Archive for category: Journals

The fourth and final issue of the RabelsZ (The Rabel Journal of Comparative and International Private Law) for the year of 2025 has been published and is now available via open access and in print, featuring topics as diverse as Roman marriage and digital assets. The following titles and English abstracts of the articles have been kindly provided to us by the editor of the journal.

Anne Röthel, Debatten über das Vergleichen. Wanderungen zwischen Rechtsvergleichung und Komparatistik (Debates about Comparison. Journeys between Comparative Law and Comparative Literature) (Open Access)

Many academic fields look to comparative methods in pursuit of insight, with scholars debating how to proceed and what they hope to learn from the comparison. This article explores what comparative law stands to gain from interdisciplinary dialog with other fields of comparative inquiry. By way of example, it evaluates the potential gain from several journeys into the field of comparative literature. At first, these journeys back and forth between disciplines reveal a number of parallels: a striking resemblance between each field’s narrative of its own becoming; both fields’ exposure to fundamental criticisms; both fields ethicizing along similar trajectories; each one’s encounter with related dilemmas. At the same time, these journeys into comparative literature reveal implicit hierarchies and orientations in comparative law. But these cursory journeys through the history of comparative literature also counsel that comparative law would do well to avoid letting its own debates over the direction of the field veer into polarization and name-calling, into a kind of struggle that is mostly unwinnable and unproductive.

João Costa-Neto and João Guilherme Sarmento, From Roman Marriage to Unmarried Unions. Defining the Requirements for de facto and Registered Partnerships (Open Access)

This study examines the historical and comparative evolution of family law, tracing the transition from Roman marriage to contemporary partnerships. The article explores how Roman law conceptualised marriage as a social institution based on affectio maritalis, detailing its transformation through Christian doctrine into an indissoluble sacrament and its subsequent adaptation within modern legal systems. By analysing legal frameworks in Germany, Italy, France, England, and Brazil, the inquiry highlights the varying degrees of recognition granted to unmarried unions, from informal cohabitation to registered partnerships. The comparative analysis reveals the dynamic interplay between tradition, societal norms, and legal evolution, underscoring how distinct legal systems balance autonomy and protection in family law. This work contributes to the broader discourse on the harmonisation of family law and the impact of evolving societal values on legal institutions.

Tom Hick, Claiming Back Anticipatory Performance after Failed Negotiations. A Comparative Analysis of Alternatives to Precontractual Liability (Open Access)

As a matter of principle, breaking-off negotiations or refusing a contract offer are lawful actions. For based on freedom of contract, each individual is free to contract, free to choose one’s counterpart and the content of the contract, and equally free not to contract. Only exceptionally can a party be held liable for breaking-off negotiations based on wrongful conduct. Hence, it appears worthwhile to look for alternative approaches to recover fruitlessly incurred costs in the context of negotiations that failed independently of any wrongful conduct. Undue payment offers precisely this possibility. Therefore, the present contribution offers an exploratory look at the chances of success of an action for undue payment to recover costs incurred in the context of failed contract negotiations in Belgium, France, the Netherlands, and Germany. The paper finds that in those cases where fruitlessly incurred costs technically qualify as a payment in the respective national legal system, the prospects for the party seeking to recover these costs are surprisingly positive.

Derwis Dilek, Sebastian Omlor, and Dominik Skauradszun, A New Private International Law for Digital Assets (Open Access)

The increasing popularity of digital assets presents significant challenges for private international law, as fundamental conflict-of-laws rules concerning proprietary issues are often absent. This article outlines a possible approach to a technologically neutral and function-based conflict-of-laws framework. Taking existing instruments into account, it examines in particular the role of party autonomy through a choice-of-law rule, as well as alternative connecting factors based on structural, functional, or factual links between digital assets and legal systems. Building on this, the article proposes a conflict-of-laws framework for determining the law applicable to proprietary issues. This framework is designed to be applicable to various types of digital assets, including those based on decentralized networks. The proposed draft rule combines an express choice-of-law option with a multi-layered system of objective connecting factors and includes supplementary mechanisms for cases where the applicable law lacks substantive provisions.

Claudia Mayer, Keine verfahrensrechtliche Anerkennung von beurkundeten oder registrierten familienrechtlichen Rechtsgeschäften innerhalb der EU (No Procedural Recognition of Acts Affecting Personal Status Based on Certificates Issued by Public Agencies within the EU) (Open Access)

In EU law, there is a discernible tendency on the part of the EU legislature to subject legal acts to procedural recognition – including as to their substance – based on certificates of recording or other kinds of documents issued by public agencies. It has therefore already been argued in the literature that a change of method has taken place whereby the conflict-of-laws as well as substantive review in the receiving state has been replaced by a recognition system. But this position must be rejected; generally, such documents issued by public agencies, from a procedural point of view, only have formal probative value. If the validity of the underlying legal act is ultimately uncertain from the point of view of the originating state and if no (procedural) position can be established based on the state’s participation, the substance of the act may and must be re-examined by the receiving state in accordance with the law designated by a conflict of laws examination there, even at the risk of creating a limping legal relationship. The ECJ’s case law on Art. 21 of the TFEU does not alter this principle. To further prevent limping legal relationships at the European level, what is needed instead is better standardization of the conflict of laws in EU secondary law.

As always, the issue also contains several book reviews. The full table of contents is available here.

The third issue of 2025 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out.

It features five contributions.

Cristina Campiglio, Cittadinanza iure sanguinis e nazionalità: riflessioni internazionalprivatistiche [Citizenship by Birthright and Nationality: Private International Law Reflections]

The recent amendment to the citizenship law, which restricts transmission by descent to two generations, offers an opportunity to revisit the concept of ius sanguinis from that specific legal perspective outlined in the nineteenth century by Mancini. Mancini linked citizenship (a public law institution) to nationality (a guiding principle of private international law). This connection remains evident today in cases where Italian citizenship is passed down to descendants born abroad. Filiation status must be evaluated according to conflict-of-laws rules (Arts 33 and 35 of Law 31 May 1995 No 218), which refer to the child’s own national law (creating a circular situation) or, if more favourable, to the parent’s national law. The public order exception (Art 16), particularly in cases of medically assisted procreation, can lead to the denial of filiation recognition, potentially resulting in statelessness. The new citizenship rules’ generational limit ultimately prompts reflection on whether Law No 218 of 1995, rooted in the nineteenth-century principle of nationality, should also be reconsidered.

Costanza Honorati, La circolazione di «accordi» in materia di responsabilità genitoriale nel Regolamento Bruxelles II-ter: Una disciplina destinata ad uno scarso rilievo pratico [The Circulation of ‘‘Agreements’’ on Parental Responsibility in the Brussels IIb Regulation: A Legal Framework of Marginal Practical Significance]

Among the most interesting developments in European family law in recent years is the circulation of authentic instruments and agreements. Regulation (EU) 2019/1111, also known as Brussels II-ter, introduced specific rules for the circulation of authentic instruments and agreements relating to legal separation and divorce, as well as parental responsibility. While numerous contributions have focused on the circulation of agreements relating to separation or divorce, less attention has been paid to agreements relating to parental responsibility. This contribution, through a detailed analysis of the provisions relating to parental responsibility agreements contained in both the aforementioned Regulation and the internal laws of individual Member States, highlights how, at present, this innovative regulatory framework is likely to have little impact. With the sole exception of what occurs in the French legal system, in fact, the category of “agreements” contemplated by the Brussels II-ter Regulation is currently devoid of its own content, being compressed between the private act which embodies the exchange of wills between the parties but which is irrelevant at the international level, and an increasingly broad notion of “decision”, modeled on a control carried out by any public authority, including an administrative one, which is classified as “on the merits” but which can be limited to compliance with the conditions established by law without implying any real appreciation of the content of the agreement.

Gaetano Vitellino, Misure cautelari e rapporti con stati terzi in materia civile e commerciale [Provisional Measures and Relations with Third States in Civil and Commercial Matters]

This paper examines the issues that arise when provisional or protective relief is granted in cases involving non-EU States. This topic has received limited attention in legal scholarship. The analysis presents three main arguments. First, interim relief may be granted not only by courts with jurisdiction over the merits but also by other courts. In this case, the restrictive conditions set out in Art 35 of the Brussels Ia Regulation, as interpreted by the CJEU, should not apply when no EU courts can hear and decide the dispute. Second, recognition and enforcement of provisional measures ordered by non-EU courts are subject to differing domestic rules across Member States. The analysis shows that in most countries – both within and outside the EU – foreign interim measures are generally not capable of being recognised, mainly due to their provisional nature. Third, the paper explores two key aspects of the free circulation of provisional measures within the EU. Firstly, contrary to the suggestions made by the European Commission in its recent report on the application of the Brussels Ia Regulation, it argues that provisional measures granted by EU courts with jurisdiction over the merits under national law should also freely move. Secondly, in line with the rationale behind Art 35, interim measures issued by courts without jurisdiction over the merits should not be prevented from circulating when no EU court can hear and decide the dispute.

Bartosz Wołodkiewicz, Erosion of the lex fori processualis principle: A comparative study

The lex fori processualis principle is one of the fundamental concepts of private international law. It asserts that in civil proceedings, unlike in the sphere of private law relations, it is not necessary to indicate the applicable law, since courts apply their own procedural law. Accepted since the 13th century, this principle became almost a dogma in the 19th century. However, in recent decades, the lex fori processualis principle has been criticised in academic discourse. Additionally, national legal systems have introduced procedural conflict-of-law rules that explicitly permit the application of foreign procedural law. This paradigm shift, and the resulting erosion of the dominant approach to (in)application foreign procedural law, is the focus of this study. The paper explores the contemporary relevance and legitimacy of this principle, as well as the exceptions to its application, in four legal systems: English, French, German, and Polish law. Based on these findings, three levels of erosion of the lex fori processualis principle are identified and discussed.

Paolo Vinciguerra, Anti-suit injunctions, ECHR and the public policy defence

This article examines a specific injunctive remedy: the anti-suit injunction. This is a discretionary judicial order directed at a private party, intended either to prohibit the initiation of proceedings in another forum or to compel the party to cease any proceedings already commenced in that forum under the threat of financial or personal sanctions. After outlining the key judicial developments that have established the incompatibility of anti-suit injunctions with the European legal order, the analysis shifts to the impact of Brexit and the conflict with Russia on the issuance of such injunctions by courts. Within this framework, the article primarily focuses on the possibility of identifying a new legal basis for restricting the circulation of anti-suit injunctions under the general clause of international public policy.

The fourth issue of the Journal du droit international for 2025 has been released.

It contains two articles and several case notes relating to private international law issues, including the 2024 case-law review dedicated to EU private international law prepared by Louis d’Avout, Jean-Sébastien Quéguiner, Stefan Huber, Patrick Kinsch, Lukas Rass-Masson, Sixto Sánchez-Lorenzo and Michael Wilderspin.

It is also worth mentioning the publication of three articles resulting from a round table held on 10 April 2025 on ‘Arbitration involving public entities’ during Paris Arbitration Week, authored by C. Lapp, P.-M. Duhamel and E. Silva Romero.

In this first article, Paul Klötgen (University of Lorraine) analyses the concept of forum necessitatis in the light of the public policy exception (L’ordre et la nécessité – Du forum necessitatis comme exception d’ordre public).

The English abstract reads:

The forum necessitatis, which exceptionally and subsidiarily establishes the jurisdiction of French courts in cases where there is a risk of a denial of justice, is nothing more than a form of international public policy argument. The approach of the French Cour de cassation in this respect appears flawless, both in the conditions for using the mechanism and in the terminology used to describe it. Well known in matters of conflict of laws or recognition and enforcement of judgments, the invocation of the ordre public exception can thus also apply to the question of direct jurisdiction; it is a general application mechanism. The forum necessitatis, based on the risk of denial of justice, clearly does not evict any foreign rule of law, but rather a repugnant legal situation. This allows for a renewed perspective on the function of the ordre public in Private international law: the historical dogma, according to which the triggering of the international ordre public exception serves to set aside the normally applicable foreign rule, does not reflect the current state of the law and deserves to be definitively forsaken.

In the second article, Johanna Guillaumé (University of Rouen Normandie) examines the complex issue of the represention of parties residing abroad before a French notary in matrimonial matters (La réception par le notaire français de la convention matrimoniale d’un couple domicilié à l’étranger).

The English abstract reads:

French notaries are obliged to act when requested to do so, and the exceptions to their obligation to act are listed exhaustively in the law. The foreign nature of the relationship is not a reason for refusing to act. For example, a couple living abroad, usually expatriates, may ask the French notary to draw up their marriage contract. Since French diplomatic and consular authorities abroad no longer perform notarial functions, the deed can only be drawn up on French territory. However, this does not necessarily mean that the future spouses have to travel abroad. Insofar as article 1394, paragraph 1, of the French Civil Code authorizes representation to conclude a marriage contract, notarized power of attorney concluding by distance avoids the need for travel. In the presence of a foreign element, it is still necessary to ensure that the article 1394, paragraph 1, is applicable and, if so, that the conditions of authenticity, on the one hand, and of simultaneous presence and consent, on the other, are met. The use of representation also raises the question of compliance with these conditions when drawing up powers of attorney and, consequently, of the use of the principle of parallelism of forms in private international law.

The table of contents of the issue can be accessed here.

The latest issue of the International & Comparative Law Quarterly includes two contributions dealing with private international law.

The first, by Richard Garnett, is entitled Foreign Judgments and the Relationship between Direct and Indirect Jurisdiction.

A key issue in the recognition and enforcement of foreign judgments is jurisdiction, with a distinction drawn between ‘direct’ jurisdictional rules, which are applied by the court of origin at the time of initial adjudication, and ‘indirect’ rules applied by a court at the recognition and enforcement stage. While some commentators and national laws suggest that no jurisdictional ‘gap’ should exist between direct and indirect rules, in this article it is contended that, outside the context of a federal system or international convention with uniform rules, no compelling justification exists for eliminating the gap.

Ardavan Arzandeh is the author of the second article, on Anti-Suit Injunctions in Support of Foreign Dispute-Resolution Clauses.

Courts in England ordinarily grant anti-suit injunctions when proceedings are (or will soon be) initiated in a foreign court in breach of clauses which subject disputes to the exclusive jurisdiction of courts, or refer them to arbitration, in England. Would they, however, grant such relief in support of foreign dispute-resolution clauses? In UniCredit Bank v RusChemAlliance, the Supreme Court of the United Kingdom answered this question in the affirmative, thus expanding the English courts’ power to issue anti-suit injunctions. This article seeks to assess the likely extent of this expansion and the future implications it could have for the law on anti-suit injunctions in England. The article also examines the Supreme Court’s pronouncements on the other significant issue in the case concerning the law governing arbitration agreements and their potential effect following the enactment of the Arbitration Act 2025.

Both articles are open-access contributions.

The full table of contents of the issue is found here.

The third issue of the Revue critique de droit international privé for 2025 was just published.

It contains three articles dealing with conflict issues (and a fourth concerned with immigration law) and a number of casenotes.

The case, which arose when recognition was sought in France of a Spanish court’s ruling against a French newspaper ordering it to pay heavy damages, highlights the conflict between the European objective of mutual trust and the protection of fundamental rights, particularly the freedom of the press. In a decision dated October 4, 2024, the Court of Justice (on a preliminary reference by the Cour de cassation) outlined the general methodology for controlling the proportionality of a financial penalty imposed abroad, on the basis of international public policy, a mechanism strongly influenced by European law. This control, which was subsequently implemented by the Court of Cassation in a ruling dated May 28, 2025, is severely limited by the European principle of prohibition of the review on the merits.

In the second article, Fabienne Jault- Seseke (University Paris Saclay, UVSQ) explores the unspoken aspects of European digital law in private international law, with a focus on the Digital Services Act (Les non-dits du droit européen du numérique en matière de droit international privé : l’exemple du règlement sur les services numériques).

The Digital Services Act (DSA) addresses issues of private international law in a very limited way. It mainly defines its territorial scope using a unilateral rule : it applies to any intermediary service provider that targets users in the European Union, regardless of its place of establishment. It is largely silent on other aspects of the private international law, such as determining the law applicable to illegal content or to actions for injunctions and damages. In terms of jurisdiction, it refers to the Brussels I bis Regulation, whose provisions are poorly adapted to the specificities of the digital world. The preference that the DSA seems to give to public enforcement rather than private enforcement cannot justify its silence on most questions of PIL, which are essential if we are to ensure effective protection of rights in the digital environment, which is almost always cross- border.

Finally, Marcel Zernikow (University of Orléans) explores how certificates and digitalisation have renewed the methodology of European judicial cooperation to serve the right to a fair trial (Le renouvellement des méthodes de la coopération judiciaire au service du droit au procès équitable : l’instrument du certificat et la numérisation).

Judicial cooperation is an object of study in private international law that is justified by the need to make the State’s jurisdictional activity effective in a foreign territory. Since it describes the connection between State or judicial authorities of two different States, it is governed by their respective territorial procedural laws. This field is nevertheless undergoing a renewal of its methods, which will be studied through the prism of the introduction of a new instrument: the certificate. The latter is gradually being used to accompany public documents or judicial decisions or for evidentiary purposes. How has this development become the basis for digitalization, which relies on the interconnection of legal systems and individuals via the internet? The renewal of methods is universal insofar as it is based on the guarantee of the right to a fair trial in international civil proceedings.

The full table of contents can be found here.

The second issue of the Revue critique de droit international privé for 2025 was published over the summer.

It contains four articles and numerous casenotes.

The third issue of 2025 of ZEuP – Zeitschrift für Europäisches Privatrecht, is out.

Various articles featured in the new issue will likely be of interest for the readers of this blog, including one by Helmut Ortner, Veronika Korom and Marion Neumann, in English, titled Pacta Sunt Servanda’s Soliloquy Amidst Sanctions: The Impact of EU Sanctions on Contractual Performance in Arbitration Proceedings.

EU sanctions against Russia and Russia’s countermeasures have significantly disrupted trade, supply chains, and contractual relations, sparking disputes frequently resolved through arbitration. European legal systems provide a range of mechanisms — including force majeure, impossibility, frustration, and hardship — to address sanctions-related performance impediments. Despite doctrinal divergences, these frameworks tend to converge on practical outcomes. To mitigate risks and increase legal certainty, parties are well-advised to incorporate tailored clauses in their contracts.

The issue also includes an analysis by Fabian Kratzlmeier of the ruling of the Court of Justice in Olichart, concerning the European Insolvency Regulation (on which see the post by Antonio Leandro on this blog). The article’s title is Die europäische vis attractiva concursus – Altbekanntes, Neues und Ungeklärtes zu Reichweite, Kompetenzkonflikten und materieller Sperrwirkung.

The latest issue of the Journal of Private International Law (Volume 21, Issue 1) features eight articles.

Pietro Franzina, Cristina González Beilfuss, Jan von Hein, Katja Karjalainen & Thalia Kruger, Cross-border protection of adults: what could the EU do better?, 1-29

On 31 May 2023 the European Commission published two proposals on the protection of adults. The first proposal is for a Council Decision to authorise Member States to become or remain parties to the Hague Adults Convention “in the interest of the European Union.” The second is a proposal for a Regulation of the European Parliament and the Council which would supplement (and depart from, in some respects) the Convention’s rules. The aim of the proposals is to ensure that the protection of adults is maintained in cross-border cases, and that their right to individual autonomy, including the freedom to make their own choices as regards their person and property is respected when they move from one State to another or, more generally, when their interests are at stake in two or more jurisdictions. This paper analyses these EU proposals, in particular as regards the Regulation, and suggests potential improvements.

Máire Ní Shúilleabháin, Adult habitual residence in EU private international law: an interpretative odyssey begins, 30-67

This article examines the first three CJEU cases on adult habitual residence in EU private international law, against the background of the pre-existing (and much more developed) CJEU jurisprudence on child habitual residence. While the new trilogy of judgments provides some important insights, many questions remain, in particular, as to the scope for contextual variability, and on the role of intention. In this article, the CJEU’s treatment of dual or concurrent habitual residence is analysed in detail, and an attempt is made to anticipate the future development of what is now the main connecting factor in EU private international law.

Felix Berner, Characterisation in context – a comparative evaluation of EU law, English law and the laws of southern Africa, 68-90

Academic speculation on characterisation has produced a highly theorised body of literature. In particular, the question of the governing law is the subject of fierce disagreement: Whether the lex fori, the lex causae or an “autonomous approach” governs characterisation is hotly debated. Such discussions suggest that a decision on the governing law is important when lawyers decide questions of characterisation. Contrary to this assumption, the essay shows that the theoretical discussion about the governing law is unhelpful. Rather, courts should focus on two questions: First, courts should assess whether the normative context in which the choice-of-law rule is embedded informs or even determines the question of characterisation. Insofar as the question is not determined by the specific normative context, the court may take into account any information it considers helpful, whether that information comes from the lex fori, the potential lex causae or from comparative assessments. This approach does not require a general decision on the applicable law to characterisation, but focuses on the normative context and the needs of the case. To defend this thesis, the essay offers comparative insights and analyses the EU approach of legislative solutions, the interpretation of assimilated EU law in England post-Brexit and the reception of the via media approach in southern Africa.

Filip Vlček, The existence of a genuine international element as a pre-requisite for the application of the Brussels Ia Regulation: a matter of EU competence?, 91-114

Under Article 25(1) of the Brussels Ia Regulation, parties, regardless of their domicile, may agree on a jurisdiction of a court or the courts of an EU Member State to settle any disputes between them. The problem with this provision is that it remains silent on the question of whether it may be applicable in a materially domestic dispute, in which the sole international element is a jurisdictional clause in favour of foreign courts. Having been debated in the literature for years, the ultimate solution to this problem has finally been found in the recent judgment of the ECJ in Inkreal (C-566/22). This article argues that the ECJ should have insisted on the existence of a material international element in order for Article 25 of the Regulation to apply. This, however, does not necessarily stem from the interpretation of the provision in question, as Advocate General de la Tour seemed to propose in his opinion in Inkreal. Instead, this article focuses on the principle of conferral, as the European Union does not have a legal base to regulate choice-of-court clauses in purely internal disputes. Accordingly, with the Regulation applying to legal relationships whose sole cross-border element is a prorogation clause, the Union legislature goes beyond the competence conferred on it by Article 81 TFEU. Such an extensive interpretation of the Regulation’s scope, which is, in reality, contrary to the objective of judicial cooperation in civil matters, is moreover prevented by the principle of subsidiarity as well as the principle of proportionality. Finally, this approach cannot be called into question by the parallel applicability of the Rome I and II Regulations in virtually analogous situations as those Regulations become inherently self-limiting once the international element concerned proves to be artificial.

Adrian Hemler, Deconstructing blocking statutes: why extraterritorial legislation cannot violate the sovereignty of other states, 115-134

Blocking statutes are national provisions that aim to combat the legal consequences of foreign, extraterritorial legislation. They are often justified by an alleged necessity to protect domestic sovereignty. This article challenges this assumption based on an in-depth discussion of the sovereignty principle and its interplay with the exercise of state power regarding foreign facts. In particular, it shows why a distinction between the law’s territorial scope of sovereign validity and its potentially extraterritorial scope of application is warranted and why, based on these foundations, extraterritorial legislation cannot violate foreign sovereignty. Since Blocking Statutes cannot be understood to protect domestic sovereignty, the article also discusses how they serve to enforce international principles on extraterritorial legislation instead.

Michiel Poesen, A Scots perspective on forum non conveniens in business and human rights litigation: Hugh Campbell KC v James Finlay (Kenya) Ltd, 135-152

In Hugh Campbell KC v James Finlay (Kenya) Ltd the Inner House of the Court of Session, the highest civil court in Scotland subject only to appeal to the UK Supreme Court, stayed class action proceedings brought by a group of Kenyan employees who claimed damages from their Scottish employer for injuries suffered due to poor labour conditions. Applying the forum non conveniens doctrine, the Court held that Kenya was the clearly more appropriate forum, and that there were no indications that the pursuers will suffer substantial injustice in Kenya. Campbell is the first modern-day litigation in Scotland against a Scottish transnational corporation for wrongs allegedly committed in its overseas activities. This article first observes that the decision of the Inner House offers valuable insight into the application of forum non conveniens to business and human rights litigation in Scotland. Moreover, it argues that the decision would have benefitted from a more rigorous application of the jurisdictional privilege in employment contract matters contained in section 15C of the Civil Jurisdiction and Judgments Act 1982.

Hasan Muhammad Mansour Alrashid, Appraising party autonomy in conflict-of-laws rules in international consumer and employment contracts: a critical analysis of the Kuwaiti legal framework, 153-184

Party autonomy plays a vital role in international contracts in avoiding legal uncertainty and ensuring predictability. However, its application in international employment and consumer contracts remains a subject of debate. Consumers and employees are typically the weaker parties in these contracts and often lack the expertise of the other party, raising questions about their autonomy to choose the applicable law. Globally, legal systems differ on this point with some permitting full party autonomy, others rejecting it outrightly and some allowing a qualified autonomy with domestic courts empowered to apply a different law in deserving cases to protect the employee or consumer. Kuwaiti law allows full autonomy only in international consumer contracts but prohibits it in international employment contracts. This paper critically analyses Kuwait’s legal approach to find an appropriate balance between the principle of party autonomy in the choice of law and the protection of employees and consumers.

