Every two years, the ICC Institute of World Business Law awards a prize worth € 10,000 to the best doctoral dissertation or long essay on on international commercial law (including arbitration) written by an author under the age of 40 in English or French.

Submissions can be made until 7 April 2025.

More information can be found in the flyer and in the prize rules.

ASADIP: A More Intelligent and Less Artificial Private International Law

By Juan Ignacio Stampalija

The XVII Conference of the American Association of Private International Law (ASADIP) was held on September 25-27. Under the title ‘A More Intelligent and Less Artificial Private International Law,’ the main regional experts, as well as international guests, met at Universidad Austral of Argentina to discuss the main challenges of current private international law.

On the first day, the Conference was opened by C. Ignacio de Casas, Secretary of Academic Affairs of the Universidad Austral School of Law and Paula María All, outgoing President of ASADIP. Moreno Rodríguez (Paraguay) gave the inaugural lecture entitled ‘Private International Law and Investment Arbitration.’

The first day of the Conference also included three panels. The first focused on the ‘Challenges of International Legal Cooperation in the Digital Era.’ It was moderated by María Blanca Noodt Taquela (Argentina) and Gonzalo Lorenzo Idiarte (Uruguay), with María Laura Capalbo (Uruguay), Juan José Cerdeira (Argentina), Marcos Dotta (Uruguay), Alejandro Menicocci (Argentina), Roberto Ruiz Diaz Labrano (Paraguay), and Valesca Raizer Borger Monschen (Brazil) as panellists. The second panel discussed ‘Contracts and Digital Assets,’ with Verónica Ruiz Abou-Nigm (Uruguay) as moderator and the participation of Jorge Oviedo Albán (Colombia), Gérardine Goh Escolar (The Hague, HCCH), Ana Mercedes López Rodríguez (Spain), Anna Veneziano (Italy, UNIDROIT, online) and Luca Castellani (Austria, UNCITRAL, online). The third panel, as is customary in all ASADIP conferences, was the Meeting of International Forums on Private International Law (MIFPIL). Paula María All (Argentina) acted as moderator and Florencia Castro (Argentina, HCCH), Anna-Joubin Bret (Vienna, UNCITRAL, video recording), Cecilia Fresnedo de Aguirre (Uruguay, CJI, OAS), Dante Negro (USA, OAS) and Anna Veneziano (Italy, UNIDROIT, online) were panellists.

The day ended with a lecture given by Andrés Rodríguez Benot (Spain) entitled ‘Party Autonomy in Household Economics: The European Experience on the Property Regime of Married Couples and Registered Partnerships.’

On the second day, the ASADIP Conference held joint activities with the Jornadas Nacionales de Derecho Civil from Argentina, with the participation of ASADIP members in Committee No. 9 on Private International Law. Under the theme ‘The New Frontiers of Party Autonomy,’ several papers were presented concerning party autonomy in different matters, such as non-parity contracts, consumer contracts, new technologies, family law, and dispute resolution, among others. Based on these papers, fifteen conclusions on this issue were drafted and unanimously passed, which can be read here (in Spanish).

To conclude the second day of the Conference, a panel entitled ‘Private International Family Law: Perspectives from Comparative Law’ was held. The panel was moderated by Carolina Harrington (Argentina) and Fabio Mastrángelo (Argentina), with presentations by María Mercedes Albornoz (Mexico), Andrés Rodríguez Benot (Spain), Nieve Rubaja (Argentina), María Laura Capalbo (Uruguay), Daniela Vargas Trejo (Brazil), and Elizabeth Villalta (El Salvador).

On the last day of the Conference, a joint HCCH-ASADIP meeting was held on ‘Private International Law and Tokens,’ with the participation of Gérardine Goh Escolar (The Hague, HCCH), Paula María All (Argentina), Fabricio Pasquot Polido (Brazil), Sebastián Paredes (Argentina), Juan Ignacio Stampalija (Argentina), and María Marta Herrera (Argentina). This was followed by the presentation of a book entitled ‘Influence and Application of the CIDIPs-OAS Conventions in Latin American Legal Systems’ (available here, in Spanish). The book was presented by Paula María All (Argentina), Dante Negro (USA, OAS), Eduardo Véscovi (Uruguay), Carolina Iud (Argentina), Daniela Trejo Vargas (Brazil), and Felicita Argaña Blendin (Paraguay). Finally, the closing speech of the ASADIP Conference was given by Didier Opertti Badán (Uruguay), Honorary President of ASADIP, who was introduced by Diego P. Fernández Arroyo (France).

In the context of the Conference, the ASADIP Assembly was held, in which the new authorities for the period 2024-2027 were elected. Verónica Ruiz Abou-Nigm, from Uruguay, Chair of Private International Law at the University of Edinburgh, was elected President of ASADIP. Marcos Dotta Salgueiro (Uruguay) Vice-President for International Relations; Jorge Oviedo Albán (Colombia) Vice-President for Academic Affairs; Juan Ignacio Stampalija (Argentina) Vice-President for Communications and Publications, and Felicita Argaña (Paraguay) Vice-President for Finance.

Likewise, Tatiana Cardoso Squeff (Brazil) is Deputy Vice-President for International Relations; María Alejandra Ruiz Gómez (Venezuela), Deputy Academic Vice-President; Daniel Rojas Tamayo (Colombia), Deputy Vice-President for Communications and Publications, while Candela Villegas (Argentina) is Deputy Vice-President for Finance.

Moreover, María Mercedes Albornoz (Mexico) was elected as ASADIP Secretary General and Inez Lopes (Brazil) as Deputy Secretary General.

In addition, ten members were appointed to the governing board: Bruno Rivero (Uruguay), Carlos Odriozola (Mexico), Claudia Lugo (Venezuela), Edgar Riffler (Paraguay), Fernando Meinero (Brazil), Jaime Gallegos Zúñiga (Chile), Jaime Vintimilla (Ecuador), Margie-Lys Jaime (Panama), Paloma Hernández (Argentina), and Taydit Peña Lorenzo (Cuba).

Finally, it should be recalled that Didier Opertti Badán (Uruguay) continues as Honorary President, while José Antonio Moreno Rodríguez (Paraguay) continues as President of the Advisory Council and Carolina Silvero (Paraguay) retains the role of Administrative Secretary of ASADIP.

This post was written by Prof. Dr. Giesela Rühl, LL.M. (Berkeley), Humboldt University of Berlin, and is also available via the EAPIL blog.

As reported earlier on this blog, Germany has been discussing for years how the framework conditions for the settlement of (international) commercial disputes can be improved. Triggered by increasing competition from international commercial arbitration as well as the creation of international commercial courts in other countries (as well as Brexit) these discussions have recently yielded a first success: Shortly before the German government coalition collapsed on November 6, the federal legislature adopted the Law on the Strengthening of Germany as a Place to Settle (Commercial) Disputes (Justizstandort-Stärkungsgesetz of 7 October 2024)[1]. The Law will enter into force on 1 April 2025 and amend both the Courts Constitution Act (Gerichtsverfassungsgesetz – GVG) and the Code of Civil Procedure (Zivilprozessodnung – ZPO)[2] with the aim of improving the position of Germany’s courts vis-à-vis recognized litigation and arbitration venues – notably London, Amsterdam, Paris and Singapore. Specifically, the new Law brings three innovations.

English as the language of proceedings

The first innovation relates to the language of court proceedings: To attract international disputes to German courts, the new Law allows the German federal states (Bundesländer)[3] to establish “commercial chambers” at the level of the regional courts (Landgerichte) that will offer to conduct proceedings in English from beginning to end if the parties so wish (cf. § 184a GVG). Before these chambers parties will, therefore, be allowed to file their briefs and all their statements in English, the oral hearings will be held in English and witnesses will be examined in English. In addition, commercial chambers will communicate with the parties in English and write all orders, decisions and the final judgment in English. Compared to the status quo, which limits the use of English to the oral hearing (cf. § 185(2) GVG) and the presentation of English-language documents (cf. § 142(3) ZPO) this will be a huge step forward.

The new Law, however, does not stop here. In addition to allowing the establishment of (full) English language commercial chambers at the regional court level it requires that federal states ensure that appeals against English-language decisions coming from commercial chambers will also be heard (completely) in English in second instance at the Higher Regional Courts (Oberlandesgerichte) (cf. § 184a(1) No. 1 GVG). The new Law also allows the Federal Supreme Court (Bundesgerichtshof) to conduct proceedings entirely in English (cf. § 184b(1) GVG). Unfortunately, however, the Federal Supreme Court is not mandated to hear cases in English (even if they started in English). Rather, it will be in the discretion of the Federal Supreme Court to decide on a case-by-case basis (and at the request of the parties) whether it will hold the proceedings in English – or switch to German (cf. § 184b GVG). The latter is, of course, unfortunate, as parties cannot be sure that a case that is filed in English (and heard in English at first and second instance) will also be heard in English by the Federal Supreme Court thus reducing incentives to commence proceedings in English in the first place. But be this as it may: it is to be welcomed that the German federal legislature, after long and heated debates, finally decided to open up the German civil justice system to English as the language of the proceedings.

Specialized “commercial courts” for high-volume commercial disputes

The second innovation that the new Law brings relates to the settlement of high-volume commercial cases (whether international or not). To prevent these cases from going to arbitration (or to get them back into the state court system) the new Law allows the German federal states to establish specialized senates at the Higher Regional Courts. Referred to as “commercial courts” these senates will be distinct from other senates in that they will be allowed to hear (certain) commercial cases in first instance if the parties so wish (cf. § 119b(1) GVG) thus deviating from the general rule that cases have to start either in the local courts (if the value in dispute is below € 5.000,00) or in the regional courts (if the value in dispute is € 5.000,00 or higher). In addition, commercial courts will conduct their proceedings in English (upon application of the parties) and in a more arbitration-style fashion. More specifically, they will hold a case management conference at the beginning of proceedings and prepare a verbatim record of the hearing upon application of the parties (cf. §§ 612, 613 ZPO). Commercial courts will, hence, be able to offer more specialized legal services as well as services that correspond to the needs and expectations of (international) commercial parties.

