Tag Archive for: private international law

The jurisdictional hurdles of s 26 of the Trans-Tasman Proceedings Act 2010 (Cth), in the context of interim anti-enforcement relief in aid of New Zealand proceedings

The New Zealand High Court recently granted a permanent anti-enforcement injunction in relation to a default judgment from Kentucky in Kea Investments Ltd v Wikeley Family Trustee Limited [2023] NZHC 3260. The plaintiff, a British Virgin Islands company, claimed that the defendants had committed a tortious conspiracy against it because the Kentucky default judgment was based on fabricated claims intended to defraud it. The defendants were a New Zealand company, Wikeley Family Trustee Ltd (WFTL), and persons associated with the company.

In an undefended judgment, the High Court granted the injunction, awarded damages for the costs incurred in the foreign proceedings (referring to cases such as Union Discount Co Ltd v Zoller [2001] EWCA Civ 1755, [2002] 1 WLR 1517 by analogy), and issued a declaration that the Kentucky judgment would not be recognised or enforceable in New Zealand. As noted previously on this blog (see here), the case is an interesting example of “the fraud exception to the principles of comity” (Kea Investments Ltd v Wikeley (No 2) [2023] QSC 215 at [192]).

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Is this a Conflicts Case?

In Sharp v Autorité des marchés financiers, 2023 SCC 29 (available here) the Supreme Court of Canada has held that a Quebec administrative tribunal, the Financial Markets Administrative Tribunal, can hear a proceeding brought by the administrative agency that regulates Quebec’s financial sector, the Autorité des marchés financiers, against four defendants who reside in British Columbia.  The AMF alleged in the proceedings that the defendants had contravened the Quebec Securities Act.

The courts below, including a majority of the Quebec Court of Appeal, focused the analysis on s. 93 of the Act respecting the Autorité des marchés financiers, CQLR, c. A-33.2, which grants the FMAT jurisdiction to make determinations under the Securities Act.  They interpreted and applied this provision in light of Unifund Assurance Co. v Insurance Corp. of British Columbia, 2003 SCC 40, a leading decision on the scope of application of provincial law, which held that a provincial regulatory scheme constitutionally applies to an out-of-province defendant when there is a “real and substantial connection”, also described as a “sufficient connection”, between the province and the defendant.  This test was met on the facts [see para 22] and so the FMAT had jurisdiction.  This analysis is not generally understood as being within the field of conflict of laws.  Indeed, the majority of the Court of Appeal “saw no conflict of jurisdiction or any conflict of laws that would require the application of private international law rules to this case” [see para 29].

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International child abduction: navigating between private international law and children’s rights law

In the summer of 2023 Tine Van Hof defended her PhD on this topic at the University of Antwerp.  The thesis will be published by Hart Publishing in the Studies in Private International Law series (expected in 2025). She has provided this short summary of her research.

When a child is abducted by one of their parents, the courts dealing with a return application must consider several legal instruments. First, they must take into account private international law instruments, specifically, the Hague Child Abduction Convention (1980) and the Brussels IIb Regulation (2019/1111). Second, they have to take into account children’s rights law instruments, including mainly the UN Convention on the Rights of the Child.

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Second Issue of the Journal of Private International Law for 2023

The second issue of the Journal of Private International Law for 2023 has just been published. It contains the following articles:

DJB Svantesson & SC Symeonides, Cross-border internet defamation conflicts and what to do about them: Two proposals”

Conflicts of laws in cross-border defamation cases are politically and culturally sensitive and their resolution has always been difficult. But the ubiquity of the internet has increased their frequency, complexity, and intensity. Faced with the realities of the online environment—including the virtual disappearance of national borders—several countries have acted unilaterally to preserve their values and protect their interests. Some countries enacted laws favouring consumers or other potential plaintiffs, while other countries took steps to protect potential defendants, including publishers and internet service providers. As a result, these conflicts are now more contentious than ever before. We believe there is a better way—even-handed multilateral action rather than self-serving unilateral action. In this article, we advance two proposals for multilateral action. The first is a set of soft law principles in the form of a resolution adopted by the Institut de Droit International in 2019. The second is a proposed Model Defamation Convention. After presenting and comparing these two instruments, we apply them to two scenarios derived from two leading cases (the first and one of the latest of the internet era) decided by courts of last resort. The first scenario is based on Dow Jones & Company Inc v Gutnick, which was decided by the High Court of Australia in 2002. The second is based on Gtflix Tv v. DR, which was decided by the Court of Justice of the European Union at the end of 2021. We believe that these two instruments would produce more rational solutions to these and other cross-border defamation conflicts. But if we fail to persuade readers on the specifics, we hope to demonstrate that other multilateral solutions are feasible and desirable, and that they are vastly superior to a continuing unilateral “arms race.” In any event, we hope that this article will spur the development of other proposals for multilateral action.

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Revised Canadian Statute on Judgment Enforcement

Two years ago, the Uniform Law Conference of Canada (ULCC) released a revised version of the Court Jurisdiction and Proceedings Transfer Act (CJPTA), model legislation putting the taking of jurisdiction and staying of proceedings on a statutory footing. The statute is available here.

The ULCC has now released a revised version of another model statute, the Enforcement of Canadian Judgments Act (ECJA). The original version of this statute was prepared in 1998 and had been amended four times. It has now been consolidated and substantially revised. It is available here and background information is available here and here.

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HCCH Monthly Update: October 2023

Conventions & Instruments

On 6 October 2023, Rwanda deposited its instrument of accession to the HCCH 1961 Apostille Convention and applied to become a Member of the HCCH. Following a six-month voting period, and provided a majority of votes have been cast in its favour, Rwanda will be invited to become a Member by accepting the Statute of the HCCH. With the accession of Rwanda, the 1961 Apostille Convention now has 126 Contracting Parties. It will enter into force for Rwanda on 5 June 2024. More information is available here.

