Just two days after losing to LOSC Lille in the Champions League, Real Madrid suffered another defeat against a French opponent. Among the 44 (!) judgments published this Friday by the CJEU – a flurry of decisions reminiscent of the madness that is the current Champions League format –, the Court decided a true ‘clásico’ of European private international law in Case C-633/22 Real Madrid Club de Fútbol.
Written by Hadrien Pauchard (assistant researcher and doctoral student at Sciences Po Law School)
The third issue of the Revue Critique de droit international privé of 2024 was released on October 1st. It contains four articles and several case notes. In line with the Revue Critique’s recent policy, the doctrinal part will shortly be made available in English on the editor’s website (for registered users and institutions). Read more
It is necessary to distinguish (1) a court’s decision to acknowledge the validity of a foreign judgment (judgment recognition and enforcement), and (1) whether a judgment creditor successfully recovers the awarded amount in practice.
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!
In Yin v Wu [2023] VSCA 130, the Court of Appeal of the Supreme Court of Victoria set aside a judgment[1] which had affirmed the enforcement a Chinese judgment by an Associate Justice of the Supreme Court.[2] This was a rare instance of an Australian court considering the defence to enforcement of a foreign judgment on the basis that the judgment debtor was denied natural justice—or procedural fairness—before the foreign court.
The dispute concerned a payment made by a Chinese national living in China, Di Wu, to a Chinese national living in Australia, Ke Yin. The payment was made pursuant to a foreign exchange agreement: Yin had promised to pay Wu a sum of US Dollars in exchange for Wu’s Chinese RMB.
The arrangement was made unusually through a series of Telegram and WhatsApp messages, from accounts with different numbers and aliases. (In Australia, we would say that the arrangement sounded ‘suss’.) The agreement was seemingly contrary to Chinese law, which may have contributed to the clandestine character of communications underlying the agreement; see [30].
By Stephen G.A. Pitel, Western University
The Supreme Court of Canada has granted leave in H.M.B. Holdings Limited v Attorney General of Antigua and Barbuda. Information about the appeal is available here. The decision being appealed, rendered by the Court of Appeal for Ontario, is available here. In the usual course the appeal will be heard in the late spring or early fall of 2021. The grant of leave is notable because Canada’s top court only hears a small handful of conflict of laws cases in any given year.
In 2014 the Privy Council rendered a judgment in favour of HMB against Antigua and Barbuda for over US$35 million including interest. In 2016 HMB sued at common law to have the Privy Council judgment recognized and enforced in British Columbia. Antigua and Barbuda did not defend and default judgment was granted in 2017. HMB then sought to register the British Columbia decision (not the Privy Council decision) under Ontario’s statutory scheme for the registration of judgments of other Canadian common law provinces. This required the Ontario courts to engage in a process of statutory interpretation, with one of the central issues being whether the scheme applied to the recognition and enforcement judgment or only to what have been called “original judgments”.
The procedure used by HMB for getting the Privy Council decision enforced in Ontario might seem odd. The Ontario application judge referred to the process as involving a “ricochet judgment”. As to why HMB did not bring a common law action on the Privy Council judgment in Ontario, as it had done in British Columbia, there appears to be some issue that such an action could be outside the applicable limitation period. British Columbia (10 years) has a longer limitation period than Ontario (2 years) for common law actions to enforce foreign judgments.
The Ontario courts held that the scheme did not apply to the British Columbia judgment or, in the alternative, if it did, Antigua and Barbuda were entitled to resist the registration on the basis that it was not “carrying on business” in British Columbia (which is a defence to registration under the Ontario scheme). The majority of the Court of Appeal for Ontario, perhaps proceeding in an inverted analytical order, held that because Antigua and Barbuda was not carrying on business in British Columbia it did not need to address the (more fundamental) issue of the scope of the scheme. The dissenting judge held Antigua and Barbuda was carrying on business in British Columbia and so did address the scope of the scheme, finding it did apply to a recognition and enforcement judgment.
In my view, it is unfortunate that all of the Ontario judges focused quite particularly on the language of various provisions of the statutory scheme without greater consideration of the underlying policy question of whether the scheme, as a whole, truly was meant to allow knock-on or ricochet enforcement. Ontario’s scheme is explicitly limited to allowing registration of judgments of other Canadian common law provinces. It strikes me as fundamentally wrong to interpret this as covering all foreign judgments those other provinces themselves choose to enforce. Nevertheless, it will be interesting to see whether the Supreme Court of Canada resolves the appeal solely on the basis of the intended scope of the registration scheme or instead devotes significant attention to addressing the meaning of “carrying on business”.
The EU has opened a Public Consultation into a possible accession to the 2019 HCCH Judgments Convention. The Consultation will run from 22 June 2020 – 05 October 2020 (midnight, Brussels time).
