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Proving Chinese Law: Deference to the Submissions from Chinese Government?
Written by Dr. Jie (Jeanne) Huang, Senior Lecturer, University of New South Wales Faculty of Law
The recent U.S. Supreme Court case, Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd, concerns what weight should be given to the Chinese government’s submission of Chinese law. On Page 58 of the trial transcript, Justices Kagan and Ginsburg asked how about other countries dealing with formal submissions from the Chinese government. There are two examples.
One is Hong Kong. In TNB Fuel Services SDN BHD v China National Coal Group Corporation ([2017] HKCFI 1016), the issue is whether the defendant, a state-owned enterprise, is protected by Chinese absolute sovereignty immunity under Chinese law. The court deferred to an official letter provided by the Hong Kong and Macao Affairs Office of the State Department in Mainland China. The Office answers no absolute sovereignty immunity to Chinese state-owned enterprises carrying out commercial activities. The Court adopted this opinion without second inquiry (para 14 of the judgment). After considering a bunch of other factors, the court ruled against the defendant.
The other is Singapore. In Sanum v. Laos ([2016] SGCA 57), the issue is whether the China-Laos Bilateral Investment Treaty (BIT) shall be applied to Macao Special Administrative Region. Chinese embassy in Laos and China Ministry of Foreign Affairs provided diplomatic announcements indicating that the BIT shall not be applied to Macao. However, the Court of Appeal of Singapore held that China’s announcements were inadmissible and, even if admitted, they did not change the applicability of the BIT to Macau. This is partly because, before the dispute with Sanum crystalized, no evidence showed that China and Laos had agreed that the BIT should not be applied to Macau. Therefore, the China’s diplomatic announcements should not be retroactively applied to a previous dispute. For a more detailed discussion, please see pages 16-20 of my article.
TNB Fuel Services and Sanum share important similarities with Animal Science Products, because the key issues are all about the proving of Chinese law. In the three cases, Chinese government all provided formal submissions to explain the meaning and the applicability of Chinese law. However, TNB Fuel Services and Sanum can also be distinguished from Animal Science Products, because comity plays no role in the former two cases. TNB Fuel Services concerns sovereign immunity, which is an issue that Hong Kong courts must follow China’s practices. This is established by Democratic Republic of the Congo v. FG Hemisphere Associates (FACV Nos. 5, 6 & 7 of 2010). Sanum is a case to set aside an investment arbitration award, so the Court of Appeal of Singapore need not consider comity between Singapore and China. In contrast, in Animal Science Products, the U.S. Court of Appeals for the Second Circuit elaborated the importance of comity between the U.S. and China. Therefore, Animal Science Products should not be considered as a technical case of proving foreign laws. The U.S. Supreme Court may consider deferring to the submissions of Chinese government to a certain extent but allows judges to decide whether the Chinese government’s submission is temporally consistent with its position on the relevant issue of Chinese law.
Who Owns France.com?
France is a state. France.com, by contrast, is a domain name, and it was, until recently, owned not by the French state but instead by a Californian company, France.com, Inc. That conflict is now being litigated in a fascinating dispute reminiscent of the early days of the internet.
In those early days, in 1994 to be precise, a French-born individual living in the United States, Jean-Noël Frydman, registered the domain name France.com. The domain name is now held by a Californian company, France.com Inc, which Frydman set up. The website, at first dedicated to general information for Francophiles around the world, was later expanded to operate as a travel site. But France.com, Inc, did not, it appears, own trademarks in Europe. This enabled a Dutch company, Traveland Resorts, to register French and European word and graphic marks for France.com in 2010. In 2014, France.com, Inc brought suit in France against Traveland for fraudulent filings of trademarks and achieved a settlement under which Traveland transferred the trademarks.
But that was a Pyrrhic victory. The French state and its own travel development agency, Atout, intervened in the litigation, claiming the trademarks for itself instead. Atout had been running, since 2010, its own information site, france.fr. French state and Atout were successful, first before the Tribunal de Grande Instance, Paris , and then, partly, on appeal before the Cour’ d’appel de Paris (English translation, note by Alison Bouakel) As a consequence, web.com transferred the domain in 2018. Now, France.com immediately directs to France.fr.
