Views
A New Zealand perspective on Israeli judgment against New Zealand-based activists under Israel’s Anti-Boycott Law
Last year the New Zealand singer Lorde cancelled a concert in Tel Aviv following an open letter by two New Zealand-based activists urging her to take a stand on Israel’s illegal occupation of Palestine. A few weeks later, the two activists found themselves the subject of a civil claim brought in the Israeli court. The claim was brought by the Israeli law group Shurat HaDin, on behalf of three minors who had bought tickets to the concert, pursuant to Israel’s so-called Anti-Boycott Law (the Law for the Prevention of Damage to the State of Israel through Boycott). The Israeli court has now released a judgment upholding the claim and ordering the activists to pay NZ$18,000 in damages (plus costs).
Readers who are interested in a New Zealand perspective on the decision may wish to visit The Conflict of Laws in New Zealand, where I offer some preliminary thoughts on the conflict of laws issues raised by the judgment. In particular, the post addresses – from a perspective of the New Zealand conflict of laws – the concern that the judgment represents some kind of jurisdictional overreach, before discussing the enforceability of the judgment in New Zealand (and elsewhere).
Reports of HCCH Experts’ Groups on the Surrogacy/Parentage and the Tourism Projects available
The Permanent Bureau of the Hague Conference on Private International Law has made available two reports for the attention of its governance Council (i.e. the Council on General Affairs and Policy): the Report of the Experts’ Group on the Parentage / Surrogacy Project and the Report of the Experts’ Group on the Co-operation and Access to Justice for International Tourists.
The Group on Parentage/Surrogacy Project will need to meet one more time early next year to reach final Conclusions on future work. In particular, the Group discussed possible methods to ensure cross-border continuity of legal parentage both established by and in the absence of a judicial decision.
Importantly, “[t]he Group recalled that the absence of uniform PIL rules on legal parentage can lead to limping parentage across borders in a number of cases and can create significant problems for children and families. The Group further recalled that uniform PIL rules can assist States in resolving these conflicts and can introduce safeguards for the prevention of fraud involving public documents, while ensuring that the diverse substantive rules on legal parentage of States are respected. Any new instrument should aim to provide predictability, certainty and continuity of legal parentage in international situations for all persons involved, taking into account their fundamental rights, the UN Convention on the Rights of the Child and in particular the best interests of children. The Group agreed that any international instrument would need to be developed with a view to complementing the existing Hague Family Conventions and to attracting as many States as possible.”
Regarding the Group on the Tourism Project, it should be noted that it is currently exploring the need for an international instrument on the co-operation and provision of access to justice for international tourists. The Group concluded that “[t]he Experts’ Group recommends to the CGAP that it mandates the Experts’ Group to continue its work, with a view to assessing the need for, the nature (soft law and hard law options) and the key elements of, a possible new instrument. The composition of the Experts’ Group should remain open, and, if possible, also include representatives of Stakeholders, such as the UNWTO, as well as representatives of relevant organisations and private international law experts.” It was noted that the Consultant will finalise his draft (substantive) Report, which will be circulated at the end of this year.
The aide-mémoire of the Chair of the Tourism Project noted: “[i]f a new instrument were to be developed, the Experts identified a number of possible expected values such instrument might add. These included that tourists might be able to obtain appropriate information, including in a language they understand, to ascertain and understand their rights, and the potentially available options to seek redress. It might also provide co-operation mechanisms among suitable bodies that can work in a concerted manner to facilitate the resolution of complaints, with a view to guaranteeing access to justice in the broadest sense, including through alternative dispute resolution, in a non- discriminatory way. The instrument might also have a preventive effect. Finally, it might create an official record of the complaint, including for subsequent use abroad.”
In March 2019, the HCCH governance Council will determine whether work on these two subjects will go forward.
