Views
A few takeaways from the 2022 meeting of the HCCH governing body (CGAP): publications and future meetings
On 7 March 2022, the Conclusions & Decisions of the governing body of the Hague Conference on Private International Law (HCCH), i.e. the Council on General Affairs and Policy (CGAP), were released. Click here for the English version and here for the French version.
For official information on the ceremony of signatures and ratifications of instruments, click here (HCCH news item). For our previous post on the signature of the USA of the 2019 Judgments Convention, click here.
Although a wide range of topics was discussed, I would like to focus on two: publications and future meetings.
1) Publications
This meeting was very fruitful in getting the necessary approval for HCCH publications. There were three publications approved, ranging from family law to access to justice for international tourists.
Family law
The Council adopted the following decision: “12. CGAP approved the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children, subject to editorial amendments, for publication.”
The Report of the Experts’ Group on Cross-Border Recognition and Enforcement of Agreements in Family Matters Involving Children (meetings of 14-15 September and 29-30 November 2021) is available here. The Chair of the Experts’ Group is Professor Paul Beaumont. The work of this Expert’s Group has ended.
The draft of the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children has been made available. For French, click here.
As some of you may be aware, this tool is an alternative to the drafting of a binding instrument in this area. In 2017, the Experts’ Group drafted the following Conclusion and Recommendation for the attention of the Council on General Affairs and Policy of March 2018:
“Therefore the Experts’ Group recommends to the Council to develop a new Hague Convention that would build on, and add value to, the 1980, 1996 and 2007 Hague Conventions, and be developed with a view to attracting as many States as possible.”
The reasoning of the Experts’ Group was the following:
While the existing Hague Family Conventions encourage the amicable resolution of disputes involving children, they do not contemplate the use of “package agreements” (i.e., family agreements related to custody, access, relocation and/or child support and which may include spousal support and other financial matters, such as property issues) and do not provide a simple, certain or efficient means for their enforcement. From the Group’s experience it is recognised that such agreements are increasingly frequently used. Very often the matters covered require the simultaneous application of more than one Hague Family Convention while some elements of those package agreements are not within the scope of any of the existing Hague Family Conventions. This creates difficulties for the enforcement of package agreements.
Unfortunately (or fortunately depending on how people may view this), this initiative was not taken on board by Council in 2018. See here.
Apostille
The Council adopted the following decision: “31. CGAP approved the second edition of the Practical Handbook on the Operation of the Apostille Convention, subject to editorial amendments, for publication.” This draft is not yet publically available.
The first edition of the Apostille Handbook is available here.
Access to Justice for international tourists and visitors
The Council adopted the following decision: “3. CGAP approved the Practical Guide to Access to Justice for International Tourists and Visitors, subject to editorial amendments, for publication on the HCCH website.”
The draft of the Practical Guide to Access to Justice for International Tourists and Visitors is available here.
As with the recognition and enforcement of agreements reached in the course of family matters, the initial proposal was the developing of a new instrument.
At its meeting in 2013, the CGAP took note of the suggestion by Brazil to undertake work on co-operation in respect of protection of tourists and visitors abroad. See in particular Prel. Doc. No 3 of February 2018 – Final report concerning a possible future Convention on Co-operation and Access to Justice for International Tourists drafted by Professor Emmanuelle Guinchard.
2) Meetings
With regard to future meetings, there are a few meetings in the pipeline:
Special Commission meetings (SC) in 2022 (basically, a global meeting of experts):
- Special Commission on the practical operation of the 2007 Child Support Convention and its Protocol – to be held from 17 to 19 May (in-person meeting) – This will be the first meeting ever of the SC on this topic
- Special Commission on the practical operation of the 1993 Adoption Convention – to be held from 4 to 8 July (online meeting)
- Special Commission on the practical operation of the 2000 Protecion of Adults Convention – to be held from 9 to 11 November – Tnis will be the first meeting ever of the SC on this topic
And finally, the Working Group on matters related to jurisdiction in transnational civil or commercial litigation – to hold “two further meetings before the 2023 meeting of CGAP, with intersessional work as required”.
