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GEDIP’s Reccommendation on the Proposal for a Directive on Corporate Sustainability Due Diligence
Written by Hans van Loon, former Secretary General of the HCCH and Honorary Professor of the University of Edinburgh Law School
As reported in this blog before (see CSDD and PIL: Some Remarks on the Directive Proposal), the European Commission on 23 February 2022 adopted a proposal for a Directive on corporate sustainability due diligence.
Earlier, at its annual meeting in 2021, the European Group for Private International Law (GEDIP) had adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability, and this blog reported on this Recommendation too, see GEDIP Recommendation to the European Commission on the private international law aspects of the future EU instrument on corporate due diligence and accountability.
While some of the recommendations proposed by GEDIP last year are reflected in the Draft Directive, the Draft fails to follow up on several crucial recommendations concerning judicial jurisdiction and applicable law. This will detract from its effectiveness.
In particular:
- The Proposal, while extending to third country companies lacks a provision on judicial jurisdiction in respect of such companies;
- The Proposal, while extending a company’s liability to the activities of its subsidiaries and to value chain co-operations carried out by entities “with which the company has a well-established business relationship”, lacks a provision dealing with the limitation of the provision on co-defendants in the Brussels I bis Regulation (Article 8(1)) to those domiciled in the EU;
- The Proposal lacks a provision allowing a victim of a violation of human rights to also invoke, similar to a victim of environmental damage under Article 7 of Regulation 864/2007 (Rome II), the law of the country in which the event giving rise to the damage occurred, and does not prevent companies from invoking a less strict rule of safety or conduct within the meaning of Article 17 of Rome II;
- The provision of the Proposal on the mandatory nature of the provisions of national law transposing the Directive (Article 22 (5)) is insufficient because (i) the words “in cases where the law applicable to actions for damages to this effect is not that of a Member State” are redundant and (ii) allthese provisions of national law transposing the Directive should apply irrespective of the law applicable to companies, contractual obligations or non-contractual obligations.
GEDIP therefore, on the occasion of its meeting in Oslo, 9-11 September 2022 adopted a Recommendation concerning the Proposal for a directive of 23 February 2022 on Corporate Sustainability Due Diligence, following up on its Recommendation to the Commission of 8 October 2021. The text of the Recommendation can be found here.
[This post is cross-posted at the EAPIL blog]
Chinese Case Law Collection Adds to the CISG’s Jurisconsultorium: Reflections on the United Nations Convention on Contracts for the International Sale of Goods and its Domestic Implementations
The United Nations Convention on Contracts for the International Sale of Goods (‘CISG’), currently adopted by 95 States, is a treaty intended to harmonise the laws governing cross-border goods trade: and thereby promote trade itself. So much is made clear in its Preamble:
The States Parties to this Convention, …
Being of the opinion that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade,
Have agreed as follows: …
Art. 7(1) CISG’s instruction for interpreters to have regard ‘to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade’ establishes a requirement of autonomous interpretation. This, in turn, facilitates the CISG’s global jurisconsultorium: whereby courts, arbitrators, lawyers, academics, and other interested stakeholders can influence and receive influence in relation to the CISG’s uniform interpretation. A recent publication edited by Peng Guo, Haicong Zuo and Shu Zhang, titled Selected Chinese Cases on the UN Sales Convention (CISG) Vol 1, makes an important contribution to this interpretative framework: presenting abstracts and commentaries addressing 48 Chinese CISG cases spanning 1993 to 2005, that may previously have been less accessible to wider international audiences.
A review of this case law collection discloses an interesting phenomenon affecting the CISG’s Chinese application: at least, until very recently. Pursuant to Art. 142(2) General Principles of the Civil Law (which was effective in the People’s Republic of China until repealed as of 1 January 2021):
[I]f any international treaty concluded or acceded to by the People’s Republic of China contains provisions differing from those in the civil laws of the People’s Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People’s Republic of China has announced reservations.