It is unfortunate, however, that the German legislature was afraid that the commercial courts would be flooded with (less complex) cases – and, therefore, decided to limit their jurisdiction to disputes with a value of more than € 500.000,00 (cf. § 119b(1) GVG). As a consequence, only parties with a high-volume case will have access to the commercial courts. This is problematic for several reasons: First, it is unclear whether a reference to the value of the dispute is actually able to distinguish complex from less complex cases. Second, any fixed threshold will create unfairness at the margin, as disputes with a value of slightly less than € 500.00,00 will not be allowed to go to the commercial courts. Third, requiring a minimum value can lead to uncertainty because the value of a dispute may not always be clear ex ante when the contract is concluded. Fourth, a fixed threshold may create the impression of a two-tier justice system, in which there are “luxury” courts for the rich and “ordinary” courts for the poor. And, finally, there is a risk that the commercial courts will not receive enough cases to build up expertise and thus reputation. Against this background, it would have been better to follow the example of France, Singapore, and London and to open commercial courts for all commercial cases regardless of the amount in dispute. At the very least, the legislature should have set the limit much lower. The Netherlands Commercial Court, for example, can be used for any disputes with a value higher than € 25,000.00.

Better protection of trade secrets

The third innovation, finally, concerns the protection of trade secrets. However, unlike the other innovations the relevant provisions are not limited to certain chambers or senates (to be established by the federal states on the basis of the new Law), but apply to all civil courts and all civil proceedings (cf. § 273a ZPO). They allow the parties to apply for protection of information that qualifies as a trade secret within the meaning of the German Act on the Protection of Trade Secrets (Gesetz zum Schutz von Geschäftsgeheimnissen – GeschGehG). If the court grants the application, all information classified as a trade secret must be kept confidential during and after the proceedings (cf. §§ 16 Abs. 2, 18 GeschGehG). In addition, the court may restrict access to confidential information at the request of a party and exclude the public from the oral hearing (§ 19 GeschGehG). The third innovation, thus, account for the parties’ legitimate interests in protecting their business secrets without unduly restricting the public nature of civil proceedings, which is one of the fundamental pillars of German civil justice. At the same time, it borrows an important feature from arbitration. However, since the new rules are concerned with the protection of trade secrets only, they do not guarantee the confidentiality of the proceedings as such. As a result, the parties cannot request that the fact that there is a court case at all be kept secret.

Success depends on the federal states

Overall, there is no doubt that the new Law is to be welcomed. Despite the criticism that can and must be levelled against some provisions, it will improve the framework for the resolution of high-volume (international) commercial disputes in German courts. However, there are two caveats:

The first caveat has its root in the Law itself. As it places the burden to establish commercial chambers and commercial courts on the federal states, the extent to which it will be possible for civil court proceedings to be conducted entirely in English and the extent to which there will be specialized senates for high-volume commercial disputes will depend on whether the federal states will exercise their powers. In addition, the practical success of the Law will also depend on whether the federal states will make the necessary investments that will allow commercial chambers and commercial courts to strive. For example, they will need to make sure that commercial chambers and commercial courts are staffed with qualified judges who have the necessary professional and linguistic qualifications and ideally also practical experience to settle high-volume (international) commercial disputes. In addition, they will have to ensure that judges have sufficient time to deal with complex (national and international) cases. And, finally, federal states will have to ensure that sufficiently large and technically well-equipped hearing rooms are available for the kind of high-volume disputes that they seek to attract. Should federal states not be willing to make these kinds of investments commercial chambers and commercial courts will most likely be of limited use.

The second caveat concerns the likely success of the new Law with regards to international disputes. In fact, even if the federal states implement the new Law in a perfect manner, i.e. even if they establish a sufficient number of commercial chambers and commercial courts and even if they make the investments described above, it seems unlikely that German courts will become sought-after venues for the settlement of international commercial disputes. This is because the German civil justice system has numerous disadvantages when compared with international commercial arbitration. In addition, the attractiveness of German courts suffers from the moderate reputation and poor accessibility of German substantive law. Both problems will not disappear with the implementation of the new Law.

Against this background, the new Law holds the greatest potential for national high-volume commercial disputes. However, it should not be forgotten that these kinds of disputes represent only a small fraction of the disputes that end up before German courts each year. In order to really strengthen Germany as a place to settle dispute, it would, therefore, be necessary to address the problems that these cases are facing. However, while the (now former) Federal Minister of Justice made promising proposals to this effect in recent months, the collapse of the German government coalition in early November makes is unlikely, that these proposals will be adopted any time soon. In the interest of the German civil justice system as a whole, it is, therefore, to be hoped that the proposals will be reintroduced after the general election in early 2025.

[1]     Gesetz zur Stärkung des Justizstandortes Deutschland durch Einführung von Commercial Courts und der Gerichtssprache Englisch in die Zivilgerichtsbarkeit (Justizstandort-Stärkungsgesetz) vom 7. Oktober 2024, Bundesgesetzblatt (Federal Law Gazette) 2024 I Nr. 302.

[2]        Note that both the translations of the GVG and the ZPO do not yet include the amendments introduced through the new Law discussed in this post.

[3]        The German civil justice system divides responsibilities between the federal state (Bund) and the 16 federal states (Bundesländer). While the federal state is responsible for adopting unified rules relating to the organization of courts as well as the law of civil procedure (Art. 74 No. 1 of the Basic Law), the federal states are responsible for administering (most) civil courts on a daily basis (Art. 30 of the Basic Law). It is, therefore, the federal states that organize and fund most civil courts, appoint judges, and manage the court infrastructure.

Join us online tomorrow for a free seminar on the CISG in Australia, delivered by Dr Benjamin Hayward.

Abstract

Australia adopted the United Nations Convention on Contracts for the International Sale of Goods (CISG) – a treaty intended to harmonise cross-border sale of goods law – in 1989. Australia gives the treaty local effect via a range of State, Territory, and Commonwealth Acts. A problem has arisen, however, with respect to the wording of that legislation. Some Australian courts consider that the treaty only applies, on a provision-by-provision basis, where it is inconsistent with local law. According to international understandings, however, the CISG is intended to displace local law to its subject-matter extent when it applies.

With reference to Australia’s statutory interpretation rules, and the legislative histories preceding the CISG’s adoption in Australia, this seminar identifies a parliamentary intention to apply the CISG in full in Australia. It therefore identifies that Australia intended to adopt the CISG in a manner consistent with its internationally understood effect. This seminar also examines the nature of Australia’s CISG cases to-date, and identifies how future courts can better engage with the treaty in order to realise its objectives of supporting international trade.

Presenter

Benjamin Hayward is an Associate Professor in the Department of Business Law at Monash University. He has published in Australia and internationally in private international law, international commercial arbitration, and the CISG. Ben currently teaches Australian contract law, consumer law and statutory interpretation (amongst other private law topics) at the Monash Business School.

Chair

Cara North is Special Counsel with Corrs Chambers Westgarth Melbourne, and Treasurer of AAPrIL. She practises in international litigation, arbitration and private international law. Cara has worked as a legal officer for the Hague Conference on Private International Law, and for five years as a consultant to the Permanent Bureau of the Hague Conference.

Details

Date and Time: Tuesday 19 November 2024, 5:00pm to 6:00pm (AEDT: GMT+11)*

* ACT, NSW, Tas and Vic; NZ, 7:00pm-8:00pm; SA, 4:30pm-5:30pm; Qld, 4:00pm-5:00pm; NT, 3:30pm-4:30pm; WA, 2:00pm-3:00pm

Online only: Zoom Link

Zoom ID: 879 8362 4800

RSVP: by email to reid.mortensen@usq.edu.au

Anyone is welcome to attend this seminar. There is no cost.

About the Australasian Association of Private International Law

The Australasian Association of Private International Law (AAPrIL) is a group of people committed to furthering the understanding of private international law in Australia, New Zealand and the Pacific region. To lean more, visit our website or follow us on LinkedIn.

The following information has kindly been provided by Anselmo Reyes.

The third Asian Private International Law Academy (APILA) Conference will take place in person at Thammasat University in Bangkok, Thailand on Sunday 8 (Day 1) and Monday 9 (Day 2) December 2024. Persons whose abstracts have been selected (see next paragraph) will deliver oral presentations in turn on Days 1 and 2. Each presentation will run for about 10 minutes and be followed by a discussion of about 10 to 15  minutes in which participants will have the opportunity to comment on a presentation. The APILA Conference will be in the form of two days of roundtable discussions in English. The objective of the APILA Conference is to assist presenters to refine prospective research papers with a view to eventual publication.

Those who are interested in delivering presentations at the APILA Conference are invited to submit abstracts of their proposals in English.  While proposals may be on any topic, they should (1) focus on private international law issues and (2) somehow relate to Asia (broadly defined). Further, while every effort will be made to fit in as many presentations as possible, given the constraints of time, it may not be feasible to accept all proposals.  Inevitably, some selection may be necessary.  APILA apologises in advance for this.  Everything else being equal, priority will be given to proposals exploring cutting edge questions (albeit not necessarily definitively answering them) in one or more of the following areas: (1) international dispute resolution (especially international arbitration and mediation), (2) data protection and data privacy, (3) competition law (including within digital markets), (4) family law (including succession), (5) intellectual property rights, (6) Islamic private international law, (7) environmental issues (including climate change), (8) business and human rights, (9) cryptocurrency and the blockchain, (10) sanctions and counter-sanctions, (11) the economic analysis of private international law rules, and (12) artificial intelligence.

Abstracts are to be submitted by email to reyes.anselmo@gmail.com as soon as possible.  Persons whose abstracts have been accepted will usually be informed a few days after submission of their abstract. The latter are requested to provide their presentations in PowerPoint format or (if the presentation is in the form of a draft paper) in pdf format by email to reyes.anselmo@gmail.com by Saturday 23 November 2024.  All PowerPoints and draft papers received will be circulated in advance electronically among APILA Conference participants.  Participants will thus be able to read into the topics to be discussed in advance of the APILA Conference. Oral presentations can then focus on succinct statements of key takeaways and more time can be allotted to discussion

Please note that APILA’s available funding is limited.  Therefore, in the normal course of events, APILA regrets that it will not be able to provide funding for the travel and accommodation expenses of members (including presenters).

I. Introduction:

In a previous post on this blog, I reported a decision rendered by the Bahrain High Court in which the court refused to enforce a choice of court agreement in favour of English courts. The refusal was based on the grounds that the case was brought against a Bahraini defendant and that rules of international jurisdiction are mandatory. The Bahraini Supreme Court’s decision reported here is a subsequent development on the same case. The ruling is significant for many reasons. In a methodical manner, the Supreme Court identified the foundational justifications for the jurisdictional rules applied in Bahrain. Moreover, it clarified the role and effect of choice of court agreements, particularly their derogative effect. Finally, and somehow surprisingly, the Court supported its position by invoking to “the doctrine of forum non conveniens”, explicitly mentioned in its decision.