On 27 October 2023, Canada deposited its instrument of ratification of, and Kyrgyzstan its instrument of accession to, the HCCH 2007 Child Support Convention. With the ratification of Canada and the accession of Kyrgyzstan, 48 States and the European Union are bound by the 2007 Child Support Convention. It will enter into force for Canada on 1 February 2024 and for Kyrgyzstan on 1 November 2024. The application of the Convention in Canada will extend to the provinces of Manitoba and Ontario. More information is available here.

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HCCH CODIFI Edition 2023 – CBDCs

The Permanent Bureau is pleased to announce that a colloquium on Central Bank Digital Currencies (CBDCs), titled “CODIFI Edition 2023 – CBDCs”, will be held online on Thursday 5 October 2023, following the mandate of the Council on General Affairs and Policy (CGAP) at its 2023 meeting (C&D No 17).

CODIFI Edition 2023 – CBDCs will cover selected topics related to the HCCH’s CBDCs Project, established by CGAP in March 2023 with the mandate to study the private international law implications of CBDCs. The colloquium will feature a series of pre-recorded video discussions, led by subject-matter experts of the CBDCs Project and other specialists of academia, government, and industry. Live discussion sessions will also take place on the same day to summarise the proceedings and provide more insights and some ideas on the way forward.

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The collection of the V Workshop Jean Monnet Network – BRIDGE “El Derecho Internacional Privado en las Relaciones entre la Unión Europea y América Latina” is now available


crosspost from https://eurolatinstudies.com

The collection of assignments presented here is the result of the V Workshop Jean Monnet Network – BRIDGE on “El Derecho Internacional Privado en las Relaciones entre la Unión Europea y América Latina” which took place on April 19th, 2023, in hybrid mode, at University of Sevilla, Spain. This initiative promoted an intense debate on the theoretical and practical aspects about international law and the relations between European Union and Latin America, with the presence of professors and researchers from several universities.

The proceedings are part of the activities developed by Jean Monnet Network project called “Building Rights and Developing Knowledge between European Union and Latin America – BRIDGE”, co-financed by the Erasmus+ Program of European Commission (620744-EPP-1-2020-1-BR-EPPJMO-NETWORK), composed of a consortium of seven Latin American and European universities.

The articles presented at the Workshop were previously evaluated through Call for Papers, launched in January 2023, and selected by the Organizing Committee composed of Professors Aline Beltrame de Moura (Federal University of Santa Catarina), Beatriz Campuzano Días and Mª Ángeles Rodríguez Vázquez (both from University of Sevilla, Spain). Part of the articles selected for presentation at the Workshop were published in Anais do V Workshop Jean Monnet Network – BRIDGE and the others were published in the V edition of the Latin American Journal of European Studies (2023-1).

Online Event for the 30th Anniversary of the HCCH 1993 Adoption Convention

To celebrate the 30th anniversary of the 1993 Adoption Convention, the Permanent Bureau of the HCCH will be hosting an online event on Wednesday, 31 May 2023, from 14:00 to 18:00 CEST.

The event will feature two round tables, one on “Learning from the Past” and one on “Looking to the Future”, composed of adoption experts from across the world. It will also feature a panel composed by a birth mother, an adoptive mother, and adopted persons, who will discuss their lived experiences.

During the event, panellists will present their views and will respond to selected questions sent in advance of the event.


To register, please visit: https://bit.ly/40Dnptk

For more information, please visit: https://bit.ly/3H8IV2j



HCCH Monthly Update: March 2023

Conventions & Instruments

On 1 March 2023, the 1993 Adoption Convention entered into force for Botswana. The Convention currently has 105 Contracting Parties. More information is available here.

On 8 March 2023, China deposited its instrument of accession to the 1961 Apostille Convention and Malta deposited its instrument of ratification of the 2000 Protection of Adults Convention during the meeting of the Council on General Affairs and Policy. The 1961 Apostille Convention, which has 124 Contracting Parties, will enter into force for China on 7 November 2023. The Convention is already in force in the Hong Kong and Macao Special Administrative Regions of the People’s Republic of China. The 2000 Protection of Adults Convention, which has 15 Contracting Parties, will enter into force for Malta on 1 July 2023. More information is available here.

On 9 March 2023, the 1961 Apostille Convention entered into force for Pakistan. The Convention currently has 124 Contracting Parties. More information is available here.

On 20 March 2023, the 1961 Apostille Convention entered into force for Senegal. The Convention currently has 124 Contracting Parties. More information is available here.

Publications & Documentation

On 6 March 2023, the Permanent Bureau published the Practical Guide to Access to Justice for International Tourists and Visitors. More information is available here.

On 8 March 2023, the Permanent Bureau published the HCCH 2022 Annual Report. More information is available here.

Meetings & Events

From 7 to 10 March 2023, the Council on General Affairs and Policy (CGAP) of the HCCH met in The Hague, with over 450 participants joining both in person and online. HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead in terms of normative, non-normative and governance work. More information is available here.

Among other important developments, during the meeting CGAP took the historic decision to adopt Spanish as an official language as of 1 July 2024, on which more information is available here. It also decided to recommend Dr Christophe Bernasconi to the Netherlands Standing Government Committee on Private International Law for the position of Secretary General, on which more information is available here.

On 22 March, the Regional Office for Asia and the Pacific of the HCCH hosted the webinar “HCCH 1961 Apostille Convention – Application and Future Prospects in the Asia Pacific Region”.

Upcoming Events

Registrations are open for the conference “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook”, which will be held in person on 9 and 10 June 2023 at the University of Bonn in Germany. More information is available here.