Written by Bill Dodge, the John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law at UC Davis School of Law.

On the question of foreign state immunity, the world was long divided between countries that adhere to an absolute theory and those that adopted a restrictive theory. Under the absolute theory, states are absolutely immune from suit in the courts of other states. Under the restrictive theory, states are immune from suits based on their governmental acts (acta jure imperii) but not from suits based on their non-governmental acts (acta jure gestionis).

During the twentieth century, many countries adopted the restrictive theory. (Pierre-Hugues Verdier and Erik Voeten have a useful list of the dates on which countries switched on the last page of this article.) Russia and China were the most prominent holdouts. Russia joined the restrictive immunity camp in 2016 when its law on the jurisdictional immunity of foreign states went into effect. That left China. In December 2022, Chinese lawmakers published a draft law on foreign state immunity, an English translation of which has recently become available. If adopted, this law would move China to into the restrictive immunity camp as well.

China’s draft law on foreign state immunity has important implications for other states, which would now be subject to suit in China on a range of claims from which they were previously immune. The law also contains a reciprocity clause in Article 20, under which Chinese courts may decline to recognize the immunity of a foreign state if the foreign state would not recognize China’s immunity in the same circumstances. Chinese courts could hear expropriation or terrorism claims against the United States, for example, because the U.S. Foreign Sovereign Immunities Act (FSIA) has exceptions for expropriation and terrorism.

In this post, the first of two, I look at the draft law’s provisions on foreign state immunity from suit from a U.S. perspective. In the second post, I will examine the law’s provisions on the immunity of a foreign state’s property from attachment and execution, its provisions on service and default judgments, and its potential effect on the immunity of foreign officials.

It is clear that China’s draft law has been heavily influenced by the provisions of the U.N. Convention on Jurisdictional Immunities of States and Their Property, which China signed in 2005 but has not yet ratified. But the purpose of the draft law is not simply to prepare China for ratification. Indeed, Article 21 of the law provides that when a treaty to which China is a party differs from the law, the terms of the treaty shall govern. Rather, the purpose of the law appears to be to extend the basid rules of the U.N. Convention, which is not yet in effect, to govern the immunity of all foreign countries when they are sued in Chinese courts, including countries like the United States that are unlikely ever to join the Convention.

China’s Adherence to the Absolute Theory of Foreign State Immunity

The People’s Republic of China has long taken the position that states and their property are absolutely immune from the jurisdiction of the courts of other states. The question rose to the level of diplomatic relations in the early 1980s. China was sued in federal court for nonpayment of bonds issued by the Imperial Government of China in 1911, did not appear to defend, and suffered a default judgment. After much back and forth, the State Department convinced China to appear and filed a statement of interest asking the district court to set aside the judgment and consider China’s defenses. “The PRC has regarded the absolute principle of immunity as a fundamental aspect of its sovereignty, and has forthrightly maintained its position that it is absolutely immune from the jurisdiction of foreign courts unless it consents to that jurisdiction,” the State Department noted. “China’s steadfast adherence to the absolute principle of immunity results, in part, from its adverse experience with extraterritorial laws and jurisdiction of western powers.” In the end, the district court set aside the default, held that the FSIA did not apply retroactively to this case, and held that China was immune from suit. The Eleventh Circuit subsequently affirmed.

In 2005, China signed the U.N. Convention on Jurisdictional Immunities of States and Their Property. The Convention (available in each of the U.N.’s official languages here) adopts the restrictive theory, providing exceptions to foreign state immunity for commercial activities, territorial torts, etc. Although China has not ratified the Convention and the Convention has not yet entered into force—entry into force requires 30 ratifications, and there have been only 23 so far—China’s signature seemed to signal a shift in position.

The question arose again in Democratic Republic of the Congo v. FG Hemisphere Associates LLC (2011), in which the Hong Kong Court of Final Appeal had to decide whether to follow China’s position on foreign state immunity. During the litigation, China’s Ministry of Foreign Affairs wrote several letters to the Hong Kong courts setting forth its position, which the Court of Final Appeal quoted in its judgment. In 2008, the Ministry stated:

The consistent and principled position of China is that a state and its property shall, in foreign courts, enjoy absolute immunity, including absolute immunity from jurisdiction and from execution, and has never applied the so-called principle or theory of ‘restrictive immunity’. The courts in China have no jurisdiction over, nor in practice have they ever entertained, any case in which a foreign state or government is sued as a defendant or any claim involving the property of any foreign state or government, irrespective of the nature or purpose of the relevant act of the foreign state or government and also irrespective of the nature, purpose or use of the relevant property of the foreign state or government. At the same time, China has never accepted any foreign courts having jurisdiction over cases in which the State or Government of China is sued as a defendant, or over cases involving the property of the State or Government of China. This principled position held by the Government of China is unequivocal and consistent.

