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Brexit & Lugano

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Written by Jonathan Fitchen

The UK’s intention to attempt to accede to the 2007 Lugano Convention is apparently proceeding apace. Though the events leading up to Friday 31st January, when the UK left the EU,  rather overshadowed this fact, the UK Government had already announced that its intention to accede by a posting on 28th January 2020 that may be found here https://www.gov.uk/government/news/support-for-the-uks-intent-to-accede-to-the-lugano-convention-2007   As will be remembered, the 2007 Lugano Convention is open to non-EU third States if the consent of all the existing Convention parties can be first secured. The UK Gov posting records that the UK has secured statements in support of it joining the 2007 Convention from the Swiss, the Norwegians and Iceland. So now all that is required is to secure the consent of the EU to this course of action. Assuming that such consent can be secured, the UK Gov posting records that it is the intention of the UK Government to accede to the 2007 Convention at the end of the transition period (currently scheduled / assumed for 23.00 GMT on 31st December 2020).

Brexit: No need to stop all the clocks.

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Written by Jonathan Fitchen.

‘The time has come’; a common enough phrase which may, depending on the reader’s mood and temperament, be attributed variously to Lewis Carroll’s discursive Walrus, to Richard Wagner’s villainous Klingsor, or to the conclusion of Victor Hugo’s epigrammatic comment      to the effect that nothing is as powerful as an idea whose time has come. In the present context however ‘the time has come’ refers more prosaically to another step in the process described as ‘Brexit’ by which the UK continues to disentangle itself from the EU.

On the 31st of January 2020 at 24.00 CET (23.00 UK time) the UK ceases to be an EU Member State. This event is one that some plan to celebrate and other to mourn. For those interested in private international law and the conflict of laws in the EU or in the legal systems of the UK, celebration is unlikely to seem apt. Whether for the mundane reason that the transition period of the Withdrawal Agreement preserves the practical application and operation of most EU law concerning our subject in the UK and within the EU27 until the projected end point of 31st December 2020, or for deeper reasons connected with the losses to the subject that the EU and the UK must each experience due to the departure of the UK from the EU. If celebration is not appropriate must we therefore opt to mourn? This post suggests that mourning is not the only option (nor if overindulged is it a useful option) and sets out some thoughts on the wider implications for the private international laws of the UK’s legal systems and the legal systems that will comprise the EU27 consequent on the UK’s departure.

This exercise is necessarily speculative and very much a matter of what one wishes to include in or omit from the equation under construction. If too little is included, the result may be of only abstract relevance; if too much is included, the equation may be incapable of solution and hence useless for the intended purpose of calculation. Such difficulties, albeit expressed in a non-mathematical form, are familiar to private international lawyers who while engaging with their subject routinely consider the macroscopic, the microscopic and many points in between. In what remains of this post I will offer some thoughts that hopefully will provoke further thoughts while avoiding useless abstraction and (at least for present purposes) ‘useless’ incalculability.

The loudest calls for the UK to leave the EU did not arise from UK private international law, nor from its practitioners; few UK private international lawyers appear to have wished for Brexit as a means of reforming private international law. Whatever appeals to nostalgia may have swayed opinions in other sectors of the UK and may have induced those within them to vote to leave, they were not expressed with reference to matters of private international law. Few who remember or know the law as it stood in any of the UK’s legal systems prior to the implementation of the UK’s accession to the Brussels Convention of 1968 would willingly journey back to the law as it then stood and regard it as an upgrade. Mercifully, aspects of this view are, at present, apparently shared by the UK Government and account for its wish, after ‘copying and pasting’ most EU law and private international law into the novel domestic category of ‘retained EU Law’, to then amend and allow that which does not depend on reciprocity to be re-presented as a domestic private international law to be applied within and by the UK’s legal systems: thus the Rome I and Rome II Regulations will be eventually so ‘imitated’ within the legal systems of the UK. Unfortunately, many other EU provisions do require reciprocity, and thus cannot be ‘saved’ in this manner; for these provisions the news in the UK is less good.  

