This intriguing book examines the fundamental juridical nature, classification and enforcement of choice of court agreements in international commercial litigation. It integrates the comparative and doctrinal analysis of choice of court agreements under the Brussels I Recast Regulation, the Hague Convention on Choice of Court Agreements (‘Hague Convention’) and the English common law jurisdictional regime into a theoretical framework. In this regard, the book analyses the impact of a multilateral and regulatory conception of private international law on the private law enforcement of choice of court agreements before the English courts – highly recommendable for all who are interested in choice of court agreements!

For more information see here.

Prof. Fabrizio Marrella, Chair of International Law (“Cà Foscari” University of Venice & LUISS University of Rome) has recently published “Manuale di diritto del commercio internazionale” (CEDAM, 2017). A presentation has been kindly provided by the author (the complete TOC is available on the publisher’s website):

Following the success of previous publication by the same Author, this book provides the first University textbook of International Business Law in Italian designed to introduce students and practitioners to this fundamental field of law. It classifies different sources of law affecting trasnational business operations according to their origin and legal system (National – i.e. Italian, European Union, Intergovernmental and non national – i.e. new lex mercatoria and the Unidroit Principles for international Commercial Contracts, as well as identifies the different actors in the field (companies, States, Intergovernmental Organizations, Non Governmental Organizations).

In such a framework, rules of International Economic Law (from WTO to the new EU Customs Code, from economic treaties to embargos) provides the setting into which the core contract are operationals. Thus, the main perspective of the book is that of Private International Law by which different rules are applied according to their sphere of application. Among the topics discussed, there are the main transnational business contracts (i.e. sales, transport, payment methods, insurance, agency and distribution contracts, intellectual property, trade finance, bank guarantees, foreign direct investments) and the most prominent dispute resolution mechanisms such as Arbitration and ADRs.

The book takes into proper account, inter alia, the Unidroit Principles for International Commercial Contracts 2016; EU Regulation n. 1215/2012 (Regulation Brussels Ia) and the new ICC Arbitration Rules 2017.

Title: F. Marrella, “Manuale di diritto del commercio internazionale”, Padua, CEDAM, 2017.

ISBN: 978-88-13-36293-5. Price: EUR 55. Pages: XXXII-800. Available at CEDAM.

Internship applications at the Permanent Bureau of the Hague Conference on Private International Law (HCCH – Hague office) are now open for the March-May 2018 period and will close at midnight (Central European Time) on Friday 1st December 2017.

The duration of the internship will be two to three months. Applications must comply with the requirements set out in the following link: https://www.hcch.net/en/recruitment/internships.

Internships offered by the HCCH are not remunerated.

(This Report is provided by Guo Yujun, professor, Wuhan University Law School; Liang Wenwen, associate professor, Wuhan University Law School) 

On 22 and 23 September 2017, the “Global Forum on Private International Law & 2017 Annual Meeting of China Society of Private International Law: Cooperation for Common Progress?Evolving Role of Private International Law” was held in Wuhan, China, under the auspices of the Ministry of Foreign Affairs and China Society of Private International Law. The event was held on the 30^th anniversary of China’s accession to the Hague Conference on Private International Law (HCCH) and the 30^th anniversary of China Society of Private International Law. On the opening ceremony, Mr ZHANG Mingqi, Vice President of China Law Society; LIU Guixiang, Standing Member of the Adjudication Committee of the Supreme People’s Court of the People’s Republic of China; HAN Jin, President of University Council of Wuhan University; Christophe Bernasconi, Secretary-General of the HCCH; HUANG Jin, President of China Society of Private International Law, Professor and President of China University of Political Science and Law, and XU Hong, Director-General, Department of Treaty and Law, Ministry of Foreign Affairs of the People’s Republic of China, gave speeches. The event gathered over 400 officials and academics from 18 countries and regions.

Mr ZHANG Mingqi reviewed the work of China Society of Private International Law in facilitating the adoption of China’s first private international law act and in international exchange, and calls for its further contribution to providing the legal safeguards for the Belt and Road Initiative. Mr Liu Guixiang considered the Belt and Road Initiative an opportunity for Chinese private international law and reviewed the work of the Supreme People’s Court in providing the legal safeguards for the Belt and Road Initiative. Mr Han Jin welcomed the participants to Wuhan University, a leading institution in private international law. Mr Christophe Bernasconi recognized that the HCCH conventions can provide the legal safeguards for the Belt and Road Initiative, and China’s contribution to the work of the HCCH. Mr Huang Jin reviewed the achievements of China Society of Private International Law in advising the legislature and the judiciary, and education, and called for building a community of private international law. Mr Xu Hong called for the common progress through private international law and legal safeguards of the Belt and Road Initiative.

