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Portugal joins the CISG
This post is authored by Ana Coimbra Trigo (Associate Lawyer at PLMJ Law Firm; PhD Candidate at NOVA Lisbon Univ.; LL.M. China-EU School of Law (China Univ. Political Science and Law, conferred by Univ. Hamburg); Law Degree from Univ. Coimbra), with contributions from Gustavo Moser.
Today, on 7 August 2020, Decree 5/2020 of the Council of Ministers approved the United Nations Convention on Contracts for the International Sale of Goods (CISG or Convention), making Portugal its newest signatory state (link to the official publication here). The Convention will enter into force, in respect of Portugal, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of approval.
Portugal joins the Convention alongside two historic moments. First, this is the year that marks the 40th anniversary of the Convention, and second, the current Secretary General of the UN, António Guterres, is a Portuguese national.
Portugal was in fact active in the preparatory works at UNCITRAL and present at the diplomatic conference that adopted the CISG in 11 April 1980. Although “arriving late to the party”, it is foreseen that the CISG will be advantageous for Portugal, both at the legal and commercial level.
First, as is well known, the CISG provides a uniform and neutral regime for cross-border transactions regarding carriage of goods, and related dispute settlement. The text is based on a common set of remedies inspired by the principle of favor contractusand structured to maximize economic benefits of the contract.
Second, the CISG provides for overall legal certainty, especially in cases where there is and there is not a (valid) choice of law. It is drafted in plain language and this is particularly advantageous for small and medium-sized companies.
Third, scholars highlight the balanced system of solutions included in the Convention that allowsefficiencies in transaction costs and thus more competitive prices for imported and exported goods. This is beneficial for overall trade, but from a Portuguese viewpoint, will also allow Portuguese final users to get more value for their money, and Portuguese exporters to sell their products at lower prices in global markets.
Fourth, the above benefits are emphasized when one considers that the CISG has been ratified already by93 states. This includes 24 of 27 EU Member-States (excluding UK, Ireland, Malta and not for long Portugal) and also the United States of America, Canada, Brazil, China, Japan and South Korea. Some of these countries are relevant trade partners of Portugal.
Lastly, Portugal will now benefit from 40 years of scholarly writings and decisions for guidance, including in the Portuguese language, since Brazil recently became the first Lusophone country to adopt the CISG.
The increased availability of materials on the CISG in Portuguese may boost capacity building and contribute to the affirmation of the CISG in other Lusophone countries.
Scholars and diplomats have clamoured about this potential accession over the years, so we anticipate that this will be viewed positively by the local and international legal community.
Moreover, this can be seen as strategic boost for Portugal in international trade in this demanding international context.
CJEU on the deceased’s habitual residence
Written by Vito Bumbaca, University of Geneva
On 16 July the CJEU issued its preliminary ruling in case E.E. & K.-D. E. (CJEU, C-80/19, ECLI:EU:C:2020:569, not yet available in English). The case concerned, inter alia, the assessment of the deceased’s habitual residence under the EU Succession Regulation No. 650/2012. Given the novelty of the ruling, which represents the very first CJEU assessment of the deceased’s habitual residence under the EU Succession Regulation, we will focus on this particular aspect only.
Facts:
A Lithuanian mother and her son moved to Germany to live with the mother’s husband. Prior to her death in Germany, she drew up a testament in Lithuania, naming her son as her sole heir. The mother owned an apartment in Lithuania and when she died (in Germany), her son approached a notary in Lithuania concerning the apartment and in order to obtain a Certificate of Succession. This notary refused both requests based on their interpretation of the EU Succession Regulation according to which the deceased’s last habitual residence was in Germany at the time of death. The deceased’s son appealed against such a decision; subsequently the proceedings reached the Lithuanian Supreme Court (Lietuvos Aukš?iausiasis Teismas), which decided to stay proceedings and ask the preliminary ruling of the CJEU. The CJEU found that a person can have only one habitual residence.
Relevance:
This is the first CJEU ruling on the determination of the deceased’s habitual residence under the EU Succession Regulation.
It is welcomed to the extent that it provides a guiding assessment of the hierarchical order and practical implementation of recitals 23, 24 and 25. These are considered as explanatory rules for the determination of international competence and applicable law in matters of EU 25 cross-border succession based on habitual residence as a primary connecting factor.