The decision is particularly noteworthy, as it positively highlights the openness of Bahraini judges to adopting new legal doctrines previously unfamiliar within the country’s legal framework. This openness likely signals an increasing acceptance of such jurisdictional adjustment mechanisms in legal systems outside the traditional common law or mixed jurisdictions. However, the decision also negatively highlights the challenges of importing foreign doctrines, particularly when such doctrines are applied in contexts where they are not fully integrated or properly understood. These challenges are further exacerbated when the reliance on the foreign legal doctrine appears to be driven by judicial convenience rather than a genuine commitment to the principles underlying the imported legal doctrine.

II. Facts

The facts of the case have been previously reported (see here) and need not to be repeated. It suffices to recall that the dispute involved a breach of a pharmaceutical distribution sales agreements between an English company (the plaintiff) and a Bahraini company (the defendant). Relying on the choice of court agreement included in the contract, the defendant challenged the jurisdiction of Bahraini court.

The court of first instance rejected the challenge on the ground that the jurisdiction of Bahraini courts was justified by the “Bahraini nationality” of the defendant, and the mandatory nature of the Bahraini rules of international jurisdiction (see the summary of the case here).

On appeal, the Court of Appeal overturned the initial ruling on the grounds that Bahraini courts lacked jurisdiction.

Dissatisfied, the English company appealed to the Supreme Court, arguing that, as the defendant was a Bahraini company registered in Bahrain, jurisdiction could not be derogated by agreement due to the public policy nature of the Bahraini jurisdictional rules.

III.  The Ruling

In its decision rendered in the Appeal No. 5/00071/2024/27 of 19 August 2024, the Bahraini Supreme Court admitted the appeal and overturned the appealed decision holding as follows:

“International jurisdiction of Bahraini courts, as regulated in the Civil and Commercial Procedure Act [CCCA] (The Legislative Decree No. 12/1971, Articles 14 to 20) and its amendments, is based on two fundamental principles: the principle of convenience (al-mula’amah) and the principle of party autonomy (‘iradat al-khusum).

Concerning the principle of convenience, Article 14 of the CCCA states that Bahraini courts have jurisdiction over cases filed against non-Bahraini [defendants] who have domicile or residence in Bahrain, except for in rem actions concerning immovable properties located abroad. This is because it is more appropriate (li-mula’amati) for the courts where the immovable is located to hear the case. Similarly, Article 15(2) of the CCCA stipulates that Bahraini courts have jurisdiction over actions involving property located in Bahrain, obligations originated, performed or should have been performed in Bahrain, or bankruptcies opened in Bahrain. This means a contrario that, under the principle of convenience (mabda’ al-mula’amah), the [said] provision excludes [from the jurisdiction of the Bahraini courts] cases where the property is located outside Bahrain, or where the obligations originated in and performed abroad, or was originated and should have been performed abroad, or concerns a bankruptcy opened abroad unless the case involves a cross-border bankruptcy as governed by Law No. 22 of 2018 on Restructuring and Bankruptcy.

Regarding the principle of party autonomy (mabda’ ‘iradat al-khusum), Article 17 of CCCA allows Bahraini courts to adjudicate cases, even when they do not fall within their jurisdiction, if the parties explicitly or implicitly accept their authority. While the law recognizes the parties’ freedom (iradat) to submit (qubul) the jurisdiction of Bahraini courts to hear cases that otherwise do not fall under their jurisdiction, the legislator did not clarify the derogative effect of choice-of-court agreements when the parties agree to exclude the jurisdiction of Bahraini in favor of a foreign court, despite the Bahraini courts having jurisdiction over the case. In addition, the legislator remains silent on the rules for international jurisdiction in cases brought against Bahraini nationals. However, this cannot be interpreted as a refusal by the legislator [of the said rules] nor as an insistence on the jurisdiction of Bahraini court. In fact, the legislature has previously embraced the principle according to which Bahraini courts would decline jurisdiction over cases that otherwise fall under their jurisdiction when parties agree to arbitration, whether in Bahrain or abroad.

Based on the foregoing, nothing in principle prevents the parties from agreeing on the jurisdiction of a [foreign court]. However, if, one of the parties still brings the case before Bahraini courts despite such an agreement, the issue extends beyond merely honoring the agreement to a broader issue dependent solely on how Bahraini courts assess their own jurisdiction. In this case, the parties’ agreement [relied upon] before the Bahraini courts becomes just one factor that the court shall consider when deciding whether or not to decline jurisdiction. The court, in this context, must examine whether there are grounds to decline jurisdiction in favor of a more appropriate foreign [court] in the interest of justice, and the court shall decide accordingly when the said grounds are verified. This principle is known as “The Doctrine of Forum Non Conveniens” (al-mahkamat al-mula’amat).[1] Therefore, if all the conditions necessary for considering the taking of jurisdiction by a foreign court and the rendering justice is more appropriate (al-‘akthar mula’amah) are met, Bahraini courts should decline jurisdiction. Otherwise, the general principles shall apply, i.e. that the taking of jurisdiction shall be upheld, and the courts will proceed with hearing the case.

Accordingly, the Bahraini courts’ acceptance to decline jurisdiction in favor of a foreign court, based on the parties’ agreement and in line with the principle of party autonomy, presupposes that [doing so] would lead to the realization of the principle of convenience (mabda’ al-mula’amah). [This would be the case when] (1) the dispute shall have an international character; (2) there is a more appropriate forum to deal with the dispute [in the sense that] (a) the validity of the choice of court agreement conferring jurisdiction is recognized under the foreign law of the chosen forum; (b) evidence can be collected easily; (c) a genuine connection exists with the state of the chosen forum; and (d) the judgments rendered by the courts of the chosen forum can be enforced therein with ease.[2]

Furthermore, since the jurisdiction of Bahraini courts is based on the consideration that the adjudicatory jurisdiction (al-qadha’) is one of the manifestations of the State’s sovereignty over its territory and that the exercise of this jurisdiction extends to the farthest reach of this sovereignty, it is incumbent [upon the courts] to ensure that declining jurisdiction by Bahraini courts does not infringe upon national sovereignty or public policy in Bahrain. The Assessment of whether all the abovementioned conditions are satisfied falls within the discretion of the courts of merits (mahkamat al-mawdhu’), subject to the control of the Supreme Court.

Given the above, and based on the facts of the case […..], the appellant—an English company—entered into an agreement of distribution and sale in Bahrain for pharmaceutical products [……], supplying the appellee—a Bahraini company—with said products. Seven invoices were issued for the total amount claimed; yet the appellee refused to make payment. [Considering that] Bahrain is the most appropriate forum for the administration of justice in this case – given the facts that appellee’s domicile and its place of business, as well as the place of performance of the obligation are located in Bahrain – the parties’ agreement to submit disputes arising from the contract in question to the jurisdiction of the English courts and to apply English law does not alter this conclusion. It is [therefore] not permissible to argue here in favor of prioritizing party autonomy to justify declining jurisdiction, as party autonomy alone is not sufficient to establish jurisdiction without the fulfillment of the other conditions required by the principle of forum non conveniens (mabda’ mahkamat al-mula’amah).

Considering that the court of the appealed decision [unjustifiably] declined to hear the case on the grounds that it lacked jurisdiction, it violated the law and erred in its application. Therefore, its decision shall be overturned.

IV. Comments

Although the outcome of the case (i.e. the non-enforcement of a derogative choice-of-court agreement) might be somehow predictable given the practice of Bahraini courts as noted in the previous comment on the same case, the reasoning and justifications provided by the Supreme Court are – in many respects – surprising, or even … puzzling.

A comprehensive review of the court’s ruling and its broader theoretical and practical context requires detailed (and lengthy) analyses, which may not be suitable for a blog note format. For this reason, only a brief comment will be provided here without delving too much into details.

1. International Jurisdiction and its Foundation in Bahrain

According to the Supreme Court, the international jurisdiction of Bahraini courts is grounded in two fundamental principles: convenience (al-mula’amah) and party autonomy (‘iradat al-khusum).

Convenience (al-mula’amah), as indicated in the decision, is understood in terms of “proximity”, i.e. the connection between the dispute and Bahrain. This connection is essential for proper administration of justice, and efficiency of enforcing judgments. Considerations of “convenience” are reflected in the Bahraini rules of international jurisdiction as set out in the CCCA. Therefore, when the jurisdiction of Bahraini courts is justified based on these rules, the dispute can be heard in Bahrain; otherwise, the courts should dismiss the case for lack of jurisdiction.

However, Bahraini courts, although originally incompetent, can still assume jurisdiction based on party autonomy (‘iradat al-khusum). Here, the parties’ agreement – whether explicit or tacit – to submit to the authority of Bahraini courts establishes their jurisdiction.

At this level of the decision, it is surprising that the Court did not include the Bahraini nationality of the parties as an additional ground for the jurisdiction of Bahraini Court. While the Supreme Court rightly pointed out that the Bahraini regulation of international jurisdiction does not regulate dispute brought against Bahraini national, and that, unlike many codifications in the MENA region, nationality of the defendant is not explicitly used as a general ground for international jurisdiction, this does not imply that nationality has no role to play in Bahrain. In fact, as explained in the previous post on the same case, Bahraini courts have regularly assumed jurisdiction on the basis of the Bahraini nationality of the parties and have consistently affirmed that “persons holding Bahraini nationality are subject to the jurisdiction of Bahraini courts as a manifestation of the state’s sovereignty over its citizens”. Moreover, Article 16(6) of the CCCA allows for jurisdiction to be taken based on the nationality of the plaintiff in personal status matters, particularly when Bahraini law is applicable to the dispute.

Furthermore, one might question the inclusion of various aspects, such as the connection with Bahrain, administration of justice and efficiency, under the broad and somewhat vague label of “convenience”. In a (more abstract) sense, any rule of international jurisdiction can be justified by considerations of “convenience”. In any event, it worth mentioning here that modern literature offers a multitude of justifications for different rules of international jurisdiction, taking into account various interests at stake, theories of jurisdictions, paradigms, and approaches (for a detailed account, see Ralf Michaels, “Jurisdiction, Foundations” in J. Basedow et al. (eds.) Elgar Encyclopaedia of Private international Law – Vol. 1 (Edward Elgar, 2017) 1042).