There are however other available means of salvage. Because the UK will no longer be an EU Member State at 24.00 Brussels Time it may, but for the Withdrawal Agreement, thereafter participate more fully in proceedings and projects at the Hague Conference on Private International Law. The UK plans to domestically clarify the domestic understanding of certain existing Hague conventions, e.g. 1996 Parental Responsibility Convention, via the recently announced Private International Law (Implementation of Agreements) Bill 2019. Earlier in 2018 the UK deposited instruments of accession concerning conventions it plans to ratify at the end of the Withdrawal Agreement’s transition period to attempt to retain prospectively the salvageable aspects of certain reciprocity requiring EU private international law Regulations lost via Brexit: thus, the UK plans to ratify the 2005 Choice of Court Convention and the 2007 Maintenance Convention. After these ratifications it may be that the UK will also consider the ratification of the 2019 judgment enforcement convention, particularly it the EU takes this option too. In the medium and long term however, the UK, assuming it wishes to participate in an active sense, will have to accept the practical limitations of the HCCH as it (the UK) becomes accustomed to the differences, difficulties and frustrations of private international law reform via optional instruments that all the intended parties are entitled to refuse to opt-in to or ratify.

Over the medium term and longer term, it should additionally be noted that though the UK has left the EU it has not cast-off and sailed away from continental Europe at a speed in excess of normal tectonic progress: there may therefore eventually be further developments between the two. It may be that the UK can be induced at some point in the future, when Brexit has become more mundane and less politically volatile within the UK, to cooperate in relation to private international law in a deeper sense with the EU27; whether by negotiating to join the 2007 Lugano Convention or a new convention pertaining to aspects of private international law. If this last idea seems too controversial then maybe it would be possible for the UK to eventually negotiate with an existing EU Member State as a third country via Regulation 664/2009 or Regulation 662/2009 or perhaps via another yet to be produced Regulation with a somewhat analogous effect? Brexit, considered in terms of private international law, may well re-focus a number of existing questions for the EU27 pertaining to the interaction of its private international law with third States, whether former Member States or not.   

What is however unavoidably lost by Brexit is the UK’s direct influence on the development and particularly the periodic recasting of the EU’s private international law: this loss cuts both ways. For the EU27 the UK will no longer be at the negotiating table to offer suggestions, criticisms and improvements to the texts of new and recast Regulations. For the EU27 this loss is somewhat greater than it might appear from the list of Regulations that the UK did not opt-in to as the terms of the UK’s involvement in these matters permitted it to so participate without having opted-in to the draft Regulation.   

The suggested loss of influence will however probably be felt most acutely by the private international lawyers in the UK. Despite the momentary impetus and excitement of salvaging that which may be salvaged and ratifying that which may be ratified to mitigate the effect of Brexit on private international law, the reality is that we in the UK will have lost two of the motive forces that have seen our subject develop and flourish over decades: viz. the European Commission and the domestic political reaction thereunto. Post-Brexit, once the salvaging (etc.) is done, it seems unlikely that the UK Government will continue to regard a private international law now no longer affected by Commission initiatives or re-casting procedures as retaining its former importance or meriting any greater legislative relevance than other areas of potential law reform. The position may be otherwise in Scotland as private international law is a devolved competence that devolution entrusted to the Scottish Government. It may be that once the dust has settled and the returning UK competence related reforms have been applied that the comparatively EU-friendly Scottish Government may seek to domestically align aspects of Scots private international law with EU law equivalents. For he who would mourn for the effect of Brexit on the subject of private international law, it is the abovementioned loss of influence of the subject at both the EU level and particularly at the domestic level that most merits a brief period of mourning. After this, the natural but presently unanswerable question of, ‘What now?’ occurs. Though speculation is offered above, all in the short term will depend on the progress in negotiations over an unfortunately already shortened but technically still extendable transition period during which the EU and UK are to attempt to negotiate a Free Trade Agreement: thereafter for the medium term and long term all depends on the future political relationship of the EU and the UK.

Private International Law and Venezuelan Academia in 2019: A Review

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by José Antonio Briceño Laborí, Professor of Private International Law, Universidad Central de Venezuela y Universidad Católica Andrés Bello

In 2019 the Venezuelan Private International Law (hereinafter “PIL”) academic community made clear that, despite all the difficulties, it remains active and has the energy to expand its activities and undertake new challenges.

