Open call for abstracts: European Yearbook of International Economic Law 2023

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The editors of the European Yearbook of International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the EYIEL 2023. This year’s focus section will be on European and International (Public) Procurement and Competition Law. Next to this, in Part II the EYIEL will consider Current Challenges, Developments and Events in European and International Economic Law.

For the Focus Section, abstracts may cover any topic relating to (public) procurement and competition law in the field of European and international economic law, though preference is given to topics focusing on the international perspective. We particularly welcome contributions addressing the following aspects:

  • the WTO (Internal) Procurement Regime, 
  • the UN Procurement Regime,
  • the EU Procurement Regime,
  • General International (Public) Procurement,
  • the EU Competition Law Regime,
  • the International Competition Law Regime.

For the General Section, abstracts shall address topics which are currently of relevance in the context of European and International Economic Law. Similarly, reviews of case-law or practices and developments in the context of international organisations are encouraged.

Abstracts should not exceed 500 words. They should be concise and clearly outline the significance of the proposed contribution. Abstracts together with a short bio note maybe submitted until 28 February 2023 via e-mail to eyiel@leuphana.de.

Successful applicants will be notified at the latest by 1 April 2023, that their proposal has been accepted. They are expected to send in their final contribution by 31 July 2023.

Final submissions will under go peer review prior to publication. Given that submissions are to be developed on the basis of the proposal, that review will focus on the development of the paper’s central argument.

Submissionsaddressingparticularregionalandinstitutionaldevelopmentsshould be analytical and not descriptive. Due to its character as a yearbook, the EYIEL will not publish articles which will lose their relevance quickly. Submissions should not exceed 12,000 words(including footnotes and references), though preference may be given to shorter submissions. They should include an abstract and a biographical note. Submissions need to be in conformity with the EYIEL style guidelines.

The editors of the EYIEL welcome informal enquiries about any other relevant topic in the field of international and European economic law. In case you have an idea or proposal, please submit your enquiry via e-mail to eyiel@leuphana.de.

New rules on service outside Australia for the Federal Court of Australia

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The Federal Court Legislation Amendment Rules 2022 (Cth) (‘Amendment Rules’) came into force on 13 January 2023. Among other things, they amend the Federal Court Rules 2011 (Cth) (‘FCR’) by repealing division 10.4, which dealt with service outside Australia. The Amendment Rules replace the old division 10.4 with a new one, which brings the Federal Court’s approach to service outside Australia into alignment with all other Australian jurisdictions, except for Western Australia and the Northern Territory.[1]

The previous approach to service outside Australia in the Federal Court

Historically, Australia’s superior courts have not been uniform in their approach to service outside the jurisdiction and outside Australia. The Federal Court’s approach was somewhat unique. Unlike the position in some of the State Supreme Courts,[2] leave to serve outside Australia[3] was required before service (FCR r 10.43(2)). Nonetheless, if leave was not obtained beforehand, service could be confirmed after the fact if sufficiently explained (FCR r 10.43(6)–(7)).

Leave to serve turned on three conditions: the court had subject matter jurisdiction, the claim was of a kind mentioned in the rules, and the party had a prima facie case for any or all of the relief claimed: FCR r 10.43(4). Even if those elements were satisfied, the court may have refused leave to serve in exercise of a ‘residual discretion’: Tiger Yacht Management Ltd v Morris (2019) 268 FCR 548, [100].

The second element, that the claim is of a kind mentioned in the rules, directed attention to FCR r 10.42. That rule set out pigeonholes or connecting factors that are familiar grounds of direct jurisdiction. For example, service may be permitted for a proceeding based on a cause of action arising in Australia (item 1), or where the defendant has submitted to the jurisdiction (item 19).

Some of the connecting factors might be described as exorbitant. For example, service may have been permitted where the proceeding was ‘based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring)’ (item 5). Reid Mortensen, Richard Garnett and Mary Keyes commented, ‘[i]n effect, [this ground of service] allows service outside Australia merely because of the plaintiff’s personal connection—usually be reason of residence—with the forum, despite the complete absence of any connection between the events or the defendant on the one hand, and the forum on the other’.[4]

Combined with Australian courts’ unique approach to forum non conveniens (see Puttick v Tenon Ltd (2008) 238 CLR 265), the FCR provided plenty of room for establishing personal jurisdiction over foreign defendants in matters with foreign elements, even where those matters had strong connections to foreign jurisdictions. That position continues under the new approach effected by the Amendment Rules in the amended FCR.

The new approach

The Amendment Rules provide in a note to the new div 10.4: ‘t]his Division contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices’ Rules Harmonisation Committee’. Those rules have been in force in New South Wales and other Australian jurisdictions for some years. When the rules changed in New South Wales in late 2016, Vivienne Bath and I explained the significance for that State: Michael Douglas and Vivienne Bath, ‘A New Approach to Service Outside the Jurisdiction and Outside Australia under the Uniform Civil Procedure Rules’ (2017) 44(2) Australian Bar Review 160.

