Conventions & Instruments

On 1 January 2025, the 2005 Choice of Court Convention entered into force for Switzerland. At present, 36 States and the European Union are bound by the 2005 Choice of Court Convention. More information is available here.

On 12 January 2025, the 2007 Child Support Convention entered into force for Cabo Verde. At present, 52 States and the European Union are bound by the 2007 Child Support Convention. More information is available here.

Meetings & Events

On 10 January 2025, representatives from 19 French-speaking African States, along with a delegate from the Organisation internationale de la Francophonie, convened in Brussels for a meeting focused on exploring the benefits of membership in the HCCH and the Permanent Court of Arbitration. More information is available here.

On 24 January 2025, the Working Party on Cross-Border Family Mediation in the Context of the Malta Process met online. During the meeting, participants discussed the future trajectory of the Working Party, taking into consideration the results of the questionnaire circulated in 2024 and the discussions held at the Malta V conference in October 2024. More information is available here.

Vacancies

Applications are now open for the position of Administrative Assistant. The deadline for the submission of applications is 22 February 2025. More information is available here.

Applications for a remote Communications and Outreach Internship will open next week. More information will soon be 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.

Today the Latin American and Caribbean Journal of International Law (LACJIL) was launched at the auditorium of the Hague Academy of the Peace Palace. Among the speakers were Prof. Diego Fernández Arroyo, president of the curatorium of the Hague Academy, and H.E. Leonardo Nemer Caldeira Brant, judge of the International Court of Justice. In addition, a very interesting panel was moderated by the Ambassador of Guatemala to the Kingdom of the Netherlands H.E. Ana Cristina Rodríguez Pineda. The panel was composed of the judge of the International Criminal Court H.E Althea Alexis-Windsor, the Ambassador of Colombia to the Kingdom of the Netherlands H.E. Carolina Olarte Bácares, the Ambassador of Argentina to the Kingdom of the Netherlands H.E. Mario J. A. Oyarzábal and the president of ASADIP Prof. Verónica Ruiz Abou-Nigm. The purpose of the panel was to discuss the recent legal developments in Latin America and the Caribbean, which included the ASADIP principles on transnational access to Justice (TRANSJUS).

This Journal will deal with international law, including the intersection between public and private international law, arbitration and dispute settlement. This is a great initiative that will provide a new forum to this region, which has 33 States and at least 4 official languages. As indicated during this event, this region is not only receptive to ideas and legal theories but has also an active role in the creation of international law.

The minds behind this groundbreaking idea are H.E. Mario Oyarzábal and Prof. Diego Fernández Arroyo. A balanced team of editors both in terms of geography and gender will be part of this project. Many congratulations!

The language of this publication will be English. The first number is expected to be published in 2026.

The seminar The Lex fori processualis principle at the interface with EU judicial cooperation in civil and commercial matters will take place on 24 January 2025 at the University of Milan. The seminar is organized as part of the 4EU+ Visiting Professorships Call, supported by the 4EU+ European University Alliance and co-funded by the Erasmus+ Programme of the European Union.

Hosted by the Department of International, Legal, Historical, and Political Studies of the University of Milan, the seminar will open with welcoming addresses (Antonella Baldi and Marco Pedrazzi) and an introduction (Francesca C. Villata). Bartosz Wolodkiewicz (University of Warsaw), currently a 4EU+ Visiting Professor at the University of Milan, will present the findings of his new book on foreign procedural law in civil judicial proceedings (Obce prawo procesowe w sadowym postepowaniu cywilnym, Wolters Kluwer 2024). Following this, a round table with international scholars will explore various aspects of the lex fori processualis principle, covering topics such as historical perspectives (Carlos Santaló Goris), legal standing (Lenka Válková), burden of proof (Martino Zulberti), ne bis in idem in EU judicial cooperation (Marco Buzzoni), and res judicata in international commercial arbitration (Michele Grassi). The seminar will conclude with a discussion and closing remarks by Elena D’Alessandro (University of Turin).

For more information on the 4EU+ Alliance, follow:
Facebook: 4EUplusAlliance
Instagram: 4euplus_alliance
LinkedIn: 4EUplus

#4EUplusAlliance #EuropeanUniversities #GrowingInMotion

With thanks for the tip-off to Dr Lenka Válková, University of Milan

This report was written by Carlos Santaló Goris, postdoctoral researcher at the University of Luxembourg

Recent developments on the application of the EAPO Regulation

On 3 December 2024, the conference ‘European Account Preservation Order: Practical Challenges and Prospects for Reform’ took place at the University of Luxembourg, organized by Prof. Gilles Cuniberti (University of Luxembourg). The conference also served as an occasion to present the book ‘European Account Preservation Order – A Multi-jurisdictional Guide with Commentary’, published by Bruylant/Larcier. The book was co-edited by Dr. Nicolas Kyriakides (University of Nicosia), Dr. Heikki A. Huhtamäki (Huhtamäki Brothers Attorneys Ltd), and Dr. Nicholas Mouttotos (University of Bremen), and offers a comprehensive overview on the application of the European Account Preservation Order (‘EAPO’) at the national level. It contains a report for each Member State where the EAPO Regulation applies, addressing specific aspects of the EAPO procedure that depend on domestic law.

The conference was structured into two panel discussions. The first panel focused on the specific issues regarding the application of the EAPO Regulation identified by practitioners with first-hand experience with this instrument. The second panel discussion explored the potential reform of the EAPO Regulation and which specific changes should be implemented to improve its application. This report aims to offer an overview of the main highlights and outputs of the presentations and discussions of the conference.