As an example of this we have, firstly, the different events in which our professors have participated and the diversity of topics developed by them, among which the following stand out:

  • XI Latin American Arbitration Conference, Asunción, Paraguay, May 2019 (Luis Ernesto Rodríguez – How is tecnology impacting on arbitration?)
  • Conferences for the 130th Anniversary of the Treaties of Montevideo of 1889, Montevideo, Uruguay, June 2019 (Eugenio Hernández-Bretón and Claudia Madrid Martínez – The recent experience of some South American countries not part of Montevideo Treaties in comparative perspective to them. The case of Venezuela).
  • OAS XLVI Course on International Law. Rio de Janeiro, Brazil, August 2019 (Javier Ochoa Muñoz – Effectiveness of foreign judgements and transnational access to justice. Reflections from global governance).
  • The Role of Academia in Latin American Private Intertnational Law, Hamburg, Germany, September 2019 (Javier Ochoa Muñoz – The Legacy of Tatiana Maekelt in Venezuela and in the Region).
  • XIII ASADIP Annual Conference 2019: Transnational Effectiveness of Law: Recognition and enforcement of foreign judgments, arbitral awards and other acts (Claudia Madrid Martínez – Transnational Efficacy of Foreign Judgments – Flexibilization of Requirements; Eugenio Hernández-Bretón – Transnational Effectiveness of Provisional Measures; and Luis Ernesto Rodríguez – New Singapore Convention and the execution of international agreements resulting from cross-border mediation).

However, this year’s three most important milestones for our academic community occurred on Venezuelan soil. Below we review each one in detail:

  1. Celebration of the 20th Anniversary of the Venezuelan PIL Act

The Venezuelan PIL Act, the first autonomous legislative instrument on this subject in the continent, entered into force on February 6, 1999 after a six months vacatio legis (since it was enacted in the Official Gazette of the Republic of Venezuela on August 6, 1998).

This instrument has a long history, as its origins date back to the Draft Law on PIL Norms written by professors Gonzalo Parra-Aranguren, Joaquín Sánchez-Covisa and Roberto Goldschmidt in 1963 and revised in 1965. The Draft Law was rescued in 1995 on the occasion of the First National Meeting of PIL Professors. Its content was updated and finally a new version of the Draft Law was sent by the professors to the Ministry of Justice, which in turn sent it to the Congress, leading to its enactment (for an extensive overview of the history of the Venezuelan PIL Act and its content, see: Hernández-Bretón, Eugenio, Neues venezolanisches Gesetz über das Internationale Privatrecht, IPRax 1999, 194 (Heft 03); Parra-Aranguren, Gonzalo, The Venezuelan Act on Private International Law of 1998, Yearbook of Private International Law, Vol. 1 1999, pp. 103-117; and B. de Maekelt, Tatiana, Das neue venezolanische Gesetz über Internationales Privatrecht, RabelsZ, Bd. 64, H. 2 (Mai 2000), pp. 299-344).

To celebrate the 20th anniversary of the Act, the Private International and Comparative Law Professorship of the Central University of Venezuela and the “Tatiana Maekelt” Institute of Law with the participation of 7 professors and 9 students of the Central University of Venezuela Private International and Comparative Law Master Program.

All the expositions revolved around the Venezuelan PIL Act, covering the topics of the system of sources, vested rights, ordre public, in rem rights, consumption contracts, punitive damages, jurisdiction matters, international labour relations, recognition and enforcement of foreign judgements, transnational provisional measures and the relations between the Venezuelan PIL Act and international arbitration matters. The conference was both opened and closed by the professor Eugenio Hernández-Bretón with two contributions: “The Private International Law Act and the Venezuelan university” and “The ‘secret history’ of the Private International Law Act”.

  • Private International and Comparative Law Master Program’s Yearbook

On the occasion of the XVIII National Meeting of Private International Law Professors, the Private International and Comparative Law Master’s Degree Program of the Central University of Venezuela launched its website and the first issue of its yearbook. This specialized publication was long overdue, particularly in the Master’s Program context which is focused on educating and training researchers and professors in the areas of Private International Law and Comparative Law with a strong theoretical foundation but with a practical sense of their fields. The Yearbook will allow professors, graduates, current students and visiting professors to share their views on the classic and current topics of Private International Law and Comparative Law.

