An anti-suit injunction in support of an arbitration agreement in light of the EU Sanction against Russia

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By Poomintr Sooksripaisarnkit, Lecturer in Maritime Law, Australian Maritime College, College of Sciences and Engineering, University of Tasmania

On 24th September 2024, Mimmie Chan J handed down the judgment of the Court of First Instance of the High Court of the Hong Kong Special Administrative Region in Bank A v Bank B [2024] HKCFI 2529. In this case, the Plaintiff (Bank A) with its base of operation in Germany was under the supervision of the German Federal Financial Supervisory Authority (BaFin). Its majority shareholder was the Defendant (Bank B) who held 99.39% shares. In turn, the Defendant was a Russian bank whose majority shareholder was the Government of the Russian Federation.

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Compensation, y nada más – CJEU decides against Real Madrid in Case C-633/22

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Just two days after losing to LOSC Lille in the Champions League, Real Madrid suffered another defeat against a French opponent. Among the 44 (!) judgments published this Friday by the CJEU – a flurry of decisions reminiscent of the madness that is the current Champions League format –, the Court decided a true ‘clásico’ of European private international law in Case C-633/22 Real Madrid Club de Fútbol.

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The Dubai Supreme Court on Indirect Jurisdiction – A Ray of Clarity after a Long Fog of Uncertainty?

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I. Introduction

It is widely acknowledged that the recognition and enforcement of foreign judgments depend, first and foremost, on whether the foreign court issuing the judgment was competent to hear the dispute (see Béligh Elbalti, “The Jurisdiction of Foreign Courts and the Enforcement of Their Judgments in Tunisia: A Need for Reconsideration”, 8 Journal of Private International Law 2 (2012) 199). This is often referred to as “indirect jurisdiction,” a term generally attributed to the renowned French scholar Bartin. (For more on the life and work of this influential figure, see Samuel Fulli-Lemaire, “Bartin, Etienne”, in J. Basedow et al. (eds.), Encyclopedia of Private International Law – Vol. I (2017) 151.)

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Delhi High Court Grants Rare Anti-Enforcement Injunction: Implications for International Disputes

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By Ananya Bhargava, Jindal Global Law School, OP Jindal Global University, India.

Recently, the Delhi High Court in the case of Honasa Consumer Limited v RSM General Trading LLC granted an anti-enforcement injunction against the execution proceedings instituted in the Dubai Court on the ground that it threatened the arbitral process in India. The Court deemed the proceedings before the Dubai Court as an attempt to frustrate a possible arbitration envisaged by the contract between the parties.  The injunction was granted under S.9 of the Indian Arbitration and Conciliation Act 1996 as an “interim measure.”  This is a significant turning point in the intersection of arbitration and cross-border litigation in India since the remedy of anti-enforcement injunction is rarely granted by judicial authorities across jurisdictions.

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How many monetary judgments that Chinese courts decided to enforce are successfully enforced?

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It is necessary to distinguish (1) a court’s decision to acknowledge the validity of a foreign judgment (judgment recognition and enforcement), and (1) whether a judgment creditor successfully recovers the awarded amount in practice.

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Insights and Future Directions of PIL Based on the 2024 Online Summer Courses at The Hague Academy of International Law

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By Birgit van Houtert, Assistant Professor of Private International Law at Maastricht University

