Views
Staying Proceedings under the Civil Code of Quebec
Written by Professor Stephen G.A. Pitel, Western University
The decision of the Supreme Court of Canada in R.S. v P.R., 2019 SCC 49 (available here) could be of interest to those who work with codified provisions on staying proceedings. It involves interpreting the language of several such provisions in the Civil Code of Quebec. Art. 3135 is the general provision for a stay of proceedings, but on its wording and as interpreted by the courts it is “exceptional” and so the hurdle for a stay is high. In contrast, Art. 3137 is a specific provision for a stay of proceedings based on lis pendens (proceedings underway elsewhere) and if it applies it does not have the same exceptional nature. This decision concerns Art. 3137 and how it should be interpreted. Read more
HCCH Event on the HCCH Service Convention in the Era of Electronic and Information Technology and a few thoughts
Written by Mayela Celis
The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is organising an event entitled HCCH a / Bridged: Innovation in Cross-Border Litigation and Civil Procedure, which will be held on 11 December 2019 in The Hague, the Netherlands. This year’s edition will be on the HCCH Service Convention.
The agenda and the registration form are available here. The deadline for registrations is Monday 11 November 2019. The HCCH news item is available here.
A bit of background with regard to the HCCH Service Convention and IT: As you may be aware, the Permanent Bureau published in 2016 a Practical Handbook on the Operation of the Service Convention (available for purchase here), which contains a detailed Annex on the developments on electronic service of documents (and not only with regard to the Service Convention). In that Annex, developments on the service of documents by e-mail, Facebook, Twitter, etc. and its interrelationship with the Service Convention were analysed. Not surprisingly, cases where electronic service of process was used were rare under the Service Convention (usually, the physical address of the defendant is not known, thus the Service Convention does not apply and the courts resort to substituted service).
A more important issue, though, appears to be the electronic transmission of requests under the Service Convention. According to a recent conclusion of the HCCH governance council, it was mandated that:
Electronic transmission of requests
“40. Council mandated the Permanent Bureau to conduct work with respect to the development of an electronic system to support and improve the operation of both the Service and Evidence Conventions. The Permanent Bureau was requested to provide an update at Council’s 2020 meeting. The update should address the following issues: whether and how information technology would support and improve the operation of the Conventions; current practices on the electronic transmission of requests under the Conventions; legal and technological barriers to such transmission and how best to address these; and how a possible international system for electronic transmission would be financed. “
In contrast, the European Union seems to be at the forefront in encouraging electronic service of documents as such, see for example the new proposal for Regulation on the service of judicial and extrajudicial documents in civil or commercial matters, click here (EU Parliament, first reading).
Article 15a reads as follows:
“Electronic service
1. Service of judicial documents may be effected directly on persons domiciled in another Member State through electronic means to electronic addresses accessible to the addressee, provided that both of the following conditions are fulfilled: [Am. 45]
(a) the documents are sent and received using qualified electronic registered delivery services within the meaning of Regulation (EU) No 910/2014 of the European Parliament and of the Council, and [Am. 46]
(b) after the commencement of legal proceedings, the addressee gave express consent to the court or authority seized with the proceedings to use that particular electronic address for purposes of serving documents in course of the legal proceedings. [Am. 47].”
By adding the word “both” the European Parliament seems to restrict electronic service to documents after service of process has been made (see previous European Commission’s proposal). This, in my view, is correct and gives the necessary protection to the defendant. In the future and with new IT developments, this might change and IT might be more widely used by all citizens (think of a government account for each citizen for the purpose of receiving government services and service of process -although service of process comes as a result of private litigation so this might be sensitive-), and thus this might provide more safeguards. In my view, the key issue in electronic service is to obtain the consent of the defendant (except for cases of substituted service).
Reform of Singapore’s Foreign Judgment Rules
On 3rd October, the amendments to the Reciprocal Enforcement of Foreign Judgments Act (“REFJA”) came into force. REFJA is based on the UK Foreign Judgments (Reciprocal Enforcement) Act 1933, but in this recent round of amendments has deviated in some significant ways from the 1933 Act. The limitation to judgments from “superior courts” has been removed. Foreign interlocutory orders such as freezing orders and foreign non-money judgments now fall within the scope of REFJA. So too do judicial settlements, which are defined in identical terms to the definition contained in the Choice of Court Agreements Act 2016 (which enacted the Hague Convention on Choice of Court Agreements into Singapore law).