Numerous contributions to Guo, Zuo and Zhang’s volume – including by Wang, Guo and Zhang; Luo; Luo again; Wang; and Xu and Li – observe that some Chinese courts have interpreted this provision to require the CISG’s application only where it is inconsistent with non-harmonised Chinese law. Whilst this approach to the CISG’s application is noteworthy for its inconsistency with international understandings of the treaty, it is arguably more noteworthy for highlighting that national law itself is often ‘where the relationship between the convention and national law is regulated’.[1] Scholarship has given much attention to the success (or otherwise) of Art. 7(1) CISG in securing the treaty’s autonomous interpretation. However, machinery provisions giving the CISG local effect in any given legal system (themselves being matters of ‘local legislative judgment’) have an apparently-underappreciated role to play, too.
Wang’s contribution quotes Han as writing that the Chinese inconsistency concept’s effective implementation of a reverse burden of proof in establishing the CISG’s application is a situation that ‘I am afraid … is unique in the world’. On the contrary, and not unlike China’s former Art. 142(2) General Principles of the Civil Law, Australia’s CISG implementing Acts still ostensibly frame the treaty’s local application in terms of inconsistency. The Sale of Goods (Vienna Convention) Act 1986 (NSW) s 6 is representative of provisions found across the Australian state and territory jurisdictions: ‘[t]he provisions of the Convention prevail over any other law in force in New South Wales to the extent of any inconsistency’. Case law from Victoria and from Western Australia has read those jurisdictions’ equivalent inconsistency provisions as implying the CISG’s piecemeal application, only where particular provisions are inconsistent with local law. Looking even further afield, Australia’s own use of the inconsistency device is far from unique. Singaporean and Canadian legislation make use of the inconsistency concept, as does Hong Kong’s recently-promulgated CISG Ordinance. In the latter case, the statutory interpretation risks associated with the adoption of an inconsistency provision were drawn to the Hong Kong Department of Justice’s attention. However, Australia’s statutory model prevailed, perhaps in part because it has previously been put forward as a model for Commonwealth jurisdictions looking to implement the CISG.
At the risk of being slightly controversial, at least some scholarship addressing the failings of national CISG interpretations may have been asking the wrong question: or at least, missing an important additional question. Instead of asking why any given court has failed to apply and respect Art. 7(1) CISG’s interpretative directive, we might instead (or also) usefully ask whether that given State’s CISG implementation legislation has been drafted so as to invite the local law comparisons that have then been made. Some responsibility for problematic CISG interpretations might lie with the legislature, in addition to the judiciary.
In Australia, the Playcorp decision – Victoria’s inconsistency case referred to above – has been taken by subsequent cases in both the Federal Court and in the Full Federal Court of Australia as authority for the proposition that Art. 35 CISG’s conformity requirements equate to the implied terms contained in the non-harmonised Goods Act 1958 (Vic) s 19. The Federal Court’s first-instance decision was itself then cited in New South Wales for that same proposition: leading to a problematic CISG interpretation that is now entrenched under multiple layers of precedent. Whilst the equation being made here is rightly criticised in itself, it has Australia’s inconsistency provisions – in addition to our courts’ failures to apply Art. 7(1) CISG – resting at its core.
Guo, Zuo and Zhang’s Selected Chinese Cases on the UN Sales Convention (CISG) Vol 1 thereby makes a valuable contribution to the Convention’s jurisconsultorium: first, by virtue of its very existence, but secondly, by its additional disclosure of China’s former inconsistency struggles to the wider scholarly community.
[1] Bruno Zeller, ‘The CISG in Australasia: An Overview’ in Franco Ferrari (ed), Quo Vadis CISG? Celebrating the 25th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods (Bruylant, 2005) 293, 299.
* Senior Lecturer, Department of Business Law and Taxation, Monash Business School
Twitter: @LawGuyPI
International Trade and International Commercial Law research group: @MonashITICL
Disclosure: The author is a confirmed contributor to the forthcoming Selected Chinese Cases on the UN Sales Convention (CISG) Vol 3.
Special Commission on the Hague Adults Convention: Five Takeaways from its First Meeting
This post was written by Pietro Franzina and Thalia Kruger, and is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.