In 2009, the Ministry wrote a second letter explaining its signing of the U.N. Convention. The diverging practices of states on foreign state immunity adversely affected international relations, it said, and China had signed the Convention “to express China’s support of the … coordination efforts made by the international community.” But the Ministry noted that China had not ratified the Convention, which had also not entered into force. “Therefore, the Convention has no binding force on China, and moreover it cannot be the basis of assessing China’s principled position on relevant issues.” “After signature of the Convention, the position of China in maintaining absolute immunity has not been changed,” the Ministry continued, “and has never applied or recognized the so-called principle or theory of ‘restrictive immunity.’”

The Draft Law on Foreign State Immunity

China’s draft law on foreign state immunity would fundamentally change China’s position, bringing China into alignment with other nations that have adopted the restrictive theory. The draft law begins, as most such laws do, with a presumption that foreign states and their property are immune from the jurisdiction of Chinese courts. Article 3 states: “Unless otherwise provided for by this law, foreign states and their property shall be immune from the jurisdiction of the courts of the People’s Republic of China.”

Article 2 defines “foreign state” to include “sovereign states other than the People’s Republic of China,” “institutions or components of … sovereign states,” and “natural persons, legal persons and unincorporated organisations authorised by … sovereign states … to exercise sovereign powers on their behalf and carry out activities based on such authorization.” Article 18(1) provides that Chinese courts will accept the Ministry of Foreign Affairs’ determination of whether a state constitutes a sovereign state for these purposes.

These provisions of the draft law generally track Article 2(1)(b) of the U.N. Convention, which similarly defines “State” to include a state’s “organs of government,” “agencies or instrumentalities” exercising “sovereign authority,” and “representatives of the State acting in that capacity.” The draft law differs somewhat from the U.S. FSIA, which determines whether a corporation is an “agency or instrumentality” of a foreign state based on ownership and which does not apply to natural persons.

Exceptions to Immunity from Suit

Waiver Exception

China’s draft law provides that a foreign state may waive its immunity from suit expressly or by implication. Article 4 states: “Where a foreign state expressly submits to the jurisdiction of the courts of the People’s Republic of China in respect of a particular matter or case in any following manner, that foreign state shall not be immune.” A foreign state may expressly waive its immunity by treaty, contract, written submission, or other means.

Article 5 provides that a foreign state “shall be deemed to have submitted to the jurisdiction of the courts of the People’s Republic of China” if it files suit as a plaintiff, participates as a defendant “and makes a defence or submits a counterclaim on the substantive issues of the case,” or participates as third party in Chinese courts. Article 5 further provides that a foreign state that participates as a plaintiff or third party shall be deemed to have waived its immunity to counterclaims arising out of the same legal relationship or facts. But Article 6 provides that a foreign state shall not be deemed to have submitted to jurisdiction by appearing in Chinese court to assert its immunity, having its representatives testify, or choosing Chinese law to govern a particular matter.

These provisions closely track Articles 7-9 of the U.N. Convention. The U.S. FSIA, § 1605(a)(1), similarly provides that a foreign state shall not be immune in any case “in which the foreign state has waived its immunity either explicitly or by implication.” Section 1607 also contains a provision on counterclaims. In contrast to China’s draft law, U.S. courts have held that choosing U.S. law to govern a contract constitutes an implied waiver of foreign state immunity (a position that has been rightly criticized).

Commercial Activities

China’s draft law also contains a commercial activities exception. Article 7 provides that a foreign state shall not be immune from proceedings arising from commercial activities when those activities “take place in the territory of the People’s Republic of China or take place outside the territory of the People’s Republic of China but have a direct impact in the territory of the People’s Republic of China.” Article 7 defines “commercial activity” as “any transaction of goods, services, investment or other acts of a commercial nature otherwise than the exercise of sovereign authority.” “In determining whether an act is a commercial activity,” the law says, “the courts of the People’s Republic of China shall consider the nature and purpose of the act.” Unlike the FSIA, but like the U.N. Convention, the draft law deals separately with employment contracts (Article 8) and intellectual property cases (Article 11).

