Views
Staying Proceedings under the Civil Code of Quebec
Written by Professor Stephen G.A. Pitel, Western University
The decision of the Supreme Court of Canada in R.S. v P.R., 2019 SCC 49 (available here) could be of interest to those who work with codified provisions on staying proceedings. It involves interpreting the language of several such provisions in the Civil Code of Quebec. Art. 3135 is the general provision for a stay of proceedings, but on its wording and as interpreted by the courts it is “exceptional” and so the hurdle for a stay is high. In contrast, Art. 3137 is a specific provision for a stay of proceedings based on lis pendens (proceedings underway elsewhere) and if it applies it does not have the same exceptional nature. This decision concerns Art. 3137 and how it should be interpreted. Read more
HCCH Event on the HCCH Service Convention in the Era of Electronic and Information Technology and a few thoughts
Written by Mayela Celis
The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is organising an event entitled HCCH a / Bridged: Innovation in Cross-Border Litigation and Civil Procedure, which will be held on 11 December 2019 in The Hague, the Netherlands. This year’s edition will be on the HCCH Service Convention.
The agenda and the registration form are available here. The deadline for registrations is Monday 11 November 2019. The HCCH news item is available here.
A bit of background with regard to the HCCH Service Convention and IT: As you may be aware, the Permanent Bureau published in 2016 a Practical Handbook on the Operation of the Service Convention (available for purchase here), which contains a detailed Annex on the developments on electronic service of documents (and not only with regard to the Service Convention). In that Annex, developments on the service of documents by e-mail, Facebook, Twitter, etc. and its interrelationship with the Service Convention were analysed. Not surprisingly, cases where electronic service of process was used were rare under the Service Convention (usually, the physical address of the defendant is not known, thus the Service Convention does not apply and the courts resort to substituted service).
A more important issue, though, appears to be the electronic transmission of requests under the Service Convention. According to a recent conclusion of the HCCH governance council, it was mandated that:
Electronic transmission of requests
“40. Council mandated the Permanent Bureau to conduct work with respect to the development of an electronic system to support and improve the operation of both the Service and Evidence Conventions. The Permanent Bureau was requested to provide an update at Council’s 2020 meeting. The update should address the following issues: whether and how information technology would support and improve the operation of the Conventions; current practices on the electronic transmission of requests under the Conventions; legal and technological barriers to such transmission and how best to address these; and how a possible international system for electronic transmission would be financed. “
In contrast, the European Union seems to be at the forefront in encouraging electronic service of documents as such, see for example the new proposal for Regulation on the service of judicial and extrajudicial documents in civil or commercial matters, click here (EU Parliament, first reading).
Article 15a reads as follows:
“Electronic service
1. Service of judicial documents may be effected directly on persons domiciled in another Member State through electronic means to electronic addresses accessible to the addressee, provided that both of the following conditions are fulfilled: [Am. 45]
(a) the documents are sent and received using qualified electronic registered delivery services within the meaning of Regulation (EU) No 910/2014 of the European Parliament and of the Council, and [Am. 46]
(b) after the commencement of legal proceedings, the addressee gave express consent to the court or authority seized with the proceedings to use that particular electronic address for purposes of serving documents in course of the legal proceedings. [Am. 47].”
By adding the word “both” the European Parliament seems to restrict electronic service to documents after service of process has been made (see previous European Commission’s proposal). This, in my view, is correct and gives the necessary protection to the defendant. In the future and with new IT developments, this might change and IT might be more widely used by all citizens (think of a government account for each citizen for the purpose of receiving government services and service of process -although service of process comes as a result of private litigation so this might be sensitive-), and thus this might provide more safeguards. In my view, the key issue in electronic service is to obtain the consent of the defendant (except for cases of substituted service).
Reform of Singapore’s Foreign Judgment Rules
On 3rd October, the amendments to the Reciprocal Enforcement of Foreign Judgments Act (“REFJA”) came into force. REFJA is based on the UK Foreign Judgments (Reciprocal Enforcement) Act 1933, but in this recent round of amendments has deviated in some significant ways from the 1933 Act. The limitation to judgments from “superior courts” has been removed. Foreign interlocutory orders such as freezing orders and foreign non-money judgments now fall within the scope of REFJA. So too do judicial settlements, which are defined in identical terms to the definition contained in the Choice of Court Agreements Act 2016 (which enacted the Hague Convention on Choice of Court Agreements into Singapore law).
In relation to non-money judgments, such judgments may only be enforced if the Singapore court is satisfied that enforcement of the judgment would be “just and convenient”. According to the Parliamentary Debates, it may not be “just and convenient” to allow registration of a non-money judgment under the amended REFJA if to do so would give rise to practical difficulties or issues of policy and convenience. The Act gives the court the discretion to make an order for the registration of the monetary equivalent of the relief if this is the case.