Declaration of the Institute of International Law on aggression in Ukraine
Yesterday (1 March 2022) the Institute of International Law approved a declaration on the aggression in Ukraine. The declaration is available by clicking the following links:
Declaration of the Institute of International Law on Aggression in Ukraine – 1 March 2022 (EN)-1
Déclaration de l’Institut de Droit international sur l’agression en Ukraine – 1 mars 2022 (FR)
The current developments in Ukraine and the measures and sanctions currently in place have undoubtedly an impact across all areas, including private international law. See for example the measures adopted by the European Union here.
I include an excerpt of the declaration below:
The Institute recalls that the ongoing military operations call ipso facto for the application of international humanitarian law, including the rules relating to occupation, as well as all the other rules applicable in times of armed conflict. It recalls also that persons responsible for international crimes as defined by international law may be prosecuted and sentenced in accordance with the law in force.
Faithful to its mission, the Institute remains convinced that, while international law alone cannot prevent the outbreak of violence, it must remain the compass by which States are guided, and it is more than ever determined to strengthen its work to promote “the progress of international law”. The Institute adds its voice to that of other actors in the international community, including the learned societies acting in defense of the rule of law, who call for an end to the war in Ukraine and the settlement in good faith of disputes between the States concerned through all appropriate means of peaceful settlement.
The Characterization and Applicable Law of Cultural Objects in Conflicts of Laws: Is a Mummy a Person or a Property?
by Zhen Chen, PhD researcher in the Department of Private International Law, University of Groningen, the Netherlands (ORCID ID: https://orcid.org/0000-0001-5323-4271)[1]
In Buddha Mummy Statue case, the Chinese village committees sued the Dutch defendants for the return of a stolen golden statue which contains a 1000-year old mummified buddhist. The parties had different opinions on the legal nature of the mummy contained in the statue. The Chinese court classified the statue as a cultural property and applied the choice of law over movable properties provided in Article 37 of Chinese Private International Law (lex rei sitae). Based on a comparative study, this article argues that a mummy does not fall within the traditional dichotomy between a person and a property. Instead, a mummy should be classified as a transitional existence between a person and a property. If the classification of a mummy has to be confined to the traditional dichotomy, a mummy can be regarded as a quasi-person, or a special kind of property. Following this new classification, a new choice of law rule should be established. In this regard, the Belgian Private International Law Act, which adopts the lex originis rule supplement by the lex rei sitae, is a forerunner. This article advocates that the adoption of the lex originis rule may help to stop the vicious circle of illegal possession and to facilitate the return of stolen cultural objects, especially those containing human remains, to their country of origin.
1. Gold or God?
As to the legal nature of the Buddha Mummy Statue in dispute, from the Chinese villagers’ perspective, the mummy contained in the golden statute is a person or God, instead of a property. Specifically, the mummified buddhist Master Zhanggong was their ancestor, who used to live in their village and has been worshipped as their spiritual and religious God for over 1000 years. Master Zhanggong was preserved in a statue moulded with gold to prevent decomposition and to maintain his immortality. The villagers celebrated Master Zhanggong’s birthday every year with feast, music and dance performance, which has become their collective memory and shared belief.
In contrast, from the Dutch art collector’ perspective, the golden statute containing a mummy is a property not a person. It is merely a cultural property with great economic value and worthy of collection or investment. Thus, it is not surprising that the Dutch collector asked for a compensation of 20 million Euro, of which the Chinese villagers whose annual income was around 1000 Euro could not afford it.