In extending the commercial activities exception to activities that “have a direct impact” in China, the draft law seems to have borrowed from the commercial activities exception in the U.S. FSIA. Section 1605(a)(2) of the FSIA applies not just to claims based on activities and acts in the United States, but also to activities abroad “that act cause[] a direct effect in the United States.”

The draft law’s definition of “commercial activity,” on the other hand, differs from the FSIA. Whereas the draft law tells Chinese courts to consider both “the nature and purpose” of the act,” § 1603(d) of the FSIA says “[t]he commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” (Article 2(2) of the U.N. Convention makes room for both approaches.) Considering the purpose of a transaction would make it easier for a government to argue that certain transactions, like issuing government bonds or buying military equipment are not commercial activities and thus to claim immunity from claims arising from such transactions.

Territorial Torts

Article 9 of the draft law creates an exception to immunity “for personal injury or death, or for damage to movable or immovable property, caused by that foreign state within the territory of the People’s Republic of China.” This exception corresponds to Article 12 of the U.N. Convention and § 1605(a)(5) of the U.S. FSIA. Unlike § 1605(a)(5), China’s draft law contains no carve-outs maintaining immunity for discretionary activities and for malicious prosecution, libel, misrepresentation, interference with contract rights, etc.

The English translation of the draft law does not make clear whether it is the tortious act, the injury, or both that must occur within the territory of China. The FSIA’s territorial tort exception has been interpreted to require that the “entire tort” occur within the United States. Article 12 of the U.N. Convention does not. This question has become particularly important with the rise of spyware and cyberespionage. As Philippa Webb has discussed at TLB, U.S. courts have dismissed spyware cases against foreign governments on the ground that the entire tort did not occur in the United States, whereas English courts have rejected this requirement and allowed such cases to go forward. If the Chinese version of the draft law is ambiguous, it would be worth clarifying the scope of the exception before the law is finalized.

Property

Article 10 of the draft law creates an exception to immunity for claims involving immoveable property in China, interests in moveable or immoveable property arising from gifts, bequests, or inheritance, and interests in trust property and bankruptcy estates. This provision closely parallels Article 13 of the U.N. Convention and finds a counterpart in § 1605(a)(4) of the FSIA.

Arbitration

The draft law also contains an arbitration exception. Article 12 provides that a foreign state that has agreed to arbitrate disputes is not immune from suit with respect to “the effect and interpretation of the arbitration agreement” and “the recognition or annulment of arbitral awards.” Like Article 17 of the U.N. Convention, the arbitration exception in the draft law is limited to disputes arising from commercial activities but extends to investment disputes. The arbitration exception in § 1605(a)(6) of the FSIA, by contrast, extends to disputes “with respect to a defined legal relationship, whether contractual or not.”

Reciprocity Clause

One of the most interesting provisions of China’s draft law on state immunity is Article 20, which states: “Where the immunity granted by a foreign court to the People’s Republic of China and its property is inferior to that provided for by this Law, the courts of the People’s Republic of China may apply the principle of reciprocity.” Neither the U.N. Convention nor the U.S. FSIA contains a similar provision, but Russia’s law on the jurisdictional immunities of foreign states does in Article 4(1).  Argentina’s law on immunity also includes a reciprocity clause specifically for the immunity of central bank assets, apparently adopted by Argentina at the request of China.

The reciprocity clause in the draft law means that Chinese courts would be able to exercise jurisdiction over the United States and its property in any case where U.S. law would permit U.S. courts to exercise jurisdiction over China and its property. The FSIA, for example, has an exception for expropriations in violation of international law in § 1605(a)(3) and exceptions for terrorism in § 1605A and § 1605B. Although China’s draft law does not contain any of these exceptions, its reciprocity clause would allow Chinese courts to hear expropriation or terrorism claims against the United States. The same would be true if Congress were to amend the FSIA to allow plaintiffs to sue China over Covid-19, as some members of Congress have proposed.

Conclusion

China’s adoption of the draft law would be a major development in the law of foreign state immunity. For many years, advocates of the absolute theory of foreign state immunity could point to China and Russia as evidence that the restrictive theory’s status as customary international law was still unsettled. If China joins Russia in adopting the restrictive theory, that position will be very difficult to maintain.

[This post is cross-posted at Transnational Litigation Blog.]