On Title I: Common Progress through Private International Law over 30 Years, speakers and topics are as follows: GUO Xiaomei, Deputy Director-General, Department of Treaty and Law, Ministry of Foreign Affairs of the People’s Republic of China, “Retrospect and Prospect on the 30th Anniversary of China’s Membership of the Hague Conference on Private International Law”; Symeon C. Symeonides, Professor, Willamette University College of Law, “Private International Law Codifications: The Last 50 Years”; Hans Van Loon, Former Secretary-General of the HCCH, “Common Progress of Private International Law over the Past 30 Years – China, the Hague Conference, and the World”; LIU Renshan, Professor, Zhongnan University of Economics and Law, “The HCCH and China: the History, Practical Choice and the Future”.

On Title II: The Belt and Road Initiative and International Legal Cooperation, speakers and topics are as follows: Christophe Bernasconi, Secretary-General of the HCCH, “The Belt & Road Initiative and the HCCH”; Mathijs H. ten Wolde, Professor, Department of Private International Law, University of Groningen, “Recognition and Enforcement of Chinese Money Judgments in the Netherland and the EU”; Anselmo Reyes, Professor of Legal Practice at the University of Hong Kong, “Facilitating the Resolution of Cross-Border Commercial Disputes within the Belt and Road Initiative”; Tang Zheng Sophia , Professor, Newcastle University Law School, “The Belt and Road and Cross-Border Judicial Cooperation”; HUO Zhengxin, Professor of Law, Faculty of International Law of the China University of Political Science and Law, “Proof of Foreign Law against the Background of the Belt and Road Initiative”.

On Title III: A Global Look at Recent Developments of Private International Law, speakers and topics are as follows: Michael Dennis, Attorney Adviser, Executive Director of the Department of State Advisory Committee on Private International Law, U.S. Department of State, “Improving Business Environment, Filling the Gaps, Missing Economic Legal Infrastructure in APEC Economies”; Kyung Han Sohn, Professor, Emeritus President, Korea Private International Law Association, Sungkyunkwan University School of Law, “Application of Lex Mercatoria in Asia: Focusing on Developments in Korea”; Tiong Min Yeo, Professor, School of Law Singapore Management University, “Party Autonomy in the Choice of Law for Torts in Asia” ; Yuko Nishitani, Professor, Kyoto University Graduate School of Law, “Enforcement of Choice of Court Agreements”; Elizabeth Aguiling-Pangalangan, Professor, College of Law, University of the Philippines, “The Hague Abduction Convention and Cross Border Family Relations”; CHEN Weizuo, Professor of Law, Tsinghua University School of Law, “The Asian Principles of Private International Law: Objectives, Contents, Structure and Selected Topics on Choice of Law”; Mary Keyes, Professor, Griffith Law School, “Developing Australian Private International Law: the Hague Choice of Court Agreements Convention and the Hague Principles of Choice of Law for International Commercial Contracts” ; Choong Yeow-Choy, Professor, Faculty of Law University of Malaya, “Harmonization of Transnational Dispute Resolution Mechanisms and the Recognition and Enforcement of Decisions in the ASEAN Region”; José Antonio Moreno Rodríguez, Lawyer and Professor, “The Hague Principles and the New Paraguayan Law on International Contracts: Potential Influence on Legal Reform in the Americas and Abroad”; Frank Poon, Representative of the Asia Pacific Regional Office (HCCH), “Recent Development of Private International Law” ; GUO Yujun, Vice President and Secretary-General of China Society of Private International Law, Professor, Wuhan University, “Changing the Law on Recognition and Enforcement of Foreign Judgments in China”.