This first issue included the first thesis submitted for a Master’s Degree on the institution of renvoi, four papers spanning International Procedural Law, electronic means of payment, cross-border know-how contracts and International Family Law, sixteen of the papers presented during the Commemoration of the Twentieth Anniversary of the Venezuelan Private International Law Act’s entry into force, and two collaborations by Guillermo Palao Moreno and Carlos Esplugues Mota, professors of Private International Law at the University of Valencia (Spain), that shows the relation of the Program with visiting professors that have truly nurtured the students’ vision of their area of knowledge.

The Call of Papers for the 2020 Edition of the Yearbook is now open. The deadline for the reception of contributions will be April 1st, 2020 and the expected date of publication is May 15th, 2020. All the information is available here. The author guidelines are available here. Scholars from all over the world are invited to contribute to the yearbook.

  • Libro Homenaje al Profesor Eugenio Hernández-Bretón

On December 3rd, 2019 was launched a book to pay homage to Professor Eugenio Hernández-Bretón. Its magnitude (4 volumes, 110 articles and 3298) is a mirror of the person honored as we are talking about a highly productive and prolific lawyer, professor and researcher and, at the same time, one of the humblest human beings that can be known. He is truly one of the main reasons why the Venezuelan Private International Law professorship is held up to such a high standard.

The legacy of Professor Hernández-Bretón is recognized all over the work. Professor of Private International Law at the Central University of Venezuela, Catholic University Andrés Bello and Monteávila University (he is also the Dean of the Legal and Political Sciences of the latter), Member of the Venezuelan Political and Social Sciences Academy and its President through the celebration of the Academy’a centenary, the fifth Venezuelan to teach a course at The Hague Academy of International Law and a partner in a major law firm in Venezuela (where he has worked since his law school days) are just some of the highlights of his career.

The contributions collected for this book span the areas of Private International Law, Public International Law, Comparative Law, Arbitration, Foreign Investment, Constitutional Law, Administrative Law, Tax Law, Civil Law, Commercial Law, Labor Law, Procedural Law, Penal Law, General Theory of Law, Law & Economics and Law & Politics. The book closes with six studies on the honored.

The contributions of Private International Law take the entire first volume. It includes the following articles:

  • Adriana Dreyzin de Klor – El Derecho internacional privado argentino aplicado a partir del nuevo Código Civil y Comercial (The Argentine Private International Law applied from the new Civil and Commercial Code).
  • Alfredo Enrique Hernández Osorio – Objeto, contenido y características del Derecho internacional privado (Purpose, content and characteristics of Private International Law).
  • Andrés Carrasquero Stolk – Trabajadores con elevado poder de negociación y Derecho applicable a sus contratos: no se justifica restricción a la autonomía de las partes (Workers with high bargaining power and applicable law to their contracts: no restriction to party autonomy is justified).
  • Carlos E. Weffe H. – La norma de conflicto. Notas sobre el método en el Derecho internacional privado y en el Derecho internacional tributario (The conflict norm. Notes on the method in Private International Law and in International Tax Law).
  • Cecilia Fresnedo de Aguirre – Acceso al derecho extranjero en materia civil y comercial: cooperación judicial y no judicial (Access to foreign law in civil and commercial matters: judicial and non-judicial cooperation).
  • Claudia Madrid Martínez – El rol de las normas imperativas en la contratación internacional contemporánea (The role of peremptory norms in contemporary international contracting).
  • Didier Opertti Badán – Reflexiones sobre gobernabilidad y Derecho internacional privado (Reflections on governance and Private International Law).
  • Fred Aarons P. – Regulación del internet y el derecho a la protección de datos personales en el ámbito internacional (Internet regulation and the right to personal data protection at international level).
  • Gerardo Javier Ulloa Bellorin – Interpretación del contrato: estudio comparativo entre los principios para los contratos comerciales internacionales del UNIDROIT y el derecho venezolano (Contract interpretation: comparative study between the UNIDROIT Principles on International Commercial Contracts and Venezuelan law).
  • Gilberto Boutin I. – El recurso de casación en las diversas fuentes del Derecho internacional privado panameño (Cassational complaint in the various sources of Panamanian Private International Law).
  • Guillermo Palao Moreno – La competencia judicial internacional en la nueva regulación europea en materia de régimen económico matrimonial y de efectos patrimoniales de las uniones registradas (International jurisdiction in the new European regulation on the economic matrimonial regime and the property effects of registered partnerships).
  • Héctor Armando Jaime Martínez – Derecho internacional del trabajo (International Labor Law).
  • Javier L. Ochoa Muñoz – El diálogo de las fuentes ¿un aporte del Derecho internacional privado a la teoría general del Derecho? (The dialogue of sources: a contribution from private international law to the general theory of law?
  • Jorge Alberto Silva – Contenido de un curso de Derecho internacional regulatorio del proceso (Content of a course on international law regulating the process).
  • José Antonio Briceño Laborí – La jurisdicción indirecta en la ley de derecho internacional privado.
  • José Antonio Moreno Rodríguez – Los Principios Unidroit en el derecho paraguayo (The UNIDROT Principles in Paraguayan law).
  • José Luis Marín Fuentes – ¿Puede existir una amenaza del Derecho uniforme frente al Derecho interno?: ¿podríamos hablar de una guerra anunciada? (Can there be a threat to national law from uniform law? Could we talk about an announced war?).
  • Jürgen Samtleben – Cláusulas de jurisdicción y sumisión al foro en América Latina (Jurisdiction and submission clauses in Latin America).
  • Lissette Romay Inciarte – Derecho procesal internacional. Proceso con elementos de extranjería (International Procedural Law. Trial with foreign elements).
  • María Alejandra Ruíz – El reenvío en el ordenamiento jurídico venezolano (Renvoi in the Venezuelan legal system).
  • María Mercedes Albornoz – La Conferencia de La Haya de Derecho Internacional Privado y el Derecho aplicable a los negocios internacionales (The Hague Conference on Private International Law and the applicable Law to International Business).
  • María Victoria Márquez Olmos – Reflexiones sobre el tráfico internacional de niños y niñas ante la emigración forzada de venezolanos (Reflections on international child trafficking in the face of forced migration of Venezuelans).
  • Mirian Rodríguez Reyes de Mezoa y Claudia Lugo Holmquist – Criterios atributivos de jurisdicción en el sistema venezolano de Derecho internacional privado en materia de títulos valores (Attributive criteria of jurisdiction in the Venezuelan system of Private International Law on securities trading matters).
  • Nuria González Martín – Globalización familiar: nuevas estructuras para su estudio (Globalization of the family: new structures for its study).
  • Peter Mankowski – A very special type of renvoi in contemporary Private International Law. Article 4 Ley de Derecho Internacional Privado of Venezuela in the light of recent developments.
  • Ramón Escovar Alvarado – Régimen aplicable al pago de obligaciones en moneda extranjera (Regime applicable to the payment of obligations in foreign currency).
  • Roberto Ruíz Díaz Labrano – El principio de autonomía de la voluntad y las relaciones contractuales (The party autonomy principle and contractual relations).
  • Stefan Leible – De la regulación de la parte general del Derecho internacional privado en la Unión Europea (Regulation of the general part of Private International Law in the European Union).
  • Symeon c. Symeonides – The Brussels I Regulation and third countries.
  • Víctor Gregorio Garrido R. – Las relaciones funcionales entre el forum y el ius en el sistema venezolano de derecho internacional privado (The functional relations between forum and ius in the Venezuelan system of private international law.

As we see, the contributions are not just from Venezuelan scholars, but from important professors and researchers from Latin America, USA and Europe. All of them (as well as those included in the other three volumes) pay due homage to an admirable person by offering new ideas and insights in several areas of law and related sciences.

The book will be available for sale soon. Is a must have publication for anyone interested in Private International Law and Comparative Law.