The Consultation is expansive and the target audience is described as follows: businesses and citizens involved or likely to get involved in international trade and investment; public authorities (including justice professionals); social partners organisations (trade unions and employers organisations), trade, business and professional associations, including consumer and business organisations, as well as professional organisations representing lawyers and members of research or academic institutions.
Importantly, the Consultation is not limited to EU Stakeholders. Rather, the EU expressly invites non-EU Stakeholders to participate and have their say.
Given the importance of being able to manage cross-border enforcement risks and validate rights through a predictable, effective and efficient international enforcement mechanism, this Consultation should attract many submissions from around the globe.
The questionnaire, which is available, and can be filled in, in any official EU language, as well as further information concerning the Consultation, can be found following this link.
On 2 July 2019, the Hague Conference on Private International Law (HCCH) adopted the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 HCCH Judgments Convention). The instrument has already been described as a true game changer and the apex stone in international commercial litigation.
To celebrate the adoption of the 2019 HCCH Judgments Convention, the Netherlands International Law Review (NILR) produced a special edition entirely dedicated to the instrument.
Volume 67(1) of the NILR, which is now available in its final, paginated version, features contributions from authors closely involved in the development of the instruments. The articles provide deep insights into the making, and intended operation, of the instrument. They are a valuable resource for law makers, practitioners, members of the judiciary and academics alike.
The NILR’s Volume comprises the following contributions (in order of print, open access contributions are indicated; the summaries are, with some minor modifications, those published by the NILR).
Thomas John ACIArb, “Foreword” (open access)
Ronald A. Brand, “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”
Ron Brand considers the context in which a Hague Convention on Jurisdiction and the Recognition and Enforcement of Foreign Judgments was first proposed in 1992. It then traces the history of the Hague negotiations, both from within those negotiations and in regard to important developments outside the negotiations, through the completion of the 2005 Convention on Choice of Court Agreements and the 2019 HCCH Judgments Convention. The article ends with comments on whether it is advisable to now resume discussion of a separate convention on direct jurisdiction.
Francisco Garcimartín, “The Judgments Convention: Some Open Questions”
Francisco Garcimartín explores some of the open issues that were discussed in the negotiation process but remained open in the final text, such as, in particular, the application of the 2019 HCCH Judgments Convention to pecuniary penalties (2) and negative obligations (4), as well as the definition of the res judicata effect (3).
Cara North, “The Exclusion of Privacy Matters from the Judgments Convention”
Cara North considers on issue of particular focus in the later phases of the negotiations of the Convention, namely, what, if any, judgments ruling on privacy law matters should be permitted to circulate under the 2019 HCCH Judgments Convention. Having acknowledged that privacy is an evolving, broad and ill-defined area of the law and that there are obvious differences in the development and operation of privacy laws and policies in legal systems globally, the Members of the Diplomatic Session on the Judgments Convention determined to exclude privacy matters from the scope of the Convention under Article 2(1)(l). The purpose of this short article is to describe how and why the Diplomatic Session decided to exclude privacy matters from the 2019 HCCH Judgments Convention and to offer some observations on the intended scope of that exclusion.
Geneviève Saumier, “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”
The 2019 HCCH Judgments Convention establishes a list of jurisdictional filters, at least one of which must be satisfied for the judgment to circulate. One of those is the implied consent or submission of the defendant to the jurisdiction of the court of origin. While submission is a common jurisdictional basis in international litigation, its definition and treatment vary significantly across states, whether to establish the jurisdiction of the court of origin or as a jurisdictional filter at the enforcement stage in the requested court. This diversity is most evident with respect to the mechanics and consequences of objecting to jurisdiction to avoid submission. The 2019 HCCH Judgments Convention adopts a variation on an existing approach, arguably the least complex one, in pursuit of its goal to provide predictability for parties involved in cross-border litigation. This contribution canvasses the various approaches to submission in national law with a view to highlighting the points of convergence and divergence and revealing significant complexities associated with some approaches. It then examines how the text in the 2019 HCCH Judgments Convention came to be adopted and whether it is likely to achieve its purpose.
Nadia de Araujo, Marcelo De Nardi, “Consumer Protection Under the HCCH 2019 Judgments Convention”
The 2019 HCCH Judgments Convention aims at mitigating uncertainties and risks associated with international trade and other civil relationships by setting forth a simple and safe system according to which foreign judgments can easily circulate from country to country. The purpose of this article is to record the historical moment of the negotiations that took place under the auspices of the HCCH, as well as to pinpoint how consumer cases will be dealt with by the Convention under Article 5(2).