On Title IV: The Hague Judgments Project, speakers and topics are as follows: Andreas Stein, Head of Unit, DG Justice and Consumers, European Commission, “The Hague Judgments Project: an EU Perspective”; Ronald A. Brand, Professor, Director, Center for International Legal Education, University of Pittsburgh School of Law, “Determining Qualification for the Global Circulation of a Judgment Under a Hague Judgments Convention”; Geert van Calster, Professor, University of Leuven, “The Hague Judgments Project: A powerful Potion or a Cauldron Full of Jurisdictional Spells?”; Richard Garnett, Professor, Law School of University of Melbourne, “The Hague Judgments Project and Increasing Interaction between Australia and China”; Alex Mills, Professor, UCL University Law School, “The Hague Judgments Project: Back to the Future”; Jan von Hein, Professor, Director, Director of the Institute for Comparative and Private International Law, University of Freiburg, “The Guarantee of a Fair Trial as an Obstacle to the Recognition and Enforcement of Judgments: Comparative Perspectives”; Maria Blanca Noodt Taquela, Professor, Universidad de Buenos Aires, “Relationship between the Hague Judgment Project and Other Instruments: The Argentina-China Treaty on Judicial Cooperation on Civil and Commercial Matters Adopted in 2001”; Knut Benjamin Pissler, M.A, Senior Research Fellow, Max Planck Institute for Comparative and International Private Law, “Recognition and Enforcement of Chinese Court Decisions in Germany: Problems and Perspectives”; SUK Kwang Hyun, Professor, Vice President, KOPILA, Seoul National University, “Several Issues of the Hague Choice of Court Convention”; HE Qisheng, Professor, Wuhan University, “Dilemma and Its Way out in Judgments Reciprocity: From Sino-Japan Model to Sino-Singapore Model”.

Chinese scholars gave presentations in Chinese on four titles: Doctrines and Practices of Chinese Private International Law; the Belt and Road Initiative and International Legal Cooperation; the Belt and Road and Innovations in Chinese Arbitration; China and the Hague Choice of Court Convention.

The Closing ceremony was chaired by Ms GUO Yujun. Mr Frank Poon, Representative of HCCH Asia Office, made a speech on behalf of Christophe Bernasconi, Secretary General of the HCCH, appreciating the involvement of China in the HCCH and the potential of the HCCH to the Belt and Road Initiative. Mr XIAO Yongping, Professor, Director of Wuhan University Institute of International Law, Standing Vice President of China Society of Private International Law, made the closing speech, summarizing the discussions and making three points: first, the Asian regional cooperation needs a set of effective dispute settlement mechanisms; secondly, the current international dispute settlement mechanism is dominated by western developed economies. It is the time for Asian countries to establish a dispute resolution body with regional characteristics; thirdly, to construct a more equitable and reasonable regional dispute resolution body should be the ideal choice for all Asian countries to promote regional cooperation. Professor Huo Zhengxin read the Wuhan Declaration, reviewing the development of private international law and the involvement of China in the work of the HCCH over the past thirty years and the current challenges to private international law, and calling for joint contributions to the prosperity of global private international law of all participants.

Prepared by Alexandre Biard, Xandra Kramer and Ilja Tillema, Erasmus University Rotterdam

The Netherlands has become dangerously involved in the treatment of mass claims, Lisa Rickard from the US Chamber of Commerce recently said to the Dutch financial daily (Het Financieele Dagblad, 28 September 2017) and the Dutch BNR newsradio (broadcast of 28 September 2017). This statement follows the conclusions of two reports published in March and September 2017 by the US Institute for Legal Reforms (ILR), an entity affiliated with the US Chamber of Commerce. Within a few hours, the news spread like wildfire in online Dutch newspapers, see for instance here.

Worryingly enough, the March 2017 report, which assessed collective redress mechanisms in ten Member States, predicted that ‘there are a number of very powerful indicators that all of the same incentives and forces that have led to mass abuse in other jurisdictions are also gathering force in the EU’. Among the jurisdictions surveyed, the Netherlands appeared as a place particularly prone to such abuse. The September 2017 report focuses on consumer attitudes towards collective redress safeguards, and ultimately concludes that 85% of respondents tend to support the introduction of safeguards for the resolution of mass claims.

The publication of the aforementioned reports is timely as the European Commission’s evaluation report on the 2013 Recommendation on Collective Redress is expected this autumn, following the recent call for evidence.  Some of the statements in these reports call for a more nuanced view. Indeed, the Dutch approach to the resolution of mass claims might have its drawbacks. It is certainly not exempt from criticisms. However, in a matter of such expedient nature, it is of the utmost importance that both sides are thoroughly addressed and assessed.