First panel discussion: the use of the EAPO application in the practice

The first panel was composed of Dr. Laurent Heisten (Moyse & Associates Law Firm, Luxembourg), Alexandra Thépaut (Étude Calvo & Associés, Luxembourg), and Lionel Decotte (SAS Huissiers Réunis, France) and moderated by Dr. Elena Alina Ontanu (University of Tilburg). This first panel aimed to explore specific issues in the application of the EAPO Regulation from the practice perspective. The discussion was opened by Dr. Laurent Heisten, who indicated that the EAPO is way more complex than the Luxembourgish national provisional attachment order, the saisie-arrêt. He highlighted that the Luxembourgish saisie-arrêt has more lenient prerequisites than the EAPO. In his view, that might explain why creditors often opt for the saisie-arrêt instead of the EAPO.

The complexity of the EAPO compared to the Luxembourgish saisie-arrêt was also remarked by Ms. Alexandra Thépaut. However, she also acknowledged that the EAPO presents some advantages against the Luxembourgish national equivalent procedure. In particular, she referred to the certificate that banks have to issue immediately after the implementation of an EAPO (Article 28). This is something that does not occur with the Luxembourgish saisie-arrêt. Another advantage of the EAPO she referred to is the possibility of obtaining information about the debtors’ bank accounts (Article 14).  The Luxembourgish saisie-arrêt also lacks an equivalent information mechanism.

During the discussion, Prof. Gilles Cuniberti intervened to indicate that using the EAPO could be less costly than relying on equivalent domestic provisional measures. He refers to a specific case in which the creditor preferred to apply for an EAPO in Luxembourg instead of a domestic provisional attachment order in Germany. The reason was that in Germany, the fee for applying for a national provisional measure would be in proportion to the amount of the claim, while in Luxembourg, there is no fee to obtain an EAPO.

A second recurrent issue identified by the panellists was the use of standard forms. In this regard, Mr. Lionel Decotte highlighted while standard forms can seem practical in a cross-border context, they are rather complicated to fill in. Ms. Alexandra Thépaut mentioned finding particularly complex the section on the interest rates of the EAPO application standard form.

Second panel discussion: the future reform of the EAPO Regulation

The second panel focused on the potential reform of the EAPO Regulation. The panellists were Prof. Gilles Cuniberti, Dr. Carlos Santaló Goris, and Dr. Nicolas Kyriakides, and it was moderated by Dr. Nicholas Mouttotos. Prof. Gilles Cuniberti explored the boundaries of the material scope of the EAPO Regulation. He first advocated suppressing the arbitration exception. He explained that it had been adopted by a political decision which was not submitted to the discussion of the expert group. This was most unfortunate, as the rationale for excluding arbitration from the Brussels I bis and other judgment regulations (the existence of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards) was inexistent concerning a remedy belonging to enforcement per se, which was always outside of the scope of the Brussels I bis Regulation.

Prof. Gilles Cuniberti also defended making available the EAPO Regulation in claims regarding matrimonial and succession matters, both expressly excluded from its scope. In his view, there is no reason for these two subject matters to be excluded as the Succession and Matrimonial Property Regimes Regulations, again, only apply to jurisdiction and enforcement of judgments (and choice of law), but do not offer any remedy to attach bank accounts. Lastly, he advocated expanding the use of the EAPO to provisional attachment of financial instruments. This is a potential reform of the EAPO Regulation expressly foreseen in Article 53.

Dr. Carlos Santaló Goris focused on the reform of the EAPO Regulation from the creditors’ perspective.  He observed that national case law on the EAPO shows that creditors with an enforceable title encounter many difficulties satisfying the EAPO’s periculum in mora. This is due to the strict interpretation that courts have of this prerequisite in light of Recital 14 of the Preamble. He also mentioned that there is a pending preliminary reference on the interpretation of the EAPO’s periculum in mora before the European Court of Justice (C-198/24, Mr Green).

Regarding the creditor’s security, he stated that the vague criteria used to calculate the amount of the security is also a source of divergences on how the amount of the security is established from one Member State. He provided the example of Germany, where courts often require 100% of the amount of the claim. This percentage contrasts with other Member States, such as Spain, where the amount of the security represents a much lower percentage of the amount of the claim. Additionally, he also suggested reforming the EAPO to transform it into a true enforcement measure. In his view, creditors with an enforceable title should not only have the possibility of obtaining the provisional attachment of the funds in the debtors’ bank accounts but also the garnishment of those funds.

Finally, Dr. Nicolas Kyriakides explored how to foster the use of the EAPO Regulation across the EU. In his view, it would be necessary to expand the use of the EAPO Regulation to purely domestic cases. He referred to the case of the European Small Claims Procedure and how this instrument served as an inspiration for some national legislators to introduce equivalent domestic procedures. In his view, when judges and practitioners use these equivalent domestic procedures, indirectly they become familiar with the EU civil proceedings on which the equivalent domestic procedure was modeled. This is a way of integrating the EU civil proceedings into the legal practice. Therefore, when judges and practitioners have to apply the EU civil procedures, they already know how to do it. This can result in a more efficient and effective application of these EU instruments. On a second level, Dr. Nicolas Kyriakides identified the legal basis that the EU legislator might have to adopt such kinds of measures. He considered that the EU could invoke Article 81 (Judicial cooperation in civil and commercial matters), and Article 114 (Harmonization for the Internal Market) of the Treaty on the Functioning of the European Union could serve to harmonize domestic procedural rules within the boundaries of the principles of subsidiarity, proportionality, and procedural autonomy.

