Views
Deference to Foreign Sovereign Submissions
As previously reported here, the United States Court of Appeals for the Second Circuit issued a decision in 2016 reversing a $147.8 million price-fixing judgment against two Chinese manufacturers of Vitamin C. The plaintiffs alleged that the Chinese manufacturers engaged in price fixing and supply manipulation in violation of U.S. antitrust laws. In its first ever appearance as an amicus before a U.S. court, the Chinese government filed a formal statement asserting that Chinese law required the Chinese manufacturers to set prices and reduce the quantities of Vitamin C sold abroad. Relying on this statement, the Second Circuit held that because the Chinese manufacturers could not comply with both Chinese law and the U.S. antitrust laws, principles of international comity compelled dismissal of the case.
This case raises a host of interesting questions. First, did the Second Circuit reach the right result? Second, is this a comity case or a foreign sovereign compulsion case? Third, what level of deference is due to a foreign sovereign that appears in private litigation to explain their country’s laws? Fourth, should U.S. judges defer to such an explanation?
In June 2017, the United States Supreme Court called for the views of the United States. This past Tuesday, the Solicitor General (SG) filed this brief in response to the Court’s order.
In this submission, the SG explains that the Court should grant review of the Second Circuit’s decision in order to review the court of appeals’ holding that the Chinese government’s submission conclusively established the content of Chinese law. According to the SG, “a foreign government’s characterization of its own law is entitled to substantial weight, but it is not conclusive.” The SG argues that the case warrants the Court’s review because “[t]he degree of deference that a court owes to a foreign government’s characterization of its own law is an important and recurring question, and foreign sovereigns considering making their views known to federal courts should understand the standards that will be applied to their submissions.”
Should the Court grant review, the question of what standard should be applied to foreign sovereign submissions will be key. This is a question I have explored here.
It will be interesting to see whether the Court accepts the SG’s request to review the Second Circuit’s decision.
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.
News
Jürgen Basedow 1949-2023
Jürgen Basedow, a giant of private international law (and numerous other disciplines), has died – suddenly, and completely unexpectedly, on April 6. He was my teacher (though only briefly so in a formal position), my predecessor as director of the Hamburg Max Planck Institute (where he served as director 1997-2017) and my colleague as an emeritus. His (impressive) vita is still visible on the MPI website.
Words fail me, as they have many, and so I will not attempt to write more here. A longer appreciation of his life and work and personality is in preparation. Until then, you may wish to read one or more of the following announcements that I am aware of; please announce in the comments or by email what I may have overlooked.
Also, the Hamburg Max Planck Institute is setting up a virtual book of condolences. Please consider sharing your own appreciation there, even if you have already written them up somewhere else.
RIP.
Longer appreciations:
Corinna Budras at Frankfurter Allgemeine Zeitung
Federico Garau at conflictuslegum
José Carlos Fernández Rozas at his personal blog
Konrad Duden / Matteo Fornasier in EuZW 2023, 395-396
Eva-Maria Kieninger / Ralf Michaels in RabelsZ 87 (2023), 229-235
Anatol Dutta / Christian Heinz in JZ 2023, 610-611
Brief online announcements:
Max Planck Institute for International and Comparative Law, Hamburg
Università degli Studi di Pavia
International Academy of Comparative Law
Brief appreciations on social media (incomplete)
Vasco Becker-Weinberg, Pejovic Caslav, Axel Halfmeier, Matthias Kurth, Michael Kubiciel, Monopolkommission, Gülüm Özçelik, Mateusz Pilich
Final Call for Participation in the EAPIL Working Group Survey on the Reform of the Brussels Ibis Regulation
The following information has kindly been provided by Tess Bens, Research Fellow at the Luxembourg Max Planck Institute:
In September 2022, an EAPIL Working Group met for a conference in Luxemburg to discuss the perspectives and prospects of a reform of the Brussels Ibis Regulation. There were panels on the role and scope of the Brussels Ibis Regulation, collective redress, third state relationships, jurisdiction and pendency, and recognition and enforcement. As a result of the conference, Professor Hess and a team of Researchers of the Max Planck Institute Luxembourg published a preliminary Working Paper which put forward 32 proposals for the reform of the Brussels Ibis Regulation.
Parallel to the preliminary Working Paper, a survey was set up to collect reactions and comments on the proposals. By now, over 60 participants from many different Member States have answered the survey. Participation in the survey is open to anybody interested in the reform of the Brussels I bis Regulation, irrespective of whether they are a member of the European Association for Private International Law. Your input is greatly appreciated. Please note that the survey will be open until 15 April 2023.
UK Law Commission – Recruitment for Lead Lawyer
The following information has kindly been provided by Professor Sarah Green, UK Law Commissioner for commercial and common law:
Thank you for your interest in our project Digital assets: which law, which court?. We would like to draw your attention to an opportunity to join the team, as the Law Commission is currently recruiting for a lawyer or legal academic to lead this project. This is an exciting opportunity to be at the forefront of legal policy development in this cutting-edge and complex area, working with a range of domestic and international stakeholders.
We are ideally looking for specific experience or demonstrable interest in the private international law of England and Wales. This role will ultimately require a good knowledge of conflict of laws, digital assets and electronic trade documents. However, we are also interested in receiving applications from lawyers or academics with different commercial or common law backgrounds, with an interest in law reform and who can demonstrate a capacity to quickly acquire knowledge of complex areas of law.
Details of how to apply, along with the full job description, essential qualifications and other details, are available at this link: Law Commission: Commercial and Common Law Team, Lawyer(Ref: 73409) – Civil Service Jobs – GOV.UK
We would be grateful if you could draw this opportunity to the attention of anyone who might be interested. The role is also potentially available as a secondment opportunity from a business or academic institution. Please note that, due to civil service policies, the candidate must be UK-based.
If you would like to discuss further, please contact:
Laura Burgoyne, Head of the Commercial and Common Law Team
Email: laura.burgoyne@lawcommission.gov.uk
Telephone: 07793 966 296