As regards the Federal Court, considering the previous approach, some of the notable changes include the following.

First, in most cases, leave is not required before service, provided that the case comes within the scope of (new) defined grounds of direct jurisdiction: FCR r 10.42.

Second, the grounds of direct jurisdiction have changed: FCR r 10.42. Many of the changes seemingly involve a simple a re-wording or a re-structure rather than anything radical, although I am sure that the case law will tease out differences of substance in coming months.

One of the new grounds is worth highlighting. The new FCR r 10.42(j) provides:

(j)  if the proceeding arises under a law of the Commonwealth, a State or a Territory, and:

(i)  any act or omission to which the proceeding relates was done or occurred in Australia; or

(ii)  any loss or damage to which the proceeding relates was sustained in Australia; or

(iii)  the law applies expressly or by implication to an act or omission that was done or occurred outside Australia in the circumstances alleged; or

(iv)  the law expressly or by implication confers jurisdiction on the Court over persons outside Australia (in which case any requirements of the law relating to service must be complied with);

FCR r 10.42(j)(iii) could provide a basis for jurisdiction over subject matter with very limited connection to Australia, provided an Australian legislature has sufficiently extended the territorial operation of a statute. This pigeonhole could give rise to some more interesting questions about the proper approach to identification of the applicable law where forum statutes are involved in the Australian context.[5]

Third, even if the proceeding does not come within one of the grounds of direct jurisdiction, service outside Australia may still be permitted with leave: FCR r 10.43. Leave requires the Court to be satisfied that the proceeding has a real and substantial connection with Australia, Australia is an appropriate forum for the proceeding, and in all the circumstances the Court should exercise jurisdiction: FCR r 10.43(4)(a)–(c).

Fourth, once a person is served outside Australia, that person may apply to stay or dismiss the proceeding, or set aside service: FCR r 10.43A(1). The Court may make an order to that effect if satisfied service of was not authorised by these Rules, Australia is an inappropriate forum for the proceeding, or the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending it: FCR r 10.43A(2)(a)–(c). This mechanism is introduced with the title, ‘Court’s discretion whether to assume jurisdiction’.

The second ground, that Australia is an inappropriate forum, turns on application of the ‘clearly inappropriate forum’ test of the Australian forum non conveniens doctrine: Chandrasekaran v Navaratnem [2022] NSWSC 346, [5]–[8]; Sapphire Group Pty Ltd v Luxotico HK Ltd [2021] NSWSC 589, [77]–[80]; Studorp Ltd v Robinson [2012] NSWCA 382, [5], [62].

Fifth, if service on a person outside Australia in accordance with the new provisions was not successful, the party may apply to serve the person substituting another method of service: FCR r 10.49(a). This may prove particularly useful for applicants chasing rogues who have absconded overseas. It might allow for service on a person outside Australia by email or even social media, contrary to historical practice: see  Yemini v Twitter International Company [2022] FCA 318, [5].

Comment

I expect that the Amendment Rules will be welcomed by litigators who frequent the Federal Court of Australia. Doing away with the need to seek leave in advance will increase efficiency and save some costs. Lawyers on the east and south coasts may appreciate not having to be across substantive differences as regards long-arm jurisdiction between the Federal Court and State Supreme Courts. (Those in glorious Western Australia continue to be in a different / superior position.)

Private international law scholars may be less enthusiastic. Writing on the 2016 equivalent reforms in New South Wales, Andrew Dickinson lamented the tenuous connection that could justify long-arm jurisdiction under the amended Uniform Civil Procedure Rules 2005 (NSW). Among other things, he noted that the ‘service without leave’ approach means that considerations of forum non conveniens might only arise if an application is brought by a person served contesting jurisdiction (under the equivalent of the new FCR r 10.43A(1)), costing them time and cost with respect to a matter with minimal connection to the forum.[6] That would be a fair objection to the new position in the Federal Court. I would argue, however, that the Federal Court’s new approach to long-arm service is a sensible innovation to better equip the Court to deal with the realities of modern commercial life (see Abela v Baadarani [2013] 1 WLR 2043, [53]). Australian courts are increasingly called on to deal with matters with a foreign element—their rules should adapt accordingly.

One of the more significant impacts of the Amendment Rules will concern a case that is currently before the High Court of Australia: Facebook Inc v Australian Information Commissioner & Anor (Case S 137/2022). Jeanne Huang and I previously blogged other decisions that have ultimately led to this appeal. Among other things, the American company behind Facebook (now Meta Platforms Inc) is challenging its service outside Australia in a proceeding brought by Australia’s privacy regulator in the wake of the Cambridge Analytica scandal. The rules on which the appeal depends are no longer in force. If the High Court’s previous grant of special leave to appeal is maintained, the forthcoming decision will be a new leading authority on long-arm jurisdiction in Australia.