At the ArbMetaBlock2023 Conference leading experts in technology and dispute resolution will discuss the impact of blockchain, the Metaverse, and Web3 on arbitration. These concepts have become part of the conversation in the arbitration community, but few understand their true significance and potential impact.

Panelists will discuss the impact of blockchain and the Metaverse on arbitration, the changing role of lawyers and arbitration institutions, and the effect of new technology on arbitration fundamentals during our full-day event.

Confirmed speakers include Mihaela Apostel, Pedro Arcoverde, Elizabeth Chan, Paul Cohen, Dirk De Meulemeester, David Earnest, Elizabeth Zoe Everson, Anna Guillard Sazhko, Wendy Gonzales, Emily Hay, Cemre Kadioglu Kumptepe, Creguta Leaua, Matthias Lehman, Niamh Leinwather, Aija Lejniece, Maud Piers, Colin Rule, Sean McCarthy, Sophie Nappert, Ekaterina Oger Grivnova, Pietro Ortolani, Amy Schmitz, Takashi Takashima, David Tebel, Leandro Toscano, and Dirk Van Gerven.

The event is organized by the Center for the Future of Dispute Resolution at the University of Ghent in collaboration with leading organizations, including ArbTech, Arbitrate.com, Cepani, Cepani40 CyberArb, MetaverseLegal, and UNCITRAL.

See here for more information and registration.

In preparation of the Conference on the HCCH 2019 Judgments Convention on 9/10 June 2023, taking place on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

Update of 4 April 2023: New entries are printed bold.

Please also check the “official” Bibliography of the HCCH for the instrument.

I. Explanatory Reports

II. Bibliography

III. Recordings of Events Related to the HCCH 2019 Judgments Convention

For litigants embroiled in cross-border litigation, the anti-suit injunction has become a staple in the conflict of laws arsenal of common law courts. Its purpose being to restrain a party from instituting or prosecuting proceedings in a foreign country, it is regularly granted to uphold arbitration or choice of court agreements, to stop vexatious or oppressive proceedings, or to protect the jurisdiction of the forum court. However, what is a party to do if the foreign proceeding has already run its course and resulted in an unfavourable judgment? Enter the anti-enforcement injunction, which, as the name suggests, seeks to restrain a party from enforcing a foreign judgment, including, potentially, in the country of judgment.

Decisions granting an anti-enforcement injunction are “few and far between” (Ecobank Transnational Inc v Tanoh [2015] EWCA Civ 1309, [2016] 1 WLR 2231, [118]). Lawrence Collins LJ (as he then was) described it as “a very serious matter for the English court to grant an injunction to restrain enforcement in a foreign country of a judgment of a court of that country” (Masri v Consolidated Contractors International (UK) Ltd (No. 3) [2008] EWCA Civ 625, [2009] QB 503 at [93]). There must be a good reason why the applicant did not take action earlier, to prevent the plaintiff from obtaining the judgment in the first place. The typical scenario is where an applicant seeks to restrain enforcement of a foreign judgment that has been obtained by fraud.

This was the scenario facing the New Zealand High Court in the recent case of Kea Investments Ltd v Wikeley Family Trustee Limited [2022] NZHC 2881. The Court granted an (interim) anti-enforcement injunction in relation to a default judgment worth USD136,290,994 obtained in Kentucky (note that the order was made last year but the judgment has only now been released). The decision is noteworthy not only because anti-enforcement injunctions are rarely granted, but also because the injunction was granted in circumstances where the foreign proceeding was not also brought in breach of a jurisdiction agreement. Previously, the only example of a court having granted an injunction in the absence of a breach of a jurisdiction agreement was the case of SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599 (see Tiong Min Yeo “Foreign Judgments and Contracts: The Anti-Enforcement Injunction” in Andrew Dickinson and Edwin Peel A Conflict of Laws Companion – Essays in Honour of Adrian Briggs (OUP, 2021) 254).

Kea Investments Ltd v Wikeley Family Trustee Limited involves allegations of “a massive global fraud” perpetrated by the defendants – a New Zealand company (Wikeley Family Trustee Ltd), an Australian resident with a long business history in New Zealand (Mr Kenneth Wikeley), and a New Zealand citizen (Mr Eric Watson) – against the plaintiff, Kea Investments Ltd (Kea), a British Virgin Islands company. Kea alleges that the US default judgment is based on fabricated claims intended to defraud Kea. Its substantive proceeding claims tortious conspiracy and a declaration that the Kentucky judgment is not recognised or enforceable in New Zealand. Applying for an interim injunction, the plaintiff argued that “the New Zealand Court should exercise its equitable jurisdiction now to prevent a New Zealand company … from continuing to perpetrate a serious and massive fraud on Kea” (at [27]) by restraining the defendants from enforcing the US judgment.