2. The Unexpected Reference to Forum Non Conveniens

Once the Court identified the foundational bases of the Bahraini courts’ jurisdiction, it engaged in a somewhat confusing discussion regarding the circumstances under which it might decline jurisdiction.

It is important to recall that the legal question before the court pertains to the effect of a choice-of-court agreement in favor of a foreign court. In other words, the issue at hand is whether such agreement can exert its derogative effect, allowing Bahraini courts to refrain from exercising jurisdiction.

Traditionally, Bahraini courts have addressed similar issues by asserting that the rules of international jurisdiction in Bahrain are mandatory and cannot be derogated from by agreement (as noted in the previous comment on the same case here). However, in this instance, the Court veered off in its analysis. Indeed, the Court (unexpectedly) shifted from the straightforward issue of admissibility of the derogative effect of choice-of-court agreements to the broader question of whether to decline jurisdiction, ultimately leading to a discussion of……forum non conveniens!

The Court’s approach leaves an unsettling impression. This is because the ground of appeal was not framed in terms of forum non conveniens. Indeed, the appellant did not argue that the choice-of-court agreement should not be enforced because the chosen court was inappropriate or because Bahraini courts were forum conveniens. Instead, the appellant merely referred to the mandatory nature of the jurisdictional rules in Bahrain, which cannot be derogated from by agreement, irrespective of any consideration regarding which court is clearly more appropriate to hear the case.

This impression is further strengthened by the manner with which the Court addressed the issue it raised itself. Indeed, after setting out the test for declining jurisdiction on the basis of forum non conveniens (but, in fact, primarily concern more the conditions for the validity of a choice-of-court agreement), the Court failed to examine and apply the very same tests it established. Instead, the Court concluded that Bahraini courts were forum conveniens simply because they had jurisdiction on the grounds that the defendant was a Bahraini company registered in Bahrain, had its domicile (principal place of business) there, and that Bahrain was the place of performance of the sale and distribution obligations.

However, upon a closer examination at the fact of the case, one can hardly agree with the Court’s approach. On the contrary, all the reported facts indicate that the requirements set forth by the Court were met: (1) the international nature of the dispute is beyond any doubt; (2) English courts are clearly appropriate to hear the case as (a) the choice-of-court agreement in favor to English court is undoubtedly valid under English law; (b) it is unlikely that the case would raise any concerns regarding the collection of evidence (since one of the parties is an English company, one can expect that parts of the evidence regarding the transaction, payment, invoices etc. would be in English, and to be found in England); (c) there is no doubt about the genuine connection with England, as one of the parties is an English company established in England, and parts of the transactions are connected with England. Also, it is unclear how a choice-of-court agreement in this case would violate the sovereignty of Bahrain, as there is nothing in the case to suggest any public policy concerns.

The only potential issue might pertain to the enforceability of the future judgment in England (point (d) above) as there is a possibility that the appellee may have no assets to satisfy the future judgment in England. This might explain why the appellant decided to bring in Bahrain in violation of the choice-of-court. However, such concern can be mitigated by considering the likelihood of enforcing the English judgment in Bahrain, as it would meet the Bahraini enforcement requirements (articles 16-18 of Law on Execution in Civil and Commercial Matters [Legislative Decree No22/2021]).

V. Concluding Remarks

This is not the only case in which challenges to choice-of-court agreements in favor of a foreign court are framed in terms of forum non conveniens in Bahrain (see e.g., the Bahrain Chamber of Dispute Resolution, Case No. 09/2022 of 17 October 2022). However, to my knowledge, this is the first Supreme Court decision where explicit reference is made to “the doctrine of forum non conveniens” (with the terms cited in English).

In the case under discussion, there is a concern that the Court seems to have conflated two related yet distinct matters: the power of the court to decline jurisdiction on the ground of forum non conveniens, and the court’s authority to decline jurisdiction on the basis of the parties’ agreement to confer jurisdiction to a particular court (cf., R. Fentiman, “Forum non conveniens” in Basedaw et al., op. cit. 799). In this regard, it is true that in common law jurisdictions the doctrine of forum non conveniens is generally recognized as a valid defense against the enforcement of choice-of-court agreements (see J.J. Fawcett, “General Report” in J.J. Fawcett (ed.), Declining Jurisdiction in Private International Law (Oxford University Press, 1995) 54). However, it also generally admitted that the respect of the parties’ choice should not be easily disregarded, and courts should only intervene in exceptional circumstances where there is a clear and compelling reasons to do so (see, Fentiman, op. cit., 799). Such compelling reasons, however, are clearly absent in the present case.

Moreover, the way with which the Supreme Court framed the issue of foreign non conveniens inevitably raises several intricate questions: would the doctrine apply with respect to the agreement’s prorogative effect conferring jurisdiction to Bahraini courts? Would it operate in the absence of any choice-of-court agreement? Can it be raised in the context of parallel proceeding (lis pendens)? Would it operate in family law disputes, etc.?

In my opinion, the answers to such questions are very likely to be in the negative. This is primarily because Bahraini courts, including the Supreme Court, have traditionally and consistently regarded their jurisdiction as a matter of public policy, given the emphasis they usually place on judicial jurisdiction as a manifestation of the sovereignty of the State which, when established, cannot be set aside or diminished. Such conception of international jurisdiction leaves little room to discretionary assessment by the court to evaluate elements of forum non conveniens, ultimately leading them to decline jurisdiction even when their jurisdiction is justified.

——————————————-

[1] English terms in the original text. The Arabic equivalent can be better translated as “forum conveniens” rather than “forum non conveniens”.

[2] Numbers and letters added.

By Ananya Bhargava, Jindal Global Law School, OP Jindal Global University, India.

Recently, the Delhi High Court in the case of Honasa Consumer Limited v RSM General Trading LLC granted an anti-enforcement injunction against the execution proceedings instituted in the Dubai Court on the ground that it threatened the arbitral process in India. The Court deemed the proceedings before the Dubai Court as an attempt to frustrate a possible arbitration envisaged by the contract between the parties.  The injunction was granted under S.9 of the Indian Arbitration and Conciliation Act 1996 as an “interim measure.”  This is a significant turning point in the intersection of arbitration and cross-border litigation in India since the remedy of anti-enforcement injunction is rarely granted by judicial authorities across jurisdictions.

Interestingly, in 2021, the same bench of the Delhi High Court granted the first-ever anti-enforcement injunction in India in Interdigital Technology Corporation v. Xiaomi Corporation. Here, the court defined anti-enforcement injunctions as injunctions where a court injuncts one of the parties before it from enforcing against the other a decree or order passed by a foreign court. Thus, the remedy of anti-enforcement injunctions is triggered when a foreign proceeding has already run its course and resulted in an unfavourable judgment. It is a remedy restraining the enforcement of a decree that is in an inconvenient forum or is in breach of the parties’ contractual agreement.

By its very definition, an anti-enforcement injunction appears to be a more aggressive and exceptional form of relief. Thus, courts have traditionally been cautious in granting such injunctions, given the potential implications on international comity and judicial restraint. However, the Delhi High Court’s decision to grant one in this case marks an interesting departure from this reluctance. This article delves into the rationale behind Delhi High Court’s judgment in this case and explores its implications on cross-border litigation in India.

Brief facts:

The fulcrum of the dispute concerned an Authorized Distributorship Agreement (ADA) between Honasa Consumer Limited (petitioners) and RSM General Trading LLC (respondents). The ADA included an Arbitration clause with New Delhi as the venue of arbitration and the Arbitration and Conciliation Act, 1996 declared as the governing law.  The ADA also conferred exclusive jurisdiction on the courts of New Delhi for matters arising from the contract. Despite these provisions, the respondents filed a suit in the Court of First Instance in Dubai, which ruled against the petitioners and imposed damages. The petitioners challenged this decree in the Dubai Courts of Appeal.

While the appeal was pending, the petitioner approached the Delhi High Court under S.9 of the Arbitration and Conciliation Act and sought an injunction against the respondents from enforcing the Dubai Court’s decree. The petitioners argued that the respondent’s actions in filing the Dubai Suit was oppressive and vexatious in nature and it attempted to subvert the contractual clauses agreed upon by both the parties. The respondents, on the other hand, argued that the court’s power to grant interim reliefs under S.9 of ACA does not encompass the power to grant an anti-enforcement injunction against a foreign court’s decree.

Delhi High Court’s Ruling:

Based on the following contentions, the Court held that the power to grant “anti-enforcement” or anti-suit injunction would also be encompassed in the power to grant interim measures. The judgment was predicated on a liberal understanding of S.9 of Arbitration and Conciliation Act, where the court owing to the legally abusive nature of the foreign proceedings, deemed it to be “just and convenient” to pass an injunction against the respondents from enforcing the Dubai Court’s decree against the petitioners.

The court arrived at this conclusion through a comprehensive analysis of three broad legal principles. First, the court analyzed the threshold of granting anti-enforcement injunctions in other jurisdictions. Second, the court considered the scope of S.9 of Arbitration and Conciliation Act, that provides for interim reliefs. Finally, the principle of international comity was discussed in detail by the court. These are discussed briefly below.

• Court’s analysis of international jurisprudence:

In the absence of established precedent on anti-enforcement injunctions in India, the Delhi High Court analysed cases from various jurisdictions to shape its approach. The principles outlined in these cases manifest the overall outlook of courts across jurisdictions on anti-enforcement injunctions. While some courts have taken a liberal approach, other jurisdictions are wary of the sheer magnitude of the injunction in rendering the foreign judgment almost redundant.

In England, the Court of Appeal in SAS Institute Inc v World Programming Ltd adopted a more liberal view, focusing on the principles of justice and comity rather than imposing a high threshold of “exceptionality in granting such injunctions.” The court held that an anti-enforcement injunction has developed incrementally from the same underlying principles as the anti-suit injunction. Thus, the court did not distinguish between anti-suit and anti-enforcement injunctions based on the degree of exceptionality. Instead, it lowered the threshold for the latter, placing both on the same level.

Conversely, the Singapore Court of Appeals (SCA) in Sun Travels & Tours Pvt Ltd v. Hilton International Manage (Maldives) Pvt Ltd., emphasized on the difference between anti-suit and anti-enforcement injunctions and held that a “greater degree of caution” should be exercised by courts while considering an anti-enforcement application.  The court reasoned this on the ground that, “an AEI proscribes the enforcement of foreign, granting an anti-enforcement injunction is comparable to nullifying the foreign judgment or stripping the judgment of any legal effect when only the foreign court can set aside or vary its own judgment.” The SCA was cognizant of the legally aggressive nature of anti-enforcement injunctions and therefore incorporated the threshold of “exceptionality” while dealing with such applications.