So far, the conflict is mostly a French affair. But Frydman is taking the litigation to the United States. France.com, Inc has brought suit in Federal Court in Virginia against the French State, Atout, and against Verisign, the authoritative domain registry of all .com addresses. The suit alleges cybersquatting, reverse domain hijacking, expropriating, trademark infringement, and federal unfair competition. US courts and WIPO panels have so far not looked favorably at foreign government’s claims for their own .com domain name; examples include PuertoRico.com, NewZealand.com, and Barcelona.com. Will the French State be more successful, given the French judgment in its favor?
Although neither the French courts nor the complaint in the United States address conflict of laws issues, the case is, of course, full of those. Are the French state and its travel agency protected by sovereign immunity? The Foreign Sovereign Immunities Act contains an exception for commercial activities and is limited to sovereign acts: Does ownership of a domain name constitute commercial activity? Surely, many of the activities of Atout do. Or is it linked to sovereignty? After all, France is the name of the country (though not, ironically, the official name.) The U.S. Court of Appeal for the Second Circuit left the question open in 2002 (Virtual Countries, Inc. v. South Africa, 300 F.3d 230).
Must the federal court recognize the French judgment? That question is reminiscent of the Yahoo litigation. Then, a French court ordered that Yahoo.com could not offer Nazi paraphernalia on its auction website. Yahoo brought a declaratory action in federal court against recognizability of the judgment in the United States. The affair created a lively debate on the limits of territorial reach in internet-related litigation, a debate that is still not fully resolved.
Relatedly, did the French state engage in illegal expropriation without compensation? Such acts of expropriation are in principle limited to the territory of the acting state, which could mean that the French state’s actions, if so qualified, would be without legal effect in the United States.
To what extent is US law applicable to a French trademark? By contrast, to what extent can the French trademark determine ownership of the domain? Trademarks are a perennially difficult topic in private international law, given their territorial limitations; they conflict in particular with the ubiquity of the internet.
Is the top level domain name – .com, as opposed to .fr – a relevant connecting factor in any of these matters? That was once considered a promising tool. But even if .fr could in some way link to France as owner, it is not clear that .com links to the United States, given that it has long been, effectively, a global top level domain. On the other hand, most governments do not own their own .com domain. And US courts have, in other cases (most famously concerning barcelona.com) not doubted applicability of US law.
A timeline with links to documents can be found at Frydman’s blog site.
The Supreme Court deals the death blow to US Human Rights Litigation
Written by Bastian Brunk, research assistant and doctoral student at the Institute for Comparative and Private International Law at the University of Freiburg (Germany)
On April 24, the Supreme Court of the United States released its decision in Jesner v Arab Bank (available here; see also the pre-decision analysis by Hannah Dittmers linked here and first thoughts after the decision of Amy Howe here) and, in a 5:4 majority vote, shut the door that it had left ajar in its Kiobel decision. Both cases are concerned with the question whether private corporations may be sued under the Alien Tort Statute (ATS). Read more
News
China’s Foreign Exchange Regulations and Illegality in Private International Law by Dr. Jie (Jeanne) Huang
China’s Foreign Exchange Regulations and Illegality in Private International Law
About this event
When: Wednesday, 23rd November 4pm
Where: Room 3.1, Third Floor, Centre for Commercial Law Studies, 67-69 Lincoln’s Inn Fields London WC2A
Format: In-person
This event is jointly hosted by QM Criminal Justice Centre and the Centre for Financial Law, Regulation & Compliance (FinReg) at the Institute of Advanced Legal Studies.
Abstract
China is one of the countries in the world enforcing the tightest foreign exchange regulations. However, it is controversial whether a commercial contract that is performed partly in China and partly in a commonwealth country would be unenforceable merely because it violates China’s foreign exchange regulations. Based on Australian and English jurisprudence, this talk will explore the intersection between China’s foreign exchange regulations and illegality in private international law. It discusses:
1. Disguised foreign exchange trading, underground banking, and fund splitting;
2. Under-invoicing in trade in goods to evade import tax and over-invoicing in trade in service to claim income tax refund in an importing country; and
3. Illegality in private international law.
Speaker Bio
Dr. Jie (Jeanne) Huang is an Associate Professor at the University of Sydney Law School in Australia. Her prize-winning research focuses on conflict of laws (private international law), especially comparative studies between the USA, the EU, Australia, and China.
