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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) Read 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
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.
New rules on service outside Australia for the Federal Court of Australia
The Federal Court Legislation Amendment Rules 2022 (Cth) (‘Amendment Rules’) came into force on 13 January 2023. Among other things, they amend the Federal Court Rules 2011 (Cth) (‘FCR’) by repealing division 10.4, which dealt with service outside Australia. The Amendment Rules replace the old division 10.4 with a new one, which brings the Federal Court’s approach to service outside Australia into alignment with all other Australian jurisdictions, except for Western Australia and the Northern Territory.[1]
The previous approach to service outside Australia in the Federal Court
Historically, Australia’s superior courts have not been uniform in their approach to service outside the jurisdiction and outside Australia. The Federal Court’s approach was somewhat unique. Unlike the position in some of the State Supreme Courts,[2] leave to serve outside Australia[3] was required before service (FCR r 10.43(2)). Nonetheless, if leave was not obtained beforehand, service could be confirmed after the fact if sufficiently explained (FCR r 10.43(6)–(7)).
Leave to serve turned on three conditions: the court had subject matter jurisdiction, the claim was of a kind mentioned in the rules, and the party had a prima facie case for any or all of the relief claimed: FCR r 10.43(4). Even if those elements were satisfied, the court may have refused leave to serve in exercise of a ‘residual discretion’: Tiger Yacht Management Ltd v Morris (2019) 268 FCR 548, [100].
The second element, that the claim is of a kind mentioned in the rules, directed attention to FCR r 10.42. That rule set out pigeonholes or connecting factors that are familiar grounds of direct jurisdiction. For example, service may be permitted for a proceeding based on a cause of action arising in Australia (item 1), or where the defendant has submitted to the jurisdiction (item 19).
Some of the connecting factors might be described as exorbitant. For example, service may have been permitted where the proceeding was ‘based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring)’ (item 5). Reid Mortensen, Richard Garnett and Mary Keyes commented, ‘[i]n effect, [this ground of service] allows service outside Australia merely because of the plaintiff’s personal connection—usually be reason of residence—with the forum, despite the complete absence of any connection between the events or the defendant on the one hand, and the forum on the other’.[4]
Combined with Australian courts’ unique approach to forum non conveniens (see Puttick v Tenon Ltd (2008) 238 CLR 265), the FCR provided plenty of room for establishing personal jurisdiction over foreign defendants in matters with foreign elements, even where those matters had strong connections to foreign jurisdictions. That position continues under the new approach effected by the Amendment Rules in the amended FCR.
The new approach
The Amendment Rules provide in a note to the new div 10.4: ‘t]his Division contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices’ Rules Harmonisation Committee’. Those rules have been in force in New South Wales and other Australian jurisdictions for some years. When the rules changed in New South Wales in late 2016, Vivienne Bath and I explained the significance for that State: Michael Douglas and Vivienne Bath, ‘A New Approach to Service Outside the Jurisdiction and Outside Australia under the Uniform Civil Procedure Rules’ (2017) 44(2) Australian Bar Review 160.
As regards the Federal Court, considering the previous approach, some of the notable changes include the following.
First, in most cases, leave is not required before service, provided that the case comes within the scope of (new) defined grounds of direct jurisdiction: FCR r 10.42.
Second, the grounds of direct jurisdiction have changed: FCR r 10.42. Many of the changes seemingly involve a simple a re-wording or a re-structure rather than anything radical, although I am sure that the case law will tease out differences of substance in coming months.
One of the new grounds is worth highlighting. The new FCR r 10.42(j) provides:
(j) if the proceeding arises under a law of the Commonwealth, a State or a Territory, and:
(i) any act or omission to which the proceeding relates was done or occurred in Australia; or
(ii) any loss or damage to which the proceeding relates was sustained in Australia; or
(iii) the law applies expressly or by implication to an act or omission that was done or occurred outside Australia in the circumstances alleged; or
(iv) the law expressly or by implication confers jurisdiction on the Court over persons outside Australia (in which case any requirements of the law relating to service must be complied with);
FCR r 10.42(j)(iii) could provide a basis for jurisdiction over subject matter with very limited connection to Australia, provided an Australian legislature has sufficiently extended the territorial operation of a statute. This pigeonhole could give rise to some more interesting questions about the proper approach to identification of the applicable law where forum statutes are involved in the Australian context.[5]
Third, even if the proceeding does not come within one of the grounds of direct jurisdiction, service outside Australia may still be permitted with leave: FCR r 10.43. Leave requires the Court to be satisfied that the proceeding has a real and substantial connection with Australia, Australia is an appropriate forum for the proceeding, and in all the circumstances the Court should exercise jurisdiction: FCR r 10.43(4)(a)–(c).
Fourth, once a person is served outside Australia, that person may apply to stay or dismiss the proceeding, or set aside service: FCR r 10.43A(1). The Court may make an order to that effect if satisfied service of was not authorised by these Rules, Australia is an inappropriate forum for the proceeding, or the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending it: FCR r 10.43A(2)(a)–(c). This mechanism is introduced with the title, ‘Court’s discretion whether to assume jurisdiction’.
The second ground, that Australia is an inappropriate forum, turns on application of the ‘clearly inappropriate forum’ test of the Australian forum non conveniens doctrine: Chandrasekaran v Navaratnem [2022] NSWSC 346, [5]–[8]; Sapphire Group Pty Ltd v Luxotico HK Ltd [2021] NSWSC 589, [77]–[80]; Studorp Ltd v Robinson [2012] NSWCA 382, [5], [62].