Niklaus Meier, “Notification as a Ground for Refusal”
The 2019 HCCH Judgments Convention provides for several grounds for the refusal of recognition, including refusal based on insufficient notification. While this ground for refusal of the 2019 HCCH Judgments Convention seems quite similar to those applied in other conventions, the comparison shows that there are several differences between this instrument and other texts of reference, both with respect to the context of application as well as with respect to the details of the wording. The optional nature of the grounds for refusal under the 2019 HCCH Judgments Convention indicates that its primary focus is the free circulation of judgments, and not the protection of the defendant. The latter’s protection is left to the discretion of the state of recognition: a sign of trust amongst the negotiators of the 2019 HCCH Judgments Convention, but also a risk for the defendant. Practice will show whether the focus of the negotiators was justified.
Junhyok Jang, “The Public Policy Exception Under the New 2019 HCCH Judgments Convention”
The public policy exception is inherently a fluid device. Its content is basically left to each State. A shared public policy is an exception. Therefore, the obligation of uniform interpretation, as provided in Article 20 of the 2019 HCCH Judgments Convention, will have an inherent limit here. Moreover, the 2019 HCCH Judgments Convention leaves some important issues, including procedure, to national rules. Each requested State retains a discretion to invoke the Convention grounds of refusal in a concrete case, and on whether to make an ex officio inquiry or have the parties prove those refusal grounds. The 2019 HCCH Judgments Convention also provides for the concrete applications of the public policy exception, following the model of the 2005 Choice of Court Convention. Here, a purely grammatical reading may create some peripheral problems, especially with the specific defences of conflicting judgments and parallel proceedings. Solutions may be found in the method of purposive interpretation and some general principles, particularly the evasion of the law and the abuse of rights, before resorting to the public policy defence.
Marcos Dotta Salgueiro, “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”
The 2019 HCCH Judgments Convention includes a non-discrimination disposition in Article 14, according to which there shall be no security, bond or deposit required from a party on the sole ground that such a party is a foreign national or is not domiciled or resident in the State in which enforcement is sought. It also deals with the enforceability of orders for payment of costs in situations where the precedent disposition applied, and lays down an ‘opt-out’ mechanism for those Contracting States that may not wish to apply that principle. This article frames the discussion of the non-discrimination principle in the wider context of previous private international law instruments as well as from the perspectives of access to justice, human rights and Sustainable Development Goals (SDGs), understanding that its inclusion in the 2019 HCCH Judgments Convention was an important, inescapable and necessary achievement.
Paul R. Beaumont, “Judgments Convention: Application to Governments” (open access)
The 2019 HCCH Judgments Convention makes the classic distinction between private law matters within its scope (civil or commercial matters) and public law matters outside its scope. It also follows the same position in relation to State immunity used in the Hague Choice of Court Convention 2005 (see Art. 2(5) in 2019 and 2(6) in 2005). The innovative parts of the 2019 HCCH Judgments Convention relate to the exclusions from scope in Article 2 relating to the armed forces, law enforcement activities and unilateral debt restructuring. Finally, in Article 19, the Convention creates a new declaration system permitting States to widen the exclusion from scope to some private law judgments concerning a State, or a State agency or a natural person acting for the State or a Government agency. This article gives guidance on the correct Treaty interpretation of all these matters taking full account of the work of the Hague Informal Working Group dealing with the application of the Convention to Governments and the other relevant supplementary means of interpretation referred to in Article 32 of the Vienna Convention on the Law of Treaties.
João Ribeiro-Bidaoui, “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”
This article addresses the issue of the uniform and autonomous interpretation of private law conventions, including of private international law conventions, from the perspective of their Contracting States, particularly their judiciaries, and of the international organizations. Firstly, the author analyses the use of standard uniform interpretation clauses, and the origin of such clauses, in the context of the Hague Conference on Private International Law. The following part the article addresses negative and positive obligations imposed on States and their judiciaries under international law regarding the uniform and autonomous interpretation of international treaties. It is argued that States are not only obliged to refrain from referring to concepts from national laws for the purpose of the interpretation of international law instruments, but also that they face certain positive obligations in the process of applying the conventions. Those include referring to foreign case law, international scholarship, and under certain circumstances, also to travaux préparatoires. Thirdly, the author discusses the role of international organizations—e.g. HCCH, UNCITRAL, UNIDROIT, in safeguarding and facilitating the uniform and autonomous interpretation of private law conventions. It does so by describing various related tools and approaches, with examples and comments on their practical use (e.g. advisory opinions, information sharing, access to supplementary material, judicial exchanges and legislative action).
The NILR’s Special Edition on the 2019 HCCH Judgments Convention concludes with a reproduction of the text of the 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, as adopted on 2 July 2019.
The meaning of submission was the central question, though by no means the only one, in the Supreme Court of Canada’s decision in Barer v Knight Brothers LLC, 2019 SCC 13 (available here). Knight sought enforcement of a Utah default judgment against Barer in Quebec. The issue was governed by Quebec’s law on the recognition and enforcement of foreign judgments, which is set out in various provisions of the Civil Code of Quebec (so much statutory interpretation analysis ensued). Aspects of the decision may be of interest to those in other countries that have similar provisions in their own codes.