The delegations of more than thirty Member States of the Hague Conference on Private International Law attended the first meeting of the Special Commission charged with reviewing the operation of the Hague Hague Convention of 13 January 2000 on the international protection of adults of 13 January 2000 on the international protection of adults. The meeting took place in The Hague and online from 9 to 11 November 2022 (for a presentation of the meeting, see this post on Conflictsoflaw.net and this one on the EAPIL blog). A dozen organisations, governmental and non-governmental (including the Council of the Notariats of the European Union, the Groupe Européen de Droit International Privé and the European Association of Private International Law), were also in attendance.
The discussion covered a broad range of topics, leading to the conclusions and recommendations that can be found on the website of the Hague Conference. The main takeaways from the meeting, as the authors of this post see them, are as follows.
The Hague Adults Convention Works Well in Practice
To begin with, the Special Commission affirmed that the Convention works well in practice. No major difficulties have been reported either by central authorities instituted under the Convention itself or by practitioners.
Doubts occasionally appear with respect to some provisions. Article 22 for example provides that measures of protection taken by the authorities of a Contracting State “shall be recognised by operation of law in all other Contracting States”, unless a ground for refusal among those listed in the same provisions arises. A declaration of enforceability, as stipulated in Article 25, is only necessary where measures “require enforcement” in a Contracting State other than the State of origin.
Apparently, some authorities and private entities (e.g., banks) are reluctant to give effect to measures of protection that clearly do not require enforcement, such as a judicial measure under which a person is appointed to assist and represent the adult, unless that measure has been declared enforceable in the State where the powers of the appointed person are relied upon. The Special Commission’s conclusions and recommendations address some of these hesitations, so that they should now prove easier to overcome. Regarding exequatur, see para. 33, noting that “measures for the protection of an adult only exceptionally require enforcement under Article 25”, adding that this may occur, for instance, “where a decision is taken by a competent authority to place the adult in an establishment or to authorise a specific intervention by health care practitioners or medical staff”, such as tests or treatments. Other doubts are dealt with in the practical handbook prepared by the Working Group created within the Hague Conference in view of the meeting of the Special Commission. The draft handbook (first version publicly available), which the Special Commission has approved “in principle”, will be reviewed in the coming weeks in light of the exchanges that occurred at the meeting, and submitted to the Council on the General Affairs and Policy of the Conference for endorsement in March 2023).
Situations Exist in the Field of Adults’ Protection that Are Not (Fully) Regulated by the Convention
The Convention deals with measures of protection taken by judicial and administrative authorities, and with powers of representation conferred by an adult, either by contract or by a unilateral act, in contemplation of incapacity. By contrast, nothing is said in the Convention concerning ex lege powers of representation. These are powers of representation that the law of some States (Germany, Austria and Switzerland, for example) confers on the spouse of the adult or a close relative or family member, for the purpose of protecting the adult. Their operation is generally confined to situations for which no measures have been taken and no powers of representation have been conferred by the adult.
The Special Commission acknowledged that ex lege powers of representation fall under the general scope of the Convention, but noted that no provision is found in the Convention that deals specifically with such powers. In practice, ex lege powers of representation may be the subject of cooperation between the authorities of Contracting Parties (notably as provided for under Chapter V), but, where the issue arises of the existence, the extent and the exercise of such powers, the courts and other authorities of Contracting States will rely on their own law, including, where appropriate, their conflict-of-laws rules.
There is yet another gap that the Special Commission discussed. The Commission observed that instructions given and wishes made by an adult in anticipation of a future impairment of their personal faculties (e.g., in the form of advance directives), similarly fall within the general scope of the Convention and are subject, as such, to the cooperation provisions in Chapter V. Whether or not a particular anticipatory act constitutes a power of representation for the purposes of Articles 15 and 16, on powers of representation conferred by the adult, is to be determined on a case-by-case basis. Some unilateral acts plainly come within the purview of Articles 15 and 16, as they actually include a conferral of powers on other persons. Others do not, and may accordingly be dealt with by each Contracting State in conformity with their own law.