Fifth, if service on a person outside Australia in accordance with the new provisions was not successful, the party may apply to serve the person substituting another method of service: FCR r 10.49(a). This may prove particularly useful for applicants chasing rogues who have absconded overseas. It might allow for service on a person outside Australia by email or even social media, contrary to historical practice: see Yemini v Twitter International Company [2022] FCA 318, [5].
Comment
I expect that the Amendment Rules will be welcomed by litigators who frequent the Federal Court of Australia. Doing away with the need to seek leave in advance will increase efficiency and save some costs. Lawyers on the east and south coasts may appreciate not having to be across substantive differences as regards long-arm jurisdiction between the Federal Court and State Supreme Courts. (Those in glorious Western Australia continue to be in a different / superior position.)
Private international law scholars may be less enthusiastic. Writing on the 2016 equivalent reforms in New South Wales, Andrew Dickinson lamented the tenuous connection that could justify long-arm jurisdiction under the amended Uniform Civil Procedure Rules 2005 (NSW). Among other things, he noted that the ‘service without leave’ approach means that considerations of forum non conveniens might only arise if an application is brought by a person served contesting jurisdiction (under the equivalent of the new FCR r 10.43A(1)), costing them time and cost with respect to a matter with minimal connection to the forum.[6] That would be a fair objection to the new position in the Federal Court. I would argue, however, that the Federal Court’s new approach to long-arm service is a sensible innovation to better equip the Court to deal with the realities of modern commercial life (see Abela v Baadarani [2013] 1 WLR 2043, [53]). Australian courts are increasingly called on to deal with matters with a foreign element—their rules should adapt accordingly.
One of the more significant impacts of the Amendment Rules will concern a case that is currently before the High Court of Australia: Facebook Inc v Australian Information Commissioner & Anor (Case S 137/2022). Jeanne Huang and I previously blogged other decisions that have ultimately led to this appeal. Among other things, the American company behind Facebook (now Meta Platforms Inc) is challenging its service outside Australia in a proceeding brought by Australia’s privacy regulator in the wake of the Cambridge Analytica scandal. The rules on which the appeal depends are no longer in force. If the High Court’s previous grant of special leave to appeal is maintained, the forthcoming decision will be a new leading authority on long-arm jurisdiction in Australia.
Dr Michael Douglas is a Senior Lecturer at the University of Western Australia and a Consultant at Bennett, a litigation firm in Western Australia
[1] Civil Procedure Rules 2006 (ACT) div 6.8.9; Supreme Court Rules 2000 (Tas) div 10; Supreme Court Civil Rules 2006 (SA) pt 4 div 2; Supreme Court (General Civil Proceedings) Rules 2015 (Vic) O 7 pt 1; Uniform Civil Procedure Rules 1999 (Qld) pt 7 div 1; Uniform Civil Procedure Rules 2005 (NSW) pt 11, sch 6.
[2] Leave to serve is still required in the Supreme Court of Western Australia. See Rules of the Supreme Court 1971 (WA) Order 10. See further M Davies, AS Bell, PLG Brereton and M Douglas, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 20th ed, 2020) ch 3.
[3] Except with respect to service in New Zealand. See Trans-Tasman Proceedings Act 2010 (Cth).
[4] Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law in Australia (LexisNexis Butterworths, 4th ed, 2019) 63–4.
[5] See Michael Douglas, ‘Does Choice of Law Matter?’ (2023) Australian International Law Journal (forthcoming).
[6] Andrew Dickinson, ‘In Absentia: The Evolution and Reform of Australian Rules of Adjudicatory Jurisdiction’ in Michael Douglas, Vivienne Bath, Mary Keyes and Andrew Dickinson (eds), Commercial Issues in Private International Law (Hart, 2019) 13, 42.
Dutch Journal of PIL (NIPR) – issue 2022/4
The latest issue of the Dutch Journal on Private International Law (NIPR) has been published.
Editorial
M. Zilinsky / p. 629-630
Article
E.N. Frohn & I. Sumner, Protecting vulnerable adults across borders: where do we stand? / p. 631-649
Abstract
The first meeting of the Special Commission to review the practical operation of the 2000 Hague Convention took place from 9-11 November 2022, after writing this publication. In preparation for this meeting, a questionnaire was send to the Member States of the Conference. One of the questions addressed to the non contracting states of the 2000 Convention was of that state is considering joining the 2000 Convention. The Netherlands replied that there is no urgent need to become a contracting party, pointing out that the rules of the treaty are applied in practice.
This article concerns the Hague Convention of 13 January 2000 on the International Protection of Adults in relation to the Dutch standard practice of anticipating application of this Convention. Furthermore, this article will provide information on the European view regarding the international protection of vulnerable adults.
Case note
K.J. Krzeminski, Actio iudicati onder de Brussel I-bis Vo: een open deur of een geopend ‘achterdeurtje’? HvJ EU 7 april 2022, ECLI:EU:C:2022:264, NIPR 2022, 288 (J/H Limited) / p. 650-659
Abstract
In J v. H Limited, the CJEU has held that a decision rendered by an EU Member State court on the basis of a third country judgment (actio iudicati) may, under certain circumstances, qualify as a ‘judgment’ within the meaning of Article 2(a) Brussel I-bis Regulation, thereby opening the door to EU-wide recognition and enforcement. This article explores the implications of the decision for cross-border enforcement, in particular of judgments rendered in Dutch proceedings on the basis of Article 431(2) of the Dutch Code of Civil Procedure.