In relation to non-money judgments, such judgments may only be enforced if the Singapore court is satisfied that enforcement of the judgment would be “just and convenient”. According to the Parliamentary Debates, it may not be “just and convenient” to allow registration of a non-money judgment under the amended REFJA if to do so would give rise to practical difficulties or issues of policy and convenience. The Act gives the court the discretion to make an order for the registration of the monetary equivalent of the relief if this is the case.
An interlocutory judgment need not be “final and conclusive” for the purposes of registration under REFJA. The intention underlying this expansion is to allow Singapore courts to enforce foreign interlocutory orders such as asset freezing orders. This plugs a hole as currently Mareva injunctions are not regarded as free-standing relief under Singapore law. It has recently been held by the Court of Appeal that the Singapore court would only grant Mareva injunctions in aid of foreign proceedings if: (i) the Singapore court has personal jurisdiction over the defendant and (ii) the plaintiff has a reasonable accrued cause of action against the defendant in Singapore (Bi Xiaoqing v China Medical Technologies Inc [2019] SGCA 50).
New grounds of refusal of registration or to set aside registration have been added: if the judgment has been discharged (eg, in the event of bankruptcy of the judgment debtor), the damages are non-compensatory in nature, and if the notice of the registration had not been served on the judgment debtor, or the notice of registration was defective.
It is made clear that the court of origin would not be deemed to have had jurisdiction in an action in personam if the defendant voluntarily appeared in the proceedings solely to invite the court in its discretion not to exercise its jurisdiction in the proceedings. Henry v Geoprosco [1976] QB 726 would thus not apply for the purposes of REFJA although its continued applicability at common law is ambiguous (see WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri Lanka [2002] 1 SLR(R) 1088).
All along, only judgments from the superior courts of Hong Kong SAR have been registrable under REFJA. The intention now is to repeal the Reciprocal Enforcement of Commonwealth Judgments Act (“RECJA”; based on the UK Administration of Justice Act 1920) and to transfer the countries which are gazetted under RECJA to the amended REFJA. The Bill to repeal RECJA has been passed by Parliament.
The amended REFJA may be found here: https://sso.agc.gov.sg/Act/REFJA1959
News
Summer school on Consumer’s Rights and Market Regulation in the EU invites applicants
We can feel it in the air but also in the incoming announcements – the summer is approaching. One of the great ways to spend a part of it is at a summer school. The University of Uidne (Italy) is the host to the 16th edition of the summer school Consumer’s Rights and Market Regulation in the European Union, to be held on 12-21 July 2023.
The programme addresses aspects of legal protection of consumers and market regulation, including the private international law topics, and a moot court. The full schedule is available here. The course accepts undergraduate students, graduates (who graduated no more than five years ago), PhD students from faculties of law, economics, political science or international relations., and limited amount of posts are available on the academic qualifications bases. The early bird is until 30 April 12:00 pm GMT, and the enrollment closes on 31 May 12:00 pm GMT. For details, please consult the Call for applications Udine Summer School 2023.
The summer school is organised within the Jean Monnet Module “CoRiMaR” (Consumer’s Rights and Market Regulation in the European Union) by the Department of Legal Sciences of the University of Udine (Italy), together with a consortium of European universities including University of Essex (UK), De Montfort University (UK), Universitatea de Vest din Timisoara (Romania), East Anglia University (UK), University of Belgrade (Serbia), University of Rijeka (Croatia) and University of Szeged (Hungary).
Eulogy for Professor GUO Yujun
Written by Yan WANG, Huaqiao University
It was with great sadness that we received word from her family that Professor GUO Yujun passed away at 1:50 am GMT+8 on 22 April 2023, at the age of 59.
Professor GUO was a distinguished professor of private international law, art law, and cultural heritage law at the Wuhan University International Law Institute in China. She is the Vice-President and Secretary-General of China Society of Private International Law. During her 30 years at Wuhan University, she taught and mentored hundreds of students, inspiring many of them to work under her supervision from the undergraduate to doctoral level.
She published more than 100 academic articles and works in Chinese, English and Japanese with a wide range of domestic and international influence. She had been to Hokkaido University Law Faculty as a Japanese Government (MEXT) Scholarship student from the October 1991 to April 1993. During her academic career, she went to Harvard University, Osnabrück University, and Max Planck Institute for Comparative and International Private Law as a visiting scholar.
Professor GUO earned the affection from her family, friends, colleagues, and students. A list of her representative private international law publications can be found here.
One Small Step Forward: The Mainland China Is Trying to Differentiate Inter-regional Private Cases From Those Foreign-related Ones
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 ……