The panelists’ presentations were followed by an open discussion with the audience. One of the issues that was addressed during this discussion was the use of the IBAN to determine the location of the bank accounts. Prof. Gilles Cuniberti expressed his concern about the use of the IBAN since nothing prevents a bank from opening an account with an IBAN that does not correspond to the Member State where the account is effectively held.

Waiting for the Commission’s report on the EAPO Regulation

Following Article 53(1) of the EAPO Regulation, the Commission should have elaborated a report on the application of the EAPO by 18 January 2024. This conference offers a glimpse into what might eventually appear reflected in that report. The EAPO Regulation seems still far from being an instrument often relied on by creditors who try to recover a cross-border claim. The conference, which combined a practical and academic analysis of the EAPO regulation, served to identify some of the problems that might be preventing the EAPO from being perceived by creditors as an efficient tool to secure cross-border claims. Initiatives like this conference can help prepare the ground for designing a more effective EAPO procedure.

This submission written by Celeste Hall, JD Candidate at the University of Pittsburgh School of Law and Global Legal Scholar.

The legal news has been awash lately in the recognition and enforcement of investment arbitration awards by U.S. courts. Most of the press is on the long-running and still-unfolding saga regarding Spain (see here and here). And a new decision recognizing an award against Zimbabwe was just issue at the end of December, as well. Here, however, we would like to add to the news with the recent decision recognizing an investment arbitration award against Mexico in United Mexican States v. Lion Mexico Consolidated.

Like most investment arbitrations, the decision tells a sordid tale. Lion Mexico Consolidated (LMC) is a Canadian company which provided financing to a Mexican businessman, Mr. Hector Cardenas Curiel, to develop real estate projects in Nayarit and Jalisco, Mexico. Cardenas’ company failed to pay on the loans, and LMC tried for years to obtain payment, all to no avail. Cardenas then began what was described as a “complex judicial fraud” to avoid payment, including a forgery and a subsequent lawsuit in a Jalisco court to cancel the loans. LMC was never informed of the suit and therefore, never appeared. The Jalisco Court issued a default judgment discharging the loans and ordering LMC to cancel the mortgages; Cardenas then arranged for an attorney to act fraudulently on LMC’s behalf to file and then purposefully abandon the appeal. LMC only learned of the entire scheme when they attempted to file their own constitutional challenge and were rejected. The Mexican Courts refused to allow LMC to submit evidence of the forgeries, so LMC brought a NAFTA Chapter 11 arbitration against Mexico for its failure to accord Lion’s investments protection under Article 1105(1) of NAFTA.

In the arbitration, Mexico argued that Article 1105(1)(b) only applies to investments, and because LMC is an investor, it could not seek relief under Article 1105(1). The arbitral tribunal disagreed and awarded LMC over US$ 47 million in damages. In the U.S. courts, Mexico petitioned to vacate the Award, and LMC cross-petitioned to affirm it.

Mexico conceded that the DC Circuit’s power to vacate an arbitral award is limited: as long as the tribunal “interpreted” 1105(1) the Court must confirm the award even if serious interpretive error was committed. Mexico attempted to skirt this issue by claiming that the Tribunal did not “interpret” anything. Instead, in Mexico’s view, they simply ignored the literal meaning of investments of investors by granting relief to Lion.

The Court was not impressed by this argument. It held that “[t]he Tribunal addressed Mexico’s interpretation of Article 1105(1) head on, employed common interpretative tools to reach a different conclusion, cited authorities in support of its reading, and explained its reasoning. By any definition of the word, the Tribunal interpreted Article 1105(1). Because the Court can’t second-guess that interpretation, the Court DENIED Mexico’s Petition to Vacate the Arbitral Award, and GRANTED LMC’s Cross- Petition for Confirmation, Recognition, and Enforcement of the Arbitral Award.”

Additionally, the Court denied a motion to intervene filed Hector Cardenas Curiel. Cardenas knew that the arbitral case hinged upon his fraud but did not pursue intervention at the arbitral stage. The Court found that Cardenas’ attempt to intervene at this stage was “too little too late”, and Cardenas did not meet the requirements for intervention under Federal Rule of Civil Procedure 24(a)(2) or 24(b).

This decision is important because it follows a long line of cases giving deference to arbitrators in investment treaty cases; when they interpret the governing treaty and decide cases thereunder, their decisions will not be second-guessed by U.S. courts later.

The 26th Volume of the Japanese Yearbook of Private International Law (Kokusai Shiho Nenpo) published by the Private International Law Association of Japan (Kokusai Shiho Gakkai) (hereinafter “PILAJ”)has recently been released.

This new volume features the following table of content (all links direct to the papers’ English abstracts)

Part 1 – The Status and Development of Private International Law from a Global Perspective

Corporate Climate Liability in Private International Law (in English)

Marc-Philippe WELLER and Madeleine Petersen WEINER

The Case for a Special Conflicts Rule in the European Union for Cross-Border Trade Secret Disputes (in English)

Onur Can SAATCIOGLU

Trends in Australian Private International Law (in English)

Mary KEYES

Part II – International Transactions and Dispute Resolution through Arbitration and Mediation

The Application of Mandatory Rules of Law in International Arbitration (in Japanese)

Tatsuya NAKAMURA

Due Process and Efficiency in Arbitral Proceedings —From a Swiss Perspective (in Japanese)

Kazuaki NISHIOKA

Part III – Academic Conference Presentations

On the Relationship between lex rei sitae and the Immutability of Law of Creation —From the Perspective of Temporal and Factual Division of the Applicable Law (in Japanese)

Yoshiaki NOMURA

Conflict of Laws and Corporate Environmental Irresponsibility in the Developing World —Remedying Choice of Law Rule for Environmental Damage (in English)

Thu Thuy NGUYEN

Arb./Med.Arb. as Multi-layered Dispute Resolution in Practice —Including Practice in Asian Countries and Concrete Mediation Techniques (in Japanese)

Yoshihiro TAKATORI

Arrest of Ships and International Private Law (in Japanese)

Fumiko MASUDA

The contents of all volumes are available here.

