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Jurisdiction, Conflict of Laws and Data Protection in Cyberspace

Report on the Conference held in Luxembourg on 12 October 2017, by Martina Mantovani, Research Fellow MPI Luxembourg

On 12 October 2017, the Brussels Privacy Hub (BPH) at the Vrije Universiteit Brussel and the Department of European and Comparative Procedural Law of the Max Planck Institute Luxembourg held a joint conference entitled “Jurisdiction, Conflicts of Law and Data Protection in Cyberspace”. The conference, which was attended by nearly 100 people, included presentations by academics from around the world, as well as from Advocate General Henrik Saugmandsgaard Øe of the Court of Justice of the European Union. The entire conference was filmed and is available for viewing on the YouTube Channel of the Max Planck Institute Luxembourg (first and second parts) (more…)

Chinese courts made decision taking into account of the Hague Choice of Court Convention

China has signed the Hague Choice of Court Convention on 12 September 2017, but has not yet ratified this Convention. The Hague Choice of Court Convention has not entered into force in China. However, Shanghai High Court has already relied on the Hague Choice of Court Convention to make decision.

In Cathay United Bank v Gao, Shanghai High Court, (2016) Hu Min Xia Zhong No 99, the appellant, a Taiwan commercial bank, and the respondent, a Chinese citizen resident in Shanghai, entered into a Guarantee contract. It included a clause choosing Taiwan court as the competent court to hear disputes arising out of the contract. This clause did not specify whether it was exclusive or not. Chinese law does not provide how to decide exclusivity of a choice of court agreement. Facing the legal gap, Shanghai High Court took into account Article 3 of the Hague Choice of Court Convention 2005 and decided that choice of court agreements should be exclusive unless the parties stated otherwise. The Shanghai High Court thus declined jurisdiction in favour of Taiwan Court.

This decision was made on 20 April 2017, even before China signed the Hague Choice of Court Convention. Since the Hague Choice of Court Convention has not entered into force in China, it should not be directly applied by Chinese courts in judicial practice. The question is whether Chinese courts could ‘take into account’ of international conventions not being effective in China to make decision. Although Article 9 of the Chinese Supreme Court’s Judicial Interpretation of Chinese Conflict of Laws Act allows the Chinese courts to apply international conventions, which have not entered into effect in China, to decide the parties’ rights and obligations, such an application is subject to party autonomy. In other words, parties should have chosen the international convention to govern their rights and obligations. Article 9 does not apply to international judicial cooperation conventions that do not deal with individuals’ substantive rights and are not subject to party autonomy. Perhaps, a more relevant provision is Article 142(3) of the PRC General Principle of Civil Law, which provides that international customs or practice may be applied to matters for which neither the law of the PRC nor any international treaty concluded or acceded to by China has any provisions. Arguably, the Hague Choice of Court Convention represents common practice adopted internationally and forms a source to fill the gap in the current Chinese law.

EU Member State sees opportunities in Brexit: Belgium is establishing a new English-language commercial court

Expecting higher demands for international commercial dispute resolution following Britain’s departure from the EU, Belgium plans to set up a new English-language commercial court, the Brussels International Business Court (BIBC), to take cases away from the courts and tribunals in London. This decision was announced on 27 Oct 2017. This BIBC is designed to address disputes arising out of Brexit and major international commercial disputes. The court will take jurisdiction based on parties’ choice, and will do the hearing and deliver judgments in English. The parties would have no right to appeal. BIBC combines elements of both traditional courts and arbitration. See comments here.

Although Brexit may cause uncertainty to litigants in the UK, a survey suggests that the EU judicial cooperation scheme is not the main reason for international parties choosing London to resolve their disputes. The top two factors that attract international litigants to London are the reputation and experience of English judges and combination of choice of court clauses with choice of law clauses in favor of English law,  followed by efficient remedies, procedural effectiveness, neutrality of the forum, market practice, English language, effective UK-based counsel, speed and enforceability of judgments. Furthermore, Brexit will not affect the New York Convention and would less likely affect London as an arbitration centre. It may be more reasonable to suggest that the main purpose of BIBC is not to compete with London at the international level, but to offer additional judicial tool and become a new commercial dispute resolution centre within the EU to attract companies and businesses to Brussels.

