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US Court Refused to Apply the Chosen Chinese Law due to Public Policy Concern
In Fu v. Fu, 2017 IL App (1st) 162958-U, a father brought a claim against his son to revoke an unconditional gift of $590,000 that he donated to his son for the later to pursue an EB-5 Visa to immigrate to the US. Both parties are Chinese citizens and the defendant is currently a resident of Massachusetts. The gift agreement was entered into in China, drafted in Chinese and contained a clause specifying PRC law should apply. The money was held by the International Bank of Chicago. The plaintiff brought the action in Illinois.
Under the US Law (Title 8 of the Code of Federal Regulations, § 204.6) a foreign national must invest at least $500,000 in the US to be considered for an EB-5 Visa, and must ‘show that he has invested his own capital obtained through lawful means.’ (Matter of Ho, 22 I&N Dec. 206, 210 (AAO 1998)) After a few denied EB-5 approval, the plaintiff sought to recover the money, by claiming that the defendant was estranged from his parents, including the donor and refused to support them, and the purpose of the gift contract was for the defendant to obtain an EB-5 Visa but the defendant failed to do so.
Under the Illinois law, a valid gift requires ‘delivery of the property by the donor to the donee, with the intent to pass the title to the donee absolutely and irrevocably, and the donor must relinquish all present and future dominion and power over the subject matter of the gift.” (Pocius v. Fleck, 13 Ill. 2d 420, 427 (1958)). Furthermore, the gift agreement between the parties also used the language that the gift was ‘unconditional’. However, the plaintiff argued that under the PRC law, gifts may be revocable after the transfer of ownership, if the donee ‘has the obligation to support the donor but does not fulfil it’, or a donnee ‘does not fulfill the obligations as stipulated in the gift agreement.’ (PRC Contract Law, Art 192)
The Appellate Court of Illinois First Judicial District affirmed the judgment of the circuit court of Cook County that the gift agreement was irrevocable. The plaintiff failed to successfully prove Chinese law. And even if the plaintiff properly pled PRC law, such interpretation was ‘oppressive, immoral, and impolitic’. Under the US law on EB-5 Visa application, the foreign citizen must prove ownership of those funds to be eligible for an EB-5 Visa. The signed agreement stating the gift ‘unconditional’ would help the defendant to prove he legally owned the funds to acquire an EB-5 visa. If the governing PRC law indeed allows a gift to be given unconditionally and revoked after delivery and acceptance, as argued by the plaintiff, it would facilitate a deception on the US Government and is against public policy.
The full judgment can be found here.
NIKI continued
Written by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany
The Spanish airline Vueling Airlines S.A. is still intending to acquire large parts of the NIKI business. Vueling is part of the European aviation group IAG, which also includes British Airways, Iberia, Aer Lingus and LEVEL. The provisional insolvency administrator of NIKI Luftfahrt GmbH, therefore, will continue to drive forward the sales process. Vueling has provided interim financing of up to € 16.5 million to finance the NIKI business until the closing of the purchase agreement. This funding is only sufficient for a few weeks. Read more
NIKI, COMI, Air Berlin and Art. 5 EIR recast
Written by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.
The Regional Court of Berlin has, on the basis of the immediate appeal against the order of the provisional insolvency administration on the assets of NIKI Luftfahrt GmbH (under Austrian law), repealed the decision of the District Court of Charlottenburg (see here) as it finds that international jurisdiction lies with Austrian and not German courts. In its decision, the regional court has dealt with the definition of international jurisdiction, which is based on the debtor’s centre of main interests (‘COMI’). According to the provisions of the European Insolvency Regulation, that is the place where the debtor usually conducts the administration of its interests and that is ascertainable by third parties. Read more
News
AMEDIP’s upcoming webinar: The Construction of Private International Law – 27 April 2023 (at 14:30 Mexico City time) (in Spanish)
The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 27 April 2023 at 14:30 (Mexico City time – CST), 22:30 (CEST time). The topic of the webinar is the Construction of Private International Law and will be presented by Prof. Jorge Alberto Silva (in Spanish).
The details of the webinar are:
Link: https://us02web.zoom.us/j/85789687012?pwd=aXlKWFpzb2Qyb2VoNklwMWxyQ082UT09
Meeting ID: 857 8968 7012
Password: AMEDIP
Participation is free of charge.
This event will also be streamed live: https://www.facebook.com/AmedipMX
The University of Bologna Summer School on Transnational Litigation: what you should know about its 2023 edition
[This post has been prepared by Ms. Francesca Albi, J.D. Candidate | Università degli Studi di Verona]
The Summer School on Transnational Litigation has been organized since 2019 within the Ravenna Program on Cross-Border Disputes by the University of Bologna, Department of Juridical Sciences – Ravenna Campus (Italy), under the direction of Prof. Michele Angelo Lupoi.
The organization of its 2023 edition confirms the success this projects continues to enjoy among participants from all over the world, who, over the years, are contributing to build a promising network of Private International Law enthusiasts. Indeed, this project has proven to be a building-bridges catalyst to connect people with the same interests in Private International Law issues: in this sense, this multi-year Summer School actively contributes to the sharing and spread of knowledges and views, which go beyond borders in every possible sense.
In 2023, the Summer School will take place from Monday 17 to Saturday 22 July, both in person at the Faculty of Law (Via Oberdan 1/2) in Ravenna – Italy, and online.
