Views
Deference to Foreign Sovereign Submissions
As previously reported here, the United States Court of Appeals for the Second Circuit issued a decision in 2016 reversing a $147.8 million price-fixing judgment against two Chinese manufacturers of Vitamin C. The plaintiffs alleged that the Chinese manufacturers engaged in price fixing and supply manipulation in violation of U.S. antitrust laws. In its first ever appearance as an amicus before a U.S. court, the Chinese government filed a formal statement asserting that Chinese law required the Chinese manufacturers to set prices and reduce the quantities of Vitamin C sold abroad. Relying on this statement, the Second Circuit held that because the Chinese manufacturers could not comply with both Chinese law and the U.S. antitrust laws, principles of international comity compelled dismissal of the case.
This case raises a host of interesting questions. First, did the Second Circuit reach the right result? Second, is this a comity case or a foreign sovereign compulsion case? Third, what level of deference is due to a foreign sovereign that appears in private litigation to explain their country’s laws? Fourth, should U.S. judges defer to such an explanation?
In June 2017, the United States Supreme Court called for the views of the United States. This past Tuesday, the Solicitor General (SG) filed this brief in response to the Court’s order.
In this submission, the SG explains that the Court should grant review of the Second Circuit’s decision in order to review the court of appeals’ holding that the Chinese government’s submission conclusively established the content of Chinese law. According to the SG, “a foreign government’s characterization of its own law is entitled to substantial weight, but it is not conclusive.” The SG argues that the case warrants the Court’s review because “[t]he degree of deference that a court owes to a foreign government’s characterization of its own law is an important and recurring question, and foreign sovereigns considering making their views known to federal courts should understand the standards that will be applied to their submissions.”
Should the Court grant review, the question of what standard should be applied to foreign sovereign submissions will be key. This is a question I have explored here.
It will be interesting to see whether the Court accepts the SG’s request to review the Second Circuit’s decision.
Jurisdiction, Conflict of Laws and Data Protection in Cyberspace
Report on the Conference held in Luxembourg on 12 October 2017, by Martina Mantovani, Research Fellow MPI Luxembourg
On 12 October 2017, the Brussels Privacy Hub (BPH) at the Vrije Universiteit Brussel and the Department of European and Comparative Procedural Law of the Max Planck Institute Luxembourg held a joint conference entitled “Jurisdiction, Conflicts of Law and Data Protection in Cyberspace”. The conference, which was attended by nearly 100 people, included presentations by academics from around the world, as well as from Advocate General Henrik Saugmandsgaard Øe of the Court of Justice of the European Union. The entire conference was filmed and is available for viewing on the YouTube Channel of the Max Planck Institute Luxembourg (first and second parts) Read more
Chinese courts made decision taking into account of the Hague Choice of Court Convention
China has signed the Hague Choice of Court Convention on 12 September 2017, but has not yet ratified this Convention. The Hague Choice of Court Convention has not entered into force in China. However, Shanghai High Court has already relied on the Hague Choice of Court Convention to make decision.
In Cathay United Bank v Gao, Shanghai High Court, (2016) Hu Min Xia Zhong No 99, the appellant, a Taiwan commercial bank, and the respondent, a Chinese citizen resident in Shanghai, entered into a Guarantee contract. It included a clause choosing Taiwan court as the competent court to hear disputes arising out of the contract. This clause did not specify whether it was exclusive or not. Chinese law does not provide how to decide exclusivity of a choice of court agreement. Facing the legal gap, Shanghai High Court took into account Article 3 of the Hague Choice of Court Convention 2005 and decided that choice of court agreements should be exclusive unless the parties stated otherwise. The Shanghai High Court thus declined jurisdiction in favour of Taiwan Court.
This decision was made on 20 April 2017, even before China signed the Hague Choice of Court Convention. Since the Hague Choice of Court Convention has not entered into force in China, it should not be directly applied by Chinese courts in judicial practice. The question is whether Chinese courts could ‘take into account’ of international conventions not being effective in China to make decision. Although Article 9 of the Chinese Supreme Court’s Judicial Interpretation of Chinese Conflict of Laws Act allows the Chinese courts to apply international conventions, which have not entered into effect in China, to decide the parties’ rights and obligations, such an application is subject to party autonomy. In other words, parties should have chosen the international convention to govern their rights and obligations. Article 9 does not apply to international judicial cooperation conventions that do not deal with individuals’ substantive rights and are not subject to party autonomy. Perhaps, a more relevant provision is Article 142(3) of the PRC General Principle of Civil Law, which provides that international customs or practice may be applied to matters for which neither the law of the PRC nor any international treaty concluded or acceded to by China has any provisions. Arguably, the Hague Choice of Court Convention represents common practice adopted internationally and forms a source to fill the gap in the current Chinese law.
News
Book Launch: International Child Abduction, Mayela Celis (Madrid: Dykinson, 2023) on 5 October 2023 (in Spanish)
The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 5 October 2023 at 2:30 pm (Mexico City time), 10:30 pm (Europe, CEST time) to launch the book entitled:
International Child Abduction: jurisprudential, doctrinal and critical study of the 1980 Child Abduction Convention. Key concepts and solutions to application problems (Madrid: Dykinson, 2023) 604 pp.
For more information about the book, see our previous post here.
The book will be presented by the author and the following AMEDIP members: Professors Jorge Alberto Silva Silva and Nuria González Martín, as well as the family law attorney María Virginia Aguilar.
The webinar will be held in Spanish and the details are:
Link: https://us02web.zoom.us/j/89498755044?pwd=NmFjQjAxZ2pSTW9tNVlqTC81NnM1dz09
Meeting ID: 894 9875 5044
Password: AMEDIP
Participation is free of charge.
This event will also be streamed live: https://www.facebook.com/AmedipMX
Symposium on Reparation for “Crimes of the Past” in Strasbourg (Oct. 19–20)
Written by Dr. Delphine Porcheron, Associate Professor at the University of Strasbourg Law Faculty
On October 19 and 20, the University of Strasbourg is organizing a symposium on Reparation for “Crimes of the Past”.
Mass crimes, deportations, spoliations, colonial exploitation, slavery… The “crimes of the past” are first known to us as historical facts. Their protagonists have mostly disappeared; they have been documented by historians; almost all of them are mentioned in school textbooks. They have become part of our collective memory as disastrous episodes of a bygone past.
Book Launch: Blockchain & Private International Law
The Series Editors of International and Comparative Business Law and Public Policy are hosting a book launch and cocktail party to celebrate the publication of Blockchain & Private International Law, edited by Andrea Bonomi, Matthias Lehmann, and Shaheeza Lalani (reviewed here by Christina Blanchet Valle).
The hybrid event will take place on 5 October, 5pm Swiss Time, both at the University of Lausanne, IDHEAP, AULA, and online (Zoom-Link; pw: 832357).
The event had originally been scheduled for 11 October (indicated wrongly above) but has been postponed for logistical reasons. The new date will be advertised shortly.