Papers included in volumes 1 (1999) to 23 (2023) are freely available on the PILAJ’s website.

English abstracts of the papers published in Japanese are also available from volume 18 (2016).

The current and past volumes of JYPIL can be ordered from the publisher’s website (Shinzansha).

Over the past 19 years, Professor Symeon C. Symeonides (Alex L. Parks Distinguished Professor of Law, Dean Emeritus) has been providing scholars, researchers, practitionners and student with a comprehensive and extensive compliation of Parivate International law bibliogrphy.

The 2024’s compilation (Private International Law Bibliography 2024: U.S. and Foreign Sources in English) includes 58 books and 427 journal articles, covering a wide range of topics within private international law (conflict of laws) and related fields.

The bibliography addresses key areas such as prescriptive jurisdiction, extraterritoriality, federal-state conflicts, and specific aspects of arbitration. It also encompasses legal issues related to foreign relations and international human rights, providing a valuable reference for those studying or working in these domains.

This compilation serves as a significant resource for legal scholars and practitioners, offering a thorough overview of the literature in private international law and its associated fields.

Access to the bibliography is available on Prof. Symeonides’ SSRN page here.

I would like to take this opportunity to extend my heartfelt congratulations to Prof. Symeonides for his unwavering commitment and remarkable contributions. His bibliography continues to be a cornerstone of legal research and a testament to the enduring importance of meticulous scholarship.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

W. Hau: Third countries and the revision of the Brussels Ibis Regulation: jurisdiction, parallel proceedings, recognition and enforceability (German)

The question of whether the provisions of the Brussels Ibis Regulation on international jurisdiction should be extended to defendants not domiciled in a Member State is to be considered in the upcoming round of revision (as expressly stated in Article 79). This paper discusses this question, but also whether the already existing provisions on the relevance of parallel proceedings in third countries have proven effective and whether the recognition and enforcement of third-country judgments should finally be put on the Brussels agenda.

Ch. Thomale: Ipso facto clauses in cross-border cases (German)

Ipso facto clauses or bankruptcy clauses present a controversial problem to both contract law and insolvency law. After a comparative overview of international substantive solutions to the problem, the article addresses associated conflict of laws issues, notably of characterisation. Special attention is given to “anticipatory” ipso facto clauses, cancelling the contract before the opening of insolvency proceedings.

A. Engel/R. Müller: Limits to the freedom of choice of law in the context of player agent services (German)

The article deals with a decision of the Rechtbank Limburg (Netherlands) (31 January 2024 – C/03/313729 / HA ZA 23–42, ECLI:NL:RBLIM:2024:524) concerning limits to the freedom of choice of law, in the context of player agent services in international football. The decision hinged upon the application of Section 297 No. 4 of the German Social Security Code III (SGB III). The relevant contract between the parties contained a clause according to which the claimant was exclusively authorised to represent the player during the term of the contract. The German provision would render the clause invalid.

While the parties had chosen Dutch law to be applicable to the contract, the court held that the German provision was applicable in view of Art. 3 para. 3 of the Rome I Regulation, which stipulates the application of mandatory provisions of the state in which the facts of the case are exclusively located if the law of another state is chosen. The article analyses this limit to party autonomy in the context of other limitations which could have been applied: Art. 9 Rome I, regarding overriding mandatory provisions, and Art. 6 Rome I, regarding the protection of consumers. The article pays heed in particular to the requirements of the domestic connections of the case.

J. M. Blaschczok: The assessment of arbitration agreements in competition law (German)

In recent years, arbitration agreements have come under the repeated scrutiny of competition law enforcers. By analysing a recent judgment of the CJEU, the Article finds that arbitration agreements are generally still regarded as harmless to competition in EU law. The Article subsequently discusses the exceptional cases in which arbitration agreements have been found to violate competition law. These cases include arbitration agreements which serve to cover-up other infringements of competition law as well as arbitration agreements by which a dominant undertaking imposes an unfair dispute resolution mechanism on a structurally disadvantaged party. The Article concludes that neither EU competition law nor other EU law require the place of arbitration to be located within the single market.

D. Fischer: § 40 KGSG as an overriding mandatory provision (German)

Erik Jayme stated incidentally in a conference report in 2018 that sec. 40 (1)–(4) Kulturgutschutzgesetz (KGSG) is an overriding mandatory provision. Haimo Schack makes the same qualification.  This finding can be confirmed for sec. 40 (1) and (2) KGSG. This article concentrates on the nature of these two paragraphs of sec. 40 KGSG as overriding mandatory provisions.

B. Kasolowsky/C. Wendler: German Courts confirm Anti-Suit Remedy against Sanctioned Russian Parties breaching Arbitration Agreements pursuant to Section 1032(2) GCPR (English)

Following last year’s landmark decision recognising the availability of declaratory anti-suit relief, the Berlin Higher Regional Court has again applied Section 1032(2) GCPR and broadened its scope of application. In its new decision, the court reiterated that sanctioned Russian parties remain bound to previously concluded arbitration agreements. In addition, the court offered even more hands-on protection for parties trying to serve proceedings in Russia.