The title, which summarises the hot topics of the courses of this year’s edition, is “Cross-border litigation and international arbitration”. As a matter of fact, the themes dealt with will concern, on one hand, transnational litigation from a wide perspective (i.e., involving climate litigation, cross-border maritime litigation, family and succession Private International Law, civil and commercial litigation), and, on the other hand, the increasingly interesting matter of international arbitration. The full schedule of classes is available and may be downloaded at https://site.unibo.it/transnational-litigation/en/program.
Participants will have the outstanding opportunity to acquire specialised knowledges on these relevant topics of growing importance directly from experts in such matters. In fact, the faculty consists of renowned scholars and legal practitioners, who will offer their experience involving diverse professional backgrounds developed in different States over the world. In detail, the lecturers in this edition are (in alphabetical order) Apostolos Anthimos, Giovanni Chiapponi, Elena D’Alessandro, David Estrin, Marco Farina, Francesca Ferrari, Chris Helmer, Albert Henke, Emma Roberts, Marco Torsello, Stefano Alberto Villata and Anna Wysocka-Bar. Their biographies and professional experience may be consulted at https://site.unibo.it/transnational-litigation/en/faculty.
Registration to the School are now open!
In order to participate, some requirements should be met: applicants must be students or graduate students of a Bachelor (three-years) or Master (five-years) Degree (or equivalent under previous systems) in Law (LMG/01), Legal Services Science (L-14), Political and International Relationships Science (L-36), International Relationships (LM52), or Political Sciences (LM62). Other candidates may also be accepted upon the presentation of the CV which should be show a connection to the topics of the Summer School. Alongside students and post-grad students, also practitioners in legal matters are invited to participate. In this regard, it must be noticed that the Ravenna Bar Association will grant 20 formative credits to Italian lawyers who attend the Summer School.
Registration to the Summer School is possible upon the payment of a fee, whose amount is €250,00 and which does not cover expenses for the accommodation and meals (please, note that registration is considered completed only when the payment of the fee is fulfilled). Applications are open until 6 July 2023 (h 23.59 CET); it is not possible to apply beyond this deadline. The application procedure is described at https://site.unibo.it/transnational-litigation/en/fees-and-forms.
In this regard, it is worth mentioning that, in order to give to one deserving law student or law graduate, who meets specific age requirements, the opportunity to attend the Summer School online free of charge, a call for papers has been launched. It consists in the submission of an originally and previously unpublished paper on a topic concerning transnational litigation and international arbitration. A selection committee, composed by staff and faculty members of the Summer School, will evaluate the papers and will reward the author of the best one through the possibility to attend the full Summer School online without paying the ordinary registration fee. Moreover, the best three papers will be published in the Linkedin Newsletter of the Summer School on Transnational Litigation “Transnational litigation pills”. Every submission is truly appreciated. Detailed information on this call for papers may be found on the website of the Summer School, especially in the section “Fees and forms”.
For any question regarding the application process or logistics, the contact person is Dr. Cinzia Cortesi, Manager of Fondazione Flaminia (master@fondazioneflaminia.it; +39 0544 34345). Otherwise, in order to acquire further information on the project, courses and call for papers, it is possible to contact Prof. Michele Angelo Lupoi, Director of the Summer School (micheleangelo.lupoi@unibo.it) or Francesca Albi, Tutor (francesca.albi@unibo.it).
Further information may be found in the official website of the Summer School at https://site.unibo.it/transnational-litigation/en.
The organization team of the Summer School warmly invites everyone who meets the requirements listed above to apply for the 2023 edition courses, in order to allow as many people as possible the exciting chance to become part of a group of colleagues and friends with the common interest in Private International Law, that is larger and larger every year.
New Journal Announcement: the Chinese Journal of Transnational Law
Wuhan University Institute of International Law, in partnership with global research leader SAGE, is delighted to announce the launch of a new journal “Chinese Journal of Transnational Law”.
The Chinese Journal of Transnational Law is a double-blind peer-reviewed journal that aims to address global challenges from the perspective of transnational law, which is broadly defined to cover international law (public and private), international economic law, comparative law, the interaction between domestic and international law, and any other legal field possessing a cross-border element. This journal embraces relevant submissions from different cultures and regions and attracts readers from the global, regional and Chinese markets. The journal shall be open to not only traditional doctrinal and theoretical legal research on transnational law, but also contextual and inter-disciplinary research. Although focused on contemporary matters in its aspiration to be a forum for the latest debates on transnational legal studies, it also considers submissions inspired by in-depth historical perspectives that cast new light on present developments. The CJTL covers broad topics including but not limited to:
- Innovative transnational dispute resolution, including both state-to-state and private dispute resolution mechanisms and the impact of culture, psychology, language and geopolitics on dispute resolution;
- Transnational trade, investment and economic governance;
- Transnational family law and the wellbeing of children, including surrogacy, child abduction and same sex marriage in the cross-border context;
- Transnational regulation of technology;
- Transnational corporate responsibility and governance;
- Transnational protection of private rights in tort and transactions;
- Transnational law and development;
- Transnational law and global health governance;
- Transnational environment protection and climate change;
- Transnational criminal law;
- Unilateral sanctions, extraterritorial regulations and blocking law.
The Chinese Journal of Transnational Law accepts submissions year round on any topic covered in the journal scope. In the meantime, the journal will publish calls for special issues occasionally. A call for the first special issue is going to be announced soon. You can find more information about this journal and submit your paper here.