Specifically, the Court clarifies which key factors should be assessed in the determination of the deceased’s habitual residence by virtue of the above-mentioned recitals and in line with the objectives followed by the EU Succession Regulation. Furthermore, it confirms that, when assessing the deceased’s habitual residence at the time of death, a lengthy determination of the deceased’s life circumstances preceding his/her death should be made. Lastly, it leaves unresolved the factual assessment of the manifestly closest connection criterion applicable on an exceptional basis.
Brief analysis:
According to the Court, the deceased cannot simultaneously have more than one habitual residence at the time of death (§ 41). This however does not exclude the possibility of acquiring an alternative and consecutive habitual residence at different points in time during the deceased’s life. The Court indicated that by virtue of recital 23 the main element in determining the deceased’s habitual residence is the stability of his/ her stay, and therefore of his/ her physical presence, at the time of death (§ 38). In the absence of stability, therefore on a subsidiary basis (§ 39), recital 24 advises national authorities, in some circumstances including notaries (§ 46), to refer to the deceased’s nationality (personal factor) and/ or assets (economic factor). Finally, the criterion relating to the “manifestly closest connection” in relation to the determination of applicable law will have to be applied in a strict manner and not subsidiary to the complex determination of habitual residence, in accordance with the principles of predictability and legal certainty as provided for by the EU Regulation (§ 37). The exceptional use of the “manifestly closest connection” criterion, however, is left to the judicial discretion of the first seised national courts (§ 45).
Ultimately, according to the Court’s reasoning, which follows the Advocate General’s Opinion of 26 March 2020 (§ 52), the element of stability relating to the deceased’s physical presence at the time of death must be sought in the reasons (subjective element) and the conditions (objective element) of his/ her stay showing a close and stable link between the succession and the given State, in line with the objectives of the EU Succession Regulation (§ 37). The assessment of both objective and subjective elements, and generally of habitual residence, should consider the deceased’s life circumstances at the time of death and the years preceding his/ her death (§ 23). Such a “lengthy” determination of the deceased’s life assessment leaves the debate open as to its pertinence in an increasingly globalised society within which cross-border settlements regularly occur, in particular when involving expats holding multiple nationalities and various assets in different countries.
Lastly, the Court has made clear that the habitual residence assessment must be twofold in matters of competence and threefold in relation to applicable law. With regard to competence, according to the Advocate General, the Court first seised will have to look primarily at the duration and regularity of the deceased’s settlement and subsidiarily at his/ her nationality and/ or assets. In relation to the deceased’s settlement, the Advocate General clarified that duration (time factor) cannot be considered, in itself, a decisive element and that it should be accompanied by other relevant factors such as the deceased’s family and social integration, or his/ her proximity to the State in question (Advocate General’s Opinion, § 54). Furthermore, the Advocate General confirmed that, in line with recital 24, the contexts typically falling under the subsidiary assessment of the deceased’s nationality and/ or assets are: (i) the scenario involving expats; and (ii) that involving a “peripatetic” cross-border movement and life not allowing the establishing of stable connection (Advocate General’s Opinion, § 55-57).
In relation to applicable law, the Court first seised should consider, as a last resort when none of the above elements can be traced, specific factors indicating a situation falling under “manifestly closest connection”. According to the EU Succession Regulation, and confirmed by the Advocate General (§ 25 of the Opinion), a typical situation falling under “manifestly closest connection” is when the deceased moved to his/ her new habitual residence fairly recently before his/ her death. Nonetheless, the Court has not yet identified any specific elements for the determination of the exceptional “manifestly closest connection” criterion (§ 59).
New conflict of laws rule for minimum wages in road transport: UPDATE
Written by Fieke van Overbeeke, Legal Counsel at the International Institute for International and Foreign Law – the Netherlands and research fellow at the University of Antwerp – Belgium
On 10 June conflictoflaws.net posted a piece about ‘new conflict of laws rule for minimum wages in road transport’. At that time it seemed that the EU institutions still needed to overcome severe difficulties. However, fully according to the course of events around this very unpredictable file, on 10 July the institutions officially reached a compromise: the directive with conflict of law rules for road transport was finally has adopted and it will enter into force 18 months after publication in the EU’s Official Journal.