Dr Michael Douglas is a Senior Lecturer at the University of Western Australia and a Consultant at Bennett, a litigation firm in Western Australia

 

[1] Civil Procedure Rules 2006 (ACT) div 6.8.9; Supreme Court Rules 2000 (Tas) div 10; Supreme Court Civil Rules 2006 (SA) pt 4 div 2; Supreme Court (General Civil Proceedings) Rules 2015 (Vic) O 7 pt 1; Uniform Civil Procedure Rules 1999 (Qld) pt 7 div 1; Uniform Civil Procedure Rules 2005 (NSW) pt 11, sch 6.

[2] Leave to serve is still required in the Supreme Court of Western Australia. See Rules of the Supreme Court 1971 (WA) Order 10. See further M Davies, AS Bell, PLG Brereton and M Douglas, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 20th ed, 2020) ch 3.

[3] Except with respect to service in New Zealand. See Trans-Tasman Proceedings Act 2010 (Cth).

[4] Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law in Australia (LexisNexis Butterworths, 4th ed, 2019) 63–4.

[5] See Michael Douglas, ‘Does Choice of Law Matter?’ (2023) Australian International Law Journal (forthcoming).

[6] Andrew Dickinson, ‘In Absentia: The Evolution and Reform of Australian Rules of Adjudicatory Jurisdiction’ in Michael Douglas, Vivienne Bath, Mary Keyes and Andrew Dickinson (eds), Commercial Issues in Private International Law (Hart, 2019) 13, 42.

Dutch Journal of PIL (NIPR) – issue 2022/4

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The latest issue of the Dutch Journal on Private International Law (NIPR) has been published.

Editorial

M. Zilinsky / p. 629-630

 

Article

E.N. Frohn & I. Sumner, Protecting vulnerable adults across borders: where do we stand? / p. 631-649

Abstract

The first meeting of the Special Commission to review the practical operation of the 2000 Hague Convention took place from 9-11 November 2022, after writing this publication. In preparation for this meeting, a questionnaire was send to the Member States of the Conference. One of the questions addressed to the non contracting states of the 2000 Convention was of that state is considering joining the 2000 Convention. The Netherlands replied that there is no urgent need to become a contracting party, pointing out that the rules of the treaty are applied in practice.

This article concerns the Hague Convention of 13 January 2000 on the International Protection of Adults in relation to the Dutch standard practice of anticipating application of this Convention. Furthermore, this article will provide information on the European view regarding the international protection of vulnerable adults.

 

Case note

K.J. Krzeminski, Actio iudicati onder de Brussel I-bis Vo: een open deur of een geopend ‘achterdeurtje’? HvJ EU 7 april 2022, ECLI:EU:C:2022:264, NIPR 2022, 288 (J/H Limited) / p. 650-659

Abstract

In J v. H Limited, the CJEU has held that a decision rendered by an EU Member State court on the basis of a third country judgment (actio iudicati) may, under certain circumstances, qualify as a ‘judgment’ within the meaning of Article 2(a) Brussel I-bis Regulation, thereby opening the door to EU-wide recognition and enforcement. This article explores the implications of the decision for cross-border enforcement, in particular of judgments rendered in Dutch proceedings on the basis of Article 431(2) of the Dutch Code of Civil Procedure.

Opinion of AG Emiliou on stay of enforcement of final return order in the case C-638/22 PPU

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In the case Rzecznik Praw Dziecka and Others, C-638/22 PPU, a Polish court asks the Court of Justice in essence whether, in accordance with the Brussels II Regulation and The 1980 Hague Convention on the Civil Aspects of International Child Abduction, a Member State may provide for the possibility of an appeal in cassation (in practice: a third judicial instance) involving a stay of enforcement of a final return order on a simple application by one of the public entities entitled to lodge such an appeal.

AG Emiliou states from the outset that this question calls for a negative answer. His Opinion explains why this is the case.

A summary of the facts of the case reported here case has been already posted online by Marta Requejo Isidro so I am happy to refer to her contribution.

The urgency of the matter has compelled the Court to submit the case, at the request for the referring court, to the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.

I might add that the provision of national law that made the aforementioned stay of enforcement possible entered into force on 24 June 2022 and the request for a preliminary ruling has been brought before the Court of Justice already on 13 October 2022.

Concerning the preliminary question itself, in his Opinion, AG Emiliou recognizes that the 1980 Hague Convention and the Brussels II bis Regulation do not unify the procedural rules applicable to return applications based on that Convention. Those issues are left to the procedural law of the Member State where a request for a return order is made (point 52).