The judgment is illustrative of the kind of cross-border fraud that private international law struggles to deal with effectively: here, alleged fraudsters using the Kentucky court to obtain an illegitimate judgment and, apparently, frustrate the plaintiff’s own enforcement of an earlier (English) judgment, in circumstances where the Kentucky court is unwilling (or unable?) to intervene because Kea was properly served with the proceeding in BVI.

Gault J considered that the case was “very unusual” (at [68]). Kea had no connection to Kentucky, except for the defendants’ allegedly fabricated claim involving an agreement with a US choice of court agreement and a selection of the law of Kentucky. Kea also did not receive actual notice of the Kentucky proceedings until after the default judgement was obtained (at [73]). In these circumstances, the defendants were arguably “abusing the process of the Kentucky Court to perpetuate a fraud”, with the result that “the New Zealand Court’s intervention to restrain that New Zealand company may even be seen as consistent with the requirement of comity” (at [68]).

One may wonder whether the Kentucky Court agrees with this assessment – that a foreign court’s injunction restraining enforcement of its judgment effectively amounts to an act of comity. In fact, Kea had originally advanced a cause of action for abuse of process, claiming that the alleged fraud was an abuse of process of the Kentucky Court. It later dropped the claim, presumably due to a recent English High Court decision (W Nagel (a firm) v Chaim Pluczenik [2022] EWHC 1714) concluding that the tort of abuse of process does not extend to foreign proceedings (at [96]). The English Court said that extending the tort to foreign proceedings “would be out of step with [its] ethos”, which is “the Court’s control of its own powers and resources” (at [97]). It was not for the English court “to police or to second guess the use of courts of or law in foreign jurisdictions” (at [97]).

Since Gault J’s decision granting interim relief, the defendants have protested the Court’s jurisdiction, arguing that Kea is bound by a US jurisdiction clause and that New Zealand is not the appropriate forum to determine Kea’s claims. The Court has set aside the protest to jurisdiction (Kea Investments Ltd v Wikeley Family Trustee Limited [2023] NZHC 466). The Court also ordered that the interim orders continue, although the Court was not prepared to make a further order that the defendants consent to the discharge of the default judgment and withdraw their Kentucky proceedings. This, Gault J thought, was “a bridge too far” at this interim stage (at [98]).

As the American Society of International Law Annual Meeting approaches, the ASIL Private International Law Interest Group (PILIG) warmly invites you to a career talk featuring professional development in Private International Law.

• 2:00 PM-3:00 PM ET, Thursday 30 March
Venue: Embassy, Washington Hilton, 1919 Connecticut Ave NW, Washington, DC 20009

Neale Bergman, Attorney-Adviser, Office of the Legal Adviser (L/EB), U.S. Department of State
Milana Karayanidi, Counsel, Orrick
James Nafziger, Professor of Law, Vice-Chair, International Law Association (ILA)
Rekha Rangachari, Secretary-General, New York International Arbitration Center
David Stewart, Professor from Practice, Georgetown Law

This panel of seasoned experts will share their experiences and offer advice concerning career paths in international and particularly private international law fields, in areas such as research, government related work, dispute resolution, international development, and legal information. A short networking session will be offered to participants to further engage with speakers after the panel discussion.

In addition, we invite PILIG members, PILIG newsletter editors, and PILIG friends to join us for a casual happy hour gathering at the McClellan’s Sports Bar located at the Washington Hilton. Please find event details below:

• Happy Hour

4:00 PM- 5:00 PM ET, Thursday 30 March
Social & Networking Event
McClellan’s Sports Bar

No Host Bar
We hope to celebrate with you the conclusion of “pandemic years” while you enjoy ASIL’s excellent conference programs. We look forward to learning any PIL (and non-PIL) inspirations from you for the more exciting years to come. Everyone is welcome to stop by.

• PILIG newsletter editors recruiting 

We also invite scholars, practitioners, and students to contact us to become a PILIG newsletter editor.