Alexander A. Kostin, Recognition and enforcement of foreign judgments in bankruptcy and insolvency matters under Russian law, 185-209

This article addresses the role of certain Russian Federal Law “On Insolvency (Bankruptcy)” provisions (eg Article 1(6)) for resolving bankruptcy and insolvency matters under Russian law. The author argues that the “foreign judgment on the insolvency matters” term covers not only the judgments on initiation of bankruptcy/insolvency, but also other related judgments like those on vicarious liability, avoidance of transactions and settlement agreements. The issues associated with enforcing foreign judgments on the grounds of reciprocity under Article 1(6) of the Federal Law “On Insolvency (Bankruptcy)” are being explored and valid arguments in favour of recognition simpliciter (recognition of foreign judgments without extra exequatur proceedings at the national level) are provided. The legal effects of foreign judgments on the initiation of bankruptcy/insolvency proceedings recognition are analysed as well as the interconnection between relevant provisions of the Russian legislation on lex societatis of a legal entity and the rules for recognising foreign judgments on the initiation of bankruptcy/insolvency proceedings.

The second issue of 2025 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out.

It features three contributions.

Francesco Pesce, Il riconoscimento delle decisioni straniere in materia civile tra previsioni sulla competenza funzionale del giudice interno e comunicazioni alla Commissione europea [Recognition of Foreign Decisions in Civil Matters between Provisions on the Functional Jurisdiction of National Courts and Communications to the European Commission]

The implementation of the Regulations adopted by the EU in the context of so-called civil judicial cooperation has assumed an increasing importance over the last twenty years, due to the progressive expansion of the areas of intervention of the legislator of the European Union. Nonetheless, some of the repercussions of such uniform legislation do not seem to have been appropriately reversed, by the Italian national legislator, into the code of civil procedure and into the other special provisions aimed at ruling civil proceedings. With regard to the recognition and enforcement of foreign decisions, it appears that notwithstanding the ever more pressing need to address the matter in a complete and organic manner, a situation of inertia has prevailed in the Italian legal system, moving from the idea that, where compatible with the new EU Regulations, the domestic procedural rules could also be adapted to the intra-European circulation of judgments. This has resulted in a rather fragmentary and incomplete internal regulatory framework of civil procedure, so affecting the principle of legal certainty due to the lack of specific provisions aimed at implementing the EU discipline dedicated to the free movement of decisions. Moreover, the EU Regulations here considered require that each country informs the Commission, by means of a formal communication, of the internal procedures that may be relevant in the application of the uniform discipline (with particular reference to the competent national authorities and to the specific applicable procedures): in this regard – even after the 2022 ‘Cartabia’ reform of civil procedure – it seems that the content of the Italian communications is, in some cases, not only devoid of an adequate legislative basis of reference from the point of view of the national system, but even unreasonable and incoherent if observed in a systemic perspective.

Curzio Fossati, L’incidenza dell’obbligo di riconoscimento dello status filiationis nell’Unione europea sugli ordinamenti nazionali [The Impact on National Legal Systems of the Obligation to Recognise Filiation Status within the European Union]

This article examines whether each Member State of the European Union is obliged to recognise the filiation established in another Member State. Noting the current lack of uniform private international law rules on filiation, the paper considers some examples of conflict-of-laws rules in force in the Member States and highlights the main differences between them. It then analyses the case-law of the Court of Justice on the circulation of personal and family status between Member States in order to examine the scope and basis of the Court’s obligation for Member States to recognise such status. The aim of this work is to show that the solution adopted by the Court of Justice is only partially able to resolve the problematic aspects of the current private international law regulation of filiation, highlighting persistent uncertainties and critical issues.

Kevin Silvestri, La legge regolatrice degli effetti dell’apertura di procedure di insolvenza sui processi su crediti pendenti all’estero [The Law Governing the Effects of the Opening of Insolvency Proceedings on Proceedings Concerning Claims Pending Abroad]

This paper delves into a specific aspect of the broader challenge of cross-border insolvency proceedings: determining which law governs the impact of opening insolvency proceedings in one State on creditors’ claims-related lawsuits pending in another. This is a particularly delicate issue for a few reasons. On one hand, the effects of insolvency proceedings on ongoing creditors’ lawsuits are a critical component of how liabilities of the estate are ascertained under the lex fori concursus. This includes, crucially, how the proof of claims process coordinates with any pending lawsuits involving the debtor. On the other hand, according to the principle lex fori regit processum, the rules governing these lawsuits differ from those governing the insolvency proceedings themselves, especially when the lawsuits are pending in a different country. This work highlights the potential conflict between these opposing principles. It also examines the problems that can arise when the legal systems involved have different ways of coordinating proof of claim with creditors’ lawsuits. The paper then focuses on the differing interpretations of Article 18 of Regulation (EU) 2015/848. This article aims to identify the applicable law in these situations. Legal scholars have proposed various interpretations precisely because of the complexities introduced by differences among European leges concursus regarding the fate of creditors’ lawsuits pending when insolvency proceedings commence.

The latest issue of the new French journal dedicated to international dispute resolution, Perspectives Contentieuses internationales (PCI), has been released.

It is an open access publication and can be freely downloaded here.

Real Madrid v Le Monde

The main focus of the issue is on the case of Real Madrid v. Le Monde (Case C-633/22). It offers 6 contributions exploring the various aspects and implications of the judgment.

Fabienne Jault, L’avenir de la libre circulation des décisions de justice dans l’Union européenne : l’affaire Real Madrid / Le Monde — Propos introductifs

The Real Madrid ruling is an important decision in European private international law, in that it obliges to refuse partial recognition of a decision that clearly infringes freedom of expression. At the same time, by specifying the way in which the proportionality test must be applied, the judgment has not left specialists in civil liability indifferent. These introductory remarks to the dossier, which echoes the various facets of the case, focus on the free circulation of judicial decisions that the proportionality review inherent in the implementation of fundamental rights alters.

Julie Traullé, La réparation du dommage causé par un abus de la liberté d’expression au coeur du dialogue des juges

The decision handed down on October 4, 2024, by the Court of Justice of the European Union in the so-called Real Madrid case offers a renewed vision of the relationship between civil liability law and freedom of expression. In light of what the European Court of Human Rights may otherwise rule, the review that the judge of the requested State is invited to carry out on the outcome of the civil liability action is limited. In light of what french civil liability law provides, the review that the judge of the requested State is invited to carry out is original.

Marie Dugué, Laura Vitale, De la marche à suivre pour décider si une sanction pécuniaire prononcée à l’étranger viole manifestement la liberté de la presse

The judgement delivered by the Court of Justice of the European Union on 4 October 2024 sets out a singular method for determining whether a court can refuse to enforce a foreign order for damages against a newspaper and a journalist, on the grounds that it manifestly infringes the freedom of the press guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union. The court of the Member State in which enforcement is
sought is required to take into account not only the extent of the harm, but also the resources of the persons against whom judgment is given and the seriousness of their wrong. The way in which French judges will take this into account is open to question.

Ana Quiñones Escámez, Un article de presse, deux affaires en Espagne et vingt fois plus de dommages-intérêts moraux dans l’une d’elles: exequatur en France?

The case of Real Madrid vs. Le Monde is examined in the light of an earlier dispute with FC Barcelona, in which compensation for moral damages was twenty times lower. The study examines discrepancies in press law, false pretences (punitive damages) and judicial practice. Furthermore, the text undertakes an analysis of the implications for exequatur, in terms of mutual trust, the prohibition of substantive review and the strict interpretation of public policy, in the light of Regulation 44/2001 and the ECJ judgment of 4 October 2024. This judgment, in accordance with the chilling effect doctrine of the ECHR, paves the way for the French judge to refuse, partially or totally, recognition of the Spanish decision.

Oliveira Boskovic, L’ordre public international et les condamnations pécuniaires excessives

Does international public policy require that any award of damages be proportionate to the actual harm suffered by the claimant and/or to the fault committed by the defendant? The Real Madrid ruling raises this question, well known in French private international law and in two Hague Conventions, at the European level. This article examines the decision in its context, explores the possibility of extending its application beyond the specific case of press freedom violations addressed by the Court, and analyzes the consequences of a finding of disproportion.

Fabien Marchadier, Contrôler sans réviser ? Quelle place pour le contrôle du respect des droits fondamentaux dans un contexte de confiance mutuelle?

Is the review of foreign judgments in light of fundamental rights compatible with the prohibition of review on the merits, especially in a context of mutual trust presuming respect by all Member States for those same rights? To what extent does the review undertaken by the court of the requesting State differ from that carried out by the court of origin? In its Real Madrid judgment, the Court of Justice seeks to establish a methodology for review. Guided by the objective of free movement of decisions, it imposes constraints on the court of the requested State and proposes an innovative solution, namely partial recognition by way of reduction of the sentence.

Other Articles

Gilles Cuniberti, Assessing the International Attractiveness of Commercial Courts. Will Paris Eat London’s Lunch?

The establishment of an international chamber in the Paris Commercial Court aimed at competing with and divesting judicial business from the London Commercial Court. Yet, the promoters of the new French international courts haven’t made any effort to assess the number and nature of cases that French courts could hope to attract. This Article conducts this inquiry by studying and comparing the international caseloads of both courts.
Its first part reflects on the conditions for international judicial competition and argues that the many types of cases that each of the two courts handles reveal the existence of different markets, which are not all competitive and international. The second part offers an empirical study of the caseloads focusing on potentially competitive markets only. It then argues that the international attractiveness of commercial courts is revealed by the origin of the parties and assesses the attractiveness of each of two courts by distinguishing the cases on this basis.

Marylou Françoise, La saisine du juge dans les litiges internationaux

The date a court is seised is crucial in international litigation. It determines the competent court involving a lis pendens. However this moment may prove complex to determine. And it is not merely a matter of recording a date. According European regulations, it is also necessary to prove that the applicant has not subsequently failed to take the steps he was required to take in order to have service effected on the respondent. Thus, when the seising of a foreign court must be proven, several questions are raised: what is the applicable law? Where does the burden of proof lie? Are European regulations sufficient for a comprehensive and uniform framework? What is the role of the parties and the judge? Rules about the time when a court is deemed to be seised are clarified by the European Court of justice and by the French Cour de cassation.

Shorter pieces

Thomas Clay, L’Arbitration Act 2025

Sandrine Clavel, Rapport sur l’application du Règlement Bruxelles I refondu : To revise or not to revise?
Patrick Jacob, L’ordonnance rendue par la CIJ en l’affaire Soudan c. Emirats Arabes Unis : coup de frein à l’ouverture de la Cour

The third issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2025 has been published. The following English abstracts have been kindly provided by the editor of the journal.

The concepts of damage, marketing and the person sustaining the damage in Article 5 Rome II Regulation must be interpreted exclusively according to conflict of laws. Corresponding changes to the Product Liability Directive 2024 therefore have no effect on conflict of laws. However, an interpretative connection between Article 5 Rome II Regulation and Product Liability Directive 2024 must be recognized for the product and the person claimed to be liable. The partial expansion of the product concept into the area of digital services and information leads to an expansion of the subject matter of Article 5 Rome II Regulation at the expense of Article 4 Rome II Regulation. The associated expansion of the scope of the definition of (partial) manufacturer as well as the extension to authorised representatives of a manufacturer, “quasi-importers” and “quasi-dealers” of e-commerce affects conflict of laws likewise. Depending on the starting point adopted in Article 5 Rome II Regulation, this will only lead to a further loss of the Member State’s discretion for qualification of the subject matter in Article 5 Rome II Regulation or, more broadly, to a further immediate shift in the subject matter at the expense of Article 4 Rome II Regulation.

The ECJ had to decide whether a jurisdiction clause included in a bill of lading may be invoked against the consignee of the goods who has, pursuant to the applicable national law, succeeded in the carrier’s rights and obligations upon reception of the bill of lading. The Court drew on its case law beginning with the Tilly Russ case but was also required to answer questions that had been raised by inconsistencies in its more recent case law, in particular its judgment in the DelayFix case. The Court now rejects the choice-of-law rule formulated in the operative part of the DelayFix judgment pursuant to which the succession of the third party into the substantive rights and obligations of the original party to the jurisdiction clause is governed by the lex fori prorogati. Instead, the ECJ reaffirms its previous case law according to which the applicable law is to be determined pursuant to the private international law of the forum state. Moreover, the Court declares that national legal provisions are contrary to EU law if they make the third-party effect of a jurisdiction clause included in a bill of lading dependent on further conditions beyond the recipient’s full succession into the carrier’s substantive rights and obligations.

The second issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2025 has been published. The following abstracts have been kindly provided by the editor of the journal.

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2024 until December 2024. It presents newly adopted legal instruments and summarises current projects that are making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. The authors discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

By establishing the Commercial Courts and the Commercial Chambers, the Legal Venue Strengthening Act, which will enter into force on 1 April 2025, aims to enable innovative proceedings before state courts in important areas of commercial law (B2B cases, M&A cases and cases of D&O liability). State jurisdiction is to become more attractive, especially for cross-border disputes. Based on a litigation agreement pursuant to Sections 119b (2), 184a (3) of the German Courts Constitution Act on the first instance jurisdiction of the Commercial Court and on the conduct of proceedings in English, the article analyses details of the newly created procedural instruments and their implementation in practice. The focus is on trial proceedings. In addition, the special features of appeal proceedings and cross-border enforcement of judgments are also presented.

The latest issue of the Netherlands International Law Review (issue 3 of 2024) features five articles related to public interest litigation, preceded by an introductory paper by Xandra Kramer. The articles address different aspects of public interest litigation either from a primarily public law or private law perspective.

Xandra Kramer, Public Interest Litigation at the Intersection of Public Law and Private Enforcement

Public interest litigation has played an important role in enforcing rights involving a wide range of public or collective interests over the past decades. In recent years, particularly climate litigation and related social rights have gained substantial attention. This article sketches the background of public interest litigation, addresses the different procedural frameworks through which public interests are litigated, including public international, administrative and private law mechanism, and introduces the topic-specific contributions to this special issue. It concludes that while public interest litigation faces considerable legal, socio-political and financial challenges it fulfils an important role in legal mobilisation with the aim to pursue the enforcement of a multitude of collective interests.

María Carlota Ucín, In the Name of Human Rights: Sketching a Definition of Public Interest Litigation

Public interest litigation is currently receiving considerable attention as an emerging phenomenon in Europe. However, the movement is neither novel nor homogeneous. It is not novel, because over the last six decades many actors have been attempting to provoke social change through the courts in several jurisdictions. And it is not homogeneous, because as soon as the literature is reviewed, several dissimilar names that refer to the same body of cases can be found. Moreover, some cases are in a grey area that raises questions about their inclusion in the definition of public interest. Owing to this lack of clarity, it becomes pertinent to provide a clear concept of public interest litigation geared to inform not only academic discussions and research but also the future design of adequate judicial policies. The aim of this article therefore is to state a definition that isolates the main elements of this litigation experience, and also to offer preliminary guidelines for future regulations that can address the special needs of these cases within court procedures. To achieve this goal, the article will adopt a comparative perspective and explore the elements that appear to be constant in the different jurisdictions: namely, the human rights framework, which is applied to these claims, and the altruistic element, by which civil society actors such as NGOs or public authorities defend ‘other people’s rights’ while facilitating democratic participation geared towards promoting a certain degree of social change. As will be shown throughout the article, these elements allow us to distinguish these collective claims from others that are oriented towards a retributive or strategic rationale.

Gizem Halis Kasap, Defending Privacy Across Borders: Public Interest Litigation in the Fight Against Data Exploitation

This paper examines the pivotal role of public interest litigation in tackling the escalating issue of cross-border data exploitation. In an era where data flows freely across jurisdictions, multinational corporations often exploit legal loopholes to bypass accountability, posing serious risks to individual privacy and data security. Traditional legal avenues, while addressing personal grievances, often fall short of deterring large-scale abuses and do little to address the collective societal impacts that arise from widespread data misuse. Public interest litigation, however, enables individuals, civil society organizations, and advocacy groups to push for more extensive, structural changes that foster greater corporate accountability and compliance on a global scale. Through a thorough review of legal frameworks, real-world case studies, and the intricacies of international jurisdiction, this paper argues that public interest litigation is essential—not just as a complement to private enforcement but as a transformative tool for enforcing data protection laws and protecting collective digital rights. This analysis highlights the capacity of public interest litigation to prompt judicial activism and adapt to global digital challenges, marking it as a powerful pathway toward equitable data privacy protection.

Ignacio Vásquez Torreblanca, Pablo Neupert Kaplan, Public Interest Climate Litigation in Latin America Leading the Way in Addressing Climate Change? The New Focus on Ecocentric and Intergenerational Dimensions

In recent years, strategic litigation has established itself as a fundamental instrument in the defence and promotion of environmental rights in international law. Within this context, this article aims to characterize climate litigation in the Global South, specifically in Latin America. To achieve this, it analyses a series of cases illustrating innovative legal responses in Latin America being directed towards enhanced environmental and human rights protection in the region. The first part explores the phenomenon of climate litigation and its reception in Latin America, distinguishing between strategic litigation and public interest litigation. It concludes that, with some nuances, climate litigation in Latin America falls under the category of environmental public interest litigation. The second part analyses key judicial decisions, which have established significant precedents in terms of their transnational effects, allowing the consolidation of concepts such as intergenerational justice and ecocentric dimension in regional litigation.

Vera Strobel, Litigating and Enforcing International Humanitarian Law before German Courts: Public Interest Litigation via Individual Rights as a Vehicle for Access to Justice in Situations of Armed Conflict

Amidst global armed conflicts, the importance of International Humanitarian Law (IHL) is notably high. Unlike human rights, IHL does not grant individuals direct rights, but modifies individual rights, like the right to life, during armed conflict. Key principles of IHL include distinction and proportionality to limit civilian casualties. However, IHL lacks effective enforcement mechanisms. Public interest litigation offers a potential avenue for enforcing IHL through individual rights-based approaches with the potential to impact domestic and international law. Recent public interest cases range from climate change, digital rights, and corporate responsibility to refugee and human rights cases, often incorporating international law arguments. Resorting to (international) criminal law in the case of war crimes is an established public interest approach. Yet, recently, public interest litigation alleging violations of IHL before administrative, constitutional, and human rights courts has established itself as a novel approach. Scrutinizing such landmark decisions, particularly those involving IHL, provides insights into the approaches and potentials of public interest litigation. This contribution analyzes examples of public interest litigation seeking compliance with IHL in arms export, drone strike and air strike cases to illustrate the procedural avenues, legal arguments, and socio-political implications. The analysis offers a critical evaluation of the potential and challenges of public interest litigation in shaping domestic and international law and practice, especially concerning IHL.

Charlotte de Meeûs, Investing in Responsible Litigation: Third-Party Funding for Public Interest Litigation

While public interest litigation (‘PIL’) is on the rise, it continues to face significant funding challenges. In various sectors, financial barriers to accessing justice such as high litigation costs and a decline in public legal aid have gradually led to the development of private litigation funding mechanisms, such as third-party litigation funding (‘TPLF’). The development of TPLF primarily took place in the context of high-value commercial litigation with funders showing little interest in PIL. However, several recent PIL cases appear to have been backed by TPLF, suggesting that the TPLF market might be evolving in a new direction. Against this background, this paper explores the role that TPLF can play in enhancing access to justice in PIL. It attempts to highlight some of the obstacles that third-party litigation funders may encounter when financing PIL and focuses on two specific hurdles. First, the type of relief sought in PIL, which does not necessarily entail substantial pecuniary damages, does not align with the focus of third-party litigation funders on high-value litigation. Second, the difficulty in determining the law that is applicable to TPLF agreements may arguably affect the role of TPLF in PIL. It is indeed currently not clear whether EU courts will assess TPLF based on the law of the forum or based on the law contractually designated by the parties in the TPLF agreement. The last part of this paper explores some avenues for future research aimed at addressing these obstacles and encouraging the use of TPLF in PIL.

The first issue of the Journal du droit international (JDI, Clunet) for 2025 has been released. It contains one article and several case notes relating to private international law issues.

In her contribution, Sandrine Clavel (University of Paris-Saclay) analyses the recently adopted Directive on Corporate Sustainability Due Diligence (“CS3D”) through the lens of European economic integration and EU values (La directive “Devoir de Vigilance” (CS3D), entre ambition politique et réalisme économique).

The English abstract reads:

The European Directive on Corporate Sustainability Due Diligence is a political project with a particularly ambitious agenda. On the one hand, it aims to bolster the social responsibility of major multinational corporations, by making them accountable to civil society and to their own value chains. On the other hand, it aims to use these companies to spread the humanist values now promoted by the European Union into global business practice, by transferring the duty of care to business partners operating exclusively in foreign countries. The undertaking is all the more delicate in that it cannot be carried out without a certain amount of caution, since the competitiveness of European companies must be preserved. The European and national negotiators have therefore engaged in a veritable balancing exercise, producing a text which, while still suffering from a number of shortcomings, represents a major step forward.

The full table of contents of the issue can be accessed here.

Jacco Bomhoff, Uglješa Grušić and Manuel Penades Fons, Introduction to the special issue in honour of Professor Trevor Hartley, 501-508

Professor Trevor C Hartley’s Bibliography (prepared by Jacco Bomhoff, Uglješa Grušić and Manuel Penades Fons), 509-521

Jacco Bomhoff, Law made for man: Trevor Hartley and the making of a “modern approach” in European and private international law, 522-538

This article offers an overview and an interpretation of Trevor Hartley’s scholarship in the fields of private international law and EU law. It argues that Hartley’s work, beginning in the mid-1960s and spanning almost six decades, shows striking affinities with two broader outlooks and genres of legal discourse that have roots in this same period. These can be found, firstly, in the approach of senior English judges committed to “internationalising” the conflict of laws in the post-war era; and, secondly, in the so-called “legal process” current of scholarship that was especially influential in American law schools from the late 1950s onwards. Reading Hartley’s writings against these backgrounds can help illuminate, and perhaps to some small extent complicate, two labels he himself has given to his own work: of a “modern approach”, in which “law is made for man, not man for the law”.

Adrian Briggs, What remains of the Brussels I Regulation in the English conflict of laws?, 539-553

The paper argues that whether we are concerned with retained or assimilated EU laws, or with rules of UK law made as close copies of EU laws, initial encouragement to interpret them as though they were still rules of EU law is coming to be, and should be, replaced by a cooler realisation that, as they no longer function in English law as cogs in a great European legal construction, they should be reassessed and repurposed to serve the purposes of domestic law. That will mean, for good or ill, that the tangible and intangible effect of the Brussels I Regulation on English law is less, and will come to be much less, than some had supposed.

Hans van Loon, A view from the Hague, 554-562

This article highlights the crucial role of Trevor Hartley as the principal author of the Explanatory Report of the 2005 Hague Choice of Court Convention. His exhaustive and crystal-clear explanations, for example on the Convention’s sophisticated rules on intellectual property and its relation to the Brussels I Regulation, are a lasting, indispensable help to its correct interpretation and application. They even shed light on some aspects of the 2019 Hague Judgments Convention. The article also recalls Trevor Hartley’s essential role in the European Group for Private International Law, of which he has been an original member since 1991, most of the time as the only representative of a common-law legal system. Lastly, this contribution praises Trevor Hartley’s exceptional scholarly and pedagogical qualities, as evidenced notably by his widely used International Commercial Litigation.

Linda Silberman, Trevor Hartley: champion for the Hague Choice of Court Convention, 563-572

This article, in tribute to Professor Trevor Hartley, discusses the debate between Gary Born and Professor Hartley about whether countries should ratify the Hague Choice of Court Convention. It also explains how that debate contributed to the conclusions reached by a New York City Bar Committee that was asked by the United States State Department for its views on ratification of the Convention.

Alex Mills, Assessing the Hague Convention on Choice of Court Agreements 2005, 573-585

Almost twenty years after the adoption of the Hague Choice of Court Convention 2005, it may be an appropriate moment to reflect on and assess its legacy to date. This article, part of an issue paying tribute to the work of Professor Trevor Hartley, notes a number of different ways in which the legacy of the Convention may be evaluated, particularly appreciating the important role of the Explanatory Report co-authored by Professor Hartley. It argues that the Convention should not be judged merely based on the (admittedly limited, but perhaps growing) number of state parties, but also taking into account its wider influence in a number of different respects which may cast a more positive light on its achievement. These include the importance of the Convention to the Hague Conference on Private International Law, the soft power of the Convention, and the role of the Convention in preserving the enforceability of UK judgments based on exclusive jurisdiction agreements in European Union Member States notwithstanding Brexit.

Andrew Dickinson, Anti-suit injunctions – beyond comity, 586-597

This short article considers a theme emerging from Trevor Hartley’s writing on the topic of anti-suit injunctions – the significance of the existence of an international treaty that regulates the circumstances in which the States concerned may or must assert, and may or must decline, jurisdiction with respect to the subject matter of the dispute. It examines, in particular, recent case law extending the reach of the European Union’s prohibition on anti-suit injunctions within the Brussels I regime, and the place of anti-suit injunctions within the framework of the Hague Choice of Court Convention.

