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On the Global Community of Private International Law – Impressions from Brazil

From August 3-5 this year, the Pontifical Catholic University of Rio de Janeiro hosted the 7th biennial conference of the Journal of Private International Law. Ably organized by Nadia de Araujo and Daniela Vargas from the host institution, together with Paul Beaumont from Aberdeen, the conference was a great success, as concerns both the quality and quantity of the presentations. Instead of a conference report, I want to provide some, undoubtedly subjective, impressions as concerns the emerging global community of private international law.

First, no less than 168 participants attended, from all over the world. The Journal conference has, by now, become something like a World Congress of Private International Law. This is no small achievement. The Journal of Private International Law started out in 2005 as a very doctrinal publication focusing primarily on common law systems and European private international law. Fittingly, the first two conferences took place in the UK. It was a very wise decision to move, after that, to cities in other countries—New York (2009), Milan (2011), Madrid (2013) and now, after a return to the UK (Cambridge) for the ten-year anniversary in 2015, Rio de Janeiro (2017). By now, it can be said that Journal and conference both really represent the world. And what is emerging is a global community that comes together at these and other events.

Second, this first Journal conference in Latin America was an excellent opportunity to showcase the tremendous developments of the discipline on this Continent. Latin America, the region that created the Código Bustamante, has long produced excellent scholars in private international law. However, for some time the discipline appeared, at least to the outside observer, marginalized, caught between a very doctrinal approach on the one side and a very philosophical one on the other, both often without connection to actual practice. In recent years, this has changed, for a number of reasons: the Hague Conference established a bureau, led by Ignacio Goicoechea; a young generation of scholars connects theory and practice, doctrine and interdisciplinarity; legislators are, at long last, replacing antiquated legislation. Many Latin American scholars and practitioners at the conference proved that interest and quality. But the best sign for the vitality of the field were the many excellent Brazilian students who followed the conference with enthusiasm and expertise.

Third, and finally, this emerging globalization captures all regions, but not to the same degree. The great importance of Latin America in Rio was no surprise. Nor was the great role that European private international law, a testament not only both to the European background of the journal and the more generous travel budgets in European universities, but also to the legislative and scholarly developments in Europe. Asia was somewhat less well represented, as far as I could see, despite exciting developments there (including current work on Asian Principles of Private International Law), but several presentations dealt with Asian development. The most palpable absence concerned the United States. There were only two participants from the US, fewer than there were Nigerians. In a not so distant past, US private international law was the avant-garde of the discipline worldwide. When the Second Restatement was being discussed, the whole world was watching what the conflicts revolution would yield. Now, a third Restatement is underway. But I heard no word about that from participants in Rio, and the Restatement’s reporters did not use the occasion to advertise their project. The United States is no longer leading the globalization of the field. Will it at least follow?

Grounds for Refusal of Recognition of (Quasi-) Annex Judgements in the Recast European Insolvency Regulation

Written by Zoltán Fabók, Fellow of INSOL International, Counsel at DLA Piper (Hungary) and PhD Candidate at Nottingham Trent University

Insolvency-related (annex) actions and judgements fall within the scope of the Recast European Insolvency Regulation (‘Recast EIR’). That instrument both determines international jurisdiction regarding annex actions and sets up a simplified recognition system for annex judgements. However, tension between the Recast EIR’s provisions on jurisdiction and recognition arises when a court of a state different from the state of insolvency erroneously assumes jurisdiction for annex actions. Such ‘quasi-annex’ judgements rendered by foreign courts erroneously assuming jurisdiction threaten the integrity of the insolvency proceedings. Besides, the quasi-annex judgements may violate the effectiveness and efficiency of the insolvency proceedings as well as the principle of legal certainty.

In my paper, it is argued that even the current legal framework may offer some ways to avoid the recognition of such quasi-annex judgements. First, the scope of the public policy exception may be extended in order to protect the integrity of the insolvency proceedings from the quasi-annex judgements rendered by foreign courts erroneously assuming jurisdiction. Second, it may be argued that quasi-annex judgements do not equal real annex judgements and therefore do not enjoy the automatic recognition system provided by the Recast EIR. At the same time, their close connection to the insolvency proceedings – disregarded by the forum erroneously assuming jurisdiction – may exclude quasi-annex judgements from the scope of the Brussels Ibis Regulation, as well. As a consequence, those quasi-annex judgements may fall within the gap between the two regulations, meaning that no European instrument instructs the courts of the member state addressed to recognise quasi-annex judgements.

My research article has been accepted for publication by International Insolvency Review. The paper can be accessed in the Early View section at http://onlinelibrary.wiley.com/doi/10.1002/iir.1284/full.

Egyptian Court of Cassation on the application of the Hague Service Convention

[The author wishes to thank Justice Hossam Hesham Sadek, Vice President of the Civil and Commercial Chamber of the Court of Cassation, and reporting judge in the case at hand, for granting access to the Supreme Court’s ruling].