ASIL Private International Law Interest Group Co-Chairs

Shu Shang <sshang@cpp.edu>

Jeanne Huang <jeanne.huang@sydney.edu.au>

The latest edition of Dicey, Morris & Collins on the Conflict of Laws, jointly edited by The Rt Hon. the Lord Collins of Mapesbury and Professor Jonathan Harris KC (Hon.), was published by Sweet & Maxwell in September 2022. First published in 1896, Dicey, Morris & Collins on the Conflict of Laws is in its 16th edition. The publisher provides the following description for this pre-eminent treatise on private international law.

Further information is available here.

The journal, Current Legal Problems yesterday, inter alia, published an open access article on private international law:

Alex Mills, “The Privatisation of Private (and) International Law”

Privatisation is much studied and debated as a general phenomenon, including in relation to its legal effects and the challenges it presents to the boundaries of public and private law. Outside the criminal context there has however been relatively limited focus on privatisation of the governmental functions which are perhaps of most interest to lawyers—law making, law enforcement and dispute resolution—or on the international legal implications of privatisation. This article argues that modern legal developments in the context of private law and cross-border private legal relations—generally known as party autonomy in private international law—can be usefully analysed as two distinct forms of privatisation. First, privatisation of certain allocative functions of public and private international law, in respect of both institutional and substantive aspects of private law regulation, through the legal effect given to choice of court and choice of law agreements. Second, privatisation of the institutional and substantive regulation of private legal relationships themselves, through arbitration and the recognition of non-state law. Together, these developments have established a global marketplace of state and non-state dispute resolution institutions and private laws, which detaches private law authority from its traditional jurisdictional anchors. Analysing these developments through the lens of privatisation highlights a number of important critical questions which deserve greater consideration—this article further examines in particular whether this form of privatisation in fact increases efficiency in either private international law decision-making or private law dispute resolution, as well as its distributive and regulatory effects.

Written by Alessa Karlinski and Maren Vogel (both Free University Berlin).

On February 23^rd and 24^th, 2023, young scholars came together at the Sigmund Freud University, Vienna, to discuss different views on private international law under the theme of “Deference to the foreign – empty phrase or guiding principle of private international law?”. Continuing the success of the previous three German-Speaking Conferences of Young Scholars in PIL from previous years in Bonn, Würzburg and Hamburg, this year’s conference was hosted in Austria by Martina Melcher and Florian Heindler who organized the event together with Andreas Engel, Katharina Kaesling, Ben Köhler, Bettina Rentsch, Susanna Roßbach and Johannes Ungerer.

As keynote speaker, Professor Horatia Muir Watt (Sciences Po Paris) borrowed from the often-used metaphor of the “dismal swamp” to present an “ecosophical” approach to private international law. For this purpose, she engaged anthropological and philosophical insights of Western and indigenous origin on the meaning of law and the regulatory functions of private international law in particular.

Vanessa Grifo (University of Heidelberg) presented possible insights from the theory of the post-migrant society for international family law. Based on sociological accounts of “post-migrant” identities, Grifo discussed that a person’s cultural identity can form “hybrid” solidarity to different legal systems and oppose the collective national identity of the country of immigration. While previously, according to Kegel, connecting factors were understood to build upon certain generally neutral conflict-of-laws interests, cultural identity is becoming a relevant aspect of party interests, which she demonstrated with the help of different recent judgement of the German Federal Court of Justice. This paradigm, Grifo argued, shows a shift from the system of the traditional German understanding of connecting factors following Kegel.

Victoria Garin (European University Institute, Florence) examined the connection between private international law and the concept of Relativism. The basis of her analysis is the contemporary private international law attempting to coordinate conflicting regulatory claims of several legal systems. Garin identified extraterritoriality, difference and equivalence as assumptions used in private international law to solve this conflict. These assumptions, Garin argued, are premised on Relativism in its forms as descriptive and normative theory. Through the lens of Relativism a critical examination of private international law, especially regarding current developments in literature, was made. Garin explained to what extent the criticism of Relativism can be applied to private international law theory.

Dr Shahar Avraham-Giller (Hebrew University Jerusalem) presented two seemingly contradictory developments in private international law. First Avraham-Giller pointed out, that legal questions are increasingly restrictively categorised as procedural questions in the EU and in common law states which leads to a broader application of foreign law as the lex causae. The application of the lex fori to procedural questions can itself be understood as an overriding mandatory provision of the forum. On the other hand, as Avraham-Giller projected, an increased recourse of courts to the means of other overriding mandatory provisions to safeguard national public interests can be observed. In her opinion, these seemingly contradictory developments can be explained as an answer to the development of a more “private” understanding of civil proceedings, seeking primarily peaceful settlement of private disputes, while enforcing other values and public goals through mandatory overriding provisions at the same time.