From 29 July till 16 Augustus 2024, the Summer Courses on Private International Law (PIL) were held at the 93rd session of the summer courses of the Hague Academy of International Law. The PIL courses were followed by 250 onsite attendees and remotely 61 attendees from 74 different countries. The inaugural lecture was presented by Lord Lawrence Collins of Mapesbury (Former Justice at the United Kingdom Supreme Court) on the “Use and Abuse of Comity in International Litigation”. In the next three weeks, the general course was given by Charalambos Pamboukis (Professor at the National and Kapodistrian University of Athens) titled “The Metamorphoses of Private International Law”. During these three weeks, six special courses were given by Alessandra Zanobetti (Professor at the University of Bologna) on “The Effects of Economic Sanctions and Counter-Measures on Private Legal Relationships”; Natalie Y. Morris-Sharma (Director at the Attorney-General’s Chambers of Singapore) on “The Singapore Convention and the International Law of Mediation”; Carlos Esplugues Mota (Professor at the University of Valencia) on “New Dimensions in the Application of Foreign Law by Courts (and Arbitrators) and Non-judicial Authorities”; Jack Coe (Professor at Pepperdine Caruso School of Law) on “Non-ICSID Convention Investor-State Awards in Domestic Courts”; Eva Lein (Professor at the University of Lausanne) on “Breathing Space in International Commercial Litigation”; Andrew Dickinson (Professor at the University of Oxford) on “Natural Justice in Recognition and Enforcement of Foreign Judgements”. These PIL experts provided very interesting and valuable insights, including future (desirable) directions on PIL that can guide and inspire students, researchers, legal practitioners, courts, and legislators. The courses will be published by Brill in the series Collected Courses of The Hague Academy of International Law / Recueil des cours de l’Académie de La Haye. The fact that the courses commonly focused on PIL globally, by including national, regional and international PIL, is particularly laudable in view of our interconnected world. This blog aims to describe common threads of the 2024 Online Summer Courses on PIL that may encourage you to read the Hague Academy Collected Courses and inspire further research.[1]

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The Public Law-Private Law Divide and Access to Frozen Russian Assets

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By Csongor István Nagy, Professor of Law at the University of Galway, Ireland, and at the University of Szeged, Hungary, and research professor at the HUN-REN Center for Social Sciences, Hungary.

The overwhelming majority of the international community condemned Russia’s war against Ukraine as a gross violation of international law and several countries introduced unilateral measures freezing Russian assets. It has been argued that countries should go beyond that and use these assets for the indemnification of Ukrainian war damages. Confiscation would, however, be unprecedented and raise serious international law concerns. While states have, with good reason, been reluctant to react to one wrongful act with another, this question has given rise to intensive debate. Recently, the EU authorized the use of net profits from the frozen assets but not the assets themselves to support Ukraine.

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Tesseract: Don’t Over-React! The High Court of Australia, Proportionate Liability, Arbitration, and Private International Law

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By Dr Benjamin Hayward
Associate Professor, Department of Business Law and Taxation, Monash Business School
X: @LawGuyPI, @MonashITICL

On 7 August 2024, the High Court of Australia handed down its long-awaited decision in Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24. The dispute arose out of a domestic commercial arbitration seated in South Australia, where the Commercial Arbitration Act 2011 (SA) is the relevant lex arbitri. That Act is a domestically focused adaptation of the UNCITRAL Model Law on International Commercial Arbitration (with its 2006 amendments).

The respondent to the arbitration sought to rely upon proportionate liability legislation found in the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) and in the Competition and Consumer Act 2010 (Cth). The High Court was asked to determine whether those proportionate liability regimes could be applied in the arbitration. A very practical difficulty arose here, reflected in Steward J noting (in dissent) that the High Court was ‘faced with an invidious choice’: see [228]. Were the proportionate liability laws not to apply in the arbitration, the respondent might find themselves liable for 100% of the applicant’s loss, when they would not be liable to that same extent in court proceedings applying the same body of South Australian law. But were the proportionate liability laws to apply, the applicant might find themselves able to recover only a portion of their loss in the arbitration, and might then have to then pursue court proceedings against another third party wrongdoer to recover the rest: given that joinder is not possible in arbitration without consent. Read more

First Thai Monetary Judgment Enforced in China, Highlighting Presumptive Reciprocity in China-ASEAN Region

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This post is kindly provided by Dr. Meng Yu, lecturer at China University of Political Science and Law, and co-founder of China Justice Observer.

Key Takeaways:

  • In June 2024, the China-ASEAN Free Trade Area Nanning International Commercial Tribunal under the Nanning Railway Transportation Intermediate Court in Guangxi ruled to recognize and enforce a Thai monetary judgment (Guangxi Nanning China Travel Service, Ltd. v. Orient Thai Airlines Co., Ltd. (2023) Gui 71 Xie Wai Ren No. 1).
  • Apart from being the first case of enforcing Thai monetary judgments in China, it is also the first publicly reported case confirming a reciprocal relationship based on “presumptive reciprocity”.
  • The Chinese court’s confirmation that “presumptive reciprocity”, as outlined in the Nanning Statement, is a form of mutual consensus between China and ASEAN countries helps to promote the circulation of judgments within the China-ASEAN region.

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