The Delhi High court on the other hand, deviated from the approach taken by SCA in Sun Travels and subscribed to a more liberal understanding similar to the English Courts. The court while endorsing its holding in Interdigital Technology Corporation v. Xiaomi Corporation held that “where a court in rendering of “justice” requires an anti-enforcement injunction to be issued, then it should not hold back its hands on some perceived notion of lack of “exceptionality” in the case.” By doing so, the court significantly lowered the threshold for granting anti-enforcement injunctions in India and held that rarity and exceptionality need not necessarily be a deciding factor for granting such injunctions.

• On the scope of S.9 of Arbitration and Conciliation Act:

On the scope of S.9 of Arbitration and Conciliation Act, the court held that that the scope of S.9 is wide and compendious. It stated that although the section appears exhaustive in nature as it enumerates the matters in which interim relief can be granted, clause (e) of S.9(1)(ii) provided the courts with the discretionary power to grant any such interim measure that is “just and convenient.”. The court while reiterating established principles on interim measures held that while granting an injunction under S.9 of ACA, all the court has to see is whether  the applicant for interim measure has a good prima facie case, whether the balance of convenience is in favour of  interim relief as prayed for being granted and whether the applicant  has approached the court with reasonable expedition.  If these requirements are fulfilled, the court stated that it is within its power to grant the requisite interim relief in the form of an injunction. In this case, the Dubai court decree was held to be oppressive and vexatious, as a result, the court granted the anti-enforcement injunction as an interim relief.

Further, the court made an interesting observation with regards to S.9 of Arbitration and Conciliation Act. In response to the respondents citing S.44 of UK Arbitration Act as a defence, the court held that S.9 of ACA combines S.44 of UK Arbitration Act and S.37 of the Senior Courts Act. S.44 of the UK Act empowers the court to pass orders in support of the Arbitral Proceedings. The court noted that the section did not contain any “just and convenient” clause similar to S.9(1)(ii)(e) of Indian ACA. Whereas S.37 of the Senior Courts Act did contain a provision that allows the courts to pass interlocutory orders as is “just and convenient.” Ultimately the court concluded that S.9 of ACA does give powers to the courts to intervene in foreign proceedings where it is in the interest of justice.

• On the issue of international comity:

Lastly, on the issue of comity of Courts, the court held that “the principle of comity of courts can have no application where a foreign Court is manifestly acting in excess of jurisdiction.” Here, the respondent in manifest disregard of  the arbitration agreement contractually agreed upon by the parties, instituted a suit in the Dubai Court against the exclusive choice of Delhi High Court as the seat court. In this regard, the court held that the principle of comity of courts is not, jurisprudentially, a bar to grant of anti-suit or anti-enforcement injunction, where the facts of the case justify such grant.

Further, while disregarding the principle of comity in this case, the court buttressed on the principle of contractual supremacy and the need to hold parties accountable to their contractual commitments. It stated that adherence to contractual  covenants, voluntarily executed ad idem, is the very life breath of commerce. Ultimately it concluded that the defence of comity cannot be pleaded by the respondents in this case since the decree of the Dubai court was coram non judice as per the contractual covenants.

Implications of the court’s analysis :

The protection of contractual rights stands out as one of the most important themes in the Court’s approach to grant anti-enforcement injunction in the present case. In this regard, the judgment has some positive implications.

For instance, while disregarding the application of international comity in this case, the court upheld the exclusive jurisdiction clause between the parties and equated it to the negative covenant in the agreement. This effectively means that judgments from non-chosen jurisdictions would be in prima facie breach of such contractual clauses and would not be enforced ideally. This is in line with the common law approach to private international law that thrives on such contractual agreements.

This is a refreshing approach considering the fact that Indian courts have in the past disregarded the choice of law agreements to impute the law of the lex fori. Just a year ago in TransAsia Private Capital vs Gaurav Dhawan, the Delhi High Court had recorded that Indian courts are not required to automatically apply the chosen governing law to the dispute unless the parties introduce expert evidence to that effect. The present judgment in this regard is a positive deviation from the standard “default rule” applied by Indian Courts. A logical corollary to the court’s emphasis on contractual supremacy and protection of the exclusive jurisdiction clause is also the respect for parties choice of governing law. In the present case Dubai Court’s application of Dubai Law was seen as a violation of the contract which stipulated Arbitration and Conciliation Act as the governing statute. The precedential implication of this is that Indian courts can now move away from the default rule and respect the principles of party autonomy which is grounded on the principle of contractual supremacy. Thus, the court rightfully asserted the principle of contractual supremacy while granting an anti-enforcement injunction.

That said, the court’s attempt in lowering the threshold for anti-enforcement injunction to the same level as anti-suit injunctions may lead to uncertainty regarding its precedential value for other jurisdictions. In this regard, the judgment does suffer from certain deficiencies. First, setting a low standard for such injunctions can run the risk of courts frequently granting injunctions against foreign judgments in breach of international comity. Dispensing with the requirement of “exceptionality” in cases of anti-enforcement injunctions is dangerous in India, especially when the law on exclusive choice of court agreements is still at its nascent stage. In the past, Indian courts have wrongfully granted anti-suit injunctions despite there being an exclusive choice of court clause between the parties. Reducing the threshold for anti-enforcement injunctions to the same level would pose similar risks, with courts completely disregarding the rule of comity as has been done in cases granting anti-suit injunctions.

It was imperative for the court to appreciate the difference between anti-suit and anti-enforcement injunctions. The difference between an anti-suit injunction and an anti-enforcement injunction is not one of material but of degree. There is a spectrum. This is manifested in the fact that injuncting a party from executing a foreign judgment in a foreign court is a greater interference than injuncting a party from initiating foreign proceedings that are still at an early stage. In the present case, the petitioners could have sought an anti-suit injunction while the respondents initiated a suit in the Dubai Court, rather than waiting for the court to finish proceedings and deliver its judgment. As argued by scholars, the earlier an injunction is sought, the less damage is done to international comity, since there is significant wastage of resources of the foreign court in cases of anti-enforcement injunctions.

Thus, keeping the threshold for an anti-enforcement injunction the same as an anti-suit injunction creates significant risks. Indian courts should instead adhere to the high-threshold approach taken by the SCA in Sun Travels while granting an anti-enforcement injunction and relegate it to “exceptional cases” where the defendants are in clear breach of their contractual obligations, as in the present case.

Second, the court’s remark on the difference between S.9 of ACA and S.44 of the UK Arbitration Act is a crucial observation. Even though the UNCITRAL Model Law on International Commercial Arbitration (on which the Indian ACA is based) under Article 9 provides for interim measures, it does not elucidate the nature of such measures or the situations where they can be granted. The inclusion of the “just and convenient” clause in S.9 gives Indian courts an extra degree of discretion that is not contemplated in other jurisdictions. In the UK, the discretionary power of the court to grant interim measures when it is “just and convenient” does not flow from the UK Arbitration Act, but rather from the Senior Courts Act, which is used exceptionally. In India, this power is enunciated in the ACA itself. This distinction is important since it highlights the degree of judicial intervention envisaged by Indian and UK legislation. Ordinarily, S.151 of the CPC does provide the requisite power to the courts to grant remedies in the interest of justice. The specific inclusion of the “just and convenient” clause within the ACA risks a higher degree of judicial intervention in arbitration. Furthermore, incorporating the power to grant an anti-enforcement injunction within the clause can set a dangerous precedent.

More prominently, without delineating specific considerations as to when such injunctions can be granted and by simultaneously reducing the threshold of rarity in granting such injunctions, the court has normalized a higher degree of judicial intervention in cases of transnational litigation. Here, although the court rightly passed an anti-enforcement injunction, it sourced its legality from S.9(1)(ii)(e) as being “just and convenient,” rather than acknowledging the exceptionality of the present case and limiting such injunctions to rare circumstances. The court completely failed to recognize  the risks of lowering the threshold for granting such injunctions especially in India where excessive judicial intervention has been the biggest impediment to the development of transnational litigation.

The concerns raised above become more prominent considering  the absence of a specific legal framework governing the grant of such injunctions. The court’s move to lower the threshold could significantly impact decisions in other jurisdictions, given the lack of a uniform procedural law on this issue. To further contextualize this concern, I will briefly discuss the international framework—or rather, the lack thereof surrounding anti-enforcement injunctions and the concerns that arise due to this legal lacunae.

Which law governs Anti-Enforcement Injunctions?

There is no explicit domestic or international procedural framework that gives the court the power to grant such injunctions. S.9 of the Arbitration and Conciliation Act adopts Article 9 of the UNCITRAL Model Law on International Commercial Arbitration (Model Law) that allows courts to grant interim measures at the request of a party. The Model Law does not provide for an express provision authorising the grant of an anti-enforcement injunction in aid of arbitration.

In the absence of such express provision, the question that arises here is  “whether the scope of Article 9 is broad enough to encompass the power to grant anti-enforcement injunctions?” At this juncture, there seems to be no definitive answer to this.  Whether Article 9 is broad enough to restrain enforcement of a foreign court decree in aid of arbitration is a matter of conjecture. Model Law’s silence with respect to this has already lead to inconsistent judgments in domestic courts of States that have adopted it, as demonstrated by jurisprudence in Singapore and India. Thus, the need to incorporate a procedural framework with respect to such injunctions becomes important.

Another concern that arises is the potential conflict between anti-enforcement injunctions and laws related to recognition and enforcement of foreign judgments.  Earlier in this blog, the US Court of Appeal for the Second Circuit’s decision on anti-enforcement injunction was discussed. The court here held that the Recognition Act of the US does not allow pre-emptive anti-enforcement injunctions and the court granting such injunctions are in overreach of their powers. The court reasoned this on the ground that anti-enforcement injunctions preclude the normal operation of New York’s Laws on recognition and enforcement of foreign judgment. A party can challenge such judgments at the Enforcement stage according to the laws of the enforcing court but cannot sought an injunction against a party to initiate such enforcement proceedings altogether.  The respondents in this case gave a similar argument on S.13 of CPC which deals with executability of foreign judgments in India. They argued that the court cannot grant “pre-emptive” Injunction against enforcement as the same will be against S.13 of CPC.