Raphael Dummermuth (University of Fribourg) then shed light on deference to the foreign in the context of the interpretation of the Lugano Convention. First, he addressed the question of the implementation of the objective of taking into account the case law of the ECJ by non-EU courts, as stated in Art. 1(1) Protocol 2 Lugano Convention. The application of the Lugano Convention, he pointed out, requires a double consideration of the foreign: the court must consider standards or judgments that are outside the Lugano Convention and in doing so apply a foreign methodology. Nonetheless, the one-sided duty of consideration is limited where the results of interpretation are decisively based on principles of EU law. He came to the conclusion, that precedent effect should therefore only be given to results that are justifiable within the scope of the classical methodology.

The first day of the conference closed with a panel discussion between Professor Dietmar Czernich, Professor Georg Kodek and Dr Judith Schacherreiter on deference to the foreign in private international legal practice and international civil procedure. The discussants shared numerous insights: from the appointment of expert opinions on foreign law, to deference to the foreign in international commercial arbitration and the practice of legal advice.

Selina Mack (LMU Munich) opened the second day of the conference examining the ordre public in the field of succession law using the example of the right to a compulsory portion in Austria and Germany. Mack began by comparing similar regulations in Germany and Austria with the so-called family provision in England. She then contrasted a decision of the Supreme Court of Austria (OGH) with a decision of the German Federal Court of Justice (BGH), both of which deal with the ordre public according to Art. 35 of the European Inheritance Regulation when applying English law. The ordre public clause under Art. 35 is to be applied restrictively. While the OGH did not consider the ordre public to be infringed, the BGH, on the other hand, assumed an infringement. Mack concluded that this is a fundamental disrespect of the foreign by the BGH.

Tess Bens (MPI Luxembourg) examined methods of enforcing foreign judgments under the Brussels Ia Regulation. Said Regulation does not, in principle, harmonise enforcement law. She presented the enforcement mechanism as applying the enforcement law of the enforcing state by means of substitution or, insofar as the order or measure was unknown to the enforcement law, by means of transposition. Due to structural differences in the enforcement law of the Member States, as Bens outlines, practical problems can nevertheless arise. Especially since the abolition of the exequatur procedure in the case of insufficient concretisation of the enforcement order, the Brussels Ia Regulation does not provide a procedure. Finally, she discussed that these frictions might be mitigated by anticipating differences and requirements of the enforcing by the courts, nonetheless limited due to the difficulty of predictability.

Afterwards, the participants were able to discuss various topics in a small group for one hour in three parallel groups, each introduced by two impulse speeches.

The first group looked at the factor of nationality in private international law. Stefano Dominelli (Università di Genova) introduced into the current debate on the connecting factor of nationality in matters concerning the personal status. In his opinion, it is debateable whether a shift towards the application of local law really strengthens deference to the foreign. Micheal Cremer (MPI Hamburg) looked at the handling of so-called golden passports in the EU. He pointed out, that European conflict of laws regularly does not take the purchased nationality into account, being in line with most of the theoretical approaches to the nationality principle.

The second group focused on the influence of political decisions on the application of foreign law. Dr Adrian Hemler (University of Konstanz) presented the concept of distributive justice as a reason for applying foreign law. He emphasised, that the difference between purely national and foreign constellations makes the application of foreign law necessary. In his presentation, Felix Aiwanger (LMU Munich) looked at different standards of control with regard to foreign law. He argued that legal systems that can be considered as reliable are subject to a simplified content review.

The third group discussed the treatment of foreign institutions in international family law. Dr Lukas Klever (JKU Linz) presented the recognition of decisions on personal status in cases of surrogacy carried out abroad. He discussed differences and possible weaknesses in the recognition under the Austrian conflict of laws and procedural law. Aron Johanson (LMU Munich) then provided a further perspective with a look at the institute of polygamy. He explained, that while in Germany a partial recognition can be possible, Sweden had switched to a regular refusal of recognition. Subsequently the question of a duty of recognition arising from the free movement of persons as soon as one member state recognises polygamy was asked.

