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PIL and (De)coloniality: For a Case-by-Case Approach of the Application of Postcolonial Law in European States
Written by Sandrine Brachotte who obtained a PhD. in Law at Sciences Po, Paris and is a Guest Lecturer at UCLouvain (Saint-Louis, Brussels).
1. PIL and (De)coloniality in Europe
This post follows Susanne Gössl’s blog post series on ‘Colonialism and German PIL’ (especially s. 3 of post (1)) and offers a French perspective of the issue of PIL and (de)coloniality – not especially focused on French PIL but based on a francophone article to be published soon in the law and anthropology journal Droit et Culture. This article, called ‘For a decolonisation of law in the global era: analysis of the application of postcolonial law in European states’, is addressed to non-PIL-specialist scholars but builds on a European debate about PIL and (de)coloniality that has been nourished by scholars like Ralf Michaels, Horatia Muir Watt, Veronica Ruiz Abou-Nigm, as well as by Maria Ochoa, Roxana Banu, and Nicole Štýbnarová, notably at the occasion of the 2022 Edinburgh conference (reported about on this blog, where I had the chance the share a panel with them in relation to my PhD dissertation (see a short presentation on the EAPIL blog)).
The Dubai Supreme Court on the Enforcement of Canadian (Ontario) Enforcement Judgment
Can an enforcement judgment issued by a foreign court be recognized and enforced in another jurisdiction? This is a fundamental question concerning the recognition and enforcement of foreign judgments. The answer appears to be relatively straightforward: “No”. Foreign enforcement judgments are not eligible to be recognized and enforced as they are not decisions on the merits (see in relation with the HCCH 2019 Convention, F Garcimartín and G Saumier, Explanatory Report (HCCH 2020) para. 95, p. 73; W Hau “Judgments, Recognition, Enforcement” in M Weller et al. (eds.), The HCCH 2019 Judgments Convention: Cornerstones, Prospects, Outlooks (Hart 2023) 25). This is usually referred to as the “prohibition of double exequatur” or, following the French adage: “exequatur sur exequatur ne vaut”. This question was recently presented to the Dubai Supreme Court (DSC), and its decision in the Appeal No. 1556 of 16 January 2024 offers some useful insights into the status foreign enforcement (exequatur) decisions in the UAE.
Austrian Supreme Court Rules on the Validity of a Jurisdiction Clause Based on a General Reference to Terms of Purchase on a Website
By Biset Sena Günes, Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law, Hamburg
Recently, on 25 October 2023, the Austrian Supreme Court (‘OGH’) [2 Ob 179/23x, BeckRS 2023, 33709] ruled on whether a jurisdiction clause included in the terms of purchase (‘ToP’) was valid when a written contract made reference to the website containing the ToP but did not provide the corresponding internet link. The Court held that such a clause does not meet the formal requirements laid down under Article 25 of the Brussels I (recast) Regulation and, hence, is invalid. The judgment is undoubtedly of practical relevance for the conclusion of international commercial contracts that make reference to digitally available general terms and conditions (‘GTCs’), and it is an important follow-up to the decisions by the Court of Justice of the European Union (‘CJEU’) in the cases of El Majdoub (C-322/14, available here) and Tilman (C-358/21, available here).
News
Virtual Workshop (in English) on February 4: Pietro Franzina on “EU Private International Law at a Time of ‘Broken Multilateralism’ and Growing Geo-Political Tensions”
On Tuesday, February 4, 2025, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CET). Professor Pietro Franzina (Catholic University of the Sacred Heart) will speak, in English, about the topic
“EU Private International Law at a Time of ‘Broken Multilateralism’ and Growing Geo-Political Tensions”
Multilateralism is in crisis. The role of world organisations in international politics and law-making is increasingly being questioned, as some key actors in the global arena no longer consider cooperation and collective action the best way to address common concerns. While multilateralism is not obsolete, let alone ‘dead’, as some claim, there is a growing consensus that current governance schemes need profound reconsideration. The EU, multilateralism’s staunchest defender, is especially exposed to these developments. While the evolution of multilateralism is set to affect all areas of international cooperation, each field has, arguably, its specificities. What features does cooperation in the field of private international law display in this regard? How can the crisis of multilateralism influence the way in which the EU deals with judicial cooperation, be it through its legislation, in the relations with its neighbours and at the global level? What structural changes are under way in global fora, such as the HCCH, and what is their impact on the EU’s own agenda and methods of work?
The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
Out now: Buxbaum, “Extraterritoriality in Comparative Perspective” (Ius Comparatum)
In an increasingly interconnected world, the application of laws by States beyond their territorial borders is an everyday reality. Yet, almost a century after the (still) leading findings by the PCIJ in the Case of the S.S. “Lotus”, the details of the concept of “extraterritoriality” remain elusive, and one can easily get lost in the multitude of national practices, ranging from “presumptions against extraterritoriality” to be found mostly in federal systems (mostly for sub-units) to “effects doctrines” and the like in certain areas of law such as e.g. (early) in Germany, (later) in the EU’s competition law and today many other jurisdictions, in particular in Asia.
Given this complexity, this latest publication of the Ius Comparatum Series on “Extraterritoriality in Comparative Perspective” edited by Hannah L. Buxbaum offers a great deal of valuable guidance and insights. Featuring the reports from the most recent IACL/AIDC General Congress in Asunción, the volume provides the reader with unique insights by renowned legal scholars into the practices of 14 national jurisdictions (inter alia China, Germany, Japan, Korea, UK, U.S.) and the the European Union (EU). As is explained in the preface to the book:
Much of the vast scholarly literature on extraterritoriality approaches the topic from the outside in, assessing the extraterritorial projection of state law from the perspective of international law and the constraints it places on state authority. The goal of this project is to approach the topic from the inside out. Considering a range of legal systems, the authors investigate the geographic scope that states claim for their own laws, and the mechanisms by which states translate and locally implement principles of international jurisdictional law.
The Latin American and Caribbean Journal of International Law (LACJIL) has been launched
Today the Latin American and Caribbean Journal of International Law (LACJIL) was launched at the auditorium of the Hague Academy of the Peace Palace. Among the speakers were Prof. Diego Fernández Arroyo, president of the curatorium of the Hague Academy, and H.E. Leonardo Nemer Caldeira Brant, judge of the International Court of Justice. In addition, a very interesting panel was moderated by the Ambassador of Guatemala to the Kingdom of the Netherlands H.E. Ana Cristina Rodríguez Pineda. The panel was composed of the judge of the International Criminal Court H.E Althea Alexis-Windsor, the Ambassador of Colombia to the Kingdom of the Netherlands H.E. Carolina Olarte Bácares, the Ambassador of Argentina to the Kingdom of the Netherlands H.E. Mario J. A. Oyarzábal and the president of ASADIP Prof. Verónica Ruiz Abou-Nigm. The purpose of the panel was to discuss the recent legal developments in Latin America and the Caribbean, which included the ASADIP principles on transnational access to Justice (TRANSJUS). Read more