Verónica Ruiz Abou-Nigm, Iconic asymmetries of our times: “super Highways” and “jungle tracks” in transnational access to justice, 598-614

Drawing from Hartley’s “Multinational Corporations and the Third World: A Conflict-of-Laws Analysis” where he exposes the “unequal fight” between powerful multinational corporations and the people and communities in “the third world”, suggesting that this is partly a consequence of the deficits of legal infrastructures therein, this brief contribution dwells on the global systemic impact of channelling legal proceedings justiciable in the Global South (GS) to courts in the Global North (GN). It takes a private international law and sustainable development perspective and draws attention to the rhetoric and narratives of interdependence between the “super highways” and the “jungle tracks”- the illustrations used by Hartley. The main argument taken forward in this paper is that to realise private international law’s contribution to SDG 16 (peace, justice and strong institutions) responsivity is necessary in jurisdictional decision making in this context to enhance access to justice for all in the GS.

Grace Underhill, Masterstroke or misguided? Assessing the proposed parallel proceedings solution of the Hague Conference on Private International Law and the likelihood of its acceptance in Australia, 615-650

A dispute litigated simultaneously in two different jurisdictions wastes time and resources, and risks inconsistent judgments. In March 2024, the Hague Convention on Private International Law’s Working Group on matters related to civil and commercial jurisdiction released its third iteration of draft provisions on parallel proceedings. These provisions represent the groundwork (and one chapter) of a long-awaited international instrument that addresses the assumption and declining of jurisdiction. This article canvasses the proposal’s successes and failures in securing the continuance of litigation in a single forum. To assist, this article selects the example of Australia, against whose judicial practice the compatibility of the Working Group’s proposal is tested. This exercise identifies fundamental inconsistencies between the two schemes. Those (potentially insurmountable) concerns for judicial practice, alongside bureaucratic stagnation in Australia’s policy-making appetite in this area must, it is argued, be balanced against the strong normative influences for Australia’s accession to such an agreement. This invites concern for the acceptance of the proposal, and the broader future of the Jurisdiction Project as a whole.

Tobias Lutzi, What remains of H Limited? Recognition and enforcement of non-EU judgments after Brexit, 651-667

In its controversial decision in H Limited, the Court of Justice held that an English confirmation judgment, transforming two Jordanian judgments into an English one, constituted a judgment in the sense of Articles 2(a) and 39 Brussels Ia and, as such, qualified for automatic recognition and enforcement in all Member States. The decision has been heavily criticized for seemingly violating the rule against double exequatur and potentially opening a backdoor into the European Area of Justice. As the particular door in question has already been closed with the UK’s completed withdrawal from the EU, though, crafty judgment creditors will have to look to other Member States. This paper will make an attempt at identifying those jurisdictions to which they might look. For this purpose, it will first argue that for an enforcement decision to fall under Chapter III of the Regulation, two requirements must be fulfilled: It must be a new decision on the judgment debt (rather than a mere declaration of enforceability) and it must have come out of adversarial proceedings. The paper will then look in more detail at a selection of jurisdictions that might fulfil these two requirements.

The latest issue of the Oxford Journal of Legal Studies (Volume 44, Issue 4) features one article of interest to private international lawyers.

Georgia Antonopoulou, Forum Marketing in International Commercial Courts?, p. 860-888

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.

Sandrine Clavel, Patrick Jacob and Fabienne Jault Seseke (all professors at the University of Versailles St Quentin) are the editors of a new French journal dedicated to international dispute resolution, Perspectives Contentieuses internationales (PCI).

The journal, which will be freely available, aims at covering both public and private law aspects of international dispute resolution. It will be published twice a year.

The first issue, which can be accessed here, is primarily dedicated to the relationships between local communities and arbitration, and offers nine pieces on this topic. It also includes one additional article on private international law in arbitration, a commentary of the Inkreal decision and notes on recent developments in French private international law. The table of contents can be accessed here.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. Since the beginning of 2024, RabelsZ has been an open access publication, with all articles freely available to readers online.

The fourth issue of 2024 closes off the year with a varied selection of essays on comparative and private international law, two of which are published in English. Here are the titles and abstracts in full, which have been kindly provided to us by the editor of the journal:

Holger Fleischer and Simon Horn, Unternehmensskandale und skandalgetriebene Regulierung: Die Stavisky-Affäre als Prüfstein (Corporate Scandals and Scandal-Driven Regulation: The Stavisky Affair as Touchstone) (Open Access)

This article is an opening contribution to a new research program on corporate scandals and their legal treatment around the world. In addition to addressing civil and criminal sanctions, the main focus lies on the widespread but under-researched phenomenon of scandal-driven reform legislation. Selected case studies from the past and the present will help to create a better picture of the connections between business scandals and legal regulation. A first touchstone for such systematic comparative scandal-based research is found in early 1930s France with the Stavisky affair – a case that not only kept the business and financial world in suspense, but one that also shook the political foundations of the Third Republic.

Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, Enhancing the Draft African Principles on the Law Applicable to International Commercial Contracts – Innovations for the African Context (Open Access)

This article examines the draft African Principles on the Law Applicable to International Commercial Contracts, evaluating current and proposed choice of law rules in numerous African countries and incorporating global comparative perspectives. It argues that the African Principles should not only largely echo regional/supranational and international instruments like the Rome I Regulation and the Hague Principles on the Law Applicable to Commercial Contracts but should innovate to address the specific needs of the African context. The article suggests reforms in several areas: the scope of the African Principles, protection of weaker parties such as consumers and employees, government contracts, non-state law, and in provisions for the law applicable in the absence of choice.

Béligh Elbalti, The Applicable Law in Succession Matters in the MENA Arab Jurisdictions – Special Focus on Interfaith Successions and Difference of Religion as an Impediment to Inheritance Open Access)

This article examines the question of the law applicable in cross-border successions in the MENA Arab region, with a particular focus on the issue of interfaith succession. It shows that the private international law treatment of succession matters depends largely on derogative factors, in particular the involvement of Islam as the religion of one of the parties. In cases where all the parties are foreign non-Muslims, the conflict of laws approach is usually observed, and the foreign law is applied. However, if one of the parties is a Muslim, nationality as the connecting factor is effectively supplanted by the religion of the parties, and the lex fori is applied. Unlike the usual perspective, which typically examines this approach through the lens of public policy, this article argues that the practice, of substituting the lex fori for the ordinarily applicable law in disputes involving Muslims, is based on an »unwritten principle of private international law« that effectively designates the Islamic religion as a de facto connecting factor under the cover of public policy.

Martin Lutschounig, Eingeschränkte Anwendung des lex fori-Prinzips bei internationalen Verkehrsunfällen (Limited Application of the lex fori Principle for Cross-border Traffic Accidents) (Open Access)

According to the principle of forum regit processum, a court deciding a dispute applies its own national procedural law even in cases which are substantively governed by foreign law. It is therefore crucial how the individual legal question is categorized, namely whether it is classified as substantive or procedural. According to the prevailing opinion, this decision is made applying the lex fori. The situation is different, however, under the Rome II Regulation, as also the scope of the applicable law (lex causae) is subject to an autonomous interpretation. The article argues that the question of whether a foreign rule is to be classified as procedural or substantive is, therefore, not a question of national but of autonomous European law. A classification according to the lex fori would, by contrast, bear the danger of leading to different scopes of application of the lex causae depending on the place of jurisdiction. These problems are illustrated with reference to traffic accident cases in which a litigant seeks recovery of a supplementary claim, such as the pretrial costs of an expert opinion, an out-of-court settlement, or lump-sum costs.

The full table of contents, which also includes several book reviews, is available here. The issue also contains an index of all contributions to this year’s volume.

The latest issue of the Cambridge Law Journal (Volume 83, Issue 2) features one article on private international law.

Ardavan Arzandeh, Interpreting Multiple Dispute-Resolution Clauses in Cross-Border Contracts, p. 244-273

Cross-border contracts often contain a clause which purports to reflect the parties’ intention regarding how disputes arising from their agreement should be resolved. Some such contracts might feature a “jurisdiction clause”, thus signifying the parties’ wish to subject their disputes to litigation before the courts in a specific state. Others may include an “arbitration clause”, meaning that claims arising from the contract should be subjected to an arbitral hearing. More unusual are cases in which the parties have included a jurisdiction and an arbitration clause in the same cross-border contract. This article seeks to assess English law’s approach to determining the parties’ preferred mode of dispute resolution in these more difficult cases. As it seeks to demonstrate, the current practice in this area is not always easy to defend. The article advances an alternative basis for determining which of the two competing clauses should prevail.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. Since the beginning of 2024, RabelsZ has been an open access publication, with all articles freely available to readers online.

This issue deals with diverse topics such as sovereign immunities in front of Chinese courts, Puerto Rico’s newly-codified private international law, and the private enforcement of the EU Supply Chain Directive. Here are the titles and abstracts in full, which have been kindly provided to us by the editor of the journal:

Chris Thomale and Stephan Schmid, Das Private Enforcement der EU-Lieferkettenrichtlinie – Eine rechtsvergleichende und rechtsökonomische Beurteilung der finalen Fassung mit Anregungen für die mitgliedstaatlichen Umsetzungsgesetze (Private Enforcement in the EU Supply Chain Directive: A Critical Comparative Law and Economics Analysis of the Final Compromise with Suggestions for its Implementation by the Member States) (Open Access)

One component of the European Green Deal is the implementation of a harmonized supply chain law in the form of the Corporate Sustainability Due Diligence Directive (CS3D). The final compromise imposes a new type of due diligence obligation on companies to protect the climate, human rights and the environment in the supply chain. Its enforcement will rely inter alia on private law mechanisms. This article describes how private-law enforcement mechanisms so far have fallen short in ongoing human rights, environmental and climate litigation. It then assesses the new supply chain regulation’s effectiveness and efficiency, especially in comparison to alternative regulatory instruments. It also contains recommendations for the upcoming implementation process by the EU member states.

Jochen Hoffmann and Lisa-Marie Pischel, Die Kollision von CISG und nationalem Verbraucherschutzrecht (Conflicts Between the CISG and National Consumer Law) (Open Access)

Despite the exclusion which Art. 2 lit. a CISG sets out for a sale of goods for personal use, the UN Sales Law may in individual cases be applicable to cross-border sales contracts that are also subject to national consumer protection law. This is due to the fact that the wording of the exclusion may not align with the legal conception of a consumer in the national laws of the Contracting States, in particular the European concept of a consumer. The involved provisions are generally not compatible with each other, with the result that they cannot be applied to the same contract. In resolving such a conflict, it is therefore necessary to interpret Art. 2 lit. a CISG through the lens of the national conception of a consumer. For any remaining conflicts, it falls upon national law to decide which provisions prevail.

Knut Benjamin Pißler, Die Immunität ausländischer Staaten im Recht der Volksrepublik China – Das Gesetz vom 1. September 2023 als Instrument zur Gestaltung des Völkergewohnheitsrechts (Immunity of Foreign States Under the Law of the People’s Republic of China. The Law of 1 September 2023 as an Instrument for the Shaping of Customary International Law) (Open Access)

The Law of the PR of China on the Immunity of Foreign States (Immunity Law) has been adopted by the Standing Committee of the National People’s Congress and entered into force on 1 January 2024. The law is a legislative measure to establish a “foreign-related rule of law” that is directed both inwards and outwards. Inwardly, it means that the courts of the People’s Republic of China are now entitled to hear lawsuits brought against foreign states. Outwardly, the Immunity Law enables China to actively participate in the development of customary international law, as many rules regarding restrictive immunity have still not been conclusively clarified. Active participation of this nature is a declared goal of foreign-related rule of law as proclaimed under Xi Jinping, seeking namely to give Chinese law a higher status at the international level and to allow the Chinese government and Chinese courts to influence the shaping of international legal norms.

Leon Theimer, Die unionsrechtliche Zukunft des Schadensersatzes wegen Verletzung einer ausschließlichen Gerichtsstandsvereinbarung (The Future of Damages for Breach of an Exclusive Choice of Court Agreement in EU Law) (Open Access)

Damages for breach of an exclusive choice-of-court agreement have fascinated legal scholars for quite some time. Once a peculiarity of the common law, the remedy is now also recognised in the legal systems of Spain and Germany. Recently, the EU-law dimension of the topic has come to the fore. However, despite a recent decision by the CJEU, the issue of whether damages for breach of an exclusive choice of court agreement are compatible with the Recast Brussels I Regulation has not yet been conclusively resolved. The article examines this question with regard to hurdles arising from the CJEU’s case law on (quasi) anti-suit injunctions, hurdles arising from the law on recognition of a foreign judgment, and doctrinal hurdles. In carrying out this analysis, the principle of mutual trust serves as a key standard of assessment. Moreover, the fundamental rights dimension of the topic is examined for the first time. The article concludes that damages for breach of an exclusive choice of court agreement indeed have a future in the EU, but only where the derogated court has not already rendered a decision or declined its jurisdiction.

Jürgen Samtleben, Das Internationale Privatrecht im neuen Zivilgesetzbuch Puerto Ricos – Abkehr vom common law (Private International Law in Puerto Rico’s New Civil Code – Farewell to Common Law) (Open Access)

Puerto Rico enacted a new civil code in 2020 the introductory title to which regulates private international law. The code, which supersedes the earlier Civil Code of 1902/1930, was over twenty years in the making. The code it replaced was rooted in the country’s Spanish heritage but overlain by common law principles, as the island of Puerto Rico has been a territory of the United States since 1898. It was against this common law influence that the reform movement arose that led to the creation of the new Civil Code. Article 1 of the Code postulates Puerto Rico’s membership in the civil law family of nations, declaring civilian methods of finding and interpreting the law to be the exclusively binding approach. The same approach is taken to private international law, which was the subject of great controversy during the consultations in advance of the new code. Late in the consultations, a new chapter on „Conflicto de Leyes“ was drafted that takes up elements from various sources but never arrives at a unified synthesis and shows signs of lingering editorial uncertainty. It is a heterogenous body of rules that calls for jurisprudence to build a logically consistent system out of, even as Article 1 of the Civil Code forbids any resort to common law principles.

Jürgen Samtleben, Puerto Rico: Zivilgesetzbuch vom 1. Juni 2020 (Auszug in Übersetzung)(A German translation of the introductory title in the Código Civil de Puerto Rico of 1 June 2020, Ley 55 of 1 June 2020, in force since 28 November 2020) (Open Access)

The full table of contents, which also includes several book reviews, is available here.

Javier Carrascosa González (University of Murcia) and Esperanza Castellanos Ruiz (University Carlos III of Madrid) kindly accepted the invitation of the editors of the EAPIL blog to prepare a post as special editors of Vol. 16 No. 2 (2024) of Cuadernos de Derecho Transnacional, issued as a special edition dedicated to Studia Amicorum Alfonso-Luis Calvo Caravaca.

The multifaceted personality of Alfonso-Luis Calvo Caravaca has been honoured in Vol. 16 No. 2 (2024) of Cuadernos de Derecho Transnacional. The volume covers more than eighty works and more than 90 authors, as it can be seen in the table of contents.

Not only is the Curriculum Vitae of Alfonso-Luis Calvo extraordinarily extensive and profound but it also covers all areas, without exception, of private international law and international economic law. On the occasion of his 70th birthday, this volume pays tribute to his outstanding work.

Alfonso-Luis Calvo has devoted more than forty years of his life to private international law with astounding dedication and vocation. Professor Alfonso-Luis Calvo obtained his doctorate at the University of Bologna, Italy, in May 1978 with a brilliant doctoral thesis on the doctrine of “l’intérêt national“. After teaching at the Autonomous University of Madrid and the University of Murcia, he obtained the position of Full Professor of Private International Law at the Carlos III University of Madrid, which he currently holds. Alfonso-Luis Calvo is a first-rate teacher, an astonishing and meticulous researcher, an excellent communicator and a magnificent and inspiring mentor. He is also a lawyer and has acted as an arbitrator in international disputes.

The volume brings together contributions from friends, colleagues, peers, followers and protégées. Readers interested in national as well as in European private international law will certainly find everything they are looking for in this volume of Cuadernos de Derecho Transnacional. The volume is an impressionist puzzle which pays tribute to Professor Calvo Caravaca and offers a collection of carefully selected papers inspired on the matters and topics Professor Alfonso-Luis Calvo has dealt with during his professional life so far. From international family law to international business law through international civil procedure, almost every topic of private international law has been examined in this volume.

The world of private international law has been the oyster of Professor Calvo Caravaca. He has had the talent and the opportunity, he has worked superlatively hard, and, above all, Professor Calvo Caravaca is an excellent person, generous, extremely kind and with a fine sense of humour. Thus, a great and very well deserved welcome should be given to this new volume of Cuadernos de Derecho Transnacional.

Strength and honour are the clothing of Professor Alfonso-Luis Calvo Caravaca and the volume of Cuadernos de Derecho Transnacional is the clear evidence that what we do in life echoes in eternity.

The third issue of 2024 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out.

Along with recent case law and materials, it features an article, a collection of debates contributions, and a comment.

Article:

Cristina Campiglio, Linguaggio e tecniche redazionali nel diritto internazionale privato italiano [Language and Drafting Techniques in Italian Private International Law]

Like other legal lexicons, the international-private lexicon is a specialized lexicon, which can be defined as sub-sectoral, specifically relating to private situations with transnational implications. However, it is much less technical than others, since the conflict rules do not aim at fully regulating the matter under consideration but limit themselves to directing towards the legal system from which the regulation of a specific category of legal situations can be deduced. This simplicity in form, however, hides complexity in practice: the very absence of a monoreferential technical vocabulary determines application difficulties. In the law 31 May 1995 No 218 (Reform of the Italian system of private international law) itself, semantic and expression ambiguities are found, as well as inconsistencies of various types: between the rubric and the provision of the law, and even between rules. This contribution, after reporting the semantic, syntactic and pragmatic aspects of these ambiguities/inconsistencies, focuses in the last part on the legislative technique of referral, which in law No 218 of 1995 is used to refer not to a different Italian regulatory text, but to sources of other systems: foreign rules (of private international law), international and European sources.

Debates: Teaching and Research in International Law Today: Challenges and Methods

Cristina Campiglio, L’insegnamento del diritto internazionale privato [Teaching Private International Law]

In Italy, private international law is mostly subject of free-choice teaching. However, some degree courses offer a module dedicated to our subject within the teaching of international law. Depending on the degree course and the year of teaching, the teaching approach varies: the traditional, dogmatic one is now often accompanied by a purely practical approach, focused on the European discipline. As with other subjects, innovative teaching strategies are also being tested for private international law subjects, which involve the active participation of students. Finally, as regards the contents, we cannot ignore the challenges of globalization and the digitalisation of daily life and legal relationships: both in university courses (and manuals thereof) and in the courses held at the Hague Academy.

Giuseppe Nesi, Challenges and Methods in Teaching, Researching, and Practicing International Law: A Few Reflections

This paper provides personal insights into a career characterized by experiences as a researcher, a legal adviser and a teacher. It evidences how while these different functions can enter into conflict with each other, most often synergies prevail. This autobiographical report can be interpreted as an encouragement to teachers to gather practical experience beyond the “ivory tower”. The experience of working as a legal adviser is presented as a conduit to overcome cynicism, acquire greater credibility and better convey enthusiasm for international law to students. At the same time, practice can profit from academic experience by providing a greater depth of knowledge as well as all the structural thinking this activity demands.

Attila M. Tanzi, Teaching and Learning International Law in Troublesome Times

The article addresses the changes occurred over the last fifty years in the research and teaching of international law, which have sensibly increased their complexity and difficulty. In particular, the following multiple changes are illustrated and emphasized: the increased number of bodies of material international law, parallelled by the multiplication of international jurisdictional fora; the accelerated evolution of the political configurations of the international society since the Cold War, up to the contemporary demise of multilateralism and the upsurge of nationalism; the quest for reform and change of the international regulatory setting, so as to meet new social, climatic and technological challenges; increased diversity of methodological approaches to international legal research, in terms which find no comparator in the differences between legal methodologies existing in the last quarter of the last century; and, finally, the ensuing cleavage between the international law scholarship and the international legal profession.

Giuditta Cordero-Moss, The Private/Public International Law Divide: Is It Still Relevant?

The traditional divide between public and private international law is increasingly challenged. This article pleads for maintaining the division between the two disciplines, but in the awareness that the borders are relative, and that a mutual understanding is necessary.

Massimo V. Benedettelli, Teaching ‘‘International Law’’ to ‘‘International Lawyers’’: The Epistemological Challenge in the Era of Global Law and Legal Pluralism

At the dawn of the III Millennium, the areas regulated by international law have expanded as globalisation has expanded the interconnections among nations, with the consequence that international law is being used by an ever-wider community of legal practitioners. “International lawyers”, however, sometimes blur international law stricto sensu (i.e., public international law as the legal system of the international community) with other sources which may also be relevant for the regulation of crossborder matters (private international law, “a-national” or “transnational” laws, whether or not expression of private customs or non-State autonomous legal systems), with the consequence of being unable to establish correct relations between such different dimensions of normativity. This happens at times when the authority and effectiveness of international law is challenged both politically, by the opposite but converging narratives of “antiglobalisation” and “sovereigntism”/populism, and theoretically, by “global law without a State” doctrines, according to which a plurality of self-standing and possibly colliding regimes exists in a “post-Westphalian” international community, where international law has become more and more “fragmented” and States are less and less powerful in exercising their regulatory function. Against this backdrop, the importance of international law must be reasserted. If it is a fact that legal pluralism is a feature of our world, lawmaking is not an exclusive prerogative of States, and the concurrence and possible conflict of sources may pose problems of coordination among overlapping regimes jeopardising the effectiveness of their regulations, it is also a fact that the world remains divided into distinct national communities over which State exercise regulatory powers, keeping the monopoly in the use of coercion when needed to enforce the relevant regimes, as it is a fact that the worldwide recognition of party autonomy is accompanied by different limits and conditions that sovereign States may fix in the pursuit of different policies for the well-being of their nations. Thus, the “scientific revolution” somewhat implied in the “global law” construct does not seem justified. Legal pluralism certainly causes problems, but such problems can be managed through traditional instruments, under the condition that the syntax and grammar of international law (and private international law) are not subverted. Indeed, “international lawyers” should be well versed in both disciplines, and their education should be oriented by four basic considerations. First, in the contemporary world, overlapping regimes may result from the interplay between different legal systems, and legal systems may contain different rules regarding their mutual coordination, which may give rise to contradictory regulations as well as forum/law shopping opportunities. Second, the framework within which such interplay takes place is ultimately governed by international law to the extent that international law protects State sovereignty, limits its exercise, offers States tools by which they can cooperate in the implementation of their laws and may react to forms of private ordering inconsistent with their policies. Third, private international law may be used beyond its original remit as a reservoir for sophisticated techniques, through which issues of coordination among legal systems can be addressed also in the regulation of matters other than private cross-border relationships. Fourth, the emergence of a “cosmopolitan” uniform law elaborated by private actors and displacing State and international law altogether is a chimera since, on the one hand, harmonisation is limited or non-existent in important areas of legal practice (a gap which cannot be filled by lawmaking activities of entities lacking legitimacy, particularly when third party or public interests are at stake), on the other hand, private actors still rely on State laws and institutions to enforce their deals, leading to “jurisdictional touchdowns” in the context of which States have are able to enforce their mandatory laws and react to opportunistic normative arbitrages.

Verónica Ruiz Abou-Nigm, Private International Law’s Inter-Systemic Thinking in Global Legal Education

Private international law is key to cultivate legal professionals equipped for global legal practice. The field is a platform for honing advanced technical and critical legal skills. It requires inter-systemic thinking, pluralist approaches, and intercultural dialogues. The Hague Academy has nurtured these capabilities, fostering the development of the discipline globally for the last century.

Comment:

Anna Facchinetti, Immunità dalle misure di esecuzione, Fondo di ristoro per le vittime del Terzo Reich e diritto di accesso alla giustizia davanti alla Corte Costituzionale [Immunity from Enforcement Measures, Compensation Fund for Victims of the Third Reich, and Right of Access to Justice before the Italian Constitutional Court]

The article comments on Judgment No. 159/2023 of the Italian Constitutional Court from three points of view. First, it considers the Constitutional Court’s distinction between immunity from jurisdiction and immunity from enforcement measures, which finds confirmation in international law. Second, it addresses the alternative remedies argument, noting that in international and national jurisprudence the argument is not applied to immunity from enforcement measures, but only to immunity from jurisdiction. Finally, the article focuses on the fate of Greek claimants who have obtained an exequatur in Italy, who seem to suffer an unfavourable treatment compared to Italian victims of the Third Reich due to the lack of access to the Compensation Fund. The article concludes by pointing out that, among the three aspects discussed, the open and most important question remains that of immunity from jurisdiction, both in the Italian-German dispute and in the light of possible developments in customary international law.

The second issue of 2024 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out.

Along with recent case law and materials, it features four contributions.