L. M. Kahl: Security for legal costs before the Unified Patent Court compared to German and Austrian law (on UPC, Central Division Munich of 30 October 2023, UPC_CFI_252/2023) (German)

The article takes a decision of the Unified Patent Court (UPC) as an opportunity to examine the discretionary provision on security for costs, Art. 69 (4) UPCA, in more detail. According to this provision, both enforcement difficulties against third countries and the insolvency risk of the plaintiff can be considered. Among other things, the article deals with the effects of the attribution of UPC acts to the contracting member states pursuant to Art. 23 UPCA on the ordering of a security, how a so-called decision by default is to be interpreted when the claimant fails to provide a security and traces the line of previous case law. This can be seen as part of a general trend towards better protection of defendants.

J. Gibbons: Acceptance of English Notary Public Certificate of corporate representation without requirement of being a scrivener notary: recent decision of Regional Higher Court of Cologne (English)

The purpose of this article is to explain the professional standing, qualification, legal competence, regulatory equivalence, authority and evidential value of the acts of notaries public and scrivener notaries in England and Wales. This is considered necessary, as a number of German courts have, in recent years, rejected certificates of corporate representation issued by a notary public in England for use in Germany and elsewhere on the ground that they are not issued by a scrivener notary.

Ch. Thomale: Inheritance of limited partnership interests in cross-border cases (German)

The case note discusses a judgment rendered by the Higher Regional Court of Hamm, concerning the inheritance of limited partnership interest in a German partnership while the inheritance succession is governed by Austrian law. The note focuses on the company and partnership law exceptions according to Art. 1 para. 2 lit. h) and i) Regulation (EU) 659/2012 and places these in the overall context of EU conflict of laws.

S. L. Gössl: Birth registrations and (no) procedural recognition in Ukrainian surrogacy cases (German)

In two cases, the BGH dealt with the attribution of parenthood to a child born to a surrogate mother in Ukraine. Under Ukrainian law, the German intended parents would have been the legal parents. The BGH refused to recognise this allocation under both procedural law and conflict of laws. From a dogmatic point of view, her statements are well justifiable. The distinction between a ‘decision’ and other administrative acts in the sense of procedural recognition could have been explored further.

M. Andrae: Correction of the date of birth under civil status and social law based on foreign court decisions and public documents (German)

A person‘s identity includes their date of birth. In the area of social law, a person’s rights and obligations are partly dependent on their age. The date of birth is part of the social insurance number. If the person in question was born abroad, it is often the case that only the year of birth is given and, if necessary, proven. This has corresponding consequences for civil status certification and social law. The registration under civil status law is then limited to stating the year of birth. In the area of social law, July 1st of the year in question is fictitiously assumed. The insurance number contains blank spaces in this regard. Later, a specific date of birth is claimed and a foreign decision or documents are presented as proof. In other cases, a date of birth with a different year of birth is claimed in this way. The article discusses under which conditions the original civil status entry must be corrected and a different date of birth must be assumed for social law purposes.

N. C. Elsner: Review of OGH, order of 2.11.2023 – 5 Nc 22/23i: Enforcement of a British decision in Austria (German)

L. M. Kahl: Review of OGH, order of 31.1.2024 – 3 Ob 6/24i: Judicial conflict: Inadmissible non-application of the Hague Convention on Civil Procedure by Russian courts due to a Russian presidential decree (German)

A. Anthimos: UK Third Party Costs Orders Enforceable in Greece (German)

A UK third-party costs order (TPCO) is a totally unknown procedural concept in Greece. In the course of exequatur proceedings, the Piraeus first instance court and the Piraeus court of appeal were called to examine the issue for the first time in Greece, both declaring that no obstacles, especially those intertwined with procedural public policy, are barricading the path towards the declaration of enforcement of a TPCO issued by a judge in the UK.

Since its inception in 2001, the annual survey on Chinese judicial practice in private international law, published by the Chinese Journal of International Law,  has served as a valuable source of information on Chinese practice in private international law, particularly during periods when case law was not readily available (notably prior to 2013). The first annual survery, titled ‘Private International Law in the Chinese Judicial Practice in 2001’, appeared in Vol. 2(1), 2003, and was prepared by Professors Huang Jin and Du Huangfang. However, in its early years, the survey was not published on a regular basis. Indeed, in addition to the 2001 survey, only three others were published between 2005 and 2014: the survey for the year 2002 (published in 2005), for 2003 (published in 2008), and for 2006 (published in 2009).

Since 2015, the regular publication of the survey has been ensured by Professor He Qisheng of Peking University Law School under the title “Chronology of Practice: Chinese Practice in Private International Law”. (For previous announcements on this blog, see the posts for 2018, 2019, 2020, and 2021. Annual surveys for the years 2013 to 2018 are also available on Professor He’s SSRN page.) Professor He’s dedication to maintaining and expanding the annual survey has been instrumental in ensuring it remains an indispensable resource for the field, while making information on private international law in China readily accessible to non-Sinophone researchers.

With that said, the  Chronology of Practice: Chinese Practice in Private International Law in 2023 is now available, marking the 11th consecutive annual survey since 2015. This year’s edition is particularly noteworthy as it includes English translations of recently enacted legal provisions, include among others:

• The new provisions on international jurisdiction (Chapter 24, “Jurisdiction” of the Civil Procedure Law (2023 Amendment), Arts. 276–282),
• Provisions on service of process and taking of evidence (Chapter 25, “Service of Process, Taking of Evidence, and Periods” of the Civil Procedure Law (2023 Amendment), Arts. 283–287),
• Provisions on foreign judgments (Arts. 293–296 of the Civil Procedure Law (2023 Amendment)), and
• The Supreme People’s Court Interpretation on Certain Issues Concerning the Application of the Law of the PRC on the Application of Law to Foreign-Related Civil Relations (II) (Arts. 1–13).