States Do Not Currently See an Interest in Modifying the Convention
The question has been raised in preparation of the Special Commission whether the Convention ought to be amended, namely by a protocol to be negotiated and adopted in the framework of the Hague Conference on Private International Law. In principle, a protocol would have provided the States with the opportunity to fill the gaps described above, and address other concerns. However, under international law only those Contracting States that ratify the protocol would be bound by the modifications.
The Special Commission witnessed that, at this stage, no State appears to see an amendment as necessary.
Only one issue remains to be decided in this respect, namely whether the Convention should be modified in such a way as to include a REIO clause, that is, a clause aimed at enabling organisations of regional economic integration, such as the European Union, to join the Convention in their own right. The matter will be discussed at the Council on the General Affairs and Policy of the Conference of March 2023.
The decision lies, in fact, in the hands of the Union and its Member States, as this is currently the only Regional Economic Integration Organisation concerned by such a clause. Their decision will likely be affected by the approach that should be taken in the coming weeks concerning the proposal for a regulation on the protection of adults that the Commission is expected to present in the first half of 2023.
Efforts Should Now Be Deployed Towards Increasing the Number of Contracting Parties
The main problem with the Convention lies in the fact that only relatively few States (fourteen, to be precise) have joined it, so far. Several States stressed the importance of further promoting ratification of, or accession to, the Convention.
It is worth emphasising in this respect that the Hague Adults Convention builds, to a very large extent, on cooperation between Contracting States. This means that a State cannot fully benefit from the advantages of the Convention by simply copying the rules of the Convention into its own legislation, or by relying on such rules on grounds of judicial discretion (as it occurs in the Netherlands and to a large extent in England and Wales), but should rather become a party to it.
Various States expressed an interest in the Convention. The responses to the questionnaires circulated in preparation of the meeting of the Special Commission suggest that at least five States are actively contemplating ratification (Hungary, Italy, Luxembourg, Mexico and Sweden), and that others have considered ratification (Slovakia) or are considering it (Argentina). For its part, Malta signed the Convention on the occasion of the meeting of the Special Commission, and will likely ratify it in the not too distant future.
Tools to Enhance the Successful Operation of the Convention
Some of the practitioners present drew the participants’ attention to practical difficulties in the cross-border protection of adults. To minimise practical difficulties, the Permanent Bureau, in some instances together with the Working Group on the Adults Convention, developed a number of tools.
The first is an extensive country profile, to be completed by Contracting States and made available on the website of the Hague Conference. This profile includes various matters of national law, such as names and content of measures of protection, jurisdiction of courts or other authorities to issue these measures, transfer of jurisdiction, and names, forms and extent of powers of representation.
The second is a toolkit on powers of representation, which contains detailed information about the national laws of States that provided responses, on for instance who can be granted powers of representation, how this granting must take place, and the permitted extent of the representation.
Concluding remarks
All in all, the issue of the cross-border protection of Adults has rightly gained attention over the past ten years. While States amend their domestic legislation to be in conformity with the UN Convention on the Rights of Persons with Disabilities, they seem to be increasingly aware of the importance of ensuring cross-border continuity. This includes continuity of measures of protection issued by authorities such as courts, as well as the powers of representation granted by adults themselves. These matters of private international law require dialogue on the international and European Union level, more States to join the Convention, and tools to assist practice.
News
The Hague Academy of International Law Centre for Studies and Research 2025: “Artificial Intelligence and International Law”
As recently highlighted by contributions on this blog, new technologies have a significant impact on the development of the law. Hence, the Curatorium of the Hague Academy of International Law has chosen for the the 2025 edition of the Centre for Studies and Research (18 August – 5 September 2025) to focus on the emerging topic of “Artificial Intelligence and International Law“. This year, the selected researchers will be work under the guidance of the Directors of Research, Marion Ho-Dac (Université d’Artois) for the French-speaking section as well as Marco Roscini (University of Westminster) for the English-speaking section.
Interested candidates must be researchers and preferably hold an advanced degree (PhD or Doctorate degree). Registration for the 2025 Centre is open from 1 July to 15 October 2024 via the institution’s own Online Registration Form.