Dr Tabea Bauermeister (University of Hamburg) devoted her presentation to the conflict of laws dimension of the claim for damages in Art. 22 of the European Commission’s proposal for a directive on corporate sustainability due diligence (CSDDD), paragraph 5 of which compels the member states to design it as an overriding mandatory provision. She outlined, that regulatory goals can also be achieved through mutual conflict-of-laws provisions. An example of this is the codification of international cartel offence law. Bauermeister concluded, that the use of mandatory overriding provisions instead of special conflict-of-laws provisions expresses a distrust of the foreign legislature’s competence or willingness to regulate and therefore represents a disregard of the foreign.

Dr Sophia Schwemmer (Heidelberg University) then examined private enforcement under the CSDDD vis-à-vis third-state companies. She stated, that while third-state companies were included in the scope of application insofar as they are active in the EU internal market, the applicability of the CSDDD could normally not be achieved using the classic conflict-of-laws rules. The CSDDD resorts to an overriding mandatory provision for this purpose. However, Schwemmer concluded that a different approach, e.g. an extended right of choice of law for the injured party, was also imaginable and preferable.

As last speaker, Dr Lena Hornkohl (University of Vienna/Heidelberg University) addressed the effects of EU blocking regulations on private law. She stated that the application of EU blocking statutes as a reaction to extraterritorial third-country regulations can lead to almost irresolvable conflicts in private law relationships. Hornkohl then critically examined the ECJ case law that postulates the direct applicability of the Blocking Regulation in private law relationships. Binding private parties to the Blocking Regulation, she concluded, leads to the instrumentalisation of private law at the expense of private parties with the aim of enforcing foreign policy objectives.

A conference volume will be published by Mohr Siebeck Verlag later this year. The next PIL Young Researchers Conference will take place in Heidelberg in 2025.

Ever since the infamous West Tankers saga, if not before, the interplay between the international jurisdiction of national courts and arbitral tribunals has been subject to a constant stream of publications. Writing a monograph on this topic that is both fundamental and innovative in this field is therefore no small feat – making this book by Faidon Varesis, which has come out at the beginning of the year and is based on his Cambridge dissertation, all the more impressive.

The book is organized in three parts (which are not evident from the Table of Contents). Varesis first discusses the importance of commercial disputes in a globalized world, focusing on the private and regulatory interests involved. He then looks more closely at the issue of jurisdiction and the interplay between litigation and arbitration at what he identifies as “jurisdictional intersections” (referring to a range of different situations in which state courts or arbitral tribunals need to resolve questions of adjudicative jurisdiction), before discussing the concept of party autonomy and its expression in an arbitration agreement. In the second part, Varesis then develops a theoretical model for the distribution of jurisdiction between arbitration and litigation that puts the arbitration agreement at its centre. In the third and final part, the author then tests this model against the current legal framework in England and Wales and demonstrates how it would enable courts and arbitral tribunals alike to solve questions arising at the aforementioned jurisdictional intersections in a global-law spirit.

Arguably the most significant contribution of this book to existing scholarship and debates is its attempt to construct a system around a “horizontal” (rather than hierarchical) relationship between arbitration and litigation as two equivalent yet interdependent modes of dispute resolution. How much appetite there is for such an approach in the wake of Katharina Pistor’s Code of Capital and other critical accounts of corporations seemingly using the law to create and (re-)distribute capital and wealth behind closed doors is obviously open to debate; but this does not make Varesis’ attempt to reconstruct a horizontal system of jurisdiction, arbitral or adjudicatory, that reconciles the distribution of regulatory competence with the need for substantial fairness any less of an intellectually stimulating exercise.

On 13 March 2023, the Journal of International Dispute Settlement  published a private international law article:

G Antonopoulou, “The ‘Arbitralization’ of Courts: The Role of International Commercial Arbitration in the Establishment and the Procedural Design of International Commercial Courts” 

International commercial arbitration is the most preferred dispute resolution method in cross-border commercial disputes. It has been, however, claimed that arbitration has lost its flexibility by becoming increasingly formal and by incorporating litigation practices. In academic literature, this trend has been termed the ‘judicialization’ of international commercial arbitration. This article argues that while arbitration is becoming progressively judicialized, international commercial courts evidence an opposite, less studied trend; namely, the ‘arbitralization’ of courts. Through a comparative analysis of different international commercial courts, the article explores how the competition with arbitration has prompted the establishment of these courts, and how arbitration has served as the inspiration for some of their most innovative features. The article concludes that while the incorporation of arbitration features could improve court proceedings, some of international commercial courts’ arbitration features undermine procedural justice and the role of courts as public institutions and therefore hit the limits of arbitralization.