The court held that the Utah decision was enforceable in Quebec. Seven judges (Gascon J writing the majority decision) held that Barer had submitted to the Utah court’s jurisdiction. Two judges held that he had not. One of them (Brown J) held that the Utah court had jurisdiction on another basis, and so concurred in the result, while the other (Cote J) held it did not, and so dissented.
The majority held that in his efforts to challenge the Utah’s court’s jurisdiction, Barer had presented substantive arguments going to the merits of the dispute (para 6). It analysed various possible steps in a foreign proceeding that either would or would not constitute submission (paras 59-63). It was invited by Barer to consider the “save your skin” approach to submission, which would recognize that a defendant who both challenged jurisdiction and raised substantive arguments would not be taken to have submitted. It rejected that approach (para 68). Its core concern was to protect “the plaintiff’s legitimate interest in knowing at some point in the proceedings, whether or not the defendant has submitted to the jurisdiction” (para 62). It added that “plaintiffs who invest time and resources in judicial proceedings in a jurisdiction are entitled to some certainty regarding whether or not the defendants have submitted to the court’s jurisdiction” (para 67).
The majority acknowledged that in a case in which the process of the foreign forum required the raising of a substantive argument alongside a jurisdictional challenge, this could affect the determination of whether the defendant had submitted (para 75). But this was not such a case: the defendant had not established, as a factual matter, that this was such a feature of the Utah procedure (paras 75 and 78). Accordingly, the fact that Barer had raised a defence on the merits – that a pure economic loss rule barred the claim against him – amounted to submission (para 71).
In dissent, Justice Cote finds the majority’s test for submission to be “too strict” (para 212). She urged a “more flexible approach” which would allow a defendant to raise substantive arguments alongside a jurisdictional challenge (para 213). In her view, if “a broad range of arguments may convince a Utah court that it lacks jurisdiction over a matter … A defendant must be allowed to present those arguments” (para 219). While Gascon J put the onus of showing that the Utah process required raising substantive arguments at a particular time on the defendant, Cote J put that onus on the plaintiff, the party seeking to enforce the foreign judgment (para 223).
Brown J’s concurring decision did not comment at any length on the test for submission. He held that “I agree with my colleague Cote J. that Mr. Barer has not submitted to the jurisdiction of the Utah court merely by presenting one argument pertaining to the merits of the action in his Motion to Dismiss” (para 146; emphasis in original). This is consistent with Cote J’s approach to the meaning of submission.
There is a further interesting dimension to the reasons. Cote J held, in the alternative, that even if Barer had submitted, the plaintiff also had to show a real and substantial connection between the dispute and Utah before the judgment could be enforced (para 234). This engaged her in a complex argument about the scheme and wording of the Civil Code. Having identified this additional legal requirement, she held this was a case in which the submission itself (if established) was not a sufficiently strong connection to Utah and so the decision should nonetheless not be enforced (para 268). In contrast, Brown J held that there was no separate requirement to show such a connection to Utah (paras 135 and 141-42). Showing the submission was all that was required. The majority refused to resolve this interpretive dispute (para 88), holding only that on the facts of this case Barer’s submission “clearly establishes a substantial connection between the dispute and the Utah court” (para 88).
The judges disagreed about several other aspects of the case. Put briefly and at the risk of oversimplification, Brown J relied primarily on the notion that all parties and aspects of the dispute should have been before the Utah court. Barer was sufficiently connected with various aspects of the dispute, over which Utah clearly did have jurisdiction, that its jurisdiction over him was proper (see paras 99, 154 and 161-62). Neither Cote J nor Gascon J agreed with that approach. There are also disputes about what types of evidence are proper for establishing the requirements for recognition and enforcement and what law applies to various aspects of the analysis.
In a small tangent, the majority decision criticized the “presumption of similarity” doctrine for cases in which the content of foreign law is not properly proven and it offered a more modern explanation of why forum law is applied in such cases (para 76).
The University of Milan (Department of International, Legal, Historical and Political Studies) will host on Friday 14 October 2016 (14h00) a conference on “Cross border family litigation in Europe. The Brussels IIbis recast“.
Here is the programme (the sessions will be held in English and Italian):
Welcoming addresses
Chair: Stefania Bariatti (Univ. of Milan)
The Brussels IIbis recast
Round Table – The Commission’s Proposal: exchange of views among judges, practitioners and academics
Closing remarks: Stefania Bariatti (Univ. of Milan)
Venue: Sala Lauree, Facoltà di Scienze Politiche, Economiche e Sociali, University of Milan.
(Many thanks to Prof. Ilaria Viarengo for the tip-off)