Like its predecessors, this year’s survey provides important updates and further enhances accessibility to key legal developments for researchers and practitioners of private international law.

The abstract of 2023 survey reads as follows:

The survey of the Chinese practices in private international law in 2023 highlights the following aspects: First, four new laws and two administrative regulations, three judicial interpretations by the Supreme People’s Court (“SPC”) have been formulated, and six groups of 44 typical cases have been selected by the SPC. Notably, China acceded to the Hague Apostille Convention this year. Additionally, Chinese courts concluded 24,000 foreign-related civil and commercial cases, 16,000 maritime cases, and 16,000 commercial arbitration judicial review cases. Second, Part IV of the Civil Procedure Law was amended to include new provisions addressing jurisdiction, service of process abroad, taking of evidence and periods, as well as recognition and enforcement of foreign judgments and arbitral awards. These new rules and relevant cases are presented throughout the Survey. Third, the application of international treaties and practices has emerged as a significant topic, with new rules in the Foreign Relations Law and the SPC Interpretation of International Treaties and International Practices. Additionally, the SPC selected 14 representative cases in this regard. Fourth, concerning the ascertainment of foreign laws, the SPC issued two judicial interpretations and selected three relevant cases. Fifth, regarding the judicial review of arbitration cases, the SPC has selected several Typical Cases of Judicial Review of Arbitration, which serve as significant guiding examples.

The table of content of the paper is as follows:

I. Introduction

II. Overview

• II.A. Report on the Work of the SPC in 2023
• II.B. New laws and the SPC’s judicial interpretations
• II.C. Typical cases

III. Jurisdiction

• III.A. Rules in the Civil Procedure Law 2023
• III.B. Choice of court agreement
  • III.B.i. Standard terms and conditions
  • III.B.ii. Asymmetric choice of court agreement
• III.C. Forum non convenience

I.V. Choice of law

• IV.A. Characterization
• IV.B. Ascertainment of foreign law
  • IV.B.i. SPC Private International Law Interpretation II
  • IV.B.ii. SPC Decision on Amending the CICC Provisions
  • IV.B.iii. Cases on ascertainment of foreign laws
• IV.C. Extraterritoriality of Chinese laws

V. International conventions and international practices

• V.A. Foreign Relations Law
• V.B. SPC Interpretation of International Treaties and International Practices
• V.C. Cases on the application of international conventions
• V.D. Cases on the application of international practices

VI. Service of process, taking of evidence and periods

• VI.A. Rules in the Civil Procedure Law 2023
• VI.B. Service of process abroad
• VI.C. Evidence
• VI.D. Apostille

VII. Foreign Judgments

• VII.A. Rules in the Civil Procedure Law 2023
• VII.B. Cases about recognition and enforcement of foreign judgments

VIII. International arbitration and foreign arbitral awards

• VIII.A. Rules in the Civil Procedure Law 2023
• VIII.B. Judicial review of arbitration

From 2 to 6 December 2024, the second edition of The Hague Academy of International Law’s Advanced Course in Hong Kong was held, co-organised by the Asian Academy of International Law (AAIL) with the support of the Department of Justice of the Government of the Hong Kong SAR. Once again, the Hague Academy of International Law brought distinguished speakers to the “fragrant harbour” to deliver lectures on the “Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”. Just a stone’s throw from the Old Supreme Court Building (now the seat of Hong Kong’s Court of Final Appeal) at the premises of the Hong Kong Club, legal scholars, national judges, government officials and legal practitioners from over 20 jurisdictions as diverse as Laos, the People’s Republic of China, (francophone) Cameroon, The Netherlands, South Africa or the Kingdom of Saudi Arabia came together to discuss their respective experiences and the prospects of the latest instrument in this field, the HCCH 2019 Judgments Convention.

Following the opening remarks (Jean-Marc Thouvenin, Secretary-General of The Hague Academy of International Law and Lam Ting-kwok Paul, Secretary for Justice of the Government of the Hong Kong SAR), Teresa Cheng (Founding Member and Co-Chairwoman of the AAIL) proceeded to give the opening lecture on the recognition and enforcement of foreign judgments in the Hong Kong SAR.

In the afternoon, Pietro Franzina (Catholic University of Milan) focused on “Contemporary Approaches to the Recognition and Enforcement of Foreign Judgments”. As part of a comparative overview, he developed a taxonomy of the legal frameworks for recognition and enforcement based on their operational context (simple/double instruments), their legal sources (unilateral-domestic, international, regional/supranational) and the type of decisions they are concerned with (final and conclusive judgments with res judicata effect, decisions on situations with an evolving character). He particularly emphasised that international as well as regional rules are fragmentary in nature. Hence, despite their designation, treaties such as the HCCH 2019 Judgments Convention do not actually set out rules for the enforcement of decisions, but rather determine the criteria for the enforceability of a judgment, which must then be carried out according to the applicable rules of domestic law. Building on this foundation, Franzina’s second lecture on Thursday morning explored the doctrinal puzzle the HCCH 2019 Judgments Convention presents with respect to “Preliminary Questions Outside the Scope and Judgments Consisting of Severable Parts”. Drawing on the notion of “complex judgments”, he masterfully illustrated the carefully drafted solutions the Convention offers to address borderline cases, but also the unavoidable gaps that nonetheless exist in this regard. The lecture culminated in a lively discussion regarding the ground of refusal for judgments on exemplary or punitive damages (Art. 10), which – according to Franzina – was designed to apply not only in civil law systems, but also in common law jurisdictions, insofar as different standards apply across the latter jurisdictions as regards the award of such damages. The rule in Article 10, it was observed, is meant to ease the difficulties that may arise in asserting the public policy exception (Art. 7 (1) lit. c)) as regards foreign judgments awarding more than compensatory damages.