Forcing a Square Peg into a Round Hole – The Actio Pauliana and the Brussels Ia Regulation
Earlier today, the Court of Justice held that, under certain circumstances, special jurisdiction for an actio pauliana can be based on Art. 7(1) Brussels Ia (Case C-337/17 Feniks).
The actio pauliana is an instrument provided by the national laws of several EU member states that allows the creditor to challenge fraudulent acts by their debtor that have been committed to the creditor’s detriment. The ECJ already had several opportunities to decide on the availability of individual grounds of special jurisdiction for such an action, but has reliably denied their availability. In today’s decision however, the Court confirmed the availability of special jurisdiction for matters relating to contract, contrary to the proposition of AG Bobek (Opinion delivered on 21 June 2018). Read more
News
Ferrari, Rosenfeld & Kotuby, Recognition and Enforcement of Foreign Arbitral Awards: A Concise Guide to the New York Convention’s Uniform Regime
With my co-authors Professor Franco Ferrari and Friedrich Rosenfeld, I am pleased to announce the publication of my newest work, “Recognition and Enforcement of Foreign Arbitral Awards: A Concise Guide to the New York Convention’s Uniform Regime.” It is available for order here.
This incisive book is an indispensable guide to the New York Convention’s uniform regime on recognition and enforcement of foreign arbitral awards. Framing the Convention as a uniform law instrument, the book analyses case law from major arbitration jurisdictions to explain its scope of application, the duty to recognize arbitral agreements and awards as well as their limitations, and the procedure and formal requirements for enforcing arbitral awards.
Combining insight from arbitration practice with perspectives from private international law, the book underlines the importance of the Convention’s foundation in a treaty of international law, arguing that this entails a requirement to interpret the key concepts it sets forth based on international law rules of interpretation. However, it also demonstrates where municipal laws are relevant and discusses the private international law principles through which these instances can be identified.
Addressing one of the core treaties of international arbitration, this will be crucial reading for legal practitioners and judges working in the field. It will also prove valuable to scholars and students of commercial and private international law, particularly those focused on cross-border disputes and arbitration.
Third Issue for Journal of Private International Law for 2022
The third issue for the Journal of Private International Law for 2022 was published today. It contains the following articles:
K Takahashi, “Law Applicable to Proprietary Issues of Crypto-Assets”
Indonesian civil procedure law recognises choice of court agreements made by contracting parties. However, Indonesian courts often do not recognise the jurisdiction of the courts chosen by the parties. That is because under Indonesian civil procedure codes, the principle of actor sequitur forum rei can prevail over the parties’ choice of court. In addition, since Indonesian law does not govern the jurisdiction of foreign courts, Indonesian courts continue to exercise jurisdiction over the parties’ disputes based on Indonesian civil procedure codes, although the parties have designated foreign courts in their choice of court agreements. This article suggests that Indonesia pass into law the Bill of Indonesian Private International Law that has provisions concerning international jurisdiction of foreign courts as well as Indonesian courts, and accede to the 2005 HCCH Choice of Court Agreements Convention. This article also suggests steps to be taken to protect Indonesia’s interests.
Mohammad Aljarallah, “The Proof of Foreign Law before Kuwaiti Courts: The way forward”
The Kuwaiti Parliament issued Law No. 5/1961 on the Relations of Foreign Elements in an effort to regulate the foreign laws in Kuwait. It neither gives a hint on the nature of foreign law, nor has it been amended to adopt modern legal theories in ascertaining foreign law in civil proceedings in the past 60 years. This study provides an overview of the nature of foreign laws before Kuwaiti courts, a subject that has scarcely been researched. It also provides a critical assessment of the law, as current laws and court practices lack clarity. Furthermore, they are overwhelmed by national tendencies and inconsistencies. The study suggests new methods that will increase trust and provide justice when ascertaining foreign law in civil proceedings. Further, it suggests amendments to present laws, interference of higher courts, utilisation of new tools, reactivation of treaties, and using the assistance of international organisations to ensure effective access and proper application of foreign laws. Finally, it aims to add certainty, predictability, and uniformity to Kuwaiti court practices.