She is the Co-chair of the American Society of International Law Private International Law Interest Group. She also serves as an Australian government expert on mission to the United Nations Centre for Trade Facilitation and Electronic Business (UN/CEFACT). She is on the executive committee of the International Law Association (ILA) Australia branch, and she serves as an editor for the Asian Journal of Law and Society. At the University of Sydney, she is the inaugural director for the LLM program and the co-director of the Centre for Asian and Pacific Law. Beyond the academic, Jeanne is an Arbitrator at the Hong Kong International Arbitration Centre and Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Centre).
To reserve your spot, please see here.
PhD/Research Assistant Position at the University of Cologne
The Institute for Private International and Comparative Law of the University of Cologne (Professor Mansel) is looking to appoint one Research Assistant (Wissenschaftliche/r Mitarbeiter/in) on fixed-term contracts for 2 years, with contract extension possible, based in Cologne. This is a part-time position (19.92 hrs./week), possibility of PhD is given. In case of a post-doc application, it can be extended to a full-time position (39.83 hrs./week) within short time, provided that the requirements are met. A German state law examination (1. Prüfung) with clearly above-average grades and a command of written and spoken German are required. In addition, knowledge of Dutch, Italian,
Spanish or French is an advantage, but not a requirement. Remuneration is based on pay group 13 TV- L.
The University of Cologne promotes equal opportunities and diversity in its employment relationships. Women are expressly invited to apply and will be given preferential treatment in accordance with the LGG NRW. Applications from severely disabled persons are very welcome. They will be given preferential consideration if suitable for the position.
Interested candidates are invited to send their detailed application including the usual documents in a single .pdf file by November 12, 2022 to ipr-institut@uni-koeln.de, for the attention of Professor Mansel.
Out now: RabelsZ 86 (2022), Issue 4
The fourth issue of RabelsZ 2022 has just been released. It contains the following articles:
Moritz Renner / Torsten Kindt: Internationales Gesellschaftsrecht und Investitionsschutzrecht, pp. 787–840, DOI: 10.1628/rabelsz-2022-0078
Conflict of Corporate Laws and International Investment Law. – The withdrawal of the United Kingdom from the EU has revived the debate on the conflict of corporate laws. Much attention has recently been given to the new generation of EU free trade agreements, such as the EU-UK Trade and Cooperation Agreement, but their impact on conflicts in the field of corporate law remains unclear. This article proposes that the conflict-of-law effects of these agreements can be fully understood only in the light of their common background in international investment law. Building upon an analysis of the role of treaties in Germany’s conflict-of-law system and of the multiple intersections between the conflict of corporate laws and international investment law in general, the article demonstrates that the newest EU free trade agreements imply in particular the application of a restricted conflict-of-law theory of incorporation on foreign corporations originating from the respective signatory states. While the agreements’ effects on conflicts in the corporate law arena are not as far reaching as those of the EU’s freedom of establishment, they nevertheless further narrow the remaining scope of application of the traditional seat theory underlying Germany’s autonomous rules on conflicts vis-à-vis corporate law.
Tobias Lutzi / Felix M. Wilke: Brüssel Ia extendenda est? – Zur Zukunft der internationalen Zuständigkeit deutscher Gerichte in Zivil- und Handelssachen nach Ausweitung der EuGVVO, pp. 841–875, DOI: 10.1628/rabelsz-2022-0079
Brussels I bis extendenda est? On the Future of the International Jurisdiction of German Courts in Civil and Commercial Matters after an Extension of the Regulation. – With the expiry of the deadline of art. 79 Brussels I bis, the academic debate on a possible further extension of the Regulation to situations involving non-EU defendants is (again) gaining momentum. The present study aims to contribute to this discussion. It compares the relevant German rules on international jurisdiction over non-EU defendants with those of the Brussels I bis Regulation in order to be able to assess the consequences of a possible extension from a German perspective. The study reveals that even replacing the national rules in their entirety would not amount to a radical change. In particular, the addition of typified places of performance under art. 7 no. 1 lit. b Brussels I bis to the forum contractus and the availability of a common forum for joint defendants under art. 8 no. 1 Brussels I bis would constitute welcome improvements of the current framework. The loss of jurisdiction based on the presence of assets under § 23 ZPO would arguably be a disadvantage if not properly compensated for, e.g. through a forum necessitatis provision. The biggest advantage, though, would most likely be the harmonization of the law of international jurisdiction across the EU – which, from a German perspective, would come at a rather reasonable price.