Nevertheless, the competence of the Member States has its limits. For AG Emiliou, those limits are not respected by the Polish provision in question.

Advocate General argues that by adopting the provision in question, the Polish legislator has exceeded the limits of its competence: he has rendered the return proceedings ineffective. Furthermore, in doing so, the legislator has also limited the fundamental right to respect for family life and the fundamental right to an effective remedy of the parent requesting the return, despite there being no compelling justification for such limitation and the negative consequences it entails (point 54).

All those aspects are addressed in a detailed manner in the Opinion, so there is still a lot to unpack.

The Opinion is available here (so far only in French).

Draft UNIDROIT Principles on Digital Assets and Private Law – Public Consultation

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As part of the UNIDROIT Project on Digital Assets and Private Law, UNIDROIT has launched a Public Consultation to solicit comments and feedback on a set of Draft Principles and Commentary which have been prepared by its Working Group over the course of 7 sessions between 2020-2022. These Principles have been drafted to provide guidance to legislators, judges, practitioners, and the industry involved in the digital asset economy with regard to issues of private law. This includes issues regarding the definition of a digital asset, the importance of control, matters related to transfer of digital assets, custody relationships, conflicts of law, secured transactions, enforcement, and insolvency. The text contains a detailed introduction which explains what the Principles seek to do. UNIDROIT now looks for comments. All the relevant information can be found on this page. All comments should be provided using this online form. The Secretariat is seeking wide distribution of the consultation.

One Private International Law Article published in the First Issue of the International and Comparative Law Quarterly for 2023

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One recent article on private international law was published today in International and Comparative Law Quarterly:

A Chong, “Characterisation and Choice of Law for Knowing Receipt”

Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common law knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort rather than unjust enrichment category and the escape clause in Article 4(3) of the Regulation ought to apply.

 

 

Conference on PIL Aspects of the Digital Market Act (DMA) and the Digital Services Act (DSA)

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On Friday, January 20, 2023, the University of Strasbourg (France) will host a conference on the PIL aspects of the Digital Market Act (DMA) and the Digital Services Act (DSA), organized by Etienne Farnoux, Nicolas Gillet, Kansu Okyay and Delphine Porcheron.

The conference is structured in two parts. The first will be dedicated to general presentation of the new regulations. The second will address specific topics in private international law.

Full Programme:

14h00 : Propos Introductif
Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF
et Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES

1re session – Présentation générale des règlements et étude du conflit de lois
Présidence : Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF

14h10 : Présentation du règlement DMA
Frédérique Berrod, Professeure à Sciences Po Strasbourg – CEIE

14h30 : Présentation du règlement DSA
Stéphanie Carre, Maître de conférences HDR à l’Université de Strasbourg – CEIPI

14h50 : Scope of the regulations and conflicts of laws
Tobias Lutzi, Professeur à l’Université de Augsburg

15h10 : Questions et échange avec la salle

15h30 : Pause

2e session – Les règlements et le contentieux
Présidence : Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES

16h00 : Le contentieux devant les juridictions étatiques
Yves El Hage, Maître de conférences à l’Université Lyon 3 – CREDIP

16h20 : Les modes extrajudiciaires de règlement des litiges
Nurten Kansu Okyay, Maître de conférences contractuelle à l’Université de Strasbourg – CEIE

16h50 : Conclusions
Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF
Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES

17h00 : Clôture

The conference will be held both in site and online. The full program and details about the location and registration can be found here.

Conference on the evaluation of the European Succession Regulation, 20 January 2023

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Colleagues at the University of Heidelberg are organising this conference on 20 Januari 2023 at the

Auditorium of the Neue Universität at Heidelberg University, Universitätsplatz 1, 69117 Heidelberg.

Simultaneous interpretation will be provided in German, English and French.

Background:

The European Succession Regulation (Reg. 650/12) is due for evaluation ten years after its entry into force in August 2015 (Art. 82 Reg. 650/12).

The European Commission must submit its report on the application of the European Succession Regulation by 18 August 2025.

The upcoming evaluation gives an opportunity to reflect on various questions in light of the practical experience gained so far. Although the European Succession Regulation has proven successful in practice, there are many open questions which the ever-growing body of European Court of Justice case-law has not yet answered. These questions fuel a lively debate, both internationally and within the Member States. Hence, the outcome of the evaluation process is not predictable and the German view is only one of many that will contribute to the political decision-making process. Contrasting national views must be reconciled.

The first findings of a pan-European study on the experiences and expectations of legal practice with regard to Reg. 650/12 are now available. The study (MAPE Successions) is carried out by the Council of the Notariats of the European Union (C.N.U.E.) with the cooperation of the German Federal Chamber of Notaries (Bundesnotarkammer).