The Hague Convention of the Recognition and Enforcement of Foreign Judgments does not contemplate the pre-emptive restrain against the enforcement of a judgment either.  Article 7(1)(d) of the Convention states that recognition and enforcement of a judgment maybe refused if the proceedings were contrary to an Agreement. Thus, although the remedy of refusal of enforcement is available, both domestic and international law is silent on an anti-enforcement injunction as a pre-emptive relief. Unlike the US courts that explicitly disallowed the power to grant anti-enforcement injunctions, the Delhi High Court in this case rooted it in S.9 of Arbitration and Conciliation act as an interim relief. Thus, without any international legal standard, domestic courts are free to interpret the legality of anti-enforcement injunctions in their jurisdictions. While a complete bar on courts to grant anti-enforcement injunction is not the correct approach, a liberal approach in granting it is dangerous as well. Presently, such injunctions can only be incorporated as an interim relief. This significantly lowers the exceptionality threshold. Anti-enforcement injunctions are inherently hostile and aggressive in nature, thus there is a need for an international procedural framework to address such injunctions.

Conclusion:

While the judgment provides much-needed protection of contractual rights, it falls short of addressing the existing lacuna in the law. The court could have taken this opportunity to delineate specific guidelines for granting such injunctions, granted since this was only the second instance when it was granted in India. By failing to do so, the reduced threshold for granting anti-enforcement injunctions becomes even more dangerous. The present case fits into the rare and exceptional category as the respondents were in clear breach of the contract. Thus, the courts attempt in lowering the threshold for granting anti-enforcement injunctions was not needed. Anti-enforcement injunctions raise serious concerns of comity and they interfere significantly with foreign legal systems. It is therefore necessary to determine the relevant factors that necessitate the grant of an anti-enforcement injunction.

The court’s approach in this case highlights the need for clearer guidelines. A more defined framework for when and how anti-enforcement injunctions can be granted will help ensure that domestic courts adhere to certain standards set by the Model Law. The current silence of the Model Law on such injunctions is causing a patchwork of interpretations across different jurisdictions, leading to uncertainty and inconsistency. Establishing clear international standards would help courts manage these complex legal issues more effectively, paving the way for more predictable decisions in the future.

The first issue of 2024 of Giustizia consensuale (published by Editoriale Scientifica) has just been released, and it features:

Paolo Comoglio (Associate Professor at the University of Genoa), Giustizia forzata. Lo strano caso dell’offer to settle in Cassazione nel nuovo art. 380 bis c.p.c. (Forced Justice. The Strange Case of the Offer to Settle before the Court of Cassation pursuant to the New Article 380-bis of the Italian Code of Civil Procedure; in Italian).

This article examines the accelerated definition procedure for Cassation appeals pursuant to Article 380-bis of the Italian Code of Civil Procedure, as amended by the ‘Cartabia reform’. Beginning with an analysis of case law, the article critically explores the main questions of unconstitutionality surrounding Article 380-bis and the uncertainties that this peculiar procedural device poses.

Paola Licci (Researcher at the Università di Roma Tor Vergata), La centralità della giustizia consensuale nelle controversie di lavoro (The Centrality of Consensual Justice in Labor Disputes; in Italian)

This article examines the evolution of consensual justice in labor matters, beginning with the first form of conciliation provided by the law on probiviral tribunal and ending with the assisted negotiation introduced in labor disputes by the ‘Cartabia reform’. The analysis of these institutions reveals that consensual justice plays a fundamental role in resolving labor disputes, both due to the nature of the litigation and the inability of the justice system to offer effective (and differentiated) protection swiftly.

Observatory on Legislation and Regulations

Federico Ferraris (Associate Professor at the Università degli Studi di Milano-Bicocca), Il regolamento di procedura e le spese di mediazione secondo il nuovo d.m. n. 150 del 2023 (ovvero come rendere sovrabbondante ciò che avrebbe dovuto rimanere essenziale, comprensibile e contenuto) (The Rules of Procedure and mediation costs under the new Ministerial Decree No 150 of 2023 (i.e. how to make superabundant what should have remained essential, understandable and contained); in Italian)

This article focuses on parts of Ministerial Decree No 150/2023, which repealed Ministerial Decree No 180/2010 (which, in turn, implemented Legislative Decree No 28/2010). In particular, it takes into consideration, on the one hand, the rules of procedure, which every mediation body must be equipped with, and, on the other hand, of the mediation fees, amended to take into account the nature of the first mediation session under the new rules, which has become ‘effective’ (as opposed to merely ‘informative’). The article aims to emphasise the complexity – if not the unreasonableness of some provisions – in the face of a procedure, the mediation, that should instead remain by definition flexible and adaptable.

Observatory on Jurisprudence            

Elena Zucconi Galli Fonseca (Professor at the University of Bologna), Mediazione e nuove domande (Mediation and New Claims; in Italian)

This article addresses the complex issue of whether mediation is a prerequisite for newly introduced claims within ongoing legal proceedings. The discussion begins with a landmark decision by the Plenary of the Italian Supreme Court, which ruled that counterclaims are not subject to mandatory mediation. This decision hinges on the principles of judicial economy, legal certainty, and the reasonable duration of legal processes. The article critiques the Court’s narrow view of mediation as merely a tool for reducing judicial caseloads, arguing instead for a more positive perspective on mediation as a valuable means for dispute resolution. It suggests that mandatory mediation should be understood as a mechanism to foster a culture of mediation rather than merely a procedural hurdle. The author advocates for a uniform approach to mediation obligations across different types of disputes and concludes by emphasizing the importance of court-ordered mediation in cases where counterclaims or third-party interventions open a new perspective for dispute resolution.

Angela M. Felicetti (Research Fellow at the University of Bologna), ADR per ordine del giudice nella common law inglese. I nuovi orizzonti aperti da Churchill v. Merthyr Tydfil (ADR by Court Order in English Common Law. The New Horizons Opened by Churchill v. Merthyr Tydfil; in Italian)

This comment explores the relationship between civil litigation and ADR in the United Kingdom, focusing on the evolution of court-ordered ADR. The discussion begins with an examination of the landmark decision Halsey v. Milton Keynes General NHS Trust and its impact on subsequent common law, particularly in shaping judicial attitudes towards ADR. The analysis then delves into the development of court-mandated mediation post-2004, highlighting significant changes and trends. Finally, a detailed review of the 2023 Churchill v. Merthyr Tydfil judgment exemplifies the new direction in ADR practices in England and Wales, indicating a shift in judicial perspectives and procedural approaches.

Observatory on Practices

Tony N. Leung (Magistrate Judge, District of Minnesota),  Finding the Intersection of Self-Interests. One Judge’s Mediation Objective, Approaches Using Science and Art, and for Settling Civil Lawsuits

This article focuses on how to conduct mediations to resolve American civil lawsuits. Mediators must know position-based and interest-based approaches to negotiation and move insouciantly between them to find the parties’ intersection of self-interests to resolve cases. A modality exists to settlement that requires knowing when to mediate, deciding on a place, preparing in advance, and deciding on the manner to conduct the mediation. The mediation modality also has structured sections: a start inspiring parties that settlement is attainable; a middle with the mediator moving from room to room while utilizing the essential skills of listening, observing, conveying empathy, and building trust, rapport, and respect; and a closing that may require the mediator to break impasse by using certain settlement tools and reminding the parties that the alternatives to settlement have unavoidable costs and risks that are worse alternatives to settlement.

Pierfrancesco C. Fasano (Director of Mediation Centre and Scientific Director of the Academy for Qualifying Mediators), The Elephant, the Forest, and the Pudding. Understanding the Patent  Mediation and Arbitration Centre (PMAC) of the Unified Patent Court (UPC)

This paper, using the narrative technique of metaphors, traces the institution, future operation, possible technical advantages, and potential of the Patent Mediation and Arbitration Centre of the Unified Patent Court. The regulatory framework, though fragmented and evolving, has led the first interpreters and commentators to provide doubtful or skeptical readings on the uniqueness and ability of this institution to act as a model. The conclusions reached by the author are more optimistic because they are orientated towards systematic and functional interpretation, starting from the originality of the organisational structure of the Centre, challenging cognitive biases, which sometimes frustrate the world of consensual justice.

Conference Proceedings

Silvana Dalla Bontà (Professor at the University of Trento), La cura delle parole. Sinteticità e chiarezza nel dialogo processuale e nella giustizia consensuale (The Care of Words. Clarity and Conciseness in Civil Litigation and Alternative Dispute Resolution Mechanisms; in Italian)

This article draws on the introductory remarks delivered at the Seminar ‘The care of words. Clarity and conciseness in civil litigation and alternative dispute resolution mechanisms’, held at the University of Trento on 5 December 2023. After analysing the recent codification of the principle of clarity and conciseness in the drafting of pleadings pursuant to the Italian Code of Civil Procedure (Art. 121) and its implementation in the Ministry of Justice Decree No 130/2023, the author inquires whether this principle can be applied to arbitration proceedings and consensual dispute resolution mechanisms such as negotiation and mediation. While acknowledging the difficulty of striking the right balance between clarity and conciseness, the article argues that the real solution of this dilemma would be to focus not on the length requirements of the pleading but on the accurate use of the words in conveying the party’s point of view. This means investing in a new culture that promotes conscious and mindful communication as a decisive means to serve justice and strengthen a cohesive society.

Marco Gradi (Professor at the University of Messina), Il processo come dialogo (The Judicial Process as a Dialogue; in Italian)

Drawing on the speech delivered at the Conference ‘The care of words. Clarity and conciseness in civil litigation and alternative dispute resolution mechanisms’, held at the University of Trento on 5 December 2023, the essay deals with the form of the procedural dialogue between the parties from an ethical perspective. The judicial process is a dialogue between the litigants, which requires a fair exchange on the disputed issues, according to a principle of cooperation. Based on this premise, the author examines the question of the length and conciseness of procedural acts, the art of eloquence and the elegance of speech, and the relationship between truth and clarity of the parties’ statements.