CZ Qu, “Cross Border Assistance as a Restructuring Device for Hong Kong: The Case for its Retention”
An overwhelming majority of companies listed in Hong Kong are incorporated in Bermuda/Caribbean jurisdictions. When these firms falter, insolvency proceedings are often commenced in Hong Kong. The debtor who wishes to restructure its debts will need to have enforcement actions stayed. Hong Kong does not have a statutory moratorium structure for restructuring purposes. Between 2018 and 2021, Hong Kong’s Companies Court addressed this difficulty by granting cross-border assistance, in the form of, inter alia, a stay order, to the debtor’s offshore officeholders, whose appointment triggers a stay for restructuring purposes. The Court has recently decided to cease the use of this method. This paper assesses this decision by, inter alia, comparing the stay mechanism in the UNCITRAL Model Law on Cross Border Insolvency. It concludes that it is possible, and desirable, to continue the use of the cross-border assistance method without jeopardising the position of the affected parties.
Timeshare contracts are expressly protected as consumer contracts under Article 6(4)(c) Rome I. With the extended notion of timeshare in Directive 2008/122/EC, the question is whether timeshare-related contracts should be protected as consumer contracts. Additionally, unlike Article 6(4)(c) Rome I, Article 17 Brussels Ia does not explicitly include timeshare contracts into its material scope nor mention the concept of timeshare. It gives rise to the question whether, and if yes, how, timeshare contracts should be protected as consumer contracts under Brussels Ia. This article argues that both timeshare contracts and timeshare-related contracts should be protected as consumer contracts under EU private international law. To this end, Brussels Ia should establish a new provision, Article 17(4), which expressly includes timeshare contracts in its material scope, by referring to the timeshare notion in Directive 2008/122/EC in the same way as in Article 6(4)(c) Rome I.
Open call for abstracts: European Yearbook of International Economic Law 2023
The editors of the European Yearbook of International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the EYIEL 2023. This year’s focus section will be on European and International (Public) Procurement and Competition Law. Next to this, in Part II the EYIEL will consider Current Challenges, Developments and Events in European and International Economic Law.
For the Focus Section, abstracts may cover any topic relating to (public) procurement and competition law in the field of European and international economic law, though preference is given to topics focusing on the international perspective. We particularly welcome contributions addressing the following aspects:
- the WTO (Internal) Procurement Regime,
- the UN Procurement Regime,
- the EU Procurement Regime,
- General International (Public) Procurement,
- the EU Competition Law Regime,
- the International Competition Law Regime.
For the General Section, abstracts shall address topics which are currently of relevance in the context of European and International Economic Law. Similarly, reviews of case-law or practices and developments in the context of international organisations are encouraged.
Abstracts should not exceed 500 words. They should be concise and clearly outline the significance of the proposed contribution. Abstracts together with a short bio note maybe submitted until 28 February 2023 via e-mail to eyiel@leuphana.de.
Successful applicants will be notified at the latest by 1 April 2023, that their proposal has been accepted. They are expected to send in their final contribution by 31 July 2023.
Final submissions will under go peer review prior to publication. Given that submissions are to be developed on the basis of the proposal, that review will focus on the development of the paper’s central argument.
Submissionsaddressingparticularregionalandinstitutionaldevelopmentsshould be analytical and not descriptive. Due to its character as a yearbook, the EYIEL will not publish articles which will lose their relevance quickly. Submissions should not exceed 12,000 words(including footnotes and references), though preference may be given to shorter submissions. They should include an abstract and a biographical note. Submissions need to be in conformity with the EYIEL style guidelines.
The editors of the EYIEL welcome informal enquiries about any other relevant topic in the field of international and European economic law. In case you have an idea or proposal, please submit your enquiry via e-mail to eyiel@leuphana.de.