Sara Tonolo, Il contributo degli studiosi italiani ai corsi de L’Aja di diritto internazionale privato (1973-2023) [The Contribution of Italian Scholars to The Hague Academy Courses on Private International Law (1973-2023)]

The Private International Law Courses taught by Italian scholars within the Hague Academy have undergone an interesting evolution that deserves consideration on the occasion of the Academy’s Centennial Anniversary, especially regarding the period between 1973 and 2023. Alongside features commons to the courses of the initial period, such as the approach to the study of private international law, outlined by Pasquale Stanislao Mancini, and the comparative method, there are however distinctive and noteworthy features in the courses offered between 1973 and 2023. Among the topics analysed in the Italian Courses during the considered period, the recognition of the substantive effectiveness of judgments through private international law rules is particularly noteworthy both for its influence on the national codification of private international law, and for its relevance in addressing coordination issues arising from the communitarization of private international law. This topic is particularly relevant concerning the interrelation of private international law with other areas of international law, such as international protection of human rights. Given the circular relationship between international protection of human rights and private international law, coordination needs to be established within a debate that is becoming increasingly complex among private international law scholars, thanks also to the role of Italian scholars within the Hague Academy.

Giacomo Biagioni, Dichiarazione ONU sui diritti dei contadini e diritto internazionale privato dell’Unione europea [The UN Declaration on the Rights of Peasants and EU Private International Law]

On 17 December 2018 the United Nations General Assembly adopted by a majority the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas, stressing the importance of agricultural production and recognizing individual and collective rights granted to people living and working in rural areas. The paper aims at assessing the possible impact of the principles enshrined in the Declaration on the system of private international law sources, moving from the general assumption that UN declaration of principles may contribute to the interpretation of domestic law. As peasants and other workers in rural areas can qualify, under the 2018 Declaration, as weaker parties, the paper attempts to clarify to what extent solutions enacted in EU private international law for other categories of weaker parties (such as employees or consumers) with regard to conflict-of-laws and to jurisdictional competence in contractual matters may be extendable to peasants. However, the general approach of EU instruments concerning judicial cooperation in civil matters does not seem to be especially open to receiving the instances of protection of the rights of categories of weaker parties, which are not expressly mentioned in those instruments. Accordingly, as the law now stands, only recourse to general clauses (fraude à la loi, public policy, overriding mandatory rules) may lead to give some consideration to the special position of peasants and other workers in rural areas and to adapt private international law rules to the protection of their fundamental rights.

Anna Liebman, Il rinvio ai criteri della convenzione di Bruxelles del 1968 nel diritto internazionale privato italiano: orientamenti consolidati e questioni aperte [The Reference to the Jurisdiction Criteria of the 1968 Brussels Convention in Italian Private International Law: Established Orientations and Open Questions]

The article examines a few issues arising in connection with the reference made by Art 3(2) of Law 31 May 1995 No 218 to the criteria laid down in the 1968 Brussels Convention. It is first observed how, in recent times and especially in the light of two recent judgments of the Italian Supreme Court, the traditional orientation has completely changed, and that scholars and jurisprudence agree in considering the reference made by this provision as a reference to the most recent EU regulations and not to the 1968 Convention. Second, the need for a uniform interpretation of the criteria nationalised by Art 3(2) is emphasised, as it is considered the only solution that allows not to undermine the coherence of the system. Lastly, the possibility for Italian judges to submit a preliminary ruling to the Court of Justice concerning the interpretation of the European discipline made applicable through Art 3 of Law No 218/1995 is considered, a possibility that seems to be confirmed by European case law.

Enrico Pedrotti, Problemi di giurisdizione in tema di azione contrattuale di garanzia proposta in via autonoma [Questions of Jurisdiction in Contractual Warranty Actions Brought in Autonomous Proceedings]

Relying on the Italian Court of Cassation’s judgment No 613 of 8 January 2024, according to which Italian courts do not have jurisdiction pursuant to Art 8(2) of Regulation (EU) No 1215/2012 when an action on guarantee is brought in autonomous proceedings, this article discusses the link between such provision and national procedural rules on guarantees, highlighting how the exercise of judicial discretion in the authorization of a third-party claim in accordance with Art 269 of the Italian Code of Civil Procedure bears significant consequences on jurisdiction. Furthermore, the Author discusses the applicability of Art 7(1)(b) of Regulation No 1215/2012 on the basis of Art 3 of Law 31 May 1995 No 218 reforming the Italian system of private international law, in case the place of performance is located outside the EU, concluding in the negative.

The first issue of 2024 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out.

Along with recent case law and materials, it features six contributions.

Francesco Salerno, Il contributo degli studiosi italiani ai corsi de L’Aja di diritto internazionale privato (1923-1972) [The Contribution of Italian Scholars to The Hague Academy Courses on Private International Law (1923-1972)]

Even though authoritative absences may be identified, significant portions of the Italian School of Private international law were represented by Italian courses on this subject published from 1922 to 1972 in the Academy of International Law’s Recueil. However, these Italian courses predominantly focused on questions of applicable law, dedicating limited attention to topics of international civil procedure, despite the abundance and importance of Italian studies on the subject. The main purpose of these courses was to disseminate the experience of the Italian legal model in Private international law, using it as a parameter for comparing both other national models and international uniform rules. This further supported the Italian teachings’ trend towards a systemic approach, which was not always dogmatic in nature; instead, this method characterized Ago’s lecture, the most recognized Italian course abroad. The systemic approach of the Italian school of Private international law strongly endorsed the “maieutic” scientific attitude of its authors concerning numerous essential and general national rules. Consequently, Italian scholarship provided a broad and autonomous framework for different authors, offering various interpretative and systemic solutions, even though their unitary intent was that to ensure legal predictability. Despite this, Italian courses held little relevance in The Hague forum, as main attention was reserved to the Italian dogmatic approach, thus undermining dialogue with foreign authors.

Alberto Malatesta, Arbitrato e Regolamento Bruxelles I-bis: una riforma necessaria [Arbitration and the Brussels Ia Regulation: A Reform Is Needed]

After reviewing the existing main conflicts between State and arbitral jurisdictions, with special reference to the conflicts between judgments and awards, this essay explains the 2022 CJEU judgment in London Steam-Ship and highlights its impact on the scope of the so-called arbitration exclusion within the EU Brussels I-a Regulation. Given the possible rising of further interferences upon the arbitral regime, with a view to the next imminent recast the Author proposes to include the exequatur judgments of awards within the scope of the Regulation.

Chiara E. Tuo, Decisioni arbitrali e giudizi interni [Arbitral Awards and National Judicial Proceedings]

It has recently been written that the role of national courts in the context of the conduct of arbitration is «both supporting and supervising on the one hand and reviewing on the other». Therefore, it is incorrect, and certainly does not reflect the reality of the facts, to argue that, as a result of the arbitration option, the parties intended to exclude any and all use of national courts justice. The purpose of this paper is therefore to ascertain the attitudes, in practice, of the relationships between arbitral decisions and domestic judgments, and whether these relationships can indeed be traced back to the two, aforementioned, essential roles/models of support and supervision, on the one hand, and control, on the other, of domestic courts with respect to arbitration, or whether practice brings out additional ones. Therefore, on the basis of the legal context in the field of arbitration and with respect to the possible occasions of relationship or contact between arbitral decisions and domestic judgments, it has been chosen (a) to consider (some of) the possible interactions likely to occur in the three different stages of the arbitration proceedings, and thus (i) in the first, when it is a question of ascertaining the competence of the arbitrators, (ii) in the course of the proceedings themselves, when recourse to provisional or interim measures is necessary, and, finally, (iii) after the award has been issued, when a question arises as to its validity or enforceability from the specific point of view of its compatibility with rules of a mandatory nature, and (b) to highlight, for each of these situations, the contents, boundaries and effects of the relevant arbitral decisions in domestic judicial proceedings, and thus before the national courts to whose consideration such decisions are to be referred.

Antonio Leandro, State Immunity from Execution of International Arbitral Awards: Consent to Arbitration vs Consent to Execution Along the Double-Step Enforcement

If a State consents to international commercial or investment arbitration, then it accepts the arbitration-supportive role of domestic courts. This role differs depending on the rules governing the arbitration. Irrespective of the arbitration regime, consent to arbitration does not per se extend to the execution of awards performed through judicial measures of constraint against the debtor State’s assets. After clarifying why consent to arbitration is so limited and what the “enforcement” of an international award consists of, the paper critically explores the ways to infer consent to execution beyond mere statements or declarations by the debtor State.

Elena Terrizzi, Diritto internazionale privato e protezione dei minori: riflessioni a margine della riforma della volontaria giurisdizione [Private International Law and Child Protection: Reflections on the Italian Reform of Voluntary Jurisdiction]

Child protection provisions generally involve a series of measures directed at granting the person or the property of children. Starting from the analysis of the current legal framework in this field, the following article especially focuses on the existing provisions of international private law, which are mainly aimed at identifying the competent authority and the law applicable to such measures of protection, whenever “international features” may arise. In this context, a prominent role as a connecting factor is recognized towards the criterion of “habitual residence”, while the authorities’ decisions shall always be inspired by the “best interests” of the child, in every case in which the latter is involved. However, absent any specific definitions of such concepts of “habitual residence” and “best interests”, the analysis of national and international case-law becomes relevant for the assessment of their practical content and application. In light of the above, the recent Italian reform on non-contentious jurisdiction – introduced by legislative decree No 149/2022 – also assumes a significant importance, as it appoints a “concurrent” competence to the notary public in issuing measures of child’s property protection – without prejudice to the ordinary competence of the Italian judicial authority. Therefore, the above-mentioned extension of competence, introduced by the recent Italian reform, makes it necessary to consider if and how the principles generally provided at the international level shall also apply towards the new role exercised by the notary public in the field of child protection.

Pietro Villaschi, The Regulation of Political Targeting in the Italian and European Union Legal Framework

This article deals with the regulation of political targeting in the Italian and European Union legal framework. After providing an overview of relevant constitutional principles, with reference to freedom of information and the right to be informed, the first part of the study focuses on the characteristics of political targeting and on its consequences for the rights of users-citizens-voters, the role played by Internet platforms and the democratic system. After a long time in which the framework was characterized by a self-regulatory approach, mitigated only by co-regulatory initiatives, in 2022 the European Union approved the Digital Services Act (DSA), establishing a new set of rules, which extend to online intermediary services and aim to ensure a safe, predictable and trusted digital environment as well as to improve the functioning of the internal market. The purpose of the second part of the analysis is therefore to assess the risks and opportunities of these new rules, also reflecting on the proposal for a regulation on transparency and targeting of political advertising (RPA). In particular, the aim is to verify whether these rules could be a response to political targeting, curbing the power of the new gatekeepers of cyberspace and guaranteeing the rights of users.

The first issue of the Revue critique de droit international privé of 2024 has been released. It contains two articles, several briefing notes as well as numerous case notes on private international law.

In the first article, Nicolas Nord (University of Strasbourg & ICCS) examines the role of French civil registrars in the international context, focusing on the (non)-application of foreign law (L’officier de l’état civil et le droit étranger. Analyse critique et prospective d’une défaillance française). This paper will be soon available in English on the Dalloz website.

In international situations, French civil registrars may frequently be confronted with the application of foreign law. However, by virtue of the General Instruction on Civil Status and other administrative texts, they are under no obligation to establish the content of foreign law and can be satisfied with the sole elements reported by requesting private individuals. This solution certainly has the advantage of simplifying the task of civil registrars, who are not legal professionals. However, it leads to inconsistencies within the French legal system. The article therefore recommends reversing the principle and creating a duty for the French authority in this area. However, the burden should be lightened by facilitating access to the content of foreign law. Concrete proposals are put forward to this end, both internally and through international cooperation.

In the second article, David Sindres (University of Angers) analyses – in the light of French and European case law – the application of a jurisdiction clause to third parties in the context of international maritime transport (Le « destinataire réel » des marchandises peut-il se voir opposer la clause attributive de compétence convenue entre le chargeur et le transporteur maritime ?). This paper, too, will be available in English on Dalloz.

In two notable decisions, the French Cour de cassation has ruled that the case law of the Court of Justice Tilly Russ / Coreck maritime is strictly confined to the third-party bearer of a bill of lading or sea waybill, and cannot be applied to the “actual addressee” of the goods. Thus, unlike the third-party bearer, the “actual addressee” cannot be submitted to the clause agreed between the shipper and the maritime carrier and inserted in a bill of lading or a sea waybill, even if he has succeeded to the rights and obligations of the shipper under the applicable national law, or has given his consent to the clause under the conditions laid down in article 25 of the Brussels I bis regulation. The distinction thus made by the Cour de cassation with regard to the enforceability against third parties of jurisdiction clauses agreed between shippers and carriers is extremely difficult to justify. Indeed, it is in no way required by the Tilly Russ and Coreck maritime rulings and is even difficult to reconcile with them. Furthermore, insofar as it may lead to the non-application of a jurisdiction clause to an actual addressee who has nevertheless consented to it under the conditions of article 25 of the Brussels I bis regulation, it fails to meet the requirements of this text.

The full table of contents is available here.

There are big news for RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht). Firstly, they have introduced a new layout, the merits of which are a matter of personal taste. Secondly, they have a new co-editor, Anne Röthel, who has recently joined the Max Planck Institute in Hamburg as a director. However, the most significant news is that the journal has shifted to an open science model. This means that all articles are now accessible to everyone, at any time, for free! This is great news for readers interested in conflicts and comparative law, as they can now access top-quality science without any cost.

To kick off, they have some interesting articles. The first one, written in English by Symeon Symeonides, discusses the chapter on tort conflicts in the upcoming Third Restatement on the Conflict of Laws. There is further a French contribution, authored by Yves-Junion Manzanza Lumingu and Jules Masuku Ayikaba, about the recognition of foreign companies in the 17 OHADA Member States in Western Africa. Finally, Eckart Bueren and Jennifer Crowd provide an economic and comparative analysis (in German) of multiple voting rights in corporations, which have recently become popular again. There is also an obituary for the German scholar Wernhard Möschel, known for his contributions to competition law and policy.

Here are the titles and abstracts in full:

Wernhard Möschel † 9.2.2024 (Open Access)

Symeon C. Symeonides, The Torts Chapter of the Third Conflicts Restatement: An Introduction (Open Access)

This article presents the torts chapter of the Restatement (Third) of Conflict of Laws, as approved by the American Law Institute in May 2023. That chapter steers a middle ground between the broad, inflexible rules of the First Restatement of 1934 and the exceedingly equivocal directives of the Second Restatement of 1971. It accurately captures the judicial decisional patterns emerging in the more than forty US jurisdictions that have abandoned the old lex loci delicti rule and joined the choice-of-law revolution of the 1960s. It recasts them into new, narrow, and “smart” rules that incorporate the revolution’s methodological advances but without reproducing its excesses. The most noteworthy features of these rules are: (1) the distinction between conduct-regulating and loss-allocating tort rules; (2) the application of the law of the parties’ common domicile in loss-allocation conflicts; (3) a rule giving victims of cross-border torts the option of requesting the application of the law of the state of injury, if the occurrence of the injury there was objectively foreseeable; and (4) the general notion that the choice of the applicable law should depend not only on a state’s territorial contacts, but also on the content of its law.

Yves-Junior Manzanza Lumingu and Jules Masuku Ayikaba, Accessibilité des sociétés commerciales de droit étranger à l’espace OHADA – Sur la reconnaissance de leur personnalité juridique selon la jurisprudence de la CCJA (The Access of Foreign Commercial Companies to the OHADA Area – Recognition of Legal Personality under CCJA Case Law.) (Open Access)

The Organization for the Harmonization of Business Law in Africa (OHADA) is striving to make its geographical area more attractive, particularly to foreign investors and foreign commercial companies. This should be achieved by adopting, at a supranational level, uniform and modern legal standards which can be readily embraced by the business community and by ensuring legal certainty through the establishment of the Common Court of Justice and Arbitration (CCJA). To date, however, OHADA has not yet adopted any provision recognizing the legal personality of companies operating throughout its region. However, the recognition of such entities is essential with regard to their participation – particularly as shareholders or partners – in a commercial company incorporated under OHADA law or in relation to the establishment of branches or subsidiaries within OHADA member states. The CCJA has, however, issued a number of rulings on this issue. This study examines these decisions and recommends the adoption of an OHADA-wide procedure for recognizing the legal personality of foreign commercial companies.

Eckart Bueren and Jennifer Crowder, Mehrstimmrechte im Spiegel von Rechtsvergleichung und Ökonomie (Multiple Voting Rights Through the Lenses of Comparative Law and Economics) (Open Access)

Multiple voting rights have been gaining ground internationally with several jurisdictions authorizing them in little more than a decade, including for listed companies. Germany recently followed suit with its “Zukunftsfinanzierungsgesetz”, and the EU Commission intends to do the same as part of the Listing Act. This article explains these developments with a view to contemporary conditions and law and economics conceptions. It then contrasts them with developments in the United States, Asia, and Europe and sheds light on their relationship to other trends in corporate law. Particular attention is paid to findings that may help to properly calibrate mechanisms against abuse, e. g. a possible segment specificity, limitations on resolution items, variations in terms of sunsets or time-phased voting (loyalty shares). The article concludes with considerations on how multiple voting rights and other key legislative objectives of recent years, namely stewardship, sustainability, and corporate purpose, can be coherently developed.

The table of contents is available here.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided by the editor of the journal.

H.-P. Mansel, K. Thorn and R. Wagner, European Conflict of Law 2023: Time of the Trilogue

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2023 until December 2023. It presents newly adopted legal instruments and summarizes current projects that are making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

H. Kronke, The Fading of the Rule of Law and its Impact on Choice of Court Agreements and Arbitration Agreements

Against the background of declining standards of the rule of law in an increasing number of jurisdictions, the article identifies and discusses problematic choices of a forum or of an arbitral seat as well as solutions developed by courts and legal doctrine in private international law, civil procedure and arbitration law. Businesses and their legal advisers are encouraged to anticipate risks and consider appropriate measures when drafting contracts.

L. van Vliet and J. van der Weide, The Crimean treasures

In 2013, a collection of highly important archaeological objects, the “Crimean treasures” had been loaned by four Crimean museums to the LVR-Landesmuseum in Bonn, Germany, and the Allard Pierson Museum in Amsterdam for exhibition purposes. During the exhibition at the Allard Pierson Museum, the Crimean Peninsula was illegally annexed by the Russian Federation. The question then arose to whom the Crimean treasures should be returned by the Allard Pierson Museum: to the Crimean museums (de facto in possession of the Russian Federation) or to the State of Ukraine? The legal proceedings concentrated on the interpretation of the notion of “illicit export” in the UNESCO Convention 1970 and on the application of the concept of overriding mandatory rules in the area of property law. As to the UNESCO Convention 1970, the question was whether the concept of illicit export includes the case where protected cultural property is lawfully exported on the basis of a temporary export licence and is not returned to the country that issued the licence after the expiry of the term in the licence. The drafters of the UNESCO Convention did not consider this case. These proceedings are most probably the first to raise and answer this question. The 2015 Operational Guidelines to the UNESCO Convention contain a definition of illegal export that explicitly includes the case of non-return after temporary export. In our opinion, this allows for a broad interpretation of the UNESCO Convention.
The Dutch courts had international jurisdiction because the claims of the Crimean museums were based on the loan agreements and the real right of operational management falling within the scope of the Brussels I Regulation. For the claims of the State of Ukraine, a clear basis for international jurisdiction does not exist when it acts in its state function. Claims iure imperii do not fall under Brussels I or Brussels I bis.
Having ruled that there was no illicit export, the Court of Appeal Amsterdam had to decide whether the contractual and property rights of the Crimean museums to restitution might be set aside by Ukrainian laws and regulations, including Order no. 292 requiring that the Crimean treasures be temporarily deposited with the National Museum of History of Ukraine in Kiev. The Court held that this Order applied at least as an overriding mandatory rule within the meaning of Article 10:7 of the Dutch Civil Code. The Dutch Supreme Court upheld the Court of Appeal’s judgment, agreeing with the Court of Appeal’s application of the concept of overriding mandatory rules. However, the Supreme Court could not give its view on the interpretation of the UNESCO Convention 1970.

W. Hau, Litigation capacity of non-resident and/or foreign parties in German civil proceedings: current law and reform

This article deals with the litigation capacity (Prozessfähigkeit) of non-resident and/or foreign parties in German civil proceedings, both de lege lata and de lege ferenda. This question can arise for minors and for adults who are under curatorship or guardianship. Particular attention is paid here to the determination of the law applicable to the litigation capacity in such cases, but also to the relevance of domestic and foreign measures directed to the protection of the party.

S. Schwemmer, Jurisdiction for cum-ex liability claims against Non-EU companies

In the context of an action for damages brought by investors in a cum-ex fund against the Australian bank that acted as leverage provider, the German Federal Supreme Court (BGH) had to deal with questions regarding the application of the Brussels Ibis Regulation to non-EU companies. The court not only arrived at a convincing definition of the concept of principal place of business (Article 63(1) lit. c) Brussels Ibis Regulation), but also ruled on the burden of proof with regard to the circumstances giving rise to jurisdiction. However, one core question of the case remains open: How should the conduct of third parties, especially senior managers, be taken into account when determining the place of action in the sense of Article 7(2) Brussels Ibis Regulation?

M. Fehrenbach, In the Thicket of Concepts of Establishments: The Principal Place of Business within the Meaning of Article 3(1) III EIR 2017

The Federal Court of Justice (Bundesgerichtshof) referred to the CJEU, among other things, the question whether the concept of principal place of business (Hauptniederlassung) within the meaning of Article 3(1) III EIR 2017 presupposes the use of human means and assets. This would be the case if the principal place of business were to be understood as an elevated establishment (Niederlassung) within the meaning of Article 2(10) EIR 2017. This article shows that the principal place of business within the meaning of Article 3(1) III EIR 2017 is conceived differently from an establishment within the meaning of Article 2(10) EIR 2017. Neither follows a requirement of the use of human means and assets from the desirable coherent interpretation with Article 63 Brussels Ibis Regulation.

W. Hau, Jurisdiction by virtue of perpetuatio fori under the Insolvency Regulation

In this decision, the German Federal Supreme Court weighs in on the doctrine of perpetuatio fori in the context of international insolvency law. The court confirms that, once the insolvency filing is submitted to a court in the Member State that has international jurisdiction under Article 3(1) EIR 2017, the courts of that Member State remain competent to administer the insolvency proceedings even if the debtor shifts its centre of main interest (COMI) to a different Member State at a later point in time. In line with the EJC’s recent decision in the Galapagos case, the ruling continues the approach to perpetuatio fori established under the previous version of the EU Insolvency Regulation. In addition, the court clarifies that international jurisdiction established by way of perpetuatio fori remains unaffected if the initial insolvency filing has been submitted to a court lacking local jurisdiction under the respective national law.

D. Martiny, Arbitral agreements on the termination of sole distribution agreements in Belgium

The Belgian Supreme Court has ruled that disputes on the termination of sole distribution agreements can be submitted to arbitration (April 7, 2023, C.21.0325.N). The Court followed the reasoning of the Unamar judgment of the European Court of Justice of 2013 and applied it to the relevant provisions
of Article X.35–40 Belgian Code of Economic Law. According to the judgment, these provisions mainly protect “private” interests. Since they are not essential for safeguarding Belgian fundamental public interests, they are therefore not to be considered as overriding mandatory provisions in the sense of Article 9(1) Rome I Regulation. Hence, the question whether a dispute can be subject to arbitration does not depend on whether the arbitrator will apply Belgian law or not. It is also not necessary that foreign law gives the distributor the same level of protection as Belgian law. This means that disputes on the termination of exclusive distribution agreements with Belgian distributors are now arbitrable and that choice of law clauses will be respected.

Th. Granier, The Strabag and Slot judgments from the Paris Court of Appeal: expected but far-reaching decisions

In two decisions issued on 19.4.2022, the Paris Court of Appeal held that it was sufficient for an investment protection agreement not to expressly exclude the possible application of laws of the European Union to establish the incompatibility of dispute settlement clauses in investment protection treaties with laws of the European Union. That incompatibility therefore applies to all clauses in those treaties that do not expressly exclude the application of the laws of the European Union by the arbitral tribunal. The Court of Appeal followed decisions of the ECJ in Achmea, Komstroy and PL Holding, by which it is bound. These decisions highlight the increasing difficulties in the recognition and enforcement of arbitral awards rendered pursuant to investment treaties in the European Union.

E. Schick and S. Noyer, Acquisition of property according to the law applicable to contracts? A critical analysis of the existing French private international property law in the light of the 2022 draft law

While the private international law of contracts is unified in the Rome I Regulation, the conflict of laws rules for property are still defined individually by member states of the European Union. Autonomous French private international law remains largely uncodified and the product of the jurisprudence of the Cour de cassation, with significant regulatory gaps. The draft legislation for private international law issued by the responsible committee on 31.3.2022 aims to codify large parts of this established jurisprudence and therefore also sheds new light on the conflict rules applicable in France de lege lata. In the field of private international property law, the proposed Article 97–101 feature conflicts rules which do not only appear to the German jurist as exotic, but even raise questions as to the scope of application of the Rome I Regulation. Focusing on the contractual transfer of movable property – an area where contract law and property law are intricately linked – this article offers an account of the applicable French conflicts of laws rules by examining the relevant jurisprudence and scholarly doctrine. The codification proposal and the problems it creates will also be critically analysed.

N. Dewitte and L.Theimer, A century of the Hague Academy, 31 July to 18 August 2023, The Hague.

The latest issue of the Journal of Private International Law (Volume 19, Issue 3) is now available. This issue features eight articles and one book review.