At Tuesday morning, Giuditta Cordero-Moss (University of Oslo) started her lecture on precisely on this topic: “Public Policy as a Limit to Enforcement and Recognition”. While reminding the audience of the importance of an autonomous interpretation (Art. 20) in line with the principles enshrined in the Vienna Convention on the Law of Treaties (VCLT), she presented the public policy exception as part of one important line of development within (see Art. 2 HCCH 1958 until Art. 22 HCCH 2007) and outside (e.g. Art. 34 Lugano 2007) the HCCH ecosystem. With particular focus on the parallels to the New York Convention, she raised the question of the appropriate intensity of public policy control. Under the former instrument, at least two levels of scrutiny have emerged: A “maximalist” theory, according to which the court assesses the matter de novo (e.g. Westacre Investments v. Jugoimport-SDPR Holdings, [1999] 3 All ER 864 , 885), and a “minimalist” theory, according to which a “manifest” breach can – in deference to the arbitral tribunal’s evaluation – only be reviewed to the extent that the issue has not yet been discussed by the tribunal itself (e.g. CA Paris, 18 novembre 2004, Thalès Air Defence, Rev arb. 2005 751). Later, Cordero-Moss turned to the perceived overlaps with other provisions of the Convention. Most significantly, the public policy exception can be combined with the other defences set forth in Art. 7 HCCH 2019 Judgments Convention in order to meet the threshold of “manifest incompatibility” with the essential policies of the requested State. Surprisingly, this reasoning according to the Explanatory Report does not apply to punitive damages exception in Art. 10 (Garcimartín/Saumier, paras. 265). The excellent and remarkably insightful presentation concluded on Wednesday afternoon with a discussion of pertinent substantive cases in the areas of competition, corporate and labour law. Among other things, the speaker discussed the complex case of the English “floating charge”, which allows for a security right in rem that is not attached to assets before it is “crystallised” at a specified future event, and thus could conflict with the numerus clausus principle of property rights, as found in many civil law jurisdictions.

Then, Shen Hongyu (Chief Judge of the Supreme People’s Court) dedicated her part of the course on “Unfolding the 2019 Hague Convention” to share “China’s Perspective on International Recognition and Enforcement”. Her remarks offered important insights into the drafting process of both, the recent amendments to the Chinese Civil Procedure Law and the new Law of the People’s Republic of China (PRC) on Foreign State Immunity (1 September 2023). As reported before on col.net, the latter provides for a fundamental shift in China’s stance towards the immunity of foreign States, moving from an absolute position to the adoption of a more restrictive approach. Presumably, this step is not unconnected to China’s endeavour to widen its economic influence via the Belt and Road Initiative. Furthermore, Judge Shen shed some light on the very peculiar approach to indirect jurisdiction in Art. 301 Civil Procedure Law (2023). By referring this question, on a first level, to the lex fori of the court of origin, China’s recognition rules at first appear to place a great deal of trust  in foreign law (though not so much in the originating court’s application of that law), only to then implement a second level of control by requiring the foreign court to have an “appropriate connection with the case” according to standards ultimately set by the requested court, explicitly including the violation of an exclusive choice of court agreement and the provisions of exclusive jurisdiction of the PRC. Thanks to Judge Shen’s well-founded explanations, it  became clear that the emergence of this rather complicated solution, which might be called “(modified) double control”,[1] was the result of a compromise between the proponents of a pure “mirror principle” and a simple “foreign law” approach. In this way, the new law, whilst being generally open to foreign law, is at the same time supposed to effectively prevent foreign courts from abusing their jurisdiction through “long-arm” statutes. Finally, the Supreme Court Judge also expressed the view that, if China were to become a party to the HCCH 2019 Judgments Convention, it would most likely utilise the option granted under Art. 17 to exclude from its material scope all matters for which it currently claims exclusive jurisdiction (see Art. 279 Civil Procedure Law), including disputes concerning some specific Sino-foreign joint venture contracts.

As a special treat for all participants, Matthias Lehmann (University of Vienna) gave two highly anticipated afternoon lectures on “Crypto Currency and International Law”. Despite the short time frame on Tuesday and Wednesday, he nonetheless expertly managed to explain the complex technical structures underlying and characterising the blockchain, as well as the resulting legal implications. Since all the nodes constituting the blockchain network are spread across different places around the world, digital assets based on this technology (such as Bitcoin or Ether) can hardly be localised in just a single place. While courts and legislators in several jurisdictions have taken on the challenge this decentralised structure is posing for the traditional mechanisms of Private International Law (e.g. Cheong Jun Yoong v Three Arrows Capital Ltd, (2024) SGHC 21), Lehmann, in a more radical approach, proposed to take the results of the innovative technology more seriously. Since the transfers recorded in the blockchain cannot be undone, the distribution of assets provided for by the technology should be presumed to be legitimate. In essence, this suggestion represents what in a legal context could also be understood as a uniform international rule of property law. However, as it is the case with real property, this does not mean that transfers according to that rule are necessary final. Rather, where it can be shown that the digital asset has been acquired illegally, the presumption is rebutted, and the traditional (conflict of laws) rules apply.