This study is an opportunity to map out the future objectives of the discussion on the evaluation of Reg. 650/12 from the perspective of academia and legal practice. At the same time, the conference provides a broad circle of legal practitioners with the opportunity to feed their experiences and insights into the reform process and discuss with renowned stakeholders.

Participation is free, but registration is required by 5 January 2023: notareg@igr.uni-heidelberg.de

 

Programme:

1 p.m. Welcome reception with lunchtime snack

2.15 p.m. Welcoming address and introduction

Prof. Dr. Christian Baldus, Heidelberg

 

2.30 p.m. The European Succession Regulation in the System of European Private International and Procedural Law: More “Brussels-Rome 0” after the Revision?

Prof. Dr. Martin Gebauer, Tübingen, Judge at the Higher Regional Court of Stuttgart

 

3.15 p.m. Presentation of the MAPE Successions study: What do practitioners expect from the revision of the European Succession Regulation?

Notary Christian Schall, LL.M. (Edinburgh), Marktheidenfeld

 

4 p.m. Questions and discussion

4.15 p.m. Coffee break

 

4.45 p.m. The European Succession Regulation in German judicial practice

Dr. Carl-Friedrich Nordmeier, Judge at the Regional Court of Frankfurt

5.30 p.m. Panel discussion followed by questions from the audience: European experiences with the application of the European Succession Regulation

Presenter: Notary Dr. Thomas Raff, Ludwigshafen

France, Maître de conférences HDR Paul Klötgen, Nancy

Luxembourg, Notary Anja Holtz, Esch-sur-Alzette

Poland, Notary Tomasz Kot, Krakow, Vice President of the Polish Chamber of Notaries (Krajowa Rada Notarialna)

Portugal, Notary Prof. Sofia Henriques, Lisbon

Sweden, Attorney Ulf Bergquist, Stockholm

Spain, Notary Dr. Isidoro Calvo Vidal, A Coruña

7 p.m.Closing remarks

Notary Dr. Andrea Stutz, Konstanz, Vice President of the Chamber of Notaries of Baden-Württemberg

7.15 p.m. End of conference

Virtual Workshop on January: Guangjian Tu on China’s Ambition to Build up the Highland for International Commercial Litigation

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On Tuesday, January 10, 2022, the Hamburg Max Planck Institute will host its 29th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CET). Guangjian Tu (University of Macau) will speak, in English, about the topic

China’s Ambition to Build up the Highland for International Commercial Litigation: Some Recent Attempts.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

A Major Amendment to Provisions on Foreign-Related Civil Procedures Is Planned in China

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Written by NIE Yuxin and LIU Chang, Wuhan University Institute of International Law

  1. Background

The present Civil Procedure Law of China (hereinafter “CPL”) was enacted in 1990 and has been amended four times. All amendments made no substantive adjustments to the foreign-related civil procedure proceedings. In contrast with legislative indifference, foreign-related cases in the Chinese judicial system have been growing rapidly and call for modernization of the foreign-related civil procedure law. On 30 December 2022, China’s Standing Committee of the National People’s Congress issued the “Civil Procedure Law of the People’s Republic of China (amendment draft)”. Amendments are proposed for 29 articles, 17 of which relate to special provisions on foreign-related civil procedures, including rules on the jurisdiction, service abroad, taking of evidence abroad and recognition and enforcement of judgements.

 

  1. Jurisdiction

Special jurisdiction: Present special jurisdiction rules apply to “disputes concerning contract or other property rights or interests”. The literal interpretation may suggest non-contractual or non-propertary disputes are excluded. The amendment draft extends special jurisdiction rules to cover “disputes relating to property right or interest, and right or interest other than property” (Art. 276, para. 1). The amendment draft provides proceedings may be brought before the courts “where the contract is signed or performed, the subject matter of the action is located, the defendant has any distrainable property, the tort or harmful event occurred, or the defendant has any representative office” (Art. 276, para. 1). Furthermore, “the Chinese court may have jurisdiction over the action if the dispute is of other proper connections with China” (Art. 276, para. 2).

 

Choice of court agreement: A special provision on the choice of court agreement is inserted in the foreign-related procedure session (Art. 277), which states: “If the place actually connected to dispute is not within the territory of China, and the parties have agreed in written that courts of China are to have jurisdiction, Chinese courts may exercise jurisdiction. The competent court shall be specified according to provisions on hierarchical jurisdiction and exclusive jurisdiction of this law and other laws of China.” In contrast to Art. 35 on choice of court agreement in purely domestic cases, Art. 277 partly partially abolished the constraint prescribed in Art. 35, which requires the chosen forum to have practical connection to the dispute. When the party chose Chinese court to exercise jurisdiction, there will be no requirement for actually connection between the dispute and chosen place. But it does not state whether Chinese court should stay jurisdiction if a foreign court is chosen, and whether the chosen foreign court must have practical connections to the dispute. This is an obvious weakness and uncertainty.