The Chinese village committees sued the Dutch art collector both in China and in the Netherlands. The Chinese village committees asserted that the mummified Master Zhanggong contained in the statue was a corpse within the meaning of the Dutch Liability Decree, and the ownership thereof was excluded under the Dutch law.[2] The claimants as the trustees or the agents had the right of disposal.[3] The Dutch art collector argued that the mummified monk contained in the golden statue was not a corpse, as the organs of the monk were missing. The Dutch court did not touch upon the issue of classification of the Buddha Mummy Statue, as the case was dismissed on the basis that the Chinese village committees had no legal standing nor legal personality in the legal proceedings.[4]
2. The lex situs under Article 37 Chinese Private International Law Act
The Chinese court classified the Buddha Mummy Statue as a cultural property and applied the law of the country where the theft occurred, namely Chinese law, by virtue of Article 37 Chinese Private International Law Act. Such classification is not satisfactory, as the mummy in dispute was essentially considered as a property. Chinese law was applied because the place of theft was in China and the lex situs was construed by the Chinese court as the lex furti. However, what if the mummy was stolen in a third country during the transportation or an exhibition? The lex furti does not necessarily happen to be the lex originis in all cases involving stolen cultural objects.
Moreover, cultural objects containing human remains are special in comparison with other cultural objects without, as human remains contain biological information of a person. The application of the traditional lex rei sitae rule to all cultural objects, including those containing human remains, is far from satisfactory. In general, the law on dead human bodies precedes over the sale of corpses, and no person, including a good faith purchaser can own somebody else’s corpse both in civil law and common law systems.[5] A corpse must not be downgraded to the status of a property.[6] The characterization of human remains as properties objectifies human remains and thus may violate human dignity.[7] Therefore, it is necessary to distinguish cultural objects containing human remains from other types of cultural objects. The question is how to draw a distinction and what is the legal nature of a cultural object containing human remains, such as a mummy. If a mummy does not fall within the scope of traditional category of a person nor a property, does it mean a new category need to be created? In this regard, the classification of the legal nature of a fertilized embryo in Shen v. Liu may be relevant,[8] since the judge addressed the issue by thinking out of the box and provided a new solution.
3. Is a Fertilized Embryo a Property or a Person?
Shen v. Liu was the first case in China that involved the ownership of frozen embryos. Specifically, Shen and Liu, who got married in 2010 and died in 2013 in a car accident, left four frozen fertilized embryos in a local hospital. The parents of Shen (Mr and Mrs Shen), sued the parents of Liu (Mr and Mrs Liu), who also lost their only child, claiming the inheritance of the four frozen fertilized embryos of the deceased young couple.[9] The local hospital where the embryos were preserved was a third party in this case.
3.1 A property, a special property, or ‘a transitional existence between person and property’?
The third party Gulou Hospital argued that the frozen embryos do not have the nature of a property. Since Mr. and Mrs. Shen had passed away, the expired embryos should be discarded. Neither the plaintiffs nor the defendants should inherit the embryos.[10] The first-instance court held that fertilized embryos had the potential to develop into life, and thus are special properties that contain biological characteristics of a future life. Unlike normal properties, fertilized embryos can not be the subject of succession, nor be bought or sold.[11]
Nevertheless, the appellate court took the view that embryos were ‘a transitional existence between people and properties’. Therefore, embryos have a higher moral status than non-living properties and deserve special respect and protection. The embryo ethically contains the genetic information of the two families and is closely related to the parents of the deceased couple. Emotionally speaking, the embryo carries personal rights and interests, such as the grief and spiritual comfort for the elderly. The court held that the supervision and disposal of the embryos by the parents from these two families was in line with human ethics and can also relieve the pain of bereavement for both parties.[12] Clearly, the court did not classify the fertilized embryos as people or properties. Instead, the embargo was considered as ‘a transitional existence between a person and a property’, since it is not biotic nor abiotic but a third type in-between.
3.2 A mummy as ‘a continuum between a person and a property’
With regard to the distinction between a person and a property, the judgment of Shen v. Liu shows that the Chinese court was not confined to the traditional dichotomy between a person and a property. The same should be applicable to mummies. Embryos and mummies have something in common, as they are two different kinds of life forms. Whereas the embryo in Shen v. Liu is the form of life which exists before the birth of a human being, the mummy in Buddha Mummy Statue case is another form of life which exists after the death of a human being.