Chukwuma Samuel Adesina Okoli and Abubakri Yekini, Implied jurisdiction agreements in international commercial contracts: a global comparative perspective, 321-361

This article examines the principles of implied jurisdiction agreements and their validity on a global scale. While the existing scholarly literature primarily focuses on express jurisdiction agreements, this study addresses the evident lack of scholarly research works on implied jurisdiction agreements. As such, it contributes to an understanding of implied jurisdiction agreements, providing valuable insights into their practical implications for international commercial contracts. The paper’s central question is whether implied jurisdiction agreements are globally valid and should be enforced. To answer this question, the article explores primary and secondary sources from various jurisdictions around the world, including common law, civil law, and mixed legal systems, together with insights from experts in commercial conflict of laws. The paper argues for a cautious approach to the validity of implied jurisdiction agreements, highlighting their potential complexities and uncertainties. It contends that such agreements may lead to needless jurisdictional controversies and distract from the emerging global consensus on international jurisdiction grounds. Given these considerations, the paper concludes that promoting clear and explicit jurisdiction agreements, as supported by the extant international legal frameworks, such as the Hague Conventions of 2005 and 2019, the EU Brussels Ia Regulation, and the Lugano Convention, would provide a more predictable basis for resolving cross-border disputes.

Veena Srirangam, The governing law of contribution claims: looking beyond Roberts v SSAFA, 362-382

The governing law of claims for contribution, where the applicable law of the underlying claim is a foreign law, has long posed a knotty problem in English private international law. The Supreme Court’s decision in Roberts v Soldiers, Sailors, Airmen and Families Association considered this issue in the context of the common law choice of law rules. This article considers the decision in Roberts and claims for contribution falling within the scope of the Rome II Regulation, the Rome I Regulation as well as the Hague Trusts Convention. It is argued here that claims for contribution arising out of the same liability should be considered as “parasitic” on the underlying claim and should prima facie be governed by the applicable law of the underlying claim.

Weitao Wong, A principled conflict of laws characterisation of fraud in letters of credit, 383-419

This article examines how the issue of fraud in letters of credit (which constitutes a critical exception to the autonomy principle) should be characterised in a conflict of laws analysis; and consequently, which law should apply to determine if fraud has been established. It argues that the fraud issue has thus far been incorrectly subsumed within the letter of credit contract, rather than being correctly characterised as a separate and independent issue. On the basis of fundamental conflict of laws principles and policies, this article advocates that the fraud issue should be characterised separately as a tortious/delictual issue. It then discusses how some of the difficulties of such a conflicts characterisation may be adequately addressed.

Zlatan Meškić, Anita Duraković, Jasmina Alihodžić, Shafiqul Hassan and Šejla Handalić, Recognition of talaq in European states – in search of a uniform approach, 420-449

The paper aims to answer the question if and under which conditions a talaq performed in an Islamic state may be recognised in European states. The authors provide an analysis of various forms of talaq performed in different Islamic states and reach conclusions on the effects that may be recognised in Europe, with an outlook towards a possible uniform approach. The recognition of talaqs in England and Wales, Germany and Bosnia and Herzegovina are used as examples for different solutions to similar problems before European courts. The EU legislator has not adopted a uniform approach to the application and recognition of talaqs in the EU. The CJEU got it wrong in Sahyouni II and missed the opportunity to contribute to a uniform EU policy but its subsequent decision in TB opens the door for the CJEU to overturn Sahyouni II if another case concerning a non-EU talaq divorce comes before them. The Hague Divorce Convention of 1970 is an international instrument that provides for appropriate solutions. Ratification by more states in which a talaq is a legally effective form of divorce and by more European states would provide the much-needed security for families moving from Islamic states to Europe.

Sharon Shakargy, Capacitating personal capacity: cross-border regulation of guardianship alternatives for adults, 450-480

Increasing global mobility of people with disabilities, changes in the measures employed to protect them, and growing awareness of their human rights significantly challenge the existing cross-border protection of adults around the world. National legislations are slow to react to this challenge, and the existing solutions are often insufficient. While the Hague Convention on the Protection of Adults (2000) is imperfect, it offers a solution to this problem. This article discusses the changing approach towards people with disabilities and their rights and demonstrates the incompatibility of the local protection of adults with their cross-border protection. The article further explores possible solutions to this problem. It then explains why the Hague Adults Convention is the best solution to this problem and what changes should and could be made in order to improve the solution offered by the Convention even further.

Anna Natalia Schulz, The principle of the best interests of the child and the principle of mutual trust in the justice systems of EU Member States – Return of a child in cross-border cases within the EU in the light of EU Council Regulation 2019/1111 and the situation in Poland, 481-505

The suspension of the enforcement of a return order under the Hague Convention on the Civil Aspects of International Child Abduction and EU law, as well as the admissibility of modifying such an order, remains one of the most sensitive matters in cross-border family disputes. The article analyses EU Council Regulations 2201/2003 (Brussels IIa) and 2019/1111 (Brussels IIb) in terms of the objectives set by the EU legislator: strengthening the protection of the interests of the child and mutual trust of Member States in their justice systems. The text also refers to Polish law as an example of the evolution of the approach to the analysed issues. It presents its development, highlights the solutions concerning the competences of the Ombudsman for Children, and provides an assessment of the current legal situation in the context of Brussels IIb.

Bich Ngoc Du, Practical application of the reciprocity principle in the recognition and enforcement of foreign judgments in civil and commercial matters in Vietnam, 506-529

The reciprocity principle was first introduced in Vietnam by Decree 83/1998 to allow for the recognition of foreign non-executionary judgments, decisions on family and marriage matters in Vietnam. It was then adapted in the first Civil Procedure Code in 2004 and was later modified in the current Civil Procedure Code for the purpose of recognition and enforcement of foreign judgments from non-treaty countries. This article examines the practical application of this reciprocity principle in Vietnamese courts by analysing cases in which they have recognised or denied recognition to foreign judgments in civil and commercial matters (that is, non-family matters), as well as a recent development in the Supreme Court’s Resolution Draft on guidance on the recognition and enforcement of foreign judgments, which adopts a presumed reciprocity approach. The article concludes that the courts have not applied the reciprocity principle in a consistent manner. The resolution for this current problem is for the presumed reciprocity approach to be promulgated soon to facilitate a uniform application in the local courts.

Meltem Ece Oba, Procedural issues in international bankruptcy under Turkish law, 530-568

This article examines the procedural issues in a bankruptcy lawsuit with a foreign element from a Turkish private international law perspective. The article begins with a brief overview of the bankruptcy procedure under Turkish domestic law. It then explores the jurisdiction of Turkish courts in an international bankruptcy lawsuit in detail. The effects of a foreign choice of court agreement and parallel proceedings are also addressed in discussing the international jurisdiction of Turkish courts. The article also touches upon the debates on the possible legal grounds for the inclusion of assets located abroad to the bankruptcy estate established before Turkish courts considering the approaches of universalism and territorialism. Finally, problems related to the recognition of foreign bankruptcy decisions are examined.

Uglješa Grušić, Transboundary pollution at the intersection of private and public international law, 569-582

This article reviews Guillaume Laganière’s Liability for Transboundary Pollution at the Intersection of Public and Private International Law (Bloomsbury Publishing, 2022). This book makes a valuable contribution to private international law scholarship by exploring the relationship between public and private international law and the regulatory function of private international law in relation to transboundary pollution. The book’s focus on transboundary pollution, however, is narrow. A comprehensive and nuanced regulatory response to contemporary environmental challenges in private international law must also address cases where transnational corporations and global value chains are sued in their home states for environmental damage caused in developing states.

The latest issue of Lex & Forum, the Greek law review on Private International Law, has been published recently. Paris Arvanitakis, the scientific director of the review, has prepared the following editorial:

Private International Law is fundamental in resolving environmental claims that cross national borders, offering vital legal mechanisms for determining jurisdiction, applicable law, and the recognition and enforcement of judgments. This relationship is particularly significant in an increasingly interconnected world, where environmental issues often transcend geographical boundaries, necessitating a cohesive and robust legal approach to address and resolve such multi-faced transnational disputes effectively. These complicated problems, which constitute the main body of the present issue (Focus), were discussed at a workshop, organized by Lex & Forum on 21.9.2023, chaired and introduced (‘Private international law and environmental disputes’) by Professor at the University of Athens and Director of the Hellenic Institute of International and Foreign Law Mr. Mr. Charis Pamboukis, where presentations were made on ‘Climate justice litigation and private international law’, by Mr. Geert Van Calster , Professor at the Catholic University of Leuven, ‘Collective redress in environmental matters’,  by Lecturer at the University of Malta, Mr. Ioannis Revolidis, ‘Climate litigation: procedural issues’, by Assoc. Professor at the International Hellenic University and member of the the Regulatory Authority for Energy, Mr. Komninos Komnios, ‘Environmental claims in cross-border insolvency’, by Professor at the University of Athens, Ms. Elina Moustaira,  and ‘The impact of third party funding in climate change arbitration: a potential game-changer or too much ado for nothing?’ Ms. by Vasiliki Marazopoulou, Dr.Jur.

Τhis issue includes the Preafatio by Mr. Gilles Cuniberti, Professor at the University of Luxembourg and President of EAPIL, on ‘Mutual Trust Excludes Damages for Suing in other Member States in Breach of Jurisdiction Clause’, which refers to the judgment of the CJEU in the Charles Taylor Adjusting decision case, published also here (commented by Dr. jur. K. Voulgarakis, and Dr. jur. S. Karameros).  The case law section also presents the judgments of the CJEU, 30.3.2023, C-34/21, on the non-infringement of personal data through teaching by videoconferencing due to COVID-19 without the consent of teachers (commented by Dr. jur. R. Tsersidou), CJEU, 30.3.2023, M.Y.M., on the possibility of registering a declaration of renunciation of inheritance in a Bulgarian court before the Registrar of the Athens Magistrate’s Court (commented by Dr. jur. N. Zaprianos), the decision of the Austrian Supreme Court of Cassation, 25.2.2021, on the non-violation of public policy when applying a foreign law of succession that does not provide for a reserved portion on legal succession (commented by Dr. jur. N. Zaprianos), and the domestic decisions Court of Appeal Piraeus 682/2022 on international jurisdiction by joinder of parties of companies that have signed successive shipping contracts (commented by Prof. P. Arvanitakis), and Court of First Instance Athens 922/203 on international jurisdiction and applicable law over the submission of a mentally disabled person under guardianship (commented by Ass. Prof. G.-A. Georgiadis). The issue closes with a special feature on “EU & Global Trade Law”, which features the studies of Professor at Columbia University, Mr. Petros Mavroidis, on “The WTO at Crossroads”, and Professors at the Universities of Gedik/Turkey and Rouen, respectively, K. Bozkurt and Ph. Lombaerde, on “The Cause and Consequences of the Hybrid EU-Turkey Trade Regime”.

Lex & Forum renews its scientific appointment with its readers for the next, 12th issue, with the central theme “Cross-border insolvency”.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided by the editor of the journal.

G. Cuniberti, Time limitations affecting foreign judgments

The issue of time limitations affecting foreign judgments is addressed in remarkably different ways in comparative private international law. The primary reason is that enforcing States define the subject matter of limitations differently: they can focus on the foreign judgment itself, but also on the obligation vindicated before the foreign court, the exequatur judgment, or an autonomous obligation arising out of the foreign judgment in the forum. Additional layers of complexity are that rules of limitation can be characterised either as procedural or substantive in nature, and that foreign judgments losing enforceability should not be enforced. The question should therefore be asked whether this diversity is an impediment to the free circulation of judgments within the European Union, which should be remedied by some form of harmonisation.

J. Hoffmann, Jurisdiction of German courts for collective action against third country defendants

Collective action under the new German VDuG (Law on the Enforcement of Consumer Rights) allows the collective enforcement of similar claims of consumers. Such actions are not only relevant regarding domestic German defendants or those located within the EU but may also be of practical importance regarding third country defendants. This article discusses under which circumstances German courts have jurisdiction for such collective actions. It argues that the exclusive jurisdiction clause in § 3 VDuG does not preclude the application of the general jurisdiction rules of German law. Specific rules apply regarding claims stemming from violations of data protection law.

P.G. Picht and C. Kopp, Choice of law under the Rome I and Rome II regulations: current case law issues

The article deals with current choice of law issues in the practical application of the Rome I and Rome II Regulations. Despite the fact that the relevant provisions have been in existence for some time now, they still raise important and intricate questions. On the basis of recent German case law, the article examines three of these issues in more detail, namely (1) choice of law through litigation behaviour, (2) the exceptional admissibility of a choice of law in bilateral competition law infringement matters, and (3) the validity of choice of law clauses in general terms and conditions.

A. Schulz, Gender self-determination in Private International Law – Towards a new article 7a EGBGB

In August 2023 the German government proposed a draft bill for a “Gender Self-Determination Act” which will allow transgender, intersex and non-binary persons to change their legal gender by means of a simple self-declaration. While some of the details of the future Self-Determination Act are still being debated, less attention has been paid to the fact that the draft bill also contains a proposal for a conflict of laws rule which will determine the law applicable to a person’s gender in cross-border settings. According to Article 7a (1) Draft Introductory Act to the German Civil Code, a person’s gender will generally be governed by the law of the state of which the person is a national. However, according to Article 7a (2) Draft Introductory Act to the German Civil Code, a person residing in Germany may, for the purpose of changing their gender, choose German law. This article aims to take a first look at this draft conflict of laws rule and to illustrate some of the pending questions regarding the new rule.

J. Oster, Jurisdiction clauses in general terms and conditions in digital commerce

In its ruling of 24.11.2022 (Tilman SA ./. Unilever Supply Chain Company AG), the CJEU had to decide on the validity of a jurisdiction clause that was included in general terms and conditions to which the contract referred by the inclusion of a hypertext link. The Court held this to be in accordance with Article 23 para. 1 and 2 of the Lugano II Convention, even though the party against whom that clause operates had not been formally asked to accept those general terms and conditions by ticking a box on that website. The Court thus expanded its case-law on the inclusion of jurisdiction clauses in electronic contracts. The decision has a significant impact on the interpretation of Article 25 para. 1 and 2 Brussels Ia Regulation, which has the same meaning as Article 23 para. 1 and 2 of the Lugano II Convention.

M. Lieberknecht, Enforcement proceedings concerning frozen assets under the EU’s economic sanctions regime

In its Bank Sepah decision, the ECJ offers guidance on an issue of increasing importance: the legal status of frozen assets owned or controlled by persons on the EU’s sanction lists. Specifically, the ECJ weighs in on the fate of frozen assets in the context of enforcement proceedings. The Court adopts an extensive reading of the concept of freezing, which does not only rule out the recovery of assets for the benefit of the creditor but also bars mere protective measures such as seizure, which do not affect ownership rights in the asset. Considering the purpose of freezing orders, this extensive reading is not convincing. The Court’s second dictum, on the other hand, is all the more cogent. It states that the legal effects of a freezing order on enforcement proceedings are not affected by whether or not the creditor’s claim is related to the subject matter of the sanctions in question.

W. Hau, Having two bites at the same cherry? – On the recognizability of a preclusion based on the duty to concentrate claims in one lawsuit

Following an English lawsuit, the winning employee brings further proceedings in France with additional claims against his former employer. This strategy would not be permissible under either English or French procedural law. Nevertheless, the CJEU holds that the preclusive effect of the English decision is not to be recognized in France under the Brussels I Regulation (still applicable in the case). The opposing view expressed here is that only public policy permits refusal of recognition of such a preclusive effect of a foreign judgment.

P. Huber and L. Bernard, Objections to the claim itself and parallel (enforcement) proceedings in the European Union

What impact does it have, if an objection to the claim itself is raised in different member states of the European Union in order to stop one or several enforcement proceedings? This question arose in an Austrian proceeding. The OGH solely dealt with the question of jurisdiction for the Austrian enforcement proceeding. The case, however, raises further issues regarding the coordination of parallel proceedings which are discussed in this article.

E. Jayme and C.F. Nordmeier, Family and the law of torts – Private International Law and Legal Comparison – Conference of the German-Lusitanian Jurists’ Association, September 15th and 16th 2023, Heidelberg

The second issue of 2023 of the Journal of Private International Law is out. It contains the following articles:

Dan Jerker B. Svantesson, Symeon C. 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.

Gerard McCormack, Conflicts in insolvency jurisdiction

The Hague Judgments Convention 2019 contains an insolvency exception. The paper suggests that the proposed Hague Jurisdiction Convention should contain an insolvency exception that mirrors that contained in the existing Hague Judgments Convention. It is also submitted that international instruments in the field of insolvency, and related matters, are best dealt with by the United Nations Commission on International Trade Law (UNCITRAL).

Leon Theimer, Protection against the breach of choice of court agreements: A comparative analysis of remedies in English and German courts.

In fixing the place and provider for the resolution of disputes in advance, choice of court agreements increase procedural legal certainty and the predictability of litigation risks. Hence, their protection is crucial. This article undertakes a functional comparison of the remedies for breach of exclusive choice of court agreements in English and German courts, painting a picture of different approaches to a common problem. English courts, now no longer constrained by EU law, employ an entire arsenal of remedies, most strikingly the anti-suit injunction and damages effectively reversing a foreign judgment. In contrast, German courts exercise greater judicial restraint, even though damages for the breach of a choice of court agreement have recently been awarded for the first time. Against this backdrop, two distinct but interrelated reasons for the diverging approaches are identified and analysed, the different conceptions of choice of court agreements and the different roles of comity and mutual trust.

Vera Shikhelman, Enforcement of foreign judgments – Israel as a case study

This article shows how enforcement of foreign judgments in Israel works in practice. Using an original hand-coded dataset, the article seeks to determine empirically which factors increase the likelihood of a foreign judgment being enforced by Israeli courts. To do so the article makes use of two major theories about enforcement of foreign judgments – international comity and vested rights. Also, the article hypothesises that enforcement can be influenced by specific characteristics of the Israeli court and the foreign judgment.
The article finds that the best predictor of foreign judgment enforcement in Israel is the specific characteristics of the foreign judgment and of the Israeli court – cases with a contractual-commercial nature, and cases brought before one of the central districts of Israel are more likely to be enforced. Additionally, the volume of trade between the issuing country and Israel might also be a certain predictor of enforcement. Finally, the article finds that the due process in individual cases might have some influence on the enforcement decision.

Diego Zannoni, How to balance respect for diversity and the rights of the vulnerable? (Non-)recognition of forced and underage marriage under the lens of the European Convention on Human Rights

Partly in view of the migratory phenomenon to which Europe is exposed, forced and underage marriages nowadays deserve careful consideration both as social phenomena and as legal institutions. This paper aims to verify whether and to what extent forced and underage marriages should be recognised in Europe. On the one hand, recognising the validity of these acts could arguably clash with fundamental values and rights protected by the European Convention on Human Rights and the Convention on Preventing and Combating Violence against Women and Domestic Violence. On the other hand, it is not possible to a priori exclude that a flat refusal to recognise a marriage validly established abroad might entail a violation of further rights of the spouses and ultimately have detrimental consequences for the parties that the refusal aims to protect. The aim is to assess whether private international law tools and techniques can offer a proper balance between respect for the fundamental values of reception societies and protection of the rights and interests of the parties involved.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. As always, it contains a number of insightful articles, this time also two in English language. Here are the authors, titles and abstracts:

Horatia Muir Watt, An Ontology of the In-Between [18th Ernst Rabel Lecture, 2022] (Open Access)

The conflict of laws can serve heuristically to underscore two established but radically opposing models of modernist legal ordering: multilateralism and statutism. Such a prism is helpful if we want to rethink (as we must!) our late-modern legality’s deep epistemological settings in the shadow of the »catastrophic times« to come, whether in terms of environmental devastation or political dislocation. Both phenomena are profoundly linked and indeed constitute two faces of alterity, natural and cultural, from which modernity has progressively taught us to distance ourselves. Importantly, law encodes the conditions that produce these dual somatic symptoms in our contemporary societies. This chasm between nature and culture has produced humanity’s »ontological privilege« over our natural surroundings and a similar claim of superiority of modern (Western) worldviews over »the rest«. In this respect, the main achievement of the moderns, as Bruno Latour wryly observed, has been to universalise the collective blindness and amnesia that allow our »anthropocentric machine« to hurtle on, devastating life in its path and devouring the very resources it needs to survive.

Anton S. Zimmermann, Kriegskollisionsrecht. Ein Beitrag zum international-privatrechtlichen Umgang mit Gebietseroberungen (War and the Conflict of Laws – Private International Law’s Treatment of Territorial Conquest.)

The Russian war of aggression against Ukraine constitutes a breach of a fundamental consensus in public international law: states have authority over their territory. One element of territorial sovereignty is the right to legislate in the field of private law. If a territory is conquered, this right is – in breach of public international law – usurped by the conquering state. This article examines how private international law deals with such changes in factual power. It demonstrates that private international law is more flexible than is commonly assumed and that it can provide a differentiated and adequate reaction to occupations and annexations.

Wenliang Zhang and Guangjian Tu, Recent Efforts in China’s Ambition to Become a Centre for International Commercial Litigation

The last decade or so has witnessed intensifying efforts by China to reshape its legal framework for international commercial litigation. These efforts echo its advancement of the »One Belt and One Road Initiative« and a policy of strengthening the foreign-related rule of law. But the measures so far have been piecemeal and were adopted mainly by the Supreme People’s Court (SPC). Leading lower Chinese courts, the SPC has zealously advanced the reform of international commercial litigation by devices such as international commercial courts (ICCs), anti-suit injunctions, forum non conveniens and de jure reciprocity favouring recognition and enforcement of foreign judgments. Such efforts may help modernize China’s mechanism for international commercial litigation, and more are expected. Although what the SPC has been doing moves closer to the global mainstream and is on the right track, deep reforms are still needed before the Chinese international commercial litigation regime can »go global«.

Mathias Habersack and Peter Zickgraf, Sorgfaltspflichten und Haftung in der Lieferkette als Regelungsmodell: Rechtsentwicklung – Rechtsvergleichung – Rechtsökonomik – Rechtsdogmatik (Corporate Sustainability Due Diligence and Supply Chain Liability as a Regulatory Model: Legal Developments – Comparative Assessment – Economic Analysis – Legal Theory)

The proposal for a Corporate Sustainability Due Diligence Directive significantly exceeds the German Supply Chain Act (LkSG) not only in terms of its scope of application and the protected interests, but also regarding the enforcement mechanism in the event of a violation of a due diligence duty. While the LkSG has taken a stand against private enforcement in its § 3 para. 3 s. 1, Art. 22 of the proposed Corporate Sustainability Due Diligence Directive makes companies civilly liable for misconduct committed by their subsidiaries and business partners. The present article deals with the conceptual fundamentals of this regulatory model: From a comparative perspective, the proposed duties and accompanying civil liability mark a departure from the independent contractor rule which is deeply rooted in the tort laws of the German and Anglo-American legal families; the proposed regulatory model thus brings about a sector-specific paradigm shift in the law of non-contractual liability. From a law and economics perspective, however, the proposed regulatory model is justifiable given the special factors present in typical cases. The liability risks associated with the regulatory model appear to be manageable for companies if the pre-conditions of their potential civil liability are more clearly specified.

The table of contents in German is available here.

The third issue of 2023 of the Dutch Journal of Private International Law (Nederlands Internationaal Privaatrecht) is out. It features the following contributions.

An editorial by M.J. de Rooij titled Het leed van de circulerende Unieburger en het Europese begrip van de favor divortii (The distress situation of the European citizens moving abroad and the European concept of favor divortii), freely available here.

C. Vanleenhove, The Hague Judgments Convention versus national regimes of recognition and enforcement: a comparison between the Convention and the Belgian Code of Private International Law (available here)

The adoption of the Hague Judgments Convention marks a landmark step in the Judgments Project that the Hague Conference on Private International Law has undertaken since 1992 in the context of transnational disputes in civil and commercial matters. The creation of a uniform set of core rules on the recognition and enforcement of foreign judgments in a cross-border civil and commercial setting promotes effective access to justice and facilitates multilateral trade, investment, and mobility. As far as Belgium is concerned, in the relationship with other non-EU Contracting States the Convention will replace the Code of Private International Law that since 2004 has governed the recognition and enforcement of third State judgments in Belgium. The entry into force of the Convention calls for a comparison of the Convention’s regime with that of the Code of Private International Law. As the two instruments fall within the same ballpark in terms of their openness and given the Convention’s deferral to more favourable domestic rules, the Convention adds another avenue through which a successful party can enforce its foreign judgment in Belgium. From the Belgian perspective the potential circulation of Belgian judgments in other Contracting States with stringent national rules on enforcement perhaps constitutes the most considerable benefit of the Convention.

G. van Calster, Brussles Ia and the Hague Judgments Convention: a note on non-domiciled parties and on reflexive jurisdictional rules

The process that led to the Hague Judgment Convention was inspired by the ‘Brussels regime’(the EU’s approach to encouraging the free movement of judgments in civil and commercial matters). In the present note I explore two likely areas of tension between Brussels Ia and the Hague Convention: the limited circumstances where non-EU domiciled defendants will nevertheless be captured by the EU jurisdictional rules; and the developing ‘reflexive effect’ of exclusive jurisdictional gateway. I suggest that the EU would do well seriously to consider a reflexive application of its exclusive jurisdictional rules, and that the current review of Brussels Ia would be a good opportunity to do so.

