, the Court of Appeal and the Supreme Court of England respectively. It is therefore obvious that the Greek side will grab the chance given by the new ruling, and seek reversal in second instance.
  • There is no precedent regarding the case at hand. Therefore, all cards are on the table: The Greek Supreme Court may allow or dismiss the appeal, whereas a preliminary reference to the CJEU is not to be excluded. The days of reluctance to submit preliminary questions seem to be gone for the Supreme Court [see C-436/16]. Actually, a preliminary reference would be the most prudent solution, given that the matter needs to be clarified on EU level.[contact-form][contact-field label=”Name” type=”name” required=”true” /][contact-field label=”Email” type=”email” required=”true” /][contact-field label=”Website” type=”url” /][contact-field label=”Message” type=”textarea” /][/contact-form]

Dutta & Wurmnest: European Private International Law and Member State Treaties with Third States. The Case of the European Succession Regulation

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In the last decade, the European Union has unified large segments of private international law for its Member States. However, existing treaties concluded by Member States with Third States enjoy priority over European private international law rules. This priority rule hampers the uniform application of EU law and creates friction with harmonised procedural rules. In addition, the legal relationships for large numbers of Third State citizens are not governed by EU private international law but by rules laid down in international treaties, which often dates back to the beginning of the 20th century.

The implications of this pluralism on the functioning of the rather new European private international law rules have not yet been explored in depth. The various international treaties or conventions concluded by the current Member States have neither been comprehensively collected nor has their content been analysed in a systematic manner. This book, published by Intersentia, aims to fill this gap in part. It is the fruit of a research group led by Anatol Dutta (LMU München) and Wolfgang Wurmnest (Universität Augsburg).

Focused on the area of succession law, a field of law chosen in an exemplary manner, the book analyses the scope and effect of treaties and conventions with Third States on the functioning of the European Succession Regulation (Regulation No 650/2012). There are country reports from selected EU Member States (Austria, Belgium, Croatia, Czech Republic, Finland, France, Germany, Italy and Sweden) on the treaty law and its application. To understand if and how Third States apply and interpret these treaties and conventions, there are also reports form selected Third States (Bosnia and Herzegovina, Iran, Montenegro, North Macedonia, Serbia, Switzerland and Turkey). In addition, the book contains a chapter on the competences of the EU and of the Member States to revise the treaty law. The study concludes with a comparative report, which explores the background of the treaty law and discusses various policy options at the national and the European level to ameliorate the legal framework for cross-border succession cases.

To lay the foundation for a cross-border analysis of the treaty law, the book compiles 27 bilateral treaties and multilateral conventions dealt with by the national reports in the area of succession law. The relevant rules of these sources were also translated into English. Such a comprehensive collection and translation of the treaty law thus far does not exist.

The following authors were part of the working group and contributed to the book:

Davor Babi?, Andrea Bonomi,Slavko ?or?evi?, Anatol Dutta, Stéphanie Francq, Pietro Franzina, Samuel Fulli-Lemaire, Biset Sena Güne?, Markku Helin, Tena Hoško,Dirk Looschelders, Julie Mary, Zlatan Meški?, Magdalena Pfeiffer, Walter Pintens, Claudia Rudolf, Wolfgang Wurmnest, Nadjma Yassari.

 

8th Journal of Private International Law Conference 2019 in Munich

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Written by Christiane von Bary, Ludwig-Maximilians-University Munich

The 8th edition of the biannual Journal of Private International Law Conference took place at the Ludwig-Maximilians-Universität in Munich from 12-14 September 2019, organized by Professor Anatol Dutta in cooperation with the editors of the journal, Professor Paul Beaumont and Professor Jonathan Harris.

The call for papers by the organisers resulted in a record number of applications and thus papers presented. More than 190 participants registered for the conference and delivered 114 papers over the course of the three days in Munich. With participants coming from around 50 jurisdictions ranging from Australia to Venezuela, all speakers had a truly international audience and were able to benefit from questions, insights and remarks by a very diverse group of private international law scholars. The diversity of the participants and speakers not only covered a wide variety of geographical backgrounds but also every stage of the academic career from doctoral candidate to senior professor. Due to the unexpectedly high interest in the conference, sadly some people who were interested could not attend due to space constraints – even despite a video transmission of the plenary session.

On Thursday and Saturday, a total of 28 parallel sessions took place. Blocks of seven alternative sessions happened at the same time and participants where free to choose according to their interests. This was a challenge not only for the participants who were spoilt for choice but also from an organisational perspective. In each session, up to four speakers presented their papers on related topics. There were several panels on topics related to jurisdiction, judgments or family law but also on subjects like child abduction, judicial cooperation, arbitration, technology or CSR. The presentations were all followed by lively and fruitful discussions each chaired by an expert in the relevant field. The animated debate often continued in the cafeteria and the sunny courtyard during the coffee breaks. Two speakers who were unable to attend in person even had the chance to participate via video call and answered questions remotely.

The plenary sessions on Friday allowed for a larger audience for four panels. Particularly interesting and thought provoking was the session on “Women and Private International Law” with Professors Roxana Banu, Mary Keyes, Horatia Muir Watt, Yuko Nishitani and Marta Pertegás Sender. Their contributions focussed on gender issues in private international law and provided a broad variety of perspectives in an area that has – so far – been largely neglected by the private international law community. The very existence of this community was addressed by Professor Ralf Michaels and Dr. Veronica Ruiz Abou-Nigm who spoke about what the heart of the endeavour of private international law is. During the days in Munich, which were not only filled by intellectual debate but also by colleagues and friends (re)connecting, the existence of an international community of private international law felt very much real.

The conference website (https://jprivintl2019.de/) will remain active and offers an overview of all papers as well as abstracts from many speakers. Finally, it was revealed that the next Journal of Private International Law Conference will take place in Singapore in 2021, organised by Professor Adeline Chong, which will be the first time the private international law community gathers in Asia.