Embryos and mummies, as the pre-birth transition and after-death extension of life forms of a human being, involve morality and ‘human dignity’.[13] Such transitional existence or continuum of life forms contains personal rights and interests for related parties, which may justify the adoption of a new classification. As a special form of life, embryos and mummies should not be considered as merely a property nor a person. The strict distinction between people and properties does not apply well in embryos and mummies. Instead, they should be regarded as ‘a transitional existence between a person and a property’ or ‘a continuum between a person and a property’. If it is not plausible to create a third type for the purpose of classification, they should be regarded, at least, as a quasi-person, or a special property with personal rights and interests. An embryo and a mummy cannot be owned by someone as a property. Rather, a person can be a custodian of an embryo and a mummy. This is also the reason why cultural objects containing human remains should be treated differently.
4. A New Classification Requires a New Choice of Law Rule
In order to distinguish cultural objects containing human remains from other cultural objects, or more generally to distinguish cultural properties from other properties in the field of private international law, a new choice of law rule needs to be established. In this regard, the 2004 Belgian Private International Law Act might be the forerunner and serve as a model for not only other EU countries but also non-EU countries.[14]
4.1 The lex originis overrides the lex situs
The traditional lex situs rule is based on the location of a property and does not take cultural property protection into consideration. Courts resolving cultural object disputes consistently fail to swiftly and fairly administer justice, and much of the blame can be put on the predominant lex situs rule.[15] The lex situs rule allows parties to choose more favorable countries and strongly weakens attempts to protect cultural objects.[16]
In Belgium, as a general rule, the restitution of illicitly-exported cultural objects is subject to the lex originis, rather than the lex rei sitae. Article 90 of 2004 Belgian Private International Law Act stipulated that if one object that has been recorded in a national list of cultural heritage is delivered outside this country in a way that against its law, the lawsuit filed in this country for the return of that particular object shall apply the law of the requesting country. This provision designates the law of the country of origin, also known as the lex originis rule. In comparison with the lex rei sitae or the lex furti rule, the lex originis rule is more favorable to the original owners
4.2 Facilitating the return of human remains to their country of origin
The establishment of a new choice of law rule for cultural relics containing human remains or cultural objects in general is in line with the national and international efforts of facilitating the return of stolen or illicitly cultural objects to their country of origin. Mummies exist not only in China, but also in many other countries, such as as Japan, Egypt, Germany, Hungary, USA, Russia, and Italy. The adoption of the lex originis rule could facilitate the return of stolen or illicitly exported cultural objects which contain human remains to their country of origin or culturally-affiliated place. This objective is shared in many international conventions and national legislations.
5. Concluding remarks
The mummy Master Zhanggong has not been returned to the Chinese village committees yet, since the Dutch defendants have lodged an appeal. This article argues that, in the light of the classification of frozen embryos in Shen v. Liu, mummies should be classified as ‘a transitional existence between a person and a property’. A new classification calls for a new choice of law rule. In this regard, the 2004 Belgian Private International Law Act might serve as a model, according to which the lex originis rule prevails over the traditional lex situs rule, unless the original owner chooses the application of the traditional lex situs or the lex originis rule does not provide protection to the good faith purchaser. The Chinese Private International Law should embrace such approach, since the application of the lex originis may facilitate the return of cultural relics, including but not limited to those containing human remains such as mummies, to their culturally affiliated community, ethnic or religious groups.
—
[1] This is a shortened version of the article published in the Chinese Journal of Comparative Law with open access https://doi.org/10.1093/cjcl/cxac006. Related blogposts are Buddha Mummy Statue case and Conflict of Laws of Cultural Property.
[2] Chinese Village Committees v. Oscar Van Overeem, ECLI:NL:RBAMS:2018:8919, point 3.1.
[3] Ibid.
[4] Ibid., point 4.2.5.
[5] J. Huang, ‘Protecting Non-indigenous Human Remains under Cultural Heritage Law’, 14 Chinese Journal of International Law 2015, p. 724.
[6] E.H. Ayau and H. Keeler, Injustice, Human Rights, and Intellectual Savagery, in Human Remains in Museums and Collections, DOI: https://doi.org/10.18452/19383, p. 91.
[7] Ibid.