On Wednesday and Friday, the author of these lines added with two lectures on “The Jurisdictional Filters”. Positioned at the “heart” of the Convention in terms of function and policy, the positive requirements set forth in Arts. 5 and 6 HCCH 2019 Judgments Convention are intended to filter out decisions based on unacceptable assumptions of direct jurisdictions by the courts of the State of origin. After a short introduction to the general concept of indirect jurisdiction, as (first?) described by Etienne Bartin, there was a brief tour d’horizon of various approaches towards the standards of indirect jurisdiction, including general clauses (e.g. Canada’s “real and substantial connection” test), negative lists enumerating exorbitant grounds of indirect jurisdiction (e.g. Greek-German Agreement of 4 November 1961), the “mirror principle” (e.g. Spain’s Art. 46 de Ley de Cooperación Jurídica Internacional) or of course section 328 (1) no. 1 German Code of Civil Procedure – the mirror principle seems to be a “German” invention by Paul Johann Anselm Feuerbach in 1812) as well as the peculiar “(modified) double control” (see above for Art. 301 PRC Civil Procedure Law) or the (unsuccessful) proposal of a mixed convention, as developed by Arthur von Mehren (e.g. HCCH 1999 Draft of a Judgments Convention). This first lecture concluded with a discussion of elements common to all filters with practical relevance, inter alia, burden and standards of proof, as well as the admissibility of anti-enforcement injunctions based on a “better” interpretation of the Convention, the impact of the arbitration exception in Art. 2 (3) HCCH 2019 Judgments Convention or the role, if any, for anti-enforcement injunctions. On this basis, the second lecture approached the somewhat more than 20 jurisdictional filters and their modifications respectively, depending on the manner of counting, as provided for in the Convention. For this task, it appeared reasonable to distinguish between five groups of filters: 1. Personal connections of the defendant; 2. Forms of consent; 3. Connections of the subject matter; 4. Modifications for the protection of weaker parties; 5. Exclusive Filters. For the purpose of highlighting the pits and downfalls of each jurisdictional filter, the presentation was structured around short hypothetical case illustrations, which were actively discussed with the participants. For example, under Art. 5 (1) lit. d) it is not sufficient, that the branch from which the claim in dispute arose existed at that time, but not anymore when the proceedings where instituted in the court of origin. Furthermore, in light of Switzerland’s recent declaration to apply the HCCH 2005 Choice of Court Convention likewise to non-exclusive forum selection agreements, the precise delineation of the two instruments, as originally envisaged in Art. 5 (1) lit. m), might soon gain significantly more importance. Last but not least, a special emphasis was placed on “false friends” provisions that may look familiar to the legal practitioner from his/her own law, while in fact differing in detail. For instance, Art. 5 (1) lit. a) foresees jurisdiction at the place of the habitual residence of the “person against whom recognition or enforcement is sought”, while Art. 22 PRC Civil Procedure law is limited to the “defendant” in the original proceedings.

Besides the lectures, the Course’s unofficial theme became somewhat of an “autograph session”. Following a spontaneous idea on making use of “the book” (the only available copy at that time) that had emerged from the HCCH/University of Bonn Conference on the HCCH 2019 Judgments Convention in 2023, all attendees here were again invited to sign a “commemorative copy”, this time the “Hong Kong edition”, thereby following the “Bonn edition”, and we of course hope that further editions might follow. We were happy to see that the trend was catching on, as Judge Shen joined in by inviting the audience to autograph a copy of  the “Annotated International Commercial Cases from the Supreme People’s Court”. Even more professionally, admittedly, there was even a prize awarded for the tenth person (a fortunate number in Chinese numerology, as it seems) putting his or her signature in the collection of cases.

Coming full circle, Teresa Cheng delivered the programme’s final presentation on “Arts. 22 and 25 of the HCCH Judgment Convention” focussing on the Mutual Arrangements between the Mainland and the Hong Kong SAR. Based on Art. 95 of the Hong Kong Basic Law, there are several legal frameworks in place that have drawn inspiration from the HCCH Conventions. Although Cheng expressed some doubts about the application of the notion of “territorial units” to Hong Kong, she was ultimately certain that these regional frameworks would remain unaffected by virtue of Art. 22 HCCH 2019 Judgments Convention. This is, of course, subject to ratification by the PRC and extension of its effect to the Hong Kong SAR in accordance with Art. 25 of the 2019 HCCH Judgments Convention. As alluded to in the opening lecture, China’s special situation as a bi-jural legal system, with the Hong Kong SAR as the common law counterpart to civil law based legal system of the People’s Republic of China, lends itself to some legal innovations naturally arising from this coexistence. For example, Art. 4 of the recent Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters specifically excludes anti-suit injunctions from its scope. Likewise, Art. 3 (8) of the same legal framework wisely addresses “cases on the recognition and enforcement of judgments or arbitral awards of other countries or regions”, and thus excludes from its scope decisions that simply merge foreign judgments or arbitral awards into a domestic title according to the English doctrine of obligation. Especially the latter point could serve as a reasonable starting point for correcting the effects of the CJEU judgment in J. v. H. Limited as part of the upcoming reform of the Brussels Ibis-Regulation within the European Union.

On Friday afternoon, the last day of the programme, the participants received their certificates, and, after an academically exciting but of course also demanding week, rewarded with a closing reception featuring not only drinks and food but also inspiring views of Hong Kong’s Victoria Harbour.

[1] In their joint essay, Shen/Guo Zaiyu, “Review and Interpretation of the Amended Provisions of the Foreign Part in the Civil Procedure Law”, China Law Review 2023-06, pp. 70-80, prefer to speak of a model of “two-way combination” or a “hybrid approach”, for the English text see https://mp.weixin.qq.com/s/n0iLTtkvEPfwwg8xWs6sJQ https://www.chinajusticeobserver.com/a/thus-spoke-chinese-judges-on-international-civil-jurisdiction and for the Chinese version https://mp.weixin.qq.com/s/n0iLTtkvEPfwwg8xWs6sJQ.