 

Submission to jurisdiction: Art. 278 inserted a new provision on submission to jurisdiction: “Where the defendant raises no objection to the jurisdiction of the courts of China and responds to the action by submitting a written statement of defence or brings a counterclaim, the court of China accepting the action shall be deemed to have jurisdiction.”

 

Exclusive jurisdiction: The draft article expands the categories of disputes covered by exclusive jurisdiction (Art. 279), including disputes arising from: “(1) the performance of contracts for Chinese-foreign equity joint ventures, Chinese-foreign contractual joint ventures or Chinese-foreign cooperative exploration and exploitation of natural resources in China; (2) the formation, dissolution, liquidation and effect of decisions of legal persons and other organizations established within the territory of China; (3) examining the validity of intellectual property rights which conferred within the territory of China.” Not only matters relating to Chinese-foreign contractual cooperation, but the operation of legal persons and other organizations and the territoriality of intellectual property rights are deemed key issues in China.

 

Jurisdiction over consumer contracts: The proposal inserts protective jurisdiction rule for consumer contracts (Art. 280). paragraph 1 of this article provides “(w)hen the domicile of consumer is within the territory of China but the domicile of operator or its establishment is not”, which permits a Chinese consumer to sue foreign business in China. Paragraph 2 restricts the effect of standard terms on jurisdiction. It imposed the operator the “obligation to inform or explicate reasonably” the choice of court clause, otherwise the consumer may claim the terms are not part of the contract. Furthermore, even if consumers are properly informed of the existence of a choice of court clause, if it is “obviously inconvenient for the consumer” to bring proceedings in the chosen court, the consumer may claim the terms are invalid. In other words, the proposal pays attention to the fairness of a choice of court clause in consumer contracts both in procedure and in substance.

 

Jurisdiction over cyber torts: With regard to cyber torts, Art. 281 of the draft states: action for cyber torts may be instituted in the Chinese court if: (1) “computer or other information device locates in the territory of China”; (2) “the harmful event occurs in the territory of China”; (3) “the victim domiciles in the territory of China”.

 

3. Conflict of Jurisdiction, Lis pendens and Forum Non Conveniens

Parallel litigation and exclusive jurisdiction agreements: Art. 282 states: “If one party sues before a foreign court and the other party sues before the Chinese court, or if one party sues before a foreign court as well as the Chinese court, for the same dispute, the Chinese court having jurisdiction under this law may exercise jurisdiction. If the parties have agreed in writing on choosing a foreign court to exercise jurisdiction exclusively, and that choice does not violate the provisions on exclusive jurisdiction of this law or involve the sovereignty, security or social public interests of China, the Chinese court may dismiss the action.” The first part of this article deals with parallel litigation. It allows the Chinese court to exercise jurisdiction over the same dispute pending in a foreign court. The second part of this article provides exception to exclusive jurisdiction agreements. Although Chinese courts are not obliged to stay jurisdiction in parallel proceedings, they should stay jurisdiction in favour of a chosen foreign court in an exclusive jurisdiction clause, subject to normal public policy defence.

 

First-seized court approach: If the same action is already pending before a foreign court, conflict of jurisdiction will happen. First-seized court approach encourages the latter seized court to give up jurisdiction. The draft implements this approach in China. Art. 283 states: “Where a foreign court has accepted action and the judgment of the foreign court may be recognized by Chinese court, the Chinese court may suspend the action with the party’s written application, unless: (1) there is choice of court agreement indicating to Chinese court between the parties, or the dispute is covered by exclusive jurisdiction; (2) it is obviously more convenient for the Chinese court to hear the case. Where foreign court fails to take necessary measures to hear the case, or is unable to conclude within due time, the Chinese court may remove the suspension with the party’s written application.” This provision is the first time that introduces the first-in-time or lis pendens rule in China. But the doctrine is adopted with many limitations. Firstly, the foreign judgment may be recognised in China. Secondly, Chinese court is not the chosen court. Thirdly, Chinese court is not the natural forum. The lis pendens rule is thus fundamentally different from the strict lis pendens rule adopted in the EU jurisdiction regime, especially it incorporates the consideration of forum conveniens. Furthermore, it is also necessary to reconcile the first-in-time provision with the article on parallel proceedings, which states Chinese courts, in principle, can exercise jurisdiction even if the dispute is pending in the foreign court.

 

Res judicata: Paragraph 3 of Art. 283 state: “Once the foreign judgment has been fully or partially recognized by Chinese court, and the parties institute an action over issues of the recognized content of the judgement, Chinese court shall not accept the action. If the action has been accepted, Chinese court shall dismiss the action.”