[8] Mr and Mrs Shen v. Mr and Mrs Liu, Jiangsu Province Yixing Municipality People’s Court, (2013) Yi Min Chu Zi No 2729; Jiangsu Province Wuxi Municipality Intermediate People’s Court, (2014) Xi Min Zhong Zi No 01235.
[9] Ibid.
[10] Ibid. The third party also stated that after the embryos are taken out, the only way to keep the embryos alive is surrogacy, which is illegal in China, thus both parties have no right to dispose the embryos.
[11] Ibid. Since the first-instance court held that embryos cannot be transferred or inherited, the case was dismissed in accordance with Article 5 of the General Principle of Civil Law and Article 3 of the Inheritance Law of the PRC.
[12] Ibid. The appellate court analyzed that after the death of Shen and Liu, their parents were the only subjects and most-related parties that care about the fate of embryos. Thus, it was appropriate to rule that the parents of Shen and Liu have the right to supervise and dispose the embryos. However, such supervision and disposal should abide by the law, and must not violate public order and good morals nor infringe the interests of other people.
[13] While birth means a definite initiation into human society, death indicates a final termination of a natural person, which both involve the dignity of an individual human or even humankind. H.G. Koch, ‘The Legal Status of the Human Embryo’, in E. Hildt and D. Mieth (eds.), Vitro Fertilisation in the 1990s, Routledge 1998, p. 3.
[14] T. Szabados, ‘In Search of the Holy Grail of the Conflict of Laws of Cultural Property: Recent Trends in European Private International Law Codifications’, 27 International Journal of Cultural Property 2020, p. 335.
[15] D. Fincham, ‘How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property’, 32 Columbia Journal of Law & the Arts 2008, p.116.
[16] Ibid, p.130.
News
Out now: RabelsZ, Volume 88 (2024), Issue 2
The latest issue of RabelsZ has just been released. It contains the following contributions which are also available open access:
OBITUARY
Holger Fleischer, Heike Schweitzer: Ernst-Joachim Mestmäcker – † 22 April 2024, pp. 215–222, DOI: https://doi.org/10.1628/rabelsz-2024-0033
ESSAYS
Klaus Ulrich Schmolke: Das Prinzip der beschränkten Gesellschafterhaftung – Ein Streifzug durch die Debatten- und Argumentationsgeschichte, pp. 223–277, DOI: https://doi.org/10.1628/rabelsz-2024-0022
The Concept of Limited Shareholder Liability – A Walk Through History’s Debates and Lines of Argument. Today, the concept of limited shareholder liability is considered a core feature of the modern corporation. And indeed, limited liability has been continuously provided for in the corporate (and limited partnership) laws of western jurisdictions since the 19th century. However, limited liability is not such a matter of course as it is widely perceived today. Rather, it took tough disputes and hard-fought debates before the legislators of the major European jurisdictions of the time were able to bring themselves to provide for limited shareholder liability without tying it to prior state approval. Even after this breakthrough, the debate about the legitimacy and scope of limited liability flared up time and again. This is particularly true for the close corporation, in which the shareholders also exercise control over the management of the business. This article traces the historical dimension of the transnational debate and evaluates the arguments for and against limited shareholder liability that have been put forward over time. The insights gained thereby provide a basis for analysing and evaluating the currently revived criticism of limited shareholder liability.
Sandra Hadrowicz: Natural Restitution in a Comparative Legal Perspective –
An Underappreciated Remedy or an Unnecessary Relic?, pp. 278–306, DOI: https://doi.org/10.1628/rabelsz-2024-0030
Natural restitution is one of the permissible methods for remedying damage in numerous legal orders. However, this form of compensation is much less frequently used in practice than monetary compensation. While monetary compensation is a universally found method of reparation in major legal orders, the issue is more complex when it comes to natural restitution. In some countries (e. g. England, France, the Netherlands), natural restitution is used only by way of exception, in specific cases. In others (e. g. Poland), despite the injured party being given the right to choose the method of reparation, natural restitution is very rarely requested by injured parties. Even more intriguingly, in jurisdictions where natural restitution is theoretically upheld as a principle – including Germany, Austria, Portugal, and Spain – its actual adoption by courts remains relatively rare. The question then arises: Have courts and victims come to undervalue natural restitution or even forgotten of its existence? Or, conversely, does it represent an obsolete or unnecessary element of compensation law?