In short about these conflict of law rules: 1) Transit operations do not fall under the Posting of Working Directive and the labour conditions, i.a. minimum wages, cannot be applied to this type of transport; 2) Cabotage operations do fall under the Posting of Working Directive and the labour conditions should be guaranteed to this type of transport (‘guaranteed’ because this only needs to be done in case these conditions are more favourable to the lorry driver, see Article 3 section 7 Posting of Working Directive); 3) Bilateral operations do not fall under the Posting of Working Directive, and some correlated crosstrade operations do not either; 4) Crosstrade operations are supposed to fall under the Posting of Working Directive (however, a clear rule about this is lacking and provokes many questions).
News
Call for abstracts: TEGL Conference Re-imagining Law for Sustainable Globalization: Navigating Uncertainty in a Globalized Era – 16-17 December 2024
A call for abstracts has been launched for the TEGL (Transformative Effects of Globalisation in Law) Conference entitled “Re-imagining Law for Sustainable Globalization: Navigating Uncertainty in a Globalized Era”, which will take place on 16-17 December 2024. For more information, click here.
Interested persons may submit a paper proposal abstract, a panel proposal abstract or an abstract to participate in the PhD session. Abstracts should be no more than 500 words. A short bio (of max. 200 words) should also be included. Both documents should be submitted by 15 September 2024 by using the following link.
As stated on its website, the topics are the following:
The conference focuses on the four TEGL research streams: 1) Constitutionalism and Subjects of Globalization; 2) Economic Law and Globalization’s Infrastructures; 3) Courts, Science and Legitimacy; 4) National and Regional Institutions as Global Actors. It, therefore, welcomes submissions on a wide variety of topics. For reference, specific questions include but are not limited to:
- How does law produce socio-economic inequalities in the context of uncertainty and across various areas?
- How can existing categories of law be rethought in different areas to reduce these inequalities and the resulting sense of uncertainty?
- How does law constrain or regulate uncertainties within global value chains, exploring its role in shaping and responding to crises in this interconnected world?
- How does law guarantee or contribute to uncertainty in international economic exchanges, encompassing trade and investment?
- How effective are legal mechanisms in mitigating uncertainties arising from the current climate crisis? Discuss how the law can contribute to sustainable solutions.
- What is the role of law in empowering or disempowering individuals facing socio-economic inequalities and exploring potential legal reforms to address disparities?
- How does the law address humanitarian concerns during the conflict, considering its effectiveness and proposing innovative solutions?
- What role do principles play in risk regulation/environmental/climate change litigation (before international/EU/national courts)?
- What role do experts play in decision-making and courts, and what role do NGOs/public interest litigation play?
- What is the role of science and its legitimacy in courts?
- How does uncertainty affect legal coherence and migration governance, and can uncertainty be considered a ‘governance strategy?’
- How to regulate and control in times of uncertainty.
- Proportionality in times of uncertainty.
- What role should law play in navigating uncertainty in the digital age, including in platform regulation (e.g., the political economy of platforms, AI utilization in content moderation, design of platform interfaces, access to datasets), automated decision-making, digitization of lawmaking and the use of AI in courtrooms (Robot judge, natural language processing and automation in law).
This event is organized within and supported by the Sector Plan TEGL and the Globalization and Law Network of Maastricht University. For inquiries, please contact glawnet-fdr@maastrichtuniversity.nl.
TEGL research project is a collaboration between the law faculties of Maastricht University, Open Universiteit NL, Tilburg University and the University of Amsterdam. More information is available here.
The Hague Academy of International Law Centre for Studies and Research 2025: “Artificial Intelligence and International Law”
As recently highlighted by contributions on this blog, new technologies have a significant impact on the development of the law. Hence, the Curatorium of the Hague Academy of International Law has chosen for the the 2025 edition of the Centre for Studies and Research (18 August – 5 September 2025) to focus on the emerging topic of “Artificial Intelligence and International Law“. This year, the selected researchers will be work under the guidance of the Directors of Research, Marion Ho-Dac (Université d’Artois) for the French-speaking section as well as Marco Roscini (University of Westminster) for the English-speaking section.