Maria C. Erlicher (formerly President of the First Division (Civil) of the Bolzano Tribunal), Il processo bilingue italiano-tedesco. La cura delle parole tra garanzie e sfide (The Bilingual Italian-German Process. The Care of Words Between Guarantees and Challenges; in Italian)

Drawing on the speech delivered at the Conference ‘The care of words. Clarity and conciseness in civil litigation and alternative dispute resolution mechanisms’, held at the University of Trento on 5 December 2023, the article provides an overview of the use of Italian and German in the judicial offices of the Autonomous Province of Bolzano – South Tyrol, with a focus on the bilingual Italian-German civil trial. Particular attention is paid to the difficulties that the application of the principles of clarity and conciseness set forth in the ‘Cartabia reform’ may encounter in the context of the bilingual Italian-German trial and the practices adopted to date to make the management of court proceeding more efficient. The aim is to highlight the importance of careful wording on the part of all legal practitioners in the judicial offices of the Autonomous Province of Bolzano – South Tyrol in order to avoid misunderstandings both in the procedural dialogue, particularly in the bilingual Italian-German trial, and in the context of consensual justice, where language is an essential tool to ensure a proper understanding.

Elena Gabellini (Researcher at the University of Bologna), La cura delle parole nella dimensione arbitrale: tra libertà e vincoli (The Care of Words in Arbitration: Between Freedom and Constraints; in Italian)

Drawing on the speech delivered at the Conference ‘The care of words. Clarity and conciseness in civil litigation and alternative dispute resolution mechanisms’, held at the University of Trento on 5 December 2023, the article analyses how written and spoken language, which are elements constituting the minimal framework of each trial, are applied in the arbitration. After a brief overview of the features of arbitration proceeding, the study focuses on the significance of dialogue within this procedural framework. In this way, it will be possible to define the actual application of the principles of conciseness and clarity of procedural acts, which have been recently incorporated embedded into the civil trial, within the framework of arbitration.

Silvana Dalla Bontà (Professor at the University of Trento), La cura delle parole tra processo e metodi consensuali. Per una gestione responsabile del conflitto (The Care of Words Between Process and Consensual Methods. For a Responsible Management of the Dispute; in Italian)

Drawing on the speech delivered at the Seminar ‘The care of words. Clarity and conciseness in civil litigation and alternative dispute resolution mechanisms’, held at the University of Trento on 5 December 2023, the article explores the crucial role of ‘the care of words’ in diffusing conflict, rebuilding trust, and generating creative solutions. To this end, lawyers can play a pivotal role in encouraging conflicting parties to adopt a cooperative and non-adversarial approach to conflict resolution. In this respect, client interviews represent a unique opportunity for lawyers to empower parties, explore their interests, and assess the best way to deal with their problems. Effective communication, appropriate questions, active listening, and constructive feedback are some of the tools lawyers can use to foster a collaborative approach to problem resolution. This ‘new’ lawyer will be the best promoter of a ‘new’ justice which, by integrating judicial and non-judicial dispute resolution mechanisms, will foster social cohesion and preserve the judicial function for disputes that truly require the intervention of a third-party decision.

Finally, this issue features the following Book Reviews:

A book review by Silvana Dalla Bontà (University of Trento): Giuseppe RUFFINI (a cura di), Diritto processuale civile, vol. I, La giustizia civile, il Mulino, Bologna, 2023, 1-549; vol. II, La giustizia consensuale e il processo di cognizione, il Mulino, Bologna, 2024, 1-506.

A book review by Jachin Van Doninck (Vrije Universiteit Brussel): Anna NYLUND and Antonio CABRAL (eds.), Contractualisation of Civil Litigation – Contractualisation de la Procédure Civile, Cambridge, Intersentia, 2023, i-xv, 1-517.

A book review by Marco Buzzoni (Luxembourg Center for European Law, University of Luxembourg): Katia FACH GÓMEZ, The Technological Competence of Arbitrators: A Comparative and International Legal Study, European Yearbook of International Economic Law (Special Issue), Springer Nature, 2023, vii-xiv, 1-172.

• Claudia Madrid Martínez, “General Institutions of Private International Law in IADIP’s Draft General Act on Private International Law”. This article examines the fundamental institutions of Private International Law essential for resolving conflicts of laws and applying foreign laws. It focuses on Chapter II of the IADIP Draft, providing solutions based on the Inter-American Convention ratified by Colombia.
• Ennio Piovesani, “Article 4 PGLPIL on Internationally Mandatory Provisions”. A brief commentary on Article 4 of the IADIP Draft, addressing the category of internationally mandatory provisions.
• María Julia Ochoa Jiménez, “Rights of Indigenous Peoples and Communities”. This article explores how Colombian private international law, traditionally emphasizing territoriality, has often overlooked the legal diversity of indigenous peoples and their internationally recognized rights. The IADIP Draft aims to align Colombian law with legal pluralism to better recognize these differentiated rights.
• Margherita Salvadori, “General Overview on the PGLPIL’s Rules on Choice-of-Court Agreements and on their Importance for the Colombian Legal System”. Discusses the lack of specific regulations on choice-of-court agreements in Colombia, the role of the rules of the IADIP Draft, and the proposed rules on lis pendens. The article concludes that adopting the 2005 Hague Convention would benefit international trade in Colombia.
• José Luis Marín Fuentes, “The Recognition of International Judicial Decisions in the Draft Act on Private International Law for Colombia”. Examines the recognition of foreign judicial, administrative, and arbitral decisions in Colombia, highlighting the need for urgent reform.
• María Julia Ochoa Jiménez, “Property Law”. Critiques Article 20 of Colombia’s Civil Code, noting its outdated terms and confusing language and highlights how the IADIP Draft seeks to clarify and update regulations to better reflect recent developments in property law.
• Claudia Madrid Martínez, “Law Applicable to International Contracts”. Highlights the inadequacy of Colombian Private International Law concerning international contracts, while stressing how the IADIP Draft aims to address these gaps, especially given that Colombia has not ratified the Inter-American Convention on Law Applicable to International Contracts.
• Margie-Lys Jaime, “International Arbitration in Colombia”. Reviews Colombia’s role in international arbitration conventions and its 2012 Law 1563, discussing the regulation of international commercial arbitration, enforcement challenges, and Colombia’s experience with investor-state dispute settlement (ISDS).
• Gilbert Boutin Icaza, “Comparative Law between Panama and Colombia regarding Private International Law Companies under the Code of Private International Law of Panama and The Project of Private International Law in Colombia”. Compares conflict of law systems in Panama and Colombia, focusing on the criteria for determining the nationality of companies and the implications of re-domiciliation for tax and commercial purposes.
• Nestor Raul Londoño Sepulveda & Melissa Palacio Maldonado, “A Hypothesis About the Application of the Montevideo Treaties of 1889 in Colombia”. Discusses Colombia’s reliance on outdated international agreements and the need for a coherent Private International Law system, and highlights the frequent disregard and misapplication of these treaties.
• Finally, the book features an English translation of the IADIP Draft.

By Birgit van Houtert, Assistant Professor of Private International Law at Maastricht University

From 29 July till 16 Augustus 2024, the Summer Courses on Private International Law (PIL) were held at the 93rd session of the summer courses of the Hague Academy of International Law. The PIL courses were followed by 250 onsite attendees and remotely 61 attendees from 74 different countries. The inaugural lecture was presented by Lord Lawrence Collins of Mapesbury (Former Justice at the United Kingdom Supreme Court) on the “Use and Abuse of Comity in International Litigation”. In the next three weeks, the general course was given by Charalambos Pamboukis (Professor at the National and Kapodistrian University of Athens) titled “The Metamorphoses of Private International Law”. During these three weeks, six special courses were given by Alessandra Zanobetti (Professor at the University of Bologna) on “The Effects of Economic Sanctions and Counter-Measures on Private Legal Relationships”; Natalie Y. Morris-Sharma (Director at the Attorney-General’s Chambers of Singapore) on “The Singapore Convention and the International Law of Mediation”; Carlos Esplugues Mota (Professor at the University of Valencia) on “New Dimensions in the Application of Foreign Law by Courts (and Arbitrators) and Non-judicial Authorities”; Jack Coe (Professor at Pepperdine Caruso School of Law) on “Non-ICSID Convention Investor-State Awards in Domestic Courts”; Eva Lein (Professor at the University of Lausanne) on “Breathing Space in International Commercial Litigation”; Andrew Dickinson (Professor at the University of Oxford) on “Natural Justice in Recognition and Enforcement of Foreign Judgements”. These PIL experts provided very interesting and valuable insights, including future (desirable) directions on PIL that can guide and inspire students, researchers, legal practitioners, courts, and legislators. The courses will be published by Brill in the series Collected Courses of The Hague Academy of International Law / Recueil des cours de l’Académie de La Haye. The fact that the courses commonly focused on PIL globally, by including national, regional and international PIL, is particularly laudable in view of our interconnected world. This blog aims to describe common threads of the 2024 Online Summer Courses on PIL that may encourage you to read the Hague Academy Collected Courses and inspire further research.[1]

The interaction between public international law and PIL

All lectures showed that there cannot be drawn a sharp distinction between public international law and PIL.[2] Several lecturers have illustrated the current interaction between these two fields of law. On the basis of case law in England and the U.S. involving private parties, Collins argued that the principle of comity has often been misused in favour of the interests of the forum state. For instance, in a case involving a request for evidence from French airplane manufacturing companies by victims of an airplane crash, instead of a first resort to the Hague Evidence Convention, the U.S. Supreme Court ruled that comity requires an assessment of the interests of the foreign nation involved and the requesting nation.[3] Collins argued that in practice, U.S. and English courts do not give effect to foreign blocking statutes, like the French Blocking Statute, but have ruled in favor of disclosure of documents and information. As the main abuse of comity, Collins pointed out that the Court of Appeals for the Second Circuit in New York has rejected the enforcement of arbitral awards for reasons of forum non conveniens. With respect to the grant of anti-suit injunctions, courts nonetheless ruled that comity requires caution as these injunctions involve an indirect interference with proceedings of foreign courts unless the injunction aims to prevent a breach of a choice of court agreement or arbitration agreement.[4] Another illustration on the interplay between public and private international law can be drawn from the Zanobetti’s lectures who argued that economic sanctions may set aside the lex contractus by means of the public policy exception in PIL. In the context of investor-state arbitration, Coe and Morris-Sharma have referred to the intersection between PIL and public international law. Coe in particular demonstrated the common features between business-to-business arbitration and non-ICSID (International Centre for Settlement of Investment Disputes) arbitration, both types of arbitration result in awards to which the New York Convention applies. Morris-Sharma has argued that although the investor-state dispute settlement regime mainly concerns state-to-state obligations, a foreign (private) investor may bring a claim directly against the state. While Morris-Sharma gave her lectures on the United Nations Convention on International Settlement Agreements Resulting from Mediation, adopted in 2018, (the Singapore Convention on Mediation, SCM), she noted that whereas this treaty concerns a public international law instrument, it has as subject matter the regulation of private relationships and therefore concerns issues of PIL. In view of current global issues, Morris-Sharma emphasised the importance of “continuing conversations” between public and private international law to bring order into global governance. In addition to research, Maastricht University shows that education could also be a tool to foster these type of conversations as students of the European Law School are taught PIL integrated into courses of European and international law.[5]