Domenico Damascelli: Determining the Applicable Law in Matrimonial Property Regimes –
On the Interpretation of Article 26 Regulation (EU) No 2016/1103 in the Absence of Choice-of-law and Common Habitual Residence, pp. 307–324, DOI: https://doi.org/10.1628/rabelsz-2024-0032
Wishing to remain faithful to the alleged principle of immutability of the law governing matrimonial property regimes, the literature interprets Art. 26 para. 1 Regulation (EU) No 2016/1103 such that if the spouses have their habitual residence in different States at the time of marriage, it is necessary to wait for a period of time to ascertain whether they will move it to the same State. If so, only the law of that State is to apply (retroactively); if not, one of the other two laws indicated in Art. 26 is to apply (once and for all). This position gives rise to uncertainty in the determination of the applicable law and is contradicted by literal, systematic and teleological interpretations of the Regulation, which show that, in the absence of a common habitual residence, the law governing the matrimonial property relationships is, depending on the circumstances, the one provided for in letters b or c of para. 1 of Art. 26. However, this law may change the moment the existence of a first common habitual residence is ascertained, regardless of whether it was established immediately, shortly, or long after the conclusion of the marriage.
María Mercedes Albornoz: Private International Law in Mexico’s New National Code of Civil and Family Procedure, pp. 325–354, DOI: https://doi.org/10.1628/rabelsz-2024-0031
In June 2023, Mexico enacted a National Code of Civil and Family Procedure that includes private international law provisions on procedural matters. The adoption of this Code constitutes a landmark reform in the Mexican legal system, modernizing and, for the first time, unifying civil and family procedural laws across the country. The Code’s primary objectives are to streamline legal processes, enhance judicial efficiency, and promote consistency in civil and family litigation. This article contains a study of the main rules that adjust the goals of the Code to cross-border cases. Some of those rules introduce significant innovations compared with previous bodies of procedural legislation in force in Mexico. It sets direct rules for international jurisdiction as well as novel provisions on foreign law, rules on international cooperation and recognition and enforcement of foreign judgments, and provisions on international child abduction. Furthermore, the Code promotes digital justice and thus expressly allows and promotes the use of technological resources in international cooperation. All these rules are expected to improve access to justice in private international law cases.
MATERIALS
Jürgen Samtleben: Mexiko: Nationales Zivil- und Familienprozessgesetzbuch 2023 (Auszug) [Mexico: National Code of Civil and Family Procedures 2023 (German Translation, Excerpt)], pp. 355–378, DOI: https://doi.org/10.1628/rabelsz-2024-0021
BOOK REVIEWS
As always, this issue also contains several reviews of literature in the fields of private international law, international civil procedure, transnational law, and comparative law (pp. 379–421).
ZEuP – Zeitschrift für Europäisches Privatrecht 3/2024
Issue 3/2024 of ZEuP – Zeitschrift für Europäisches Privatrecht has just been published. It includes contributions on EU private law, comparative law, legal history, uniform law, and private international law. The full table of content can be accessed here.
