Views
Nothing Found
Sorry, no posts matched your criteria
News
Out now: Yearbook of Private International Law XXI (2019/2020)
TABLE OF CONTENTS
________________
Foreword …………………………………………………………………………………………… xi
Abbreviations …………………………………………………………………………………… xiii
Doctrine
Janeen CARRUTHERS
Discerning the Meaning of “Habitual Residence of the Child” in
UK Courts – A Case for the Oracle of Delphi ……………………………………… 1
Christian KOHLER
The EU Succession Regulation before the German Courts 2016-2019 ….. 37
Mihail DANOV
Cross-Border Litigation – New Data, Initial Brexit Implications in
England and Wales and Long-Term Policy Choices …………………………… 57
Nikitas E. HATZIMIHAIL
On the Doctrinal Beginnings of the Conflict of Laws ……………………….. 101
Interim Measures in International Commercial Litigation
Proceedings of the SICL’s 31st Private International Law Day –
Lausanne, 23 May 2019
Andrea BONOMI
Interim Measures at the Crossroads of International Litigation and
Arbitration – Some Remarks on Concurrent Jurisdiction and Cross-
Border Enforcement ……………………………………………………………………… 137
Alexander LAYTON
Interim Measures in English Law and their Circulation …………………….. 159
Sandrine GIROUD / Noémie RAETZO
The Recognition and Enforcement of Foreign Interim Measures
in Switzerland ……………………………………………………………………………… 175
Ilaria PRETELLI
The Law Applicable to Provisional and Protective Measures – With
a Focus on the EU System of Ancillary Reliefs ………………………………… 197
Gilles CUNIBERTI
Jurisdiction to Grant Interim Measures in Support of Arbitration –
The Influence of European Law …………………………………………………….. 225
Laurent HIRSCH
Swiss Practice of Interim Relief in International Arbitration ……………… 237
Karim EL CHAZLI / Ahmed HABIB
Interim Measures in International Arbitration – An Arab Perspective …. 259
viii
The 2019 Hague Judgments Convention
Matthias WELLER
The Jurisdictional Filters of the HCCH 2019 Judgments Convention ….. 279
Marko JOVANOVIC
Thou Shall (Not) Pass – Grounds for Refusal of Recognition and
Enforcement under the 2019 Hague Judgments Convention ………………. 309
Lidia SPITZ
Refusal of Recognition and Enforcement of Foreign Judgments on
Public Policy Grounds in the Hague Judgments Convention –
A Comparison with The 1958 New York Convention ……………………….. 333
Cristina M. MARIOTTINI
Establishment of Treaty Relations under The 2019 Hague Judgments
Convention ………………………………………………………………………………….. 365
National Reports
Yitshak COHEN
International Jurisdiction of the Rabbinical Courts in Claims for
Divorce in Israel ………………………………………………………………………….. 381
Florence GUILLAUME
The Connecting Factor of the Place of Celebration of Marriage in
Swiss Private International Law …………………………………………………….. 399
Yin LIU
Recognition of Foreign Same-Sex Unions in China ………………………….. 425
Richard Frimpong OPPONG / Sam TECLE
The lex loci delicti Rule in Canadian Conflict of Laws ……………………… 457
Eduardo PICAND ALBÓNICO
Law of Succession to Estates of Deceased Persons in Chilean Private
International Law …………………………………………………………………………. 489
Court Decision
Wolfgang FABER
Foreign Proprietary Security Rights Failing to Comply with National
Publicity Standards to Be Accepted? On Case No. 3 OB 249/18S of the
Austrian Supreme Court of Justice …………………………………………………. 509
ix
Forum
Pascal FAVROD-COUNE
The Legal Position of the Weaker Party in B2B Relationships with
Online Platforms in the European Union – An Analysis of Dispute
Resolution Mechanisms in Regulation (EU) 2019/1150…………………….. 523
Maria Chiara MARULLO
“Almost” Universal Jurisdiction …………………………………………………….. 549
Adeline MICHOUD
Public Policy Exceptions in U.S. and European Private International
Law – An Ultimate Fortress for Social and Environmental Standards? 569
Chukwuma Samuel Adesina OKOLI
Choice of Law in The European Union – Common Law Procedure and
Evidence …………………………………………………………………………………….. 589
Sven RIVA
Decentralized Autonomous Organizations (DAOs) in the Swiss
Legal Order …………………………………………………………………………………. 601
Cassius Jean SOSSOU BIADJA
Bridging the Gap in the OHADA Treaty with Respect to the
Interpretative Role of the CCJA in Arbitration Matters ……………………… 639
Index ………………………………………………………………………………………………. 663
UK Supreme Court on law applicable to arbitration agreements
Written by Stephen Armstrong, lawyer practicing in Toronto, Ontario, Canada with an interest in international arbitration. [Linkedin]
On Friday, October 9, 2020, the United Kingdom Supreme Court released an interesting decision concerning the applicable law governing arbitration agreements in international contracts and the jurisdiction of the courts of the seat of the arbitration to grant anti-suit injunctions. The case is Enka Insaat Ve Sanayi A.S. v 000 Insurance Company Chubb, [2020] UKSC 38.