The global governance role of PIL[6]

Several courses have demonstrated the increasing role that contemporary PIL plays regarding global goals, varying from the protection of human rights, such as to guarantee the right of a fair hearing in the context of the recognition of foreign judgements as indicated by Dickinson and Lein, to trans-human goals like the protection of the environment as pointed out by Pamboukis. Pamboukis also emphasised the importance of the ‘peacemaking’ role of contemporary PIL, in the sense of the pacification of different values, which facilitates pluralism and the acceptance of the ‘otherness’.[7] However, Pamboukis argued that the trend of anti-globalisation may lead to other metamorphoses of PIL. Esplugues Mota pointed out that there already exist a trend of “nationalisation of transnational situations” fostered by PIL. For instance, as a result of the anti-immigration trend in western countries, the connecting factor of the nationality has increasingly been changed into the ‘habitual residence’ to nationalise situations. Nonetheless, in view of the current global problems, such as climate crises, war and economic sanctions, Jean-Marc Thouvenin (Secretary-General of The Hague Academy of International Law, Professor at the University Paris Nanterre) made in his welcome speech of the 2024 Summer Course the bold statement that “private international law is faring better these days than public international law”. The lectures given by Lein showed that PIL can indeed be a valuable global governance tool in this era of “polycrises”[8] as it facilitates international trade by providing “breathing space” mechanisms to international contractual parties. For instance, parties can generally make a choice for a national contract law that enables them to renegotiate or adapt their contract in case unforeseen circumstances impede the performance of contractual obligations.

Justice as objective of PIL

The courses showed that PIL is increasingly providing justice and PIL should also aim to serve justice. Yet, as mentioned by Pamboukis, the notion of justice is broad.[9] According to Pamboukis, justice is fairness, which includes equality. In the context of PIL, he illustrated that equality is, inter alia, visible by the multilateral character of conflict-of-laws rules and rules that protect weaker parties. Based on natural justice, Dickinson also referred to the importance of the principle of equality for the law that includes both substantive and procedural aspects. To safeguard this principle, he pointed out the public policy exception regarding the recognition and enforcement of foreign judgments.

As the meta-metamorphosis of the traditional, Von Savigny-based, conflict-of-laws rule, Pamboukis pointed out the change of its purpose from conflictual justice, i.e. justice based on geographically closest connection, to substantive justice in the sense of a just, fair result by means of a more flexible conflict-of-laws rule and methods. Pamboukis advocated the increasing important role of the method of recognition, in particular with respect to acquired rights and personal status. He also referred to adaptation and a more flexible application of conflit mobile to achieve a just result in concreto. Furthermore, Pamboukis argued to apply in PIL the principle of proportionality as balancing the concrete interests involved should lead to a fair result. The decision of the French Supreme Court on 17 November 2021, which opened up the possibility of recognising a foreign bigamous marriage in a particular case,[10] seems to be in line with the direction of PIL as advocated by Pamboukis.

With respect to the interpretation of justice in PIL, human rights are also increasingly playing an important role. As indicated by Dickinson and Lein, fair trail rights in human right treaties, like the right to be heard, have influenced the interpretation of the public policy exception in the context of the recognition of foreign judgements. Esplugues Mota nonetheless pointed out the “human rights discourse” regarding the recognition of personal situations abroad as a factor militating against the application of foreign law.[11] The recent Anti-SLAPPs (‘Strategic lawsuits against public participation’) Directive (EU) 2024/1069 could also be seen as an expression of the human rights impact on PIL that influences the concept of justice in the PIL.[12]

Several lecturers highlighted the importance of justice at procedural level. Zanobetti called for further research on the issue whether the ‘no-claim’ clause related to economic sanctions is contrary to the right to have access to courts. Lein argued that PIL provides various tools that facilitate access to justice in times of crises, such as the change of a choice of court clause that can easily be done according to various PIL instruments[13]. Dickinson advocated to pursue natural justice by recognising and enforcing foreign judgements unless they are unjust or inconsistent with the core values of the requested state. Furthermore, the procedure that resulted into the foreign judgement should have complied with procedural principles of natural justice such as due process, and the competence of the court of origin should be in accordance with these principles such as jurisdiction based on the parties’ consent. Dickinson illustrated that several national legal systems and treaties reflect natural right-based principles with respect to the recognition of foreign judgements.[14] On the basis of natural law, Dickinson also advocated that states and courts should pursue multi-dimensional justice when developing rules of recognition and enforcement, which requires an assessment on different levels of relational perspectives, including the parties to the dispute, states, and other human beings. Morris-Sharma argued that access to justice is also facilitated by alternative dispute resolution mechanism. However, Esplugues Mota pointed out that the risk of “second class justice” is high in case arbitrators apply foreign law wrongly, as this application is generally even not subject to control.

The changed state-based approach in PIL

While in international civil disputes, PIL traditionally indicates in which state, or states, the court is competent and the law of which country, or countries, applies, most of the lecturers addressed the growing role of arbitrators with respect to the application of foreign law, including non-state law. Nonetheless, Dickinson’s lectures on the principle of peaceful dispute resolution derived from natural law pointed out the importance of access to an independent and impartial judge who provides binding solutions and the possibility of appeal. As mentioned earlier, Esplugues Mota emphasised the risk of “second class justice” in case of alternative dispute resolution. Several lecturers referred to the use of AI technologies in dispute resolution, including AI courts. However, as indicated by Lein, judgements based on the use of AI technologies run the risk of not being recognised on the basis of the public policy exception. This risk seems high considering the fact that AI technologies are not (yet) accurate and fully impartial as they are based on human biases, like gender bias.

Several courses showed that the application of non-state law is playing an increasing role with respect to cross-border disputes between private parties.[15] As explained by Esplugues Mota, the application of non-state law may entail difficulties as regards its meaning, content, characterisation, and level of certainty. Esplugues Mota nonetheless asserted that certain non-state rules, namely the law of the societas mercatorium,[16] religious law,[17] and indigenous law,[18] are increasingly taken into account, or even applied by non-state and state authorities. In this way, PIL facilitates legal pluralism.

Concluding remarks

As argued by Pamboukis, PIL generally became more open, flexible. The courses indicated the need for PIL to remain open to the influence of human rights, pluralism, non-state law, including the law of nature, and the ‘otherness’. Fingers crossed that this openness of PIL continuous to grow in spite of the upcoming movement of anti-globalization, nationalism, including right-wing extremism. Therefore, international cooperation in PIL remains highly important.

[1] As I followed the courses online, this blog does not concern the seminars or elective courses that were given onsite at the Hague Academy of International Law. The assignment for writing this blog was given by Maastricht University, which made it possible for me to attend these courses.

[2] The scholar Alex Mills has frequently published on the blurry distinction between public international law and private international law.

[3] See Societe Nationale Industrielle Aerospatiale v. U.S. District Court 482 US 522 (1987).

[4] Collins referred to the Laker Airways litigation, inter alia, Laker Airways Ltd v Sabena Belgian World Airways, 731 F. 2d 909 (DC Cir 1984).

[5] On the combination of teaching of public and private international law, see also Poomintr Sooksripaisarnkit and Dharmita Prasad, “Private International Law and Public International Law-Increasing Convergence or Divergence as Usual?”, in: Poomintr Sooksripaisarnkit and Dharmita Prasad (eds.), Blurry boundaries of public and private international law: towards convergence or divergent still?, Singapore: Springer 2022.

[6] Robert Wai and Horatia Muir-Watt are among the scholars who frequently published on the role of global governance role of PIL.

[7] With respect to the concept of pluralism and the ‘otherness’, Pamboukis referred to the scholar Santi Romano. On this interesting topic, see also Horatia Muir Watt who has published her 18^th Rabel Lecture in November 2002 on Alterity in the Conflict of Laws-An Onthology of the In-Between.

[8] Lein defined the term ‘polycrises’ as “the simultaneous occurrence of several catastrophic events” such as pandemics, environmental disasters, and armed conflicts. Lein referred in this context to Catherine Kessedjian, “Chapter 12, International Law and Crisis Narratives after the Covid-19 Pandamic”, in: Mbengue, d’Aspremont, Crises Narratives in international Law 2022, pp. 132 ff.

[9] With respect to various views on the concept of justice in PIL, see also Michael S. Green, Ralf Michaels, Roxana Banu (eds), Philosophical Foundations of Private International Law, Oxford University Press 2024.

[10] See the EAPIL blog post, on 6 January 2022, “French Supreme Court Opens Door for Recognition of Foreign Bigamous Marriage” by Marion Ho-Dac.

[11] Esplugues Mota referred in this context to the Wagner and J.M.W.L. v. Luxembourg case of 2007 involving the right to have a family on the basis of Article 8 European Convention on Human Rights.

[12] With respect to improvements and challenges of the Anti-SLAPPs Directive (EU) 2024/1069 in the context of PIL, see my forthcoming article in Nederlands Internationaal Privaatrecht no. 4, 2024.

[13] In this context, Lein referred to, inter alia, Article 25(2) Brussels I Regulation (EU) 1215/2012.

[14] Dickinson referred to, inter alia, the criterion of “fundamental principles of procedural fairness” in Article 7(1)(c) of the 2019 Hague Judgements Convention.

[15] Ralf Michaels has frequently published on non-state law in the context of PIL. See, inter alia, Ralf Michaels, “The Re-State-Ment of Non-State Law: The State, Choice of Law, and the Challenge From Global Legal Pluralism”, 51 Wayne Law Review 1209-1259, 2005.

[16] In this context Esplugues Mota referred, inter alia, to Article 13. III of the Private International Law Act of Uruguay of 2020; Article 3 Hague Principles on Choice of Law in International Commercial Contracts of 2015.

[17]  Esplugues Mota referred to, inter alia, the decision of the French Cour de cassation on 6 May 1985 that awarded damages to a divorced Jewish woman as she could not remarry within the Jewish faith because her husband did not ‘give the Get’.

[18] In this context Esplugues Mota referred, inter alia, to Article 1(1) of the South African Law of Evidence Amendment Act 45 of 1988 on judicial notice of law of foreign state and of indigenous law.