An interlocutory judgment need not be “final and conclusive” for the purposes of registration under REFJA. The intention underlying this expansion is to allow Singapore courts to enforce foreign interlocutory orders such as asset freezing orders. This plugs a hole as currently Mareva injunctions are not regarded as free-standing relief under Singapore law. It has recently been held by the Court of Appeal that the Singapore court would only grant Mareva injunctions in aid of foreign proceedings if: (i) the Singapore court has personal jurisdiction over the defendant and (ii) the plaintiff has a reasonable accrued cause of action against the defendant in Singapore (Bi Xiaoqing v China Medical Technologies Inc [2019] SGCA 50).
New grounds of refusal of registration or to set aside registration have been added: if the judgment has been discharged (eg, in the event of bankruptcy of the judgment debtor), the damages are non-compensatory in nature, and if the notice of the registration had not been served on the judgment debtor, or the notice of registration was defective.
It is made clear that the court of origin would not be deemed to have had jurisdiction in an action in personam if the defendant voluntarily appeared in the proceedings solely to invite the court in its discretion not to exercise its jurisdiction in the proceedings. Henry v Geoprosco [1976] QB 726 would thus not apply for the purposes of REFJA although its continued applicability at common law is ambiguous (see WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri Lanka [2002] 1 SLR(R) 1088).
All along, only judgments from the superior courts of Hong Kong SAR have been registrable under REFJA. The intention now is to repeal the Reciprocal Enforcement of Commonwealth Judgments Act (“RECJA”; based on the UK Administration of Justice Act 1920) and to transfer the countries which are gazetted under RECJA to the amended REFJA. The Bill to repeal RECJA has been passed by Parliament.
The amended REFJA may be found here: https://sso.agc.gov.sg/Act/REFJA1959
News
From Theory to Practice in Private International Law: Gedächtnisschrift for Professor Jonathan Fitchen
Written by Justin Borg-Barthet, Katarina Trimmings, Burcu Yüksel Ripley and Patricia Živkovic
Note: This post is also available via the blog of the European Association of Private International Law.
When our colleague and friend Prof Jonathan Fitchen passed away on 22nd January 2021, we were comforted in our grief by an outpouring of messages of condolence from private international lawyers around the world. We had known, of course, of the impact and importance of Jonathan’s work to the world of private international law scholarship. His monograph on authentic instruments, for example, will remain an essential reference on that subject for many years to come. Jonathan’s impact on the world of private international law scholars was, to a degree, less obvious. He was an unassuming man. He did not seek to command the attention of every gathering he attended, and he might have been surprised to realise how often he did just that. He was tremendously well-liked and well-respected for his wit, his self-deprecating sense of humour, and his empathy.
Virtual Workshop (in English) on March 5: Marta Pertegás Sender on Current Developments in Cross-Border Enforcement of Patent Rights: Revisiting Territoriality and Reflexive Effect?
On Tuesday, March 5, 2024, the Hamburg Max Planck Institute will host its 42nd monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Marta Pertegás Sender (Maastricht University and University of Antwerp) will speak, in English, about the topic
Current Developments in Cross-Border Enforcement of Patent Rights: Revisiting Territoriality and Reflexive Effect?
The CJEU preliminary ruling in BSH Hausgeräte Case C-339/22 is eagerly awaited by those involved or interested in cross-border enforcement of patent rights. The forthcoming judgment may have broader repercussions for the position of territoriality in international litigation on intellectual property rights or for the private international law of property more generally.
EAPIL Wroclaw Conference 2024: Private International Law and Global Crises
We are please to announce that registration for the next bi-annual conference of the European Association of Private International Law (EAPIL) is now open!
The conference will take place in Wroclaw (Poland) from 6 to 8 June 2024 and will be devoted to “Private International Law and Global Crises”. Topics to be discussed will include the interplay of private international law and 1) war and armed conflicts, 2) the rule of law, 3) climate change and 4) global supply chains. Speakers will be:
- Raffaele Sabato (European Court of Human Rights)
- Vincent Kronenberger (Court of Justice of the European Union)
- Andreas Stein (European Commission)
- Patrick Kinsch (University of Luxembourg)
- Veronica Ruiz Abou-Nigm (University of Edinburgh)
- Iryna Dikovska (Taras Shevchenko National University Kyiv)
- Tamasz Szabados (ELTE Eötvös Loránd University)
- Alex Mills (University College London)
- Matthias Weller (University of Bonn)
- Eduardo Alvarez Armas (Universidad Pontificia Comillas)
- Olivera Boskovic (Université Paris Cité)
- Rui Dias (University of Coimbra)
- Klaas Eller (University of Amsterdam)
- Laura Carpaneto (University of Genova)
To register for the conference please click here.
For questions, please get in touch with the local organizer, Agnieszka-Frackowiak-Adamska, at 2024.EAPIL.Wroclaw@uwr.edu.pl.