The full text of the Supreme Court’s decision is available here.
A digestible summary of the case, including the facts, the breakdown of votes, and the reasons, is available here.
Interestingly, the Supreme Court fundamentally disagreed with the Court of Appeal on the role of the seat of the arbitration for determining the law of the arbitration agreement. The Supreme Court held that an express choice of law in the main contract should be presumptively taken as an implied choice of law governing the arbitration agreement. By contrast, the Court of Appeal had held that the law of the seat was the parties’ presumptive implied choice of law for the arbitration agreement. The Supreme Court did, however, affirm the Court of Appeal’s holding that the courts of the seat are always an appropriate forum to grant an anti-suit injunction, regardless of the applicable law.
Unlike other choice of law issues in the UK, this issue is governed by the common law, rather than the EU’s Rome I regulation. This makes the Supreme Court’s decision a common law authority, rather than an EU law authority. I therefore expect that this decision will find purchase throughout the Commonwealth, including my home jurisdiction of Ontario, Canada.
The End of the “Sahyouni Saga”
The German Bundesgerichtshof (BGH) in August finally decided the case “Sahyouni” that made it twice to the ECJ (Sahyouni I and Sahyouni II). The BGH decision (German text here) applied the new German rules on private divorces. The German legislator had enacted these rules after the ECJ declared the Rome III Regulation as only applicable on divorces by a court. Additionally, the court took the opportunity to comment on several other private international law issues. The probably most interesting issues of the case are (1) the new German rules, (2) the treatment of parties with more than one nationality if the connecting factor is nationality and (3) the question whether the unilateral private divorce finally was recognized.
- German law regarding “private divorces”
Following the second “Sahyouni” decision, new private international law rules were enacted. German private international law follows the principle of “recognition via conflict of laws”, meaning that a divorce not issued by a court decision will only be recognized if it complies with the rules applicable according to German private international law. The new rules basically declared the Rome III Regulation applicable to private divorces mutatis mutandis except for those rules that could not be applied on a private divorce (e.g. the application of lex fori as there is not forum). Furthermore, Article 10 Rome III, the rule that initially triggered the request for the preliminary ruling, is not applicable. Thus, only the “usual” public policy exception can prevent the application of the lex causae.
- Treatment of double-nationality
The court came to the conclusion that the spouses did not have a common habitual residence as required by Article 8 lit a, b Rome III (mutatis mutandis). So, the question occurred whether the spouses had a common nationality (Article 8 lit. c). In this special case, both spouses did not only have one common nationality but two: German and Syrian. As the Rome III regulation is silent to the treatment of double-nationals (and, furthermore, Rome III only applied mutatis mutandis), the court applied Article 5 para. 1 EGBGB (English non-official translation here). This rule provides in case of double-nationality (1) a prevalence of the German nationality and (2), if no German nationality is in play, a prevalence of the “effective” nationality, ie the nationality that is closer connected to the person, usually the one of habitual residence. In the context of EU private international law, there was a discussion whether these two rules can hold – given that in Garcia Avello and Haddadi similar rules had been regarded as violating EU primarily law, esp. the principle of non-discrimination.
In “Sahyouni” the BGH concluded that both cases were not relevant. The second (and probably non-effective) nationality of both spouses was the Syrian, a non-EU nationality. Thus, the principle of non-discrimination did not apply. Therefore, German law applied on the case. German law does not allow a “private divorce”. For that reason, the divorce was regarded as invalid in Germany.
- Unilateral divorces and public policy
Finally, the court took the opportunity to mention that the poblic policy exception also would have made the divorce invalid: Article 10 Rome III was not applicable, thus, Article 6 EGBGB (English) would have applied. Contrary to Article 10, Article 6 requires an analysis of the concrete result of the application of the lex causae to determine whether this result violates fundamental principles/values of the German legal system. In Germany, divorces by unilateral declarations (such as talaq or ghet) can be regarded as not violating the German ordre public, especially if both spouses agree on the divorce. From the facts of the case the BGH concluded that in “Sahyouni” the wife did not wish for divorce. For that reason, the recognition of the unilateral declaration would violate the German public policy (“would” as this argument was not decisive for the case – as aforementioned, German law applied).