A.A.H van Hoek and F. van Overbeeke, Over open eindes en nauwere banden: a nieuw hoofdstuk in de Van den Bosch/Silo-Tank-saga (About open endings and closer ties: A new chapter in the Van den Bosch/Silo-Tank-saga).

In this brief contribution we pay attention to the latest judgment of the Dutch Supreme Court in the protracted litigation over the employment conditions of Hungarian truck drivers who perform international transport operations on behalf of a Dutch logistics company while being officially employed by a Hungarian sister company of the Dutch firm. The case led to the CJEU judgment FNV/Van den Bosch, C-815/18, ECLI:EU:C:2020:976 (NIPR 2021-55) where the application of the Posting of Workers Directive to this scenario was discussed. The current case pertains to the law that is applicable to the individual employment contracts under Article 8 Rome I.

We comment on the problem of identifying the place from where the work is habitually performed in the case of highly mobile transport operations, the root of which lays in pertaining EU caselaw. We also discuss the fact that the Dutch Supreme court applied the criteria mentioned in the Schlecker case (C-64/12, ECLI:EU:C:2013:551, NIPR 2013-347) in a strict manner, without taking the specific context of the Schlecker case fully into account. Finally, we recommend that the Court of Appeal of Amsterdam (to which the case has been referred) should submit further preliminary questions to the CJEU: 1. Should the reason why workers are covered by the social security system of their home country be taken into account when weighing the relevance of this criterion – and more particularly, what relevance does the insurance status have in transport cases?; 2. Which factors should (or may) be taken into account to establish a closer connection when the applicable law is determined on the basis of the establishment through which the worker was employed?

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

C. Budzikiewicz/K. Duden/A. Dutta/T. Helms/C. Mayer, The European Commission’s Parenthood Proposal – Comments of the Marburg Group

The Marburg Group – a group of German private international law scholars – reviewed the European Commission’s Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood. The Group welcomes the initiative of the Commission and embraces the overall structure of the Parenthood Proposal. Nevertheless, it suggests some fundamental changes, apart from technical amendments. The full article-by-article comments of the Group with redrafting suggestions for the Commission Proposal are available at http://www.marburg-group.de. Building on the comments, the present article authored by the members of the Marburg Group focuses on the main points of critique and considers the present state of discussion on the proposed Regulation.

U.P. Gruber, A plea against ex post-adaptation of spousal inheritance rights

Adaptation is recognized as a tool to eliminate the lack of coordination between the provisions of substantive law derived from different legal systems. According to a widespread view, adaption is very often necessary with regard to the spouse’s share in the deceased’s estate, namely if the matrimonial property regime and questions relating to succession are governed by different laws. However, in this article, the author takes the opposite view. Especially in light of the ECJ’s classification of paragraph 1371(1) BGB as a provision dealing with succession, there are new solutions which render ex post adaptations superfluous.

M. Mandl, Apparent and virtual establishments reflected through Art. 7 No. 5 Brussels Ia Regulation and Art. 19 (2) Rome I Regulation

The Federal Court of Justice (Bundesgerichtshof – BGH) has ruled that a dispute has the required connection to the operation of an (existing) establishment pursuant to Article 7 (5) Brussels Ia Regulation if the business owner operates an internet presence that gives the appearance of being controlled by this establishment instead of the company’s central administration and the contract in dispute was concluded via this internet presence. This decision provides an opportunity to examine the prerequisites and legal consequences of apparent establishments and so-called virtual establishments (internet presences) from a general perspective, both in the context of Article 7 (5) Brussels Ia Regulation and in connection with Article 19 (2) Rome I Regulation.

D. Nitschmann, The consequences of Brexit on Civil Judicial Cooperation between Germany and the United Kingdom

The United Kingdom’s withdrawal from the European Union has far-reaching consequences for international civil procedure law. This is exemplified by the decisions of the Higher Regional Court of Cologne for the international service of process. Since the European Regulation on the Service of Documents no longer applies to new cases, the Brexit leads to a reversion to the Hague Service Convention and the German-British Convention regarding Legal Proceedings in Civil and Commercial Matters. Of practical relevance here is, among other things, the question of whether and under what conditions direct postal service remains permissible.

R.A. Schütze, Security for costs of english plaintiffs in Austrian litigation

The judgment of the Austrian Supreme Court (Oberster Gerichtshof – OGH) of 29 March 2022 deals with the obligation of English plaintiffs to provide security for costs according to sect. 57 Austrian Code of Civil Procedure. The principle stated in para. 1 of this section is that plaintiffs of foreign nationality have to provide security for costs. But an exception is made in cases where an Austrian decision for costs can be executed in the country of residence of the plaintiff.
The OGH has found such exception in the Hague Convention 2005 on Choice of Court Agreements. As the United Kingdom has, on 28 September 2020, declared the application of the Hague Convention 2005 for the United Kingdom, the Convention is applicable between Austria and the United Kingdom despite the Brexit. The Hague Convention opens the possibility to recognition and execution of judgments rendered under a choice of court agreement including decisions on costs.

Th. Garber/C. Rudolf, Guardianship court authorisation of a claim before Austrian courts – On international jurisdiction and applicable law for the grant of a guardianship court authorization

The Austrian court has requested court approval for the filing of an action by a minor represented by the parents. The international jurisdiction for the granting of a guardianship court authorisation is determined according to the Brussels II-bis Regulation or, since 1.8.2022, according to the Brussels II-ter Regulation. In principle, the court competent to decide on the action for which authorization by the guardianship court is sought has no corresponding annex competence for the granting of the authorization by the guardianship court: in the present case, the Austrian courts cannot therefore authorize the filing of the action due to the lack of international jurisdiction. If an Austrian court orders the legal representative to obtain the authorization of the guardianship court, the courts of the Member State in which the child has his or her habitual residence at the time of the application have jurisdiction. In the present case, there is no requirement for approval on the basis of the German law applicable under Article 17 of the Hague Convention 1996 (§ 1629 para 1 of the German Civil Code). The Cologne Higher Regional Court nevertheless granted approval on the basis of the escape clause under Article 15 para 2 of the Hague Convention 1996. In conclusion, the Cologne Higher Regional Court must be agreed, since the escape clause can be invoked to protect the best interests of the child even if the law is applied incorrectly in order to solve the problem of adaptation.

M. Fornasier, The German Certificate of Inheritance and its Legal Effects in Foreign Jurisdictions: Still Many Unsettled Issues

What legal effects does the German certificate of inheritance („Erbschein“) produce in other Member States of the EU? Is it a reliable document to prove succession rights in foreign jurisdictions? More than one decade after the entry into force of the European Succession Regulation (ESR), these questions remain, for the most part, unsettled. In particular, commentators take differing views as to whether the Erbschein, being issued by the probate courts regardless of whether the succession is contentious or non-contentious, constitutes a judicial decision within the meaning of Article 3(1)(g) ESR and may therefore circulate in other Member States in accordance with the rules on recognition under Articles 39 ESR. This article deals with a recent ruling by the Higher Regional Court of Cologne, which marks yet another missed opportunity to clarify whether the Erbschein qualifies as a court decision capable of recognition in foreign jurisdictions. Moreover, the paper addresses two judgments of the CJEU (C-658/17 and C-80/19) relating to national certificates of inheritance which, unlike the German Erbschein, are issued by notaries, and explores which lessons can be learned from that case-law with regard to certificates of inheritance issued by probate courts. In conclusion, it is submitted that, given the persisting uncertainties affecting the use of the Erbschein in foreign jurisdictions, the European Certificate of Succession provided for by the ESR is better suited for the settlement of cross-border successions.

E. Vassilakakis/A. Vezyrtzi, Innovations in International Commercial Arbitration – A New Arbitration Act in Greece

On 4.2.2023 a new Arbitration Act came into effect in Greece. It was approved by means of Law No. 5016/2023 on international commercial arbitration, and was enacted in order to align the regime of international commercial arbitration with the revision of the UNCITRAL Model Law on International Commercial Arbitration adopted in 2006 (hereinafter the revised Model Law). The new law contains 49 arbitration-related provisions and replaces the Law No. 2735/1999 on international commercial arbitration, while domestic arbitration continues to be regulated by Art. 867–903 of the Greek Code of Civil Procedure (hereinafter grCCP). A reshaping of Art. 867 ff. grCCP was beyond the “mission statement” of the drafting Committee.1 Besides, it should also be associated with a more extensive and, in consequence, time-consuming reform of procedural law. Hence, the dualist regime in matters of arbitration was preserved.
Pursuant to Art. 2, the new law incorporates on the one hand the provisions of the revised Model Law and on the other hand the latest trends in international arbitration theory and practice. Therefore, it is not confined to a mere adjustment to the revised Model Law, but also includes several innovative provisions that merit a brief presentation.

C. Rüsing, Dialogue International Family Law, 28th – 29th April, Münster, Germany

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

B. Heiderhoff, Care Proceedings under Brussels IIter – Mantras, Compromises and Hopes

Against the background of the considerable extension of the text of the regulation, the author asks whether this has also led to significant improvements. Concerning jurisdiction, the “best interests of the child” formula is used a lot, while the actual changes are rather limited and the necessary compromises have led to some questions of doubt. This also applies to the extended possibility of choice of court agreements, for which it is still unclear whether exclusive prorogation is possible beyond the cases named in Article 10 section 4 of the Brussels II ter Regulation. Concerning recognition and enforcement, the changes are more significant. The author shows that although it is good that more room has been created for the protection of the best interests of the child in the specific case, the changes bear the risk of prolonging the court proceedings. Only if the rules are interpreted with a sense of proportion the desired improvements can be achieved. All in all, there are many issues where one must hope for reasonable clarifications by the ECJ.

G. Ricciardi, The practical operation of the 2007 Hague Protocol on the law applicable to maintenance obligations

Almost two years late due to the COVID-19 pandemic, in May 2022 over 200 delegates representing Members of the Hague Conference on Private International Law, Contracting Parties of the Hague Conventions as well as Observers met for the First Meeting of the Special Commission to review the practical operation of the 2007 Child Support Convention and the 2007 Hague Protocol on Applicable Law. The author focuses on this latter instrument and analyses the difficulties encountered by the Member States in the practical operation of the Hague Protocol, more than ten years after it entered into force at the European Union level. Particular attention is given to the Conclusions and Recommendations of the Applicable Law Working Group, unanimously adopted by the Special Commission which, in light of the challenges encountered in the implementation of the Hague Protocol, provide guidance on the practical operation of this instrument.

R. Freitag, More Freedom of Choice in Private International Law on the Name of a Person!

Remarks on the Draft Bill of the German Ministry of Justice on a Reform of German Legislation on the Name of a Person. The German Ministry of Justice recently published a proposal for a profound reform of German substantive law on the name of a person, which is accompanied by an annex in the form of a separate draft bill aiming at modernizing the relevant conflict of law-rules. An adoption of this bill would bring about a fundamental and overdue liberalization of German law: Current legislation subjects the name to the law of its (most relevant) nationality and only allows for a choice of law by persons with multiple nationalities (they max designate the law of another of their nationalities). In contrast, the proposed rule will order the application of the law of the habitual residence and the law of the nationality will only be relevant if the person so chooses. The following remarks shall give an overview over the proposed rules and will provide an analysis of their positive aspects as well as of some shortcomings.

D. Coester-Waltjen, Non-Recognition of “Child Marriages” Concluded Abroad and Constitutional Standards

The Federal Supreme Court raised the question on the constitutionality of one provision of the new law concerning “child marriages” enacted by the German legislator in 2017. The respective rule invalidated marriages contracted validly according to the national law of the intended spouses if one of them was younger than 16 years of age (Art. 13 ss 3 no 1 EGBGB). The Federal Supreme Court requested a ruling of the Federal Constitutional Court on this issue in November 2018. It took the Federal Constitutional Court nearly five years to answer this question.
The court defines the structural elements principally necessary to attain the constitutional protection of Art. 6 ss 1 Basic Law. The court focuses on the free and independent will of the intended spouses as an indispensable structural element. The court doubts whether, in general, young persons below the age of 16 can form such a free and independent will regarding the formation of marriage. However, as there might be exceptionally mature persons, the protective shield of Art. 6 ss 1 Basic Law is affected (paragraphs 122 ff.) and their “marriage” falls under the protective umbrella of the constitution. At the same time, the requirement of a free and meaningful will to form a marriage complies with the structural elements of the constitutionally protected marriage. This opens the door for the court to examine whether the restriction on formation of marriage is legitimate and proportionate.
After elaborating on the legitimacy of the goal (especially prevention and proscription of child marriages worldwide) the court finds that the restriction on the right to marry is appropriate and necessary, because comparable effective other means are missing. However, as the German law does not provide for any consequence from the relationship formed lawfully under the respective law and being still a subsisting marital community, the rule is not proportionate. In addition, the court demurs that the law does not provide for transformation into a valid marriage after the time the minor attains majority and wants to stay in this relationship. In so far, Art. 13 ss 3 no 1 affects unconstitutionally Art. 6 ss 1 Basic Law. The rule therefore has to be reformed with regard to those appeals but will remain in force until the legislator remedies those defects, but not later than June 30, 2024.
Beside the constitutional issues, the reasoning of the court raises many questions on aspects of private international law. The following article focuses on the impact of this decision.

O.L. Knöfel, Discover Something New: Obtaining Evidence in Germany for Use in US Discovery Proceedings

The article reviews a decision of the Bavarian Higher Regional Court (101 VA 130/20), dealing with the question whether a letter rogatory for the purpose of obtaining evidence for pre-trial discovery proceedings in the United States District Court for the District of Delaware can be executed in Germany. The Court answered this question in the affirmative. The author analyses the background of the decision and discusses its consequences for the long-standing conflict of procedural laws (Justizkonflikt) between the United States and Germany. The article sheds some light on the newly fashioned sec. 14 of the German Law on the Hague Evidence Convention of 2022 (HBÜ Ausführungsgesetz), which requires a person to produce particular documents specified in the letter of request, which are in his or her possession, provided that such a request is compatible with the fundamental principles of German law and that the General Data Protection Regulation of 2018 (GDPR) is observed.

W. Wurmnest/C. Waterkotte, Provisional injunctions under unfair competition law

The Higher Regional Court of Hamburg addressed the delimitation between Art. 7(1) and (2) of the Brussels Ibis Regulation after Wikingerhof v. Book ing.com and held that a dispute based on unfair competition law relating to the termination of an account for an online publishing platform is a contractual dispute under Art. 7(1) of the Brussels Ibis Regulation. More importantly, the court considered the requirement of a “real connecting link” in the context of Art. 35 of the Brussels Ibis Regulation. The court ruled that in unfair competition law disputes of contractual nature the establishment of such a link must be based on the content of the measure sought, not merely its effects. The judgment shows that for decisions on provisional injunctions the contours of the “real connecting link” have still not been conclusively clarified.

I. Bach/M. Nißle, The role of the last joint habitual residence on post-marital maintenance obligations

For child maintenance proceedings where one of the parties is domiciled abroad, Article 5 of the EU Maintenance Regulation regulates the – international and local – jurisdiction based on the appearance of the defendant. According to its wording, the provision does not require the court to have previously informed the defendant of the possibility to contest the jurisdiction and the consequences of proceeding without contest – even if the defendant is the dependent minor child. Article 5 of the EU Maintenance Regulation thus not only dispenses with the protection of the structurally weaker party that is usually granted under procedural law by means of a judicial duty to inform (such as Article 26(2) Brussels Ibis Regulation), but is in contradiction even with the other provisions of the EU Maintenance Regulation, which are designed to achieve the greatest possible protection for the minor dependent child. This contradiction could already be resolved, at least to some extent, by a teleological interpretation of Article 5 of the EU Maintenance Regulation, according to which international jurisdiction cannot in any case be established by the appearance of the defendant without prior judicial reference. However, in view of the unambiguous wording of the provision and the lesser negative consequences for the minor of submitting to a local jurisdiction, Article 5 of the EU Maintenance Regulation should apply without restriction in the context of local jurisdiction. De lege ferenda, a positioning of the European legislator is still desirable at this point.

C. Krapfl, The end of US discovery pursuant to Section 1782 in support of international arbitration

The US Supreme Court held on 13 June 2022 that discovery in the United States pursuant to 28 U.S.C. § 1782 (a) – which authorizes a district court to order the production of evidence “for use in a proceeding in a foreign or international tribunal” – only applies in cases where the tribunal is a governmental or intergovernmental adjudicative body. Therefore, applications under Section 1782 are not possible in support of a private international commercial arbitration, taking place for example under the Rules of the German Arbitration Institute (DIS). Section 1782 also is not applicable in support of an ad hoc arbitration initiated by an investor on the basis of a standing arbitration invitation in a bilateral investment treaty. This restrictive reading of Section 1782 is a welcome end to a long-standing circuit split among courts in the United States.

L. Hübner/M. Lieberknecht, The Okpabi case — Has Human Rights Litigation in England reached its Zenith

In its Okpabi decision, the UK Supreme Court continues the approach it developed in the Vedanta case regarding the liability of parent companies for human rights infringements committed by their subsidiaries. While the decision is formally a procedural one, its most striking passages address substantive tort law. According to Okpabi, parent companies are subject to a duty of care towards third parties if they factually control the subsidiary’s activities or publicly convey the impression that they do. While this decision reinforces the comparatively robust protection English tort law affords to victims of human rights violations perpetrated by corporate actors, the changes to the English law of jurisdiction in the wake of Brexit could make it substantially more challenging to bring human rights suits before English courts in the future.

The second issue of the Revue critique de droit international privé of 2023 contains three articles on private international law and numerous casenotes.

In the first article, Sandrine Brachotte (St Louis and Lille Universities) advocates a decolonial approach of private international law (Pour une approche décoloniale du droit international privé). The abstract reads:

This article presents the decolonial approach to private international law, which has recently entered the list of pressing topics for the discipline, not only in colonised countries but also in Europe. In France, the subject may not yet be addressed as such, but it at least appeared in a Ph. D. thesis defended at the Sciences Po Paris Law School in May 2022, entitled “The Conflict of Laws and Non-secular Worldviews: A Proposal for Inclusion”. This thesis argues for an alternative theorisation of the notions of party autonomy, recognition, and international jurisdiction to make them more inclusive of non-occidental worldviews. After having offered a description of the decolonial approach and the current enterprise of decolonisation of private international law, this contribution summarises the essential points of the Ph. D. thesis in this respect and identifies the broader questions that it raises for private international law, especially as regards the notions of “law”, “foreign” and “conflict”.

Dr Brachotte has already presented her work on this blog here.

In the second article, Elie Lenglart (Paris II University) confronts international civil procedure to individualism (Les conflits de juridictions confrontés à l’individualisme). The abstract reads:

Individualism is one the characteristic features of modern legal theories. The emergence of the individualistic approach is profoundly linked to a special perception and evaluation of the reality based of the superiority of the individual. This conception has had decisive consequences in private international law. The impact of this tendency should not be underestimated. Its influence is noticeable in the first place on the determination of international competency of French jurisdictions, both via the provision of available jurisdictions to individuals and via the individuals’ propensity to extend their choices of jurisdictions based on their personal interests. It also influences the recognition and enforcement of foreign judgments by imposing the legal recognition of individual statuses under extremely liberal conditions, reorganizing in turn the whole system around the individual.

The article is a follow up on Dr Lenglart’s work on individualism in choice of law theory.

An English version of these two articles will be available on the website of the publisher.

In the third article, David Sindres (university of Angers) offers new reflections on optional jurisdiction clauses.

Finally, a last article is dedicated to recent developments in French immigration law.

The full table of contents is available here.

The first issue of 2023 of the Journal of Private International Law is out. It contains the following articles:

David McClean, The transfer of proceedings in international family cases

There is general agreement that jurisdiction over issues concerning children or vulnerable adults should lie with the court of their habitual residence. There are particular circumstances in which that is not wholly satisfactory and four international instruments have provided, using rather different language, the possibility of jurisdiction being transferred to a court better placed to decide the case. They include Brussels IIb applying in EU Member States since August 2022 and the Hague Child Protection Convention of growing importance in the UK. This paper examines that transfer possibility with a detailed comparison of the relevant instruments.

Matthias Lehmann, Incremental international law-making: The Hague Jurisdiction Project in context

The Hague Conference on Private International Law is currently working towards a new instrument on jurisdiction and parallel proceedings. But critics ask if we need another instrument, in addition to the Hague Choice of Court Convention of 2005 and the Hague Judgments Convention of 2019. This article gives reasoned arguments for a “yes” and explores possibilities for the substantive content of the new instrument. It does so by looking back and contextualising the new instrument with regard to the two preceding Conventions, and by looking forward to what is still to come, ie the interpretation and application of all three instruments. On this basis, it argues that a holistic approach is required to avoid the risk of a piecemeal result. Only such a holistic approach will avoid contradictions between the three instruments and allow for their coherent interpretation. If this advice is heeded, incremental law-making may well become a success and perhaps even a model for future negotiations.

Ben Köhler, Blaming the middleman? Refusal of relief for mediator misconduct under the Singapore Convention

The discussion surrounding the Singapore Convention on Mediation 2018 has gathered steam. In particular, the refusal of enforcement based on mediator misconduct as prescribed in Article 5(1)(e) and (f) has been the focus of debate and is widely perceived to be the Convention’s Achilles heel. These two provisions, already highly controversial in the drafting process, have been criticised as ill-suited to a voluntary process and likely to provoke ancillary dispute. This article defends these grounds for refusal, arguing that they play an indispensable role in guaranteeing the legitimacy of mediated settlements enforced under the Convention. It addresses some of the interpretative challenges within Article 5(1)(e) and (f) before discussing the tension between the provisions on mediator misconduct and the confidentiality of the mediation. The article then offers some guidance on how parties may limit the effects of the provisions, concluding with a brief outlook for the future.

Abubakri Yekini, The effectiveness of foreign jurisdiction clauses in Nigeria: an empirical inquiry

Business entities do not often include terms in commercial agreements unless those terms are relevant and are designed to maximise the gains of the parties to the agreement. To realise their reasonable and legitimate expectations, they expect that contractual terms and promises would be respected by the parties and courts. There is a growing body of literature suggesting that Nigerian courts are not giving maximum effects to foreign jurisdiction clauses (FJC). What is largely missing from the scholarly contributions is that no one has worked out a principled solution to overcome this conundrum. This article significantly contributes to the existing literature through an empirical analysis of Nigerian appellate court decisions on FJCs with a view to gaining deeper insights into the attitude of Nigerian courts to FJCs. Compared to the US where the national average of enforcement is 74%, a 40% rate for Nigeria does not project Nigeria as a pro-business forum. This outlook can potentially disincentivise cross-border trade and commerce between Nigeria and the rest of the world. To address this problem, the paper proceeds by presenting a normative framework, built principally on economic and contract theories, for enforcing FJCs. As most of the cases are B2B transactions, the paper invites the courts to treat FJCs and arbitration clauses equally and to replace forum non conveniens considerations with a more principled approach which limits non-enforcement to overriding policy, and a strong cause that is defined by reasonableness and foreseeability.

Mohammed Mjed Kabry and Azam Ansari, The enforcement of jurisdiction agreements in Iran

Parties to a contract may designate the court or courts of a particular country to decide their disputes which have arisen or may arise from a particular legal relationship. Many countries give party autonomy its binding effect in selecting the competent court and enforcing jurisdiction agreements. There is complete silence in Iranian law regarding the enforcement of jurisdiction agreements. The current study examines the enforcement of jurisdiction agreements under Iranian law. This study investigates whether parties in international disputes can agree to confer jurisdiction to Iranian non-competent courts and whether they can agree to exclude the jurisdiction of competent Iranian courts in favour of foreign courts. The study contends that parties can agree to grant jurisdiction to Iran’s non-competent courts unless the excluded foreign court has exclusive jurisdiction to hear the dispute. On the other hand, parties may agree to exclude the jurisdiction of the competent Iranian courts in favour of foreign courts unless the Iranian courts assert exclusive jurisdiction over the dispute.

Alexander A. Kostin and Daria D. Kuraksa, International treaties on assistance in civil matters and their applicability to recognition of foreign judgments on the opening of insolvency proceedings (reflections regarding the Russian national and international experience)

The article examines the question of admissibility of recognition of foreign judgments on commencement of bankruptcy proceedings on the basis of international treaties on legal assistance. It examines the background of these international treaties, as well as the practice of their application in respect of this category of foreign judgments. The authors conclude that foreign court decisions on opening of insolvency (bankruptcy) proceedings should be regarded as “judgments in civil matters” for the purpose of the international treaties on legal assistance. This category of foreign judgments should be recognised on the basis of international treaties in the Russian Federation, despite the existing approach of Russian courts (including the Judgment of the Arbitrazh (Commercial) Court of the Ural District of 09.10.2019 in case No. A60-29115/2019).

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

Th. Pfeiffer, Judicial Presumptions: Finding of Facts or Application of Law? The characterization of so-called factual presumptions in private international law

This article discusses whether so-called factual presumptions and prima facie-evidence rules qualify as substantive or procedural rules for choice of law purposes. Having analyzed typical situations such as rear-end collisions and the use of standard terms as well as provisions in the Rome I- and II-Regulation, differentiated solution is submitted: Factual presumptions and prima facie evidence are to be qualified procedurally, unless they are exceptionally based on a specific substantive rationale and not on fact related judicial experience.

