Views
HCCH Revised Draft Explanatory Report (version of December 2018) on the Judgments Convention is available on the HCCH website
A revised Draft Explanatory Report (version of December 2018) on the HCCH Draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is available in both English and French on the Hague Conference website.
In my opinion, particularly complex topics in this Draft Explanatory Report include intellectual property (IP) rights (in particular, Art. 5(3) of the draft Convention– there are several provisions dealing with IP rights in addition to this Article) and the relationship of the draft Convention with other international instruments (Art. 24 of the Draft Convention). Some of the text is in square brackets, which means that such text has tentatively been inserted due perhaps to a lack of consensus at the Special Commission meetings, and thus a final decision will be taken at the Diplomatic Session scheduled for the summer 2019.
With regard to intellectual property rights, the draft Convention distinguishes between IP rights that require to be granted or registered (such as patents, registered trademarks, registered industrial designs and granted plant breeders’ rights) and those that do not require grant or registration (i.e. copyrights and related rights, unregistered trademarks, and unregistered industrial designs – this is a closed list for these specific rights). See paragraph 238 of the Draft Explanatory Report.
The draft Convention’s approach to IP rights, which is based on the territoriality principle, is set out very clearly in paragraph 235 of the Draft Explanatory Report. In particular, the draft Convention reflects a compromise according to which the State of Origin of the judgment will coincide with the lex loci protectionis i.e., the law of the State for which protection is sought, so as to avoid the application of foreign law to these rights (see also paragraph 236).
With respect to the relationship of the draft Convention with other international instruments, it is important to note that this draft Convention will cover, among many other things, non-exclusive choice of court agreements so as to give preference to the application of the HCCH Hague Convention of 30 June 2005 on Choice of Court Agreements to exclusive choice of court agreements. See paragraphs 220-225 and 410-430 of the Draft Explanatory Report.
The latest information about the Judgments Project is available here.
After the Romans: Private International Law Post Brexit
Written by Michael McParland, QC, 39 Essex Chambers, London
On 10 December 2018 the Ministry of Justice published a draft statutory instrument with the pithy title of “The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2018”. This indicates the current intended changes to retained EU private international law of obligations post Brexit. Read more
The renaissance of the Blocking Statute
Written by Markus Lieberknecht, Institute for Comparative Law, Conflict of Laws and International Business Law (Heidelberg)
Quite a literal “conflict of laws” has recently arisen when the EU reactivated its Blocking Statute in an attempt to deflect the effects of U.S. embargo provisions against Iran. As a result, European parties doing business with Iran are now confronted with a dilemma where compliance with either regime necessitates a breach of the other. This post explores some implications of the Blocking Statute from a private international law perspective. Read more
News
Giustizia consensuale No 1/2023: Abstracts
The first issue of 2023 of Giustizia Consensuale (published by Editoriale Scientifica) has just been released, and it features:
Annalisa Ciampi (Professor at the University of Verona), La giustizia consensuale internazionale (International Consensual Justice; in Italian)
All means of dispute settlement between States, including adjudication, are based on the consent of the parties concerned. The post-Cold War era saw an unprecedented growth of third-party (judge or arbitrator) dispute resolution systems. In more recent years, however, we are witnessing a weakening of the international judicial function. This paper analyses and explains similarities and differences between dispute settlement between States and dispute resolution between private parties at the national level. Whilst doing so, it makes a contribution to the question of whether the de-judicialisation taking place in Italy and elsewhere, as well as in the international legal system, can be considered a step in the right direction.
Preliminary contract but not a ‘contract for the provision of services’ under Article 7(1)(b) of the Bru I bis Reg., CJEU in EXTÉRIA, C-393/22
Does a preliminary contract obliging the parties to conclude a future ‘contract for the provisions of services’ within the meaning of Article 7(1)(b) of the Brussels I bis Regulation borrow its characterisation from such a future contract and, as a consequence, the claims resulting from this preliminary contract can be brought before the courts for the place where the services were or should have been provided? This is the question that the Court of Justice answered in the negative in its judgment handed down this morning in the case EXTÉRIA, C-393/22.
New Volume of the Japan Commercial Arbitration Journal
The Japan Commercial Arbitration Association (JCAA), one of the oldest international arbitration institutions in the world, founded in 1950, has started to publish its annual journal on commercial arbitration – “Japan Commercial Arbitration Journal” – entirely in English. The Journal’s Volume 4, which has been published recently, features the following articles:
Miriam Rose Ivan L. Pereira
Combining Interactive Arbitration with Mediation: A Hybrid Solution under the Interactive Arbitration Rules
Masaru Suzuki, Shinya Sakuragi
The Use of Technology in the International Commercial Arbitration and the Consideration of Rulemaking
Kazuhisa Fujita
Current Status of International Arbitration from the Perspective of Corporate Law and Japan as the Place of Arbitration
Dai Yokomizo
International Commercial Arbitration and Public Interests: Focusing on the Treatment of Overriding Mandatory Rules
Yuji Yasunaga
Extending the Application of an Arbitration Agreement Involving a Corporation to Include its Representative
Kazuhiro Kobayashi
Scope, Amount and Sharing of Arbitration Expenses and Court Costs in Japan
Leon Ryan, Shunsuke Domon
Disputes in India ? Lessons from Mittal v Westbridge
Junya Naito, Motomu Wake
Potential for a New Arb-Med in Japan
Yoshihiro (Yoshi) Takatori
Arbitrator Training and Assessment ? How to Increase and Strengthen Resource of Arbitrators and ADR Practitioners
Shuji Yanase
On Dual Conciliation by Two Conciliators
Takeshi Ueda
Discussions and Challenges in Promoting Online Dispute Resolution
Shinji Kusakabe
Civil Litigation after the Introduction of IT, as Suggested by Scheduled Proceedings in Commercial Arbitration
All volumes can also be freely consulted and downloaded here.