1.  Introduction

In a recent ruling (22/05/2017), the Egyptian Court of Cassation tackled with the issue of service of process abroad. The facts of the case were the following: The claimant (and appellant) was an Egyptian Medical Equipment company, situated in Cairo. The respondents and appellees were a Chinese company, with its seat in Nanshan district, Shenzen, the Egyptian General Organization for Import and Export Control, and an Egyptian company, with its seat in Heliopolis, Cairo.

2. Facts and instance ruling

The Appellant filed a lawsuit against the Chinese Company and the Second Appellee at Cairo Court of Appeal, requesting a judgment obliging the First Appellee to pay the amount of ten million Egyptian pounds as monetary and moral compensation resulting from the contract’s termination. The Appellant asserted that it had been assigned as the sole agent of the First Appellee in Egypt, for selling ultrasonic wave devices, and that it was unexpectedly notified by the First Appellee that the contract was terminated.

The first instance court ordered that the lawsuit be dismissed for lack of proper service to the Chinese company. The Appellant claimed that service had been effected through the Public Prosecution Office, following all necessary procedures through diplomatic channels in China, pursuant to article 13 (9) of the Egyptian Civil and Commercial Code of Procedure (CCCP), and by notification of the claim to the first Appellee’s legal representative (Commercial Agent) pursuant to article 13 (5) CCCP.

Article 13 (9) CCCP states that, if no international treaty or a specific provision of law is applicable, service shall be made by delivering the documents to the public prosecutor, who then forwards them to the Minister of Foreign Affairs, to be delivered through diplomatic channels to the country of destination. Art. 13 (5) CCCP stipulates that, if service is addressed to a foreign company that has a branch or agent in Egypt, domestic service shall be effected (i.e. to the branch or agent located in Egypt).

3. The Supreme Court ruling

The Court of Cassation referred initially to Art. 13 (5) & (9) CCCP. It then mentioned Articles 3 & 14 of the Judicial Cooperation Treaty on Civil, Commercial and Criminal Matters between the Arab Republic of Egypt and The People’s Republic of China, signed on 21/4/1994, which stipulates that: “For the purposes of requesting and providing judicial assistance, parties shall communicate through their central authorities unless otherwise provided for in this Treaty. Central authorities of both parties are represented by the Ministries of Justice. Both parties shall serve judicial documents in civil and commercial matters pursuant to Hague Convention on the service Abroad of Judicial and Extrajudicial Documents in civil or Commercial Matters concluded on 15/11/1965’’.

Based on the above, the Court of Cassation decided as follows: The Hague Convention exclusively stipulates methods, means and conditions for serving judicial documents unless agreed between the Parties on other methods pursuant to Article 11 of the same Convention, and obliges the judge to stay proceedings, save when a document was served by a method prescribed by the internal law of the State addressed, or when the document was actually served to the defendant in its residence under one of the methods prescribed in the Convention in sufficient time to enable him to arrange for his defence.

Since the legislator has permitted in Article 13(5) CCCP that foreign companies may be served by delivering a copy to its branch or agent in Egypt, their existence is considered a question of fact under the exclusive competence of the court. Accordingly, the Court of Cassation confirmed the instance decision, which ruled that service made to the first Appellee through the third appellee (Trade And Importing Company in Heliopolis), ostensibly being its commercial agent and representative, was improper, since the representative of the latter denied its relation with the first Appellee.

Finally, delivering the document to the Public Prosecution in order to take necessary actions towards service by diplomatic channels is not sufficient, because notice was not delivered / served to the first Appellee.

4. Conclusion

The judgment offers a valuable insight into the practice of Egyptian courts in regards to notification of documents abroad. It is noteworthy that the Court of Cassation examined carefully all legal regimes related to the subject matter: It referred to domestic law (CCCP), the Egyptian – Chinese bilateral treaty, and the multilateral convention, to which the bilateral convention refers. The question whether service of process abroad was necessary or not was decided on a substantive level: Given that the appellant failed to demonstrate that the third appellee was the representative of the Chinese company, the court rightfully considered that service solely to the local Transmission Authority through the Prosecutor’s Office does not suffice. Hence, whenever the Hague Service Convention applies, the Court of Cassation dismisses fictitious service (remise au parquet).