 

Forum non conveniens: Even if the conflict of jurisdiction has not actually arisen, the Chinese court may decline jurisdiction in favour of the more appropriate court of another country. The defendant should plead forum non conveniens or challenge jurisdiction. Applying forum non conveniens should meet four prerequisites. (1) “Since major facts of disputes in a case do not occur within the territory of China, Chinese court has difficulties hearing the case and it is obviously inconvenient for the parties to participate in the proceedings”. (2) “The parties do not have any agreement for choosing Chinese court to exercise jurisdiction”. (3) “The case does not involve the sovereignty, security or social public interests of China”. (4) “It is more convenient for foreign courts to hear the case” (Art. 284, para. 1). This article also provides remedy for the parties if the proceedings on foreign court do not work well. “Where foreign court declined to exercise jurisdiction over the dispute, failed to take necessary measures to hear the case, or is unable to conclude within due time after Chinese court’s dismissal, the Chinese court shall accept the action which the party instituted again.” (Art. 284, para. 2).

 

4. Judicial Assistance

Service of process on foreign defendants: One of the amendment draft’s main focuses is to improve the effectiveness of foreign-related legal proceedings. In order to achieve this goal, the amendment draft introduces multiple mechanisms to serve process abroad.

Before the draft, the CPL has provided the following multiple service methods: (1) process is served in the manners specified in the international treaty concluded or acceded to by the home country of the person to be served and China; (2) service through diplomatic channels; (3) if the person to be served is a Chinese citizen, service of process may be entrusted to Chinese embassy or consulate stationed in the country where the person to be served resides; (4) process is served on a litigation representative authorized by the person to be served to receive service of process; (5) process is served on the representative office or a branch office or business agent authorized to receive service of process established by the person to be served within the territory of China; (6) service by post; (7) service by electronic means, including fax, email or any other means capable of confirming receipt by the person to be served; (8) if service of process by the above means is not possible, process shall be served by public notice, and process shall be deemed served three months after the date of public notice.[1]

Article 285 of the draft outlines two new methods to serve a foreign natural person not domiciled in China. First, if the person has a cohabiting adult family member in China, the cohabiting adult family member shall be served (Art. 285, para. 1(g)). Second, if the person acts as legal representative, director, supervisor and senior management of his enterprise established in the territory of China, that enterprise shall be served (Art. 285, para. 1(f)). Similarly, a foreign legal person or any other organization may be served on the legal representative or the primary person in charge of the organization if they are located in China (Art. 285, para. 1(h)). It is clear that by penetrating the veil of legal persons, the amendment draft increases the circumstances of alternative service between relevant natural persons and legal persons.

Amongst the amendments to the CPL, there are points relating to service by electronic means that are worthy of note. Compared to traditional ways of service, service by electronic means is usually more convenient and more efficient. The position in respect of service by electronic means, both before and after the amendment to the CPL, is that such service is permitted. A major innovation introduced by the amendment draft is that the service can now be conducted via instant messaging tools and specific electronic systems, if such means are legitimate service methods recognized in the state of destination (Art. 285, para. 1(k)). It meets the urgent demand of both sides in lawsuits by improving the delivery efficiency.

Party autonomy in service abroad is also accepted. The validity of service by other means agreed to by the person served is recognized, provided that it is permitted by the state of the person served (Art. 285, para. 1(l)).

If the above methods fail, the defendant may be served by public notice. The notice should be publicized for 60 days and the defendant is deemed served at the end of the period. Upon the written application of the party, the above methods and the way of service by public notice may be made at the same time provided that the service by public notice is not less than 60 days and the litigation rights of the defendant are not affected (Art. 285, para. 2).

 

Investigation and collection of evidence:

Prior to the draft, the CPL stipulated that Chinese and foreign courts can each request the other to provide judicial assistance in acquiring evidence located in the territory of the other country, in accordance with treaty obligations and the principle of reciprocity. Chinese courts can take evidence abroad generally via two channels. First, evidence overseas can be acquired according to treaty provisions. In the absence of treaties, foreign evidence can only be obtained through diplomatic channels based on the principle of reciprocity.[2]