Interested candidates must be researchers and preferably hold an advanced degree (PhD or Doctorate degree). Registration for the 2025 Centre is open from 1 July to 15 October 2024 via the institution’s own Online Registration Form.
The Academy describes the scope of its 2025 Programme as follows (emphasis added to highlight passages of specific interest to col.net readers):
The increasing integration of digital technologies based on Artificial Intelligence (AI) into human activities requires a thorough re-examination of most normative frameworks in the international order. Advanced AI systems operate with ever greater autonomy, generating content, recommendations, predictions and decisions for States, organisations and individuals. AI thus offers enormous opportunities for humankind by facilitating (or even making possible) the performance of certain tasks. At the same time, however, it presents significant risks related, for instance, to potential biases and accountability gaps. In this context, is (public and private) international law capable of addressing the profound changes that the contemporary rise of AI is bringing?
The Centre of Studies and Research 2025 of The Hague Academy of International Law aims to analyse these challenges and opportunities through the lenses of international law in a holistic manner by focusing on three different aspects: AI’s impact on the sources and institutions of the international legal order, AI’s impact on special regimes of international law, and AI’s role in addressing specific contemporary problems.
Selected researchers will be called to work on the following topics under the guidance of the Directors of Research:
- AI and International/Regional Organisations
- AI and International/Regional Courts and Tribunals
- AI and the Making of (Public/Private) International Law
- AI and the Practice of (Public/Private) International Law
- International Governance of AI including Technical Standardisation
- AI and the Risk-based Approach
- AI and the International Law of Armed Conflict
- AI and International Environmental Law
- AI and Conflict of Laws
- AI and International Human Rights Law
- AI and the Law of State Responsibility
- AI and International Criminal Law
- AI and International Business Law
- AI and the Maintenance of International Peace and Security
- Lethal Autonomous Weapons and International Law
- AI and the North-South Divide
- AI and Cybersecurity
- AI and Privacy
- AI and Humanitarian Action
- AI and the Cross-border Movement of Persons
- AI and (Mis)Information
For further information on the HAIL 2025 Centre and the Academy in general, please consult the HAIL Homepage or refer to the attached PDF Programme.
Two Interesting Recent Articles related to Private International Law
Williams C Iheme, “The Overdependence of African Courts and Businesses on English Law and Forum:
The Negative Repercussions on the Development of African Legal and Economic Systems” (2024) 15 Pravni Zapisi, pp. 151-190
The uncritical transplantation of English law by Anglophone-African legislators and judges, and their failure to sufficiently adapt English legal concepts to suit the idiosyncratic socioeconomic conditions in Africa, arguably contribute to the perpetuation of English law’s hegemony therein. It is argued that the overdependence on English law and courts by African businesses in resolving contractual disputes
is not necessarily due to any alleged stellar qualities of the former, but largely due to the over-marketing of the English legal system’s competence by its apologists. The analysis uses piquant examples to elicit some adverse effects of using/overreliance on the English law and forum by African businesses in resolving contractual disputes.
To reposition from the lengthened shadow of English law, Anglophone African legislators, judges and legal scholars, must craft autochthonous legal processes that suit Africa’s tastes and socioeconomic milieu.
Georgia Antonopoulou, “Forum Marketing in International Commercial Courts?” (2024) Oxford Journal of Legal Studies
Forum selling is a legal term used to describe the practices of courts and judges, geared towards attracting cases, such as increasing the predictability of judgments or speeding up trials. However, do courts also go beyond forum selling to attract cases? Taking international commercial courts as its focus, this article explores how these courts market themselves to attract cases and coins the term ‘forum marketing’. It demonstrates that the courts’ recent establishment, coupled with their voluntary jurisdiction, creates a compelling context, which encourages them to engage in forum marketing. The article argues that forum marketing is not merely a byproduct of the competition in commercial dispute resolution, but a powerful mechanism with deeply persuasive, normative and, effectively, structuring properties. Forum marketing is central to disseminating and reinforcing a pro-business approach in civil justice, consequently setting the stage for procedural inequality and a one per cent procedure.