The Academy describes the scope of its 2025 Programme as follows (emphasis added to highlight passages of specific interest to col.net readers):
The increasing integration of digital technologies based on Artificial Intelligence (AI) into human activities requires a thorough re-examination of most normative frameworks in the international order. Advanced AI systems operate with ever greater autonomy, generating content, recommendations, predictions and decisions for States, organisations and individuals. AI thus offers enormous opportunities for humankind by facilitating (or even making possible) the performance of certain tasks. At the same time, however, it presents significant risks related, for instance, to potential biases and accountability gaps. In this context, is (public and private) international law capable of addressing the profound changes that the contemporary rise of AI is bringing?
The Centre of Studies and Research 2025 of The Hague Academy of International Law aims to analyse these challenges and opportunities through the lenses of international law in a holistic manner by focusing on three different aspects: AI’s impact on the sources and institutions of the international legal order, AI’s impact on special regimes of international law, and AI’s role in addressing specific contemporary problems.
Selected researchers will be called to work on the following topics under the guidance of the Directors of Research:
- AI and International/Regional Organisations
- AI and International/Regional Courts and Tribunals
- AI and the Making of (Public/Private) International Law
- AI and the Practice of (Public/Private) International Law
- International Governance of AI including Technical Standardisation
- AI and the Risk-based Approach
- AI and the International Law of Armed Conflict
- AI and International Environmental Law
- AI and Conflict of Laws
- AI and International Human Rights Law
- AI and the Law of State Responsibility
- AI and International Criminal Law
- AI and International Business Law
- AI and the Maintenance of International Peace and Security
- Lethal Autonomous Weapons and International Law
- AI and the North-South Divide
- AI and Cybersecurity
- AI and Privacy
- AI and Humanitarian Action
- AI and the Cross-border Movement of Persons
- AI and (Mis)Information
For further information on the HAIL 2025 Centre and the Academy in general, please consult the HAIL Homepage or refer to the attached PDF Programme.
Two Interesting Recent Articles related to Private International Law
Williams C Iheme, “The Overdependence of African Courts and Businesses on English Law and Forum:
The Negative Repercussions on the Development of African Legal and Economic Systems” (2024) 15 Pravni Zapisi, pp. 151-190
The uncritical transplantation of English law by Anglophone-African legislators and judges, and their failure to sufficiently adapt English legal concepts to suit the idiosyncratic socioeconomic conditions in Africa, arguably contribute to the perpetuation of English law’s hegemony therein. It is argued that the overdependence on English law and courts by African businesses in resolving contractual disputes
is not necessarily due to any alleged stellar qualities of the former, but largely due to the over-marketing of the English legal system’s competence by its apologists. The analysis uses piquant examples to elicit some adverse effects of using/overreliance on the English law and forum by African businesses in resolving contractual disputes.
To reposition from the lengthened shadow of English law, Anglophone African legislators, judges and legal scholars, must craft autochthonous legal processes that suit Africa’s tastes and socioeconomic milieu.
Georgia Antonopoulou, “Forum Marketing in International Commercial Courts?” (2024) Oxford Journal of Legal Studies
Forum selling is a legal term used to describe the practices of courts and judges, geared towards attracting cases, such as increasing the predictability of judgments or speeding up trials. However, do courts also go beyond forum selling to attract cases? Taking international commercial courts as its focus, this article explores how these courts market themselves to attract cases and coins the term ‘forum marketing’. It demonstrates that the courts’ recent establishment, coupled with their voluntary jurisdiction, creates a compelling context, which encourages them to engage in forum marketing. The article argues that forum marketing is not merely a byproduct of the competition in commercial dispute resolution, but a powerful mechanism with deeply persuasive, normative and, effectively, structuring properties. Forum marketing is central to disseminating and reinforcing a pro-business approach in civil justice, consequently setting the stage for procedural inequality and a one per cent procedure.
Newest Commentaries and Newsletter on Private International Law (Vol. 7, Issue 1)
We are pleased to present the newest Commentaries on Private International Law (Vol. 7, Issue 1), the newsletter of the American Society of International Law (ASIL) Private International Law Interest Group (PILIG).