News

AG Pikamäe on the time limits for lodging an objection against a decision on enforcement, in the context of the Service and Brussels I bis Regulations, in the case LKW Walter, C-7/21

This Thursday AG Pikamäe delivered his Opinion in the case LKW Walter, C-7/21. The request for a preliminary ruling originates in the proceedings on a litigation malpractice action, between a company established under Austrian law and the lawyers established in that Member State, who represented the said company in the proceedings in which it acted as a defendant.

By this request, the referring court seeks the interpretation of the Brussels I bis Regulation, of the Service Regulation and of the Article 18(1) TFEU (interdiction of discrimination on the grounds of nationality).

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HCCH Monthly Update: January/February 2022

Meeting of the Council on General Affairs and Policy

The Council on General Affairs and Policy of the HCCH met online from 28 February to 4 March 2022, with over 450 participants. Over the course of five days, HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead in terms of normative, non-normative and governance work. More information is available here.

Several important developments relating to Membership and HCCH Conventions occurred during the meeting:

  • El Salvador deposited its instrument of acceptance of the Statute, becoming the 91stMember of the HCCH.
  • Ecuador signed the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol and deposited its instrument of ratification of both instruments, which will enter into force on 1 July 2022.
  • The United States of America signed the 2019 Judgments Convention, becoming its sixth signatory.

More information on these developments is available here.

Other developments

Conventions & Instruments

On 1 January 2022, the HCCH 1965 Service Convention entered into force for Georgia. It currently has 79 Contracting Parties. More information is available here.

On 18 February 2022, the Philippines signed the 2007 Child Support Convention. The Convention will enter into force for the Philippines further to the deposit of its instrument of ratification. More information is available here.

Meetings & Events

From 11 to 20 January 2022, the International Hague Network of Judges (IHNJ) met via videoconference, with the participation of judges from 35 States. Established in 1998, the IHNJ facilitates international cooperation and communication between judges on the cross-border protection of children. More information is available here.

On 28 January 2022, the HCCH participated in the panel discussion “Thailand and the HCCH Core Conventions: Connecting Possibility and Approach”, organised by the Ministry of Justice of Thailand.

From 7 to 9 February 2022, the International Transfer of Maintenance Funds Experts’ Group met via videoconference. The Group continued its work discussing good practices and identifying possible future improvements in relation to the cross-border transfer of child support payments, with a view to facilitating the most cost-effective, transparent, prompt, efficient and accessible cross-border transfer of funds. More information is available here.

From 14 to 18 February 2022, the second meeting of the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation was held via videoconference. The Group made further progress on the development of draft provisions on parallel litigation in civil or commercial matters, which may occur when separate proceedings are instituted before the courts of different States. More information is available here.

Publications and Documentation

On 22 February 2022, the Permanent Bureau launched consultations on the draft Practical Handbook on the Operation of the 2000 Protection of Adults Convention. More information is available here.

On 28 February 2022, the Permanent Bureau announced the publication of the HCCH 2021 Annual Report. More information is available here.

Vacancies

Applications are now open for three- to six-month legal internships from July to December 2022. The deadline for the submission of applications is 17 March 2022 (18:00 CET). More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Jean Monnet Module Series of Webinars on Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe March – May 2022, 2nd Edition

From March 15 to May 19, 2022, as part of the three-year European project called Jean Monnet Module on Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe, will take place the 2nd edition of the cycle of online seminars on transnational civil and commercial litigation in Europe. Among the novelties of this edition, the participation of professionals from the European Court of Human Rights, the European Central Bank, the World Intellectual Property Organization and the Sabin Center for Climate Change Law, Columbia Law School, New York. The initiative has received the patronage of the Chamber of International Lawyers, the Italian National Council of Notaries, the European Union of Judicial Officers, the Transnational Dispute Management network and the DEuTraDiS Research Center.

Deadline for registration: March 15, 2022.

Here the registration form and the official flyer.