News

2021 UNCITRAL ASIA PACIFIC DAY UNCITRAL RCAP-UM JOINT CONFERENCE 2021 CONQUERING THE COVID: ENHANCING ECONOMIC RECOVERY THROUGH HARMONIZATION OF LAW GOVERNING MSMES

On 17 December 2021, the UNCITRAL RCAPUM Joint Conference, an event celebrating the 2021 UNCITRAL Asia Pacific Day, is scheduled in the University of Macau (Macau SAR) under the title “Conquering the COVID: Enhancing Economic Recovery through Harmonization of Law Governing MSMEs”. This is the annual conference rising from the successful cooperation between the UNCITRAL Regional Centre for Asia and the Pacific (RCAP) and the University of Macau since 2014. The UNCITRAL RCAP-UM Joint Conference 2021 intends to bring together a group of distinguished experts and scholars to analyze contemporary issues related to the current agenda of UNCITRAL impacting MSMEs and the legal instruments resulting from its previous works. The conference will focus on the following tracks: 1. MSMEs formation: simplification of practices in business registration and transformation of business establishment procedures. 2. Creating congenial legal environment for MSMEs in special economic zones through legal harmonization: regional developments including the Guangdong-Macao in-depth Cooperation Zone. 3. MSME Financing: Financial support, access to credit, and sustainable finance for MSMEs & MSE insolvency, further efforts of UNCITRAL to simplify insolvency procedures, and unify insolvency law. 4. Promotion of viable dispute resolution mechanisms for MSMEs through adaptation of arbitration and mediation. 5. Contemporary legal developments facilitating the establishment and the successful operation of the MSMEs.

As the core legal body of the United Nations system in the field of international trade law, the United Nations Commission on International Trade Law (UNCITRAL) seeks to progressively harmonize and modernize trade laws by preparing and promoting the adoption and use of legislative and nonlegislative instruments in several key areas of commercial law. UNCITRAL RCAP (Incheon, Republic of Korea) was inaugurated in 2012 to promote the work of UNCITRAL in the Asia-Pacific region and provide technical assistance to the states concerning the implementation and uniform interpretation of UNCITRAL texts, thereby diminishing legal obstacles to global commercial transactions. University of Macau, founded in 1981, is the leading comprehensive public university in Macau. It is a resourceful and ambitious educational institution with unique Sino-European heritage and global connections. In 2017, it was ranked within the top-50 universities in Asia by the Times Higher Education Asia University Rankings. It has also been ranked within the top-100 Asian University Rankings in QS World University Rankings. The Faculty of Law of the University of Macau, responsible for organizing the conference, is the oldest law school in Macau. With its diversemultilingual programs and teaching staff of international background, the Faculty has been playing a vital role in promoting legal education and research in Macau and contributing to the build-up of the local legal system. In addition, the Faculty of Law has also successfully held many high-level international conferences and meetings on a range of legal topics.

The registration for the conference is free of charge. Participants should complete registration in advance and obtain confirmation to secure a place at the conference. The deadline for registration is 15 December 2021.  The conference will be held on 17 December 2021 in a mixed format (online and offline). The speakers and participants from outside Macau are invited to take part in the conference via Zoom. The conference will start at 9:30 a.m. (Macau time) and may end late in the evening to accommodate speakers and participants from different time zones.

FOR MORE INFORMATION AND ENQUIRIES, PLEASE CONTACT US AT LAW.UMUNCITRAL@UM.EDU.MO

XXIInd volume of the Yearbook of Private International Law  (2020/2021) published

Thanks to Ilaria Pretelli for the tip-off. 

The XXIInd volume of the Yearbook of Private International Law  (2020/2021) has been released. It contains articles on the most important innovations in multilateral and national private international law by authors from all over the world. The readers will find an analysis on cross-border mobility of union citizens and continuity of civil status by Johan Meeusen as well as how to cope with the obstacles to mobility due to the pandemics (Bernard Haftel) and Brexit (Katarina Trimmings and Konstantina Kalaitsoglou). Two inspiring sections nourish the core of the volume: the editors present the most challenging innovations of Regulation Brussels II ter (EU Regulation 2019/1111), and the consequences of the global reach of the internet for private international law. The National reports section hosts articles on the new Croatian and Uruguayan Private International law Statutes.

The most recent innovations on classical themes of private international law (torts, muslim divorces, the degree of deference by state courts to international commercial arbitral awards, etc.) add to this already rich volume.

Readers are invited to view the table of contents and the foreword by the editors.

8th CPLJ Webinar – 28 January 2022

 Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (019/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 8th CPLJ Webinar on 28 January 2022, 3:00 – 5:45 pm (CET).

The programme reads as follows:

Chair: Loïc Cadiet (University of Paris 1)

3:00 pm John Dashaco (University of Yaoundé II)

Harmonization and Practice of Civil Procedure within the OHADA Sub-Region: Reflection on the Uniform Act on Simplified Recovery Procedure and Measures of Execution

3:30 pm Discussion

4:00 pm Intermission

4:15 pm Sami Bostanji (University of Tunis El Manar)

Droit Processuel Comparé: Regard Général sur les Droits des Pays Arabes (*)

5:00 pm Discussion

5:45 pm Closing of the event

The full programme is available here.

(Image credits:  Rijksmuseum, Amsterdam)

(*) Presentation in French. Consecutive interpretation in English will be provided.