The following contributions might be of particular interest for the readers of this blog:
- Die Europäisierung des internationalen Erwachsenenschutzes
Jan von Hein on the proposal for a regulation on the international protection of adults: On 31.5.2023, the European Commission presented a proposal for a regulation on the international protection of adults. This proposal is closely intertwined with the Hague Convention on the international protection of adults. Therefore, the proposed regulation shall be accompanied by a Council decision authorising Member States to become or remain parties to the Hague Convention. The following contribution analyses the proposed regulation and its relationship with the Hague Convention. - Justizgrundrechte im Schiedsverfahren? – Pechstein und die Folgen fu?r die Handelsschiedsgerichtsbarkeit
Gerhard Wagner and Oguzhan Samanci on human rights and commercial arbitration: Does the ECHR and the German constitution require public hearings in arbitral proceedings, provided that one of the parties had the power to impose the arbitration agreement on the other through a contract of adhesion? This article analyzes the potential implications that the Pechstein decision of the Federal Constitutional Court and ist precursor in the jurisprudence of the ECHR may have for commercial arbitration. The focus is on arbitration clauses in general business terms and in contracts with undertakings that occupy a dominant position in a specific market. The conclusion is that, despite the broad formula employed by the Federal Constitutional Court, the right to a public hearing should remain limited to sports arbitration. - Die Auslegung von EuGH-Entscheidungen – ein Blick aus der Gerichtspraxis
David Ullenboom on the interpretation of CJEU decisions: This article examines the question whether a European methodology is needed to interpret judgments of the CJEU for judicial practice. It argues that judgments of the CJEU need to be interpreted in the same way as legal provisions and are therefore subject to a grammatical, systematic, genetic and teleological interpretation in order to determine their meaning for future legal cases. - Schweizerisches Bundesgericht, 8 June 2023, 5A_391/2021
Tanja Domej discusses a decision of the Swiss Federal Tribunal on the recognition of the deletion of a gender registration under German law.
OUT NOW!! New Book on Private International Law in BRICS: Convergence, Divergence, and Reciprocal Lessons (Stellina Jolly and Saloni Khanderia eds)
Hart Publishing, Oxford, UK is proud to announce the release of Private International Law in BRICS: Convergence, Divergence, and Reciprocal Lessons co-edited by Dr. Stellina Jolly, South Asian University, Delhi, India, and Professor Saloni Khanderia, O.P. Jindal Global University, Sonipat, India. The book forms part of Hart’s prestigious Private International Law Series with Professor Paul Beaumont, University of Stirling, as its Series Editor.
Authored by leading scholars and practitioners in private international law, the chapters draw on domestic legislation and case law interpretations in each of these emerging economies. They cover a wide array of topics, including contractual and non-contractual obligations, choice of court agreements, and personal matters such as marriage, divorce, matrimonial property, succession, and surrogacy—all within the context of increased cross-border movement of people.
As the title suggests, this book explores the intricate landscape of private international law within the BRICS countries—Brazil, Russia, India, China, and South Africa. Divided into six sections, each part of the book offers a thematic analysis of core private international law-related questions and an in-depth examination of the reciprocal lessons each BRICS country can share concerning each of three core conflict of law issues – the international jurisdiction of courts, the applicable law and the effectiveness of foreign decisions (both judgments and arbitral awards) overseas.
This book serves as an invaluable comparative resource for governments, legislators, traders, academics, researchers, and students interested in the intricate legal dynamics at play within the BRICS nations. With the BRICS countries collectively representing around 42% of the world’s population and approximately 23% of global GDP, the need for enhanced legal cooperation and harmonization is more critical than ever. Over the past decade, cross-border interactions within the BRICS bloc and beyond have escalated significantly. However, the diversity in political, legal, economic, and social structures, coupled with the lack of geographical proximity and historical connections, has posed challenges to effective cooperation and the ability of BRICS to play a proactive role in global governance. The 15 BRICS Summits held between 2009 and 2023 have primarily focused on economic cooperation, particularly in trade, investment, foreign affairs, and innovation. While these areas are crucial, they cannot be viewed in isolation. Increased trade and cooperation inevitably lead to the movement of persons, goods, and services across national boundaries, raising important legal questions. For instance, economic cooperation that facilitates the movement of people also impacts personal relationships. Scenarios such as marriage, divorce, adoption, surrogacy, and inheritance across borders create complex legal challenges that require a robust understanding of private international law. Will a marriage or divorce be recognized in the home country? How will the nationality of a child born through surrogacy or adopted abroad be determined? These questions, though critical, have not yet been thoroughly examined in the context of BRICS.
Recognizing this gap, our book seeks to explore and analyze the role of private international law in fostering enhanced cooperation among BRICS countries. In pursuit of its objectives, the project draws lessons from various multilateral and supranational instruments operating under the HCCH – Hague Conference on Private International Law and in the European Union, renowned for pioneering clear, predictable rules to regulate international disputes through the unification of laws.
Details of the book as well as purchase options can be found here!