D. Moura Vicente, The Role of the Brussels I-bis Regulation in European Private International Law and the Challenges Facing it

The 1968 Brussels Convention sought to promote mutual trust between Member States in jurisdictional matters by adopting uniform rules on judicial competence in civil and commercial matters, with a view to implementing a principle of automatic recognition of foreign judgments among them. Such rules could however be formulated only in respect of a limited number of subjects, which explains the Convention’s relatively narrow scope of application. Over the half century since the Brussels Convention’s conclusion, both its nature and that of the Regulations that succeeded it have changed substantially. From an instrument originally restricted to patrimonial matters, the Convention and its successor Regulations became the backbone of a system aimed at ensuring the free movement of judgments and judicial cooperation in a broad spectrum of matters. The Brussels I-bis Regulation has provided the conceptual foundations of the other instruments that integrate that system, which at times replicate its notions and rules or simply refer to it, thereby ensuring the system’s coherence. The Regulation has moreover had a modernising effect on the domestic legal systems of its Member States. The Regulation’s referential role in European Private International Law role nevertheless faces significant challenges arising inter alia from certain shortcomings of its substantive and subjective scope of application, as well as of the available heads of jurisdiction under its rules. It is submitted that these challenges, which this paper seeks to identify, call for a limited reform of the Regulation, the opportunity for which is provided by its review as foreseen in Article 79.

A. Dutta, Reform of German private international law for the names of persons

German private international law dedicates much (probably too much) attention to the names of persons. Based on earlier ideas for a European instrument on the law applicable to names and taking into account the current debate on German substantive law, the article argues for at least a unilateral reform of the current German conflict rules, in particular, for replacing nationality by habitual residence as the primary connecting factor and for a new approach to party autonomy.

T. Helms, German Private International Law and Co-Parenthood

German law of descent does not recognise co-parenthood between two women or two men. This article examines the conditions under which co-parenthood is nevertheless accepted in international cases on the basis of German Private International Law.

M. Pika, On the pathway to European arbitration law or to non-European seats?

In Prestige, the CJEU held that judgments confirming arbitral awards under sect. 66(2) English Arbitration Act 1996 are “decisions” for the purposes of Art. 45(1) lit. c Brussels Ibis-Regulation. In addition, the CJEU held that those judgments cannot prevent recognition of an irreconcilable, earlier judgment if the arbitral tribunal (i) disregarded the lis pendens principles of the Brussels Ibis-Regulation and/or (ii) unduly extended the arbitration agreement to third parties. This is the most significant restriction of the Brussels Ibis-Regulation’s carve-out of arbitration matters in Art. 1(2) lit. d ever since the West Tankers judgment.

T. Kindt, The Pechstein-Decision of the German Federal Constitutional Court

In a long-awaited decision on June 3, 2022, the German Federal Constitutional Court annulled the contested Pechstein-judgment of the German Federal Court of Justice from 2016 that had upheld the validity of an arbitration agreement between Germany’s most prominent speed skater and the International Skating Union (ISU) in favor of the Court of Arbitration for Sport (CAS) in Lausanne. The Constitutional Court holds that the Federal Court of Justice failed to attribute sufficient weight to the claimant’s right to a public hearing as part of her fundamental right of access to justice. Considering the imbalance of power in the contractual relationship between individual athletes and international sports federations, a resort to arbitration could only be accepted if the arbitral proceeding lives up to the minimum standards of constitutionally protected procedural safeguards. In the Constitutional Court’s view, this requirement had not been met by the applicable procedural rules of the CAS at the time, given that they did not provide individual athletes with the right to one-sidedly request a public hearing. This paper argues that the Constitutional Court’s decision, despite its laudable intentions, leaves more questions open than it answers (especially with regard to the question of impartiality and neutrality of the CAS), fails to take into account an important trait of the international arbitral system and will likely only be of limited importance for the further reform of sports arbitration.

R. Geimer, Exclusive international Jurisdiction of Germany based on article 25 (1) Brussels I bis-Regulation without an additive prorogation of a local forum

A German Company registered in Mannheim and a Spanish Company registered in Barcelona had prorogated “the civil courts in Frankfurt, Germany” in a International Distributor Agreement (IDA). It was unclear, which Frankfurt was chosen: Frankfurt on the Main or Frankfurt on the Or? The Higher Regional Court of Frankfurt on the Main ruled that Frankfurt on the Main is the prorogated forum arguing as follows: The representatives on the Spanish Company came by plane over the airport Frankfurt on the Main to Mannheim for signing the International Distributor Agreement including the prorogation clause. They did not know anything about Frankfurt on the Or. Therefore also the representatives of the Spanish Company have nominated Frankfurt on the Main as the exclusively competent forum.

L. Hornkohl, Group Liability in EU Competition Law and International Jurisdiction

In Sumal, the ECJ for the first time applied the single economic entity doctrine in private enforcement of competition law towards corporate groups. According to the ECJ, a subsidiary is liable for the cartel violations of the parent company in descending order if the parent and subsidiary are linked by corresponding economic, organisational and legal relationships. Furthermore, the ECJ requires a connection between the economic activity of the subsidiary and the object of the parent’s infringement to transfer liability. The case law in Sumal has severe international and local jurisdictional consequences. Especially concerning EU-wide cartel agreements, the jurisprudence gives claimants the possibility to sue each legal entity belonging to a single economic entity jointly and severally and thus offers huge potential for forum shopping under the Brussels Ibis Regulation.

C. Mayer, (Supposed) Competing paternities in private international law

Time and again, German courts are confronted with cases in which, as a result of the alternative links in Art. 19 Para. 1 EGBGB, several legal systems are applicable to the parentage of a child. This can result in the child being assigned different legal fathers. The German Federal Court of Justice has already had several opportunities to comment on such conflicting paternity situations and to develop basic structures. Its decision to be discussed here regarding a postnatal acknowledgment of paternity, which competes with a presumption of paternity, fits seamlessly into this line of case law, but raises the interesting question as to where newborns have their habitual residence at the time of birth. The Higher Regional Court Brandenburg, on the other hand, had to clarify the more difficult constellation of whether a prenatal acknowledgment of paternity can take precedence over a presumption of parentage resulting from foreign law, although both become effective at the same time at birth.

D. Henrich, Recognition of private divorces

Private divorces are divorces not by judgment but by agreement of the parties. Art. 21 of the Brussels IIa-Regulation prescribes the automatic recognition of all Member States decisions without any procedure being required. Whether this includes the recognition of non-judicial divorces was unclear. The European Court of Justice decided, that whenever a Member State provides a special proceeding for the recognition of a private divorce, the recognition is a question of procedural law. Whenever a civil status officer of a Member State records the agreement of the parties about their divorce and the parties confirm that the procedure has been performed according to the regulations of the Member State, the record is a judgment in the sense of Art. 2 No. 4 of the Brussels IIa-Regulation. Object of the recognition is here not the decision of a court but a special procedure.

P. Scholz, Mandatory Family Protection in Succession and Ordre Public

In almost every jurisdiction today, rules on mandatory family protection qualify the principle of freedom of testation. However, not only the beneficiaries of such laws vary from country to country. Moreover, over time, different systems of mandatory protection have evolved – and they span from fixed shares in the testator’s estate (like in Austria, Germany, or France) to needs-based judicial awards for the testator’s next of kin (like in England or New Zealand). Under the choice of law regime of the EU Succession Regulation, courts in fixed-share systems will eventually have to decide whether the application of needs-based rules is incompatible with the forum’s public policy where such laws do not result in sufficient claims of the disinherited next of kin. On February 2, 2021, Austria’s Supreme Court positioned itself against such ideas. This stands in stark contrast to the decision of the Cologne Higher Regional Court issued just a few weeks afterwards, which the German High Court upheld with a questionable judgement of June 29, 2022.

The first issue of the Revue critique de droit international privé of 2023 is primarily dedicated to the Restatement Third of Conflict of Laws.

Restatement Third

Lea Brilmayer (Yale) starts the discussion with an article on The (Third) Restatement of Conflicts and “The Ordinary Processes of Statutory Construction”. 

One of the reporters of the Restatement, Kermitt Rooselvet III (UPenn), then offers a short response: Third Restatement and Method : A Response from Kermitt Roosevelt III.

Three articles follow on more specific topics: Maggie Mills, Statutes of limitation and the substance-procedure dichotomy: a missed opportunity; Sarah Quinn, How should a state choose when to apply foreign law? Comparing answers from the American Law Institute’s Third Restatement and Rome II in the European Union; Catherine Lee, A Cross-Border Maze: Remote Work, Employment Contracts, and the Draft Restatement (Third) of Conflict of Laws.

Other articles

The issues contains two other articles and a number of case notes.

In the first article, Christelle Chalas (University of Lille) offers a comparative analysis of protection measures of children wrongfully removed under the 1980 Hague Convention after the judgement of the U.S. Supreme Court in Golan v. Saada (Les mesures de protection de l’enfant illicitement déplacé et le risque grave de danger : comparaison de l’office des juges américains et européens).

In the second article, Baptiste Delmas (Paris I University) discusses the emergence of exequatur actions in transnational labour law.

The full table of contents can be found here.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

H.-P. Mansel, K. Thorn and R. Wagner, European conflict of laws 2022: Movement in international family law

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2022 until December 2022. It presents newly adopted legal instruments and summarizes current projects that are making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss important decisions and pending cases before the CJEU pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

N. Elsner and H. Deters, Of party requested service by post and courts as transmitting agencies under the EU Service Regulation

On 1 July 2022, the EU Regulation on the Service of Documents No. 1784/20 (Recast) (EU Service Regulation) took effect and changed the law on service by postal services in cross-border proceedings. This calls for a revisiting of the divergent opinions and ways of interpretation of service by postal services according to Art. 14 EU Service Regulation 2007 and its relation to Art. 15 EU Service Regulation 2007. Against this background, this article discusses a decision of the Higher Regional Court Frankfurt (OLG Frankfurt) holding that service by postal services pursuant to Art. 14 EU Service Regulation 2007 is in principle only open to a court when effecting service in cross-border proceedings. A party shall affect service according to Art. 15 EU Service Regulation 2007 by contacting directly the foreign authorities designated to effect service in the other member state.
Firstly, the reasoning of the court and the opinions in legal scholarship on the admissibility of service by postal services effected by parties are assessed critically. Subsequently, the authors propose a different application of Art. 14 and 15 EU Service Regulation 2007 in Germany. It will be argued that the OLG Frankfurt was indeed correct in stating that service by postal services must be effected through a transmitting agency according to Art. 2 EU Service Regulation 2007. Under German law, only courts are considered transmitting agencies. However, this does not preclude parties from effecting this type of service. When parties are required to effect service themselves under German law, they may send the documents to the court, inform the court of the address of the other party and apply for service in accordance with Art. 14 EU Service Regulation 2007. The court then acts as a mere transmitting agency on behalf of the party, and thus, in its administrative capacity.

S. Schwemmer, Direct tort claims of the creditors of an insolvent company against the foreign grandparent company

In its ruling of 10 March 2022 (Case C-498/20 – ZK ./. BMA Nederland), the ECJ had to deal with a so-called Peeters/Gatzen-claim under Dutch law brought by the insolvency administrator. The court had already ruled in an earlier judgement that these claims fall under the Brussels I Regulation (recast). So the main question was now where the harmful event occurred within the meaning of Art. 7 para. 2 of the Regulation. The ECJ opts for the seat of the insolvent company, basing its analysis on the differentiation between primary damage and consequential damage. The same analysis is also used to determine the applicable law under the Rome II Regulation. In this context, however, the ECJ examines more closely the specific breach of duty of care to determine whether the claim falls under the scope of the Rome II Regulation or under the rules of international company law.

A. Kronenberg, Disapproved overriding mandatory provisions and factual impossibility

Two years after the Higher Regional Court (Oberlandesgericht, OLG) of Frankfurt am Main, the OLG Munich also had to rule on a lawsuit filed by an Israeli against Kuwait Airways. The plaintiff had demanded to be flown from Munich to Sri Lanka with a stopover in Kuwait City in accordance with the contract the parties had concluded. The OLG Munich dismissed the claim with regard to a Kuwaiti Israel boycott law, which, although inapplicable, according to the court had the effect that it was factually impossible for the defendant airline to transport Israeli nationals with a stopover in Kuwait. The ruling shows that in cases of substantive law level consideration of disapproved foreign overriding mandatory provisions the legally required result can be undesirable. However, this result depends on the circumstances of the individual case as well as on certain prerequisites that must be observed when taking into consideration overriding mandatory provisions. The article sets out these prerequisites and shows why the OLG Munich probably should have ordered the defendant to perform its obligation. It also explains why, in cases in which factual impossibility indeed exists, the result of the dismissal of the action most likely cannot be changed even by enacting a blocking statute.

C. Thomale and C. Lukas, The pseudo-foreign British one man-LLC

The Higher Regional Court of Munich has decided that a Bristish one man-LLC, which has its real seat in Germany, under German conflict of laws and substantive rules lacks legal personality altogether. This case note analyzes this decision’s implications for the conflict of company laws, notably for the interpretation of the TCA and application of the so-called “modified real seat theory”.

M. Brinkmann, Discharge in England and subsequent declaratory judgement against debtor in Germany – Binding effects of judgement trump recognition of prior bankruptcy proceedings

The Higher Regional Court Düsseldorf (OLG Düsseldorf) had to decide upon an action for the payment of damages based on a declaratory judgement. The declaratory judgement had established the defendant’s liability and was, at the time, not challenged by the defendant. In his defense against the action for payment the defendant now tries to invoke a discharge, which he had already obtained in insolvency proceedings in the UK in March 2012, i.e. prior to the declaratory judgement.
The OLG argued that under the applicable EIR, the English insolvency proceedings were, in principle, subject to automatic recognition. Under Art. 17 EIR 2002, these proceedings produce the same effects in all Member States. The OLG Düsseldorf nevertheless precluded the defendant from invoking the discharge. As the English bankruptcy proceedings were concluded before the action for the declaratory judgement was initiated, the defendant should have invoked the discharge already in the proceedings that led to the declaratory judgement in March 2013.
The OLG correctly found that the declaratory judgement was procedurally binding between the parties and hence barred the defendant from invoking the discharge in subsequent proceedings.

M. Andrae, Modification or suspension of enforcement of a decision under Article 12 of the Hague Child Abduction Convention?

The article discusses which procedural options exist if, after a final decision pursuant to 12 Hague Convention on the Civil Aspects of International Child Abduction, circumstances arise which would justify the refusal of an application for the return of the child. A procedure to change the decision is only permissible if the international jurisdiction of the German courts exists. For child abduction from EU Member States, this is determined in principle according to Art. 9 of the Regulation (EU) n 1111/2019 and for child abduction from other Contracting States of The Hague Protection of Children Convention according to Art. 7 of the Convention. As long as jurisdiction thereafter lies with the courts of the state in which the child was habitually resident immediately before the removal or retention keep, the German courts are limited to ordering the temporary stay of enforcement.

J. Oster, Facebook dislikes: The taming of a data giant through private international data protection law

Just as the Data Protection Directive 95/46/EC, the General Data Protection Regulation (GDPR) suffers from a deficit concerning both its public and its private enforcement. Among other things, this deficit is owed to the fact that European data protection law still raises many questions regarding jurisdiction and the applicable law. In its interlocutory judgment that will be discussed in this article, the Rechtbank Amsterdam established its jurisdiction and declared the GDPR as well as Dutch data protection and tort law applicable to a lawsuit by the Dutch Data Protection Foundation for alleged violations of rules of data protection and unfair competition. This article agrees with the Rechtbank’s findings, but it also draws attention to weaknesses in its reasoning and to unresolved questions of European private international data protection law.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

R. Wagner, European account preservation orders and titles from provisional measures with subsequent account attachments

The enforcement of a claim, even in cross-border situations, must not be jeopardised by the debtor transferring or debiting funds from his account. A creditor domiciled in State A has various options for having bank accounts of his debtor in State B seized. Thus, he can apply for an interim measure in State A according to national law and may have this measure enforced under the Brussels Ibis Regulation in State B by way of attachment of accounts. Alternatively, he may proceed in accordance with the European Account Preservation Order Regulation (hereinafter: EAPOR). This means that he must obtain a European account preservation order in State A which must be enforced in State B. By comparing these two options the author deals with the legal nature of the European account preservation order and with the subtleties of enforcement under the EAPOR.

H. Roth, The “relevance (to the initial legal dispute)” of the reference for a preliminary ruling pursuant to Article 267 TFEU

The preliminary ruling procedure under Article 267 of the Treaty on the Functioning of the European Union (TFEU) exists to ensure the uniform interpretation and application of EU law. The conditions under which national courts may seek a preliminary ruling are based on the established jurisdiction of the European Court of Justice (CJEU) and are summarised in Article 94 of the Rules of Procedure of the CJEU. One such condition is that the question referred to the court must be applicable to the decision in the initial legal dispute. Any future judgement by the referring court must thereafter be dependant on the interpretation of Union law. When cases are obviously not applicable, the European Court dismisses the reference for a preliminary ruling as inadmissible. The judgement of the CJEU at hand concerns one of these rare cases in the decision-making process. The sought-after interpretation of Union law was not materially related to the matter of the initial legal dispute being overseen by the referring Bulgarian court.

S. Mock and C. Illetschko, The General International Jurisdiction for Legal Actions against Board Members of International Corporations – Comment on OLG Innsbruck, 14 October 2021 – 2 R 113/21s, IPRax (in this issue)

In the present decision, the Higher Regional Court of Innsbruck (Austria) held that (also) Austrian courts have jurisdiction for investors lawsuits against the former CEO of the German Wirecard AG, Markus Braun. The decision illustrates that the relevance of the domicile of natural persons for the jurisdiction in direct actions for damages against board members (Art 4, 62 Brussels Ia Regulation) can lead to the fact that courts of different member states have to decide on crucial aspects of complex investor litigation at the same time. This article examines the decision, focusing on the challenges resulting from multiple residences of natural persons under the Brussels Ia Regulation.

C. Kohler, Lost in error: The ECJ insists on the “mosaic solution” in determining jurisdiction in the case of dissemination of infringing content on the internet

In case C-251/20, Gtflix Tv, the ECJ ruled that, according to Article 7(2) of Regulation No 1215/2012, a person, considering that his or her rights have been infringed by the dissemination of disparaging comments on the internet, may claim, before the courts of each Member State in which those comments are or were accessible, compensation for the damage suffered in the Member State of the court seized, even though those courts do not have jurisdiction to rule on an application for rectification and removal of the content placed online. The ECJ thus confirms the “mosaic solution” developed in case C-509/09 and C-161/10, eDate Advertising, and continued in case C-194/16, Bolagsupplysningen, for actions for damages for the dissemination of infringing contents on the internet. The author criticises this solution because it overrides the interests of the sound administration of justice by favouring multiple jurisdictions for the same event and making it difficult for the defendant reasonably to foresee before which court he may be sued. Since a change in this internationally isolated case law is unlikely, a correction can only be expected from the Union legislator.

T. Lutzi, Art 7 No 2 Brussels Ia as a Rule on International and Local Jurisdiction for Cartel Damage Claims

Once again, the so-called “trucks cartel” has provided the CJEU with an opportunity to clarify the interpretation of Art. 7 No. 2 Brussels Ia in cases of cartel damage claims. The Court confirmed its previous case law, according to which the place of damage is to be located at the place where the distortion of competition has affected the market and where the injured party has at the same time been individually affected. In the case of goods purchased at a price inflated by the cartel agreement, this is the place of purchase, provided that all goods have been purchased there; otherwise it is the place where the injured party has its seat. In the present case, both places were in Spain; thus, a decision between them was only necessary to answer the question of local jurisdiction, which is also governed by Art. 7 No. 2 Brussels Ia. Against this background, the Court also made a number of helpful observations regarding the relationship between national and European rules on local jurisdiction.

C. Danda, The concept of the weaker party in direct actions against the insurer

In its decision T.B. and D. sp. z. o. o. ./. G.I. A/S the CJEU iterates on the principle expressed in Recital 18 Brussels I bis Regulation that in cross-border insurance contracts only the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules. In the original proceedings – a joint case – the professional claimants had acquired insurance claims from individuals initially injured in car accidents in Poland. The referring court asked the CJEU (1) if such entities could be granted the forum actoris jurisdiction under Chapter II section 3 on insurance litigation against the insurer of the damaging party and (2) if the forum loci delicti jurisdiction under Art. 7(2) or 12 Brussels I bis Regulation applies under these conditions. Considering previous decisions, the CJEU clarified that professional claimants who regularly receive payment for their services in form of claim assignment cannot be considered the weaker party in the sense of the insurance section and therefore cannot rely on its beneficial jurisdictions. Moreover, the court upheld that such claimants may still rely on the special jurisdiction under Art. 7(2) Brussels I bis Regulation.

C. Reibetanz, Procedural Consumer Protection under Brussels Ibis Regulation and Determination of Jurisdiction under German Procedural Law (Sec. 36 (1) No. 3 ZPO)

German procedural law does not provide for a place of jurisdiction comparable to Article 8 (1) Brussels Ibis Regulation, the European jurisdiction for joinder of parties. However, according to Sec. 36 ZPO, German courts can determine a court that is jointly competent for claims against two or more parties. In contrast to Art. 8 (1) Brussels Ibis Regulation, under which the plaintiff has to choose between the courts that are competent, the determination of a common place of jurisdiction for joint procedure under German law is under the discretion of the courts. Since EU law takes precedence in its application over contrary national law, German courts must be very vigilant before determining a court at their discretion. The case is further complicated by the fact that the prospective plaintiff can be characterised as a consumer under Art. 17 et seq. Brussels Ibis Regulation. The article critically discusses the decision of the BayObLG and points out how German judges should approach cross-border cases before applying Sec. 36 ZPO.

M.F. Müller, Requirements as to the „document which instituted the proceedings“ within the ground for refusal of recognition according to Art 34 (2) Brussels I Regulation

The German Federal Court of Justice dealt with the question which requirements a document has to comply with to qualify as the “document which instituted the proceedings” within the ground for refusal of recognition provided for in Art 34 (2) Brussels I Regulation regarding a judgment passed in an adhesion procedure. Such requirements concern the subject-matter of the claim and the cause of action as well as the status quo of the procedure. The respective information must be sufficient to guarantee the defendant’s right to a fair hearing. According to the Court, both a certain notification by a preliminary judge and another notification by the public prosecutor were not sufficiently specific as to the cause of action and the status quo of the procedure. Thus, concerning the subject matter of the claim, the question whether the “document which instituted the proceedings” in an adhesion procedure must include information about asserting civil claims remained unanswered. While the author approves of the outcome of the case, he argues that the Court would have had the chance to follow a line of reasoning that would have enabled the Court to submit the respective question to the ECJ. The author suggests that the document which institutes the proceedings should contain a motion, not necessarily quantified, concerning the civil claim.

B. Steinbrück and J.F. Krahé, Section 1032 (2) German Civil Procedural Code, the ICSID Convention and Achmea – one collision or two collisions of legal regimes?

While the ECJ in Achmea and Komstroy took a firm stance against investor-State arbitration clauses within the European Union, the question of whether this will also apply to arbitration under the ICSID Convention, which is often framed as a “self-contained” system, remains as yet formally undecided. On an application by the Federal Republic of Germany, the Berlin Higher Regional Court has now ruled that § 1032 (2) Civil Procedural Code, under which a request may be filed with the court to have it determine the admissibility or inadmissibility of arbitral proceedings, cannot be applied to proceedings under the ICSID Convention. The article discusses this judgment, highlighting in particular that the Higher Regional Court chooses an interpretation of the ICSID Convention which creates a (presumed) conflict between the ICSID Convention and German law, all the while ignoring the already existing conflict between the ICSID Convention and EU law.

L. Kuschel, Copyright Law on the High Seas

The high seas, outer space, the deep seabed, and the Antarctic are extraterritorial – no state may claim sovereignty or jurisdiction. Intellectual property rights, on the other side, are traditionally territorial in nature – they exist and can be protected only within the boundaries of a regulating state. How, then, can copyright be violated aboard a cruise ship on the high seas and which law, if any, ought to be applied? In a recent decision, the LG Hamburg was confronted with this quandary in a dispute between a cruise line and the holder of broadcasting rights to the Football World Cup 2018 and 2019. Unconvincingly, the court decided to circumnavigate the fundamental questions at hand and instead followed the choice of law agreement between the parties, in spite of Art. 8(3) Rome II Regulation and opting against the application of the flag state’s copyright law.

T. Helms, Validity of Marriage as Preliminary Question for the Filiation and the Name of a Child born to Greek Nationals in Germany in 1966

The Higher Regional Court of Nuremberg has ruled on the effects of a marriage on the filiation and the name of a child born to two Greek nationals whose marriage before a Greek-orthodox priest in Germany was invalid from the German point of view but legally binding from the point of view of Greek law. The court is of the opinion that – in principle – the question of whether a child’s parents are married has to be decided independently applies the law which is applicable to the main question, according to the conflict of law rules applicable in the forum. But under the circumstances of the case at hand, this would lead to a result which would be contrary to the jurisprudence of the Court of Justice on names lawfully acquired in one Member State. Therefore – as an exception – the preliminary question in the context of the law of names has to be solved according to the same law which is applicable to the main question (i.e. Greek law).