For the information of readers that are not familiar with the Dutch system: the Netherlands currently has two mechanisms that have been designed for collective redress specifically. The first one is the collective action for injunctive or declaratory relief. A verdict in such action can provide the basis for an amicable settlement or for individual proceedings to seek monetary compensation. The second mechanism is the much-discussed WCAM settlement (based on the Dutch Collective Settlements Act, see also a previous post linking to papers and a report on the WCAM procedure). In addition, there is a proposal to introduce a collective action for damages (see a previous post on this blog).

Bad apples and the bigger picture

In the past years, few incidents have occurred in Dutch collective redress that may indeed come close to ‘American situations’ that are generally feared in Europe. Unfortunately, some commentators have chosen to mainly highlight such incidents. Notably, the ILR report of March 2017 refers to the notorious case of Stichting Loterijverlies, in which a foundation initiated a collective action on behalf of aggrieved lottery ticket holders against the Dutch State Lottery. The report rightfully mentions that the foundation’s director has been accused of funnelling elsewhere, for personal gain, part of the consumers’ financial contribution to the foundation. However, the report neglects to mention that the foundation had also been litigating for quite some years and that, ultimately, the Supreme Court ruled in its favour: the Dutch State Lottery had misled consumers for years. Furthermore, the report fails to mention that some of the foundation’s participants successfully filed a request to replace the foundation’s board. Moreover, despite (or on account of) the complexity of establishing causation and damages, the case has now been amicably settled. As part of the settlement, participants of the foundation have been reimbursed their financial contribution thereto, and all class members were free to participate in the settlement: an extraordinary, one-off lottery draw. Reportedly, 2.5 million individuals have done so.

Obviously, incidents such as the aforementioned case are of no avail to civil justice, and justify concerns about claim vehicles’ activities and motives. However, we should also consider the many positive effects of collective redress mechanisms. Generally, Dutch collective actions and WCAM settlements provide for much-needed effective and efficient dispute resolution in mass harm situations.

Safeguards work: learning from experience

The March report by the ILR warns against the gradual decline of safeguards in the Netherlands, and in the EU more generally. Yet, various safeguards already exist, continue to do so, and generally function well in practice. For instance, the admissibility rules regarding representative organizations (that bring collective actions or are involved in a WCAM settlement) have become more stringent and are applied increasingly strict by courts. As to the current Dutch collective actions, there is proof that its numbers have slowly risen since 1994, but no proof exists that this is necessarily attributable to entrepreneurial parties, let alone that they have increased the number of frivolous claims (Tillema 2017). The proposed collective action for damages further raises the current threshold for representative organizations to obtain standing. The requirements concern the organizations’ governance, financial means, representativeness, experience and expertise, and individuals’ participation in the decision-making process. Indeed, a judgment will have binding effect upon all aggrieved parties who have not opted out, but all actions will be publicly registered, there is a strict scope rule, and individuals can raise objections.

So far, eight WCAM settlement have been declared binding. Undeniably, various parties have entered this market, including US counsels and their sizeable fees. However, in spite of its difficult task, the Amsterdam Court of Appeal seems growingly comfortable in assessing the reasonableness of a collective settlement, including the representative organizations’ remuneration. In Converium, the reasonableness of (contingency) fees was assessed for the first time. In the currently pending eighth WCAM case, the Fortis-settlement, the court has demonstrated its awareness of the risks and of its task to also scrutinize the motives of representative organizations. In its interlocutory judgment, it has ruled that the settlement, in its current state, cannot be declared binding. It is deemed not reasonable due to, inter alia, the sizeable remuneration of the representative organizations and their lack of transparency thereon.

A Dutch ‘manoeuvre’ to become a ‘go-to-point’ for mass claim or an attempt to enhance access to justice for all?