News

One Small Step Forward: The Mainland China Is Trying to Differentiate Inter-regional Private Cases From Those Foreign-related Ones

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For quite a long time, what China had been doing for its interregional private laws was modelling their solutions on international conventions such as the Hague Service Convention, the Hague Evidence Convention and the Hague Judgments Convention etc. Normally they eventually got a slimmed-down Arrangement for the corresponding matter. This was quite different from what happed in the EU where the enhanced versions of the Hague Conventions could be seen and something extra could even be achieved. Also different from the EU where the ECJ could give answers when many questions at national law level were elevated and tested in the context of Regulations at the EU level, there has been no common court for interregional instruments within China so far. Apart from those bilateral Arrangements, all regions within China are basically treating one another as a ‘foreign country’ in terms of private laws.

The situation is, however, changing, at least from the Mainland side. Yesterday, I was invited to attend a conference which was under the support of the Supreme People’s Court of PRC and organized by the High Court of Guangdong Province that is geographically the closest one to Hong Kong and Macau. The purpose of the conference was to read the Draft Interpretation prepared by a research team of the Guangdong High Court and to be formally adopted and issued by the Supreme People’s Court later on. This Draft Interpretation is, again, an unilateral act of the Mainland China who wants to better its civil procedural rules regarding cases related to Hong Kong and Macau (possibly also Taiwan included). Indeed, different from the past experience for the past decades where inter-regional private cases were generally handled in analogy with foreign-related ones, the Mainland China is now trying to differentiate them. It wants to have more advanced and enhanced rules for interregional private cases. Keep an eye on the development of Chinese interregional private laws ……

The International Dimension of Intellectual Property Disputes

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Lex & Forum Law Review and Sakkoulas Publications SA are organizing an online conference on:

The International Dimension of Intellectual Property Disputes

PRESIDING:

Prof. Lia Athanasiou, University of Athens

PRESENTERS:

• Prof. Dan Svantesson, Faculty of Law, Bond University/Australia,

‘Intellectual Property disputes and PIL: A Swedish and Australian perspective’

• Prof. Dr. Marketa Trimble, Samuel S. Lionel Professor of Intellectual Property Law, William S. Boyd School of Law, University of Nevada, Las Vegas, Stanford University

‘The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies’

• Prof. Dr. Gerald Spindler, Faculty of Law, Georg-August Universität Göttingen

‘EU Digital Services Act und EU Digital Markets Act and its impact on private international law’

• Dr. Ioannis Revolidis, University of Malta,

‘International jurisdiction on online copyright infringements’

More information available here

FAMIMOVE (FAMIlies on the MOVE) – the website is now live!

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FAMIMOVE is an international project co-funded by the European Commission under the JUST-2022-JCOO program. The FAMIMOVE website is now live and may be consulted by clicking here.

The project  aims to improve the protection of migrant children and families by bringing actual practice more in line with EU goals and values, such as the protection of fundamental rights and best interests of the child. It also seeks to provide more effectiveness to EU objectives through a better coordination of instruments in overlapping fields, such as Regulations in private international law in family law matters and migration law rules. The duration of the project is 24 months (from 1 January 2023 to 31 December 2024). For more information, click here.

The Consortium is coordinated by Prof. Marta Pertegás Sender (University of Maastricht) and is comprised of the following partners: Prof. Bettina Heiderhoff (University of Münster), Prof. Costanza Honorati (University of Milano-Bicocca); Prof. Fabienne Jault (University of Versailles Saint-Quentin-en-Yvelines), Prof. Ulf Maunsbach (Lund University), Prof. Orsolya Szeibert (Eötvös Loránd University) and Prof. Jinske Verhellen (Ghent University). Each Partner is further supported by colleagues with expertise in  cross-cutting fields, thus bringing together experts who are representatives from a large range of European regions. More information is available here.

FAMIMOVE (actually, FAMIMOVE 2.0) is a spin-off of an earlier project with the same name, which was very successful and resulted in two insightful documents published by the European Parliament: Children on the Move: A Private International Law Perspective and Private International Law in a Context of Increasing International Mobility: Challenges and Potential.

Any new developments on FAMIMOVE will be published here – stay tuned!

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