Article 286 of the draft provides more varied methods to collect foreign evidence. Firstly, foreign evidence can be acquired according to the methods specified in the international treaties concluded or acceded to by both the country where the evidence is located and China. Secondly, the evidence can also be obtained through diplomatic channels. Thirdly, for a witness with Chinese nationality, the Chinese embassy or consulate in the country of the witness will be entrusted to take the evidence on behalf of the witness. Fourthly, via instant messenger tools or other means. Access to electronic evidence stored abroad faces the dilemma of inefficient bilateral judicial assistance, controversial unilateral evidence collection and inadequate functioning of multilateral conventions.[3] The application of modern information technology, such as video conferencing and teleconferencing, can overcome the inconvenience of distance, saving time and costs. It is the mainstream of international cooperation to apply modern technology in the field of extraterritorial evidence-taking. For example, in 2020, the EU Parliament and Council revised the EU Evidence Regulation. The most important highlight of the EU Evidence Regulation is the emphasis on the digitalization of evidence-taking and the use of modern information technology in the process of evidence-taking.[4] On this basis, the amendment draft proposes that the court may, with the consent of the parties, obtain evidence through instant messenger tools or other means, unless prohibited by the law of the country where the evidence is collected (Art. 286).

 

5. Recognition and enforcement of foreign judgments and arbitral awards

Grounds for non-recognition and non-enforcement of foreign judgments: Recognition and enforcement shall not be granted if (1) the foreign court has no jurisdiction over the case in accordance with the provisions of Article 303; (2) the respondent has not been legitimately summoned or has not been given a reasonable opportunity to be heard or to argue, or the party who is incapable of litigation has not been properly represented; (3) the judgment or ruling has been obtained by fraud; (4) the court of China has issued a judgment or ruling on the same dispute, or has recognized and enforced a judgment or ruling issued by a court of a third country on the same dispute; (5) it violates the Chinese general principles of the law or sovereignty, national security or public interests of China (Art. 302).

After several amendments and official promulgation, the CPL has not significantly changed the requirements for the recognition and enforcement of foreign judgments. In China, reciprocity as a prerequisite for recognition of foreign judgments continues to play a dominating role in China. The difficulty of enforcing foreign judgments is one of the major concerns in the current Chinese conflicts system when applying the principle of reciprocity, impeding the development of international cooperation in trade and commerce. The local judicial review process may become more transparent thanks to this new draft. However, the key concern, the reciprocity principle, is still left unaltered in this draft.

In addition, if the foreign judgment for which recognition and enforcement are sought involves the same dispute as that being heard by a Chinese court, the proceedings conducted by the Chinese court may be stayed. If the dispute is more closely related to China, or if the foreign judgment does not meet the conditions for recognition, the application shall be refused (Art. 304).

 

Lack of jurisdiction of the foreign court: One of the grounds for non-recognition and non-enforcement of foreign judgments is that the foreign court lacks jurisdiction (See Art. 302). Article 303 provides that the foreign courts shall be found to have no jurisdiction over the case in the following circumstances: (1) The foreign court has no jurisdiction over the case pursuant to its laws; (2) Violation of the provisions of this Law on exclusive jurisdiction; (3) Violation of the agreement on exclusive choice of court for jurisdiction; or (4) The existence of a valid arbitration agreement between the parties (Art. 303).

 

Recognition and enforcement of foreign arbitral awards: If the person sought to be enforced is not domiciled in China, an application for recognition and enforcement may be made to the Chinese intermediate court of the place of domicile of the applicant or of the place with which the dispute has an appropriate connection (Art. 306). The inclusion of the applicant’s domicile and the court with the appropriate connection to the dispute as the court for judicial review of the arbitration significantly facilitates the enforcement of foreign awards. A major uncertainty, however, is how “appropriate connection” is defined. The amendment draft remains silent on the criterion.

 

6. Conclusion

The amendment draft presents efforts to actively correspond to the trends in the internationalization of the civil process along with the massive ambition to build a fair, efficient, and convenient civil and commercial litigation system. It offers more comprehensive and detailed rules that apply to all proceedings involving foreign parties. The amendment draft is significant both in terms of its impact on foreign-related civil procedures and the continuing open-door policy. It demonstrates that China is growing increasingly law-oriented to provide more efficient and convenient legal services to foreign litigants and to safeguard the country’s sovereignty, security and development interests. On the other hand, the proposal also includes discrepancy and uncertainty, especially whether the practical connection for choice of foreign court is still required, what is the relationship between the first-in-time rule and the rule permitting parallel proceedings, whether reciprocity should be reserved for recognition and enforcement of foreign judgments. It is also noted that although anti-suit injunction is used in Chinese judicial practice, the proposal does not include a provision on this matter. Hopefully, these issues may be addressed in the final version.

 

[1] The CPL, Art. 274.

[2] The CPL, Art. 284.

[3] Liu Guiqiang, ‘China’s Judicial Practice on the Taking of Evidence Abroad in Civil and Commercial Matters: Current Situation, Problems and Solutions’ (2021) 1 Wuhan University International Law Review, 92, 97.

[4] Regulation (EU) 2020/1783 on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters (Taking of Evidence Recast). Official Journal of the European Union [online], L 405, 2 December 2020.