Ulla Liukkunen: Decent Work and Private International Law, pp. 876–904, DOI: 10.1628/rabelsz-2022-0080 [Open Access]
This article examines the decent work objective set by the ILO and UN Agenda 2030 from the point of view of private international law. It conceptualizes decent work, arguing that inclusivity of protective safeguards and structures in cross-border situations is essential to achieving the objective, and that the need for inclusivity draws attention to the relationship between labour law and private international law. The analysis offered also introduces a migration law-related perspective on decent work and the private international law of employment contracts and labour relations more generally. It is argued that understanding that the idea of inclusivity is embedded in the decent work objective brings up a global dimension which calls for uniform regulatory solutions at the international level. Decent work could be coupled relatively easily with the need for a revival of the private international law of labour relations and for developing a labour rights-based approach in private international law. It also connects private international law’s protective normative frameworks to the body of international labour standards.
Adrian Hemler: Virtuelle Verfahrensteilnahme aus dem Ausland und Souveränität des fremden Aufenthaltsstaats – Zugleich ein Beitrag zum Verhältnis des Völkerrechts zum Kollisionsrecht, pp. 905–934, DOI: 10.1628/rabelsz-2022-0081
Virtual Participation in Court Proceedings from Abroad and Its Effects on the Sovereignty of the Foreign State of Residence – With Consideration of the Relationship Between Public International Law and the Conflict of Laws. – Most German-speaking scholars and some German courts consider participation in virtual court proceedings from a foreign state of residence to be a violation of foreign sovereignty. This essay stakes out a contrary position. In reaching this conclusion, it focuses on the distinction between the exercise of state power abroad and the exercise of state power regarding foreign facts. Especially with regards to extraterritorial legislation, it is argued that the law’s scope of sovereign validity remains territorial even if its scope of application covers facts abroad. The discussion also shows how this distinction is equally applicable to court judgments that concern foreign elements. Furthermore, the article discusses the nature of public international law principles regarding extraterritorial legislation and their relationship to national conflict of laws provisions. Also considered is how the sovereignty principle ought to be understood in cyberspace. Having established this theoretical foundation, it is concluded that regardless of the procedural role of the respective party, participation in virtual court proceedings from a foreign state of residence does not amount to a violation of foreign sovereignty.
Corinna Coupette / Dirk Hartung: Rechtsstrukturvergleichung, pp. 935–975, DOI: 10.1628/rabelsz-2022-0082 [Open Access]
Structural Comparative Law. – Structural comparative law explores the similarities and differences between the structures of legal systems. Theoretically grounded in systems theory and complexity science, it models legal systems as networks of documents, organizations, and individuals. Using methods from network analysis, structural comparative law measures these networks, assesses how they change over time, and draws quantitative comparisons between multiple legal systems. It differs from other approaches in its assumptions, its methods, and its goals, in that it acknowledges the relevance of dependencies between system entities and borrows more heavily from data science than from econometrics. Structural comparative law constitutes a novel addition to the comparatist’s toolbox, and it opens myriad opportunities for further research at the intersection of comparative law and data science.
Arseny Shevelev / Georgy Shevelev: Proprietary Status of the Whole Body of a Living Person, pp. 976–997, DOI: 10.1628/rabelsz-2022-0083
This article is a reaction to the growing economic significance of the living human body as well as its legal status. In this paper, we argue that ownership in the human body most effectively guarantees the autonomy of the human will as to the use and disposal of one’s own body, but classical ownership theory is unable to fully ensure the autonomy of the human will, since it risks reviving the institution of slavery. We will demonstrate that theories establishing rights to the body other than ownership rights are limited in content and are inherently inconsistent. At the end of the article, we will propose an abstract ownership theory that allows for the exercise of maximum freedom to dispose of the human body while one is alive and which will be devoid of the flaws of the preceding theories.