‘The Netherlands and the UK seem to be manoeuvring themselves to become the go-to jurisdictions for collective claims outside the EU’, the March report highlighted. Obviously, this not the first time that other countries express their concerns against the extra-territorial effects of the Dutch legislation, an issue that has been discussed for several years in the context of the WCAM (Van Lith, 2011). The ILR report indeed highlighted that in the Converium case, the Amsterdam Court of Appeal declared the settlement binding where a majority of shareholders were domiciled outside the Netherlands. Yet, the key question here is whether, for reasons linked to equality and efficiency, individuals who have suffered from losses resulting from a same misbehaviour should not be treated in a same manner and in the same proceeding, regardless of their actual location. By asserting global jurisdiction, the Amsterdam Court of Appeal ultimately ensured access to justice and equal treatment for all parties placed in similar situations, and ultimately avoided costly fragmentation of the case for parties and courts. In this regard, it should also be highlighted that the WCAM is a settlement-only mechanism, and – to the benefit of victims of wrongdoings – it is the wrongdoing party and the representatives of the aggrieved parties that jointly choose to address the Amsterdam Court of Appeal considering that the Netherlands has a suitable procedure to declare such settlement binding.

It is evident that collective redress mechanisms have both benefits and drawbacks. More than ever, the challenging, yet indispensable key word here is balance. As Commissioner Jourova recently observed at the release of the ILR September report, ‘the discussion in EU countries is in full swing on how to strike the right balance between access to justice and prevention of abuse’. We hope this short post can contribute to the discussion.

The Max Planck Institute Luxembourg (MPI), heading an international consortium, including researchers from the Universities of Florence, Ghent, Heidelberg, Madrid (Complutense), Oxford, Paris (Sorbonne), Rotterdam, Uppsala, Vienna and Warsaw, has undertaken a European Commission-funded Study (JUST/2014/RCON/PR/CIVI/0082) on the laws of national civil procedure of the 28 Member States and the enforcement of European Union law.

The Study has two strands: the first deals with the impact of national civil procedure on mutual trust and the free circulation of judgements within the 28 Member States of the EU and the second deals with the impact of national civil procedure on the enforcement of consumer rights derived from EU law.

On September 28, the first strand of the Max Planck Luxembourg procedural law study has been published by the European Commission on the EU Law and Publications portal.

More information are available here.

The object of the conference is to inquire into the key question of assessment of proof, namely standard of proof. In general, evaluation of evidence requires an intellectual process, in which the evaluator reconstructs the past based on available information. Since the past cannot be repeated, the evaluator may only attempt to get as close as possible to the reality. Generally, as to the standard of proof we may identify two extreme approaches. First, which we can describe as hypothetical or speculative, stems from the persuasion of the judge. It employs such terms as “truth”, “certainty” or “beyond reasonable doubts”, etc. The result of it is “everything or nothing”. The second approach is, on the first sight, more scientific, since it measures the extent of credibility of the reconstruction by a degree of probability. If, for example, the degree of probability exceeds 51 %, such information is considered as proven. The main purpose of the conference is therefore to learn about different approaches in relevant European jurisdictions. The second purpose of the conference is to assess these different approaches and find an adequate standard. Finally, the conference shall increase the understanding of the matter by the interested public and the participants.

The detailed program of the conference can be found here.

The Royal Netherlands Society of International Law (www.knvir.org) is delighted to announce its Annual General Meeting on PROTECTING THE RIGHTS OF FAMILIES AND CHILDREN IN A CHANGING WORLD.  Three reports on this theme will be presented and discussed on this occasion. The meeting will be held in The Hague on 3 November 2017 and participation is free of charge.

Should you be in or near The Hague on that date, feel free to join this interesting gathering. The reports will be available for sale at Asser Press shortly after the event.

On September 13, the Commission adopted a Recommendation for a Council Decison authorising the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes.

The multilateral investment court initiative is conceived as a reaction to a number of problems that have been identified as stemming from ISDS (Investor-State Dispute Settlement), including the lack of or limited legitimacy, consistency and transparency of ISDS as well as the absence of a possibility of review.  In the words of the Commission, the initiative aims at “setting up a framework for the resolution of international investment disputes that is permanent, independent and legitimate; predictable in delivering consistent case-law; allowing for an appeal of decisions; cost-effective; transparent and efficient proceedings and allowing for third party interventions (including for example interested environmental or labour organisations). The independence of the Court should be guaranteed through stringent requirements on ethics and impartiality, non-renewable appointments, full time employment of adjudicators and independent mechanisms for appointment”.

The text can be found here.