K. Duden, PIL in Uncertainty – failure to determine a foreign law, application of a substitute law and leaving the applicable law open

A fundamental concern of private international law is to apply the law most closely connected to a case at hand – regardless of whether this is one’s own or a foreign law. The present decision of the Hanseatic Higher Regional Court as well as the proceedings of the lower court show how difficult the implementation of this objective can become when the content of the applicable law is difficult to ascertain. The case note therefore first addresses the question of when a court should assume that the content of the applicable law cannot be determined. It examines how far the court’s duty to investigate the applicable law extends and argues that this duty does not seem to be limited by disproportionate costs of the investigative measures. However, the disproportionate duration of such measures should limit the duty to investigate. The comment then discusses which law should be applied as a substitute for a law whose content cannot be ascertained. Here the present decision and the proceedings in the lower court highlight the advantages of applying the lex fori as a substitute – not as an ideal solution, but as the most convincing amongst a variety of less-than-ideal solutions. Finally, the note discusses why it is permissible as a matter of exception for the decision to leave open whether German or foreign law is applicable.

M. Weller, Kollisionsrecht und NS-Raubkunst: U.S. Supreme Court, Entscheidung vom 21. April 2022, 596 U.S. ____ (2022) – Cassirer et al. ./. Thyssen-Bornemisza Collection Foundation

In proceedings on Nazi-looted art the claimed objects typically find themselves at the end of a long chain of transfers with a number of foreign elements. Litigations in state courts for recovery thus regularly challenge the applicable rules and doctrines on choice of law – as it was the case in the latest decision of the U.S. Supreme Court in Cassirer. In this decision, a very technical point was submitted to the Court for review: which choice-of-law rules are applicable to the claim in proceedings against foreign states if U.S. courts ground their jurisdiction on the expropriation exception in § 1605(3)(a) Federal Sovereign Immunities Act (FSIA). The lower court had opted for a choice-of -aw rule under federal common law, the U.S. Supreme Court, however, decided that, in light of Erie and Klaxon, the choice-of-law rules of the state where the lower federal courts are sitting in diversity should apply.

The third issue of the Belgian Revue de droit international privé / Tijdschrijft voor international privaatrecht is now available online. The issue contains a selection of ECHR, CJEU, and Belgian national case law posing various problems of private international law.

The ECHR selected cases concern the application of Article 8 ECHR on the right to family life and matters of filiation by surrogacy, the recognition and enforcement of a decision for the return of a child, an international adoption at which the biological father was opposed to, and Article 6 ECHR on access to a fair trial in relation to the application of the 1970 Hague Taking of Evidence Convention.

The CJEU case law selection makes reference to:

• the choice of court clause in the framework of the 2007 Lugano Convention (C-358/21, Tilman);
• the notion of ‘unaccompanied minor’ and the marriage of a minor refugee on the territory of Belgium that does not recognise such a marriage (C-230/21, X v Belgium);
• the recognition of an extrajudicial divorce decision based on an agreement between the spouses before a civil registrar (C-646/20, Senatsverwaltung für Inneres und Sport);
• the employment protection mechanism under Brussels I-bis Regulation (C–604/20, ROI Land Investments);
• the responsibility of an airline company under the 1999 Montreal Convention for bodily injure (post-traumatic stress disorder) suffered by a passenger during an emergency evacuation of an aircraft (C-111/21, BT v Laudamotion);
• the EU trademark protection according to Regulation (EU) 2017/1001 (C-256/21) KP v TV);
• the enforcement in another Member State of an arbitral award for damages based on a bilateral investment treaty (C-333/19, Romatsa);
• the application of Regulation (CE) 261/2004 to delays related to a flight between two airports situated in a third country (c-561/20 Q, R and S v United Airlines);
• the application of Article 7(2) Brussels I-bis Regulation in a collective action for damages against the grandparent company of a daughter insolvent company (Dutch ‘Peeters-Gatzen’ action) for restoring recovery opportunities for creditors (C–498/20, ZK v BMA);
• the clarification of the notion of pending lawsuits within the meaning of Article 292 Solvency II Directive for a winding-up decision abroad on an insurance compensation claim (C–724/20, Paget Approbois);
• the protection against the effects of the extraterritorial application of legislation adopted by the US against Iran concerning commercial relations with certain Iranian undertakings (C-124/20, Bank Melli Iran); and
• the effects of a European certificate of succession and its certified copy valid for an ‘unlimited’ period issued on the application of one of the two heirs concerned by the proceedings (C-301/20, UE and HC v Vorarlberger Landes- und Hypotheken-Bank).

The selection of the Belgian national case law contains several Court of Cassation decisions:

• one (Cour de Cassation, arrêt du 15 septembre 2022) assesses the jurisdiction of Belgian courts over an alleged tort and localisation of damages within the framework of Article 5(3) of the 2007 Lugano Convention in a claim involving UEFA and URBSFA regarding rules of the Financial Fair Play Regulation as contrary to EU public policy (Articles 101 and 102 TFEU). For this case several questions were sent for interpretation of the CJEU in a preliminary ruling regarding the application of Article 5(3) of the 2007 Lugano Convention in relation to a concerted practice of establishing the price of the tickets for football games and the loss of opportunities for football agents to conclude deals or their conclusion under less attractive conditions, the places where these damages take place, and whether reparation can be claimed from the national association (URBSFA) as jointly liable with UEFA;
• the second selected decision (Cour de Cassation, arrêt du 20 mai 2022) deals with the interpretation of the habitual residence of a child and parental responsibility within the framework of Article 8(1) Brussels II-bis Regulation and Article 5 of the 1996 Hague Convention in a case involving a Ukrainian mother and wife of a Belgian citizen who after a forth months stay in Ukraine with the couple’s two children refuses to return to Belgium;
• the third Court of Cassation case (Hof van Cassatie, arrest van 28 April 2022) poses an issue of international competence under Article 1 Brussels I-bis Regulation or Article 1 European Insolvency Regulation (Regulation 1346/2000) with regard to a decision in a Dutch insolvency procedure; and
• the forth selected decision (Cour de Cassation, arrêt du 3 juin 2021) concerns a situation requiring to determine whether the Belgian lex fori is applicable for reasons of urgency and public policy if the content of the provisions of the foreign law (i.e. Nigerian law) regarding the Muslim custom of Djerma as a regime of separation of financial assets of a couple following divorce or repudiation cannot be clearly proven before the Belgian court given the evolutive nature of the practice.

In addition, a number of Court of Appeal decisions were selected. These concern:

• a decision by the Brussels Court of Appeal (arrêt du 3 février 2022) on a case involving a paternity dispute in which the father declared a child to be his own and the alleged conflict of the Guinean law that does not allow the mother to subsequently contest the paternity with Article 22bis of the Belgian Constitution which gives priority to the highest interest of the child and Article 62(1) of the Belgian Code of Private International Law regarding the consent of the child Belgian national who has her habitual residence in Belgium;
• two decisions of the Court of Appeal of Liege. One (arrêt du 22 juin 2021) regards the application of the Brussels II-bis Regulation, Rome II Regulation and Regulation on matrimonial Regimes on the law applicable and competence regarding a divorce procedure for two Belgian nationals who married in Turkey. The other (arrêt du 20 janvier 2021) concerns matters of parental responsibility involving the application of Brussels II-bis Regulation and the 1996 Hague Convention on parental responsibility and protection of children.

Together with these a number of first instance decisions were selected for the interesting issues that they raise related to recognition of marriages celebrated abroad, name status and rectification of a foreign certificate of birth, maintenance, and choice of jurisdiction clause with regard to Article 25 and 8 of the Brussels I-bis Regulation.

The last part of the review is dedicated to EU and national legislative developments. This issue addresses the Decision (EU) 2022/1206 concerning the accession of the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Hague Judgments Convention), the Belgian Law putting into application the Regulation (EU) 2019/1111 on the on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), the Belgian Law of 20 July 2022 on the status and supervision of brokerage firms, and the European Commission Proposal of 7 December 2022 for a a Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood (COM(2022)695 final).

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published on 1 November 2022. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

U. Janzen and R. Wagner, The German implementing rules for the Brussels II ter Regulation

When the original version of the Brussels II Regulation was adopted in 2000, it was not certain whether this regulation would be such a success. In the meantime, the regulation has become one of the most important legal instruments for judicial cooperation in civil matters. The regulation has recently been revised for the second time. The following article presents the German implementing rules for this recast.

R. Magnus, A new Private International Law and new Procedural Rules for Adoptions in Germany

As a result of two recent reforms the German private international and procedural laws applicable to adoptions have changed quite substantively. Article 22 (1) sentence 1 of the Introductory Act to the German Civil Code (EG-BGB) now refers to the lex fori as the law applicable for all domestic procedures, and section 1 (2) of the Adoption effects Act (AdWirkG) introduces an obligatory recognition procedure for many foreign adoptions. The effects of these and other innovations are examined and evaluated in detail in this article.

H.-P. Mansel, Liberalization of the Private International Law of Marriage and Registered Civil Partnership: Remarks on the Place of Marriage and Registration as Connecting Factors

According to the new proposal of the German Council for Private International Law, the law of the “place of marriage” is to govern the establishment of a marriage or registered civil partnership. The article deals with this proposal and explores the question of how this place is to be determined in the case of an online marriage. It argues for the application of the law of the state where the register is kept.

B. Laukemann, Protecting procedural confidence against the insolvency estate?

According to Union law, the effects of insolvency proceedings on a pending lawsuit are governed by the lex fori – and thus not by the law of the opening Member State (s. Art. 18 European Insolvency Regulation [EIR], Art. 292 Directive 2009/138, Art. 32 Directive 2001/24). At first glance, the distinction between the lex fori and the lex concursus raised here does not cause any major problems of interpretation. But can the lex fori and its regulatory purpose, which is to guarantee protection of confidence and legal certainty in civil proceedings, also be brought into position against the liability regime of foreign insolvency proceedings? A look at Art. 7(2)(c) EIR, which, in turn, allocates procedural powers of a debtor and insolvency practitioner to the lex fori concursus, reveals the difficulties of a clear-cut demarcation between the law of the forum and the law governing insolvency proceedings. The present contribution seeks to pursue this classification problem, equally relevant in legal and practical terms, for the relevant pieces of secondary EU legislation. Recently, this legal question was submitted to the CJEU – due to the liquidation of an insurance company within the scope of the Solvency II Directive. The decision gives rise to critically examine the delimitation approach of the CJEU and to ask in general how the protection of procedural confidence, on the one hand, and insolvency-related liability interests of the creditors, on the other, can be brought into an appropriate balance.

J. Kondring, International Service by WhatsApp: Reflections on the Hague Service Convention and the 1928 Anglo-German Convention in Judgement and Recognition Proceedings

In times of electronic communication, the question arises whether cross-border service by means of electronic communication is possible. The Higher Regional Court (OLG) of Frankfurt a.M. had to decide this question in recognition proceedings for a Canadian-German service by WhatsApp. Neither the Hague Service Convention nor bilateral agreements such as the Anglo-German Convention of 1928 allow service by WhatsApp. In this respect, the article also ex-amines the interaction of section 189 German Code of Civil Procedure (ZPO) and Art. 15 of the Hague Service Convention in both judgment and recognition proceedings, including the relationship to the parallel Anglo-German Convention of 1928. In certain cases, Art. 15 of the Hague Service Convention moves aside and “neutralises” section 189 German Code of Civil Procedure and its legal consequences. For the recognition proceedings, Art. 15 of the Hague Service Convention will also have to be taken into account in the context of the examination of the regularity of service of the document instituting the proceedings.

S. Arnold, Applicability of Article 15(1)(c) Lugano II in cases of subsequent relocation of consumers

In its judgment (C-296/20), the ECJ follows the consumer-friendly course already taken in the mBank decision. It interpreted Article 15(1)(c) Lugano II (and by doing so also the corresponding Article 17(1)(c) Brussels Ibis Regulation). The court clarified that the provision governs the jurisdiction of a court also in such cases where a consumer who has contracted with a professional counterparty subsequently relocates to another contracting State. Thus, it is not necessary for the cross-border activities of the professional party to have already existed at the time the contract was concluded. Rather, the subsequent move of the consumer also constitutes the “pursuit” of the professional or commercial activity in the consumer’s member state. Consequently, the court strengthens the position of consumers. Even in the event of a subsequent move, they can rely on the (passive) forum of protection of Article 16(2) Lugano II and the (active) forum of Article 16(1) Lugano II at their place of residence. The burden that this decision places on the professional counterparty – the risk of foreign litigation even if the matter was purely domestic at the time the contract was concluded – seems reasonable, as choice of forum agreements (Art. 17 No. 3 Lugano II) remain possible as a means of protection.

A. Staudinger and F. Scharnetzki, The applicable law for the internal settlement between two liability insurances of a tractor-trailer combination – Karlsruhe locuta, causa non finita

If in a tractor-trailer combination the owners of the tractor unit and the trailer are not the same person and two different liability insurers cover the respective operating risk, the question arises as to the internal settlement between the two liability insurances. Here, first the conflict-of-law issue to be dealt with is the source of law that is to be used to determine the relevant statute for recourse. In its decision of 3 March 2021, the Federal Court of Justice endorsed an alternative approach based on Article 19 of the Rome II Regulation and Article 7 para. 4 lit. b) of the Rome I Regulation in conjunction with Article 46d para. 2 of the Introductory Act to the German Civil Code (EGBGB) for a situation in which a German liability insurer of the tractor seeks half compensation from a Czech trailer insurer. In the opinion of the authors, the IV. Civil Senate had, in light of the European Court of Justice’s decision of 21 January 2016 in the joined cases C-359/14 and C-475/14, an obligation to refer to the Court in Luxembourg under Article 267 para. 1 lit. b), para. 3 TFEU. So, the solution via Art. 19 Rome II Regulation seems hardly convincing, at most a special rule on conflict of laws like Art. 7 para. 4 lit. b) Rome I Regulation. Whether and to what extent Article 7 para. 4 lit. b) Rome I Regulation can be instrumentalized to enforce § 78 para. 2 VVG old version via Article 46d para. 2 EGBGB, however, should have been finally clarified by the European Court of Justice. In particular, it seems doubtful whether Article 46d para. 2 EGBGB as a national rule, which goes back to Art. 7 para. 4 lit. b) Rome I Regulation, allows a provision such as § 78 para. 2 VVG old version to be applied as a mere recourse rule between two insurers. This applies all the more since no special public interests or interests of injured parties worthy of protection are affected here.

C. Mayer, Relevance of the place of marriage for determining the applicable law in relation to the formal requirements of proxy marriage and online marriage

The decisions of the Federal Court of Justice and the Düsseldorf Administrative Court concern a double proxy marriage in Mexico and an online marriage via live video conference with an official from the US state of Utah. In both cases, the spouses were themselves in Germany. Both decisions focus on the conflict of law determination of the applicable law in relation to the formal requirements of marriage. Due to the German conflict of law rules in Art. 11 and Art. 13 Para. 4 EGBGB, the place of marriage is decisive. The Federal Court of Justice concludes that the double proxy marriage took place in Mexico, which is why the marriage was formally valid under the applicable local law. The Dusseldorf Administrative Court rules that the online marriage was concluded in Germany, so that only German law is applicable and the marriage is therefore formally invalid due to the lack of participation of a registrar. Both cases reveal inconsistencies in German conflict of laws.

S. Deuring, The Purchase of Trees Growing in Brazil: Not a Contract Relating to a Right in rem in Immovable Property or a Tenancy of Immovable Property

ShareWood, a company established in Switzerland, and a consumer resident in Austria had entered into a framework agreement and four purchase contracts for the acquisition of teak and balsa trees in Brazil. When the consumer demanded the termination of the purchase contracts, the question arose of whether this demand could be based on Austrian law, even though the parties had agreed that Swiss law should apply. Siding with the consumer, the ECJ ruled that contractual arrangements such as the present one cannot be considered contracts relating to a right in rem in immovable property or tenancy of immovable property pursuant to Art. 6(4)(c) of the Rome I Regulation. The non-applicability of this provision entails the applicability of Art. 6(2) cl. 2 of the Rome I Regulation. According to the latter, a choice of law may not have the result of depriving consumers of the protection afforded to them by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his habitual residence. In consequence, the consumer could, in fact, base his action on Austrian law.

C. Benicke and N. Suchocki, Judicial approval for disclaimer of interests given by parents for their minor children – Polish cases of succession at German courts and the role of the special escape clause in Art. 15 (2) CPC 1996

Polish probate courts demand for judicial approval of any disclaimer of interest given by parents for their minor children, even if such an approval is not required under the law applicable according to Art. 17 of the Child Protection Convention 1996. If German law is applicable due to Art. 17 CPC 1996, in most cases a judicial approval for the disclaimer of interest is not required according to § 1643 (2) p. 2 BGB. As a consequence, German family courts having jurisdiction to issue a judicial approval according to Art. 5 (1) CPC 1996 cannot do so, because under German law, applicable according to Art. 15 (1) CPC 1996 no judicial approval can be issued if not required by the substantive law applicable according to Art. 17 CPC 1996. This leads to the situation that no valid disclaimer of interest can be made, even though both jurisdictions would allow it in a purely domestic case. Therefore, the question arises as to whether in such cases a German family court may issue a judicial approval due to Art. 15 (2) CPC 1996, which exceptionally allows to apply or take into consideration the law of another State with which the situation has a substantial connection. One of the various regulatory purposes of the special escape clause in Art. 15 (2) CPC 1996 consists in allowing the court to adjust the lex fori in order to solve an adaptation problem as it is in this case. The Higher Regional Court Hamm issued such a judicial approval in taking into consideration that the Polish law requires a judicial approval for the disclaimer of interest. We agree with the OLG Hamm in the result, but not in the justification. As Art. 15 (2) CPC 1996 refers only to Art. 15 (1) CPC 1996 the taking into consideration of Polish law cannot overrule that the law applicable according to Art. 17 CPC 1996 does not require a judicial approval. To solve the adaptation problem, it suffices that German law applicable according to Art. 15 (1) CPC 1996 is modified in so far that it allows the formal issuance of a judicial approval even though such an approval is not required by the substantive law applicable according to Art. 17 CPC 1996.

R. Hüßtege, German procedural law for obtaining a decision that the removal or retention of a child was wrongful – present and future

Art. 15 of the Hague Convention on the civil aspects of international child abduction requests that the applicant should obtain from the authorities of the State of the habitual residence of the child a decision that the removal or retention was wrongful within the meaning of Article 3 of the Convention. The procedure for obtaining the decision is regulated incomplete in the German implementation law. Most of the problems raised will, however, be remedied by the reform of the German implementing act.

P. Schlosser, Recognition even if service of the document initiating the proceedings had not taken place?

The author is submitting that Art. 22 of the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides only one alternative for refusing recognition to a maintenance Judgment (“may be refused”) and that, therefore, more liberal provisions in national Law are upheld. The German code of civil procedure, § 328, seems not to be more liberal, but must be seen in the light of the overwhelming principle of safeguarding the right to be heard in court. Yet, this principle is well safeguarded, if the proposed victim in the subsequent proceedings of exequatur gets a chance to assert what he would have asserted in the original litigation but, thereby, he had no chance to achieve a different result. Under these circumstances the contrary solution would amount to a refusal of justice to the other party.

B. Heiderhoff, Refugees and the Hague Child Abduction Convention

The ECJ held that the removal of a child cannot be wrong ful in the sense of Article 2(11) of Regulation No 2201/2003 (now Article 2 sec 2(11) of Regulation No 2019/1111), if the parent has complied with a decision to transfer under Regulation (EU) No 604/2013 by leaving the country. This decision makes a valid point, but seems too general and reaches too far. The contribution shows that the integration of family law and migration law is insufficient and urges better coordination between the actors to achieve better protection of the child.

T. Frantzen, Norwegian International Law of Inheritance

Norway adopted a new act on inheritance and the administration of estates in 2019. The act came into force on 1 January 2021. The new act is based on the principles of the act on inheritance from 1972 and the act on administration of estates from 1930. This means that descendants may claim a forced share of 2/3 of the estate, however with a limitation of approximately 150,000 Euro. With the new act the amount has been increased, and it is regulated each year. A surviving spouse may, as before, claim a legal share. The spouse may alternatively choose to take over the so-called undivided estate. This means that the division of the estate is postponed.
Until the new succession act was adopted, Norwegian choice of law rules on succession were based on customary law. The general principle was that succession was governed by the law of the State in which the deceased had her/his last domicile, and that there was no, or a very limited space, for party autonomy.
The new act decides that the administration of estates may take place in Norway if the deceased had her/his last habitual residence in Norway. When it comes to succession, the main rule is that succession is governed by the law of the State where the deceased had her/his last habitual residence. Party autonomy is introduced in the new act, as a person may choose that succession shall be governed by the law of a State of which he or she was a national. The decision on the choice of law is however not valid if the person was a Norwegian citizen by the time of death. The few provisions on choice of law are based on the EuErbVO.

C. Jessel-Holst, Private international law reform in North Macedonia

In 2020, North Macedonia adopted a new Private International Law Act which replaces the 2007 Act of the same name and applies from 18.2.2021. The new Act amounts to a fundamental reform which is mainly inspired by the Acquis communautaire. It also refers to a number of Hague Conventions. The Act contains conflict-of-law rules as well as rules on procedure. Many issues are regulated for the first time. The concept of renvoi is maintained but the scope of application has been significantly reduced. As a requirement for the recognition of foreign judgments the Act introduces the mirror principle. As was previously the case, reciprocity does not constitute a prerequisite for recognition and enforcement.

The fourth issue of the Journal du droit international for 2022 has just been released. While it contains a number of case notes relating to private international law issues, it is mainly conceived as a tribute to the late Emmanuel Gaillard and publishes a number of contributions to the conference Emmanuel Gaillard Theory in Action which held last spring in Paris (see also the announcement on this blog).

Most of the articles discuss the contributions of Gaillard to international arbitration.

One of them, however, discusses more specifically the contribution of Gaillard to private international law (by Jean-Michel Jacquet, IHEID Geneva). The English summary reads:

The contribution of Emmanuel Gaillard’s thought to the law of international arbitration has been considerable. Throughout his career, Emmanuel Gaillard has sought to establish the philosophical foundations of international arbitration. He has also contributed to search of the most appropriate rules and solutions to the many questions raised by international arbitration. In this perspective, the question of the role played by private international law arises. In Emmanuel Gaillard’s thinking this role differs according to the angle from which international arbitration law is considered. When it comes to understanding the arbitral phenomenon, the proposals of private international law do not seem to provide the best insight into the question. When it comes to understanding the arbitral process, private international law is back in the picture. But the arbitrator’s point of view cannot be that of a judge. Thus, to a certain extent, a private international law of the arbitrator is developing. But the latter must also take into account the « private international law of others ».

Also of interest for the readers of this blog might the contribution of Eric Loquin (University of Dijon) on the arbitral legal order. The English summary reads:

This article aims to analyse the concept of an arbitral legal order as conceived by Emmanuel Gaillard in his famous special course given at The Hague Academy of International Law in 2007, entitled « Legal Theory of International Arbitration ». This concept is based on the observation that the binding nature of international arbitration is not anchored in a single state legal order, but in a third one, characterised as the arbitral legal order. This legal order was intended and created by the international community of states who were favourable to the resolution of international commercial disputes through arbitral, and whose laws have recognised the autonomy of arbitration towards state legal orders.

The article explores the objections and discussions that have been initiated by this concept regarding both its nature and its existence. One view would be that the arbitral legal order results from the private nature of arbitration rather than the actions of the states, thus making arbitration a non-state phenomenon but a legal order subject to natural law and freed from positive law. Another view of international arbitration would deny that it exists as an autonomous legal system and would consider it as a tool created by the states to be used by private transnational legal orders as their adjudicating body (such as the international community of merchants’ legal order, or the transnational sports legal order). International arbitration would thus be used as an instrument for the coordination of these legal orders and that of the international community of states.

Finally, the issue offers one article unrelated to the conference in which Dr. Estelle Fohrer-Dedeurwaerder (University of Toulouse) explores the effects of Brexit on the recognition and enforcement of English judgments on both sides of the channel (L’effet du Brexit sur la reconnaissance et l’exécution des jugements des deux côtés de la Manche). The English summary reads:

The Brexit has put an end to any judicial cooperation in civil and commercial matters between the UK and the EU as the Trade and Cooperation Agreement contains no provision on this point. Despite the desire of some to re-implement the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, and the steps taken by the UK to accede to the 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, neither of these two conventions will find application in Anglo-European relations. However, judicial cooperation between the United Kingdom and the Member States is not excluded if bilateral conventions concluded before the 1957 Treaty of Rome (or before accession to the EEC or EC), such as the 1934 Franco-British Convention, become fully effective as a result of Brexit. Their conciliation with the Treaties having the same object, in particular with the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters, will then arise, unless States refuse to revive them, in which case their common law will be implemented. However, the latter scenario is not desirable if the density of socio-economic exchanges between France and the United Kingdom is to be maintained.

The table of contents of the issue can be accessed here.